HomeMy WebLinkAboutResolution - 6229 - Estoppel Certificate & Agreement - Fore Star Golf Inc. Best Scan Possible - 03_11_1999Resolution No. 6229
Item No. 31
March 11, 1999
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute on behalf of the City of Lubbock an Estoppel Certificate and
Agreement, and any associated documents, by and between the City of Lubbock, Fore
Star Golf, Inc., Fore Star Golf of Lubbock, and NationsCredit Commercial Corporation,
which Agreement is attached hereto and which shall be a part of this Resolution as if fully
copied herein in detail.
Passed by the City Council this 11th day of March , 1999.
D4S-ONMAYOR
ATTEST:
Kayt e arnellI City Secretary
APPROVED AS TO CONTENT:
Tommy CMnzalezLN4aA&ging Director for
Civic Services
APPROVED AS TO FORM:
I�y iald G. Vandiver, First Assistant City
Attorney
DDres/Forestar..res. doc
March 4, 1999
Resolution No. 6229
Item No. 31
March 11, 1999
ESTOPPEL CERTIFICATE AND AGREEMENT
THE STATE OF TEXAS §
COUNTY OF L UBBOCK §
TIIIS ESTOPPEL CERTIFICATE AND AGREEMENT (this "Agreement') is
entered into as of the 11th day of March . 1999, among the CITY OF
LUBBOCK, TEXAS, a home -rule city of the State of Texas duly organized and existing
pursuant to its charter and the laws of the State of Texas (the "City"), FORE STAR
GOLF, INC., a Nevada corporation ("FSG"). FORE STAR GOLF OF LUBBOCK, a
Texas limited liability company ("FSGL"), and NATIONSCREDIT COMMERCIAL
CORPORATION, a Delaware corporation ("Lender").
Recitals
A. The City is the owner of two public golf courses located in Lubbock
County, Texas, which are commonly known as the "Meadowbrook Golf Course" and the
"Squirrel Hollow Golf Course" (the "Golf Course").
B. The City and FSG are parties to a Management Agreement dated as of
October 14. 1994 (the "Management Agreement") and an Amendment thereto dated May
22, 1997, pursuant to which FSG has agreed to manage the Golf Courses for the City.
C. The rights and obligations of FSG under the Management Agreement are
being assigned by FSG to FSGL pursuant to an Assignment of Management Agreement,
a draft copy of which is attached hereto as Exhibit A (the "Assignment").
D. FSGL and one or more affiliated entities desire to obtain a loan frorn
Lender in the principal amount of $5.400,000.00 (the "Loan"), to be secured by, among
other things, all of FSGL's rights under the Management Agreement. A draft copy of the
Collateral Assignment of the Management Agreement from FSGL to Lender is attached
hereto as Exhibit B (tile "Collateral Assignment"').
E. It is a condition to FSG's ability to assign the Management Agreement to
FSGL, and a condition to Lender's willingness to make the Loan, that the City consent to
the assignment of the Management Agreement to FSGL and to the collateral assignment
of the Management Agreement to Lender, and that the City confirm certain facts and
make certain agreements for the benefit of the Lender. By execution of this Agreement
the City agrees to said Assignment and Collateral Assignment, so long as said agreements
are linally executed in identical terms to the draft agreements attached hereto as Exhibit
A and Exhibit B.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
I. Incorporation of Recitals. The Recitals set forth above are hereby
incorporated into and made a part of this Agreement.
2. Estoppel Certificate. The City hereby confirms the following:
(a) the Golf Courses are owned by the City, and the City has not made
any assignment or transfer of, or created any options, purchase rights or other
interests in, the Golf Courses, with the exception of the Management Agreement,
and no consent or approval of any other person or entity is required in order for
the city to enter into, or as a condition to the effectiveness of, this Agreement;
(b) The Management Agreement has been amended by an Amendment
executed by the parties upon May 22, 19971 and it has not otherwise been
amended or modified in any respect;
(c) to the best of the City's knowledge, FSG has performed and
observed all of its covenants and conditions under the Management Agreement,
and is not in default under the Management Agreement in any respect;
(d) the "Phase I Capital Improvements" required by Section 2.2 of the
Management Agreement have been completed to the satisfaction of the City;
(e) Exhibit C attached hereto sets forth a list of the "Phase II Capital
Improvements" that have been completed to date, as well as a list of all Phase 11
Capital Improvements that are currently underway or contemplated; and
(f) FSG has furnished all bonds, letters of credit and other security
instruments required under terms of the Management Agreement.
