EXHIBIT 10.1
AMENDMENT NUMBER 1 TO THE
UNIT EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This AMENDMENT NUMBER 1 TO THE UNIT EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT ("AMENDMENT"), is entered into as of the 5th day of November 2002,
between American International Golf, Inc., a Delaware corporation ("NEWCO") and
National Golf Properties, Inc., a Maryland corporation ("NGP"), on the one hand,
and the AGC Noteholders (as defined herein) (the "PLEDGEE") and Bank of America,
N.A. ("BOFA") on the other hand.
WHEREAS, each of Newco, NGP, BofA and the Pledgee are parties to
that certain Unit Exchange and Registration Rights Agreement dated as of July
19, 2002 (the "REGISTRATION RIGHTS AGREEMENT");
WHEREAS, the parties hereto wish to amend the Registration Rights
Agreement as set forth below in connection with the Extension and Amendment
Agreement Relating to the Delivery of Alternate Collateral dated as of November
5, 2002 (the "EXTENSION AGREEMENT"); and
WHEREAS, the execution of this Amendment is a condition precedent to
the effectiveness of the Extension Agreement.
NOW THEREFORE, in consideration of the above premises and the mutual
covenants set forth hereafter and other good and valuable consideration, the
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENT
Article 1
Amendments
Section 1.01: The Registration Rights Agreement is hereby amended by
the deletion of the Recitals in their entirety and the insertion of the
following text in lieu thereof:
"WHEREAS, Xxxxx X. Xxxxx (individually) and the Xxxxx X. Xxxxx Trust
dated March 5, 1998 (as amended) (collectively "XXXXX XXXXX") own shares of
common stock, par value $.01 per share ("NGP COMMON STOCK") of NGP and common
limited partnership units ("UNITS") of National Golf Operating Partnership,
L.P., a Delaware limited partnership ("NGOP") and Dallas P. Price (individually)
and the Dallas P. Price Trust dated May 14, 1998 (as amended) (collectively
"DALLAS PRICE") own Units of NGOP;
WHEREAS, pursuant to the terms of the Third Amended and Restated
Partnership Agreement of NGOP dated as of July 28, 1999, by and among NGP as the
general partner of NGOP, and the limited partners listed on Exhibit A thereto
(as amended, the "NGOP AGREEMENT") each Unit is exchangeable (without payment of
any consideration) for one share of NGP Common Stock;
WHEREAS, in furtherance of inducing the holders of the 9.35% senior
secured notes due July 1, 2004 issued by AGC (the "AGC Noteholders") to enter
into that certain Extension and Amendment Relating to the Delivery of Alternate
Collateral dated as of November 5, 2002 (the "EXTENSION AGREEMENT"), pursuant to
the terms of that certain Collateral Agency and Intercreditor Agreement, dated
as of July 19, 2002, by and among Xxxxx Xxxxx, AGC, Mountaingate, Golf
Enterprises, Inc., Xxx Xxxxxxx Golf, Inc., the Secured Creditors, and BNY
Midwest Trust Company as the collateral agent, as amended by the Extension
Agreement (as amended, the "AGC COLLATERAL AGENCY AGREEMENT") (i) Xxxxx Xxxxx
has pledged for the benefit of Pledgee 354,938 shares of NGP Common Stock (the
"DGP PLEDGED STOCK") and 1,107,620 Units (the "DGP PLEDGED UNITS"), each
pursuant to that certain Amended and Restated Stock and Partnership Interest
Pledge Agreement, dated as of November 5, 2002 (the "DGP PLEDGE AGREEMENT") by
and among Xxxxx Xxxxx, Xxxxx X. Xxxxx Trust and BNY Midwest Trust Company as
collateral agent for the benefit of the Pledgee and (ii) Dallas Price has
pledged for the benefit of Pledgee 336,737 shares of NGP Common Stock (the "DPP
PLEDGED STOCK" and collectively with the DGP Pledged Stock, the "PLEDGED STOCK")
and 68,333 Units (the "DPP PLEDGED UNITS" and collectively with the DGP Pledged
Units the "PLEDGED UNITS") pursuant to that certain Stock and Partnership
Interest Pledge Agreement dated as of November 5, 2002 (the "DPP PLEDGE
AGREEMENT" and collectively with the DGP Pledge Agreement, the "PLEDGE
AGREEMENTS");
WHEREAS, in connection with the Extension Agreement, BofA received
cash collateral in lieu of NGP Common Stock and NGOP Units.
