1
EXHIBIT 10.14
STOCK SUBSCRIPTION AGREEMENT
STOCK SUBSCRIPTION AGREEMENT, dated as of October 9, 1996 (the
"Agreement"), by and among AMF HOLDINGS INC., a Xxxx xxxx corporation
("Holdings"), GS CAPITAL PARTNERS II, L.P., a Delaware limited partnership
("GSCP II"), GS CAPITAL PARTNERS II OFFSHORE, L.P., a Cayman Islands exempted
limited partnership ("GSCP II Offshore"), XXXXXXX, SACHS & CO. VERWALTUNGS
GMBH, a corporation recorded in the Commercial Register Frankfurt, as nominee
for GS Capital Partners II Germany C.L.P. ("GSCP II Germany"), STONE STREET
FUND 1995, L.P., a Delaware limited partnership ("Stone 0000"), XXXXX XXXXXX
FUND 1996, L.P., a Delaware limited partnership ("Stone 0000"), XXXXXX XXXXXX
FUND 1995, L.P., a Delaware limited partnership ("Xxxxxx 0000"), XXXXXX XXXXXX
FUND 1996, L.P., a Delaware limited partnership ("Bridge 1996" and, together
with GSCP II, GSCP II Offshore, GSCP II Germany, Stone 1995, Stone 1996 and
Bridge 1995, "GSCP"), BLACKSTONE CAPITAL PARTNERS II MERCHANT BANKING FUND
L.P., a Delaware limited partnership ("Blackstone Fund 1"), BLACKSTONE OFFSHORE
CAPITAL PARTNERS II L.P., a Delaware limited partnership ("Blackstone Fund 2"),
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II L.P., a Delaware limited
partnership ("Blackstone Fund 3" and together with Blackstone Fund 1 and
Blackstone Fund 2, "Blackstone"), XXXXX INVESTMENT ASSOCIATES V, L.P., a
Delaware limited partnership ("KIA V"), XXXXX EQUITY PARTNERS V, L.P., a
Delaware limited partnership ("KEP V," and together with KIA V, "Xxxxx"), XXXX
CAPITAL FUND V, L.P., a Delaware limited partnership ("Bain Fund 1"), XXXX
CAPITAL FUND V-B, L.P., a Delaware limited partnership ("Bain Fund 2"), BCIP
ASSOCIATES, a Delaware general partnership ("Bain Fund 3 and together with Bain
Fund 1 and Bain Fund 2, "Bain"), CITICORP NORTH AMERICA, INC., a Delaware
corporation ("Citibank"), and XXXXXXX X. XXXXX ("Xxxxx"). Blackstone, Kelso,
Bain, and Citibank are herein referred to collectively as the "Funding
Investors" or individually as a "Funding Investor," and, together with Diker,
are herein collectively referred to as the "Investors" or individually as an
"Investor." The parties hereto (other than Holdings) are sometimes hereinafter
referred to collectively as the "Purchasers" or individually as a "Purchaser."
RECITALS
A. Holdings, as of the date hereof, has an authorized capital
stock consisting of 60,000,000 shares of Common Stock, par value $0.01 per
share (the "Common Stock"), each share of which is entitled to one vote on all
stockholder matters as more specifically provided in the amended certificate of
incorporation of Holdings (the "Amended Certificate).
2
B. The Purchasers, Holdings and certain management
stockholders of Holdings are parties to a Stockholders Agreement, dated as of
April 30, 1996 (as amended from time to time, the "Stockholders Agreement"),
and the Purchasers, Holdings and certain management stockholders of Holdings
are parties to a Registration Rights Agreement, dated as of April 30, 1996 (as
amended from time to time, the "Registration Rights Agreement").
C. AMF Bowling Centers, Inc., a Virginia corporation and a
wholly-owned indirect subsidiary of Holdings ("Centers"), has entered into an
Asset Purchase Agreement (the "Asset Purchase Agreement"), dated as of
September 10, 1996, with Charan Industries, Inc., a Delaware corporation
("Charan"), pursuant to which Centers has agreed to purchase certain assets of
Charan (the "Acquisition").
D. 7,560,000 shares of Common Stock have been reserved for
issuance when required to be purchased by GSCP and the Funding Investors (or,
in the case of Blackstone Fund 3, its affiliate) pursuant to Section 1.5 of the
Stockholders Agreement. The shares of Common Stock being issued to Diker
pursuant hereto are in addition to such reserved shares.
