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Exhibit 10.29
GUARANTEE
This GUARANTEE is made effective as of the 15th day of January, 1997,
by SENIOR TOUR PLAYERS DEVELOPMENT, INC., a Nevada corporation, and XXXXXXXX
XXXX (collectively, the "Guarantor"), in favor of U.S. BANK OF NEVADA, a Nevada
state-chartered commercial bank (the "Lender"), and its successors and assigns.
RECITALS
A. LAS VEGAS GOLF CENTER, L.L.C., a Delaware limited liability
company (the "Borrower"), has requested Lender to lend Borrower the principal
sum of FOUR MILLION AND NO/100THS DOLLARS ($4,000,000.00) (the "Loan") for the
purpose of paying certain costs incurred in constructing a golf driving range
and related entertainment facilities on certain real property located in Xxxxx
County, Nevada, and providing permanent financing in connection Therewith.
B. The Loan will be evidenced by a Promissory Note Secured By
Deed of Trust (the "Note"), secured by a Deed of Trust And Security Agreement
And Fixture Filing With Assignment of Rents (the "Deed of Trust") and disbursed
pursuant to a Construction/Permanent Loan Agreement (the "Loan Agreement"), each
dated of even date hereof and executed by Borrower. The Loan Agreement, Note,
Deed of Trust and any other instrument or document executed and delivered to or
for the benefit of Lender in connection with the Loan are hereinafter referred
to as the "Loan Documents".
C. The Loan shall result in a substantial benefit to each
Guarantor.
D. Lender has made or agreed to make the Loan upon the inducement
and representation that Guarantor would guarantee Borrower's obligations to
Lender under the Loan Documents and/or arising in connection with the Loan, as
provided herein.
NOW, THEREFORE, in consideration of, and in order to induce Lender to
make the Loan, Guarantor hereby agrees for the benefit of Lender, its
succcessors and assigns, as follows:
AGREEMENT
1. INDEBTEDNESS GUARANTEED. Each Guarantor hereby unconditionally
guarantees the payment, when due, of the indebtedness of Borrower to Lender or
its order evidenced by the Note or any other Loan Document and to perform any
and all obligations of Borrower under the terms of any Loan Document. Each
Guarantor acknowledges that the amount of the indebtedness guaranteed hereby may
exceed the principal amount of the Note.
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2. COMPLETION OF IMPROVEMENTS. If for any reason or under any
contingency (i) Borrower shall abandon construction of the Improvements (as
defined in the Loan Agreement), (ii) Borrower shall fail to complete the
Improvements within the maximum construction time and in the manner provided in,
and in accordance with the terms of, the Loan Agreement, and pay all costs
thereof, (iii) Lender takes possession of the encumbered property prior to the
completion of the Improvements by reason of any default of Borrower under any
Loan Document, or, (iv) the right of Borrower to receive any other or further
disbursements or advances under any Loan Document shall be terminated in
accordance with the terms thereof, then, in any such event, Guarantor shall
assume all responsibility for the completion of the Improvements in accordance
with the provisions of the Loan Documents and, at Guarantor's own cost and
expense (except that Guarantor shall have the right to receive the undisbursed
portion of the Loan in order to assist Guarantor in performing Guarantor's
obligations hereunder, provided that such funds shall be disbursed by Lender to
Guarantor in accordance with the provisions of the Loan Agreement), shall cause
the Improvements to be fully completed in accordance with the provisions of the
Loan Agreement and within the maximum construction time specified in the Loan
Agreement, shall pay all costs and expenses in connection with the construction
of the Improvements, and shall indemnify and hold Lender harmless from and
against any and all loss, cost, liability or expense which Lender may suffer by
reason of such event. Notwithstanding the above, Lender, at Lender's sole
option, shall have the right to complete the Improvements with such changes or
modifications in the plans and specifications therefor which Lender reasonably
deems necessary for the completion of the Improvements, and expend such sums as
Lender deems proper in order so to complete the Improvements. The amount of any
and all expenditures made by Lender shall be immediately due and payable by
Guarantor to Lender.
3. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby
represents and warrants that such Guarantor has a financial interest in the
Borrower, that the Loan extended by the Lender to the Borrower enhances that
financial interest, that this Guarantee is given in consideration of the Lender
making the Loan to the Borrower and that such Guarantor has examined or has had
the full opportunity to examine each of the Loan Documents.
