EXHIBIT 99.7
EXECUTION AGREEMENT
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
THIS COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT (this "AGREEMENT") is
made and dated as of July 19, 2002, by and among American Golf Corporation, a
California corporation (together with its successors and permitted assigns, the
"COMPANY"), Xxxxx X. Xxxxx, an individual, The Xxxxx X. Xxxxx Trust dated March
5, 1998 (as amended) ("THE XXXXX X. XXXXX TRUST"), Mountaingate Land, L.P. a
California limited partnership ("MOUNTAINGATE"), Golf Enterprises, Inc., a
Kansas corporation ("GEI"), Xxx Xxxxxxx Golf, Inc., a Nevada corporation
("JCG"), BNY Midwest Trust Company, an Illinois corporation, not individually
but as collateral agent for the Secured Creditors (as defined below) (in such
capacity, the "COLLATERAL AGENT"), Bank of America, N.A. (the "BANK") and the
Purchasers (as defined below). Capitalized terms used herein have the respective
meanings ascribed thereto in Article I hereof.
RECITALS
A. WHEREAS, pursuant to that certain Credit Agreement dated as of July 30,
1996 (as amended, modified or supplemented from time to time, the "CREDIT
AGREEMENT"), between the Company and the Bank, the Bank agreed to provide
revolving credit and standby letter of credit facilities not to exceed at any
one time an aggregate principal amount equal to $48,134,000 (the "BANK LOANS").
B. WHEREAS, pursuant to that certain Note Purchase Agreement dated as of
July 30, 1996 (as amended, modified or supplemented from time to time, the "NOTE
PURCHASE AGREEMENT") between the Company and the purchasers party thereto (the
"PURCHASERS"), the Company issued and the Purchasers purchased $41,500,000
original aggregate principal amount of the Company's 9.35% Senior Secured Notes
due July 1, 2004 (the "NOTES"), and the Notes have an aggregate outstanding
principal amount equal to $30,374,031 as of the date hereof;
C. WHEREAS, pursuant to a Forbearance Agreement dated as of March 8, 2002
(the "MARCH FORBEARANCE AGREEMENT") between the Company and the Bank, the Bank
agreed to forbear from exercising its remedies under the Loan Documents so long
as no "NEW EVENTS OF DEFAULT" (as defined in Paragraph VIII of the March
Forbearance Agreement) occur;
D. WHEREAS, by that certain Restructuring Agreement and Limited Waiver
dated as of July 1, 2002 by and between the Bank, the Purchasers and the Company
(the "RESTRUCTURING AGREEMENT"), (i) the maturity date of the Bank Loans has
been extended, the Credit Agreement has been amended and certain defaults
thereunder have been waived until March 31, 2003; and (ii) the Note Purchase
Agreement and the Notes have been amended and certain defaults thereunder have
been waived until March 31, 2003;
E. WHEREAS, pursuant to the respective terms of the Restructuring
Agreement, and as a condition to the respective forbearance by the Bank and the
Purchasers (collectively, the "SECURED CREDITORS") thereunder, each of the
Company and the Guarantors (hereinafter defined) has agreed to secure the
obligations owed to the Secured Creditors under their respective Debt Documents
by executing and delivering the Guaranties (hereinafter defined) and Security
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Instruments and providing collateral in the form of (i) a second priority
leasehold mortgage or deed of trust for the benefit of the Secured Creditors
encumbering real property leased by Mountaingate, (ii) first priority leasehold
mortgages or deeds of trust for the benefit of the Secured Creditors encumbering
real property leased by GEI and JCG as listed on SCHEDULE 1, attached hereto and
made a part hereof and (iii) first priority security interest and pledge of
shares of stock of National Golf Properties, Inc., a Maryland corporation
("NGP") and partnership interest units of National Golf Operating Partnership,
L.P., a Delaware limited partnership ("NGOP") held by Xxxxx X. Xxxxx and The
Xxxxx X. Xxxxx Trust;
F. WHEREAS, the Secured Creditors wish to appoint the Collateral Agent as
collateral agent under this Agreement and to define their respective rights and
obligations with respect to the Collateral, and the Collateral Agent wishes to
set forth the terms on which it shall accept such appointment and shall
undertake to perform certain duties on behalf of the Secured Creditors with
respect to this Agreement and the Collateral;
NOW, THEREFORE, in consideration of the above Recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. DEFINITIONS.
"AFFILIATE": shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person. A Person shall be deemed to control another Person if the
controlling Person owns 50% or more of any class of voting securities (or other
ownership interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of stock, by
contract or otherwise.
"AGC/GEI MANAGEMENT SECURITY AGREEMENT": shall mean the Security Agreement
dated as of even date herewith by and between the Collateral Agent and the
Company.
"AGC/NGOP COLLATERAL": shall mean the collateral granted to the Collateral
Agent for the ratable benefit of the Bank, the Purchasers and NGOP pursuant to
the terms of the AGC/NGOP Collateral Agency Agreement.
"AGC/NGOP COLLATERAL AGENCY AGREEMENT": shall mean the Collateral Agency
and Intercreditor Agreement dated as of even date herewith, among the Company,
the Bank, the Purchasers, NGOP and the Collateral Agent for the ratable benefit
of the Bank, the Purchasers and NGOP.
"AGC/NGOP DISTRIBUTION": shall mean any and all Distributions (as defined
in the AGC/NGOP Collateral Agency Agreement in respect of the AGC/NGOP
Collateral) made by the Collateral Agent pursuant to the terms of the AGC/NGOP
Collateral Agency Agreement.
"ALTERNATE COLLATERAL": shall mean the Alternate Pledge Collateral and
Alternate Mountaingate Collateral.
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"ALTERNATE MAJOR DEFAULT": shall mean the occurrence of any of the
following events, (A) during the period from and including the date hereof to
and including September 30, 2002, in the case of the Mountaingate Guaranty and
the Mountaingate Second Mortgage, and October 15, 2002, in the case of the Price
Guaranty and the Price Pledge Agreement: (i) the occurrence of any Major Default
and either the Bank or the Required Purchasers shall have elected to accelerate
the Loan Obligations or the Purchaser Obligations, respectively; (ii) the
occurrence of any of the Major Defaults specified in Sections XI(A) (except for
the payment of Costs and Expenses), (C), (D), (E), (G) or (H) of the
Restructuring Agreement; (iii) solely with respect to the Price Pledge Agreement
and the Price Guaranty, the entry of an order for relief in bankruptcy in
respect of Xxxxx X. Xxxxx; or (iv) solely with respect to the Mountaingate
Guaranty and the Mountaingate Second Mortgage, the entry of an order for relief
in bankruptcy in respect of Mountaingate; (B) from and after the delivery of the
Alternate Mountaingate Collateral with respect to the Alternate Mountaingate
Collateral a Major Default; (C) from and after the delivery of the Alternate
Pledged Collateral with respect to the Alternate Pledged Collateral a Major
Default.
"ALTERNATE MOUNTAINGATE COLLATERAL": shall have the meaning assigned
thereto in SECTION 14.
"ALTERNATE PLEDGE COLLATERAL": shall have the meaning assigned thereto in
SECTION 14.
"BANK LOANS": shall have the meaning assigned thereto in recital paragraph
A hereof.
"BANKRUPTCY CODE": shall mean the Bankruptcy Code, Xxxxx 00, Xxxxxx Xxxxxx
Code.
"BANKRUPTCY PROCEEDING": shall mean, with respect to any Person, a general
assignment of such Person for the benefit of its creditors, or the institution
by or against such Person of any proceeding seeking relief as debtor, or seeking
to adjudicate such Person as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of such Person or its debts, under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for such Person or for any substantial part of its property, including without
limitation any case involving such Person as a debtor under the Bankruptcy Code.
"BUSINESS DAY": shall mean a day (other than a Saturday or Sunday) on which
banks are generally open for business in Los Angeles, California, Chicago,
Illinois and New York, New York for the conduct of substantially all of their
commercial lending activities.
"CASUALTY": shall mean any fire, explosion, flood, collapse or other
casualty affecting any of the Real Property Collateral.
"COLLATERAL": shall mean (i) the Real Property Collateral, (ii) the
Personal Property Collateral, and (iii) all assets (including, without
limitation, real property, personal property and fixtures) of the Guarantors,
both tangible and intangible, upon which each of the Guarantors is required
pursuant to the terms of the Debt Documents to grant to the Collateral Agent for
the benefit of the Secured Creditors a Lien, in each case, to the extent of any
right, title and interest of the Guarantors therein, but subject in each case to
the rights of the Guarantors hereunder and
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under the other Debt Documents and excluding in each case (x) any property or
assets constituting Excluded Assets and (y) the AGC/NGOP Collateral.
"COLLATERAL AGENT": shall have the meaning assigned thereto in the
introductory paragraph hereof.
"COLLATERAL AGENT'S FEE": shall mean collectively, all fees payable to the
Collateral Agent from time to time pursuant to the fee agreement attached as
ANNEX 1 hereto and made a part hereof.
"COLLATERAL PAYMENTS": shall have the meaning assigned thereto in SECTION
11(a) hereof.
"COLLATERAL PROCEEDS": shall mean and include the proceeds of any sale or
disposition of any of the Collateral in connection with (i) the Enforcement of
the Liens granted pursuant to the Security Instruments or (ii) any other
exercise of the rights of the Collateral Agent on behalf of the Secured
Creditors, or by any Secured Creditor, pursuant to the Security Instruments and
this Agreement.
"COLLATERAL PROCEEDS ACCOUNT": shall have the meaning assigned thereto in
SECTION 15(e).
"COMPANY": shall have the meaning assigned thereto in the introductory
paragraph hereof.
"CONDEMNATION": shall mean the taking or voluntary conveyance of all or a
part of the Real Property Collateral, or any interest therein or right accruing
thereto or use thereof, as the result of, or in settlement of, any condemnations
or other eminent domain proceeding by any Governmental Authority.
"CREDIT AGREEMENT": shall have the meaning assigned thereto in recital
paragraph A hereof.
"CURRENT RATE": shall have the meaning assigned thereto in the
Restructuring Agreement.
"XXXXX X. XXXXX": shall collectively mean Xxxxx X. Xxxxx, an individual,
and The Xxxxx X. Xxxxx Trust except for references to Xxxxx X. Xxxxx relating to
a Specified Event, Interest Shortfall or Alternate Collateral in which such
instances, references to Xxxxx X. Xxxxx shall mean to Xxxxx X. Xxxxx solely in
his capacity as an individual.
"XXXXX X. XXXXX CONTROL ACCOUNT": shall mean the account established and
maintained by the Securities Intermediary (as defined in the Xxxxx X. Xxxxx
Control Agreement).
"XXXXX X. XXXXX CONTROL AGREEMENT": shall mean that certain Security
Account Control Agreement to be entered into by and between Xxxxx X. Xxxxx and
the Collateral Agent, a form of which agreement is attached hereto as ANNEX 2
and made a part hereof.
"DEBT DOCUMENTS": shall mean (1) the Credit Agreement, (2) the Note
Purchase Agreement, (3) the Notes, (4) the Existing Pledge Agreement, (5) the
Restructuring Agreement, (6) the Guaranties, (7) the Security Instruments, (8)
all other documents now or hereafter
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executed by the Company, any Guarantor or any other person or entity to evidence
or secure the payment of the Secured Obligations and (9) all modifications,
restatements, extensions, renewals and replacements of the foregoing.
"DEFAULT NOTICE": shall have the meaning assigned thereto in SECTION 12(b).
"DIRECTING CREDITORS": shall mean (i) the Bank or (ii) the Required
Purchasers.
"DISALLOWED OBLIGATION": shall have the meaning assigned thereto in SECTION
28(a).
"DISTRIBUTION": shall mean any and all payments or distributions (direct or
indirect) of any kind or character (whether such payments or distributions are
attributable to Collateral or to assets or property other than Collateral and
whether in the form of cash or any other property) in respect of any of the
Secured Obligations, including, without limitation:
(i) any voluntary payment or distribution, including any prepayment
(whether optional or otherwise) or any purchase of any of the Secured
Obligations by the Company or any Affiliate of the Company (including any
debt or equity refinancing from any source);
(ii) any setoff or assertion of a banker's lien or similar right
(including, without limitation, any secured Lien arising therefrom under
the Bankruptcy Code);
(iii) any distribution of proceeds from any exercise of rights or
remedies by any Secured Creditor (including, without limitation, any
Collateral Proceeds);
(iv) any payments or other distributions (including, without
limitation, payments made through setoff of deposit balances or otherwise
or payments or recoveries from any security interest granted to any Secured
Creditor) made pursuant to the terms of any Security Instrument or the
exercise of any rights (statutory or otherwise) with respect to the
Collateral or any Obligation; and
(v) any payment or other distribution from the estate of the Company
or any Subsidiary of the Company in any Bankruptcy Proceeding;
PROVIDED, HOWEVER, that "Distributions" as used herein shall exclude any
(i) amortized principal payments, (ii) interest payments, (iii) Costs and
Expenses (as defined in the Restructuring Agreement and provided that no
Alternate Major Default or Major Default shall have occurred), (iv) Waiver
Fee (as defined in the Restructuring Agreement), (v) any AGC/NGOP
Distribution pursuant to the terms of the AGC/NGOP Collateral Agency
Agreement and (vi) any Mandatory Payment (as defined in the Restructuring
Agreement) pursuant to the Restructuring Agreement.
"ELIGIBLE INVESTMENTS": shall mean any and all of the following:
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith and
credit of the United States of America;
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(ii) (A) demand and time deposits in, certificates of deposit of,
banker's acceptances issued by or federal funds sold by any depository
institution or trust company (including the Collateral Agent or its agent
acting in their respective commercial capacities) incorporated under the
laws of the United States of America or any state thereof and subject to
supervision and examination by federal and/or state authorities, PROVIDED
that each such investment has an original maturity of no more than 180
days, and (B) any other demand or time deposit or deposit which is fully
insured by the Federal Deposit Insurance Corporation;
(iii) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any State thereof which has a long-term unsecured debt rating in the
highest available rating by Moody's at the time of such investment;
(iv) commercial paper having, or demand notes constituting an
investment vehicle in commercial paper having, an original maturity of less
than 180 days and issued by an institution having a short-term unsecured
debt rating in the highest available rating category of Moody's at the time
of such investment (the issuer of any demand notes under this paragraph
(iv) must also be an institution that satisfies the unsecured debt rating
test specified in this paragraph (iv));
(v) a guaranteed investment contract issued by an insurance company or
other corporation having a long-term unsecured debt rating or a
claims-paying ability rated in the highest available rating category of
Moody's at the time of such investment; and
(vi) money market funds having ratings in the highest available rating
category of Moody's at the time of such investment (any such money market
funds which provide for demand withdrawals being conclusively deemed to
satisfy any maturity requirements for Eligible Investments set forth
herein), including money market funds of the Collateral Agent at the time
of such investment and any such funds that are managed by the Collateral
Agent or any of its Affiliates or for which the Collateral Agent or any
Affiliate of the Collateral Agent acts as advisor.
Any Eligible Investments may be purchased by or through the Collateral
Agent or any of its Affiliates.
