EXHIBIT 99.1
EXECUTION COPY
EXTENSION AND AMENDMENT AGREEMENT
RELATING TO THE DELIVERY OF ALTERNATE COLLATERAL
THIS EXTENSION AND AMENDMENT AGREEMENT RELATING TO THE DELIVERY OF
ALTERNATE COLLATERAL (this "Extension Agreement") is dated as of November 5,
2002 by and among American Golf Corporation ("AGC"), Xxxxx X. Xxxxx ("Xxxxx X.
Xxxxx"), the Xxxxx X. Xxxxx Trust dated March 5, 1998 (as amended) (the "Xxxxx
X. Xxxxx Trust", and collectively with Xxxxx X. Xxxxx, "Xxxxx Xxxxx"), Xxxxxx X.
Xxxxx ("Xxxxxx X. Xxxxx"), the Dallas P. Price Trust dated May 14, 1998 (as
amended) (the "Dallas P. Price Trust" and collectively with Dallas P. Price,
"Dallas Price"), Mountaingate Land L.P. ("Mountaingate"), BNY Midwest Trust
Company, as Collateral Agent (the "Collateral Agent") and each of the Secured
Creditors as defined below.
RECITALS
A. WHEREAS, in connection with that certain Restructuring Agreement and
Limited Waiver (including all exhibits and schedules thereto, the "Restructuring
Agreement") dated as of July 1, 2002, by and among AGC, Bank of America, N.A.
(the "Bank") and the holders of AGC's 9.35% senior secured notes due July 1,
2004 (the "Purchasers" and collectively with the Bank, the "Secured Creditors"),
(i) Xxxxx Xxxxx agreed to pledge 354,938 shares of common stock of National Golf
Properties, Inc. ("NGP") and 3,255,694 common limited partnership units of
National Golf Operating Partnership, L.P. ("NGOP") (collectively, the "Pledged
Securities") and (ii) Xxxxx X. Xxxxx agreed to cause Mountaingate to grant a
second deed of trust on Mountaingate Country Club (the "Mountaingate Second
Mortgage") as collateral to support certain of AGC's obligations to the Secured
Creditors as set forth in the Restructuring Agreement.
B. WHEREAS, pursuant to the terms of that certain Collateral Agency and
Intercreditor Agreement dated as of July 19, 2002, among Xxxxx Xxxxx, AGC,
Mountaingate, Golf Enterprises, Inc., Xxx Xxxxxxx Golf, Inc., the Secured
Creditors, and the Collateral Agent, as amended by that certain Amendment and
Extension Relating to Delivery of Alternate Collateral dated as of September 30,
2002, and that certain First Amendment to the Amendment and Extension Agreement
dated as of October 31, 2002 (collectively, the "AGC Collateral Agency
Agreement"), Xxxxx X. Xxxxx is obligated to provide or cause to be provided to
the Collateral Agent for the ratable benefit of the Secured Creditors (i)
substitute collateral for the Mountaingate Second Mortgage in the form of either
one or more letters of credit or cash collateral in the amount of $10,000,000
(the "Alternate Mountaingate Collateral"), and (ii) substitute collateral for
the Pledged Securities in the form of either one or more letters of credit or
cash collateral in the amount of $16,000,000 (the "Alternate Pledge Collateral",
and collectively with the Alternate Mountaingate Collateral, the "Alternate
Collateral") by November 5, 2002.
C. WHEREAS, AGC, Xxxxx Xxxxx, Dallas Price and Mountaingate have requested
that the Secured Creditors amend certain provisions of the AGC Collateral Agency
Agreement, that certain Limited Recourse Mountaingate Guaranty dated as of July
19, 2002 (the "Mountaingate Guaranty") by Mountaingate, in favor of the
Collateral Agent for the Secured
Creditors, that certain Limited Recourse Xxxxx X. Xxxxx Guaranty dated as of
July 19, 2002 (the "DGP Guaranty") by Xxxxx Xxxxx in favor of the Collateral
Agent for the Secured Creditors, and that certain Stock and Partnership Interest
Pledge Agreement dated as of July 19, 2002 (the "DGP Pledge") between Xxxxx
Xxxxx, as Pledgor, and the Collateral Agent for the Secured Creditors.
D. WHEREAS, each of Xxxxx Xxxxx, Dallas Price, Mountaingate, AGC, the
Collateral Agent and the Secured Creditors party hereto intend to amend by this
Extension Agreement the AGC Collateral Agency Agreement, the Mountaingate
Guaranty, the DGP Guaranty and the other Debt Documents to give effect to the
agreements below.
E. WHEREAS, capitalized terms not otherwise defined herein shall have the
meaning given them in the AGC Collateral Agency Agreement.