E. Holdings, by action of its Board of Directors, desires to
require the purchase of 3,986,816.08 shares of Common Stock by GSCP and the
Funding Investors, and desires to sell 13,183.92 shares of Common Stock to
Diker, in each case, to fund, in part, the Acquisition.
F. Holdings has given notice, pursuant to Section 1.5 of the
Stockholders Agreement, to GSCP and the Investors.
G. Pursuant to the terms and subject to the conditions set
forth in this Agreement and in connection with providing equity financing for
the Acquisition, the Purchasers desire to purchase from Holdings and Holdings
desires to sell to the Purchasers, shares of Common Stock in the amounts and
for the purchase prices contemplated hereby.
NOW THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, the parties hereto
agree as follows:
ARTICLE I
Stock Subscription
1.1. Purchase and Sale of Stock. Holdings hereby agrees to
and will deliver to each Purchaser, at the Closing
-2-
3
(as hereinafter defined), certificates representing shares of Common Stock in
the amounts set forth below:
Number of Shares of
Name Common Stock
---- -------------------
GSCP II 1,767,749.63
GSCP II Offshore 702,752.93
GSCP II Germany 65,203.88
Stone 1995 70,705.10
Stone 1996 41,355.57
Bridge 1995 47,950.14
Bridge 1996 46,537.20
Blackstone Fund 1 379,014.12
Blackstone Fund 2 110,758.90
Blackstone Fund 3 37,583.60
KIA V 495,715.22
KEP V 31,641.40
Bain Fund 1 37,007.32
Bain Fund 2 96,366.45
Bain Fund 3 24,833.22
Citibank 31,641.40
Diker 13,183.92
----------------------------- -------------------
Total 4,000,000.00
If any Investor fails to acquire the shares of Common Stock it
has agreed to acquire pursuant hereto, GSCP shall xx xxxxx such shares, and the
ownership and any inconsistent pro visions of this Agreement shall be adjusted
accordingly.
1.2. Consideration for Shares.
1.2.1 Common Stock Purchased by GSCP. In consider ation
of, and concurrently with, the issuance of the shares of Common Stock to be
purchased by GSCP as reflected in Section 1.1, each of GSCP II, GSCP II
Offshore, GSCP II Germany, Stone 1995, Stone 1996, Bridge 1995 and Bridge 1996,
hereby agrees to and will deliver as payment therefor $17,677,496.30
$7,027,529.30, $652,038.80, $707,051.00, $413,555.70, $479,501.40, and
$465,372.00 in cash, respectively. If any Investor fails to acquire the shares
of Common Stock contemplated by Section 1.2.2 hereof, GSCP shall acquire such
shares, but such obligation and/or acquisition shall not limit the obligation
of any such Investor to acquire such shares or the liability of such Investor
to Holdings and to GSCP for any breach of this Agreement, nor shall it limit
the rights of Holdings and GSCP to compel specific performance hereunder.
1.2.2 Common Stock Purchased by the Investors. In
consideration of, and concurrently with, the issuance of the shares of Common
Stock to be purchased by Xxxxxxxxxx, Xxxxx,
-0-
0
Xxxx, Xxxxxxxx and Diker as reflected in Section 1.1, each of Blackstone Fund
1, Blackstone Fund 2, Blackstone Fund 3, KIA V, KEP V, Bain Fund 0, Xxxx Xxxx
0, Xxxx Xxxx 0, Xxxxxxxx and Diker hereby agrees to and will deliver as payment
therefor $3,790,141.20, $1,107,589.00, $375,836.00, $4,957,152.20, $316,414.00,
$370,073.20, $963,664.50, $248,332.20, $316,414.00 and $131,839.20 in cash,
respectively. The obligation of any such Investor to purchase the shares of
Common Stock contemplated by this Section 1.2.2 shall not be contingent upon
the purchase of shares by any other Investor, and shall not be limited by
GSCP's obligation pursuant to the last sentence of Section 1.2.1.
1.3. Closing. The delivery and transfer of the shares of
Common Stock to the Purchasers and, in exchange for the foregoing, the payment
of cash by the Purchasers (the "Closing"), will take place approximately one
business day prior to the consummation of the Acquisition at the offices of
Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 or at
another location and time to be designated by Holdings. If the Closing has
occurred but the Acquisition is not consummated prior to the close of business
on the tenth business day following the Closing, then Holdings shall promptly
deliver to each Purchaser, against delivery by such Purchaser of the cer
tificates representing the shares of Common Stock purchased by such Purchaser
pursuant hereto, the consideration received by Holdings from such Purchaser at
the Closing pursuant to Sections 1.1 and 1.2, and this Agreement shall
thereupon be terminated without any liability or penalty on the part of any
party or its stockholders, officers, directors, general or limited partners,
agents or representatives to any other party or such other party's affiliate.