WHEREAS, Pledgee has requested that following an Event of Default
(as defined herein), Pledgee shall be entitled to immediately exchange the
Pledged Units for shares of NGP Common Stock consistent with the provisions of
the Pledge Agreements governing the rights of the Pledgee following an Event of
Default without regard to any of the limitations or restrictions on such
exchange that are set forth in the NGOP Agreement; and
WHEREAS, Pledgee has requested certain registration rights in
connection with the Pledged Stock and shares of NGP Common Stock issuable upon
exchange of Pledged Units and any conversion of the Pledged Stock and Pledged
Units pursuant to the consummation of the transactions pursuant to the Amended
and Restated Agreement and Plan of Merger and Reorganization by and among NGP,
NGOP, the Company, Xxxxx Xxxxx, Dallas P. Price, the Dallas P. Price Trust, the
AGC Contributors, the Transferred Entity Contributors (each as defined therein)
and American International Golf, Inc., dated as of September 14, 2002 and for so
long as the Pledge Agreements are still in effect and not otherwise terminated
by Pledgee.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:"
Section 1.02. The Registration Rights Agreement is hereby amended by
the deletion of the text "Pledge Agreement" and the insertion of the text
"Pledge Agreements" in lieu thereof in each place it appears.
Section 1.03. Section 1.02 of the Registration Rights Agreement is
hereby amended by the insertion of the following definition for "Dallas Price":
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""DALLAS PRICE" has the meaning set forth in the recitals."
Section 1.04. Section 1.02 of the Registration Rights Agreement is
hereby amended by the deletion of the definition "Pledgee" and the insertion of
the following text in lieu thereof:
""PLEDGEE" shall mean the AGC Noteholders."
Section 1.05. The definition of "Event of Default" in Section 1.02
of the Registration Rights Agreement is hereby amended by the deletion of the
text "October 15, 2002" and the insertion of the text "March 31, 2003" in lieu
thereof.
Section 1.06. The Registration Rights Agreement is hereby amended by
the deletion of Section 3.10 thereof and the replacement thereof in its entirety
by the following:
"3.10. Decisionmaking by Pledgee. The Required
Purchasers (as defined in the AGC Collateral Agency Agreement) shall have
the sole right to make decisions as Pledgee under this Agreement."
Section 1.07. The Registration Rights Agreement is hereby amended by
the deletion of Section 5.05 thereof in its entirety and the insertion of the
following in lieu thereof:
"This Agreement shall be binding upon and shall inure to the benefit
of and be enforceable by the parties and their respective successors and
assigns; provided that neither the rights nor the obligations of any party may
be assigned or delegated (by operation of law or otherwise) without the prior
written consent of the other parties, except that the Pledgee may transfer the
registration rights granted hereunder to its affiliates and the AGC Noteholders
may transfer the registration rights hereunder to any purchaser of the Purchaser
Indebtedness (as defined in the Restructuring Agreement)."
Article 2
Miscellaneous
Section 2.01. By executing this Amendment, BofA hereby acknowledges
that it shall no longer be a party to the Registration Rights Agreement and
shall have no rights, interests, obligations or liabilities thereunder, and all
references to "Pledgee" under the Registration Rights Agreement shall refer
solely to the AGC Noteholders. By executing this Amendment, NGP hereby confirms
that the waiver provided in Section 2.01 includes the DPP Pledged Units.
Section 2.02. This Amendment and all disputes hereunder shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware, without regard to any applicable conflicts of law provisions
thereof that may require the application of the laws of another jurisdiction
(except to the extent that mandatory provisions of the federal law apply).
Section 2.03. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one
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instrument. Each counterpart may consist of a number of copies each signed by
less than all, but together signed by all, the parties hereto.
Section 2.04. Except as contemplated in this Amendment, all of the
terms and provisions of the Registration Rights Agreement shall remain in full
force and effect and the same are hereby ratified and confirmed.
Section 2.05. If any provision of this Amendment shall be found
invalid, unenforceable or ineffective, such provision shall be invalid,
unenforceable or ineffective only to the extent required to render such
provision valid, enforceable or effective, without invalidating the remainder of
such provision or the remaining provisions hereof, including, without
limitation, any consent or amendment granted herein by the parties hereto.
(Signature page follows)
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IN WITNESS WHEREOF, the parties have duly executed this Amendment as
of the date first above written.
AMERICAN INTERNATIONAL GOLF, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Treasurer
NATIONAL GOLF PROPERTIES, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: CFO
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BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Via President
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Teachers Insurance and Annuity
Association of America
By: /s/ Roi X. Xxxxxx
-----------------------------------
Name: Roi X. Xxxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
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The Travelers Insurance Company
By: /s/ Xxxxxx Xxxxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
---------------------------------
Title: Investment Officer
--------------------------------
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Jefferson-Pilot Life Insurance
Company
By: /s/ Xxxxxx X. Xxxxxx XX
-----------------------------------
Name: Xxxxxx X. Xxxxxx XX
---------------------------------
Title: Vice President
--------------------------------
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National Life Insurance Company
By: /s/ R. Xxxxx Xxxxxxx
-----------------------------------
Name: R. Xxxxx Xxxxxxx
---------------------------------
Title: Vice President, NL Capital Management
--------------------------------------
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Life Insurance Company of the
Southwest
By: /s/ R. Xxxxx Xxxxxxx
-----------------------------------------
Name: R. Xxxxx Xxxxxxx
---------------------------------------
Title: Vice President, NL Capital Management
--------------------------------------
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AUSA Life Insurance Company, Inc.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
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Transamerica Life Insurance
Company
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
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