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EXHIBIT 1

Case 18-41337-bem Doc 5-1 Filed 06/11/18 Entered 06/11/18 11:25:31 Desc Exhibit Restructuring Support Agreement of 97

EXECUTION COPY

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THIS RESTRUCTURING SUPPORT AGREEMENT IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF ACCEPTANCES OF A CHAPTER 11 PLAN WITHIN THE MEANING OF SECTION 1125 OF THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE.

RESTRUCTURING SUPPORT AGREEMENT This RESTRUCTURING SUPPORT AGREEMENT (as amended, supplemented or

otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), dated as of May 21, 2018, is entered into by and among:

(a) LakePoint Land, LLC (“LPL”), LakePoint Land III, LLC (“LPL III”), LakePoint Land IV, LLC (“LPL IV”), LakePoint Services, LLC (“LP Services”), LakePoint Sports South, LLC (“LP Sports”), LakePoint Housing, LLC (“LP Housing”), LakePoint Hospitality, LLC (“LP Hospitality”), and LakePoint Merchandise, LLC (“LP Merchandise,” and together with LPL, LPL III, LPL IV, LP Services, LP Sports, LP Housing and LP Hospitality, the “Debtors);

(b) Rimrock High Income Plus (Master) Fund, LTD (the “Prepetition Lender”);

(c) LP Investments I, LLC (“Rimrock Investor”);

(d) LakePoint Investors, LLC (“LPI”);

(e) LakePoint Sports Development Group, LLC (“LSDG”);

(f) the undersigned holders of Preferred Membership Interests (as defined below) (the “Initial Consenting Preferred Members”);

(g) the undersigned holder of the Affiliate Notes (as defined below) (the “Affiliate Noteholder”);

(h) the undersigned holders of Executive Compensation Claims (as defined below) (the “Executive Compensation Claim Holders”); and

(i) the undersigned holders of MOU Claims (as defined below) (the “MOU Claim Holders”).

The Debtors, the Prepetition Lender, Rimrock Investor, LPI, LSDG, the Initial Consenting Preferred Members, the Affiliate Noteholder, the Executive Compensation Claim Holders, and the MOU Claim Holders and any subsequent person or entity that becomes a party hereto in accordance with the terms hereof are referred to herein collectively as the “Parties” and each individually as a “Party.”


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Capitalized terms used but not defined herein shall the meanings ascribed to them, as applicable, in the Plan Term Sheet (as defined below).

WHEREAS, the Parties have engaged in arm’s-length, good-faith discussions regarding certain restructuring, recapitalization, and related transactions that will have the effect of restructuring the obligations and ownership of the Debtors.

WHEREAS, each Party desires that such restructuring be implemented through a joint chapter 11 plan of reorganization for the Debtors on the terms and conditions set forth in the term sheet attached hereto as Exhibit A (including its exhibits, and as may be amended, supplemented, or otherwise modified from time to time consistent with this Agreement, the “Plan Term Sheet” and the restructuring undertaken consistent in all material respects with the Plan Term Sheet, the “Restructuring”).

WHEREAS, to effectuate the Restructuring, each Debtor shall commence a voluntary case (collectively, the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101, et seq. (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Northern District of Georgia (Rome Division) (the “Bankruptcy Court”). In connection with the Chapter 11 Cases, the Debtors shall file a chapter 11 plan (as may be amended, supplemented, or otherwise modified from time to time consistent with the terms of this Agreement, the “Plan”) for the Debtors consistent in all material respects with the terms of the Plan Term Sheet and a related disclosure statement (as may be amended, supplemented, or otherwise modified from time to time consistent in all material respects with the terms of this Agreement, the “Disclosure Statement”).

WHEREAS, the Parties desire to express to each other their mutual support and commitment in respect of the matters set forth in the Plan Term Sheet and this Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

1. Certain Definitions.

As used in this Agreement, the following terms have the following meanings:

(a) “Affiliate Note Claims” has the meaning ascribed to such term in the Plan Term Sheet.

(b) “Affiliate Notes” has the meaning ascribed to such term in the Plan Term Sheet.

(c) “AGG” means Arnall Golden Gregory LLP, as counsel to the Debtors.

(d) “Amended LPL Operating Agreement” has the meaning ascribed to such term in the Plan Term Sheet.


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(e) “Amended Organizational Documents” means the HoldCo Operating Agreement and the Amended LPL Operating Agreement and such other documents as may be necessary, desirable or appropriate under the terms of the Plan and/or Confirmation Order.

(f) “Claim” has the meaning set forth in section 101(5) of the Bankruptcy Code.

(g) “Common Membership Interests” has the meaning ascribed to such term in the Plan Term Sheet.

(h) “Confirmation Order” has the meaning ascribed to such term in the Plan Term Sheet.

(i) “Consenting Claim Holders” means the Prepetition Lender, the MOU Claim Holders, the Affiliate Noteholder, and the Executive Compensation Claim Holders.

(j) “Consenting Equityholders” means LPI, LSDG, Rimrock Investor, and the Consenting Preferred Members.

(k) “Consenting Preferred Members” means the Initial Consenting Preferred Members (for so long as such entity remains a Party) and any Preferred Member who subsequently becomes a Party.

