OMNIBUS AGREEMENT; PUT-CALL OPTION AGREEMENT AMENDMENT;
LOAN COMMITMENT AND AGREEMENT TO GUARANTY
This AGREEMENT (the "AGREEMENT"), dated as of November 24, 2003, is
made by and among THE XXXXXXX MASTER LIMITED PARTNERSHIP, a Delaware limited
partnership (the "MASTER PARTNERSHIP"), NK-CR HOLDINGS LLC, a Delaware limited
liability company ("NK-CR"), HOLDINGS SUBSIDIARY LLC, a Delaware limited
liability company ("HOLDINGS"), and T-TWO PARTNERS, L.P., a Delaware limited
partnership ("T-TWO PARTNERS").
WHEREAS, NK-CR directly holds a 99.8% membership interest in Holdings
and indirectly, through its 100% ownership of NK-CR Corp., holds a .2%
membership interest in Holdings;
WHEREAS, (i) NK-CR is the sole limited partner of, and holder of 99% of
the economic interests in, T-Two Partners, and (ii) Holdings is the sole general
partner of, and holder of 1% of the economic interests in, T-Two Partners;
WHEREAS, T-Two Partners is the sole beneficial and record owner of the
Grantor Trust T-1 Certificate and the Grantor Trust T-2 Certificate (the "TRUST
CERTIFICATES") issued under the Second Amended and Restated Grantor Trust
Agreement, dated as of April 1, 1999, among NK-CR T1 Seller LLC, T-Two Partners,
Midland Loan Services, Inc., as servicer and LaSalle National Bank, as grantor
trust trustee, as amended by that certain Amendment No. 1 thereto, dated of even
date herewith (as amended, the "GRANTOR TRUST AGREEMENT"), which Trust
Certificates represents indirect interests in second mortgages made by those
partnerships listed on Schedule 1 hereto (the "CONTRACT RECEIVABLES");
WHEREAS, pursuant to that certain Put-Call Option Agreement (the
"PUT-CALL AGREEMENT"), dated as of January 1, 2002, among the Master
Partnership, NK-CR, and Holdings, the Master Partnership was granted a call
option and NK-CR and Holdings were granted a put option with respect to the
ownership interests in T-Two Partners;
WHEREAS, the Master Partnership, NK-CR and Holdings desire to amend the
Put-Call Agreement in various respects;
WHEREAS, the Master Partnership has requested that T-Two Partners
provide the Master Partnership with the Line of Credit (as defined below); and
WHEREAS, as consideration for amending the Put-Call Agreement and the
issuance of the Line of Credit, the Master Partnership has agreed to guaranty
the payment obligations of T-Two Partners under that certain Master Loan
Agreement (the "FLEET LOAN AGREEMENT"), dated as of the date hereof, by and
among the Master Partnership, T-Two Partner, the Lenders which are party
thereto, and Fleet National Bank, as agent for the Lenders ("Fleet");
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
AMENDMENT OF PUT-CALL AGREEMENT; GRANT OF CALL OPTION
Section 1.01 Amendment of Put-Call Agreement. The Master Partnership,
NK-CR and Holdings agree, effectively immediately, to amend the Put-Call
Agreement by terminating the Put Option provided therein, and by amending the
Call Option provided therein to conform to the remaining provisions of this
Article I such that the Put-Call Agreement shall be amended and restated in full
as provided for herein.
Section 1.02 Amended MLP Call Option. NK-CR, Holdings and T-Two
Partners hereby, jointly and severally, irrevocably grant to the Master
Partnership the right and option (the "MLP CALL OPTION"), exercisable by the
Master Partnership in the manner provided in Section 1.03 below, to acquire
either (i) from NK-CR and Holdings all of their respective partnership interests
in T-Two Partners (whether now owned or hereafter acquired, collectively, the
"OPTION INTERESTS") which comprise 100% of the beneficial ownership interest
therein, including, without limitation, the right of the Master Partnership
and/or its designee(s) to be substituted as sole general partner and sole
limited partner of T-Two Partners or (ii) from T-Two Partners, its ownership
interest in the Trust Certificates and all of its other assets.
