EXHIBIT 99.2
EXECUTION COPY
RESTRUCTURING AGREEMENT AND LIMITED WAIVER
This RESTRUCTURING AGREEMENT AND LIMITED WAIVER (this "AGREEMENT")
is made as of July 1, 2002, by and among AMERICAN GOLF CORPORATION, a California
corporation ("COMPANY"), BANK OF AMERICA, N.A., a national banking association
("BANK"), and Purchasers (defined below, and together with Bank, "CREDITORS").
All capitalized terms shall have the meanings set forth in Section I hereof,
unless otherwise defined herein.
A. Pursuant to a Credit Agreement dated as of July 30, 1996 between
Bank and Company (as amended, modified or supplemented from time to time,
including without limitation by the March Forbearance Agreement, the "CREDIT
AGREEMENT"), Bank provided to Company revolving credit and standby letter of
credit facilities (the "BANK LOANS") not to exceed at any one time an aggregate
principal amount equal to $48,134,000 (the "LOAN PRINCIPAL AMOUNT"). The Credit
Agreement and other Loan Documents are presently enforceable against Company in
accordance with their terms as a result of the existence of various Events of
Default thereunder, including without limitation, the failure of Company to
repay the Bank Loans upon the expiration of the Forbearance Period as defined in
and set forth in the March Forbearance Agreement.
B. Pursuant to a 9.35% Senior Secured Note Purchase Agreement dated
as of July 30, 1996 between Company and each of the purchasers of Company's
9.35% Senior Secured Notes due July 1, 2004 ("NOTES") identified on Schedule I
thereto (collectively, "PURCHASERS"), as amended, modified or supplemented from
time to time (the "PURCHASE AGREEMENT"), Company issued and Purchasers purchased
Notes in the original aggregate principal amount of $41,500,000. As of the
Effective Date, the Notes will have an aggregate outstanding principal amount
equal to $30,374,031 (the "PURCHASE PRINCIPAL AMOUNT"). The Purchase Agreement
and other Purchase Documents are enforceable against Company in accordance with
their terms as a result of the existence of various Events of Default
thereunder.
C. Company has requested that Bank and Purchasers agree to
restructure the Bank Loans and Notes, and provide a limited waiver of the
existing Events of Default under the Credit Agreement and Purchase Agreement,
respectively, as well as any prospective Event of Default which may arise
thereunder during the Waiver Period other than any Major Default. Bank and
Purchasers are willing to agree to such restructuring and waive such existing
and prospective Events of Default, subject to the terms and conditions hereof,
including the granting by Company and/or its Affiliates of certain collateral,
including the following: (i) first priority leasehold mortgages or deeds of
trust encumbering certain real property leased by Company, (ii) first priority
security interests and pledges of certain stock or membership interests held by
Company, (iii) a limited recourse guaranty by Mountaingate Land, L.P., a
California limited partnership ("MOUNTAINGATE LAND"), secured by a second
priority deed of trust encumbering certain real property owned by Mountaingate
Land, and (iv) a limited recourse guaranty by Xxxxx X. Xxxxx, an individual,
secured by a pledge of certain shares of common stock of NGP and certain
partnership interests of NGOP currently owned by Xxxxx X. Xxxxx and the Xxxxx X.
Xxxxx Trust dated March 5, 1998 (as amended, the "PRICE TRUST"). Pursuant to
Collateral Agency Agreements, Creditors have agreed to share the Collateral, in
some cases between Creditors, and in other cases among each Creditor and NGOP.
D. IT IS THE INTENT OF THE PARTIES HERETO THAT THIS AGREEMENT
ADDRESS THE RESPECTIVE DEBTS AND/OR OBLIGATIONS OF COMPANY TO CREDITORS WHICH
ARE FULLY DESCRIBED HEREIN. THIS AGREEMENT DOES NOT PERTAIN TO ANY OTHER
INDEBTEDNESS AND/OR OBLIGATIONS OF COMPANY (OR ANY OTHER PERSONS) TO ANY
CREDITOR NOT SPECIFICALLY ADDRESSED IN THIS AGREEMENT. ALL TERMS AND PROVISIONS
OF ANY AGREEMENTS (INCLUDING, BUT NOT LIMITED TO, THE DEBT DOCUMENTS) BETWEEN
COMPANY, ON THE ONE HAND, AND BANK OR PURCHASERS, ON THE OTHER HAND, NOT
SPECIFICALLY MODIFIED HEREIN, SHALL REMAIN IN FULL FORCE AND EFFECT IN
ACCORDANCE WITH THEIR ORIGINAL TERMS.
Accordingly, the parties hereto agree as follows:
I. DEFINED TERMS; INTERPRETATION.
A. DEFINED TERMS. As used in this Agreement, including in the
recitals hereof, the following terms shall have the following meanings:
"AFFILIATE" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another Person if
the controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"AGC COLLATERAL AGENCY AGREEMENT" means the Collateral Agency
Agreement, dated as of the Effective Date, among Company, Bank, Purchasers and
the Collateral Agent for the benefit of Bank and Purchasers named therein, in
substantially the form of EXHIBIT J.
"AGC COLLATERAL AGENT" means the Collateral Agent appointed in the
AGC Collateral Agency Agreement.
"AGC/GEI MANAGEMENT SECURITY AGREEMENT" means the Security
Agreement, dated as of the Effective Date, among Company, GEI and Collateral
Agent, in substantially the form of EXHIBIT M.
"AGC/NGOP COLLATERAL AGENCY AGREEMENT" means the Collateral Agency
Agreement, dated as of the Effective Date, among Company, Bank, Purchasers, NGOP
and the Collateral Agent for the benefit of Bank, Purchasers and NGOP named
therein, in substantially the form of EXHIBIT K.
"AGC/NGOP COLLATERAL AGENT" means the Collateral Agent appointed in
the AGC/NGOP Collateral Agency Agreement.
"AGREEMENT" means this Restructuring Agreement and Limited
Waiver.
"AKIN, GUMP" means Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.,
counsel to Purchasers.
- 2 -
"AKIN RETAINER AMOUNT" means any retainer payment made by Company to
Akin Gump for the purpose of ensuring that Costs and Expenses of Purchasers are
paid when due.
"ASSIGNMENT" means any instrument of assignment or sublease required
hereunder, executed by Company in favor of the AGC/NGOP Collateral Agent, in
form and substance satisfactory to each Creditor.
"BANK" has the meaning set forth in the introductory paragraph.
"BANK CONSENT" means the Waiver and Consent, executed by
Mountaingate Land, Xxxxx X. Xxxxx, the Price Trust and Bank, in its capacity as
the lender to Mountaingate Land under that certain Standing Loan and Swap
Commitment dated as of October 7, 1996, and as holder of the existing first deed
of trust on the Mountaingate Property, in substantially the form of EXHIBIT P.
"BANK LOANS" has the meaning set forth in recital paragraph A.
"BUSINESS DAY" means a day (i) other than Saturday or Sunday, and
(ii) on which commercial banks are open for business in New York, New York, and
Los Angeles, California.
"COLLATERAL" means the property described in the Collateral
Documents, and all other property now existing or hereafter acquired which may
at any time be or become subject to a Lien in favor of the AGC Collateral Agent
or the AGC/NGOP Collateral Agent pursuant to the Collateral Documents or
otherwise, securing the Indebtedness and performance of the obligations of
Company and its Affiliates hereunder and under the Collateral Documents.
"COLLATERAL AGENCY AGREEMENT" means (i) the AGC Collateral Agency
Agreement, or (ii) the AGC/NGOP Collateral Agency Agreement, as applicable.
"COLLATERAL AGENT" means (i) the AGC Collateral Agent for the
ratable benefit of Creditors, or (ii) the AGC/NGOP Collateral Agent for the
ratable benefit of each Creditor and NGOP, as applicable.
"COLLATERAL DOCUMENTS" means (i) each of the Leasehold Mortgages,
(ii) the Mountaingate Second Mortgage, (iii) the Wholly-Owned Subsidiary Pledge
Agreement, (iv) the Majority-Owned Subsidiary Pledge Agreement, (v) the Price
Pledge Agreement, (vi) the Lease Subordination Agreement, (vii) the Assignments,
(viii) the AGC Collateral Agency Agreement, (ix) the AGC/NGOP Collateral Agency
Agreement, (x) the Bank Consent, (xi) the Registration Rights Agreement, (xii)
the AGC/GEI Management Security Agreement, (xiii) the Escrow Agreement, (iv) the
Control Agreements and (xiv) any other agreement pursuant to which Company, each
of the Guarantors or any other Person provides a Lien on its assets in favor of
either Collateral Agent, and all financing statements, fixture filings,
assignments, acknowledgments and other filings, documents and agreements made or
delivered pursuant thereto.
"COMPANY" has the meaning set forth in the introductory paragraph.
"CONFIDENTIALITY AGREEMENT" means the letter agreement, dated June
21, 2002, by and between Xxxxx, Xxxxxxxx & White, LLC, as financial advisor to
Bank, and NGP.
- 3 -
"CONTROL AGREEMENTS" means (i) the Securities Account Control
Agreement entered into by and between Xxxxx X. Xxxxx and the AGC Collateral
Agent, and (ii) the Securities Account Control Agreement entered into by and
between Mountaingate Land and the AGC Collateral Agent, in each case as provided
for in the AGC Collateral Agency Agreement.
