Whitestone Houston Land Ltd. (“Whitestone”), an entity that owns approximately 1,564 acres near New Caney, a portion of which includes the planned EarthQuest theme park and museum, has filed for bankruptcy.

The EarthQuest theme park and museum has been promoted for years as a soon-to-come entertainment center with retail shopping, a water park, hotels, an eco-tourism area, and a residential development, along with a dinosaur area. The project grew from $50 to $500 million+ with numerous delays in breaking ground. To date, no construction has occurred.

According to trollerbk.com, Whitestone filed a Chapter 11 petition (re-organization) for bankruptcy protection more than five months ago on August 1, 2011. The filing was made at the United States Bankruptcy Court, Eastern District of Texas (Sherman). The bankruptcy petition number is 11- 42400.

According to Schedule B of the petition, Whitestone has $0.00 in its business checking account. Schedule D shows a total indebtedness to secured creditors of $20,167,465.94.

Schedule F of the petition indicates that Whitestone owes another $808,179.28 to various unsecured creditors. Notably, those unpaid amounts include $123,845.13 to local taxing agencies for unpaid property taxes for the 2008 to 2010 tax years. The status of payment for the property taxes due January 31, 2012, for the 2011 tax year is unknown.

Also included in Schedule F is an unsecured $225,000 note payable to the East Montgomery County Improvement District (“EMCID”). However, more significant amounts have been funded by EMCID to Whitestone in the form of expense reimbursements.

Whitestone is a limited partnership whose general partner is Whitestone Houston Holdings LLC. The manager of the general partner is John D. Marlin. Marlin is also manager of EQ Ventures GP LLC, the general partner of Global Earthquest Ventures LP (“Global”). Global is one of the parties to the contracts executed with EMCID.

According to www.earthquestinstitute.org, Marlin is also a director of the EarthQuest Institute (“Institute”), a nonprofit organization established to apparently manage the EarthQuest Museum and Institute. Marlin is shown on their website as a director of the Institute. The Institute is another of the parties to the contracts executed with EMCID.

According to www.earthquestadventures.com, Marlin’s real estate and development company, Marlin-Atlantis, of which he is the chief executive officer, is the general partner and developer of the planned project through an entity called EarthQuest Resort. This company does not appear to be a party to the contracts executed with EMCID. Marlin-Atlantis is based in Dallas.

Marlin did not respond to a request for comment.

Frank McCrady, President and CEO of EMCID, stands behind the development. “We have a new developer who is working with the bank to take over the property and the project.

“It is not a matter of if, but when [it will be built],” he said.

According to a website at www.landadvisors.com/whitestone, Whitestone originally acquired the New Caney land for a residential development to be called Whitestone. As described in a special warranty deed dated June 14, 2004, the same being recorded in the public records of Montgomery County under Clerk’s File Number 2004-06651 and film code number 608-10-2194, the property was purchased from HS Tejas Ltd. The purchase price of the land, as stated in the first paragraph of the deed, was in the amount of $4,150,000 plus “$10 and other good and valuable consideration.”

Over time, the idea of a dinosaur-themed park and resort was developed through the principals and affiliates of Whitestone. This new concept was then planned on about 500 acres of the land that was originally intended for residential development. Due to the projected economic impact on the surrounding region, discussions were initiated with EMCID.

Those discussions ultimately resulted in a series of complex agreements between Global, EMCID and the Earthquest Institute. Briefly stated, for the perceived future benefits of having a major theme park and other related developments, EMCID agreed to sell millions of dollars in bonds in order to provide funds to Whitestone for “pre-development” and “pre-construction” expenses.

Pursuant to a Houston Chronicle-This Week article dated August 26, 2009, the aggregate funds [then] paid by EMCID to Whitestone for the foregoing expenses totaled $7,800,000. The same article referenced a second request by Marlin for EMCID to provide another $2,800,000 to Global to pay for a “site locater fee,” the recipient of which was unnamed in the article.

McCrady said that EMCID subsequently did not advance the additional funds to pay the site locater fee.

“We do not want people alarmed and think that the project will not be built. We have Contour Entertainment from Los Angeles. They are going to take over,” he said.

McCrady said he was aware Whitestone had filed for bankruptcy some months ago.

