TERM LOAN AGREEMENT
This Term Loan Agreement (the "Agreement") is made and entered into this
15th day of September, 1998, by and between NEVADA STATE BANK, a Nevada
banking corporation ("Lender") and ALL AMERICAN SPORTPARK LLC, a Nevada
limited liability company ("Borrower").
In exchange for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms. When used in this Agreement, the following terms
shall have the following meanings:
1.1.1 "Additional Property" means the real property located in
Xxxxx County, State of Nevada, as that property is more particularly described
in the Additional Trust Deed.
1.1.2 "Additional Trust Deed" means the Trust Deed, Assignment of
Rents, Security Agreement and Fixture Filing dated the Closing Date and
entered into by Xxxx Xxxxxx, also known as Xxxx Xxxxxx in connection with the
Loan which encumbers the Additional Property.
1.1.3 "Appraisal" means the appraisal of the Property, which
appraisal indicates a value for the Project of not less than $27,000,000.00.
1.1.4 "Assignment of Ground Lease" means the Assignment of Ground
Lease for Security dated the Closing Date and entered into in connection with
the Loan.
1.1.5 "Assignment of Leases" means the Assignment of Leases dated
the Closing Date and entered into by Borrower in connection with the Loan.
1.1.6 "Assignment of License Agreement" means collectively the
Assignment of License Agreement dated the Closing Date and entered into by
Borrower in connection with the Loan for each License Agreement, together with
all consents from Licensors attached as exhibits to each Assignment of License
Agreement.
1.1.7 "Borrower Trust Deed" means the Term Loan Trust Deed,
Assignment of Rents, Security Agreement and Fixture Filing dated the Closing
Date and entered into by Borrower in connection with the Loan which encumbers
the Property.
1.1.8 "Closing Date" means the date of this Agreement set forth in
the first paragraph on the first page of this Agreement.
1.1.9 "Collateral" means the property described in Section 2.4 of
this Agreement as collateral for the Loan.
1.1.10 "Continuing Guaranty" means the Continuing Guaranty dated
the Closing Date and executed by Guarantor in connection with the Loan.
1.1.11 "Debt Service Coverage Ratio" means the ratio, as calculated
by Lender, of Borrower's net operating income before interest, taxes,
depreciation and amortization to annual debt service, including, without
limitation, principal and interest payments on the Loan, and payments under
all capital leases to which Borrower is a party.
1.1.12 "Environmental Compliance Audit" means an audit of the
Project for the purpose of determining whether Borrower and the Project are in
full compliance with all applicable Environmental Laws. The audit shall
include, without limitation, (i) a determination of all environmental
registrations and notices required to be filed by Borrower with respect to the
Project, (ii) a determination of all permits and approvals required to be
obtained or maintained by Borrower with respect to the Project, (iii) an
examination of the Project to determine whether there has been any disposal of
Hazardous Materials on or under the Project or any other violation of any
applicable Environmental Law affecting Borrower or the Project which requires
remediation to be in compliance with Environmental Laws in effect as of the
date of the audit, and (iv) a review of Borrower's facilities, records,
policies, procedures and ongoing operations to determine whether Borrower's
operations are being conducted in full compliance with all applicable
Environmental Laws.
1.1.13 "Environmental Compliance Audit Certificate" means a
certificate addressed to Lender issued by a competent, independent
environmental consultant acceptable to Lender certifying that the consultant
has completed an Environmental Compliance Audit of Borrower and the Project,
and that, except as otherwise disclosed in the Environmental Report, (i) as of
the effective date of the certificate, Borrower and the Project are in full
compliance with all applicable Environmental Laws, (ii) there has been no
known disposal of Hazardous Materials at, in, on or under the Project which
requires remediation to be in compliance with Environmental Laws in effect as
of the date of the audit, and (iii) in the consultant's opinion after due
inquiry, there is no basis for the consultant to recommend or require further
investigation or testing with respect to any suspected or possible disposal of
Hazardous Materials at the Project.
1.1.14 "Environmental Laws" means all federal, state and local laws
and ordinances pertaining to the generation, manufacture, refining, recycling,
treatment, handling, use, storage, transportation, disposal and cleanup of
hazardous, radioactive, reactive, flammable, infectious, toxic or dangerous
substances or materials or the protection of public health or of the
environment, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Sec. 9601, et seq.);
the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Sec. 6901, et
seq.); the Toxic Substances Control Act (15 U.S.C. Sec. 2601, et seq.); the
Clean Air Act (42 U.S.C. Sec. 7401, et seq.); the Federal Water Pollution
Control Act (33 U.S.C. Sec. 1251, et seq.); the Safe Drinking Water Act
(42 U.S.C. Sec. 300(f) et seq.); the Hazardous Material Transportation Act
(49 U.S.C. Sec. 1801, et seq.); the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. Sec. 136 et seq.); the Occupational Safety and
Health Act (29 U.S.C. Sec. 651 et seq.), including, without limitation, NRS
Chapters 444, 445 and 459, NRS Section 447.045 and NRS Sections 618.750
through 618.850 and the Uniform Fire Code (1988 Edition); and any similar state
law, including all amendments thereto and all regulations promulgated
thereunder, and further including the conditions and requirements of all
permits and regulatory approvals issued thereunder.
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1.1.15 "Environmental Report" means individually and collectively
the Environmental Sensitivity Questionnaire dated May 20, 1998 prepared by
Borrower and delivered to Lender in connection with the Property, and the
Level I Environmental Report dated May 20, 1998 prepared by Terracon and
delivered to Lender in connection with the Property.
1.1.16 "Event of Default" has the meaning set forth in Article 7 of
this Agreement.
1.1.17 "Ground Lease" means collectively (1) the Indenture of Lease
dated June 9, 1997 entered into between Ground Lessor, as "Landlord", and All
American Sportpark, Inc., a Nevada corporation ("Sportpark, Inc."), as
"Tenant", wherein Ground Lessor leases the Property to Sportpark, Inc., (2)
the Memorandum of Lease dated June 20, 1997 entered into between Ground Lessor
and Sportpark, Inc. and recorded in the official records of Xxxxx County,
State of Nevada on June 23, 1997 as Document No. 00042, in Book 970623, (3)
the Assignment and Assumption Agreement and Amendment to Memorandum of Lease
dated September 17, 1997 entered into between Sportpark, Inc., as "Assignor",
Saint Xxxxxxx Golf, as "Assignee", and Ground Lessor, as "Landlord" and
recorded in the official records of Xxxxx County, State of Nevada on September
22, 1997 as Document No. 00059, in Book 970922, wherein Sportpark, Inc.
assigned all of its rights, duties and obligations under the Ground Lease to
Saint Xxxxxxx Golf, and (4) the Assignment and Assumption Agreement and
Amendment to Lease to be entered into between Saint Xxxxxxx Golf, as "Lessee",
Sportpark, Inc., as "Assignor", Borrower, as "Borrower", and Ground Lessor, as
"Lessor", to be recorded in the official records of Xxxxx County, State of
Nevada, wherein Saint Xxxxxxx Golf assigns all of its rights, duties and
obligations under the Ground Lease to Sportpark, Inc., and Sportpark, Inc.
assigns all of its rights, duties and obligations under the Ground Lease to
Borrower.
1.1.18 "Ground Lease Estoppel Certificate" means the Ground Lease
Estoppel Certificate and Consent dated the Closing Date and executed by Ground
Lessor in connection with the Loan.
1.1.19 "Ground Lease Subordination Agreement" means the Ground
Lease Subordination Agreement dated the Closing Date and executed by Ground
Lessor in connection with the Loan.
1.1.20 "Ground Lessor" means Urban Land of Nevada, Inc., a Nevada
corporation.
1.1.21 "Ground Lessor Trust Deed" means the Trust Deed, Assignment
of Rents, Security Agreement and Fixture Filing dated the Closing Date and
entered into by Ground Lessor in connection with the Loan which encumbers the
Property.
1.1.22 "Guarantor" means individually and collectively Saint
Xxxxxxx Golf and Las Vegas Golf.
1.1.23 "Hazardous Materials" means (a) "hazardous waste" as defined
by the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), including any future
amendments thereto, and regulations promulgated thereunder; (b) "hazardous
substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), and
by NRS 40.504, including any future amendments thereto, and regulations
promulgated thereunder; (c) asbestos; (d) polychlorinated biphenyls; (e)
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underground storage tanks, whether empty or filled or partially filled with
any substance; (f) any substance the presence of which is or becomes
prohibited by any federal, state, or local law, ordinance, rule, or
regulation; and (g) any hazardous or toxic substance, material, or waste which
under any federal, state, or local law, ordinance, rule, or regulation
requires special handling or notification in its collection, storage,
treatment or disposal, and any matter or material defined as a "Hazardous
Material", or other similar term, under the Ground Lease.
1.1.24 "Las Vegas Golf" means Las Vegas Discount Golf & Tennis,
Inc., a Colorado corporation.