"COSTS AND EXPENSES" means, as to each Creditor, any (i) reasonable
out-of-pocket costs and expenses of such Creditor and its or their Affiliates,
(ii) reasonable fees and disbursements of Pillsbury Winthrop LLP and Xxxxx,
Xxxxxxxx & White, LLC, or Akin Gump and Nightingale, respectively, and any other
business advisors and counsel (including outside counsel, local counsel and
allocated costs of internal counsel), and (iii) administration and coordination
fees of title companies, title appraisal, survey, audit, environmental
inspection, consulting, search, recording, filing, and similar costs, fees and
expenses, in each case currently owing or hereafter incurred in connection with
the negotiation, preparation, execution, delivery and administration of the
Restructure Documents, and any amendments, modifications or waivers of the terms
thereof.
"CREDIT AGREEMENT" has the meaning set forth in recital paragraph A.
"CREDIT ENHANCEMENT AGREEMENT" means the Credit Enhancement
Agreement, dated as of the Effective Date, by and among Company, Xxxxx X. Xxxxx
and Mountaingate Land, in substantially the form of Exhibit R.
"CREDITORS" has the meaning set forth in the introductory paragraph.
"CURRENT RATE" means (i) as to Bank, the Prime Rate plus three (3)
percent per annum, and (ii) as to Purchasers, a rate equal to 9.60 percent per
annum.
"DEBT DOCUMENTS" means (i) as to Bank, the Loan Documents, (ii) as
to Purchasers, the Purchase Documents, and (iii) as to Bank and Purchasers, the
Loan Documents and Purchase Documents.
"DEFERRED MAKE-WHOLE AMOUNT" has the meaning set forth in Section
VI(F).
"DEFERRED MAKE-WHOLE PAYMENT DATE" shall mean the first to occur of
(i) the expiration of the Waiver Period, (ii) the date on which the principal on
any of the Notes or Bank Loans is accelerated in accordance with the terms of
this Agreement, (iii) the date on which the Mandatory Payment is due and payable
and (iv) the date on which all principal and interest on the Notes and the Bank
Loans is due and payable.
"EFFECTIVE DATE" means the date on which all conditions to the
effectiveness hereof set forth in Section VII are satisfied, or waived by Bank
and the Required Purchasers (as defined in the Collateral Agency Agreement).
"ESCROW AGENT" means the escrow agent named in the Escrow Agreement.
"ESCROW AGREEMENT" means the Escrow Agreement, in
substantially the form of EXHIBIT T.
- 4 -
"EVENT OF DEFAULT" means (i) as to Bank, any Event of Default as
defined in and set forth in the Credit Agreement, and (ii) as to Purchasers, any
Event of Default as defined in and set forth in the Purchase Agreement.
"EXISTING LOAN DEFAULTS" has the meaning set forth in Section II(B).
"EXISTING NOTE PURCHASE AGREEMENT" has the meaning set forth in
Section VI(G).
"EXISTING PLEDGE AGREEMENT" means the Pledge, Collateral Agency and
Intercreditor Agreement, dated as of July 30, 1996, among Company, GEI, Bank,
Purchasers, Bank, not individually but as collateral agent for itself and
Purchasers, and the other parties thereto, as modified by the AGC Collateral
Agency Agreement.
"EXISTING PURCHASE DEFAULTS" has the meaning set forth in Section
III(B).
"FIRST INSTALLMENT PAYMENT" has the meaning set forth in Section
VI(D).
"FUNDED DEBT" means (i) any indebtedness for borrowed money, (ii)
any contingent obligation relating thereto, (iii) any capital lease obligation
out of the ordinary course of business or (iv) any settlement of claims relating
to trade payables out of the ordinary course of business; PROVIDED that Funded
Debt as used herein shall not include any capital contribution, loan or advance
by Xxxxx X. Xxxxx or his Affiliates to Company so long as the indebtedness
resulting thereby is unsecured indebtedness and is expressly and unconditionally
subordinated to all Indebtedness. For the avoidance of doubt, Funded Debt does
not include performance bonds in the ordinary course of business, standby
letters of credit in the ordinary course of business, personal property and
equipment leases (excluding sale-leaseback transactions), or insurance premium
financing agreements in the ordinary course of business.
"GEI" means Golf Enterprises, Inc., a Kansas corporation.
"GUARANTOR" means each of Mountaingate Land, Xxxxx X. Xxxxx,
GEI and Xxx Xxxxxxx Golf.
"GUARANTY" means, as to any Guarantor, the Limited Recourse Guaranty
of such Guarantor dated as of the Effective Date, executed by such Guarantor in
favor of the AGC Collateral Agent for the benefit of Creditors, in substantially
the form of EXHIBIT D, EXHIBIT E, EXHIBIT L or EXHIBIT O, respectively.
"INDEBTEDNESS" means (i) as to Bank, the Loan Indebtedness, (ii) as
to Purchasers, the Purchase Indebtedness, and (iii) as to Bank and Purchasers,
the Loan Indebtedness and Purchase Indebtedness.
"INTEREST PAYMENT SCHEDULE" means, (i) as to Bank, commencing on
July 31, 2002, and then in arrears on the last Business Day in each month
thereafter until payment in full of the Loan Indebtedness, and (ii) as to
Purchasers, as set forth on SCHEDULE 1 until the end of the Waiver Period, and
then thereafter in accordance with the interest payment terms of the Purchase
Agreement.
- 5 -
"XXX XXXXXXX GOLF" means Xxx Xxxxxxx Golf, Inc., a Nevada
corporation.
"LEASE SUBORDINATION AGREEMENT" means the Subordination of Lease
Agreement, dated as of the Effective Date, executed by and among Mountaingate
Land, Company and Bank, in substantially the form of EXHIBIT G.
"LEASEHOLD MORTGAGE" means a first priority leasehold mortgage or
deed of trust encumbering the lease covering each Leasehold Property, executed
by Company for the benefit of the AGC/NGOP Collateral Agent, or Xxx Xxxxxxx Golf
or GEI for the benefit of the AGC Collateral Agent, as applicable, in
substantially the form of EXHIBIT A.
"LEASEHOLD PROPERTY" means any real property subject to (i) a lease
between Company as tenant and NGOP as landlord, (ii) a lease between Company as
tenant and a landlord other than NGOP to the extent that such lease can be
encumbered without the consent of such third party landlord, in each case as
described on SCHEDULE 2, (iii) a lease between Xxx Xxxxxxx Golf as tenant and a
landlord other than NGOP to the extent that such lease can be encumbered without
the consent of such third party landlord, as described on SCHEDULE 7, or (iv) a
lease between GEI as tenant and NGOP as landlord, as described on SCHEDULE 8.
"LIEN" means any mortgage, deed of trust, pledge, security interest,
assignment, charge or encumbrance, lien or other preferential arrangement.
"LOAN DOCUMENTS" means the Credit Agreement, the Existing Pledge
Agreement, and all other certificates, documents, agreements and instruments
executed in connection with, as collateral for or in furtherance of the Credit
Agreement or in connection with any amendments or modifications thereto.
"LOAN INDEBTEDNESS" has the meaning set forth in Section II(C).
"LOAN PRINCIPAL AMOUNT" has the meaning set forth in recital
paragraph A.
"MAJOR DEFAULT" means any of the events or circumstances specified
in Section XI.
"MAJORITY-OWNED SUBSIDIARY PLEDGE AGREEMENT" means the Pledge
Agreement, dated as of the Effective Date, executed by Company in favor of the
AGC/NGOP Collateral Agent for the benefit of each Creditor and NGOP, in
substantially the form of EXHIBIT B.
"MAKE-WHOLE AMOUNT" has the meaning set forth in Section 8.7 of the
Purchase Agreement.
"MANDATORY PAYMENT" has the meaning set forth in Section VI(B).
"MARCH FORBEARANCE AGREEMENT" means the Forbearance Agreement, dated
as of March 8, 2002, between Bank and Company.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business, property, condition (financial or otherwise), results of operations,
or prospects of Company and its Subsidiaries taken as a whole, (ii) the ability
of Company to perform its material obligations
- 6 -
under the Restructure Documents, or (iii) the validity or enforceability of any
of the Restructure Documents or the material rights or remedies of Bank or
Purchasers thereunder.
"MERGER" means the consummation of the transactions contemplated by
the Merger Agreement.
"MERGER AGREEMENT" means the Agreement and Plan of Merger and
Reorganization, dated as of March 29, 2002, by and among Company, NGOP, NGP and
certain of their respective Affiliates, as amended from time to time.
"MOUNTAINGATE LAND" has the meaning set forth in recital paragraph
C.
"MOUNTAINGATE PROPERTY" means the real property owned by
Mountaingate Land and commonly known as Mountaingate Country Club, as more fully
described in the Mountaingate Second Mortgage.
"MOUNTAINGATE SECOND MORTGAGE" means the Deed of Trust, Assignment
of Rents and Leases, Security Agreement and Fixture Filing, executed by
Mountaingate Land for the benefit of the AGC Collateral Agent, in in
substantially the form of EXHIBIT F.
"NEWCO" means American International Golf, Inc.
