Exhibit 10.54
MASTER LOAN AGREEMENT
THIS MASTER LOAN AGREEMENT (this "Agreement") is made and entered into as
of the 1st day of January, 1996, by and between POLYPHASE CORPORATION, a Nevada
Corporation ("Polyphase" or "Lender"), and PLY STADIUM PARTNERS, INC., a Nevada
corporation ("Borrower").
RECITALS
Borrower has arranged with Polyphase for secured loans as described in Paragraph
1 hereof ("Loans"). Polyphase is willing to make such Loans to Borrower, upon
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, Polyphase and Borrower hereby agree as follows:
1. THE LOANS
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1.1 Upon the terms and subject to the conditions hereinafter set forth,
the Lender shall make loans to the Borrower at its discretion, in
such principal amounts as the Lender shall deem necessary and
appropriate to the Las Vegas Stadium Project, in Las Vegas, Nevada.
The Loans shall be disbursed to the Borrower from and after the date
hereof at such times and in such amounts as may be designated and
approved. Provided, however, the Lender may terminate this commitment
if the Lender is unable to make further advances or if the Lender
believes further advances would be against its better business
judgment. Included in such loans will be all sums accrued but unpaid
pursuant to that certain Management Agreement by and between PLY and
Polyphase of even date herewith.
1.2 Up to Four Million Dollars ($4,000,000)of the amounts advanced
pursuant to this Agreement will be evidenced by a Convertible
Promissory Note bearing interest at a rate of twelve percent (12%)
per annum. The note is Convertible into a fourteen percent (14%)
interest in PLY Stadium Partners, Inc.
1.3 Additional amounts advanced pursuant to this Agreement will also bear
interest at a rate of twelve percent (12%) per annum and unless
evidenced by separate promissory notes will be governed by the terms
and provisions of this Agreement. All amounts advanced pursuant to
this Agreement shall be due and payable on the one hundred twentieth
(120th) day after closing of the Real Estate Land Purchase from one
Union Pacific Railroad.
1.4 Included in Paragraphs 1.2 or 1.3 are the amounts of $2,000,872
advanced to Xxxx Xxxxxx and $1,514,500 advanced to The Pyrenees Group
prior to the date of this Agreement.
1.5 Xxxx Xxxxxx and Pyrenees Group, Inc. will execute a Guarantee and
Security Agreement of even date herewith.
2. PROMISSORY NOTE AND SECURITY
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2.1 Creation of Security Interest. Borrower hereby creates and grants to
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Lender and/or its assignees a security interest in the Collateral (as
herein defined) to secure the payments of the indebtedness evidenced
by, and the performance and discharge of each and every covenant,
condition and agreement contained in this Agreement and each Note,
and any and all modifications, extensions or renewals thereof.
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3. REPRESENTATIONS AND WARRANTIES OF BORROWER
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Borrower hereby represents and warrants to Lender the following with
respect to, and as of the date of, each Loan:
3.1 Organization, Etc. Borrower is a corporation duly organized, validly
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existing and in good standing under the laws of the State of Nevada
and has the authority to borrow as provided herein and to execute,
deliver and perform the terms and conditions of this Agreement and
all other instruments, documents and agreements contemplated hereby.
3.2 Authorization of Borrowing. The Loans hereunder and the execution,
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delivery and performance by Borrower of this Agreement and all other
instruments, documents and agreements contemplated hereby, have been
duly authorized by all necessary parties and the Board of Directors
of Borrower, create legal, valid or binding obligations of Borrower
and do not and will not: (I) violate any indenture, agreement or
other instrument to which Borrower is a party or by which it or any
of its property is bound or be in conflict with, result in a breach
of or constitute a default under any such indenture, agreement or
other instrument; or (ii) result in the creation or imposition of any
lien, charge or encumbrance of any nature in favor of any person
other than Lender upon any of the Collateral or other assets of
Borrower.
3.3 Taxes. Borrower has filed or caused to be filed all federal, state
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and local tax returns which are required to be filed and has paid or
caused to be paid prior to delivering such returns, all taxes as
shown thereon or on any assessments received by them to the extent
that such taxes have become due.
3.4 Litigation. There are no material actions, suits or proceedings
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pending or to the knowledge of Borrower, threatened against or
affecting Borrower, at law or in equity or before or buy any federal
state, municipal or governmental department which involve any of the
transactions herein contemplated or the possibility of any judgment
or liability which may result in any material adverse change in the
business, operations, prospects, properties or assets or in the
condition, financial or otherwise, of Borrower.