1.1.25 "License Agreements" means individually and collectively (1)
the License Agreement dated August 1, 1995, as amended by the Amendment No. 2
to License Agreement dated May 6, 1997, and the Amendment No. 3 to License
Agreement dated September 1, 1997, each entered into between the National
Association for Stock Car Auto Racing, Inc., a Florida corporation, as
"Licensor", and Saint Xxxxxxx Golf, as "Licensee", (2) the Sponsorship
Agreement dated December 4, 1997 entered into between Pepsi-Cola Company, a
division of PepsiCo, Inc., a North Carolina corporation, (3) the Letter
Agreement dated December 22, 1994, as amended by the Amended Letter Agreement
dated August 25, 1997, each entered into between the Major League Baseball
Properties, Inc., acting on behalf of and as an agent for the Major League
Baseball Clubs, and Saint Xxxxxxx Golf, and (4) any and all other license
agreements entered into or to be entered into between Saint Xxxxxxx Golf or
Borrower and any and all licensors ("Licensors") in connection with granting
of certain rights in such licenses for use in connection the Project.
1.1.26 "Loan" means the loan described in Article 2 of this
Agreement made by Lender to Borrower pursuant to the Loan Documents, which
Loan is in the amount of the Principal Amount.
1.1.27 "Loan Documents" means this Agreement, the Note, Borrower
Trust Deed, Assignment of Leases, SNDA, Continuing Guaranty, UCC-1 Financing
Statement, Assignment of License Agreement, together with all consents from
Licensors attached as exhibits to the Assignment of License Agreement,
Assignment of Ground Lease, Ground Lease Estoppel Certificate, Ground Lease
Subordination Agreement, Ground Lessor Trust Deed, Additional Trust Deed, and
any other documents, whether now or hereafter existing, executed in connection
with the Loan.
1.1.28 "Loan Fee" means the loan fees described in Section 2.3 of
this Agreement.
1.1.29 "Maturity Date" means September 1, 2013, the date on which
the Principal Indebtedness and all accrued and unpaid interest shall be due
and owing.
1.1.30 "Note" means the Promissory Note dated the Closing Date and
executed in connection with the Loan.
1.1.31 "Permitted Encumbrances" means the liens and encumbrances
that have been approved by Lender to appear as exceptions to title in the
Title Policy, pursuant to Lender's escrow instruction letter to the Title
Company executed in connection with the Loan and delivered to the Title
Company, and any other title matters approved by Lender in writing during the
term of the Loan.
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1.1.32 "Principal Amount" means Thirteen Million Five Hundred
Thousand Dollars ($13,500,000.00).
1.1.33 "Principal Indebtedness" means the Principal Amount together
with any additional advances, if any, and any additional amounts advanced by
Lender, if any, pursuant to the Loan Documents.
1.1.34 "Project" means the Property together with all improvements
on the Property, including all buildings.
1.1.35 "Property" means the real property located in Xxxxx County,
State of Nevada, as that property is described on the attached Exhibit A which
is incorporated into this Agreement by this reference.
1.1.36 "Providers" means individually and collectively the key
suppliers, vendors, and customers of Borrower whose business failure would,
with reasonable probability, result in a material adverse change in the
financial condition or prospects of Borrower.
1.1.37 "Saint Xxxxxxx Golf" means Saint Xxxxxxx Golf Corporation, a
Nevada corporation.
1.1.38 "SNDA" means the Subordination, Non-Disturbance and
Attornment Agreement satisfactory in form and content to Lender and Lender's
counsel, from each tenant holding a leasehold interest in all or any part of
the Project.
1.1.39 "Survey" means the current ALTA survey of the Property
described in Section 5.3 of this Agreement.
1.1.40 "Title Commitment" means the commitment for title insurance
described in Section 5.2 of this Agreement.
1.1.41 "Title Company" means Nevada Title Company, whose address is
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000.
1.1.42 "Title Policy" means the policy of title insurance described
in Section 6.10 of this Agreement.
1.1.43 "Trust Deed" means collectively the Borrower Trust Deed and
the Ground Lessor Trust Deed.
1.1.44 "UCC-1 Financing Statement" means collectively the UCC-1
Financing Statements dated the Closing Date and entered into in connection
with the Loan.
1.1.45 "Year 2000 Compliant" means, with regard to any entity, that
all material software utilized by such entity is able to fully function
without causing any error to such entity's date-sensitive data.
ARTICLE 2
AMOUNT AND TERMS OF LOAN
2.1 Term of Loan. The Loan shall be an amortizing term loan for a term
commencing on the Closing Date and ending on the Maturity Date, unless such
completion date has been previously extended by Lender
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2.2 Interest Rate and Payment. The Loan shall be payable on the date
and upon the terms and conditions set forth in the Note.
2.3 Loan Fee. Borrower agrees to pay to Lender from the Loan proceeds,
as a non-refundable fee for originating the Loan, an amount equal to One
Hundred Thirty-five Thousand Dollars ($135,000.00), which sum is to be paid on
the Closing Date.
2.4 Collateral. In addition to all other collateral described in any of
the Loan Documents, the Loan shall be secured by the following documents and
all of the collateral described in each of the following documents (the
"Collateral"):
2.4.1 Borrower Trust Deed. The Borrower Trust Deed.
2.4.2 Ground Lessor Trust Deed. The Ground Lessor Trust Deed.
2.4.3 Assignment of Leases. The Assignment of Leases.
2.4.4 UCC-1 Financing Statement. The UCC-1 Financing Statement.
2.4.5 Assignment of License Agreement. The Assignment of License
Agreement.
2.4.6 Assignment of Ground Lease. The Assignment of Ground Lease
for security.
2.4.7 Additional Trust Deed. The Additional Trust Deed. Lender
agrees to reconvey its interest in the Additional Property as Collateral for
the Loan, at such time as the Borrower achieves a Debt Service Coverage Ratio
equal to or greater than 1.75:1 for two consecutive quarters.
2.5 Continuing Guaranty. The performance of Borrower's obligations
under the Loan shall be guaranteed by Guarantor in accordance with the
Continuing Guaranty.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties to Lender:
3.1 Organization and Qualification. Borrower is a limited liability
company duly organized and existing in good standing under the laws of the
State of Nevada. Borrower is duly qualified to do business in each
jurisdiction where the conduct of its business requires qualification.
Borrower has the full power and authority to own its properties and to conduct
the business in which it engages and to enter into and perform its obligations
under the Loan Documents, and all agreements, documents, obligations, and
transactions contemplated by this Agreement. The only manager of All American
Sportpark LLC is SportPark Management, Inc.
3.2 Authorization. The execution, delivery, and performance by Borrower
of the Loan Documents and all agreements, documents, obligations, and
transactions contemplated by this Agreement have been duly authorized by all
necessary action on the part of Borrower and are not inconsistent with
Borrower's articles of organization and operating agreement or any resolution
of the members of Borrower, do not and will not contravene any provision of,
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or constitute a default under, any indenture, mortgage, contract, or other
instrument to which Borrower is a party or by which it is bound, and that upon
their execution and delivery the Loan Documents will constitute legal, valid,
and binding agreements and obligations of Borrower, enforceable in accordance
with their respective terms.
The execution, delivery, and performance by any of the members or
managers (collectively the "Manager") of Borrower of the Loan Documents and
all agreements, documents, obligations, and transactions herein contemplated
will not contravene any position of, or constitute a default under, any
indenture, mortgage, contract, or other instrument to which the Manager is a
party or by which it is bound, and that upon execution and delivery hereof and
thereof, the Loan Documents will constitute legal, valid, and binding
agreements and obligations of the Manager, in its capacity as manager of
Borrower enforceable in accordance with their respective terms.
3.3 Pending Litigation. Except as set forth on the attached Exhibit B
which is incorporated herein by this reference, there is no action, suit or
proceeding pending or to the best of Borrower's knowledge, threatened, against
or affecting Borrower or the Property, in any court of law or equity or before
any governmental or quasi-governmental instrumentality, whether federal,
state, county or municipal, which would materially and adversely affect
Borrower's ability to perform under the Loan Documents.
3.4 Tax Returns. To the best of Borrower's knowledge, all tax returns
and reports of Borrower required by law to be filed have been duly filed and
all taxes, assessments, and other governmental charges upon Borrower and upon
Borrower's properties, assets or income and upon the Property, which are due
and payable, have been paid and shall continue to be so paid.
3.5 Compliance with Laws. The Project is in compliance with all
applicable zoning, environmental protection (including, without limitation,
wetlands and endangered species protection), use and building codes, planning,
subdivision covenants, conditions, and restrictions recorded against the
Property, laws, regulations and ordinances, including, without limitation to
the extent applicable, the Xxxxxx Act (40 USC Section 270a and following), the
Xxxxx-Xxxxx Act (40 USC Section 276a and following), and all other federal law
applicable to federal projects, and Borrower has no knowledge or notice of any
violation of any laws, ordinances, codes, requirements or orders of any
governmental instrumentality having jurisdiction of the Property, including,
without limitation, all applicable federal, state and local laws, rules,
ordinances and regulations relating to the use, storage, transportation, and
disposal of any Hazardous Materials on, in or under the Project, and all
applicable federal, state and local laws, rules, ordinances and regulations
relating to wetlands or endangered species protection and the effect of the
development, construction and use of the Project on any wetlands or endangered
species. Borrower has no knowledge of any actions or proceedings pending
before any court or administrative agency with respect to the validity of such
laws, regulations and ordinances or with respect to any certificates issued
thereunder.