(l) “Deed in Lieu Property” means all land, property and other assets that was transferred by LPL, LPL III, and LPL IV to the Prepetition Lender and then by the Prepetition Lender to Rimrock Investor on or around November 3, 2016 in connection with certain Deeds in Lieu of Foreclosure delivered by LPL, LPL III, and LPL IV to the Prepetition Lender.

(m) “Definitive Documents” means the documents (including any related orders, pleadings, agreements, supplements, instruments, schedules, or exhibits) that are described in or contemplated by this Agreement or the Plan Term Sheet and that are otherwise reasonably necessary or advisable to implement the Restructuring and the Plan, including, but not limited to: (i) the Plan Term Sheet; (ii) the Plan; (iii) the Disclosure Statement; (iv) any motion seeking the approval of the adequacy of the Disclosure Statement, the solicitation of the Plan, and/or confirming the Plan; (v) the Confirmation Order; (vi) the materials related to the solicitation of the Plan; (vii) any motion seeking the approval of the DIP Facility; (viii) the DIP Term Agreement; (ix) the Exit Facility Documents; and (x) the Amended Organizational Documents, each of which shall be consistent in all material respects with this Agreement and the Plan Term Sheet; provided that all Definitive Documents (including any amendment or modification thereof) shall be in form and substance satisfactory to Rimrock.

(n) “DIP Facility” has the meaning ascribed to such term in the Plan Term Sheet.

(o) “DIP Term Agreement” has the meaning ascribed to such term in the Plan Term Sheet.


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(p) “DIP Term Sheet” has the meaning ascribed to such term in the Plan Term Sheet.

(q) “Effective Date” has the meaning ascribed to such term in the Plan Term Sheet.

(r) “Executive Compensation Claims” has the meaning ascribed to such term in the Plan Term Sheet.

(s) “Exit Facility” has the meaning ascribed to such term in the Plan Term Sheet.

(t) “Exit Facility Documents” means the documents necessary to document and implement the Exit Facility.

(u) “HoldCo Operating Agreement” has the meaning ascribed to such term in the Plan Term Sheet.

(v) “Interests” means equity interests in LPL.

(w) “King & Spalding” means King & Spalding LLP, as counsel to Rimrock.

(x) “MOU Claims” has the meaning ascribed to such term in the Plan Term Sheet.

(y) “Petition Date” has the meaning ascribed to such term in the Plan Term Sheet.

(z) “Preferred Members” has the meaning ascribed to such term in the Plan Term Sheet.

(aa) “Preferred Membership Interest” has the meaning ascribed to such term in the Plan Term Sheet.

(bb) “Prepetition Lender Claims” means the outstanding principal amount, accrued but unpaid interest and all other amounts owing under the Prepetition Loan Facility (other than expenses and professional fees of the Prepetition Lender).

(cc) “Prepetition Loan Facility” has the meaning ascribed to such term in the Plan Term Sheet.

(dd) “Project” has the meaning ascribed to such term in the Plan Term Sheet.

(ee) “Released Party” has the meaning ascribed to such term in the Plan Term Sheet.

(ff) “Restructuring Support Effective Date” means the date on which counterpart signature pages to this Agreement shall have been executed and delivered by: (A) the Debtors, (B) the Prepetition Lender, (C) Rimrock Investor, (D) LPI, (E) LSDG, (F) by at least


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50% of the Initial Consenting Preferred Members holding at least 66⅔% of the Preferred Membership Interests, (G) the Affiliate Noteholder, (H) Executive Compensation Claim Holders holding 100% of the Executive Compensation Claims, and (I) by at least 50% of the MOU Claim Holders holding at least 66⅔% of the MOU Claims.

(gg) “Restructuring Support Period” means the period commencing on the Restructuring Support Effective Date and ending on the date on which this Agreement is terminated in accordance with Section 9 hereof.

(hh) “Rimrock” shall mean collectively the Prepetition Lender and Rimrock Investor.

(ii) “Securities Act” means the Securities Act of 1933, as amended.

2. Exhibits and Schedules. Each of the exhibits and schedules attached to this Agreement is expressly incorporated herein and made a part of this Agreement, and all references to this Agreement shall include such exhibits and schedules. The terms of this Agreement and the exhibits and schedules shall whenever possible be read in a complementary manner; provided that, to the extent there is a conflict between this Agreement (excluding the exhibits and schedules) and the exhibits and schedules, the terms of this Agreement (excluding the exhibits and schedules) shall control and govern; provided further, that, notwithstanding anything in this paragraph to the contrary, to the extent there is a conflict between this Agreement and the Plan Term Sheet, the terms of the Plan Term Sheet shall control and govern.