NOW THEREFORE, in consideration of the above premises and the mutual
covenants set forth hereafter, the Fee (as defined below) and other good and
valuable consideration, the sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
AGREEMENT
Section 1. Amendments to the AGC Collateral Agency Agreement: In
accordance with Section 22 of the AGC Collateral Agency Agreement, the parties
hereby amend such Agreement as follows:
a. The introductory paragraph of the AGC Collateral Agency Agreement is
hereby amended by the insertion of the text "Dallas P. Price, an individual, the
Dallas P. Price Trust dated May 14, 1998 (as amended) (the "Dallas P. Price
Trust")" immediately before the text "Mountaingate Land, L.P." Dallas P. Price
and the Dallas P. Price Trust are hereby added as parties and signatories to the
AGC Collateral Agency Agreement. By their execution of this Extension Agreement,
Dallas P. Price and the Dallas P. Price Trust acknowledge and agree that they
shall be added as parties to the AGC Collateral Agency Agreement and they agree
to be bound by all of the terms thereof, as amended by this Extension Agreement.
b. The following new recitals are hereby inserted immediately following
Recital E:
"F. WHEREAS, pursuant to the Extension and Amendment Agreement
Relating to the Delivery of Alternate Collateral dated as of November 5, 2002 by
and among the Company, Xxxxx X. Xxxxx, Xxxxxx X. Xxxxx, the Collateral Agent and
each of the Secured Creditors (the "Extension Agreement"), the Bank has agreed
to release its pro rata share of the collateral set forth in (iii) in Recital E
in exchange for the Bank Alternate Pledge Collateral (as defined below) and the
Bank is no longer a party to the Price Pledge Agreement and has no interest in
the Pledged Collateral.
G. WHEREAS, as a condition to the forbearance by the Purchasers and
their execution of the Extension Agreement, each of Xxxxx X. Xxxxx and Dallas P.
Price has agreed to
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secure the Purchaser Obligations owed to the Purchasers under the Note Purchase
Agreement and the Notes by executing and delivering the Price Pledge Agreement,
the Dallas P. Price Pledge and the Dallas P. Price Guaranty and providing
collateral in the form of a first priority security interest and pledge of an
aggregate of 691,675 shares of stock of NGP and 1,175,953 common limited
partnership units of NGOP held by Xxxxx X. Xxxxx and Xxxxxx X. Xxxxx."
c. Recital F is hereby renumbered Recital H.
d. The following new recital is hereby inserted immediately following
Recital H:
"I. All references to this or the Agreement shall be deemed references to
this or the Agreement, as amended by the Extension Agreement."
e. Section 1 is hereby amended by the deletion of the definition of
"Alternate Major Default" in its entirety and insertion of the following in lieu
thereof:
""Alternate Major Default": shall mean the occurrence of one or more of the
following: (i) a Major Default, (ii) 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, (iii) 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 or (iv) solely with respect to the
Dallas P. Price Pledge and the Dallas P. Price Guaranty, the entry of an order
for relief in bankruptcy in respect of Dallas P. Price."
f. Section 1 is hereby amended by the insertion of the following new
definition immediately following the definition of "Alternate Pledge
Collateral":
""Bank Alternate Pledge Collateral": shall have the meaning assigned
thereto in Section 14(h)."
g. The definition of "Xxxxx X. Xxxxx Control Account" as set forth in
Section 1 is hereby amended by the deletion of the definition in its entirety
and insertion of the following in lieu thereof:
""Xxxxx X. Xxxxx Control Account": shall mean (i) the
account established and maintained by the Securities Intermediary
(as defined in the Xxxxx X. Xxxxx Control Agreement) for the sole
benefit of the Bank and (ii) the account established and maintained
by the Securities Intermediary (as defined in the Xxxxx X. Xxxxx
Control Agreement) for the sole benefit of the Purchasers in the
event that Xxxxx X. Xxxxx elects to provide the Alternate Pledge
Collateral in the form of cash collateral, as applicable."
h. The definition of "Xxxxx X. Xxxxx Control Agreement" as set forth in
Section 1 is hereby amended by the deletion of the definition in its entirety
and insertion of the following in lieu thereof:
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""Xxxxx X. Xxxxx Control Agreement": shall mean (i) that
certain Securities Account Security and Control Agreement entered
into by and between Xxxxx X. Xxxxx and the Collateral Agent for the
sole benefit of the Bank dated as of November 5, 2002, attached
hereto as Annex 2A and made a part hereof and (ii) that certain
Securities Account Security and Control Agreement entered into as of
November 5, 2002 by and between Xxxxx X. Xxxxx and the Collateral
Agent for the sole benefit of the Purchasers, attached hereto as
Annex 2B and made a part hereof, as applicable."
i. Section 1 is hereby amended by the insertion of the following new
definitions immediately following the definition "Current Rate":
""Dallas P. Price": shall collectively mean Dallas P. Price, an individual,
and the Dallas P. Price Trust.
"Dallas P. Price Pledge": shall mean that certain Stock and Partnership
Interest Pledge Agreement dated as of November 5, 2002 by and between Dallas P.
Price and the Collateral Agent for the sole benefit of the Purchasers.