3.6 Financial Statements and Other Information. Any and all financial
statements delivered to Lender by Borrower are accurate, complete, prepared by
an independent certified public accounting firm in accordance with generally
accepted accounting principles consistently applied, or other accounting
standards acceptable to Lender, and accurately represent the financial
condition of Borrower and reflect accurately Borrower's assets, properties,
and results of operation of Borrower's business as of the dates thereof. No
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material adverse change has occurred in the financial condition of Borrower
reflected therein since the dates thereof and no additional borrowings have
been made by Borrower since the dates thereof, other than the borrowing
contemplated hereby or approved by Lender. All other documents and
information delivered to Lender by Borrower are accurate in all respects.
3.7 Hazardous Materials and Wetlands. No Hazardous Materials other than
as set forth in the Environmental Report are now located on the Property, and
neither Borrower nor any other person has ever caused or permitted any
Hazardous Materials to be placed, held, located or disposed of on, under or at
the Property, or any part thereof, except in full compliance with all
applicable Environmental Laws. To the best of Borrower's knowledge, no
investigation, administrative order, consent order and agreement, litigation
or settlement with respect to Hazardous Materials is proposed, threatened,
anticipated or in existence with respect the Property. The representations
and warranties contained in this Section 3.7 shall survive the reconveyance of
the Trust Deed. There are no wetlands on the Property, as wetlands are
regulated pursuant to Section 404 of the Federal Water Pollution Control Act
(Clean Water Act), and the regulations promulgated under the statute or its
successor statute.
3.8 Title to Property. Ground Lessor has good and marketable title to
the Property, subject to the terms and conditions of the Ground Lease.
Borrower has a leasehold interest in the Property under the Ground Lease,
subject only to the Permitted Encumbrances. The Property, and any and all
improvements thereon, are free and clear of all liens and encumbrances,
excepting the Permitted Encumbrances.
3.9 Commission. No brokerage or other fee, commission or compensation
is to be paid by Lender, and Borrower hereby indemnifies Lender against any
and all claims for brokerage fees or commissions which may be asserted against
Lender, and hereby agrees to pay all expenses incurred by Lender in connection
with the defense of any action or proceeding brought to collect any such
brokerage fees or commissions, including but not limited to costs and
attorneys fees.
3.10 Release. In recognition of Lender's right to have all its
attorneys fees and expenses incurred in connection with this Agreement secured
by the Collateral, notwithstanding payment in full of the obligations secured
by the Collateral, Lender shall not be required to release, reconvey, or
terminate any security interest or lien in or on the Collateral unless and
until Borrower and Guarantor have executed and delivered to Lender general
releases in form and substance satisfactory to Lender.
3.11 Americans with Disabilities Act. The improvements are accessible
to and usable by persons with disabilities pursuant to the accessibility
requirements of the Americans With Disabilities Act (the "Act"), and all
applicable regulations promulgated by the U.S. Architectural and
Transportation Barriers Compliance Board, by the U.S. Department of Justice,
and by all other applicable agencies. The improvements comply with all
accessibility requirements of the Act and regulations, together with the
requirements of the Americans With Disabilities Act Accessibility Guidelines
for Buildings and Facilities.
3.12 Ground Lease. The Ground Lease is a valid and binding obligation
of Ground Lessor and Borrower enforceable in accordance with its terms, and is
in full force and effect. As of the Closing Date, no defaults have occurred
under the Ground Lease and no events have occurred nor do any conditions exist
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which with the giving of notice, the passage of time, or both, would
constitute a default under the Ground Lease.
3.13 License Agreements. The License Agreements are valid and binding
obligations of Licensors and Borrower enforceable in accordance with their
terms, and are in full force and effect. As of the Closing Date, no defaults
have occurred under the License Agreements and no events have occurred nor do
any conditions exist which with the giving of notice, the passage of time, or
both, would constitute a default under the License Agreements.
ARTICLE 4
GUARANTY
4.1 Guaranty. Borrower's obligations under the Loan Documents shall
be guaranteed by Guarantor. Upon execution and delivery of this Agreement,
Guarantor shall execute and deliver to Lender the Continuing Guaranty in a
form acceptable to Lender.
4.2 Guarantor Organization and Qualification. Saint Xxxxxxx Golf
represents and warrants that (i) it is a corporation duly organized and
existing in good standing under the laws of the State of Nevada, (ii) it is
duly qualified to do business in each jurisdiction where the conduct of its
business requires qualification, and (iii) it has the full power and authority
to own its properties and to conduct the business in which it engages and to
enter into and perform its obligations under the Loan Documents, the
Continuing Guaranty, and all agreements, documents, obligations, transactions
contemplated by this Agreement.
Las Vegas Golf represents and warrants that (i) it is a corporation duly
organized and existing in good standing under the laws of the State of
Colorado, (ii) it is duly qualified to do business in each jurisdiction where
the conduct of its business requires qualification, and (iii) it has the full
power and authority to own its properties and to conduct the business in which
it engages and to enter into and perform its obligations under the Loan
Documents, the Continuing Guaranty, and all agreements, documents,
obligations, transactions contemplated by this Agreement.
4.3 Guarantor Authorization. Saint Xxxxxxx Golf represents and
warrants that the execution, delivery, and performance by Saint Xxxxxxx Golf
of this Agreement, the Continuing Guaranty and all agreements, documents,
obligations, and transactions contemplated by this Agreement have been duly
authorized by all necessary action on the part of Saint Xxxxxxx Golf and are
not inconsistent with Saint Xxxxxxx Golf's articles of incorporation and
bylaws or any resolution of the board of directors of Saint Xxxxxxx Golf, do
not and will not contravene any provision of, or constitute a default under,
any indenture, mortgage, contract, or other instrument to which Saint Xxxxxxx
Golf is a party or by which Saint Xxxxxxx Golf is bound, and that, upon their
execution and delivery, of this Agreement and the Continuing Guaranty will
constitute legal, valid, and binding agreements and obligations of Saint
Xxxxxxx Golf, enforceable in accordance with their respective terms.
Las Vegas Golf represents and warrants that the execution, delivery, and
performance by Las Vegas Golf of this Agreement, the Continuing Guaranty and
all agreements, documents, obligations, and transactions contemplated by this
Agreement have been duly authorized by all necessary action on the part of Las
Vegas Golf and are not inconsistent with Las Vegas Golf's articles of
incorporation and bylaws or any resolution of the board of directors of Las
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Vegas Golf, do not and will not contravene any provision of, or constitute a
default under, any indenture, mortgage, contract, or other instrument to which
Las Vegas Golf is a party or by which Las Vegas Golf is bound, and that, upon
their execution and delivery, of this Agreement and the Continuing Guaranty
will constitute legal, valid, and binding agreements and obligations of Las
Vegas Golf, enforceable in accordance with their respective terms.
4.4 Guarantor Financial Statements and Reports. Guarantor covenants
that it shall provide Lender with such financial statements and reports as
Lender may reasonably request, and that such statements and reports shall be
prepared in accordance with generally accepted accounting principles
consistently applied, or other accounting standards acceptable to Lender, and
shall fully and fairly represent Guarantor's financial condition and the
results of its operations for the period or periods covered. As to all
financial statements and reports which Guarantor has furnished or may in the
future furnish to Lender, Guarantor acknowledges and agrees that it has a
fiduciary duty to ensure that such statements and reports are accurate and
complete.
Until requested otherwise by Lender, Guarantor shall provide the
following financial statements and reports to Lender:
Annual audited financial statements of Guarantor with an unqualified
opinion for each fiscal year from an independent certified public accounting
firm acceptable to Lender and in a form acceptable to Lender, to be delivered
to Lender within one hundred twenty (120) days of the end of each fiscal year
during the term of the Loan, commencing December 31, 1998 and shall cover the
calendar year 1998. Guarantor shall also submit to Lender copies of any
management letters or other reports submitted to Guarantor by independent
certified public accountants in connection with examination of the financial
statements of Guarantor made by such accountants.
Annual tax returns for each fiscal year of Guarantor to be delivered to
Lender within thirty (30) days of the date of filing of the return. The
annual tax returns shall include a certification by Guarantor that each annual
tax return is accurate, not misleading, and prepared in accordance with
applicable law.
4.5 Accuracy of Guarantor Financial Statements. Guarantor represents
and warrants that all of its financial statements, pro forma and actual,
previously delivered to Lender have been prepared in accordance with generally
accepted accounting principles consistently applied, or other accounting
standards acceptable to Lender, and accurately represent Guarantor's actual
and anticipated financial condition as of the date of such financial
statements, and fully and fairly represent the results of Guarantor's
operations for the period or periods covered. Guarantor represents and
warrants that since the date of such financial statements, there has been no
material adverse change in Guarantor's financial condition.