3. Consent to Assi nment. The City hereby consents to the Assignment of
the Management Agreement to FSGL so long as the Assignment is finally executed in
identical terms to the draft Assignment attached hereto as Exhibit A. FSGL agrees that it
shall immediately assume and become liable to the City for all future obligations of the
Manager under the Management Agreement. FSG agrees that, notwithstanding this
Assignment, it shall remain jointly and severally liable with FSGL for the performance of
all obligations of the manager under the Management Agreement,
4. Consent to Collateral Assigning , The City hereby consents to the
collateral assignment of FSGL's rights under the Management Agreement to Lender, as
security for the Loan so long as said Collateral Assignment is finally executed in identical
terms to the draft Collateral Assignment attached hereto as Exhibit B.
5. Amendments to Management Agreement. Until such time as the Loan has
been repaid in full, (a) no modifications or amendments to the Management Agreement
may be entered into or approved by FSGL without Lender's prior written consent, which
shall not be unreasonably withheld, (b) no consensual termination of the Management
Agreement, and no termination of the Management Agreement by FSGL pursuant to
Section 1.13(b) or 1.13(c) of the Management Agreement, shall be effective without
Lender's prior written consent, and 9c) no exercise by FSGL of the purchase option
contained in Section 7.1 of the Management Agreement (and no notice delivered by
FSGL pursuant to Section 7.1(a) of the Management Agreement) shall be effective
without Lender's prior written consent.
6. Notice and Cure Rights. Prior to terminating the Management Agreement
or exercising any other right or remedy thereunder as a result of a default by FSGL, the
City shall give Lender written notice of the pertinent default by FSGL. Lender shall have
the right to remedy such default for a period of ten (10) days as to monetary defaults and
thirty (30) days as to other covenants, agreements and obligations after receipt of notice;
provided, however, (a) if any non -monetary defaults are of a nature that they cannot be
completely corrected within such thirty (30) day period, then such defaults shall be
deemed to have been remedied if Lender commences the cure thereof within such thirty
(30) day period and proceeds to complete such cure with reasonable diligence thereafter;
and (b) Lender shall have such longer period to correct any such non -monetary defaults
as may be required to complete any remedial actions which Lender elects to pursue in
order to become the manager under the Management Agreement, including, but not
limited to any delays which Lender may encounter as a result of a bankruptcy proceeding
instituted by or on behalf of FSGL or by a creditor of FSGL, so long as during such
longer period FSGL performs the covenants of the manager under the Management to the
extent the same can be performed without having completed such remedial actions.
However, any non -monetary defaults which cannot reasonably be cured by Lender even
after completion of Lender's remedial actions against FSGL shall be considered excused,
provided that Lender, upon completing its remedial actions and becoming the manager
under the Management Agreement, shall assume all of the obligations of the manager
under the Management Agreement for so long as Lender is the manager thereunder.