"Dallas P. Price Guaranty": shall mean that certain Limited Recourse
Guaranty dated as of November 5, 2002 by and between Dallas P. Price and the
Collateral Agent for the sole benefit of the Purchasers."
j. The definition of "Default Notice" in Section 1 is hereby amended by the
deletion of the text "12(b)" and the insertion of the text "11(b)" in lieu
thereof.
k. Section 1 is hereby amended by the insertion of the following new
definition "Extension Agreement" immediately following the definition "Existing
Pledge Agreement":
""Extension Agreement": shall have the meaning assigned to it in Recital
F."
l. The definition of "Guaranties" in Section 1 is hereby amended by the
insertion of the text "and the Dallas P. Price Guaranty" immediately after the
text "GEI Guaranty".
m. The definition of "Guarantors" as set forth in Section 1 is hereby
amended by the insertion of the text ",Dallas P. Price and the Dallas P. Price
Trust" immediately after the text "Xxxxx X. Xxxxx Trust".
n. The definition of "Personal Property Collateral" is hereby amended by
the deletion of the text "(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 the insertion of the text "(i)
the Pledged Collateral" in lieu thereof.
o. Section 1 is hereby amended by the insertion of the following new
definition "Pledged Collateral" immediately following the definition "Plans":
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""Pledged Collateral": shall mean (i) the shares of NGP and partnership
interest units of NGOP pledged by Xxxxx X. Xxxxx to the Collateral Agent
pursuant to the Price Pledge Agreement and (ii) the shares of NGP and
partnership interest units of NGOP pledged by Dallas P. Price to the Collateral
Agent pursuant to the Dallas P. Price Pledge, in each case, for the sole benefit
of the Purchasers."
p. The definition of "Price Pledge Agreement" in Section 1 is hereby
deleted in its entirety and replaced with the following text:
""Price Pledge Agreement": shall mean that certain Amended and Restated
Stock and Partnership Interest Pledge Agreement dated as of November 5, 2002 by
and between Xxxxx X. Xxxxx and the Collateral Agent for the sole benefit of the
Purchasers."
q. The definition of "Security Instruments" in Section 1 is hereby amended
by the insertion of the text "the Dallas P. Price Pledge," immediately following
the text "the Price Pledge Agreement,".
r. Section 1 is hereby amended by the insertion of the following new
definition immediately following the definition of "the Xxxxx X. Xxxxx Trust":
"the Dallas P. Price Trust": shall have the meaning assigned thereto in the
introductory paragraph hereof."
s. Section 2(a)(vii) is hereby amended by the deletion of the text
"Required Creditors" and the insertion of the text "Directing Creditors" in lieu
thereof.
t. Section 2(b)(i) is hereby amended by the deletion of the period and the
insertion of the following text at the end of the first sentence:
"; provided, however, that notwithstanding anything to the contrary in this
Agreement (a) only the Required Purchasers shall have the right to provide a
Default Notice with respect to a Dallas P. Price bankruptcy and an Enforcement
Directive with respect to the Price Pledge Agreement, the Dallas P. Price
Pledge, the Dallas P. Price Guaranty, the Xxxxx X. Xxxxx Control Agreement for
the sole benefit of the Purchasers, the Pledged Collateral or the Alternate
Pledge Collateral and (b) only the Bank shall have the right to provide an
Enforcement Directive with respect to the Xxxxx X. Xxxxx Control Agreement for
the sole benefit of the Bank or the Bank Alternate Pledge Collateral."
u. Section 2(b)(iv) is hereby amended by the deletion of the text in its
entirety and the insertion of the following text in lieu thereof:
"(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; provided, however, that
(a) the Collateral Agent shall not release, substitute, exercise any right or
remedy, or take any other action with respect to the Pledged Collateral, or the
Alternate Pledge Collateral, without an Enforcement Directive or the prior
written consent, as applicable, from the Required Purchasers and (b) the
Collateral Agent shall not release,
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substitute, exercise any right or remedy, or take any other action with respect
to the Bank Alternate Pledge Collateral without an Enforcement Directive or the
prior written consent, as applicable, from the Bank. The Collateral Agent shall
give notice to each Secured Creditor of any substantial or material action taken
by the Collateral Agent pursuant to this Section 2(b)(iv) promptly after taking
such action."
v. Section 2(b)(ix) is hereby amended by the insertion of the following
text at the end thereof:
"Notwithstanding anything to the contrary in this Section 2(b)(ix), (1)
with respect to the Pledged Collateral or the Alternate Pledge Collateral, only
upon request of the Required Purchasers, prior to or following an Alternate
Major Default or a Major Default, as applicable, 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 the Required Purchasers, shall the Collateral
Agent release or cause to be released the Pledged Collateral or the Alternate
Pledge Collateral that is the subject of the Request for Release to the designee
of the Company prior to an Alternate Major Default or a Major Default, as
applicable, or the designee of the Collateral Agent, following a Major Default
and (2) with respect to the Bank Alternate Pledge Collateral, only upon request
of the Bank, prior to or 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 the Bank, shall the Collateral Agent release
or cause to be released the Bank Alternate Pledge Collateral that is the subject
of the Request for Release to the designee of the Company prior to a Major
Default or the designee of the Collateral Agent following a Major Default."
w. The following Section 4(g) is hereby inserted immediately following
Section 4(f):
"(g) Dallas Price. Dallas P. Price hereby represents and warrants to the
Collateral Agent and the Secured Creditors that the following representations
and warranties are true and correct on and as of the date hereof: This Agreement
is a valid, binding and legal obligation of Dallas P. Price enforceable against
Dallas P. Price in accordance with its terms and the execution, delivery and
performance by Dallas P. Price 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 Dallas P. Price is a
party or by which Dallas P. Price, or its or her property may be bound or
affected."
