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EXHIBIT 99.1
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GNHT 1, LLC
(a Delaware limited liability company)
PURCHASE AGREEMENT
Dated: January 5, 1999
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TABLE OF CONTENTS
PAGE
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Section 1. Representations and Warranties...............................................................1
(a) Representations and Warranties by the Company..................................................1
(i) Good Standing of the Company......................................................2
(ii) Authorization of Agreement........................................................2
(iii) Authorization of the Securities...................................................2
(iv) Delivery of Xxxx Xxxxx Common Stock...............................................2
(v) Absence of Proceedings............................................................3
(vi) Absence of Defaults and Conflicts.................................................3
(vii) Absence of Further Requirements...................................................4
(viii) No Registration...................................................................4
(ix) Compliance with Security Covenants................................................5
(x) Investment Company Act of 1940....................................................5
(xi) Xxxx Xxxxx Documents..............................................................5
(xii) Use of Proceeds; No Debt..........................................................6
(b) Representations and Warranties by the Purchaser................................................6
(c) Officer's Certificates.........................................................................6
Section 2. Sale and Delivery to Purchaser; Closing......................................................6
(a) Securities.....................................................................................6
(b) Payment........................................................................................6
(c) Denominations; Registration....................................................................7
Section 3. Covenants....................................................................................7
(a) Purpose Statement..............................................................................7
(b) Compliance with Security Covenants.............................................................7
Section 4. Payment of Expenses..........................................................................7
Section 5. Conditions...................................................................................7
(a) Conditions of Purchaser's Obligations..........................................................7
(i) Opinion of Counsel for the Company................................................7
(ii) Opinion of Counsel for the Purchaser..............................................8
(iii) Company Manager's Certificate.....................................................8
(iv) Affiliate Agreements..............................................................8
(v) Delivery of Collateral............................................................8
(vi) Additional Documents..............................................................8
(b) Conditions of Company's Obligations............................................................8
(c) Termination of Agreement.......................................................................9
Section 6. Indemnification..............................................................................9
(a) Indemnification of the Purchaser by the Company................................................9
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(b) Actions against Parties; Notification..........................................................9
(c) Settlement without Consent if Failure to Reimburse............................................10
Section 7. Contribution................................................................................10
Section 8. Representations, Warranties and Agreements to Survive Delivery..............................11
Section 9. Notices.....................................................................................11
Section 10. Parties....................................................................................11
Section 11. GOVERNING LAW AND TIME.....................................................................11
Section 12. Effect of Headings.........................................................................12
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GNHT 1, LLC
(a Delaware limited liability company)
PRIDESSM DUE FEBRUARY 28, 2002
Payable with Shares of Common Stock of Xxxx Xxxxx, Inc.
PURCHASE AGREEMENT
January 5, 1999
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
XXXX 0, LLC, a Delaware limited liability company (the "Company"),
confirms its agreement with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(the "Purchaser" or "MLPF&S"), with respect to the issue and sale by the Company
and the purchase by the Purchaser of an aggregate of 1,071,900 of the Company's
Provisionally Redeemable Income Debt Exchangeable for StockSM, PRIDESSM Due
February 28, 2002 (each, a "PRIDES"). The aforesaid 1,071,900 PRIDES to be
purchased by the Purchaser are hereinafter called the "Securities."
The PRIDES will be payable at maturity by delivery of the Maturity
Consideration (as defined in the PRIDES Certificate), subject to the Company's
option to deliver cash with an equal value.
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Purchaser as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof and agrees with the Purchaser,
as follows:
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SM Service Xxxx of Xxxxxxx Xxxxx & Co., Inc.
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(i) Good Standing of the Company. The Company has been duly
organized and is validly existing as a limited liability company in
good standing under the laws of the State of Delaware and has the
requisite organizational power and authority to enter into and perform
its obligations under this Agreement, the Security and Pledge Agreement
dated as of January 6, 1999 (the "Security and Pledge Agreement") among
the Company, the Purchaser and MLPF&S, as collateral agent, and the
Securities. All of the member's limited liability company interests in
the Company are owned by the parties listed on SCHEDULE A and such
interests are the only interests in the Company. The Company's Limited
Liability Company Agreement limits its activities to (a) acquiring,
owning, financing, selling, pledging and otherwise dealing with shares
of Common Stock, par value $0.01 per share (the "Xxxx Xxxxx Common
Stock", which term shall include all Reference Property, as defined in
the Securities), of Xxxx Xxxxx, Inc. ("Xxxx Xxxxx") (and any successor
to Xxxx Xxxxx) and any securities or other property distributed, issued
or received by way of dividend or otherwise as a result of or in
connection with the ownership of such shares of Xxxx Xxxxx Common Stock
or the securities or other property so distributed, issued or received
and to engage in all activities relating to the ownership of such
shares, securities or other property, including, without limitation,
exercising any voting rights with respect thereto; (b) making loans to
affiliates of the Company, receiving payment under such loans and
giving acquittances with respect to such loans for so long as the
Company is the holder of such loans and engaging in all activities
relating to the ownership of such loans; (c) investing and reinvesting
any cash at any time received by the Company; and (d) engaging in such
lawful activities and exercising such powers permitted by limited
liability companies under the laws of the State of Delaware that are
necessarily incident to or connected with the foregoing or necessary or
convenient to accomplish the foregoing and which are consistent with
the limitations set forth in the Company's Limited Liability Company
Agreement.