3. Agreements of the Consenting Claim Holders. During the Restructuring Support Period, subject to the terms and conditions of this Agreement, each of the Consenting Claim Holders agrees that it shall:

(a) (i) use its commercially reasonable efforts to support the Restructuring and the transactions contemplated by the Plan Term Sheet, (ii) negotiate in good faith and execute (to the extent such Party is a party thereto) and otherwise support (and not oppose or seek to cause any other entity to oppose) each of the Definitive Documents, and (iii) take all commercially reasonable actions necessary or reasonably requested by the Debtors to facilitate the implementation and consummation of the Restructuring within the timeframes contemplated by this Agreement;

(b) timely vote or cause to be voted (subject to receipt of a Disclosure Statement approved by the Bankruptcy Court soliciting votes on the Plan) all of its Claims to accept the Plan and consent to and, if applicable, not opt out of, the releases set forth in the Plan providing for the release of all of its claims, if any, against each Released Party by timely delivering its duly executed and completed ballot or ballots accepting the Plan;

(c) not change or withdraw (or cause to be changed or withdrawn) any such vote or release described in clause (b) above; provided, however, that notwithstanding anything in this Agreement to the contrary, a Consenting Claim Holder’s vote and release shall automatically be deemed revoked and void ab initio at any time following the termination of this Agreement prior to the Effective Date with respect to such Consenting Claim Holder;


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(d) not (i) object to, delay, impede, or take any other action to interfere with the acceptance or implementation of the Plan, (ii) directly or indirectly solicit, encourage, propose, file, support, participate in the formulation of, or vote for, any restructuring, sale of assets, merger, workout or plan of reorganization for any of the Debtors other than the Plan or as contemplated by the Plan, or (iii) otherwise take any action that would interfere with, delay, impede, or postpone the consummation of the Restructuring pursuant to the Plan; and

(e) use commercially reasonable efforts to support and take all actions as are reasonably necessary and appropriate to obtain any and all required regulatory and/or third party approvals to consummate the Restructuring.

4. Agreements of the Consenting Equityholders. During the Restructuring Support Period, subject to the terms and conditions of this Agreement, each of the Consenting Equityholders agrees that it shall:

(a) (i) use its commercially reasonable efforts to support the Restructuring and the transactions contemplated by the Plan Term Sheet, (ii) negotiate in good faith and execute (to the extent such Party is a party thereto) and otherwise support (and not oppose or seek to cause any other entity to oppose) each of the Definitive Documents, and (iii) take all commercially reasonable actions necessary or reasonably requested by the Debtors to facilitate the implementation and consummation of the Restructuring within the timeframes contemplated by this Agreement;

(b) timely vote or cause to be voted (subject to receipt of a Disclosure Statement approved by the Bankruptcy Court soliciting votes on the Plan) all of its Interests to accept the Plan and consent to and, if applicable, not opt out of, the releases set forth in the Plan providing for the release of all of its claims, if any, against each Released Party by timely delivering its duly executed and completed ballot or ballots accepting the Plan;

(c) not change or withdraw (or cause to be changed or withdrawn) any such vote or release described in clause (b) above; provided, however, that notwithstanding anything in this Agreement to the contrary, a Consenting Equityholder’s vote and release shall automatically be deemed revoked and void ab initio at any time following the termination of this Agreement prior to the Effective Date with respect to such Consenting Equityholder;

(d) not (i) object to, delay, impede, or take any other action to interfere with the acceptance or implementation of the Plan, (ii) directly or indirectly solicit, encourage, propose, file, support, participate in the formulation of, or vote for, any restructuring, sale of assets, merger, workout or plan of reorganization for any of the Debtors other than the Plan or as contemplated by the Plan, or (iii) otherwise take any action that would interfere with, delay, impede, or postpone the consummation of the Restructuring pursuant to the Plan; and

(e) use commercially reasonable efforts to support and take all actions as are reasonably necessary and appropriate to obtain any and all required regulatory and/or third party approvals to consummate the Restructuring.


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5. Agreements of the Debtors.

(a) Commencement, Solicitation, and Confirmation.

(i) The Debtors agree to (A) act in good faith and use commercially reasonable efforts to support and complete successfully the Restructuring in accordance with the terms of this Agreement, (B) negotiate in good faith and execute (to the extent such Party is a party thereto) and otherwise support (and not oppose or seek to cause any other entity to oppose) each of the Definitive Documents, (C) do all things reasonably necessary and appropriate in furtherance of confirming the Plan and consummating the Restructuring in accordance with this Agreement, including filing with the Bankruptcy Court voluntary petitions for relief under chapter 11 of the Bankruptcy Code and any and all other documents necessary to commence the Chapter 11 Cases, and file or submit, within the timeframes contemplated by this Agreement, the Plan, the Disclosure Statement, and the other Definitive Documents, (D) execute and deliver any required agreements and documents to effectuate and consummate the Restructuring, (E) use commercially reasonable efforts to obtain any and all required regulatory and/or third party approvals for the Restructuring, (F) operate their businesses in the ordinary course taking into account the commencement of the Chapter 11 Cases and any orders of the Bankruptcy Court, and (G) take no actions materially inconsistent with this Agreement, or the confirmation and consummation of the Plan unless, in each case, LPL’s manager or, in the case of any Debtor other than LPL, such Debtor’s board of directors or managers (or comparable governing body), members, or partners, as applicable, determines, in good faith after consultation with its outside counsel, that such action or the failure to take such action, as applicable, is inconsistent with its respective fiduciary duties or an order of the Bankruptcy Court.