“They have a restructuring plan – a hearing on this will be held Jan. 23 in Dallas,” he said.

The property is currently in bankruptcy but McCrady says Contour is currently working with the bank and hopes to purchase the property eventually.

“Contour is an entertainment company with experience developing theme parks all over the world. Our board thinks that is very good,” McCrady said. Contour, McCrady said, was a subcontractor of Whitestone's and performed all the design work on the EarthQuest project, he said. “Chris Brown, CEO of Contour, has been prepared to step in from the inception,” McCrady said. Owning the site would be a first for the Los Angeles-based design firm.

According to Contour Entertainment's website, www.contourentertainment.com,

the company performs many functions related to theme park management but they do not own theme parks. Contour's website states that they perform concept development and show design, project management, operational planning, market research and architectural design. EarthQuest is already listed as one of the six projects Contour is working on.

The site states that, “Contour Entertainment is the Resort Masterplanner and lead designer for all aspects of this $530 million, 500-acre (Phase 1) entertainment resort as well as providing the initial design for the conceptual direction and facility design for the $20 million, 40,000-sqare foot, not-for-profit EarthQuest Institute.”

It appears that the general plan of repayment to EMCID was to receive about one-half of the proceeds at the beginning of construction of the theme park, with the second half being repaid after construction of the park was completed. However, there have been numerous changes and amendments to the original contracts and the current status of the repayment terms is uncertain. The filing of the bankruptcy petition has created concerns about any projected construction date and whether or not the bankruptcy filing has jeopardized the repayment of the monies funded by EMCID to Global.

“Whitestone was just a landholding company,” McCrady said. “The bond paid for predevelopment expenses, engineers, drainage, things like that all related to EarthQuest.”

McCrady said that repayments are certain, based on future sales tax recapture as well as future taxes attached to the development zone and future hotel taxes.

“We would not have issued bonds if there was any chance of the funds not being recovered,” he said.

The contracts further provide that, should the project not be constructed, then EMCID would have the right to purchase certain properties owned by the Institute. That purchase option is for the 50 acres upon which the Dino Institute and Museum would be built. The option price for that tract is $1,250,000. This amount would be in addition to the original $7,800,000 already known to be approved by the bond to Global.

McCrady said that EMCID and the bond has put up about $9 million. He said “you can add another million to the bond money” for expenses to date.

Marlin Atlantis also received approval from taxing authorities for property tax abatements to enhance the profitability of the project via Montgomery County Commissioners Court and from the passage of House Bill 4015. At the same time, the contracts between Global and EMCID would have set in motion a set of new taxes and user fees in connection with the development and operation of the theme park and museum, including Improvement Zone sales taxes and hotel occupancy taxes, along with event admission taxes and parking fees and taxes.

In fact, McCrady said,”Without a doubt, this will happen. If Contour fails, others are willing to step up. We are not putting all our faith in one developer. That is not the way we do business. We have backup plans A, B, C and D.”

“From our perspective, the board thinks the future sales tax will pay back the money. The property is well suited to retail development.

“Contour is hoping to pick up the project after the bankruptcy is complete,” McCrady said. “Houston is poised for theme park projects. We have three different economic reports that say that.”

List of creditors and amounts owed listed in the bankruptcy filing:

Creditors holding secured claims, according to Schedule D:

J.R. Moore, Jr. Tax Assessor, $15,970.81; County of Montgomery Tax Office, $61,943.94; Hillcrest Bank, $20,043,611.21; J. R. Moore, Jr. Tax Assessor, $45,939.98.

Creditors Holding Unsecured Claims, according to Schedule F:

Anco-McDonald Waterworks, $5,385; Bracewell & Guiliani LLP, $952.50; Cindy A Schmidt, $2,521.57; Coasts, Rose, Yale Ryman & Lee, $3858.83; East Montgomery County Improvement District, $225,000; Hayne and Associates PC, $155; Hesse & Hesse LLP, $225; Ryan & Company PC, $1025; Sammons Realty Corp., $275,683.88; Texas Commission-Environmental Quality, $2,565.38; Thompson & Knight LLP, $11,978.74, and WMA Whitestone Land LP, $278,828.38.

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