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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-KSB
(Mark One)
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
[ ] Transition report under Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the transitional period from _____________ to ____________
Commission File No. 1-13362
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
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(Name of Small Business Issuer as specified in its charter)
NEVADA 04-3226365
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(State or other jurisdiction (I.R.S.Employer Identification Number)
incorporation or organization)
266 BEACON STREET, BOSTON, MA 02116
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(Address of principal executive offices) (Zip Code)
(617) 266-3600
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(Issuer's Telephone Number, Including Area Code)
Securities registered under Section 12(b) of the Exchange Act:
Name of each exchange on
Title Of Each Class which registered
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Common Stock, $.001 par value Boston Stock Exchange
Redeemable Warrants to
Purchase Common Stock Boston Stock Exchange
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Securities registered under Section 12(g) of the Exchange Act:
None
Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the issuer was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days.
YES X NO
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Check if there is no disclosure of delinquent filers in response to item 405 of
Regulation S-B contained in this form, and no disclosure will be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendment to this Form 10-KSB [X]
The registrant had total operating revenues of $6,697,425 and interest income of
$18,151 for its most recent fiscal year ended December 31, 1996.
The aggregate market value of the voting stock held by non-affiliates of the
registrant as of March 11, 1997, based on the closing price for the stock on
such date as reported on the NASDAQ Small-Cap Market of $2.125, was $3,962,619.
Shares of Common Stock held by each officer and director and by each person who
owns 5% or more of the outstanding Common Stock have been excluded in that such
persons may be deemed to be affiliates. This determination of affiliate status
is not necessarily a conclusive determination for other purposes.
As of March 11, 1997 there were 3,489,525 outstanding shares of Common
Stock, $.001 par value.
DOCUMENTS INCORPORATED BY REFERENCE
Not Applicable
Transitional Small Business Issuer Format (check one):
YES NO X
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(ii)
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PART I
ITEM 1. DESCRIPTION OF BUSINESS.
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Background
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Senior Tour Players Development, Inc. ( the "Company") was organized as a
Nevada corporation on April 6, 1994 for the purpose of developing or acquiring
and then operating public, semi-private, resort and private golf courses and
golf practice facilities throughout the United States. The Company may also
acquire interests in, or participate in the marketing of, golf course
residential communities.
On November 16, 1994, the Company completed an initial public offering of
1,600,000 shares of common stock, $.001 par value ("Common Stock") and 1,600,000
redeemable common stock purchase warrants in a firm-commitment underwriting
managed by Dickinson & Co. On December 28, 1994, the underwriter exercised its
over-allotment option for the purchase of an additional 153,200 redeemable
common stock purchase warrants. The offering, including the exercise of the
over-allotment, raised net proceeds of $6,572,249 (gross proceeds of $8,175,320
less underwriting discounts, commissions and other expenses of $1,603,071).
On November 30, 1994, following the Company's initial public offering, the
Company commenced construction of its initial golf course development project,
The Badlands Golf Club located in Las Vegas, Nevada. The course was designed by
Johnny Miller Design, Ltd. in consultation with Chi Chi Rodriguez. The course is
situated in the middle of a mixed use development located approximately ten
miles from the Las Vegas strip at which approximately 1,200 single family
residential units have been built and sold, and an additional 3,000 residential
units, a 1.2 million square foot regional mall and destination resort
hotel-casino are being planned. The Company does not have any economic interest
in this development. The course is located on approximately 186 acres which the
Company has leased from the developer of the residential community. In November
1996, the Company commenced construction of a nine hole addition at The Badlands
which is being developed on approximately 67 acres of land abutting the existing
18 holes and which is being leased from the developer of the residential
community. See "Item 2. Description of Property."
Recent Activity
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Forest Lakes Golf Club - Sarasota, Florida
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In January 1995, the Company acquired a combined 53.5% interest in Forest
Lakes Limited Partnership which owns and operates Forest Lakes Golf Club, a
semiprivate golfing facility located in Sarasota, Florida ("Forest Lakes"). The
Company's interest comprised a 34% general partnership interest and a 19.5%
limited partnership interest. The general partnership interest was purchased
from Senior Tour Players, Inc. ("STP"), an affiliate of the Company. STP
retained a 1% general partnership interest. In addition to the partnership
interests, the Company purchased, through assignment, a management contract for
the golfing facility from STP for $91,000, which was paid at closing.
On December 17, 1996 the Company consummated the sale of its interest in
Forest Lakes. The sale was structured as a sale of substantially all of the
assets of Forest Lakes Limited Partnership. The buyer was BST Associates, an
Illinois general partnership. The cash contract
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purchase price was $4,000,000 payable in full at closing. Broker commissions and
closing costs relating to the sale totaled $172,318 resulting in net sale
proceeds to the Partnership of $3,827,682. Included in the Company's
consolidated net income for the year ended December 31, 1996 is a gain on the
sale of Partnership assets of approximately $439,000. The Company received cash
proceeds of approximately $149,500 in January 1997 against its Partnership
investment of $252,438.
Since its acquisition in 1995, the Company has managed the Forest Lakes
Golf Club under a management agreement. Effective December 16, 1996, the Company
will no longer manage the facility.
Under the terms of the Forest Lakes Limited Partnership Agreement, the
sale of all of the Partnership's property and the conversion of all proceeds
into cash requires that the Partnership be dissolved. Accordingly, as General
Partner, the Company is taking steps to dissolve the Partnership and cause a
distribution of all available cash proceeds to the partners.
New England Country Club - Bellingham, Massachusetts
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In February 1995, the Company entered into an agreement to manage New
England Country Club in Bellingham, Massachusetts which is a championship
18-hole golf course designed by three-time U.S. Open Champion Hale Irwin. The
management agreement is for a five year term, and can be terminated on ninety
days' notice by either party. As compensation for the Company's services, the
Company is paid 5.0% of the Club's gross revenues and is also paid a monthly
accounting fee.
The Badlands Golf Club - Las Vegas, Nevada
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On October 14, 1995 the Company opened for public play The Badlands Golf
Club, its initial and flagship golf course in Las Vegas, Nevada (the
"Badlands"). The Badlands includes an 18-hole championship golf course, practice
range, and 7,500 sq. ft clubhouse and related maintenance facilities.
On December 22, 1995, the Company refinanced its $3,000,000 construction
and permanent loan for the Badlands with a $6,700,000 construction and permanent
loan with NationsCredit. See Item 6. Management's Discussion and Analysis or
Plan of Operation - Liquidity and Capital Resources.
During June, 1996 the Company entered into an agreement to lease an
additional 67 acres of land abutting the Badlands for purposes of developing an
additional nine holes at the Badlands. The terms of the lease are substantially
the same as an existing land lease between the parties for the Badlands'
original 18 holes, namely a 50-year lease term with four 10-year extension
options. The annual lease payments are equal to the greater of 6% of gross
revenues or $120,000 per year. The lease also requires the Company to pay real
estate taxes, assessments, and other charges in connection with the leased
property.
The nine hole expansion is being designed by Johnny Miller Design, Ltd.
Construction financing for 100% of the costs of construction is being provided
by a construction and term loan of NationsCredit
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which the Company closed during November 1996. Construction commenced in
November 1996, and an opening is anticipated during early September, 1997.
The Legends Golf Club - Stonebridge Ranch, Mckinney, Texas
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On March 12, 1996 the Company signed a purchase and sale agreement and
related documents with Stonebridge Ranch Development Corporation, a residential
development group of the Mobil Land organization, an affiliate of Mobil
Corporation, for the proposed development of an 18-hole championship golf
facility located within the Stonebridge Ranch Development in McKinney, Texas,
approximately 25 miles north of Dallas. During November, 1996, Westerra
Holdings, LLC purchased and succeeded to the interest of Mobil Land in the
Stonebridge Ranch development.
Under the terms of the agreement, land will be conveyed to the Company for
total consideration of ten dollars ($10.00) and the Company, in turn, shall be
responsible for the costs of the design, development, and operation of an
18-hole championship golf course, clubhouse, driving range, and maintenance
facilities. The Company's ownership interest is limited to the golf facilities,
and shall have no direct interest in the residential development which is
planned for the land surrounding the course. The Company has the option to
develop a 27-hole facility, and if the Company elects to develop 27 holes,
additional land will be conveyed to the Company at no additional consideration.
In connection with the design and promotion of the golf course, the
Company intends to utilize the design and marketing services of six senior
"Legends" of golf to design three holes each and participate in the marketing
and promotion of the facility. The Company has entered into agreements with
senior pros Sam Snead, Bob Goalby, Chi Chi Rodriguez, Miller Barber, Orville
Moody, and regular PGA TOUR pro Bruce Lietzke to provide design and promotional
services to the project. Based on the permitting and design process, course
construction would commence during late Summer of 1997, with a course opening
anticipated for the Fall of 1998.
The Company's ability to successfully develop a golf course at Stonebridge
Ranch is dependent on a number of factors, including, but not limited to the
ability of the Company to raise the necessary capital to finance the course as
well as the requirement to receive all necessary approvals and permits for the
construction of the golf course and related facilities.
Golftown Practice Center - Saugus, Massachusetts
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During July 1996, the Company entered into an agreement with Golftown,
Inc., ("Golftown") a Massachusetts corporation that is the majority owner and
operator of a driving range facility located in Saugus, Massachusetts,
approximately eight miles north of Boston (the "Project"). The Company has
entered into an agreement to guaranty a loan in an amount not to exceed $295,000
made to Golftown by Danvers Savings Bank, in exchange for a 25% equity interest
in the Project. Under the terms of the agreement with Golftown and its lender,
the Company has the opportunity to cure any default under the loan, and in the
event of a default, the Company may assume day-to-day management of the Project
and receive a management fee for such services. In addition, the Company has
received a pledge of voting rights to a majority of the voting interests of
Golftown, which pledge becomes effective in the event of a default under the
loan being guaranteed by the Company. The President and majority shareholder of
Golftown is Jeffrey Abrams, who is the son of Stanton V. Abrams, President and
Chairman of the Board of Directors of Senior Tour Players Development, Inc. The
driving range opened during August, 1996.
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Las Vegas International Golf Center - Las Vegas, Nevada
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On December 31, 1996 the Company consummated the acquisition, and
simultaneous disposition of certain ownership interests in the Las Vegas Golf
Center, LLC, a Delaware limited liability company (the "LLC"), which owns a golf
practice facility located in Las Vegas, Nevada (the "Center"). The Center is
situated on approximately 42 acres of land leased from Clark County, Nevada,
located on the corner of Tropicana and Paradise Roads, directly across the
street from the McCarran International Airport, and approximately one-half mile
from Las Vegas Boulevard (the "Strip"). Twenty-five acres shall be used for a
golf driving range and instruction center, 10,000 sq. ft. putting green, sand
bunkers and chipping area, and a 6,500 sq. ft. clubhouse containing a snack bar
area, golf school administration, a VIP lounge and locker and meeting area for
the UNLV Rebel golf team.
<TABLE>
The Company acquired a 21.5% interest in the LLC from individuals not
affiliated with the Company for an aggregate purchase price of $400,000 cash
consideration and 323,289 shares of the Company's Common Stock, payable to
sellers as follows:
<S> <C>
Cash Consideration $ 20,000 payable on or before December 15, 1996
$180,000 payable on or before January 15, 1997
$200,000 payable on or before January 15, 1998
Common Stock 161,645 shares due on or before January 15, 1997
161,644 shares due on or before January 15, 1998
</TABLE>
In addition to the 21.5% interest described above, the Company also
acquired a 48.5% interest in the LLC from individuals not affiliated with the
Company for an aggregate purchase price of $1,532,050 cash consideration and
369,547 shares of the Company's Common Stock. The Common Stock was issued on
February 14, 1997.
All of the shares issued or payable in connection with these transactions
are restricted securities, as defined in Rule 144 promulgated under the
Securities Act of 1933, as amended. The Company has granted the sellers of the
interests the right to demand registration of their Common Stock on a Form S-3
registration statement or similar Form at any time after May 1, 1997. The
Company has agreed to use its best efforts to cause such a registration
statement to become effective as soon as practicable thereafter. The sellers of
the 21.5% interest and 48.5% interest have agreed, pursuant to shareholder
agreements, to vote their Common Stock for the slate of directors proposed by
management of the Company through December 31, 1998 (in the case of the 21.5%
interest) or the first to occur of (i) June 30, 1999, or (ii) the date on which
Stanton V. Abrams ceases to serve as the President and Chief Executive Officer
of the Company (in the case of the 48.5% interest).
Immediately after the acquisition of the 48.5% interest, the Company sold
a 48.5% interest to Paul Fireman ("Fireman"), an individual investor who
beneficially owns 205,000 shares of the outstanding Common Stock of the Company
as of March 11, 1997, for cash consideration of $2,167,953. The Company also
received a $200,000 consulting fee from Fireman for certain services rendered
in connection with structuring and implementing the transaction, as well as for
arranging certain financing for the LLC. A substantial amount of the cash
received from Fireman financed a significant portion of the total cash
consideration paid by the Company in connection with the Company's acquisition
of its interest in the LLC.
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In consideration of 50,000 shares of unregistered Common Stock of the
Company issued to Fireman, the Company retained a purchase option to buy back
from Fireman a 13.5% interest in the LLC (the "Option"). If the Company
exercises the Option on or before December 31, 1997, the price for a 13.5% LLC
interest shall be $900,000. If the Company exercises the Option after December
31, 1997 but on or before December 31, 1998, the price for a 13.5% LLC interest
shall be $1,075,000. If the Company exercises the Option after December 31, 1998
but on or before December 31, 1999, the purchase price for a 13.5% LLC interest
shall be $1,350,000.
The Company has been designated the Managing Member of the LLC, and shall
be responsible for the day-to-day management, marketing, and operation of the
Center. The Company shall receive a management fee equal to 5% of gross revenues
generated by the LLC, and shall be reimbursed for certain accounting and
out-of-pocket expenses.
Brad Faxon Golf Center - Cranston, Rhode Island
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The Company is presently finalizing the terms of its anticipated
participation in a partnership with PGA TOUR pro Brad Faxon, and other
investors, in the development and operation of a family golf and recreation
center in Cranston, Rhode Island. The proposed complex will encompass 56 acres,
the first phase of which will include a 52-tee driving range, putting green, and
18 hole miniature golf course. The Company has also agreed to construct two
Little League baseball fields on the site, to be donated to the City of
Cranston. Subsequent development phases are expected to include a second 18 hole
miniature golf course, batting cages, and a domed practice arena. After several
public hearings on the proposed project, on March 24, 1997 the Cranston City
Council voted 9-0 to approve the project. Construction is expected to commence
during the Spring of 1997, which would permit an opening of the driving range in
late summer of 1997. The Company hopes to open and operate a number of Brad
Faxon Golf Centers in partnership with Brad Faxon in Rhode Island, Massachusetts
and Connecticut.
Business Strategy
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The Company's business strategy is (i) to expand its asset base and grow
revenues by developing or acquiring golf practice facilities in or around
metropolitan areas where golfing demographics are strong and there exists an
under-supply of quality run golf practice facilities; (ii) developing new or
partially completed golf courses at locations, and in geographic regions of the
country, such as Las Vegas and the Southwest, where demographic and competitive
analyses indicate a substantial demand for more tee times; (iii) seeking out
golf course management opportunities on a limited and select basis in regions of
the country where the Company already has a presence such as the West,
Southwest, and Northeast, or in specific situations where the Company has an
equity interest in the golf course; (iv) using the contacts and resources of its
management team to engage popular touring golf professionals in the
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marketing and promotion of the Company's courses and golf practice facilities;
and (v) employing the Company's operational strategies and policies which
include professional staffing, attention to service, aggressive marketing, tee
time management, cost/cash controls, and implementation of effective capital
improvements that can generate a meaningful return on the invested capital. The
Company believes that the development of its flagship golf course in Las Vegas,
Nevada, "The Badlands Golf Club," and the recent acquisition and development of
its flagship golf practice facility, "The Las Vegas International Golf Center",
will enable it to showcase its development, marketing, and management
capabilities to investors, lenders and referral sources of new opportunities.
Management believes that its contacts within the golf industry will
provide the Company with extensive information about acquisition and development
opportunities in both the golf course and golf practice facility area. The
Company intends to draw upon touring professionals, real estate brokers and
developers, golf course vendors, and golf course lenders, among others, to
provide it with information about potential acquisition, development, and
management opportunities.
The Company will target for acquisition or lease existing golf course
facilities which are well-located, public (daily fee), semi-private, resort or
private courses in communities which offer a substantial base of tourists and/or
residents to draw upon. Management will conduct or commission demographic and
competitive analyses of target markets and consider such factors as the number
and proximity of other courses or golf practice facilities in the market, and
fees charged at nearby golf courses, or ancillary services and amenities offered
at other practice facilities; the potential for population growth in the market,
acquisition price, and the projected effect of the Company's business and
marketing strategies on the target course or practice facility. The Company will
also evaluate operating inefficiencies which can be improved and the potential
for capital improvements which may enhance golf course quality and increase
revenues. The Company will also evaluate the potential for new competition from
additional golf practice facilities being developed in areas where the Company
proposes to acquire or develop a golf practice facility.
In addition to these general criteria, for golf course projects, the
Company will evaluate other specific factors which will vary depending upon
whether the golf course is a daily fee, resort or private course. At a daily fee
course, the Company will review potential marketing options and consider how the
number of rounds played might be increased, what fees can be charged and how
increases might be restricted, the length of any proposed lease and the
potential relationship with a landlord, particularly where a municipality is
involved. At a private country club, the Company will analyze the membership
profile, how membership and dues might be increased, or restricted potential
relations with members, whether the members currently have equity ownership, and
the extent of any deferred maintenance costs. In examining geographic markets
where the Company's management has limited experience or knowledge, the Company
expects to commission market feasibility studies to assist in determining the
desirability of a particular site.
After the desirability of a particular acquisition or development
opportunity has been determined, the Company will proceed with structuring the
transaction. The Company intends to structure each to maximize the long-term
cash flow potential of the facility. Traditional purchase money mortgages,
seller carry backs, long term leases, joint ventures and equity offerings are
some of the financing methods the Company may employ.
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Competition - Golf Course Ownership
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The Company believes that the primary competitive factors in golf course
ownership are the condition of the course, the level of services provided at the
course, innovative marketing, and the cost control structure. The Company
believes that it will compete effectively with respect to all of these factors.
In addition, the Company believes that it has an advantage over its competitors
because of the experience of its management team and its relationships with some
of golf's legendary players.
The Company may be competing for golfers with municipal facilities that
have the ability to undercut the pricing at the Company's courses. In addition,
in capitalizing on opportunities to acquire existing golf facilities, the
Company may be competing with municipalities that are able to obtain tax exempt
financing, or with other entities which may have greater capital resources than
those of the Company. Nevertheless, the Company believes that its plan to serve
the middle to upper income segment of the golf market will distinguish the
Company from other golf course developments which have been designed as an
amenity to what is essentially a high-end residential development.
The Company believes that it will have a particular competitive advantage
in the operation of its flagship course The Badlands Golf Club as a result of
the purchase of water rights that the Company believes will service two-thirds
of its irrigation requirements. The balance of the water needs at the course
will be derived from municipal water sources.
Employees
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As of March 11, 1997, the Company had 49 full time employees, including
six assigned to the Company's headquarters in Boston, Massachusetts, 35 at The
Badlands Golf Club in Las Vegas, Nevada, and 8 assigned to the Las Vegas
International Golf Center. The Company intends to maintain a streamlined
business organization by continuing to manage the Company with the minimum
number of salaried executive employees possible.
Golf Course Operations
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The operating policies and practices of the Company's golf courses will be
managed, and be subject to continued reevaluation by, the Company's executive
officers.
Day to day operations at each course will be overseen by a general manager
who will be hired for each of the Company's courses. General managers will have
responsibility for golf course operations, including the practice facilities,
pro shop, and food and beverage and banquet facilities. In addition, general
managers will work with superintendents who will have responsibility for the
quality of turf conditions and the maintenance of the course. The Company will
also engage golf professionals and assistants at each of its courses.
Golf Practice Facility Operations
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The operating policies and practices of the Company's golf practice
centers will be managed, and be subject to continued reevaluation by the
Company's executive officers. Day to day operations at each golf practice center
will be overseen by a general manager who will be hired for each of the
Company's facilities. General managers will have responsibility for golf range
operations, including the pro shop and
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food and beverage facilities. The Company will also engage golf professionals
and assistants at each of its facilities to oversee golf school operations.
Marketing
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The Company plans to design, develop, market, and operate its golf courses
in a manner that will offer challenging, affordable play to middle and upper
income, average ability players. The Company will strive to provide the daily
fee golfer with the service a golfer expects to receive at a private course. The
Company plans to design, develop, market, and operate its golf practice centers
in a manner that will offer a state-of-the-art golf practice facility suitable
for golfers of all abilities and interest, and include at some of its
facilities, short game areas, putting greens, grass tees, and individual and
group lesson programs with video analysis available. In addition, at some of its
golf practice centers, the Company may also develop and offer other family
entertainment amenities such as miniature golf, batting cages, food and beverage
facilities, and go-cart tracks. Each of the Company's golf practice centers will
also have a fully stocked retail golf pro shop. Some golf practice centers may
include a 9 or 18 hole par 3, or executive golf course, depending on the size of
the available land parcel and local market characteristics.
Government Regulation
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Development and operation of golf course facilities and golf practice
centers are subject to a variety of land use, zoning, and licensing regulations
at the state and local level, as well as environmental regulations at the
federal and state level. The Company believes it is currently in material
compliance with all such applicable laws, rules and regulations. The sanctions
for failure to comply with such laws, rules and regulations include denial of
the right to conduct business, significant fines and/or penalties, as well as
the costs for remediation of environmental problems. Additionally, a change in
such laws, rules or regulations could adversely affect the Company's business.
The Company is subject to the Fair Labor Standards Act and various state
laws governing such matters as minimum wage requirements, overtime and other
working conditions and citizenship requirements. In addition, at the Company's
courses where alcoholic beverages are served, the Company is subject to certain
state "dram-shop" laws, which provide a person injured by an intoxicated
individual the right to recover damages from an establishment that wrongfully
served alcoholic beverages to the intoxicated individual.
ITEM 2. PROPERTIES.
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THE BADLANDS GOLF CLUB. The Badlands is located in Las Vegas, Nevada and
is 100% owned by The Badlands Golf Club, Inc., a wholly owned corporate
subsidiary of the Company. This 18-hole championship golf course, which includes
a driving range, clubhouse, and maintenance facilities, was completed and opened
for play on October 14, 1995. The clubhouse and maintenance facilities were
completed in September, 1996. The approximately 186 acres of land on which the
course is situated is leased under a 50-year land lease with four extension
options of ten years each. Minimum rent under the lease is $240,000 per year
payable in monthly installments of $20,000 commencing July 1, 1995. There is a
cost of living increase every three years based on increases in the Consumer
Price Index, up to a maximum of 9% in any three year period. The lease also
calls for additional payments equal to the amount, if any, that 6% of the annual
gross receipts of the Badlands from all sources exceeds $240,000.
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The Company is also responsible for the payment of real estate taxes. The
property is subject to a first mortgage in favor of NationsCredit. The Badlands
has a full liquor license and a limited gaming license.
LAS VEGAS INTERNATIONAL GOLF CENTER. The Golf Center is a state-of-the-art
golf practice center located in downtown Las Vegas, at the corner of Paradise
and Tropicana Roads, across the street from the Thomas and Mack Center at the
University of Nevada Las Vegas, and also across the street from the entrance to
McCarran International Airport. The Center has 120 tee stations, 39 natural
grass tees and 81 artificial turf tees, 26 of which are on a second tier. The
range is fully lighted, and is presently operating 24-hours per day.
Approximately 50 of the tees are shaded and equipped with cooling misters for
use during the desert summer season, and many are equipped with heaters for
24-hour use during the cooler months. The Center's landing area for the range is
over 300 yards long and 200 yards wide, and features eight target greens. The
Center also has a 10,000 sq. ft putting green and a short game practice area
with practice green, sand traps, and a chipping area. There is presently a 6,500
sq. ft clubhouse which contains a food & beverage snack area, golf school,
control desk, and administrative offices. The Golf Center has entered into a
long-term lease agreement with Pro Golf of America for a retail golf store
containing approximately 20,000 sq. ft which will be constructed as an addition
to the existing clubhouse. The retail store is expected to open in the Fall of
1997. The cost of construction is being funded in part through proceeds of a
construction loan provided by US Bank of Nevada, and in part through cash equity
to be provided by the lessee, Pro Golf of America. The Center is owned by Las
Vegas Golf Center, LLC, a Delaware limited liability company (the "LLC") in
which the Company holds a 21.5% ownership interest. The Company is responsible
for the management, marketing, and day-to-day operation of the Center under a
management agreement with the LLC.
GOLFTOWN. Golftown is a driving range complex located on Route 1 in
Saugus, Massachusetts, approximately 8 miles North of Boston. The facility is
operated by Golftown, Inc., a Massachusetts corporation. The Company owns a 25%
ownership interest in the property. Golftown encompasses 52 lighted tee areas on
two levels, two practice greens, two sand bunkers, and a chipping area. The
property opened during August, 1996.
NEW ENGLAND COUNTRY CLUB. The New England Country Club is an 18-hole
championship golf course designed by Hale Irwin and located in Bellingham,
Massachusetts. The Club is managed by the Company under a 5-year management
agreement which commenced March 1, 1995, and is cancelable by either party on 90
days' notice. Under the Agreement, as amended in 1996, the Company receives 5.0%
of gross revenues, plus a monthly fee for accounting services.
BOSTON HEADQUARTERS OFFICES. The Company maintains its corporate
headquarters at 266 Beacon Street, Boston, Massachusetts in premises leased
through December 31, 1997. The lease term continues on a year-to-year basis
thereafter until canceled by either party by providing one year's notice. Annual
rental payments are $37,644. In addition, the Company is responsible for a share
of real estate taxes.
Each of the properties owned or managed by the Company is covered by
property and liability insurance, at insurance levels deemed appropriate by
management. Coverages at all properties include property and liability,
automotive, and workers compensation, and at projects with construction in
process, builders risk insurance. The Company also maintains officers and
directors liability coverage in the amount of $1,000,000.
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ITEM 3. LEGAL PROCEEDINGS.
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The Company is not currently involved in any legal proceedings.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITIES HOLDERS.
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No matters were submitted during the fourth quarter of the fiscal year
covered by this report to a vote of security holders, whether through the
solicitation of proxies or otherwise.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
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MATTERS.
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The Company's Common Stock has been traded on the Boston Stock Exchange
("BSE") under the symbol SEN and on the National Association of Securities
Dealers Automated Quotation System Small-Cap Market (the "NASDAQ Small-Cap
Market") under the symbol SRTR since November 16, 1994. Prior to that time,
there was no public market for the Company's Common Stock. The table below
presents the range of high and low closing prices for the Company's Common Stock
by quarter since November 16, 1994 (the date of the Company's initial public
offering) through December 31, 1996:
1994 HIGH LOW
Fourth Quarter (Beginning Nov. 16, 1994)............... $5.00 $2.25
1995
First Quarter.......................................... $3.25 $1.8125
Second Quarter......................................... $4.50 $2.00
Third Quarter.......................................... $5.50 $3.75
Fourth Quarter......................................... $5.125 $3.00
1996
First Quarter.......................................... $3.75 $3.00
Second Quarter..........................................$4.6875 $3.125
Third Quarter...........................................$3.75 $2.375
Fourth Quarter..........................................$2.75 $1.9375
As of March 11, 1997, the Company had in excess of 1,000 stockholders of
record.
The Company has paid no cash dividends since its inception on April 6,
1994. The Company currently intends to retain future earnings, if any, to invest
in new development and acquisition opportunities and, therefore, does not
anticipate paying any cash dividends for the foreseeable future. Any future
payment of dividends will be determined by the Company's Board of Directors and
will depend on the Company's financial condition, results of operations and
other factors deemed relevant by its Board of Directors.
10
<PAGE> 13
During the year ended December 31, 1996, the Company issued or agreed to
issue a total of 767,836 shares of Common Stock without registration under the
Securities Act of 1933, as amended. All of such shares are "restricted
securities" as defined in Rule 144 under the Securities Act. Of these shares,
742,836 were issued in connection with the Company's acquisition of its interest
in The Las Vegas Golf Center, LLC, and 25,000 were issued under an agreement for
design services being rendered at the Badlands. See Item 1. Description of
Business - Las Vegas International Golf Center, and - The Badlands Golf Club.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS.
- ------ ----------------------------------------------------------
RISK FACTORS AND CAUTIONARY STATEMENTS
This report contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. Actual results and events could differ materially from
those projected, anticipated, or implicit, in the forward-looking statements as
a result of the risk factors set forth below and elsewhere in this report.
The industry in which the Company competes is highly competitive and
capital intensive. The Company's future growth and profitability will be
dependent upon future developments and/or acquisitions of additional golf
courses and golf practice facilities. The number of attractive and profitable
acquisition and development opportunities may be limited and the Company may
have to compete with other potential buyers whose financial and human resources
may be substantially larger than those of the Company. There can be no assurance
that the Company will be successful in developing or acquiring any particular
project or that any projects acquired or developed by the Company will be
profitable. Additionally, the Company will be dependent upon third-party funding
in the form of equity and/or debt to finance its development and acquisition of
future golf courses and golf practice facilities. Until funding is obtained for
new golf courses and golf practice facilities, the Company may be unable to
proceed with those projects.
In addition to competing with the Company at the acquisition and
development stage, competitors could also acquire and/or develop golf courses
and/or golf practice facilities in the same market as a Company facility, and
put the Company at a competitive disadvantage with respect to pricing and costs
of operation. The Company's future revenue may also be significantly dependent
on industry factors which are beyond its control such as the availability of
discretionary income for golf, a sustained level of popularity for golf, and
shifting consumer preferences.
LIQUIDITY AND CAPITAL RESOURCES
The Company believes that is has sufficient cash, bank and leasing lines
of credit, and committed construction financing to meet its current operating
needs, and fund the development of an additional nine holes at The Badlands.
At December 31, 1996, the Company had $1,585,611 in cash and cash
equivalents.
On November 15, 1996, The Badlands Golf Club, Inc., a wholly owned
corporate subsidiary of the Company, entered into a loan agreement with
NationsCredit, a NationsBank company, for a
11
<PAGE> 14
construction and permanent loan in the amount of $5,000,000. At closing, the
loan provided the Company with $4,000,000 to fund the costs of construction of
an additional nine holes at the Badlands.
The loan has a fixed rate of interest of 10.95% and is being amortized
over twenty years. The loan has a maturity date of December 1, 2001, however the
Company has the option to extend the loan term for an additional five year term
upon payment of a .5% extension fee, and provided that no event of default
exists; and that during the 12 months immediately preceding the extension
request; (i) there has not occurred a reduction of more than 20% in net cash
flow or a reduction in gross revenues of more than 30% from Badlands operations;
and (ii) the debt service coverage ratio for the Badlands is equal to or greater
than 1.40:1 all as detailed in the loan agreement.
In addition to the $4,000,000 made available at closing, the loan provides
for the availability to the Company of an additional $1,000,000 in "Earnout
Advances". The earnout funds will be made available to the Company over a period
of thirty (30) months following the loan closing so long as certain operating
results are achieved at the Badlands, including minimum debt service coverage
ratios, and other revenue and cash flow criteria all as detailed in the loan
agreement.
It is the Company's practice to lease golf carts, turf maintenance
equipment, and other golf equipment at its owned golf facilities. The Company is
leasing substantially all of its turf maintenance equipment and certain other
furniture, fixtures and equipment at The Badlands Golf Club under leasing lines
of credit from the Golf Capital Division of American Equipment Leasing Company.
As of December 31, 1996 the Company had $544,822 outstanding under these leasing
lines of credit. The Company has leased its golf cart fleet at the Badlands from
Club Car of Augusta, Georgia under an operating lease. See Note 7(a) of the
Notes To Consolidated Financial Statements included in this report.
PLAN OF OPERATION
The Company's plan of operation for the next twelve months will include
the completion of construction of an additional nine holes at the Badlands and
ongoing operation of that 27-hole facility; the completion of construction of
the planned improvements and amenities at the Las Vegas International Golf
Center, and the continuing marketing and management of that facility; the
completion of the design and engineering, and the commencement of construction
of the proposed golf course at Stonebridge Ranch in McKinney, Texas as more
fully described herein; fund raising efforts for debt and equity to finance the
proposed McKinney golf course project; the continuing management of New England
Country Club in Bellingham, Massachusetts which the Company operates under a
management agreement; the completion of the permitting and design process and
the commencement of construction of the proposed golf practice center in
Cranston, Rhode Island; the continuing search for acquisition, lease, and
development opportunities of golf courses and golf practice facilities, as well
as opportunities to manage existing golf course facilities in regions where the
Company already has an established presence, or in situations where the Company
has an equity position in the project; and the pursuit of interests in the
marketing of golf course residential communities.
The Company will seek additional equity and debt sources during the next
twelve months to fund the projects discussed herein as well as other potential
acquisition and development opportunities that may arise.
12
<PAGE> 15
Notwithstanding the Company's efforts and plans for growth and new
acquisitions and development, except for the properties described herein, as of
the date of this report, the Company has no binding or definitive commitments,
agreements, or understandings to acquire, lease, or develop any additional golf
courses or golf practice facilities or to manage any additional golf course
properties; however, additional acquisition, development, lease, or management
agreements may be negotiated or entered into at any time.
RESULTS OF OPERATIONS
The Company was deemed to be a development stage company as described in
Statement of Financial Accounting Standards No. 7, Accounting and Reporting by
Development Stage Enterprises, from its inception on April 6, 1994 until the
fourth quarter of 1995 when The Badlands Golf Club commenced full operations.
Development stage status was appropriate prior to the fourth quarter of 1995
since the Company's operations had generated an insignificant amount of revenue
since the date of inception and the Company had devoted most of its activities
and efforts to establishing the business, raising capital, financial planning,
and employee training.
YEAR ENDED DECEMBER 31, 1996 COMPARED WITH THE YEAR ENDED DECEMBER 31, 1995
- ---------------------------------------------------------------------------
REVENUES for the year ended December 31, 1996 totaled $6,697,425 compared to
$2,070,305 for the year ended December 31, 1995, an increase of $4,627,120. The
1996 revenues include $1,935,291 in revenues from Forest Lakes operations, of
which $788,946 relate to the sale of all of assets. The Forest Lakes Golf Club
in Sarasota, Florida in which the Company acquired a 53.5% partnership interest
in January, 1995 was sold in December 1996.
The Badlands Golf Club in Las Vegas, Nevada, in its first full year of
operation in 1996, generated revenues of $4,302,370 from just over 51,000 rounds
of golf, compared to $603,496 in 1995 revenues. The Badlands Golf Club opened on
October 14, 1995, while the Club's 7,500 sq. ft clubhouse opened in November,
1996. The clubhouse includes a full banquet-sized restaurant, pro shop, and full
service lounge with limited gaming.
Corporate revenues in 1996 totaled $414,732 and included management and
accounting fees related to the New England Country Club management agreement
($94,032); and consulting and development fees related to the Las Vegas
International Golf Center ($312,500). During 1995 corporate revenues totaled
$326,833 of which $94,661 related to the New England Country Club management
agreement, and $232,171 were nonrecurring revenues generated from operations at
the Hidden Hills Golf Club in northern New Jersey. Between July and September
1995 the Company was in possession of the Hidden Hills Golf Club for purposes of
conducting due diligence in contemplation of a proposed acquisition. The Company
subsequently withdrew its offer to purchase the golf course and vacated the
facility.
OPERATING, GENERAL AND ADMINISTRATIVE EXPENSES for the year ended December 31,
1996 were $5,752,139 compared to $3,326,932 for the year ended December 31,
1995, an increase of $2,425,207. Badlands operating expenses totaled $3,544,640
during 1996 compared to $772,737 during 1995 when the club was in operation for
just 2 1/2 months. Forest Lakes expenses during 1996 totaled $978,660 compared
to $1,057,573 during 1995. Forest Lakes was sold by the Company on December 16,
1996.
13
<PAGE> 16
STPD corporate expenses for the year ended December 31, 1996 totaled
$1,228,839 compared to $1,496,622 during 1995, a decrease of $267,784. During
1995, corporate expenses included $233,943 of nonrecurring expenses associated
with the operation of the Hidden Hills Golf Club, and $84,011 incurred in
connection with a proposed development of a golf course in Rhode Island.
NONCASH COMPENSATION CHARGES AND CREDITS. During the year ended December 31,
1996, the Company recorded a noncash compensation credit of $1,250,000. The
adjustment reflected a decrease in the market price of the Company's common
stock of $1.125 per share from the closing price on December 31, 1995 ($3.25)
compared to the closing price on December 31, 1996 ($2.125). For the year ended
December 31, 1996 the Company also recorded a noncash compensation charge of
$29,688 relating to stock options granted to an executive officer of the Company
during 1996. See Note 5 of Notes to Consolidated Financial Statements and Item
10 Executive Compensation.
During 1994 the Company entered into employee stock option agreements
with certain key employees under which such employees were granted options to
acquire up to 1,111,111 shares of Common Stock of the Company for an exercise
price of $1.00 per share. Under the original stock option agreements (the stock
option agreements were amended by the Board of Directors in March 1997 as
discussed below), the options vest and become exercisable in the following
amounts when and if the Company achieved the following benchmarks: (i) the
Company had, for the year ending December 31, 1996 earnings before interest,
taxes, depreciation, and amortization ("EBITDA") of at least $1,000,000 (50% of
the shares subject to the options become immediately exercisable); and (ii) the
Company had, for the year ending December 31, 1997, EBITDA of at least
$1,500,000 (50% of the shares subject to the options become immediately
exercisable).
The calculation by the Company of the $2,500,000 charge recorded in 1995
was based on the market price of the Company's Common Stock on December 31, 1995
($3.25), minus the exercise price of $1.00 per share, multiplied by the number
of shares subject to the options (1,111,111). Under current accounting
guidelines, when the EBITDA benchmarks are achieved as called for under the
option agreements, the charge or cost to recognize the vesting of the options is
calculated by multiplying the number of shares that become exercisable, by the
market price of the Company's Common Stock on the "Measurement Date" minus the
exercise price of $1.00 per share. The "Measurement Date," in the Company's
instance, are the dates on which the benchmarks are achieved, namely December
31, 1996 and 1997. Consequently, under accounting guidelines, the noncash charge
is subject to adjustment, up or down, through the date the options vest, based
solely on changes in the market price of the Company's Common Stock. The
$1,250,000 credit adjustment as of December 31, 1996 was made due a decrease in
the market price of the Company's Common Stock during 1996. The stock option
accrual at December 31, 1996 of $1,250,000 was calculated based on the market
price of the Company's Common Stock on December 31, 1996 ($2.125), minus the
exercise price of $1.00 per share, multiplied by the number of shares subject to
the options (1,111,111).
At December 31, 1996, 555,555 (representing 50%) of the management stock
options issued in 1994 vested, as the Company achieved the financial benchmarks
called for under the option agreements for the year ended December 31, 1996. On
March 19, 1997 a vote was adopted by the two members of the Company's
Compensation Committee, and then ratified by the Board of Directors, to amend
the option agreements in order to delete the "Benchmarks" as described in the
option agreements and in Note 5(f) of the Notes To Consolidated Financial
Statements. The Board voted to accept the option holders' delay of 10% of their
vested option shares and to replace the "Benchmarks" with an extended vesting
14
<PAGE> 17
schedule, based on continued employment by the Company. Under the revised
vesting schedule, 40% or 444,445 of the options vested as of December 31, 1996,
and the remaining 666,666 options will vest at the rate of 222,222 per year on
December 31, 1997, 1998, and 1999. This change will result in no further charges
against (or credits to) earnings related to the management options. At the time
these options are exercised, the proceeds will be credited to the capital
accounts.
INTEREST EXPENSE for the year ended December 31, 1996 was $785,607 compared to
$380,170 during 1995. During 1996 interest expense related to Forest Lakes
totaled $313,022 compared to $347,557 in 1995. Forest Lakes was sold on December
16, 1996.
Interest expense relating to the Badlands totaled $472,568 during 1996
compared to $24,396 in 1995. Badlands interest expense relates to a first
mortgage on the Badlands, an obligation incurred in connection with the purchase
of water rights, and interest on capital leases relating to furniture, fixtures
and equipment, turf maintenance equipment, and other golf equipment utilized at
the Badlands. The Company also incurred, and capitalized approximately $128,000
of interest relating to construction of the clubhouse. See Note 4 of Notes to
Consolidated Financial Statements.
INTEREST INCOME for the year ended December 31, 1996 was $18,151 compared to
$111,388 in 1995, and relates to interest earned on funds invested in U.S.
Government agency obligations and U.S. Treasury bills.
ITEM 7. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
- ------ -------------------------------------------
The information required by this item is incorporated by reference to the
Financial Statements set forth on pages F-1 through F-27 hereof.
RISK FACTORS AND CAUTIONARY STATEMENTS
When used in this Form 10-KSB and in future filings by the Company with
the Securities and Exchange Commission, in the Company's press releases,
quarterly newsletters and broker conference calls, and in oral statements made
with the approval of an authorized executive officer, the words or phrases "will
likely result", "are expected to", "will continue", "is anticipated",
"estimate", "project", and similar expressions are intended to identify
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. Such statements are subject to certain risks and
uncertainties, including those discussed under the caption "Risk Factors and
Cautionary Statements" at the beginning of Item 6 of this report. These risks
and uncertainties could cause actual results to differ materially from
historical results and those results and events anticipated or projected.
The Company wishes to caution readers not to place undue reliance on any
such forward-looking statements, which speak only as of the date made. The
Company also wishes to advise readers that the factors contained in this report
could affect the Company's financial performance and could cause the Company's
actual results and financial position to differ materially from any opinions or
statements expressed with respect to future periods in any current statements.
The Company will not undertake and specifically declines any obligation to
publicly release the results of any revisions which may be made to any
forward-looking statements to reflect events or circumstances after the date of
such statements or to reflect the occurrence of anticipated or unanticipated
events.
15
<PAGE> 18
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
- ------ -----------------------------------------------------------------
FINANCIAL DISCLOSURE.
--------------------
Not Applicable.
PART III
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS:
- ------ ------------------------------------------------------------
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT.
-------------------------------------------------
<TABLE>
The current directors and executive officers of the Company are as
follows:
<CAPTION>
NAME AGE POSITION
- ---- --- --------
<S> <C> <C>
Stanton V. Abrams 55 President, Chief Executive Officer and
Chairman of the Board of Directors
Richard B. Rogers 38 Senior Vice President, Director
Michael J. Meluskey 34 Treasurer, Secretary, Director
Lawrence P. Butler 49 Chief Financial Officer
Stanley Bernstein 53 Director
Arnold Mullen 50 Director
Robert L. Seelert 54 Director
Alan Stanzler 54 Director
</TABLE>
The Company currently has seven directors. Messrs. Bernstein, Mullen, and
Seelert have served as independent directors since January 1995. Mr. Stanzler
has been an independent director since June 1995. All directors were reelected
at the annual stockholders' meeting on June 5, 1996. Each director serves until
the next annual meeting of the stockholders of the Company and until his
successor has been duly chosen and qualified.
The following is a brief account of the business experience of each
director and executive officer named above.
STANTON V. ABRAMS. Mr. Abrams, founder of the Company, has served as President
and Chief Executive Officer and Chairman of the Board of the Company since its
organization in April 1994. From 1977 to 1982 Mr. Abrams was involved in
developing various real estate projects from housing for the elderly to
condominium conversions. During 1982 and prior to entering the golf industry,
Mr. Abrams was Vice President of Marketing, for the A.D. Gosman Company, a real
estate development company
16
<PAGE> 19
serving New England. From 1972 to 1977 Mr. Abrams was Vice President of
Development of The Druker Company of Boston, a real estate development firm
specializing in shopping centers and hotels. Beginning in late 1982 when the
Senior PGA Tour was in its infancy, Mr. Abrams served as the exclusive
representative to many of the Senior Tour golfing professionals, including Sam
Snead, Billy Casper, Julius Boros, Bob Goalby, Bob Toski and Jerry Barber to
establish a relationship with a golf course which would serve as their home base
and practice site as they prepared for the emerging Senior PGA Tour. From 1983
to May 15, 1994, Mr. Abrams was president of Senior Tour Players, Inc., a golf
real estate investment and marketing company which he founded, and of which he
remains the sole owner, whose focus has been on Senior Professional Golfers and
the marketing potential associated with their name recognition and popularity.
Mr. Abrams, a former two-time Rhode Island State Amateur Champion, with a
background in golf, real estate, and law has been instrumental in the promotion,
management and acquisition of numerous golf projects both nationally and
internationally. Mr. Abrams holds a B.A. degree, cum laude from Harvard College
and a J.D. degree from the University of Pennsylvania Law School. He attended
Harvard Graduate School of Design's selected courses in golf course design.
RICHARD B. ROGERS. Mr. Rogers has served as Senior Vice President and Director
of the Company since its organization in April 1994. From 1993 to May 15, 1994
Mr. Rogers served as vice president of development of Senior Tour Players, Inc.,
where his responsibilities included managing existing golf facilities and
providing financial analysis of existing and proposed projects. Prior to that
Mr. Rogers was employed as the administrative director of the Golf Academy of
the South in Orlando, Florida, as a golf professional at Stoneridge Country Club
in Poway, California and from 1984 to 1988 was an active partner in Sanders &
Rogers Real Estate and Development Company which during that time developed
multi-family residential properties and retail shopping centers. Mr. Rogers
holds a B.S. degree in business from the University of California at Berkeley.
He also holds a diploma from the San Diego Golf Academy in golf operations and
management.
MICHAEL J. MELUSKEY. Mr. Meluskey has served as Treasurer and Secretary and
Director of the Company since its organization in April 1994. From 1986 to
April 1994, Mr. Meluskey was closely involved in all aspects of the operations
of Senior Tour Players, Inc. His responsibilities have included identifying
golf course acquisitions, managing STP-owned courses, financial budgeting and
planning, and serving as tournament director for STP-organized events. He
holds a B.S. degree in accounting, cum laude, from Northeastern University.
LAWRENCE P. BUTLER. Mr. Butler has served the Company as Chief Financial Officer
since March 6, 1995. From 1982 through 1995, Mr. Butler was a Director, Vice
President, and Chief Financial Officer of Stanmar, Inc., a privately-owned
company involved in resort ownership and management, timeshare and condominium
development, and design/building of athletic facilities for private schools,
universities, corporations, and professional sports teams. From 1978 to 1982,
Mr. Butler was Chief Financial Officer and the registered Financial Principal
for Fidelity Brokerage Services, Inc., a registered broker-dealer. From 1974 to
1978, he was with the international accounting firm of Deloitte, Haskins &
Sells, where he specialized in REIT's, banking clients, and brokerage firms. Mr.
Butler is a Massachusetts CPA and holds a BSBA with an accounting major from
Salem State College. Mr. Butler also served in US Army Intelligence from 1966 to
1969 as an intelligence analyst and a Japanese linguist. He is a graduate of the
Defense Language Institute in Monterey, California and holds a diploma in
Japanese studies.
17
<PAGE> 20
STANLEY BERNSTEIN. Mr. Bernstein, a Director of the Company since January, 1995,
has been Chairman of the Board and Chief Executive Officer of the Biltrite
Corporation since 1985. He is also Chairman of the Board of Alliance
International Group, Inc. and a director of K-Swiss, Inc. Mr. Bernstein holds an
A.B. from Brown University and a J.D. from the University of Pennsylvania Law
School.
ARNOLD MULLEN. Mr. Mullen, a Director of the Company since January, 1995, is the
Chief Executive Officer of PFP Associates, a private investment and financial
management firm. He has been a financial consultant and business advisor since
1973. Mr. Mullen, a CPA, began his career with Arthur Andersen & Co.,
specializing in taxation. He was an assistant professor of accounting and holds
a BBA degree and an MBA degree from the University of Wisconsin at Milwaukee.
ROBERT L. SEELERT. Mr. Seelert, a Director of the Company since January, 1995,
has been Chief Executive Officer of Cordiant plc, an advertising and marketing
communications firm, since July 1995. Mr. Seelert was a private investor from
February 1994 to July 1995, President and Chief Executive Officers of
Kayser-Roth Corporation, a legwear company, from May 1991 to February 1994. He
is also a director of Cordiant plc and the Stride Rite Corporation. Mr. Seelert
holds a B.A. degree from Harvard College and an M.B.A. degree from Harvard
Business School.
ALAN STANZLER. Mr. Stanzler, a Director of the Company since June 1995, is an
attorney at law and a member of the firm of Davis, Malm & D'Agostine, P.C.,
Boston, Massachusetts. Mr. Stanzler holds an A.B. degree from Brown University
and a J.D. degree from Harvard Law School.
ITEM 10. EXECUTIVE COMPENSATION.
- ------- ----------------------
SUMMARY COMPENSATION TABLE
<TABLE>
The following table sets forth the compensation paid by the Company for
the years ended December 31, 1996, 1995, and for the period from the Company's
inception (April 6, 1994) through December 31, 1994 to the Chief Executive
Officer and to each of the individuals serving as an executive officer at the
end of such period. There were no other individuals who served as executive
officers during those periods.
<CAPTION>
Long-Term
Annual Compensation Compensation
------------------------------- Awards (3)
Name And Principal Position Year Salary ($) Bonus($) Stock Options (#)
- --------------------------- ---- ---------- -------- ----------------
<S> <C> <C> <C>
Stanton V. Abrams 1994(1) $113,269 -- 873,890
Chairman, Chief Executive 1995 196,007 -- --
Officer and President 1996 212,308 -- --
Richard B. Rogers 1994(1) $ 28,846 $ 1,000 55,555
Senior Vice President 1995 54,999 -- --
1996 99,423 -- 30,000
Michael J. Meluskey 1994(1) $ 22,846 $ 1,000 166,666
</TABLE>
18
<PAGE> 21
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Treasurer & Secretary 1995 59,538 $10,000 --
1996 78,654 -- 10,000
Lawrence P. Butler 1995(2) $ 66,154 $15,000 --
Chief Financial Officer 1996 106,629 -- 120,000
- --------------
(1) Period from the Company's inception (April 6, 1994) through December 31,
1994.
(2) Mr. Butler joined the Company on March 6, 1995.