Section 1.03 Method of Exercise of MLP Call Option. The Master
Partnership may exercise the MLP Call Option by giving prior written notice (the
"MLP CALL NOTICE") of such exercise to NK-CR, Holdings and T-Two Partners on any
date following the third anniversary hereof until the "MLP Call Option
Termination Date" (as hereinafter defined). Such notice shall set forth whether
the Master Partnership desires to acquire the Option Interests or the Trust
Certificates (hereinafter, the "CALL ASSET"), and the date on which the Master
Partnership intends to acquire the Call Asset, which date (the "MLP Call Option
Closing Date") shall be no earlier than 150 days and no later than 270 days
after the date of such notice. Any such exercise of the MLP Call Option shall be
effective, and the closing of the acquisition of the Call Asset upon such
exercise (the "MLP CALL OPTION CLOSING") shall occur on the MLP CALL OPTION
CLOSING DATE specified in such notice, which date can be after the MLP Call
Option Termination Date (as hereinafter defined) so long as the MLP Call Notice
is timely given. The MLP Call Option shall expire, without any further action by
the parties, on the sixth anniversary hereof (the "MLP Call Option Termination
Date"), and any MLP Call Notice delivered after that date shall be null and
void.
Section 1.04 Right to Exclude Other Partnerships Assets.
Notwithstanding anything herein to the contrary, if the Master Partnership
elects to exercise the MLP Call Option, NK-CR, Holdings and T-Two Partners shall
have the right, but not the obligation, to exclude from the Call Asset the
Contract Receivables listed on Schedule 2 hereto (the "EXCLUDED ASSETS"). If
NK-CR, Holdings and T-Two Partners elect to exclude from the Call Asset the
Excluded Assets, NK-CR, Holdings and T-Two Partners shall give written notice to
such effect to the Master Partnership no later than sixty (60) days prior to the
MLP Call Option Closing Date, which notice shall also specify the related
adjustment to the MLP Call Exercise Price
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pursuant to Section 1.06(b), and shall cause the Excluded Assets to be
transferred to NK-CR, Holdings or such other entity such that at the MLP Call
Option Closing Date, the Excluded Assets are not held by, or as part of, the
Call Asset.
Section 1.05 MLP Call Option Closing. The MLP Call Option Closing shall
be held at the offices of the Master Partnership, at 10:00 a.m. local time, on
the MLP Call Option Closing Date, or at such other place or at such other time
as the parties agree in writing. At the MLP Call Option Closing, (i) NK-CR and
Holdings or T-Two Partners, as the case may be, shall deliver to the Master
Partnership (x) an assignment of the Call Asset in a form and substance mutually
agreeable by the parties pursuant to which the Master Partnership shall acquire,
as applicable, all of the then outstanding limited and general partnership
interests in T-Two Partners or the Trust Certificates, and (y) all such other
documents and instruments as may be reasonably required by one or more of the
parties to effect the transaction contemplated thereby, and (ii) the Master
Partnership shall pay to NK-CR, Holdings or T-Two Partners the MLP Call Option
Exercise Price (as defined below) in immediately available funds; provided,
however, that T-Two Partners may direct the Master Partnership to pay up to the
entire amount of the MLP Call Option Exercise Price directly to Fleet (or to the
lender under any refinancing of the Fleet loan).
Section 1.06 MLP Call Option Exercise Price. (a) In consideration for
the transfer of the Call Asset to the Master Partnership pursuant to the Master
Partnership's exercise of the MLP Call Option, the Master Partnership shall pay
to NK-CR, Holdings or T-Two Partners, as applicable, on the MLP Call Option
Closing Date an amount (the "MLP CALL OPTION EXERCISE PRICE") equal to (subject
to adjustment as provided in Sections 1.06(b) and (c) hereof):
(i) the Initial Amount; plus
(ii) the sum of all expenses incurred by T-Two Partners in
connection with or pursuant to the terms of the Fleet Loan Agreement
(or any refinancings thereof) and, from and after the date hereof, the
Grantor Trust Agreement plus interest thereon at the Applicable Rate;
less
(iii) the principal amortization from the date hereof to (but
not including) the MLP Call Option Closing Date on a hypothetical loan
made on the date hereof subject to the following terms: (1) original
principal amount equal to the Initial Amount; (2) interest at the
Applicable Rate; and (3) payments made thereon equal to all actual
interest and principal payments made on account of the Contract
Receivables, including, without limitation, regular payments,
prepayments and casualty payments, other than the Contract Receivable
made by Xxxxxxx Sablemart L.P. assuming in the case of each such
payment that the payment is applied first to current interest (at the
Applicable Rate) on the hypothetical loan balance and then to principal
amortization.