7. Right to Become Manager. Notwithstanding anything to the contrary in
the Management Agreement, the City agrees that in the event of a default by FSGL under
the Loan, Lender or its affiliate may become the manager under the Management
Agreement by foreclosing or otherwise realizing upon its rights under the documents
governing the Loan. In the event that Lender or its affiliate becomes the manager under
the Management Agreement in such fashion, (a) Lender or its affiliate shall be deemed to
have assumed the obligations of the manager under the Management Agreement during
the period that it is the manager thereunder; (b) Lender or its affiliate may discharge its
duties under the Management Agreement by engaging one or more management
companies or other persons or entities to carry out the actual management and operation
of the Golf Courses; it being understood that Lender is not itself in the golf course
management business; (c) Lender or its affiliate shall have the right to further assign the
obligations of the manager under the Management Agreement to a third -party
management company with the prior written consent of the City, which shall be granted
if the City reasonably determines that the proposed assignee is experienced in the
business of managing golf courses and is otherwise capable of performing the duties of
the manager under the Management Agreement, and (d) upon any such assignment,
Lender or its affiliate shall be relieved of any further obligations or liabilities under the
Management Agreement,
8. New Agreement. If the Management Agreement is ever terminated as a
result of a default by FSGL, the City agrees that it will consider entering into a new
management agreement (the "New Agreement") for the Golf Courses with Lender or an
affiliate of Lender ( the "New Manager") for the remainder of the term of the
Management Atreernent, effective as of the date of such termination. upon the same
terms and conditions contained in the Management Agreement: provided however, that:
(a) the New Manager shall make written request for the New Agreement within thirty
(30) days after the date it is notified of the termination of the Management Agreement;
(b) the New Manager shall cure all defaults under the Management Agreement which
remain uncured as of such date to the extent the same can be reasonably cured. and (c)
the New Manager shall pay or cause to be paid to the City all expenses, including
reasonable attorneys' fees, incurred by the City in comiection with any such default and
termination as well as in connection with the execution and delivery of the New
Agreement.
9. Accounts. The City recognizes that in connection with the Loan, Lender
shall take a security interest in all amounts that FSGL is entitled to receive under terms of
the Management Agreement, as well as a security interest in all amounts in any bank
accounts containing funds that FSGL is entitled to receive pursuant to the Management
Agreement (the "Accounts"), including without limitation the Deposit Account and the
Capital Fund (as such terms are defined in the Management Agreement). The City
consents to such security interests and agrees that Lender may enter into such agreements
with respect to the Accounts as it deems advisable in order to protect its interests in
amounts that may be placed therein. Lender agrees that it shall not seize or otherwise
obtain any amounts in the Accounts prior to a default by FSGL under the Loan and
Lender's election to assume the obligations of FSGL under the Management Agreement,
either itself or through an affiliate. In no event shall Lender have any interest in funds of
the City in the General Account (as defined in the Management Agreement).
10. Termination Payments. If, pursuant to Section 8.6 of the Management
Agreement, or otherwise, FSGL is entitled to any payments from the City as a result of
the termination of the Management Agreement, such payments shall be made directly to
Lender, until such time as Lender advises the City that the Loan has been repaid in full.
11. Notices. Any notice which any party hereto may be required or may
desire to give hereunder shall be delivered personally, mailed, postage prepaid, by United
States registered or certified mail, return receipt requested, or sent by overnight express
courier, addressed as follows:
4
If to the City:
City of Lubbock, Texas
Municipal Building
1625 Thirteenth Street
Lubbock, Texas 79401
Attn: Director of Culture/Leisure and Recreation
If to FSG:
Fore Star Golf, Inc.
301 Commerce, Suite 1470
Fort Worth, Texas 76102
Attn: Gary G. Miller
If to FSGL:
Fore Star Golf of Yuma, LLC
301 Commerce, Suite 1470
Fort Worth, Texas 76102
Attn: Gary G. Miller
If to Lender:
NationsCredit Commercial Corporation
187 Danbury Road
Wilton, Connecticut 06897
Attn: Vice President Golf & Recreational Finance
or at such other addresses or to the attention of such other persons as may from
time to time be designated by the party to be addressed by written notice to the other in
the planner herein provided. Notices, demands and requests given in the manner
aforesaid shall be deemed sufficiently served or given for all purposes hereunder when
received or when delivery is refused or when the same are returned to sender for failure
to be called for.
12. Termination Upon Repayment of Loan. This Agreement shall terminate
as to Lender and be of no further force or effect at such time as the Loan has been repaid
in full. However, the portions of this Agreement pertaining to the approval of the
Assignment of the Management Agreement by FSG to FSGL shall not be affected
thereby and shall continue to be in frill force and effect.