"ENFORCEMENT": shall mean taking any action, seeking remedies with respect
to the Collateral or pursuing enforcement (judicial or otherwise) with respect
to any of the Liens granted under the Security Instruments. For the avoidance of
doubt, "Enforcement" shall not include (i) filing any involuntary petition of
bankruptcy or similar action with respect to the Company or (ii) any action
permitted by SECTION 13.
"ENFORCEMENT DIRECTIVE": shall have the meaning assigned thereto in SECTION
2(b)(i).
"ENVIRONMENTAL LAWS": shall mean any and all applicable foreign, federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
requirements of law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or
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the environment, as now or may at any time hereafter be in effect, in each case
to the extent the foregoing are applicable to the Properties, the Company or any
of the Company's subsidiaries or any of the Company's assets.
"EXCLUDED ASSETS": shall mean any property or assets in which any of the
Guarantors is prohibited from granting any security interests by the terms of
any contractual obligation, or as to which the granting of a security interest
would, under the terms of such contractual obligation, constitute a breach or
violation by any of the Guarantors or occasion the loss of any material rights
or interests of any of the Guarantors thereunder, or the incurrence of any
material obligation by any of the Guarantors.
"EXISTING PLEDGE AGREEMENT": shall mean the Pledge, Collateral Agency and
Intercreditor Agreement, dated as of July 30, 1996, among the Company, GEI, the
Bank, the Purchasers, the Bank, not individually but as collateral agent for
itself and the Purchasers, and the other parties thereto, modified hereby to
secure all of the Secured Obligations.
"FIXTURES": shall have the meaning assigned thereto under the definition of
Real Property Collateral.
"GEI": shall have the meaning assigned thereto in the introductory
paragraph hereof.
"GEI GUARANTY": shall mean that certain Limited Recourse Guaranty dated of
even date herewith and executed by GEI in favor of the Collateral Agent for the
ratable benefit of the Secured Creditors.
"GEI MORTGAGES": shall mean those certain leasehold mortgages or deeds of
trust executed by GEI in favor of the Collateral Agent for the ratable benefit
of the Secured Creditors.
"GOVERNMENTAL AUTHORITY": shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GUARANTIES": shall mean each of the JCG Guaranty, the Mountaingate
Guaranty, the Price Guaranty and the GEI Guaranty.
"GUARANTORS": shall mean each of JCG, GEI, Mountaingate, Xxxxx X. Xxxxx and
The Xxxxx X. Xxxxx Trust.
"IMPROVEMENTS": shall have the meaning assigned thereto under the
definition of Real Property Collateral (as defined herein).
"INDEBTEDNESS": shall have the meaning assigned thereto in the
Restructuring Agreement.
"INTEREST SHORTFALL": shall mean the amount, if any, of interest payable to
the Secured Creditors at the Current Rate that is not being paid on a current
basis, calculated based on a principal amount of the Secured Obligations that is
equal to the lower of (A) the principal amount on which the Company is not
paying interest on a current basis, or (B) an amount equal to (x) $10 million in
the event Mountaingate shall have provided cash collateral as the Alternate
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Mountaingate Collateral or (y) $16 million in the event Xxxxx X. Xxxxx shall
have provided cash collateral as the Alternate Pledge Collateral or (z) $26
million in the event Xxxxx X. Xxxxx shall have provided the Alternate Pledge
Collateral and Mountaingate shall have provided the Alternate Mountaingate
Collateral.
"JCG": shall have the meaning assigned thereto in the introductory
paragraph hereof.
"JCG GUARANTY": shall mean that certain Limited Recourse Guaranty dated of
even date herewith and executed by JCG in favor of the Collateral Agent for the
ratable benefit of the Secured Creditors.
"JCG MORTGAGES": shall mean those certain leasehold mortgages or deeds of
trust executed by JCG in favor of the Collateral Agent for the ratable benefit
of the Secured Creditors.
"LAND": shall have the meaning assigned thereto under the definition of
Real Property Collateral.
"LEASES": shall have the meaning assigned thereto under the definition of
Real Property Collateral.
"LETTER OF CREDIT": shall mean irrevocable standby letter of credit, (i)
issued for the benefit of the Collateral Agent by a financial institution and in
form reasonably acceptable to the Required Creditors, (ii) for an initial term
of not less than 364 days, (iii) available for drawing at any time during such
initial term upon delivery by the Collateral Agent of a certificate stating that
any Major Default or Specified Event has occurred and is continuing, (iv) if not
drawn prior to the expiration of the initial term, automatically paid (without
further act or document delivery required) by wire transfer to an account
designated by the Collateral Agent upon the expiration of the initial term
UNLESS not less than 10 days prior to the expiration of the term the Collateral
Agent (at the direction of the Required Creditors) shall have delivered a notice
of renewal to the issuer, then, (v) in the event of each subsequent renewal,
renewed for an additional term of not less than 364 days, (vi) available for
drawing at any time during any renewed term upon delivery by the Collateral
Agent of a certificate stating that any Major Default or Specified Event has
occurred and is continuing, and (vii) if not drawn prior to the expiration of
any renewed term, automatically paid (without further act or document delivery
required) by wire transfer to an account designated by the Collateral Agent upon
the expiration of any renewed term.
"LIEN": shall mean any interest in property securing any obligation owed
to, or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute or contract, and including but not
limited to the lien or security interest arising from a mortgage, encumbrance,
pledge, security agreement, conditional sale or trust receipt or a lease,
consignment or bailment for security purposes.
"LOAN OBLIGATIONS": shall mean the obligations of the Company to the Bank
under the Credit Agreement.
"LOSS PROCEEDS ACCOUNT": shall have the meaning assigned thereto in SECTION
7(a) hereof.
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"MAJOR DEFAULT": shall have the meaning assigned thereto in the
Restructuring Agreement.
"MAKE-WHOLE AMOUNTS": shall have the meaning assigned thereto in Section
8.7 of the Note Purchase Agreement.
"MATERIAL ADVERSE EFFECT": shall mean a material adverse effect on (i) the
ability of each of the Guarantors to perform its or his material obligations
under the Guaranties and Security Instruments to which any Guarantor is a party
or (ii) the validity or enforceability of any of the Debt Documents or the
material rights or remedies of the Bank or the Purchasers thereunder.
"MATERIALS OF ENVIRONMENTAL CONCERN": shall mean any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"MORTGAGES": shall mean the JCG Mortgages, the GEI Mortgages and
Mountaingate Second Mortgage.
"MOUNTAINGATE CONTROL ACCOUNT": shall mean the account established and
maintained by the Securities Intermediary (as defined in the Mountaingate
Control Agreement).
"MOUNTAINGATE CONTROL AGREEMENT": shall mean that certain Security Account
Control Agreement to be entered into by and between Mountaingate and the
Collateral Agent, a form of which agreement is attached hereto as ANNEX 3 and
made a part hereof.
"MOUNTAINGATE FIRST MORTGAGE": shall mean that certain mortgage or deed of
trust dated as of October 7, 1996 and executed by Mountaingate in favor of the
Bank.
"MOUNTAINGATE GUARANTY": shall mean that certain Limited Recourse Guaranty
dated as of even date herewith and executed by Mountaingate in favor of the
Collateral Agent for the ratable benefit of the Secured Creditors.
"MOUNTAINGATE PROPERTY": shall mean that certain property described in the
Mountaingate Second Mortgage and commonly known as the Mountaingate Golf Course.
"MOUNTAINGATE SECOND MORTGAGE": shall mean that certain mortgage or deed of
trust dated as of even date herewith and executed by Mountaingate in favor of
the Collateral Agent for the ratable benefit of the Secured Creditors.
"NGOP": shall have the meaning assigned thereto in the introductory
paragraph hereof.
"NGP": shall have the meaning ascribed thereto in the introductory
paragraph hereof.
"NON-RETURNING SECURED CREDITOR": shall have the meaning assigned thereto
in SECTION 15(c).
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"NOTE PURCHASE AGREEMENT": shall have the meaning assigned thereto in
recital paragraph B hereof.
"NOTES": shall have the meaning assigned thereto in recital paragraph B
hereof.
"PERMITTED ENCUMBRANCES": shall mean:
(i) all Liens and other matters specifically disclosed on Schedule B
of the title insurance commitments delivered to the Collateral Agent after
the date hereof which matters are subject to the reasonable approval of the
Required Creditors;
(ii) the Mountaingate First Mortgage;
(iii) Liens, if any, for taxes and other impositions not yet
delinquent;
(iv) mechanics', materialmen's or similar Liens, if any, and Liens for
delinquent taxes or impositions, in each case only if being contested by
Mountaingate, GEI or JCG in good faith and by appropriate proceedings;
(v) rights of (a) existing tenants as tenants only pursuant to written
Leases, and (b) future tenants as tenants only pursuant to written Leases
entered into in conformity with the provisions of this Agreement and the
other Debt Documents; and
(vi) (a) zoning restrictions, building codes, land use laws and other
legal requirements regulating the use or occupancy of the Property, and (b)
easements, rights-of-way, covenants, conditions, restrictions on use of
real property and other similar matters affecting the Property in addition
to those described in subparagraph (i) above, which matters described in
this clause (b) do not have a material adverse effect on the value of the
Property or its fitness for its intended use.
"PERSON": shall mean any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"PERSONALTY": shall have the meaning assigned thereto under the definition
of Real Property Collateral.
"PERSONAL PROPERTY COLLATERAL": shall mean (i) the shares of NGP and
partnership interest units of NGOP pledged by Xxxxx X. Xxxxx and The Xxxxx X.
Xxxxx Trust to the Collateral Agent pursuant to the Price Pledge Agreement and
(ii) the security interest granted to the Collateral Agent pursuant to the
AGC/GEI Management Security Agreement.
"PLANS": shall have the meaning assigned thereto under the definition of
Real Property Collateral.
"POLICIES": shall have the meaning assigned thereto in SECTION 5(f) hereof.
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"PRICE GUARANTY": shall mean that certain Limited Recourse Guaranty dated
as of even date herewith and executed by Xxxxx X. Xxxxx and The Xxxxx X. Xxxxx
Trust in favor of the Collateral Agent for the ratable benefit of the Secured
Creditors.
"PRICE PLEDGE AGREEMENT": shall mean that certain Stock and Partnership
Interest Pledge Agreement dated as of even date herewith by and between Xxxxx X.
Xxxxx, The Xxxxx X. Xxxxx Trust and the Collateral Agent.
"PROPERTY" or "PROPERTIES": shall mean, with respect to any Person, any and
all property, whether real, personal, tangible, intangible or mixed, of such
Person.
"PURCHASER OBLIGATIONS": shall mean the obligations of the Company under
the Note Purchase Agreement and the Notes.
"PURCHASERS": shall have the meaning assigned thereto in recital paragraph
B hereof.
"REAL PROPERTY COLLATERAL": shall mean all of the following assets, to the
extent of any right, title or interest of Mountaingate, GEI and JCG therein,
excluding in each case any property or assets constituting Excluded Assets:
(i) those certain Leases or management agreements described in Exhibit
A to each of the Mortgages and the leasehold estates created thereby
(collectively, the "COURSE LEASE") together with any greater estate therein
as hereafter may be acquired by Mountaingate, GEI and JCG, as applicable
(collectively, the "LAND") including without limitation, the fee simple
interest of Mountaingate in the property commonly known as the Mountaingate
Golf Course,
(ii) all buildings, structures and other improvements, now or at any
time situated, placed or constructed upon the Land (the "IMPROVEMENTS"),
(iii) all building or construction materials, all machinery, supplies,
equipment, fixtures, apparatus and other items of personal property now
owned or hereafter acquired by Mountaingate, GEI and JCG, as applicable,
and now or hereafter attached to, installed in or used in connection with
any of the Improvements or the Land, including, without limitation, any and
all partitions, window screens and shades, drapes, rugs and other floor
coverings, awnings, motors, engines, boilers, furnaces, pipes, plumbing,
cleaning, call and sprinkler systems, fire extinguishing apparatus and
equipment, water tanks, swimming pools, heating, ventilating, plumbing,
lighting, communications and elevator fixtures, laundry, incinerating, air
conditioning and air cooling equipment and systems, gas and electric
machinery and equipment, disposals, dishwashers, furniture, refrigerators
and ranges, securities systems, art work, recreational and pool equipment
and facilities of all kinds, water, gas, electrical, storm and sanitary
sewer facilities of all kinds, and all other utilities whether or not
situated in easements together with all accessions, replacements,
betterments and substitutions for any of the foregoing (the "FIXTURES"),
(iv) all right, title and interest of Mountaingate, GEI and JCG, as
applicable, in and to all goods, accounts, general intangibles,
instruments, documents, accounts receivable, chattel paper and all other
personal property of any kind or character,
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including such items of personal property as defined in the Uniform
Commercial Code in the state where each property is located, now owned or
hereafter acquired by Mountaingate, GEI and JCG, as applicable, and now or
hereafter affixed to, placed upon, used in connection with, arising from or
otherwise related to the Land and/or the Improvements or which may be used
in or relating to the planning, development, financing or operation of the
Land and/or the Improvements, including, without limitation, furniture,
furnishings, equipment, machinery, money, insurance proceeds, condemnation
awards, accounts, contract rights, trademarks, goodwill, chattel paper,
documents, trade names, licenses and/or franchise agreements, rights of
Mountaingate, GEI and JCG, as applicable, under leases of Fixtures or other
personal property or equipment, inventory, all refundable, returnable or
reimbursable fees, deposits or other funds or evidences of credit or
indebtedness deposited by or on behalf of Mountaingate, GEI and JCG, as
applicable, with any Governmental Authorities, boards, corporations,
providers of utility services, public or private, including specifically,
but without limitation, all refundable, returnable or reimbursable tap
fees, utility deposits, commitment fees and development costs and all
refunds, rebates or credits in connection with a reduction in real estate
taxes and assessments against any the Course Lease, the Land and/or
Improvements as a result of tax certiorari or any applications or
proceedings for reduction (the "PERSONALTY"),
(v) all right, title and interest of Mountaingate, GEI and JCG, as
applicable, in and to all plans, specifications, shop drawings and other
technical descriptions prepared for construction, repair or alteration of
the Improvements, and all amendments and modifications thereof (the
"PLANS"),
(vi) all leasehold estates, leases, subleases, sub-subleases,
licenses, concessions, occupancy agreements or other agreements (written or
oral, now or at any time in effect and every modification, amendment or
other agreement relating thereto, including every guarantee of the
performance and observance of the covenants, conditions and agreements to
be performed and observed by the other party thereto) which grant a
possessory interest in, or the right to use or occupy, all or any part of
the Land and/or Improvements, together with all related security and other
deposits (the "LEASES"),
(vii) all right, title and interest of Mountaingate, GEI and JCG, as
applicable, in and to all of the rents, revenues, income, proceeds, issues,
profits (including all oil or gas or other mineral royalties and bonuses),
security and other types of deposits, and other benefits paid or payable
and to become due or payable by parties to the Leases other than
Mountaingate, GEI and JCG, as applicable for using, leasing, licensing,
possessing, occupying, operating from, residing in, selling or otherwise
enjoying any portion or portions of any Course Lease, Land and/or
Improvements (the "RENTS"),
(viii) all right, title and interest of Mountaingate, GEI and JCG, as
applicable, in and to all other agreements, such as construction contracts,
architects' agreements, engineers' contracts, utility contracts,
maintenance agreements, management agreements, service contracts, permits,
licenses, certificates and entitlements in any way relating to the
development, construction, use, occupancy, operation, maintenance,
enjoyment,
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acquisition or ownership of the Course Lease, Land and/or Improvements or
the sale of goods or services produced in or relating to the Land and/or
Improvements (the "PROPERTY AGREEMENTS"),
(ix) all right, title and interest of Mountaingate, GEI and JCG, as
applicable, in and to all rights, privileges, titles, interests, liberties,
tenements, hereditaments, rights-of-way, easements, sewer rights, water,
water courses, water rights and powers, air rights and development rights,
licenses, permits and construction and equipment warranties, appendages and
appurtenances appertaining to the foregoing, and all right, title and
interest, if any, of Mountaingate, GEI and JCG, as applicable, in and to
any streets, ways, alleys, passages, strips or gores of land adjoining the
Land or any part thereof,
(x) all accessions, replacements, renewals, additions and
substitutions for any of the foregoing and all proceeds thereof,
(xi) all insurance policies, unearned premiums therefor and proceeds
from such policies, including, without limitation, the right to receive and
apply the proceeds of any insurance, judgments or settlements made in lieu
thereof, covering any of the above property now or hereafter acquired by
Mountaingate, GEI and JCG, as applicable,
(xii) all right, title and interest of Mountaingate, GEI and JCG, as
applicable, in and to all mineral, riparian, littoral, water, oil and gas
rights now or hereafter acquired and relating to all or any part of the
Collateral Projects,
(xiii) all of Mountaingate, GEI and JCG's right, title and interest in
and to any awards, remunerations, reimbursements, settlements or
compensation heretofore made or hereafter to be made by any Governmental
Authority pertaining to the Course Lease, the Land, Improvements, Fixtures
or Personalty; and
(xiv) all of Mountaingate, GEI and JCG's right, title and interest in
and to any awards, remunerations, reimbursements, settlements or
compensations heretofore made or hereafter to be made by any governmental
authority pertaining to the Ground Lease, the Land, Improvements, Fixtures
or Personalty.