(b) If NK-CR, Holdings or T-Two Partners elects to retain ownership of
the Excluded Assets, the MLP Call Option Exercise Price shall be reduced by an
amount equal to the minimum amount for which the Contract Receivables
represented by the Excluded Assets could be satisfied in full on the MLP Call
Option Closing Date pursuant to and in accordance with their existing terms.
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(c) If the Master Partnership elects to acquire all of the interests
in T-Two Partners in connection with its exercise of the MLP Call Option and the
Master Partnership agrees to assume the obligations, if any, of T-Two Partners
under the Applicable Loan, and the lender under any such Applicable Loan agrees
to permit such assumption and release all then existing guarantors of the
Applicable Loan from their guarantees, if any, the MLP Call Option Exercise
Price shall be reduced (but not below zero) by the outstanding amount due on the
Applicable Loan. If the Master Partnership elects to not assume the Applicable
Loan or the lender under the Applicable Loan does not permit the Master
Partnership to assume the Applicable Loan or release the existing guarantors of
the Applicable Loan from their obligations, then T-Two Partners shall cause such
Applicable Loan to be satisfied prior to or simultaneously with the MLP Call
Option Closing.
(d) As used herein, the following terms shall have the following
meanings:
(i) "Applicable Loan" shall mean any loan or loans payable by
T-Two Partners to a third party lender from time to time during the
term hereof secured by the assets of T-Two Partners, including, without
limitation, the loan made to T-Two Partners pursuant to the Fleet Loan
Agreement.
(ii) "Applicable Rate" means the net rate of interest from
time to time paid by T-Two Partners under any Applicable Loan based on
the actual out-of-pocket interest payments by T-Two Partners
thereunder, after taking into account all interest rate swap or hedge
agreements, if any. For example purposes only, if the principal amount
owed by T-Two on a Applicable Loan was $200,000,000 and the annual
interest payment due thereon was $15,000,000 (7.5%) but T-Two Partners
paid a fixed rate of 7% for the same period pursuant to an interest
rate swap or hedge agreement, then the Adjusted Applicable Rate for
such period would be 7%.
(iii) "Initial Amount" shall mean $316,526,572.73.
ARTICLE II.
LINE OF CREDIT
Section 2.01 Line of Credit T-Two Partners hereby grants to the Master
Partnership a line of credit (the "LINE OF CREDIT") on the terms and conditions
set forth in that certain Revolving Credit Agreement (the "REVOLVING CREDIT
AGREEMENT"), dated as of the date hereof, between T-Two Partners, as lender, and
the Master Partnership, as borrower, a copy of which is annexed hereto as
Exhibit A.
ARTICLE III.
GUARANTY
Section 3.01 Guaranty of T-Two Obligations. In consideration for
amending the Put-Call Agreement and issuing the Line of Credit, the Master
Partnership agrees to guaranty
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to Fleet the payment obligations of T-Two Partners under the Fleet Loan
Agreement pursuant to a Guaranty in the form annexed hereto as Exhibit B (the
"GUARANTY").
Section 3.02 Reimbursement Agreement. In consideration for the
Guaranty, the Master Partnership and T-Two Partners shall enter into a
Reimbursement Agreement, specifying the rights and obligations of the parties in
the event that the Master Partnership is required to make any payments on
account of the Guaranty, in the form annexed hereto as Exhibit C (the
"Reimbursement Agreement").
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF NK-CR, HOLDINGS AND T-TWO PARTNERS
Each of NK-CR, Holdings and T-Two Partners hereby represents and
warrants, jointly and severally, to the Master Partnership as follows:
Section 4.01 Organization, Good Standing and Qualification. Each of
NK-CR, Holdings and T-Two Partners is a limited liability company (in the case
of NK-CR and Holdings) or a limited partnership (in the case of T-Two Partners)
duly organized, validly existing and in good standing under the laws of the
State of Delaware and each has all requisite power and authority to carry on its
business as now conducted and as proposed to be conducted and to own or lease
all of the assets owned or leased by it. Each of NK-CR, Holdings and T-Two
Partners is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on its respective assets or businesses.