13. Amendments and Binding_ Effect. This Agreement may be modified only
by an agreement in writing signed by the parties hereto. This Agreement shall inure to
the benefit of and be binding upon the parties hereto, together with their permitted
successors and assigns.
5
14. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Texas and the United States of America.
15. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
16. Further Assurances. Each of the parties to this Agreement agrees that it
will without further consideration execute and deliver such other documents and take
such other actions as may reasonably be requested by any other party to this Agreement
in order to consummate more effectively the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CITY:
CITY OF LUBBOCK, TEXAS
r
WINDY SI' "ON, MAYOR
ATTEST:
",L��4wx -
KaytJ e Darnell, City Secretary
APPROVED AS TO CONTEN'l
Tommy Go aiez, ManaAg Director
for Civic Services
—AZPROVED AS TO RM:
79L&2m�
Vonald G. Vandiver, First Assistant
City Attorney
FSG:
FORE STAR GOLF, INC.
A Nevada Corporation
By:
Name:,r' +�
Title:
FSGL:
Fore Star Golf of Lubbock,
A Texas Limited Liability Company
By:
Name: _ `� I fig lJ�04
Title: i7VzC" � V-,- T
LENDER
NationsCredit Commercial Corporation
A Delaware Corporation
By: i �� bi.
Its Authorized Signatory
I'4HF Q_� '?9 10:ck__HH HILLEP STPATWRT P P 505 n Eli
P.I
DANA M.KYLE, ESQ.
Miller, Stramerr & Torgerson, P.A.
P. 0. B= 1209
Las Cruces, New Mexico 88004
(505) 523.2481
Fax (505) 526.2215
FAX COVER SHEET
FAX NUMBER TRANSMITTED TO: 906-775-3307
To:
Donald G. Vandiver
From
Dana M. Kyle
Date:
March 2. 1999
Re.
Fore Star Golf, Inc.
�. •a Ali i1,�11 • 11 - f - Il.dil _ Aii.�,aulr �
MESSAGE, The following is a draft of the Assigcunent of Management Agreement with your
suggested changes, P6ease call me if you have any further Changes and/or questions.
Dana
' NOT COUNTING COVER S=T. IF YOU DO NOT RECEIVE Ajjm PAQES, PLEASE TMXPHONE US D& EMTELY
AT (305) 523-2481.
Exklblt A
f t� V-' "�"- 10: 02J419 HILLEF STPHTVEPT P H 505 n`='6=15 P.
THIS ASSIGNMENT OF MANAGEMENT ACrREEMENT (this "Amigaest") is made
by FORE STAR GOLF, INC., a Nevada corporation, whose address is 301 Commerce, Suite
1470, Fort Worth, Texas 76102 ("&fl2n, in favor of FORE STAR GOLF OF LUBBOCkK,
LLC, a Texas limited liability company, whose address is 301 Commerce, Suite 1470, Fort
Worth, Texas 76102 ("Ass! 1).
U1777 7
A. On October 7, 1994, the City of Lubbock, Texas (the "may") and Fore Stu Golf"
Inc. ("FM") entered into a certain Management Agreement (the "),
pursuant to which FSG obtained the right and obligation to manage the golf courses and related
facilities located in Lubbock, Texas which are commonly known as the "Meadowbrook Golf
Course" and the "Squirrel Hollow Golf Course" (the "Gglf Comm").
B. On January 29, 1999, FSG established a new single purpose entity for the purpose
of holding FSG's interest in the Management Agreement, said entity being Fore Star Golf of
Lubbock, LLC, Assignee herein, t Texas limited liability company, with FSG being the only
Member thereof.
C. In accordance with Article One, Section 1.1S of the Management Agreement,
FSO desires to assign its interest in the Management Agreement to Assignee.
Assignment
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor hereby absolutely and irrevocably assigns and
transfers to Assignee all Assignor's right, title and interest in the Management Agreement, as
amended, and all Assignor's rights thereunder.