(ii) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(iii) Authorization of the Securities. The Securities have
been duly authorized by the Company for issuance and sale to the
Purchaser pursuant to this Agreement and the Security and Pledge
Agreement has been duly authorized by the Company, and, at the Closing
Time, the Securities and the Security and Pledge Agreement will have
been duly executed by the Company and, when delivered against payment
of the purchase price as provided in this Agreement, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law).
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(iv) Delivery of Xxxx Xxxxx Common Stock. To the extent the
Company elects to deliver shares of Xxxx Xxxxx Common Stock on the
Maturity Date (as defined in the Securities), upon delivery of such
Xxxx Xxxxx Common Stock pursuant to this Agreement, the Security and
Pledge Agreement and the Securities, the holder thereof will have
acquired all rights, title and interest in and to such Xxxx Xxxxx
Common Stock, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; provided that the holder is
not an affiliate of Xxxx Xxxxx. At the date hereof and at the Closing
Time, the Company is the sole registered owner of and has all rights in
and to at least 1,071,900 shares of Xxxx Xxxxx Common Stock, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. The sale, transfer and delivery of the Xxxx Xxxxx
Common Stock by the Company as contemplated by the Securities is not,
and at the time of delivery of such Xxxx Xxxxx Common Stock will not
be, subject to any right of first refusal or similar rights of any
person pursuant to any contract to which the Company or any Affiliate
of the Company is a party or by which any of them is bound. As used
herein, "Affiliate" means, as to the Company, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with the Company. As used herein, "control" (including the
terms "controlled by" or "under common control with") means, as to any
Person, the possession, direct or indirect, of the power to vote ten
percent or more of the securities having ordinary voting power for the
election of directors or managers of such Person or to direct or cause
the direction of the management and policies of such Person, whether
through ownership of voting securities or by contract or otherwise. As
used herein, "Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency or
instrumentality thereof.
(v) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any Affiliate of the Company, which might, individually or
in the aggregate, reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated by this
Agreement, the Security and Pledge Agreement or the Securities
(including the issuance and sale of the Securities and the delivery of
shares of Xxxx Xxxxx Common Stock pursuant thereto) or the performance
by the Company of its obligations hereunder or thereunder.
(vi) Absence of Defaults and Conflicts. The execution,
delivery and performance by the Company of this Agreement, the Security
and Pledge Agreement and the Securities and the consummation by the
Company with its obligations hereunder and thereunder have been duly
authorized by all necessary action and do not and will not, whether
with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Company
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract, indenture, mortgage,
deed of
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trust, loan or credit agreement, note, lease or any other agreement or
instrument to which the Company or any of its Affiliates is a party or
by which it or any of them may be bound, including, without limitation,
the Voting Agreement, dated October 18, 1998 (the "Voting Agreement"),
among The Kroger Co. ("Kroger") and certain stockholders of Xxxx Xxxxx
(but subject to subsection (viii) below), or to which any of the
property or assets of the Company or any of its Affiliates is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not, singly or in the aggregate, materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, the Security and Pledge Agreement and the
Securities), nor will such action result in any violation of the
provisions of the Limited Liability Company Agreement of the Company or
any of its Affiliates, or any applicable law, statute, rule or
regulation of any government or government instrumentality having
jurisdiction over the Company or any of its Affiliates or any of their
assets, properties or operations (other than any state securities or
"blue sky" law, statute, rule or regulation, as to which no
representation and warranty is made), or any applicable judgment,
order, writ or decree of any government, government instrumentality or
domestic court having jurisdiction over the Company or any of its
Affiliates or any of their assets, properties or operations (except in
all cases for such violations that would not, singly or in the
aggregate materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, the Security and Pledge
Agreement and the Securities). As used herein, a "Company Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or
any of its Affiliates.
(vii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the execution, delivery or
performance by the Company of its obligations under this Agreement, the
Security and Pledge Agreement or the Securities or the consummation by
the Company of the transactions contemplated herein or therein
(including the issuance and sale of the Securities and any delivery of
shares of Xxxx Xxxxx Common Stock pursuant thereto).