4. ALTERATION OF OBLIGATIONS. In such manner, upon such terms and
at such times as Lender and Borrower deem best and without notice to Guarantor,
Lender and Borrower may alter, compromise, accelerate, extend, renew or change
the time or manner for the payment of any indebtedness or the performance of any
obligation hereby guaranteed, increase or reduce the rate of interest on the
Note, release Borrower, by acceptance of any deed in lieu of foreclosure or
otherwise, as to all or any portion of the obligations hereby guaranteed,
release, substitute or add any one or more guarantors or endorsers, accept
additional or substituted security therefor, or release or subordinate any
security therefor. No exercise or non-exercise by Lender of any right available
to Lender, no dealing by Lender with Guarantor or any other guarantor, endorser
of the note or any other person, and no change, impairment or release of all or
a portion of the obligations of Borrower under any of the Loan Documents or
suspension of any right or remedy
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of Lender against any person, including, without limitation, Borrower and any
other such guarantor, endorser or other person, shall in any way affect any of
the obligations of Guarantor hereunder or any security furnished by Guarantor or
give Guarantor any recourse against Lender. To the extent permitted by law, if
Lender has exculpated Borrower from personal liability in whole or in part
and/or agreed to look solely to the property covered by the Deed of Trust for
the satisfaction of Borrower's obligations under the Loan Documents, said
exculpation and agreement shall not affect the obligations of Guarantor
hereunder, since Guarantor acknowledges that its obligations hereunder are
independent of the obligations of Borrower and are to be construed as if no such
exculpation or agreement had been given to Borrower by Lender. Guarantor further
acknowledges that if any such exculpation or agreement has been given to
Borrower, Lender has done so in reliance upon the covenants of Guarantor
contained herein.
5. WAIVER. To the extent permitted by law, Guarantor hereby
waives and relinquishes all rights and remedies accorded by applicable law to
guarantors and agrees not to assert or take advantage of any such rights or
remedies, including, without limitation, (a) any right provided by NRS 40.430,
or any other statute or decision, to require Lender to proceed against Borrower
or any other person or to proceed against or exhaust any security held by Lender
at any time or to pursue ]any other remedy in Lender's power before proceeding
against Guarantor; (b) the defense of the statute of limitations in any action
hereunder or in any action for the collection of any indebtedness or the
performance of any obligation hereby guaranteed; (c) any defense that may arise
by reason of the incapacity, lack of authority, death or disability of any other
person or persons or the failure of Lender to file or enforce a claim against
the estate (in administration, bankruptcy or any other proceeding) of any other
person or persons; (d) demand, protest and notice of any kind, including,
without limitation, notice of the existence, creation or incurring of any new or
additional indebtedness or obligation or of any action or non-action on the part
of Borrower, Lender, any endorser or creditor of Borrower or Guarantor or on the
part of any other person whomsoever under this or any other instrument in
connection with any obligation or evidence of indebtedness held by Lender as
collateral or in connection with any indebtedness hereby guaranteed; (e) all
rights and defenses arising out of an election of remedies by Lender, even
though that election of remedies such as nonjudicial foreclosure with respect to
security for any obligation guaranteed hereby, has destroyed the Guarantor's
rights of subrogation and reimbursement against the principal by operation of
applicable law; (f) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal; (g) any duty on the
part of Lender to disclose to Guarantor any facts Lender may now or hereafter
know about Borrower, regardless of whether Lender has reason to believe that any
such facts materially increase the risk beyond that which Guarantor intends to
assume or has reason to believe that such facts are unknown to Guarantor or has
a reasonable opportunity to communicate such facts to Guarantor, since Guarantor
acknowledges that it is fully responsible for being and keeping informed of the
financial condition of Borrower and of all circumstances bearing on the risk of
non-payment of any indebtedness hereby guaranteed; (h) any defense arising
because of Lender's election, in any
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proceeding instituted under the Federal Bankruptcy Code, of the application of
Section 111l(b)(2) of the Federal Bankruptcy Code; (i) any defense based on
any borrowing or grant of a security interest under Section 364 of the Federal
Bankruptcy Code; and (j) any claim, right or remedy which any Guarantor may now
have or hereafter acquire against Borrower that arises hereunder and/or from the
performance by any Guarantor hereunder, including, without limitation, any
claim, right or remedy of Lender against Borrower or any security which Lender
now has or hereafter acquires, whether or not such claim, right or remedy arises
in equity, under contract, by statute, under common law or otherwise.