x. The heading to Section 5 and each of Sections 5(a), 5(b), 5(c) and 5(e)
are hereby amended by the insertion of the text ", Dallas P. Price" immediately
after the text "JCG" in each place it appears.
y. Section 5(e) is hereby amended by the insertion of the text ", the
Dallas P. Price Pledge " immediately after the text "the Price Pledge
Agreement,".
z. Section 10(a) is hereby amended by the insertion of the text ", Dallas
P. Price" immediately after the text "Xxxxx X. Xxxxx".
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aa. Section 10(b) is hereby amended by the insertion of the text ", Dallas
P. Price" immediately after the text "Xxxxx X. Xxxxx".
bb. Section 11(a) is hereby amended by the deletion of the text therein in
its entirety and the insertion of the following text in lieu thereof:
"(a) Enforcement With Respect to Collateral. Each and every Secured
Creditor shall have the right to deliver a Default Notice (which specifies the
relevant Debt Document) to the Collateral Agent to the extent an Alternate Major
Default or a Major Default, as applicable, shall have occurred. The Collateral
Agent shall promptly (but within no more than 2 Business Days) deliver such
Default Notice to each party to the relevant Debt Document. Upon and after the
delivery to the Collateral Agent of (i) a Default Notice by any Secured Creditor
permitted herein to deliver such notice and (ii) an Enforcement Directive from
the Directing Creditors permitted herein to deliver such directive, 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 permitted herein to deliver such directive to the Collateral
Agent. Notwithstanding anything herein to the contrary, with respect to (x) a
Dallas P. Price bankruptcy, only the Required Purchasers shall have the right to
deliver a Default Notice, (y) the Pledged Collateral, the Alternate Pledge
Collateral, the Price Pledge Agreement, the Dallas P. Price Pledge, the Dallas
P. Price Guaranty, and the Xxxxx X. Xxxxx Control Agreement for the sole benefit
of the Purchasers, only the Required Purchasers shall have the right to deliver
an Enforcement Directive and (z) the Bank Alternate Pledge Collateral and Xxxxx
X. Xxxxx Control Agreement for the sole benefit of the Bank, only the Bank shall
have the right to deliver an Enforcement Directive."
cc. Section 11(c) is hereby amended by the deletion of the text "Pari
Passu" from the heading thereof.
dd. Section 11(d) is hereby amended by the deletion of the first sentence
in its entirety and the insertion of the following text in lieu thereof:
"Upon the occurrence of an Alternate Major Default or a Major Default, as
applicable, the Collateral Agent shall have the rights and remedies set forth
herein and in the Price Pledge Agreement, the Dallas P. Price Pledge, the Xxxxx
X. Xxxxx Control Agreement, the Mortgages, the Guaranties and other Security
Instruments and under all applicable law, including, without limitation, the
right, upon receipt of a Default Notice from any Secured Creditor permitted
herein to deliver such notice and an Enforcement Directive from the Directing
Creditors permitted herein to deliver such directive, to foreclose upon and sell
any or all of the Collateral. Notwithstanding anything herein to the contrary,
with respect to (x) a Dallas P. Price bankruptcy, only the Required Purchasers
shall have the right to deliver a Default Notice, (y) the Pledged Collateral,
the Alternate Pledge Collateral, the Price Pledge Agreement, the Dallas P.
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Price Pledge, the Dallas P. Price Guaranty, and the Xxxxx X. Xxxxx Control
Agreement for the sole benefit of the Purchasers, only the Required Purchasers
shall have the right to deliver an Enforcement Directive and (z) the Bank
Alternate Pledge Collateral and Xxxxx X. Xxxxx Control Agreement for the sole
benefit of the Bank, only the Bank shall have the right to deliver an
Enforcement Directive."
ee. Section 11(e) is hereby amended by the insertion of the text
"hereunder" immediately before the period at the end of the first sentence.
ff. The second sentence of Section 11(f) is hereby amended by the insertion
of the text "(i)" immediately after the text "for the avoidance of doubt" and
the insertion of the text ", (ii) the Bank hereby expressly acknowledges that
the Purchasers have received additional security pursuant to the Dallas P. Price
Pledge and the Dallas P. Price Guaranty and the Bank expressly waives any right
to or in such collateral and (iii) the Purchasers hereby expressly acknowledge
that the Bank has the sole beneficial interest in the Bank Alternate Pledge
Collateral and the Purchasers hereby expressly waive any right to or in such
collateral" at the end of that sentence.
gg. Sections 14(a) and 14(b) are hereby amended by the deletion of the text
"November 5, 2002" and the insertion of the text "February 28, 2003" in lieu
thereof in each place it appears.
hh. Section 14(a)(2) is hereby amended by the insertion of the text "but
continue to maintain effective the Mountaingate Guaranty" immediately following
the text "reconvey the Mountaingate Second Mortgage to Mountaingate".
ii. Section 14(a) is hereby amended by the deletion of the text "the
Collateral Agent and Mountaingate shall, concurrently with the delivery of the
Alternate Mountaingate Collateral, enter into the Mountaingate Control
Agreement, substantially in the form attached hereto as Annex 3 and reasonably
satisfactory to the Required Creditors and the Collateral Agent" and the
insertion of the text "Mountaingate shall deposit such cash collateral into the
Mountaingate Control Account opened pursuant to the Mountaingate Control
Agreement attached hereto as Annex 3".