"RENTS": shall have the meaning assigned thereto under the definition of
Real Property Collateral (as defined herein).
"REQUIRED CREDITORS": shall mean (i) the Bank plus (ii) the Required
Purchasers.
"REQUIRED PURCHASERS": shall mean, as of any date, the then current holders
of at least 50.1% of the outstanding principal amount of the Notes (exclusive of
any Notes owned, directly or indirectly, by any one or more of the Company or
any Subsidiary or Affiliate of the Company, or any officer or director thereof),
provided, that, if there is then no principal amount of the Notes outstanding
(exclusive of any Notes owned, directly or indirectly, by any one or more of the
Company or any Subsidiary or Affiliate of the Company, or any officer or
director thereof), but accrued Make-Whole Amounts are still outstanding with
respect to such Notes, Required Purchasers shall mean the holders entitled to at
least 50.1% of the accrued Make-Whole Amounts that are outstanding with respect
to such Notes (exclusive of any Make-Whole
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Amounts accrued with respect to any such Notes owned, directly or indirectly by
any one or more of the Company or any Subsidiary or Affiliate of the Company, or
any officer or director thereof).
"RESTRUCTURING AGREEMENT": shall have the meaning assigned thereto in
recital paragraph E hereof.
"RETURNED AMOUNT SHARE": shall have the meaning assigned thereto in SECTION
15(c).
"RETURNED AMOUNTS": shall have the meaning assigned thereto in SECTION
15(c).
"SECURED CREDITORS": shall mean the Bank, the Purchasers, and their
respective successors and permitted assigns.
"SECURED OBLIGATIONS": shall mean (i) all of the Loan Obligations; (ii) all
of the Purchaser Obligations; and (iii) all obligations of the Company arising
under this Agreement and the Security Instruments.
"SECURITY INSTRUMENTS": shall mean, collectively, this Agreement, the
Mortgages, the Price Pledge Agreement, the AGC/GEI Management Security
Agreement, the Xxxxx X. Xxxxx Control Agreement, the Mountaingate Control
Agreement and all other agreements including control agreements, instruments,
mortgages and other documents, whether now existing or hereafter in effect,
pursuant to which the Guarantors shall grant or convey to the Collateral Agent
or any Secured Creditor a Lien in, or any other Person shall acknowledge any
such Lien in, property as security for all or any portion of the obligations or
liabilities arising under the Guaranties and Security Instruments, as any of
them may be amended, modified or supplemented from time to time in accordance
with SECTION 22 of this Agreement.
"SECURITY TERMINATION DATE": shall mean the earlier of (i) the date on
which all of the Secured Obligations shall have been paid in full; and (ii) the
date all of the Secured Creditors agree in writing to the termination of this
Agreement.
"SPECIFIED EVENT": shall mean any of the following: (i) Xxxxx X. Xxxxx'x
failure to make any payment of Interest Shortfall when interest is due and not
paid in full under the Restructuring Agreement (there being no implication that
he is obligated to make such payments) provided that (x) Xxxxx X. Xxxxx shall
notify the Collateral Agent of any payment of Interest Shortfall, no more than 1
Business Day after any such payment and (y) at such time that Xxxxx X. Xxxxx is
no longer a director or officer of the Company, Xxxxx X. Xxxxx has received
notice from the Collateral Agent, no later than 10 days prior to the requested
payment date, that such interest is due and payable under the Restructuring
Agreement (even if after the actual interest due date thereunder), (ii) the
confirmation of a Chapter 11 plan of reorganization of the Company under the
Bankruptcy Code, (iii) the substantial completion of a liquidation of the
Company in a Chapter 7 proceeding under the Bankruptcy Code, or (iv) the passage
of 36 months after the date of an entry of an order for relief in bankruptcy in
respect of the Company. (For the avoidance of doubt, any payment of Interest
Shortfall by Xxxxx X. Xxxxx after such interest is due under the Restructuring
Agreement under (i) shall in no event cure any Major Default resulting from any
nonpayment of Indebtedness by the Company pursuant to the terms of the
Restructuring Agreement.)
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"THE XXXXX X. XXXXX TRUST": shall have the meaning assigned thereto in the
introductory paragraph hereof.
"THIRD-PARTY MANAGEMENT CONTRACT": shall have the meaning assigned thereto
in the Restructuring Agreement.
2. APPOINTMENT OF THE COLLATERAL AGENT.
(a) APPOINTMENT AND AUTHORIZATION. The Secured Creditors hereby appoint the
Collateral Agent to act as secured party, agent, bailee and custodian for the
exclusive benefit of the Secured Creditors pursuant to the terms hereof. The
Collateral Agent hereby accepts such appointment and agrees to maintain and hold
all Collateral at any time delivered to it as secured party, agent, bailee and
custodian for the exclusive benefit of the Secured Creditors. The Collateral
Agent and the Company agree that the Collateral Agent is acting and will act
with respect to the Collateral for the exclusive benefit of the Secured
Creditors and is not, and shall not at any time in the future be subject, with
respect to the Collateral, in any manner or to any extent, to the direction or
control of the Company except as expressly permitted hereunder and under any of
the other Debt Documents. The Collateral Agent agrees to serve as Collateral
Agent and to act in accordance with this Agreement and in accordance with any
written instructions properly delivered pursuant hereto. The Collateral Agent is
hereby expressly authorized in such capacity on behalf of the Secured Creditors,
and without hereby limiting the foregoing, and subject to, and in accordance
with, the terms and conditions of this Agreement:
(i) to implement the sharing of Distributions as contemplated by this
Agreement and to receive on behalf of each of the Secured Creditors any
payment of monies paid thereto in accordance with the Security Instruments,
and to distribute to each Secured Creditor its respective share of all
payments (including the Distributions) so received in accordance with the
terms of this Agreement;
(ii) to receive all documents and items to be furnished under the
Security Instruments and to keep and maintain accurate records;
(iii) to maintain physical possession of any of the Collateral as
contemplated by any of the Security Instruments;
(iv) to act on behalf of each Secured Creditor in and under the
Security Instruments and this Agreement;
(v) to execute and deliver to the Company requests, demands, notices,
approvals, consents and other communications received from any Secured
Creditor in connection with the Security Instruments subject to the terms
and conditions set forth herein;
(vi) to deliver copies of any notice, document or communication from
the Company or any third party to the Secured Creditors promptly upon
receipt;
(vii) to the extent permitted by this Agreement and the Security
Instruments, to exercise for its own benefit and the benefit of each
Secured Creditor all remedies of the
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Secured Creditors under any of the Security Instruments as directed in
writing by the Required Creditors, as applicable, subject, however, to the
right to take action described in SECTION 2(b)(iii) so long as consistent
with the terms of the Security Instruments;
(viii) to execute and deliver releases as provided in the Security
Instruments and this Agreement; and
(ix) to take such other actions, other than as specified in SECTIONS
2(b)(i) and 2(b)(iii) hereof, as may be requested in writing by the
Required Creditors or the Directing Creditors, as applicable.
(b) DUTIES.
(i) Upon the Collateral Agent's receipt of (A) a Default Notice from
any Secured Creditor giving notice of an Alternate Major Default or a Major
Default, as applicable, and (B) written notice from the Directing Creditors
directing the Collateral Agent to take specific collection or foreclosure
action under any Security Instrument for the benefit of the Secured
Creditors (an "ENFORCEMENT DIRECTIVE"), the Collateral Agent shall
undertake to proceed as directed as soon as possible and in no event later
than two (2) Business Days after receipt of both such notices. All
Enforcement actions undertaken by the Collateral Agent, whether or not
directed by the Directing Creditors, shall be in accordance with applicable
law. The Collateral Agent shall deliver a copy of any Default Notice and
any Enforcement Directive to each Secured Creditor not signatory thereto
within two (2) Business Days of its receipt by the Collateral Agent. The
Collateral Agent shall be entitled to rely and act upon advice of counsel
(including, without limitation, counsel to any Secured Creditor),
independent accountants and other experts selected by the Collateral Agent
with reasonable care concerning all matters pertaining to any duties
hereunder. The Company promptly after the execution hereof shall provide
the Collateral Agent with a list of the Purchasers and their contact
information, and shall promptly inform the Collateral Agent in writing of
any changes to the identities of or contact information for the Purchasers.
(ii) If an Enforcement Directive shall have been given by any
Directing Creditors, such Enforcement Directive cannot be rescinded except
by (a) written notice of the Directing Creditors initially providing such
Enforcement Directive or (b) order of a court of competent jurisdiction.
(iii) The Collateral Agent shall have no obligation to, nor liability
for failure to, independently verify the existence or occurrence of any
events set forth in any Default Notice it shall receive pursuant to SECTION
2(b)(i) hereof, and the Collateral Agent may rely thereon as to each matter
stated therein as more fully set forth in SECTION 2(e) hereof.
(iv) The Collateral Agent shall not release, substitute, exercise any
right or remedy, or take any other action with respect to any Collateral
without the prior written consent of the Required Creditors, except in
connection with an Enforcement Directive from the Directing Creditors. The
Collateral Agent shall give notice to each Secured
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Creditor of any substantial or material action taken by the Collateral
Agent pursuant to this SECTION 2(b)(iii) promptly after taking such action.
(v) The Collateral Agent undertakes to perform only such duties and
obligations as are specifically set forth in this Agreement, it being
expressly understood by the Secured Creditors and the Company that there
are no implied duties or obligations under this Agreement.
(vi) In connection with the pledge of the Real Property Collateral to
the Collateral Agent, the Course Leases with respect to each Mortgage will
be delivered to the Collateral Agent as soon after the date hereof as
reasonably practicable. Within two (2) Business Days following receipt of
the Course Leases the Collateral Agent shall review each such Course Lease
to ascertain that such Course Lease relates to a property identified on
SCHEDULE 1. In so doing, the Collateral Agent may rely on the purported due
execution and genuineness of any signature thereon. If, within such two (2)
day period, the Collateral Agent finds any Course Lease not to have been
executed or received or to be unrelated to the properties listed on
SCHEDULE 1, the Collateral Agent shall, promptly upon the conclusion of its
review, notify the Company and the Secured Parties. The Company shall
deliver promptly to the Collateral Agent any Course Leases that were not
delivered to the Collateral Agent in accordance with this section. Anything
to the contrary herein notwithstanding, the Collateral Agent shall not be
liable for any acts or omissions caused by or related to the failure of the
Company to deliver to the Collateral Agent any Collateral including, but
not limited to, the Course Leases and related documents, in accordance with
the terms hereof.
(vii) The Collateral Agent shall have no responsibility for reviewing
any Course Lease except as expressly provided in SECTION 2(b)(vi). In
reviewing any Course Lease pursuant to this Section 2(b)(vii), the
Collateral Agent shall have, without limitation, no responsibility for
determining whether any document is valid and binding, whether the text of
any assignment or endorsement is in proper or recordable form (except, if
applicable, to determine if the Collateral Agent is the assignee or
endorsee thereof), whether any document has been recorded in accordance
with the requirements of any applicable jurisdiction, whether a blanket
assignment is permitted in any applicable jurisdiction, whether any Person
executing any document is authorized to do so or whether any signature
thereon is genuine, but shall only be required to determine whether a
document has been executed and that it appears to be what it purports to
be.
(viii) It is understood and agreed upon by all of the parties hereto
that the Collateral Agent shall other than as set forth in Sections
2(b)(vi) and (vii),have no duty other than to receive or possess a pledge
of the Collateral and shall have no duty to examine or investigate such
Collateral for any defects under the terms of this Agreement.
(ix) Pursuant to the terms of this Agreement and the Security
Instruments, upon request of the Required Creditors prior to an Alternate
Major Default or a Major Default, as applicable, or upon request of any
Directing Creditors following a Major Default, and the delivery to the
Collateral Agent of two copies of a Request for Release in the form of
either EXHIBIT A or EXHIBIT B hereto from either the Required Creditors or
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any Directing Creditors, as applicable, the Collateral Agent shall release
or cause to be released such Collateral that is the subject of the Request
for Release to the designee of the Company, GEI or JCG prior to an
Alternate Major Default or a Major Default, as applicable, or the designee
of the Collateral Agent, following a Major Default.
(c) AGENTS AND ATTORNEYS-IN-FACT. The Collateral Agent may execute any of
its duties under the Security Instruments or this Agreement by or through its
agents or attorneys-in-fact, selected by the Collateral Agent with reasonable
care.
(d) LIMITATION ON LIABILITY. Neither the Collateral Agent nor any of its
officers, directors, employees or agents shall be liable, directly or
indirectly, to the Secured Creditors or the Company for any action lawfully
taken or omitted to be taken by it or them under or in connection with the
Security Instruments or this Agreement except for its or their own gross
negligence or willful misconduct. The Collateral Agent shall not be responsible
to any Secured Creditor for any recitals, statements, representations or
warranties not made by the Collateral Agent contained herein or in any other
Debt Document; or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, accuracy, completeness or sufficiency of this
Agreement or any other Debt Document or instruments executed and delivered, or
which could have been executed or delivered, in connection with this Agreement
or the other Debt Documents, including, without limitation, the attachment,
creation, effectiveness or perfection of the security interests granted or
purported to be granted hereunder in and to the Collateral.