(3) In addition to the option awards presented in the table, at its inception
the Company issued 568,413, 35,000 and 106,500 restricted shares of the
Company's Common Stock to Stanton V. Abrams, Richard B. Rogers and Michael J.
Meluskey, respectively. At that time, there was no market for the Company's
Common Stock. Such shares in each case had a value at December 31, 1996 (based
on the closing price of $2.125 for such shares as reported on the NASDAQ
Small-Cap Market on December 31, 1996) of $1,207,878 (Mr. Abrams), $75,438 (Mr.
Rogers) and $226,313 (Mr. Meluskey), respectively.
</TABLE>
OPTION GRANTS
During 1996 the Company granted 160,000 stock options to the executive
officers named in the Summary Compensation Table as summarized on the following
table.
<TABLE>
Option Grants During the Year Ended December 31, 1996
-----------------------------------------------------
<CAPTION>
Market
% of Total Options Price on
Number of Granted During Exercise Date of Exp.
Name Stock Options The Year Price Grant Date
---- ------------- -------- ----- ----- ----
<S> <C> <C> <C> <C> <C>
Michael J. Meluskey 10,000 5.1% $2.1875 $2.1875 12/11/2003
Richard B. Rogers 30,000 15.4% $2.1875 $2.1875 12/11/2003
Lawrence P. Butler 20,000 10.3% $2.1875 $2.1875 12/11/2003
Lawrence P. Butler 100,000 51.3% $ 1.00 $2.1875 12/11/2003
</TABLE>
OPTION EXERCISES AND FISCAL YEAR-END VALUES
No executive officers exercised options during 1996. The following table
sets forth, for each of the executive officers named in the Summary Compensation
Table above, the year-end value of unexercised options:
19
<PAGE> 22
<TABLE>
<CAPTION>
Number of Value of Unexercised
Unexercised Options In-The-Money Options
Name at Year-end (1) at Year-end (1)(2)(3)(4)
---- --------------- ------------------------
<S> <C> <C>
Stanton V. Abrams 873,890 $983,126
Richard B. Rogers 85,555 $ 62,499
Michael J. Meluskey 176,666 $187,499
Lawrence P. Butler 120,000 $112,500
(1) At December 31, 1996, 452,731 options in the above table were currently
exercisable.
(2) Based on the closing price for the underlying Common Stock on the NASDAQ
Small-Cap Market on December 31, 1996 ($2.125) minus the exercise price of the
in-the-money options (in each case $1.00 per share), multiplied by the number of
underlying shares. See Note 5 of Notes to Consolidated Financial Statements and
Item 6. Management's Discussion and Analysis or Plan of Operation - Noncash
Compensation Charges and Credits.
(3) Does not include the value of 60,000 out-of-the money stock options issued
during December, 1996.
(4) For each of the named individuals, the in-the-money options vest and become
exercisable in the following amounts:
</TABLE>
<TABLE>
<CAPTION>
Shares Vested Shares Vested Shares Vested Shares Vested Shares Vested Shares Vested Shares Vested
Option Holder at 12-31-96 at 12/31/97 at 12/31/98 at 12/31/99 at 12/31/2000 at 12/31/2001 at 12-31-2002
- ------------- ----------- ----------- ----------- ----------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Stanton V. Abrams 349,556 174,778 174,778 174,778 -- -- --
Michael J. Meluskey 66,667 33,333 33,333 33,333 -- -- --
Richard B. Rogers 22,222 11,111 11,111 11,111 -- -- --
Lawrence P. Butler 14,286 14,286 14,286 14,286 14,286 14,286 14,284
</TABLE>
LONG-TERM INCENTIVE PLAN AWARDS
The Company's stock option plan was adopted by the Board of Directors and
stockholders of the Company as of June 20, 1994 as an incentive for officers and
other key employees. The stock option plan is administered by the Independent
Directors. The Independent Directors have sole discretion to determine employees
eligible for grants of options and all terms of the options. The stock option
plan enables the Independent Directors to grant either incentive or
non-qualified stock options. Generally, the exercise price of incentive stock
options must be at least 100% of fair market value of the Common Stock on the
date of grant, while non-qualified stock options may have an exercise price of
nominal consideration. The stock option plan reserves an aggregate of 350,000
shares which may be subject to options. To date, there have been granted 195,000
options under the Plan.
DIRECTOR COMPENSATION
The Company's Directors do not receive any cash compensation for service
on the Board of Directors or any committee thereof, however during 1996 the four
independent members of the Board of Directors were each granted 10,000 stock
options, pursuant to the terms of the 1996 Non-Employee Stock Option Plan of the
Company. The options were granted at an exercise price of $2.1875 per share,
20
<PAGE> 23
which exercise price is equal to the closing price of the Common Stock of the
Company on the day of grant. The options were fully vested on the day of grant,
December 11, 1996. Directors may also be reimbursed for certain out-of-pocket
expenses incurred in connection with attendance at Board and Committee meetings.
EMPLOYMENT CONTRACTS
The Company presently does not have any employment agreements.
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
<TABLE>
The following table sets forth certain information known to the Company
regarding the beneficial ownership of the Common Stock of the Company as of
March 11, 1997 by: (1) each person known by the Company to be the beneficial
owner of more than 5% of its outstanding capital stock; (2) each director of the
Company; (3) each of the executive officers of the Company named in the Summary
Compensation Table under Executive Compensation, and (4) all directors and
executive officers of the Company as a group.
<CAPTION>
Shares
Name and Address of Beneficially Percentage of
Beneficial Owner (1) Owned (5) Outstanding Shares (5)
-------------------- --------- ----------------------
<S> <C> <C>
Stanton V. Abrams (2) 903,798 22.61%
Stanley Bernstein 315,000 7.88%
Paul Fireman (3) 205,000 5.13%
Michael J. Meluskey 173,167 4.33%
Richard Rogers 60,222 1.51%
Robert L. Seelert 13,000 0.33%
Arnold Mullen (4) 40,000 1.00%
Lawrence P. Butler 36,272 0.91%
Alan Stanzler 15,000 0.38%
All directors and
officers as a group 1,556,459 38.95%
(8 persons)
--------------
(1) Except as set forth below, each person listed has sole voting and
investment power with respect to the shares shown. The business address of
each of these individuals is 266 Beacon Street, Boston, Massachusetts
02116.
</TABLE>
21
<PAGE> 24
(2) Exclusive of 4,171 shares owned by members of Mr. Abrams' immediate family.
(3) Includes 30,000 shares and warrants owned by a partnership of which Mr.
Fireman is a partner.
(4) Includes 30,000 shares and warrants owned by a partnership of which Mr.
Mullen is a partner.
(5) Includes shares under management options and options granted under the
Company's stock option plan and Non-Employee Directors Stock Option Plan,
provided that such options were vested as of December 31, 1996 and
exercisable within 60 days.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- ------- ----------------------------------------------
In April 1994 the Company issued 568,413 shares to Stanton V. Abrams, the
Company's Chief Executive Officer and Chairman of the Board of Directors, and
106,500, 35,500 and 9,585 shares, respectively, to Michael J. Meluskey, Richard
B. Rogers and JoAnn M. Parks, each of whom are officers or employees of the
Company, in consideration of their contribution to the Company of their
respective know how as to golf course operation and management; the Company
issued 305,000 shares of Common Stock to Stanley J. Bernstein, for an aggregate
sales price of $325,000; and the Company issued 175,000 shares of Common Stock
to Paul Fireman for an aggregate sales price of $250,000. Also in April, 1994,
Mr. Abrams sold 10,000 of his shares of the Company's Common Stock to his
sister. Messrs. Bernstein and Fireman are beneficial owners of more than five
percent (5%) of the Company's Common Stock.
In January 1995, the Company acquired 97% of STP's general partnership
interest in Forest Lakes Limited Partnership and STP's contract to manage Forest
Lakes Golf Club in Sarasota, Florida. See "Item 1. Description of Business.
Recent Activity."
During July 1996, the Company entered into a guaranty agreement with
Golftown, Inc., ("Golftown") a Massachusetts corporation that is the owner and
operator of a driving range facility located in Saugus, Massachusetts,
approximately eight miles north of Boston (the "Project"). The Company has
agreed to guaranty a loan in an amount not to exceed $295,000 made to Golftown,
in exchange for a 25% equity interest in the Project. The President and majority
shareholder of Golftown is Jeffrey Abrams, who is the son of Stanton V. Abrams,
President and Chairman of the Board of Directors of Senior Tour Players
Development, Inc. The driving range opened during August, 1996.
During the past fiscal year, the Company paid legal fees in the aggregate
amount of $126,130 to Davis, Malm & D'Agostine, P.C., a law firm of which Alan
L. Stanzler, a director of the Company, is a member. During the fiscal year
ended December 31, 1995, the Company paid $87,511 in legal fees to Davis, Malm &
D'Agostine, P.C. and to Mr. Stanzler's former law firm. It is anticipated that
the Company will continue to pay legal fees to Davis, Malm & D'Agostine, P.C. in
the future.
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K.
- ------- --------------------------------
(a) The following documents are filed as part of this report
22
<PAGE> 25
1. FINANCIAL STATEMENTS.
--------------------
Sequential
Description Page No. Page No.
----------- -------- --------
Report of Independent Public
Accountants F-1
Consolidated Balance Sheets as of
December 31, 1996 and 1995 F-2
Consolidated Statements of Operations for
the Years Ended December 31, 1996 and 1995 F-3
Statements of Stockholders' Equity for the
Years Ended December 31, 1996 and 1995 F-4
Consolidated Statements of Cash Flows for the
Years Ended December 31, 1996 and 1995 F-5
Notes to Consolidated Financial Statements F-7
2. EXHIBITS The exhibits appearing on the following Exhibit Index are
filed as part of, or incorporated by reference into this report.
EXHIBIT INDEX
-------------
Exhibit Page No.
- ------- --------
3.1 Articles of Incorporation*
3.2 By-laws*
4.1 Common Stock Certificate**
4.2 Pages from Articles of Incorporation (and by-laws) defining rights of
holders of Common Stock*
4.3 Form of Underwriters Warrant Agreement**
4.4 Warrant Agreement**
4.5 Master Agreement Among Underwriters**
4.6 Master Selected Dealers Agreement**
10.1 Peccole Ranch Ground Lease*
10.2 Water Rights Agreement*
10.9 Form of Management Stock Option Agreement**
10.10 1994 Stock Option Plan*
10.12 Amendment to Peccole Ranch Ground Lease***
10.15 Management Agreement for New England Country Club***
10.19 Loan Agreement with Greyrock Capital Group, Inc.****
10.20 Promissory Note (in favor of Greyrock Capital Group, Inc.)****
10.21 Management Agreement for The Badlands Golf Club****
10.23 Purchase and Sale Agreement for Stonebridge Ranch Development****
10.24 Purchase Agreement - Las Vegas Golf Center*****
23
<PAGE> 26
10.25 First Amended And Restated Limited Liability Company Agreement of Las
Vegas Golf Center, LLC*****
10.26 Las Vegas Golf Center, LLC Membership Interests Purchase and Sale*****
10.27 Letter of Understanding - Membership Interest Purchase & Purchase Option
Agreement*****
10.28 Loan Agreement with NationsCredit******
10.29 Promissory Note (secured) - in favor of NationsCredit******
10.30 Loan Modification and Extension Agreement for The Badlands Golf
Club******
10.31 1996 Non-Employee Directors Stock Option Plan******
11 Statement Regarding Computation of Earnings Per Share******
21 List of subsidiaries of Registrant****
* Previously filed as a similarly numbered exhibit to Registrant's
Registration Statement on Form SB-2 (No. 33-81934) and hereby
incorporated by this reference.
** Previously filed as a similarly numbered exhibit to Registrant's
Registration Statement on Form SB-2 (No. 33-13362) and hereby
incorporated by this reference.
*** Previously filed a similarly numbered exhibit to Registrant's
Form 10-KSB for the year ended December 31, 1994 and hereby
incorporated by this reference.
**** Previously filed a similarly numbered exhibit to Registrant's
Form 10-KSB for the year ended December 31, 1995 and hereby
incorporated by this reference.
***** Previously filed as a similarly numbered exhibit to Registrant's
Amendment #1 to it report on Form 8-K dated March 20, 1997 and
hereby incorporated by this reference.
****** Filed herewith
(b) The following report on Form 8-K was filed during the fourth quarter of
the period covered by the report:
The Company filed a report on Form 8-K dated December 31, 1996 relating
to the acquisition of certain membership interests in the Las Vegas Golf
Center, LLC, and the subsequent disposition of a portion of those
membership interests. On March 20, 1997 the Company filed an amendment
to that report which amendment filed certain exhibits relating to the
transaction, and which exhibits appear on the Exhibit Index shown above.
No financial statements were filed as part of that report.
24
<PAGE> 27
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the
registrant has caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
Date: March 27, 1997 By:
-------------------------------------
Stanton V. Abrams, President,
Chief Executive Officer and Director
In accordance with the Exchange Act, this report has been signed below by
the following persons on behalf of the registrant and in the capacities and on
the dates indicated.
- --------------------------- President, Chief Executive March 27, 1997
Stanton V. Abrams Officer and Director
- --------------------------- Chief Financial Officer March 27, 1997
Lawrence P. Butler (principal financial and
accounting officer)
- --------------------------- Director March 27, 1997
Richard B. Rogers
- --------------------------- Director March 27, 1997
Michael J. Meluskey
- --------------------------- Director
Stanley Bernstein
- --------------------------- Director
Arnold Mullen
- --------------------------- Director
Robert L. Seelert
- --------------------------- Director March 27, 1997
Alan L. Stanzler
<PAGE> 28
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
CONSOLIDATED FINANCIAL STATEMENTS
AS OF DECEMBER 31, 1996 AND 1995
TOGETHER WITH AUDITORS' REPORT
<PAGE> 29
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of
Senior Tour Players Development, Inc.:
We have audited the accompanying consolidated balance sheets of Senior Tour
Players Development, Inc. (a Nevada corporation) and subsidiary as of December
31, 1996 and 1995, and the related consolidated statements of operations,
stockholders' equity and cash flows for the years then ended. These consolidated
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Senior Tour Players
Development, Inc. and subsidiary as of December 31, 1996 and 1995, and the
results of its operations and its cash flows for the years then ended, in
conformity with generally accepted accounting principles.
/s/ Arthur Andersen LLP
Boston, Massachusetts
March 12, 1997 (except with respect to
the matter discussed in Note 5(f) as
to which the date is March 19, 1997)
<PAGE> 30
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
<TABLE>
CONSOLIDATED BALANCE SHEETS--DECEMBER 31, 1996 AND 1995
<CAPTION>
ASSETS
1996 1995
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $1,585,611 $1,473,384
Interest and other receivables 1,313,151 97,660
Inventories 140,976 79,252
Prepaid expenses and other current assets 59,608 96,221
----------- -----------
Total current assets 3,099,346 1,746,517
----------- -----------
PROPERTY AND EQUIPMENT:
Property and equipment, net of accumulated
depreciation (Note 1) 10,373,925 11,026,874
Construction in progress 546,609 682,937
----------- -----------
Property and equipment, net 10,920,534 11,709,811
----------- -----------
RESTRICTED CASH 20,942 12,565
----------- -----------
WATER RIGHTS (Note 3) 1,051,992 1,051,992
----------- -----------
INVESTMENT IN GOLF FACILITIES 1,029,075 -
----------- -----------
OTHER ASSETS 389,956 298,422
----------- -----------
$16,511,845 $14,819,307
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable and accrued expenses $1,032,705 $ 879,600
Current portion of long-term debt 1,711,745 293,290
Current portion of obligation under water rights
agreement 77,915 59,825
Deferred revenue 174,928 160,825
----------- -----------
Total current liabilities 2,997,293 1,393,540
----------- -----------
LONG-TERM LIABILITIES:
Obligation under water rights agreement 869,493 947,408
Other long-term liabilities 200,000 -
Long-term debt 5,269,705 6,780,656
MINORITY INTEREST 349,946 -
COMMITMENTS AND CONTINGENCIES (Note 7)
STOCKHOLDERS' EQUITY:
Preferred stock, $.10 par value-
Authorized--5,000,000 shares
Common stock, $.001 par value-
Authorized--15,000,000 shares
Issued and outstanding--3,701,169 and 2,933,333 shares
at December 31, 1996 and 1995, respectively (Note 1(j)) 3,701 2,933
Additional paid-in capital 8,962,843 7,545,040
Management stock options 1,250,000 2,500,000
Deferred compensation (89,062) -
Accumulated deficit (3,302,074) (4,350,270)
----------- -----------
Total stockholders' equity 6,825,408 5,697,703
----------- -----------
$16,511,845 $14,819,307
=========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-2
<PAGE> 31
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
<TABLE>
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 1996 AND 1995
<CAPTION>
1996 1995
<S> <C> <C>
NET REVENUES $6,697,425 $ 2,070,305
COSTS AND EXPENSES:
Operating, general and administrative expenses 5,752,139 3,326,932
Noncash compensation charge (credit) (1,220,312) 2,500,000
---------- -----------
Operating income (loss) 2,165,598 (3,756,627)
INTEREST INCOME 18,151 111,388
INTEREST EXPENSE (785,607) (380,169)
---------- -----------
Income (loss) before minority interest 1,398,142 (4,025,408)
MINORITY INTEREST IN PARTNERSHIP'S NET INCOME (349,946) -
--------- -----------
Net income (loss) $1,048,196 $(4,025,408)
========== ===========
Net income (loss) per common and common equivalent share $ 0.28 $ (1.37)
========== ===========
Weighted average number of common and common equivalent
shares outstanding 3,681,661 2,933,333
========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE> 32
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
<TABLE>
STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1996 AND 1995
<CAPTION>
PREFERRED STOCK COMMON STOCK ADDITIONAL TOTAL
NUMBER $.10 PAR NUMBER $.001 PAR PAID-IN MANAGEMENT DEFERRED ACCUMULATED STOCKHOLDERS'
OF SHARES VALUE OF SHARES VALUE CAPITAL OPTIONS COMPENSATION DEFICIT EQUITY
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, - $ - 2,933,333 $2,933 $7,545,040 $ - $ - $ (324,862) $ 7,223,111
1994
Noncash compensation - - - - - 2,500,000 - - 2,500,000
charge
Net loss - - - - - - - (4,025,408) (4,025,408)
-------- -------- --------- -------- --------- --------- --------- ----------- ----------
BALANCE, DECEMBER 31, 1995 - - 2,933,333 2,933 7,545,040 2,500,000 - (4,350,270) 5,697,703
Noncash compensation - - - - - (1,250,000) - - (1,250,000)
credit
Deferred compensation
related to issuance - - - - 118,750 - (118,750) - -
of stock options
Amortization of
deferred compensation - - - - - - 29,688 - 29,688
Issuance of common - - 767,836 768 1,299,053 - - - 1,299,821
stock
Net income - - - - - - - 1,048,196 1,048,196
-------- -------- --------- -------- --------- --------- --------- ----------- ----------
BALANCE, DECEMBER 31, 1996 - $ - 3,701,169 $3,701 $8,962,843 $1,250,000 $(89,062) $(3,302,074) $6,825,408
======== ======= ========= ====== ========== ========== ======== =========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE> 33
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
<TABLE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1996 AND 1995
<CAPTION>
1996 1995
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $1,048,196 $(4,025,408)
Adjustments to reconcile net income (loss) to net
cash used in operating activities-
Depreciation and amortization 654,500 513,029
Noncash compensation charge (credit) (1,220,312) 2,500,000
Gain on sale of Forest Lakes Limited Partnership (788,946) -
Minority interest in Partnership's net income 349,946 -
Net proceeds from sale of Forest Lakes Limited 499,577 -
Partnership
Gain on sale of fixed assets (6,761) -
Changes in assets and liabilities-
Interest and other receivables (1,215,491) (60,316)
Inventories (77,724) (40,737)
Prepaid expenses and other current assets 36,613 (85,775)
Accounts payable and accrued expenses 92,432 (304,527)
Deferred revenue 153,527 1,241
---------- ----------
Net cash used in operating activities (474,443) (1,502,493)
---------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Maturities of short-term investments - 994,555
Purchases of property and equipment, net (2,250,507) (5,758,395)
Golf course development costs capitalized in
construction in progress (546,609) (682,937)
(Increase) decrease in restricted cash (8,377) 4,993,052
Increase in other assets (91,058) (220,177)
Proceeds from sale of fixed assets 47,500 -
Cash paid for partnership interest - (61,527)
Cash paid for interest in the Las Vegas Golf Center,
LLC (1,639,247) -
Proceeds from sale of interest in the Las Vegas Golf 2,167,993 -
---------- ----------
Center, LLC
Net cash used in investing activities (2,320,305) (735,429)
---------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from long-term debt 3,221,555 5,614,141
Repayment of long-term debt (314,580) (2,317,380)
---------- ----------
Net cash provided by financing activities 2,906,975 3,296,761
---------- ----------
NET INCREASE IN CASH AND CASH EQUIVALENTS 112,227 1,058,839
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 1,473,384 414,545
---------- ----------
CASH AND CASH EQUIVALENTS, END OF PERIOD $1,585,611 $1,473,384
========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE> 34
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
<TABLE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1996 AND 1995
(Continued)
<CAPTION>
1996 1995
<S> <C> <C>
SUPPLEMENTAL DISCLOSURE OF NONCASH TRANSACTIONS:
Deferred compensation related to issuance of stock
options $ 118,750 $ -
=========== ==========
Equipment acquired under capital lease $ 25,876 $ 489,939
========== ==========
Common stock issued for services $ 50,000 $ -
=========== ==========
Common stock issued for Las Vegas Golf Center, LLC
purchase option $ 72,000 $ -
=========== ==========
In connection with the acquisition of Forest Lakes
Limited Partnership in fiscal 1995 (see Note 2), the
following noncash transaction occurred-
Fair value of assets acquired $ - $ (252,438)
Issuance of notes payable - 117,213
Deposit applied - 73,698
----------- ----------
Cash paid for partnership interest $ - $ (61,527)
=========== ==========
In connection with the sale of Forest Lakes Limited
Partnership in fiscal 1996 (see Note 2), the
following noncash transaction occurred-
Book value of assets sold $ 3,038,736 $ -
Payment of Partnership liabilities (3,328,105) -
----------- ----------
Investment (289,369) -
Net proceeds from sale of Forest Lakes Limited
Partnership 499,577 -
----------- ----------
Gross gain on sale of Forest Lakes Limited
Partnership (788,946) -
Minority interest 349,946 -
----------- ----------
Gain on sale of Forest Lakes Limited Partnership $ (439,000) $ -
=========== ==========
In connection with the acquisition of the 21.5% and
48.5% interests in the Las Vegas Golf Center, LLC
in fiscal 1996 (see Note 2), the following noncash
transaction occurred-
Fair value of assets acquired $(3,197,068) $ -
Common stock issued 1,177,821 -
Consideration payable 380,000 -
----------- ----------
Cash paid for interest in the Las Vegas Golf
Center, LLC $(1,639,247) $ -
=========== ==========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for-
Interest (net of capitalized interest of $128,971
and $55,409, respectively) $ 738,446 $ 380,169
=========== ==========
Income taxes $ 456 $ 456
=========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
<PAGE> 35
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(1) OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES
Senior Tour Players Development, Inc. and subsidiary (the Company) was
organized as a Nevada corporation on April 6, 1994 for the purposes of
developing, acquiring, and managing semiprivate, private and public golf
courses and golf practice facilities throughout the United States. The
Company also provides golf course management services and marketing
services for golf course residential development projects.
The accompanying consolidated financial statements include the accounts of
the Company and its wholly owned subsidiary, The Badlands Golf Club, Inc.
(The Badlands), which was established in 1995, and is located in Las
Vegas, Nevada. For the period from January 1995 through December 16, 1996
(the ownership period), the Company owned a majority (53.5%) interest in
the Forest Lakes Limited Partnership (Forest Lakes), which owned and
operated a golf course. Accordingly, the financial information presented
herein includes the revenue and expense of Forest Lakes during the
ownership period, and at December 31, 1995 the consolidated balance sheet
includes the assets and liabilities of Forest Lakes. The Company sold its
interest in Forest Lakes on December 16, 1996 (Note 2(b)). All significant
intercompany transactions and balances have been eliminated in
consolidation.
The accompanying consolidated financial statements reflect the application
of certain accounting policies described in this note and elsewhere in the
accompanying notes to consolidated financial statements.
(a) Management Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results
could differ from those estimates.
(b) Concentrations of Risk
Statement of Financial Accounting Standards (SFAS) No. 105,
Disclosure of Information About Financial Instruments with
off-Balance-Sheet Risk and Financial Instruments with Concentrations
of Credit Risk, requires disclosure of any significant
off-balance-sheet and credit risk concentrations. The Company has no
significant off-balance-sheet concentration of credit risk, such as
foreign exchange contracts, options contracts or other foreign
hedging arrangements.
F-7
<PAGE> 36
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(1) OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (Continued)
(c) Cash and Cash Equivalents
The Company considers all highly liquid debt instruments purchased
with an original maturity of three months or less to be cash
equivalents.
(d) Inventories
Inventories are stated at the lower of cost or market, and consist
of food and beverage, golf equipment, clothing and accessories all
sold at retail.
(e) Property, Equipment and Depreciation
Property and equipment are stated at cost. Depreciation is computed
using the straight-line method over the estimated useful lives of
the assets. Interest costs, during the construction period, on
borrowings used to finance construction of facilities are included
in the cost of the constructed facilities.
<TABLE>
Property, equipment and accumulated depreciation consist of the
following at December 31, 1996 and 1995:
<CAPTION>
ESTIMATED
USEFUL
1996 1995 LIVES
<S> <C> <C> <C>
Land $ - $ 932,335 -
Land improvements 7,308,935 8,149,436 15-40 Years
Buildings 2,632,228 1,179,292 31.5 Years
Golf carts and equipment 527,175 850,488 3-15 Years
Furniture, fixtures and equipment 180,461 173,705 5-7 Years
Office and computer equipment 114,651 69,515 5 Years
Leasehold improvements 12,559 - 3 Years
----------- -----------
10,776,009 11,354,771
----------- -----------
Less--Accumulated depreciation 402,084 327,897
$10,373,925 $11,026,874
=========== ===========
</TABLE>
F-8
<PAGE> 37
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(1) OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (Continued)
(f) Construction in Progress
At December 31, 1995, construction in progress consisted of costs
incurred in connection with the construction of the clubhouse and
other structures at The Badlands. Upon completion of the clubhouse
and other structures during November 1996, these costs were
transferred to property and equipment and are being depreciated over
their estimated useful lives, as disclosed in Note 1(e). At December
31, 1996, construction in progress consisted of design,
construction, interest and other costs incurred in connection with
the construction of an additional nine holes at The Badlands, as
well as design, engineering and planning costs incurred in
connection with the Company's planned golf course development
project in McKinney, Texas. These costs will be depreciated over the
estimated useful lives of the assets once the assets are placed in
service.
(g) Other Assets
<TABLE>
Other assets consist of the following at December 31, 1996 and 1995:
<CAPTION>
1996 1995
<S> <C> <C>
Deferred debt financing costs, net of
accumulated amortization of $33,043 and $224,036 $165,213
$0, respectively
Organization costs, net of accumulated
amortization of $15,353 and $44,687, 18,765 61,747
respectively
Las Vegas Gold Center, LLC purchase option 72,000 -
Forest Lakes management contract, net of
accumulated amortization of $45,500 - 45,500
Other 75,155 25,962
-------- --------
$389,956 $298,422
======== ========
</TABLE>
Deferred financing costs consist of costs incurred in connection
with the Badlands financing agreements (see Note 3(d)), which are
being amortized over the five-year initial term of the loans.
Organization costs at December 31, 1996 and 1995, consist of legal
and other costs incurred in connection with the organization of the
Company. These costs are being amortized using the straight-line
method over five years. Organization costs at December 31, 1995 also
include legal and other costs incurred in connection with the
organization of Forest Lakes. These costs were fully amortized as of
December 31, 1996.
F-9
<PAGE> 38
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(1) OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (Continued)
(h) Net Revenues
Net revenue consists primarily of greens fees, membership dues, golf
cart rental fees, golf course management and development fees, food
and beverage sales and pro shop merchandise sales. Deferred revenues
consist of prepaid membership dues, which are recognized ratably
over the term of the membership.
(i) Net Income (Loss) Per Common and Common Equivalent Share
Net income per common and common equivalent share is computed by
dividing net income by the weighted average number of common and
common equivalent shares outstanding during the year in accordance
with the treasury stock method. The weighted average number of
common equivalent shares does not include the effect of certain
out-of-the-money warrants outstanding as their effect is
antidilutive. Net loss per common share is computed by dividing net
loss by the weighted average number of common shares outstanding
during the period. Common equivalent shares are not included in the
calculation of net loss per common share because their effect would
be antidilutive.
(j) Common Stock
Shares issued and outstanding at December 31, 1996 include 767,836
shares that will be issued as follows:
161,645 - January 1997
369,547 - February 1997
25,000 - February 1997
50,000 - June 1997
161,644 - January 1998
-------
767,836
Those shares have either been paid for or the services related to
the issuance of those shares have been performed as of December 31,
1996.
(k) Recently Issued Accounting Standard
In March 1995, the Financial Accounting Standards Board issued
Statement No. 121. Accounting for the Impairment of Long-Lived
Assets To Be Disposed Of. This statement deals with the accounting
for the impairment of long-lived assets, certain identifiable
intangibles, and goodwill related to assets to be held and used
and for long-lived assets and certain identifiable intangibles to
be disposed of.
This statement requires that long-lived assets including
intangibles be reviewed for impairment whenever events or changes
in circumstances, such as a change in market value, indicates that
the assets carrying amount may not be recoverable. In performing
the review for recoverability, if future undiscounted cash flows
(without interest charges) from the use and ultimate dispositions
of the assets are less than its carrying value, an impairment loss
is recognized. Impairment losses are to be measured based on the
fair value of the asset.
The Company's adoption of the statement in 1996 did not have a
material impact on the Company's financial statements.
In March 1997, the FASB issued SFAS No. 128, Earnings Per Share,
which is effective for financial statements issued for periods
ending after December 15, 1997; earlier application is not
permitted. This statement requires restatement of all prior-period
earnings per share data presented. The Company has not yet
determined the impact of this statement on the earnings per share
data presented.
(2) ACQUISITIONS AND SALES
(a) Purchase of Forest Lakes Partnership Interest
In January 1995, the Company acquired a combined 53.5% interest in
Forest Lakes for $252,438. Forest Lakes owns and operates a
semiprivate golfing facility located in Sarasota, Florida. The
Company's interest comprised a 34% general partnership interest and
a 19.5% limited partnership interest. The general partnership
interest was purchased from Senior Tour Players, Inc. (STP), an
affiliate of the Company. STP retained a 1% general partnership
interest. In addition to the partnership interests, the Company
purchased, through assignment, a management
F-10
<PAGE> 39
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(2) ACQUISITIONS AND SALES (Continued)
(a) Purchase of Forest Lakes Partnership Interest (Continued)
contract for the golfing facility from STP for $91,000, which was
paid at closing. The Company has capitalized the costs of this
contract and amortized these costs over the remaining term of the
agreement, which is two years. The Company subsequently sold its
interest in Forest Lakes during December 1996, as more fully
discussed in Note 2(b).
(b) Sale of Forest Lakes Partnership Interest
On December 16, 1996, the Company consummated the sale of Forest
Lakes. The sale was structured as a sale of substantially all of the
assets of Forest Lakes Limited Partnership. The buyer was BST
Associates, an Illinois general partnership. The cash purchase price
was $4,000,000 paid at closing. Broker commissions and direct costs
relating to the sale totaled $172,318 and proceeds allocated to
retire Partnership liabilities totaled $3,328,105, resulting in net
sale proceeds to the Partnership of $499,577.
Under the terms of the Forest Lakes Limited Partnership Agreement,
the sale of all of the Partnership's property and the conversion of
all proceeds into cash requires that the Partnership be dissolved.
Accordingly, as General Partner, the Company is taking steps to
dissolve the Partnership and cause a distribution of all available
cash proceeds to the partners.
(c) Proposed Golf Course Development--McKinney, Texas
During March 1996, the Company signed a purchase and sale agreement
and related documents for the proposed development of an 18-hole
championship golf facility located within the Stonebridge Ranch
Development in McKinney, Texas, approximately 25 miles north of
Dallas.
Under the terms of the agreement, land will be conveyed to the
Company for total consideration of ten dollars ($10.00) and the
Company, in turn, shall be responsible for 100% of the costs of the
design, development and operation of an 18-hole championship golf
course, clubhouse, driving range and maintenance facilities. The
Company shall have no direct interest in the residential
development, which is planned for the land surrounding the course.
F-11
<PAGE> 40
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(2) ACQUISITIONS AND SALES (Continued)
(c) Proposed Golf Course Development--McKinney, Texas (Continued)
In connection with the design and promotion of the golf course, the
Company intends to utilize the design and marketing services of six
Legends of golf to design three holes each and participate in the
marketing and promotion of the facility. The Company has entered
into agreements with senior pros Sam Snead, Bob Goalby, Chi Chi
Rodriguez, Miller Barber and Orville Moody, and regular PGA tour pro
Bruce Lietzke to provide promotional services to the project.
Contingent on a successful permitting and design process, course
construction is anticipated to commence in the early fall of 1997
with a course opening in late 1998. The Company's ability to
successfully develop a golf course at Stonebridge Ranch is dependent
on a number of factors, including, but not limited to, the ability
of the Company to raise the necessary capital to finance the course
as well as the requirement to receive all necessary approvals and
permits for the construction of the golf course and related
facilities. As of December 31, 1996, the Company has capitalized
$262,195 related to this development, which is included in
construction in process.
(d) Purchase and Sale of Investment in Las Vegas Golf Center, LLC
On December 31, 1996, the Company acquired a 21.5% interest and a
48.5% interest, and subsequently sold the 48.5% interest, in the Las
Vegas Golf Center (the Center), a golf practice facility located in
Las Vegas, Nevada. The Center is situated on approximately 42 acres
of land leased from Clark County, Nevada. The Center is owned by Las
Vegas Golf Center, LLC, a Delaware limited liability company (the
LLC). The Center includes a driving range with approximately 130 tee
stations on two tiers, a golf school teaching area and a 6,500 sq.
ft. clubhouse. The Center opened for business on January 17, 1997.
The Company acquired a 21.5% interest in the LLC from unrelated
individual shareholders of Golf Centers of America, Inc., a
California corporation, for an aggregate purchase price of $400,000
cash consideration, and 323,289 shares of the Company's common
stock, $.001 par value per share (STPD Shares), payable as follows:
Cash Consideration $20,000 payable on or before December 15, 1996
$180,000 payable on or before January 15, 1997
$200,000 payable on or before January 15, 1998
STPD Shares 161,645 shares on or before January 15, 1997
161,644 shares on or before January 15, 1998
F-12
<PAGE> 41
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(2) ACQUISITIONS AND SALES (Continued)
(d) Purchase and Sale of Investment in Las Vegas Golf Center, LLC
(Continued)
As of December 31, 1996, the Company has capitalized $1,029,075
related to this investment, which is included in investment in golf
facilities on the accompanying balance sheet as of December 31,
1996.
The Company also acquired an additional 48.5% interest in the LLC
from unrelated individual shareholders of Selleck Properties, Inc.,
a California corporation, for an aggregate purchase price of
$1,532,050 cash consideration, and 369,547 shares of the Company's
common stock, $.001 par value per share. The Common Stock was
issued in February 1997.
All of the shares issued or payable in connection with these
transactions are restricted securities as defined in Rule 144
promulgated under the Securities Act of 1933, as amended. Because
the STPD Shares are restricted, the Company obtained an independent
appraisal valuing the STPD shares at a discount from their traded
fair value at the transaction date. The Company has used a 20%
discount in recording the value of the STPD Shares issued. The
Company has granted the sellers of the interests the right to
demand registration of their common stock on a Form S-3
registration statement or similar Form at any time after May 1,
1997. The Company has agreed to use its best efforts to cause such
a registration statement to become effective as soon as practicable
thereafter. The sellers of the 21.5% interest and 48.5% interest
have agreed, pursuant to shareholder agreements, to vote their
common stock for the slate of directors proposed by management of
the Company through December 31, 1998 (in the case of the 21.5%
interest) or the first to occur of (i) June 30, 1999, or (ii) the
date on which Stanton V. Abrams ceases to serve as the President
and Chief Executive Officer of the Company (in the case of the
48.5% interest).
F-13
<PAGE> 42
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(2) ACQUISITIONS AND SALES (Continued)
(d) Purchase and Sale of Investment in Las Vegas Golf Center, LLC
(Continued)
Immediately following the acquisition of the 48.5% interests, the
Company sold a 48.5% interest in the LLC to Paul Fireman (Fireman),
an individual investor and Company stockholder, for cash
consideration of $2,167,953. In addition, the Company received a
$200,000 consulting fee from Fireman in consideration of certain
services rendered in connection with the structuring and
implementation of the transaction, as well as for arranging certain
financing for the LLC. This fee has been included in revenue in the
accompanying consolidated statement of operations for the year ended
December 31, 1996. See Note 8(b)--Related Party Transactions.
In consideration of 50,000 shares of common stock of the Company,
$.001 par value per share, the Company shall have the option to
purchase from Fireman a 13.5% interest in the LLC (the Option). If
the Company exercises the Option on or before December 31, 1997, the
price for a 13.5% LLC interest shall be $900,000. If the Company
exercises the Option after December 31, 1997 but on or before
December 31, 1998, the price for a 13.5% LLC interest shall be
$1,075,000. If the Company exercises the Option after December 31,
1998 but on or before December 31, 1999, the price for a 13.5% LLC
interest shall be $1,350,000.
F-14
<PAGE> 43
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(2) ACQUISITIONS AND SALES (Continued)
(d) Purchase and Sale of Investment in Las Vegas Golf Center, LLC
(Continued)
The Company has been designated the Managing Member of the LLC, and
shall be responsible for the day-to-day management, marketing and
operation of the Center. The Company shall receive a management fee
equal to 5% of gross revenues generated by the LLC as compensation
under the terms of the management agreement, and shall also be
reimbursed for certain accounting and out-of-pocket expenses.
(3) GOLF COURSE DEVELOPMENT COSTS
The Company is in the initial construction phase of an additional nine
holes at The Badlands, an 18-hole facility that was completed in October
1995, and is situated on approximately 186 acres of leased land. The
9-hole addition under construction at December 31, 1996 is situated on 67
acres of leased land abutting The Badlands. In connection with the
construction of the additional nine holes and the ongoing operation of the
golf course, the Company has entered into the following significant
contracts and agreements:
(a) Badlands Land Lease Agreement--18 Holes
The Company leases 186 acres of land in Las Vegas, Nevada, for a
term of 50 years, expiring in July 2045. The lease agreement
contains four 10-year options to extend the term of the lease based
on certain terms, as defined. The lease requires minimum rental
payments of $240,000 per annum, commencing July 1, 1995, with an
increase every three years based on the increase in the Consumer
Price Index. The lease also contains a contingent rental clause
requiring the Company to pay an amount equal to the amount by which
6% of annual gross receipts, as defined, at The Badlands exceeds the
minimum annual rental of $240,000. The lease also requires the
Company to pay real estate taxes, assessments, and other charges in
connection with the leased land. Base rent expense related to the
land lease agreement charged to operations in the year ended
December 31, 1996 and 1995 amounted to approximately $240,000 and
$120,000, respectively.
(b) Badlands Land Lease Agreement--9 Hole Addition
During June 1996, the Company leased an additional 67 acres abutting
The Badlands, which land is being used to develop an additional nine
holes. The term of the lease will be coterminous with the existing
lease, expiring in July 2045, with four ten-year extension options.
The lease requires minimum rental payments of $120,000 per annum,
commencing on the earlier of (i) the opening of the additional nine
holes to the general public; or (ii) November 1, 1998, with an
increase
F-15
<PAGE> 44
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(3) GOLF COURSE DEVELOPMENT COSTS (Continued)
(b) Badlands Land Lease Agreement--9 Hole Addition (Continued)
every three years based on the increase in the Consumer Price Index.
Upon commencement of rental payments under this additional lease,
total contingent rent under both leases will be equal to the amount
by which 6% of annual gross receipts, as defined, at The Badlands
exceeds the minimum annual rental of $360,000. The lease also
requires the Company to pay real estate taxes, assessments and other
charges in connection with the leased property.
<TABLE>
Minimum payments required under The Badlands two land lease
agreements are as follows:
<CAPTION>
18 HOLES 9 HOLES TOTAL
<S> <C> <C> <C>
Year ended December 31,
1997 $ 240,000 $ 40,000 $ 280,000
1998 240,000 120,000 360,000
1999 240,000 120,000 360,000
2000 240,000 120,000 360,000
2001 240,000 120,000 360,000
Thereafter 10,440,000 5,220,000 15,660,000
----------- ---------- -----------
Total $11,640,000 $5,740,000 $17,380,000
=========== ========== ===========
</TABLE>
(c) Water Rights Agreement
The Company has purchased 399 acre-feet of water rights under a
water rights agreement (the Agreement) for use at The Badlands. The
Agreement requires the Company to pay $13,300 per month commencing
on July 1, 1995 and continuing for ten years through July 2005. The
obligation under the water rights agreement has been capitalized in
the accompanying consolidated balance sheets. The capitalized water
rights will not be amortized since the asset has an indefinite and
indeterminable life span and is transferable by the Company subject
to certain restrictions in the Agreement.
F-16
<PAGE> 45
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(3) GOLF COURSE DEVELOPMENT COSTS (Continued)
(c) Water Rights Agreement (Continued)
<TABLE>
As of December 31, 1996, future minimum payments under the water
rights agreement are as follows:
<CAPTION>
Year ended December 31,
<S> <C>
1997 $ 159,600
1998 159,600
1999 159,600
2000 159,600
2001 159,600
Thereafter 558,600
----------
Total obligation under the water rights
agreement 1,356,600
Less--Amount representing interest calculated
at the Company's incremental borrowing rate 409,192
----------
Present value of minimum payments 947,408
Less--Current obligation 77,915
----------
Long-term obligation $ 869,493
==========
</TABLE>
(d) Construction and Term Loan Agreements
In December 1995, the Company entered into a $6,700,000 loan
agreement (the loan) with NationsCredit. At the closing, the loan
provided the Company with $3,384,000, which was used to (i) pay off
the then outstanding Badlands construction loan; (ii) return
approximately $1,200,000 in cash to the Company; and (iii) provide
$1,616,000 to complete construction of The Badlands clubhouse and
other structures. In November 1996, the loan was modified to run
concurrently with the construction loan discussed below. Under the
modification agreement, the lender has capped the borrowings at
approximately $5,000,000. The loan is subject to a 20-year
amortization, which began on December 1, 1996 and has a fixed
interest rate of 10.78%.
F-17
<PAGE> 46
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(3) GOLF COURSE DEVELOPMENT COSTS (Continued)
(d) Construction and Term Loan Agreements (Continued)
In November 1996, the Company entered into a $5,000,000 construction
and permanent loan agreement (the construction loan) with
NationsCredit for development of an additional nine holes at The
Badlands. The construction loan provided for up to $4,000,000 for
construction and other indirect costs associated with the
development of the additional nine holes at The Badlands, and also
provides for the availability of up to $1,000,000 in "Earnout
Advances." The earnout funds will be made available to the Company
over a period of thirty months following the loan closing so long as
certain operating results at The Badlands are achieved, including
minimum debt service coverage ratios, and other revenue and cash
flow criteria, as defined in the loan agreement. The construction
loan is subject to a 20-year amortization, which began on December
1, 1996 and has a fixed interest rate of 10.95%.
The loan term for each of the NationsCredit loans is five years with
the remaining principal due at maturity on December 1, 2001;
however, the Company may extend the term of each loan for an
additional five years upon payment of an extension fee of .5% of the
outstanding balance due and assuming the Company meets certain terms
and conditions as defined in the agreements. Borrowings are
collateralized by a Deed of Trust and a security interest in
substantially all assets of The Badlands. Each loan is
cross-collateralized and cross-defaulted with the other.
(4) LONG-TERM DEBT
<TABLE>
Long-term debt consists of the following at December 31, 1996 and 1995:
<CAPTION>
1996 1995
<S> <C> <C>
Mortgage note payable to NationsCredit, secured by The
Badlands (see Note 3(d)), interest is at 10.78%, with principal
and interest of approximately $46,400 due monthly, with the
balance due at maturity on December 1, 2001 $4,807,188 $3,384,000
Construction note payable to NationsCredit, secured by The
Badlands (see Note 3(d)), interest is at 10.95%, with principal
and interest of approximately $48,250 due monthly, with the
balance due at maturity on December 1, 2001 205,364 -
</TABLE>
F-18
<PAGE> 47
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(4) LONG-TERM DEBT (Continued)
<TABLE>
<CAPTION>
1996 1995
<S> <C> <C>
Mortgage note payable to Textron Financial, secured by the
golf course at Forest Lakes, interest is at the prime rate (8.5%
at December 31, 1995) plus 2%, principal and interest of
approximately $21,000 due monthly, this note was repaid in
1996 in connection with the sale of Forest Lakes $ - $2,015,891
Mortgage note payable to sellers of the clubhouse at Forest
Lakes, interest only payable monthly at 9.25%, this note was
repaid in 1996 in connection with the sale of Forest
Lakes - 1,000,000
Capital lease obligation for turf maintenance and other
equipment, principal and interest payments of approximately
$12,660 due monthly, final maturity date of September 30,
1999 356,729 461,027
Capital lease obligation for furniture, fixtures and other
equipment, principal and interest payments of approximately
$3,995 due monthly, final maturity date of January 1, 2002 188,093 -
Capital lease obligation for telephone equipment, principal
and interest payments of approximately $595 due monthly,
final maturity date of September 11, 2001 24,318 -
Unsecured notes payable, due to sellers of partnership
interests in Forest Lakes Limited Partnership, interest due at
maturity at 7% on January 5, 1996 - 72,664
Collateralized note payable, due October 15, 1998, with
monthly principal and interest payments of $1,654, interest at
the prime rate plus 2.75%. This note was repaid in 1996 in
connection with the sale of Forest Lakes - 46,772
Unsecured revolving line of credit, payable on demand with
interest at the prime rate plus 2.0%. This line was terminated
in 1996 - 25,000
</TABLE>
F-19
<PAGE> 48
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(4) LONG-TERM DEBT (Continued)
<TABLE>
<CAPTION>
1996 1995
<S> <C> <C>
Unsecured line of credit, payable on demand with interest at
the prime rate (8.25% at December 31, 1996) plus 1.5% $1,399,758 $ -
Note payable to a bank, due February 3, 2000, with monthly
principal payments of $1,000 together with interest at the
prime rate plus 2.0%. This note was repaid in 1996 in
connection with the sale of Forest Lakes - 50,000
Various collateralized notes payable to a bank with monthly
principal and interest payments of $904, with interest rates
ranging from 9.0% to 9.25% and maturity dates from July 1997
to September 1998. This note was repaid in 1996 in
connection with the sale of Forest Lakes - 18,592
6,981,450 7,073,946
---------- ----------
Less--Current portion 1,711,745 293,290
---------- ----------
Total long-term debt $5,269,705 $6,780,656
========== ==========
</TABLE>
<TABLE>
Future maturities of long-term debt as of December 31, 1996 are as follows:
<CAPTION>
NOTES CAPITAL
PAYABLE LEASES TOTAL
<S> <C> <C> <C>
1997 $1,562,041 $ 149,704 $1,711,745
1998 179,277 168,771 348,048
1999 128,304 150,571 278,875
2000 107,243 46,638 153,881
2001 4,435,445 49,494 4,484,939
Thereafter - 3,962 3,962
---------- ---------- ----------
Total $6,412,310 $ 569,140 $6,981,450
========== ========= ==========
</TABLE>
F-20
<PAGE> 49
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(5) STOCKHOLDERS' EQUITY
(a) Common Stock
In November 1994, the Company sold 1,600,000 shares of common stock
and warrants at a price of $5.00 per common share and $.10 per
warrant through an initial public offering. Each warrant entitles
the holder to purchase one share of the Company's common stock at an
exercise price of $5.50, subject to adjustment, at any time until
November 16, 1999, at which time the warrants expire. The warrants
are subject to redemption by the Company at a redemption price of
$5.10 per warrant on 30 days' written notice, provided the average
of the closing bid prices of the common stock of the Company equals
or exceeds $8.00 for 20 consecutive trading days preceding the
notice of redemption.
During 1996, the Company issued 742,836 shares of common stock in
connection with the purchase and sale of investment in the Las Vegas
Golf Center, LLC discussed in Note 2(d). In addition, the Company
issued 25,000 shares to Johnny Miller Design, Ltd. for design
services rendered at The Badlands.
(b) Underwriter's Warrants
In connection with the Company's initial public offering in November
1994, the Company issued 160,000 warrants to the underwriter (the
Underwriter's Warrants). Each Underwriter's Warrant entitles the
Underwriter to purchase one share of common stock for $7.25 and one
warrant for $.15.
(c) Overallotment Option
In addition to the Underwriter's Warrants, the Company granted an
overallotment option (the Option) to the Underwriter. The Option
entitled the Underwriter to purchase additional shares of common
stock and/or additional warrants at the public offering price less
the underwriting discounts and commissions, as defined. In December
1994, the Underwriter exercised its option and purchased 153,200
warrants for $13,351 net of discounts and commissions.
(d) Preferred Stock
The Company is authorized to issue 5,000,000 shares of preferred
stock with such designations, voting and other rights and
preferences as may be determined from time to time by the Board of
Directors.
F-21
<PAGE> 50
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(5) STOCKHOLDERS' EQUITY (Continued)
(e) Stock Option Plans
On June 20, 1994, the Company adopted the 1994 Employee Stock Option
Plan (the Employee Plan) that provides for the granting of
nonqualified and incentive stock options, as defined by the Internal
Revenue Code, to key employees at prices determined by the
Compensation Committee of the Board of Directors. Under the Employee
Plan, options for a maximum of 350,000 shares of common stock may be
granted over a period not to exceed ten years. At December 31, 1996,
195,000 options have been granted under this plan. For options
granted under the Employee Plan, 95,000 options had an exercise
price of $2.1875 per share, the fair market value on the date of
grant and vest in five annual equal installments beginning in
December 1997. The terms of the other 100,000 options issued under
the Employee Plan are detailed in Note 5(g).
