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PURCHASE, WAIVER AND CONSENT AGREEMENT
This Purchase, Waiver and Consent Agreement (this "Agreement") is
entered into as of this 13th day of April, 2000, by and among Massachusetts
Mutual Life Insurance Company, MassMutual Corporate Investors, MassMutual
Participation Investors, MassMutual Corporate Value Partners Limited and Xxxxxxx
& Co. (each a "MassMutual Entity" and together the "MassMutual Entities"),
PlayCore, Inc. (the "Company"), PlayCore Wisconsin, Inc., a wholly-owned
subsidiary of the Company ("PlayCore Wisconsin"), and Jasdrew Acquisition Corp.,
an affiliate of Chartwell Investments II, LLC ("Acquisition Company").
RECITALS
A. The MassMutual Entities, the Company and PlayCore Wisconsin
are parties to those separate Securities Purchase Agreements dated as of March
13, 1997, as amended by Amendment No. 1 thereto dated March 12, 1999 (the
"Securities Purchase Agreements"), pursuant to which PlayCore Wisconsin has
issued the Notes (as defined in the Securities Purchase Agreements) and the
Company has issued the Warrants (as defined in the Securities Purchase
Agreements).
B. The Company and Heartland Industries, Inc. (DE), a
wholly-owned subsidiary of PlayCore Wisconsin, have each entered into a Note
Guarantee guaranteeing the Notes (the "Guarantees") dated March 13, 1997 and
February 16, 1999, respectively.
C. Acquisition Company, the Company and PlayCore Holdings, Inc.
("Parent") have entered into an Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement") pursuant to which the Company and
Acquisition Company have agreed to commence a joint tender offer (the "Offer")
for the Company's common stock, par value $.01 (the "Common Stock") at a price
of $10.10 per share (the "Offer Price") and, upon consummation of the Offer,
Acquisition Company will merge with and into the Company, with the Company being
the surviving corporation (the "Merger").
D. Pursuant to the Merger, each share of Common Stock not
tendered in the Offer shall be cancelled in return for an amount equal to the
Offer Price, and Parent will become the sole stockholder of the Company.
E. The consummation of the Offer and the Merger will be deemed a
"Change of Control" under the Securities Purchase Agreements, thereby resulting
in a breach of a number of provisions thereof and providing certain rights and
remedies thereunder to the MassMutual Entities.
F. The parties hereto have entered into this Agreement to set
forth their respective rights and obligations upon the consummation of the Offer
and the Merger.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual promises contained herein, the parties agree as follows:
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1. Waiver of Notices. Each of the MassMutual Entities, the
Company and PlayCore Wisconsin waive any and all notices required to be provided
or received under the Securities Purchase Agreements, the Warrants, the Notes,
the Guarantees or any documents entered into in connection therewith
(collectively, the "MassMutual Agreements").
2. Sale of Warrants. The MassMutual Entities, the Company and
Acquisition Company agree that, upon the request of Acquisition Company and the
satisfaction of the conditions set forth in Section 5 hereof, the MassMutual
Entities shall immediately transfer and assign to Acquisition Company (or to the
Company if Acquisition Company is not able to consummate the Merger pursuant to
Section 253 of the General Corporation Law of the State of Delaware), and
Acquisition Company (or the Company, if applicable) shall purchase, the Warrants
for an aggregate purchase price of $6,416,692.52 (determined by multiplying the
number of shares for which the Warrants are exercisable by the Offer Price less
$0.001 per share). The Company represents and warrants to each of the MassMutual
Entities and Acquisition Company that (a) Schedule 1 hereto sets forth the
number of shares of Common Stock for which each of the Warrants is exercisable
on the date hereof, which number has been accurately determined in accordance
with the applicable provisions of the Warrants, and (b) no other adjustments are
required under the terms of the Warrants as of the date hereof. The parties
agree that the purchase price set forth above represents the "Fair Value" of the
Warrants (as defined therein). Each of the MassMutual Entities waives any rights
it may have under any anti-dilution provisions set forth in the Warrants
relating to the transactions contemplated by the Merger Agreement.