As a result of this Assignment, the Assignees will have all rights previously held by FSG
as Manager under the Management Agreement, including, but not limited to the right to
(i)receive Golfing Revenues. revenues from the operation of golf pro shops, restaurants and
concessions, and all other revenues of any type that Assignor is entitled to receive under the
terms of the Management Agreement, (ii) all Assignor's rights in the Deposit Account and the
Capital Fund, together with all amounts at any time placed therein, and (c) all other rights and
remedies of Assignor relating in any way to the Management Agreement.
IN WITNESS WHEREOF, Assignor has executed and delivered this Assignment as of
the date first above written.
114-e U1- "z'4 1L21:0LI-4.1 HILLER STPHTVERT P H CUB` 5262215 F.
FORE STAR GOLF, INC., a Nevada corporation
By:
Assignee's Acceptance
The undersigned hereby accepts this assignment of Assignor's interest in the
Management Agreement and agrees to perform all of the duties and obligations of the
Management Agreement in accordance with its terms.
FORE STAR GOLF OF LUBBOCK, LLC,
a Texas limited liability company
By:
Fore Star Golt Inc., Member
STATE OF )
ss.
COUNTY OF )
of
On this, the day of 1999, before me, the undersigned
officer, personally appeared . who acknowledged
himself to be the of Fore Star Gol& Inc., a Nevada corporation, and
that he is, as such _ _ _ . being authorized so to do, executed the
foregoing Assignment of Management Agreement for the purposes therein contained. ,
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Commission expires.
Notary Public
2
IFS 2 '99 10:13a4l HILLEF STF,'HTVEP.T P P F05 P.-4
STATE OF )
ss.
COUNTY OF )
On this, the day of 1999, before me, the undersigned
officer, personally appeared - , who acknowledged
himself to be the of Fore Star Golf Inc., a Nevada corporation, as
Member of Pore Star Golf of Lubbock, LLC, a Tens limited liability company, and that he, as
such being authorized so to do, executed the foregoing
Assignment of Management Agreement for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Commission expires:
Notary Public
3
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f
OTTEN, 1OHNsON, RowNSON, NEFF & �AGONRTT1, P.C.
ATTORNEYS AND COUNSELORS A LAW
SUITE 1600 ,
0&0 SEVENTEENTH STREET �
DENVER.COLORADO aU202
TELEPNQWE 303-825-8400 +I
FacsliAiLE 303-825-6525
DATE: March 1,1999
DFuVLA T(,): DortisEd G. Vandiver, Esq. FACSIMILF NU.:
COMPANY. (_'it}► of Luhba& RHONF NO.:
I
1-806-775-3307
FROM- Mikael Westover SFND�R'S uiRECr DIAL: (303) 575-75I4
TOTAi_ NUMBER OF PAGF,S (iNC'LUDING THIS LOVER SHEET): I � Fi1.E -NQ.: 14090-NS
1F YOU DO NOT KECEiVE ALL PAGES, PUFASE CAi_L 30*825-8400 AS SOON AS POSSIBLE
COMMENTS: As attached
7'he information contaiaad in this facsimile menage is auor to prtviieged and coeTidcatial information
intended only for the use of the individual or entity named abox*. Ii the reader of this menage U not the
intended recipient, you are hereby motif" that any diase"ivation. distribution or copying of this
c►►maRwicatioe is strictly proiibitwL If you have received this ebmmanication le error, please immediately
notify as by telephone, and retoro the or%*ai of this tmusn6ittsl to as at the above addrew via the
U.S. Pwul Scryke- Thank yon. i
39 Z1.1 Mwbirl 4341"a1! of
Fax Operator-
le)<W, � *%,t- I? I
i
I
O'ITEN. JoHNsoN. RoeijrsoN. NEB KAoONETTi.
ATTORME"YS AMD COUNSELORS LAW
I
050 SLYENTEENTH STREET
SUITE MOO �
DEMVEIi C010RAD0 6OZ02
t
XKRAEL WKSMVVIK TELIEPHgNE 303-82€5-040�
DOWT 01AL (%3) Sl.-T314 FAX $03-823-8'S25
March 1, 1999
BY FACsitm)LE 806-775-3307
0mald G. Vandiver, Esq.