jj. Section 14(e) is hereby amended by the deletion of the text
"$16,000,000" and the insertion of the text "$6,481,116" in lieu thereof in each
place it appears.
kk. Section 14(e) is hereby amended by the deletion of the text "no later
than November 5, 2002" and the insertion of the text " on March 31, 2003" in
lieu thereof in each place it appears.
ll. Section 14(e) is hereby amended by the insertion of the text "and the
Dallas P. Price Guaranty" immediately after the text "Price Guaranty" in each
place it appears.
mm. Section 14(e) is hereby amended by the insertion of the text "and the
Dallas P. Price Pledge" immediately after the text "Price Pledge Agreement" in
each place it appears.
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nn. Section 14(e) is hereby amended by the deletion of the last sentence in
its entirety and the insertion of the following text in lieu thereof:
"In the event that Xxxxx X. Xxxxx elects to provide the Alternate Pledge
Collateral in the form of cash collateral, Xxxxx X. Xxxxx shall deposit such
cash collateral in the Xxxxx X. Xxxxx Control Account with the Collateral Agent
as set forth in the Xxxxx X. Xxxxx Control Agreement, attached hereto as Annex
2B which shall govern the rights and obligations of the parties thereto with
respect to the cash collateral."
oo. Section 14(f) is hereby deleted in its entirety and replaced with the
following:
"(f) Foreclosure on Alternate Pledge Collateral. Upon the occurrence of an
Alternate Major Default or if Xxxxx X. Xxxxx shall fail to provide the Alternate
Pledge Collateral to the Collateral Agent on March 31, 2003, the Collateral
Agent may, upon the direction of the Required Purchasers, as its sole remedy
against Xxxxx X. Xxxxx and Dallas P. Price, as the case may be, immediately
exercise all rights and remedies under the Price Guaranty, the Price Pledge
Agreement and the Dallas P. Price Guaranty and the Dallas P. Price Pledge,
including, without limitation, the right of foreclosure sale thereunder;
provided, however, Xxxxx X. Xxxxx'x failure to provide the Alternate Pledge
Collateral on March 31, 2003 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 opened pursuant to the Xxxxx Xxxxx Control Agreement attached
hereto as Annex 2B and treated as Alternate Pledge Collateral in the form of
cash collateral for the sole benefit of the Purchasers."
pp. Section 14(g) is hereby deleted in its entirety and replaced with the
following: "(g) Intentionally deleted."
qq. Section 14(h) is hereby amended by (i) the deletion of the text
"Secured Creditors" and the insertion of the text "Purchasers" in lieu thereof.
(ii) the insertion of the text "as attached hereto as Annex 2B" immediately
after the text "Xxxxx X. Xxxxx Control Agreement" and (iii) the insertion of the
text "and the Dallas P. Price Guaranty" immediately after the text "Price
Guaranty".
rr. Section 14(h) is hereby amended by the insertion of the following
sentence at the end of the Section:
"For the avoidance of doubt, the Bank shall have no rights in any manner
whatsoever in the Alternate Pledge Collateral. Any draw down or foreclosure of
the Alternate Pledge Collateral shall be in the sole discretion of the Required
Purchasers for the sole benefit of the Purchasers."
ss. Section 14 is hereby amended by adding the following to the end of
Section 14, immediately following Section 14(h):
"(i) Bank Alternate Pledge Collateral. The Bank may not, until the
occurrence of a Major Default, exercise all rights and remedies under the
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Price Guaranty and foreclose on the $9,518,884 in cash (the "Bank Alternate
Pledge Collateral") pledged pursuant to the Xxxxx X. Xxxxx Control
Agreement attached hereto as Annex 2A; provided, however, that no recourse
may be sought against the Bank Alternate Pledge Collateral prior to the
occurrence of a Specified Event. For the avoidance of doubt, the Purchasers
shall have no rights in any manner whatsoever in the Bank Alternate Pledge
Collateral. Any draw down or foreclosure of the Bank Alternate Pledge
Collateral shall be in the sole discretion of the Bank for the sole benefit
of the Bank."
tt. Section 15(a) is hereby amended by the insertion of the following text
immediately following the heading "Sharing/Distributions." and before subsection
(i):
"Except as set forth in Section 15(a)(iv) with respect to the Bank
Alternate Pledge Collateral, the Pledged Collateral and the Alternate Pledge
Collateral,"
uu. Section 15(a) is hereby amended by the insertion of the following new
section immediately following Section 15(a)(iii):
"(iv) Notwithstanding anything to the contrary in the foregoing Sections
15(a)(i) to (iii):
A. With respect to the Pledged Collateral or the Alternate Pledge
Collateral, (a) any Distributions shall be made solely at the direction of the
Required Purchasers, (b) the Purchasers shall have no obligations to share any
such Distributions with the Bank and (c) promptly following the receipt of any
such Distributions, the Collateral Agent shall (i) provide notice only to the
Purchasers of receipt of such Distributions and deposit such Distributions into
the Collateral Proceeds Account and (ii) upon the written direction of the
Required Purchasers, distribute to each Purchaser such Purchaser's pro rata
share of the Distributions so received in accordance with paragraph (b) of this
Section 15; and
B. With respect to the Bank Alternate Pledge Collateral, (a) any
Distributions shall be made solely at the direction of the Bank, (b) the Bank
shall have no obligations to share any such Distributions with the Purchasers
and (c) promptly following the receipt of any such Distributions, the Collateral
Agent shall (i) provide notice only to the Bank of receipt of such Distributions
and deposit such Distributions into the Collateral Proceeds Account and (ii)
upon the written direction of the Bank, distribute to the Bank the Distributions
so received in accordance with paragraph (b) of this Section 15."