6. SUBORDINATION. To the extent permitted by law and effective
upon an Event of Default under the Loan Agreement, all existing and future
indebtedness of Borrower to Guarantor and the right of Guarantor to withdraw any
capital invested by Guarantor in Borrower is hereby subordinated to all
indebtedness hereby guaranteed and, without the prior written consent of Lender
such subordinated indebtedness or capital shall not be paid or withdrawn in
whole or in part nor will Guarantor accept any payment of or on account of any
such indebtedness or as a withdrawal of capital while this Guarantee is in
effect. At Lender's request following an Event of Default under the Loan
Agreement, Guarantor shall cause Borrower to pay to Lender all or any part of
such subordinated indebtedness and any capital which Guarantor is entitled to
withdraw. Each such payment by Borrower in violation of this Guarantee shall be
received by Guarantor in trust for Lender, and Guarantor shall cause the same to
be paid to Lender immediately upon demand by Lender on account of the
indebtedness to Lender guaranteed hereunder. No such payment shall reduce or
affect in any manner the liability of Guarantor under this Guarantee.
7. BANKRUPTCY. So long as any indebtedness shall be owing to
Lender, Guarantor shall not, without the prior written consent of Lender,
commence, or join with any other person in commencing, any bankruptcy,
reorganization, or insolvency proceeding against Borrower. The obligations of
Guarantor under this Guarantee shall not be altered, limited or affected by any
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Borrower, or by any
defense which Borrower may have by reason of any order, decree or decision of
any court or administrative body resulting from any such proceeding.
8. CLAIMS IN BANKRUPTCY. Guarantor shall file in any bankruptcy
or other proceeding in which the filing of claims is required or permitted by
law all claims which Guarantor may have against Borrower relating to any
indebtedness of Borrower to Guarantor and will assign to Lender all rights of
Guarantor thereunder. If Guarantor does not file any such claim, Lender, as
attorney-in-fact for Guarantor, is hereby authorized to do so in the name of
Guarantor or, in Lender's discretion, to assign the claim to a nominee and to
cause proof of claim to be filed in the name of Lender's nominee. The foregoing
power of attorney is coupled with an interest and cannot be revoked. Lender or
its nominee shall have the sole right to accept or reject any plan proposed in
such proceeding and to take any other action which a party filing a claim is
entitled to do. In all
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such cases, whether in administration, bankruptcy or otherwise, the person or
persons authorized to pay such claim shall pay to Lender the amount payable on
such claim and, to the full extent necessary for that purpose, Guarantor hereby
assigns to Lender all of Guarantor's rights to any such payments or
distributions to which Guarantor would otherwise be entitled; provided, however,
that Guarantor's obligations hereunder shall not be deemed satisfied except to
the extent that Lender receives cash by reason of any such payment or
distribution. If Lender receives anything hereunder other than cash, the same
shall be held as collateral for amounts due under this Guarantee. If at any time
the holder of the Note is required to refund to Borrower any payments made by
Borrower under the Note because such payments have been held by a bankruptcy
court having jurisdiction over Borrower to constitute a preference under any
bankruptcy, insolvency or similar law then in effect, or for any other reason,
then in addition to Guarantor's other obligation under this Guarantee, Guarantor
shall reimburse the holder in the aggregate amount of such refund payments.
9. INTEREST AND COSTS. If Borrower or Guarantor fails to pay all
or any portion of the indebtedness hereby guaranteed upon demand by Lender, the
amount of such indebtedness shall thereafter bear interest at the rate then
applicable under the Note. Guarantor shall also pay Lender's reasonable
attorneys' fees and all costs and other expenses which Lender expends or incurs
in collecting or compromising any such indebtedness or in enforcing this
Guarantee against Guarantor, whether or not suit is filed, including, without
limitation, all such fees, costs and expenses incurred in connection with any
insolvency, bankruptcy, reorganization, arrangement or other similar proceedings
involving Guarantor which in any way affect the exercise by Lender of its rights
and remedies hereunder.