On November 10, 1996, the Board of Directors of the Company adopted,
subject to shareholder approval, the 1996 Non-Employee Director
Stock Option Plan (the Nonemployee Plan). Under the Nonemployee
Plan, options for a maximum of 200,000 shares of common stock may be
granted. On December 11, 1996, the Compensation Committee granted,
subject to shareholder approval, stock options for the purchase of
40,000 shares of common stock to four members of the Board of
Directors under the Nonemployee Plan. The options were granted with
an exercise price of $2.1875 per share, the fair market value on the
date of grant and vested immediately.
(f) Stock Option Agreements--Management Options
Effective June 20, 1994, the Company entered into employee stock
option agreements with certain officers and key employees granting
them options to acquire up to 1,111,111 shares of the Company's
common stock for an exercise price of $1.00 per share. Under these
agreements, each employee's options vest and become exercisable
based on the Company achieving certain financial benchmarks, as
defined. The options must be exercised by December 31, 2004.
During the fourth quarter of 1995, in accordance with Accounting
Principles Board (APB) Opinion No. 25, Accounting for Stock Issued
to Employees, the Company recorded a noncash compensation charge for
$2,500,000 based on its estimate of the value related to the
probable future vesting of stock options granted to these
individuals. The noncash compensation charge at December 31, 1995
was calculated based on the market price of the Company's common
stock on December 31, 1995 ($3.25), less the exercise price of $1.00
per share, multiplied by the number of shares subject to the options
(1,111,111).
F-22
<PAGE> 51
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(5) STOCKHOLDERS' EQUITY (Continued)
(f) Stock Option Agreements--Management Options (Continued)
During the year ended December 31, 1996, the Company recorded a
noncash compensation credit of $1,250,000. The adjustment reflected
a decrease in the market price of the Company's common stock of
$1.125 per share from the closing price on December 31, 1995 ($3.25)
compared to the closing price on December 31, 1996 ($2.125).
At December 31, 1996, the Company's balance sheet reflected an
accrual of $1,250,000 included in stockholders' equity relating to
the management options. The $1,250,000 balance at December 31, 1996
was calculated based on the market price of the Company's common
stock on December 31, 1996 ($2.125), less the exercise price of
$1.00 per share, multiplied by the number of shares subject to the
options (1,111,111).
At December 31, 1996, 555,555 (representing 50%) of the management
stock options issued in 1994 vested, as the Company achieved the
financial benchmarks called for under the option agreements for the
year ended December 31, 1996. On March 19, 1997, a vote was adopted
by the Company's Compensation Committee, and then ratified by the
Board of Directors, to amend the option agreements in order to
delete the "Benchmarks" as described in the option agreements and in
Note 5(f). The Board voted to accept the optionholders' delay of 10%
of their vested option shares and to replace the "Benchmarks" with
an extended vesting schedule, based on continued employment by the
Company. Under the revised vesting schedule, 40% or 444,445 of the
options vested as of December 31, 1996, and the remaining 666,666
options will vest pro rata on December 31, 1997, 1998 and 1999.
This change will result in no further charges or credits against
earnings related to the management options. At the time these
options are exercised, the proceeds will be credited to the capital
accounts.
F-23
<PAGE> 52
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(5) STOCKHOLDERS' EQUITY (Continued)
(f) Stock Option Agreements--Management Options (Continued)
<TABLE>
The following is a summary of all stock option activity during the
two years ended December 31, 1996:
<CAPTION>
WEIGHTED
AVERAGE
NUMBER OPTION OPTION
OF SHARES PRICE PRICE
<S> <C> <C> <C>
Outstanding, December 31, 1995
and 1994 1,111,111 $ 1.00 $1.00
Granted 235,000 1.00-2.19 1.68
Exercised - - -
Terminated - - -
--------- ---------- -----
Outstanding, December 31, 1996 1,346,111 $1.00-2.19 $1.12
========= ========== =====
Exercisable, December 31, 1996 498,731 $ 1.00 $1.10
========= ========== =====
</TABLE>
In October 1995, the FASB issued SFAS No. 123, Accounting for
Stock-Based Compensation, which requires the measurement of the fair
value of stock options or warrants to be included in the statement
of income or disclosed in the notes to the financial statements. The
Company has determined that it will continue to account for
stock-based compensation for employees under APB Opinion No. 25 and
elect the disclosure only alternative under SFAS No. 123 for options
granted in 1996 using the Black-Scholes option pricing model
prescribed by SFAS No. 123. Based on the use of the Black-Scholes
option pricing model, options granted in 1996 with an exercise price
of $1.00 had a fair value of $1.76 and options granted in 1996 with
an exercise price of $2.1875 had a fair value of $1.49. The weighted
average assumptions are as follows:
<TABLE>
<CAPTION>
1996
<S> <C>
Risk-free interest rate 6.2%
Expected dividend yield -
Expected lives 7 Years
Expected volatility 63.5%
</TABLE>
F-24
<PAGE> 53
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(5) STOCKHOLDERS' EQUITY (Continued)
(f) Stock Option Agreements--Management Options (Continued)
<TABLE>
Had compensation cost for these plans been determined consistent
with SFAS No. 123, the Company's net income and net income per share
would have been reduced to the following pro forma amounts:
<CAPTION>
1996
<S> <C> <C>
Net income As reported $1,048,196
Pro forma 974,284
Net income per share As reported $ .28
Pro forma .26
</TABLE>
Because the method prescribed by SFAS No. 123 has not been applied
to options granted prior to January 1, 1995, the resulting pro forma
compensation cost may not be representative of that to be expected
in future years.
(g) Deferred Compensation
Effective December 11, 1996, the Company granted stock options to an
officer of the Company granting options to acquire up to 100,000
shares of the Company's common stock for an exercise price of $1.00
per share. Under the stock option agreement, the options vest pro
rata over seven years beginning March 5, 1995.
At December 31, 1996, the Company recorded a charge to deferred
compensation and a corresponding credit to additional paid-in
capital in the amount of $118,750, which represents the difference
between the market price of the Company's common stock on December
11, 1996, the date of the option grant ($2.1875) and the exercise
price of $1.00 per share, multiplied by the number of shares subject
to the option (100,000). For the year ended December 31, 1996, the
Company recorded a noncash compensation charge of $29,688 with a
corresponding reduction of deferred compensation to reflect the pro
rata recognition of expense for the 21-month period beginning March
1995 and ending December 31, 1996.
F-25
<PAGE> 54
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(6) INCOME TAXES
At December 31, 1996, the Company had a net operating loss carryforward
available for federal tax purposes of approximately $1,347,000 with
expiration dates beginning in 2009.
<TABLE>
The deferred tax asset consists of the following components at December
31, 1996 and 1995:
<CAPTION>
1996 1995
<S> <C> <C>
Net operating loss carryforwards $458,000 $490,000
Timing differences 250,000 69,000
--------- ---------
708,000 559,000
Valuation allowance (708,000) (559,000)
--------- ---------
$ - $ -
======== ========
</TABLE>
A full valuation allowance has been provided due to the uncertainty
surrounding the realization of the deferred tax asset.
(7) COMMITMENTS AND CONTINGENCIES
<TABLE>
The Company has entered into various leases for office space, office and
golf equipment, golf carts and telephone systems all under noncancelable
operating leases that expire at various dates through September 2001. Rent
expense under these leases was approximately $472,000 and $117,000 in 1996
and 1995, respectively. Approximate future minimum lease payments for all
operating leases as of December 31, 1996 are as follows:
<S> <C>
1997 $178,000
1998 136,000
1999 125,000
2000 74,000
2001 48,000
--------
Total $561,000
========
</TABLE>
F-26
<PAGE> 55
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
(Continued)
(8) RELATED PARTY TRANSACTIONS
(a) Golftown Driving Range
During July 1996, the Company entered into an agreement with
Golftown, Inc. (Golftown), a Massachusetts corporation, which is the
owner and operator of a driving range facility (the Facility) in
Saugus, Massachusetts. The Company has agreed to guaranty a loan in
an amount of $295,000 made to Golftown, in exchange for a 25% equity
interest in Golftown. Under the terms of the agreement with Golftown
and its lender, the Company has the opportunity to cure any default
under the loan, and in the event of a default, the Company may
assume day-to-day management of the Facility and receive a
management fee for such services in addition to its 25% interest in
Facility profits. In addition, the Company has entered into an
agreement for a pledge of voting rights to a majority of the voting
interest of Golftown, which pledge becomes effective in the event of
a default under the loan being guaranteed by the Company. The
President and majority stockholder of Golftown, Inc. is Jeffrey
Abrams, the son of Stanton V. Abrams, the President and Chairman of
the Board of Directors of Senior Tour Players Development, Inc. The
driving range opened to the general public during August 1996. As of
December 31, 1996, the Company had written its investment down to
zero to reflect the Company's portion of the loss incurred by
Golftown.
(b) Las Vegas Golf Center, LLC
During December 1996, the Company acquired, and simultaneously sold,
48.5% interest in the Las Vegas Golf Center, LLC (LLC) to Paul
Fireman, a significant shareholder of the Company, who owned 205,000
shares of the outstanding common stock of the Company at December
31, 1996. In consideration of 50,000 shares of the common stock of
the Company payable to Mr. Fireman, the Company retained an option
to repurchase up to a maximum 13.5% interest in the LLC (see Note
2(d)). In addition, the Company entered into a consulting agreement
with Mr. Fireman for services rendered in connection with the
structuring and implementation of the transaction, as well as for
arranging certain financing for the LLC. Included in net revenues of
the Company for 1996 is $200,000 related to this consulting
agreement.
F-27
<PAGE> 1
EXHIBIT 10-28
- --------------------------------------------------------------------------------
LOAN AGREEMENT
Dated as of November 15, 1996
BETWEEN
THE BADLANDS GOLF CLUB, INC.
BORROWER
AND
NATIONSCREDIT COMMERCIAL CORPORATION
LENDER
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE 1 DEFINITIONS.............................................. 1
1.1 Defined Terms............................................ 1
"Advance"................................................ 2
"Assignment of Contracts"................................ 2
"Assignment of Leases"................................... 2
"Assignment of Permits".................................. 2
"Bankruptcy Code"........................................ 2
"Base Rate".............................................. 2
"Borrower's Designer".................................... 2
"Business Day"........................................... 2
"Calculation Date"....................................... 2
"Capital Reserve"........................................ 2
"Change Order"........................................... 2
"Closing"................................................ 2
"Code"................................................... 2
"Commercial Paper Rate".................................. 2
"Completion Date"........................................ 3
"Completion of Construction Work"........................ 3
"Construction Advance"................................... 3
"Construction Budget".................................... 3
"Construction Period".................................... 3
"Construction Schedule".................................. 3
"Construction Work"...................................... 3
"DSCR"................................................... 3
"Default Rate"........................................... 3
"Direct Costs"........................................... 3
"Earnout Advance"........................................ 4
"Environmental Indemnity"................................ 4
"Event of Default"....................................... 4
"Financing Statements"................................... 4
"Fixed Rate"............................................. 4
"General Contract"....................................... 4
"General Contractor"..................................... 4
"Governmental Authority"................................. 4
"Gross Revenues"......................................... 4
"Guarantor".............................................. 4
"Guaranty"............................................... 5
"Impositions"............................................ 5
"Improvements"........................................... 5
"Incipient Default"...................................... 5
"Indebtedness"........................................... 5
i
<PAGE> 3
"Indirect Costs"......................................... 5
"Initial Disbursement"................................... 5
"Interest Rate".......................................... 5
"Lease" ................................................ 5
"Lender's Consultant".................................... 5
"LIBOR Rate"............................................. 5
"Loans" ................................................ 6
"Loan Documents"......................................... 6
"Loan Month"............................................. 6
"Loan Party"............................................. 6
"Management Agreement"................................... 6
"Maturity Date".......................................... 6
"Mortgage"............................................... 6
"Net Cash Flow".......................................... 6
"Net Operating Income"................................... 6
"New Loan"............................................... 7
"Note" ................................................ 7
"Operating Expenses"..................................... 7
"Other Loan Agreement"................................... 7
"PAR Funds".............................................. 7
"Permitted Encumbrances"................................. 7
"Permitted Financing".................................... 7
"Personal Property"...................................... 7
"Pledge Agreement"....................................... 8
"Publication Date"....................................... 8
"Request for Advance".................................... 8
"Security Agreement"..................................... 8
"Title Company".......................................... 8
"Title Policy"........................................... 8
"Treasury Rate".......................................... 8
"Water Rights Certificates".............................. 8
ARTICLE 2 BORROWER'S REPRESENTATIONS, WARRANTIES AND
COVENANTS................................................ 9
2.1 ......................................................... 9
A. Accuracy of Recitals............................ 9
B. Existence and Ownership of Borrower............. 9
C. Authority and Enforceability.................... 9
D. Maintenance of Existence........................ 9
E. No Default...................................... 9
F. No Litigation................................... 10
G. Compliance with Laws............................ 10
H. Permits......................................... 10
I. Permits for Construction Work................... 10
J. Title........................................... 10
ii
<PAGE> 4
K. Easements....................................... 10
L. Zoning.......................................... 11
M. Complete Disclosure............................. 11
N. Agreements Affecting the Property............... 11
O. Condemnation.................................... 11
P. Exempt Transaction.............................. 11
Q. Access.......................................... 11
R. Tax Division.................................... 11
S. Non-Foreign Status of Borrower.................. 12
T. ERISA........................................... 12
U. Mortgage........................................ 12
V. Security Interest............................... 12
W. Financial Condition............................. 12
X. Intentionally Deleted........................... 12
Y. Bankruptcy...................................... 12
Z. Leases.......................................... 12
AA. Physical Condition of Property.................. 13
BB. Mechanics' Liens................................ 13
CC. Payment of Liens................................ 13
DD. Commercial Purpose.............................. 13
EE. Well Construction............................... 13
2.2 Representations Remade................................... 13
ARTICLE 3 GENERAL CONDITIONS OF LOAN............................... 14
3.1 Loan Documents........................................... 14
3.2 Additional Requirements.................................. 14
A. Title Policy.................................... 14
B. Survey.......................................... 14
C. Opinion......................................... 14
D. Insurance....................................... 14
E. UCC Searches.................................... 14
F. Corporate Documentation......................... 15
G. Appraisal....................................... 15
H. Environmental Assessment........................ 15
I. Subordination of Management Agreement........... 15
J. Leases/Subordination Agreements and Estoppels... 15
K. INTENTIONALLY DELETED........................... 15
L. Agreements...................................... 15
M. Zoning.......................................... 15
N. Lender's Inspection............................. 15
O. Equifax Report.................................. 15
P. Operating and Financial Statements.............. 16
Q. Intentionally Deleted........................... 16
R. Construction Budget............................. 16
S. Construction Contracts and Agreements........... 16
iii
<PAGE> 5
T. Bonds for Contracts............................. 16
U. Plans and Specifications........................ 16
V. Other Items..................................... 16
ARTICLE 4 FURTHER COVENANTS OF BORROWER............................ 16
4.1 ......................................................... 16
A. Taxes and Impositions........................... 16
B. Deposits........................................ 17
C. Mortgage Taxes.................................. 18
D. No Liens........................................ 18
E. Condition of Property........................... 18
F. Personal Property............................... 19
G. Compliance...................................... 19
H. Performance of Agreements....................... 19
I. Lender's Expenses............................... 19
J. Intentionally Left Blank........................ 19
K. Financial Statements............................ 19
L. Management...................................... 20
M. Due on Sale or Encumbrance...................... 20
N. Estoppel Certificates........................... 20
O. Leasing......................................... 21
P. Condemnation.................................... 21
Q. Litigation...................................... 21
R. PAR Funds....................................... 21
S. Application of Gross Revenues................... 22
T. Capital Reserve................................. 22
U. Funds Deposited with Lender..................... 22
V. Audit and Inspection by Lender.................. 23
W. Appraisal....................................... 23
X. Additional Reserve.............................. 24
Y. Environmental Conditions........................ 24
ARTICLE 5 AGREEMENT TO LEND........................................ 24
5.1 Agreement to Lend........................................ 24
5.2 Disbursements............................................ 24
5.3 Earnout Advances......................................... 24
5.4 Extension Option......................................... 25
ARTICLE 6 CONSTRUCTION ADVANCES.................................... 26
6.1 ......................................................... 26
A. Amounts of Advances............................. 26
B. Advances for Debt Service....................... 26
C. Reserves of Loan Proceeds....................... 26
D. Right to Require Deposits....................... 26
6.2 The Construction Advances................................ 27
iv
<PAGE> 6
6.3 Construction of Construction Work........................ 30
A. Construction.................................... 30
B. Compliance with Laws............................ 30
C. Compliance with Plans........................... 30
D. Maintenance of Bond............................. 30
E. Construction Contracts.......................... 30
6.4 Other Remedies of Lender................................. 31
6.5 Assignment of Plans and Specifications and Agreements.... 31
6.6 Retainage................................................ 31
6.7 Permits.................................................. 32
ARTICLE 7 INSURANCE AND CASUALTY................................... 32
7.1 ......................................................... 32
A. Insurance....................................... 32
B. Evidence of Coverage............................ 32
C. Separate Insurance.............................. 33
D. Damage to or Destruction of Property............ 33
E. Restoration..................................... 33
F. Distribution of Proceeds........................ 34
G. Miscellaneous Insurance Provisions.............. 36
ARTICLE 8 BORROWER'S DEFAULT....................................... 37
8.1 Events of Default........................................ 37
8.2 Remedies................................................. 38
ARTICLE 9 MISCELLANEOUS............................................ 39
9.1 Indemnification.......................................... 39
9.2 Defense of Claims........................................ 40
9.3 Performance by Lender.................................... 40
9.4 Transfer by Lender....................................... 40
9.5 Lender's Actions......................................... 40
9.6 Time is of the Essence................................... 40
9.7 Waivers.................................................. 41
9.8 Notices.................................................. 41
9.9 Successors and Assigns................................... 42
9.10 No Partnership........................................... 42
9.11 Brokerage Claims......................................... 42
9.12 Publicity................................................ 42
9.13 Documents Satisfactory to Lender......................... 42
9.14 Additional Assurances.................................... 42
9.15 Entire Agreement......................................... 42
9.16 Severability............................................. 42
9.17 No Third Party Beneficiary............................... 43
9.18 Choice of Law............................................ 43
9.19 Limitation on Liability.................................. 43
v
<PAGE> 7
9.20 Written Agreement........................................ 45
9.21 Construction............................................. 45
9.22 Lender's Consent......................................... 45
9.23 Notice of Breach by Lender............................... 45
9.24 Waiver of Jury Trial..................................... 46
9.25 Consent to Jurisdiction.................................. 46
9.26 Commercial Transaction................................... 46
9.27 Counterparts............................................. 47
EXHIBITS
EXHIBIT A -- Legal Description
EXHIBIT B -- Construction Work
EXHIBIT C -- Construction Schedule
EXHIBIT D -- Note
EXHIBIT E -- Permitted Encumbrances
EXHIBIT F -- Affidavit and Advance Request
EXHIBIT G -- Insurance Requirements
EXHIBIT H -- Borrower's Construction Manager's Certification
EXHIBIT I -- Equipment Leases
EXHIBIT J -- List of Litigation
vi
<PAGE> 8
THIS LOAN AGREEMENT (this "AGREEMENT") is dated as of November 15, 1996
between THE BADLANDS GOLF CLUB, INC., a Nevada corporation with an office and
principal place of business at 266 Beacon Street, Boston, Massachusetts 02116
("BORROWER") and NATIONSCREDIT COMMERCIAL CORPORATION, a Delaware corporation
having an address of One Canterbury Green, P.O. Box 120013, Stamford,
Connecticut 06912-0013, Attn: Vice President Commercial Real Estate ("LENDER").
R E C I T A L S
A. Borrower is the owner of a leasehold interest in the parcels of real
property described on EXHIBIT "A-1" attached hereto and incorporated herein by
reference (the "LAND"), together with the improvements thereon, and together
with all furniture, fixtures, equipment and other personal property now or
hereafter used in the management and operation thereof (the "PROPERTY"); and
B. Lender has previously advanced to Borrower a loan in the principal
amount of up to $6,700,000.00 secured by, among other things, a first mortgage
covering Borrower's leasehold interest in a portion of the Land (the "OTHER
LOAN"); and
C. Borrower has previously constructed on the Land an eighteen (18) hole
golf course, clubhouse and related amenities; and
D. Borrower desires to construct an additional nine (9) holes on the
portion of the Land which is described on EXHIBIT "A-2" attached hereto and
incorporated herein by reference (the "NEW PROPERTY"); and
E. Borrower desires to borrow from Lender $5,000,000.00 (the "NEW LOAN")
for the purposes of (i) the payment of certain closing costs approved by Lender
in connection with the New Loan, (ii) up to an additional $3,794,636.08 to pay a
portion of the cost of the Construction Work, and (iii) the return of equity to
Borrower.
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions and agreements contained herein, the Borrower and Lender agree as
follows:
ARTICLE 1
---------
DEFINITIONS
-----------
1.1 DEFINED TERMS. In this Agreement, the following terms shall have the
following meanings:
1
<PAGE> 9
"ADDITIONAL RESERVE" -- the reserve established and maintained by Borrower
pursuant to SECTION 4.1X.
"ADVANCE" -- an advance by Lender to Borrower in accordance with the Note
or this Agreement.
"ASSIGNMENT OF CONTRACTS" -- the Assignment of Contracts, Agreements and
Equipment Leases of even date herewith from Borrower to Lender.
"ASSIGNMENT OF LEASES" -- the Assignment of Leases and Rents of even date
herewith from Borrower to Lender.
"ASSIGNMENT OF PERMITS" -- the Assignment of Licenses, Permits and
Approvals of even date herewith from Borrower to Lender.
"BANKRUPTCY CODE" -- the United States Bankruptcy Code and any similar
state or federal law now or hereafter in effect relating to bankruptcy,
reorganization or insolvency, or the arrangement or adjustment of debts.
"BASE RATE" -- the Commercial Paper/LIBOR Rate plus four and one-half
percent (4.5%) per annum.
"BORROWER'S DESIGNER" -- Johnny Miller Design, Ltd.
"BUSINESS DAY" -- any day other than a Saturday, Sunday or legal holiday
on which commercial banks are authorized or required to be closed in Illinois or
Connecticut.
"CALCULATION DATE" -- January 1, 1997, and the first day of every calendar
quarter thereafter prior to the Maturity Date.
"CAPITAL RESERVE" -- the capital improvement reserve paid by Borrower to
Lender pursuant to the terms and conditions of SECTION 4.1.T.
"CHANGE ORDER" -- any amendment or modification to the Plans and
Specifications, the General Contract or the Construction Budget which have been
approved by Lender.
"CLOSING" -- the closing of the New Loan contemplated by this Agreement.
"CODE" -- the Internal Revenue Code of 1986, as amended, and the
Regulations promulgated thereunder.
"COMMERCIAL PAPER RATE" -- for each Loan Month, the highest discount rate
reported as having been the rate in effect for "high-grade unsecured notes"
having thirty (30) day maturities "sold through dealers by major corporations in
multiples of $1,000" (whether or not such notes have actually been sold by such
dealers at such rates) in the "Money Rates" column of THE WALL
2
<PAGE> 10
STREET JOURNAL (the "PUBLISHED RATE") published on the first day of the
applicable Loan Month, or, if the Published Rate is not published on the first
day of the applicable Loan Month, on the immediately preceding Publication Date.
If THE WALL STREET JOURNAL (i) publishes more than one Published Rate on any
Publication Date, the higher of such rates shall apply, or (ii) publishes a
retraction or correction of any Published Rate, the corrected rate reported in
such retraction or correction shall apply. If the Published Rate is no longer
published at least monthly, the Base Rate shall, in the sole and absolute
discretion of Lender, be deemed to be either (x) such other discount rate
reported as having been the rate in effect for "high grade unsecured notes"
reported in THE WALL STREET JOURNAL and reasonably satisfactory to Lender, or
(y) the LIBOR Rate plus four and one-half percent (4.5%) per annum.
"COMPLETION DATE" -- the earlier to occur of September 15, 1997 or the
Completion of Construction Work.
"COMPLETION OF CONSTRUCTION WORK" -- the completion of the Construction
Work, in accordance with the Plans and Specifications and pursuant to the terms
of ARTICLE 6.
"CONSTRUCTION ADVANCE" -- an Advance by Lender in connection with the
Construction Work pursuant to SECTIONS 6.1 and 6.2.
"CONSTRUCTION BUDGET" -- the detailed budget setting forth Borrower's
estimate of all costs to be incurred in connection with the Completion of
Construction Work, which budget has been provided to and approved by Lender.
"CONSTRUCTION PERIOD" -- the period commencing on the date of this
Agreement and expiring on the Completion Date.
"CONSTRUCTION SCHEDULE" -- the schedule for the completion of the
Construction Work, including dates for partial completion, set forth on EXHIBIT
C.
"CONSTRUCTION WORK" -- the work briefly described on EXHIBIT B and as set
forth in more detail in the Plans and Specifications.
"DSCR" -- shall mean the debt service coverage ratio, as determined by
Lender on each Calculation Date, by calculating the ratio of (x) the Net
Operating Income from the Property for the twelve (12) immediately preceding
Loan Months, to (y) the sum of the monthly payments of principal and interest
which are due and payable with respect to the Loans for the twelve (12)
immediately preceding Loan Months. DSCR shall be determined in accordance with
generally accepted accounting principles consistently applied. Operating
Expenses which are paid less frequently than monthly may be prorated to reflect
a monthly allocation.
"DEFAULT RATE" -- See SECTION 1 of the Note.
"DIRECT COSTS" -- the total of all construction costs for the development
of the Property, the construction of the Improvements and the completion of the
Construction Work, as shown in
3
<PAGE> 11
the Construction Budget. Direct Costs shall include fees payable to Consultant
for construction management services, but shall not include fees paid for other
professional design or consulting services.
"EARNOUT ADVANCE" -- shall have the meaning given in SECTION 5.3 below.
"ENVIRONMENTAL INDEMNITY" -- the Hazardous Substances Indemnity Agreement
of even date herewith from Borrower and Guarantor to Lender.
"EVENT OF DEFAULT" -- the occurrence of any one or more of the events set
forth in SECTION 8.1.
"FINANCING STATEMENTS" -- the UCC-1 Financing Statements naming Borrower
or Guarantor as debtor and Lender as secured party and filed with the offices of
the Secretary of State of Nevada, the Clark County Recorder's Office, in
connection with the Mortgage and the Security Agreement.
"FIXED RATE" -- the Treasury Rate plus five percent (5.0%) per annum.
"GENERAL CONTRACT" -- the Construction Management Agreement between
Borrower and General Contractor dated November 1, 1996.
"GENERAL CONTRACTOR" -- ProTurf International, Ltd.
"GOVERNMENTAL AUTHORITY" -- the United States of America, the state in
which the Property is located, the state under the laws of which Borrower is
organized, any state in which (or to residents of which) Borrower offers to sell
or lease any portion of the Property or Improvements have been or will be made
by or on behalf of Borrower, any political subdivision of any of them, and any
court, agency, department, commission, board, bureau or instrumentality of any
of them.
"GROSS REVENUES" -- for each Loan Month shall mean all rents, revenues and
other payments received by or for the benefit of Borrower in cash or current
funds or other consideration from any source whatsoever in connection with its
ownership, operation and management of the Property, including all payments
received by Borrower from all tenants or other occupants of the Property;
specifically excluding from Gross Revenues, however, income from the sale of
club memberships with respect to the Property, if any.
"GROUND LEASE" -- the Ground Lease dated June 4, 1996, by and between
William Peter and Wanda Ruth Peccole Family Limited Partnership, The Peccole
1982 Trust, William Peter Peccole and Wanda Lamb Peccole 1971 Trust, William
Peccole and Wanda Peccole 1991 Trust, Leann Peccole Goorjian 1976 Trust, Lisa
Peccole Miller 1976 Trust and Laurie Peccole Bayne 1976 Trust, as landlord, and
Borrower, as tenant.
"GUARANTOR" -- Senior Tour Players Development, Inc.
4
<PAGE> 12
"GUARANTY" -- the Guaranty and Indemnity Agreement of even date herewith
from Guarantor to Lender in connection with the New Loan.
"IMPOSITIONS" -- All taxes of every kind and nature, sewer rents, charges
for water, for setting or repairing meters and for all other utilities serving
the Property, and assessments, levies, inspection and license fees and all other
charges imposed upon or assessed against the Property or any portion thereof
(including the income derived from the Property), and any stamp or other taxes
which might be required to be paid with respect to any of the Loan Documents,
any of which might, if unpaid, result in a lien on the Property or any portion
thereof, regardless of to whom assessed.
"IMPROVEMENTS" -- the nine (9) golf holes to be built on the Land and
related amenities.
"INCIPIENT DEFAULT" -- the existence of any condition or state of facts
which with the giving of notice by Lender or the passage of time, or both, would
constitute an Event of Default.
"INDEBTEDNESS" -- all indebtedness, obligations, liabilities, amounts,
sums and expenses payable by Borrower under the Note, this Agreement and every
other Loan Document, together with interest thereon in accordance with the terms
and conditions of the Loan Documents.
"INDIRECT COSTS" -- the total of all costs and expenses, other than Direct
Costs, relating to developing the Property, construction of the Improvements and
the completion of the Construction Work, and the equipping and financing
thereof, as shown in the Construction Budget.
"INITIAL DISBURSEMENT" -- $205,363.92
"INTEREST RATE" -- the Fixed Rate or the Maximum Rate (as defined in the
Note).
"LEASE" -- any lease or other rental or occupancy agreement with respect
to the Property or any portion thereof.
"LENDER'S CONSULTANT" -- the architect or engineer retained by Lender to
inspect the Improvements on behalf of Lender; in the event all or a portion of
such functions are performed by Lender, references in this Agreement to Lender's
Consultant shall be deemed to be references to Lender.
"LIBOR RATE" -- for each Loan Month, the 30-day LIBOR (London Interbank
Offered Rate) Rate published in THE WALL STREET JOURNAL (the "REPORTED RATE") on
the first day of the applicable Loan Month or, if the Reported Rate is not
published on the first day of the applicable Loan Month, on the immediately
preceding Publication Date. If THE WALL STREET JOURNAL (i) publishes more than
one Reported Rate on any Publication Date, the higher or highest of such rates
shall apply, or (ii) publishes a retraction or correction of any Reported Rate,
the corrected rate reported in such retraction or correction shall apply. If the
Reported Rate is no longer published at least monthly, the Base Rate shall, in
the sole and absolute discretion of Lender, be deemed to be either (x) such
other London Interbank Offered Rate published in THE WALL STREET
5
<PAGE> 13
JOURNAL and reasonably satisfactory to Lender, or (y) the Commercial Paper Rate
plus four and one-half percent (4.5%) per annum.
"LOANS" -- collectively, the New Loan and the Other Loan.
"LOAN DOCUMENTS" -- this Agreement, the Note, the Mortgage, the Assignment
of Leases, the Security Agreement, the Guaranty, the Environmental Indemnity,
the Assignment of Permits, the Assignment of Contracts, the Pledge Agreement,
the Financing Statements, the Water Rights Mortgage and such other documents and
agreements as Lender may require in connection with the New Loan. Any reference
in this Agreement to any document which is a "Loan Document" shall mean such
document as hereafter amended, modified or supplemented.
"LOAN MONTH" -- See SECTION 1 of the Note.
"LOAN PARTY" -- Borrower, Guarantor or the owner of any interest in
Borrower.
"MANAGEMENT AGREEMENT" -- the Management Agreement by and between Borrower
and Guarantor.
"MATURITY DATE" -- the earlier to occur of (i) December 1, 2001, (ii) such
date as Lender may, in its discretion, designate in writing as the Maturity Date
if the Base Rate should at any time exceed the Maximum Rate (as defined in the
Note); or (iii) the date on which the entire principal amount evidenced by the
Note and all accrued and unpaid interest thereon shall be paid on or be required
to be paid in full, whether by prepayment, acceleration or otherwise in
accordance with the terms of the Note or any other Loan Document.
"MORTGAGE" -- the Deed of Trust and Security Agreement of even date
herewith from Borrower to First American Title Company of Nevada, Trustee for
the benefit of Lender on the New Property, securing the Note and Borrower's
obligations under the other Loan Documents.
"NET CASH FLOW" -- for each Loan Month shall mean Net Operating Income
reduced by all monthly payments of principal and interest and all other payments
with respect to the Loans and the other Loan Documents actually paid by Borrower
and received by Lender during such Loan Month.
"NET OPERATING INCOME" -- for each Loan Month shall be calculated by
Lender in accordance with generally accepted accounting principles consistently
applied based upon Lender's review of the monthly financial statements of
Borrower provided to Lender pursuant to SECTION 4.1.K, together with such other
information as Lender may reasonably request, and shall mean the difference
between:
(1) the Gross Revenues for said Loan Month; and
(2) all the Operating Expenses for said Loan Month.
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<PAGE> 14
"NEW LOAN" -- the loan evidenced by the Note and this Agreement.
"NOTE" -- the Promissory Note from Borrower of even date herewith in the
stated principal amount of Five Million and 00/100 Dollars ($5,000,000.00),
which: (i) is payable to the order of Lender on or before the Maturity Date,
(ii) requires monthly payments of interest at the Interest Rate, (iii) requires
monthly payments of principal, on an amortization schedule based upon an assumed
interest rate per annum of 10% and an assumed term of 20 years, (iv) is closed
to prepayment during the first twenty-four (24) Loan Months (as defined in the
Note) and is open to prepayment thereafter, but only upon payment of the
Prepayment Fee (as defined in the Note) if such prepayment is made prior to the
thirty-sixth (36th) Loan Month, (v) has a late fee of 5% after five days, and
(vi) has a default rate of 5% in excess of the Interest Rate. A copy of the Note
is attached hereto as EXHIBIT D.
"NOTES" -- collectively, the Note and the Other Note.
"OPERATING EXPENSES" -- the reasonably necessary and customary costs and
expenses incurred and actually paid by Borrower in connection with its
ownership, operation and management of the Property, specifically including in
Operating Expenses all required payments made by Borrower into the reserve
accounts described in SECTIONS 4.1.B and 4.1.T; specifically excluding from
Operating Expenses, however (x) all capital expenditures incurred by Borrower
(y) principal, interest and all other reserve or other payments made under the
Loan Documents, and (z) depreciation and all other non-cash expenses of the
Property. Operating Expenses shall be determined in accordance with generally
accepted accounting principles consistently applied. Operating Expenses which
are paid less frequently than monthly and which are allocable evenly to each
Loan Month may be prorated to reflect such allocation.
"OTHER LOAN AGREEMENT" -- the Loan Agreement dated December 22, 1995, by
and between Borrower and Lender with respect to the Other Loan.
"OTHER NOTE" -- the Promissory Note from Borrower dated December 22, 1995,
evidencing the Other Loan.
"PAR FUNDS" -- all Net Proceeds and Net Cash Flow held by Lender pursuant
to the terms and conditions of SECTION 4.1.R.
"PERMITTED ENCUMBRANCES" -- the liens, claims, assessments, encumbrances
and rights of others encumbering title to the Property and the Personal Property
which are set forth on EXHIBIT E.
"PERMITTED FINANCING" -- shall mean equipment leases or purchase money
financing with respect to Personal Property acquired or leased by Borrower which
has been approved in writing by Lender, including the leases described in
EXHIBIT I which are hereby approved by Lender.
"PERSONAL PROPERTY" -- shall have the meaning given to the term
"Collateral" under the Security Agreement.
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<PAGE> 15
"PLANS AND SPECIFICATIONS" -- the detailed plans and specifications for
the Construction Work which have been provided to and approved by Lender.
"PLEDGE AGREEMENT" -- the Pledge Agreement dated December 22, 1995, from
Guarantor to Lender pledging 100% of the stock interest of Borrower.
"PUBLICATION DATE" -- any date on which the Commercial Paper Rate, the
LIBOR Rate or the Treasury Rate are published in THE WALL STREET JOURNAL.
"REQUEST FOR ADVANCE" -- a completed statement in the form attached as
EXHIBIT F executed by Borrower and delivered to Lender prior to each Advance by
Lender after the Closing.
"SECURITY AGREEMENT" -- the Security Agreement of even date herewith from
Borrower, as debtor, to Lender, as secured party.
"TITLE COMPANY" -- First American Title Company of Nevada.
"TITLE POLICY" -- a mortgagee's policy of title insurance issued on the
1970 ALTA form by the Title Company in the aggregate face amount of
$5,000,000.00, together with such reinsurance and direct access agreements as
Lender may request, guaranteeing as of the date of the Closing, the Mortgage to
be a valid first and prior lien on Borrower's leasehold interest in the New
Property (including any easements appurtenant thereto) subject only to the
Permitted Encumbrances. The Title Policy shall contain such endorsements as
Lender may reasonably require.
"TRANSITION PERIOD" -- The period commencing on the date on which the
Construction Work is completed in accordance with the terms of this Agreement
and continuing until the first Calculation Date on which DSCR is equal to or
greater than 1.4:1.
"TREASURY RATE" -- the yield to maturity for the U.S. Treasury Note or
Bond which is closest in maturity to the remaining term of the Loan as published
in THE WALL STREET JOURNAL on the last Publication Date immediately preceding
the effective date of an election made by Borrower pursuant to SUBSECTION 5.4
below.
"WATER RIGHTS CERTIFICATES" -- Water rights under Permit 51889,
Certificate 12107; Permit 29277, Certificate 10490; Permit 47546, Certificate
12106; and Permit 12065, Certificate 4979.
"WATER RIGHTS MORTGAGE" -- The Deed of Trust and Security Agreement dated
December 22, 1995, executed and delivered by Guarantor to First American Title
Company of Nevada, as Trustee, covering the Water Rights Certificates.
In this Agreement, the word "including" shall mean "including without
limitation."
8
<PAGE> 16
ARTICLE 2
BORROWER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
----------------------------------------------------
2.1 Borrower hereby represents, covenants and warrants as follows:
A. ACCURACY OF RECITALS. Each of the recitals to this Agreement is
true and correct.
B. EXISTENCE AND OWNERSHIP OF BORROWER. Borrower is a corporation
duly formed, validly existing and in good standing under the laws of the State
of Nevada. Borrower is and at all times prior to the repayment of the Loans
shall remain a single purpose entity, so called, whose sole asset is the
Property and whose sole business interest is the ownership and operation of the
Property. The status of Borrower as a duly formed and validly existing
corporation under the laws of the State of Nevada will not be terminated.
Guarantor owns 100% of the stock interest in Borrower, free and clear of all
liens, claims, encumbrances or rights of others (other than Lender's interest
created by the Pledge Agreement), and no voluntary transfer (absolute or as
collateral) of said shareholders' interest in Borrower will occur except as
expressly permitted in SECTION 4.1.M. Guarantor is a corporation duly formed and
validly existing and in good standing under the laws of the State of Nevada. The
status of Guarantor as a duly formed and validly existing corporation under the
laws of the State of Nevada will not be terminated.
C. AUTHORITY AND ENFORCEABILITY. Borrower has full right, power and
authority to execute, deliver and carry out the terms and provisions of this
Agreement and the other Loan Documents and every other document and instrument
to be executed and delivered by Borrower pursuant to this Agreement. The person
executing and delivering this Agreement and the Loan Documents on behalf of
Borrower is duly authorized to so act on behalf of Borrower. This Agreement,
each other Loan Document and every other document and instrument to be executed
and delivered by any Loan Party, when executed and delivered shall constitute
the duly authorized, valid and legally binding obligation of such Loan Party,
enforceable in accordance with their respective terms, subject only to
applicable bankruptcy, reorganization, moratorium and similar laws affecting the
enforceability of creditors' rights generally.
D. MAINTENANCE OF EXISTENCE. Borrower shall do all things necessary
to preserve and keep in full force and effect its respective existence and all
franchises, licenses, authorizations, registrations, permits and approvals
necessary under the laws of the State of Nevada, for the ownership and operation
of the Property as herein contemplated, and shall comply with all regulations,
rules, ordinances, statutes, orders and decrees of any governmental authority or
court applicable to Borrower and to the Property or any portion thereof.
E. NO DEFAULT. Neither Borrower nor any other Loan Party is in
default under any contract, agreement or commitment to which it is a party or by
which it is bound. The execution and delivery of this Agreement and the other
Loan Documents and any other documents or instruments to be executed and
delivered by Borrower or any other Loan Party pursuant hereto or thereto, the
consummation of the transactions herein or therein contemplated and compliance
9
<PAGE> 17
with the terms and provisions hereof or thereof, will not (i) violate any law or
any regulation, order, writ or injunction of any court or governmental or
administrative department, commission, board, bureau, agency or instrumentality
applicable to Borrower or any Loan Party, or (ii) conflict or be inconsistent
with, or result in a breach of, any of the provisions of, or constitute a
default under, any instrument, document, agreement, or contract of any kind to
which Borrower or any other Loan Party is a party or by which Borrower or any
other Loan Party or any of their respective property is bound.
F. NO LITIGATION. Except as set forth on EXHIBIT J, there are no
petitions, actions, suits, or proceedings pending or, to the best knowledge of
Borrower, threatened against or affecting Borrower or any other Loan Party or
the Property, by or before any court or any governmental, administrative,
regulatory, adjudicatory or arbitrational body or agency (including any such
petition, action, suit or proceeding to alter or declare invalid any laws,
regulations, permits, certificates, restrictions or agreements relating to the
Property).
G. COMPLIANCE WITH LAWS. The use of the Property as a golf course,
clubhouse and related amenities does not violate (i) any applicable law,
regulation, ordinance or order of any kind whatsoever (including any such law
relating to zoning, building and environmental protection), (ii) any permit or
license issued with respect to the Property, or (iii) any condition, easement,
right-of-way, covenant or restriction affecting the Property.
H. PERMITS. All necessary and required franchises, licenses,
authorizations, registrations, permits and approvals for the use and occupancy
of the Property have been or will be obtained in a timely manner from all
Governmental Authorities having jurisdiction over the Property so as to permit
the operation of the Property as herein contemplated. Borrower has provided
Lender with true and correct copies of all presently outstanding licenses,
permits and approvals respecting the Property.
I. PERMITS FOR CONSTRUCTION WORK. All required licenses, permits and
approvals (including building permits) relating to the commencement of the
Construction Work have been obtained or will be obtained from the appropriate
governmental authorities and such permits and approvals will remain in full
force and effect without modification or exception.
J. TITLE. Borrower has good and indefeasible leasehold title to the
New Property and good and indefeasible title to all existing Personal Property,
free and clear of all liens, claims, assessments, encumbrances and rights of
others other than the Permitted Encumbrances. Borrower shall preserve such title
to the New Property and the Personal Property and will forever warrant and
defend the same and the validity and priority of the Mortgage to Lender against
all claims whatsoever.
K. EASEMENTS. In addition to the Permitted Encumbrances, all
proposed easements, permits, licenses, and other instruments which would or
might affect the title to the New Property have been submitted to Lender for
Lender's approval together with a survey showing the exact or, if applicable,
proposed location thereof. Borrower shall not subject the New Property or any
part thereof to any restrictive covenant (including any restriction or exclusive
use
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<PAGE> 18
provision in any lease or other occupancy agreement) without the prior written
consent of Lender, which consent shall not be unreasonably withheld or delayed.
L. ZONING. The Property is zoned for use as a golf course, with a
clubhouse and related amenities, which zoning is final, unconditional and in
full force and effect. The Property is in compliance with all applicable zoning
and land use laws, regulations and ordinances. In the event that all or any part
of the Improvements are destroyed or damaged, said Improvements can be legally
reconstructed to their condition prior to such damage or destruction, and
thereafter exist for the same use without violating any zoning or other
ordinances applicable thereto and without the necessity of obtaining any
variances or special permits. The Property contains sufficient permanent parking
spaces to satisfy all requirements imposed by applicable laws with respect to
parking, and Borrower has obtained any and all permits or approvals from
applicable governmental authorities authorizing construction of such parking
spaces. No legal proceedings are pending or, to the best knowledge of Borrower,
threatened with respect to the zoning of the Property. Neither the zoning nor
any other right to construct, use or operate the Property is in any way
dependent upon or related to any real estate other than the Property, except as
set forth in the Permitted Encumbrances. No condominium plan, condominium
declaration, or plat of subdivision will be recorded with respect to the
Property without Lender's prior written consent.
M. COMPLETE DISCLOSURE. Neither this Agreement nor any document,
financial statement, credit information, certificate or statement provided to
Lender by Borrower contains any untrue statement of material fact or omits to
state a fact necessary to make any statements made herein not misleading.
N. AGREEMENTS AFFECTING THE PROPERTY. Borrower has provided Lender
with true and complete copies of all contracts and agreements affecting the
Property, including, all Leases, tenancies or other contracts or agreements
relating to the maintenance, development, operation or management thereof.
O. CONDEMNATION. Borrower has not received any notice from any
governmental or quasi-governmental body or agency or from any person or entity
with respect to (and Borrower does not know of) any actual or threatened taking
of the Property, or any portion thereof, for any public or quasi-public purpose
or of any moratorium which may affect the use or operation of the Property.
P. EXEMPT TRANSACTION. The Loan is an exempt transaction under the
Truth-in- Lending Act (15 U.S.C.A. ss.ss. 1601 ET SEQ.).
Q. ACCESS. The Property has access to and full utilization of
completed public roads necessary for access to and full utilization of the
Property for its intended purposes.
R. TAX DIVISION. Borrower shall use its best efforts to cause a tax
division to be effected with respect to the Property on or before March 1, 1997,
so that the Property is taxed for ad valorem taxation without regard to or
inclusion of any other property. No subdivision or
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<PAGE> 19
other approval is necessary with respect to the Property in order for Borrower
to mortgage, convey and otherwise deal with the Property as a separate lot or
parcel.
S. NON-FOREIGN STATUS OF BORROWER. Borrower is not a non-resident
alien for purposes of U.S. income taxation and is not a foreign corporation,
partnership, foreign trust or foreign estate (as said terms are defined in the
Code).
T. ERISA. Neither Borrower nor Guarantor is a party to any plan
defined and regulated under the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") or Section 4975 of the Code. None of the assets of Borrower
or Guarantor are "plan assets" as defined in 29 C.F.R. ss.2509.75-2 or
ss.2510.3-101.
U. MORTGAGE. The Mortgage constitutes a valid and enforceable first
lien on the New Property, subject only to the Permitted Encumbrances.
V. SECURITY INTEREST. The Security Agreement, together with the
Financing Statements filed in connection therewith, will, when filed, create a
valid, enforceable and perfected first priority security interest in the
Collateral (as defined therein), subject to no other interests, liens or
encumbrances, subject to the Permitted Encumbrances.
W. FINANCIAL CONDITION. There has been no material adverse change in
the financial condition, business, operations, prospects or affairs of the
Borrower or any other Loan Party since June 30, 1996.
X. INTENTIONALLY DELETED.
Y. BANKRUPTCY. No petition in bankruptcy, whether voluntary or
involuntary, or assignment for the benefit of creditors, or any other action
involving debtors' and creditors' rights has been filed under the laws of the
United States of America or any state thereof, or, to the best knowledge of
Borrower, threatened, against the Borrower or any other Loan Party or against
any other entity in which the Borrower or any other Loan Party is a principal or
general partner.
Z. LEASES. Except as set forth on EXHIBIT B of the Assignment of
Leases and EXHIBIT I of this Agreement, there are no leases affecting the New
Property. Borrower has not executed any prior assignment of the Leases, nor has
it performed any act or executed any other instrument which might prevent Lender
from operating under any of the terms and conditions of the Assignment of Leases
or which would limit Lender in such operation; and Borrower further covenants
and warrants to Lender that Borrower has not executed or granted any
modification whatsoever of the Leases, except as herein indicated, and that the
Leases are in full force and effect, and that, except as otherwise disclosed to
Lender in writing, there are no defaults now existing under the Leases with
respect to which Borrower has notified the tenant under the Leases.
AA. PHYSICAL CONDITION OF PROPERTY. All of the existing Improvements
are in good condition and repair. Borrower is aware of no latent or patent
structural or other significant
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<PAGE> 20
defect or deficiency in such Improvements. The water supply, storm and sanitary
sewers, and electrical, gas and telephone facilities are available to the
Property within the boundary lines of the Property, are sufficient to meet the
reasonable needs of the Property as now used or contemplated to be used, no
other utility facilities are necessary to meet the reasonable needs of the
Property as now used, and design and as-built conditions of the Property are
such that surface and storm water does not accumulate on the Property and does
not drain from the Property across land of adjacent property owners. Except as
shown on the Survey of the New Property dated November 19, 1996, prepared by
Pentacore, and no part of the New Property is within a flood plain and none of
the Improvements create an encroachment over, across or upon any of the New
Property's boundary lines, rights of way or easements, and no building or other
improvement on adjoining land create such an encroachment.
BB. MECHANICS' LIENS. There are no mechanics' or materialmen's
liens, construction liens, alienable bills or other claims constituting or that
may constitute a lien on the Property or any part thereof.
CC. PAYMENT OF LIENS. Borrower shall pay when due all payments and
charges due under or in connection with any liens and encumbrances on and
security interests in the Property or any portion thereof, all rents and charges
under any ground leases and other leases forming a part of the Property, and all
claims and demands of mechanics, materialmen, laborers and others which, if
unpaid, might result in or permit the creation of a lien on the Property or any
portion thereof, and shall cause the prompt (but in no event later than 30 days
after imposition), full and unconditional discharge of all liens imposed on or
against the Property or any portion thereof. Borrower shall do or cause to be
done, at the sole cost of Borrower, everything necessary to fully preserve the
initial priority of the Mortgage. If Borrower fails to make any such payment or
if a lien (other than a Permitted Encumbrance) attaches to the Property or any
portion thereof, Lender may (but shall not be obligated to) make such payment or
discharge such lien and Borrower shall reimburse Lender on demand for all such
Advances.
DD. COMMERCIAL PURPOSE. Borrower holds its interests in the Property
for commercial or investment purposes.
EE. WELL CONSTRUCTION. Borrower completed the construction and
installation of the water well system at the Property in accordance with Section
3.3 of the Other Loan Agreement.
FF. PERMITS. The only permits required for the Construction Work are
grading and dust control permits.