(ii) During the Restructuring Support Period, the Debtors shall not, and shall not cause any Debtor to (A) object to, delay, impede, or take any other action that is inconsistent with, or is intended or is likely to interfere with implementation of the Restructuring, or (B) enter into any transactions outside of the ordinary course of business that are not consented to by Rimrock.

(b) Certain Additional Chapter 11 Related Matters. The Debtors shall (i) provide draft copies of all motions, applications, and other documents related to the Restructuring (including the Plan and the Disclosure Statement, any proposed amended version of the Plan or the Disclosure Statement, all “first day” and “second day” pleadings and related proposed orders, and any Definitive Documents) that any Debtor intends to file with the Bankruptcy Court to King & Spalding at least two (2) business days before the applicable Debtor intends to file any such motion, application, or other document, and (ii) consult in good faith with King & Spalding regarding the form and substance of any such proposed filing with the Bankruptcy Court.

(c) Additional Notices. The Debtors shall promptly notify or update the other Parties to this Agreement upon becoming aware of any of the following occurrences: (i) an additional person or entity becomes a Consenting Equityholder after the date of this Agreement; and (ii) material developments, negotiations, or proposals relating to any pending case or


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controversy or any case or controversy that may be hereafter commenced against any Debtor in a court of competent jurisdiction or brought before a state or federal regulatory, licensing, or similar board, authority, or tribunal that would reasonably be expected to impede or prevent consummation of the Restructuring on the time-frame contemplated herein.

6. Forbearance; Lease/License.

(a) Forbearance. Subject to the remainder of this Section 6, during the Restructuring Support Period, Rimrock, each Consenting Claim Holder and each Consenting Equityholder hereby agrees to forbear from the exercise of any rights or remedies it may have under, as applicable, the Prepetition Loan Documents, the MOUs, the Affiliate Notes, the documents governing the Executive Compensation Claims and under applicable United States or foreign law or otherwise, in each case, solely to the extent that would be inconsistent with the terms of this Agreement. For the avoidance of doubt, the forbearance set forth in this Section 6 (a) shall automatically terminate, without the need for any further notice, upon a termination of this Agreement in accordance with the terms hereof, (b) shall not constitute a waiver with respect to any defaults or events of default, as applicable, and (c) shall not bar any Party from filing a proof of claim or interest or taking action to establish the amount of its Claim or Interest in the Chapter 11 Cases. If the transactions contemplated hereby are not consummated, or if this Agreement is terminated for any reason other than the occurrence of the Effective Date of the Plan, the Parties fully reserve any and all of their rights, remedies, claims, and defenses.

(b) Lease/License. Rimrock Investor hereby grants to the Debtors a lease and license (as applicable) to use, occupy and otherwise operate the Deed in Lieu Property during the Restructuring Support Period consistent with past practices and in the ordinary course of business. Immediately upon the expiration of the Restructuring Support Period (without the need for the provision of any eviction or other notice by Rimrock Investor, any such notice being hereby waived by the Debtors), the lease and license of the Deed in Lieu Property to the Debtors by Rimrock Investor shall expire and/or shall otherwise be immediately revoked. The Debtors hereby agree to jointly and severally indemnify and hold harmless each of Prepetition Lender, Rimrock Investor, and their respective officers, directors, partners, shareholders, employees, agents, advisors, and affiliates from and against any and all claims, losses, actions, liabilities, costs or expenses arising from or relating to the Debtors’ use, occupancy or operation of the Deed in Lieu Property (whether pursuant to the lease and/or license set forth in this Section 6 or otherwise). At all times during the Restructuring Support Period, the Debtors shall maintain liability and hazard insurance on the Deed in Lieu Property that is acceptable in form and substance to Rimrock (and the Prepetition Lender and Rimrock Investor shall be included as additional insured parties under such insurance).

7. Transfers of Claims and Interests; Additional Claims and Interests.

(a) Transfer of Claims and Interests. Each Consenting Claim Holder and Consenting Equityholder agrees that during the Restructuring Support Period such Consenting Claim Holder or Consenting Equityholder (as the case may be) shall not sell, transfer, loan, issue, pledge, hypothecate, assign, or otherwise dispose of (each, a “Transfer”), directly or indirectly, in whole or in part, any of its Claims against or Interests in any Debtor (including grant any proxies, deposit any Claims against or Interests in any Debtor into a voting trust, or


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enter into a voting agreement with respect to any such Claims against or Interests in any of the Debtors), unless the transferee thereof either (A) is also a Consenting Claim Holder or Consenting Equityholder holding the same type of Claims or Interests as the transferor (as applicable), or (B) prior to such Transfer, agrees in writing for the benefit of the Parties to become a Consenting Claim Holder or Consenting Equityholder (as applicable) with respect to the Claims or Interests to be transferred and to be bound by all of the terms of this Agreement applicable to such Consenting Claim Holder or Consenting Equityholder (including with respect to any and all Claims or Interests it already may hold against or in any Debtor prior to such Transfer) by executing a joinder agreement in form and substance acceptable to the Debtors and Rimrock (a “Joinder Agreement”), and delivering an executed copy thereof within two (2) business days following such execution to (1) AGG c/o Sean Kulka, and (2) King & Spalding c/o Austin Jowers, in which event (x) the transferee shall be deemed to be a Party hereunder to the extent of such transferred rights and obligations and (y) the transferor shall be deemed to relinquish its rights (and be released from its obligations) under this Agreement to the extent of such transferred rights and obligations. Each Consenting Claim Holder and Consenting Equityholder agrees that any Transfer of any Claims or Interests that does not comply with the terms and procedures set forth herein shall be deemed void ab initio, and the applicable Debtor shall have the right to enforce the voiding of such Transfer.