Section 4.02 Organizational Documents; Ownership of T-Two Partners.
NK-CR, Holdings and T-Two Partners have provided to the Master Partnership true
and complete copies of the Certificate of Limited Partnership and Limited
Partnership Agreement of T-Two Partners as currently in effect. NK-CR is the
record and beneficial owner of a 99% interest in T-Two Partners, and Holdings is
the record and beneficial owner of a 1% interest in T-Two Partners, and T-Two
Partners is the record and beneficial owner of a 100% interest in the Trust
Certificates, in each case, free and clear of all liens other than the liens
granted to (i) Fleet under an Ownership Pledge and Security Agreement, dated of
even date herewith, by NK-CR in favor of Fleet, (ii) Fleet under an Ownership
Pledge and Security Agreement, dated of even date herewith, Holdings in favor of
Fleet, and (iii) Fleet under a Security Agreement, dated of even date herewith,
and a Collateral Assignment, dated of even date herewith, each by T-Two Partners
in favor of Fleet. NK-CR is the sole limited partner of T-Two Partners and
Holdings is the sole general partner of T-Two Partners.
Section 4.03 Options or Other Rights. There is no outstanding right,
subscription, warrant, call, unsatisfied preemptive right, option or other
agreement of any kind to purchase or otherwise to receive from T-Two Partners or
from NK-CR or Holdings any voting or economic interests in T-Two Partners or any
interest in the Trust Certificates, except for this Agreement.
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Section 4.04 No Other Business or Assets. The sole business activity of
T-Two Partners is to act as an investment vehicle to own the Trust Certificates.
T-Two Partners does not conduct any other business activity and does not own or
have any beneficial interest in any asset other than the Trust Certificates.
T-Two Partners has no employees.
Section 4.05 Authority; Enforceability. Each of NK-CR, Holdings and
T-Two Partners has full power and authority to enter into this Agreement and all
of the other documents contemplated hereby and to consummate the transactions
contemplated hereby, including, without limitation, the ability to transfer the
Call Asset to the Master Partnership. The execution, delivery and performance by
each of NK-CR, Holdings and T-Two Partners of this Agreement and all of the
other documents contemplated hereby have been duly authorized by all requisite
company or partnership action. This Agreement has been duly executed and
delivered by each of NK-CR, Holdings and T-Two Partners and constitutes a valid
and binding obligation of each of NK-CR, Holdings and T-Two Partners,
enforceable against each of them in accordance with its terms.
Section 4.06 No Violation; Consents. Neither NK-CR, Holdings nor T-Two
Partners is subject to or bound by any portion of:
(i) any law, statute, rule, regulation or judicial or
administrative decisions,
(ii) any certificate of limited partnership, certificate of
formation, limited liability company agreement or limited
partnership agreement,
(iii) any mortgage, deed of trust, lease, note, bond, indenture,
other instrument or agreement, license, permit, trust,
custodianship or other restriction, or
(iv) any judgment, order, writ, injunction or decree,
that would prevent or be violated by or that would result in the creation of any
Lien as a result of, or under which there would be a default or right of
termination as a result of, the execution, delivery and performance by either
NK-CR, Holdings or T-Two Partners of this Agreement or the consummation of the
transactions contemplated hereby. No consent, approval or authorization of or
declaration or filing with any person or entity or any governmental or
regulatory body is required for the valid execution, delivery and performance by
NK-CR, Holdings or T-Two Partners of this Agreement or the consummation of the
transactions contemplated hereby.
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE MASTER PARTNERSHIP
The Master Partnership represents and warrants to NK-CR, Holdings and
T-Two Partners as follows:
Section 5.01 Organization, Good Standing and Qualification. The Master
Partnership is a limited partnership duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
limited partnership power and authority to carry on its business as now
conducted and as proposed to be conducted and to own or lease all of the assets
owned or leased by it. The Master Partnership is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure to so
qualify would have a material adverse effect on its assets or business.
Section 5.02 Organizational Documents. The Master Partnership has
provided NK-CR, Holdings and T-Two Partners true and complete copies of the
Certificate of Limited Partnership and the Limited Partnership Agreement of the
Master Partnership as currently in effect.