(viii) No Registration. The offer and sale of the PRIDES in
the manner contemplated by this Agreement, the Security and Pledge
Agreement and the Securities, and any delivery of the shares of Xxxx
Xxxxx Common Stock upon the maturity of the PRIDES, in accordance with
the terms hereunder and under the Securities, and the unrestricted
resale of such shares of Xxxx Xxxxx Common Stock by the holder of the
PRIDES, will be exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"). Upon any transfer
of shares of Xxxx Xxxxx Common Stock to the Holder of the PRIDES who is
not an affiliate of Xxxx Xxxxx at maturity of the PRIDES, such shares
shall be free of any restrictive legend or other transfer restriction
or any lien, claim, charge or other encumbrance in favor of any third
party and may be
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freely resold by the holder of the PRIDES without registration under
the 1933 Act. Notwithstanding the foregoing, the Purchaser acknowledges
that (i) the shares of Xxxx Xxxxx Common Stock subject to the PRIDES
and the Security and Pledge Agreement currently bear a legend referring
to the restrictions imposed under Rule 145 of the 1933 Act ("Rule 145
Legend"), (ii) Xxxx Xxxxx has entered into a merger agreement with
Kroger (the "Merger Agreement") pursuant to which a wholly-owned
subsidiary of Kroger will merge into Xxxx Xxxxx, subject to the
conditions to closing contained therein (the "Merger"), and all of the
outstanding shares of Xxxx Xxxxx Common Stock will be converted by
virtue of the Merger into shares of Kroger Common Stock to be
registered on Form X-0 xxxxx xxx 0000 Xxx, (xxx) the shares of Xxxx
Xxxxx Common Stock subject to the PRIDES and the Security and Pledge
Agreement are subject to the terms and restrictions of, and must be
voted in accordance with, the Voting Agreement, a copy of which has
been provided to the Purchaser, (iv) the Company is an Affiliate of
Xxxx Xxxxx and therefore the Kroger Common Stock to be issued to the
Company in the Merger will bear a Rule 145 Legend, (v) unless the
Company has not been an affiliate of Xxxx Xxxxx or Kroger, as
applicable, during the three-month period prior to the Maturity Date,
Acceleration Date, Collateral Redemption Date, Major Transaction
Redemption Date, Redemption Date or Optional Redemption Date, the
Company will be unable on any such date to deliver Xxxx Xxxxx Common
Stock or Kroger Common Stock free of the Rule 145 Legend and (vi)
unless the Merger has become effective or the Merger Agreement has been
terminated prior to the Maturity Date, Acceleration Date, Collateral
Redemption Date, Major Transaction Redemption Date, Redemption Date or
Optional Redemption Date, the Company will be unable on any such date
to deliver Xxxx Xxxxx Common Stock free of the restrictions imposed by
the Voting Agreement. The Company covenants and agrees that, if the
Company is unable to deliver Xxxx Xxxxx Common Stock or Kroger Common
Stock free of (i) the Rule 145 Legend, the Company in lieu thereof will
deliver cash or will effect sales of the stock pursuant to Rule 145 in
accordance with the terms of the PRIDES and (ii) the restrictions
imposed by the Voting Agreement, the Company in lieu thereof will
deliver cash in accordance with the terms of the PRIDES.
(ix) Compliance with Security Covenants. As of the date
hereof the Company is, and as of the Closing Time the Company will be,
in full compliance with the Covenants contained in the PRIDES
Certificate.
(x) Investment Company Act of 1940. The Company is not an
"investment company," or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as
amended.
(xi) Xxxx Xxxxx Documents. To the Company's knowledge and
to the actual knowledge of Xx. Xxxxxx X. Xxxxxx, Xxxx Xxxxx'x Annual
Report on Form 10-K for the year ended January 31, 1998, Quarterly
Reports on Form 10-Q for the periods ended May 23, 1998, August 15,
1998 and November 7, 1998 and all Current Reports on Form 8-K filed
since January 31, 1998 (the "Xxxx Xxxxx 1934 Act Documents") and the
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information relating to Xxxx Xxxxx contained in the Registration
Statement on Form S-4 of Kroger as filed with the Securities and
Exchange Commission on November 6, 1998 (the "Form S-4"), as of their
respective dates, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Since the
respective dates as of which information is given in the Xxxx Xxxxx
1934 Act Documents or in the Form S-4, except as otherwise stated
therein, to the Company's knowledge and to the actual knowledge of Xx.
Xxxxxx X. Xxxxxx, there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of Xxxx Xxxxx and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business.
(xii) Use of Proceeds; No Debt. The proceeds received by
the Company upon the sale of the PRIDES will be reinvested in cash and
cash equivalents, consisting of treasury securities, short-term money
market instruments and the like, but not in any "security" as defined
in Section 3(10) of the Securities Exchange Act of 1934, as amended,
pending distribution of all or part of such proceeds to the Company's
members on a future date to be determined by the Company. The Company's
members, which consist of certain general and limited partnerships,
will in turn distribute any proceeds received by them from the Company
to their partners as a return of capital, less any amounts required to
be withheld for income tax purposes or to pay expenses of such
partnerships. The Company represents and warrants that substantially
all of the assets of all members of the Company other than FFL Partners
and The Yucaipa Companies consist of Xxxx Xxxxx Common Stock, and that
in excess of 65% of the assets of FFL Partners and The Yucaipa
Companies consist of Xxxx Xxxxx Common Stock and that neither the
Company nor any of its members have any outstanding Debt (as defined in
the PRIDES Certificate).