ARTICLE 5
CONDITIONS PRECEDENT TO DISBURSEMENT
As a condition precedent to the disbursement of any Loan proceeds, all of
the following conditions must be fully satisfied as determined by Lender, in
Lender's sole discretion:
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5.1 Authority. Borrower has delivered to Lender a copy of its operating
agreement, together with all amendments, and a certified copy of its articles
of organization, together with certified copies of all amendments thereto and
an original certificate of member resolutions of the members of Borrower
acceptable to Lender. Borrower also has delivered to Lender such other
evidence of Borrower's good standing and authority as Lender may request.
5.2 Title Commitment. Borrower has delivered to Lender a current
commitment for title insurance or preliminary title report satisfactory to
Lender, in Lender's sole discretion, respecting the Project from the Title
Company on a current ALTA extended form coverage basis which is acceptable to
Lender (the "Title Commitment"). The Title Commitment shall set forth a
description of the Property that is the same as the description of the
Property set forth in the Survey. The Title Commitment shall have attached
copies of all instruments which appear as exceptions to title in the Title
Commitment. The Title Commitment shall also include a judgment search
respecting Borrower and any other party that holds title to all or any portion
of the Project.
5.3 Survey. Borrower has delivered to Lender a current survey of the
Project acceptable to Lender and the Title Company (the "Survey"). The Survey
shall be prepared and certified by a land surveyor or engineer registered in
the state in which the Project is located. The Survey must be prepared in
compliance with the minimum standard detail requirements for Land Title
Surveys as most recently adopted by ALTA. The Survey shall bear the land
surveyor's or engineer's certificate in favor of Borrower, Lender and the
Title Company that the Survey has been prepared in compliance with the minimum
standard detail requirements. The Survey shall identify by reference to the
exception number and recording information set forth in the Title Commitment
each of the easements, rights-of-way, encroachments and other exceptions to
title referred to in the Title Commitment that can be depicted on the Survey.
5.4 Opinion of Counsel. If required by Lender, Borrower has delivered
to Lender an opinion from Borrower's counsel in form and content satisfactory
to Lender.
5.5 Appraisal. Lender has received and approved the Appraisal. The
Appraisal shall be prepared by a certified general M.A.I. appraiser
satisfactory to Lender.
5.6 Environmental Report. Borrower has delivered to Lender the
Environmental Report satisfactory to Lender evidencing that there is no
Hazardous Material on the Property and certifying that the Property will not
be affected by any environmental regulations or ordinances of any municipal or
state agency or board.
5.7 Delivery of Loan Documents. All of the Loan Documents requested by
Lender have been fully executed and the original executed documents delivered
to Lender.
5.8 Recording and Filing of Loan Documents. All of the Loan Documents
which require filing or recording have been properly filed and recorded so
that all of the liens and security interests granted to Lender in connection
with the Loan will be properly created and perfected and be priority liens on
the Collateral.
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5.9 Lien on Collateral. The Ground Lessor Trust Deed and other
applicable Loan Documents shall constitute and create a valid first lien upon
the Collateral, free of any prior mechanic's liens or materialmen's liens or
special assessments for work completed or under construction on or before the
Closing Date, subject only to the Permitted Encumbrances. The Ground Lease
and the Borrower Trust Deed shall constitute and create a valid second lien
and third lien, respectively, upon the Collateral, free of any prior
mechanic's liens or materialmen's liens or special assessments for work
completed or under construction on or before the Closing Date, subject only to
the Permitted Encumbrances.
5.10 Ground Lease. Borrower has provided Lender with evidence
satisfactory to Lender that the Ground Lease is in full force and effect and
that no default has occurred under the Ground Lease and no events have
occurred nor do any conditions exist which with the giving of notice, the
passage of time, or both, would constitute a default under the Ground Lease.
Borrower has delivered to Lender the fully executed Ground Lease Estoppel
Certificate from Ground Lessor.
5.11 SNDA. Borrower has provided Lender, as Lender in its sole
discretion may require, with duly executed, in recordable form, SNDAs,
satisfactory in form and content to Lender and Lender's counsel, from tenants
holding a leasehold interest to all or any part of the Project pursuant to
which such tenant, among other things, subordinates all of such tenant's
rights, title, and interest in and to the Project to the Loan Documents.
ARTICLE 6
COVENANTS OF BORROWER
Borrower agrees and covenants with Lender as follows:
6.1 Assignment. Borrower shall not, without the prior written consent
of Lender, mortgage, assign, convey, transfer, sell or otherwise dispose of or
encumber the Project, Borrower's interest in the Project, or any part of the
Project, or the income to be derived from the Project.
6.2 Right of Inspection. Lender or Lender's agents shall at all times
and at Borrower's expense have the right of entry upon and have free access to
the Project and have the right to inspect all books, contracts and records of
Borrower relating thereto.
6.3 Insurance. Borrower shall provide and maintain, or cause to be
provided and maintained, at all times, the insurance policies required to be
provided and maintained pursuant to the Ground Lease, and the following
insurance policies:
6.3.1 Liability Insurance. Bodily injury and general liability
insurance with a single limit per accident or occurrence of not less than
$1,000,000.00 acceptable to Lender insuring against any and all liability of
the insured with respect to the Project or arising out of the maintenance, use
or occupancy thereof.
6.3.2 Property Hazard Insurance. Multi-peril property damage
insurance, including, without limitation, fixtures and personal property to
the extent they are maintained on the Property, and providing, as a minimum,
fire and extended coverage (including all perils normally covered by the
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standard "all risk" endorsement, if such is available) on a full replacement
cost basis in an amount not less than 100% of the insurable value of the
improvements, exclusive of the Property, foundations and other items normally
excluded from coverage (based upon current replacement cost), with a single
limit per accident or occurrence of not less than $1,000,000.00.
6.3.3 Flood Insurance. Flood insurance covering either the
Principal Amount or the maximum amount of insurance available, whichever is
more, or in lieu of such flood insurance, evidence, satisfactory to Lender,
that no part of the Project is, or will be, within an area designated as a
flood hazard area by the Federal Insurance Administration, Department of
Housing and Urban Development.
6.3.4 Policies and Premiums. All policies of insurance required
pursuant to this Section 6.3 shall be in form and substance acceptable to
Lender and issued by insurance companies acceptable to Lender. No insurance
company shall be acceptable to Lender unless it has a company rating of not
less than "A" and a financial rating of not less than Class VII in the most
recent edition of "Best's Insurance Reports". All policies of insurance
required pursuant to the provisions of this Section 6.3 shall contain a
standard "mortgagee protection clause", shall have attached a "lender's loss
payable endorsement", and shall name Lender as an additional insured or loss
payee, as appropriate. All such policies shall contain a provision that such
policies will not be cancelled or materially amended or altered without at
least thirty (30) days prior written notice to Lender.
If Lender consents to Borrower providing any of the required insurance
through blanket policies carried by Borrower and covering more than one
location, then Borrower shall cause the insurance company to deliver to Lender
a certificate of insurance in the form XXXXX 27 of such policy which sets
forth the coverage, the limits of liability, the name of the carrier, the
policy number, expiration date and a statement that the insurance company will
not cancel or materially modify or alter the coverage evidenced by the
endorsement without first affording Lender at least thirty (30) days prior
written notice. In the event Borrower fails to provide, maintain, keep in
force or deliver to Lender the policies of insurance required by this Section
6.3, Lender may, but without any obligation to do so, procure such insurance
for such risks covering Lender's interest and Borrower shall pay all premiums
thereon promptly upon demand by Lender. If Borrower fails to pay any premiums
after demand by Lender, Lender, at Lender's option, may advance any sums
necessary to maintain and to keep in force such insurance. Any sums so
advanced, together with interest on such sums at the then current rate under
the Note, shall be secured by the Trust Deed.
Borrower shall deliver to Lender a copy of the original of each of the
policies of insurance that Borrower is required to obtain and maintain, or
cause to be provided and maintained, under this Agreement.
6.4 Repair and Restoration. If the Improvements are partially or wholly
damaged or destroyed by fire or any other cause, and (a) all insurance
proceeds received by Lender together with any cash funds delivered by Borrower
to Lender are sufficient to fully restore and repair the Project as determined
by Lender, in Lender's sole discretion, and (b) Borrower is not in default
under any of the Loan Documents, Lender shall disburse such proceeds in the
manner provided herein for the disbursement of the proceeds of the Loan toward
the cost of such restoration and repair. If Lender determines that such
proceeds together with any cash funds provided by Borrower are insufficient to
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fully restore the Project, Lender will apply any sums received by Lender under
this Section first to the payment of all of Lender's costs and expenses
(including but not limited to legal fees and costs) incurred in obtaining
those sums, and then, in Lender's sole discretion and without regard to the
adequacy of its security, to the payment of the Loan. If the amount of such
proceeds exceeds the cost of restoration of the Project, Lender shall apply
the excess proceeds to the payment of the Loan. If the proceeds of insurance
are used to restore the Project and if the total estimated cost to restore the
Project exceeds the amount of the proceeds of insurance, Borrower shall
deliver to Lender prior to any disbursement of the proceeds of insurance, an
amount equal to such difference in cash or cash equivalents satisfactory to
Lender. After all obligations of Borrower under the Loan Documents have been
paid in full, then all proceeds in excess of such obligations will be paid to
Borrower.