"NEW LLC" means AGC Operating Company, LLC.
"NEW LLC MANAGEMENT AGREEMENT" means the Management Agreement, dated
as of the Effective Date, by and between Company and New LLC, in substantially
the form of EXHIBIT S.
"NGOP" means National Golf Operating Partnership, L.P., a
Delaware limited partnership.
"NGOP CREDIT AGREEMENT" means the Amended and Restated Credit
Agreement dated as of July 30, 1999, among NGOP, NGP, Bank One, N.A.,
individually and as agent for the lenders party thereto and the lenders party
thereto, as amended, modified or supplemented from time to time.
"NGOP LENDERS FORBEARANCE AGREEMENT" means the Amendment and
Extension of Credit Agreement dated as of June 28, 2002, by and among NGOP, NGP,
Bank One, NA, individually and as agent for the lenders party thereto and the
lenders party thereto, in each case as subsequently amended, modified or
supplemented from time to time.
"NGP" means National Golf Properties, Inc., a Maryland
corporation.
"NGP SIDE LETTER" means a side letter, executed by Company, NGP and
each Creditor, in substantially the form of EXHIBIT N.
"NIGHTINGALE" means Nightingale & Associates LLC, financial advisor
to Purchasers.
- 7 -
"NIGHTINGALE RETAINER AMOUNT" means any retainer payment made by
Company to Nightingale for the purpose of ensuring that Costs and Expenses of
Purchasers are paid when due.
"NOTES" has the meaning set forth in recital paragraph B.
"PERMITTED LIENS" means any Liens expressly permitted under the
Leasehold Mortgages or the Mountaingate Mortgage, respectively.
"PERSON" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or any other entity of
whatever nature.
"PRICE PLEDGE AGREEMENT" means the Stock and Partnership Interest
Pledge Agreement, dated as of the Effective Date, executed by Xxxxx X. Xxxxx and
the Price Trust in favor of the AGC Collateral Agent for the benefit of
Creditors, in substantially the form of EXHIBIT H.
"PRICE TRUST" has the meaning set forth in recital paragraph C.
"PRINCIPAL AMOUNT" means (i) as to Bank, the Loan Principal Amount,
and (ii) as to Purchasers, the Purchase Principal Amount.
"PURCHASE AGREEMENT" has the meaning set forth in recital paragraph
B.
"PURCHASE DOCUMENTS" means the Purchase Agreement, the Notes, the
Existing Pledge Agreement, and all other certificates, documents, agreements and
instruments executed in connection with, as collateral for or in furtherance of
the Purchase Agreement or in connection with any amendments or modifications
thereto.
"PURCHASE INDEBTEDNESS" has the meaning set forth in Section III(C).
"PURCHASE PRINCIPAL AMOUNT" has the meaning set forth in recital
paragraph B.
"PURCHASERS" has the meaning set forth in recital paragraph B.
"RECAPITALIZATION NON-PAYMENT NOTICE" has the meaning set forth in
Section IX(A).
"REGISTRATION RIGHTS AGREEMENT" means the Unit Exchange and
Registration Rights Agreement dated as of the Effective Date, executed by NGP in
favor of Bank and Purchasers, in substantially the form of EXHIBIT I.
"RENT DEFERRAL AGREEMENT" means the Rent Deferral Agreement, dated
as of the Effective Date, by and among Company, Newco, NGP, NGOP and GEI, in
substantially the form of EXHIBIT Q.
"RESTRUCTURE DOCUMENTS" means this Agreement, the Debt Documents,
the Collateral Documents, the Guaranties, the NGP Side Letter, the Rent Deferral
Agreement and all other
- 8 -
certificates, documents, agreements and instruments delivered to any Creditor or
Collateral Agent under or in connection with this Agreement.
"SIGNIFICANT SUBSIDIARY" means each of the following entities:
(i) AGC-Park Hill Joint Venture, (ii) AG Los Coyotes, LLC, (iii) American
Golf Australia Pty., Ltd., (iv) American Golf of Atlanta, (v) American
Golf of Detroit, (vi) American Golf (U.K.) Ltd., (vii) AM Golf
Corporation, (viii) CW Golf Partners, (ix) Golf Acquisitions, LLC, (x) XYZ
Assets, LLC and (xi) New LLC.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which more than 50% of the voting stock, membership interests or other equity
interests (in the case of Persons other than corporations) is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refers to a
Subsidiary of Company.
"THIRD-PARTY LEASE" means any lease between Company as tenant and a
landlord other than NGOP.
"THIRD-PARTY MANAGEMENT CONTRACT" means any golf course management
contract between Company and any third party other than NGOP.
"WAIVER FEE AMOUNT" means (i) as to Bank, an amount equal to
$361,000, and (ii) as to Purchasers, an amount equal to $518,275.
"WAIVER FEES" has the meaning set forth in Section VI(E).
"WAIVER PERIOD" shall be the period from and after the Effective
Date through and including March 31, 2003.
"WHOLLY-OWNED SUBSIDIARY PLEDGE AGREEMENT" means the Pledge
Agreement, dated as of the Effective Date, executed by Company in favor of the
AGC/NGOP Collateral Agent, in substantially the form of EXHIBIT C.
B. INTERPRETATION.
1. The recitals set forth above are incorporated as the
agreement of Company and each Creditor.
2. Any reference to a Section, a Schedule or an Exhibit is a
reference to a section hereof, or a schedule or an exhibit hereto,
respectively.
3. The words "hereof," "herein," "hereto," "hereunder" and the like
mean and refer to this Agreement as a whole and not merely to the specific
section, subsection, paragraph or clause in which the respective word appears.
4. The meaning of defined terms shall be equally applicable to both
the singular and the plural forms of the terms defined.
- 9 -
5. The words "including," "includes" and "include" shall be
deemed to be followed by the words "without limitation."
6. Any captions and headings are for convenience of reference only
and shall not effect the construction of this Agreement or any Debt Documents.
7. This Agreement constitutes and combines the "2002 Bank
Forbearance Agreement" and the "2002 Noteholders Forbearance Agreement," as
referenced in the Leasehold Mortgages and the Mountaingate Second Mortgage.
II. ACKNOWLEDGMENTS TO BANK. Company hereby reaffirms to Bank all
acknowledgements, representations and warranties set forth in Section I of the
March Forbearance Agreement and further acknowledges, warrants and represents to
Bank that the following statements of facts regarding the Loan Documents are
true and correct:
A. ENFORCEABILITY OF LOAN DOCUMENTS. The Loan Documents set forth
the legal, valid, binding and continuing obligations of Company to Bank,
enforceable in accordance with their respective terms and conditions. Company
does not contest the validity of the obligations owed to Bank pursuant to the
Loan Documents, the nature, amount or existence of defaults or events of default
under the Loan Documents, the maturity of the Bank Loans or the enforceability
of the rights of Bank under the Loan Documents, including, among other things,
the right to demand payment in full of all amounts outstanding pursuant to the
Credit Agreement and to seek the collection thereof pursuant to the rights and
remedies available to Bank under the Loan Documents or applicable law. Company
agrees that the liens and security interests granted under the Loan Documents
are valid, protected and proper security for the obligations that they secure.
Company has no claims, cross-claims, counterclaims, setoffs or defenses of any
kind or nature which would in any way reduce or offset its obligations to Bank
under the Loan Documents as of the Effective Date.
B. THE EXISTING LOAN DEFAULTS. Subject to Section V hereof, the
following additional Events of Default exist under the Credit Agreement
(together with the Events of Default set forth in the March Forbearance
Agreement, the "EXISTING LOAN DEFAULTS"), which Existing Loan Defaults have
neither been cured by Company (or any other Person) nor waived by Bank as of the
date hereof:
(1) Company has violated the covenant to give Bank prompt written
notice of both (i) all litigation affecting Company or any of its
majority-owned subsidiaries where the amount claimed is over
$1,000,000, as required by Section 9.1(a) of the Credit Agreement, and
(ii) any default arising from the failure to pay a material amount of
money under any material lease, as required by Section 9.1(e) of the
Credit Agreement;
(2) Company has violated the financial covenant contained in Section
9.4 of the Credit Agreement that Company maintain at all times on a
consolidated basis a Tangible Net Worth of at least $22,500,000, PLUS
the amount equal to ninety percent (90%) of the difference between (i)
Company's net income, after taxes (without subtracting losses), earned
in each fiscal year and (ii) dividends and
- 10 -
distributions permitted under the terms of the Credit Agreement for
the applicable period;
(3) Company has violated the financial covenant contained in Section
9.5 of the Credit Agreement that Company maintain a maximum Senior
Funded Debt to Adjusted EBITDA Ratio not to exceed 2.80:1;
(4) Company has violated the financial covenant contained in Section
9.6 of the Credit Agreement that Company maintain a minimum Fixed
Charge Coverage of Ratio at least 1:1;
(5) Company has triggered the Event of Default provision contained in
Section 10.9 of the Credit Agreement regarding any defaults under any
material leases and obligations owing to third parties other than
Bank;
(6) Company has triggered the Event of Default provision contained in
Section 10.10 of the Credit Agreement regarding any "Event of Default"
(as defined therein) which occurs under the Purchase Agreement;
(7) Company has triggered the Event of Default provision contained in
Section 10.14 of the Credit Agreement regarding Company's failure to
comply with or perform any term or condition contained in Sections
9.4, 9.5 and 9.7 through 9.17 of the Credit Agreement;
(8) Company has triggered the Event of Default provision contained in
Section 10.15 of the Credit Agreement regarding Company's failure (i)
to comply with the financial covenant contained in Section 9.6 of the
Credit Agreement relating to the maintenance of a Fixed Charge
Coverage Ratio and (ii) to remedy such default as permitted therein;
(9) Company has triggered the Event of Default provision contained in
Section 10.17 of the Credit Agreement regarding any material adverse
change in the financial condition or results of operations of Company;
(10) Company has failed to repay the Bank Loans in full upon the
expiration of the Forbearance Period set forth in the March
Forbearance Agreement in accordance with the March Forbearance
Agreement and Sections 2.2 and 3.2 of the Credit Agreement;
(11) Company has failed to provide Bank with financial statements and
projections in accordance with Sections 9.2(a), (b), (d), (e), (f) and
(g) of the Credit Agreement;
(12) Company has failed to comply with the affiliate transactions
requirements in accordance with Section 9.27 of the Credit Agreement;
(13) Company has failed to pay when due any sum outstanding under the
Credit Agreement in accordance with Section 10.1 of the Credit
Agreement;
- 11 -
(14) Company has failed to repay the entire outstanding principal
amount of Advances under Facility A on the Facility A Maturity Date,
March 29, 2002 in accordance with Section 2.2(g) of the Credit
Agreement;
(15) Company has failed to comply with the covenant contained in
Section 9.9 of the Credit Agreement by paying cash for bonds required
under certain real property leases, paying deposits to vendors and the
financing of insurance policies;
(16) Company has failed to comply with the covenant contained in
Section 9.11 of the Credit Agreement that Company shall reduce the
outstanding debt under Facility A to $5,000,000 for 30 days during
June 1 to November 30th period.