3. Redemption of Notes. The MassMutual Entities and PlayCore
Wisconsin agree that, upon satisfaction of the conditions set forth in Section 5
hereof, and notwithstanding any provision in the MassMutual Agreements
(including Section 9.8 of the Securities Purchase Agreements) to the contrary,
PlayCore Wisconsin shall promptly redeem the Notes for an amount equal to: (a)
the principal amount thereof, plus all accrued but unpaid interest thereon, as
of the date of redemption and (b) a pre-payment fee of $500,000.
4. Consents; Waiver of Rights. Each of the MassMutual Entities
consents to the Offer and the Merger and the execution and delivery by the
Company and PlayCore Wisconsin of the Merger Agreement, the Credit Agreement
dated as of the date hereof by and among PlayCore Wisconsin, the other Credit
Parties signatory thereto, the Lenders signatory thereto, General Electric
Capital Corporation and Credit Agricole Indosuez, and the Purchase Agreement
dated as of the date hereof by and among the Company, PlayCore Wisconsin, the
Subsidiaries signatory thereto, GS Mezzanine Partners II, L.P. and GS Mezzanine
Partners Offshore II, L.P. (collectively, the "Transaction Documents"). Each of
the MassMutual Entities waives any and all rights and remedies it may have under
the MassMutual Agreements arising out of or relating to any breach of the
MassMutual Agreements caused by the Offer, the Merger, the execution and
delivery of any of the Transaction Documents or (so long as the sale of the
Warrants and the redemption of the Notes occur in connection therewith) the
consummation of any of the transactions contemplated thereby.
5. Conditions. The purchase of the Warrants and the redemption of
the Notes is conditioned upon:
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a. The first to occur of (x) consummation of the Offer and
the purchase by Acquisition Company and/or Parent of all shares of Common Stock
tendered thereunder and (y) consummation of the Merger; and
b. There being no preliminary or permanent injunction or
other final, non-appealable judgment by a court of competent jurisdiction
preventing or prohibiting the sale of the Warrants or redemption of the Notes
hereunder.
6. Representations and Warranties of the MassMutual Entities.
Each MassMutual Entity hereby represents and warrants, severally and not
jointly, to Acquisition Company as follows:
a. Ownership of Securities. Except as set forth on Schedule 1
hereto, such MassMutual Entity is the sole registered and beneficial owner of
the Warrants and the Notes set forth opposite such MassMutual Entity's name on
Schedule 1 hereto and such Warrants constitute all of the Warrants and the Notes
held by such MassMutual Entity.
b. Power; Binding Agreement. Such MassMutual Entity has the
legal capacity, power and authority to enter into and perform all of its
obligations under this Agreement. The execution, delivery and performance of
this Agreement has been duly authorized by such MassMutual Entity and does not
and will not violate any other agreement to which such MassMutual Entity is a
party or by which it is bound, including, without limitation, any voting
agreement, stockholders' agreement or voting trust. This Agreement has been duly
and validly executed and delivered by such MassMutual Entity and constitutes the
valid and binding agreement of such MassMutual Entity, enforceable against such
MassMutual Entity in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
c. No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority or any other person is necessary for the execution of this Agreement
by such MassMutual Entity and the consummation by such MassMutual Entity of the
transactions contemplated hereby, other than any such filing, permit,
authorization, consent or approval that have been made or obtained as of the
date hereof. None of the execution and delivery of this Agreement by such
MassMutual Entity, the consummation by such MassMutual Entity of the
transactions contemplated hereby or compliance by such MassMutual Entity with
any of the provisions hereof shall (i) conflict with or result in any breach of
any applicable organizational documents of such MassMutual Entity, (ii) result
in a violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which such MassMutual Entity is a party or by which
such MassMutual Entity or any of such MassMutual Entity's properties or assets
may be bound, or (iii) violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to such MassMutual Entity or any
of such MassMutual Entity's properties or assets.
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d. No Encumbrances. Except pursuant to this Agreement, such
MassMutual Entity's Warrants and Notes are, and upon transfer and assignment to
Acquisition Company hereunder will be, free and clear of all claims, options,
third party rights, liens, hypothecations, security interests, proxies, voting
trusts or agreements, understandings or arrangements or any other encumbrances
whatsoever, granted or created by such MassMutual Entity.