(a) Additional Claims and Interests. Each Consenting Claim Holder and Consenting Equityholder agrees that if it acquires or acquires control of additional Claims or Interests, then (i) such Claims or Interests shall be subject to this Agreement (including the obligations of the applicable Consenting Claim Holder and the Consenting Equityholder, as applicable, under Sections 3-4, Section 6, and this Section 7 of this Agreement) and (ii) following such acquisition, such Party shall promptly, and in any event within no more than two (2) business days, notify AGG c/o Sean Kulka and King & Spalding c/o Austin Jowers of the amount and types of Claims or Interests it has acquired or over which it has acquired control.

8. Reservation of Rights. Subject only to Section 6 of this Agreement, nothing in this Agreement and neither a vote to accept the Plan by any Party nor the acceptance of the Plan by any Party shall (a) be construed to prohibit any Party from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement or any of the Definitive Documents, or exercising rights or remedies specifically reserved in this Agreement; or (b) be construed to limit any Party’s rights under any applicable indenture, credit agreement, other loan document, and/or applicable law or to prohibit any Party from appearing as a party in interest in any matter to be adjudicated in the Chapter 11 Cases, so long as, during the Restructuring Support Period, such appearance and the positions advocated in connection therewith are consistent with this Agreement and are not for the purpose of hindering, delaying, or preventing the consummation of the Restructuring or the Plan.

9. Termination of Agreement.

(a) Automatic Termination. This Agreement and the obligations of all Parties hereunder shall automatically terminate without any further required action or notice upon the occurrence of the Effective Date of the Plan.


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(b) General Termination Event. This Agreement and the obligations of all Parties hereunder shall terminate two (2) business days after the giving of notice in accordance with Section 25 hereof by a Party to the Debtors and the other Parties of the occurrence and continuation of any General Termination Event. A “General Termination Event” shall mean the occurrence of any of the following events:

(i) The breach in any material respect by one or more of the Parties of any of the undertakings, representations, warranties, or covenants of the Parties set forth in this Agreement, which materially and adversely effects such Party, which breach remains uncured for a period of five (5) business days after the receipt of written notice of such breach from the Party in accordance with Section 25 hereof; provided, however, that each Party may not terminate this Agreement on account of a General Termination Event arising from a breach of any of their own undertakings, representations, warranties, or covenants set forth in this Agreement.

(ii) Any of the Debtors files, propounds, or otherwise supports any chapter 11 plan or restructuring other than the Plan or the Restructuring.

(iii) The Debtors (A) withdraw the Plan and/or the Disclosure Statement, or (B) file any motion or pleading with the Bankruptcy Court that is inconsistent with this Agreement or the Plan Term Sheet, in each case, that adversely impacts or would reasonably be expected to impact such Party, and such motion or pleading has not been withdrawn before the earlier of (x) two (2) business days after the Parties receive written notice from such Party (in accordance with Section 25 hereof) that such motion or pleading is inconsistent with this Agreement or the Plan and (y) the entry of an order of the Bankruptcy Court approving such motion or pleading.

(iv) The occurrence of an Other Termination Event (as defined in Section 9(e) hereof).

(c) Rimrock Termination Event. This Agreement and the obligations of all Parties hereunder shall terminate two (2) business days after the giving of notice in accordance with Section 25 hereof by Rimrock to the Debtors and other Parties of the occurrence and continuation of any Rimrock Termination Event. A “Rimrock Termination Event” shall mean the occurrence of any of the following events:

(i) The breach in any material respect by one or more of the Parties of any of the undertakings, representations, warranties, or covenants of the Parties set forth in this Agreement, which breach remains uncured for a period of five (5) business days after the receipt of written notice of such breach from Rimrock in accordance with Section 25 hereof; provided, however, that Rimrock may not terminate this Agreement on account of a Rimrock Termination Event arising from a breach of any of its own undertakings, representations, warranties, or covenants set forth in this Agreement.

(ii) The Debtors (A) withdraw the Plan and/or the Disclosure Statement, or (B) file any motion or pleading with the Bankruptcy Court that is inconsistent with this Agreement or the Plan Term Sheet without the prior consent of


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Rimrock, and such motion or pleading has not been withdrawn before the earlier of (x) two (2) business days after the Debtors receive written notice from Rimrock (in accordance with Section 25 hereof) that such motion or pleading is inconsistent with this Agreement or the Plan and (y) the entry of an order of the Bankruptcy Court approving such motion or pleading.