(17) Company failed to comply with covenant contained in Section 9.16
of the Credit Agreement requiring that AGC be the surviving entity in
a consolidation, merger or acquisition;
(18) Company has violated the covenant contained in Section 9.21 of
the Credit Agreement that AGC not make extensions of credit to GEI;
and
(19) Company has violated the covenant contained in Section 9.25 of
the Credit Agreement requiring that Bank will be secured equally and
ratably.
C. THE LOAN INDEBTEDNESS. There is presently a principal balance and a
letter of credit obligation due, owing and unpaid from Company to Bank under the
Loan Documents in the Loan Principal Amount; together with any and all unpaid
interest which has accrued and continues to accrue thereon in accordance with
and at the rates specified in the Loan Documents as modified by this Agreement;
together with any other contractual obligation currently owing or hereafter
incurred under the Credit Agreement; together with any Costs and Expenses. (The
aggregate amount currently or hereafter owed by Company to Bank pursuant to the
Loan Documents and this Agreement is hereinafter referred to as the "LOAN
INDEBTEDNESS").
III. ACKNOWLEDGMENTS TO PURCHASERS. Company hereby acknowledges, warrants and
represents to Purchasers that the following statements of fact regarding their
Purchase Documents are true and correct:
A. ENFORCEABILITY OF PURCHASE DOCUMENTS. The Purchase Documents set
forth the legal, valid, binding and continuing obligations of Company to
Purchasers, enforceable in accordance with their respective terms and
conditions. Company does not contest the validity of the obligations owed to
Purchasers pursuant to the Purchase Documents, the nature, amount or existence
of defaults or events of default under the Purchase Documents or the
enforceability of the rights of Purchasers under the Purchase Documents,
including among other things, the right to demand payment in full of all amounts
outstanding pursuant to the Purchase Agreement and to seek the collection
thereof pursuant to the rights and remedies available to Purchasers under the
Purchase Documents or applicable law. Company agrees that the liens and security
interests granted under the Purchase Documents are valid, protected and proper
security for the obligations that they secure. Company has no claims,
cross-claims, counterclaims, setoffs or
- 12 -
defenses of any kind or nature which would in any way reduce or offset its
obligations to Purchasers under the Purchase Documents as of the Effective Date.
B. THE EXISTING PURCHASE DEFAULTS. Subject to Section V hereof, the
following Events of Default exist under the Purchase Agreement (collectively,
the "EXISTING PURCHASE DEFAULTS"), which Existing Purchase Defaults have neither
been cured by Company (or any other Person) nor waived by Purchasers:
(1) Company has violated the limitation on Priority Debt set forth in
Section 10.1 of the Purchase Agreement by incurring Priority Debt
excluding (i) Existing Secured Debt (excluding extensions, renewals or
refunds of such Existing Secured Debt) and (ii) Indebtedness and
Attributable Debt not otherwise permitted pursuant to Section 10.1,
where Priority Debt exceeds 10% of Consolidated Net Tangible Assets at
the time of Incurrence;
(2) Company has violated the restriction on Restricted Payments set
forth in Section 10.7 of the Purchase Agreement;
(3) Company has violated the financial covenant set forth in Section
10.8 of the Purchase Agreement that Company maintain a ratio of Total
Indebtedness to Consolidated EBITDA for the four consecutive Fiscal
Quarters then most recently ended which is greater than 2.25:1.00;
(4) Company has violated the financial covenant set forth in Section
10.9 of the Purchase Agreement that Company by permitting, at any time
prior to the IPO Date, Consolidated Tangible Net Worth to be less than
the sum of (i) $51,682,600, plus (ii) solely with respect to the any
Fiscal Quarter in a Fiscal Year which has not ended prior to the time
of determination, the sum of 25% of Consolidated Net Income for each
such Fiscal Quarter ending on or after June 30, 19996, for which
Consolidated Net Income is a positive number, plus (iii) 25% of
Consolidated Net Income for the period beginning April 1, 1996 and
ending December 31, 1996, and each Fiscal Year thereafter for which
Consolidated Net Income is a positive number;
(5) Company has violated the financial covenant set forth in Section
10.10 of the Purchase Agreement, by permitting the Fixed Charge
Coverage Ratio, at any time, to be less than 1.10 to 1.00;
(6) Company has failed to comply with Sections 7.1 and 7.2 (a), (b)
and (d) of the Purchase Agreement by late delivery of quarterly and
annual financial statements and Certificates for AGC and Notice of
Default required within five days;
(7) Company has failed to comply with Section 9. 7 of the Purchase
Agreement by late or non-delivery of Notice of Events of Default and
failure to pay money under any material lease;
- 13 -
(8) Company has violated Section 10.2 of the Purchase Agreement by
violating the requirement that only Permitted Liens are allowed or
must be secured equally and ratably;
(9) Company has violated Section 10.5 of the Purchase Agreement by
violating the requirement that transactions with Affiliates be fair
and reasonable and no less favorable than that of an arms length
transaction;
(10) Company has failed to comply with Sections 11(c), (d) and (e) of
the Purchase Agreement: (c) default in the due and punctual payment of
all or any part of the principal, (d) default shall be made in the
performance or observance of any covenant, agreement or condition
contained in this Agreement and such default shall have continued for
a period of twenty days, and (e) default in payment of Indebtedness
over $5,000,000; and
(11) Company has failed to timely comply with Section 10.1 of the
Purchase Agreement requiring payment of any amount outstanding by the
payment of $1,949,489.98 owing to Purchasers on July 1, 2002 by making
a payment on July 2, 2002.
C. THE PURCHASE INDEBTEDNESS. There is presently a principal balance due,
owing and unpaid from Company to Purchasers under the Purchase Documents in the
Purchase Principal Amount; together with any and all unpaid interest which has
accrued and continues to accrue thereon in accordance with and at the rates
specified in the Purchase Documents as modified by this Agreement; together with
any Make-Whole Amount or other contractual obligation currently owing or
hereafter incurred under the Purchase Documents; together with any currently
owing or hereafter incurred Costs and Expenses (the aggregate amount currently
or hereafter owed by Company to Purchasers pursuant to the Purchase Documents
and this Agreement is hereinafter referred to as the "PURCHASE INDEBTEDNESS").
IV. LIMITED SCOPE OF AGREEMENT. Nothing contained in this Agreement shall be
interpreted as or be deemed a release or a waiver by either Creditor of any of
the terms or conditions of their respective Debt Documents, or any other
documents, instruments and agreements between or among the parties hereto except
as specifically provided in this Agreement. Unless specifically modified herein,
all other terms and provisions of the Debt Documents shall remain in full force
and effect in accordance with their original terms. This Agreement does not
constitute a waiver or release by either Creditor of any obligations between
Company and such Creditor or a waiver by either Creditor of any defaults or
events of default by Company under such Creditor's Debt Documents, unless
expressly so provided herein, nor between either Creditor and any other Person.