City of Lubbock
P_O. Box 2000
Lubbock, Texas 79457
Re: E,are SLK Golf
Dear Mr. Vandiver:
Our firm is working with NationsCredit t : ercial Corporation in connection
with the proposed loan to Fore Star Crolf of Lubbock, LC and certain related entities. I
understand that you are working with Martha McKeon; of Nation4Credit in finalizing thu
language of the Fstoppel Certi licatc and Agreement lthe "AGgreenient '). Y ani att.aahing a rcvised
dull of the Collateral Assigmnew orManagtment Ag-reeniolt, to be attached as ExhiW B to the
Agreement. The chmige you requested in your fax to Ms McKeon has betni made, and the
document is now called Collateral Assignmcnt of Nl=agement Agrcc`ment,
Please call if you have any questions ar� fiutber comments concewfing the
Collateral Assignment,
l
Vcry htuly +ours,
Mlchacl Wlestover
for!
OTTEN, JO�msON, ROBINSON,
NEFF c[ RACONFrn, P.C.
MWIgm
Attachment
CC'- Martha i1�f_ McKc;ou, Esq. (wlavachment - by tacsiroile)
JW.235.t
JL.tiI U1-V11"% JVlII%JVIIf IXVLII.`IJVAI 0— 1'JJ • III V/i01 - VJN%N JU0 ®_J 011f—J-k0-1-1VjUtVV0r10UVid— Q1 V
COLLATFRAL ASSIGNMENT OF hiANAOEMENT AGREEMENT
TIES LOLLAFFFRAL ASSIGNMENT 4 MANAGEMENT ACREFMENT
(this "A Agn.tncnt") is made by FORE STAR GOLF OFF LUBBOCK, LLC, a Texas billited
liability company, whose address is 301 Comi-nrrce, Site 1470, port Worth, Texas 76102
("As_Sip,nor"), in favor of NATIONSCRIFOIT COMMER(UL CORPORATION, a Delaware
corporation, whose address is 187 Danbury Road. Wilton, Lonneeticut 06897 ("Assignee").
Recit'Is
A. On October 7, 1994, the City of Lubbock, Texas (the "Q1y") mid Fore
Star Golf, Inc. ("F Ci") entered into a certain Management AgTeement (the "Mi!,agCrrtent
Ajacement"), pur.4uattt to which FSG obtained the fight! and obligation to manage the golf
courses and related facilities located in Lubbock, Texas 'which are commonly known as the
`°Mc adowbrook Gulf Course- and the "Squirrel I %flow Golf Course" (the "Gaff Courses"). The
rights and obligations of FSG under the Management Agreement and any aatendnments thereto
have been assigned to and assumed by Assignor, and Assignor is presently the manager under the
Management Agreement, i
B. Subject to certain conditions. Assignee has ;agreed to lend $5,400,000.00
(the '-I uan�) to Assignor, Fore Slat Golf of Yuma, LLCJ and Sonoma Rauh Paatntrs_ LLC
(collectively, the -Borrowers-). The Loan is governed �y a Loan Agz-cement of even date
herewith between the Borrowers and Assignee (the. " Loan lA ent"), and is evidenced by a
Promissory Note or even date herewith front the Borrower to Assignee. The Loan Agreement,
the Promissory Note, this Assignment and all other documients executed in connection with. the
Loan are hereinafter collectively referred to as the "L' as D acumen " and an obligations of any
of the Borrowers under the Lmm Documents are hercina er referred to as the `0bligaitiuns_.,
Any capitalized wmus used but not otherwise defined in this Assignment shall have the rnmnings
assigned to such terms in the Loan Agreement,
C. It is a condition to Assignee's wiI fininess to make the Loan that Assignor
execute and deliver this Assignment to Assignee, as }cccttlity for the full payment and
peif orinancc of the Obligadhorts.