(b) Representations and Warranties by the Purchaser. The Purchaser
represents and warrants to the Company as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof that (i) it is a corporation
duly organized under the laws of the State of Delaware, (ii) this Agreement has
been duly authorized, executed and delivered by the Purchaser, and is the valid
and binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms and (iii) the Purchaser is a "Qualified Institutional
Buyer" as defined in Rule 144A promulgated under the 1933 Act and is acquiring
the PRIDES for its own account (and not for the account of others) for
investment and not with a view to, or for offer or sale in connection with, the
public distribution thereof.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Purchaser shall be
deemed a representation and warranty by the Company to the Purchaser as to the
matters covered thereby.
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Section 2. Sale and Delivery to Purchaser; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to the Purchaser, and the Purchaser agrees to purchase
from the Company, at the price per PRIDES set forth in SCHEDULE B, the
Securities.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Xxxxx & Wood
LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by the Purchaser and the Company, at 9:00 A.M. (Eastern
time) on January 6, 1999, or such other time not later than ten business days
after such date as shall be agreed upon by the Purchaser and the Company (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Purchaser of certificates for the Securities to be purchased by it.
(c) Denominations; Registration. Certificates for the Securities shall
be in such denominations and registered in such names as the Purchaser may
request in writing at least one full business day before the Closing Time. The
certificates for the Securities will be made available for examination and
packaging by the Purchaser in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time.
Section 3. Covenants.
(a) Purpose Statement. At or prior to Closing Time, the Company will
deliver to the Purchaser a duly executed purpose statement on Federal Reserve
Form T-4 of the Board of Governors of the Federal Reserve System.
(b) Compliance with Security Covenants. The Company will comply with
the Covenants contained in the PRIDES Certificate.
Section 4. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement and the Security and Pledge Agreement,
including (i) the preparation and delivery to the Purchaser of this Agreement,
the Security and Pledge Agreement, the Securities and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (ii) the preparation, issuance and delivery of the
certificates for the Securities to the Purchaser and (iii) the fees and
disbursements of the Company's counsel, accountants and other advisors.
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Section 5. Conditions.
(a) Conditions of Purchaser's Obligations. The obligations of the
Purchaser hereunder are subject to the accuracy of the representations and
warranties of the Company contained in Section 1(a) hereof and to the accuracy
of the statements in certificates of any manager of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(i) Opinion of Counsel for the Company. At Closing Time,
the Purchaser shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxx & Xxxxxxx, counsel for the Company, in form and
substance satisfactory to the Purchaser, to the effect set forth in
EXHIBIT A hereto. In giving such opinion, counsel may rely, as to all
matters governed by laws other than the law of the States of New York
or California, the General Corporation Law of the State of Delaware and
the federal law of the United States, upon the opinions of counsel
satisfactory to the Purchaser. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of public officials.
(ii) Opinion of Counsel for the Purchaser. At Closing Time,
the Purchaser shall have received the favorable opinion, dated as of
Closing Time, of Xxxxx & Xxxx LLP, counsel for Purchaser, in form and
substance satisfactory to the Purchaser. In giving such opinion,
counsel may rely, as to all matters governed by laws other than the law
of the State of New York, the General Corporation Law of the State of
Delaware and the federal law of the United States, upon the opinions of
counsel satisfactory to the Purchaser. Such counsel may also state
that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of public
officials.
(iii) Company Manager's Certificate. The Purchaser shall
have received a certificate of a Manager of the Company, dated as of
Closing Time, to the effect that (i) the representations and warranties
in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, and (ii) the
Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time,
and (iii) since the date of this Agreement, there has been no material
adverse change in the condition (financial or otherwise) of the
Company, nor any debt or other obligations incurred by the Company and
its subsidiaries other than those contemplated by this Agreement, the
Security and Pledge Agreement and the Securities.
(iv) Affiliate Agreements. The Purchaser shall have
received from the Company and Affiliates of the Company identified in
SCHEDULE C the agreement set forth in EXHIBIT B.
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(v) Delivery of Collateral. At Closing Time, the Company
shall have delivered the Collateral Amount under the Security and
Pledge Agreement.
(vi) Additional Documents. At Closing Time, counsel for the
Purchaser shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, contained herein; and all
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in
form and substance to the Purchaser and counsel for the Purchaser.
(b) Conditions of Company's Obligations. The obligations of the Company
hereunder are subject to the accuracy of the representations and warranties of
the Purchaser contained in Section 1(b) hereof.
