EXHIBIT 4
INTERCREDITOR AGREEMENT
-----------------------
This INTERCREDITOR AGREEMENT (this "Agreement"), dated July 30, 1996,
is made between BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"),
Nationsbank of Texas, N.A., ("NationsBank," BofA and NationsBank are sometimes
collectively to referred herein as the "Banks" and individually as a "Bank"),
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, TRUSTEE OF THE PRICE REVOCABLE
TRUST AMENDMENT IN ENTIRETY EXECUTED ON FEBRUARY 9, 1987 AS AMENDED
(collectively, the "Prices"), GOLF ENTERPRISES, INC., a Kansas corporation)
("GEI"), NATIONAL GOLF PROPERTIES, INC., a Maryland corporation ("NGP"), and
NATIONAL GOLF OPERATING PARTNERSHIP, L.P., a limited partnership organized under
the laws of the State of Delaware ("NGOP").
RECITALS:
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A. The Banks are extending, and may in the future extend, loans and
other financial accommodations to the Prices and/or GEI which may in certain
circumstances be secured by limited partnership interests in NGOP (the "NGOP
Units"). In connection therewith, certain put rights, exchange rights and other
rights relating to the sale, transfer or exchange of the NGOP Units, including
without limitation Put and Exchange rights (under and as defined in the
Partnership Agreement, as hereafter defined) have been pledged to the Banks or
may become otherwise exercisable by a Bank in connection with NGOP Units pledged
to a Bank (collectively, the "Rights" and individually, a "Right"). The term
Rights shall not include the sale of the NGOP units by a Bank that does not
involve the exercise of a Right.
B. BofA and NationsBank now desire to set forth in this Agreement
their relative rights and obligations with respect to the Rights.
AGREEMENT
---------
1. Capitalized terms used herein and not otherwise defined shall
have the respective meanings set forth in the Agreement of Limited Partnership,
dated as of August 18, 1993, as amended, supplemented or otherwise modified from
time to time, by and among NGP as General Partner and the persons named therein
as Limited Partners (the "Partnership Agreement").
2. (a) Neither Bank shall exercise any Right, make any demand on any
person, or request that another person exercise any Right, or take any action
with respect to any Right,
BOFA/NATIONSBANK INTERCREDITOR AGREEMENT
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including without limitation submitting any notice or demand to NGOP or any
other person, in its or any other person's name or on behalf of any other
person, directly, through a power of attorney or otherwise, without first giving
the other Bank at least 30 days notice of its intention to do so. The Bank
receiving such notice (the "Recipient Bank") shall have until 30 days after its
receipt of such notice to notify the Bank sending such notice (the "Sending
Bank") whether or not it also desires to exercise such Right(s).
(b) If the Recipient Bank indicates it desires to exercise such
Right(s) in response to such notice within such time period, the Banks shall
cooperate in exercising such Right(s) with a view towards exercising such Rights
for all NGOP Units pledged to both Banks. If, for whatever reason, such Rights
cannot be exercised for all pledged NGOP Units, the Banks further agree to
cooperate in exercising such Right(s) for the maximum amount of NGOP Units
pledged to both banks, pro rated on the basis of the respective number of NGOP
Units pledged to each Bank on the date hereof as set forth in Schedule I. Such
cooperation may take the form of acting jointly, separately, simultaneously, in
a coordinated fashion or otherwise, as the facts and circumstances may at such
time dictate. The Banks shall cooperate in exercising such Right(s) in a timely
fashion.
(c) If the Recipient Bank indicates it does not desire to exercise
such Right(s), or fails to respond to the Sending Bank within such 30-day
period, the Sending Bank shall be free to exercise the Right so notified without
any further duty or regard to other Bank.
(d) Notwithstanding any provisions to the contrary in either Bank's
pledge agreement, each Bank hereby consents to any of the Prices following the
instructions of the other Bank with respect to exercising Put and Exchange
rights with respect to NGOP Units pledged to such other Bank if such
instructions are given as permitted by the terms of this Agreement.
3. NationsBank acknowledges and agrees that it has no interest in or to
any of the currently issued and outstanding shares of stock of NGP pledged to
BofA. BofA acknowledges and agrees that it will have no interest in or to any
shares of stock of NGP that may be subsequently pledged or transferred to
NationsBank, whether as a result of exercising any Rights or otherwise.
4. Nothing contained in this Agreement shall be construed to give either
Bank the right to limit or otherwise interfere with the exercise by the other
Bank of any of its
BOFA/NATIONSBANK INTERCREDITOR AGREEMENT
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rights or remedies with respect to any other collateral held by such Bank,
including without limitation any shares of stock of NGP pledged or otherwise
transferred to such Bank and any NGOP Units (to the extent no Right is
exercised). Neither Bank shall be entitled to share in any proceeds of any of
the other Bank's collateral.