7. Representations and Warranties of Acquisition Company.
Acquisition Company hereby represents and warrants to the MassMutual Entities
that (a) it is an "accredited investor" as defined in Rule 501 of Regulation D
under the Securities Act of 1933, as amended, (b) that it has been furnished
with all information that it has requested for the purpose of evaluating its
proposed acquisition of the securities to be purchased by it pursuant hereto and
it is not relying upon any representations of the MassMutual Entities other than
those set forth herein, and (c) that it will acquire such securities for its own
account for investment and not for distribution in any manner that would violate
applicable securities laws. The acquisition of such securities by Acquisition
Company pursuant to Section 2 hereof shall constitute Acquisition Company's
confirmation of the foregoing at the closing.
8. Release of Liability. Upon consummation of the sale of the
Warrants and redemption of the Notes as contemplated by this Agreement, each
MassMutual Entity, on its own behalf and on behalf of its predecessors,
successors and assigns acknowledges that no obligations or liabilities of the
Company, PlayCore Wisconsin or any of their subsidiaries shall be outstanding
under or with respect to the Warrants or the Notes. Each of the Company and
PlayCore Wisconsin acknowledge and agree that all of the indemnification
provisions included in the Securities Purchase Agreements, including without
limitation those set forth in sections 21 and 22 thereof, shall remain in full
force and effect and survive the sale of the Warrants and redemption of the
Notes pursuant hereto. The sale of the Warrants and the redemption of the Notes
pursuant hereto shall, upon such sale and redemption, be irrevocable and without
recourse against any of the MassMutual Entities, other than for breaches of the
MassMutual Entities' representations, warranties and covenants set forth herein.
Except as expressly set forth herein, none of the MassMutual Entities makes any
warranties or representations, express or implied, with respect to any of the
Warrants to be sold pursuant hereto or any of the Notes to be redeemed pursuant
hereto.
9. Termination. This Agreement shall automatically terminate if
the Warrants have not been purchased and the Notes have not been redeemed
pursuant to this Agreement prior June 30, 2000 (unless extended in writing by
the parties hereto).
10. Miscellaneous.
a. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among any of the parties with respect to the subject matter hereof.
b. Assignment. This Agreement shall not be assigned without
the prior written consent of the other parties hereto and no rights, or any
direct or indirect interest
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herein, shall be transferable hereunder without the prior written consent of the
other parties hereto; provided, that, Acquisition Company may assign or transfer
its rights hereunder to any other Person that is an Affiliate (as defined in the
Securities Purchase Agreements) of Parent, which assignment shall not relieve
Acquisition Company of any of its respective obligations hereunder.
c. Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by all of
the parties to this Agreement.
d. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier services, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered to
the respective parties at the following addresses:
If to any of the MassMutual Entities:
At the addresses set forth on Schedule 1
hereto
If to Acquisition Company:
Chartwell Investments II, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Akin, Gump, Strauss, Xxxxx
& Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Company PlayCore, Inc.
or PlayCore Wisconsin: Xxxxxxxxxx Xxxxxx, Xxxxx 000
00 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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with a copy to: Xxxxx & Lardner
Firstar Center
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxx, III
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
e. Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
f. Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other parties to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the aggrieved parties shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which they may be entitled, at law or in equity.
g. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
h. No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder or thereunder, and any custom or
practice of the parties at variance with the terms hereof or thereof, shall not
constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
i. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
j. Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for the District of
Delaware or any court
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of the State of Delaware located in the City of Wilmington in any action, suit
or proceeding arising in connection with this Agreement, and agrees that any
such action, suit or proceeding shall be brought only in such court (and waives
any objection based on forum non conveniens or any other objection to venue
therein); provided, however, that such consent to jurisdiction is solely for the
purpose referred to in this Section j and shall not be deemed to be a general
submission to the jurisdiction of said Courts or in the State of Delaware other
than for such purposes.
k. Counterparts; Effectiveness. This Agreement may be
executed in counterparts, each of which shall be deemed to be an original, but
all of which, taken together, shall constitute one and the same Agreement.
l. Expenses. The Company and PlayCore Wisconsin jointly and
severally shall pay all reasonable fees and disbursements incurred by the
MassMutual Entities in connection herewith, including without limitation, the
reasonable fees, expenses and disbursements of Xxxxxx, Xxxx & Xxxxxxx; provided,
however, that the Company and PlayCore Wisconsin shall not be liable for any
such fees or disbursements in excess of $5,000.