(c) Termination of Agreement. If any condition specified in subsection
(a) of this Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Purchaser by notice to the
Company at any time at or prior to Closing Time and such termination shall be
without liability of any party to any other party except as provided in Section
4.
Section 6. Indemnification.
(a) Indemnification of the Purchaser by the Company. The Company agrees
to indemnify and hold harmless the Purchaser and each person, if any, who
controls the Purchaser within the meaning of Section 15 of the 1933 Act or
Section 20 of the Securities Exchange Act of 1934 (the "1934 Act") as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any breach by the
Company of any representation or warranty or failure to comply with any
covenant contained herein or in the PRIDES Certificates or any Event of
Default under the Securities or the Security and Pledge Agreement;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such breach or default
referred to under (i) above; provided that (subject to subsection (c)
below) any such settlement is effected with the written consent of the
Company; and
(iii) subject to subsection (b) below, against any and all
expense whatsoever, as incurred (including the fees and disbursements
of counsel chosen by the Purchaser), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or
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threatened, or any claim whatsoever based upon any such breach or
default referred to under (i) above, to the extent that any such
expense is not paid under (i) or (ii) above.
(b) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand commenced or asserted against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. Upon receipt of such notice, the
indemnifying party, severally or jointly with any other indemnifying parties
receiving such notice, shall retain counsel reasonably satisfactory to such
indemnified party to represent such indemnified party and any others the
indemnifying party may designate in respect of such suit, action, proceeding,
claim or demand. In respect of any such suit, action, proceeding, claim or
demand, an indemnified party shall have the right to retain its own counsel, but
the fees and disbursements of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying parties and such indemnified party
shall have mutually agreed to the contrary, (ii) the indemnifying parties have
failed within a reasonable time to retain counsel reasonably satisfactory to
such indemnified party or (iii) the named parties in any such suit, action or
proceeding (including any impleaded parties) include both indemnifying parties
and indemnified parties and representation of both parties by the same counsel
would in the opinion of counsel be inappropriate due to actual or potential
differing interests between them. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(c) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) and 6(b)(ii) effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to
10
14
the date of such settlement for all such fees and expenses of counsel, other
than such fees and expenses of counsel that are being contested in good faith by
an indemnifying party.
Section 7. Contribution.
If the indemnification provided for in Sections 6(a) and 6(c) hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then the Company and the Purchaser shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Purchaser on the other hand from the sale of the Securities
pursuant to this Agreement and the Security and Pledge Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Purchaser on the other hand in connection with the events which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
Notwithstanding the provisions of this Section 7(a), the Purchaser
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Securities purchased by it exceeds the amount of
any damages which the Purchaser have otherwise been required to pay by reason of
any such events.
The Company and the Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 7(a) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7(a). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7(a) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, the Security and Pledge Agreement or in certificates of managers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Purchaser or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Purchaser.
Section 9. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Company
shall be directed to it at GNHT 1, LLC, 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxx
Xxxxx, Xxx Xxxxxxx, XX 00000, fax: (000) 000-0000, attention: Xxxxxx Xxxxxxxxxx;
notices to the Purchaser shall be directed to them at Merrill
11
15
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, World Financial Center, Xxxxx Xxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Derivatives Group and
Equity Trading Counsel.
Section 10. Parties. This Agreement shall each inure to the benefit of
and be binding upon each of the Purchaser and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from the Purchaser shall be deemed to be a successor by
reason merely of such purchase.
Section 11. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF. SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
Section 12. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
12
16
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Purchaser and the Company in accordance with its terms.
Very truly yours,
GNHT 1, LLC
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Operating Manager
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ XXXXX XXXXXXX
----------------------------------
Authorized Signatory
13
17
SCHEDULE A
Owners of member's limited liability interests in the Company
The Yucaipa Companies
Yucaipa Arizona Partners, L.P.
Yucaipa Smitty's Partners, L.P.
Yucaipa Smitty's Partners II, L.P.
Yucaipa SSV Partners, L.P.
F4L Equity Partners, L.P.
FFL Partners
Sch A-1
18
SCHEDULE B
GNHT 1, LLC
PRIDES DUE FEBRUARY 28, 2002
1. The price of the Securities shall be $46.4813 per
PRIDES.
2. The "Initial Price" with respect to the Securities
shall be $55.50 per PRIDES.
3. The "Threshold Appreciation Price" with respect to
the Securities shall be $66.60 per PRIDES.
Sch B-1
19
SCHEDULE C
Affiliates of the Company
Xxxxxx X. Xxxxxx
GNHT 2, LLC
GNHT 3, LLC
GNHT 4, LLC
GNHT 5, LLC
THE YUCAIPA COMPANIES
YUCAIPA ARIZONA PARTNERS, L.P.
YUCAIPA SMITTY'S PARTNERS, L.P.