2.2 REPRESENTATIONS REMADE. Borrower warrants and covenants that the
foregoing representations and warranties will be true and shall be deemed remade
as of the date of the Closing. All representations and warranties made herein or
in any other Loan Document or in any certificate or other document delivered to
Lender by or on behalf of Borrower pursuant to or in connection with this
Agreement or any other Loan Document shall be deemed to have been relied upon by
Lender, notwithstanding any investigation heretofore or hereafter made by or on
behalf
<PAGE> 21
of Lender. All such representations and warranties shall survive the making of
the Loan and any or all of the Advances contemplated hereby and shall continue
in full force and effect until such time as the Loan has been paid in full.
ARTICLE 3
---------
GENERAL CONDITIONS OF LOAN
--------------------------
3.1 LOAN DOCUMENTS. It shall be a condition precedent to Lender's
obligation to make the Loan that at or before the Closing, Borrower shall
execute and deliver or cause to be duly executed and delivered to Lender all of
the Loan Documents and that all of the Loan Documents shall be satisfactory to
Lender in form and substance.
3.2 ADDITIONAL REQUIREMENTS. In addition to the Loan Documents,
prior to the Closing, Borrower shall deliver or cause to be delivered to Lender
each of the following, all of which shall be in form and substance satisfactory
to Lender:
A. TITLE POLICY. The Title Policy.
B. SURVEY. A survey of the New Property, certified to Lender and the
Title Company by a surveyor reasonably satisfactory to Lender, which survey
shall contain the minimum detail for land surveys as most recently adopted by
ALTA/ASCM, and which survey shall comply with Lender's survey requirements and
shall contain Lender's standard form certification. Said survey shall show no
state of facts or conditions objectionable to Lender.
C. OPINION. An opinion of Borrower's and each Guarantor's counsel
dated the date of the Closing and relating to such matters with respect to this
Agreement and the transaction contemplated hereby (including usury and the
compliance of the Property and all Loan Documents with all applicable laws) as
Lender may require. By its execution and delivery of this Agreement, Borrower
authorizes and directs such counsel to render such opinion.
D. INSURANCE. The insurance policies described on EXHIBIT G, or
certificates of insurance evidencing the same.
E. UCC SEARCHES. Uniform Commercial Code searches made in the
offices of the Secretary of State of Nevada, the Clark County Recorder, the
Secretary of the Commonwealth of Massachusetts and the Boston City Clerk,
showing no filings relating to (i) the Personal Property, (ii) any fixtures on
the Property, (iii) the Collateral or (iv) the Pledged Collateral (as defined in
the Pledge Agreement), other than those made pursuant to this Agreement or
otherwise acceptable to Lender.
F. CORPORATE DOCUMENTATION. Certified copies of Borrower's articles
of incorporation, bylaws, certificates of existence and good standing for the
State of Nevada, and
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<PAGE> 22
original corporate resolutions and certificates of incumbency with specimen
signatures for the authorized officer.
G. APPRAISAL. An independent appraisal of the New Property from a
state certified appraiser engaged by Lender which indicates the fair market
value of the New Property and is satisfactory to Lender in all respects.
H. ENVIRONMENTAL ASSESSMENT. An environmental site assessment with
respect to the New Property prepared by an environmental consultant satisfactory
to Lender showing no matters unsatisfactory to Lender, a letter from the
consultant preparing the environmental site assessment stating that Lender is
authorized to rely on the information contained therein, and evidence
satisfactory to Lender of said environmental consultant's errors and omissions
insurance coverage.
I. SUBORDINATION OF MANAGEMENT AGREEMENT. A certified copy of the
Management Agreement, together with a subordination of the Management Agreement
whereby the Management Agreement is subordinated to the Mortgage and Lender is
given the right to terminate the Management Agreement or any replacement thereof
upon the occurrence of an Event of Default, without payment of any termination
or other fee or other liability on the part of Lender.
J. LEASES/SUBORDINATION AGREEMENTS AND ESTOPPELS. Certified copies
of all Leases which shall be satisfactory to Lender in its sole discretion,
together with (i) an estoppel certificate executed by the tenant under each
Lease in form and substance satisfactory to Lender, and (ii) a subordination and
attornment agreement executed by each such tenant.
K. INTENTIONALLY DELETED.
L. AGREEMENTS. Certified copies of all operating agreements, service
contracts and equipment leases, if any, relating to Borrower's ownership and
operation of the New Property.
M. ZONING. Evidence satisfactory to Lender as to the zoning
compliance of the New Property.
N. LENDER'S INSPECTION. A satisfactory inspection report of the New
Property prepared by an engineer or other consultant satisfactory to Lender.
O. EQUIFAX REPORT. Lender has obtained an Equifax report on Borrower
and each other Loan Party which is satisfactory to Lender in all respects.
P. OPERATING AND FINANCIAL STATEMENTS. Current financial statements
satisfactory to Lender for Borrower and Guarantor, together with operating and
cash flow statements for the Property.
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<PAGE> 23
Q. INTENTIONALLY DELETED.
R. CONSTRUCTION BUDGET. The final Construction Budget, as approved
by Lender, listing all items of Construction Work and the Direct Costs and
Indirect Costs for each such item.
S. CONSTRUCTION CONTRACTS AND AGREEMENTS. A certified copy of the
General Contract, together with a consent of the General Contractor whereby the
General Contractor consents to the assignment of the General Contract to Lender.
A certified copy of all sub- contracts relating to the Construction Work which
Lender may request. A certified copy of the Architect's Agreement.
T. BONDS FOR CONTRACTS. Performance and payment bonds satisfactory
to Lender, issued by a corporate surety approved by Lender, for each contract or
subcontract of $50,000.00 or more, together with an assignment by Borrower to
Lender of all of Borrower's right, title and interest under said bonds.
U. PLANS AND SPECIFICATIONS. A certified copy of the Plans and
Specifications for the Construction Work.
V. OTHER ITEMS. Such other documents and instruments as Lender may
reasonably require.
ARTICLE 4
---------
FURTHER COVENANTS OF BORROWER
-----------------------------
4.1 Borrower hereby further covenants and agrees with Lender as follows:
A. TAXES AND IMPOSITIONS. (a) Borrower shall pay and discharge all
Impositions prior to delinquency and shall provide to Lender validated receipts
or other evidence satisfactory to Lender showing the payment of such Impositions
within 15 days after the same would otherwise have become delinquent. Borrower's
obligation to pay Impositions pursuant to this Agreement shall include, to the
extent permitted by applicable law, taxes resulting from future changes in law
which impose upon Lender an obligation to pay any property taxes or other
Impositions. Should Borrower default in the payment of any Impositions, Lender
may (but shall not be obligated to) pay such Impositions or any portion thereof
and Borrower shall reimburse Lender on demand for all such Advances.
(b) Borrower shall not be required to pay, discharge or remove any
Imposition so long as Borrower contests in good faith such Imposition or the
validity, applicability or amount thereof by an appropriate legal proceeding
which operates to prevent or stay the collection of such amounts and the sale of
the Property or any portion thereof; provided, however, that prior to the date
on which such Imposition would otherwise have become delinquent Borrower
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shall have (i) given Lender prior written notice of such contest, and (ii) to
the extent such Imposition is not bonded around or otherwise secured to Lender's
satisfaction, in Lender's sole and absolute discretion, deposited with Lender,
and shall deposit such additional amounts as are necessary to keep on deposit at
all times, an amount equal to at least one hundred ten percent (110%) of the
total of (A) the balance of such Imposition then remaining unpaid, and (B) all
interest, penalties, costs and charges accrued or accumulated thereon. Any such
contest shall be prosecuted with due diligence, and Borrower shall promptly pay
the amount of such Imposition as finally determined, together with all interest
and penalties payable in connection therewith. Lender shall have full power and
authority to apply any amount deposited with Lender under this SECTION 4.1.A to
the payment of any unpaid Imposition to prevent the sale or forfeiture of the
Property for non-payment thereof. Lender shall have no liability, however, for
failure to so apply any amount deposited. Any surplus retained by Lender after
payment of the Imposition for which a deposit was made shall be repaid to
Borrower unless an Event of Default shall have occurred, in which case said
surplus may be retained by Lender to be applied to the Indebtedness.
Notwithstanding any provision of this SECTION 4.1.A to the contrary, Borrower
shall pay any Imposition which it might otherwise be entitled to contest if, in
the sole and absolute discretion of Lender, the Property is in jeopardy or in
danger of being forfeited or foreclosed. If Borrower refuses to pay any such
Imposition, Lender may (but shall not be obligated to) make such payment and
Borrower shall reimburse Lender on demand for all such Advances.
(c) Notwithstanding anything contained herein to the contrary, in
the event the Property is not taxed for ad valorem tax purposes without
including any other parcel or parcels and the ad valorem taxes with respect to
any such other parcel or not paid prior to delinquency, then Borrower shall
immediately (i) pay the delinquent taxes in full and (ii) within ninety (90)
days after the date on which such ad valorem taxes become delinquent, cause a
tax division to be effected with respect to the Property so that it is taxed
without inclusion of any other parcels.
B. DEPOSITS. Borrower shall deposit with Lender (or such agent of
Lender as Lender may designate in writing to Borrower from time to time),
monthly, on the due date of each monthly installment under the Note, 1/12th of
the annual charges (as estimated by Lender) for all Impositions. Upon request
from Lender, Borrower shall make such monthly deposits for rent and insurance
premiums with respect to the Property. If required by Lender, Borrower shall
also deposit with Lender, simultaneously with such monthly deposits and/or the
execution of this Agreement, a sum of money which together with such monthly
deposits will be sufficient to make the payment of each such charge at least 30
days prior to the date initially due. Should such charges not be ascertainable
at the time any deposit is required to be made, the deposit shall be made on the
basis of the charges for the prior year or payment period, as reasonably
estimated by Lender. When the charges are fixed for the then current year or
period, Borrower shall deposit any deficiency on demand. Any interest earned on
the sums held by Lender pursuant to this SECTION 4.1.B shall be added to said
sums and shall be taxable to Borrower, and shall, so long as no Event of Default
shall have occurred, be disbursed by Lender for the payment of the applicable
Imposition or insurance premium. Should an Event of Default occur, the funds so
deposited may be applied in payment of the charges for which such funds shall
have been deposited or to the payment of the Indebtedness or any other charges
affecting the Property, as Lender in its sole and absolute discretion may
determine, but no such application shall be deemed to have been made
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by operation of law or otherwise until actually made by Lender as herein
provided. Borrower shall provide Lender with bills and all other documents
necessary for the payment of the foregoing charges at least 30 days prior to the
date on which each payment thereof shall first become due.
C. MORTGAGE TAXES. Borrower shall pay any and all taxes, charges, filing,
registration and recording fees, excises and levies imposed upon Lender by
reason of their respective interests in, or measured by amounts payable under,
the Note, this Agreement, the Mortgage or any other Loan Document (other than
income, franchise and doing business taxes), and shall pay all stamp taxes and
other taxes required to be paid on the Note, this Agreement, the Mortgage or the
other Loan Documents. If Borrower fails to make such payment within five days
after notice thereof from Lender, Lender may (but shall not be obligated to) pay
the amount due, and Borrower shall reimburse Lender on demand for all such
Advances. If applicable law prohibits Borrower from paying such taxes, charges,
filing, registration and recording fees, excises, levies, stamp taxes or other
taxes, then Lender may declare the Indebtedness then unpaid to be due and
payable within ninety (90) days after written notice thereof from Lender. In
such event, no prepayment fee shall be charged.
D. NO LIENS. Except for Permitted Encumbrances, the Property shall be kept
free and clear of all liens, security interests and encumbrances of every nature
or description (whether for taxes or assessments, or charges for labor,
materials, supplies or services or any other thing). Other than the Permitted
Encumbrances, Borrower will not cause or permit any instrument or document
affecting the Property to be recorded without Lender's prior written consent
thereto.
E. CONDITION OF PROPERTY. Borrower shall keep and maintain the Property in
good order, condition and repair and shall make, as and when the same shall
become necessary, all structural and non-structural, exterior and interior,
ordinary and extraordinary, foreseen and unforeseen, repairs and maintenance
necessary or appropriate. Borrower shall suffer or commit no waste upon the
Property or any portion thereof. Borrower shall, at its expense, promptly
repair, restore, replace or rebuild any part of the Property which may be
damaged or destroyed by any casualty or as the result of any taking under the
power of eminent domain to the extent permitted given the size, scope and extent
of the taking. Borrower shall cause all repairs, maintenance, rebuilding,
replacement or restoration to be (in the opinion of Lender) of substantially
equivalent quality. Borrower shall not cause, suffer or permit the construction
of any material buildings, structures, or improvements on the Property without
the prior written consent of Lender to the proposed construction as well as to
the plans and specifications relating thereto. None of the buildings,
structures, or improvements erected or located on the Property shall be removed,
demolished or substantially or structurally altered in any material respect
without the prior written consent of Lender.
F. PERSONAL PROPERTY. All of the Personal Property is owned by Borrower in
Borrower's name.
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G. COMPLIANCE. Borrower shall comply with all (i) building, zoning, fire,
health, environmental, disability and use laws, codes, ordinances, rules and
regulations, (ii) covenants and restrictions of record and (iii) easements which
are in any way applicable to the Property, the Improvements or any part thereof
or to the construction of any improvements thereon and the use or enjoyment
thereof.
H. PERFORMANCE OF AGREEMENTS. Borrower shall duly and punctually perform,
observe and comply with all of the terms, provisions, conditions, covenants and
agreements on its part to be performed, observed and complied with hereunder and
under (i) the other Loan Documents, (ii) the Permitted Encumbrances, and (iii)
all agreements entered into or assumed by Borrower in connection with the
Property, and will not suffer or permit any default or Event of Default (giving
effect to any applicable notice requirements and cure periods) to exist under
any of the foregoing.
I. LENDER'S EXPENSES. Borrower shall pay, on demand by Lender, all
expenses, charges, costs and fees in connection with the origination,
negotiation and documentation of the Loan, including all registration and
recording fees, insurance consultant fees, if any, environmental consultant
fees, costs of appraisals, costs of engineering reports, fees and disbursements
of all counsel (both local and special) for Lender, escrow fees, cost of
surveys, fees and expenses of Lender's Consultant or others employed by Lender
to inspect the Property from time to time, and travel expenses incurred by
Lender and Lender's agents and employees in connection with the Loan. At
Closing, Lender may pay directly from the proceeds of the Loan each of the
foregoing expenses.
J. INTENTIONALLY LEFT BLANK.
------------------------
K. FINANCIAL STATEMENTS. (a) Borrower shall provide to Lender (i) annual
audited, consolidated and consolidating financial statements of Guarantor
(including Borrower) and all such financial statements shall be prepared in
accordance with generally accepted accounting principles, consistently applied
and shall be prepared by a certified public accountant reasonably satisfactory
to Lender (provided that if Guarantor transfers any portion of the ownership
interest in Borrower pursuant to SECTION 4.1.M., then Borrower must provide to
Lender separate annual audited financial statements of Borrower), (ii) monthly
and quarterly cash flow and operating statements for the Property prepared by
and certified by Borrower, (iii) such other financial information as Lender may
from time to time reasonably request, and (iv) copies of all Federal income tax
returns for Borrower and each Guarantor certified by Borrower to be true and
correct. All such financial statements, cash flow statements and operating
statements shall be delivered to Lender as soon as possible but in the case of
quarterly financial statements, not later than forty-five (45) days after the
close of each quarter, and in the case of annual financial statements, not later
than ninety (90) days after the close of each fiscal year. Said copies of
Borrower's and each Guarantor's Federal income tax returns shall be provided to
Lender within thirty (30) days following their filing with the Internal Revenue
Service.
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(b) Lender may, at Borrower's sole cost and expense and following
written notice to Borrower, require that any or all of the foregoing annual
financial statements be prepared on an "audited" basis, so called.
L. MANAGEMENT. Borrower shall provide competent and responsible management
for the Property by a management company, and pursuant to a written management
agreement, satisfactory to Lender. Borrower shall not enter into any management
agreement or arrangement with any other party with respect to the management of
the Property without Lender's prior written consent. Any management agreement
must contain subordination and termination provisions acceptable to Lender.
Lender hereby consents to the Management Agreement. Borrower shall not modify,
amend or terminate any approved management agreement without Lender's prior
written consent. Borrower shall provide Lender with written notice of the
occurrence of any event of default or condition which with the giving of notice
or passage of time, or both, would constitute an event of default under the
Management Agreement or any subsequent management agreement which Lender may
have approved. The management fee paid to any manager of the Property shall not
be greater than four percent (4%) of the Gross Revenues.
M. DUE ON SALE OR ENCUMBRANCE. Borrower shall not and shall not permit
others to convey, assign, sell, mortgage, encumber, pledge, hypothecate, grant a
security interest in, grant options with respect to, or otherwise dispose of
(directly or indirectly, voluntarily or involuntarily, by operation of law or
otherwise, and whether or not for consideration or of record) all or any portion
of any legal or beneficial interest (a) in all or any portion of the Property or
the Leases; (b) if Borrower is a corporation, in the stock interest of Borrower
or any other beneficial owner of all or any portion of the Property; (c) in
Borrower (or any trust of which Borrower is a trustee); or (d) if Borrower is a
limited or general partnership, joint venture, trust, nominee trust, tenancy in
common or other unincorporated form of business association or form of
ownership, in any person, firm or entity having a direct or indirect legal or
beneficial ownership interest in Borrower, including any legal or beneficial
interest in any general partner of Borrower or in any shares of any corporate
general partner of Borrower. Any such transfer or encumbrance, as aforesaid,
shall be deemed to be an Event of Default hereunder, and shall entitle Lender to
declare the Loan immediately due and payable, together with any applicable
Prepayment Fee. Notwithstanding the foregoing, up to twenty-five percent (25%),
in the aggregate, of the ownership interest in Borrower may be transferred,
subject to the security interest set forth in the Pledge Agreement, with the
prior written approval of Lender, such approval not to be unreasonably withheld
or delayed. Any transferee pursuant to the preceding sentence shall execute any
documentation reasonably required by Lender to evidence and confirm the security
interest set forth in the Pledge Agreement.
N. ESTOPPEL CERTIFICATES. Within ten (10) Business Days following a
request by Lender, Borrower shall provide to Lender a duly acknowledged written
statement confirming the amount of the outstanding Indebtedness, the terms of
payment and maturity date of the Note, the date to which interest has been paid,
and whether any offsets or defenses exist against the Indebtedness. If any such
offsets or defenses are alleged to exist, the nature thereof shall be set forth
in detail.
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O. LEASING. Borrower shall not, without the prior written consent of
Lender, enter into any Lease. In the event Borrower desires to enter into a
Lease, Borrower shall submit the proposed Lease to Lender for Lender's prior
written approval. Borrower shall not modify, amend or terminate (except upon a
default by a tenant) any Leases affecting any part of the Property. Borrower
shall not accept any rental payment under any Lease more than one (1) month in
advance of its due date.
P. CONDEMNATION. Borrower shall not enter into any agreement for the
taking of the Property or any part thereof with anyone authorized to acquire the
same in or by condemnation proceedings, or by the exercise of any power of
eminent domain, unless and until Lender shall have consented thereto in writing.
Q. LITIGATION. Borrower shall promptly provide Lender with written notice
of any litigation in which Borrower, any other Loan Party or the Property is
named as defendant which is not fully covered by insurance for which the insurer
has assumed the defense and acknowledged coverage, and Borrower shall provide
Lender with copies of all pleadings or orders filed or entered therein or with
respect thereto.
R. PAR FUNDS. If the DSCR on any Calculation Date is less than 1.4:1, then
Borrower shall, in addition to the regularly scheduled monthly payments of
principal and interest due under the Loan, deposit with Lender on or before the
fifth day of each month 100% of the Net Cash Flow for the immediately preceding
Loan Month. Borrower shall make and Lender shall hold all such payments of PAR
Funds in accordance with the following terms and conditions:
(i) All PAR Funds held by Lender upon the Maturity Date or upon the
occurrence of an Event of Default may be applied by Lender to the
repayment of the Loan in accordance with the terms and conditions of the
Note.
(ii) Provided that no Event of Default or Incipient Default exists,
if, on any Calculation Date, the DSCR is greater than or equal to 1.4:1,
Lender shall return to Borrower the PAR Funds then held by Lender, and the
obligation of Borrower to deposit the PAR Funds with Lender shall be
suspended until any subsequent Calculation Date when the DSCR is less than
1.4:1.
(iii) If Borrower is required to make payments of PAR Funds pursuant
to this SECTION 4.1.R for twelve (12) consecutive Loan Months, Lender may,
without charging any Prepayment Fee (as defined in the Note), on the first
day of such twelfth consecutive Loan Month apply all PAR Funds to the
repayment of the Loans in inverse order of maturity. Thereafter, all PAR
Funds may be applied by Lender upon receipt to the repayment of the Loans,
as aforesaid; provided, however, if on any subsequent Calculation Date the
DSCR shall be equal to or greater than 1.4:1, the obligation of Borrower
to deposit the PAR Funds with Lender shall be suspended until any
Calculation Date thereafter when the DSCR is less than 1.4:1. Lender shall
have the right to determine how PAR Funds are applied between the Loans.
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(iv) All interest accrued on the PAR Funds shall be added to the PAR
Funds and shall be disbursed in accordance with the foregoing terms and
conditions. All interest earned on the PAR Funds shall be taxable to
Borrower.
(v) This SECTION 4.1R shall supersede SECTION 4.1R of the Other Loan
Agreement.
S. APPLICATION OF GROSS REVENUES. Borrower shall promptly apply all Gross
Revenues to the payment of all current and past due Operating Expenses and to
the repayment of all sums currently due or past due under the Loans, including
all payments of Capital Reserve payments and real estate tax escrow payments
pursuant to SECTION 4.1.B of this Agreement.
T. CAPITAL RESERVE. On the first day of each Loan Month, Borrower shall
deposit with Lender two percent (2%) of the Gross Revenues for the preceding
Loan Month. So long as no Event of Default or Incipient Default shall exist,
Lender shall make said funds available to Borrower on the following terms and
conditions: (i) all Capital Reserve funds released by Lender to Borrower shall
be used to reimburse Borrower for the reasonable expenses actually incurred and
paid by Borrower for the acquisition, repair, or replacement of furniture,
fixtures or equipment necessary for the management and operation of the Property
or other capital improvements to the golf course under an annual budget approved
by Lender for said acquisitions, repairs, replacements and improvements; (ii)
all requests by Borrower for a disbursement of Capital Reserve funds shall be in
writing and shall not be made more frequently than once per Loan Month; (iii)
each such request for a disbursement shall be in an amount of not less than
$10,000.00; and (iv) Borrower shall provide Lender with paid receipts covering
the expenses for which Borrower seeks reimbursement from the Capital Reserve
funds. Lender shall have the right, at Lender's sole discretion, to disburse
Capital Reserve funds directly to Borrower from time to time prior to the
payment of the applicable expenses by Borrower, but such disbursements shall not
obligate Lender to make subsequent advances of Capital Reserve funds prior to
payment of the applicable expenses. Prior to the disbursement of any Capital
Reserve funds, Borrower shall also provide Lender with evidence satisfactory to
Lender that Borrower has accepted possession of said items and commenced using
the same in the management and operation of the Property. This SECTION 4.1T
shall supersede SECTION 4.1T of the Other Loan Agreement.
U. FUNDS DEPOSITED WITH LENDER. All funds of Borrower which are deposited
with Lender pursuant to this Agreement or any other Loan Document may be
commingled with Lender's general funds. All such funds shall be deposited in one
(1) or more interest-bearing accounts. Any interest which accrues on said funds
shall, at Lender's sole option, be paid to Borrower or be held as part of the
applicable funds being held by Lender for the same purpose for which the
principal sum of said funds is being held by Lender. To secure all of Borrower's
obligations to Lender under the Loan Documents, Borrower hereby grants to Lender
a security interest in all funds now or hereafter deposited with Lender or
otherwise in Lender's possession, custody or control pursuant to the provisions
of this Agreement or any other Loan Document, including all funds deposited
pursuant to SECTIONS 4.1.B, 4.1.R and 4.1.T. So long as any Event of Default
exists, Lender shall have such rights with respect to such funds and any
interest accrued thereon as are provided by applicable law and may apply such
funds towards the satisfaction of
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Borrower's obligations hereunder or under any other Loan Documents. Without
limiting any of the foregoing provisions, at the request of Lender, Borrower
shall execute and deliver from time to time such documents as may be necessary
or appropriate, in Lender's sole judgment, to assure Lender that it has a first
priority perfected security interest in and lien on all funds deposited pursuant
to SECTIONS 4.1.B, 4.1.R and 4.1.T, including the creation of a deposit account
in the name of Borrower in a banking institution approved by Lender either
within or outside of the State of Connecticut, as directed by Lender, into which
any or all of such funds will be deposited and maintained, subject to the rights
of Lender with respect to such funds as provided herein.
V. AUDIT AND INSPECTION BY LENDER. Lender shall have the right, and, upon
notice to Borrower, Borrower shall permit and shall cooperate with Lender in
arranging for, at any reasonable time and from time to time, Lender and its
representatives (i) to inspect the Property, and (ii) to review and audit all
books, records and financial statements of Borrower (including all supporting
data and any other records from which the Net Cash Flow may be determined); and
Borrower shall make all such books of account and records available for such
examination at the office where the same are regularly maintained. Lender shall
have the right to copy, duplicate and make abstracts from such books and records
as Lender may require. If any audit by Lender discloses that payments of Net
Cash Flow which should have been made by Borrower exceeds the sums which were
actually made by Borrower, then Borrower shall, within ten (10) days following
written notice from Lender, pay to Lender the difference between said amounts,
together with interest on such amount at the Default Rate from the date such
amounts should have been paid to the date of post-audit payment. Borrower shall
pay Lender's costs and expenses incurred in connection with no more than one (1)
such audit per year. Borrower acknowledges and agrees that (i) all of such
audits, inspections and reports shall be made for the sole benefit of Lender,
and not for the benefit of Borrower or any third party, and neither Lender nor
Lender's auditors or inspectors or any of Lender's representatives, agents or
contractors assumes any responsibility or liability (except to Lender) by reason
of such audits, inspections or reports, (ii) Borrower will not rely upon any of
such audits, inspections or reports for any purpose whatsoever, and (iii) the
performance of such audits, inspections and reports will not constitute a waiver
of any of the provisions of this Agreement or any other Loan Document or any of
the obligations of Borrower hereunder or thereunder. Borrower further
acknowledges and agrees that neither Lender nor Lender's inspector,
representatives, agents or contractors shall be deemed to be in any way
responsible for any matters related to design or construction of the
Improvements.
W. APPRAISAL. At any time during the term of the Loans, Borrower shall
cooperate with Lender and use reasonable efforts to assist Lender in obtaining
an appraisal of the Property. Such cooperation and assistance from Borrower
shall include but not be limited to the obligation to provide Lender or Lender's
appraiser with the following: (i) reasonable access to the Property, (ii)
current and budgeted income and expense statements for the prior three years,
(iii) a site plan and survey of Property, (iv) the building plans and
specifications, including typical elevation and floor plans, (v) a photocopy of
the ground lease conveying the leasehold interest in the Property to Borrower,
together with the legal description of the Property, (vi) the current and prior
year real estate tax bills, (vii) a detailed list of past and scheduled capital
improvements and the costs thereof, (viii) a summary of the then current
ownership entity, (ix) all environmental reports and other applicable
information relating to the Property, and (x) copies of all recent
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appraisals and property description information or brochures, including
descriptions of amenities and services relating to the Property. The appraiser
performing any such appraisal shall be engaged by Lender, and Lender shall be
responsible for any fees payable to said appraiser in connection with an
appraisal of the Property.
X. ADDITIONAL RESERVE. Commencing with the first day of the month
immediately following the month in which the Completion Date occurs and
continuing until the Loans are paid in full, Borrower shall deposit monthly into
separate, special insured accounts with a financial institution approved by
Lender (the "SPECIAL ACCOUNT") an amount equal to two percent (2%) of the annual
Gross Revenues, to be used for future Improvements to the Property which are
approved by Lender in writing. Borrower's obligation to fund the Additional
Reserve shall be suspended at such time as the balance in the Special Account is
at least $500,000.00, but such obligation shall recommence if at any time the
balance in the Special Account falls below $500,000.00. Upon establishment of
the Special Account, Borrower shall pledge the Special Account to Lender as
additional collateral for the Loans pursuant to such Pledge Agreements as Lender
may require.
Y. ENVIRONMENTAL CONDITIONS. On or before February 1, 1997, Borrower shall
cause the dumped debris and tires located on the New Property, as cited in the
Phase One Environmental Site Assessment dated November 1, 1996 and prepared by
Western Technologies, Inc. ("WTI"), to be removed from the New Property. On or
before February 15, 1997, Borrower shall deliver to lender a letter executed by
WTI and stating that such debris and tires have been removed from the New
Property.
ARTICLE 5
---------
AGREEMENT TO LEND
-----------------
5.1 AGREEMENT TO LEND. On the basis of the covenants, agreements and
representations of Borrower contained in, and subject to the terms and
conditions set forth in, this Agreement and the other Loan Documents, Lender
agrees to lend to Borrower the principal sum of $5,000,000.00. The proceeds of
the Loan shall be disbursed by Lender for (i) the payment of certain loan
closing costs approved by Lender, (ii) the return of equity to Borrower, and
(iii) up to $3,794,636.08 for the payment of a portion of the cost of the
Construction Work. In addition, Lender may disburse up to $1,000,000.00 to
Borrower subject to the terms and conditions of SECTION 5.3 below. Borrower
shall use the Loan proceeds for the purpose for which they were advanced and for
no other purpose.
5.2 DISBURSEMENTS. Subject to the satisfaction of the terms and conditions
herein contained, the initial advance of $205,363.92 shall be disbursed at
Closing.
5.3 EARNOUT ADVANCES. Provided that (i) no Event of Default or Incipient
Default has occurred, (ii) the Completion of Construction Work occurs on or
before the Completion Date, and (iii) the Net Cash Flow was not less than
$750,000.00 for the immediately preceding twelve (12)
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month period, then Lender shall advance up to $1,000,000.00, upon and subject to
the following terms and conditions:
A. To the extent available on each Calculation Date, and upon the
written request of Borrower, Lender shall advance to Borrower an amount (each
such advance being referred to herein as an "EARNOUT ADVANCE"), which would
cause the DSCR on the date of such advance (inclusive of the requested Earnout
Advance) to be not less than 1.5:1. For the purposes of this SECTION 5.3.A, in
determining the DSCR (i) a minimum interest rate of eleven percent (11%) per
annum shall be used, and (ii) debt service shall be determined as of the date of
such advance as if the requested amount of the Earnout Advance had been made.
B. Lender shall have no obligation to fund any Earnout Advances (i)
prior to the Completion Date, or (ii) from and after the expiration of the
thirtieth (30th) Loan Month following the Closing.
C. Earnout Advances shall be made no more frequently than quarterly.
Each Earnout Advance must be in a minimum amount of not less than $100,000.00,
except the last Earnout Advance which may be in an amount up to the remaining
balance.
D. Borrower shall pay all costs and expenses incurred by Lender in
connection with each Earnout Advance.
E. This SECTION 5.3 shall supersede Section 5.3 of the Other Loan
Agreement. Section 5.3 of the Other Loan Agreement is hereby terminated, and
Borrower shall have no right to receive additional advances on the Other Loan.
5.4 EXTENSION OPTION. Provided that (i) no Event of Default or Incipient
Default exists, (ii) there has not occurred during the twelve (12) immediately
preceding Loan Months either (X) a reduction in the Net Cash Flow of more than
twenty percent (20%), or (Y) a reduction in Gross Revenues of more than thirty
percent (30%), and (iii) the DSCR for the twelve (12) immediately preceding Loan
Months is equal to or greater than 1.40:1, then Borrower may, upon the delivery
of at least ninety (90) days' prior written notice to Lender, elect to extend
the term of the Loans for one (1) additional term of five (5) years (the
"EXTENDED TERM"). The requirements described in the preceding sentence must be
satisfied both on the date of the delivery of an extension notice by Borrower to
Lender and on the commencement date of the Extended Term. On or before the
commencement date of the Extended Term, Borrower shall pay to Lender an
extension fee in an amount equal to one-half of one percent (.5%) of the then
outstanding principal balance of the Loans (the "EXTENSION FEE"). Upon
satisfaction of the requirements set forth above, including, without limitation,
Lender's receipt of the Extension Fee, the Loans shall be extended for the
Extended Term on the same terms and conditions contained in the Loan Documents
except that Borrower shall have no further right to extend the term of the Loans
and the Interest Rate for each of the Loans shall be either the Base Rate or the
Fixed Rate, as designated by Borrower in a written notice delivered to Lender at
least thirty (30) days prior to the first day of the Extended Term. If Borrower
fails to designate the Interest Rate pursuant to the immediately preceding
sentence, Lender shall select the Interest Rate for the Extended Term. Borrower
acknowledges
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and agrees that the Prepayment Fee (as defined in the Notes) shall apply during
the Extended Term pursuant to and in accordance with the terms and provisions of
the Notes. Borrower agrees to execute any additional documentation required by
Lender in connection with any Extended Term.
ARTICLE 6
---------
CONSTRUCTION ADVANCES
---------------------
6.1 A. AMOUNTS OF ADVANCES. So long as no Event of Default or Incipient
Default exists, Lender shall, on the terms and conditions set forth below, make
Construction Advances to Borrower of up to Three Million Seven Hundred
Ninety-four Thousand Six Hundred Thirty-six and 08/100 Dollars ($3,794,636.08)
to pay a portion of Borrower's Direct Costs and Indirect Costs incurred in
connection with the completion of the Construction Work. The Construction
Advances shall be made by Lender in accordance with the terms and conditions of
SECTION 6.2.
B. ADVANCES FOR DEBT SERVICE. At all times prior to the Completion
of Construction Work and after the occurrence of an Event of Default, Lender
may, with or without Borrower having made a Request for Advance, make
Construction Advances for purposes of paying Lender all interest and other sums
which are then due and payable from Borrower to Lender under this Agreement and
any other Loan Document.
C. RESERVES OF LOAN PROCEEDS. Anything contained herein to the
contrary notwithstanding, Lender may, at its option, establish reserves from the
undisbursed portion of the Loan in such amounts which, in Lender's sole opinion,
are necessary for the Completion of Construction Work and sufficient to pay or
satisfy, in whole or in part, (i) any lien or claim prejudicial to the liens or
security interests of Lender, (ii) any expenditure or allocation of funds shown
on the Construction Budget, and (iii) interest yet to accrue on the Loan prior
to the Completion of Construction Work. The aggregate amount of any such
reserves shall be deducted from the proceeds of the Loan otherwise available for
Advance in accordance with this Agreement, and any such reserved funds, when
advanced by Lender for any of the purposes set forth in the Loan Documents,
shall be deemed to be proceeds of the Loan advanced under this Agreement,
whether or not advanced to Borrower.
D. RIGHT TO REQUIRE DEPOSITS. In the event Lender, in its reasonable
discretion, shall determine that the actual Direct Costs and Indirect Costs
required for the Completion of Construction Work will exceed the Loan proceeds
available for Advance therefor hereunder, including retainage, Lender may, at
its option, refuse to make or approve any further Advances until such time as
Borrower has made a cash deposit with Lender in an amount equal to such excess.
Such deposited amounts shall be held by Lender in accordance with SECTION 4.1.U
and shall be advanced by Lender in accordance with the terms and conditions of
this ARTICLE 6 prior to any other Construction Advances by Lender. The deposit
requirements of this paragraph are in addition to the deposit or escrow
requirements in the Mortgage or in the other Loan Documents.
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6.2 THE CONSTRUCTION ADVANCES. Lender shall make each Construction
Advance within five (5) Business Days following the satisfaction, in the sole
discretion of Lender, of each of the following conditions:
A. Lender shall have no obligation to make any Construction Advances
after the end of the Construction Period;
B. No Construction Advance except the final Construction Advance
shall be made in an amount of less than $100,000;
C. There shall be no more than one Construction Advance per month;
D. Borrower shall have submitted to Lender a completed Request for
Advance;
E. Borrower shall have delivered to Lender all mechanics' lien
waivers deemed necessary by Lender and the Title Company for services and
materials provided in connection with the Construction Work through the date of
the applicable Construction Advance;
F. General Contractor, as required by Lender, shall have certified
to Lender in the form attached hereto as EXHIBIT "H" that the requested
Construction Advance is for the payment of construction costs incurred in
connection with Construction Work which has been completed in accordance with
the Plans and Specifications, and General Contractor shall have certified to
Lender as to what percentage of the Construction Work, in the aggregate, has
been completed as of the date of the applicable Request for Advance;
G. Borrower shall provide Lender with true and correct copies of all
invoices and bills for Direct Costs and Indirect Costs incurred in connection
with the then completed Construction Work, and there shall be no material
deviation from the Construction Budget (except with Lender's prior written
approval) in connection with the Construction Work which has been completed to
date. Specifically, no Advance (or Advances, as appropriate) for a specific line
item in the Budget, including any retainage for said line item, will exceed the
amount of said line item in the Construction Budget plus any unused general
contingency available in the Construction Budget. For purposes of this SECTION
6.2, costs shall be deemed to have been "incurred" by Borrower at the following
times: (i) Direct Costs -- when the labor has been performed or the materials
have been supplied and incorporated into the Property, payment therefor has been
requested by the contractor or supplier thereof, and such contractor or supplier
is entitled thereto; and (ii) Indirect Costs -- when such costs are due and
payable (or have been paid by Borrower) and the services relating thereto have
been rendered or the value thereof has been received by Borrower;
H. All Direct Costs and Indirect Costs are to be certified by
Borrower in accordance with the Request for Advance and verified by Lender as
having been incurred. Verification of the monthly progress of the Construction
Work, the Direct Costs and the Indirect Costs which have been incurred by
Borrower, and the estimated total Direct Costs and Indirect Costs of Completion
of Construction Work may be made by Lender or Lender's Consultant in its
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reasonable judgment, as long as such verification occurs within five (5)
Business Days after Lender's receipt of a Request for Advance. All Direct Costs
and Indirect Costs shall be verified and approved by Lender;
I. The undisbursed portion of the Loan (excluding the 10% retainage
provided for in the next paragraph) shall be sufficient, in Lender's sole
discretion, to pay all remaining Direct Costs and Indirect Costs in connection
with the Completion of Construction Work, including the payment of all sums owed
to Lender prior to the Completion of Construction Work, or Borrower shall have
deposited with Lender pursuant to SECTION 6.1.D such additional funds as Lender
deems necessary, together with said undisbursed portion of the Loan, to pay all
remaining Direct Costs and Indirect Costs in connection with the Completion of
Construction Work;
J. If the Request for Advance includes a request to pay Direct
Costs, Borrower shall be entitled to receive in respect of said Direct Costs an
amount equal to ninety percent (90%) of the value of all Construction Work which
has been completed and for which an Advance has been requested, less amounts
theretofore advanced by Lender to pay for such Direct Costs. Lender shall have
no obligation to advance any sums for materials stored on the Property or
elsewhere;
K. Lender may make Construction Advances (i) payable directly to
Borrower, or (ii) payable jointly to Borrower and to the applicable contractor
or supplier;
L. Borrower shall be deemed to have remade, as of the date of each
Advance, each and every representation and warranty made by Borrower in this
Agreement and in every other Loan Document, and every such representation and
warranty shall be true and correct at the time of each Advance;
M. Borrower shall have delivered to Lender an endorsement to
Lender's policy of title insurance insuring the Mortgage, which endorsement: (i)
insures Lender against unfiled mechanic's liens and construction liens; (ii)
increases the coverage under said policy to the full principal amount then
advanced under the Loan; (iii) insures that, since the date of the policy or the
most recent endorsement to the policy, there has been no change in the status of
title to the Property (except for the lien of unpaid taxes, not yet due and
payable); and (iv) changes the effective date of the policy to the date of the
advance being made by Lender;
N. Borrower shall have provided Lender with (i) evidence
satisfactory to Lender that the Construction Work complies with all building,
zoning and other laws and governmental codes, rules and regulations, (ii) all
necessary licenses, permits, approvals and consents required by any Governmental
Authority for the use, occupancy and operation of the Premises, as altered by
the Construction Work, and (iii) evidence satisfactory to Lender that all
Construction Work completed on the date of the Request for Advance has been
inspected and approved by each Governmental Authority and by each other person
or entity (including any tenants) having the right to inspect and approve the
Construction Work;
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O. Borrower shall have provided Lender with such other information
and material relating to the Construction Work as Lender reasonably requests;
P. Borrower shall have paid all reasonable and customary expenses
incurred by Lender in making or causing to be made inspections of the Property
for the purpose of determining the stage of construction progress at any time,
and Lender shall have received (within five (5) Business Days after Lender's
receipt of a Request for Advance) a written report from Lender's Consultant with
respect to the applicable Request for Advance stating: (i) that, in the opinion
of Lender's Consultant, all Change Orders and modifications or amendments to the
Plans and Specifications, the Construction Budget or the Construction Schedule
required hereby to be approved by Lender are satisfactory to Lender's
Consultant; (ii) that, in the opinion of Lender's Consultant, the Construction
Work theretofore completed has been completed in accordance with the Plans and
Specifications; (iii) what percentage of the Construction Work, in the
aggregate, has been completed as of the date of the applicable Request for
Advance; (iv) the extent to which, if any, the undisbursed Advances for the
Direct Costs and Indirect Costs not yet incurred but necessary for Completion of
Construction Work are not sufficient to permit Completion of Construction Work
in accordance with the Construction Schedule; and (v) whether Completion of
Construction Work can, in Lender's Consultant's opinion, be completed prior to
the Completion Date;
Q. Except as provided in SECTION 6.3.C, no Change Orders shall be
made to the Plans and Specifications or the Construction Budget without
obtaining Lender's prior written consent;
R. In addition to all other conditions to a Construction Advance,
the final Construction Advance shall not be made until forty-five (45) days
after the filing by the General Contractor or Borrower (if Borrower is permitted
to file the same under Nevada law) of a Notice of Completion in the public
records of Clark County, Nevada, provided that prior to the expiration of said
45-day period, each of the following has occurred: (i) General Contractor shall
have certified to Lender in form satisfactory to Lender that the Construction
Work has been completed in accordance with the Plans and Specifications; (ii)
Lender has received a final as-built survey which complies with all of Lender's
survey requirements; (iii) Lender has received a final and complete set of
as-built plans and specifications for the Improvements, (iv) Lender shall have
received a final and comprehensive endorsement to the Title Policy which
includes the deletion of the "pending disbursements" paragraph in the Title
Policy; (v) no liens have been filed with respect to the Construction Work; (vi)
Lender shall have received a written report from Lender's Consultant confirming
that the Construction Work has been completed in accordance with the Plans and
Specifications; and (vii) all other conditions to Construction Advances set
forth in this Section 6.2 shall have been satisfied; and
T. Borrower shall have satisfied such other conditions to any
Construction Advance which Lender may reasonably require or impose.
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6.3 Construction of Construction Work.
---------------------------------
A. CONSTRUCTION. Borrower shall: (i) cause the construction of the
Construction Work to be completed in a good and workmanlike manner and strictly
in accordance with the Plans and Specifications; (ii) cause the Construction
Work to be completed before the end of the Construction Period; (iii) pursue the
Construction Work diligently to completion; (iv) after commencement of the
Construction Work, not permit cessation of said Construction Work for a period
in excess, in the aggregate, of three (3) Business Days without the prior
written consent of Lender; and (iv) complete the Construction Work and construct
the Improvements entirely on the Premises and so as not to unlawfully encroach
upon any easement, right-of-way or land of others, and so as to not violate any
set-back lines, applicable public or private use restrictions, other
restrictions or regulations, or any requirement of any Governmental Authority.
Notwithstanding the foregoing, such three (3) Business Day period shall be
extended, but only up to an aggregate maximum of thirty (30) days, for any
delays which are beyond the control of Borrower, including delays due to
strikes, acts of God, inability to obtain labor or materials, inability to
secure governmental approvals or permits, governmental restrictions, civil
commotion, fire or similar causes.
B. COMPLIANCE WITH LAWS. Borrower shall cause the Construction Work
to be constructed in accordance with all applicable requirements of any
Governmental Authority having jurisdiction with respect thereto.
C. COMPLIANCE WITH PLANS. Borrower shall not deviate from the Plans
and Specifications as approved by Lender in any respect, or issue any change
orders without the prior written consent of Lender. Notwithstanding the
foregoing, Borrower, without obtaining Lender's prior written consent, may issue
any single change order involving an expenditure of less than $5,000.00,
provided that the aggregate of all such change orders do not exceed $50,000.00,
and provided further that (i) Borrower provides Lender monthly during the course
of the Construction Work a written summary of all change orders made during the
preceding month, and (ii) in no event may any such change order cause Borrower
to exceed any line item in the Construction Budget.
D. MAINTENANCE OF BOND. At all times prior to the Completion of
Construction Work, Borrower shall cause performance and payment bonds to be
maintained in full force and effect in accordance with the requirements of this
Agreement. In the event that any surety asserts that it has been discharged from
its obligations under any such bond, whether or not such assertion shall be
meritorious, Borrower shall, unless such discharge has been approved by Lender
in writing, promptly either (i) cause such surety to reaffirm its obligations
under such bond, or (ii) cause a new performance or payment bond to be issued,
in form and substance and with a surety company satisfactory to Lender.
E. CONSTRUCTION CONTRACTS. Borrower shall perform faithfully, or
cause the contracting party thereunder to perform, all of its obligations under
the General Contract and all sub-contracts relating to the Construction Work,
and Borrower shall not enter into any additional contracts or any amendments
thereof without first obtaining the written approval of Lender.
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6.4 OTHER REMEDIES OF LENDER. Upon the occurrence of an Event of
Default, in addition to any other remedies available to Lender by the terms of
this Agreement or any other Loan Document or by law, Lender may at its sole
discretion: (a) complete the Construction Work in accordance with the Plans and
Specifications (with such changes as Lender shall deem appropriate), all at the
risk, cost and expense of Borrower; (b) discontinue at any time the Construction
Work; (c) engage builders, contractors, engineers, architects and others for the
purpose of furnishing labor, material and equipment in connection with the
Construction Work, which personnel may, but need not, be the same as those
engaged by Borrower; (d) pay, compromise or settle all bills or claims incurred
in connection with the Construction Work; and (e) take or refrain from taking
such action with respect to the Construction Work as Lender may from time to
time determine. All such action shall be at Borrower's sole cost and expense,
such sums being secured by the Mortgage.
6.5 ASSIGNMENT OF PLANS AND SPECIFICATIONS AND AGREEMENTS. As
additional security for the payment of the Loan, Borrower hereby transfers and
assigns to Lender all of Borrower's right, title and interest in and to the
Plans and Specifications and all of Borrower's interest in and to the General
Contract, the Architect's Agreement and the Performance and Payment Bond. For
purposes of this SECTION 6.5, the General Contract and the Architect's Agreement
are collectively referred to as the "AGREEMENTS". Lender may use the Plans and
Specifications for any purpose relating to the Construction Work and the
Improvements including inspections of the Construction Work and the
Improvements. Neither this assignment nor any action by Lender shall constitute
an assumption by Lender of any obligations under the Agreements, and Borrower
shall continue to be liable for all obligations of Borrower thereunder. Borrower
shall perform all of Borrower's obligations under the Agreements. Borrower shall
indemnify and hold Lender harmless against and from any loss, cost, liability or
expense (including reasonable attorneys' fees) resulting from any failure of
Borrower to perform as required by the Agreements. Lender shall have the right
at any time (but shall have no obligation) to take in Lender's name or in the
name of Borrower such action as Lender may at any time determine to be necessary
or advisable to cure any default under the Agreements or to protect the rights
of Borrower or Lender thereunder. Lender shall incur no liability in connection
with such action taken by Lender, and Borrower shall indemnify and hold Lender
harmless against and from any loss, cost, liability or expense (including
reasonable attorneys' fees) incurred in connection with any such action.
Borrower hereby irrevocably constitutes and appoints Lender as Borrower's
attorney-in-fact, in Borrower's name or in Lender's name, to enforce all rights
of Borrower under the Agreements. This power of attorney is coupled with an
interest and is irrevocable by death or otherwise. Lender agrees that it will
exercise its rights under this SECTION 6.5 only after an Incipient Default or an
Event of Default. Prior to an Incipient Default or an Event of Default, Borrower
shall have the right to exercise Borrower's rights under the Agreements,
provided that Borrower shall not cancel or amend the Agreements, or do or suffer
to be done any act which would impair the security constituted by this
assignment without the prior written consent of Lender.
6.6 RETAINAGE. All retainage withheld by Lender pursuant to this
Agreement shall be disbursed to Borrower upon the satisfaction of the conditions
to the final Construction Advance described in SECTION 6.2.S above.
Notwithstanding the foregoing, no such retainage shall be
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disbursed if at the time of such disbursement, an Event of Default or an
Incipient Default has occurred.
6.7 PERMITS. Notwithstanding anything contained herein to the
contrary, Borrower shall not be entitled to receive a Construction Advance
unless Borrower has delivered to Lender grading and dust control permits for the
New Property.
ARTICLE 7
---------
INSURANCE AND CASUALTY
----------------------
7.1A. INSURANCE. Borrower, at its sole cost and expense, shall
insure and keep insured the Property against such perils and hazards, and in
such amounts and with such limits, as Lender may from time to time reasonably
require. At the time of the Closing, Lender's requirements for said insurance
are set forth in EXHIBIT G, which requirements Borrower acknowledges are
reasonable and customary. Borrower shall also carry such other insurance, and in
such amounts, as Lender may from time to time reasonably require, against
insurable risks which at the time are commonly insured against in the case of
premises similarly situated, due regard being given to the availability of
insurance and to the type of construction, location, utilities, use and
occupancy of the Property or any replacements or substitutions therefor
("ADDITIONAL INSURANCE"). Such Additional Insurance may include flood,
earthquake, war risk, nuclear explosion, demolition and contingent liability
from the operation of "nonconforming" improvements on the Property, and shall be
obtained within 30 days after demand by Lender. Otherwise, Borrower shall not
obtain any separate or additional insurance which is contributing in the event
of loss, unless it is properly endorsed and otherwise reasonably satisfactory to
Lender in all respects. The Proceeds (as defined in the Mortgage) of insurance
paid on account of any damage to or destruction of the Property or any portion
thereof shall be paid over to Lender to be applied as hereinafter provided.