C. With respect to any monies deposited into the Xxxxx Xxxxx Control
Accounts or the Mountaingate Control Account, for the avoidance of doubt, such
monies shall become Distributions and shall be deposited into the Collateral
Proceeds Account only upon the foreclosure of such accounts pursuant to Section
10 of the respective Xxxxx X. Xxxxx Control Agreement.
vv. Section 15(b)(i)FIRST B. is hereby amended by the deletion of the text
", counsel and other advisors" immediately following the text "to the Bank" and
the insertion of the text "and" in lieu thereof.
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ww. Section 15(b)(ii) is hereby amended by (i) the deletion of the text
"and" at the end of subsection A; and (ii) the deletion of the period at the end
of subsection B and the insertion of a semi-colon in lieu thereof and the
insertion of the following:
"C. any Distributions with respect to the Pledged Collateral or the
Alternate Pledge Collateral shall be distributed pursuant to the Order
of Application set forth in Section 15(b)(i) but shall not be paid to
the Bank. For the avoidance of doubt, sections titled "FIRST B.",
"THIRD", "FOURTH", "FIFTH", and any other provisions which would
otherwise provide for payment to the Bank are hereby waived by the
Bank with respect to any Distributions or payments arising from the
Pledged Collateral or the Alternate Pledge Collateral or the
foreclosure or sale thereof; and
D. any Distributions with respect to the Bank Alternate Pledge
Collateral shall be distributed pursuant to the Order of Application
set forth in Section 15(b)(i) but shall not be paid to the Purchasers.
For the avoidance of doubt, sections titled "FIRST B", "SECOND",
"THIRD", "FOURTH", "FIFTH", "SIXTH", "SEVENTH", and any other
provisions which would otherwise provide for payment to the Purchasers
are hereby waived by the Purchasers with respect to any Distributions
or payments arising from the Bank Alternate Pledge Collateral or the
foreclosure or sale thereof."
xx. Section 21 is hereby amended by the insertion of the text "as such
agreements may be amended or modified pursuant to Section 22 below," immediately
after the text "Security Instruments".
yy. Section 33 is hereby amended by (i) the deletion of the text "and"
immediately before the text "(v)" and the insertion of a comma in lieu thereof
and (ii) the insertion of the text "AND (vi) IN THE CASE OF DALLAS P. PRICE,
UNDER THE DALLAS P. PRICE PLEDGE, THE DALLAS PRICE GUARANTY" at the end of the
sentence.
zz. Annex 2 is hereby amended by the deletion of the form Xxxxx X. Xxxxx
Securities Account Security and Control Agreement set forth therein in its
entirety and the insertion of the form agreements attached hereto as Annex 2A
and Annex 2B in lieu thereof.
aaa. Annex 3 is hereby amended by the insertion of the text "19th"
immediately before the text "day" in the introductory paragraph thereto.
Section 2. Amendments to the Mountaingate Guaranty
a. Recital E of the Mountaingate Guaranty is hereby amended by the
insertion of the text "as such has been amended by the Extension and Amendment
Agreement Relating to the Delivery of Alternate Collateral dated as of November
5, 2002 (the "Extension Agreement")" immediately following "of even date
herewith".
b. The following new recital is hereby inserted immediately following
Recital H:
11
"All references to this or the Guaranty shall be deemed references to this
or the Guaranty as amended by the Extension Agreement."
c. Section 5 is hereby amended by the insertion of the text ", the Guaranty
of Dallas P. Price" immediately following the text "the Guaranty of Xxxxx X.
Xxxxx" in each place it appears.
d. Section 5 is hereby amended by the insertion of the text "Dallas P.
Price, " immediately after the text "the release of" and the text "any
settlement with".
e. Section 15 is hereby amended by the insertion of the text "as such
agreements have been amended by the Extension" immediately following the text
"and the AGC Collateral Agency Agreement"
Section 3. Amendments to the DGP Guaranty
a. The Recitals of the DGP Guaranty are hereby amended by the insertion of
the following text immediately following Recital H:
"I. Each of the Guarantor, the Company, the Secured Creditors and the
Collateral Agent, among others, are entering into an Extension and Amendment
Agreement Relating to the Delivery of Alternate Collateral dated as of November
5, 2002 (the "Extension Agreement") pursuant to which, in consideration for the
delivery of the Bank Alternate Pledge Collateral (as defined in the AGC
Collateral Agency Agreement), the Secured Creditors have agreed to release the
Bank's pro rata share of the Collateral (as defined in the Pledge Agreement) and
the Purchasers have agreed to further forbear in the exercise of their remedies
as set forth in the Extension Agreement.