(iii) Claims have been filed against the Debtors in an amount more than $500,000 greater (either individually or in the aggregate) than those set forth on the Schedule of Claims that (a) have been Allowed by the Bankruptcy Court, or (b) that Rimrock has determined are bona fide in nature (based on its reasonable judgment and determination) and not otherwise subject to a meritorious defense, counter-claim, or offset.

(iv) The Restructuring Support Effective Date shall not have occurred on or before May 21, 2018.

(v) The Petition Date shall not have occurred on or before June 6, 2018.

(vi) The Debtors fail to timely satisfy any of the Chapter 11 Milestones set forth in the Plan Term Sheet.

(vii) The absence of an event or occurrence that has caused (or is reasonably likely to cause) a material adverse effect with respect to the Debtors, their operations, their assets or the Project.

(viii) The occurrence of an Event of Default (as defined in the DIP Term Sheet).

(ix) The occurrence of an Other Termination Event (as defined in Section 9(e) hereof).

(d) Debtor Termination Event. This Agreement and the obligations of all Parties hereunder shall terminate two (2) business days after the giving of notice in accordance with Section 25 hereof by the Debtors to the other Parties of the occurrence and continuation of any Debtor Termination Event. A “Debtor Termination Event” shall mean the occurrence of any of the following events:

(i) The breach in any material respect by one or more of the Parties of any of the undertakings, representations, warranties, or covenants of the Parties set forth herein, which breach remains uncured for a period of five (5) business days after the receipt of written notice of such breach from the Debtors in accordance with Section 25 hereof; provided, however, that the Debtors may not terminate this Agreement on account of a Debtor Termination Event arising from a breach of any of their own undertakings, representations, warranties, or covenants set forth in this Agreement.

(ii) LPL’s manager or, in the case of a Debtor other than LPL, such Debtor’s board of directors or managers (or comparable governing body), members, or


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partners, as applicable, reasonably determines in good faith based upon the advice of outside counsel that continued performance under this Agreement, the Plan, or the Restructuring Documents would be inconsistent with the exercise of its respective fiduciary duties under applicable law or an order of the Bankruptcy Court.

(iii) The occurrence of an Other Termination Event (as defined in Section 9(e) hereof).

(e) An “Other Termination Event” shall occur:

(i) Upon the issuance of any ruling, regulation, judgment, or order by any governmental authority, including any regulatory authority or court of competent jurisdiction, enjoining the consummation of or rendering illegal the Restructuring, which ruling, regulation, judgment, or order has not been stayed, reversed, or vacated within twenty (20) calendar days after such issuance.

(ii) Upon the filing or support by any of the Parties (or any of their respective affiliates) of a motion seeking, or the entry by the Bankruptcy Court of, an order (A) directing the appointment of an examiner with expanded powers or a trustee in the Chapter 11 Cases, (B) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (C) dismissing any of the Chapter 11 Cases.

(iii) At 11:59 p.m. (prevailing Eastern Time) on the date that an order is entered by the Bankruptcy Court or a court of competent jurisdiction denying confirmation of the Plan for any of the Debtors (unless caused by a default by any Party of its obligations hereunder, in which event such defaulting Party, as applicable, shall not have the right to terminate under this clause (iii)) or denying approval of the Disclosure Statement; provided that the Parties shall not have the right to terminate this Agreement pursuant to this clause (iii) if the Bankruptcy Court denies approval of the Disclosure Statement or denies confirmation of the Plan subject only to modifications to the Plan or the Disclosure Statement that would not have an adverse effect on the recovery, treatment, or rights that such Party would receive as compared to the recovery, treatment, and rights it would have otherwise received pursuant to the Plan.

(iv) The Restructuring Support Effective Date shall not have occurred by June 15, 2018.

(v) The Petition Date shall not have occurred by June 30, 2018.

(vi) The Effective Date shall not have occurred by December 31, 2018.

(f) Mutual Termination. This Agreement may be terminated by mutual agreement of Rimrock and the Debtors upon the receipt of written notice delivered in accordance with Section 25 hereof.

(g) Effect of Termination. Subject to the provisions contained in Section 18 hereof, upon the termination of this Agreement in accordance with this Section 9, this Agreement shall become void and of no further force or effect with respect to all Parties and the Parties


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shall, except as otherwise provided in this Agreement, be immediately released from their respective liabilities, obligations, commitments, undertakings, and agreements under or related to this Agreement, shall have no further rights, benefits, or privileges hereunder, and shall have all the rights and remedies that they would have had and shall be entitled to take all actions, whether with respect to the Restructuring, the Plan, or otherwise, that they would have been entitled to take had they not entered into this Agreement and no such rights or remedies shall be deemed waived pursuant to a claim of laches, estoppel, or otherwise; provided that in no event shall any such termination relieve a Party from liability for its breach or non-performance of its obligations hereunder prior to the date of such termination. Furthermore, notwithstanding anything herein to the contrary, a Party shall not have a right to terminate this Agreement if a default or failure (including, without limitation, by action, inaction, or misrepresentation) by such Party of its obligations, undertakings, representations, warranties, or covenants hereunder is the cause, directly or indirectly, of the event giving rise to the right to terminate.