6.5 Taxes and Impositions. Borrower shall promptly pay and discharge
all lawful taxes and assessments imposed upon the Project or upon Borrower
before they become past due and delinquent in accordance with the procedures
and upon the terms set forth in the Trust Deed.
6.6 Hazardous Materials. Borrower shall not cause or permit any
Hazardous Materials to be placed, held, located or disposed of on, under or at
the Project or any part thereof which are in violation of any Environmental
Laws or the Ground Lease. Borrower further agrees to give notice to Lender
immediately upon Borrower's learning of the presence of any Hazardous
Materials on the Property, to promptly comply with any governmental
requirements requiring the removal, treatment or disposal of such Hazardous
Materials, and to defend, indemnify and hold harmless Lender from any and all
liabilities, claims, losses or costs (including, without limitation attorneys'
fees) which may now or in the future be paid, incurred or suffered by or
asserted against Lender by any person, entity or governmental agency with
respect to the presence of Hazardous Materials on the Property or discharge of
Hazardous Materials from the Property. Borrower's covenants in this Section
shall survive payment of the Loan and foreclosure or other transfer of the
Property.
At any time Lender, in good faith, has reason to believe Hazardous
Materials have been placed, held, located or disposed of on, under or at the
Property or any part thereof, other than as stated in the Environmental
Report, and upon written request by Lender and at Borrower's cost and expense,
Borrower shall provide Lender with an Environmental Compliance Audit
Certificate, effective as of a date no earlier than the date of the notice.
Borrower shall certify to Lender in writing within thirty (30) days of the
notice that the Project is in full compliance with Environmental Laws. In the
event Borrower fails or refuses promptly to provide Lender with an
Environmental Compliance Audit Certificate when required, Lender may, at
Borrower's risk and expense, arrange to obtain such a certificate. In the
event the Project is in a condition such that an Environmental Compliance
Audit Certificate cannot be issued, Borrower agrees, at its own cost and
expense, to take all action necessary to bring the Project into compliance
with all Environmental Laws, including all remediation and clean-up, so an
Environmental Compliance Audit Certificate can be issued. Lender and any
consultant retained by or for the benefit of Lender shall have the right,
without further permission from or notice to Borrower, to enter upon the
Project for the purpose of performing any examination or testing required in
order to provide such a certificate, and Borrower shall provide the consultant
with reasonable access to Borrower's records for such purposes. Any costs
incurred by Lender in obtaining such a certificate shall be added to the
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Principal Indebtedness and shall be immediately due and payable, and shall
bear interest at the default rate provided in the Note from the date incurred
until paid by Borrower.
6.7 No Disposition or Merger. Borrower shall not enter into any merger
or joint venture with any third party, or otherwise dispose of its assets
other than in the ordinary course of Borrower's business without the prior
written consent of Lender which consent shall not be unreasonably withheld.
6.8 Additional Debt, Leases or Guarantees. Borrower shall not enter
into any lease or leases of all or any portion of the Project without the
prior written consent of Lender which consent shall not be unreasonably
withheld. Borrower shall maintain all such leases in full force and effect.
Except for the Trust Deed, during the term of the Loan, Borrower shall not
without the prior written consent of Lender create or incur or suffer to be
created or incurred any encumbrance, mortgage, pledge, lien or charge of any
kind upon the Project.
6.9 Financial Statements. Borrower covenants that it shall provide
Lender with such financial statements and reports as Lender may reasonably
request, and that such statements and reports shall be prepared in accordance
with generally accepted accounting principles, or other accounting standards
acceptable to Lender, consistently applied and shall fully and fairly
represent Borrower's financial condition and the results of its operations for
the period or periods covered. As to all financial statements and reports
which Borrower has furnished or may in the future furnish to Lender, Borrower
acknowledges and agrees that it has a fiduciary duty to ensure that such
statements and reports are accurate and complete.
Until requested otherwise by Lender, Borrower shall provide the following
financial statements and reports to Lender:
Annual audited financial statements of Borrower with an unqualified
opinion for each fiscal year from an independent certified public accounting
firm acceptable to Lender and in a form acceptable to Lender, to be delivered
to Lender within one hundred twenty (120) days of the end of each fiscal year
during the term of the Loan, commencing December 31, 1998 and shall cover the
calendar year 1998. Borrower shall also submit to Lender copies of any
management letters or other reports submitted to Borrower by independent
certified public accountants in connection with examination of the financial
statements of Borrower made by such accountants.
Semi-annual compiled financial statements of Borrower from an independent
certified public accounting firm acceptable to Lender and in a form acceptable
to Lender, to be delivered to Lender within sixty (60) days of the end of each
semi-annual period during the term of the Loan, commencing June 30, 1999.
Borrower shall also submit to Lender copies of any management letters or other
reports submitted to Borrower by independent certified public accountants in
connection with examination of the financial statements of Borrower made by
such accountants.
Annual tax returns for each fiscal year of Borrower to be delivered to
Lender within thirty (30) days of the date of filing of the return. The
annual tax returns shall include a certification by Borrower that each annual
tax return is accurate, not misleading, and prepared in accordance with
applicable law.
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6.10 Title Policy. Within sixty (60) days after the Closing Date,
Borrower shall deliver to Lender a policy of title insurance on the Property
which shall be (a) an ALTA extended coverage mortgagee's policy, (b) showing
Ground Lessor as the sole, marketable, fee simple title owner of the Property
and Borrower as the sole ground lessee of the Property, (c) be in the total
amount of the Principal Amount, and (d) be issued by a title insurance company
satisfactory to Lender through the Title Company (the "Title Policy"). The
Title Policy shall insure that (a) the Ground Lessor Trust Deed is a valid
first mortgage lien against the Property, (b) the Ground Lease is a valid
second mortgage lien against the Property, (c) the Borrower Trust Deed is a
valid third mortgage lien against the Property, and (d) that the Property is
free and clear of all liens, encumbrances and other exceptions to title,
except the Permitted Encumbrances. The Title Policy shall include such
additional terms and special endorsements upon issuance as may be required by
Lender, including, but not limited to, a foundation endorsement (CLTA 102.5 or
its equivalent) to the Title Policy showing no encroachments.
6.11 Required Notices. Borrower shall give Lender prompt written notice
of the following:
6.11.1 Any litigation or claims of any kind which might subject
Borrower to any liability in an aggregate amount in excess of $10,000.00,
whether covered by insurance or not and any litigation involving the Property.
6.11.2 All complaints and charges made by any governmental
agency affecting the Property or exercising supervision or control of Borrower
or Borrower's business which may impair the security of Lender.
6.11.3 Any default under any contracts to which Borrower is a
party or acceleration of any other indebtedness incurred by Borrower.
6.11.4 Any event or conditions which constitute an Event of
Default or, with the passage of time or the giving of notice, or both, would
constitute an Event of Default.
6.11.5 Any material adverse change in the financial condition of
Borrower or Guarantor.
6.12 Debt Service Coverage Ratio. Borrower will maintain at all times
during the term of the Loan a Debt Service Coverage Ratio equal to or greater
than 1.75:1, measured commencing with Borrower's June 30, 1999 semi-annual
financial statements as required pursuant to Section 6.9 of this Agreement and
annually thereafter.
6.13 Debt to Equity Ratio. Borrower will maintain at all times during
the term of the Loan a ratio of total senior liabilities to tangible net worth
of less than or equal to 1.75:1, measured commencing with Borrower's June 30,
1999 semi-annual financial statements as required pursuant to Section 6.9 of
this Agreement and annually thereafter.
Total senior liabilities means all senior debt, including bonds,
debentures, bank debt, mortgages, deferred portions of long term debt, capital
lease obligations, together with any other non-current liabilities including
subordinated debt and liability reserves, excluding Borrower's obligations
under the Ground Lease.
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Tangible net worth means the excess of total assets over total
liabilities, total assets and total liabilities each to be determined in
accordance with generally accepted accounting principles consistent with those
applied in the preparation of the financial statements previously submitted by
Borrower to Lender excluding, however, from the determination of total assets
all assets which would be classified as intangible assets under generally
accepted accounting principles, including, without limitation, goodwill,
licenses, patents, trademarks, trade names, copyrights, and franchises.
6.14 Year 2000 Compliant. Borrower has or will soon have (i) undertaken
a detailed assessment of all areas within Borrower's business and operations
that could be adversely affected by the failure of Borrower to be Year 2000
Compliant, (ii) developed and implemented a detailed plan for becoming Year
2000 Compliant on a timely basis, and (iii) made written inquiry of each of
Borrower's Providers as to whether the Providers will be Year 2000 Compliant
in all material respects. Borrower reasonably anticipates that Borrower and
the Providers will be Year 2000 Compliant on a timely basis. Borrower will
promptly advise Lender in writing upon the occurrence of any of the following:
(i) Borrower determines or Borrower is advised by Borrower's accountants,
financial advisers, consultants, or auditors or any Provider that Borrower or
any Provider will not be Year 2000 Compliant on a timely basis, or (ii)
Borrower or any Provider experiences data or data processing problems due to
failure to be Year 2000 Compliant.
6.15 Limited Activities. As long as the Loan from Lender or any part of
the Principal Indebtedness is outstanding:
6.15.1 Business. Borrower will not engage in any business other
than the business of owning and managing the Project which is subject to the
Loan.