Section 5.03 Authority; Enforceability. The Master Partnership has full
limited partnership power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by the Master Partnership of this Agreement and all of the other
documents contemplated hereby has been duly authorized by all requisite limited
partnership action. This Agreement has been duly executed and delivered by the
Master Partnership and constitutes a valid and binding obligation of the Master
Partnership, enforceable against it in accordance with its terms.
Section 5.04 No Violation; Consents. The Master Partnership is not
subject to or bound by any provision of:
(i) any law, statute, rule, regulation or judicial or
administrative decision,
(ii) any certificate of limited partnership or limited partnership
agreement,
(iii) any mortgage, deed of trust, lease, note, bond, indenture,
other instrument or agreement, license, permit, trust,
custodianship or other restriction, or
(iv) any judgment, order, writ, injunction or decree,
that would prevent or be violated by or that would result in the creation of any
Lien as a result of, or under which there would be a default or right of
termination as a result of, the execution, delivery and performance by the
Master Partnership of this Agreement or the consummation of the transactions
contemplated hereby. No consent, approval or authorization of or declaration or
filing with any person or entity or any governmental or regulatory body is
required for the valid
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execution, delivery and performance by the Master Partnership of this Agreement
or the consummation of the transactions contemplated hereby.
ARTICLE VI.
COVENANTS OF NK-CR, HOLDINGS AND T-TWO PARTNERS
Section 6.01 Fulfillment of Conditions. NK-CR, Holdings and T-Two
Partners shall cause (i) all of the representations and warranties of NK-CR,
Holdings and T-Two Partners contained in Article IV hereof to be true and
correct at and as of the time of the MLP Call Option Closing as though such
representations and warranties were made at and as of such time (except as
otherwise set forth in the proviso contained in Section 8.01) and (ii) all of
the conditions to the Master Partnership's obligations set forth in Article VIII
of this Agreement to be fulfilled; provided, however, that neither NK-CR,
Holdings nor T-Two Partners shall be deemed to be in breach of this Section 6.01
for failing to cause any such representation or warranty to be true and correct
at and as of the time of the MLP Call Option Closing or for any such condition
to be so fulfilled if to do so would violate applicable law.
ARTICLE VII.
COVENANTS OF THE MASTER PARTNERSHIP
Section 7.01 Fulfillment of Conditions. The Master Partnership shall
cause (i) all of its representations and warranties contained in Article V
hereof to be true and correct at and as of the time of the MLP Call Option
Closing as though such representations and warranties were made at and as of
such time and (ii) all of the conditions to NK-CR's, Holdings' and T-Two
Partner's obligations set forth in Article IX of this Agreement to be fulfilled;
provided, however, that the Master Partnership shall not be deemed to be in
breach of this Section 7.01 for failing to cause any such representation or
warranty to be true and correct at and as of the time of the Closing or for any
such condition to be so fulfilled if to do so would violate applicable law.
ARTICLE VIII.
CONDITIONS TO THE MASTER PARTNERSHIP'S OBLIGATIONS
All obligations of the Master Partnership under this Agreement to
effect the MLP Call Option Closing are subject to the fulfillment of each of the
following conditions, any or all of which may be waived in whole or in part by
the Master Partnership in its sole discretion:
Section 8.01 Representations and Warranties True at the Closing Date.
The representations and warranties of NK-CR, Holdings and T-Two Partners
contained in Article IV hereof shall be true in all respects at and as of the
time of the Closing as though such representations and warranties were made at
and as of such time; provided, however, that (i) unless the Master Partnership
is assuming the Applicable Loan, the Call Asset shall be free and clear of all
liens and (ii) the assets of T-Two Partners at the time of the Closing may
consist of
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the Trust Certificates, cash and properties foreclosed on by the Grantor Trust
or T-Two Partners which had previously secured any Contract Receivables.
Section 8.02 NK-CR's, Holdings' and T-Two Partners' Performance. NK-CR,
Holdings and T-Two Partners shall have performed and complied with all covenants
and agreements on their part required by this Agreement to be performed or
complied with by them prior to or at the time of the Closing.