YUCAIPA SMITTY'S PARTNERS II, L.P.
YUCAIPA SSV PARTNERS, L.P.
F4L EQUITY PARTNERS, L.P.
FFL PARTNERS
Sch C-1
20
EXHIBIT A
[XXXXXX & XXXXXXX LETTERHEAD]
January 6, 1999
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: Purchase Agreements Related to the Issuance of
Provisionally Redeemable Income Debt Exchangeable for
Stock by each of XXXX 0, XXX, XXXX 0, LLC, XXXX 0,
XXX, XXXX 0, LLC and XXXX 0, LLC
Ladies and Gentlemen:
We have acted as special counsel to each of GNHT 1, LLC, a
Delaware limited liability company ("GNHT 1"), GNHT 2, LLC, a Delaware limited
liability company ("GNHT 2"), GNHT 3, LLC, a Delaware limited liability company
("GNHT 3"), GNHT 4, LLC, a Delaware limited liability company ("GNHT 4"), and
XXXX 0, LLC, a Delaware limited liability company ("GNHT 5" and, together with
XXXX 0, XXXX 0, XXXX 0 and GNHT 4, the "Companies" and each of XXXX 0, XXXX 0,
XXXX 0, XXXX 0 and GNHT 5 a "Company"), in connection with each Company's
issuance of Provisionally Redeemable Income Debt Exchangeable for Stock(SM)
("PRIDES") pursuant to those certain purchase agreements, dated as of January 5,
1999, between each Company and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Purchaser") (such agreements are, collectively, the "Purchase
Agreements" and each such agreement is, individually, a "Purchase Agreement").
This opinion is rendered to you pursuant to Section 5(a)(i) of
each of the Purchase Agreements. Capitalized terms defined in the Purchase
Agreements, used herein, and not otherwise defined herein shall have the
meanings given them in the Purchase Agreements.
__________________________
(SM) Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
Exh A-1
21
XXXXXX & XXXXXXX
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
January 6, 1999
Page 2
As such counsel, we have examined such matters of fact and
questions of law as we have considered appropriate for purposes of rendering the
opinions expressed below, except where a statement is qualified as to knowledge
or awareness, in which case we have made no or limited inquiry as specified
below. We have examined, among other things, the following:
(a) each Purchase Agreement;
(b) the form of PRIDES Certificate to be issued pursuant to each Purchase
Agreement;
(c) the Security and Pledge Agreement related to each of the PRIDES (the
"Security and Pledge Agreements");
(d) the Limited Liability Company Agreement of each of the Companies (the
"Limited Liability Company Agreements"); and
(e) the written agreements, if any, identified to us by representatives of
each of the Companies as material to the applicable Company (the
"Material Agreements").
In our examination, we have assumed the genuineness of all
signatures (other than those of representatives of the Companies on the
documents referred to in (a) through (e) above), the authenticity of all
documents submitted to us as originals, and the conformity to authentic original
documents of all documents submitted to us as copies.
We have been furnished with, and with your consent have relied
upon, certificates of representatives of each of the Companies with respect to
certain factual matters. In addition, we have obtained and relied upon such
certificates and assurances from public officials as we have deemed necessary.
We assume, without independent investigation, the accuracy of all factual
matters set forth in the representations and warranties of the Companies under
the Purchase Agreements.
We are opining herein as to the effect on the subject
transaction only of the federal laws of the United States, the internal laws of
the State of New York and the Delaware Limited Liability Company Act, and we
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or, in the case of Delaware, any
other laws, or as to any matters of municipal law or the laws of any other local
agencies within any
Exh A-2
22
XXXXXX & XXXXXXX
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
January 6, 1999
Page 3
state. Various issues concerning substantive non-consolidation are addressed in
a separate opinion that we are providing to you concurrently herewith.
Our opinions set forth in paragraph 5 below are based upon our
consideration of only those statutes, rules and regulations which, in our
experience, are normally applicable to transactions of the type contemplated by
the documents referred to in (a) through (d) above. Whenever a statement herein
is qualified by "to our knowledge" or a similar phrase, it is intended to
indicate that those attorneys in this firm who have rendered legal services to
the Companies and their affiliates do not have current actual knowledge of the
inaccuracy of such statement. However, except as otherwise expressly indicated,
we have not undertaken any independent investigation to determine the accuracy
of any such statement, and no inference that we have any knowledge of any
matters pertaining to such statement should be drawn from our representation of
the Companies.
Subject to the foregoing and the other matters set forth
herein, it is our opinion that, as of the date hereof:
1. Each of the Companies has been duly formed and is validly
existing as a limited liability company and in good standing under the laws of
the State of Delaware, with the requisite organizational power and authority to
enter into the Purchase Agreement, the PRIDES and the Security and Pledge
Agreement to which it is a party and to perform its obligations thereunder.