(e) RELIANCE. The Collateral Agent shall be entitled to rely, and shall be
fully protected in relying, without independent investigation, upon any
certification, notice, consent or other communication (including, without
limitation, any thereof delivered by telephone or facsimile) reasonably believed
by it to be genuine and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including, without
limitation, counsel to any Secured Creditor), independent accountants and other
experts selected by the Collateral Agent with reasonable care. The Collateral
Agent shall not be deemed to have any notice of any events under any of the
agreements between the Company and any of the Secured Creditors unless a
corporate trust officer or a vice president of the Collateral Agent receives
written notice or obtains actual knowledge of such event.
(f) EXPENDITURES BY THE COLLATERAL AGENT. The Collateral Agent shall not be
required to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder, or in the exercise of its
rights or powers, if the Collateral Agent believes that repayment of such funds
(repaid in accordance with the terms of this Agreement) or adequate indemnity
against such risk or liability is not reasonably assured to it.
(g) INVESTMENT OF FUNDS. Upon written direction from the Company prior to a
Major Default or the Required Creditors following a Major Default, as
applicable, the Collateral Agent shall invest the funds in any accounts held by
the Collateral Agent only in Eligible Investments. No such Eligible Investment
shall mature later than the business day preceding the next following date of a
Distribution pursuant to SECTION 15 hereof and no Eligible Investment shall be
sold or disposed of prior to its maturity. In the absence of a written
direction, the Collateral Agent shall invest funds in the Collateral Proceeds
Account in Eligible Investments described in clause (vi) of the definition
thereof. Eligible Investments shall be made in the name of the
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Collateral Agent for the benefit of the Secured Creditors. The Collateral Agent
shall have no responsibility for verifying that any such investments are
Eligible Investments. Any interest income or other gain from investments in
Eligible Investments shall be credited to the same account as the source of the
funds for such investment and any loss resulting from such investments shall be
charged to such account; PROVIDED, HOWEVER, that the Company shall make or cause
to be made no later than the applicable date of Distribution a deposit to the
applicable account to the extent of any losses therein caused as a result of the
investment instructions provided for herein. The Collateral Agent shall not be
liable for any loss incurred on any funds invested in Eligible Investments
pursuant to the provisions of this SECTION 2(g).
3. COLLATERAL DISPOSITIONS. Each Secured Creditor hereby agrees to permit
the release of the Real Property Collateral by the Collateral Agent, and the
Collateral Agent agrees to release such Real Property Collateral, upon receipt
of a Request for Release in the form of either EXHIBIT C or EXHIBIT D hereto
from GEI or JCG, as applicable, that one of the following events shall have
occurred:
(a) any termination or cancellation of any Lease by any party other than
AGC, Mountaingate, GEI or JCG;
(b) sales or dispositions in the ordinary course of business (other than
termination, cancellation or disposition of Leases and Third-Party Management
Contracts);
(c) [Intentionally deleted]; or
(d) any sales, terminations or dispositions which are approved pursuant to
prior written consent by the Required Creditors.
4. REPRESENTATIONS AND WARRANTIES. Each of Mountaingate, GEI, JCG and Xxxxx
X. Xxxxx, as applicable, hereby represents and warrants to the Collateral Agent
and the Secured Creditors that each of the following representations and
warranties is true and correct on and as of the date hereof:
(a) JCG AUTHORIZATION. The execution, delivery and performance by each of
Mountaingate, GEI and JCG of this Agreement have been duly authorized by all
necessary action of Mountaingate, GEI and JCG.
(b) NO CONFLICT. The execution, delivery and performance by each of
Mountaingate, GEI, JCG and Xxxxx X. Xxxxx of this Agreement do not and will not
contravene or conflict with or constitute a default or result in a Lien under
any other contract, agreement, indenture or undertaking to which any of
Mountaingate, GEI, JCG or Xxxxx X. Xxxxx is a party or by which any of
Mountaingate, GEI, JCG or Xxxxx X. Xxxxx, or its or his property may be bound if
affected.
(c) BINDING OBLIGATIONS. This Agreement is a valid, binding and legal
obligation of each of Mountaingate, JCG and Xxxxx X. Xxxxx, enforceable against
each of Mountaingate, GEI, JCG and Xxxxx X. Xxxxx in accordance with its terms.
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(d) TITLE. Each of GEI and JCG is party to each of the Leases including,
without limitation, the Course Leases, constituting the Real Property
Collateral, and Mountaingate is the fee simple owner of the Mountaingate
Property, in each case free and clear of all Liens whatsoever except the
Permitted Encumbrances. Mountaingate, subject to its Lease with the Company,
enjoys peaceful and undisturbed possession of the Mountaingate Property, and GEI
and JCG enjoy peaceful and undisturbed possession under all of the Course Leases
under which each operates, and all such Course Leases are valid and subsisting
and in full force and effect, binding upon and enforceable against the lessors
and lessees thereunder, and each of Mountaingate, GEI and JCG is not in default
in any material respect in the performance and observance of its respective
obligations under any thereof. The Mortgages, when properly recorded in the
appropriate records together with any UCC financing statements required to be
filed in connection therewith, will create (i) valid, perfected liens on the
Real Property Collateral subject only to Permitted Encumbrances, and (ii)
perfected security interests in and to, and perfected collateral assignments of,
all material personalty, included within the Real Property Collateral including
any leases, all in accordance with the terms thereof, in each case subject only
to any applicable Permitted Encumbrances. NOTHING IN THIS PARAGRAPH MAY BE
RELIED ON BY ANY TITLE INSURANCE COMPANY ISSUING A TITLE INSURANCE POLICY. No
Person other than each of Mountaingate, GEI and JCG owns any interest in any
payments due under any Leases affecting the Real Property Collateral that is
superior to or of equal priority with the Collateral Agent's interest therein.
(e) ENVIRONMENTAL MATTERS. Except as could not reasonably be expected to
result in a Material Adverse Effect,
(i) the Real Property Collateral does not contain, and has not
previously contained, any Materials of Environmental Concern in amounts or
concentrations which constitute or constituted a violation of, or could
reasonably be expected to give rise to liability under, Environmental Laws;
(ii) the Real Property Collateral and all operations at the Real
Property Collateral are in compliance, and have been in compliance, with
all applicable Environmental Laws, and there is no contamination at, under
or about the Real Property Collateral, or violation of any Environmental
Law with respect to the Real Property Collateral;
(iii) each of Mountaingate, GEI and JCG has not received any written
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Real Property Collateral, nor
does it have knowledge or reason to believe that any such notice will be
received or is being threatened;
(iv) Materials of Environmental Concern have not been transported or
disposed of from the Real Property Collateral in violation of, or in a
manner or to a location which could reasonably be expected to give rise to
liability under, Environmental Laws, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Real Property Collateral in
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violation of, or in a manner that could reasonably be expected to give rise
to liability under, any applicable Environmental Laws;
(v) no judicial proceedings or governmental or administrative action
is pending, or, to the knowledge of each of Mountaingate, GEI and JCG,
threatened, under any Environmental Law to which each of Mountaingate, GEI
and JCG or any of its subsidiaries is or will be named as a party with
respect to the Real Property Collateral, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Real Property Collateral; and
(vi) there has been no release or threat of release of Materials of
Environmental Concern at or from the Real Property Collateral, or arising
from or related to the operations of each of Mountaingate, GEI and JCG or
its subtenants in connection with the Real Property Collateral in violation
of or in amounts or in a manner that could reasonably be expected to give
rise to liability under Environmental Laws.
(f) LEASES. The Leases are valid and subsisting and in full force and
effect, binding upon and enforceable against the lessors and lessees
thereunder and, except for the defaults by GEI and JCG thereunder, neither
GEI nor JCG is aware of any default or event of default pursuant to the
terms of any of the Leases.
5. AFFIRMATIVE COVENANTS OF MOUNTAINGATE, GEI, JCG AND XXXXX X. XXXXX.
(a) IMPOSITIONS AND OTHER CLAIMS. Each of Mountaingate, GEI, JCG, and Xxxxx
X. Xxxxx, to the extent applicable, shall pay and discharge (or require to be
paid and discharged), prior to their becoming delinquent, all taxes,
assessments, insurance premiums, charges, encumbrances and liens now or
hereafter imposed upon or affecting any Collateral to the extent that failure to
do so could result in a Material Adverse Effect.
(b) LITIGATION. Each of Mountaingate, GEI, JCG and Xxxxx X. Xxxxx, to the
extent applicable, shall give prompt written notice to the Collateral Agent of
any litigation or governmental proceedings pending or threatened in writing
against such Guarantor or the Collateral which is reasonably likely to have a
Material Adverse Effect.
(c) COOPERATE IN LEGAL PROCEEDINGS. Except with respect to any claim by any
Guarantor against the Collateral Agent or the Secured Creditors, each of
Mountaingate, GEI, JCG and Xxxxx X. Xxxxx shall cooperate fully with the
Collateral Agent and the Secured Creditors with respect to any proceedings
before any Governmental Authority which may in any material way affect the
rights of the Collateral Agent and the Secured Creditors hereunder or under any
of the Debt Documents and, in connection therewith, the Collateral Agent and the
Secured Creditors may, at their election, participate or designate a
representative to participate in any such proceedings.
(d) LEASES. Any bond or other instrument which Mountaingate, GEI and JCG is
permitted to hold in lieu of cash security deposits under any applicable laws
shall (to the extent permitted under the terms of such bond or instrument) be
pledged to the Collateral Agent as security for the Secured Obligations. Each of
Mountaingate, GEI and JCG shall, upon the
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Collateral Agent's request (made at the direction of the Required Creditors),
provide the Collateral Agent with evidence reasonably satisfactory to the
Required Creditors of its compliance with the foregoing. During the continuance
of any Alternate Major Default (in the case of the Mountaingate Mortgage) and
any Major Default (in the case of the GEI Mortgages and JCG Mortgages), each of
GEI, JCG and Mountaingate, as the case may be, shall, upon the Collateral
Agent's request (made at the direction of the Directing Creditors), if not
prohibited by any applicable laws, remit to the Collateral Agent an amount equal
to the aggregate security deposits (if any) held by Mountaingate, GEI or JCG, as
applicable (including any interest theretofore earned thereon) with respect to
all of the Real Property Collateral or such portion of the Real Property
Collateral as the Collateral Agent shall specify, to be held by the Collateral
Agent subject to the terms of the Leases and the rights of the depositors
thereof.
(e) FURTHER ASSURANCES. Each of Mountaingate, GEI, JCG and Xxxxx X. Xxxxx
shall, at such Guarantor's sole cost and expense, (other than in connection with
the replacement of the Collateral Agent in the event the Collateral Agent is
replaced by the Required Creditors (without cause), which shall be at the sole
cost and expense of the Secured Creditors) from time to time as reasonably
requested by the Collateral Agent, execute, acknowledge, record, register, file
and/or deliver to the Collateral Agent such other instruments, agreements,
certificates and documents (including UCC financing statements, fixture filings
and amended or replacement mortgages or deeds of trust) as the Collateral Agent
may reasonably request (at the direction of either the Bank or the Required
Purchasers) to evidence, confirm, perfect and maintain the Liens securing or
intended to secure the Secured Obligations or to facilitate a replacement of the
Collateral Agent if requested by the Secured Creditors, and do and execute all
such further lawful and reasonable acts, conveyances and assurances for the
better and more effective carrying out of the intents and purposes of this
Agreement, the Guaranties, the Mortgages, the Price Pledge Agreement, the
Mountaingate Control Agreement (if applicable), the Xxxxx X. Xxxxx Control
Agreement (if applicable) and the other Debt Documents as either the Bank or the
Required Purchasers shall reasonably require from time to time. Each of
Mountaingate, GEI, JCG and Xxxxx X. Xxxxx hereby authorizes and appoints the
Collateral Agent as its attorney-in-fact to execute, acknowledge, record,
register and/or file such instruments, agreements, certificates and documents,
and to do and execute such acts, conveyances and assurances, should any
Guarantor fail to do so itself or himself in violation of this Agreement
following written request from the Collateral Agent, in each case without the
signature of such Guarantor. The foregoing grant of authority is a power of
attorney coupled with an interest and such appointment shall be irrevocable for
the term of this Agreement. Each of Mountaingate, GEI, JCG and Xxxxx X. Xxxxx
hereby ratifies all actions that such attorney shall lawfully take or cause to
be taken in accordance with this SECTION 5(e).
(f) INSURANCE.
(i) Each of Mountaingate, GEI and JCG shall obtain and maintain with
respect to the Real Property Collateral for the mutual benefit of
Mountaingate, GEI, JCG and the Collateral Agent at all times, policies of
insurance in accordance with Schedule 2, attached hereto and made a part
hereof, except for those future changes in insurance determined in the
ordinary course of business to be necessary by each of Mountaingate, GEI
and JCG in its commercially reasonable judgment and provided that such
changes will have no Material Adverse Effect.
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(ii) All policies of insurance (the "POLICIES") required pursuant to
this SECTION 5(f);
A. shall be maintained so long as any of the Secured
Obligations remain outstanding without cost to the Collateral
Agent or any Secured Creditor;
B. with respect to property policies, shall contain a
standard mortgagee clause (to the extent applicable), and shall
name the Collateral Agent and its successors and assigns, as
first mortgagee and loss payee (to the extent applicable);
C. with respect to liability policies, shall name the
Collateral Agent, and its successors and assigns, and the Secured
Creditors as additional insureds;
D. shall not contain a co-insurance clause, and that the
Collateral Agent shall receive at least 10 days' prior written
notice of any change in coverage and/or cancellation;
E. shall contain an endorsement providing that no act or
negligence of Mountaingate, GEI or JCG or of a tenant or other
occupant of the Real Property Collateral shall affect the
validity or enforceability of the insurance insofar as a
mortgagee is concerned; and
F. shall contain a waiver of subrogation against the
Collateral Agent and the Secured Creditors.
(iii) Each of Mountaingate, GEI and JCG shall pay or cause to be paid
the premiums for all policies as the same become due and payable.
Certificates of such policies shall be delivered to the Collateral Agent
promptly upon request by either the Bank or the Required Purchasers (and,
promptly after request following the occurrence of a Casualty the proceeds
of which are expected to exceed $5,000,000 copies of any policies related
to the Casualty loss in question, certified as true and correct by
Mountaingate, GEI and JCG, as applicable, shall be delivered to the
Collateral Agent). Not later than 30 days prior to the date on which
coverage would be cancelled in the absence of payment of the applicable
premiums, each of Mountaingate, GEI and JCG shall deliver to the Collateral
Agent evidence, reasonably satisfactory to the Required Creditors, of its
renewal.
(G) CASUALTY AND CONDEMNATION.
(i) In the event of any Casualty or Condemnation, each of
Mountaingate, GEI and JCG shall give prompt notice thereof to the
Collateral Agent. The Collateral Agent (at the direction of the Required
Creditors and, after an Alternate Major Default with respect to
Mountaingate or a Major Default with respect to GEI or JCG, as applicable,
any Directing Creditor may, after the occurrence and during the
continuation of an Alternate Major Default or a Major Default, as
applicable, settle and adjust any claims
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without the consent or cooperation of each of Mountaingate, GEI and JCG.
