Exhibit 10.52
RELEASE, WAIVER AND CONSENT
AGREEMENT
This Release, Consent and Waiver
Agreement (this “ Agreement ”) is dated as of
November 30, 2006 (the “ Effective Date ”), by
and among EQUITYCO, L.L.C., a Nevada limited liability company
(“ EquityCo ”), MEZZCO, L.L.C., a Nevada limited
liability company (the “ Company ”),
OPBIZ, L.L.C., a Nevada limited liability company (the “
Subsidiary Guarantor ”) the noteholders a party to
this Agreement (the “ Purchasers ”), the
warrantholders party to this Agreement (the “
Warrantholders ”, and together with the Purchasers,
the “ Securityholders ”) and Post Advisory
Group, LLC, a Delaware limited liability company (the “
Collateral Agent ”). Capitalized terms used
herein but not otherwise defined herein shall have the meaning
ascribed thereto in the Investor Rights Agreement (as defined
below).
R E C I T A L S:
WHEREAS , the Securityholders and the Company have
entered into that certain Securities Purchase Agreement dated as of
August 9, 2004 (as amended, supplemented or otherwise modified from
time to time, the “ Purchase Agreement ”)
pursuant to which the Purchasers purchased (i) an aggregate
$87,000,000 in Senior Subordinated Secured Notes (the “
Notes ”) and (ii) warrants (“ Warrants
”) to purchase an aggregate of 17,500 of the Company’s
units (subject to adjustment and increase as provided in the
Warrants) representing membership interests in the Company,
consisting of, Class B Units or if the holder so elects, either
Class A Units or a combination of Class A Units and Class B Units
exercisable at a price per unit of $.01;
WHEREAS , the Notes were secured by (i) the Security
Interest, as defined in and pursuant to that certain Security
Agreement, dated as of August 9, 2004, as amended by that certain
Amendment to Agreement, dated as of August 9, 2004, in each case
executed by the Company in favor of the Collateral Agent (the
“ Security Agreement ”), and (ii) that certain
Deed of Trust, Assignment of Rents and Leases, Security Agreement
and Fixture Filing, dated as of August 9, 2004, executed by the
Company in favor of the Trustee (as defined therein) for the
benefit of the Collateral Agent, as Beneficiary thereunder (the
“ Deed of Trust ”).
WHEREAS , the Notes were guaranteed by the Subsidiary
Guarantor pursuant to that certain Guaranty Agreement dated as of
August 9, 2004, by and among the Subsidiary Guarantor in favor of
the Purchasers and the Collateral Agent (the “ Guaranty
Agreement ”);
WHEREAS , in order to induce the Collateral Agent and
the Securityholders to consummate the transactions contemplated by
the Purchase Agreement, the Company and the Collateral Agent
entered into that certain Pledge Agreement dated as of August 9,
2004 (the “ Pledge Agreement ”), whereby the
Company agreed to pledge and grant a security interest to the
Collateral Agent for the ratable benefit of the Purchasers in the
Collateral (as defined in the Pledge Agreement);
WHEREAS , The Company has requested the Securityholders
agree to a one-time limited waiver of certain defaults of the
Company under that certain Amended and Restated Loan and Facilities
Agreement dated as of August 9, 2004 by and between OpBiz, the
Lenders signatory thereto from time to time and The Bank of New
York, Asset Solutions Division, as administrative agent and
collateral agent, and any successor agent appointed thereto from
time to
time, such defaults as disclosed in
BH/RE L.L.C.’s (a Nevada limited liability company) Form 10-Q
for the period ended June 30, 2006 (the “ Disclosed
Default ”);
WHEREAS , pursuant to Section 2.1(a) of the
Purchase Agreement, the Notes are scheduled to mature on August 9,
2011 and the Company is not permitted to voluntarily redeem the
Notes on the date hereof, as further provided in Section
2.6.2 of the Purchase Agreement;
WHEREAS , the Company has indicated (i) its desire to
enter into that certain credit facility with Column Financial Inc.,
in the aggregate principal amount of up to $820,000,000 (the
“ Refinancing ”), and (ii) that it desires to