3.5 Regulation U. No part of the proceeds of the Loans will be used to
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purchase or carry margin stock (within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System) or to extend
credit to others for the purpose of purchasing or carrying any such
margin stock.
3.6 Purpose of Borrowing. All Loans by the Borrower from Lender shall
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be for the business purpose of Borrower and none of the Loans shall
be for consumer use.
3.7 Authorized to Do Business. Borrower is, or shall be prior to the
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funding of any Loan, authorized to do business in all states where it
is necessary for it to be so authorized.
3.8 Default. Borrower is not in default in the payment of the principal
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of or interest on an indebtedness for borrowed money, nor is it in
default under any instrument or agreement under and subject to which
any indebtedness for borrowed money has been issued or obligation
created and no event has occurred under the provisions of any such
instrument or agreement which, with or without the lapse of time or
the giving of notice or both, constitutes or would constitute an
event of default thereunder.
4. CONDITIONS OF LENDING
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The obligation of Lender to lend hereunder is subject to the following
conditions precedent:
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4.1 Representations and Warranties. On the date of each Loan, the
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representations and warranties set forth in Section 4 hereof shall be
true and correct on and as of such date with the same effect as
though such representations and warranties had been made on and as of
such date.
4.2 No Default. At the time of each Loan, Borrower shall be in
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compliance with all terms and provisions set forth herein and no
Event of Default hereof nor any event which upon notice or lapse of
time or both would constitute such an Event of Default shall have
occurred and be continuing at the time of the Loan
5. BORROWER'S COVENANTS
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Borrower covenants and agrees that from the date hereof until termination
of this Agreement and full payment of each Loan, unless Lender shall otherwise
consent in writing, it will:
5.1 Do or cause to be done all things necessary to preserve and keep in
full force and effect Borrower's corporate existence and shall comply
with all Loans applicable to it;
5.2 Notify Lender prior to changing its corporate name or identity;
5.3 Promptly upon request by Lender, execute and deliver any documents,
deliver to Lender any instruments, give any notices, execute and file
any financing statements or other documents, all in form satisfactory
to Lender and take any other actions which are necessary or, in the
judgment of Lender, desirable to perfect or continue the perfection
for the purposes of this Agreement and will pay all costs incurred in
connection therewith;
5.4 Promptly notify Lender in writing of any event or change of law,
regulation, business practice or business condition which may
adversely affect the financial or business prospects of Borrower;
5.5 Allow Lender and grant Lender the right at any time to make any
payments and do any other acts Lender shall deem reasonably necessary
to protect its interest, including without limitation, the right to
pay, purchase contest or compromise any encumbrance, charge or lien
which in the judgment of Lender appears to be prior to or superior
and the right to pay all expenses incurred in connection therewith,
including attorneys' fees. Borrower hereby agrees it shall be bound
by any such payment made or act taken by Lender hereunder and shall
reimburse Lender for all payments made and expenses incurred, which
amounts shall be secured under this Agreement. Lender shall have no
obligation to make any of the foregoing payments or perform any of
the foregoing acts;
5.6 Pay and discharge or cause to be paid and discharged, all taxes,
assessments and governmental charges or levies imposed upon any of
the Collateral;
5.7 Notify Lender in writing immediately upon the occurrence of any event
which constitutes an Event of Default as set forth in Section 7.1
hereof or any event which would constitute such an Event of Default,
upon the giving of notice or lapse of time or both;
5.8 Not take any action or engage in any course of conduct or make any
representation or permit or authorize any affiliate to so act, which
would suggest or create the inference that the relationship between
Borrower and Lender in connection with the Loans is other than that
of debtor and creditor.