The reasonable expenses incurred by the Collateral Agent in the adjustment
and such proceeds of a Casualty or Condemnation shall become part of the
Secured Obligations and shall be reimbursed by Mountaingate, GEI or JCG, as
applicable, to the Collateral Agent or the Secured Creditors upon demand
therefor.
(ii) All proceeds from any Casualty or Condemnation in excess of
$5,000,000 (or if an Alternate Major Default or a Major Default has
occurred and is continuing, all proceeds from any Casualty or Condemnation)
with respect to any one event or occurrence shall be immediately deposited
into the Loss Proceeds Account. All other proceeds from any Casualty or
Condemnation shall be paid to each of Mountaingate, GEI and JCG to restore
the affected Real Property Collateral. Provided that no Alternate Major
Default or Major Default shall have occurred and be then continuing, the
proceeds of any Casualty or Condemnation shall be disbursed by the
Collateral Agent from the Loss Proceeds Account to each of Mountaingate,
GEI and JCG from time to time to fund the replacement or restoration of the
affected property upon the Collateral Agent's being furnished with (a)
evidence reasonably satisfactory to the Required Creditors of the estimated
cost of completion of the restoration or replacement of the affected Course
Lease, Land and/or Improvements, (b) funds, or assurances reasonably
satisfactory to the Required Creditors that such funds are available and
sufficient in addition to the remaining proceeds of any Casualty or
Condemnation, to complete the proposed restoration or replacement, and (c)
such architect's certificates, waivers of lien, contractor's sworn
statements, title insurance endorsements, bonds, plats of survey and such
other evidences of cost, payment and performance as the Required Creditors
may reasonably require and as are customarily provided to mortgage lenders
in the applicable region as a condition to disbursing property insurance
proceeds for restoration or replacement. With respect to disbursements made
pursuant to clause (b) above, (1) no payment shall exceed 90% of the value
of the work performed from time to time until such time as 50% of the
restoration (calculated based on anticipated aggregate cost of the work)
has been completed, and amounts retained prior to completion of 50% of the
restoration shall not be paid prior to the final completion of the
restoration, and (2) funds other than proceeds of any Casualty or
Condemnation shall be disbursed prior to disbursement of such proceeds, and
at all times the undisbursed balance of such proceeds remaining in the Loss
Proceeds Account, together with any additional funds irrevocably and
unconditionally deposited therein or irrevocably and unconditionally
committed for that purpose, shall be at least sufficient in the reasonable
judgment of the Required Creditors to pay for the cost of completion of the
restoration free and clear of all liens or claims for lien.
(iii) Each of Mountaingate, GEI and JCG shall cooperate with the
Collateral Agent in obtaining for the Collateral Agent the benefits of any
such proceeds payable to the Collateral Agent in connection with the
affected Real Property Collateral under the terms hereof and the other Debt
Documents. The Collateral Agent shall be reimbursed for any actual expenses
reasonably incurred in connection therewith (including reasonable
attorneys' fees and disbursements, and, if reasonably necessary to collect
such proceeds, the expense of an appraisal on behalf of the Collateral
Agent) out of such
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proceeds, to the extent that each of Mountaingate, GEI and JCG is not duly
and diligently seeking payment of such proceeds.
(h) In the event of any Casualty or Condemnation affecting Real Property
Collateral in respect of which the proceeds therefrom are not applied toward
restoration or replacement, such proceeds shall be paid by the Collateral Agent
to the Secured Creditors to be applied toward repayment of the Secured
Obligations in accordance with SECTION 15 of this Agreement.
(i) [Intentionally deleted.]
(j) ENVIRONMENTAL MATTERS. Each of Mountaingate, GEI and JCG will and will
cause each of its subsidiaries to:
(i) comply with, and use its best efforts to ensure compliance by all
tenants and subtenants, if any, with all applicable Environmental Laws and
obtain and comply with and maintain, and use its best efforts to ensure
that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws, except to the extent that
failure to do so could not be reasonably expected to have a Material
Adverse Effect;
(ii) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws, except to the extent that (a) the same are being
contested in good faith by appropriate proceedings and the pendency of such
proceedings could not be reasonably expected to have a Material Adverse
Effect, or (b) each of Mountaingate, GEI and JCG has determined in good
faith that contesting the same is not in the best interests of each of
Mountaingate, GEI and JCG and the failure to contest the same could not be
reasonably expected to have a Material Adverse Effect; and
(iii) defend, indemnify and hold harmless the Collateral Agent, each
Secured Creditor and their respective employees, agents, officers and
directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or liability under any
Environmental Laws applicable to the operations of each of Mountaingate,
GEI and JCG, or the Real Property Collateral, or any orders, requirements
or demands of Governmental Authorities related thereto, including, without
limitation, attorney's and consultant's fees, investigation and laboratory
fees, response costs, court costs and litigation expenses, except to the
extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. This
indemnity shall continue in full force and effect regardless of the
termination of this Agreement.
(k) RIGHT OF ENTRY AND DISCLOSURE OF ENVIRONMENTAL REPORTS. Each of
Mountaingate, GEI and JCG grants to the Collateral Agent, the Secured Creditors
and their respective agents, employees, consultants and contractors,
authorization to enter upon and inspect the Real Property
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Collateral at reasonable times and upon reasonable advance notice, and conduct
such environmental audits and tests, including, without limitation, subsurface
testing, soils and groundwater testing, and other tests which may physically
invade the Real Property Collateral, which the Secured Creditors, in their sole
and absolute discretion, determine are necessary or desirable. With respect to
invasive testing, such as soil borings, the Collateral Agent and/or the Secured
Creditors shall consult with each of Mountaingate, GEI and JCG in advance of
such tests, and any such tests shall be conducted in a manner that minimizes
interference with each of Mountaingate, GEI and JCG's (or any tenant's)
operations at the Real Property Collateral. Notwithstanding anything to the
contrary contained in this SECTION 6(k), each of the Collateral Agent and the
Secured Creditors agree, that it shall not conduct any such audits, inspections
or tests unless an Alternate Major Default or a Major Default exists or such
Person has reason to believe that such audit, inspection or test is likely to
disclose the presence or release of Materials of Environmental Concern in
violation of Environmental Laws, or unless an environmental audit deems further
testing necessary. All reasonable out-of-pocket costs and expenses incurred by
the Collateral Agent and the Secured Creditors in connection with any
inspection, audit or testing conducted in accordance with this SECTION 6(k)
shall be paid by each of Mountaingate, GEI and JCG. The results of all
investigations and reports prepared by the Collateral Agent or the Secured
Creditors shall be and at all times remain the property of the such Person(s)
and under no circumstances shall the Collateral Agent or the Secured Creditors
have any obligation whatsoever to disclose or otherwise make available to each
of Mountaingate, GEI and JCG or any other party such results or any other
information obtained by it in connection with such investigations and reports;
provided, however, that if there exists no Alternate Major Default or Major
Default, as applicable, if requested by any of Mountaingate, GEI and JCG, such
Person(s) shall provide to each of Mountaingate, GEI and JCG a copy of the
written report with respect to any inspection, audit or testing for which any of
Mountaingate, GEI and JCG has paid hereunder. The Collateral Agent hereby
reserves the right, and each of Mountaingate, GEI and JCG hereby expressly
authorizes the Collateral Agent to make available to any party in connection
with a sale of any Real Property Collateral by the Collateral Agent at a
foreclosure sale or subsequent to foreclosure, any and all such environmental
reports whether prepared by the Collateral Agent, the Secured Creditors or by
each of Mountaingate, GEI and JCG which the Collateral Agent may have with
respect to the Real Property Collateral. Each of Mountaingate, GEI and JCG
further agrees that the Collateral Agent and the Secured Creditors may disclose
such environmental reports to any governmental agency or authority if they are
required to disclose any matter contained therein to such agency or authority;
provided that such Persons shall give each of Mountaingate, GEI and JCG at least
48 hours prior written notice before so doing. Each of Mountaingate, GEI and JCG
acknowledges that neither the Collateral Agent nor the Secured Creditors can
control or otherwise assure the truthfulness or accuracy of such environmental
reports, and that the release of such environmental reports, or any information
contained therein, to prospective bidders at any foreclosure sale of the Real
Property Collateral may have a material and adverse effect upon the amount which
a party may bid at such sale. Each of Mountaingate, GEI and JCG agrees that
neither the Collateral Agent nor the Secured Creditors shall have any liability
whatsoever as a result of delivering any or all of such reports or any
information contained therein to any third party, and each of Mountaingate, GEI
and JCG hereby releases and forever discharges the Collateral Agent and the
Secured Creditors from any and all claims, damages, or causes of action arising
out of connected with or incidental to such reports or the delivery thereof in
compliance with the terms of this SECTION 6(k).
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6. COVENANTS OF MOUNTAINGATE, GEI AND JCG.
(a) LIENS. Mountaingate, GEI and JCG shall not permit the existence of any
Lien on any of the Collateral, other than Permitted Encumbrances.
(b) TRANSFER. Mountaingate, GEI and JCG shall not transfer any of the
Mountaingate, GEI or JCG Collateral other than in compliance with the Debt
Documents.
(c) ZONING AND USES. Without the consent of the Required Creditors, each of
Mountaingate, GEI and JCG shall not initiate or support any limiting change in
the permitted uses of any Real Property Collateral (or to the extent applicable,
zoning reclassification of any Real Property Collateral or any portion thereof,
seek any variance under existing land use restrictions, laws, rules or
regulations (or, to the extent applicable, zoning ordinances) applicable to any
Real Property Collateral, or use any Property in a manner that would have a
Material Adverse Effect;
(d) WASTE. Each of Mountaingate, GEI and JCG shall not commit or permit any
material waste on any Real Property Collateral, nor take any actions that might
invalidate any insurance carried on any Real Property Collateral.
(e) RIGHT TO CONTEST. Notwithstanding anything to the contrary in this
Agreement, after prior written notice to the Collateral Agent, Mountaingate, GEI
and JCG, at its expense may contest, or cause to be contested, by appropriate
legal proceedings conducted in good faith and with due diligence, the amount or
validity or application, in whole or in part, of any taxes or other impositions,
legal requirement or insurance requirement, or any Lien referred to in SECTION
6(A), provided, that (i) in the case of an unpaid imposition, lien, encumbrance
or charge, such proceedings shall suspend the collection thereof from the
Guarantors, the Collateral Agent, the Mountaingate, GEI and JCG Collateral and
any rent or other income therefrom and shall not interfere with the payment of
any such rent or income, (ii) neither the Mountaingate, GEI and JCG Collateral
nor any rent or other income therefrom nor any part thereof or interest therein
would be in any material danger of being sold, forfeited, lost or interfered
with, (iii) in the case of a legal requirement, neither any Guarantor nor the
Collateral Agent would be in any material danger of any civil or criminal
liability for failure to comply therewith, (iv) Mountaingate, GEI and JCG shall
have furnished such security, if any, as may be required in the proceedings or
as may reasonably be requested by the Required Creditors, (v) the nonpayment of
the whole or any part of any such tax, assessment or charge will not result in
the delivery of a tax deed to the Real Property Collateral or any part thereof
because of such non-payment, (vi) the payment of any sums required to be paid in
respect of the Secured Obligations (other than any unpaid imposition, lien,
encumbrance or charge at the time being contested in accordance with this
SECTION 6(E)) shall not be interfered with or otherwise affected, and (vii) in
the case of any insurance requirement, the failure of any Guarantor to comply
therewith shall not affect the validity of any insurance required to be
maintained by such Guarantor under SECTION 5(f).
7. LOSS PROCEEDS ACCOUNT.
(a) Promptly after the occurrence of a Casualty or Condemnation, each of
Mountaingate, GEI and JCG shall, to the extent required under SECTION 5(G) of
this Agreement,
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establish and thereafter maintain with the Collateral Agent a segregated trust
account for the purpose of depositing any proceeds from such Casualty or
Condemnation (the "LOSS PROCEEDS ACCOUNT").
(b) Provided no Alternate Major Default or Major Default, as applicable, is
continuing, funds in the Loss Proceeds Account shall be applied in accordance
with SECTION 5(g) of this Agreement.
(c) During the continuation of an Alternate Major Default or a Major
Default, as applicable, the Collateral Agent shall, at the direction of the
Directing Creditors, withdraw funds in the Loss Proceeds Account and pay the
same to the Secured Creditors for application toward the reduction or discharge
of the Secured Obligations, as set forth in SECTION 15, below.
8. FEES AND EXPENSES. The Company agrees to pay to the Collateral Agent,
from time to time upon demand, all reasonable fees (including the Collateral
Agent's Fee), costs and expenses of the Collateral Agent and each of the other
Secured Creditors (including the reasonable fees and charges of counsel and
business advisors to each Secured Creditor (including Pillsbury Winthrop LLP,
Xxxxx, Xxxxxxxx & White LLC, Akin, Gump, Strauss, Xxxxx & Xxxx L.L.P. and
Nightingale & Associates, LLC) (i) arising in connection with the administration
or enforcement of any of the provisions of this Agreement or the Security
Instruments (including the expenses of the Collateral Agent in furnishing any
reports and information requested by the Secured Creditors), (ii) incurred or
required to be advanced in connection with the administration of the Collateral,
the sale or other disposition of the Collateral pursuant to any Security
Instruments and the preservation, protection or defense of the Collateral
Agent's rights under this Agreement and the Security Instruments, or (iii)
incurred by the Collateral Agent in connection with the resignation of the
Collateral Agent pursuant to SECTION 18.
9. ADDITIONAL COVENANTS OF THE GUARANTORS.
(a) Each of Mountaingate, GEI, JCG and Xxxxx X. Xxxxx hereby agrees: (i) to
procure, execute and deliver from time to time any endorsements, assignments,
financing statements and other writings reasonably deemed necessary or
appropriate by the Required Creditors to perfect, maintain and protect their
security interest hereunder and the priority thereof and to deliver promptly to
the Collateral Agent all originals of any documents evidencing proceeds of the
Real Property Collateral consisting of chattel paper or instruments; (ii) not to
surrender possession of, sell, encumber (other than to the Collateral Agent), or
otherwise dispose of or transfer, any Real Property Collateral or right or
interest therein other than as permitted under this Agreement (including without
limitation pursuant to SECTION 10(b) below) or the other Debt Documents; (iii)
after the occurrence and during the continuance of an Alternate Major Default
with respect to Mountaingate or a Major Default with respect to GEI or JCG, as
applicable (and at all other times expressly provided for in this Agreement) to
account fully for and promptly to deliver to the Collateral Agent, in the form
received, all proceeds of the Real Property Collateral received, endorsed to the
Collateral Agent as appropriate and accompanied by such assignments and powers,
duly executed, as the Required Creditors shall reasonably request, and until so
delivered all Real Property Collateral and proceeds thereof shall be held in
trust for the Collateral Agent for the benefit of the Secured Creditors; (iv) at
any reasonable time, upon demand by the Collateral Agent, to exhibit to and
allow inspection by the Required
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Creditors (or Persons designated by the Collateral Agent or the Required
Creditors, as applicable) of the Real Property Collateral and the records
concerning the Real Property Collateral; (v) to keep the records concerning the
Real Property Collateral at the location(s) set forth in SECTION 24 below and
not to remove such records from such location(s) without thirty (30) days prior
written notice to the Collateral Agent; (vi) not knowingly to use any Real
Property Collateral or permit any Real Property Collateral to be used unlawfully
or in violation of any provision of this Agreement or the other Debt Documents
or any applicable statute, regulation or ordinance or any policy of insurance
covering the Real Property Collateral; (vii) to notify the Collateral Agent and
the Secured Creditors before any such change shall occur of any change in such
Guarantor's name, identity or structure through merger, consolidation or
otherwise; (viii) to appear in and defend, at such Guarantor's cost and expense,
any action or proceeding which may affect its title to or the Collateral Agent's
interest for the benefit of the Secured Creditors in the Real Property
Collateral unless the failure to do so would not have a Material Adverse Effect;
and (ix) to keep accurate and complete records of the Real Property Collateral
and to provide the Collateral Agent with such records and such reports and
information relating to the Real Property Collateral as the Collateral Agent may
reasonably request from time to time.