ARTICLE II
Representations and Warranties of Holdings
Holdings represents and warrants to the Purchasers that:
2.1. Organization and Authority. Holdings is a cor poration
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to enter
into this Agreement and the Asset Purchase Agreement and to consummate the
transactions contemplated hereby and thereby.
2.2. Capitalization. (a) After giving effect to the
transactions contemplated by this Agreement, the authorized capital stock of
Holdings will consist of 60,000,000 shares of Common Stock, of which 42,375,000
shares will be issued and out standing immediately after the Closing. In
addition, (i)
-4-
5
1,767,151 shares of Common Stock have been reserved for issuance under
Holdings' 1996 Stock Incentive Plan (the "Incentive Plan") (including pursuant
to (x) a Stock Option Agreement, dated as of May 1, 1996, between Holdings and
Diker (the "Diker Option"), (y) an Employment Agreement, dated as of May 28,
1996, among Holdings, AMF Group Inc. and Xxxxxxx X. Xxxx (the "Xxxx Agreement")
and (z) any additional agreements entered into in connection with certain
additional grants made or to be made to certain employees of Holdings and its
subsidiaries), (ii) 240,000 shares of Common Stock have been reserved for
issuance upon exercise of options to purchase shares of Common Stock, granted
to Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx pursuant to employment agreements, in
each case, among such executive, Holdings and a subsidiary of Holdings
(together, with the Hare Agreement, the "Employment Agreements"), (iii)
3,573,183.92 shares of Common Stock remain reserved for issuance when required
to be purchased pursuant to Section 1.5 of the Stockholders Agreement (the
"Subsequent Shares") and (iv) 870,000 shares of Common Stock have been reserved
for issuance upon exercise of warrants to purchase shares of Common Stock,
issued pursuant to the Warrant Agreement, dated as of May 1, 1996, between
Holdings and The Xxxxxxx Xxxxx Group, L.P. (the "Warrant Agreement"). All of
the outstanding shares of Common Stock issued at the Closing will be validly
issued, fully paid and nonassessable and, when delivered by Holdings at the
Closing, shall be free and clear of all liens, claims, options, charges or
other security interests or encum brances except for the arrangements binding
the Purchasers and certain other stockholders which are set forth in the
Stockholders Agreement.
(b) Except as contemplated by (i) this Agreement (ii) the
Employment Agreements (including with respect to options issued pursuant
thereto), (iii) the Warrant Agreement, (iv) the Diker Option (including with
respect to the options issued pursuant thereto), (v) the Stockholders
Agreement, (vi) the Registration Rights Agreement and (vii) any agreements
entered into in connection with grants under the Incentive Plan (the agreements
referred to in clauses (i) through (vii) above are herein collectively referred
to as the "Collateral Agreements"), Holdings has no outstanding stock or
securities convertible into or exchangeable or exercisable for any shares of
capital stock, or any rights or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, any capital stock or
any stock or securities convertible into or exchangeable or exercisable for any
capital stock. Other than pursuant to this Agreement and the Collateral
Agreements, Holdings is not subject to any obligation (contingent or otherwise)
to repurchase or otherwise acquire or retire any shares of capital stock or any
convertible securities, rights or options of the type described in the
preceding sentence. Holdings is not a party to, nor, after due inquiry,
-5-
6
has knowledge of, any agreement (except as set forth in this Agreement and the
Collateral Agreements) restricting the transfer of any shares of capital stock
of Holdings. Holdings is not currently required to file pursuant to Section 12
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (the "Exchange Act"), a registration
statement relating to any class of debt or equity securities of Holdings.