10. CUMULATIVE RIGHTS. The amount of Guarantor's liability and all
rights, powers and remedies of Lender hereunder and under any other agreement
now or at any time hereafter in force between Lender and Guarantor, including,
without limitation, any other guarantee executed by Guarantor relating to any
indebtedness of Borrower to Lender, shall be cumulative and not alternative and
such rights, powers and remedies shall be in addition to all rights, powers and
remedies given to Lender by law. This Guarantee is in addition to and exclusive
of the guarantee of any other guarantor of any indebtedness of Borrower to
Lender.
11. INDEPENDENT OBLIGATIONS. The obligations of Guarantor
hereunder are independent of the obligations of Borrower and, to the extent
permitted by law, in the event of any default hereunder, a separate action or
actions may be brought and prosecuted against Guarantor whether or not Borrower
is joined therein or a separate action or actions are brought against Borrower.
Lender may maintain successive actions for other defaults. Lender's rights
hereunder shall not be exhausted by its exercise of any of its rights or
remedies or by any such action or by any number of successive actions until and
unless all indebtedness and obligations, the payment and performance of which
are hereby guaranteed, have been paid and fully performed.
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12. SEVERABILITY. Should any one or more provisions of this
Guarantee be determined to be illegal or unenforceable, all other provisions
hereof shall nevertheless remain in full force and effect.
13. SUCCESSORS AND ASSIGNS. This Guarantee shall inure to the
benefit of Lender, its successors and assigns, including the assignees of any
indebtedness hereby guaranteed, and shall bind the heirs, executors,
administrators, personal representatives, successors and assigns of Guarantor.
This Guarantee may be assigned by Lender with respect to all or any portion of
the indebtedness hereby guaranteed, and when so assigned Guarantor shall be
liable to the assignees under this Guarantee without in any manner affecting the
liability of Guarantor hereunder with respect to any indebtedness retained by
Lender.
14. NOTICES. Whenever Guarantor or Lender shall desire to give or
serve any notice, demand, request or other communication with respect to this
Guarantee, each such notice shall be in writing and shall be effective only if
the same is delivered by personal service, by telefax or mailed by registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
To Lender: U.S. BANK OF NEVADA
COMMERCIAL SERVICES GROUP
0000 X. XXXXXX XXXXXX, XXXXX 000, XXX 00
XXX XXXXX, XXXXXX 000000
To Guarantor: SENIOR TOUR PLAYERS DEVELOPMENT, INC.
000 XXXXXX XXXXXX
XXXXXX, XXXXXXXXXXXXX 00000
XXXXXXXX XXXX
00000 Xxxxxxxxxx Xx.
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Xxxxxxx Xxxx, Xxxxxxxxxx 00000
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Any such notice delivered personally shall be deemed to have been
received upon delivery. Any such notice sent by telefax shall be presumed to
have been received by the addressee one (1) business day after its acceptance
for sending by an authorized carrier thereof. Any such notice sent by mail shall
be presumed to have been received by the addressee three (3) business days after
posting in the United States mail. Any party to whom any such notice is to be
sent hereunder may change its address by giving the other such parties written
notice of its new address as herein provided.
15. APPLICATION OF PAYMENTS OR RECOVERIES. With or without notice
to Guarantor, Lender, in Lender's sole discretion and at any time and from time
to time and in such manner and
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upon such terms as Lender deems fit, may (a) apply any or all payments or
recoveries from Borrower or from any other guarantor or endorser under any other
instrument or realized from any security, in such manner and order of priority
as Lender may determine, to any indebtedness of Borrower to Lender, whether or
not such indebtedness is guaranteed hereby or is otherwise secured or is due at
the time of such application; and (b) refund to Borrower any payment received
by Lender upon any indebtedness hereby guaranteed and payment of the amount
refunded shall be fully guaranteed hereby.
16. FINANCIAL STATEMENTS. Guarantor hereby represents and warrants
that the most recent financial statements of Borrower and Guarantor heretofore
delivered to Lender are true and correct in all material respects, have been
prepared in accordance with generally accepted accounting practices consistently
applied and fairly present the financial condition of Borrower and Guarantor as
of the respective dates thereof and for the period(s) covered thereby, and no
material adverse change has occurred in the financial condition or prospects of
Borrower or Guarantor since the respective dates thereof.