Section 8.03 Certificates. The Master Partnership shall have received
(1) a certificate of the managing member of each of NK-CR and Holdings and a
certificate of the general partner of T-Two Partners, dated as of the date of
the MLP Call Option Closing, certifying to the fulfillment on the part of NK-CR,
Holdings and T-Two Partners of the conditions specified in Sections 8.01 and
8.02 and (2) a certificate of the managing member of each of NK-CR and Holdings
and a certificate of the general partner of T-Two Partners, dated as of the date
of the MLP Call Option Closing, setting forth the resolutions approving this
Agreement and all other documents required hereby and authorizing the
transactions contemplated hereby.
Section 8.04 Removal of Restrictions. NK-CR, Holdings and T-Two
Partners shall have caused the termination or elimination of all prohibitions,
restrictions or limitations contained in any agreement to which either is a
party which prohibits or adversely affects either the transferability of the
Option Interests or the Trust Certificates or the ability of NK-CR, Holdings or
T-Two Partners to effect the MLP Call Option Closing.
ARTICLE IX.
CONDITIONS TO NK-CR'S, HOLDINGS' AND T-TWO PARTNERS' OBLIGATIONS
All obligations of NK-CR, Holdings and T-Two Partners under this
Agreement to effect the MLP Call Option Closing are subject to the fulfillment
of each of the following conditions, any or all of which may be waived in whole
or in part by NK-CR, Holdings and T-Two Partners in their sole discretion:
Section 9.01 The Master Partnership's Performance. The Master
Partnership shall have performed and complied with all covenants and agreements
on its part required by this Agreement to be performed or complied with by them
prior to or at the time of the MLP Call Option Closing.
Section 9.02 Certificates. NK-CR, Holdings and T-Two Partners shall
have received (1) a certificate of the general partner of the Master
Partnership, dated as of the date of the MLP Call Option Closing, certifying to
the fulfillment of the conditions specified in Section 9.01, and (2) a
certificate of the general partner of the Master Partnership, dated as of the
date of the MLP Call Option Closing, setting forth the resolutions approving
this Agreement and all other documents required hereby and authorizing the
transactions contemplated hereby.
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Section 9.03 Satisfaction of Amounts Due under the Line of Credit. The
Master Partnership shall have satisfied on or before the MLP Option Closing Date
all amounts outstanding under the Line of Credit.
Section 9.04 Guaranty in Effect. The Guaranty shall not have been
terminated by the Master Partnership (unless Fleet and T-Two Partners shall have
consented thereto).
ARTICLE X.
RESTRICTED SECURITIES
Section 10.01 Call Assets. The Master Partnership acknowledges and
agrees that:
(a) the offer and sale of the Call Asset to be acquired by the
Master Partnership hereunder upon exercise of the MLP Call Option have
not been registered under the United States Securities Act of 1933, as
amended, or the securities laws of any other jurisdiction;
(b) the Call Asset will be acquired by the Master Partnership
for its own account and not on behalf of any other person or entity in
a manner that would violate, or cause the violation of, the securities
laws of any jurisdiction;
(c) the Call Asset will be acquired solely for investment and
without any present view to, or for sale in connection with, any
distribution thereof to any other person or entity; and
(d) the Master Partnership has knowledge and experience in
financial and business matters and is capable of evaluating the merits
and risks of its acquisition of the Call Asset.
ARTICLE XI.
TERMINATION
This Agreement and the transactions contemplated hereby may be
terminated at any time prior to the Closing by prompt notice given in accordance
with the terms of Section 12.11 hereof:
(a) by the unanimous written consent of NK-CR, Holdings, T-Two
Partners and the Master Partnership; or
(b) by any of such parties if the MLP Call Option Closing
shall not have occurred on or before June 30, 2009; provided, however,
that the right to terminate this Agreement under this paragraph (b)
shall not be available to any party whose failure to fulfill any
material obligation under this Agreement has been the cause of or
resulted in the failure of the MLP Call Option Closing to occur on or
prior to the aforesaid date.
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ARTICLE XII.
MISCELLANEOUS
Section 12.01 No Other Relationship; No Alteration of Contracts
Receivables. This Agreement shall not constitute any party as the legal
representative or agent of any other, nor shall any party have the right or
authority to assume, create or incur any liability or obligation, express or
implied, in the name of, or on behalf of, any other party. This Agreement is not
intended to create and shall not be construed to create, a relationship of
partnership, joint venture or association for profit between any of the parties.