2.3. Compliance with Other Instruments; Registration.
Holdings is not in violation of any term of its Amended Certificate or of its
By-Laws or any agreement or instrument to which it or any of its subsidiaries
is a party or by which it or any of its subsidiaries or any of their respective
properties or assets is bound, and neither Holdings nor any of its subsidiaries
is in violation of any term or any applicable law, ordinance, rule or
regulation or any applicable order, judgment or decree of any court or
governmental authority, the consequences of which violation may reasonably be
expected to have a material adverse effect on the business, financial
condition, properties or operations of Holdings and its subsidiaries taken as a
whole. Neither the execution and delivery of this Agreement, the Asset
Purchase Agreement or the certificates representing the Common Stock to be
purchased pursuant hereto, nor the consummation of the transactions
contemplated hereby or thereby, will result in any violation of or be in
conflict with or constitute a default under (with or without lapse of time,
notice or both) any term of the Amended Certificate or of the By-Laws of
Holdings or any agreement or instrument to which Holdings or any of its
subsidiaries is a party or by which any of them or their respective properties
or assets are bound or any applicable law, ordinance, rule or regulation or any
applicable order of any court or governmental authority or, except as expressly
provided herein or in the Collateral Agreements, will result in the creation of
any mortgage, pledge, lien, security interest, charge or encumbrance upon any
of the properties or assets of Holdings or any of its subsidiaries, which
violation, conflict, default, or creation may reasonably be expected to have a
material adverse effect on, the business, financial condition, properties or
operations of Holdings and its subsidiaries taken as a whole. Assuming the
accuracy of the representations of the Purchasers pursuant to this Agreement,
the sale of shares of Common Stock by Holdings pursuant to this Agreement is
not subject to the reg istration requirements of Section 5 of the Securities
Act of 1933, as amended.
2.4. Valid and Binding Agreements. This Agreement has been
duly authorized, executed and delivered by Holdings and, when duly executed and
delivered by the other parties hereto, will be the valid and binding obligation
of Holdings enforceable in accordance with its terms, except (i) as may be
-6-
7
limited by or subject to any bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally, and (ii) that the
remedies of specific performance, injunction and other forms of equitable
relief may not be available because they are subject to certain tests of equity
jurisdiction, equitable defenses and the discretion of the court before which
any pro ceeding therefor may be brought.
ARTICLE III
Representations and Warranties of the Purchasers
Each Purchaser hereby represents and warrants as follows:
3.1. Receipt of Agreements; Access to Information. Such
Purchaser has received and read this Agreement, the Asset Purchase Agreement,
the Collateral Agreements and the Prospectus of AMF Group Inc., dated as of
August 12, 1996 regarding certain of its outstanding debt obligations.
Holdings has made available to the Purchaser for a reasonable time prior to the
date hereof an opportunity to ask questions and receive answers concerning the
terms and conditions of such Purchaser's investment hereunder in the Common
Stock and to obtain any additional information which Holdings possesses or can
acquire without unreasonable effort or expense, and such Purchaser has received
all additional information requested by such Purchaser.
3.2. No Registration. Such Purchaser has been advised that
(a) the shares of Common Stock sold pursuant hereto have not been registered
under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "Securities Act"); (b) the Common Stock must be
held for an indefinite period and such Purchaser must continue to bear the
economic risk of the investment in the Common Stock unless it is subsequently
registered under the Securities Act or an exemption from such registration is
available; (c) it is not anticipated that there will be any public market for
the Common Stock; (d) Rule 144 promulgated under the Securities Act ("Rule
144") is not currently available with respect to sales of any securities of
Holdings, and Holdings has made no covenant to make Rule 144 available; (e) if
and when the Common Stock may be disposed of without registration in reliance
on Rule 144, such disposition can be made only in limited amounts to the extent
restricted by the terms and conditions of Rule 144; (f) if the Rule 144
exemption is not available, public offer or sale without registration will
require the availability of an exemption under the Securities Act; (g) a
restrictive legend or legends in the forms set forth in the Stockholders
Agreement shall be placed on the certificates representing the Common Stock;
(h) the Stockholders Agreement restricts the sale or
-7-
8
transfer of shares of Common Stock other than at specified times and under
certain circumstances; and (i) a notation shall be made in the appropriate
records of Holdings indicating that the shares of Common Stock purchased hereby
are subject to restrictions on transfer and, if Holdings should at some time in
the future engage the services of a securities transfer agent, appropriate
stop-transfer instructions may be issued to such transfer agent with respect to
such shares of Common Stock.