B. EVIDENCE OF COVERAGE. The insurance shall be evidenced by the
original policy or a true and certified copy of the original policy, or in the
case of liability insurance, by certificates of insurance. Said certified copies
or original policies shall be delivered to Lender at or prior to Closing. On or
before the stated due date, Borrower shall pay all premiums and fees for the
insurance policies required hereunder. Borrower shall deliver certified copies
of all policies and renewals (or certificates evidencing the same) to Lender at
least thirty (30) days before the expiration of existing policies. Each such
policy shall provide that such policy may not be canceled or materially changed
except upon 30 days prior written notice of intention of non-renewal,
cancellation or material change to Lender, and that no act or thing done by
Borrower shall invalidate the policy as against Lender. Notwithstanding anything
to the contrary contained herein or in any provision of law, the Proceeds of
insurance policies coming into the possession of Lender and which are not to be
used for the Work (as hereinafter defined) shall not be deemed trust funds and
Lender shall be entitled to dispose of such Proceeds as hereinafter provided. If
Lender has not received satisfactory evidence of such renewal or substitute
insurance in the time frame herein specified, Lender shall have the right, but
not the obligation, to purchase such insurance for Lender's interest only. Any
amounts so disbursed by Lender pursuant to this
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SECTION 7.1.B shall be deemed to be a part of the Loan and shall bear interest
at the Default Rate. Nothing contained in this ARTICLE 7 shall require Lender to
incur any expense or take any action hereunder, and inaction by Lender shall
never be deemed a waiver of any rights accruing to Lender on account of this
ARTICLE 7.
C. SEPARATE INSURANCE. Borrower shall not carry any separate
insurance on the Property concurrent in kind or form with any insurance required
hereunder or contributing in the event of loss without Lender's prior written
consent, and any such policy shall have attached a standard non-contributing
mortgagee clause, with loss payable to Lender, and shall meet all other
requirements set forth herein.
D. DAMAGE TO OR DESTRUCTION OF PROPERTY. In the event of any damage
to or destruction of the Property, Borrower shall give prompt written notice to
Lender and, provided Lender makes the Proceeds available for the costs of
repair, restoration and rebuilding, Borrower shall promptly commence and
diligently continue to completion the repair, restoration and rebuilding of the
Property so damaged or destroyed in full compliance with all legal requirements
and with the provisions of SECTION 7.1.F below, and free and clear from any and
all liens and claims. Such repair, restoration and rebuilding of the Property
are sometimes hereinafter collectively referred to as the "WORK." Borrower shall
not adjust, compromise or settle any claim for insurance proceeds without the
prior written consent of Lender. Lender shall have the option in its sole
discretion to apply any insurance Proceeds it may receive pursuant to the
Mortgage (less any cost to Lender of recovering and paying out such Proceeds,
including reasonable attorneys' fees) to the payment of the Indebtedness or to
allow all or a portion of such Proceeds to be used for the Work. If any
insurance Proceeds are applied to reduce the Indebtedness, Lender shall apply
the same in the following order:
(i) first, to the payment of interest due on any Advances;
(ii) next, to the principal amount of any Advances;
(iii) next, to any Late Charges (as provided in the Note);
(iv) next, to accrued interest then due under the Note; and
(v) finally, to the unpaid principal balance of the Note (in
the inverse order of maturity of principal installments thereof).
If Lender applies insurance Proceeds to reduce the Indebtedness, no
prepayment fee shall be due with respect to any prepayment effected thereby.
E. RESTORATION. Notwithstanding the provisions of SECTION 7.1.D
above, if, in Lender's reasonable judgment, the cost of the Work shall not
exceed $500,000.00 and the Work can be completed within 6 months of the
occurrence of said damage or destruction, then Lender shall, upon request by
Borrower, permit Borrower to use the insurance Proceeds for the Work (subject to
the provisions of, and less Lender's costs described in, SECTION 7.1.F below),
so long
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as Lender, in its reasonable judgment, is satisfied that as of each date on
which such insurance Proceeds are to be applied to payment thereof:
(i) The insurance Proceeds held by Lender in respect of the
applicable casualty equal or exceed such estimated cost of effecting such
repair and restoration, or such portion thereof as then remains to be
completed and paid for;
(ii) Upon completion of the Work, the monthly income from the
Property shall, in Lender's reasonable judgment, be sufficient to pay all
Operating Expenses of the Property and all principal, interest and other
sums due and payable under the Note, this Agreement and the other Loan
Documents.
(iv) The Work will, in Lender's reasonable judgment, be completed
not less than 180 days prior to the Maturity Date;
(v) There is in force and effect for the benefit of Borrower and
Lender business interruption insurance sufficient to provide coverage for
one hundred percent (100%) of all income lost as a consequence of such
casualty for not less than 12 months;
(vi) The Work will be effected pursuant to plans and specifications
approved in writing by Lender, and by a general contractor and major
subcontractors, and pursuant to contracts, approved in writing by Lender;
and
(vii) The Work can be effected in compliance with all applicable
laws and Borrower has obtained all licenses, permits, consents and
approvals from all applicable governmental authorities or private parties
required to permit Borrower to effect such restoration and repair and to
use, operate and occupy the repaired and restored premises upon completion
thereof (other than those which will issue in the ordinary course upon
completion) and that the same are in full force and effect.
Lender shall have no obligation to make such insurance Proceeds available to pay
for the Work if (A) the outstanding principal balance and accrued interest owing
on the Loan have become due and payable, or (B) there shall exist an Event of
Default or any condition which, with the passage of time without cure or the
giving of notice, or both, could constitute an Event of Default.
F. DISTRIBUTION OF PROCEEDS. If any insurance Proceeds are used for
the Work, then such Proceeds shall be held by Lender and shall be paid out from
time to time to Borrower as the Work progresses (less any cost to Lender of
recovering and paying out such Proceeds, including reasonable attorneys' fees
and costs allocable to inspecting the Work and the plans and specifications
therefor), subject to each of the following conditions:
(i) If the Work is structural or if the cost of the Work is
reasonably estimated by Lender to exceed $250,000, the Work shall be
conducted under the supervision of a certified and registered architect or
engineer. Before Borrower
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commences any Work, other than temporary work to protect property or
prevent interference with business, Lender shall have approved in writing
the plans and specifications for the Work, which approval shall not be
unreasonably withheld or delayed, it being nevertheless understood that
such plans and specifications shall provide for Work so that, upon
completion thereof, the Property shall be at least equal in value and
general utility to the Property prior to the damage or destruction.
(ii) Each request for payment shall be made on not less than ten
(10) Business Days prior notice to Lender and shall be accompanied by a
certificate of the architect or engineer in (i) above (or a certificate
given by Borrower if no architect or engineer is so required) stating (A)
that all of the Work completed has been done in compliance with the
approved plans and specifications, if required under (i) above, (B) that
the sum requested is justly required to reimburse the Borrower for
payments by Borrower, or is justly due to the contractor, subcontractors,
materialmen, laborers, engineers, architects or other persons rendering
services or materials for the Work (giving a brief description of such
services and materials), and that when added to all sums previously paid
out by Lender does not exceed the value of the Work done to the date of
such certificate, (C) if the sum requested is to cover payment relating to
repair and restoration of personal property required or relating to the
Property, that title to the personal property items covered by the request
for payment is vested in Borrower, and (D) that the amount of such
Proceeds remaining in the hands of Lender will be sufficient on completion
of the Work to pay for the same in full (giving in such reasonable detail
as Lender may require an estimate of the cost of such completion).
Additionally, each request for payment shall contain a statement signed by
Borrower approving both the Work done to date and the Work covered by the
request for payment in question.
(iii) Each request for payment shall be accompanied by waivers of
lien satisfactory to Lender covering that part of the Work for which the
immediately preceding Advance was made and, if required by Lender, an
endorsement to the Title Policy or other evidence satisfactory to Lender
that there has not been filed with respect to the Property any mechanics'
or other lien or instrument for the retention of title relating to any
part of the Work not discharged of record. Additionally, as to any
personal property covered by the request for payment, Lender shall be
furnished with evidence of payment therefor and such further evidence
satisfactory to assure Lender of its valid first lien on the personal
property.
(iv) Lender or its designee shall have the right to inspect the Work
at all reasonable times and may condition any disbursement of Proceeds
upon the satisfactory completion, as determined in Lender's reasonable
discretion, of any portion of the Work for which payment or reimbursement
is being requested. The cost of any such inspection of the Work shall be
paid by Borrower prior to or simultaneously with the next disbursement of
any portion of the Proceeds. Neither the approval by Lender of the plans
and specifications for the Work nor the inspection by Lender of the Work
shall make Lender responsible for the preparation of such plans and
specifications or the compliance
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of such plans and specifications, or of the Work, with any applicable law,
regulation, ordinance, covenant or agreement.
(v) Proceeds shall not be disbursed more frequently than every 30
days.
(vi) Any request for payment made after the Work has been completed
shall be accompanied, to the extent applicable, by a copy or copies of any
certificate or certificates required by law to render occupancy and full
operation of the Property legal.
(vii) Upon completion of the Work and payment in full therefor, or
upon any failure on the part of Borrower to promptly commence the Work, or
upon the failure on the part of Borrower to proceed diligently and
continuously to completion of the Work (subject to allowance for
reasonable delays and interruptions in the supply of materials and labor
not caused by any act or omission of Borrower), Lender may apply any such
Proceeds it then or thereafter holds to the payment of the Indebtedness;
provided, however, that Lender shall be entitled to apply at any time all
or any portion of insurance Proceeds it then holds to the curing of any
Event of Default under this Mortgage, the Note or any other Loan Document.
G. Miscellaneous Insurance Provisions.
----------------------------------
(i) Notwithstanding any other provision of this SECTION 7.1, if in
Lender's reasonable judgment the cost of the Work is less than $10,000 and
such Work can be completed in less than 30 days and provided no Event of
Default has occurred and is continuing, then Lender shall, upon request by
Borrower, permit Borrower to apply for and receive the insurance Proceeds
directly from the insurer (and Lender shall advise the insurer to pay over
such Proceeds directly to Borrower), provided that Borrower shall apply
such insurance Proceeds solely to the prompt and diligent commencement and
completion of such Work.
(ii) In the event of the foreclosure of the Mortgage or other
transfer of title to or assignment of the Property in extinguishment of
the Indebtedness in whole or in part, all right, title and interest of
Borrower in and to all policies of insurance required by this Mortgage and
any insurance Proceeds shall inure to the benefit of and pass to Lender or
any purchaser or transferee of the Property.
(iii) Borrower hereby authorizes Lender, during all periods in which
an Event of Default has occurred and remains uncured, to settle any
insurance claims, to obtain insurance Proceeds, and to endorse any checks,
drafts or other instruments representing any insurance Proceeds whether
payable by reason of loss thereunder or otherwise.
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ARTICLE 8
---------
BORROWER'S DEFAULT
------------------
8.1 EVENTS OF DEFAULT. Each of the following shall constitute an
"EVENT OF DEFAULT" under this Agreement:
A. Borrower fails to pay, within five (5) days following the due
date thereof, any installment of interest or principal on the Note or Borrower
fails to pay the Note in full on or before the Maturity Date;
B. Borrower or any Guarantor fails to pay within ten (10) days
following written notice from Lender any amounts due hereunder or under any of
the other Loan Documents, other than installments of principal and interest on
the Note; or
C. Any representation or warranty made by Borrower or any other Loan
Party in or pursuant to this Agreement or otherwise made in writing in
connection with or as contemplated by this Agreement shall be incorrect or false
or misleading in any material respect as to the period of time to which it
relates; or
D. An Event of Default exists under any other Loan Document; or
E. Any representation to Lender by Borrower or any other Loan Party
as to the financial condition or credit standing of Borrower or any other Loan
Party, or any financial statement provided to Lender pursuant to any Loan
Document, is or proves to be false or misleading in any material respect; or
F. Except for Permitted Financings, any interest in Borrower or the
Property (or any part thereof) is sold, conveyed, transferred, assigned,
disposed of or further encumbered, either directly or indirectly, or any
agreement for any of the foregoing is entered into, except as expressly
permitted in SECTION 4.1.M; or
G. The Property or any portion thereof is rezoned either voluntarily
or involuntarily, so as to no longer permit the Property or any portion thereof
to be used as a golf course; provided, however, that an involuntary rezoning of
a portion of the Property that does not adversely affect the income generated by
the Property or otherwise adversely affect the operation of the Property as an
18-hole golf course with a clubhouse and related amenities, shall not constitute
an Event of Default; or
H. Any order or decree is entered by any court of competent
jurisdiction which directly or indirectly enjoins or prohibits Borrower or
Lender from performing any of its obligations under this Agreement; or
I. Borrower or any other Loan Party: makes an assignment for the
benefit of creditors; or petitions or applies to any court for the appointment
of a trustee or receiver for itself
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or for any part of its assets or for the Property or any portion thereof, or
commences any proceedings under any bankruptcy, insolvency, readjustment of debt
or reorganization statute or law of any jurisdiction, whether now or hereafter
in effect; or if any such petition or application is filed or any such
proceedings are commenced, and Borrower or any other Loan Party by any act
indicates any approval thereof, consent thereto, or acquiescence therein; or an
order is entered appointing any such trustee or receiver, or adjudicating
Borrower or any other Loan Party bankrupt or insolvent, or approving the
petition in any such proceeding; or if any petition or application for any such
proceeding or for the appointment of a trustee or receiver is filed by any third
party against Borrower or any other Loan Party or their respective assets or the
Property, or any portion thereof, and any of the aforesaid proceedings is not
dismissed within sixty (60) days of its filing; or
J. Borrower or any other Loan Party fails to comply with, keep or
perform any of its other obligations, agreements, undertakings, covenants,
conditions or warranties under (i) this Agreement, (ii) any other Loan Document,
or (iii) any other document or instrument executed and delivered to Lender by
Borrower or any other Loan Party pursuant to this Agreement, and such failure
continues for a period of thirty (30) days after written notice thereof by
Lender to Borrower; or
K. Borrower defaults in any of its obligations under any of the
documents evidencing or securing the Other Loan.
8.2 REMEDIES. Upon the happening of an Event of Default, Lender
shall have the right, in addition to all the remedies conferred upon Lender by
law or equity or the terms of any Loan Document, to do any or all of the
following, concurrently or successively, without notice to Borrower:
A. Declare the Note to be, and the Note shall thereupon become,
immediately due and payable, together with the Prepayment Fee (as defined in the
Note), if applicable, without presentment, demand, protest, notice of intention
to accelerate, notice of acceleration or notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the Note to the
contrary notwithstanding, and exercise any one or more of its rights and
remedies under the Loan Documents.
B. Enter upon and take possession of the Property and all material,
equipment and supplies thereon and do anything necessary or desirable to fulfill
the obligations of Borrower hereunder and to sell, manage, maintain, repair and
protect the Property. Without limiting the generality of the foregoing and for
the purposes aforesaid, Borrower hereby appoints and constitutes Lender its
lawful attorney-in-fact with full power of substitution to (i) pay, settle or
compromise all existing bills and claims which may be liens upon or security
interests in the Property, or to avoid such bills and claims becoming liens or
security interests, against the Property or any fixtures or equipment thereon,
or as may be necessary or desirable for the clearance of title or otherwise,
(ii) execute all applications and certificates in the name of Borrower which may
be required to carry out the intent and purpose hereof, (iii) employ such
contractors, subcontractors, architects and others as Lender may deem
appropriate, (iv) do any
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and every act which Borrower might do on its own behalf, including to enter into
Leases of any portion of the Property, and (vi) prosecute or defend any and all
actions or proceedings involving the Property or any fixtures, equipment or
other installations thereon, it being understood and agreed that this power of
attorney shall be a power coupled with an interest and cannot be revoked. Lender
and its designees, representatives, agents, licensees and contractors shall be
entitled to the entry, possession and use contemplated herein without the
consent of any party and without any legal process or other condition precedent
whatsoever. Borrower acknowledges that any denial of such entry, possession and
use by Lender will cause irreparable injury and damage to Lender and agrees that
Lender may forthwith sue for any remedy to enforce the immediate enjoyment of
such right. Borrower hereby waives the posting of any bond as a condition for
exercising such remedy.
C. Apply the sum of any PAR Funds and Capital Reserve payments then
being held by Lender to the repayment of the Loan in any order or priority.
Anything in this Agreement to the contrary notwithstanding, all funds
advanced or disbursed by Lender pursuant to the provisions of this ARTICLE 8
shall be deemed advanced by Lender under an obligation to do so regardless of
the identity of the person or persons to whom such funds are and shall bear
interest at the Default Rate. Funds advanced or disbursed by Lender in the
exercise of its judgment that the same are needed to protect its security or to
otherwise perform any obligations of Borrower hereunder are to be deemed
additional advances hereunder and are to be added to the total indebtedness
evidenced by the Note and secured by the Mortgage and the other Loan Documents
and said indebtedness shall, if necessary, be increased accordingly.
In case of any Event of Default hereunder, Borrower will pay Lender's
reasonable attorneys' fees and disbursements and court costs (including those
relating to appeals) and all related expenses in connection with the enforcement
of this Agreement or any of the other Loan Documents.
ARTICLE 9
---------
MISCELLANEOUS
-------------
9.1 INDEMNIFICATION. Except for Losses (as hereinafter defined) which are
finally adjudicated by a court of competent jurisdiction to have arisen directly
and proximately from the gross negligence or willful misconduct of Lender,
Borrower shall protect, defend, indemnify and hold Lender, and its officers,
directors, employees and agents (each, an "INDEMNIFIED PARTY") harmless from and
against any and all harm, loss, liability, damage, suit, claim, demand, expense,
fees, costs, judgments and penalties (including reasonable attorneys' fees)
(each a "LOSS") suffered or incurred by an Indemnified Party in connection with
(i) any claim, demand, suit or proceeding brought or asserted by any person
against an Indemnified Party arising out of or relating to Lender's entering
into or carrying out the terms of this Agreement or any of the other Loan
Documents or being the holder of the Note, (ii) any default by Borrower or any
other Loan Party hereunder or under any other Loan Document, (iii) any bodily
injury, death, other personal injury or property damage occurring in or upon the
Property through any cause whatsoever, and (iv) any
39
<PAGE> 47
transaction otherwise arising out of or in any way connected with the Property,
this Agreement, any other Loan Document or the Indebtedness.
9.2 DEFENSE OF CLAIMS. Lender may, at Borrower's sole cost and expense,
retain counsel and control the defense of any Claim relating to any Loss or
potential Loss. If Lender so controls the defense of any such Claim, Borrower
will cooperate with Lender and provide Lender with copies of all existing
pleadings, discovery materials and other materials relating to said Claim. Upon
taking control of the defense of any Claim, Lender shall provide to Borrower
copies of all subsequent pleadings, discovery materials and other materials
relating to the Claim. Lender shall be entitled to settle any such Claim on such
terms as Lender deems appropriate in its sole and absolute discretion; provided,
however, Lender shall not settle any Claim for which Lender seeks
indemnification from Borrower pursuant to SECTION 9.1 without the prior written
consent of Borrower, which consent shall not be unreasonably withheld or
delayed. If Lender does not elect to control the defense of any Claim, Borrower
shall defend said Claim and shall provide Lender with copies of all pleadings,
filings and correspondence relating thereto.
9.3 PERFORMANCE BY LENDER. If any Event of Default hereunder shall exist,
then Lender may (but shall in no event be required to) cure any such Event of
Default. Lender shall not be obligated to continue any such action having
commenced the same and may cease the same without notice to Borrower. Any
amounts expended by Lender in connection with such action shall constitute
additional advances hereunder, the payment of which is additional indebtedness,
secured by the Loan Documents and shall become due and payable upon demand by
Lender, with interest at the Default Rate from the date of disbursement thereof
until fully paid. No further direction or authorization from Borrower shall be
necessary for such disbursements. The execution of this Agreement by Borrower
shall and hereby does constitute an irrevocable direction and authorization to
Lender to so disburse such funds.
9.4 TRANSFER BY LENDER. Lender may assign, negotiate, pledge or otherwise
hypothecate all or any portion of the Loan or grant participation therein, or in
any of its rights and security hereunder and under the other Loan Documents, and
Borrower shall accord full recognition thereto. Lender may deliver copies to any
potential participant or assignee or transferee of financial statements and
other information from time to time furnished to Lender pursuant hereto or in
connection therewith.
Borrower shall not assign or attempt to assign its rights or obligations
under this Agreement or any other Loan Document.
9.5 LENDER'S ACTIONS. The authority herein conferred upon Lender and any
action taken by Lender hereunder or in any other Loan Document will be taken by
Lender for its own protection only, and Lender does not and shall not be deemed
to have assumed any responsibility to Borrower or to any other person or persons
with respect to any such action here in authorized or taken by Lender. No person
shall be entitled to rely upon, or claim to have relied upon, any action taken
or failed to have been taken by Lender or any of its representatives.
9.6 TIME IS OF THE ESSENCE. Time is of the essence of this Agreement.
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<PAGE> 48
9.7 WAIVERS. No waiver of any term, provision, condition, covenant or
agreement contained herein or in any other Loan Document shall be effective
unless set forth in a writing signed by Lender, and any such waiver shall be
effective only to the extent set forth in such writing. No failure by Lender to
exercise, or delay by Lender in exercising, any right, power or privilege
hereunder or in any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof, or the exercise of any other
right or remedy provided by law. No notice to or demand on Borrower in any case
shall, in itself, entitle Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of Lender to
any other or further action in any circumstances without notice or demand.
9.8 NOTICES. Any notice which any party hereto may be required or may
desire to give hereunder shall be delivered personally or if mailed, postage
prepaid, by United States registered or certified mail, return receipt
requested, or by overnight express courier, addressed in the case of Borrower
to:
The Badlands Golf Club, Inc.
c/o Senior Tour Players Development, Inc.
266 Beacon Street
Boston, Massachusetts 02116
Attn: Stanton V. Abrams, President
with a copy to:
Davis, Malm & D'Agostine, P.C.
One Boston Place
Boston, Massachusetts 02108
Attn: Alan L. Stanzler, Esq.
in the case of Lender to:
NationsCredit Commercial Corporation
One Canterbury Green
P.O. Box 120013
Stamford, Connecticut 06912-0013
Attn: Vice President Commercial Real Estate
with a copy to:
NationsCredit Commercial Corporation
One Canterbury Green
P.O. Box 120013
Stamford, Connecticut 06912-0013
Attn: General Counsel
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or at such other addresses or to the attention of such other persons as may from
time to time be designated by the party to be addressed by written notice to the
other in the manner herein provided. Notices, demands and requests given in the
manner aforesaid shall be deemed sufficiently served or given for all purposes
hereunder when received or when delivery is refused or when the same are
returned to sender for failure to be called for.
9.9 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
the parties and their respective successors and permitted assigns. No assignment
made by Borrower in violation of this Agreement shall confer any rights on any
assignee of Borrower.
9.10 NO PARTNERSHIP. Nothing contained herein, or in any other Loan
Document, and no action or inaction whatsoever on the part of Lender, shall be
deemed to make Lender a partner or joint venturer with Borrower.
9.11 BROKERAGE CLAIMS. Borrower shall protect, defend, indemnify and hold
Lender harmless from and against all loss, cost, liability and expense incurred
as a result of any claim for a broker's or finder's fee against Lender or any
person or entity in connection with the transaction herein contemplated,
provided such claim is made by or arises through or under Borrower or is based
in whole or in part upon alleged acts or omissions of Borrower.
9.12 PUBLICITY. Lender may publicize the Loan if it so elects.
9.13 DOCUMENTS SATISFACTORY TO LENDER. All documents and other matters
required by any of the provisions of this Agreement to be submitted or provided
to Lender shall be in form and substance satisfactory to Lender.
9.14 ADDITIONAL ASSURANCES. At any time or from time to time, upon the
written request of Lender, Borrower shall execute, and, if required, record,
file (and pay all fees, taxes or other expenses relating thereto) all such
further documents and do all such other acts and things as Lender may reasonably
request to effectuate the transaction contemplated herein in accordance with the
terms hereof.
9.15 ENTIRE AGREEMENT. This Agreement, the Exhibits hereto and the other
Loan Documents and other documents referred to herein constitute the entire
agreement between the Lender and Borrower with respect to the subject matter
hereof and may not be modified or amended in any manner other than by
supplemental written agreement executed by the parties hereto.
9.16 SEVERABILITY. If any provision of this Agreement or any other Loan
Document or the application thereof to any person or situation shall, to any
extent, be held invalid or unenforceable, the remainder of this Agreement or any
other Loan Document, and the application of such provision to persons or
situations other than those to which it shall have been held invalid or
unenforceable, shall not be affected thereby, but shall continue valid and
enforceable to the fullest extent permitted by applicable law.
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<PAGE> 50
9.17 NO THIRD PARTY BENEFICIARY. This Agreement is made for the sole
benefit of Borrower and Lender, and no other person shall be deemed to have any
privity of contract hereunder nor any right to rely hereon to any extent or for
any purpose whatsoever, nor shall any other person have any right of action of
any kind hereon or be deemed to be a third party beneficiary hereunder.
9.18 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CONNECTICUT APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED IN THAT STATE.
9.19 LIMITATION ON LIABILITY. (a) Subject to the limitations and
exceptions contained in subsections (b), (c), (d) and (e) below, after the
Completion of Construction Work in accordance with the terms and requirements of
this Agreement and after the Transition Period expires, neither Borrower nor
Guarantor shall have any personal recourse liability for amounts owing under the
Note or any of the other Loan Documents and no deficiency judgment therefor
shall be enforced against Borrower or Guarantor. Lender's recourse for such
amounts shall, subject to the limitations and exceptions contained in
subsections (b), (c), (d) and (e) below, be limited to the collateral and
security provided under the Loan Documents.
(b) A judgment may be sought, obtained, entered and enforced against
Borrower and Guarantor to the extent necessary to preserve or enforce the rights
and remedies of Lender in, to or against the collateral and security provided
under the Loan Documents, and nothing contained in this SECTION 9.19 shall be
construed to limit, prejudice or impair the rights of Lender to enforce its
rights and remedies against any real and personal property mortgaged, pledged,
encumbered, assigned or granted to secure payment or performance under this
Agreement, the Note and the other Loan Documents. Notwithstanding anything to
the contrary herein or elsewhere Lender shall, to the fullest extent permitted
by law, be entitled to injunctive relief and to specific performance.
(c) Anything contained herein or elsewhere to the contrary
notwithstanding, Borrower and Guarantor shall be liable to Lender, without
limitation, for Lender's harm, loss (including lost interest and principal on
the Loans), damage, costs and expenses (including Lender's reasonable attorneys'
fees and collection costs) arising out of or in connection with any of the
following circumstances:
(i) any misapplication or misappropriation of any Gross Revenues,
including the distribution by Borrower of any Gross Revenues in violation
of SECTION 4.1.S of this Agreement;
(ii) any waste respecting all or any part of the Property or any
other collateral;
(iii) the collection of rents or other income from the Property more
than thirty (30) days in advance in violation of the terms and provisions
of the Loan Documents; or the failure to account for security deposits of
tenants or other occupants at
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the Property, if any, not turned over to Lender immediately after
Lender's demand following the occurrence of an Event of Default;
(iv) fraud in connection with the Loan or any Loan Document;
(v) any material breach of any representation or warranty made in
connection with the Loan known by Borrower or Guarantor to have been false
when made or deemed made;
(vi) any material misrepresentation or inaccuracy contained in any
financial statement or other document provided to Lender pursuant to
SECTION 4.1.K of this Agreement known by Borrower or Guarantor to have
been false or inaccurate when provided;
(vii) any breach of any of the terms and provisions of SECTION 2.10
(Environmental Matters) of the Mortgage;
(viii) the occurrence of a direct or indirect transfer of the
Property in violation of the Mortgage or any of the other Loan Documents
without the prior written consent of Lender or the existence of any liens
on the Property resulting from Borrower's voluntary action, other than the
Permitted Encumbrances;
(ix) any filing by Borrower or Guarantor of any voluntary petition
under the Bankruptcy Code, or the taking by any one or more of them of any
comparable action under any federal or state law; or the filing of any
involuntary petition under the Bankruptcy Code against either Borrower or
Guarantor, or the taking of comparable action under any federal or state
law against either of them, by any person or entity in any way affiliated
with either of them;
(x) any and all loss, cost, expense or liability arising under
SECTION 4.1.I and SECTION 9.11 of this Agreement; and
(xi) any and all loss, cost, expense or liability arising in
connection with any liens or lien claims relating to the Construction
Work.
(d) In the event of any filing by Borrower or Guarantor of any voluntary
petition under the Bankruptcy Code, or the taking by any one or more of them of
any comparable action under any federal or state law, or the filing of any
involuntary petition under the Bankruptcy Code against any of Borrower or
Guarantor or the taking of comparable action under any federal or state law
against any one or more of them by any shareholder, officer or director of
Borrower or Guarantor or by any person or entity affiliated with, related to or
in which a beneficial interest is owned by such shareholder, officer or
director, which action by a related entity is not dismissed within thirty (30)
days of its filing, the Loan shall become fully recourse.
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(e) Nothing contained in this SECTION 9.19 shall be construed to release
Borrower or any Loan Party from liability under the indemnifications contained
in SECTION 2.10 (Environmental Matters) of the Mortgage, in the Guaranty and in
the Environmental Indemnity.
9.20 WRITTEN AGREEMENT.
(i) THE RIGHTS AND OBLIGATIONS OF BORROWER AND LENDER SHALL BE
DETERMINED SOLELY FROM THIS WRITTEN LOAN AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AND ANY PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN LENDER AND
BORROWER CONCERNING THE SUBJECT MATTER HEREOF AND OF THE OTHER LOAN
DOCUMENTS ARE SUPERSEDED BY AND MERGED INTO THIS LOAN AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
(ii) THIS LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY NOT BE
VARIED BY ANY ORAL AGREEMENTS OR DISCUSSIONS THAT OCCUR BEFORE,
CONTEMPORANEOUSLY WITH, OR SUBSEQUENT TO THE EXECUTION OF THIS LOAN
AGREEMENT OR THE LOAN DOCUMENTS.
(iii) THIS WRITTEN LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
9.21 CONSTRUCTION. Borrower and Lender agree that the terms and conditions
of this Agreement and the other Loan Documents are the result of negotiations
between the parties and that this Agreement and the other Loan Documents shall
not be construed in favor of or against any party by reason of the extent to
which any party or its professionals participated in the preparation of this
Agreement.
9.22 LENDER'S CONSENT. In any action or proceeding bought by Borrower
against Lender claiming or based upon an allegation that Lender unreasonably
withheld its consent to or approval of a proposed act by Borrower which requires
Lender's consent hereunder, Borrower's sole and exclusive remedy in said action
or proceeding shall be injunctive relief or specific performance requiring
Lender to grant such consent or approval.
9.23 NOTICE OF BREACH BY LENDER. Borrower agrees to give Lender written
notice of any action or inaction by Lender or any agent or attorney of Lender in
connection with this Agreement or any other Loan Document or the obligations of
Borrower under this Agreement or any other Loan Document that may be actionable
against Lender or any agent or attorney of Lender or a defense to payment of any
obligations of Borrower under this Agreement or any other Loan Document for any
reason, including commission of a tort or violation of any contractual duty or
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<PAGE> 53
duty implied by law. Borrower agrees that unless such notice is given promptly
(and in any event within thirty (30) days after the Borrower has knowledge of
any such action or inaction), Borrower shall not assert, and the Borrower shall
be deemed to have waived, any claim or defense arising therefrom to the extent
that Lender could have mitigated such claim or defense after receipt of such
notice.
9.24 WAIVER OF JURY TRIAL. LENDER AND BORROWER HEREBY WAIVE THE RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT
MATTER OF THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND
VOLUNTARILY MADE BY LENDER AND BORROWER, AND LENDER AND BORROWER ACKNOWLEDGE
THAT NO PERSON ACTING ON BEHALF OF ANOTHER PARTY TO THIS AGREEMENT HAS MADE ANY
REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. LENDER AND BORROWER FURTHER ACKNOWLEDGE THAT THEY
HAVE BEEN REPRESENTED (OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE
SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY
TO DISCUSS THIS WAIVER WITH COUNSEL.
9.25 CONSENT TO JURISDICTION. The parties hereto submit to personal
jurisdiction in the State of Connecticut for the enforcement of the provisions
of this Agreement and the other Loan Documents and irrevocably waive any and all
rights to object to such to such jurisdiction for the purposes of litigation to
enforce any provision of this Agreement and the other Loan Documents. Lender and
Borrower hereby consent to the jurisdiction of and agree that any action, suit
or proceeding to enforce this Agreement may be brought in any state or federal
court in the State of Connecticut. Lender and Borrower hereby irrevocably waive
any objection which they may have to the laying of the venue of any such action,
suit, or proceeding in any such court and hereby further irrevocably waive any
claim that any such action, suit or proceeding brought in such a court has been
brought in an inconvenient forum. Borrower hereby appoints the Secretary of the
State of Connecticut as its agent for service of process. Borrower and Lender
hereby consent that service of process in any action, suit or proceeding may be
made by service upon the aforesaid agent for service of process (in the case of
service to be made upon Borrower), by personal service upon the party being
served, or by delivery in accordance with the notice requirements of SECTION 9.8
of this Agreement.
9.26 COMMERCIAL TRANSACTION. TO INDUCE LENDER TO ENTER INTO THE COMMERCIAL
LOAN TRANSACTION EVIDENCED BY AND SECURED BY THE LOAN DOCUMENTS, BORROWER AGREES
THAT THE SAID TRANSACTION IS COMMERCIAL AND NOT A CONSUMER TRANSACTION AND
WAIVES ANY RIGHT TO NOTICE OF AND HEARING OF THE RIGHT OF LENDER UNDER CHAPTER
903a OF THE CONNECTICUT GENERAL STATUTES, REVISION OF 1958, AS AMENDED, OR OTHER
STATUTE OR STATUTES AFFECTING PREJUDGMENT REMEDIES AND AUTHORIZES LENDER'S
ATTORNEY TO ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT
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<PAGE> 54
COURT ORDER, PROVIDED THE COMPLAINT SHALL SET FORTH A COPY OF THIS WAIVER.
9.27 COUNTERPARTS. This Agreement may be executed in counterparts, and all
such counterparts, taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to be
executed by their duly authorized representatives as of the day, month and year
first above written.
BORROWER:
THE BADLANDS GOLF CLUB, INC., a Nevada
corporation
By: /s/ Stanton V. Abrams
------------------------------
Stanton V. Abrams
President
LENDER:
NATIONSCREDIT COMMERCIAL CORPORATION
By: /s/ Donald E. Rhodes
------------------------------
Its: Authorized Signatory
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STATE OF Massachusetts )
-------------
)
COUNTY OF Suffolk )
-------------
On this, the 15th day of November, 1996, before me, the undersigned
officer, personally appeared Stanton V. Abrams, who acknowledged himself to be
the President of THE BADLANDS GOLF CLUB, INC., and that he, as such President,
being authorized so to do, executed the foregoing Loan Agreement for the
purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Robert E. Richards, Jr.
------------------------------
Notary Public
ROBERT E. RICHARDS, JR.
[STAMP OF: NOTARY PUBLIC
MY COMMISSION EXPIRES
SEPT. 30, 1999
STATE OF Georgia )
-------------
)
COUNTY OF Fulton )
-------------
On this, the 26th day of November, 1996, before me, the undersigned
officer, personally appeared Donald E. Rhodes, who acknowledged himself to be
the Authorized Representative of NATIONSCREDIT COMMERCIAL CORPORATION, a
Delaware corporation, being authorized so to do, executed the foregoing Loan
Agreement for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ David James Burge
------------------------------
Notary Public
[NOTARY PUBLIC SEAL OF
DAVID JAMES BURGE
FULTON COUNTY, GEORGIA]
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EXHIBIT A
---------
LEGAL DESCRIPTION
-----------------
1
<PAGE> 57
EXHIBIT A
DESCRIPTION OF LAND
ALL THAT REAL PROPERTY SITUATED IN THE COUNTY OF CLARK, STATE OF NEVADA, BOUNDED
AND DESCRIBED AS FOLLOWS:
A PORTION OF SECTION 31 AND 32, TOWNSHIP 20 SOUTH, RANGE 60 EAST M.D.M. CITY OF
LAS VEGAS, CLARK COUNTY, NEVADA AND DEFINED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 31 AS SHOWN ON A RECORD
OF SURVEY, RECORDED IN FILE 36 OF SURVEYS, PAGE 89 IN THE OFFICE OF THE
CLARK COUNTY RECORDER, BEING THE CENTER LINE INTERSECTIONS OF CHARLESTON
BOULEVARD AND HUALAPAI WAY; THENCE NORTH 06[DEGREES] 05'57" WEST ALONG THE
WEST LINE OF SAID SECTION 31 AND THE CENTER LINE OF HUALAPAI WAY, A
DISTANCE OF 2282.92 FEET; THENCE NORTH 83[DEGREES] 54'03" EAST A DISTANCE
OF 50.00 FEET TO A POINT ON THE EAST RIGHT-OF-WAY LINE OF SAID HUALAPAI
WAY, SAID POINT BEING THE POINT THE POINT OF BEGINNING, THENCE NORTH
06[DEGREES] 05'57" WEST ALONG THE SAID EAST RIGHT-OF-WAY LINE OF HUALAPAI
WAY, A DISTANCE OF 970.04 FEET TO A POINT ON A CURVE CONCAVE SOUTHEASTERLY
HAVING A RADIUS OF 54.00 FEET AND SUBTENDING A CENTRAL ANGLE OF 80[DEGREES]
00'00", THENCE NORTHEASTERLY ALONG SAID CURVE TO THE RIGHT, TANGENT TO THE
LAST LINE, AN ARC DISTANCE OF 75.40 FEET; THENCE NORTH 73[DEGREES] 54'03"
EAST TANGENT TO THE LAST CURVE AND ALONG THE SOUTHEASTERLY RIGHT-OF-WAY
LINE OF THE PROPOSED ALTA DRIVE AS SHOWN ON THE FINAL MAP OF CONCAVE
NORTHEASTERLY, HAVING A RADIUS OF 1,235.00 FEET AND SUBTENDING A CENTRAL
ANGLE OF 06[DEGREES] 50'32", THENCE NORTHEASTERLY ALONG SAID CURVE TO THE
LEFT, TANGENT TO THE LAST LINE AN ARC DISTANCE OF 147.48 FEET; THENCE
LEAVING SAID CURVE FRO MA POINT, WHOSE RADIAL BEARS NORTH 22[DEGREES] 56'
29" WEST, ON A BEARING OF SOUTH 31[DEGREES] 00'12" EAST A DISTANCE OF
119.53 FEET, THENCE SOUTH 76[DEGREES] 47'46" EAST A DISTANCE OF 62.90 FEET;
THENCE SOUTH 05[DEGREES] 37'05" EAST, A DISTANCE OF 115.98 FEET; THENCE
NORTH 85[DEGREES] 56'34" EAST, A DISTANCE OF 583.37 FEET TO A POINT ON A
CURVE CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 450.77 FEET AND SUBTENDING
A CENTRAL ANGLE OF 44[DEGREES] 56'23"; THENCE NORTHEASTERLY ALONG SAID
CURVE, TANGENT TO THE LAST LINE, AN ARC DISTANCE OF 353.56 FEET, TO A
RADIAL WHICH BEARS NORTH 46[DEGREES] 45'14" WEST; THENCE NORTH 75[DEGREES]
37'07" EAST, A DISTANCE OF 393.07 FEET; THENCE NORTH 72[DEGREES] 32'48"
EAST, A DISTANCE OF 293.21 FEET; THENCE NORTH 59[DEGREES] 40'12" EAST, A
DISTANCE OF 80.02 FEET; THENCE SOUTH 87[DEGREES] 16'04" DISTANCE OF 115.62
FEET; THENCE NORTH 74[DEGREES] 13'47" EAST, A DISTANCE OF 90.44 FEET;
THENCE SOUTH 89[DEGREES] 43'21" EAST A DISTANCE OF 179.81 FEET, THENCE
SOUTH 68[DEGREES] 41'00" EAST, A DISTANCE OF 69.64 FEET; THENCE SOUTH
89[DEGREES] 43'21" EAST, A DISTANCE OF 231.23 FEET; THENCE SOUTH
79[DEGREES] 12'01" EAST, A DISTANCE OF 520.34 FEET; THENCE SOUTH
78[DEGREES] 16'57" EAST, A DISTANCE OF 769.72 FEET; THENCE SOUTH
67[DEGREES] 29'21" EAST, A DISTANCE OF 64.02 FEET; THENCE SOUTH 56[DEGREES]
28'43" EAST, A DISTANCE OF 513.83 FEET, THENCE SOUTH 85[DEGREES] 32'44"
EAST, A DISTANCE OF 226.95 FEET TO A POINT ON THE WESTERLY PROPERTY LINE OF
THE CLUB HOUSE AREA OF THE BADLANDS GOLF COURSE; THENCE ALONG THE BOUNDARY
OF SAID BADLANDS GOLF COURSE AS FOLLOWS; SOUTH 09[DEGREES] 40'24" EAST, A
Page 1 of 3
<PAGE> 58
EXHIBIT A
DISTANCE OF 275.89 FEET; THENCE NORTH 83[DEGREES]54'34" WEST, A DISTANCE OF
254.65 FEET; THENCE SOUTH 86[DEGREES]47'39" WEST, A DISTANCE OF 617.43 FEET TO
A POINT HEREINAFTER REFERRED TO AS POINT "A", THENCE SOUTH 79[DEGREES]01'40", A
DISTANCE OF 495.51 FEET; THENCE LEAVING SAID GOLF COURSE BOUNDARY, NORTH
54[DEGREES]56'11" WEST, A DISTANCE OF 206.04 FEET, THENCE NORTH
80[DEGREES]50'57" WEST, A DISTANCE OF 221.28 FEET; THENCE SOUTH
88[DEGREES]22'40" WEST, A DISTANCE OF 338.29 FEET; THENCE SOUTH
63[DEGREES]54'06" WEST, A DISTANCE OF 125.63 FEET; THENCE NORTH
15[DEGREES]53'53" WEST, A DISTANCE OF 110.01 FEET, THENCE SOUTH
85[DEGREES]38'25" WEST, A DISTANCE OF 127.26 FEET TO POINT ON A CURVE CONCAVE
SOUTHEASTERLY HAVING A RADIUS OF 45.0 FEET AND SUBTENDING A CENTRAL ANGLE OF
169[DEGREES]03'54"; THENCE SOUTHEASTERLY ALONG SAID CURVE TO THE LEFT, FROM A
RADIAL WHICH BEARS NORTH 69[DEGREES]38'48" EAST, ALONG SAID CURVE AN ARC
DISTANCE OF 132.78 FEET TO A POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE
WESTERLY HAVING A RADIUS OF 25.0 FEET AND SUBTENDING A CENTRAL ANGLE OF
73[DEGREES]19'12"; THENCE SOUTHEASTERLY ALONG SAID CURVE, FROM A RADIAL WHICH
BEARS NORTH 80[DEGREES]34'54" EAST, AN ARC DISTANCE OF 31.99 FEET TO A RADIAL
WHICH BEARS NORTH 26[DEGREES]05'54" WEST, THENCE SOUTH 63[DEGREES]54'06" WEST,
A DISTANCE OF 40.53 FEET; THENCE NORTH 14[DEGREES]02'51" WEST, A DISTANCE OF
117.59 FEET; THENCE SOUTH 63[DEGREES]54'06" WEST, A DISTANCE OF 83.67 FEET;
THENCE NORTH 89[DEGREES]01'27" WEST, A DISTANCE OF 375.79 FEET; THENCE NORTH
84[DEGREES]55'46" WEST, A DISTANCE OF 148.30 FEET; THENCE NORTH
88[DEGREES]07'26" WEST, A DISTANCE OF 301.09 FEET; THENCE SOUTH
82[DEGREES]55'29" WEST, A DISTANCE OF 187.29 FEET; THENCE NORTH
89[DEGREES]15'40" WEST, A DISTANCE OF 149.56 FEET; THENCE SOUTH
75[DEGREES]37'07" WEST, A DISTANCE OF 361.89 FEET; THENCE SOUTH
81[DEGREES]11'34" WEST, A DISTANCE OF 212.43 FEET; THENCE NORTH
83[DEGREES]33'51" WEST, A DISTANCE OF 105.85 FEET; THENCE NORTH
67[DEGREES]39'10" WEST, A DISTANCE OF 183.07 FEET; THENCE NORTH
83[DEGREES]46'14" WEST, A DISTANCE OF 87.63 FEET; THENCE SOUTH
78[DEGREES]16'49" WEST, A DISTANCE OF 194.05 FEET; THENCE SOUTH
84[DEGREES]10'19" WEST, A DISTANCE OF 173.27 FEET; THENCE SOUTH
69[DEGREES]49'58" WEST, A DISTANCE OF 268.23 FEET; THENCE NORTH
86[DEGREES]56'36" WEST, A DISTANCE OF 57.41 FEET; THENCE SOUTH
13[DEGREES]07'59" WEST, A DISTANCE OF 266.08 FEET, THENCE SOUTH
67[DEGREES]05'17" WEST, A DISTANCE OF 117.37 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL.
- ---------------------------------------------------
COMMENCING AT THE AFOREMENTIONED POINT A, THENCE NORTH 19[DEGREES]18'09", EAST,
A DISTANCE OF 10.82 FEET TO THE POINT OF BEGINNING, THENCE NORTH
86[DEGREES]47'39" EAST, PARALLEL TO AND 10.00 FEET NORTH OF THE NORTH LINE OF
THE EXISTING BADLANDS GOLF COURSE, FOR A DISTANCE OF 331.57 FEET; THENCE NORTH
52[DEGREES]22'56" WEST, A DISTANCE OF 483.17 FEET; THENCE NORTH
75[DEGREES]15'34" WEST, A DISTANCE OF 700.03 FEET TO A POINT ON A CURVE CONCAVE
SOUTHERLY HAVING A RADIUS OF 525.00 FEET, AND SUBTENDING A CENTRAL ANGLE OF
22[DEGREES]39'21"; THENCE WESTERLY ALONG SAID CURVE TO THE LEFT, TANGENT TO THE
LAST LINE AN ARC DISTANCE OF 207.59 FEET TO A POINT REVERSE CURVATURE WITH A
CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 275.00 FEET, AND SUBTENDING A
CENTRAL ANGLE OF 18[DEGREES]46'15"; THENCE WESTERLY ALONG SAID CURVE TO THE
RIGHT FROM A
Page 2 of 3
<PAGE> 59
EXHIBIT A
RADIAL WHICH BEARS SOUTH 07[DEGREES]54'55" EAST, AN ARC DISTANCE OF 90.09 FEET;
THENCE NORTH 79[DEGREES]08'40" WEST TANGENT TO THE LAST CURVE, A DISTANCE OF
535.75 FEET; THENCE SOUTH 87[DEGREES]31'02" WEST, A DISTANCE OF 267.49 FEET;
THENCE SOUTH 88[DEGREES]25'23" WEST, A DISTANCE OF 557.88 FEET; THENCE NORTH
83[DEGREES]02'52" WEST, A DISTANCE OF 343.78 FEET; THENCE SOUTH
75[DEGREES]37'07" WEST, A DISTANCE OF 511.80 FEET; THENCE SOUTH
58[DEGREES]50'24" WEST, A DISTANCE OF 133.85 FEET; THENCE SOUTH
34[DEGREES]09'33" WEST, A DISTANCE OF 114.98 FEET; THENCE SOUTH
17[DEGREES]56'29"WEST, A DISTANCE OF 116.76 FEET; THENCE SOUTH
85[DEGREES]01'07" EAST, A DISTANCE OF 141.67 FEET TO A POINT ON A CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 45.00 FEET, AND SUBTENDING A CENTRAL
ANGLE OF 191[DEGREES]37'44"; THENCE SOUTHEASTERLY ALONG SAID CURVE TO THE LEFT
FROM A RADIAL WHICH BEARS SOUTH 57[DEGREES]53'18" WEST AN ARC DISTANCE OF
150.50 FEET TO A POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE EASTERLY
HAVING RADIUS OF 25.00 FEET, AND SUBTENDING A CENTRAL ANGLE OF
88[DEGREES]21'46"; THENCE NORTHERLY ALONG SAID CURVE TO THE RIGHT, FROM A
RADIAL WHICH BEARS SOUTH 46[DEGREES]15'34" WEST, AN ARC DISTANCE OF 38.56 FEET
TO A POINT OF COMPOUND CURVATURE WITH A CURVE HAVING A RADIUS OF 150.00 FEET
AND SUBTENDING A CENTRAL ANGLE OF 30[DEGREES]26'14"; THENCE NORTHEASTERLY ALONG
SAID CURVE TO THE RIGHT FROM A RADIAL WHICH BEARS NORTH 45[DEGREES]22'40" WEST,
AN ARC DISTANCE OF 79.68 FEET; THENCE NORTH 75[DEGREES]03'34" EAST, TANGENT TO
THE LAST CURVE, A DISTANCE OF 379.88 FEET TO A POINT ON A CURVE CONCAVE
SOUTHERLY HAVING A RADIUS OF 400.00 FEET AND SUBTENDING A CENTRAL ANGLE OF
21[DEGREES]53'34"; THENCE EASTERLY ALONG SAID CURVE TO THE RIGHT, FROM A RADIAL
WHICH BEARS NORTH 14[DEGREES]56'26" WEST, AN ARC DISTANCE OF 152.84 FEET;
THENCE SOUTH 83[DEGREES]02'52" EAST, TANGENT TO THE LAST CURVE, A DISTANCE OF
214,63 FEET TO A POINT ON A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 440.00
FEET AND SUBTENDING A CENTRAL ANGLE OF 08[DEGREES]31'45"; THENCE EASTERLY ALONG
SAID CURVE TO THE LEFT FROM A RADIAL WHICH BEARS SOUTH 06[DEGREES]57'08" WEST,
AN ARC DISTANCE OF 65.50 FEET; THENCE NORTH 88[DEGREES]25'23" EAST, TANGENT TO
THE LAST CURVE, A DISTANCE OF 538.68 FEET; THENCE NORTH 87[DEGREES]31'02" EAST,
A DISTANCE OF 249.50 FEET; THENCE SOUTH 79[DEGREES]08'40" EAST, A DISTANCE OF
604.10 FEET TO A POINT ON A CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 360.00
FEET, AND SUBTENDING A CENTRAL ANGLE OF 32[DEGREES]01'26"; THENCE EASTERLY
ALONG SAID CURVE TO THE RIGHT FROM A RADIAL WHICH BEARS NORTH 17[DEGREES]17'00"
WEST, AN ARC DISTANCE OF 201.21 FEET, THENCE SOUTH 75[DEGREES]15'34" EAST,
TANGENT TO THE LAST CURVE, A DISTANCE OF 565.54 FEET; THENCE SOUTH
04[DEGREES]51'24" EAST, A DISTANCE OF 132.69 FEET; THENCE SOUTH
75[DEGREES]15'34" EAST, A DISTANCE OF 219.70 FEET TO THE POINT OF BEGINNING.