Assignment
NOW, THEREFORE,, for and valuable considematian, the receipt and sufficiency
of which are hereby acknowledged, Assignor hereby agrees with A5.46 mee as follows:
I
1. lncotporation of Recitals. The R�citals set forth above are hereby
incomporated into and made a part of this Assignment_
2. Assignment_ Assignor hercby as-og is, transfers, sets oven, pledges and
grants a security interest to Assignee in (a) all of Assi3or's right. title and interest in the
J'U,?S.1. MWESPD Q011199919 AM
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Management Agreement and all Assignors tights thereunder, 'including without limitation all
rights to receive Golfing Revenues, revenues frorn the opration of golf pro shops, restaurants
and conccssiona. and ull other revenues of any type that A -signor is cntitled to receive under thL
terms of the Management Agmement, (b). all Assignor's ! h6; in the Deposit Account and thc
Capital Fmid, together with all awounts at any time plac4xl therein, and (c) all other right; of
Assignor relating in any way to the Management Agmemeni (collectively, the "Collateral').
3. Rights Prior to De fault. Prior to any Event of Ifault, Assignor may
continue to exorcise its rights, interests and benefits under! and in accordance with the terms of
the Management Agreement.
4- Rights Followi ault-, Power of Aftorucv. Following any Event of
Default, Assignee shall have the right to exercise all rights of a secured patty with re_<q�ect to the
Collateral, including without limitation the right to take po;Tsession of any of the Collateral and,
at Assignee's option, to become the manager under the :Management Agreement. Assigmr
ap= that following any Event of Default, it shall upo� request from Assignee execute an
additiozi;al assignment of the Management Agreement, ' in form satisfactory to Assignee,
transferring and assigning the Management Agrtxrnent andA rights thereunder to Assigner_ In
furtherance of the foregoing, Assignor hereby appoints Assignee its true, lawful and irrevocable
attorney -in -fast., effective upon the occurOmce of an Event of Default to demand, iveeive and
enforce any rights, interests and benelts accruing to Assignor under the tcrrns of the
Management Agmcmcnt or otherwise relating in any way to the Collateral, and to execute any
assignments and other documents necessary to transfer or assign the Management Agreement or
any rights in the Collateral to Assignee_
Performance Uiidcr Mamizenu:nt Agreement. Assignor- covenants and
agrees as fol lows-.
(a) Assignor will promptly and fWly pertorrn all its obligations under
the Managente:nt Agreement, will permit no default diereunder and will conmiit no act (or
failure to actl that would or might result in terminatii n of the Matiagemcut Agmetnent or
adversely affect Assigmor's rights thereunder. Assignor will promptly notify Assignee of
any default or asserted default under the Management Agreement and will provide
Assignee the right and vppurtunity (but Assipire shall have rx) obligation) to cure any
such default or asserted default. Any amounts expegded by Assignee to cure any defaults
under the ' Managemcnt Agreement shall bec:vme part of the Obligations and shall be
unmediately duc and payable by Assignor to Assignee_
(b) Assipior shall promptly provide Assignee with copies of all
budgets, financial statetuents, opeiuting statements and other material com uniearions
provided by Assigmor to the City or by the City ,to Assignor in connection with the
operation of the Golf Courses, including without limitation all capital improvement
budgets that Assignor is required to submit W the City fi-OM time to time. Assignorshall
comply with all rNuirements of the City with respect to such budgets and other financial
statements. In particular, Assignor shall construct c 8pital and other improvemcnls on the
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Golf in accordmwe with c4pital improveni�t budgets approved by the City Emin
tune to time.
6. jijdemnjLy. Assignor hereby indemnifies and agrees to [told Assignee
harmless from and against any and all claim, damages, liabilities, costs and expenses incurred
by Assigneee as a result of this Assignment or arising ou of Assignee's exercise of its rights
under this Assignment following; an Event of Default„ incl ding any claims, damages, liabilities,
,costs and expenses incurred by Assignee in the event that I elects to become the manager of the
Golf Courses, but excluding any claims, damages, li4abiliti�s, costs and expenses resulting from
the gross negligence or willful misconduct of Assignee.