This Agreement is not in any way intended to alter, and shall not be construed
to alter, the terms of the Contract Receivables, which shall remain in full
force and effect.
Section 12.02 Expenses. Each of the parties hereto shall bear its own
expenses associated with the negotiation and execution of the Agreement and the
consummation of the transactions contemplated hereby including, without
limitation, legal and accounting fees and expenses.
Section 12.03 Amendments; Waivers. The provisions of this Agreement may
be amended and each of the parties may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only if each of
the other parties has consented in writing to such amendment, action or
omission. No such consent with respect to any such action or omission shall
operate as a consent to, waiver of, or estoppel with respect to, any other or
subsequent action or omission. No failure to exercise and no delay in exercising
any right, remedy or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy or power hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy or power provided herein or by law or at equity.
Section 12.04 Survival of Representations and Warranties. Regardless of
any examinations, inspections or investigations which the parties or their
authorized representatives shall have made prior to or on the date of this
Agreement or prior to or on the date of the MLP Call Option Closing Date, the
representations, warranties and covenants set forth in this Agreement shall
survive the exercise of the MLP Call Option for the period of the applicable
statue of limitations.
Section 12.05 No Assignment; Successors and Assigns. No party shall
assign any of its rights or obligations under this Agreement without prior
written consent of each of the other parties hereto, except that the parties
hereto may assign their respective rights under this Agreement to Fleet as
security for their respective obligations under the Fleet Loan Agreement and the
documents entered into in connection therewith. All agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and permitted assigns of the parties
hereto.
Section 12.06 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law,
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such provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
Section 12.07 Descriptive Headings and Construction. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement. Unless otherwise indicated, references to
Articles and Sections herein are references to Articles and Sections of this
Agreement.
Section 12.08 Governing Law. This Agreement and the rights and duties
of the parties to this Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflicts of law principles.
Section 12.09 Arbitration. Any dispute arising out of, or relating to,
this Agreement or the breach thereof, or regarding the interpretation thereof,
shall be finally settled by arbitration conducted in New York City in accordance
with the rules of the American Arbitration Association then in effect before a
single arbitrator appointed in accordance with such rules. Judgment upon any
award rendered therein may be entered in any court having jurisdiction and
enforcement may be obtained thereon in any such court. The arbitrator shall have
authority to grant any form of appropriate relief, whether legal or equitable in
nature, including specific performance. For the purpose of any judicial
proceeding to enforce such award or incidental to such arbitration or to compel
arbitration, the parties hereby submit to the non-exclusive jurisdiction of the
Supreme Court of the State of New York, New York County, or the United States
District Court for the Southern District of New York, and agree that service of
process in such arbitration or court proceedings shall be satisfactorily made
upon it if sent by registered mail addressed to it at the address referred to in
Section 11.11.
Section 12.10 Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER.
Section 12.11 Notices. Any notice pursuant to the terms and conditions
of this Agreement shall be in writing and either (a) delivered personally; (b)
sent by certified mail, return receipt requested; (c) sent by a recognized
overnight mail or courier service with delivery receipt required; or (d) sent by
facsimile transfer and acknowledged by recipient, and will be deemed to have
been given when received by the party to whom addressed. Notices shall be
directed as follows:
If to the Master Partnership: The Xxxxxxx Master Limited Partnership
0 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
12
If to NK-CR, Holdings or T-Two Partners: NK-CR Holdings LLC
Holdings Subsidiary LLC
T-Two Partners, L.P.
0 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Any party may change its address or the person to notify by a notice delivered
in accordance with this Section 12.11.
Section 12.12 Costs of Enforcement. In any action brought to enforce
any right of any party to this Agreement, the prevailing party shall be entitled
to recover all of its reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees).
Section 12.13 Entire Agreement. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, written or oral, among the
parties with respect thereto.
Section 12.14 Counterparts. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts taken together shall constitute one and the
same instrument.
13
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
THE XXXXXXX MASTER LIMITED PARTNERSHIP
By: MLP GP LLC,
its general partner
By: Xxxxxxx MLP Corp.,
its manager
By:
---------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
NK-CR HOLDINGS LLC
By: Xxxxxxx Manager Corp.,
its manager
By:
------------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
HOLDINGS SUBSIDIARY LLC
By: Xxxxxxx Manager Corp.,
its manager
By:
------------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
T-TWO PARTNERS, L.P.