J. All references to this or the Guaranty shall be deemed references to
this or the Guaranty as amended by the Extension Agreement."
b. Section 1(a) is hereby amended by the insertion of the text "AND THE
GUARANTOR'S OBLIGATIONS UNDER THIS GUARANTY" immediately after "WITH RESPECT TO
THE GUARANTEED OBLIGATIONS".
c. Section 1(b) is hereby amended by the deletion of the text "The" and the
insertion of the text "Subject to the limitations contained in Section 1(a)
above, the" in lieu thereof.
d. Section 5 is hereby amended by the insertion of the text ", the Guaranty
of Dallas P. Price" immediately following the text "Guaranty of Mountaingate
Land" in each place it appears.
e. Section 5 is hereby amended by the insertion of the text "Dallas P.
Price, " immediately after the text "any settlement with" and the text "the
release of".
12
f. Section 15 is hereby amended by the insertion of the text "as such
agreements have been amended by the Extension Agreement" immediately following
the text "and the AGC Collateral Agency Agreement"
Section 4. Conditions to Effectiveness. This Extension Agreement shall be
effective as of the date first stated above (the "Effective Date") upon
execution hereof by the parties hereto and upon satisfaction of the following
conditions:
(1) Dallas Price shall have executed and delivered that certain Stock and
Partnership Interest Pledge Agreement dated as of the date hereof (the "DPP
Pledge") by and among Dallas P. Price and BNY Midwest Trust Company as
Collateral Agent for the Purchasers;
(2) Dallas Price shall have executed and delivered that certain Limited
Recourse Dallas P. Price Guaranty dated as of the date hereof (the "DPP
Guaranty") by and among Dallas P. Price and BNY Midwest Trust Company as
Collateral Agent for the Purchasers;
(3) Xxxxx Xxxxx shall have executed and delivered that certain Amended and
Restated Stock and Partnership Interest Pledge Agreement dated as of the date
hereof (the "Restated Price Pledge Agreement") by and among Xxxxx Xxxxx and the
Collateral Agent for the sole benefit of the Purchasers;
(4) Xxxxx Xxxxx and the Collateral Agent shall have executed and delivered
that certain Securities Account Security and Control Agreement (the "Bank
Control Agreement") dated as of the date hereof by and between Xxxxx Xxxxx and
BNY Midwest Trust Company as Collateral Agent for the Bank, in the form of Annex
2A attached hereto;
(5) Xxxxx Xxxxx and the Collateral Agent shall have executed and delivered
that certain Securities Account Security and Control Agreement (the "Noteholders
Control Agreement") dated as of the date hereof by and between Xxxxx Xxxxx and
BNY Midwest Trust Company as Collateral Agent for the Purchasers, in the form of
Annex 2B attached hereto;
(6) Xxxxx X. Xxxxx shall have paid to the Purchasers a fee in the amount of
$418,000 (the "Purchasers Extension Fee") according to the wire instructions set
forth on Schedule 1 hereto;
(7) Xxxxx X. Xxxxx shall have paid to the Bank a fee in the amount of
$240,000 (the "Bank Extension Fee" and together with the Purchasers Extension
Fee, the "Fee") according to the wire instructions set forth on Schedule 1
hereto;
(8) Xxxxx Xxxxx shall have deposited $9,518,884 into the Xxxxx X. Xxxxx
Control Account established pursuant to the Bank Control Agreement;
(9) the Collateral Agent, upon the direction of the Bank and the Purchasers
shall have released 2,148,074 common limited partnership units of National Golf
Operating Partnership, L.P. ("NGOP"). For the avoidance of doubt, 1,107,620
common limited partnership units of NGOP and 354,938 shares of National Golf
Partnership, Inc. ("NGP") shall remain pledged by Xxxxx Xxxxx to the Collateral
Agent for the sole benefit of the Purchasers;
13
(10) Dallas Price shall have delivered to the Collateral Agent for the
benefit of the Purchasers the Collateral as defined in the Dallas P. Price
Pledge;
(11) The Bank and the Purchasers shall have received a copy of the consent
required pursuant to Section 10.1 of the Amended and Restated Plan of Merger and
Reorganization Agreement dated as of September 14, 2002 by and among NGP, NGOP,
AGC, Golf Enterprises, Inc., Xxxxx X. Xxxxx, Xxxxxx X. Xxxxx, the AGC
Contributors, the Transferred Entity Contributors (each as defined therein) and
American International Golf, Inc.; and
(12) The Bank and the Purchasers shall have received a copy of the consent
required pursuant to Section 8.1 of the Purchase Agreement dated as of September
14, 2002 by and among AGC, Golf Enterprises, Inc., New AGC LLC, Xxxxx X. Xxxxx,
Dallas P. Price, the AGC Sellers and the Transferred Entity Sellers (each as
defined therein).
