EXHIBIT 99.14
EXECUTION VERSION
WAIVER AND CONSENT
THIS WAIVER AND CONSENT ("Waiver and Consent"), dated as of July 19,
2002, is entered into by and among MOUNTAINGATE LAND, L.P., a California limited
partnership (the "Company"), ▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual ("▇▇▇▇▇ ▇▇▇▇▇"), THE
▇▇▇▇▇ ▇. ▇▇▇▇▇ TRUST dated March 5, 1998 (as amended, the "Price Trust") and
BANK OF AMERICA, N.A., a national banking association (the "Bank"), as successor
in interest to Bank of America National Trust and Savings Association.
W I T N E S S E T H:
WHEREAS, the Company and the Bank are parties to that certain Standing
Loan and Swap Commitment, dated as of October 7, 1996 (as amended, modified or
supplemented from time to time, the "Loan Agreement"), pursuant to which the
Bank loaned the Company $20,000,000 (the "Loan");
WHEREAS, in connection with the Loan Agreement, the Company executed a
first priority Deed of Trust with Assignment of Rents, Security Agreement and
Fixture Filing dated as of October 7, 1996 (the "First Mountaingate Deed")
covering the property commonly known as Mountaingate Country Club (the
"Property") in favor of Bank as security for the Loan;
WHEREAS, in connection with the Loan Agreement, ▇▇▇▇▇ ▇▇▇▇▇, and the
Price Trust, pledged an aggregate of 319,801 common units of National Golf
Operating Partnership, L.P., a California limited partnership, as collateral
(the "Currently Pledged Securities");
WHEREAS, American Golf Corporation, a California corporation ("AGC"),
is also indebted to the Bank pursuant to a Credit Agreement dated as of July 30,
1996 (as amended, modified or supplemented from time to time, the "Credit
Agreement"), pursuant to which the Bank has provided AGC with revolving credit
and standby letter of credit facilities;
WHEREAS, AGC and the purchasers party thereto (the "Purchasers") are
parties to that certain Note Purchase Agreement dated as of July 30, 1996 (as
amended, modified or supplemented from time to time, the "Note Purchase
Agreement"), pursuant to which AGC issued and the Purchasers purchased
$41,500,000 aggregate principal amount of 9.35% Senior Secured Notes due July 1,
2004, of which $30,374,031 is outstanding as of the date hereof;
WHEREAS, AGC, the Bank and the Purchasers are entering into a
Restructuring Agreement and Limited Waiver dated as of July 1, 2002 (the
"Restructuring Agreement") in order to restructure the indebtedness under the
Credit Agreement and the Note Purchase Agreement (the "Restructuring"). As a
condition precedent to the effectiveness of the Restructuring Agreement, the
Company is required to execute and deliver a second priority Deed of Trust with
Assignment of Rents, Security Agreement and Fixture Filing (the "Second
Mountaingate Deed") on the Property in favor of BNY Midwest Trust Company, as
collateral agent (the "Collateral Agent") for the benefit of the Bank and the
Noteholders (collectively, the "Creditors"). Pursuant to that certain Collateral
Agency and Intercreditor Agreement (the "AGC
Collateral Agency Agreement") by and among AGC, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ Golf,
Inc., Golf Enterprises, Inc., the Collateral Agent, the Bank and the Purchasers,
among other things, the Bank granted the Purchasers a limited option to purchase
the Loan upon the terms and subject to the conditions set forth in Section 32
thereof; and
WHEREAS, the Company has requested the Bank, in its capacity as lender
to the Company and holder of the First Mountaingate Deed to (i) waive any
restrictions set forth in the Loan Agreement and the First Mountaingate Deed
relating to the grant of the Second Mountaingate Deed, (ii) consent to and
approve of the Company's execution of the Second Mountaingate Deed in favor of
the Collateral Agent and (iii) consent to the release of the Currently Pledged
Securities as collateral under the Loan Agreement in order to allow them to
serve as collateral under the Restructuring Agreement in accordance with the
terms of (x) the Stock and Partnership Interest Pledge Agreement (the "Pledge
Agreement") among the Collateral Agent, ▇▇▇▇▇ ▇▇▇▇▇, and the Price Trust, and
(y) the AGC Collateral Agency Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
Section 1. Waiver and Consent.