6.15.2 Indebtedness. Except for liabilities incurred in the
ordinary course of Borrower's business as set forth in the Loan Documents,
Borrower shall not incur any indebtedness secured by the Project other than
the Loan without Lender's express consent, which consent will not be
unreasonably withheld.
6.15.3 Merger. Borrower shall not consolidate or merge with or
into any other person or entity or sell, lease or otherwise transfer, directly
or indirectly, all or any substantial part of its assets to any other person
or entity, which consent will not be unreasonably withheld.
6.15.4 Transactions. Borrower shall not engage in any
transaction with any of its affiliates unless such transaction is on a
"arm-length" basis and on commercially reasonable terms.
6.15.5 Independent Owner. Borrower's members shall contain at
least one "independent director" whose duties shall not include any day to day
management of Borrower but shall be limited to voting on any bankruptcy
action.
6.15.6 Bankruptcy Action. The unanimous consent of Borrower's
members will be required for Borrower to take any bankruptcy action.
6.15.7 Records and Assets. Borrower shall:
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6.15.7.1 Maintain books and records separate from any other
person or entity; maintain separate financial statements, showing its assets
and liabilities separate and apart from those of any person or entity;
6.15.7.2 Maintain adequate capital for its contemplated
business operations; maintain bank accounts separate from any other person or
entity; pay its own liabilities and expenses only out of its own funds; pay
the salaries of its own employees from its own funds;
6.15.7.3 Not commingle its assets with those of any other
person or entity and shall hold its assets only in its own name; not pledge
its assets for the benefit of any other person or entity; not become liable
for the debts of any other person or entity; not hold out its credit as being
available to satisfy the obligations of any other person or entity; not
acquire the obligations or securities of any of its affiliates or members;
6.15.7.4 Conduct its business in its own name; correct any
misunderstandings regarding its separate identity; not identify itself as a
division of any other person or entity; hold itself out as a separate
identity;
6.15.7.5 Observe all corporate formalities (including,
without limitation, the holding of annual member meetings and the passing of
appropriate resolutions to authorize all necessary action by Borrower in
connection with its business);
6.15.7.6 Maintain a sufficient number of employees in light
of its contemplated business operations; fairly and reasonably allocate any
overhead expenses that are shared with affiliates, including, without
limitation, pay for office space and services performed by employees;
6.15.7.7 Maintain a separate phone number; use separate
stationary, invoices and checks bearing its own name; and
6.15.7.8 Not make loans to any person or entity or buy or
hold evidences of indebtedness issued by any other person or entity (other
than investment-grade securities).
6.16 Amendments. Borrower shall not amend its organizational documents
or such other documents or instruments without the prior written consent of
Lender, which consent may be granted or withheld in Lender's sole discretion,
and which may be conditioned upon delivery of legal opinions or other
documentation requested by Lender.
6.17 Bankruptcy Actions. Borrower agrees that, in the event that any
case is commenced by or against Borrower under the United States Bankruptcy
Code: (i) Borrower will consent to and not oppose any motion made by Lender to
lift the automatic stay provided by the United States Bankruptcy Code in order
to allow Lender to enforce the lien of the Loan; and (ii) Borrower will not
file any plan which has the effect, or may have the effect, of impairing
Lender's rights as a secured creditor.
6.18 License Agreements. Within forty-five (45) days from the
Closing Date, Borrower shall have provided Lender with evidence satisfactory
to Lender that the License Agreements are in full force and effect and that no
default has occurred under the License Agreements and no events have occurred
nor do any conditions exist which with the giving of notice, the passage of
time, or both, would constitute a default under the License Agreements.
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Within forty-five (45) days from the Closing Date, Borrower shall also have
delivered to Lender fully executed consents from Licensors attached as
exhibits to the Assignment of License Agreement.
6.19 SNDA. Within thirty-days (30) days from the Closing Date,
Borrower shall have provided Lender with duly executed, in recordable form,
SNDAs, satisfactory in form and content to Lender and Lender's counsel, from
each tenant holding a leasehold interest to all or any part of the Project
pursuant to which such tenant, among other things, subordinates all of such
tenant's rights, title, and interest in and to the Project to the Loan
Documents.
ARTICLE 7
EVENTS OF DEFAULT
7.1 Event of Default. Fifteen (15) days after written notice from
Lender to Borrower for monetary defaults and thirty (30) days after written
notice from Lender to Borrower for non-monetary defaults, if such defaults are
not cured within such fifteen (15) day or thirty (30) day periods,
respectively, each of the following shall constitute an event of default
("Event of Default") under this Agreement:
7.1.1 Default in Payment. If Borrower fails to make any payment
due and payable under the terms of the Note, this Agreement or any other Loan
Document.
7.1.2 Representations and Warranties. If any of the
representations and warranties made by Borrower in this Agreement, or in any
other Loan Document, shall be false or misleading at any time during the term
of the Loan.
7.1.3 Covenants. If Borrower shall be in default under any of
the terms, covenants, conditions, or obligations in this Agreement, or in any
other Loan Document.
7.1.4 Cross Default. If a default occurs or any event occurs or
condition exists, which with the passage of time, the giving of notice, or
both, would constitute a default, occurs on any indebtedness of Borrower to
Lender.
7.1.5 Leases. If a default occurs by Borrower under any leases
of all or any portion of the Property, or any event occurs or condition
exists, which with the passage of time, the giving of notice, or both, would
constitute a default under any leases of all or any portion of the Property.
7.1.6 Ground Lease. If any default occurs by Borrower under the
Ground Lease, or any event occurs or condition exists, which with the passage
of time, the giving of notice, or both, would constitute a default under the
Ground Lease, including, without limitation, the Ground Lease is not in effect
at any time during the term of the Loan or the Ground Lease is terminated for
any reason.
7.1.7 License Agreements. If any default occurs under the
License Agreements, or any event occurs or condition exists, which with the
passage of time, the giving of notice, or both, would constitute a default
under the License Agreements.
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7.1.8 Dissolution. If Borrower becomes dissolved or terminated.
7.1.9 Receiver. If a receiver, trustee, or custodian is
appointed for any part of Borrower's property, or any part of Borrower's
property is assigned for the benefit of creditors.
7.1.10 Impairment to Lien. If at any time the Trust Deed or any
other applicable Loan Document creating a lien on any of the Collateral may be
impaired by any lien, encumbrance or other defect other than the Permitted
Encumbrances.
7.1.11 Bankruptcy. If a petition in bankruptcy is filed against
Borrower, and such petition is not dismissed within ninety (90) days of
filing, a petition in bankruptcy is filed by Borrower or any guarantor of the
Loan or a receiver or trustee of the property of Borrower is appointed; or if
Borrower files a petition for reorganization under any of the provisions of
the Bankruptcy Act or any law, State or Federal, or makes an assignment for
the benefit of creditors or is adjudged insolvent by any State or Federal
Court of competent jurisdiction.
7.1.12 Judgment or Attachment. If a judgment is entered against
Borrower or any attachment be made for an amount in excess of $100,000.00 and
such judgment or attachment is not paid or otherwise fully satisfied within
fifteen (15) days of the date it is entered.
7.1.13 Guarantor. If any of the foregoing events occur
concerning Guarantor.
ARTICLE 8
REMEDIES
8.1 Termination and Acceleration. Upon the occurrence of an Event of
Default under this Agreement, all obligations of Lender under this Agreement,
and under the other Loan Documents at the election of Lender, shall cease and
terminate and Lender may declare the entire unpaid Principal Indebtedness
immediately due and payable and may foreclose the Trust Deed and any other
Collateral, and exercise all remedies available to a mortgagee under the
Ground Lease, and may apply the undisbursed Loan proceeds against the
Principal Indebtedness owed to Lender by Borrower.
8.2 Rights and Remedies Cumulative. All rights, remedies, and powers
conferred in this Agreement are cumulative and not exclusive of any other
rights or remedies, and shall be in addition to every other right, power, and
remedy that Lender may have, whether specifically granted in this Agreement,
the Ground Lease, or existing at law, in equity, or by statute; and any and
all such rights and remedies may be exercised from time to time and as often
and in such order as Lender may deem expedient. Any forbearance or delay by
Lender in exercising any of its rights, remedies, and powers shall not be
deemed to be a waiver and the exercise or partial exercise of any right,
remedy, or power, and shall not preclude the further exercise of such right,
remedy, and power and the same shall continue in full force and effect until
specifically waived by an instrument in writing executed by Lender.
8.3 Attorney-in-Fact. Upon the occurrence of an Event of Default,
Borrower hereby irrevocably constitutes and appoints Lender Borrower's true
and lawful attorney-in-fact to execute, acknowledge and deliver any
20
instruments and to do and perform any act such as referred to in this
Agreement in the name and on behalf of Borrower. This power of attorney is
irrevocable and is coupled with an interest.
ARTICLE 9
ARBITRATION
9.1 Arbitration Disclosures.
9.1.1 ARBITRATION IS FINAL AND BINDING ON THE PARTIES AND
SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT.
9.1.2 IN ARBITRATION THE PARTIES ARE WAIVING THEIR RIGHT TO
LITIGATE IN COURT, INCLUDING THEIR RIGHT TO A JURY TRIAL.