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IN WITNESS WHEREOF, the parties hereto have caused this Purchase,
Waiver and Consent Agreement to be duly executed as of the day and year first
above written.
MASSACHUSETTS MUTUAL LIFE MASSMUTUAL CORPORATE VALUE
INSURANCE COMPANY PARTNERS LIMITED
By: Xxxxx X. Xxxxxx and Company By: Xxxxx X. Xxxxxx and Company Incorporated,
Incorporated, as Investment Advisor under delegated authority from Massachusetts
Mutual Life Insurance Company, as
Investment Manager
By: /s/ XXXXXXX X. XXXXXXX By: /s/ XXXXXXX X. XXXXXXX
----------------------------------------- --------------------------------------------
Managing Director (Title) Managing Director (Title)
MASSMUTUAL CORPORATE INVESTORS MASSMUTUAL PARTICIPATION INVESTORS
By: /s/ XXXXXXX X. XXXXXXX By: /s/ XXXXXXX X. XXXXXXX
----------------------------------------- --------------------------------------------
Vice President (Title) Vice President (Title)
The foregoing is executed on behalf of The foregoing is executed on behalf of
MassMutual Corporate Investors, organized under a MassMutual Participation Investors, organized
Declaration of Trust, dated September 13, 1985, as under a Declaration of Trust, dated April 7,
amended from time to time. The obligations of such 1988, as amended from time to time. The
Trust are not personally binding upon, nor shall resort obligations of such Trust are not personally
be had to the property of, any of the Trustees, binding upon, nor shall resort be had to the
shareholders, officers, employees or agents of such property of, any of the Trustees, shareholders,
Trust, but the Trust's property only shall be bound. officers, employees or agents of such Trust, but
the Trust's property only shall be bound.
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XXXXXXX & CO. JASDREW ACQUISITION CORP.
By: /s/ , Partner By: /s/ XXXXXXX XXXXX
----------------------------------------- --------------------------------------------
Name: Partner Name: Xxxxxxx Xxxxx
Title: Title: Vice President
PLAYCORE, INC. PLAYCORE WISCONSIN, INC.
By: /s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXXXX X. XXXXXXX
----------------------------------------- --------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: President Title: Chief Executive Officer
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SCHEDULE 1
SHARES FOR PRINCIPAL
WHICH WARRANTS AMOUNT
HOLDER WARRANTS ARE EXERCISABLE NOTES OF NOTES
------ --------- --------------- ------ ----------
Massachusetts Mutual Life Insurance Company No. RW-1 199,689 No. R-1 $3,928,500
Massachusetts Mutual Life Insurance Company No. RW-2 98,145 No. R-2 $1,931,000
MassMutual Corporate Investors No. RW-3 158,845 No. R-3 $3,125,000
MassMutual Participation Investors No. RW-4 79,422 No. R-4 $1,562,500
Xxxxxxx & Co. No. RW-5 99,278 No. R-5 $1,953,000
Total Shares for which the Warrants are exercisable is 635,379.
Xxxxxxx & Co. is the record holder of Warrant RW-5 and Note No. R-5 and holds
such Warrant and Note as nominee for MassMutual Corporate Value Partners
Limited. MassMutual Corporate Value Partners Limited is the beneficial owner of
Warrant No. RW-5 and Note No. R-5.
Addresses for each of the MassMutual Entities:
If to a MassMutual Entity (other than Xxxxxxx & Co. or MassMutual Corporate
Value Partners Limited):
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Securities Investment Division
Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Xxxxxxx & Co. or MassMutual Corporate Value Partners Limited:
Xxxxxxx & Co.
c/o CitiCorp Worldwide Securities Services
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx, XX 00000
Attention:
--------------------------------
Telephone:
--------------------------------
Telecopy:
--------------------------------
and MassMutual Corporate Value Partners Limited
c/o Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Securities Investment Division
Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