10. COLLECTION OF COLLATERAL PAYMENTS.
(a) Each of the Guarantors shall, at the Company's sole cost and expense,
endeavor to obtain payment directly, when due and payable, of all sums due or to
become due with respect to any Collateral ("COLLATERAL PAYMENTS" or a
"COLLATERAL PAYMENT"), consistent with all requirements of law and contractual
obligations binding upon such Guarantor, but subject to such Guarantor's
reasonable business judgment and right to contest as set forth in SECTION 6(E)
above. Upon the request of the Directing Creditors following the occurrence of
an Alternate Major Default with respect to Xxxxx X. Xxxxx or Mountaingate or a
Major Default with respect to GEI or JCG, as applicable (and subject to the
requirements of applicable law), the Guarantors will notify and direct any party
who is or might become obligated to make any Collateral Payment to make payment
thereof to the Collateral Agent (or to the Company in care of the Collateral
Agent) at such address as the Collateral Agent may designate which payment will
promptly be deposited into the Collateral Proceeds Account. The Company will
reimburse the Collateral Agent promptly upon demand for all reasonable
out-of-pocket costs and expenses, including reasonable attorneys' fees and
litigation expenses, incurred by the Collateral Agent in seeking to collect any
Collateral Payment.
(b) Following the occurrence of an Alternate Major Default with respect to
Xxxxx X. Xxxxx or Mountaingate or a Major Default with respect to GEI or JCG, as
applicable, each of the Guarantors will transmit and deliver to the Collateral
Agent, forthwith upon receipt and in the form received, all cash, checks, drafts
and other instruments for the payment of money (properly endorsed where required
so that such items may be collected by the Collateral Agent) which may be
received by any Guarantor at any time as payment on account of any Collateral
Payment and if such request shall be made, until delivery to the Collateral
Agent, such items will be held in trust for the Collateral Agent for the benefit
of the Secured Creditors and will not be commingled by the Guarantors with any
of its or his other funds or property. Thereafter, the Collateral Agent is
hereby authorized and empowered to endorse the name of the Guarantors on any
check, draft or other instrument for the payment of money received by the
Collateral Agent on account of any
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Collateral Payment if the Collateral Agent believes such endorsement is
necessary or desirable for purposes of collection. The Collateral Agent shall,
promptly upon receipt of any payment of money, deposit such sum into the
Collateral Proceeds Account.
(c) Each of the Guarantors hereby agrees to indemnify, defend and save
harmless the Collateral Agent, the Secured Creditors and their respective
agents, officers, employees and representatives from and against all liabilities
and reasonable expenses on account of any adverse claim asserted against the
Collateral Agent or any Secured Creditor relating to any moneys received by the
Collateral Agent or any Secured Creditor on account of any Collateral Payment
(other than as a direct result of the gross negligence or willful misconduct of
the Collateral Agent or any Secured Creditor) and such obligation of each of the
Guarantors shall continue in effect after and notwithstanding the discharge of
the Secured Obligations and/or the release of the security interest granted in
SECTION 3 above.
11. ENFORCEMENT AND PRIORITY.
(a) ENFORCEMENT WITH RESPECT TO COLLATERAL. Each and every Secured Creditor
shall have the right to deliver a Default Notice to the Collateral Agent to the
extent an Alternate Major Default with respect to Xxxxx X. Xxxxx or Mountaingate
or a Major Default with respect to GEI or JCG, as applicable shall have
occurred. The Collateral Agent shall promptly (but within no more than 2
Business Days) deliver such Default Notice to such Person party to the relevant
Debt Document. Upon and after the delivery to the Collateral Agent of (i) a
Default Notice by any Secured Creditor and (ii) an Enforcement Directive from
the Directing Creditors, the Collateral Agent shall undertake Enforcement
pursuant to this SECTION 11(A), and proceed to protect and enforce rights or
remedies granted under the Security Instruments as directed in the Enforcement
Directive, either by suit in equity or by action at law, or both, whether for
the specific performance of any covenant, agreement or other provision contained
herein or in the Security Instruments, or to enforce any other legal or
equitable right or remedy provided herein or therein. Each Secured Creditor that
is a party hereto hereby agrees that it shall not take any action of Enforcement
in respect of or affecting any Collateral except through the delivery of an
Enforcement Directive from the Directing Creditors to the Collateral Agent.
(b) COOPERATION OF THE SECURED CREDITORS. Each Secured Creditor that is a
party hereto hereby agrees and covenants with each other Secured Creditor that:
(i) promptly (but not more than 2 Business Days) after having actual
knowledge of the occurrence of an Alternate Major Default or a Major
Default, as applicable, such Secured Creditor will deliver to the
Collateral Agent and the Collateral Agent will deliver promptly (but not
more than 2 Business Days) to the Secured Creditors upon receipt written
notice of such Alternate Major Default or Major Default, clearly identified
as a Default Notice (a "DEFAULT NOTICE") identifying the nature of such
Alternate Major Default or Major Default, as applicable; PROVIDED, HOWEVER,
that no Default Notice shall be required to be given if (A) such Alternate
Major Default or Major Default is waived or cured prior to the time a
Default Notice is delivered, or (B) notice of such Alternate Major Default
or Major Default has previously been delivered to the Collateral Agent;
PROVIDED FURTHER, that the failure to give such notice shall not impair
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any rights hereunder or under any of the Security Instruments or the other
Debt Documents;
(ii) it will from time to time at the request of the Collateral Agent
provide such information that is available to it to the Collateral Agent as
may be necessary to enable the Collateral Agent to make any calculation
hereunder or otherwise reasonably required and requested for any other
purpose hereof;
(iii) it will from time to time consult with the Collateral Agent and
the other Secured Creditors in good faith regarding the Enforcement of its
rights with a view to recovering amounts due under any of the Debt
Documents; and
(iv) in connection with any Enforcement, the Secured Creditors shall
act in good faith and in a manner so as to maximize realization of and
valuation on the Collateral, including, by way of example, with respect to
California's anti-deficiency laws and California's security-first and
one-action rules.
(c) PRIORITY OF INTERESTS; PARI PASSU NATURE OF SECURED OBLIGATIONS.
Notwithstanding any agreements or arrangements in existence prior to the date
hereof or hereafter arising or the existence or priority of any Lien in any of
the Collateral held by a Secured Creditor or any other Person on behalf of a
Secured Creditor on the date hereof or hereafter arising without giving effect
to this Agreement, the rights and interests of such Secured Creditor in the
Collateral, and any Lien therein, shall be subject to this Agreement and treated
as among the Secured Creditors as having such priority as set forth herein and
shall be shared at all times among the Secured Creditors in accordance herewith,
and the proceeds of any sale, transfer or other disposition of the Collateral
for any reasons whatsoever shall be distributed in accordance with this
Agreement; PROVIDED that the foregoing shall not apply to the AGC/NGOP
Collateral with respect to which the AGC/NGOP Collateral Agency Agreement shall
govern. Each Secured Creditor acknowledges and agrees that the portions of each
of the Secured Obligations share the benefit and Lien priority of and to the
Security Instruments, the Collateral and the Collateral Proceeds and the
Distributions on the basis specified in SECTION 15(b).
(d) REMEDIES OF THE COLLATERAL AGENT. Upon the occurrence of an Alternate
Major Default with respect to Xxxxx X. Xxxxx or Mountaingate or a Major Default
with respect to GEI or JCG, as applicable, the Collateral Agent shall have the
rights and remedies set forth herein and in the Mortgages, the Guaranties and
other Security Instruments, including without limitation, the right, upon
receipt of a Default Notice from any Secured Creditor and an Enforcement
Directive from the Directing Creditors, to foreclose upon and sell any or all of
the Collateral. Whether or not the Collateral Agent exercises any such right,
upon the occurrence of any Alternate Major Default or Major Default, as
applicable, and following the acceleration of any part of the Secured
Obligations, the Collateral Agent on behalf of the Secured Creditors shall have
as to any Collateral, all other rights and remedies provided for herein and in
the Security Instruments, and all rights and remedies of a Secured Creditor
under the California Uniform Commercial Code and, in addition thereto and not in
lieu thereof, all other rights or remedies at law or in equity existing or
conferred upon the Collateral Agent on behalf of the Secured Creditors by other
jurisdictions or other applicable law or given to the Collateral Agent on behalf
of the Secured Creditors pursuant to the Security Instruments, including any
security agreement
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or other instrument or agreement heretofore, now, or hereafter given as security
for the Secured Obligations. For the avoidance of doubt, all the rights and
remedies set forth herein are cumulative and may be exercised successively or
concurrently.
(e) WAIVERS OF RIGHTS. Except as otherwise expressly set forth herein,
until the occurrence of the Security Termination Date, each of the Secured
Creditors hereby waives any and all rights each may individually (i.e., other
than through the Collateral Agent) now or hereafter have to exercise any
Enforcement action. Each of the Secured Creditors hereby agrees not to take any
action whatsoever to enforce any term or provision of the Security Instruments
or to enforce any right with respect to the Collateral in conflict with the
provisions of this Agreement or the terms and provisions of the Security
Instruments. Nothing set forth above or otherwise contained in this Agreement
shall be interpreted as a waiver of any rights of setoff (by contract, law or
otherwise) of any Secured Creditor (except that any right of setoff with respect
to amounts owing in respect of any Secured Obligation shall be subject to the
sharing provisions set forth herein) or any rights of the Bank and the
Purchasers under the AGC/NGOP Collateral Agency Agreement.
(f) ADDITIONAL COLLATERAL. Each Secured Creditor hereby (i) except as set
forth in the following sentence, represents and warrants that as of the date
hereof such Secured Creditor has not taken, accepted or obtained, as security
for such Secured Creditor's Secured Obligations, any Lien upon any assets of any
of the Company or any Subsidiary or Affiliate thereof, other than as set forth
herein and (ii) covenants and agrees that after the date hereof until the
termination of this Agreement such Secured Creditor will not take, accept or
obtain, as security for such Secured Creditor's Secured Obligations, any Lien
upon any assets of any of the Company or any Subsidiary or Affiliate thereof,
except as pursuant to the Security Instruments. Notwithstanding the foregoing,
for the avoidance of doubt, the Bank and the Purchasers may take, accept or
obtain as security for their Secured Obligations, the AGC/NGOP Collateral as set
forth in the AGC/NGOP Collateral Agency Agreement, and such AGC/NGOP Collateral
shall not constitute Collateral hereunder.
(g) PAYMENTS TO THE SECURED CREDITORS. All payments to be made by the
Collateral Agent to the Purchasers pursuant to the terms and provisions of this
Agreement shall be made in the manner set forth in Schedule 3 hereto or at such
other place within the United States and in such other manner as each Noteholder
shall instruct the Collateral Agent in writing. All payments to be made by the
Collateral Agent to the Bank pursuant to the terms and provisions of this
Agreement shall be made in the manner set forth in Schedule 4 hereto or to such
other bank account as the Bank shall instruct the Collateral Agent in writing.
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12. ACTIONS BY THE COLLATERAL AGENT UNDER THE SECURITY INSTRUMENTS. The
Collateral Agent shall only take such actions under the Security Instruments as
are authorized by the Required Creditors or any Directing Creditor in accordance
with this Agreement and subject to any written notice requirement under the
Security Instruments (to which the Collateral Agent is a party or of which the
Collateral Agent has been given a copy) or herein, and the Required Creditors
hereby authorize and direct the Collateral Agent, and the Collateral Agent
agrees, to perform and observe each and every covenant or obligation contained
in the Security Instruments and required to be performed or observed by the
Collateral Agent under the Security Instruments.
13. INDEPENDENT ACTIONS BY SECURED CREDITORS.
(a) Any Secured Creditor may, without instruction from the Collateral
Agent, but in no event shall be required to, take action permitted by applicable
law or in accordance with the terms of the Debt Documents to preserve (but not
enforce) its rights and Liens in any item of Collateral securing the payment and
performance of the Secured Obligations, including, but not limited to, curing
any default or alleged default under any contract entered into by the Company,
paying any tax, fee or expense on behalf of the Company, exercising any offset
or recoupment rights and paying insurance premiums on behalf of the Company so
long as such action shall not impair the rights of the Collateral Agent or of
any other Secured Creditor or otherwise be contrary to the terms of this
Agreement or any Debt Document.
(b) Nothing contained in this Agreement shall prohibit the Bank or the
Required Purchasers, upon and during the continuance of an Alternate Major
Default or a Major Default, as applicable, from accelerating the maturity of, or
demanding payment from the Company and any Guarantor on, any Secured Obligation
of the Company to such Secured Creditor or from instituting legal action against
the Company and any Guarantor to obtain a judgment or other legal process in
respect of such Secured Obligation, but any funds received from the Company and
any Guarantor in connection with any recovery therefrom shall constitute
Distributions and shall be subject to the terms of this Agreement.
14. ALTERNATE COLLATERAL.
(a) ALTERNATE MOUNTAINGATE COLLATERAL. Xxxxx X. Xxxxx will cause
Mountaingate to (i) obtain a Letter of Credit in an initial face amount equal to
$10,000,000 or (ii) provide cash collateral in the amount of $10,000,000 (either
(i) or (ii), the "ALTERNATE MOUNTAINGATE COLLATERAL"), and furnish same to the
Collateral Agent by no later than September 30, 2002. Upon Mountaingate's
furnishing to the Collateral Agent of the Alternate Mountaingate Collateral, the
Collateral Agent shall, subject to the terms of the Mountaingate Control
Agreement, concurrently (if so requested in writing a reasonable time in advance
(but in no event less than 5 Business Days)) either (1) if the Alternate
Mountaingate Collateral is in the form of a Letter of Credit, (x) terminate the
Mountaingate Guaranty and (y) reconvey the Mountaingate Second Mortgage to
Mountaingate or (2) if the Alternate Mountaingate Collateral is in the form of
cash collateral, reconvey the Mountaingate Second Mortgage to Mountaingate. In
the event that Mountaingate elects to provide the Alternate Mountaingate
Collateral in the form of cash collateral, the Collateral Agent and Mountaingate
shall, concurrently with the delivery of the Alternate Mountaingate Collateral,
enter into the Mountaingate Control Agreement, substantially
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in the form attached hereto as ANNEX 3 and reasonably satisfactory to the
Required Creditors and the Collateral Agent, which shall govern the rights and
obligations of the parties thereto with respect to the cash collateral.