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6. DEFAULT
6.1 Events of Default. The following events shall be events of default
("Event(s) of Default"):
(a) Any representation or warranty made herein is proven to be false or
misleading in any material respect if such representation or warranty
continues to be false or misleading for a period of 20 days following
the sending of written notice;
(b) With respect to Sections 4.1, 4.3 and 4.4 hereof, any representations
or warranty made therein becomes false or misleading in any material
respect after the making of the last Loan if such representation or
warranty continues to be false or misleading for a period of 20 days
following the sending of written notice;
(c) Any report, certificate, appraisal or other instrument furnished in
connection with this Agreement or the borrowing hereunder is proven
to be false or misleading in any material respect if such information
continues to be false or misleading for a period of 20 days following
sending a written notice;
(d) Borrower defaults in the payment of any installment of principal or
interest on a Loan as and when due and payable and such default
continues for a period of 10 days; Borrower will not be sent any
written notice that a payment has not been timely made;
(e) Borrower defaults in the due observance or performance of any
material covenant, condition or agreement on the part of Borrower to
be observed or performed pursuant to the terms of this Agreement,
including, but not limited to, Section 6.13 hereof, the Notes or
other instrument, document or agreement delivered pursuant hereto and
such default shall continue unremedied for 10 days;
(f) A petition is filed against Borrower, under the federal bankruptcy
laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law or a
receiver, liquidator, assignee, custodian trustee or similar official
is appointed ordering the winding up or liquidation of Borrower's
affairs and such petition, decree or order or appointment is unstayed
and in effect for a period of 15 consecutive days;
(g) Borrower commences a voluntary action under the federal bankruptcy
laws, as now or hereafter constituted, or any other applicable or
state bankruptcy, insolvency or similar law or consents to the
appointment or taking possession by receiver, liquidator, assignee,
trustee or custodian of Borrower, or makes an assignment for the
benefit of creditors or fails generally to pay its respective debts
as such debt become due (provided that any failure of Borrower to
generally pay its debts unless there is an Event of Default under
Section 7.1(d) hereof) or takes any action in regard to any of the
foregoing.
6.2 Rights in the Event of Default. Upon the occurrence of any Event of
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Default, Lender may without notice to Borrower, in its discretion,
declare the outstanding principal amount of each Loan and all accrued
interest thereon, to be immediately due and payable in full and all
other amounts due thereunder without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived.
Lender shall also have all such rights and remedies as may be
available in accordance with the terms of each Loan and all
applicable laws and regulations regarding such security. The
occurrence of an Event of Default or the failure of any condition
precedent in Section 5 hereof, Lender may at any time hereafter and
while such failure of condition or Event of Default remains uncured,
refuse to issue further disbursements under this Agreement until such
failure of conditions or Event of Default are cured to the
satisfaction of Lender.
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6.3 No Election to Cure. The exercise of any right or remedy of Lender
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shall not constitute a waiver of any other right or remedy or
prejudice Lender in the exercise of any other right or remedy. The
exercise of any right or remedy by Lender shall not constitute a cur
of any Event of Default unless all sums then due and payable to
Lender with respect to the Loans are repaid and Borrower has cured
all other Event of Default.
6.4 Repayment of Funds Advanced. If Lender expends Lender's own funds in
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exercising any of the rights or remedies of Lender under any of the
Loan Documents or Borrower shall become indebted to Lender under any
provisions of any of the Loan Documents, the amount of such funds or
indebtedness shall, be added to the outstanding principal balance of
the applicable Notes from the date such funds were expended or such
indebtedness was incurred. Until repaid, such amounts shall have the
security afforded disbursements under the Notes.
6.5 Rights Cumulative. All rights and remedies of Lender provided in
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the Loan Documents, granted by law or otherwise, are cumulative and
Lender may exercise any or all such rights and remedies at any time.
6.6 No Waiver. No waiver of any breach of, Event of Default under,
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failure of or default of, any covenant or condition under the terms
of the Loan Documents shall be implied from any failure of Lender to
take or any delay by Lender in taking action with respect to any such
breach, Event of Default, failure or default or from any previous
waiver of a similar or unrelated breach, Event of Default, failure or
default. A waiver of any term of any of the Loan Documents must be
made in writing and shall be limited to the express written terms of
such waiver
7. MISCELLANEOUS
7.1 Survival of Covenants, etc. All covenants, agreements,
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representations and warranties made herein shall survive the making
of the Loans and the execution and delivery to Lender of the Loan
Documents and shall continue in full force and effect during the term
of this Agreement and for so long as any sums remain unpaid under the
terms of the notes.
7.2 Successors and Assigns. Whenever in this Agreement a party is
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referred to, such reference shall be deemed to include the successors
and assigns of such parties. All covenants], promises and agreements
by or on behalf of Borrower which are contained in this Agreement
shall bind and inure to the benefit of the successors and assigns of
Borrower.