V. WAIVER; TERMINATION OF WAIVER. Subject to the terms and conditions hereof,
including Company's satisfaction of all conditions precedent set forth in
Section VII below, (i) Bank hereby waives all Existing Loan Defaults and any
Event of Default which may arise after the Effective Date, other than a Major
Default, and (ii) Purchasers waive all Existing Purchase Defaults and any Event
of Default which may arise after the Effective Date, other than a Major Default,
in each case only through the Waiver Period; PROVIDED that upon the occurrence
of any
- 14 -
Major Default, each Creditor's waivers shall immediately terminate without
further notice, all Existing Loan Defaults and Existing Purchase Defaults, and
any Event of Default that shall have arisen since the Effective Date, shall be
reinstated, and each Creditor shall be entitled to immediately enforce its
rights and remedies hereunder and under its Debt Documents with respect to such
Existing Loan Defaults, Existing Purchase Defaults and Events of Default, all as
if such Existing Purchase Defaults, Existing Loan Defaults and Events of Default
had never been waived. Company acknowledges and agrees that, immediately after
the Waiver Period expires, if the Loan Indebtedness and Purchase Indebtedness
have not been fully repaid, each Creditor may, without further notice, exercise
all of the rights and remedies contained in its Debt Documents and in this
Agreement or available under applicable law, whether or not any Events of
Default or Major Defaults then exist.
VI. TERMS AND CONDITIONS OF WAIVERS; MODIFICATIONS TO THE DEBT DOCUMENTS. As
additional consideration for each Creditor's agreement to enter into this
Agreement, Company and such Creditor agree to the following terms and conditions
which to the extent that they are inconsistent with the terms of the Debt
Documents, shall modify the Debt Documents as specifically set forth below;
PROVIDED, HOWEVER, that all terms and conditions of the Debt Documents not
specifically modified in this Agreement shall remain in full force and effect in
accordance with their original terms:
A. EXTENSION OF MATURITY DATE. The Maturity Date of the Bank Loans shall be
extended from March 29, 2002 to the earlier of (1) the end of the Waiver Period
or (2) the consummation of the Merger.
B. MANDATORY PAYMENT. Prior to or concurrently with the Merger, Company
shall pay to Bank and Purchasers, respectively, directly and not through any
collateral agent, (i) the entire outstanding Loan Indebtedness, and (ii) the
entire outstanding Purchase Indebtedness, including the Make-Whole Amount
(collectively, the "MANDATORY PAYMENT").
C. INTEREST. Notwithstanding any other provisions contained in the Debt
Documents, the applicable rate of interest shall be the Current Rate. Company
shall pay interest to each Creditor, directly and not through any collateral
agent, in accordance with the Interest Payment Schedule.
D. AMORTIZATION. Company shall repay to each Creditor, directly and not
through any collateral agent, the outstanding ratable Principal Amount owing
under such Creditor's Debt Documents (for the avoidance of any confusion, such
Principal Amount shall exclude any interest or Make-Whole Amount) in accordance
with the following schedule:
(1) $6,050,510 (the "FIRST INSTALLMENT PAYMENT") on the Effective
Date--consisting of $4,786,058 to Bank and $1,264,452 to Purchasers;
(2) $3,000,000 on September 1, 2002--consisting of $1,794,772 to Bank
and $1,205,228 to Purchasers;
(3) $3,000,000 on October 1, 2002--consisting of $1,794,772 to Bank
and $1,205,228 to Purchasers;
- 15 -
(4) $2,000,000 on November 1, 2002--consisting of $1,196,514 to Bank
and $803,486 to Purchasers;
(5) $4,000,000 on January 1, 2003--consisting of $2,393,029 to Bank
and $1,606,971 to Purchasers; and
(6) $4,000,000 on March 1, 2003--consisting of $2,393,029 to Bank and
$1,606,971 to Purchasers.
The foregoing amortization payments to Purchasers shall be in lieu of any
scheduled principal payments otherwise payable to Purchasers under the Purchase
Documents.
E. WAIVER FEE; REIMBURSEMENT OF COSTS AND EXPENSES. As additional
consideration for Creditors' willingness to enter into this Agreement, Company
shall pay a waiver fee (collectively, the "WAIVER FEES") to each Creditor,
directly and not through any collateral agent, in the Waiver Fee Amount. Costs
and Expenses of Creditors shall be reimbursed on the Effective Date in
accordance with Section VI(F) below, and shall be invoiced by Bank and Akin
Gump, respectively.
F. PAYMENTS; AUTOMATIC DEBITING OF COMPANY'S ACCOUNTS AT BANK. (i) Company
expressly authorizes Bank to debit Company's accounts at Bank for all required
payments to Bank other than Costs and Expenses, including payments of interest
and principal and the Waiver Fee in accordance with this Agreement, without
further notice; PROVIDED that such automatic debiting shall be the sole manner
in which Bank receives such required payments so long as (a) Company's accounts
with Bank contain sufficient funds to permit debiting of such required payments
in full and (b) no Major Default exists. Company further expressly authorizes
Bank to debit Company's accounts at Bank for reimbursement of all Costs and
Expenses, and all other amounts when due to Bank hereunder or under the Loan
Documents, upon delivery of twenty-four hours advance written notice by
facsimile and verbal notice that such Costs and Expenses have been incurred. In
the event Company's accounts at Bank do not contain sufficient funds to permit
automatic debiting of any Costs and Expenses in accordance with the foregoing
sentence, such Costs and Expenses shall be due five calendar days after Bank
delivers a written notice to Company, with a copy to the law firms of Xxxxxx &
Xxxxxxx and Xxxxxxxx Xxxxxx Xxxxx & Xxxx, stating that failure to pay such
unpaid Costs and Expenses within such five calendar day period shall constitute
a Major Default. (ii) All required payments to Purchasers, including payments of
interest, principal, Waiver Fee and Make-Whole Amount, but not including Costs
and Expenses, shall be paid directly to Purchasers in accordance with the
addresses and payment instructions set forth on SCHEDULE 1. All Costs and
Expenses of Purchasers shall be paid by Company upon receipt of a written
invoice from Akin Gump clearly indicating payment instructions and payee.
Company shall pay each such invoice directly to the party who prepared the
invoice and performed the services. All such Costs and Expenses shall be due
within fifteen calendar days after Akin Gump has provided the invoice therefor.
In the event that Company fails to pay the invoice within such fifteen calendar
day period, Akin Gump shall deliver a written notice to Company, with a copy to
the law firms of Xxxxxx & Xxxxxxx and Xxxxxxxx Xxxxxx Xxxxx & Xxxx, stating that
failure to pay the invoice within an additional fifteen calendar days shall
constitute a Major Default. Notwithstanding the foregoing, with respect to
invoices for Akin Gump and Nightingale services, if not paid within fifteen
calendar days, then
- 16 -
Akin Gump and Nightingale may setoff such unpaid Costs and Expenses from the
Akin Retainer Amount and the Nightingale Retainer Amount, respectively;
PROVIDED, HOWEVER, this sentence shall not limit or modify any right that Akin
Gump or Nightingale may have under their respective retainer arrangements with
Company including the ability of Akin Gump or Nightingale to use the retainer as
provided in their respective engagement letters with Company. Following exercise
of any setoff, Akin Gump shall deliver a notice to Company, with copies to
Xxxxxx & Xxxxxxx and Xxxxxxxx Xxxxxx Xxxxx & Xxxx, stating that failure to
replenish such setoff amount within fifteen days shall constitute a Major
Default.
G. DEFERRED MAKE-WHOLE AMOUNTS. Notwithstanding anything to the contrary
provided in the Purchase Agreement as in effect on the date prior to the
Effective Date (the "EXISTING NOTE PURCHASE AGREEMENT") or the Notes as in
effect on the date prior to the Effective Date, any Make-Whole Amount which,
pursuant to the terms of the Existing Note Purchase Agreement, would be payable
in respect of any prepayment made pursuant to Section VI(B) or (D) hereof (any
such prepayment, an "DEFERRED MAKE-WHOLE PERIOD PREPAYMENT") on the date of such
prepayment (a "DEFERRED MAKE-WHOLE AMOUNT") shall be deferred, and shall be
calculated and payable, as follows:
(1) The Deferred Make-Whole Amount with respect to each Deferred
Make-Whole Period Prepayment shall be calculated, as of the date that
the related Deferred Make-Whole Period Prepayment is made, according
to the relevant provisions of the Purchase Agreement by reference to
the amortization schedules and interest rates and payment dates in
effect under the Purchase Agreement prior to the execution of this
Agreement; and
(2) All Deferred Make-Whole Amounts shall: (i) be subordinated to the
payment of principal and interest on the Bank Loans and the Notes in
full as provided in Section 15 of the AGC Collateral Agency Agreement
and Section 14 of the AGC/NGOP Collateral Agency Agreement,
respectively; (ii) be payable in full, together with all accrued
interest thereon, on the Deferred Make-Whole Payment Date; and (iii)
accrue interest at five (5) percent per annum, compounded
semi-annually, from the date that the related Deferred Make-Whole
Period Prepayment is made until the Deferred Make-Whole Payment Date
(and, if not paid in full on the Deferred Make-Whole Payment Date, the
unpaid portion thereof shall bear interest from the Deferred
Make-Whole Payment Date until the date of payment thereof at the
Current Rate).
VII. CONDITIONS TO EFFECTIVENESS. This Agreement shall not be binding upon the
parties hereto until and unless each of the following conditions to
effectiveness has been satisfied, or is waived in writing by Bank and the
Required Purchasers (as defined in the Collateral Agency Agreement):
A. DELIVERIES INTO ESCROW. On July 22, 2002, (i) Company shall have paid
into escrow an amount equal to $8,143,310.04, representing the sums set forth in
Sections VII(B) and (G) below to be held and released by the Escrow Agent
pursuant to the terms of the Escrow Agreement; and (ii) the respective parties
to the Restructure Documents shall have executed and
- 17 -
delivered into escrow the documents set forth in Sections (C)(1), (D), (E) and
(F) below to be held and released by the Escrow Agent pursuant to the terms of
the Escrow Agreement.
