EXHIBIT 10.2
EXECUTION COPY
COLLATERAL ASSIGNMENT OF UNIT EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Collateral Assignment of Unit Exchange and Registration Rights
Agreement (this "Collateral Assignment") is dated as of November 8, 2002, by and
between Xxxxx X. Xxxxx, an individual ("DGP"), and The Xxxxx X. Xxxxx Trust
dated as of March 5, 1998 (as amended) (the "Trust", and collectively with DGP,
the "Assignor") and Masters Funding LLC (the "Assignee"). National Golf
Properties, Inc., a Maryland corporation ("NGP"), and American International
Golf, Inc., a Delaware corporation("Newco"), have executed this Collateral
Assignment solely for the purpose of consenting to the provisions of Paragraph 4
hereof.
RECITALS
A. Assignor has entered into a certain Credit Support Agreement,
dated as of the date hereof ("Credit Support Agreement"), among Assignor, as
Borrowers, Assignee, as Lender, and the Lender Guarantors (as defined therein),
pursuant to which Lender has agreed to provide Assignor certain credit support
thereunder. Capitalized terms used herein and not otherwise defined herein shall
have the meanings given them in the Credit Support Agreement.
B. As security for the obligations of Assignor under the Credit
Support Agreement and the Note, (i) Assignor has pledged to Lender 2,148,074
common limited partnership units of National Golf Operating Partnership, L.P.
("NGOP" and its common limited partnership units, "Units") currently owned by
Assignor (such partnership units, the "Price Pledged Securities"), pursuant to a
certain Partnership Interest Pledge Agreement, dated as of the date hereof (the
"Price Pledge Agreement"), among the Assignor and Assignee and (ii) The Dallas
P. Price Trust dated May 14, 1998 (as amended) (the "DPP Trust") has pledged to
Lender 594,930 Units currently owned by the DPP Trust (such partnership units,
together with the Price Pledged Securities, the "Pledged Securities"), pursuant
to a certain Partnership Interest Pledge Agreement, dated as of the date hereof,
between the DPP Trust and Assignee (such pledge agreement, together with the
Price Pledge Agreement, the "Pledge Agreements").
C. Pursuant to that certain Unit Exchange and Registration Rights
Agreement, dated as of July 22, 2002, between Newco and NGP, on the one hand,
and Assignor, on the other (the "Registration Rights Agreement"), Assignor was
given certain registration and exchange rights with respect to the Pledged
Securities.
D. In connection with the provision of such credit support, and to
afford to Lender Assignor's rights under the Registration Rights Agreement with
respect to the Pledged Securities in the event of a foreclosure on such Pledged
Securities, Lender has required that, all of Assignor's rights and remedies
under the Registration Rights Agreement be collaterally assigned to Assignee,
and Assignee desires to accept such collateral assignment of Assignor's rights
and remedies in the Registration Rights Agreement.
NOW, THEREFORE, in consideration of the recitals set forth above and
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be bound hereby, the parties hereto agree
as follows:
AGREEMENT
1. Grant of Security Interest. As security for the payment in full
of the Obligations (as defined in the Pledge Agreements), Assignor hereby
collaterally transfers, assigns, and grants a security interest to Assignee in
all of Assignor's rights and remedies under the Registration Rights Agreement,
and Assignee hereby accepts such collateral assignment.
2. Default Remedies of Assignee. Effective upon the
occurrence and during the continuance of an Event of Default, Assignor hereby
irrevocably authorizes and empowers Assignee to enforce Assignor's rights and
privileges under the Registration Rights Agreement.
3. Amendments of Registration Rights Agreement prior to Assignment
Date. Assignor represents and warrants that the Registration Rights Agreement in
the form attached as Exhibit A hereto is a true, complete copy of such agreement
as currently in effect, and that the Registration Rights Agreement has not been
amended since entered into. Assignor hereby agrees that it shall not amend,
assign or otherwise modify the Registration Rights Agreement in a manner which
would have an adverse effect on the rights and remedies of Assignor collaterally
assigned hereunder.
4. Article II of Registration Rights Agreement. NGP, in its capacity
as the general partner of NGOP, agrees that the waivers granted with respect to
the exchange of Units in Article II of the Registration Rights Agreement shall
apply to the Pledged Securities (including any additional Units issued in
respect thereof by way of dividend, split or in connection with a combination of
Units, recapitalization, merger, consolidation or other reorganization, or
otherwise (the "Additional Units")), and Assignee and its permitted assigns
under the Registration Rights Agreement may enforce and enjoy the benefits of
such waivers with respect to all the Pledged Securities (including the
Additional Units), whether such Units are owned by Assignor or the DPP Trust as
of the date hereof, in the event of and after foreclosure under the Pledge
Agreements on the Pledged Securities. NGP, in its capacity as the general
partner of NGOP, acknowledges that Assignee is a "Cash Collateral Lender" under
the Registration Rights Agreement and this Collateral Assignment.
5. Governing Laws. This Collateral Assignment, the legal relations
between the parties hereto and the adjudication and the enforcement thereof,
shall be governed by and interpreted and construed in accordance with the
substantive laws of the State of Delaware, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
6. Successors and Assigns. This Collateral Assignment shall inure to
the benefit of and be binding upon Assignor and Assignee and their respective
successors and permitted assigns. This Collateral Assignment may not be assigned
by either party without the prior written consent of the other party hereto.
7. Amendment, Waiver, and Termination. This Collateral
Assignment may not be amended, modified, waived or terminated except by a
writing signed by both the parties hereto.
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8. Continuing Security Interest. This Collateral Assignment shall
create a continuing security interest in the rights and remedies assigned in
Section 1 and shall remain in full force and effect until payment in full of the
obligations of Borrowers under the Credit Support Agreement and the Note.
9. Headings. The headings in this Collateral Assignment are
for the purpose of reference only and shall not limit or otherwise affect the
meaning thereof.
10. Entire Agreement. This Collateral Assignment, together
with the other Loan Documents is intended by the parties as a final
expression of their agreement and is intended as a complete and exclusive
statement of the terms and conditions thereof.
11. Multiple Counterparts. This Collateral Assignment may be
executed in one or more counterparts, each of which shall be deemed an
original and all of which, when taken together, shall be deemed to constitute
one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Collateral Assignment as of the date first above written.
XXXXX X. XXXXX, as an individual and as
trustee under the Xxxxx X. Xxxxx Trust
dated March 5, 1998 (as amended), as
Assignor
By: Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title:
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MASTERS FUNDING LLC, as Assignee
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Authorized Person
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NATIONAL GOLF PROPERTIES, INC., a
Maryland corporation and general partner
of National Golf Operating Partnership,
L.P.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: CFO
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AMERICAN INTERNATIONAL GOLF, INC., a
Delaware corporation
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Secretary and Treasurer
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