(b) FAILURE TO PROVIDE ALTERNATE MOUNTAINGATE COLLATERAL. If Mountaingate
shall fail to provide the Alternate Mountaingate Collateral to the Collateral
Agent by the earlier to occur of (i) an Alternate Major Default or (ii)
September 30, 2002, the Collateral Agent may, upon the direction of any
Directing Creditors, as its sole remedy against Mountaingate or Xxxxx X. Xxxxx
for such failure, immediately exercise all rights and remedies under the
Mountaingate Guaranty and the Mountaingate Second Mortgage, including, without
limitation, the right of foreclosure sale thereunder; PROVIDED, HOWEVER,
Mountaingate's failure to provide the Alternate Mountaingate Collateral shall
not be deemed a Major Default. All proceeds from any sale or foreclosure (net of
fees and expenses incurred in connection therewith) pursuant to this Section
14(b), shall be placed in the Mountaingate Control Account and treated as
Alternate Mountaingate Collateral in the form of cash collateral.
(c) MOUNTAINGATE CURE. Notwithstanding SECTION 14(b), the Mountaingate
Guaranty is subject to being cured by the delivery of the Alternate Mountaingate
Collateral until, but not after, one day after the delivery of a notice by the
Collateral Agent to Xxxxx X. Xxxxx of foreclosure sale, as filed with the
Official Recorder of the County of Los Angeles, California, on the Mountaingate
Second Mortgage.
(d) FORECLOSURE ON MOUNTAINGATE. If Xxxxx X. Xxxxx shall have provided the
Alternate Mountaingate Collateral to the Collateral Agent, the Collateral Agent
may not, until after the occurrence of a Major Default, (x) if the Alternate
Mountaingate Collateral is in the form of a Letter of Credit, draw down the
Letter of Credit or (y) if the Alternate Mountaingate Collateral is in the form
of cash collateral, exercise all rights and remedies under the Mountaingate
Guaranty and foreclose on the cash collateral pledged pursuant to the
Mountaingate Control Agreement; PROVIDED, HOWEVER, that no recourse may be
sought against the Alternate Mountaingate Collateral prior to the occurrence of
a Specified Event.
(e) ALTERNATE PLEDGE COLLATERAL. Xxxxx X. Xxxxx shall (i) obtain a Letter
of Credit in an initial face amount equal to $16,000,000 or (ii) provide cash
collateral in the amount of $16,000,000 (the "ALTERNATE PLEDGE COLLATERAL") and
furnish same to the Collateral Agent no later than October 15, 2002. Upon Xxxxx
X. Xxxxx'x furnishing to the Collateral Agent of the Alternate Pledge
Collateral, the Collateral Agent shall, subject to the terms of the Xxxxx X.
Xxxxx Control Agreement, concurrently (if so requested in writing a reasonable
time in advance but in no event less than 5 Business Days) either (1) if the
Alternate Pledge Collateral is in the form of a Letter of Credit, (x) terminate
the Price Guaranty and the Price Pledge Agreement and (y) release the Personal
Property Collateral pledged thereunder or (2) if the Alternate Pledge Collateral
is in the form of cash collateral, release the Personal Property Collateral
pledged under the Price Pledge Agreement and terminate the Price Pledge
Agreement but continue to maintain effective the Price Guaranty. In the event
that Xxxxx X. Xxxxx elects to provide the Alternate Pledge Collateral in the
form of cash collateral, the Collateral Agent and Xxxxx X. Xxxxx shall,
concurrently with the delivery of the Alternate Pledge Collateral, enter into
the Xxxxx X. Xxxxx Control Agreement, substantially in the form attached hereto
as ANNEX 2 and reasonably
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satisfactory to the Required Creditors, which shall govern the rights and
obligations of the parties thereto with respect to the cash collateral.
(f) FAILURE TO PROVIDE ALTERNATE PLEDGE COLLATERAL. If Xxxxx X. Xxxxx shall
fail to provide the Alternate Pledge Collateral to the Collateral Agent by the
earlier to occur of (i) an Alternate Major Default or (ii) October 15, 2002, the
Collateral Agent may, upon the direction of any Directing Creditors, as its sole
remedy against Xxxxx X. Xxxxx for such failure, immediately exercise all rights
and remedies under the Price Guaranty and the Price Pledge Agreement, including,
without limitation, the right of foreclosure sale thereunder; PROVIDED, HOWEVER,
Xxxxx X. Xxxxx'x failure to provide the Alternate Pledge Collateral shall not be
deemed a Major Default. All proceeds from any sale or foreclosure (net of fees
and expenses incurred in connection therewith) pursuant to this Section 14(f),
shall be placed in the Xxxxx X. Xxxxx Control Account and treated as Alternate
Pledge Collateral in the form of cash collateral.
(g) PLEDGE CURE. Notwithstanding SECTION 14(f), the Price Guaranty is
subject to being cured by the Alternate Pledge Collateral until, but not after,
the foreclosure on the Pledged Shares.
(h) FORECLOSURE ON PLEDGE. If Xxxxx X. Xxxxx shall have provided the
Alternate Pledge Collateral to the Collateral Agent, the Secured Creditors may
not, until the occurrence of a Major Default, (x) if the Alternate Pledge
Collateral is in the form of a Letter of Credit, draw down the Letter of Credit
or (y) if the Alternate Pledge Collateral is in the form of cash collateral,
exercise all rights and remedies under the Price Guaranty and foreclose on the
cash collateral pledged pursuant to the Xxxxx X. Xxxxx Control Agreement;
PROVIDED, HOWEVER, that no recourse may be sought against the Alternate Pledge
Collateral prior to the occurrence of a Specified Event.
15. DISTRIBUTIONS.
(a) SHARING / DISTRIBUTIONS.
(i) Each Secured Creditor agrees to share with the other Secured
Creditors all Distributions at all times and to apply all Distributions
received by such Secured Creditor (in each case whether or not an Alternate
Major Default or a Major Default, as applicable, shall have occurred and be
continuing and whether or not any Bankruptcy Proceeding shall have
commenced or be continuing) according to the priorities and in the manner
provided in this SECTION 15. In furtherance of the foregoing, any and all
payments and other Distributions required to be made by the Company and the
Guarantors in respect of the Secured Obligations shall at all times be paid
by the Company and the Guarantors to the Collateral Agent for distribution
in accordance with paragraph (b) of this SECTION 15. Each Secured Creditor
agrees that if it shall receive any Distributions (including payments
received by setoff of deposit balances or automatic debits or otherwise or
payments or recoveries from any security interest granted to any Secured
Creditor) other than from a Distribution by the Collateral Agent pursuant
to paragraph (b) of this SECTION 15, such Secured Creditor shall promptly
(in no event later than five (5) Business Days after receipt thereof) pay
the same over to the Collateral Agent in the same form as received (with
such endorsements as may be necessary), and
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that until such Secured Creditor shall have made such payment it will hold
such Distributions in trust for all the Secured Creditors.
(ii) Promptly following the receipt of any Distributions, the
Collateral Agent shall (a) provide notice to the Secured Creditors of
receipt of such Distributions and deposit such Distributions into the
Collateral Proceeds Account and (b) upon the written direction of the
Required Creditors, distribute to each Secured Creditor such Secured
Creditor's share of the Distributions so received in accordance with
paragraph (b) of this SECTION 15. Until such Distributions are so applied,
the Collateral Agent shall hold such amounts in its custody in accordance
with its regular procedures for handling deposited funds.
(iii) Promptly after making any Distributions on any date under clause
THIRD, or any clause beneath clause THIRD, of any of the "waterfall"
provisions set forth in SECTION 15(b) below, the Collateral Agent shall
give notice to each of the Secured Creditors and the Company of all such
Distributions.
(b) ORDER OF APPLICATION.
(i) From the date hereof through and including the Security
Termination Date, all Distributions received by the Collateral Agent shall
be applied promptly, but no later than the next Business Day after receipt
of such written direction, by the Collateral Agent in the following order
as of any date of Distribution:
FIRST: to:
A. payment of the Collateral Agent's Fee and any reasonable
expenses incurred by the Collateral Agent in connection with
enforcing the rights and remedies of the Secured Creditors
hereunder and under the Security Instruments and with any or all
of the retaking, holding, preserving, processing, advertising,
maintaining, preparing for or consummating any sale, lease or
other disposition of any Collateral, including trustee's fees and
commissions, court costs and reasonable attorney's fees and legal
expenses pertaining thereto; and then
B. the ratable payment of, or ratable reimbursement of a
Secured Creditor for, the reasonable fees and expenses of
in-house or outside counsel and other advisors to the Bank,
counsel and other advisors to the Purchasers; and then
SECOND: to the reimbursement to the Purchasers of the First
Mountaingate Loan Payoff Amount (defined in SECTION 32 below) (to the
extent such amount is actually paid by the Purchasers); provided,
however, that such amount shall only be reimbursed out of and to the
extent of Collateral Proceeds solely arising from the Mountaingate
Property;
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THIRD: to the ratable payment in respect of all accrued and unpaid
interest then due and payable by the Company in respect of the Secured
Obligations;
FOURTH: to the ratable payment in respect of all outstanding principal
(whether or not then due and payable) in respect of the Secured
Obligations (for the avoidance of doubt, all outstanding principal in
respect of the Secured Obligations shall not include the Make-Whole
Amounts);
FIFTH: the ratable payment in respect of any costs, fees or expenses
then due and payable by the Company to any Secured Creditor in respect
of the Secured Obligations not provided for above or below;
SIXTH: to the payment of all Make-Whole Amounts to the Purchasers
(whether or not then due and payable); and
SEVENTH: to the reimbursement to the Purchasers of any portion of the
First Mountaingate Loan Payoff Amount not reimbursed under Item SECOND
above; and
EIGHTH: to the Company or as otherwise required by applicable law.
As used in this SECTION 15(B)(i), "ratable" shall mean with respect to
each Secured Creditor, a ratio equal to (x) the total amount owing
(whether or not then due and payable and excluding any Make-Whole
Amounts) to such Secured Creditor under such clause (y) to the total
amount owing (whether or not then due and payable and excluding any
Make-Whole Amounts) to all of the Secured Creditors under such clause.
(ii) Notwithstanding anything in the Agreement to the contrary:
A. the Collateral Agent shall not be obligated to make a
payment pursuant to this SECTION 15(b) until it shall have
received a threshold amount of at least $100,000 of Distributions
that are to be distributed at such time pursuant to this SECTION
15, unless such lesser amount would be the final amount to be
paid to satisfy the Secured Obligations or the Collateral Agent's
failure to make such payment would result in an Alternate Major
Default or a Major Default; and
B. any amounts withheld, pursuant to Section 15(c), by the
Collateral Agent from a Distribution to be otherwise made to a
Non-Returning Secured Creditor shall be deemed to have been paid
to such Non-Returning Secured Creditor for purposes of
determining each Secured Creditor's ratable share of any
Distribution hereunder.
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(c) RETURNED AMOUNTS. If at any time the Collateral Agent or any Secured
Creditor shall be required to restore or return, or if such party (with the
consent of the Required Creditors) restores or returns in good faith settlement
of pending or threatened avoidance claims, to the Company or any other Person
other than to another Secured Creditor any Distributions made on or after the
Effective Date or any portion thereof, whether by reason of the insolvency,
reorganization or other similar event in respect of the Company or such Person
or otherwise (a "RETURNED AMOUNT"), then, (i) the Collateral Agent shall
promptly give notice of the Returned Amount to each Secured Creditor, and (ii)
each of the Secured Creditors shall promptly transfer to the Collateral Agent
(for reimbursement to the Collateral Agent or such Secured Creditor, as the case
may be) such amounts as are necessary such that each Secured Creditor shall have
received and retained the amount it would have received under SECTION 15(b) had
the Returned Amount not previously been distributed (its "RETURNED AMOUNT
SHARE"). If any Secured Creditor (a "NON-RETURNING SECURED CREDITOR") fails to
tender payment of its Returned Amount Share, then the Collateral Agent is hereby
expressly granted the right thereafter to, and shall, withhold from any
Distributions (including, without limitation, Collateral Proceeds) otherwise
payable to such Non-Returning Secured Creditor an amount equal to its Returned
Amount Share remaining unpaid at such time of receipt of such Distributions
(including, without limitation, Collateral Proceeds) and apply such amount
withheld in satisfaction of such Returned Amount Share. The Collateral Agent
shall also have the right to collect from such Non-Returning Secured Creditor,
and/or withhold from any Distributions to otherwise be made to such
Non-Returning Secured Creditor, the Collateral Agent's reasonable costs and
expenses incurred in collecting such Non-Returning Secured Creditor's Returned
Amount Share, plus interest on any unpaid portion of such Returned Amount Share
at the federal judgment rate from the date the Collateral Agent first requested
payment of such Returned Amount Share. The agreements in this SECTION 15(c)
shall survive the payment of the Bank Loans and the Notes, and the termination
of the Debt Documents and this Agreement.
(d) NO WAIVER OF DEFAULT. The Company acknowledges and agrees that if any
payment default exists in respect of the Secured Obligations after the making of
any Distribution hereunder, nothing set forth herein shall constitute a waiver
of such payment default.
(e) COLLATERAL PROCEEDS ACCOUNT. Promptly after the date hereof, the
Company shall establish and thereafter maintain with the Collateral Agent a
segregated trust account for the purpose of depositing any proceeds from any
disposition of Collateral pursuant to the terms of this Agreement or the
Security Instruments (the "COLLATERAL PROCEEDS ACCOUNT"). During the
continuation of a Major Default, the Collateral Agent shall, at the direction of
the Directing Creditors, withdraw funds in the Collateral Proceeds Account and
pay the same to the Secured Creditors for application toward the reduction or
discharge of the Secured Obligations, as set forth in this SECTION 15.
16. INTEREST RATE. All amounts due to the Bank and the Purchasers hereunder
and under the Mortgages and the Security Instruments and not paid when due shall
bear interest from and after the due date thereof at the Current Rate.
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17. WAIVER BY THE COMPANY AND GUARANTORS. Neither the Collateral Agent nor
any Secured Creditor shall incur any liability as a result of the sale of the
Collateral, or any part thereof, at any public or private sales pursuant to the
Mortgages or other Security Instruments. Each of the Company and the Guarantors
hereby waives (to the extent permitted by law) any claims it or he may have
against the Collateral Agent or any Secured Creditor arising by reason of the
fact that the price at which the Collateral may have been sold at any such
private sale was less than the price which might have been obtained at a public
sale or was less than the aggregate amount of the Secured Obligations then
outstanding.