Page 3 of 3
<PAGE> 60
EXHIBIT A-2
LEGAL DESCRIPTION
A LEASEHOLD ESTATE CREATED BY LEASE DATED APRIL 28, 1993 AND ADDENDUM DATED
JULY 28, 1993 AND ADDENDUM DATED OCTOBER 27, 1994 AND ADDENDUM DATED NOVEMBER
2, 1994 BY AND BETWEEN SENIOR TOUR PLAYERS, INC., A MASSACHUSETTS CORPORATION
AND ITS NOMINEE, SENIOR TOUR PLAYERS DEVELOPMENT, INC., A NEVADA CORPORATION,
AS LESSEE AND WILLIAM PECCOLE 1982 TRUST, A NEVADA TRUST, WILLIAM PETER AND
WANDA RUTH PECCOLE FAMILY LTD. PARTNERSHIP, WILLIAM PECCOLE AND WANDA PECCOLE
1971 TRUST, DATED JULY 8, 1971, LAURETTA P. BAYNE 1976 TRUST, DATED JUNE 14,
1976, LEANN P. GOORJIAN 1976 TRUST, DATED JUNE 14, 1976 AND THE WILLIAM PECCOLE
AND WANDA PECCOLE 1991 TRUST, DATED DECEMBER 26, 1991, AS LESSOR AS TO:
PARCEL 1:
- ---------
A PORTION OF SECTIONS 31 AND 32, TOWNSHIP 20 SOUTH, RANGE 60 EAST, M.D.M. CITY
OF LAS VEGAS, CLARK COUNTY, NEVADA AND DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 31 AS SHOWN ON A PARCEL MAP
RECORDED IN FILE 76 OF PARCEL MAPS, PAGE 65 IN THE OFFICE OF THE CLARK COUNTY
RECORDER, SAID POINT BEING THE CENTERLINE INTERSECTION OF CHARLESTON BLVD. AND
HUALAPAI WAY; THENCE N.06[DEGREES]05'57"W., ALONG THE CENTERLINE OF HUALAPAI
WAY AND THE WEST LINE OF SAID SECTION 31, A DISTANCE OF 893.94 FEET; THENCE
N.83[DEGREES]54'03"E., A DISTANCE OF 50.00 FEET TO A POINT ON THE EAST LINE OF
HUALAPAI WAY, THE POINT OF BEGINNING; THENCE N.64[DEGREES]15'40"E., A DISTANCE
OF 619.87 FEET; THENCE N.72[DEGREES]29'37"E., A DISTANCE OF 496.92 FEET; THENCE
S.68[DEGREES]25'40"E., A DISTANCE OF 319.98 FEET; THENCE S.87[DEGREES]40'02"E.,
A DISTANCE OF 513.23 FEET; THENCE N.87[DEGREES]55'09"E., A DISTANCE OF 1033.86
FEET; THENCE N.30[DEGREES]04'55"W., ALONG THE ALIGNMENT OF A PRIVATE DRIVE TO
BE KNOWN AS PALACE COURT, A DISTANCE OF 248.13 FEET TO A POINT ON A CURVE
CONCAVE EASTERLY HAVING A RADIUS OF 385.00 FEET AND SUBTENDING A CENTRAL ANGLE
OF 15[DEGREES]19'20"; THENCE NORTHWESTERLY ALONG SAID CURVE TO THE RIGHT AN ARC
DISTANCE OF 102.96 FEET; THENCE FROM A RADIAL WHICH BEARS N.75[DEGREES]14'25";
ON A LINE WHICH BEARS S.81[DEGREES]53'08"W., A DISTANCE OF 145.92 FEET; THENCE
S.87[DEGREES]55'09"W., A DISTANCE OF 310.00 FEET; THENCE N.82[DEGREES]21'29"W.,
A DISTANCE OF 374.79 FEET TO A POINT ON A CURVE CONCAVE SOUTHERLY, HAVING A
RADIUS OF 500.00 FEET AND SUBTENDING A CENTRAL ANGLE OF 14[DEGREES]37'17";
THENCE WESTERLY ALONG SAID CURVE TO THE LEFT, AN ARC DISTANCE OF 127.60 FEET;
THENCE S.83[DEGREES]01'14"W., TANGENT TO THE LAST CURVE, A DISTANCE OF 96.53
FEET TO A POINT ON A CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 350.00 FEET AND
SUBTENDING A CENTRAL ANGLE OF 27[DEGREES]10'03"; THENCE FROM A RADIAL WHICH
BEARS S.06[DEGREES]58'46"E., NORTHWESTERLY ALONG SAID CURVE TO THE RIGHT, AN
ARC DISTANCE OF 165.96 FEET; THENCE N.69[DEGREES]48'43"W., A DISTANCE OF 192.18
FEET; THENCE S.82[DEGREES]19'57"W., A DISTANCE OF 1093.43 FEET; THENCE
N.13[DEGREES]19'52"E., A DISTANCE OF 317.29 FEET; THENCE N.23[DEGREES]54'36"W.,
A DISTANCE OF 100.00 FEET; THENCE N.58[DEGREES]52'45"E., A DISTANCE OF 338.26
FEET; THENCE S.80[DEGREES]43'39"E., A DISTANCE OF 466.63 FEET; THENCE
N.76[DEGREES]45'03"E., A DISTANCE OF 419.28 FEET; THENCE N.83[DEGREES]01'14"E.,
A DISTANCE OF 469.82 FEET; THENCE N.73[DEGREES]41'43"E., A DISTANCE OF 243.69
FEET; THENCE
("CONTINUED ON NEXT PAGE")
------------------------
Page 1 of 5
<PAGE> 61
S.77[DEGREES]12'30"E., A DISTANCE OF 583.20 FEET; THENCE N.74[DEGREES]05'05"E.,
A DISTANCE OF 533.49 FEET; THENCE N.41[DEGREES]57'12"E., A DISTANCE OF 152.00
FEET; THENCE S.87[DEGREES]46'25"E., A DISTANCE OF 1006.93 FEET; THENCE
S.01[DEGREES]24'18"E., A DISTANCE OF 308.96 FEET; THENCE S.58[DEGREES]15'03"W.,
A DISTANCE OF 493.93 FEET; THENCE S.74[DEGREES]49'16"W., A DISTANCE OF 284.31
FEET; THENCE S.83[DEGREES]26'16"W., A DISTANCE OF 556.80 FEET; THENCE
S.81[DEGREES]53'08"W., A DISTANCE OF 277.45 FEET TO A POINT ON A CURVE CONCAVE
EASTERLY, HAVING A RADIUS OF 295.00 FEET AND SUBTENDING A CENTRAL ANGLE OF
13[DEGREES]16'52"; THENCE FROM A RADIAL WHICH BEARS N.73[DEGREES]11'57"E.,
SOUTHEASTERLY ALONG SAID CURVE TO THE LEFT AN ARC DISTANCE OF 68.38 FEET;
THENCE S.30[DEGREES]04'55"E., TANGENT TO THE LAST CURVE A DISTANCE OF 289.63
FEET; THENCE S.30[DEGREES]04'58"E., A DISTANCE OF 376.81 FEET TO A POINT ON A
CURVE CONCAVE WESTERLY HAVING A RADIUS OF 1245.00 FEET AND SUBTENDING A CENTRAL
ANGLE OF 23[DEGREES]02'44"; THENCE SOUTHEASTERLY ALONG SAID CURVE TO THE RIGHT
AN ARC DISTANCE OF 500.76 FEET TO A POINT OF REVERSE CURVATURE WITH A CURVE
CONCAVE NORTHEASTERLY HAVING A RADIUS OF 10.00 FEET AND SUBTENDING A CENTRAL
ANGLE OF 80[DEGREES]48'41"; THENCE FROM A RADIAL WHICH BEARS
S82[DEGREES]57'46"W., SOUTHEASTERLY ALONG CURVE TO THE LEFT AN ARC DISTANCE OF
14.10 FEET; THENCE S.87[DEGREES]50'55"E., TANGENT TO THE LAST CURVE, A DISTANCE
OF 137.05 FEET TO A POINT ON A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF
105.00 FEET AND SUBTENDING A CENTRAL ANGLE OF 32[DEGREES]14'09"; THENCE FROM A
RADIAL WHICH BEARS S.02[DEGREES]09'05"W., NORTHEASTERLY ALONG SAID CURVE AN ARC
DISTANCE OF 59.08 FEET; THENCE N.59[DEGREES]54'56"E., TANGENT TO THE LAST
CURVE, A DISTANCE OF 117.66 FEET TO A POINT ON A CURVE CONCAVE SOUTHEASTERLY,
HAVING A RADIUS OF 106.00 FEET AND SUBTENDING A CENTRAL ANGLE OF
14[DEGREES]20'56"; THENCE FROM A RADIAL WHICH BEARS N.30[DEGREES]05'04"W.,
SOUTHEASTERLY ALONG SAID CURVE, AN ARC DISTANCE OF 26.55 FEET; THENCE
N.05[DEGREES]47'04"W., TANGENT TO THE LAST CURVE, A DISTANCE OF 511.45 FEET;
THENCE N.73[DEGREES]26'22"E., A DISTANCE OF 743.81 FEET; THENCE
N.59[DEGREES]07'42"E., A DISTANCE OF 726.09 FEET; THENCE S.41[DEGREES]09'26"E.,
A DISTANCE OF 512.31 FEET; THENCE S.50[DEGREES]04'02"W., A DISTANCE OF 518.76
FEET; THENCE S.03[DEGREES]23'10"E. A DISTANCE OF 416.56 FEET; THENCE
N.89[DEGREES]33'15"W., A DISTANCE OF 518.10 FEET; THENCE S.82[DEGREES]42'54"W.,
A DISTANCE OF 204.18 FEET; THENCE S.75[DEGREES]59'22"W., A DISTANCE OF 524.36
FEET; THENCE S.64[DEGREES]47'20"W., A DISTANCE OF 256.61 FEET; THENCE
S.00[DEGREES]00'00"W., A DISTANCE OF 46.08 FEET; THENCE S.69[DEGREES]19'51"E.,
A DISTANCE OF 156.06 FEET; THENCE N.89[DEGREES]40'03" E., ALONG A LINE PARALLEL
WITH AND 73.00 FEET NORTH OF THE SOUTH LINE OF SAID SECTION 31, ALSO BEING THE
CENTERLINE OF CHARLESTON BLVD., A
("CONTINUED ON NEXT PAGE")
------------------------
Page 2 of 5
<PAGE> 62
DISTANCE OF 1556.83 FEET; THENCE N.02[DEGREES]40'39"E., A DISTANCE OF 718.24
FEET; THENCE N.60[DEGREES]00'23"E., A DISTANCE OF 752.07 FEET; THENCE
N.39[DEGREES]15'37"E., A DISTANCE OF 50.00 FEET; THENCE S.33[DEGREES]39'42"E.,
A DISTANCE OF 243.50 FEET; THENCE N.89[DEGREES]26'21"E., A DISTANCE OF 60.00
FEET TO A POINT ON THE WEST LINE OF THAT CERTAIN PARCEL OF LAND SHOWN AS
L.V.V.W.D., A.P.N.=138-32-401-001 ON THE AFORESAID PARCEL MAP; THENCE
N.00[DEGREES]33'39"W., A DISTANCE OF 325.00 FEET TO THE NORTHWEST CORNER OF THE
AFORESAID PARCEL; THENCE S.89[DEGREES]26'21"W., A DISTANCE OF 122.37 FEET;
THENCE N.03[DEGREES]15'12"E., A DISTANCE OF 185.92 FEET; THENCE
N.45[DEGREES]06'08"E., A DISTANCE OF 322.73 FEET; THENCE S.87[DEGREES]19'36"E.,
A DISTANCE OF 204.43 FEET; THENCE N.56[DEGREES]10'59"E., A DISTANCE OF 572.72
FEET; THENCE N.65[DEGREES]08'21"E., A DISTANCE OF 245.50 FEET TO A POINT ON THE
WEST RIGHT-OF-WAY LINE OF RAMPART BLVD.; THENCE N.39[DEGREES]51'15"E., A
DISTANCE OF 859.38 FEET TO A POINT ON A CURVE CONCAVE SOUTHWESTERLY HAVING A
RADIUS OF 54.00 FEET AND SUBTENDING A CENTRAL ANGLE OF 90[DEGREES]00'00";
THENCE NORTHWESTERLY ALONG SAID CURVE TO THE LEFT, AN ARC DISTANCE OF 84.82
FEET; THENCE N.50[DEGREES]08'45" W., TANGENT TO THE LAST CURVE AND ALONG THE
FUTURE ALTA DRIVE, A DISTANCE OF 2.17 FEET TO A POINT ON A CURVE CONCAVE
SOUTHERLY, HAVING A RADIUS OF 760.00 FEET AND SUBTENDING A CENTRAL ANGLE OF
33[DEGREES]40'45"; THENCE FROM A RADIAL WHICH BEARS N.39[DEGREES]51'14"E.,
WESTERLY ALONG SAID CURVE TO THE LEFT AND ALONG THE SAID FUTURE SOUTH
RIGHT-OF-WAY LINE OF ALTA DRIVE, AN ARC DISTANCE OF 446.74 FEET; THENCE LEAVING
SAID CURVE FROM A RADIAL WHICH BEARS N.06[DEGREES]10'29"E., ON A BEARING OF
S.55[DEGREES]19'16"W., A DISTANCE OF 845.91 FEET; THENCE S.65[DEGREES]09'52"W.,
A DISTANCE OF 354.20 FEET; THENCE N.88[DEGREES]08'01"W., A DISTANCE OF 211.78
FEET; THENCE N.68.42'48"W., A DISTANCE OF 233.33 FEET; THENCE
N.10[DEGREES]17'23"E., A DISTANCE OF 227.70 FEET; THENCE N.19[DEGREES]42'37"W.,
A DISTANCE OF 220.00 FEET; THENCE, N.50[DEGREES]25'37"W., A DISTANCE OF 101.70
FEET; THENCE N.39[DEGREES]33'23"E., A DISTANCE OF 247.84 FEET TO A POINT ON A
CURVE CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 25.00 FEET AND SUBTENDING A
CENTAL ANGLE OF 85[DEGREES]40'28"; THENCE NORTHEASTERLY ALONG SAID CURVE TO THE
RIGHT, AN ARC DISTANCE OF 37.38 FEET TO A POINT ON A CURVE CONCAVE
NORTHEASTERLY, HAVING A RADIUS OF 1040.00 FEET AND SUBTENDING A CENTRAL ANGLE
OF 06[DEGREES]59'56"; THENCE NORTHWESTERLY FROM A RADIAL WHICH BEARS
S.35[DEGREES]13'51"E. ALONG SAID CURVE TO THE RIGHT, BEING THE FUTURE SOUTH
RIGHT-OF-WAY LINE OF ALTA DRIVE, AN ARC DISTANCE OF 127.04 FEET TO A POINT ON A
CURVE, CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 25.00 FEET AND SUBTENDING A
CENTRAL ANGLE OF 87[DEGREES]19'36"; THENCE SOUTHEASTERLY FROM A RADIAL WHICH
BEARS N.42[DEGREES]13'47"E., ALONG SAID CURVE TO THE RIGHT AN ARC DISTANCE OF
38.10 FEET; THENCE
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Page 3 of 5
<PAGE> 63
S.39[DEGREES]33'23"W., TANGENT TO THE LAST CURVE, A DISTANCE OF 245.97 FEET;
THENCE N.90[DEGREES]00'00"W., A DISTANCE OF 127.77 FEET; THENCE S.39[DEGREES]
33'23"W., A DISTANCE OF 220.56 FEET; THENCE S.09[DEGREES]40'24"E., A DISTANCE
OF 275.89 FEET; THENCE N.83[DEGREES]54'34"W., A DISTANCE OF 254.65 FEET; THENCE
S.86[DEGREES]47'39"W., A DISTANCE OF 617.43 FEET; THENCE S.79[DEGREES]01'40"W.,
A DISTANCE OF 495.51 FEET; THENCE N.54[DEGREES]56'11"W., A DISTANCE OF 206.04
FEET; THENCE N.80[DEGREES]50'57"W., A DISTANCE OF 221.28 FEET; THENCE
S.88[DEGREES]22'40"W., A DISTANCE OF 338.29 FEET; THENCE S.63[DEGREES]54'06"W.,
A DISTANCE OF 573.96 FEET; THENCE N.77[DEGREES]42'42"W., A DISTANCE OF 167.96
FEET; THENCE N.85[DEGREES]50'10"W., A DISTANCE OF 283.93 FEET; THENCE
N.89[DEGREES]18'01"W., A DISTANCE OF 357.11 FEET; THENCE S.84[DEGREES]07'53"W.,
A DISTANCE OF 269.16 FEET; THENCE S.75[DEGREES]37'07"W., A DISTANCE OF 386.72
FEET; THENCE S.81[DEGREES]11'34"W., A DISTANCE OF 265.35 FEET; THENCE
N.83[DEGREES]33'51"W., A DISTANCE OF 185.18 FEET; THENCE N.67[DEGREES]39'10"W.,
A DISTANCE OF 232.62 FEET; THENCE S.73[DEGREES]01'48"W., A DISTANCE OF 355.57
FEET; THENCE S.67[DEGREES]05'17"W., A DISTANCE OF 382.31 FEET; THENCE
N.88[DEGREES]42'44"W., A DISTANCE OF 108.52 FEET TO A POINT ON THE WEST
RIGHT-OF-WAY OF HUALAPAI WAY; THENCE S.06[DEGREES]05'57"E., ALONG THE SAID WEST
RIGHT-OF-WAY OF HUALAPAI WAY A DISTANCE OF 1315.32 FEET TO THE POINT OF
BEGINNING.
PARCEL II:
- ----------
AN EASEMENT FOR A CART PATH, PRIVATE ROADWAY AND WALKWAY WITH THE RIGHT OF
INGRESS AND EGRESS AS CREATED BY AN INSTRUMENT AND RECORDED ______________ IN
BOOK _______ OF OFFICIAL RECORDS, CLARK COUNTY NEVADA, AS DOCUMENT NO. ________
OVER AND ACROSS THE FOLLOWING:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 31 AS SHOWN ON A PARCEL MAP
RECORDED IN FILE 76 OF PARCEL MAPS, PAGE 65 IN THE OFFICE OF THE CLARK COUNTY
RECORDER, SAID POINT BEING THE CENTERLINE INTERSECTION OF CHARLESTON BLVD. AND
HUALAPAI WAY; THENCE N. 06[DEGREES]05'57" W., ALONG THE CENTERLINE OF HUALAPAI
WAY AND THE WEST LINE OF SAID SECTION 31, A DISTANCE OF 893.94 FEET; THENCE
N. 83[DEGREES]54'03" E., A DISTANCE OF 50.00 FEET TO A POINT ON THE EAST LINE OF
HUALAPAI WAY, THENCE N. 64[DEGREES]15'40" E., A DISTANCE OF 619.87 FEET; THENCE
N. 72[DEGREES]29'37" E., A DISTANCE OF 496.92 FEET, THENCE S.68[DEGREES]25'40"
E., A DISTANCE OF 319.98 FEET; THENCE S.87[DEGREES]40'02" E., A DISTANCE OF
513.23 FEET; THENCE N.87[DEGREES]55'09" E., A DISTANCE OF 1033.86 FEET TO A
POINT ON THE WEST LINE OF THE FUTURE PALACE COURT (A PRIVATE STREET) SAID POINT
BEING THE POINT OF BEGINNING; THENCE N. 59[DEGREES]55'05" E., A DISTANCE OF
90.00 FEET TO A POINT ON THE EAST LINE OF
("CONTINUED ON NEXT PAGE")
------------------------
Page 4 of 5
<PAGE> 64
SAID PALACE COURT HEREINAFTER REFERRED TO AS POINT "A"; THENCE
N.30[DEGREES]04'55"W., ALONG THE SAID EAST LINE OF PALACE COURT A DISTANCE OF
248.13 FEET TO A POINT ON A CURVE CONCAVE EASTERLY, HAVING A RADIUS OF 295.00
FEET AND SUBTENDING A CENTRAL ANGLE OF 13[DEGREES]16'62"; THENCE NORTHERLY ALONG
SAID TANGENT CURVE, TO THE RIGHT AN ARC DISTANCE OF 68.38 FEET; THENCE
S.81[DEGREES]53'08"W., A DISTANCE OF 90.80 FEET TO A POINT ON THE SAID WESTERLY
LINE OF PALACE COURT BEING ON A CURVE CONCAVE EASTERLY, HAVING A RADIUS OF
385.00 FEET AND SUBTENDING A CENTRAL ANGLE OF 15[DEGREES]19'20"; THENCE
SOUTHEASTERLY ALONG SAID CURVE, FROM A RADIAL WHICH BEARS S.75[DEGREES]14'25"W.,
TO THE RIGHT AN ARC DISTANCE OF 102.96 FEET; THENCE S.30[DEGREES]04'55"E., ALONG
SAID WESTERLY LINE OF PALACE COURT A DISTANCE OF 248.13 FEET TO THE POINT OF
BEGINNING.
PARCEL III:
- -----------
AN EASEMENT FOR A CART PATH, PRIVATE ROADWAY AND WALKWAY WITH THE RIGHT OF
INGRESS AND EGRESS AS CREATED BY AN INSTRUMENT RECORDED ___________________ IN
BOOK _______________ OF OFFICIAL RECORDS, CLARK COUNTY NEVADA, AS DOCUMENT NO.
___________ OVER AND ACROSS THE FOLLOWING:
COMMENCING AT THE AFORESAID POINT "A", THENCE S.30[DEGREES]04'55"E., ALONG THE
GOLF COURSE BOUNDARY AND THE EASTERLY LINE OF THE SAID PALACE COURT, A DISTANCE
OF 41.50 FEET; THENCE S.30[DEGREES]04'58"E., A DISTANCE OF 376.81 FEET TO A
POINT ON A CURVE CONCAVE WESTERLY HAVING A RADIUS OF 1245.00 FEET AND SUBTENDING
A CENTRAL ANGLE OF 23[DEGREES]02'44"; THENCE SOUTHEASTERLY ALONG SAID CURVE TO
THE RIGHT AN ARC DISTANCE OF 500.76 FEET TO A POINT OF REVERSE CURVATURE WITH A
CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 10.00 FEET AND SUBTENDING A
CENTRAL ANGLE OF 80[DEGREES]48'41"; THENCE FROM A RADIAL WHICH BEARS
S.82[DEGREES]57'46"W., SOUTHEASTERLY ALONG CURVE TO THE LEFT AN ARC DISTANCE OF
14.10 FEET; THENCE S.87[DEGREES]50'55"E., THENCE FROM A RADIAL WHICH BEARS
DISTANCE OF 14.10 FEET; THENCE S.87[DEGREES]50'55"E., TANGENT TO THE LAST CURVE,
A DISTANCE OF 118.78 FEET TO A POINT OF BEGINNING OF A 40.00 FOOT WIDE EASEMENT
BEING 20.00 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED LINE; THENCE
S.02[DEGREES]09'05"W., ACROSS THE PRIVATE ACCESS ROAD TO PECCOLE WEST LOT 9, A
DISTANCE OF 72.00 FEET; THENCE S.27[DEGREES]15'23"E., A DISTANCE OF 56.89 FEET;
THENCE N.66[DEGREES]59'15"E., A DISTANCE OF 113.93 FEET; THENCE
S.54[DEGREES]05'43"E., A DISTANCE OF 73.85 FEET TO A POINT ON THE BOUNDARY LINE
OF THE GOLF COURSE BEING THE POINT OF ENDING. THE POINT OF ENDING IS AT A POINT
ON THE BOUNDARY WHICH BEARS S.64[DEGREES]47'20" W., A DISTANCE OF 33.15 FEET
FROM THE SOUTHWEST CORNER OF LOT 9 AS SHOWN ON THE ALTA SURVEY MAP. THE
SIDELINES OF THE AFORESAID EASEMENT SHALL BE LENGTHENED OR SHORTENED TO CREATE A
CONTINUOUS STRIP OF LAND AND TERMINATE AT THE BOUNDARY LINES OF THE GOLF COURSE
PROPERTY.
("CONTINUED ON NEXT PAGE")
------------------------
Page 5 of 5
<PAGE> 65
EXHIBIT B
---------
CONSTRUCTION WORK
-----------------
Construction of an additional nine (9) golf holes and related amenities at the
Badlands Golf Course.
2
<PAGE> 66
EXHIBIT C
---------
CONSTRUCTION SCHEDULE
---------------------
<PAGE> 67
EXHIBIT C
<TABLE>
Construction Schedule 20-Nov-96
- ------------------------------------------------------------------------------------------------------------------------------------
Badlands Golf Club
- ------------------------------------------------------------------------------------------------------------------------------------
Third Nine
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
1996 1997
- ------------------------------------------------------------------------------------------------------------------------------------
Item July-October November December January February March April May June July August September Item
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Design [-----------------------] Design
- ------------------------------------------------------------------------------------------------------------------------------------
Engineering [------------------] Engineering
- ------------------------------------------------------------------------------------------------------------------------------------
Permits [---------------] Permits
- ------------------------------------------------------------------------------------------------------------------------------------
Staking [------] Staking
- ------------------------------------------------------------------------------------------------------------------------------------
Blasting [-------------] Blasting
- ------------------------------------------------------------------------------------------------------------------------------------
Major Earthwork [-----------------------------] Major Earthwork
- ------------------------------------------------------------------------------------------------------------------------------------
Rough Shaping [---------------------------] Rough Shaping
- ------------------------------------------------------------------------------------------------------------------------------------
Storm Drainage [-------------------------] Storm Drainage
- ------------------------------------------------------------------------------------------------------------------------------------
Lake Sealing [--------] Lake Sealing
- ------------------------------------------------------------------------------------------------------------------------------------
Irrigation [--------------------------------] Irrigation
- ------------------------------------------------------------------------------------------------------------------------------------
Feature Feature
construction [----------------] construction
- ------------------------------------------------------------------------------------------------------------------------------------
Cart Paths [----------------] Cart Paths
- ------------------------------------------------------------------------------------------------------------------------------------
Landscaping [---] [-------] Landscaping
- ------------------------------------------------------------------------------------------------------------------------------------
Topsoil Plating [--------------] Topsoil Plating
- ------------------------------------------------------------------------------------------------------------------------------------
Grassing [-------] Grassing
- ------------------------------------------------------------------------------------------------------------------------------------
Grow-In [------------------] Grow-In
- ------------------------------------------------------------------------------------------------------------------------------------
Opening **** Opening
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 68
EXHIBIT D
---------
NOTE
----
<PAGE> 69
EXHIBIT D
PROMISSORY NOTE (SECURED)
-------------------------
$5,000,000.00 November 15, 1996
FOR VALUE RECEIVED, the undersigned, THE BADLANDS GOLF CLUB, INC., a Nevada
corporation ("BORROWER"), promises to pay to the order of NATIONSCREDIT
COMMERCIAL CORPORATION, a Delaware corporation with a principal place of
business at One Canterbury Green, P.O. Box 120013, Stamford, Connecticut
06912-0013 ("LENDER"), to the account set forth in SUBSECTION 2.d below or at
such other place as Lender may from time to time direct, the principal sum of up
to FIVE MILLION AND 00/100 DOLLARS ($5,000,000.00), or so much thereof as may
have been advanced pursuant hereto and to the Loan Agreement, on or before the
Maturity Date (both as defined below), together with interest thereon, all as
hereinafter provided. Interest shall be computed and accrue on the principal
amount hereof from time to time outstanding from the date advanced to the date
of payment at a rate per annum equal to the Interest Rate (as defined below).
1. DEFINITIONS. In addition to terms defined elsewhere in this Note, the
following terms shall have the following definitions:
a. "ADVANCE" shall mean an advance by Lender to Borrower in accordance
with this Note or the Loan Agreement.
b. "Business Day" shall mean any day other than a Saturday, Sunday or
legal holiday on which commercial banks are authorized or required to be closed
in Illinois or Connecticut.
c. "DEFAULT RATE" shall mean a rate per annum equal to the lesser of (i)
five percent (5%) per annum plus the Interest Rate, and (ii) the Maximum Rate.
d. "DOLLARS" and the symbol "$" shall mean lawful money of the United
States of America.
e. "DSCR" shall mean the debt service coverage ratio, as determined by
Lender pursuant to the Loan Agreement.
f. EVENT OF DEFAULT" shall mean (i) the failure by Borrower to pay any
installment of principal or interest under this Note within five (5) days
following the due date thereof, (ii) the failure by Borrower to pay all sums
owed to Lender under this Note and every Loan Document on or before the Maturity
Date, (iii) the occurrence of any Event of Default under the Loan Agreement, the
Mortgage or any other Loan Document, or (iv) the occurrence of any Event of
Default under any of the documents evidencing or securing the Other Loan.
g. EXTENDED TERM shall have the meaning set forth in SECTION 13 of this
Note.
<PAGE> 70
h. "FIXED RATE" shall mean 10.95% per annum.
i. "GUARANTOR" shall mean Senior Tour Players Development, Inc.
j. "INCIPIENT DEFAULT" shall mean any condition which with the giving of
notice or passage of time, or both, would constitute an Event of Default.
k. "INTEREST RATE" shall mean the lesser of (i) the Maximum Rate, and
(ii) the Fixed Rate or the Default Rate, as applicable, from time to time in
effect hereunder.
1. "LOAN" shall mean the loan from Lender to Borrower evidenced by this
Note and by the Loan Agreement.
m. "LOAN AGREEMENT" shall mean that certain Loan Agreement of even date
herewith by and between Lender and Borrower which, together with this Note,
evidences the Loan.
n. "LOAN DOCUMENTS" shall have the meaning set forth in the Loan
Agreement. Any reference in this Note to any document which is a "Loan Document"
shall mean such document as hereafter amended, modified or supplemented.
o. "LOAN MONTH" shall mean any full calendar month during the term of
this Note, with the first Loan Month being December, 1996 and the final Loan
Month being November, 2001. The first Loan Month shall be deemed to include the
partial month commencing on the date of this Note.
p. "MATURITY DATE" shall mean the earlier to occur of: (i) December 1,
2001; or (ii) the date on which the entire principal amount evidenced by this
Note and all accrued and unpaid interest thereon shall be paid or be required to
be paid in full, whether by prepayment, acceleration or otherwise in accordance
with the terms of this Note or any of the Loan Documents.
q. "MAXIMUM RATE" shall mean the maximum interest rate allowed by
applicable law in effect with respect to the Loan on the date for which a
determination of interest accrued hereunder is made and after taking into
account all fees, payments and other charges which are, under applicable law,
characterized as interest.
r. "MORTGAGE" shall mean that certain Deed of Trust and Security
Agreement of even date herewith from Borrower to First American Title Company of
Nevada, Trustee securing the Loan.
s. "MORTGAGED PROPERTY" shall have the meaning set forth in Article I of
the Mortgage.
t. "NET CASH FLOW PAYMENT" shall mean 100% of the Net Cash Flow (as
defined in the Loan Agreement) for the Loan Month in question.
2
<PAGE> 71
u. "OTHER LOAN" shall mean the loan by Lender to Borrower in the
original maximum principal amount of $6,700,000.00, which loan is evidenced by a
promissory note dated December 22, 1995, executed by Borrower in favor of
Lender.
v. "PREPAYMENT FACTOR" shall mean two percent (2%) commencing on the
first day of the twenty-fifth (25th) Loan Month through and including the last
day of the thirty-sixth (36th) Loan Month; provided, however, that if a
prepayment occurs during first twenty-four (24) Loan Months under the
circumstances described in SUBSECTION 4.d below, the Prepayment Factor shall be
five percent (5%). During the Extended Term, if any, each of the references to
"Loan Month" set forth above in this SUBSECTION 1.y, shall automatically be
revised to read as follows: "Loan Month of the Extended Term."
w. "PREPAYMENT FEE" shall mean the product of (i) the outstanding
principal balance of this Note at the time of a prepayment (or, under the
circumstances described in SECTION 7,1.F(VII) of the Loan Agreement, the amount
of insurance proceeds applied by Lender to the outstanding principal balance of
this Note), and (ii) the Prepayment Factor then in effect.
x. "PAR FUNDS" shall have the meaning set forth in the Loan Agreement.
2. Payment Of Interest and Principal.
---------------------------------
a. On the date of this Note, Borrower shall pay to Lender a payment of
interest only at the Interest Rate on the principal amount of the Loan
commencing on the date of this Note through the last day of the current calendar
month.
b. Commencing on January 1, 1997 and continuing on the first day of each
Loan Month thereafter until and including the Maturity Date, Borrower shall pay
to Lender the sum of (i) all accrued interest at the Interest Rate on the
principal amount hereof then outstanding and (ii) installments of principal for
each Loan Month in the amounts set forth on EXHIBIT A attached hereto, which
amounts are calculated to be equal to the amount which would be sufficient to
amortize the principal balance of this Note over a twenty (20) year term
commencing on the date hereof (or the remainder of said term at the time of each
such monthly payment), with interest accruing thereon at ten percent (10%) per
annum; provided that on the Maturity Date, the entire unpaid principal balance
of this Note and all accrued and unpaid interest shall be due and payable.
c. In addition to the payments required under SUBSECTIONS 2.a and 2.b
above, Lender shall have the right, subject to and in accordance with SECTION
4.1.R of the Loan Agreement, to apply PAR Funds held by Lender to payment of (i)
the outstanding principal balance of this Note, or (ii) upon the occurrence of
an Event of Default, amounts then due and payable under the Loan Documents in
such order and priority as Lender may elect in its sole and absolute discretion.
Said mandatory payments made pursuant to SECTION 4.1.R of the Loan Agreement
shall not be subject to the Prepayment Fee.
3
<PAGE> 72
d. The entire outstanding principal amount of the Loan, and all accrued
and unpaid interest thereon, shall be due and payable on the Maturity Date.
Borrower acknowledges and agrees that a substantial portion of the principal
balance evidenced by this Note will be outstanding and due and payable on the
Maturity Date.
e. All payments hereunder shall be made by wire transfer of immediately
available federal funds without set-off or counterclaim and shall be made to the
following account of Lender prior to 1:30 p.m., Eastern Standard Time, on the
date due:
FIRST NATIONAL BANK OF CHICAGO
CHICAGO, ILLINOIS
ABA#071000013
ACCOUNT NUMBER:#52-56933
ACCOUNT NAME: NATIONSCREDIT COMMERCIAL CORPORATION
REFERENCE: THE BADLANDS GOLF CLUB, INC.
Whenever any payment to be made hereunder shall be stated to be due on a date
other than a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall be included in the calculation of
interest on such principal. Any payments received after 1:30 p.m., Eastern
Standard Time shall be deemed received on the next Business Day and shall
include interest to such next Business Day.
f. All interest required to be paid by Borrower hereunder shall be
calculated on the basis of a year consisting of 360 days and shall be paid in
arrears for the actual number of days elapsed, calculated as to each Advance
from and including the date the applicable period commences to, but not
including, the date such period ends.
g. If any regular monthly installment of principal and interest shall
not be paid at the place required under this Note on or before the fifth (5th)
day following the due date thereof, Borrower shall pay to Lender a late charge
(the "LATE CHARGE") of five cents ($0.05) for each Dollar so overdue in order to
compensate Lender for its frustration in the meeting of its financial and loan
commitments and to defray part of Lender's expenses incident to handling such
delinquent payments. This charge shall be in addition to any other remedy Lender
may have and is in addition to Lender's right to collect reasonable fees and
charges of any agents or attorneys which Lender employs in connection with any
Event of Default. To the extent that any Late Charge shall constitute interest
under applicable law, the amount thereof, together with all other interest
hereunder and under the Loan Documents, shall be expressly limited to the
Maximum Rate. Nothing herein contained shall be deemed to constitute a waiver or
modification of the due date for such installments or any deposits required to
be made hereunder or under any of the Loan Documents or the requirement that
Borrower make all payments of installments and deposits as and when the same are
due and payable. In addition, Borrower shall pay to Lender interest at the
Default Rate on (i) any part of any regular monthly installment of principal and
interest which is not paid on or before the fifth (5th) day following the due
date thereof, and (ii) any other amounts owed to Lender hereunder or under any
Loan Document which are not paid on or before the tenth
4
<PAGE> 73
(10th) day following the due date thereof; such interest at the Default Rate
shall be calculated from the date the payment in question became due to the date
such payment is made.
h. Intentionally Deleted.
i. All agreements between Borrower and Lender, whether now existing or
hereafter arising and whether written or oral, are hereby expressly limited so
that in no contingency or event, whether by reason of acceleration of the
maturity of this Note or otherwise, shall the amount paid, or agreed to be paid
to Lender for the use, forbearance, or detention of the money to be loaned under
this Note or otherwise or for the payment or performance of any covenant or
obligation contained herein or in any other document evidencing, securing or
pertaining to the Loan exceed the Maximum Rate. If from any circumstances
whatsoever fulfillment of any provision hereof or any of such other agreements
shall cause the amount paid to exceed the Maximum Rate, then IPSO FACTO, the
amount paid to Lender shall be reduced to the Maximum Rate, and if from any such
circumstances Lender shall ever receive interest which exceeds the Maximum Rate,
such amount which would be excessive interest shall be applied to the reduction
of the principal of this Note and not to the payment of interest, or if such
excessive interest exceeds the unpaid balance of principal of this Note, such
excess shall be refunded to Borrower. All sums paid or agreed to be paid to
Lender for the use, forbearance or detention of the indebtedness of Borrower to
Lender shall, to the extent permitted by applicable law, (i) be amortized,
prorated, allocated and spread throughout the full term of such indebtedness
until payment in full, so that the actual rate of interest on account of such
indebtedness does not exceed the Maximum Rate throughout the term thereof; (ii)
be characterized as a fee, expense or charge other than interest; and (iii)
exclude any voluntary prepayments and the effects thereof. The terms and
provisions of this SUBSECTION 2.i shall control and supersede every other
provision of all agreements between Lender and Borrower.
j. Except as otherwise expressly provided in this Note, the Loan
Agreement or the Mortgage, each payment received by Lender shall be applied by
Lender to amounts outstanding under the Loan Documents in such order and
priority as Lender may elect in its sole and absolute discretion; provided,
however, that if at the time of any payment there is due and payable any portion
of the principal balance of this Note and sums not constituting repayment of
principal, then such payment shall first be allocated to sums not constituting
repayment of principal (in such order of priority as among the various
obligations constituting such sums as Lender may elect in its sole and absolute
discretion) before Lender applies such payments to the reduction of the
outstanding principal balance of this Note.
3. ADVANCE. (a) On the date hereof, Lender has advanced to or for the
benefit of Borrower the sum of Two Hundred Five Thousand Three Hundred
Sixty-three and 92/100 Dollars ($205,363.92) and Borrower hereby acknowledges
its receipt of said funds.
(b) So long as no Event of Default or Incipient Default exists, Lender
shall, on the terms and conditions set forth in the Loan Agreement, make
construction advances to or for the benefit of Borrower of up to $3,794,636.08.
5
<PAGE> 74
(c) So long as no Event of Default or Incipient Default exists, and
subject to the terms and conditions set forth in the Loan Agreement, Lender
shall make earnout advances to or for the benefit of Borrower of up to
$1,000,000.00.
4. PREPAYMENT. The Loan may not be prepaid, in whole or in part, at any
time during the term hereof, except as expressly set forth below.
a. Prepayment in full of the Loan is permitted at any time on or after
the first day of the twenty-fifth (25th) Loan Month and prior to the Maturity
Date; provided, however, that upon any such prepayment in full which is made on
or before the last day of the thirty-sixth (36th) Loan Month, Borrower shall
also pay Lender the Prepayment Fee. The Prepayment Fee is consideration for the
privilege of making such prepayment, and shall be paid to Lender simultaneously
with the making of the prepayment. The Prepayment Fee shall not apply to
prepayment in part or in full made pursuant to SECTION 2.5 of the Mortgage or
SECTION 7.1.D of the Loan Agreement. Any such prepayment permitted hereunder
and made by Borrower shall be applied to the repayment of the Loan in accordance
with SUBSECTION 2.j of this Note; provided however, that any sums applied to the
principal balance of this Note shall be so applied in the inverse order of
maturity.
b. Borrower shall give Lender thirty (30) days prior written notice of a
proposed prepayment, which notice shall be irrevocable. Borrower's failure to
make a prepayment in full in accordance with such a written notice from Borrower
to Lender shall constitute an Event of Default.
c. Any tender of payment by Borrower or any other party, except as
expressly set forth in this SECTION 4, shall constitute a prohibited prepayment
hereunder.
d. If an Event of Default shall occur, whether or not the maturity of
this Note has been accelerated, then a tender of payment by Borrower, or by any
entity on behalf of Borrower, of the amount necessary to satisfy all sums due
under this Note and the Loan Documents (including, without limitation, any sums
due on any judgment rendered in any action) made at a time prior to, during or
after a judicial foreclosure or a sale pursuant to the exercise of a power of
sale of the property subject to the Loan Documents, must, to the extent
permitted by law and subject to the provisions of SUBSECTION 2.i of this Note,
be accompanied by the Prepayment Fee, if the Prepayment Fee would otherwise be
applicable at the time of said Event of Default. Borrower acknowledges that
Lender has relied upon the anticipated investment return under this Note in
entering into this transaction and in making commitments to third parties.
e. Borrower acknowledges that the Prepayment Fee represents a reasonable
estimate of a fair and equitable compensation for the loss that may be sustained
by Lender due to the prepayment of the principal sum evidenced by this Note. The
Prepayment Fee shall be paid without prejudice to the right of Lender to collect
any other amounts provided to be paid under the Loan Documents. Nothing herein
contained shall constitute an agreement on the part of Lender to accept any
prepayment, other than as expressly provided in SUBSECTION 4.a above.
6
<PAGE> 75
5. DEFAULT. Upon the occurrence of any Event of Default, the principal
amount of the Loan, together with all accrued interest thereon and all amounts
due and payable hereunder (including the Prepayment Fee, if applicable) shall
immediately become due and payable on demand. If this Note, or any part hereof,
is not paid when due, whether by acceleration or otherwise, Borrower promises to
pay all costs of collection, including, but not limited to, reasonable
attorneys' fees and disbursements, incurred by the holder hereof on account of
such collection, whether or not suit is filed hereon. Additionally, after the
Maturity Date, the Interest Rate shall without notice immediately become the
Default Rate.
6. NOTICES. All notices, demands and requests required or desired to be
given hereunder shall be in writing and shall be delivered in person, by United
States registered or certified mail, return receipt requested, postage prepaid,
or by overnight courier addressed as follows:
To Borrower:
The Badlands Golf Club, Inc.
c/o Senior Tour Players Development, Inc.
266 Beacon Street
Boston, Massachusetts 02116
Attn: Stanton V. Abrams, President
with a copy to:
Davis, Malm & D'Agostine, P.C.
One Boston Place
Boston, Massachusetts 02108
Attn: Alan L. Stanzler, Esq.
To Lender:
NationsCredit Commercial Corporation
One Canterbury Green
P.O. Box 120013
Stamford, Connecticut 06912-0013
Attn: Vice President, Commercial Real Estate
with a copy to:
NationsCredit Commercial Corporation
One Canterbury Green
P.O. Box 120013
Stamford, Connecticut 06912-0013
Attn: General Counsel
7
<PAGE> 76
or at such other addresses or to the attention of such other persons as may from
time to time be designated by the party to be addressed by written notice to the
other in the manner herein provided. Notices, demands and requests given in the
manner aforesaid shall be deemed sufficiently served or given for all purposes
hereunder when received or when delivery is refused or when the same are
returned to sender for failure to be called for.
7. GOVERNING LAW. In all respects, including, without limitation, matters
of construction and performance of this Note and the obligations arising
hereunder, this Note shall be governed by, and construed in accordance with, the
internal laws of the State of Connecticut applicable to contracts and
obligations made in such state and any applicable laws of the United States of
America.
8. WAIVER. Borrower hereby (a) waives demand, presentment for payment,
notice of nonpayment, notice of intent to accelerate, notice of acceleration,
protest, notice of protest and all other notice (except notice specifically
provided for herein or in the Loan Documents), filing of suit and diligence in
collecting this Note or enforcing any of the security for this Note, (b) agrees
to any substitution, exchange or release of any party primarily or secondarily
liable hereon, (c) agrees that Lender or any other holder hereof shall not be
required first to institute suit or exhaust its remedies hereon or to enforce
its rights under any Loan Document in order to enforce payment of this Note, (d)
consents to any extension or postponement of time of payment of this Note and to
any other indulgence with respect hereto without notice thereof to Borrower, and
(e) agrees that the failure to exercise any option or election herein provided
upon the occurrence of any default in respect hereto shall not be construed as a
waiver of the right to exercise such option or election at any later date or
upon the occurrence of a subsequent default in respect hereto.
9. BUSINESS PURPOSE. Borrower represents and warrants that the proceeds of
this Note will be used for business purposes and not for personal, family or
household purposes.
10. Severability. If any provision of this Note or any payments pursuant to
this Note shall be invalid or unenforceable to any extent, the remainder of this
Note and any other payments hereunder shall not be affected thereby and shall be
enforceable to the greatest extent permitted by applicable law.
11. MISCELLANEOUS.
a. BORROWER HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS NOTE. THIS
WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY BORROWER, AND
BORROWER ACKNOWLEDGES THAT LENDER HAS NOT MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS
EFFECT. BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS BEEN REPRESENTED (OR HAS
HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AND IN THE
MAKING OF THIS WAIVER BY INDEPENDENT
8
<PAGE> 77
LEGAL COUNSEL, SELECTED BY BORROWER, AND THAT BORROWER HAS HAD THE OPPORTUNITY
TO DISCUSS THIS WAIVER WITH COUNSEL.
b. Borrower hereby submits to personal jurisdiction in the State of
Connecticut for the enforcement of the provisions of this Note and irrevocably
waives any and all rights to object to such to such jurisdiction for the
purposes of litigation to enforce any provision of this Note. Borrower hereby
consents to the jurisdiction of and agrees that any action, suit or proceeding
to enforce this Note may be brought in any state or federal court in the State
of Connecticut. Borrower hereby irrevocably waives any objection which Borrower
may have to the laying of the venue of any such action, suit, or proceeding in
any such court and hereby further irrevocably waives any claim that any such
action, suit or proceeding brought in such a court has been brought in an
inconvenient forum. Borrower hereby appoints the Secretary of the State of
Connecticut as its agent for service of process. Borrower hereby consents that
service of process in any action, suit or proceeding may be made by service upon
the aforesaid agent for service of process, by personal service upon Borrower,
or by delivery in accordance with the notice requirements of SECTION 8 of this
Note or in such other manner permitted by law.
c. TO INDUCE LENDER TO ENTER INTO THE COMMERCIAL LOAN TRANSACTION
EVIDENCED BY THIS NOTE AND THE LOAN AGREEMENT AND SECURED BY THE OTHER LOAN
DOCUMENTS, BORROWER AGREES THAT THE SAID TRANSACTION IS COMMERCIAL AND NOT A
CONSUMER TRANSACTION AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, WAIVES
ANY RIGHT TO NOTICE OF AND HEARING OF THE RIGHT OF LENDER UNDER CHAPTER 903a OF
THE CONNECTICUT GENERAL STATUTES, REVISION OF 1958, AS AMENDED, OR OTHER STATUTE
OR STATUTES AFFECTING PREJUDGMENT REMEDIES AND AUTHORIZES LENDER'S ATTORNEY TO
ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT COURT ORDER, PROVIDED THE
COMPLAINT SHALL SET FORTH A COPY OF THIS WAIVER.
d. This Note shall be binding upon Borrower and its representatives,
successors and assigns.
e. This Note may not be changed orally, but only by an agreement in
writing signed by Borrower and Lender.
f. The headings used in this Note are for ease of reference only and
shall not be used to construe or interpret this Note.
g. Borrower agrees that the terms and conditions of this Note are the
result of negotiations between Borrower and Lender and that this Note shall not
be construed in favor of or against any party by mason of the extent to which
any party or its professionals participated in the preparation of this Note.
9
<PAGE> 78
12. LIMITATION ON LIABILITY. The personal liability of Borrower under this
Note shall be limited in the manner and to the extent expressly set forth in
SECTION 9.19 of the Loan Agreement, which SECTION 9.19 is hereby incorporated by
this reference.
13. EXTENSION OPTION. Provided that Borrower complies with all of the terms
and conditions of Section 5.4 of the Loan Agreement, then Borrower may, upon the
delivery, of at least ninety (90) days' prior written notice to Lender, elect to
extend the term of this Note for one (1) additional term of five (5) years (the
"EXTENDED Term") on the terms set forth in Section 5.4 of the Loan Agreement.
Borrower acknowledges and agrees that the Prepayment Fee shall apply during the
Extended Term pursuant to and in accordance with the terms and provisions of
this Note. Borrower agrees to execute any additional documentation required by
Lender in connection with any Extended Term.
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by
its duly authorized representative as of the date and year first above written.
THE BADLANDS GOLF CLUB, INC., a Nevada
corporation
By: /s/ Stanton V. Abrams
-------------------------
Stanton V. Abrams
President
Borrower's Taxpayer Identification
Number: 04-3295344
STATE OF Massachusetts ss.
---------------------
COUNTY OF Suffolk ss.
---------------------
On this, the 15th day of November, 1996, before me, the undersigned
officer, personally appeared Stanton V. Abrams, who acknowledged himself to be
the President of THE BADLANDS GOLF CLUB, INC., a Nevada corporation, and that
he, as such President, being authorized so to do, executed the foregoing
Promissory Note for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Robert E. Richards, Jr.
-----------------------------------------
Notary Public ROBERT E. RICHARDS, JR.