17. RIGHTS AND REMEDIES. Guarantor understands that the exercise
by Lender of certain rights and remedies contained in the Deed of Trust may
affect or eliminate Guarantor's right of subrogation against Borrower and that
Guarantor may therefore incur partially or totally nonreimbursable liability
hereunder. Nevertheless, to the extent permitted by law, Guarantor hereby
authorizes and empowers Lender, its successors, endorsees and/or assigns, to
exercise in its or their sole discretion, any rights and remedies, or any
combination thereof, which then may be available, it being the purpose and
intent of Guarantor that the obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances.
18. SETOFF. Lender shall have a right of setoff against all
monies, securities and other property of Guarantor now or hereafter in the
possession of, or on deposit with, Lender, whether held in a general or special
account or deposit, or for safekeeping or otherwise. Such right is in addition
to any right of setoff Lender may have by law. All rights of setoff may be
exercised without notice or demand to Guarantor. No right of setoff shall be
deemed to have been waived by any act or conduct on the part of Lender, or by
any neglect to exercise such right of setoff, or by any delay in doing so. Every
right of setoff shall continue in full force and effect until specifically
waived or released by an instrument in writing executed by Lender.
19. MISCELLANEOUS.
(a) This Guarantee shall be governed by and construed in
accordance with the laws of the State of Nevada. Guarantor hereby consent to
the jurisdiction of any competent court within the State of Nevada and consents
to service of process by any means authorized by Nevada law in any action
brought under or arising out of this Guarantee.
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(b) Except as provided in any other written agreement now
or at any time hereafter in force between Lender and Guarantor, this Guarantee
shall constitute the entire agreement of Guarantor with Lender with respect to
the subject matter hereof, and no representation, understanding, promise or
condition concerning the subject matter hereof shall be binding upon Lender
unless expressed herein.
(c) The obligations of all persons signing this Guarantee
as Guarantor shall be joint and several.
(d) When the context and construction so require, all
words used in the singular herein shall be deemed to have been used in the
plural and the masculine shall include the feminine and neuter and vice versa.
The word "person" as used herein shall include any individual, company, firm,
association, partnership, corporation, trust or other legal entity of any kind
whatsoever.
(e) No provision of this Guarantee or right granted to
Lender hereunder can be waived in whole or in part nor can Guarantor be released
from Guarantor's obligations hereunder except by a writing duly executed by an
authorized officer of Lender.
(f) Until all indebtedness of Borrower to Lender has been
paid in full, Guarantor shall have no right of subrogation and hereby waives any
right to enforce any remedy which Lender now has or may hereafter have against
Borrower and any benefit of, and any right to participate in, any security now
or hereafter held by Lender.
(g) Lender need not inquire into the power of Borrower or
the authority of its partners, officers or agents acting or purporting to act on
its behalf.
(h) The headings of this Guarantee are inserted for
convenience only and shall have no effect upon the construction or
interpretation hereof.
Executed as of the date first above written.
SENIOR TOUR PLAYERS DEVELOPMENT, INC.,
A NEVADA CORPORATION,
BY: /s/ XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX
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ITS: MANAGER
/s/ XXXXXXXX XXXX
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XXXXXXXX XXXX
"GUARANTOR"
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STATE OF NEVADA )
)ss.
COUNTY OF XXXXX )
This instrument was acknowledged before me on 15 January, 1997, by Xxxxxxx
X. Xxxxxx, as President of Senior Tour Players Development, Inc.
/s/ Xxxxxx Xxxxxxx
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[Notary Public Seal] Xxxxxx Xxxxxxx
Notary Public
My Commission Expires: 15 Nov. 1997
STATE OF NEVADA )
)ss.
COUNTY OF XXXXX )
This instrument was acknowledged before me on 15 January, 1997, by
Xxxxxxxx Xxxx
/s/ Xxxxxx Xxxxxxx
-----------------------------------
[Notary Public Seal] Xxxxxx Xxxxxxx
Notary Public
My Commission Expires: 15 Nov. 1997
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