use a portion of the proceeds to voluntarily redeem the Notes in
full on the date hereof for an aggregate cash payment equal to
$150,000,000 (the “ Prepayment ”);
WHEREAS , in connection with the SPA Termination, as
defined below, and the Refinancing, the Company and the
Warrantholders have determined that it is in their best interest
to, and hereby agree to enter into, an Amended and Restated
Investor Rights Agreement dated as of the date hereof (the “
A&R Investor Rights Agreement ”) and to amend and
restate the Warrants (each an “ A&R Warrant
” and collectively the “ A&R Warrants
”);
WHEREAS , the Company has requested that (i) the
Purchasers consent to the Refinancing and the Prepayment, (ii) the
Securityholders agree to a one-time limited waiver of the Disclosed
Default, (iii) the Purchasers agree to terminate the Securities
Purchase Agreement in its entirety (the “ SPA
Termination ”), (iv) the Securityholders release and
terminate the Guaranteed Obligations, as defined in, and pursuant
to the Guaranty Agreement (the “ Guaranty Release
”), (v) the Securityholders release and terminate the
Company’s pledge of the Collateral, as defined in, and
pursuant to the Pledge Agreement (the “ Pledge Release
”), (vi) the Securityholders release their Security Interest,
as defined in, and pursuant to, the Security Agreement (the “
Security Release ”), (vii) the Securityholders release
and terminate the Deed of Trust (the “ Real Property
Release ”), and (viii) the Securityholders release the
Securities Account, as defined in, and pursuant to, that certain
Securities Account Control Agreement, dated as of August 9, 2004
(the “ Account Control Agreement ”) and executed
by the Company, the Collateral Agent and Wells Fargo Bank, N.A., as
Intermediary thereunder (the “ Account Release ”
and collectively with the Guaranty Release, the Pledge Release, the
Security Release and the Real Property Release, the “
Releases ”);
WHEREAS , the Securityholders have agreed to (i) consent
to the Refinancing, Prepayment and the SPA Termination, (ii) waive
the Disclosed Default, and (iii) execute the Releases and, in each
case subject to the completion by the Company of the Restructuring
Conditions, as defined in that certain Restructuring Agreement,
dated as of November 30, 2006 (the “ Restructuring
Agreement ”) by and among EquityCo, L.L.C., the Company
and the Securityholders (the “ Restructuring
Conditions ”).
NOW, THEREFORE
, in consideration of the foregoing
and for other consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
2
SECTION
1.
RELEASE.
1.1.
Subsidiary Guaranty Release . Simultaneously with the
occurrence of the Effective Date, without any further action of the
Securityholders, the Subsidiary Guarantor shall be released in full
from all of each of its respective liabilities, obligations and
other indebtedness under the Guaranty Agreement, Purchase
Agreement, Notes and the other Notes Documents (as defined in the
Purchase Agreement), and the Subsidiary Guaranty shall be
terminated.
1.2.
Parent Pledge Release . Simultaneously with the
occurrence of the Effective Date, without any further action of the
Securityholders, the Subsidiary Guarantor shall be released in full
from all of its respective liabilities, obligations and other
indebtedness under the Pledge Agreement, and the Pledge Agreement
shall be terminated.
1.3.
Security Agreement Release. Simultaneously with the
occurrence of the Effective Date, without any further action of the
Securityholders, the Company shall be released in full from all of
its respective liabilities, rights, obligations, duties and other
indebtedness under the Security Agreement, and the Liens created
thereunder, and the Security Agreement and the security interest
created thereunder shall be terminated. On the Effective Date
the Collateral Agent, at the request and sole expense of the
Company, shall deliver to the Company such instruments or documents
reasonably requested by the Company acknowledging the satisfaction
and termination of the Security Agreement and any such Liens
thereunder and shall a