9.1.3 DISCOVERY IN ARBITRATION IS MORE LIMITED THAN DISCOVERY IN
COURT.
9.1.4 ARBITRATORS ARE NOT REQUIRED TO INCLUDE FACTUAL FINDINGS
OR LEGAL REASONING IN THEIR AWARDS. THE RIGHT TO APPEAL OR SEEK MODIFICATION
OF ARBITRATORS' RULINGS IS VERY LIMITED.
9.1.5 A PANEL OF ARBITRATORS MIGHT INCLUDE AN ARBITRATOR WHO IS
OR WAS AFFILIATED WITH THE BANKING INDUSTRY.
9.1.6 IF YOU HAVE QUESTIONS ABOUT ARBITRATION, CONSULT YOUR
ATTORNEY OR THE AMERICAN ARBITRATION ASSOCIATION.
9.2 Arbitration Provisions. This concerns the resolution of any
claim or controversy between or among the parties. In this regard:
9.2.1 Any claim or controversy ("Dispute") between or among the
parties, including, but not limited to, Disputes arising out of or relating to
the Loan, the Collateral, this Agreement, the Note, the Loan Documents, this
Article 9 Arbitration ("arbitration clause"), or any related agreements or
instruments relating hereto or delivered in connection herewith ("Related
Documents"), and including, but not limited to, a Dispute based on or arising
from an alleged tort, shall at the request of any party be resolved by binding
arbitration in accordance with the applicable arbitration rules of the
American Arbitration Association ("the Administrator"). The provisions of
this arbitration clause shall survive any termination, amendment, or
expiration of this Agreement or Related Documents.
9.2.2 The arbitration proceedings shall be conducted in Las
Vegas, Nevada, at a place to be determined by the Administrator. The
Administrator and the arbitrator(s) shall have the authority to the extent
practicable to take any action to require the arbitration proceeding to be
completed and the arbitrator(s)' award issued within one-hundred-fifty (150)
days of the filing of the Dispute with the Administrator. The arbitrator(s)
shall have the authority to impose sanctions on any party that fails to comply
with time periods imposed by the Administrator or the arbitrator(s), including
the sanction of summarily dismissing any Dispute or defense with prejudice.
The arbitrator(s) shall have the authority to resolve any Dispute regarding
the terms of this Agreement, this arbitration clause or Related Documents,
including any claim or controversy regarding the arbitrability of any Dispute.
All limitations periods applicable to any Dispute or defense, whether by
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statute or agreement, shall apply to any arbitration proceeding hereunder and
the arbitrator(s) shall have the authority to decide whether any Dispute or
defense is barred by a limitations period and, if so, to summarily dismiss any
Dispute or defense on that basis. The doctrines of compulsory counterclaim,
res judicata, and collateral estoppel shall apply to any arbitration
proceeding hereunder so that a party must state as a counterclaim in the
arbitration proceeding any claim or controversy which arises out of the
transaction or occurrence that is the subject matter of the Dispute. The
arbitrator(s) may in the arbitrator(s)' discretion and at the request of any
party: (1) consolidate in a single arbitration proceeding any other claim or
controversy involving another party that is substantially related to the
Dispute where that other party is bound by an arbitration clause with Lender,
such as borrowers, guarantors, sureties, and owners of collateral; (2)
consolidate in a single arbitration proceeding any other claim or controversy
that is substantially similar to the Dispute; and (3) administer multiple
arbitration claims or controversies as class actions in accordance with the
provisions of Rule 23 of the Federal Rules of Civil Procedure.
9.2.3 The arbitrator(s) shall be selected in accordance with the
rules of the Administrator from panels maintained by the Administrator. A
single arbitrator shall be knowledgeable in the subject matter of the Dispute.
Where three arbitrators conduct an arbitration proceeding, the Dispute shall
be decided by a majority vote of the three arbitrators, at least one of whom
must be knowledgeable in the subject matter of the Dispute and at least one of
whom must be a practicing attorney. The arbitrator(s) shall award recovery of
all costs and fees (including attorneys' fees and costs, arbitration
administration fees and costs, and arbitrator(s)' fees). The arbitrator(s),
either during the pendency of the arbitration proceeding or as part of the
arbitration award, also may grant provisional or ancillary remedies including
but not limited to injunctive relief, foreclosure, sequestration, attachment,
replevin, garnishment, or the appointment of a receiver.
9.2.4 Judgment upon an arbitration award may be entered in any
court having jurisdiction, subject to the following limitation: the
arbitration award is binding upon the parties only if the amount does not
exceed four million dollars ($4,000,000.00); if the award exceeds that limit,
either party may demand the right to a court trial. Such a demand must be
filed with the Administrator within thirty (30) days following the date of the
arbitration award; if such a demand is not made within that time period, the
amount of the arbitration award shall be binding. The computation of the
total amount of an arbitration award shall include amounts awarded for
attorneys' fees and costs, arbitration administration fees and costs, and
arbitrator(s)' fees.
9.2.5 No provision of this arbitration clause, nor the exercise
of any rights hereunder, shall limit the right of any party to: (1) judicially
or non-judicially foreclose against any real or personal property collateral
or other security; (2) exercise self-help remedies, including but not limited
to repossession and setoff rights; or (3) obtain from a court having
jurisdiction thereover any provisional or ancillary remedies including but not
limited to injunctive relief, foreclosure, sequestration, attachment,
replevin, garnishment, or the appointment of a receiver. Such rights can be
exercised at any time, before or during initiation of an arbitration
proceeding, except to the extent such action is contrary to the arbitration
award. The exercise of such rights shall not constitute a waiver of the right
to submit any Dispute to arbitration, and any claim or controversy related to
the exercise of such rights shall be a Dispute to be resolved under the
provisions of this arbitration clause.
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9.2.6 Notwithstanding the applicability of any other law to this
Agreement, the arbitration clause, or Related Documents between or among the
parties, the Federal Arbitration Act, 9 U.S.C. Sec. 1 et seq., shall apply to
the construction and interpretation of this arbitration clause.
ARTICLE 10
MISCELLANEOUS
10.1 Non-Waiver. No advance of Loan proceeds under this Agreement shall
constitute a waiver of any of the conditions to be performed by Borrower and
in the event Borrower is unable to satisfy any such conditions Lender shall
not be precluded from declaring such failure to be an Event of Default.
10.2 Derivative Rights. Any obligation of Lender to make disbursements
under this Agreement is imposed solely and exclusively for the benefit of
Borrower and no other person, firm or corporation shall, under any
circumstances, be deemed to be a beneficiary of such condition, nor shall it
have any derivative claim or action against Lender.
10.3 Survival. All representations, warranties and covenants by
Borrower shall survive the making of the disbursements under the Loan and the
provisions of this Agreement shall be binding upon Borrower, Borrower's
successors and assigns and inure to the benefit of Lender, Lender's successors
and assigns.
10.4 Conflict. The Note, Trust Deed, and all other Loan Documents shall
be subject to all the terms, covenants, conditions, obligations, stipulations
and agreements contained in this Agreement. In the event there is any
conflict between the terms and conditions of this Agreement, the Note, Trust
Deed, or any other Loan Document, this Agreement shall prevail.
10.5 Assignment. Lender may assign the Loan Documents, in whole or in
part, to any other person, firm or corporation provided that all provisions of
this Agreement shall continue to apply in conjunction with the other Loan
Documents. Borrower shall not assign this Agreement, or any interest of
Borrower in or to this Agreement, the Loan proceeds, or any of the Loan
Documents without the prior written consent of Lender. Any dissolution of
Borrower or any transfer of any interest in Borrower without the prior written
consent of Lender shall be assumed to be an assignment in violation of this
Section.
10.6 Notices. All notices shall be in writing and shall be deemed to
have been sufficiently given or served when personally delivered, deposited in
the United States mail, by registered or certified mail, or deposited with a
reputable overnight mail carrier which provides delivery of such mail to be
traced, addressed as follows:
Lender: NEVADA STATE BANK
Real Estate Loan Department
0000 Xxxx Xxxxxxxx Xxxx
X.X. Xxx 000
Xxx Xxxxx, Xxxxxx 00000-0000
Attn: Xxxxx Xxxxxxxx
23
With copies to: XXXXXXXXX XXXXXXX & XxXXXXXXXX
Gateway Tower East, Suite 900
00 Xxxx Xxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxx
Borrower: ALL AMERICAN SPORTPARK LLC
0000 Xxxxx Xxxxxx Xxxx Xxxx.
Xxxxx 0
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
With copies to: MARQUIS & AURBACH
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000-0000
Attn: Avece X. Xxxxxx
Ground Lessor: URBAN LAND OF NEVADA, INC.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxxxx X. Xxx
Such addresses may be changed by notice to the other party given in the same
manner provided in this Section.