B. FIRST INSTALLMENT PAYMENT; FEES AND EXPENSES. Escrow Agent shall have
paid to each Creditor out of the escrowed funds its ratable share of the First
Installment Payment as set forth in Section VI(D), (ii) its Waiver Fee as set
forth in Section VI(E), and (iii) all invoiced Costs and Expenses in accordance
with Section VI(F) (for purposes of payment of invoiced Costs and Expenses as a
condition to effectiveness of this Agreement, the mechanics of Section VI(F) do
not apply). Escrow Agent shall also have paid to Akin Gump an amount equal to
$25,000 as an additional Akin Retainer Amount.
C. RESTRUCTURE DOCUMENTS.
1. Escrow Agent shall have delivered to each Creditor the following
Restructure Documents, executed by each of the respective parties hereto or
thereto: (i) this Agreement, (ii) the Collateral Documents other than the
Leasehold Mortgages and (iii) the Guaranties.
2. The Leasehold Mortgages shall be executed by each of the respective
parties thereto and delivered as soon as reasonably practicable after the
execution and delivery of the other Restructure Documents. Upon receipt of
the Leasehold Mortgages and verbal notice from Pillsbury Winthrop LLP that
such Leasehold Mortgages are ready for execution, Company shall promptly
(but in no event more than two Business Days after receipt of such
Leasehold Mortgages) execute and deliver the Leasehold Mortgages to the
Escrow Agent.
D. DOCUMENTS AND ACTIONS RELATING TO COLLATERAL. Escrow Agent shall have
delivered to the Collateral Agent, with a copy to each Creditor upon request:
(1) the certificates representing the pledged securities referred to
in the Price Pledge Agreement and the Wholly-Owned Subsidiary Pledge
Agreement, and undated stock powers for such certificates executed in
blank;
(2) evidence that (i) New LLC has been duly organized, and (ii) all
Third-Party Leases and Third-Party Management Contracts for which no
landlord or third party consent is necessary, as more specifically set
forth on SCHEDULE 3, have been assigned to New LLC; and
(3) a Memorandum of Lease with respect to each Leasehold Deed of Trust
for which a memorandum of lease has not already been recorded.
E. ADDITIONAL CLOSING DOCUMENTS AND ACTIONS. Escrow Agent shall have
delivered to each Creditor a copy of the following, executed by each of the
parties thereto:
(1) the Rent Deferral Agreement;
(2) the Credit Enhancement Agreement;
- 18 -
(3) the Confidentiality Agreement;
(4) the New LLC Management Agreement;
(5) the NGP Side Letter;
(6) a certificate from the Secretary or Assistant Secretary of Company
certifying as of the Effective Date (A) copies of the resolutions of
the board of directors of Company authorizing the execution, delivery
and performance of this Agreement and the other Restructure Documents
to which Company is a party, and (B) the names, titles and true
signatures of each officer of Company authorized to execute and
deliver this Agreement and the other Restructure Documents to which
Company is a party; and
(7) all other documentation and instruments which are deemed by such
Creditor, in its sole and absolute discretion, to be necessary in
connection with or to effectuate the terms and intent of this
Agreement.
F. ADDITIONAL ASSIGNMENTS. Escrow Agent shall have delivered to the
Collateral Agent Assignments for all Third-Party Leases and Third-Party
Management Contracts for which landlord or third-party consent is necessary as
described on SCHEDULE 4.
G. TITLE INSURANCE PREMIUMS. Escrow Agent shall have paid an amount equal
to (1) $12,500 to the AGC Collateral Agent for the ratable benefit of Creditors
under the AGC Collateral Agency Agreement, to be allocated and to be used as
directed by Creditors in their sole and absolute discretion towards paying title
insurance premiums payable in respect of the Mountaingate Second Mortgage and
(ii) $140,500 to the AGC/NGOP Collateral Agent for the ratable benefit of
Creditors and NGOP under the AGC/NGOP Collateral Agency Agreement, to be
allocated and to be used as directed by Creditors and NGOP in their sole and
absolute discretion towards paying title insurance premiums payable in respect
of the Leasehold Mortgages.
H. EFFECTIVE DATE. The Effective Date shall have occurred no
later than August 8, 2002.
VIII. REPRESENTATIONS AND WARRANTIES. Company hereby represents and warrants to
each Creditor, as of the Effective Date, that:
A. AUTHORIZATION; NO CONFLICT. The execution, delivery and performance by
Company of this Agreement and the other Restructure Documents (i) have been duly
authorized by all necessary action of Company, (ii) and 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 Company is a
party or by which Company or any of its property may be bound or affected;
B. BINDING OBLIGATIONS. This Agreement and the other Restructure Documents
are valid, binding and legal obligations of Company, enforceable against Company
in accordance with their respective terms to the extent that Company is a party
thereto, except as limited by
- 19 -
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general equity
principles.
C. LITIGATION. There is no material litigation or other proceeding
currently pending against Company except as previously disclosed to each
Creditor in writing;
D. CONTRACTUAL OBLIGATIONS. Except for (i) Company's defaults under the
NGOP leases, and (ii) the Existing Loan Defaults and Existing Purchase Defaults,
Company is not in default of or bound by any contractual obligation in any
respect which would adversely affect its ability to perform its obligations
under this Agreement;
E. CONSENTS. Except as otherwise expressly set forth herein, the execution,
delivery and performance of this Agreement and the other Restructure Documents
do not require the consent or approval of any other Person other than consents
or approvals that have already been or are being obtained simultaneously
herewith;
F. SOLE AND LAWFUL OWNER. Company is the sole and lawful owner of all
right, title, and interest in and to every claim and other matter which Company
purports to settle or compromise herein;
G. SUBSIDIARY PLEDGES. (i) The Significant Subsidiaries constitute all
wholly-owned or majority-owned Subsidiaries of Company which own or lease any
material assets, (ii) except as described on SCHEDULE 5, Company does not have
any wholly-owned Subsidiaries which owns or leases any material assets, and
(iii) except as described on SCHEDULE 6, Company does not have any
majority-owned Subsidiaries which owns or leases any material assets; and
H. XXX XXXXXXX GOLF LEASES. Xxx Xxxxxxx Golf is the current tenant under
the leases which cover, respectively, the Xxxxx Xxxx Golf Course in Baton Rouge,
Louisiana and the Bayou Barrier Golf Course in Xxxxx Xxxxx, Louisiana.
IX. COVENANTS. In addition to any covenants which exist in the Debt Documents,
Company shall:
A. Give immediate written notice in reasonable detail to each Creditor, by
facsimile followed by overnight courier via a nationally recognized courier
service of (i) Company's receipt of written notice from the NGP independent
committee, reasonably decided by such independent committee after consultation
with NGP's financial advisor, Lazard Freres & Co. LLC, or some other nationally
recognized financial advisor reasonably acceptable to Creditors, to the effect
that the recapitalization initiative pursuant to which Creditors shall, in
accordance with the terms of this Agreement, be paid in full by no later than
March 31, 2003 is no longer viable (the "RECAPITALIZATION NON-PAYMENT NOTICE"),
and (ii) the occurrence of a Major Default or any condition, event or act which,
with the giving of notice or the passage of time or both, would constitute a
Major Default.
B. Use commercially reasonable efforts to promptly obtain the consent from
applicable landlords and third parties to assignments and subleases to New LLC
of all Third-Party Leases and Third-Party Management Contracts which are not
assigned to New LLC on or prior to the Effective Date, as described on SCHEDULE
6.
- 20 -
C. On the first Business Day of each month following the date hereof,
furnish to each Creditor a certificate of a duly authorized officer of Company
(i) describing any payment made to NGP or NGOP during the previous month, and
(ii) representing and warranting to such Creditor that such payment could not be
deferred pursuant to the terms of the Rent Deferral Agreement.
D. Without limiting any existing audit right of Bank under the Credit
Agreement, permit employees or agents of each Creditor, at any reasonable time
during normal business hours and upon reasonable notice, to inspect Company's
properties and to examine or audit Company's books, accounts and records to
verify the information contained in any certificate delivered pursuant to
Section IX(C).
E. Deliver to each Creditor (whether or not such Creditor is otherwise
entitled to such delivery) such financial statements, financial reports and
other financial information as are required to be delivered by Company pursuant
to and in accordance with the Debt Documents.
F. Ensure that an authorized signatory of each of Company and Xxx Xxxxxxx
Golf is available to execute and deliver the Leasehold Mortgages upon one
Business Day advance notice.