7.3 Applicable Law; Jurisdiction. This Agreement, the Notes and any
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other document, instrument or agreement contemplated hereunder shall
be governed by and construed in accordance with the laws of the State
of Nevada. Any controversy or claim arising out of or relating to
this Agreement, the Notes and any other document, instrument or
agreement contemplate hereunder or its interpretation, shall be
settled by arbitration. If the parties are unable to agree on one
arbitrator to hear and decide upon such claims, the claim or
controversy shall be settled by the American Arbitration Association
on the application of either party. The arbitration proceeding shall
be conducted in accordance with the then prevailing rules of the
American Arbitration Association or any successor thereto. The
parties consent to entry of a judgment on any arbitration award which
judgment may be entered in any court of competent jurisdiction. The
arbitrator's award shall be final and binding upon each party. Unless
otherwise determined by the arbitrators, the fees and expenses for
such arbitration shall be shared by the parties. The arbitration
proceeding shall
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take place in Las Vegas, Nevada. In connection with any arbitration
proceeding, the provisions of the laws of Civil Procedure for the
State of Nevada with respect to depositions and discovery (including
any successor provisions thereto)are hereby incorporated by this
reference and made a part of this Agreement.
7.4 Modification of Agreement. This Agreement, together with the Notes
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and other agreements referred to herein, shall constitute the entire
agreement between Lender and Borrower and no modification, amendment
or waiver of any provision hereof and thereof shall in any event be
effective unless the same shall be in writing signed by Lender and
then such waiver or consent shall be effective only in the specific
instance and for the purpose of which given. No notice or demand on
Borrower to any other or further notice or demand in the same,
similar or other circumstances.
7.5 Severability. If any provision of the Loan Document shall for any
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reason be determined by a court of competent jurisdiction and
sustained on appeal, if any, to be unenforceable by Lender in any
respect, such unenforceability shall not affect any other provisions
thereof and the Loan Documents shall be construed as if such
unenforceable provision had not been contained therein; provided,
however, that if provision of the Loan Documents shall be
unenforceable by reason of a final judgment of a court of competent
jurisdiction based upon such court's ruling, and sustained on appeal,
if any, that such provision is unenforceable because of the
unenforceable degree of magnitude or the obligation imposed thereby,
such unenforceable obligation shall be reduced in magnitude or degree
by the minimum amount necessary in order to provide the maximum
degree or magnitude of right which are enforceable by Lender, and the
Loan Documents shall be automatically and retroactively amended
accordingly to contain such maximum or magnitude of such obligations
which is enforceable by Lender, rather than the more burdensome but
unenforceable original obligation. As used herein, "unenforceable" is
used in the broadest and most comprehensive sense and includes the
concepts of void and voidable.
7.6 Indemnity. Borrower indemnifies Lender against and holds Lender
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harmless form, any and all losses, damages (whether general, punitive
or otherwise), liabilities, claims, causes of action (whether legal,
equitable or administrative), judgments, court costs and legal or
other expenses (including attorneys' fees) which Lender may suffer or
incur as a direct or indirect consequence of: (i) Borrower's failure
to perform any of Borrower's obligations as and when required by this
Agreement or any of the Loan Documents, including, without
limitation, any failure, at any time, of any representation or
warranty of Borrower to be true and correct and any failure b
Borrower to satisfy any condition; (ii) any claim or cause of action
of any kind by any person or entity to the effect that Lender is in
any way responsible or liable for any act or omission by Borrower,
whether on account of any theory or derivative liability or
otherwise; (iii) any act or omission by Borrower or other person or
entity, except Lender, or (iv) any claim or cause of action of any
kind by any person or entity which would have the effect of denying
Lender the full benefit or protection of any provisions of this
Agreement or the Loan Documents. Lender's rights of indemnity shall
not be directly or indirectly limited, prejudiced, impaired or
eliminated in any way by any finding or allegation that Lender's
conduct is active, passive or subject to any other classification or
that Lender is directly or indirectly responsible under any theory of
any kind, character or nature for any act or omission by Borrower or
any other person or entity, except Lender. Notwithstanding the
foregoing, Borrower shall be obligated to indemnify Lender with
respect to any intentional tort or act of gross negligence which
Lender is personally determined by the judgment of a court of
competent jurisdiction(sustained on appeal, if any) to have
committed. Borrower shall pay any indebtedness arising under such
indemnity to Lender immediately upon demand by Lender together with
interest thereon from the date such indebtedness arises until paid at
the greatest effective rate of interest specified in the Note and
which is applicable on
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or after the maturity or acceleration of the Note and/or this
Agreement. Borrower's duty to indemnify Lender shall survive the
release and cancellation of the Note and/or this Agreement.