5. Each Bank consents to the other Bank, without notice or demand
and without affecting or impairing any party's obligations hereunder, from time
to time to (i) renew, compromise, extend, increase, accelerate or otherwise
change the time for payment of, or otherwise change any of the other terms of
any indebtedness owing to such Bank or any part thereof secured by the Rights or
any other collateral, including without limitation to increase or decrease the
rate of interest thereon; (ii) take and hold security for the payment of any
indebtedness and exchange, enforce, waive, release and fail to perfect any such
security; and (iii) apply such security and direct the order or manner of sale
thereof as any Bank in its sole discretion may determine.
6. Each Bank acknowledges and agrees that it shall have the sole
responsibility for obtaining from any borrowers such information concerning any
borrower's financial condition or business operations as such Bank may require,
and that neither Bank has any duty at any time to disclose to the other Bank any
information relating to the business operations or financial condition of any
borrower.
7. All notices and other communications provided for hereunder to be
effective shall be in writing and shall be delivered in person (by personal
delivery, delivery service or overnight courier service) with receipt
acknowledged, or telecopied and confirmed immediately in writing by a copy
mailed by registered or certified mail, return receipt requested, postage
prepaid, in each case to the addresses on the signature page of this Agreement,
or to such other addresses as the parties hereto may specify from time to time
in writing. Such notices shall be deemed given and received on the date so
delivered or mailed.
8. Each party hereto agrees to execute and deliver to any other
party any additional agreements reasonably deemed necessary by such party to
effect or confirm the agreement set forth herein.
9. This agreement shall be governed by the laws of the State of
California. The provisions of this Agreement are independent of and separable
from each other. If any provision of this Agreement shall for any reason be held
invalid or
BOFA/NATIONSBANK INTERCREDITOR AGREEMENT
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unenforceable, it is the intent of the parties that such invalidity or
unenforceability shall not affect the validity or enforceability of any other
provision hereof, and that this Agreement shall be construed as if such invalid
or unenforceable provision had never been contained herein.
10. This Agreement constitutes and expresses the entire understanding
between the Banks with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings, inducements or
conditions, whether express, implied, oral or written. This Agreement shall
extend to and be binding upon the successors and assigns of each of the parties
hereto.
11. Either Bank may transfer or assign in whole or in part any
interest it may have in the Rights and under this Agreement, provided the
transferee or assignee agrees in writing to be bound by the restrictions in this
Agreement as if a Bank party hereto.
12. Neither this Agreement nor any portion or provision hereof may be
changed, waived or amended orally or in any manner other than by an agreement in
writing signed by the Banks. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
BOFA/NATIONSBANK INTERCREDITOR AGREEMENT
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This Agreement is executed as of the date stated at the top of the first
page.
BANK OF AMERICA NATIONAL TRUST /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
AND SAVINGS ASSOCIATION ---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, TRUSTEE OF THE
PRICE REVOCABLE TRUST
AMENDMENT IN ENTIRETY EXECUTED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ON FEBRUARY 9, 1987 AS AMENDED
----------------------------
▇▇▇▇▇▇ ▇▇▇▇
Vice-President GOLF ENTERPRISES, INC.
Address where notices to BofA
are to be sent: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
c/o Century City Regional Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Commercial Banking Office Title: Vice President & Secretary
#1417
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ where notices to
Floor NationsBank are to be sent:
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
NATIONAL GOLF PROPERTIES, INC.
NATIONSBANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
By:____________________________ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: Title: Executive Vice President &
Title: Chief Financial Officer
NATIONAL GOLF OPERATING
PARTNERSHIP, L.P.
Address where notices to
NationsBank are to be sent:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- Title: Executive Vice President &
▇▇▇▇▇ ▇. ▇▇▇▇▇ Chief Financial Officer
Address where notices to NGP
and NGOP are to be sent:
/s/ Dallas P. Price
-------------------------------
DALLAS P. PRICE
BOFA/NATIONSBANK INTERCREDITOR AGREEMENT
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This Agreement is executed as of the date stated at the top of the
first page.
BANK OF AMERICA NATIONAL TRUST /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
AND SAVINGS ASSOCIATION ---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, TRUSTEE OF THE
PRICE REVOCABLE TRUST
AMENDMENT IN ENTIRETY EXECUTED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ON FEBRUARY 9, 1987 AS AMENDED
--------------------------
▇▇▇▇▇▇ ▇▇▇▇
Vice President GOLF ENTERPRISES, INC.
Address where notices to BofA
are to be sent: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
c/o Century City Regional Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Commercial Banking Office #1417 Title: Vice President & Secretary
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address where notices to
NationsBank are to be sent:
NATIONSBANK OF TEXAS, N.A. NATIONAL GOLF PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ----------------------------
-------------------------- Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ Title: Executive Vice President &
Title: Vice President Chief Financial Officer
Address where notices to NATIONAL GOLF OPERATING
NationsBank are to be sent: PARTNERSHIP, L.P.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ ----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ Dallas P. Price Title: Executive Vice President &
------------------------------ Chief Financial Officer
DALLAS P. PRICE
Address where notices to NGP
and NGOP are to be sent:
BOFA/NATIONSBANK INTERCREDITOR AGREEMENT
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Schedule I
Number of Units Pledged
Bank of America 1,034,600
NationsBank 1,547,389