(h) Automatic Stay. The Debtors acknowledge and agree that after the commencement of the Chapter 11 Cases, they will not assert that the act of providing notice of termination by any Party pursuant to the terms of this Agreement violates the automatic stay of section 362 of the Bankruptcy Code; provided that nothing herein shall prejudice any Party’s rights to argue that the giving of notice of termination was not proper under the terms of this Agreement. The Debtors waive the right to contest a motion seeking relief from the automatic stay to the extent that any Party determines that it is necessary to file such a motion with the Bankruptcy Court in order to modify the automatic stay in order to provide a notice of termination pursuant to the terms of this Agreement.

10. Definitive Documents; Good Faith Cooperation; Further Assurances. Each Party hereby covenants and agrees to cooperate with each other in good faith in connection with, and shall exercise commercially reasonable efforts with respect to, the pursuit, approval, implementation, and consummation of the Restructuring, as well as the negotiation, drafting, execution, and delivery of the Definitive Documents. Furthermore, subject to the terms hereof, each of the Parties shall take such action as may be reasonably necessary or reasonably requested by the other Parties to carry out the purposes and intent of this Agreement, and shall refrain from taking any action that would frustrate the purposes and intent of this Agreement.

11. Representations and Warranties.

(a) Each of the Consenting Claim Holders and each of the Consenting Equityholders, severally (and not jointly), and the Debtors, jointly and severally, represents and warrants to the other Parties that the following statements are true, correct and complete as of the date hereof (or as of the date a Consenting Claim Holder or a Consenting Equityholder becomes a Party hereto):

(i) To the extent such Party is not an individual, such Party is validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, and has all requisite corporate, partnership, limited liability company, or similar authority to enter into this Agreement and carry out the transactions contemplated hereby and perform its obligations contemplated hereunder. The execution and delivery of this Agreement and the performance of such Party’s obligations hereunder have been


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duly authorized by all necessary corporate, limited liability company, partnership, or other similar action on its part.

(ii) The execution, delivery and performance by such Party of this Agreement does not and will not (A) violate any material provision of law, rule, or regulation applicable to it or its charter or bylaws (or other similar governing documents), or (B) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party, except, in the case of the Debtors, in connection with the filing of the Chapter 11 Cases.

(iii) The execution, delivery, and performance by such Party of this Agreement does not and will not require any material registration or filing with, consent or approval of, or notice to, or other action, with or by, any federal, state, or governmental authority or regulatory body, except, in the case of the Debtors, in connection with the Bankruptcy Court.

(iv) This Agreement is the legally valid and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy (including any order of the Bankruptcy Court), insolvency, reorganization, moratorium, or other similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

(b) Each Consenting Claim Holder severally (and not jointly) represents and warrants to the Debtors that, as of the date of this Agreement (or as of the date such Consenting Claim Holder becomes a Party hereto), such Party (i) is the owner of the aggregate principal amount of the Claims set forth below its name on its signature page hereto (or below its name on the signature page of a Joinder Agreement for any Consenting Claim Holder that becomes a Party hereto after the date hereof), and/or (ii) has, with respect to the beneficial owner(s) of such Claims, (A) sole investment or voting discretion with respect to such Claims, (B) full power and authority to vote on and consent to matters concerning such Claims or to exchange, assign, and Transfer such Claims, and (C) full power and authority to bind or act on the behalf of, such beneficial owner(s).

(c) Each Consenting Equityholder severally (and not jointly) represents and warrants to the Debtors that such Consenting Equityholder holds of record and owns beneficially the Interests of LPL set forth below such Consenting Equityholder’s name on its signature page to this Agreement, free and clear of any restrictions on transfer, liens or options, warrants, purchase rights, contracts, commitments, claims and demands.

12. Publicity. Subject to the other specific governing provisions herein, the Debtors shall submit drafts to King & Spalding of any press releases and public documents that constitute disclosure of the existence or terms of this Agreement or any amendment to the terms of this Agreement at least two (2) business days before making any such disclosure and otherwise coordinate any press releases or other communications with media about the Plan with Rimrock.


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13. Creditors’ Committee. Notwithstanding anything herein to the contrary, if any Consenting Claim Holder is appointed to and serves on an official committee of unsecured creditors in the Chapter 11 Cases, the terms of this Agreement shall not be construed so as to limit such Consenting Claim Holder’s exercise of its fiduciary duties to any person or entity arising from its service on such committee, and any such exercise of such fiduciary duties shall not be deemed to constitute a breach of the terms of this Agreement. All Parties agree they shall not oppose the participation of any of the Consenting Claim Holders on any official committee of unsecured creditors formed in the Chapter 11 Cases.

14. Amendments and Waivers. This Agreement (including the Plan Term Sheet) may be amended only upon written approval of each of the Debtors, the Prepetition Lender, and Rimrock Investor; provided that, in addition, any amendment that would materially and adversely affect any Party, solely in its capacity as a party to this Agreement, shall require the prior written consent of such adversely affected Party. If a materially disproportionately adversely affected Party (“Non-Consenting Party”) does not consent to a waiver, change, modification, or amendment to this Agreement requiring the consent of such Party, but such waiver, change, modification, or amendment receives the consent of at least 50% of the holders of and 66⅔% of the outstanding principal amount of the class of Claims or Interests in which the Non-Consenting Party is included, then (x) this Agreement shall be deemed to have been terminated only as to such Non-Consenting Party, (y) any vote and release provided by such Non-Consenting Party shall automatically be deemed revoked and void ab initio following such termination, and (z) this Agreement shall continue in full force and effect in respect of all other Parties.