7.7 Further Assurances. Borrower shall, upon the request of Lender, at
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Borrower's reasonable expense, execute, acknowledge and deliver such
further instruments (including, without limitation, a declaration of
no offset) and perform such other acts as may be necessary, desirable
or proper (as determined by Lender) to carry out the purposes of the
Loan Documents or to perfect and preserve the lien or charge of the
Loan Documents.
7.8 Form of Document. The form and substance of all documents,
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instruments, papers and forms of evidence to be delivered to Lender
under the terms of any of the Loan Documents shall be subject to the
approval of Lender under the terms of any of the Loan Documents,
shall be amended, modified, superseded or terminated in any respect
whatsoever without Lender's prior written approval.
7.9 No Third Parties Benefited. This Agreement is entered into for the
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sole protection and benefit of Lender and Borrower and their
permitted successors and assigns and no other person or persons shall
have any right of action under this Agreement.
7.10 Authority to File Notices. Borrower irrevocably appoints, designates
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and authorizes Lender in Lender's name and Borrower as Borrower's
attorney-in-fact, which agency is coupled with an interest, to
execute and/or record any notices, instruments or documents that
Lender deems appropriate to protect the interest of Lender.
7.11 Actions. Lender shall have the right to commence, appear in or
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defend any action or proceeding purporting to affect the Collateral
or the Loan Documents, or the rights, duties or liabilities of
Borrower or Lender under any of the Loan Documents. In exercising
such right Lender may incur and pay costs and expenses including,
without limitation, attorneys' fees and court costs. Borrower agrees
to pay to Lender upon demand all such expenses incurred or paid by
Lender together with interest, at the rate of 10% per annum, from the
date such expenses were incurred or paid by Lender. Until repaid,
such amounts shall have the security afforded disbursements under the
Note.
7.12 Attorneys' Fees. In the event of any controversy, claim or dispute
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arising from or relating to this Agreement or any of the Loan
Documents, the prevailing party shall be entitled to recover from the
losing party all costs of enforcement or collection, including,
without limitation, reasonable attorneys' fees incurred by the
prevailing party in connection therewith, whether such enforcement
and collection includes the filing of a lawsuit; provided, however,
that if the losing party is entitled to and does appeal any judgment
resulting from a lawsuit or other action filed with respect thereto,
then the prevailing party shall be determined upon the issuance of a
final, non-appealable order with respect to such lawsuit or other
action.
7.13 Time. Time is of the essence of each term of the Loan Documents.
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7.14 Integration. The Loan Documents and all exhibits and attachments
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thereto constitute the entire Agreement between Lender and Borrower
hereunder and represent a complete integration thereof. Lender an
Borrower agree that all prior or contemporaneous oral agreements and
all prior written agreements between and among themselves and their
agents and representatives relative to the subject matter and terms
of the Loans are merged in or superseded by the Loan Documents. No
other agreement, statement or promise made by any
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party to any employee, officer or agent of any party that is not in
writing and signed by all parties shall be binding.
7.15 Term. The term of this Agreement shall commence as of the date
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hereof and shall continue in full force and effect until payment in
full of the principal and interest on each of the Notes or any
renewals thereof.
7.16 Notices. All notices or communications hereunder shall be in writing
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and shall be sent to Polyphase Corporation at: 00000 Xxxxxx Xxxxxxx,
Xxxxxx, Xxxxx 00000, Attention: President; and to Borrower at: 0000
X. Xxxxxx, Xxxxx #000, Xxx 00, Xxx Xxxxx, Xxxxxx 00000, Attention:
Vice President/ General Manager. All such notices and communications
shall be given personally, by messenger or federal express, by
facsimile or by U.S. first-class mail, return receipt requested,
registered or certified, with postage prepaid. Notices shall be
deemed given upon the earliest of receipt, confirmed facsimile, pick-
up by messenger or federal express or three (3) days after deposit in
the mail.
POLYPHASE CORPORATION PLY STADIUM PARTNERS, INC.
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Xxxx Xxxxxx, President Xxxx Xxxxxx, President
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