NOTARY PUBLIC
MY COMMISSION EXPIRES
SEPT. 30, 1999
10
<PAGE> 79
EXHIBIT A
---------
<TABLE>
<CAPTION>
BADLANDS GOLF COURSE-PHASE II
AMORTIZATION SCHEDULE
LOAN BALANCE LOAN BALANCE
MONTH BOM PRINCIPAL EOM
- -----------------------------------------------------------
<S> <C> <C> <C>
0
1 5,000,000 6,584 4,993,416
2 4,993,416 6,639 4,986,776
3 4,986,776 6,695 4,980,082
4 4,980,082 6,750 4,973,331
5 4,973,331 6,807 4,966,525
6 4,966,525 6,863 4,959,661
7 4,959,661 6,921 4,952,741
8 4,952,741 6,978 4,945,762
9 4,945,762 7,036 4,938,726
10 4,938,726 7,095 4,931,631
11 4,931,631 7,154 4,924,477
12 4,924,477 7,214 4,917,263
13 4,917,263 7,274 4,909,989
14 4,909,989 7,335 4,902,655
15 4,902,655 7,396 4,895,259
16 4,895,259 7,457 4,887,802
17 4,887,802 7,519 4,880,282
18 4,880,282 7,582 4,872,700
19 4,872,700 7,645 4,865,055
20 4,865,055 7,709 4,857,346
21 4,857,346 7,773 4,849,573
22 4,849,573 7,838 4,841,735
23 4,841,735 7,903 4,833,832
24 4,833,832 7,969 4,825,863
25 4,825,863 8,036 4,817,827
26 4,817,827 8,103 4.809,724
27 4,809,724 8,170 4,801,554
28 4,801,554 8,238 4,793,316
29 4,793,316 8,307 4,785,009
30 4,785,009 8,376 4,776,633
31 4,776,633 8,446 4,768,188
32 4,768,188 8,516 4,759,671
33 4,759,671 8,587 4,751,084
34 4,751,084 8,659 4,742,426
35 4,742,426 8,731 4,733,695
36 4,733,695 8,804 4,724,891
37 4,724,891 8,877 4,716,014
38 4,716,014 8,951 4,707,063
39 4,707,063 9,026 4,698,038
40 4,698,038 9,101 4,688,937
41 4,688,937 9,177 4,679,760
42 4,679,760 9,253 4,670,507
43 4,670,507 9,330 4,661,177
44 4,661,177 9,408 4,651,769
45 4,651,769 9,486 4,642,283
46 4,642,283 9,565 4,632,717
47 4,632,717 9,645 4,623,072
48 4,623,072 9,725 4,613,347
</TABLE>
<PAGE> 80
<TABLE>
<CAPTION>
BADLANDS GOLF COURSE-PHASE II
AMORTIZATION SCHEDULE
Loan Balance Loan Balance
Month BOM Principal EOM
- ----------------------------------------------------------
<S> <C> <C> <C>
49 4,613,347 9,807 4,603,540
50 4,603,540 9,888 4,593,652
51 4,593,652 9,971 4,583,681
52 4,583,681 10,054 4,573,628
53 4,573,628 10,138 4,563,490
54 4,563,490 10,222 4,553,268
55 4,553,268 10,307 4,542,961
56 4,542,961 10,393 4,532,568
57 4,532,568 10,480 4,522,088
58 4,522,088 10,567 4,511,521
59 4,511,521 10,655 4,500,866
60 4,500,866 10,744 4,490,122
</TABLE>
<PAGE> 81
EXHIBIT E
---------
PERMITTED ENCUMBRANCES
----------------------
1
<PAGE> 82
EXHIBIT E
---------
PERMITTED ENCUMBRANCES
----------------------
1. PROVISIONS, RECITED ON THE DEDICATION STATEMENT ON THE PARCEL MAP RECORDED
MARCH 20, 1992 IN BOOK 920320, OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA
RECORDS, AS DOCUMENT NO. 00789, IN FILE 71, PAGE 95 OF PARCEL MAPS.
2. PROVISIONS, RECITED ON THE DEDICATION STATEMENT ON THE PARCEL MAP RECORDED
AUGUST 13, 1993 IN BOOK 930813, OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA
RECORDS, AS DOCUMENT NO. 00806, IN FILE 76, PAGE 65 OF PARCEL MAPS.
3. AN EASEMENT FOR PUBLIC UTILITIES AND INCIDENTAL PURPOSES AS SHOWN UPON
PARCEL MAP, RECORDED IN FILE 76, PAGE 65 OF PARCEL MAPS.
4. A WATER FACILITIES INSTALLATION AGREEMENT DATED MARCH 1, 1994 BY AND
BETWEEN LAS VEGAS VALLEY WATER DISTRICT, A QUASIMUNICIPAL CORPORATION AND
PECCOLE 1982 TRUST RECORDED APRIL 22, 1994 IN BOOK 940422 OF OFFICIAL
RECORDS, CLARK COUNTY, NEVADA RECORDS, AS DOCUMENT NO. 01401.
5. AN EASEMENT FOR PIPELINE FOR CONDUCTING WATER, AS CONVEYED TO LAS VEGAS
VALLEY WATER DISTRICT, BY AN INSTRUMENT RECORDED OCTOBER 20, 1994, IN BOOK
941020 OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA RECORDS, AS DOCUMENT NO.
00891, OVER THAT PORTION OF SECTION 31, TOWNSHIP 20 SOUTH, RANGE 60 EAST,
M.D.M., CITY OF LAS VEGAS, CLARK COUNTY, NEVADA DESCRIBED AS FOLLOWS:
BEING A STRIP OF LAND THIRTY (30) FEET IN WIDTH, LYING FIFTEEN (15) FEET
ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE:
COMMENCING AT THE SOUTHWEST CORNER (SW COR.) OF THE SOUTHEAST QUARTER (SE
1/4) OF SAID SECTION 31; THENCE NORTH 89(degree) 40' 04" EAST, ALONG THE
SOUTH LINE THEREOF, 156.15 FEET; THENCE NORTH 00(degree) 19' 56" WEST,
1183.46 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 30(degree) 04'
58" WEST, 359.50 FEET; THENCE NORTH 11(degree) 44' 39" WEST, 413.50 FEET;
THENCE NORTH 05(degree) 23' 25" EAST, 250.00 FEET; THENCE NORTH 21(degree)
17' 39" EAST, 652.76 FEET; THENCE NORTH 68(degree) 42' 21" WEST, 427.00
FEET; THENCE NORTH 55(degree) 25' 45" WEST, 185.00 FEET: THENCE NORTH
48(degree) 38' 49" WEST, 425.30 FEET; THENCE NORTH 71(degree) 33'22" WEST,
401.00 FEET; THENCE NORTH 07(degree) 09' 14" EAST, 501.42 FEET; THENCE
NORTH 04(degree) 37' 40" WEST, 142.45 FEET
1
<PAGE> 83
TO THE POINT OF ENDING, FROM WHICH THE NORTHEAST (NE COR.) OF THE
SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) BEARS NORTH
89(degree) 10' 53" WEST, 758.50 FEET.
6. AN ON-SITE DRAINAGE IMPROVEMENT AGREEMENT DATED JUNE 12, 1995 BY AND
BETWEEN CITY OF LAS VEGAS AND SENIOR TOUR PLAYERS DEVELOPMENT, INC. AND
PECCOLE 1982 TRUST RECORDED AUGUST 14, 1995 IN BOOK 950814 OF OFFICIAL
RECORDS, CLARK COUNTY, NEVADA RECORDS, AS DOCUMENT NO. 01303.
7. A CITY OF LAS VEGAS PUBLIC WORKS DEPARTMENT SPECIAL IMPROVEMENT DISTRICT
ASSESSMENT IN THE ORIGINAL AMOUNT OF $562,265.97, AS DISCLOSED BY THE
FINAL ASSESSMENT ROLL LOCAL IMPROVEMENT DISTRICT NO. 1405, RECORDED
SEPTEMBER 7, 1995 IN BOOK 950907 OF OFFICIAL RECORDS, CLARK COUNTY NEVADA,
AS DOCUMENT NO. 00803. (COVERING ALSO OTHER LANDS)
8. THE EFFECT OF THAT CERTAIN REVERSIONARY PARCEL MAP AS SHOWN BY MAP THEREOF
ON FILE IN FILE 83 OF PARCEL MAPS, PAGE 83 AND RECORDED NOVEMBER 9, 1995
IN BOOK 951109 OF OFFICIAL RECORDS, CLARK COUNTY NEVADA, AS DOCUMENT NO.
00892 AND AMENDED BY CERTIFICATE OF AMENDMENT AND RECORDED MAY 10, 1996 IN
BOOK 960510 OF OFFICIAL RECORDS, CLARK COUNTY NEVADA, AS DOCUMENT NO.
01349. EASEMENTS AS SHOWN AND DELINEATED ON SAID REVERSIONARY MAP.
9. PROVISIONS, RECITED ON THE DEDICATION STATEMENT ON THE PARCEL MAP RECORDED
NOVEMBER 9, 1995 IN BOOK 951109, OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA
RECORDS, AS DOCUMENT NO. 02011, IN FILE 83, PAGE 86 OF PARCEL MAPS.
10. A SIXTY (60') FOOT PRIVATE ROAD EASEMENT AS SHOWN AND DELINEATED ON MAP OF
PECCOLE WEST.
11. THIRD AND FOURTH INSTALLMENTS OF TAXES FOR THE FISCAL YEAR JULY 1, 1996
THROUGH JUNE 30, 1997 INCLUDING ANY SECURED PERSONAL PROPERTY TAXES, ARE
NOT YET DUE AND PAYABLE.
12. THE FOLLOWING RESERVATIONS AS CONTAINED IN PATENT FROM THE UNITED STATES
OF AMERICA:
"SUBJECT TO ANY VESTED AND ACCRUED WATER RIGHTS FOR MINING, AGRICULTURAL,
MANUFACTURING, OR OTHER PURPOSES, AND RIGHTS FOR DITCHES AND RESERVOIRS
USED IN CONNECTION WITH SUCH WATER
2
<PAGE> 84
RIGHTS AS MAY BE RECOGNIZED AND ACKNOWLEDGED BY THE LOCAL CUSTOMS, LAWS
AND DECISIONS OF COURTS; AND THERE IS RESERVED FROM THE LANDS HEREBY
GRANTED, A RIGHT-OF-WAY THEREON FOR DITCHES OR CANALS CONSTRUCTED BY THE
AUTHORITY OF THE UNITED STATES.
RESERVATION BY THE THE UNITED STATES ALL MINERALS, IN THE LAND SO GRANTED,
TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE, AND REMOVE THE SAME, AS
AUTHORIZED BY THE PROVISIONS OF SAID SECTION 8, AS AMENDED AS AFORESAID.
SUJBECT TO THE RESERVATION OF A RIGHT-OF-WAY FOR A FEDERAL AID HIGHWAY
UNDER THE ACT OF NOVEMBER 9, 1921 (42 STAT., 212)."
RECORDED: DECEMBER 5, 1958 IN BOOK 180 OF OFFICIAL RECORDS
DOCUMENT NO.: 146618, CLARK COUNTY, NEVADA RECORDS
AND
RECORDED: OCTOBER 23, 1985 IN BOOK 2205 OF OFFICIAL RECORDS
DOCUMENT NO.: 2164188, CLARK COUNTY, NEVADA RECORDS
(ENDORSEMENT ISSUED BY TITLE COMPANY).
13. A CITY OF LAS VEGAS IMPROVEMENT DISTRICT ASSESSMENT IN THE AMOUNT OF
$1,139,846.64, AS DISCLOSED BY THE FINAL ASSESSMENT ROLL LOCAL IMPROVEMENT
DISTRICT NO. 491, RECORDED JANUARY 21, 1992 IN BOOK 920121 OF OFFICIAL
RECORDS, CLARK COUNTY NEVADA, AS DOCUMENT NO. 00781 AND AS AMENDED BY A
CITY OF LAS VEGAS IMPROVEMENT DISTRICT ASSESSMENT IN THE AMOUNT OF
$357,493.68, APN: 138-32-201-002 AND $250,408.35, APN: 138-31-601-003, AS
DISCLOSED BY THE FINAL ASSESSMENT ROLL LOCAL IMPROVEMENT DISTRICT NO. 491,
RECORDED DECEMBER 2, 1994 IN BOOK 941202 OF OFFICIAL RECORDS, CLARK COUNTY
NEVADA, AS DOCUMENT NO. 00748. SAID ASSESSMENT IS PAID CURRENT. (AFFECTS A
PORTION OF SAID LAND AND OTHER PROPERTY)
3
<PAGE> 85
EXHIBIT F
---------
AFFIDAVIT AND ADVANCE REQUEST
-----------------------------
TO: NationsCredit Commercial Corporation
BORROWER:
--------------------------------------
PROJECT: The Badlands Golf Course at Peccole Ranch
LOAN:
ADVANCE REQUEST NO.: AMOUNT:$
------------------- --------------------
PERIOD COVERED: , 19 THROUGH: , 19
------------ --- ------------ ---
BEFORE ME. the undersigned authority, on this day personally appeared the
person executing this affidavit, who, being by me first duly sworn, deposed and
said:
1. I am the person and officer of Borrower as indicated on the execution
line of this affidavit; I am duly authorized to make this affidavit and to
execute and deliver the related request for payment.
2. All reports, statements, and other documentation heretofore or herewith
delivered by or on behalf of Borrower to Lender are substantially true and
correct and in all what they purport and appear to be.
3. Attached is an itemization of the amount of the advance request and if
an advance for Hard Costs is requested, also attached are AIA Document G-702 and
G-703 (1992 Edition) forms executed by the General Contractor and approved by
Borrower's Designer, all completed for the above amount and period, together
with all supporting documentation required by Lender's Loan Agreement with
Borrower for the Project, all of which are true and correct and in all respects
what they purport and appear to be.
4. Borrower has not been served with any written notice that a lien will
be claimed for any amount unpaid for materials delivered, labor performed, or
services provided in connection with the properties, or any part thereof, and,
to the Borrower's knowledge, no valid basis exists for the filing of any
mechanic's or materialman's liens or claims with respect to all or any part of
the properties.
5. I understand that this affidavit is made for the purpose of inducing
Lender to advance funds to Borrower and for Borrower to make payments of such
funds as appropriate under
1
<PAGE> 86
the loan documents and that, in so lending funds or making payment, Lender and
Borrower will rely upon the accuracy of matters stated in this affidavit.
6. All representations and warranties contained in the Loan Agreement and
the other Loan Documents are true and accurate in all respects as of the date of
this Advance Request, except as follows (if any):
7. No Event of Default or Incipient Default exists (or would result from
the Advance herein requested), except as follows (if any):
8. No part of the Property has been taken by eminent domain proceedings,
and Borrower has not received written notice of any proceedings or negotiations
therefor which are pending, except as follows (if any):
9. All previously disbursed Loan funds have been expended, or are being
held in trust, for the sole purpose of paying Project costs included in the
Construction Budget and previously incurred by Borrower as set forth in previous
Advance Requests; no part of said funds has been used for any other purpose.
10. Borrower has previously or concurrently disclosed to Lender all
matters known to Borrower that are required to be so disclosed under the Loan
Documents.
11. All conditions precedent to Borrower's right to receive the requested
Advance have been met in accordance with the terms of the Loan Documents.
12. The amounts and percentages set forth in this Advance Request
(including the Advance Request for Work Completed summary and any AIA Document
G-702 and G-703 submitted in connection herewith) are true and correct.
13. The aggregate sum of (i) Loan funds previously disbursed for Costs,
plus (ii) the Loan funds included in this Advance Request, plus (iii) the
existing retainage, does not exceed the aggregate amount incurred and/or
expended to date for Costs for Construction Work incorporated into the
Improvements and for stored materials.
14. Upon disbursement by Borrower of the funds advanced by Lender as
requested in this Advance Request, all obligations for Construction Work and
other costs heretofore incurred by Borrower in connection with the Project and
which are due and payable will be fully paid and satisfied.
15. The actual cost required to complete all matters of a type included in
any line item in the Construction Budget does not exceed the amount allocated to
that line item in the Construction Budget, except as follows (if any):
2
<PAGE> 87
16. All change orders to the Plans and specifications have been submitted
to Lender and all change orders for which an Advance is requested hereby have
been consented to by Lender to the extent required under the Loan Documents.
17. All lien waivers or payment receipts required under the terms of the
Loan Documents for this Advance Request have been submitted to Lender.
18. The construction of the Improvements is progressing in a satisfactory
manner so as to assure completion thereof on or before the Completion Date in
accordance with the Plans and Specifications and the Loan Documents.
19. Borrower agrees to notify Lender in writing immediately if the matters
certified herein will not be true and correct as of the time of the requested
Advance, and the foregoing certifications shall be deemed made and ratified as
of the time of the Advance unless Borrower so notifies Lender in writing before
that time.
20. As of the date hereof, Borrower has no claims, causes of action,
demands against Lender, or defenses or offsets to payment of the Loan or any
other amounts due under the Loan Documents.
21. Borrower has undertaken all investigation necessary to make all of the
foregoing statements.
22. Lender's acceptance of this Advance Request will in no way operate as
a waiver by Lender of any term, condition, covenant or agreement contained in
the Loan Documents, or of Lender's right to enforce any term, condition,
covenant or agreement therein.
EXECUTED as of the date first written above.
AFFIANT:
--------------------------------
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
3
<PAGE> 88
STATE OF [Sections]
[Sections]
COUNTY OF [Sections]
SUBSCRIBED AND SWORN BEFORE ME, on this day of , 199 .
---- --------- -
------------------------------------
Notary Public
Printed Name:
-----------------------
My Commission Expires:
-------------
4
<PAGE> 89
EXHIBIT G
---------
INSURANCE REQUIREMENTS
----------------------
(1) Insurance against loss to the Property on an "All Risk" policy
form, covering insurance risks no less broad than those covered under a Standard
Multi Peril (SMP) policy form, which contains a 1987 Commercial 150 "Causes of
Loss - Special Form", and such other risks as Lender may reasonably require,
including risk of hurricane, insurance covering the cost of demolition of
undamaged portions of any portion of the Property when required by code or
ordinance and the increased cost of reconstruction to conform with current code
or ordinance requirements, in amounts equal to the full replacement cost of the
Property (other than the Land), including fixtures and equipment, Borrower's
interest in leasehold improvements, and the cost of debris removal, with 100%
co-insurance with an agreed amount endorsement and deductibles of not more than
$10,000.00;
(2) Business interruption/extra expense insurance in amounts
sufficient to pay during any period in which the Property may be damaged or
destroyed, on a gross income basis for a period of twelve (12) months (i) all
business income derived from the Property and (ii) all amounts (including all
impositions, utility charges and insurance premiums) required to be paid by
Borrower;
(3) During the performance of the Construction Work and the making
of any other alterations or improvements to the Property insurance covering
claims based on the owner's or employer's contingent liability not covered by
the insurance provided in subsection (f) below.
(4) Insurance against loss or damage by flood or mud slide in
compliance with the Flood Disaster Protection Act of 1973, as amended from time
to time, if the Property or any portion thereof is now, or at any time while the
Loan remains outstanding shall be, situated in any area which an appropriate
Governmental Authority designates as a special flood hazard area, Zone A or Zone
V, in amounts equal to the full replacement value of all above grade structures
on the Property;
(5) Insurance against loss or damage by earthquake, if the Premises
are now, or at any time while the Loan remains outstanding shall be, situated in
any area which is classified as a Major Damage Zone, Zones 3 and 4, by the
International Conference of Building Officials in an amount equal to the
probable maximum loss for the Premises, fixtures and equipment, plus the cost of
debris removal;
(6) Commercial general public liability insurance, with the location
of the Property designated thereon, against death, bodily injury and property
damage arising in connection with the Property with Borrower listed as the named
insured with such limits as Lender may reasonably require, but in no event less
than $1,000,000, and written on a 1986 Standard ISO
1
<PAGE> 90
occurrence basis form or equivalent form, and excess umbrella liability
insurance with such limits as Lender may reasonably require, but in no event
less than $10,000,000; and
(7) Such other insurance relating to the Property and the use and
operation thereof, as Lender may, from time to time, reasonably require,
including dramshop, products liability and workers' compensation insurance.
All insurance shall: (i) be carried by companies qualified to do business
in the State with a Best's rating of A-6 or better; (ii) be in form and content
reasonably acceptable to Lender; (iii) provide thirty (30) days' advance written
notice to Lender before any cancellation, material modification or notice of
non-renewal.
All physical damage policies and renewals shall contain a standard
mortgagee clause naming Lender as mortgagee, which clause shall expressly state
that any breach of any condition or warranty by Borrower shall not prejudice the
rights of Lender under such insurance, and a loss payable clause in favor of
Lender for personal property, contents, inventory, equipment and business
interruption. All liability policies and renewals shall name Lender as an
additional insured with respect to policies in which Lender has an interest. No
additional parties shall appear in the mortgage or loss payable clause without
Lender's prior written consent. All deductibles shall be in amounts acceptable
to Lender. In the event of the foreclosure of the Mortgage or any other transfer
of title to the Property in full or partial satisfaction of the Loan, all right,
title and interest of Borrower in and to all insurance policies and renewals
thereof then in force shall pass to the purchaser or grantee.
During any period during which construction is conducted on the Premises
and during which period the construction and materials are not covered by the
existing policies, Borrower shall cause to be provided to Lender, premium
prepaid insurance policies covering the Property (which during construction
shall be on an "All-Risk" perils, including theft, "Builder's Risk", "Completed
Value" form) in companies and forms satisfactory to Lender, and in amounts equal
to the replacement costs of the Improvements (including construction materials
and personal property on or off site) covering insurance risks no less broad
than those covered under a Standard Multi Peril (SMP) policy form, which
contains a 1987 Commercial ISO "Causes of Loss-Special Form", with coverage for
such other expenses as Lender may reasonably require, including: debris removal;
cost of demolition of the undamaged portion of a building when required by code
or ordinance; increased cost of reconstruction to conform with current code or
ordinance requirements; real estate property taxes; architect, engineering, and
consulting fees; legal and accounting fees, including the cost of in-house
attorneys and paralegals; advertising and promotional expenses; interest on
money borrowed; additional commissions incurred upon renegotiating leases and
any and all other expenses which may be incurred as a result of any property
loss or destruction by an insured peril. Such insurance shall contain an agreed
amount endorsement (such amount to include foundation and underground pipes) and
bear a 100% co-insurance clause. The deductible shall be not more than $10,000.
Said policies shall contain a standard mortgagee clause naming Lender as
mortgagee, and a permission to occupy endorsement.
2
<PAGE> 91
In addition, Borrower shall cause to be furnished to Lender certificates
from the insurance carrier for each general contractor evidencing workers'
compensation, employers' liability, commercial auto liability, and commercial
general liability insurance (including contractual liability and completed
operations coverage) written on a 1986 standard "ISO" occurrence basis form or
equivalent and excess umbrella coverage, carried during the course of
construction, with general liability insurance limits as Lender may reasonably
require, but in no event less than $1,000,000. Lender shall be named as an
additional insured under such liability policies. Borrower shall cause each
subcontractor to maintain commercial general liability, commercial automobile
liability, workers' compensation, employers' liability, and excess umbrella
liability coverage in form and amount reasonably satisfactory to Lender.
The additional insurance provisions for construction periods do not
obviate or otherwise affect requirements of the Loan Agreement or the previous
portions of this Exhibit, which requirements remain a part of this Agreement in
their entirety.
3
<PAGE> 92
EXHIBIT H
---------
CONSTRUCTION MANAGER'S CERTIFICATE
----------------------------------
This Certification is made to NationsCredit Commercial Corporation, a
Delaware corporation (the "Lender") and its successors and/or assigns, by the
undersigned pursuant to Section 6.2.F of that certain Loan Agreement
(hereinafter, as the same may from time to time be amended, modified or
supplemented, called the "Loan Agreement") dated as of _______________, 1996,
among The Badlands Golf Club, Inc., a Nevada corporation (the "Borrower") and
the Lender. Unless otherwise defined or provided herein, capitalized terms used
herein are used as defined in the Loan Agreement. The undersigned hereby
certifies to Lender as follows:
1. The undersigned is the supervising the Construction Work.
2. This Certification is made in support of the Borrower's Request for
Advance dated _____, 199__, (the "Request"). The undersigned acknowledges that
Lender is relying on this Certification in connection with the making of the
Construction Advance under Borrower's Request.
3. The undersigned has reviewed Borrower's Request and the Construction
Advance to be made in connection therewith is for the payment of construction
costs incurred in connection with the Construction Work.
4. The Construction Work performed in connection with the Request has been
completed in accordance with the Plans and Specifications delivered to Lender.
5. The Construction Work complies with all building and zoning rules. The
Construction Work completed as of the date of the Request has been inspected and
approved by each Governmental Authority and by each other person and entity
(including any tenants) required to inspect and approve the Construction Work.
All necessary licenses, permits, approvals and consents required by any
Governmental Authority for the Construction Work for which this Request is made,
have been obtained.
IN WITNESS WHEREOF, the undersigned has hereunto set his name or has
caused this Certificate to be executed as of the date set forth below.
Dated: , 199
--------------------- ------------------------------------
1
<PAGE> 93
EXHIBIT I
---------
EQUIPMENT LEASES
----------------
o American Equipment Leasing -- Turf Maintenance Equipment
o Fore Stars Ltd. -- Ground Lease
o Graybar Financial Services -- Telephone System
o Ikon Capital -- Fax Machine
o John Deere Credit -- Sky Caddie
o John Deere Credit -- Sky Caddie
o Minolta -- Copier
o Pitney Bowes -- Postage Meter
o NationsCredit -- Sky Caddie
o Associates Leasing -- Golf Carts
o Associates Leasing -- Golf Carts
o AEL Note #2 -- Clubhouse FF&E
1
<PAGE> 94
EXHIBIT J
---------
LITIGATION
----------
NONE
----
<PAGE> 1
EXHIBIT 10-29
PROMISSORY NOTE (SECURED)
-------------------------
$5,000,000.00 November 15, 1996
FOR VALUE RECEIVED, the undersigned, THE BADLANDS GOLF CLUB, INC., a Nevada
corporation ("BORROWER"), promises to pay to the order of NATIONSCREDIT
COMMERCIAL CORPORATION, a Delaware corporation with a principal place of
business at One Canterbury Green, P.O. Box 120013, Stamford, Connecticut
06912-0013 ("Lender"), to the account set forth in SUBSECTION 2.d below or at
such other place as Lender may from time to time direct, the principal sum of up
to FIVE MILLION AND 00/100 DOLLARS ($5,000,000.00), or so much thereof as may
have been advanced pursuant hereto and to the Loan Agreement, on or before the
Maturity Date (both as defined below), together with interest thereon, all as
hereinafter provided. Interest shall be computed and accrue on the principal
amount hereof from time to time outstanding from the date advanced to the date
of payment at a rate per annum equal to the Interest Rate (as defined below).
1. DEFINITIONS. In addition to terms defined elsewhere in this Note, the
following terms shall have the following definitions:
a. "ADVANCE" shall mean an advance by Lender to Borrower in accordance
with this Note or the Loan Agreement.
b. "BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
legal holiday on which commercial banks are authorized or required to be closed
in Illinois or Connecticut.
c. "DEFAULT RATE" shall mean a rate per annum equal to the lesser of (i)
five percent (5%) per annum plus the Interest Rate, and (ii) the Maximum Rate.
d. "DOLLARS" and the symbol "$" shall mean lawful money of the United
States of America.
e. "DSCR" shall mean the debt service coverage ratio as determined by
Lender pursuant to the Loan Agreement.
f. "EVENT OF DEFAULT" shall mean (i) the failure by Borrower to pay any
installment of principal or interest under this Note within five (5) days
following the due date thereof, (ii) the failure by Borrower to pay all sums
owed to Lender under this Note and every Loan Document on or before the Maturity
Date, (iii) the occurrence of any Event of Default under the Loan Agreement, the
Mortgage or any other Loan Document, or (iv) the occurrence of any Event of
Default under any of the documents evidencing or securing the Other Loan.
g. "EXTENDED TERM" shall have the meaning set forth in SECTION 13 of
this Note.
<PAGE> 2
h. "FIXED RATE" shall mean 10.95% per annum.
i. "GUARANTOR" shall mean Senior Tour Players Development, Inc.
j. "INCIPIENT DEFAULT" shall mean any condition which with the giving
of notice or passage of time, or both, would constitute an Event of
Default.
k. "INTEREST RATE" shall mean the lesser of (i) the Maximum Rate, and
(ii) the Fixed Rate or the Default Rate, as applicable, from time to time in
effect hereunder.
1. "LOAN" shall mean the loan from Lender to Borrower evidenced by this
Note and by the Loan Agreement.
m. "LOAN AGREEMENT" shall mean that certain Loan Agreement of even date
herewith by and between Lender and Borrower which, together with this Note,
evidences the Loan.
n. "LOAN DOCUMENTS" shall have the meaning set forth in the Loan
Agreement. Any reference in this Note to any document which is a "Loan
Document" shall mean such document as hereafter amended, modified or
supplemented.
o. "LOAN MONTH" shall mean any full calendar month during the term of
this Note, with the first Loan Month being December, 1996 and the final Loan
Month being November, 2001. The first Loan Month shall be deemed to include the
partial month commencing on the date of this Note.
p. "MATURITY DATE" shall mean the earlier to occur of: (i) December 1,
2001; or (ii) the date on which the entire principal amount evidenced by this
Note and all accrued and unpaid interest thereon shall be paid or be required to
be paid in full, whether by prepayment, acceleration or otherwise in accordance
with the terms of this Note or any of the Loan Documents.
q. "MAXIMUM RATE" shall mean the maximum interest rate allowed by
applicable law in effect with respect to the Loan on the date for which a
determination of interest accrued hereunder is made and after taking into
account all fees, payments and other charges which are, under applicable law,
characterized as interest.
r. "MORTGAGE" shall mean that certain Deed of Trust and Security
Agreement of even date herewith from Borrower to First American Title Company of
Nevada, Trustee securing the Loan.
s. "MORTGAGED PROPERTY" shall have the meaning set forth in Article I of
the Mortgage.
t. "NET CASH FLOW PAYMENT" shall mean 100% of the Net Cash Flow (as
defined in the Loan Agreement) for the Loan Month in question.
2
<PAGE> 3
u. "OTHER LOAN" shall mean the loan by Lender to Borrower in the
original maximum principal amount of $6,700,000.00, which loan is evidenced by a
promissory note dated December 22, 1995, executed by Borrower in favor of
Lender.
v. "PREPAYMENT FACTOR" shall mean two percent (2%) commencing on the
first day of the twenty-fifth (25th) Loan Month through and including the last
day of the thirty-sixth (36th) Loan Month; provided, however, that if a
prepayment occurs during first twenty-four (24) Loan Months under the
circumstances described in SUBSECTION 4.D below, the Prepayment Factor shall be
five percent (5%). During the Extended Term, if any, each of the references to
"Loan Month" set forth above in this SUBSECTION 1.y, shall automatically be
revised to read as follows: "Loan Month of the Extended Term."
w. "PREPAYMENT FEE" shall mean the product of (i) the outstanding
principal balance of this Note at the time of a prepayment (or, under the
circumstances described in SECTION 7.1.F(vii) of the Loan Agreement, the amount
of insurance proceeds applied by Lender to the outstanding principal balance of
this Note), and (ii) the Prepayment Factor then in effect.
x. "PAR FUNDS" shall have the meaning set forth in the Loan Agreement.
2. Payment of Interest and Principal.
-------------------------------------
a. On the date of this Note, Borrower shall pay to Lender a payment of
interest only at the Interest Rate on the principal amount of the Loan
commencing on the date of this Note through the last day of the current calendar
month.
b. Commencing on January 1, 1997 and continuing on the first day of each
Loan Month thereafter until and including the Maturity Date, Borrower shall pay
to Lender the sum of (i) all accrued interest at the Interest Rate on the
principal amount hereof then outstanding and (ii) installments of principal for
each Loan Month in the amounts set forth on attached hereto, which amounts are
calculated to be equal to the amount which would be sufficient to amortize the
principal balance of this Note over a twenty (20) year term commencing on the
date hereof (or the remainder of said term at the time of each such monthly
payment), with interest accruing thereon at ten percent (10%) per annum;
provided that on the Maturity Date, the entire unpaid principal balance of this
Note and all accrued and unpaid interest shall be due and payable.
c. In addition to the payments required under SUBSECTIONS 2.a and 2.b
above, Lender shall have the right, subject to and in accordance with SECTION
4.1.R of the Loan Agreement, to apply PAR Funds held by Lender to payment of (i)
the outstanding principal balance of this Note, or (ii) upon the occurrence of
an Event of Default, mounts then due and payable under the Loan Documents in
such order and priority as Lender may elect in its sole and absolute discretion.
Said mandatory payments made pursuant to SECTION 4,1.R of the Loan Agreement
shall not be subject to the Prepayment Fee.
3
<PAGE> 4
d. The entire outstanding principal amount of the Loan, and all accrued
and unpaid interest thereon, shall be due and payable on the Maturity Date.
Borrower acknowledges and agrees that a substantial portion of the principal
balance evidenced by this Note will be outstanding and due and payable on the
Maturity Date.
e. All payments hereunder shall be made by wire transfer of immediately
available federal funds without set-off or counterclaim and shall be made to the
following account of Lender prior to 1:30 p.m., Eastern Standard Time, on the
date due:
FIRST NATIONAL BANK OF CHICAGO
CHICAGO, ILLINOIS
ABA #071000013
ACCOUNT NUMBER: #52-56933
ACCOUNT NAME: NATIONSCREDIT COMMERCIAL CORPORATION
REFERENCE: THE BADLANDS GOLF CLUB, INC.
Whenever any payment to be made hereunder shall be stated to be due on a date
other than a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall be included in the calculation of
interest on such principal. Any payments received after 1:30 p.m., Eastern
Standard Time shall be deemed received on the next Business Day and shall
include interest to such next Business Day.
f. All interest required to be paid by Borrower hereunder shall be
calculated on the basis of a year consisting of 360 days and shall be paid in
arrears for the actual number of days elapsed, calculated as to each Advance
from and including the date the applicable period commences to, but not
including, the date such period ends.
g. If any regular monthly installment of principal and interest shall
not be paid at the place required under this Note on or before the fifth (5th)
day following the due date thereof, Borrower shall pay to Lender a late charge
(the "LATE CHARGE") of five cents ($0.05) for each Dollar so overdue in order to
compensate Lender for its frustration in the meeting of its financial and loan
commitments and to defray part of Lender's expenses incident to handling such
delinquent payments. This charge shall be in addition to any other remedy Lender
may have and is in addition to Lender's right to collect reasonable fees and
charges of any agents or attorneys which Lender employs in connection with any
Event of Default. To the extent that any Late Charge shall constitute interest
under applicable law, the amount thereof, together with all other interest
hereunder and under the Loan Documents, shall be expressly limited to the
Maximum Rate. Nothing herein contained shall be deemed to constitute a waiver or
modification of the due date for such installments or any deposits required to
be made hereunder or under any of the Loan Documents or the requirement that
Borrower make all payments of installments and deposits as and when the same are
due and payable. In addition, Borrower shall pay to Lender interest at the
Default Rate on (i) any part of any regular monthly installment of principal and
interest which is not paid on or before the fifth (5th) day following the due
date thereof, and (ii) any other amounts owed to Lender hereunder or under any
Loan Document which are not paid on or before the tenth
4
<PAGE> 5
(10th) day following the due date thereof; such interest at the Default Rate
shall be calculated from the date the payment in question became due to the date
such payment is made.
h. Intentionally Deleted.
i. All agreements between Borrower and Lender, whether now existing or
hereafter arising and whether written or oral, are hereby expressly limited so
that in no contingency or event, whether by reason of acceleration of the
maturity of this Note or otherwise, shall the amount paid, or agreed to be paid
to Lender for the use, forbearance, or detention of the money to be loaned under
this Note or otherwise or for the payment or performance of any covenant or
obligation contained herein or in any other document evidencing, securing or
pertaining to the Loan exceed the Maximum Rate. If from any circumstances
whatsoever fulfillment of any provision hereof or any of such other agreements
shall cause the amount paid to exceed the Maximum Rate, then IPSO FACTO, the
amount paid to Lender shall be reduced to the Maximum Rate; and if from any such
circumstances Lender shall ever receive interest which exceeds the Maximum Rate,
such amount which would be excessive interest shall be applied to the reduction
of the principal of this Note and not to the payment of interest, or if such
excessive interest exceeds the unpaid balance of principal of this Note, such
excess shall be refunded to Borrower. All sums paid or agreed to be paid to
Lender for the use, forbearance or detention of the indebtedness of Borrower to
Lender shall, to the extent permitted by applicable law, (i) be amortized,
prorated, allocated and spread throughout the full term of such indebtedness
until payment in full, so that the actual rate of interest on account of such
indebtedness does not exceed the Maximum Rate throughout the term thereof; (ii)
be characterized as a fee, expense or charge other than interest; and (iii)
exclude any voluntary prepayments and the effects thereof. The terms and
provisions of this SUBSECTION 2.i shall control and supersede every other
provision of all agreements between Lender and Borrower.
j. Except as otherwise expressly provided in this Note, the Loan
Agreement or the Mortgage, each payment received by Lender shall be applied by
Lender to amounts outstanding under the Loan Documents in such order and
priority as Lender may elect in its sole and absolute discretion; provided,
however, that if at the time of any payment there is due and payable any portion
of the principal balance of this Note and sums not constituting repayment of
principal, then such payment shall first be allocated to sums not constituting
repayment of principal (in such order of priority as among the various
obligations constituting such sums as Lender may elect in its sole and absolute
discretion) before Lender applies such payments to the reduction of the
outstanding principal balance of this Note.
3. ADVANCE. (a) On the date hereof, Lender has advanced to or for the
benefit of Borrower the sum of Two Hundred Five Thousand Three Hundred
Sixty-three and 92/100 Dollars ($205,363.92) and Borrower hereby acknowledges
its receipt of said funds.
(b) So long as no Event of Default or Incipient Default exists, Lender
shall, on the terms and conditions set forth in the Loan Agreement, make
construction advances to or for the benefit of Borrower of up to $3,794,636.08.
5
<PAGE> 6
(c) So long as no Event of Default or Incipient Default exists, and
subject to the terms and conditions set forth in the Loan Agreement, Lender
shall make earnout advances to or for the benefit of Borrower of up to
$1,000,000.00.
4. PREPAYMENT. The Loan may not be prepaid, in whole or in part, at any
time during the term hereof, except as expressly set forth below.
a. Prepayment in full of the Loan is permitted at any time on or after
the first day of the twenty-fifth (25th) Loan Month and prior to the Maturity
Date; provided, however, that upon any such prepayment in full which is made on
or before the last day of the thirty-sixth (36th) Loan Month, Borrower shall
also pay Lender the Prepayment Fee. The Prepayment Fee is consideration for the
privilege of making such prepayment, and shall be paid to Lender simultaneously
with the making of the prepayment. The Prepayment Fee shall not apply to
prepayment in part or in full made pursuant to SECTION 2,5 of the Mortgage or
SECTION 7,1,D of the Loan Agreement. Any such prepayment permitted hereunder and
made by Borrower shall be applied to the repayment of the Loan in accordance
with SUBSECTION 2.j of this Note; provided however, that any sums applied to the
principal balance of this Note shall be so applied in the inverse order of
maturity.
b. Borrower shall give Lender thirty (30) days prior written notice of a
proposed prepayment, which notice shall be irrevocable. Borrower's failure to
make a prepayment in full in accordance with such a written notice from Borrower
to Lender shall constitute an Event of Default.
c. Any tender of payment by Borrower or any other party, except as
expressly set forth in this SECTION 4, shall constitute a prohibited prepayment
hereunder.
d. If an Event of Default shall occur, whether or not the maturity of
this Note has been accelerated, then a tender of payment by Borrower, or by any
entity on behalf of Borrower, of the amount necessary to satisfy all sums due
under this Note and the Loan Documents (including, without limitation, any sums
due on any judgment rendered in any action) made at a time prior to, during or
after a judicial foreclosure or a sale pursuant to the exercise of a power of
sale of the property subject to the Loan Documents, must, to the extent
permitted by law and subject to the provisions of SUBSECTION 2.i of this Note,
be accompanied by the Prepayment Fee, if the Prepayment Fee would otherwise be
applicable at the time of said Event of Default. Borrower acknowledges that
Lender has relied upon the anticipated investment return under this Note in
entering into this transaction and in making commitments to third parties.
e. Borrower acknowledges that the Prepayment Fee represents a reasonable
estimate of a fair and equitable compensation for the loss that may be sustained
by Lender due to the prepayment of the principal sum evidenced by this Note. The
Prepayment Fee shall be paid without prejudice to the right of Lender to collect
any other amounts provided to be paid under the Loan Documents. Nothing herein
contained shall constitute an agreement on the part of Lender to accept any
prepayment, other than as expressly provided in SUBSECTION 4.a above.
6
<PAGE> 7
5. DEFAULT. Upon the occurrence of any Event of Default, the principal
amount of the Loan, together with all accrued interest thereon and all amounts
due and payable hereunder (including the Prepayment Fee, if applicable) shall
immediately become due and payable on demand. If this Note, or any part hereof,
is not paid when due, whether by acceleration or otherwise, Borrower promises to
pay all costs of collection, including, but not limited to, reasonable
attorneys' fees and disbursements, incurred by the holder hereof on account of
such collection, whether or not suit is filed hereon. Additionally, after the
Maturity Date, the Interest Rate shall without notice immediately become the
Default Rate.
6. NOTICES. All notices, demands and requests required or desired to be
given hereunder shall be in writing and shall be delivered in person, by United
States registered or certified mail, return receipt requested, postage prepaid,
or by overnight courier addressed as follows:
To Borrower:
The Badlands Golf Club, Inc.
c/o Senior Tour Players Development, Inc.
266 Beacon Street
Boston, Massachusetts 02116
Attn: Stanton V. Abrams, President
with a copy to:
Davis, Malm & D'Agostine, P.C.
One Boston Place
Boston, Massachusetts 02108
Attn: Alan L. Stanzler, Esq.
To Lender:
NationsCredit Commercial Corporation
One Canterbury Green
P.O. Box 120013
Stamford, Connecticut 06912-0013
Attn: Vice President, Commercial Real Estate
with a copy to:
NationsCredit Commercial Corporation
One Canterbury Green
P.O. Box 120013
Stamford, Connecticut 06912-0013
Attn: General Counsel
7
<PAGE> 8
or at such other addresses or to the attention of such other persons as may from
time to time be designated by the party to be addressed by written notice to the
other in the manner herein provided. Notices, demands and requests given in the
manner aforesaid shall be deemed sufficiently served or given for all purposes
hereunder when received or when delivery is refused or when the same are
returned to sender for failure to be called for.
7. GOVERNING LAW. In all respects, including, without limitation, matters
of construction and performance of this Note and the obligations arising
hereunder, this Note shall be governed by, and construed in accordance with, the
internal laws of the State of Connecticut applicable to contracts and
obligations made in such state and any applicable laws of the United States of
America.
8. WAIVER. Borrower hereby (a) waives demand, presentment for payment,
notice of nonpayment, notice of intent to accelerate, notice of acceleration,
protest, notice of protest and all other notice (except notice specifically
provided for herein or in the Loan Documents), filing of suit and diligence in
collecting this Note or enforcing any of the security for this Note, (b) agrees
to any substitution, exchange or release of any party primarily or secondarily
liable hereon, (c) agrees that Lender or any other holder hereof shall not be
required first to institute suit or exhaust its remedies hereon or to enforce
its rights under any Loan Document in order to enforce payment of this Note, (d)
consents to any extension or postponement of time of payment of this Note and to
any other indulgence with respect hereto without notice thereof to Borrower, and
(e) agrees that the failure to exercise any option or election herein provided
upon the occurrence of any default in respect hereto shall not be construed as a
waiver of the right to exercise such option or election at any later date or
upon the occurrence of a subsequent default in respect hereto.
9. BUSINESS PURPOSE. Borrower represents and warrants that the proceeds of
this Note will be used for business purposes and not for personal, family or
household purposes.
10. SEVERABILITY. If any provision of this Note or any payments pursuant to
this Note shall be invalid or unenforceable to any extent, the remainder of this
Note and any other payments hereunder shall not be affected thereby and shall be
enforceable to the greatest extent permitted by applicable law.
11. MISCELLANEOUS.
a. BORROWER HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS NOTE. THIS
WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY BORROWER, AND
BORROWER ACKNOWLEDGES THAT LENDER HAS NOT MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS
EFFECT. BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS BEEN REPRESENTED (OR HAS
HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AND IN THE
MAKING OF THIS WAIVER BY INDEPENDENT
8
<PAGE> 9
LEGAL COUNSEL, SELECTED BY BORROWER, AND THAT BORROWER HAS HAD THE OPPORTUNITY
TO DISCUSS THIS WAIVER WITH COUNSEL.
b. Borrower hereby submits to personal jurisdiction in the State of
Connecticut for the enforcement of the provisions of this Note and irrevocably
waives any and all rights to object to such to such jurisdiction for the
purposes of litigation to enforce any provision of this Note. Borrower hereby
consents to the jurisdiction of and agrees that any action, suit or proceeding
to enforce this Note may be brought in any state or federal court in the State
of Connecticut. Borrower hereby irrevocably waives any objection which Borrower
may have to the laying of the venue of any such action, suit, or proceeding in
any such court and hereby further irrevocably waives any claim that any such
action, suit or proceeding brought in such a court has been brought in an
inconvenient forum. Borrower hereby appoints the Secretary of the State of
Connecticut as its agent for service of process. Borrower hereby consents that
service of process in any action, suit or proceeding may be made by service upon
the aforesaid agent for service of process, by personal service upon Borrower,
or by delivery in accordance with the notice requirements of SECTION 8 of this
Note or in such other manner permitted by law.
c. TO INDUCE LENDER TO ENTER INTO THE COMMERCIAL LOAN TRANSACTION
EVIDENCED BY THIS NOTE AND THE LOAN AGREEMENT AND SECURED BY THE OTHER LOAN
DOCUMENTS, BORROWER AGREES THAT THE SAID TRANSACTION IS COMMERCIAL AND NOT A
CONSUMER TRANSACTION AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, WAIVES
ANY RIGHT TO NOTICE OF AND HEARING OF THE RIGHT OF LENDER UNDER CHAPTER 903a OF
THE CONNECTICUT GENERAL STATUTES, REVISION OF 1958, AS AMENDED, OR OTHER STATUTE
OR STATUTES AFFECTING PREJUDGMENT REMEDIES AND AUTHORIZES LENDER'S ATTORNEY TO
ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT COURT ORDER, PROVIDED THE
COMPLAINT SHALL SET FORTH A COPY OF THIS WAIVER.
d. This Note shall be binding upon Borrower and its representatives,
successors and assigns.
e. This Note may not be changed orally, but only by an agreement in
writing signed by Borrower and Lender.
f. The headings used in this Note are for ease of reference only and
shall not be used to construe or interpret this Note.
g. Borrower agrees that the terms and conditions of this Note are the
result of negotiations between Borrower and Lender and that this Note shall not
be construed in favor of or against any party by reason of the extent to which
any party or its professionals participated in the preparation of this Note.
9
<PAGE> 10
12. LIMITATION ON LIABILITY. The personal liability of Borrower under
this Note shall be limited in the manner and to the extent expressly set forth
in SECTION 9.19 of the Loan Agreement, which SECTION 9.19 is hereby
incorporated by this reference.
13. EXTENSION OPTION. Provided that Borrower complies with all of the
terms and conditions of Section 5.4 of the Loan Agreement, then Borrower may,
upon the delivery of at least ninety (90) days' prior written notice to Lender,
elect to extend the term of this Note for one (1) additional term of five (5)
years (the "EXTENDED TERRA") on the terms set forth in Section 5.4 of the Loan
Agreement. Borrower acknowledges and agrees that the Prepayment Fee shall apply
during the Extended Term pursuant to and in accordance with the terms and
provisions of this Note. Borrower agrees to execute any additional documentation
required by Lender in connection with any Extended Term.
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
by its duly authorized representative as of the date and year first above
written.
THE BADLANDS GOLF CLUB, INC., a Nevada
corporation,
By: /s/ Stanton V. Abrams
-----------------------------
Stanton V. Abrams
President
Borrower's Taxpayer Identification
Number: 04-3295344
STATE OF Massachusetts S
--------------- S
COUNTY OF Suffolk S
--------------- S
On this, the 15th day of November, 1996, before me, the undersigned
officer, personally appeared Stanton V. Abrams, who acknowledged himself to be
the President of THE BADLANDS GOLF CLUB, INC., a Nevada corporation, and that
he, as such President, being authorized so to do, executed the foregoing
Promissory Note for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Robert E. Richards, Jr.
-------------------------------------
Notary Public
ROBERT E. RICHARDS, JR.