2. All of the limited liability company interests in each of
the Companies held by the members set forth in the applicable Limited Liability
Company Agreement have been duly authorized and validly issued and were issued
in conformity with the terms and conditions of such Limited Liability Company
Agreement.
3. Each Company's execution, delivery and performance of the
applicable Purchase Agreement, Security and Pledge Agreement and Securities
issued pursuant to such Purchase Agreement have been duly authorized by all
necessary organizational action of the applicable Company, and such Purchase
Agreement, Security and Pledge Agreement and Securities have been duly executed
and delivered by such Company.
4. Each Purchase Agreement, Security and Pledge Agreement and
Securities issued pursuant to such Purchase Agreement constitute legally valid
and binding obligations of the applicable Company, enforceable against such
Company in accordance with their respective terms.
5. Each Company's execution and delivery of the Purchase
Agreement, the Security and Pledge Agreement and the Securities issued pursuant
to such Purchase Agreement,
Exh A-3
23
XXXXXX & XXXXXXX
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
January 6, 1999
Page 4
and the performance of the obligations of such Company thereunder (including the
issuance and sale of the Securities and any delivery of the Xxxx Xxxxx, Inc.
Common Stock in accordance with the terms thereof and limitations referenced
therein) do not (i) violate any statute, rule or regulation applicable to such
Company, (ii) violate the provisions of such Company's Limited Liability Company
Agreement, (iii) result in the breach of or a default under any of the Material
Agreements to which such Company is a party, or (iv) require any consents,
approvals, authorizations, registrations, declarations or filings by such
Company under any statute, rule or regulation applicable to such Company. No
opinion is expressed in clauses (i) and (iv) of this paragraph 5 as to the
application of any antifraud laws or federal or state securities laws.
The opinions expressed in paragraphs 4 and 5 do not include
any opinions with respect to the perfection or priority of any security interest
or lien, or compliance with laws relating to permissible rates of interest. The
opinions expressed in paragraph 4 above are further subject to the following
limitations, qualifications and exceptions:
(a) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar
laws now or hereafter in effect relating to
or affecting the rights or remedies of
creditors;
(b) the effect of general principles of equity,
whether enforcement is considered in a
proceeding in equity or at law, and the
discretion of the court before which any
proceeding therefor may be brought;
(c) the unenforceability under certain
circumstances under law or court decisions
of provisions providing for the
indemnification of or contribution to a
party with respect to a liability where such
indemnification or contribution is contrary
to public policy; and
(d) the unenforceability of any provision
requiring payment of attorneys' fees except
to the extent that a court determines such
fees to be reasonable.
To the extent that the obligations of the Companies may be
dependent upon such matters, we assume for purposes of this opinion that: (i)
Purchaser is duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation; (ii) Purchaser has the requisite
corporate power and authority to execute and deliver the Purchase Agreements and
Security and Pledge Agreements and to perform its obligations thereunder; and
(iii) the Purchase Agreements and Security and Pledge Agreements have been duly
authorized, executed and delivered by Purchaser and constitute the legally valid
and binding obligations of Purchaser, enforceable against Purchaser in
accordance with their terms. We express no opinion as to compliance by any
parties to the Purchase Agreements or Security and Pledge Agreements with
Exh A-4
24
XXXXXX & XXXXXXX
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
January 6, 1999
Page 5
any state or federal laws or regulations applicable to the subject transactions
because of the nature of such party's business.
This opinion is rendered only to you and is solely for your
benefit in connection with the transactions covered hereby. This opinion may not
be relied upon by you for any other purpose, or furnished to, quoted to or
relied upon by any other person, firm or corporation for any purpose, without
our prior written consent.
Very truly yours,
/s/ XXXXXX & XXXXXXX
Exh A-5
25
EXHIBIT B
January 5, 1999
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Purchase of PRIDES due February 28, 2002 of XXXX 0, LLC
Dear Sirs:
The undersigned understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("MLPF&S") proposes to enter into a Purchase Agreement (the
"Purchase Agreement") with GNHT 1, LLC (the "Company") providing for the
purchase of PRIDES due February 28, 2002 of the Company (the "Securities"),
exchangeable for the common stock, par value $0.01 per share of Xxxx Xxxxx, Inc.