18. RESIGNATION AND REMOVAL OF THE COLLATERAL AGENT.
(a) If the Collateral Agent shall resign as Collateral Agent under this
Agreement (or be removed pursuant to SECTION 18(b)), the Collateral Agent shall
deliver notice of resignation promptly to all the Secured Creditors. Such
resignation (or removal) shall be effective upon the appointment of a successor
Collateral Agent and the payment to the outgoing Collateral Agent of all amounts
owed to it hereunder. The Required Creditors may appoint a successor Collateral
Agent for the Secured Creditors, which successor Collateral Agent shall be a
commercial bank, insurance company or trust company organized under the laws of
the United States of America or any state thereof having a combined surplus and
capital of not less than $100,000,000, whereupon such successor Collateral Agent
shall succeed to the rights, powers and duties of the former Collateral Agent
and the obligations of the former Collateral Agent shall be terminated and
canceled, without any other or further act or deed on the part of such former
Collateral Agent or any of the parties to this Agreement; PROVIDED, HOWEVER,
that if the Secured Creditors cannot agree as to a successor Collateral Agent
within fifteen (15) days after notice of such resignation (or removal), then the
resigning (or removed) Collateral Agent may appoint an interim Collateral Agent
(which shall not be the Bank, a Noteholder, or any Affiliate of any thereof)
meeting the qualifications set forth above to act as Collateral Agent pending
the appointment of a successor Collateral Agent through the procedure described
herein.
(b) The Collateral Agent may be removed without cause at any time by the
vote of any of the Bank or the Required Purchasers, and written notice thereof
delivered to the Collateral Agent. If the Collateral Agent is so removed, the
Required Creditors may appoint a successor Collateral Agent in accordance with
SECTION 18(a) hereof.
(c) After the effective date of the resignation or removal of the
Collateral Agent hereunder, the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Collateral Agent under the Security Instruments and this Agreement; PROVIDED,
HOWEVER, that any liability of such Collateral Agent arising from the
performance of its obligations hereunder prior to such resignation or removal
shall survive such resignation or removal.
(d) Each of the parties hereto, including any resigning or removed
Collateral Agent, agrees to execute whatever documents as are necessary or
reasonably requested, including, without limitation, amendments to or
assignments of any of the Security Instruments, to effect the resignation or
removal of the Collateral Agent under this Agreement or any other document
executed pursuant to this Agreement and to continue the perfection of the Liens
on the Collateral.
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19. CONFIDENTIALITY. The Collateral Agent agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all non-public information provided to it by the Company, the Guarantors or by
any other party on the Company's or any Guarantor's behalf in connection with
this Agreement or the other Debt Documents and agrees and undertakes that
neither it nor any of its Affiliates shall disclose to any Person (other than
any Secured Creditor) any such information for any purpose or in any manner
other than pursuant to the terms contemplated by this Agreement or the other
Debt Documents. The Collateral Agent, its Affiliates and their respective
employees, officers and directors may disclose such information (1) at the
request of any regulatory authority or in connection with an examination of such
Person by any such authority, (2) pursuant to subpoena or other court process,
(3) when required to do so in accordance with the provisions of any applicable
law, (4) at the express direction of any other Governmental Authority of any
State of the United States of America or of any other jurisdiction in which such
Person conducts its business, (5) to such Person's independent auditors,
attorneys and other professional advisors who agree to be bound by the terms of
this SECTION 19, (6) if such information has become public other than through
disclosure by such Person, (7) in connection with any litigation involving such
Person, so long as due care is taken by the Collateral Agent, its affiliates and
their respective officers and directors to comply with the provisions of this
SECTION 19, including, but not limited to, filing any documents containing such
information under seal, and (8) to any Affiliate of such Person who agree to be
bound by the terms of this SECTION 19. Notwithstanding anything herein to the
contrary, nothing herein shall impose any additional confidentiality restriction
on any Secured Creditor (beyond those confidentiality restrictions to which such
Secured Creditor is already subject pursuant to the other Debt Documents) with
respect to any information provided by the Collateral Agent to such Secured
Creditor.
20. BINDING UPON SUCCESSORS. All rights of the Collateral Agent and the
other Secured Creditors under this Agreement shall inure to the benefit of the
Collateral Agent and the other Secured Creditors and their respective successors
and assigns, and all obligations of the Company and the Guarantors shall bind
their respective successors and assigns.
21. ENTIRE AGREEMENT. This Agreement, the Restructuring Agreement, the
Guaranties, the Mortgages and the other Security Instruments contain the entire
collateral agency agreement and intercreditor agreement with respect to the
Collateral among Secured Creditors, on the one hand, and the Company and the
Guarantors, on the other hand, and, except as otherwise provided, this Agreement
may not be altered, amended or modified except in a writing executed in
accordance with SECTION 22. All waivers by the Company and the Guarantors
provided for in this Agreement have been specifically negotiated by the parties
with full cognizance and understanding of their rights.
22. AMENDMENTS, WAIVERS AND CONSENTS.
(a) All amendments, waivers or consents of any provision of this Agreement
shall be effective only if the same shall be in writing and signed by the
Required Creditors, provided that any amendment, modification, supplement or
waiver of Sections 12(e), 15 or 22 or the definitions of Directing Creditors,
Distribution, Loan Obligations, Purchaser Obligations, Required Creditors,
Required Purchasers, Secured Obligations or Secured Creditor shall require the
unanimous written consent of all the Secured Creditors. Any amendments, waivers
or
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consents of any provision of this Agreement affecting the rights or
obligations of the Collateral Agent shall also require the prior written consent
of the Collateral Agent.
(b) All amendments or waivers of any provision of or consent pursuant to or
under any Security Instrument shall be effective only if the same shall be in
writing and signed by the Collateral Agent and the Required Creditors.
Notwithstanding the foregoing, the release of all or substantially all of the
Collateral prior to the Security Termination Date shall require the written
consent of each of the Secured Creditors.
(c) Each Secured Creditor hereby agrees and covenants with each other
Secured Creditor that it will not amend or modify any term or provision of any
other Debt Document (i.e., other than this Agreement and any other Security
Instrument covered above in subsections (a) and (b), respectively) without the
prior written consent of the Required Creditors; provided, however, that nothing
in this SECTION 22 shall, or shall be deemed to, affect the voting requirements
set forth in each such agreement for such amendments and modifications.
23. CHOICE OF LAW. This Agreement shall be construed in accordance with and
governed by the laws of the State of California and, where applicable and except
as otherwise defined herein, terms used herein shall have the meanings given
them in the California Uniform Commercial Code.
24. PLACE OF BUSINESS; RECORDS. The Company represents and warrants that
its chief place of business is at the address set forth beneath its signature
below, and that its books and records concerning the Collateral are kept at its
chief place of business and at other offices of the Company in Santa Monica,
California.
25. NOTICE. Any written notice, consent or other communication provided for
in this Agreement shall be delivered or sent and all notices and other
communications provided to any party hereto under this Agreement, in writing or
by facsimile and addressed or delivered to such party, with copies to each other
party hereto (but failure to provide any such copies shall not invalidate such
notice), in each case at its address set forth below its signature hereto or at
such other address as may be designated by such party in a notice to the other
parties. Any notice shall be deemed given when received.
26. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one Agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. Delivery by telecopier of any executed counterpart of a signature
page to this Agreement shall be effective as delivery of an originally executed
counterpart of this Agreement.
27. SALE OF INTEREST. No Secured Creditor will sell, transfer or otherwise
dispose of any interest in the Secured Obligations to any party unless such
purchaser or transferee shall agree, in writing, to be bound by the terms of
this Agreement.
28. REPURCHASE IN THE EVENT OF AVOIDANCE ACTIONS; SEVERABILITY.
(a) If for any reason, the allocation of Distributions among the Secured
Creditors in accordance with SECTION 15(b)of this Agreement is finally
determined by a court of competent
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jurisdiction to be unenforceable in whole or in part, then the Secured Creditors
will purchase and exchange such participations in the Debt Documents as may be
required so that the Secured Creditors, after giving effect to all such
purchases and exchanges, shall have received and retained cash payments in
respect of the amounts distributable under SECTION 15(b) equal to the amount the
Secured Creditors would have received if the amounts had been applied in
accordance with such SECTION 15(b); PROVIDED, HOWEVER, if in connection with a
Bankruptcy Proceeding of the Company or any Guarantor, any portion of the
Secured Obligations or the Company's or any Guarantor's obligations under the
Security Instruments referred to in clauses SECOND, THIRD, FOURTH or FIFTH of
SECTION 15(b)(i) is determined to be unenforceable or is disallowed (such
portion to be hereinafter referred to as a "DISALLOWED OBLIGATION"), then this
SECTION 28(a) shall not be applied or construed in such manner to enable the
holder of any such Disallowed Obligation to receive any Distribution on account
of such Disallowed Obligation. It is the intent of this SECTION 28(a) to
establish an alternative mechanism to preserve as among the parties hereto the
distribution priorities and the sharing calculation formulas set forth in
SECTION 15(b) the same as if this Agreement had been given effect among the
parties hereto and the same as if the Secured Obligations were allowed or
enforced against the Company and the Guarantors in accordance with their terms.
It is not, however, the intent of this SECTION 28(a) to enable any party hereto
to receive or retain any Distribution with respect to any Disallowed Obligation
to the extent such Disallowed Obligation has been disallowed or is otherwise
determined to be unenforceable as against the Company or any Guarantor.
(b) Except to the extent contemplated by subsection (a) hereof, in case any
one or more of the provisions contained in this Agreement shall be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.
29. TERMINATION OF AGREEMENT. This Agreement shall terminate on the
Security Termination Date; PROVIDED, HOWEVER, that such termination shall not
relieve any party of its accrued obligations and liabilities, and all
representations and warranties herein, and any provision expressly stated herein
to survive termination of this Agreement, shall survive such termination.
30. CAPTIONS. The descriptive headings of the various Sections or parts of
this Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
31. FURTHER ASSURANCES. At any time and from time to time, upon the request
of the Collateral Agent, the Bank or the Required Purchasers, the Company and
the Guarantors, as the case may be, shall execute, deliver and acknowledge or
cause to be executed, delivered or acknowledged, such further documents and
instruments and do such other acts and things as the Collateral Agent, the Bank
or the Required Purchasers may reasonably request in order to fully effect the
purposes of Restructuring Agreement and any other agreements, instruments and
documents delivered pursuant to or in connection with the Restructuring
Agreement.
32. PAYOFF RIGHT.
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(a) The Bank hereby expressly grants to Purchasers the right to reinstate,
redeem or otherwise pay off that certain loan (the "FIRST MOUNTAINGATE LOAN")
entered into between the Bank and the Company pursuant to that certain Standing
Loan and Swap Commitment dated as of October 7, 1996 (the "LOAN AGREEMENT") and
secured by the First Mountaingate Deed on the terms and conditions set forth
below.
(b) Concurrently with (i) the recordation of any Notice of Default in
connection with a trustee's sale of the Mountaingate Property under the First
Mountaingate Deed (a "TRUSTEE'S SALE"), or (ii) commencement of any judicial
foreclosure proceedings with respect to the Mountaingate Property under the
First Mountaingate Deed (a "FORECLOSURE"), the Bank shall provide the Purchasers
with written notice (the "FIRST MOUNTAINGATE LOAN PAYOFF NOTICE") thereof along
with a statement detailing the unpaid principal balance of the Loan, all unpaid
interest thereon and all other sums then due and payable and specifying the
amount required to be paid to the Bank to constitute payment in full of the
Loan. Such statement shall be updated from time to time by the Bank at the
request of the Purchasers and shall provide the Purchasers with sufficient
information to enable the Purchasers to determine the amount necessary to pay
off the First Mountaingate Loan in full at any time during the 90 day period
described in (d) below (the "FIRST MOUNTAINGATE LOAN PAYOFF AMOUNT"), including
an amount for per diem interest.
(c) At any time up to and including the 90th day following the date on
which the First Mountaingate Loan Payoff Notice is sent to the Purchasers, the
Purchasers may, in their sole and absolute discretion, reinstate, redeem or
otherwise pay off the First Mountaingate Loan by paying to the Bank the First
Mountaingate Loan Payoff Amount in immediately available United States funds. In
no event shall the Purchasers be obligated to pay off the First Mountaingate
Loan.
(d) Upon its receipt of the First Mountaingate Loan Payoff Amount, the Bank
shall issue a full reconveyance of the Property from the lien of the First
Mountaingate Deed and take such other actions and execute such other documents
as are reasonably necessary to cancel, terminate, release and reconvey the Loan
Agreement and remaining loan documents relating to the First Mountaingate Loan.
(e) All obligations of the Bank hereunder shall inure to and bind its
successors and assigns.
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33. LIMITED RECOURSE. NOT WITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT TO THE CONTRARY, THE OBLIGATIONS OF THE GUARANTORS HEREUNDER ARE
LIMITED TO, AND THE RIGHTS OF THE COLLATERAL AGENT AGAINST SUCH GUARANTORS
HEREUNDER SHALL BE RECOURSE SOLELY TO, THE SECURITY INTERESTS GRANTED BY EACH
SUCH GUARANTOR. FOR PURPOSES OF CLARIFICATION THIS PROVISION SHALL IN NO WAY
LIMIT THE RIGHTS OF THE COLLATERAL AGENT UNDER, (i) SECTION 14 HEREOF (ii) IN
THE CASE OF XXXXX X. XXXXX UNDER THE PRICE PLEDGE AGREEMENT, THE PRICE GUARANTY,
THE XXXXX X. XXXXX CONTROL AGREEMENT OR ANY LETTER OF CREDIT PROVIDED BY XXXXX
X. XXXXX, (iii) IN THE CASE OF MOUNTAINGATE, THE MOUNTAINGATE GUARANTY, THE
MOUNTAINGATE CONTROL AGREEMENT, THE MOUNTAINGATE SECOND MORTGAGE AND ANY LETTER
OF CREDIT PROVIDED BY MOUNTAINGATE, (iv) IN THE CASE OF GEI, THE GEI GUARANTY
AND THE GEI MORTGAGES AND (v) IN THE CASE OF JCG, THE JCG GUARANTY AND THE JCG
MORTGAGES.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Collateral Agency
and Intercreditor Agreement to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first above written.
COLLATERAL AGENT: BNY MIDWEST TRUST COMPANY,
as Collateral Agent
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Treasurer
COMPANY: AMERICAN GOLF CORPORATION
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: CFO
GUARANTORS: XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
-----------------------------
MOUNTAINGATE LAND, L.P.
By: Mountaingate Land, Inc.
Title: General Partner
By:/s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President
GOLF ENTERPRISES, INC.
By:/s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President
XXX XXXXXXX GOLF
/s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President
SECURED CREDITORS: BANK OF AMERICA, N.A.
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
TEACHERS INSURANCE AND ANNUITY
PURCHASERS: ASSOCIATION OF AMERICA
By: /s/ Roi X. Xxxxxx
--------------------------------
Name: Roi X. Xxxxxx
Title: Director - Special Situations
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Investment Officer
JEFFERSON PILOT LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx, XX
--------------------------------
Print Name: Xxxxxx X. Xxxxxx, XX
Title: Vice President
NATIONAL LIFE INSURANCE COMPANY
By: /s/ R. Xxxxx Xxxxxxx
-------------------------------
Print Name: R. Xxxxx Xxxxxxx
Title: Vice President, NL Capital
LIFE INSURANCE COMPANY OF THE SOUTHWEST
By: /s/ R. Xxxxx Xxxxxxx
-------------------------------
Print Name: R. Xxxxx Xxxxxxx
Title: Vice President, NL Capital
AUSA LIFE INSURANCE COMPANY, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------
Print Name: Xxxx Xxxxxx
Title: Vice President
PFL LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxx
--------------------------------
Print Name: Xxxx Xxxxxx
Title: Vice President