3.3. Purchase for Investment, etc. (a) Such Pur chaser,
with respect to all the securities to be purchased by it hereunder, represents
that such Purchaser is purchasing such securities for such Purchaser's own
account, for investment purposes only and not with a view to, or for resale in
connection with, the distribution or other disposition thereof or with any
present intention of distributing or reselling any thereof, without prejudice,
however, to such Purchaser's right, subject to the terms of the Stockholders
Agreement, to sell or otherwise dispose of all or any part of said securities
in compliance with the provisions of the Securities Act and all applicable
state securities or "blue sky" laws.
(b) Such Purchaser is an "accredited investor," as such term
is defined in Regulation D under the Securities Act, or otherwise has such
knowledge and experience in financial and business matters that such Purchaser
is capable of evaluating the merits and risks of its investment hereunder.
Such Purchaser is aware that it must bear the economic risk of such investment
for an indefinite period of time since, in the view of the Securities and
Exchange Commission, the statutory basis for exemption from registration under
the Securities Act would not be present if such representation meant merely
that the present intention of such Purchaser is to hold these securities for a
deferred sale or for any fixed period in the future. Such Purchaser can afford
to bear such economic risk and can afford to suffer the complete loss of its
investment hereunder.
3.4. Authority; Binding Effect; No Conflicts. Such Purchaser
has the legal capacity, power and authority to enter into this Agreement and to
consummate the transactions contem plated hereby, and to purchase the Common
Stock as provided herein. This Agreement has been duly authorized and has been
duly executed and delivered by such Purchaser. This Agreement, when duly
executed and delivered by the other parties hereto, will be the valid and
binding obligation of such Purchaser en forceable in accordance with its terms,
except (i) as may be limited by or subject to any bankruptcy, insolvency,
reorgani zation, moratorium or other similar laws affecting creditors' rights
generally, and (ii) that the remedies of specific per formance, injunction and
other forms of equitable relief may not be available because they are subject
to certain tests of equity jurisdiction, equitable defenses and the discretion
of
-8-
9
the court before which any proceeding therefor may be brought. Neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby, will result in any violation of or be in
conflict with or constitute a default under, as applicable, such Purchaser's
charter, bylaws or similar organizational or governing documents or under any
agreement or instrument to which such Purchaser is a party or by which any of
its properties or assets is bound or any applicable law, ordinance, rule or
regulation or any applicable order of any court or governmental authority.
3.5. Finders' and Brokers' Fees. Such Purchaser has not
entered into any agreement to pay any brokers' or finders' fees to any person
with respect to this Agreement or the purchase and issuance and sale of the
Common Stock contemplated hereby.
ARTICLE IV
Additional Covenants and Agreements
4.1. Legends. Each of the Purchasers hereby agrees and
acknowledges that each outstanding certificate representing shares of Common
Stock shall bear the legends set forth in the Stockholders Agreement pursuant
to the terms thereof.
ARTICLE V
Conditions to Closing
5.1. Conditions to Purchasers' Obligation. Each Purchaser's
obligation to purchase and deliver the consideration for the shares of Common
Stock to be sold hereunder by Holdings at the Closing is subject to the
fulfillment on or prior to the Closing of the following conditions:
5.1.1 Representations and Warranties. The represen tations
and warranties of Holdings contained in this Agreement shall be true and
correct in all material respects when made and at and as of the time of the
Closing.
5.1.2 Performance. Holdings shall have performed and
complied in all material respects with all agreements and conditions contained
in this Agreement required to be performed or complied with by it prior to or
at the Closing.
5.1.3 Acquisition. As of the Closing, there shall be no
impediments to the consummation of the Acquisition pursuant to the Asset
Purchase Agreement. The consummation of the
-9-
10
Acquisition shall be reasonably likely to occur within ten business days after
the Closing.
5.1.4 No Orders. As of the Closing, there shall not be
outstanding any order of any court, administrative agency or governmental body
which in any way restrains or prevents the carrying out of the transactions
contemplated by this Agreement or the Asset Purchase Agreement.
5.1.5 Compliance with Securities Laws. The offering,
issuance and sale of the shares of Common Stock to be offered, issued and sold
at the Closing under this Agreement shall have complied with all applicable
requirements of federal and state securities laws.
5.2. Conditions to Holdings' Obligation. Holdings'
obligations to accept payment for and to deliver the shares of Common Stock to
be sold hereunder by Holdings at the Closing are subject to the fulfillment on
or prior to the Closing of the following conditions:
5.2.1 Representations and Warranties. The represen tations
and warranties of each Purchaser contained in this Agreement shall be true and
correct in all material respects when made and at and as of the time of the
Closing.