10.7 Indemnification. Borrower agrees to pay, protect, defend,
indemnify and hold harmless Lender for any and all claims and liabilities, and
for damages which may be awarded or incurred by Lender, and for all reasonable
attorney fees, legal expenses, and other out-of-pocket expenses incurred in
defending such claims, arising from or related in any manner to the
negotiation, execution, or performance by Lender of this Agreement, the Loan
Documents, or any of the agreements, documents, obligations, or transactions
contemplated by this Agreement, including, without limitation, any claims,
liabilities, or causes of actions related to any Hazardous Materials located
on, in, or under the Property, but excluding any such claims based upon breach
or default by Lender or gross negligence or willful misconduct of Lender.
This indemnification shall survive the payment of the Loan, reconveyance of
the Trust Deed, and termination of this Agreement.
Lender shall have the control of the defense of any such claims, but
agrees to act reasonably in the defense of any such claims. Lender is hereby
authorized to settle or otherwise compromise any such claims as Lender in good
faith determines shall be in its best interests.
Any indemnification amount owing to Lender pursuant to this Section 10.7
shall be secured by the Loan Documents and Collateral except that,
notwithstanding anything to the contrary in this Agreement or the Loan
Documents, any such indemnification amount owing to Lender shall not be
secured in any way by the Property on, in or under which any Hazardous
Materials is located.
10.8 Terms. Whenever used in this Agreement, the singular shall include
the plural, the plural the singular, and the use of any gender shall be
applicable to all genders.
24
10.9 Joint and Several Liability. All obligations and liabilities of
Borrower and Guarantor imposed in this Agreement, or in any of the other Loan
Documents upon Borrower and Guarantor shall be joint and several.
10.10 Invalidity. The invalidity of any one or more or any part of the
conditions, covenants, articles, sections, phrases or sentences of this
Agreement shall not affect the remaining portions of this Agreement.
10.11 Governing Law. This Agreement and all matters relating to this
Agreement shall be governed by, construed and interpreted in accordance with
the laws of the State of Nevada.
10.12 No Partnership. Nothing contained in this Agreement or in any of
the other Loan Documents shall be construed as creating a joint venture or
partnership between Borrower and Lender. There shall be no sharing of losses,
costs and expenses between Borrower and Lender, and Lender shall have no right
of control or supervision except as it may exercise its rights and remedies
provided in the Loan Documents.
10.13 Attorneys' Fees. Upon the occurrence of an Event of Default,
Lender may employ an attorney or attorneys to protect Lender's rights under
this Agreement, and Borrower shall pay Lender reasonable attorneys' fees and
costs actually incurred by Lender, whether or not action is actually commenced
against Borrower by reason of such breach. Borrower shall also pay to Lender
any attorneys fees and costs incurred by Lender with respect to any insolvency
or bankruptcy proceeding or other action involving Borrower or any guarantor
as a debtor. If Lender exercises the power of sale contained in the Trust
Deed or initiates foreclosure proceedings, Borrower shall pay all costs
incurred and attorney fees and costs as provided in the Trust Deed.
10.14 Waiver of Claims. Borrower (i) represents that Borrower has no
defenses to or setoffs against any indebtedness or other obligations owing to
Lender or Lender's affiliates, nor claims against Lender or Lender's
affiliates for any matter whatsoever, related or unrelated to any indebtedness
or other obligations owing to Lender or Lender's affiliates, and (ii) releases
Lender and Lender's affiliates from all claims, causes of action, and costs,
in law or equity, existing as of the Closing Date, which Borrower has or may
have by reason of any matter of any conceivable kind or character whatsoever,
related or unrelated to any indebtedness or other obligations owing to Lender
or Lender's affiliates, including the subject matter of this Agreement. This
provision shall not apply to claims for performance of express contractual
obligations owing to Borrower by Lender or Lender's affiliates.
10.15 Setoff. In addition to any rights and remedies of Lender provided
by law, if any Event of Default exists, Lender is authorized at any time and
from time to time, without prior notice to Borrower, any such notice being
waived by Borrower to the fullest extent permitted by law, to setoff and apply
any and all deposits (general or special, time or demand, provisional or
final) at any time held by Lender to or for the credit or the account of
Borrower against any and all obligations of Borrower under the Loan or any of
the Loan Documents, now or hereafter existing, irrespective of whether or not
Lender shall have made demand under the Loan, or otherwise, or under any Loan
Document and although such amounts owed may be contingent or unmatured.
Lender agrees promptly to notify Borrower after any such setoff and
application made by Lender; provided, however, that the failure to give such
notice shall not affect the validity of such setoff and application. The
rights of Lender under this Section 10.15 are in addition to the other rights
and remedies (including other rights of setoff) which Lender may have.
25
10.16 Severability of Invalid Provisions. With respect to this
Agreement and all other Loan Documents, any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction only, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
10.17 Integrated Agreement and Subsequent Amendment. The Loan
Documents, and the other agreements, documents, obligations, and transactions
contemplated by this Agreement constitute the entire agreement between Lender
and Borrower with respect to the subject matter of these agreements, and may
not be altered or amended except by written agreement signed by Lender and
Borrower. BORROWER IS NOTIFIED THAT THESE AGREEMENTS ARE A FINAL EXPRESSION
OF THE AGREEMENT BETWEEN LENDER AND BORROWER AND THESE AGREEMENTS MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY ALLEGED ORAL AGREEMENT.
All prior and contemporaneous agreements, arrangements and
understandings between the parties to this Agreement as to the subject matter
of this Agreement, are, except as otherwise expressly provided in this
Agreement, rescinded.
DATED: September 15, 1998
BORROWER
ALL AMERICAN SPORTPARK LLC,
a Nevada limited liability company
By: SPORTPARK MANAGEMENT, INC.,
a Nevada corporation, Manager
By:/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
President
Attest:
/s/ Xxxx Xxxxxx
Secretary
LENDER
NEVADA STATE BANK,
a Nevada banking corporation
By:/s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Senior Vice President
26
Guarantor hereby acknowledges and consents to the foregoing Term Loan
Agreement, makes the representations, warranties and covenants set forth in
Article 4 Guaranty, and agrees to the provisions of Article 9 Arbitration,
Section 10.9 Joint and Several Liability, and all other applicable provisions
of the foregoing Term Loan Agreement.
DATED: September 15, 1998.
GUARANTOR
SAINT XXXXXXX GOLF CORPORATION,
a Nevada corporation
By:/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
President
Attest:
/s/ Xxxx Xxxxxx
Secretary
LAS VEGAS DISCOUNT GOLF & TENNIS, INC.,
a Colorado corporation
By:/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
President
Attest:
/s/ Xxx Xxxxxx
Secretary
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this 15th day of
November 1998, by Xxxxxx X. Xxxxxx, President and Secretary, of SportPark
Management, Inc., a Nevada corporation, Manager of ALL AMERICAN SPORTPARK LLC,
a Nevada limited liability company.
/s/ Xxx X. Xxxxx
NOTARY PUBLIC
My Commission Expires: 8/6/2000 Residing At:
27
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this 15th day of
September 1998, by Xxxxx Xxxxxxxx, Senior Vice President of NEVADA STATE BANK,
a Nevada banking corporation.
/s/ Xxx X. Xxxxx
NOTARY PUBLIC
My Commission Expires: 8/6/2000 Residing At:
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this 15th day of
September 1998, by Xxxxxx X. Xxxxxx, President and Secretary, of SAINT XXXXXXX
GOLF CORPORATION, a Nevada corporation.
/s/ Xxx X. Xxxxx
NOTARY PUBLIC
My Commission Expires: 8/6/2000 Residing At:
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this 15th day of
September 1998, by Xxxx Xxxxxx, President and Secretary, of LAS VEGAS DISCOUNT
GOLF & TENNIS, INC., a Colorado corporation.
/s/ Xxx X. Xxxxx
NOTARY PUBLIC
My Commission Expires: 8/6/2000 Residing At:
28
EXHIBIT A
REAL PROPERTY DESCRIPTION
The real property located in Xxxxx County, State of Nevada, and more
particularly described as follows:
Being a portion of the Northwest Quarter (NW 1/4) of Xxxxxxx 0, Xxxxxxxx
00 Xxxxx, Xxxxx 00 Xxxx, X.X.X., Xxxxxx of Xxxxx, State of Nevada, more
particularly described as follows:
Commencing at the Northwest corner of said Section 4, said point being
the centerline intersection of Las Vegas Boulevard South (SR-91) and Sunset
Road; thence along the Northerly line thereof, said line also being the
centerline of said Xxxxxx Xxxx, Xxxxx 00x00'00" Xxxx 1016.24 feet; thence
departing said line South 01o09'31" East, 50.00 feet to a point on the
Southerly right-of-way line of Sunset Road, being 50.00 feet wide as per
document recorded April 27, 1972, in Book 226, Instrument No. 185689, Official
Records, said point also being the point of beginning; thence along said
right-of-way line North 88o50'29" East 1365.65 feet to a line being 249.99
feet Westerly and parallel with measured at right angles from the Easterly
line of the Northwest Quarter (NW 1/4); thence along said line South 00o35'14"
East, 870.00 feet; thence departing said line South 89o24'46" West 957.01
feet; thence North 29o7'56" West 724.00 feet; thence Xxxxx 00x00'00" Xxxx
59.92 feet; thence North 01o09'31" West 221.00 feet to the point of beginning.
EXHIBIT B
PENDING LITIGATION
None