Section 5. Miscellaneous
a. Each of the Bank, the Purchasers and the Collateral Agent hereby waive
the notice provision pursuant to Section 14(e) of the AGC Collateral Agency
Agreement and agree to the release of 2,148,074 units of NGOP on the Effective
Date of this Extension Agreement. For the avoidance of doubt, the Bank and the
Purchasers hereby acknowledge that such units represent the Bank's pro rata
share of the Pledged Securities and that as of the Effective Date, the Bank will
have no interest in any of the remaining shares or units pledged by Xxxxx Xxxxx
or Dallas Price and held by the Collateral Agent for the benefit of the
Purchasers.
b. Except as amended by this Extension Agreement, all of the terms and
provisions of the AGC Collateral Agency Agreement, the DGP Guaranty and the
other Debt Documents shall remain in full force and effect and the same are
hereby ratified and confirmed.
c. This Extension Agreement shall be construed under the laws of the State
of California. This Extension Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Delivery
by telecopier of an executed counterpart of a signature page to this Extension
Agreement shall be as effective as delivery of an originally executed
counterpart of this Extension Agreement.
d. If any provision of this Extension Agreement shall be found invalid,
unenforceable or ineffective, such provision shall be invalid, unenforceable or
ineffective only to the extent required to render such provision valid,
enforceable or effective, without invalidating the remainder of such provision
or the remaining provisions hereof, including, without limitation, any consent
or amendment granted herein by the Required Creditors.
e. AGC represents and warrants that it has obtained all necessary consents
and approvals necessary to enter into this Extension Agreement and that the
execution, delivery and performance by AGC has been duly authorized by all
necessary action.
14
f. Each of the Bank and the Purchasers hereby direct the Collateral Agent
to execute and deliver this Extension Agreement, the DPP Pledge, the DPP
Guaranty, the Restated Price Pledge Agreement, the Bank Control Agreement and
the Noteholder Control Agreement.
g. Each of Xxxxx Xxxxx, the Bank, the Purchasers and the Collateral Agent
hereby acknowledge and agree that the execution and delivery of Bank Control
Agreement and the Noteholders Control Agreement supercede the Xxxxx X. Xxxxx
Securities Account Security and Control Agreement dated as of July 19, 2002 (the
"July 19 Control Agreement") and such agreement is hereby terminated and no
longer effective as of the date hereof and the Collateral Agent confirms that no
control account was ever established under the July 19 Control Agreement.
h. Each of AGC, the Purchasers and the Bank represent and warrant that
other than this Extension Agreement, together with the agreements and
instruments executed in connection herewith and contemplated hereby and any
other agreements or documents to which both the Bank and the Purchasers are
party thereto or have knowledge thereof, there is no separate agreement,
understanding or other writing between AGC and the Purchasers or between AGC and
the Bank with respect to the subject matter hereof.
i. AGC represents and warrants to the Secured Creditors that upon giving
effect to this Extension Agreement, no Major Default (as defined in the
Restructuring Agreement) has occurred and is continuing.
j. Each of Mountaingate and Xxxxx Xxxxx hereby confirms, represents and
warrants that as of the date hereof, the representations and warranties set
forth in Section 6 of the Mountaingate Guaranty and the Price Guaranty,
respectively, and their respective warranties in Section 4 of the AGC Collateral
Agency Agreement, are true and correct as of the date hereof as if made on the
date hereof.
(Signature page follows)
15
IN WITNESS WHEREOF, this Extension Agreement has been duly executed on the
date specified above.
Xxxxx X. Xxxxx, as an individual
/s/ Xxxxx X. Xxxxx
-------------------------------
The Xxxxx X. Xxxxx Trust dated March 5, 1998
(as amended).
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
-----------------------
Title: Trustee
----------------------
Mountaingate Land L.P.
By: Mountaingate Land, Inc.
By: /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
----------------------
Title:
---------------------
American Golf Corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------
Title:
----------------------------
16
Dallas P. Price, as an individual
/s/ Dallas P. Price
--------------------------------
The Dallas P. Price Trust dated May 14, 1998
(as amended).
By: /s/ Dallas P. Price
----------------------------
Name: Dallas P. Price
-----------------------
Title: Trustee
----------------------
17
Bank of America, N.A.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
18
Teachers Insurance and Annuity Association of
America
By: /s/ Roi X. Xxxxxx
-----------------------------------
Name: Roi X. Xxxxxx
---------------------------------
Title: Director - Special Solutions
--------------------------------
19
BNY Midwest Trust Company, as Collateral Agent
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxx
---------------------------------
Title: Assistant Vice President
--------------------------------
20
The Travelers Insurance Company
By: /s/ Xxxxxx Xxxxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
--------------------------------
Title: Investment Officer
--------------------------------
21
Jefferson-Pilot Life Insurance Company
By: /s/ Xxxxxx X. Xxxxxx XX
-----------------------------------
Name: Xxxxxx X. Xxxxxx XX
---------------------------------
Title: Vice President
--------------------------------
22
National Life Insurance Company
By: /s/ R. Xxxxx Xxxxxxx
-----------------------------------
Name: R. Xxxxx Xxxxxxx
---------------------------------
Title: Vice President, NL Capital Management
--------------------------------------
23
Life Insurance Company of the Southwest
By: /s/ R. Xxxxx Xxxxxxx
-----------------------------------
Name: R. Xxxxx Xxxxxxx
---------------------------------
Title: Vice President, NL Capital Management
--------------------------------------
24
AUSA Life Insurance Company, Inc.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
25
Transamerica Life Insurance Company
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
26