5.2.2 Performance. Each Purchaser shall have per formed and
complied in all material respects with all agreements and conditions contained
in this Agreement required to be performed or complied with by it prior to or
at the Closing.
5.2.3 Acquisition. As of the Closing, there shall be no
impediments to the consummation of the Acquisition pursuant to the Asset
Purchase Agreement. The consummation of the Acquisition shall be reasonably
likely to occur within ten business days after the Closing.
5.2.4 No Orders. As of the Closing, there shall not be
outstanding any order of any court, administrative agency or governmental body
which in any way restrains or prevents the carrying out of the transactions
contemplated by this Agreement or the Asset Purchase Agreement.
5.2.5 Compliance with Securities Laws. The offering,
issuance and sale of the shares of Common Stock to be offered, issued and sold
at the Closing under this Agreement shall have complied with all applicable
requirements of federal and state securities laws.
-10-
11
ARTICLE VI
Miscellaneous Provisions
6.1. Survival of Representations and Warranties. All
covenants, agreements, representations and warranties made herein shall survive
the execution and delivery of this Agreement and delivery of the shares of
Common Stock and payment therefor pursuant hereto and shall continue in full
force and effect. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors of such
party; and all covenants, promises and agreements in this Agreement by or on
behalf of Holdings, or by or on behalf of any Purchaser, shall bind and inure
to the benefit of the successors of such parties hereto.
6.2. Costs and Expenses. Each of the parties hereto agrees
to pay the expenses incurred by it in connection with the negotiation,
preparation, execution and delivery of this Agree ment and the consummation of
the transactions contemplated hereby, including, without limitation, the fees
and expenses of counsel to such party.
6.3. Governing Law; Amendment; Waiver. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of New York, without regard to the principles of conflicts of law
thereof. No amendment, waiver, change, modification or discharge of any
provision of this Agreement shall in any event be effective unless the same
shall be in writing and signed by the party against whom enforcement of any
such amendment, waiver, change, modification or discharge is sought.
6.4. Notices. All notices, statements, instructions or other
documents required to be given hereunder shall be in writing and shall be given
either personally or by mailing the same in a sealed envelope, first-class
mail, postage prepaid and either certified or registered, return receipt
requested, or by telecopy, addressed to Holdings at its principal offices and
to the other parties at their addresses and telecopier numbers reflected on the
signature pages hereto. Each party hereto, by written notice given to each of
the other parties hereto in accordance with this Section 6.4 may change the
address and telecopier number to which notices, statements, instructions or
other documents are to be sent to such party. All notices, statements,
instructions and other documents hereunder that are mailed or telecopied shall
be deemed to have been given on the date of mailing or, in the case of
telecopying, upon confirmation of receipt.
-11-
12
6.5. Further Assurances. The parties hereto shall from time
to time execute and deliver all such further documents and do all acts and
things as the other party may reasonably require to effectively carry out or
better evidence or perfect the full intent and meaning of this Agreement.
6.6. Complete Agreement; Counterparts. This Agreement and
the Collateral Agreements constitute the entire agreement, and supersede all
other agreements and understandings, both written and oral, among the parties
or any of them, with respect to the subject matter hereof. Other than as
expressly contained herein or in the Collateral Agreements, the parties hereto
have made no other representations and warranties to each other. This
Agreement may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
6.7. Assignment. This Agreement is not assignable by any of
the parties hereto, other than by Holdings to its successor by operation of law
or to an acquiror of all or sub stantially all of its assets.
6.8. Descriptive Headings, etc. The headings in this
Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning of terms contained herein. Unless the context of
this Agreement otherwise requires, references to "hereof," "herein," "hereby,"
"hereunder" and similar terms shall refer to this entire Agreement.
6.9. Severability. If any term or provision of this
Agreement shall to any extent be invalid or unenforceable, the remainder of
this Agreement shall not be affected thereby, and each term and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted
by law. Upon the determination that any term or other provision is invalid, il
legal or incapable of being enforced, the parties shall negotiate in good faith
to modify this Agreement so as to effect their original intent as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the extent possible.
6.10. Specific Performance. The parties hereto ac knowledge
that there would be no adequate remedy at law if any party fails to perform any
of its obligations hereunder, and accordingly agree that each party, in
addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of any
other party under this Agreement in accordance with the terms and conditions of
this Agreement. Any remedy under this Section 6.10 is subject to certain
equitable defenses and to
-12-
13
the discretion of the court before which any proceedings therefor may be
brought.