By: Holdings Subsidiary LLC,
its general partner
By: Xxxxxxx Manager Corp.,
its manager
By:
---------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
14
Schedule 1
CONTRACT RECEIVABLES
Autolane Associates Limited Partnership
Caroldale Associates Limited Partnership
Cenland Associates Limited Partnership
Eastgar Associates Limited Partnership
Gamma Associates Limited Partnership
Gocar Associates Limited Partnership
Harpard Associates Limited Partnership
Jayal Associates Limited Partnership
Xxxxxxx 21AT X.X.
Xxxxxxx Alake X.X.
Xxxxxxx Albeau X.X.
Xxxxxxx Allia X.X.
Xxxxxxx Altenn X.X.
Xxxxxxx Xxxxxx X.X.
Xxxxxxx Ateb X.X.
Xxxxxxx Avrem X.X.
Xxxxxxx Basot X.X.
Xxxxxxx Bedcar X.X.
Xxxxxxx Bethplain X.X.
Xxxxxxx Bluff X.X.
Xxxxxxx Boford X.X.
Xxxxxxx Calane L.P.
Xxxxxxx Xxxxxxx X.X.
Xxxxxxx Carolion X.X.
Xxxxxxx Clifmar X.X.
Xxxxxxx Colane X.X.
Xxxxxxx Dautec X.X.
Xxxxxxx Daytower X.X.
Xxxxxxx Denport X.X.
Xxxxxxx Elport X.X.
Xxxxxxx Flamont X.X.
Xxxxxxx Gersant X.X.
Xxxxxxx Hazelport X.X.
Xxxxxxx Xxxxxxx Street X.X.
Xxxxxxx Jaclane X.X.
Xxxxxxx Jacway X.X.
Xxxxxxx Jameslane X.X.
Xxxxxxx JLE Way X.X.
Xxxxxxx Johab X.X.
Xxxxxxx JVF X.X.
Xxxxxxx Larloosa X.X.
Xxxxxxx Leyden L.P.
15
Xxxxxxx Liroc X.X.
Xxxxxxx Lybster X.X.
Xxxxxxx Martall X.X.
Xxxxxxx Merday X.X.
Xxxxxxx Mesa X.X.
Xxxxxxx Midlem X.X.
Xxxxxxx Montal X.X.
Xxxxxxx Nevit X.X.
Xxxxxxx Newal X.X.
Xxxxxxx Orper X.X.
Xxxxxxx Pinmar X.X.
Xxxxxxx Pinole X.X.
Xxxxxxx Plecar X.X.
Xxxxxxx Porto X.X.
Xxxxxxx Renlake X.X.
Xxxxxxx Salistown X.X.
Xxxxxxx Sandnord X.X.
Xxxxxxx Xxxxxxx X.X.
Xxxxxxx Silward X.X.
Xxxxxxx Simval X.X.
Xxxxxxx Skoob X.X.
Xxxxxxx Spokmont X.X.
Xxxxxxx Sunway X.X.
Xxxxxxx Supergar X.X.
Xxxxxxx Superline X.X.
Xxxxxxx Superwest X.X.
Xxxxxxx Suteret X.X.
Xxxxxxx Texford X.X.
Xxxxxxx Vegpow X.X.
Xxxxxxx Vegrouge X.X.
Xxxxxxx Vengar X.X.
Xxxxxxx Washtex X.X.
Xxxxxxx Wybanco L.P.
Renex Associates Limited Partnership
Xxxxx Associates Limited Partnership
16
Schedule 2
EXCLUDED ASSETS
Autolane Associates Limited Partnership
Caroldale Associates Limited Partnership
Cenland Associates Limited Partnership
Eastgar Associates Limited Partnership
Gamma Associates Limited Partnership
Gocar Associates Limited Partnership
Harpard Associates Limited Partnership
Jayal Associates Limited Partnership
Renex Associates Limited Partnership
Xxxxx Associates Limited Partnership
17
Exhibit A
REVOLVING CREDIT AGREEMENT
18
Exhibit B
GUARANTY
19
Exhibit C
REIMBURSEMENT AGREEMENT
20