X. RELEASE OF CLAIMS.
A. Company represents and agrees that it has diligently and thoroughly
investigated the existence of any Claim (as defined below), and, to its
knowledge and belief, no Claim exists and no facts exist that could give rise to
or support a Claim. As additional consideration for each Creditor's entering
into this Agreement, Company by its execution of this Agreement, and on behalf
of itself and each of its respective agents, employees, directors, officers,
attorneys, business advisors, affiliates, subsidiaries, successors and assigns
(each a "RELEASING PARTY"), each hereby release and forever discharge each
Creditor and each of such Creditor's agents, direct and indirect shareholders,
employees, directors, officers, attorneys, business advisors, branches,
affiliates, subsidiaries, successors and assigns (each a "RELEASED PARTY") from
all damages, losses, claims, demands, liabilities, obligations, actions and
causes of action whatsoever (collectively "CLAIMS") that the Releasing Parties
or any of them may, as of the date hereof, have or claim to have against any or
all of the Released Parties, in each case whether currently known or unknown or
with respect to which the facts are known (or should have been known), that
could give rise to or support a Claim and of every nature and extent whatsoever
on account of or in any way relating to, arising out of or based upon any Debt
Document or this Agreement or the negotiation or documentation hereof or any
amendments under the Debt Documents effected by this Agreement or the
transactions contemplated by the Debt Documents or hereby, or any action or
omission in connection with any of the foregoing, including all such losses or
damages of any kind heretofore sustained or that may arise as a consequence of
the dealings between the parties up to the date hereof in connection with or in
any way related to any Debt Document or this Agreement.
B. Each Releasing Party further covenants and agrees that it has not
heretofore assigned, and shall not hereafter xxx any Released Party upon, any
Claim released or purported to be released under this Section X, and each
Releasing Party shall indemnify and hold harmless
- 21 -
the Released Parties against any loss or liability on account of any actions
brought by such Releasing Party or its assigns or prosecuted on behalf of such
Releasing Party and relating to any Claim released or purported to be released
under this Section X. It is further understood and agreed that any and all
rights under the provisions of Section 1542 of the California Civil Code are
expressly waived by each of the Releasing Parties. Section 1542 of the
California Civil Code provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
XI. MAJOR DEFAULTS. A "MAJOR DEFAULT" shall occur herein if any one or more of
the following events occur:
A. NONPAYMENT OF INDEBTEDNESS. Company shall fail to pay when due any
Indebtedness as set forth in Section VI; or
B. BREACH OF FINANCIAL PROVISION OF NGOP CREDIT AGREEMENT. There is a
breach of Section 7.20(vi) of the NGOP Credit Agreement, as in effect as of the
Effective Date; or
C. MATERIAL INDEBTEDNESS. Any principal, interest or other amount shall be
declared to be due and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment) prior to the stated maturity thereof
pursuant to (i) the NGOP Lenders Forbearance Agreement or (ii) the Note Purchase
Agreements (as defined in the NGOP Credit Agreement); or
D. VOLUNTARY BANKRUPTCY. Any of Company, NGP or NGOP shall (i) have an
order for relief entered with respect to it under the federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any substantial portion of its property, (iv) institute any proceeding
seeking an order for relief under the federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it as a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, (v) take any
corporate action to authorize or effect any of the foregoing actions set forth
in this Section XI(D) or (vi) not pay, or admit in writing its inability to pay,
its debts generally as they become due; or
E. INVOLUNTARY BANKRUPTCY. A receiver, trustee, examiner, liquidator or
similar official shall be appointed for any of Company, NGP or NGOP, or a
proceeding described in Section XI(D) shall be instituted against Company, NGP
or NGOP and such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of sixty (60) consecutive days; or
- 22 -
F. JUDGMENTS. Company shall fail within sixty (60) days to pay, bond or
otherwise discharge any judgments or orders for the payment of money in an
amount which, when added to all other judgments or orders outstanding against
Company would exceed $10,000,000 in the aggregate, which have not been stayed on
appeal or otherwise appropriately contested in good faith; or
G. REVOCATION OF GUARANTY. The revocation or attempted revocation of any
Guaranty; or
H. RECAPITALIZATION. Company shall have received a Recapitalization
Non-payment Notice from NGP; or
I. FUNDED DEBT. Company shall incur any Funded Debt; or
J. LIENS. Company shall suffer or permit any Lien to attach to any of its
property, now owned or hereafter acquired, securing any Funded Debt; or
K. PAYMENTS TO NGP/NGOP. (i) Company shall fail to perform or observe the
covenant set forth in Section IX(C) or (D), or (ii) Company shall make any
payment to or on behalf of NGP or NGOP for any delinquent rent payment or lease
termination fee that is permitted to be deferred pursuant to the terms of the
Rent Deferral Agreement (whether or not then in effect), PROVIDED that any such
payment permitted to be deferred that was made in good faith to or on behalf of
NGP or NGOP by Company but that is later disputed in good faith as having been
permitted to be deferred under the Rent Deferral Agreement shall not be a Major
Default so long as, within thirty calendar days after such payment is disputed,
such payment is repaid to Company or offset by future payments which otherwise
would not be permitted to be deferred under the Rent Deferral Agreement or (iii)
any representation or warranty contained in any monthly certificate required to
be delivered under Section IX(C) shall prove to have been incorrect when made or
shall have omitted any information required by Section IX(C), and such breach
shall continue unremedied for thirty calendar days after delivery of notice that
such payment is disputed. For purposes of the foregoing clause (iii), such
breach may be remedied within the thirty calendar day period solely by the
repayment by or on behalf of NGP or NGOP, or offset by future payments which
otherwise would not be permitted to be deferred under the Rent Deferral
Agreement, in respect of all payments which were permitted to be deferred under
the Rent Deferral Agreement and which nevertheless were made to NGP or NGOP in
the month immediately preceding the delivery of the monthly certificate.
L. AFFILIATES. Company shall make any loans, advances or distributions to
any of its Affiliates outside the ordinary course of business; or
M. BREACH OF PROVISIONS OF COLLATERAL AGENCY AGREEMENT. Except as would not
reasonably be expected to result in a Material Adverse Effect, Company shall (i)
fail to 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; (ii) fail to obtain and maintain with respect to the Collateral, for
the mutual benefit of Company and the Collateral Agent at all times, policies of
insurance required to be obtained and maintained by Company under the Collateral
Agency Agreement,
- 23 -
except for those future changes in insurance determined in the ordinary course
of business to be necessary by Company in its commercially reasonable judgment;
or (iii) transfer any of the Collateral (other than the replacement or other
disposition of obsolete or non-useful personal property and fixtures in the
ordinary course of business) other than in compliance with the Collateral Agency
Agreement and the other Restructure Documents, in each case, not cured within
thirty (30) days after written notice thereof has been given to Company by the
Collateral Agent; or
N. REPRESENTATIONS AND WARRANTIES. Except as would not reasonably be
expected to result in a Material Adverse Effect, any representation or warranty
by Company set forth in Section VIII(A) shall prove to have been incorrect when
made or deemed made; or
O. AMENDMENT OF CERTAIN AGREEMENTS. The NGP Side Letter or the Rent
Deferral Agreement shall be amended, modified or supplemented without the prior
written consent of each Creditor.
P. MANDATORY PAYMENT. The Mandatory Payment shall not be paid to Creditors
in accordance with Section VI(B) prior to or concurrently with the Merger.
Q. COLLATERAL DISPOSITIONS. Company shall cause or permit, or any
Subsidiary of Company shall cause or permit, (i) any termination or cancellation
of any Course Lease (as defined in the Collateral Agency Agreement) or (ii) any
sale, termination or disposition of any material asset, in either case other
than in accordance with Section 3 of the AGC Collateral Agency Agreement or the
AGC/NGOP Collateral Agency Agreement.
R. UK DEBT DOCUMENTS. Barclays Bank PLC shall commence enforcement of a
judgment lien against any Collateral in respect of the claim of Barclays Bank
PLC arising from Company's guaranty of the obligations of American Golf UK, Ltd.
XII. REMEDIES. Subject to the terms of the Collateral Agency Agreements, if a
Major Default shall occur under this Agreement, either or both Creditors may,
without regard to whether it has already done any of the following as a result
of the Existing Loan Defaults or Existing Purchase Defaults, as applicable,
exercise, at its election, and without notice, demand, protest or presentment
(which notice, demand, protest and presentment are expressly waived), in
addition to all rights and remedies granted to it in this Agreement or the other
Restructure Documents (other than the Rent Deferral Agreement), any or all of
the following rights and remedies:
A. Such Creditor's limited waiver of Events of Default shall immediately
and automatically cease, and such Creditor may exercise all of the rights and
remedies available under its Debt Documents, this Agreement and all applicable
laws;
B. Such Creditor may declare all of its Indebtedness immediately due and
payable;
C. Such Creditor may declare interest at the Current Rate to be immediately
due and payable for all amounts owing by Company under the Restructure
Documents;
D. Without notice to or demand upon Company, such Creditor may make such
payments and do such acts as such Creditor may deem necessary to protect its
security interest in
- 24 -
the Collateral, and, in exercising any such powers or authority, to pay all
expenses incurred in connection therewith; and
E. Such Creditor may proceed to enforce the Restructure Documents and
exercise any or all of the rights and remedies afforded to such Creditor by,
inter alia, the California Commercial Code, the California Civil Code, the
California Code of Civil Procedure or otherwise possessed by such Creditor under
its Debt Documents and all applicable laws or otherwise.
All rights and remedies granted to Creditors hereunder are cumulative, and
Creditors shall have the right to exercise any one or more of such rights and
remedies alternatively, successively or concurrently as Creditors may, in their
sole and absolute discretion, deem advisable.