NOTARY PUBLIC
MY COMMISSION EXPIRES
SEPT. 30, 1999
10
<PAGE> 11
<TABLE>
<CAPTION>
EXHIBIT A
---------
BADLANDS GOLF COURSE-PHASE II
AMORTIZATION SCHEDULE
Loan Balance Loan Balance
Month BOM Principal EOM
- ------------------------------------------------------------
<S> <C> <C> <C>
0
I 5,000,000 6,584 4,993,416
2 4,993,416 6,639 4,986,776
3 4,986,776 6,695 4,980,082
4 4,980,082 6,750 4,973,331
5 4,973,331 6,807 4,966,525
6 4,966,525 6,863 4,959,661
7 4,959,661 6,921 4,952,741
8 4,952,741 6,978 4,945,762
9 4,945,762 7,036 4,938,726
10 4,938,726 7 095 4,931,631
11 4,931,631 7,154 4,924,477
12 4,924,477 7,214 4,917,263
13 4,917,263 7,274 4,909,989
14 4,909,989 7,335 4,902,655
15 4,902,655 7,396 4,895,259
16 4,895,259 7,457 4,887,802
17 4,887,802 7,519 4,880,282
18 4,880,282 7,582 4,872,700
19 4,872,700 7,645 4,865,055
20 4,865,055 7,709 4,857,346
21 4,857,346 7,773 4,849,573
22 4,849,573 7,838 4,841,735
23 4,841,735 7,903 4,833,832
24 4,833,832 7,969 4,825,863
25 4,825,863 8,036 4,817,827
26 4,817,827 8,103 4,809,724
27 4,809,724 8,170 4,801,554
28 4,801,554 8,238 4,793,316
29 4,793,316 8,307 4,785,009
30 4,785,009 8,376 4,776,633
31 4,776,633 8,446 4,768,188
32 4,768,188 8,516 4,759,671
33 4,759,671 8,587 4,751,084
34 4,751,084 8,659 4,742,426
35 4,742,426 8,731 4,733,695
36 4,733,695 8,804 4,724,891
37 4,724,891 8,877 4,716,014
38 4,716,014 8,951 4,707,063
39 4,707,063 9,026 4,698,038
40 4,698,038 9,101 4,688,937
41 4,688,937 9,177 4,679,760
42 4,679,760 9,253 4,670,507
43 4,670,507 9,330 4,661,177
44 4,661,177 9,408 4,651,769
45 4,651,769 9,486 4,642,283
46 4,642,283 9,565 4,632,717
47 4,632,717 9,645 4,623,072
48 4,623,072 9,725 4,613,347
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
BADLANDS GOLF COURSE-PHASE II
AMORTIZATION SCHEDULE
Loan Balance Loan Balance
Month BOM Principal EOM
- ------------------------------------------------------------
<S> <C> <C> <C>
49 4,613,347 9,807 4,603,540
50 4,603,540 9,888 4,593,652
51 4,593,652 9,971 4,583,681
52 4,583,681 10,054 4,573,628
53 4,573,628 10,138 4,563,490
54 4,563,490 10,222 4,553,268
55 4,553,268 10,307 4,542,961
56 4,542,961 10,393 4,532,568
57 4,532,568 10,480 4,522,088
58 4,522,088 10,567 4,511,521
59 4,511,521 10,655 4,500,866
60 4,500,866 10,744 4,490,122
</TABLE>
<PAGE> 1
EXHIBIT 10.30
LOAN MODIFICATION AND EXTENSION AGREEMENT
-----------------------------------------
STATE OF NEVADA )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF CLARK )
THIS LOAN MODIFICATION AND EXTENSION AGREEMENT (this "Agreement")
dated November ____, 1996, is made and executed by THE BADLANDS GOLF CLUB, INC.,
a Nevada corporation, whose address is 266 Beacon Street, Boston, Massachusetts
02116 ("Borrower"), SENIOR TOUR PLAYERS DEVELOPMENT, INC., a Nevada corporation,
whose address is 266 Beacon Street, Boston, Massachusetts 02116 ("Guarantor")
and NATIONSCREDIT COMMERCIAL CORPORATION, a Delaware corporation formerly known
as Greyrock Capital Group, Inc., whose address is One Canterbury Green, P.O. Box
120013, Stamford, Connecticut 06912-0013, Attn: Vice President Commercial Real
Estate ("NCC").
R E C I T A L S:
A. NCC has heretofore extended a loan in the principal amount of up
to $6,700,000.00 (the "Loan") to Borrower. The Loan is evidenced by (i) a
certain Promissory Note (Secured) (the "Note") dated December 22, 1995, executed
by Borrower in favor of NCC, and (ii) a certain Loan Agreement (herein so
called) dated December 22, 1995, executed by Borrower and Lender. The payment of
the Note is secured by a certain Deed of Trust and Security Agreement (the "Deed
of Trust"), dated December 22, 1995, executed and delivered by Borrower for the
benefit of NCC, covering Borrower's leasehold interest in certain real property
in Clark County, Nevada, which is described on EXHIBIT "A" attached hereto and
made a part hereof for all purposes, and certain other property described
therein. The Deed of Trust is recorded in Book 951227 of the Official Records of
Clark County, Nevada as Document No. 01658.
B. In connection with the Loan, Borrower executed and delivered to
NCC, in addition to the Note, the Loan Agreement and the Deed of Trust, certain
other documents (the Deed of Trust and such other documents being called the
"Other Documents").
C. Also in connection with the Loan, Guarantor executed and
delivered to NCC (i) a certain Limited Guaranty and Indemnity Agreement dated
December 22, 1995 (the "Guaranty"),
[SEAL]
THIS DOCUMENT PREPARED BY AND CLARK COUNTY, NEVADA
AFTER RECORDING RETURN TO: JUDITH A VANDEVER, RECORDER
RECORDED AT REQUEST OF:
GEORGE C. DUNLAP, JR., ESQ. FIRST AMERICAN TITLE COMPANY OF
JENKENS & GILCHRIST 11-22-96 15:56 RMM 14
A PROFESSIONAL CORPORATION BOOK: 961122 INST: 02015
1445 ROSS AVENUE, SUITE 3200 FEE: 20.00 RPTT: 00
DALLAS, TEXAS 7502-2799 MD AGREEMENT
CONFORMED COPY-HAS NOT BE COMPARED TO ORIGINAL
<PAGE> 2
and (ii) a certain Pledge Agreement (herein so called) dated December 22, 1995
(the Other Documents, the Guaranty and the Pledge Agreement are collectively
called the "Loan Documents").
D. Concurrently herewith, NCC has agreed to extend a loan to Borrower in
the principal amount of up to $5,000,000.00 (the "Other Loan"). The Other Loan
is evidenced by (i) a certain Promissory Note (Secured) dated of even date
herewith in the principal amount of up to $5,000,000.00 (the "Other Note"), and
(ii) a certain Loan Agreement dated of even date herewith (the "Other Loan
Agreement").
E. In connection with the Other Loan, Borrower and NCC have agreed to
modify certain terms of the Note and the Loan Documents.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Borrower and NCC hereby agree as follows:
1. The Note is hereby modified as follows:
(a) Section 1(r) of the Note is hereby amended and restated in its
entirety to provide as follows:
"r. "MATURITY DATE" shall mean the earliest to occur of (i) December
1, 2001, (ii) such date as NCC may, in its discretion, designate in
writing as the Maturity Date if the Base Rate should at any time
exceed the Maximum Rate or (iii) the date on which the entire
principal amount evidenced by this Note and all accrued and unpaid
interest thereon shall be paid or be required to be paid in full,
whether by prepayment, acceleration or otherwise in accordance with
the terms of this Note or any of the Loan Documents."
(b) From December 22, 2000 until the Maturity Date, the Note shall
bear interest at the rate of 10.95% per annum. In the event the term of
the Note is extended pursuant to Section 5.4 of the Other Loan Agreement,
the interest rate which the Note bears during the extended term shall be
determined in accordance with Section 5.4 of the Other Loan Agreement.
(c) Section 3(c) is hereby deleted from the Note.
(d) Section 13 is hereby deleted from the Note. Borrower's right to
extend the term of the Note (and the terms of such extension) shall be
governed by Section 5.4 of the Other Loan Agreement.
2. The term "Indebtedness" as defined and described in the Deed of
Trust is hereby amended and restated in its entirety to provide as follows:
2
<PAGE> 3
"(a) An indebtedness in the principal sum of up to SIX MILLION
SEVEN HUNDRED THOUSAND AND 00/100 DOLLARS ($6,700,000.00) lawful
money of the United States, to be paid according to that certain
Promissory Note dated as of December 22, 1995 from Mortgagor to
Mortgagee in said principal sum, which Promissory Note is hereby
incorporated by this reference and made a part hereof (said
Promissory Note, as the same may hereafter be amended, modified,
consolidated or extended, the "NOTE"), together with all other
Advances (as hereinafter defined), amounts, covenants, obligations,
sums, expenses and liabilities due or to become due to Mortgagee
hereunder or under any other instrument evidencing, securing or
executed in connection with the loan evidenced by the Note (all of
the foregoing agreements and instruments, as hereafter amended,
modified or supplemented together with this Mortgage, collectively
the "LOAN DOCUMENTS"), and
(b) Payment of an indebtedness in the principal sum of up to
FIVE MILLION AND 00/100 DOLLARS ($5,000,000.00) to be paid according
to that certain Promissory Note dated November 15, 1996, from
Mortgagor to Mortgagee in said principal sum, which Promissory Note
is hereby incorporated by this reference and made a part hereof, and
together with all interest on said indebtedness, obligations,
liabilities, amounts, sums and expenses (all of the foregoing,
collectively the "INDEBTEDNESS")."
3. Section 4.1R is hereby deleted from the Loan Agreement.
4. Borrower hereby acknowledges and agrees that (a) Borrower is not
entitled to receive any additional advances under the Note or under the Loan
Agreement (except for $148,500.00 payable to Kajima Engineering as retainage),
and (b) the occurrence of any event of default under the Other Note or any of
the documents evidencing or securing the Other Loan shall constitute an event of
default under the Note and the Loan Documents.
5. The Deed of Trust and each of the Loan Documents are hereby amended to
provide that the final maturity date of the Note shall be the Maturity Date as
such term is defined herein.
6. Each of the Loan Documents are hereby amended to provide that they
secure, in addition to the Note and the other indebtedness described therein,
the payment of the Other Note and the performance of all of Borrower's
obligations under the documents evidencing or securing the Other Loan.
7. NCC and Borrower each hereby confirm, renew and extend the rights,
titles, security interests, liens, powers and privileges existing under or by
virtue of the Loan Documents until all of the indebtedness evidenced by the Note
and secured by the Loan Documents has been paid in full, and agree that except
for the modifications set forth herein, this Agreement shall not in any way or
manner release, discharge, affect, change, modify or impair the debts, duties,
obligations, liabilities, rights, titles, security interests, liens, powers and
privileges existing by
3
<PAGE> 4
virtue of, arising under or in connection with, or relating to the Note and the
Loan Documents, the purpose of this Agreement being simply to modify the
indebtedness evidenced by the Note in accordance with the terms and provisions
herein and to continue and carry forward all of the rights, titles, security
interests, liens, powers and privileges existing by virtue of the Loan
Documents, each of which are hereby acknowledged by Borrower to be legal, valid
and subsisting. Borrower acknowledges and agrees that the Loan Documents
(including, without limitation, the Deed of Trust) secure the payment of the
Note as modified by this Agreement.
8. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same instrument, and, in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
9. Guarantor hereby acknowledges and agrees that notwithstanding anything
in the Guaranty to the contrary, until the Transition Period (as such term is
defined in the Other Loan Agreement) expires, Guarantor does hereby absolutely,
primarily, unconditionally and irrevocably guarantee to NCC, its successors and
assigns, the full, prompt and absolute payment, performance, observance and
discharge by Borrower of all of Borrower's obligations and liabilities under the
Note, the Deed of Trust, the Loan Agreement and the Loan Documents. After the
expiration of the Transition Period, the liability of Guarantor shall be limited
as provided in the Guaranty.
10. This Agreement contains the entire terms of the agreement between
Borrower, NCC and Guarantor with respect to the subject matter hereof and
supersedes all prior discussions and agreements between Borrower, NCC and
Guarantor and all prior drafts of this Agreement.
4
<PAGE> 5
EXECUTED on the date first above written.
BORROWER:
THE BADLANDS GOLF CLUB, INC.,
a Nevada corporation
By: /s/ Stanton V. Abrams
-------------------------------
Stanton V. Abrams,
President
GUARANTOR:
SENIOR TOUR PLAYERS DEVELOPMENT, INC.,
a Nevada corporation
By: /s/ Stanton V. Abrams
-------------------------------
Print: Stanton V. Abrams
-------------------------
Its: President
---------------------------
5
<PAGE> 6
EXECUTED on the date first above written.
BORROWER:
THE BADLANDS GOLF CLUB, INC.,
a Nevada corporation
By: /s/ Stanton V. Abrams
-------------------------------
Stanton V. Abrams,
President
NCC:
---
NATIONSCREDIT COMMERCIAL
CORPORATION
a Delaware corporation
By: /s/ Mikeal R. Jones
-------------------------------
Print: Mikeal R. Jones
-------------------------
Its: Authorized Signatory
---------------------------
GUARANTOR:
SENIOR TOUR PLAYERS DEVELOPMENT, INC.,
a Nevada corporation
By: /s/ Stanton V. Abrams
-------------------------------
Print: Stanton V. Abrams
-------------------------
Its: President
---------------------------
5
<PAGE> 7
STATE OF Massachusetts )
-------------
)
COUNTY OF Suffolk )
-------------
On this, the 15th day of November, 1996, before me, the undersigned
officer, personally appeared Stanton V. Abrams, who acknowledged himself to be
the President of THE BADLANDS GOLF CLUB, INC., and that he, as such President,
being authorized so to do, executed the foregoing Loan Agreement for the
purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Robert E. Richards, Jr.
------------------------------
Notary Public
ROBERT E. RICHARDS, JR.
[STAMP OF: NOTARY PUBLIC
MY COMMISSION EXPIRES
SEPT. 30, 1999
6
<PAGE> 8
STATE OF Massachusetts )
-------------
)
COUNTY OF Suffolk )
-------------
On this, the 15th day of November, 1996, before me, the undersigned
officer, personally appeared Stanton V. Abrams, who acknowledged himself to be
the President of SENIOR TOUR PLAYERS DEVELOPMENT, INC., a Nevada corporation
and that he, as such President, being authorized so to do, executed the
foregoing Loan Agreement for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Robert E. Richards, Jr.
------------------------------
Notary Public
ROBERT E. RICHARDS, JR.
[STAMP OF: NOTARY PUBLIC
MY COMMISSION EXPIRES
SEPT. 30, 1999
7
<PAGE> 9
STATE OF Massachusetts )
-------------
)
COUNTY OF Suffolk )
-------------
On this, the 15th day of November, 1996, before me, the undersigned
officer, personally appeared Stanton V. Abrams, who acknowledged himself to be
the President of THE BADLANDS GOLF CLUB, INC., a Nevada corporation and that
he, as such President, being authorized so to do, executed the foregoing Loan
Agreement for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Robert E. Richards, Jr.
------------------------------
Notary Public
ROBERT E. RICHARDS, JR.
[STAMP OF: NOTARY PUBLIC
MY COMMISSION EXPIRES
SEPT. 30, 1999
STATE OF Connecticut )
-----------
)
COUNTY OF Fairfield )
-----------
On this, the 19th day of November, 1996, before me, the undersigned
officer, personally appeared Mikeal R. Jones, who acknowledged himself to be
the Authorized Signatory of NATIONSCREDIT COMMERCIAL CORPORATION, a Delaware
corporation, and that he, as such Authorized Signatory, being authorized so to
do, executed the foregoing Loan Modification and Extension Agreement for the
purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Lynn M. Sutherland
------------------------------
Notary Public
Lynn M. Sutherland
[STAMP OF: NOTARY PUBLIC
MY COMMISSION EXPIRES
Aug. 31, 2001
<PAGE> 10
EXHIBIT "A"
-----------
THE REAL PROPERTY
-----------------
<PAGE> 11
EXHIBIT "A-2"
LEGAL DESCRIPTION
A LEASEHOLD ESTATE CREATED BY LEASE DATED APRIL 28, 1993 AND ADDENDUM DATED JULY
28, 1993 AND ADDENDUM DATED OCTOBER 27, 1994 AND ADDENDUM DATED NOVEMBER 2, 1994
BY AND BETWEEN SENIOR TOUR PLAYERS, INC., A MASSACHUSETTS CORPORATION AND ITS
NOMINEE, SENIOR TOUR PLAYERS DEVELOPMENT, INC., A NEVADA CORPORATION, AS LESSEE
AND WILLIAM PECCOLE 1982 TRUST, A NEVADA TRUST, WILLIAM PETER AND WANDA RUTH
PECCOLE 1971 TRUST, DATED JULY 8, 1971, LAURETTA P. BAYNE 1976 TRUST, DATED JUNE
14, 1976, LEANN P. GOORJIAN 1976 TRUST, DATED JUNE 14, 1976 AND THE WILLIAM
PECCOLE AND WANDA PECCOLE 1991 TRUST, DATED DECEMBER 26, 1991, AS LESSOR AS TO:
PARCEL 1:
- ---------
A PORTION OF SECTIONS 31 AND 32, TOWNSHIP 20 SOUTH, RANGE 60 EAST, M.D.M. CITY
OF LAS VEGAS, CLARK COUNTY, NEVADA AND DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 31 AS SHOWN ON A PARCEL MAP
RECORDED IN FILE 76 OF PARCEL MAPS, PAGE 65 IN THE OFFICE OF THE CLARK COUNTY
RECORDER, SAID POINT BEING THE CENTERLINE INTERSECTION OF CHARLESTON BLVD. AND
HUALAPAI WAY; THENCE N.06[DEGREES05'57"W., ALONG THE CENTERLINE OF HUALAPAI WAY
AND THE WEST LINE OF SAID SECTION 31, A DISTANCE OF 893.94 FEET; THENCE
N.83[DEGREES]54'03"E., A DISTANCE OF 50.00 FEET TO A OINT ON THE EAST LINE OF
HUALAPAI WAY, THE POINT OF BEGINNING' THENS N.64[DEGREES]15'40"E., A DISTANCE OF
619,87 FEET; THENCE N.72[DEGREES]29'37"E., A DISTANCE OF 496.92 FEET; THENCE
S.68[DEGREES]25'40"E., A DISTANCE OF 319.98 FEET; THENCE S.87[DEGREES]40'2"E., A
DISTANCE OF 513.23 FEET; THENCE N.87[DEGREES]55'09"E., A DISTANCE OF 1033.86
FEET; THENCE N.30[DEGREES]04'55"W., ALONG THE ALIGNMENT OF A PRIVATE DRIVE TO BE
KNOWN AS PALACE COURT, A DISTANCE OF 248.13 FEET OT A POINT ON A CURVE CONCAVE
EATERLY HAVING A RADIUS OF 385.00 FEET AND SUBTENDING A CENTAL ANGLE OF
15[DEGREES]19'20"; THENCE NORTHWESTERLY ALONG SAID CURVE TO THE RIGHT AN ARC
DISTANCE OF 102.96 FEET; THENCE FROM A RADIAL WHICH BEARS N.75[DEGREES]14'25";
ON A LINE WHICH BEARS S.81[DEGREES]53'08"W., A DISTANCE OF 145.92 FEET; THENCE
S.87[DEGREES]55'09"W., A DISTANCE OF 310.00 FEET; THENCE N.82[DEGREES]21'29"W.,
A DISTANCE OF 374.79 FEET TO A POINT ON A CURVE CONCAVE SOUTHERLY, HAVING A
RADIUS OF 500.00 FEET AND SUBTENDING A CENTRAL ANGLE OF 14[DEGREES]37'17";
THENCE WESTERLY ALONG SAID CURVE TO THE LEFT, AN ARC DISTANCE OF 127.60 FEET;
THENCE S.83[DEGREES]01'14"W., TANGENT TO THE LAST CURVE, A DISTANCE OF 96.53
FEET TO A POINT ON A CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 350.00 FEET AND
SUBTENDING A CENTRAL ANGLE OF 27[DEGREES]10'03"; THENCE FROM A RADIAL WHICH
BEARS S.06[DEGREES]48'46"E., NORTHWESTERLY ALONG SAID CURVE TO THE RIGHT, AN ARC
DISTANCE OF 165.96 FEET; THENCE N.69[DEGREES]48'43'W., A DISTANCE OF 192.18
FEET; THENCE S.82[DEGREES]19'57"W., A DISTANCE OF 1093.43 FEET; THENCE
N.13[DEGREES]19'52"E., A DISTANCE OF 317.29 FEET; THENCE N.23[DEGREES]54'36"W.,
A DISTANCE OF 100.00 FEET; THENCEN.58[DEGREES]52'45"E., A DISTANCE OF 338.26
FEET; THENCE S.80[DEGREES]43'39"E., A DISTANCE OF 466.63 FEET; THENCE
N.76[DEGREES]45'03"E., A DISTANCE OF 419.28 FEET; THENCE N.83[DEGREES]01'14"E.,
A DISTANCE OF 469.82 FEET; THENCE N.73[DEGREES]41'43"E., A DISTANCE OF 243.69
FEET; THENCE
("CONTINUED ON NEXT PAGE")
------------------------
Page 1 of 5
<PAGE> 12
EXHIBIT "A-2"
LEGAL DESCRIPTION
S.77[DEGREES]12'30"E., A DISTANCE OF 583.20 FEET; THENCE N.74[DEGREES]05'05"E.,
A DISTANCE OF 533.49 FEET; THENCE N.41[DEGREES]57'12"E., A DISTANCE OF 152.00
FEET;' THENCE S.87[DEGREES]46'25"E., A DISTANCE OF 1006.93 FEET; THENCE
S.01[DEGREES]24'18"E., A DISTANCE OF 308.96 FEET; THENCE S.58[DEGREES]15'03"W.,
A DISTANCE OF 493.93 FEET; THENCE S.74[DEGREES]49'16"W., A DISTANCE OF 284.31
FEET; THENCE S.83[DEGREES]26'16"W., A DISTANCE OF 556.80 FEET; THENCE
S'81[DEGREES]53'08"W., A DISTANCE OF 277.45 FEET TO A POINT ON A CURVE CONCAVE
EASTERLY, HAVING A RADIUS OF 295.00 FEET AND SUBTENDING A CENTRAL ANGLE OF
13[DEGREES]16'52"; THENCE FROM A RADIAL WHICH BEARS N.73[DEGREES]11'57"E.,
SOUTHEASTERLY ALONG SAID CURVE TO THE LEFT AN ARCH DISTANCE OF 68.38 FEET;
THENCE S.30[DEGREES]04'55"E., TANGENT TO THE LAST CURVE A DISTANCE OF 289.63
FEET; THENCE S.30[DEGREES]04'48"E., A DISTANCE OF 376.81 FEET TO A POINT ON A
CURVE CONCAVE WESTERLY HAVING A RADIUS OF 1245.00 FEET AND SUBTENDING A CENTRAL
ANGLE OF 23[DEGREES]02'44"; THENCE SOUTHEASTERLY ALONG SAID CURVE TO THE RIGHT
AN ARCE DISTANCE OF 500.76 FEET TO A POINT OF REVERSE CURVATURE WITH A CURVE
CONCAVE NORTHEASTERLY HAVING A RDIUS OF 10.00 FEET AND SUBTENDING A CENTRAL
ANGLE OF 80[DEGREES]48'41"; THENCE FROM A RADIAL WHICH BEARS
S82[DEGREES]57'46"W., SOUTHEASTERLY ALONG CURVE TO THE LEFT AN ARC DISTANCE OF
14.10 FEET; THENCE S.87[DEGREES]50'55"E., TANGENT TO THE LAST CURVE, A DISTANCE
OF 137.05 FET TO A POINT ON A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 105.00
FEET AND SUBTENDING A CENTRAL ANGLE OF 32[DEGREES]14'09"; THENCE FROM A RADIAL
WHICH BEARS S.02[DEGREES]09'05"W., NORTHEASTERLY ALONG SAID CURVE AN ARC
DISTANCE OF 59.08 FEET; THENCE N.59[DEGREES]54'56"E., TANGENT TO THE LAST CURVE,
A DISTANCE OF 117.66 FEET TO A POINT ON A CURVE CONCAVE SOUTHEASTERLY, HAVING A
RADIUS OF 106.00 FEET AND SUBTENDING A CENTRAL ANGLE OF 14[DEGREES]20'56";
THENCE FROM A RADIAL WHICH BEARS N.30[DEGREES]05'04"W., SOUTHEASTERLY ALONG SAID
CURVE, AN ARC DISTANCE OF 26.55 FEET; THENCE N.05[DEGREES]47'04"W., TANGENT TO
THE LAST CURVE, A DISTANCE OF 511.45 FEET; THENCE N.73[DEGREES]26'22E., A
DISTANCE OF 743.81 FEET; THENCE N.59[DEGREES]07'42"E., A DISTANCE OF 726.09
FEET; THENCE S.41[DEGREES]09'26"E., A DISTANCE OF 512.31 FEET; THENCE
S.50[DEGREES]04'02"W., A DISTANCE OF 518.76 FEET; THENCE S.03[DEGREES]23'10"3",
A DISTANCE OF 416.56 FEET; THENCE N.89[DEGREES]33'15"W., A DISTANCE OF 518.10
FEET; THENCE S.82[DEGREES]42'54"W., A DISTANCE OF 204.18 FEET; THENCE
S.75[DEGREES]59'22"W., A DISTANCE OF 524.36 FEET; THENCE S.64[DEGREES]47'20"W.,
A DISTANCE OF 256.61 FEET; THENCE S.00[DEGREES]00'00"W., A DISTANCE OF 46.08
FEET; THENCE S.69[DEGREES]19'19'51"E., A DISTANCE OF 156.06 FEET; THENCE
N.89[DEGREES]40'03" E., ALONG A LINE PARALLEL WITH AND 73.00 FEET NORTH OF THE
SOUTH LINE OF SAID SECTION 31, ALSO BVEING THE CENTERLINE OF CHARLESTON BLVD., A
("CONTINUED ON NEXT PAGE")
------------------------
Page 2 of 5
<PAGE> 13
EXHIBIT "A-2"
LEGAL DESCRIPTION
DISTANCE OF 1556.83 FEET; THENCE N.02[DEGREES]40'39"E., A DISTANCE OF 718.24
FEET; THENCE N.60[DEGREES]00'23"E., A DISTANCE OF 752.07 FEET; THENCE
N.39[DEGREES]15'37"E., A DISTANCE OF 50.00 FEET; THENCE S.33[DEGREES]39'42"E., A
DISTANCE OF 243.50 FEET; THENCE N.89[DEGREES]26'21"E., A DISTANCE OF 60.00 FEET
TO A POINT ON THE WEST LINE OF THAT CERTIAN PARCEL OF LAND SHOWN AS L.V.V.W.D.,
A.P.N.=138-32-401-001 ON THE AFORESAID PARCEL MAP; THENCE N.00[DEGREES]33'39"W.,
A DISTANCE OF 325.00 FEET OT THE NORTHWEST CORNER OF THE AFTERSAID PARCEL;
THENCE S.89[DEGREES]26'21"W., A DISTANCE OF 122.37 FEET; THENCE
N.03[DEGREES]15'12"E., A DISTANCE OF 185.92 FEET; THENCE N.45[DEGREES]06'08"E.,
A DISTANCE OF 322.73 FEET; THENCE S.87[DEGREES]19'36"E., A DISTANCE OF 204.43
FEET; THENCE N.56[DEGREES]10'59"E., A DISTANCE OF 572.72 FEET; THENCE
N.65[DEGREES]08'21"E., A DISTANCE OF 245.50 FEET OT A POINT ON THE WEST
RIGHT-OF-WAY LINE OF RAMPART BLVD.; THENCE N.39[DEGREES]51'15"E., A DISTANCE OF
859.38 FEET TO A POINT ON A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 54.00
FEET AND SUBTENDING A CENTRAL ANGELE OF 90"00'00"; THENCE NORTHWESTERLY ALONG
SAID CURVE AT THE LEFT, AN ARC DISTANCE OF 84.82 FEET; THENCE
N.50[DEGREES]08'45" W. TANGENT TO THE LAST CURVE AND ALONG THE FUTURE ALTA DRIE,
A DISTANCE OF 2.17 FEET TO A POINT ON A CURVE CONCAVE SOUTHERLY, HAVING A RADIUS
OF 760.00 FEET AND SUBTENDING A CENTRAL ANGLE OF 33[DEGREES]51'14"E., WESTERLY
ALONG SAID CURVE TO THE LEFT AND ALONG THE SAID FUTURE SOUTH RIGHT-OF-WAY LINE
OF ALTA DRIVE, AN ARC DISTANCE OF 446.74 FEET; THENCE LEAVING SAID CURVE FROM A
RADIAL WHICH BEARS N.06[DEGREES]10'39"E.,, ON A BEARING OF
S.55[DEGREES]19'16"W., A DISTANCE OF 845.91 FEET; THENCE S.65[DEGREES]09'52"W.,
A DISTANCE OF 354.20 FEET; THENCE N.88[DEGREES]08'01"W., A DISTANCE OF 211.78
FEET; THENCE N.68.42'48"W., A DISTANCE OF 233.33 FEET; THENCE
N.10[DEGREES]17'23"E., A DISTANCE OF 227.70 FEET; THENCE N.19[DEGREES]42'37W., A
DISTANCE OF 220.00 FEET; THENCE, N.39[DEGREES]33'23"E., A DISTANCE OF 247.84
FEET TO A POINT ON A CURVE CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 25.00 FEET
AND SUBTENDING A CENTAL ANGLE OF 85[DEGREES]40'28"; THENCE NORTHEASTERLY ALONG
SAID CURVE TO THE RIGHT, AN ARC DISTANCE OF 37.38 FEET OTO A POINT ON A CURVE
CONCAVE NORTHEATERLY, HAVING A RADIUS OF 1040.00 FEET AND SUBTENDING A CENTRAL
ANGLE OF 06[DEGREES]59'56"; THENCE NORTHWESTERLY FROM A RADIAL WHICH BEARS
S.35[DEGREES]13"51"E. ALONG SAID CURVE TO THE RIGHT, BEING THE FUTURE SOUTH
RIGHT-OR-WAY LINE OF ALTA DRIVE, AN ARCH DISTANCE OF 127.04 FEET TO A POINT ON A
CURVE, CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 25.00 FEET AND SUBTENDING A
CENTRAL ANGLE OF 87[DEGREES]19'36"; THENCE SOUTHEASTERLY FROM A RADIAL WHICH
BEARS N.42[DEGREES]13'47"E., ALONG SAID CURVE TO THE RIGHT AN ARC DISTANCE OF
38.10 FEET; THENCE
("CONTINUED ON NEXT PAGE")
------------------------
Page 3 of 5
<PAGE> 14
EXHIBIT "A-2"
LEGAL DESCRIPTION
S.39[DEGREES]33'23"W., TANGENT TO THE LAST CURVE, A DISTANCE OF 245.97 FEET;
THENCE N.90[DEGREES]00'00"W., A DISTANCE OF 127.77 FEET; THENCE
S.39[DEGREES]33'23"W., A DISTANCE OF 220.45 FEET; THENCE S.09[DEGREES]40'24"E.,
A DISTANCE OF 275.89 FEET; THENCE N.83[DEGREES]54'34"W., A DISTANCE OF 254.65
FEET; THENCE S.86[DEGREES]47'39"W., A DISTANCE OF 617.43 FEET; THENCE
S.79[DEGREES]01'40"W., A DISTANCE OF 495.51 FEET; THENCE
N.54[DEGREES]56'11"W., A DISTANCE OF 206.04 FEET; THENCE N.80[DEGREES]50'57"W.,
A DISTANCE OF 221.28 FEET; THENCE S.88[DEGREES]22'40"W., A DISTANCE OF 338.29
FEET; THENCE S.63[DEGREES]54'06"W., A DISTANCE OF 573.96 FEET; THENCE
N.77[DEGREES]42'42"W., A DISTANCE OF 167.96 FEET; THENCE N.85[DEGREES]50'10"W.,
A DISTANCE OF 283.93 FEET; THENCE N.89[DEGREES]18'01"W., A DISTANCE OF 357.11
FEET; THENCE S.84[DEGREES]07'53"W., A DISTANCE OF 269.16 FEET; THENCE
S.75[DEGREES]37'07"W., A DISTANCE OF 386.72 FEET; THENCE S.81[DEGREES]11'34"W.,
A DISTANCE OF 265.35 FEET; THENCE N.83[DEGREES]33'51"W., A DISTANCE OF 185.18
FEET; THENCE N.67[DEGREES]39'10"W., A DISTANCE OF 232.62 FEET; THENCE
S.73[DEGREES]01'48"W., A DISTANCE OF 355.57 FEET; THENCE S.67[DEGREES]05'17"W.,
A DISTANCE OF 382.31 FEET; THENCE N.88[DEGREES]42'44"W., A DISTANCE OF 108.52
FEET TO A POINT ON THE WEST RIGHT-OF-WAY LINE OF HUALAPAI WAY; THENCE
S.06[DEGREES]05'57"E., ALONG THE SAID WEST RIGHT-OF-WAY OF HUALAPAI WAY A
DISTANCE OF 1315.32 FEET TO THE POINT OF BEGINNING.
PARCEL II:
- ----------
AN EASEMENT FOR A CART PATH, PRIVATE ROADWAY AND WALKWAY WITH THE RIGHT OF
INGRESS AND EGRESS AS CREATED BY AN INSTRUMENT RECORDED ___________________ IN
BOOK _______________ OF OFFICIAL RECORDS, CLARK COUNTY NEVADA, AS DOCUMENT NO.
___________ OVER AND ACROSS THE FOLLOWING:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 31 AS SHOWN ON A PARCEL MAP
RECORDED IN FILE 76 OF PARCEL MAPS, PAGE 65 IN THE OFFICE OF THE CLARK COUNTY
RECORDER, SAID POINT BEING THE CENTERLINE INTERSECTION OF CHARLESTON BLVD. AND
HUALAPAI WAY; THENCE N.06[DEGREES]05'57"W., ALONG THE CENTERLINE OF HUALAPAI WAY
AND THE WEST LINE OF SAID SECTION 31, A DISTANCE OF 893.94 FEET; THENCE N.
83[DEGREES]54'03"E., A DISTANCE OF 50.00 FEET TO A POINT ON THE EAST LINE OF
HUALAPAI WAY, THENCE N.64[DEGREES]15'40"E., A DISTANCE OF 619.87 FEET; THENCE
N.72[DEGREES]29'37"E., A DISTANCE OF 496.92 FEET, THENCE S.68[DEGREES]25'40"E.,
A DISTANCE OF 319.98 FEET; THENCE S.87[DEGREES]40'02"E., A DISTANCE OF 513.23
FEET; THENCE N.87[DEGREES]55'09"E., A DISTANCE OF 1033.86 FEET TO A POINT ON
THE WEST LINE OF THE FUTURE PALACE COURT (A PRIVATE STREET) SAID POINT BEING
THE POINT OF BEGINNING; THENCE N.59[DEGREES]55'05"E., A DISTANCE OF 90 FEET TO
A POINT ON THE EAST LINE OF
("CONTINUED ON NEXT PAGE")
------------------------
Page 4 of 5
<PAGE> 15
EXHIBIT "A-2"
LEGAL DESCRIPTION
SAID PALACE COURT HEREINAFTER REFERRED TO AS POINT "A"; HTENCE
N.30[DEGREES]04'55"W., ALONG THE SAID EAST LINE OF PALACE COURT A DISTANCE OF
248.13 FEET TO A POINT ON A CURVE CONCAVE EASTERLY, HAVING A RADIUS OF 295.00
FEET AND SUBTENDING A CENTRAL ANGLE OF 13[DEGREES]16'62"; THENCE NORTHERLY ALONG
SAID TANGENT CURVE, TO THE RIGHT AN ARC DISTANCE OF 68.38 FEET; THENCE
S.81[DEGREES]53'08"W., A DISTANCE OF 90.80 FEET OT A POINT ON THE SAID WERSTERLY
LINE OF PALACE COURT BEING ON A CURVE CONCAVE EASTERLY, HAVING
15[DEGREES]19'20"; THENCE SOUTHEATERLY ALONG SAID CURVE, FROM A RADIAL WHICH
BEARS S.75[DEGREES]14'25"W., TO THE RIGHT AN ARC WESTERLY LINE OF PALACE COURT A
DISTANCE OF 248.13 FEET TO THE POINT OF BEGINNING.
PARCEL III:
- -----------
AN EASEMENT FOR A CART PATH, PRIVATE ROADWAY AND WALKWAY WITH THE RIGHT OF
INGRESS AND EGRESS AS CREATED BY AN INSTRUMENT RECORDED ___________________ IN
BOOK _______________ OF OFFICIAL RECORDS, CLARK COUNTY NEVADA, AS DOCIMENT NO.
___________ OVER AND ACROSS THE FOLLOWING:
COMMENCING AT THE AFORESAID POINT "A", THENCE S.30[DEGREES]04'55"E., ALONG THE
GOLF COURSE BOUNDARY AND THE EASTERLY LINE OF THE SAID PAACE COURT, A DISTANCE
OF 41.50 FEET; THENCE S. 30[DEGREES]04'58"E., A DISTANCE OF 376.81 FEET TO A
POINT ON A CURVE CONCAVE WESTERLY HAVING A RADIUS OF 1245.00 FEET AND SUBTENDING
A CENTRAL ANGLE OF 23[DEGREES]02'44"; THENCE SOUTHEASTERLY ALONG SAID CURVE TO
THE RIGHT AN ARC DISTANCE OF 500.76 FEET TO A POINT OF REVERSE CURVATURE WITH A
CURVE CONCAVE NORTHEASTERLY HVING A RADIUS OF 10.00 FEET AND SUBTENDING A
CENTRAL ANGLE OF 80[DEGREES]48'41"; THENCE FROM A RADIAL WHICH BEARS
S.82[DEGREES]57'46"W., SOUTHEASTERLY ALONG CURVE TO THE LEFT AN ARC DISTANCE OF
14.10 FEET; THENCE S.87[DEGREES]48'41"; THENCE FROM A RADIAL WHICH BEARS
DISTANCE OF 14.10 FEET; THENCE S.87[DEGREES]50'55"E., TANGENT TO THE LAST CURVE,
A DISTANCE OF 118.78 FEET TO A POINT OF BEGINNING OF A 40.00 FOOD WIDE EASEMENT
BEING 20.00 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED LINE; THENCE
S.02[DEGREES]09'05"W., ACROSS THE PRIVATE ACCESS ROAD TO PECCOLE WEST LOT 9, A
DISTANCE OF 72.00 FEET; THENCE S.27[DEGREES]15'23"E., A DISTANCE OF 56.89 FEET;
THENCE N.66[DEGREES]59'15"E., A DISTANCE OF 113.93 FEET; THENCE
S.54[DEGREES]05'43E., A DISTANCE OF 73.85 FEET TO A POINT ON THE BOUNDARY LINE
OF THE GOLF COURSE BEING THE POINT OF ENDING. tHE POINT OF ENDING IS AT A POINT
ON THE BOUNDARY WHICH BEARS S.64[DEGREES]47'20" W., A DISTANCE OF 33.15 REET
FROM THE SOUTHWEST CORNER OF LOT 9 AS SHOWN ON THE ALTA SURVEY MAP. tHE
SIDELINES OF THE AFORESAID EASEMENT SHALL BE LENGTHENED OR SHORTENED TO CREATE A
CONTINUOUS STRIP OF LAND AND TERMINATE AT THE COUNDARY LINES OF THE GOLF COURSE
PROPERTY.
Page 5 of 5
<PAGE> 1
EXHIBIT 10-31
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
1996 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
SECTION 1. PURPOSE.
The purpose of the 1996 Non-Employee Directors Stock Option Plan (this
"Plan") of Senior Tour Players Development, Inc. (the ACompany@) is to enable
the Company to attract, retain and motivate directors who are not employees of
the Company or its subsidiaries, and to enable such directors to participate in
the long-term growth of the Company by providing for or increasing the
proprietary interests of such persons in the Company, thereby assisting the
Company to achieve its long-range goals.
SECTION 2. DEFINITIONS.
As used in this Plan:
"Act" means the Securities Exchange Act of 1934, as amended.
"Board" means the Board of Directors of the Company.
"Closing Price" means the closing price of a share of Common Stock quoted
on the NASDAQ Small-Cap Market or on another national securities exchange on
which the Common Stock is then bring traded.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means the Compensation Committee of the Board, which shall
consist of two or more directors each of whom shall be a "non-employee director"
within the meaning of Rule 16(b)-3(b) under the Act (or any successor
provision), or if such a Committee is not then appointed, the Board.
"Common Stock" means the common stock, $.001 par value, of the Company.
"Company" means Senior Tour Players Development, Inc., a Nevada
corporation, or any successor to such corporation.
"Fair Market Value" means, with respect to the Common Stock, the Closing
Price on the business day preceding the date of valuation or, with respect to
any other property, the fair market value as determined by the Committee in good
faith in the manner established by the Committee from time to time.
"Grantee" means a Non-Employee Director who is granted a Stock Option
under the Plan.
<PAGE> 2
"Non-Employee Director" means a director of the Company who is not an
employee of the Company or any of the Company=s subsidiaries.
"Stock Option" means an option to purchase shares of Common Stock granted
to a Non-Employee Director under this Plan. Such Stock Options shall not be
intended to meet the requirements of an "incentive stock option" under Section
422 of the Code or any successor provision.
SECTION 3. ADMINISTRATION.
(a) This Plan shall be administered by the Committee. Among other
matters, the Committee shall have authority, subject to the terms of this Plan,
(i) to determine the terms and conditions of any Stock Option granted hereunder
to a Non-Employee Director, and (ii) to approve the form of any Stock Option
Agreement between the Company and such Non-Employee Director setting forth such
terms and conditions.
(b) The Committee shall have authority to adopt, alter and repeal
such administrative rules, guidelines and practices governing the operation of
this Plan and the Stock Options as it shall from time to time consider
advisable, to interpret the provisions of this Plan and any Stock Option, and to
decide all disputes arising in connection with this Plan or any Stock Option.
The Committee's decisions and interpretations shall be final and binding. Any
action of the Committee with respect to the administration of this Plan or any
Stock Option shall be taken pursuant to a majority vote or by the unanimous
written consent of its members.
SECTION 4. ELIGIBILITY.
Participation in this Plan shall be limited to Non-Employee Directors of
the Company.
SECTION 5. STOCK AVAILABLE FOR STOCK OPTIONS.
(a) Stock Options may be granted under this Plan for up to 200,000
shares of Common Stock. If any Stock Option granted under this Plan expires or
is terminated before exercise or is forfeited for any reason, the shares of
Common Stock subject to such Stock Option, to the extent of such expiration,
termination or forfeiture, shall again be available for grant under this Plan.
(b) In the event that the Committee determines in its sole
discretion that any stock dividend, stock split, extraordinary cash dividend,
creation of an additional class of equity securities, recapitalization,
reclassification, reorganization, merger, consolidation, split-up, spin-off,
combination, exchange of shares, warrants or rights offering to purchase Common
Stock at a price substantially below Fair Market Value, or other similar
transaction affects the Common Stock such that an adjustment is required in
order to preserve the benefits or potential benefits intended to be made
available under this Plan to Grantees, the Committee shall have the right to
adjust equitably any or all of (i) the number and kind of shares of Common Stock
or other securities in respect of which Stock Options may be granted under this
Plan, (ii) the number and kind of shares subject to outstanding Stock Options
held by Grantees, and (iii) the exercise price with respect to any of the
foregoing held by Grantees; and if considered appropriate, the Committee may
make provision for a cash payment with respect to an outstanding Stock Option
held by a Grantee, provided that the number of shares subject to any Stock
Option shall always be a whole number.
2
<PAGE> 3
SECTION 6. GRANT OF STOCK OPTIONS.
(a) With respect to Non-Employee Directors who are serving in such
capacity on the date on which this Plan is adopted by the Board, each such
Non-Employee Director shall be granted a Stock Option to purchase 10,000 shares
of Common Stock on the date of the adoption of this Plan by the Board. With
respect to Non-Employee Directors who are not serving in such capacity on the
date on which the Plan is adopted by the Board but who are subsequently elected
to serve in such capacity while this Plan is in effect, each such Non-Employee
Director shall be granted a Stock Option to purchase 5,000 shares of Common
Stock on the date upon which such Non-Employee Director is first elected. With
respect to both Non-Employee Directors who are serving in such capacity on the
date on which this Plan is adopted by the Board and those who are subsequently
elected to serve in such capacity, each such Non-Employee Director shall also be
granted a Non-Qualified Stock Option to purchase an additional 5,000 shares of
Common Stock on January 1 of each calendar year following the date of the
initial grant of a Stock Option to such Director, provided that at the time of
each such subsequent grant, such Non-Employee Director continues to serve in
such capacity.
(b) The exercise price per share under a Stock Option shall be equal
to 100% of the Fair Market Value of the Common Stock on the date of the grant of
such Stock Option, but in no event less than the par value of the Common Stock.
(c) Subject to the provisions of Section 8(d) hereof with respect to
Stock Options granted prior to the date that this Plan is approved by the
Company=s stockholders, all Stock Options shall be fully exercisable (vested) on
the date of grant with respect to all of the shares covered thereby. Stock
Options may be exercised by the Grantees thereof at any time with respect to all
or any portion of the shares covered thereby, provided that no Stock Option
shall be exercisable more than seven years after the date the Stock Option is
granted. The Grantees= rights to exercise Stock Options during the periods
specified therein shall continue notwithstanding the fact that the Grantees may
cease for any reason (other than death) to serve as Non-Employee Directors of
the Company during such periods. If a Grantee shall die during the period that
his or her Stock Option may be exercised, such Stock Option shall be exercisable
at any time during the one-year period following the date of death either by the
Grantee=s executor or administrator or, if not so exercised, by the legatees or
distributees of the Grantee=s estate as to the number of shares as to which it
was exercisable immediately prior to death.
(d) No shares shall be delivered pursuant to any exercise of a Stock
Option until payment in full of the option price therefor is received by the
Company. Such payment may be made in whole or in part in cash or by certified or
bank check or, to the extent permitted by the Committee at or after the granting
of the Stock Option, by delivery of either (i) a promissory note, (ii) such
documentation as the Committee and a stock broker, if applicable, shall require
to effect an exercise of the Stock Option and delivery to the Company of the
sale or loan proceeds required to pay the option price, (iii) cashless exercise
through delivery to the Grantee of only a portion of the total number of shares
covered by the Stock Option, or (iv) such other lawful consideration as the
Committee may determine.
(e) No Stock Option shall be transferable by a Grantee otherwise
than by will or by the laws of descent and distribution, and all Stock Options
shall be exercisable during the Grantee's lifetime only by the Grantee or the
Grantee's duly appointed guardian or personal representative.
3
<PAGE> 4
SECTION 7. GENERAL PROVISIONS APPLICABLE TO STOCK OPTIONS.
(a) Each Stock Option under this Plan shall be evidenced by a Stock
Option Agreement delivered to the Grantee specifying the terms and conditions
thereof and containing such other terms and conditions not inconsistent with the
provisions of this Plan as the Committee considers necessary or advisable to
achieve the purposes of this Plan or comply with applicable tax and regulatory
laws and accounting principles.
(b) Except as required by the terms of this Plan, the terms of each
Stock Option need not be identical. Except as otherwise provided by this Plan or
a particular Stock Option, any determination with respect to a Stock Option may
be made by the Committee at the time of grant or at any time thereafter.
(c) In order to preserve the rights of a Grantee under a Stock
Option in the event of a change in control of the Company, the Committee in its
discretion may, at the time or at any time thereafter, take one or more of the
following actions with respect to any such change of control: (i) provide for
the purchase of the Stock Option upon the Grantee's request for the net amount
of cash or other property that could have been received upon the exercise of the
Stock Option, (ii) adjust the terms of the Stock Option in a manner determined
by the Committee, (iii) cause the Stock Option to be assumed, or new rights
substituted therefor, by another entity, or (iv) make such other provision as
the Committee may consider equitable and in the best interests of the Company.
(d) The Grantee shall pay to the Company, or make provision
satisfactory to the Committee for payment of, the taxes, if any, required by law
to be withheld in respect of Stock Options under this Plan no later than the
date of the event creating the tax liability. In the Committee's discretion,
such tax obligations, if any, may be paid, in whole or in part, in cash or
shares, including shares retained from the exercise of the Stock Option creating
the tax obligation, valued at their Fair Market Value on the date of delivery.
The Company may, to the extent permitted by law, deduct any such tax obligations
from any payment of any kind otherwise due to the Grantee.
(e) Subject to the other provisions of this Plan, the Committee may
amend, modify or terminate any outstanding Stock Option held by a Grantee,
including substituting therefor another Stock Option of the same or a different
type, changing the date of exercise, provided that the Grantee's consent to such
action shall be required unless the Committee determines that the action, taking
into account any related action, would not materially and adversely affect the
Grantee.
SECTION 8. MISCELLANEOUS.
(a) The grant of a Stock Option shall not be construed as giving a
Grantee the right to continue to provide services as a Director to the Company.
The Company expressly reserves the right at any time to terminate such services
free from any liability or claim under this Plan, except as expressly provided
in a then outstanding Stock Option.
(b) Nothing contained in this Plan shall prevent the Company from
adopting other or additional compensation arrangements for its employees,
directors and other service providers.
4
<PAGE> 5
(c) No Grantee shall have any rights as a stockholder with respect
to any shares subject to a Stock Option until he or she becomes the holder
thereof upon exercise of such Stock Option.
(d) This Plan shall become effective on the date of its approval by
the Board, subject to subsequent approval by the stockholders of the Company
holding at least a majority of the then outstanding shares of Common Stock at
the next annual meeting of stockholders (or special meeting held in place
thereof). Prior to such approval by the stockholders of the Company, Stock
Options may be granted to Non-Employee Directors of the Company under this Plan
if they are granted expressly subject to such approval and are not exercisable
until after such approval has been obtained.
(e) The Board may amend, suspend or terminate this Plan or any
portion thereof at any time, provided that no amendment shall be made without
stockholder approval if such approval is necessary to comply with any applicable
tax or regulatory requirement.
(f) Stock Options may not be granted under the Plan after the tenth
anniversary of its approval by the Board, but then outstanding Stock Options may
be exercised beyond such date in accordance with their respective terms.
5
<PAGE> 1
EXHIBIT 11.1
SENIOR TOUR PLAYERS DEVELOPMENT, INC.
AND SUBSIDIARY
<TABLE>
COMPUTATION OF PER SHARE EARNINGS
<CAPTION>
YEAR ENDED
DECEMBER 31, DECEMBER 31,
1996 1995
<S> <C> <C>
Weighted average number of shares outstanding:
Common stock 2,937,834 2,933,333
Common equivalent shares resulting from stock
options issued (treasury stock method) 743,827 -
---------- ----------
Total 3,681,661 2,933,333
========== ==========
Net income (loss) $1,048,196 $(4,025,488)
========== ===========
Net income (loss) per common and common equivalent share $ .28 $ (1.37)
========== ==========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<EXCHANGE-RATE> 1
<CASH> 1,585,611
<SECURITIES> 0
<RECEIVABLES> 1,313,151
<ALLOWANCES> 0
<INVENTORY> 140,976
<CURRENT-ASSETS> 3,099,346
<PP&E> 11,322,618
<DEPRECIATION> 402,084
<TOTAL-ASSETS> 16,511,845
<CURRENT-LIABILITIES> 2,997,293
<BONDS> 8,128,858
2,933
0
<COMMON> 0
<OTHER-SE> 6,822,475
<TOTAL-LIABILITY-AND-EQUITY> 16,511,845
<SALES> 6,697,425
<TOTAL-REVENUES> 6,697,425
<CGS> 516,597
<TOTAL-COSTS> 5,752,139
<OTHER-EXPENSES> (1,220,312)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 785,607
<INCOME-PRETAX> 1,048,196
<INCOME-TAX> 0
<INCOME-CONTINUING> 1,048,196
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,048,196
<EPS-PRIMARY> .28
<EPS-DILUTED> .28
</TABLE>