(a) The Bank hereby (i) waives any restrictions set forth in the Loan
Agreement and the First Mountaingate Deed to the extent such restrictions would
prohibit the grant of the Second Mountaingate Deed, (ii) consents to and
approves of the Company's execution of the Second Mountaingate Deed in favor the
Collateral Agent and (iii) consents to the release of the Currently Pledged
Securities as collateral under the Loan Agreement in order to allow them to
serve as collateral under the Restructuring Agreement in accordance with the
terms of the Pledge Agreement.
(b) The Bank hereby waives any default or event of default arising out
of a material adverse change in the financial condition of ▇▇▇▇▇ ▇▇▇▇▇, the
Price Trust or Dallas P. Price, as an individual, the Dallas P. Price Trust or
Mountaingate as of the date hereof under Section 6.1(1) of the Loan Agreement.
(c) The Bank hereby acknowledges receipt of a litigation disclosure
letter dated July 8, 2002 and waives any default or event of default arising out
of any failure to provide such information prior to the date hereof pursuant to
Section 6.1(i) of the Loan Agreement.
(d) The Bank consents to any future sale by the Company of a
partnership or other equity interest in the Company, or the future pledge or
encumbrance by the Company of any interest or part in the Property, provided
that (i) the net proceeds of any such transaction are in an amount at least
equal to the value of the Alternate Mountaingate Collateral (as defined in the
AGC Collateral Agency Agreement), and (ii) such amount of the net proceeds are
immediately pledged or otherwise provided to the Collateral Agent as the
Alternate Mountaingate Collateral.
- 2 -
(e) The parties hereto acknowledge and agree that (i) the occurrence of
an Alternate Major Default (as defined in the AGC Collateral Agency Agreement)
shall constitute an event of default (a "Cross-Default") under the Loan
Agreement and the First Mountaingate Deed, provided that the Bank shall not be
entitled to foreclose upon any shares of securities pledged by Dallas P. Price
under the Loan Agreement until and unless an event of default other than a
Cross-Default shall have occurred under the First Mountaingate Deed; and (ii) a
cure of any such Alternate Major Default under the Second Mountaingate Deed
shall constitute a cure of any Cross-Default that resulted thereby.
(f) The Bank agrees that any failure to provide the Alternate
Collateral (as defined in the AGC Collateral Agency Agreement) shall not result
in a default or event of default under the First Mountaingate Deed.
(g) Upon any foreclosure of the Second Mountaingate Deed, the lease
between the Company and AGC in respect of the Property shall be terminated.
Section 2. Continuing Agreements. Except as waived hereby, all of the
terms of the Loan Agreement and the First Mountaingate Deed shall remain and
continue in full force and effect and are hereby confirmed in all respects.
Section 3. Governing Law. This Waiver and Consent shall be governed by
and construed in accordance with the laws of the State of California without
regard to any choice of law provisions therein set forth.
Section 4. Counterparts. This Waiver and Consent may be executed in one
or more counterparts each of which shall be deemed an original but all of which
shall constitute one and the same instrument. Delivery by telecopier of an
executed counterpart of a signature page to this Waiver and Consent shall be
effective as delivery of an originally executed counterpart of this Waiver and
Consent.
[SIGNATURE PAGE FOLLOWS]
- 3 -
IN WITNESS WHEREOF, the parties hereto have entered into this Waiver
and Consent as of the day and year first written above.
MOUNTAINGATE LAND, L.P.,
a California limited partnership
By: Mountaingate Land, Inc.,
a California corporation
Title: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
THE ▇▇▇▇▇ ▇. ▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trustee
BANK OF AMERICA, N.A.,
a national banking association
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
- 4 -