XIII. REVIVAL CLAUSE. If the incurrence of any debt or the payment of money or
transfer of property made to or for the benefit of either Creditor by Company
should for any reason subsequently be declared to be "fraudulent" or
"preferential" within the meaning of any state or federal law relating to
creditors' rights, including, without limitation, fraudulent conveyances,
preferences or otherwise voidable or recoverable payments of money or transfers
of property, in whole or in part, for any reason (collectively, "Voidable
Transfers") under the U.S. Bankruptcy Code or any other federal or state law,
and such Creditor is required to repay or restore any such Voidable Transfer or
the amount or any portion thereof, or upon the advice of their in-house or
outside counsel are advised to do so, then, as to such Voidable Transfer or the
amount repaid or restored (including all reasonable costs, expenses and
attorneys' fees of such Creditor related thereto), the obligations of Company
under the Debt Documents of such Creditor and this Agreement, and all of such
Creditor's rights and remedies under its Debt Documents and this Agreement shall
automatically be revived, reinstated and restored and shall exist as though such
Voidable Transfer had never been made, to the extent of any harm to such
Creditor.
XIV. PAYMENT OF EXPENSES. In the event any action (whether or not in a court
proceeding) shall be required to interpret, implement, modify, or enforce the
terms and provisions of the Restructure Documents, and/or to declare rights
under same, the prevailing party in such action shall recover from the losing
party all of its fees and costs, including, but not limited to, the reasonable
attorneys' fees and costs (if applicable) of the prevailing party's outside
counsel and the allocated costs of the prevailing party's in-house counsel.
XV. GOVERNING LAW. This Agreement shall be construed and interpreted in
accordance with and shall be governed by the laws of the State of California
without regard to the rules of conflict of laws of the State of California or
any other jurisdiction.
XVI. SUCCESSORS, ASSIGNMENT.
A. This Agreement shall be binding on and inure to the benefit of all of
the parties hereto, and upon the heirs, executors, administrators, legal
representatives, successors and assigns of the parties hereto, and each of them.
The terms and provisions of this Agreement are for the exclusive benefit of
Company, Bank and Purchasers, and may not be transferred, assigned, pledged, set
over or negotiated to any Person without the prior express written consent of
Bank and Purchasers.
- 25 -
B. Notwithstanding any other provisions contained herein, Bank and
Purchasers may sell, transfer, negotiate, assign or grant participations in all
or a portion of its rights in the Restructure Documents to any Person without
prior notice to Company; PROVIDED, HOWEVER, that any such assignee shall be
bound by the terms and provisions of the Restructure Documents.
XVII. COMPLETE AGREEMENT OF PARTIES.
A. This Agreement and the Restructure Documents constitutes the entire
agreement among Company, Bank and Purchasers, arising out of, related to or
connected with the subject matter of this Agreement.
B. Any supplements, modifications, waivers or terminations of this
Agreement shall not be binding unless executed in writing by the parties to be
bound thereby.
C. No waiver of any provision of this Agreement shall constitute a waiver
of any other provisions of this Agreement (whether similar or not), nor shall
such waiver constitute a continuing waiver unless otherwise expressly so
provided.
XVIII. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts each of which, when so executed and delivered, shall
be deemed an original, and all of which together shall constitute but one and
the same agreement. Delivery by telecopier of an executed counterpart of a
signature page to this Agreement shall be effective as delivery of an originally
executed counterpart of this Agreement.
XIX. CONTRADICTORY TERMS; SEVERABILITY.
A. In the event that any term or provision of this Agreement contradicts
any term or provision of any other document, instrument or agreement among the
parties including, but not limited to, any of the Restructure Documents, the
terms of this Agreement shall control.
B. If any provision of this Agreement shall be invalid, illegal or
otherwise unenforceable, such provision shall be severable from all other
provisions of this Agreement, and the validity, legality and enforceability of
the remaining provisions of this Agreement shall not be adversely affected or
impaired, and shall thereby remain in full force and effect.
XX. CONTINUING COOPERATION. The parties hereto shall cooperate with each other
in carrying out the terms and intent of this Agreement, and shall negotiate in
good faith to complete and execute such other documents, instruments and
agreements as are reasonably required to effectuate the terms and intent of this
Agreement, including (x) finalizing the Leasehold Mortgages as soon as
reasonably practicable and (y) completing those documents, instruments and
agreements required to evidence that all filings, registrations and recordings
have been made in the appropriate governmental offices, and all other action has
been taken, which shall be necessary to create, in favor of the AGC Collateral
Agent on behalf of Creditors or the AGC/NGOP Collateral Agent on behalf of each
Creditor and NGOP, as applicable, (x) a perfected first priority Lien
encumbering the Collateral other than the Mountaingate Property, and (y) a
perfected second priority Lien encumbering the Mountaingate Property, in each
case subject only to Permitted Liens.
- 26 -
XXI. COURSE OF DEALING; WAIVERS.
A. No course of dealing on the part of either Creditor, or its respective
officers, nor any failure or delay in the exercise of any right(s) by such
Creditor, shall operate as a waiver thereof, and any single or partial exercise
of any such right(s) shall not preclude any later exercise of any such right(s).
B. Either Creditor's failure at any time to require strict performance by
Company of any provision shall not affect any right(s) of such Creditor
thereafter to demand strict compliance and performance. Any suspension or waiver
of a right must be in writing signed by the party possessing such right.
C. Notwithstanding anything to the contrary herein, by entering into the
AGC/NGOP Collateral Agency Agreement and the collateral sharing mechanism set
forth therein, neither Creditor is waiving its rights to challenge, reduce or
seek subordination of any and all claims by NGOP, including delinquent rent and
lease termination fees and any rejection damages that may now or hereafter be
allegedly due from Company or GEI to NGOP.
XXII. CONSULTATION WITH COUNSEL.
A. Each party hereto acknowledges that it is freely and voluntarily
entering into this Agreement and the other Restructure Documents.
B. Each party hereto also acknowledges that it has been represented by
counsel of its own choice at each stage in the negotiation of this Agreement
and the other Restructure Documents, or has knowingly and voluntarily elected
not to be represented by counsel at each stage in the negotiation of this
Agreement and the other Restructure Documents.
C. To the extent any party was represented by counsel, said
party acknowledges that:
1. It has relied on such counsel's advice throughout all of the
negotiations which preceded the execution of this Agreement and the other
Restructure Documents, and in connection with the preparation and execution
of this Agreement and the other Restructure Documents;
2. Such counsel has read and approved this Agreement and the other
Restructure Documents; and
3. Such counsel has advised such party concerning the validity and
effectiveness of this Agreement and the other Restructure Documents, and
the transactions to be consummated in accordance therewith.
- 27 -
XXIII. NOTICES. All notices and other communications provided for under
this Agreement shall be personally delivered or sent by first class mail,
postage prepaid, or by overnight courier, to the addresses on the signature page
hereof, or sent by facsimile to the fax numbers listed on the signature page, or
to such other addresses as Company or a Creditor may specify in writing from
time to time. Notices sent by first class mail shall be deemed delivered on the
earlier of actual receipt or on the fourth Business Day after deposit in the
U.S. mail. Notices sent by facsimile transmission shall be deemed delivered when
sent.
[SIGNATURE PAGE FOLLOWS]
- 28 -
THE PARTIES HERETO, AND EACH OF THEM, HEREBY IRREVOCABLY WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO ANY OF THE DEBT DOCUMENTS, THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED THEREBY OR HEREBY.
AGREED AND ACCEPTED:
Company: AMERICAN GOLF CORPORATION
By:/s/ Xxxxxx X. Xxxxx
-----------------------------
Its: CFO
THE PARTIES HERETO, AND EACH OF THEM, HEREBY IRREVOCABLY WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO ANY OF THE DEBT DOCUMENTS, THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED THEREBY OR HEREBY.
AGREED AND ACCEPTED:
Bank: BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Its: Senior Vice President
THE PARTIES HERETO, AND EACH OF THEM, HEREBY IRREVOCABLY WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO ANY OF THE DEBT DOCUMENTS, THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED THEREBY OR HEREBY.
AGREED AND ACCEPTED:
Purchasers: TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By:/s/ Roi X. Xxxxxx
-------------------------------------
Its: Director - Special Situations
THE TRAVELERS INSURANCE COMPANY
By:/s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------------
Its: Investment Officer
JEFFERSON-PILOT LIFE INSURANCE COMPANY
By:/s/ Xxxxxx X. Xxxxxx, XX
------------------------------------
Its: Vice President
NATIONAL LIFE INSURANCE COMPANY
By:/s/ R. Xxxxx Xxxxxxx
------------------------------------
Its: Vice President, NL Capital
LIFE INSURANCE COMPANY OF THE SOUTHWEST
By:/s/ R. Xxxxx Xxxxxxx
------------------------------------
Its: Vice President, NL Capital
AUSA LIFE INSURANCE COMPANY, INC.
By:/s/ Xxxx Xxxxxx
------------------------------------
Its: Vice President
PFL LIFE INSURANCE COMPANY
By:/s/ Xxxx Xxxxxx
------------------------------------
Its: Vice President