7. Further Assurances. Assignor shall execute such other documents, and
take Such additional actions, as Assi6mee may request tiro�j time to time, in order more fully to
carry out the purposes of this Assignment or protect ok perfect Assignee's interests in the
Management Agreement and the Collateral.
8. Miscellaneous_
(a) This Assign.4new is irrevocable and shall remain in frill force and
effect until the Obligations have been paid and satis�icd in fill.
(b) This Assignment shall he binding upon Assignor and its successors
and assigns, acid shall inure to the benefit of Assign}e and its successors and assigns.
I
(c) This Assignuiertt shall be go�erned by and construed iu accordance
with the laws of the State of CoringctiCut.
IN WITNESS WTTFREOF, Assignor has executed rid delivered this Assignment
as of the date lust above written.
FORT STAR GOLF OF LURBOC Y, .L.LC, a -Texas
limited babilil y company
i
By: Fore SGolf, lac., a Nevada corporation, as
IvXembe
I
{
By:
Nmue:
Title:
JL.%I n1 -VlIL-, JVrLN3kA'% MV6l.��V.4• J- 1-Jj •11-U:J.3Al • UJM%K OW ti.] Ji4i—D4OF, 14U:JU;FUUt5XIt5Ubre -= UI b
STATE. OF
ss;
COUNTY OF �
On this, the L] day of 1999, before n1c, the undcrsigned
officer, personally appeared ( 1, who acknowledged
himself to be the [ 'I of Fare Star Golf, Inc., a Nevada corporation, as Member of
--ore Star Golf of Lubbock. LLC, a Texas limited liabi�ty company. and that be, as such
— , being authorized sc7 to do, executed the foregoing
Assignment of Management A&7eement for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set rnhand and official seal.
My Corlunission espires:
Notary 1'tiblic
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18173355554; Mar-4-99 5:12PM; Page 2/3
Meadowbroolc Golf Complex
Summary of Phase 11 Capital Improvements
September i997 - December 1998
IRRIGATION PROJECTS
Description Date Vendor Amount
Creek Course #I I & 012
Control boxes for Greek course
Nov.97 Water Utilities
S1,840
Irrigation upgrade to Creek #11 & #12
Nov-Dec.97 Various
$6,934
Irrigation upgrade to Greek #11 &. #12
Jan -Aug Various
$9,667
Pump station upgrade
Dec-99 American Turbine
S6,082
TOTAL
$24,423
GOLF COURSE PROJEC FS
Description bate Vendor Amount
Landscaping
Tree tramming Canyon/Creek
Oct-98 Tree Specialist
$2,955
Greens & Fairways- Canyon/Creek
Creek course fairways
Jan -Oct Various
$12,152
Creek course dirt worts M11 #12
Dec-97 Tri Tex Pavers
$10,324
Labor for creek fairway upgrade
ran -Oct
$23,993
Sand mix #1 Canyon
Oct-98 Cmmviile Damron
$14,051
Bentgnm Sod
Oct-98 Southwest Turfgraw
S6,658
Turn premix - # 1 Canyon
Oct-98 Golf Enviro
$215
Turf groomers
Feb-98 Jacobsen
$3,378
TOTAL
S70,671
Cart Paths
Cart paths on A15 green & #16 Tee box
Sep-97 Lorenzo Flores
$1,500
Cart paths
Feb-98 Lorenzo Flares
$3,300
TOTAL
S4,800
-= , ny: rl.nr- - 1IAh UULr;
1B173355554; Mar-4-99 5:12PM; Page 3/3
PHASE iI
CAPITAL IMPROVEMENTS
Prglect In Practsa as of March 19"
Rebuilding of green #1 on Canyon course and green #17 on Creek course
Expoetedd completion May 1999
Planned projects for 1999
Entrance and clubhouse landscaping
2. Rebuilding of various tee boxes
:3. Continued trimming and maintenance of old elm trees