("Xxxx Xxxxx") (the "Common Stock"). In recognition of the benefit that such a
purchase will confer upon the undersigned, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned represents, warrants and agrees with MLPF&S as follows:
(a) during the period of 90 days prior to the date of the Purchase
Agreement, the undersigned has sold no shares of Common Stock, and during a
period of 90 days from the date of the Purchase Agreement, the undersigned will
not, without the prior written consent of MLPF&S, directly or indirectly, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of any Reference
Security (as defined in the Securities) or any securities convertible into or
exchangeable or exercisable for any Reference Security, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended ("xxx 0000 Xxx"), with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of any Reference Security,
whether any swap or transaction is to be settled by delivery of any Reference
Security or other securities, in cash or otherwise;
(b) during the 20 Trading Days immediately prior to, but not including,
the Second Trading Day preceding the Maturity Date, or any Redemption Date,
Major Transaction Redemption Date, Collateral Redemption Date, Redemption Date
or Optional Redemption Date, the undersigned will not buy any Reference
Security, or sell an amount of any Reference Security greater than the amount of
such Reference Security then constituting part of the Reference Property, other
than as expressly provided for by the terms of the PRIDES;
EXH B-1
26
(c) for a period from and after the occurrence of any event or
circumstances that with the giving of notice and/or passage of time would
constitute an Event of Default under the PRIDES through the 10th Trading Day (as
defined in the PRIDES) after the occurrence of an Event of Default under the
PRIDES, the undersigned will not take any action that would operate to limit the
ability of MLPF&S to sell any Reference Security constituting part of the
Collateral under the Security and Pledge Agreement pursuant to Rules 144 and 145
promulgated under the 1933 Act;
(d) the undersigned have not concealed and will not conceal the
issuance of the PRIDES and the transactions contemplated by the Purchase
Agreement and the Security and Pledge Agreement (the "Transactions") or their
separate identities from any creditor or other interested party. The undersigned
have not removed or concealed, and will not remove or conceal, from any creditor
or other interested party any assets of any other entity and have not
participated and will not participate in removing or concealing the assets of
any other entity. The undersigned did not and will not contribute any cash,
securities (including the Xxxx Xxxxx Common Stock) or other property or
consummate the Transactions with any intent to hinder, delay or defraud any
creditor of the undersigned and/or the Company or any other interested party;
(e) each of the undersigned has engaged and will engage in business
transactions with the Company only on terms and conditions that it believes are
at arm's-length and commercially reasonable;
(f) none of the undersigned was or will be insolvent at the time the
Transactions were or will be consummated, and none of the undersigned was or
will be rendered insolvent or will be insolvent as a result thereof. None of the
undersigned has engaged or will engage in any business or transaction with the
Company after which the property remaining with such Members was or will be
unreasonably small in relation to its business. At the time of any transfer to
or for the benefit of the Company, none of the undersigned intended or will
intend to incur, and did incur or will incur, debts that were beyond the ability
of such undersigned to pay as they mature;
(g) none of the undersigned is a debtor in a proceeding under the
federal bankruptcy laws;
(h) when any of the undersigned effected or will effect any conveyance,
transfer or obligation to or for the benefit of the Company in respect of the
Transactions, such undersigned received or will receive fair consideration and
reasonably equivalent value in exchange for such conveyance, transfer or
obligation. The Company received or will receive fair consideration and
reasonably equivalent value in exchange for any conveyance, transfer or
obligation to or for the benefit of any of the undersigned in respect of the
Transactions;
(i) none of the undersigned is controlled by, controls, or is under
common control with, the Independent Manager;
(j) there is no agreement between the undersigned and the Company that
supplements or otherwise modifies the agreements of the undersigned and the
Company; and
(k) each of the parties to this Agreement agrees (i) that it will not
take any action in violation of Paragraph 6.1.6 of the Limited Liability Company
Agreement of GNHT 1, LLC; (ii) that it will not allow, permit or encourage any
of its Affiliates to take any action in violation of Paragraph 6.1.6 of the
EXH B-2
27
Limited Liability Company Agreement of GNHT 1, LLC; and (iii) that it will not
encourage any person (x) to file an involuntary petition for relief under any
chapter of the federal bankruptcy laws against the Company or (y) to take any
other similar action against the Company under any other bankruptcy, insolvency
or receivership law, whether now in existence or hereafter in effect.
The undersigned agrees to deliver to MLPF&S the agreement of any
transferee of any Reference Security to be bound by the provisions of this
agreement.
_______________________________________
Xxxxxx X. Xxxxxx
THE YUCAIPA COMPANIES
By ___________________________________
Name:
Title:
YUCAIPA ARIZONA PARTNERS, L.P.
By ___________________________________
Name:
Title:
YUCAIPA SMITTY'S PARTNERS, L.P.
By ___________________________________
Name:
Title:
YUCAIPA SMITTY'S PARTNERS II, L.P.
By ___________________________________
Name:
Title:
YUCAIPA SSV PARTNERS, L.P.
By ___________________________________
Name:
Title:
EXH B-3
28
F4L EQUITY PARTNERS, L.P.
By ___________________________________
Name:
Title:
FFL PARTNERS
By ___________________________________
Name:
Title:
XXXX 0, LLC
By ___________________________________
Name:
Title:
XXXX 0, LLC
By ___________________________________
Name:
Title:
XXXX 0, LLC
By ___________________________________
Name:
Title:
XXXX 0, LLC
By ___________________________________
Name:
Title:
XXXX 0, LLC
By ___________________________________
Name:
Title:
EXH B-4