-13-
14
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed on the date first written above.
AMF HOLDINGS INC.
By: /s/ X. X. XXXXXXXXX
----------------------------------------
Name: X. X. Xxxxxxxxx
Title: Secretary
Address: c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopier No.: (000) 000-0000
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P.,
General Partner
By: GS Advisors Inc., its
General Partner
By: /s/ X. X. XXXXXXXXX
----------------------------------------
Name: X. X. Xxxxxxxxx
Title: Vice President
Address: c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopier No.: (000) 000-0000
15
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: GS Advisors II (Cayman), L.P.,
General Partner
By: GS Advisors II, Inc., its
General Partner
By: /s/ X. X. XXXXXXXXX
----------------------------------------
Name: X. X. Xxxxxxxxx
Title: Vice President
Address: c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopier No.: (000) 000-0000
XXXXXXX, XXXXX & CO. VERWALTUNGS GMBH
By: /s/ XXXXXXX X. X'XXXXX
----------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Managing Director
By: /s/ X. X. XXXXXXXXX
----------------------------------------
Name: X. X. Xxxxxxxxx
Title: Vice President
Address: c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopier No.: (212) 357-5505
00
XXXXX XXXXXX XXXX 0000, L.P.
By: Stone Street Value Corp., its
General Partner
By: /s/ X. X. XXXXXXXXX
----------------------------------------
Name: X. X. Xxxxxxxxx
Title: Vice President
Address: c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopier No.: (212) 357-5505
XXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street Empire Corp., its
General Partner
By: /s/ X. X. XXXXXXXXX
----------------------------------------
Name: X. X. Xxxxxxxxx
Title: Vice President
Address: c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopier No.: (000) 000-0000
00
XXXXXX XXXXXX XXXX 0000, L.P.
By: Stone Street Value Corp., its
Managing General Partner
By: /s/ X. X. XXXXXXXXX
----------------------------------------
Name: X. X. Xxxxxxxxx
Title: Vice President
Address: c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopier No.: (000) 000-0000
XXXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street Empire Corp., its
Managing General Partner
By: /s/ X. X. XXXXXXXXX
----------------------------------------
Name: X. X. Xxxxxxxxx
Title: Vice President
Address: c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopier No.: (000) 000-0000
18
BLACKSTONE CAPITAL PARTNERS II MERCHANT
BANKING FUND L.P.
By: Blackstone Management Associates
II L.L.C., its General Partner
By: /s/ XXXXXX XXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Member
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
BLACKSTONE OFFSHORE CAPITAL PARTNERS
II L.P.
By: Blackstone Management Associates
II L.L.C., its General Partner
By: /s/ XXXXXX XXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Member
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP II L.P.
By: Blackstone Management Associates
II L.L.C., its General Partner
By: /s/ XXXXXX XXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Member
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
19
XXXXX INVESTMENT ASSOCIATES V, L.P.
By: Xxxxx Partners V, L.P., its
General Partner
By: /s/ XXXXXX X. MALELICH
----------------------------------------
Name: Xxxxxx X. Malelich
Title: General Partner
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, XX
Telecopier No.: (000) 000-0000
XXXXX EQUITY PARTNERS V, L.P.
By: /s/ XXXXXX X. MALELICH
----------------------------------------
Name: Xxxxxx X. Malelich
Title: General Partner
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, XX
Telecopier No.: (000) 000-0000
20
XXXX CAPITAL FUND V, L.P.
By: Xxxx Capital Partners V, L.P., its
General Partner
By: Xxxx Capital Investors V, Inc.,
its General Partner
By: /s/ XXXX X. XXXXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
Address: 0 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
XXXX CAPITAL FUND V-B, L.P.
By: Xxxx Capital Partners V, L.P., its
General Partner
By: Xxxx Capital Investors V, Inc.,
its General Partner
By: /s/ XXXX X. XXXXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
Address: 0 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
21
BCIP ASSOCIATES
By: /s/ XXXX X. XXXXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: General Partner
Address: 0 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
00
XXXXXXXX XXXXX XXXXXXX, INC.
By: /s/ JEROEN FIKKE
----------------------------------------
Name: Jeroen Fikke
Title: Attorney-in-fact
Address: 000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Jeroen Fikke
Telecopier No.: (000) 000-0000
23
/s/ XXXXXXX X. XXXXX
--------------------------------------------
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx Associates
Xxx Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