15. Effectiveness. This Agreement shall become effective and binding upon each Party upon (a) the execution and delivery by such Party of an executed signature page hereto to each other Party and (b) the occurrence of the Restructuring Support Effective Date; provided, that this Agreement shall become effective and binding upon any person or entity that executes and delivers a Joinder Agreement as of the date that such person or entity executes and delivers such Joinder Agreement in accordance with the terms of this Agreement on the date that such Joinder Agreement is so executed and delivered.

16. Governing Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the State of Georgia, without giving effect to the conflict of laws principles thereof. Each of the Parties irrevocably agrees that any legal action, suit, or proceeding arising out of or relating to this Agreement brought by any Party or its successors or assigns shall be brought and determined in any federal court in the Northern District of Georgia or state court in Bartow County, Georgia (the “Georgia Courts”), and each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the Georgia Courts for itself and with respect to its property, generally and unconditionally, with regard to any such proceeding arising out of or relating to this Agreement and the Restructuring. Each of the Parties agrees not to commence any proceeding relating hereto or to the Restructuring except in the Georgia Courts, other than proceedings in any court of competent jurisdiction to enforce any judgment, decree, or award rendered by any Georgia Court. Each of the Parties further acknowledges and agrees that notice as provided in Section 25 hereof shall constitute sufficient


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service of process and the Parties further waive the right to personal service and any argument that such service is insufficient. Each of the Parties hereby irrevocably and unconditionally waives and agrees not to assert by way of motion or as a defense, counterclaim or otherwise, in any legal action, suit, or proceeding arising out of or relating to this Agreement or the Restructuring, (i) any claim that it is not personally subject to the jurisdiction of the Georgia Courts as described herein for any reason, (ii) that it or its property is exempt or immune from jurisdiction of any such courts, or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (iii) that (A) a proceeding in any Georgia Court is brought in an inconvenient forum, (B) the venue of such proceeding is improper, or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such court. Notwithstanding the foregoing, during the pendency of the Chapter 11 Cases, all proceedings contemplated by this Section 16(a) shall be brought in the Bankruptcy Court.

(b) Each Party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to this Agreement or the transactions contemplated hereby (whether based on contract, tort or any other theory) and consents to the entry of final orders by the Bankruptcy Court.

17. Specific Performance/Remedies. It is understood and agreed by the Parties that money damages would not be a sufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief (including attorneys’ fees and costs) as a remedy for any such breach, without the necessity of proving the inadequacy of money damages as a remedy. Each Party hereby waives any requirement for the security or posting of any bond in connection with such remedies.

18. Survival. Notwithstanding the termination of this Agreement pursuant to Section 9, Sections 12-26, and Section 28 hereof shall survive such termination and shall continue in full force and effect in accordance with the terms hereof; provided that any liability of a Party for failure to comply with the terms of this Agreement shall survive such termination.

19. Headings. The headings of the sections, paragraphs, and subsections of this Agreement are inserted for convenience only and shall not affect the interpretation hereof or, for any purpose, be deemed a part of this Agreement.

20. Successors and Assigns; Severability. This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors, permitted assigns, heirs, executors, administrators, and representatives; provided that nothing contained in this Section 20 shall be deemed to permit Transfers of any Claims against or Interests in the Debtors other than in accordance with the express terms of this Agreement. If any provision of this Agreement, or the application of any such provision to any person or entity or circumstance, shall be held invalid or unenforceable, in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision hereof and this Agreement shall continue in full force and effect. Upon any such determination of invalidity, the Parties shall negotiate in good faith to modify this Agreement so as to effect the


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original intent of the Parties as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

21. Several, Not Joint, Obligations. Except as otherwise expressly stated in this Agreement with respect to the Debtors, the agreements, representations, and obligations of the Parties under this Agreement are, in all respects, several and not joint.

22. Relationship Among Parties. Unless expressly stated herein, this Agreement shall be solely for the benefit of the Parties and no other person or entity shall be a third-party beneficiary hereof. No Party shall have any responsibility for any trading by any other entity by virtue of this Agreement. No prior history, pattern, or practice of sharing confidences among or between the Parties shall in any way affect or negate this understanding and agreement. The Parties have no agreement, arrangement, or understanding with respect to acting together for the purpose of acquiring, holding, voting, or disposing of any equity securities of the Company and do not constitute a “group” within the meaning of Rule 13d-5 under the Securities Exchange Act of 1934, as amended.

23. Prior Negotiations; Entire Agreement. This Agreement, including the exhibits and schedules hereto (including the Plan Term Sheet), constitutes the entire agreement of the Parties, and supersedes all other prior negotiations, with respect to the subject matter hereof and thereof, except that the Parties acknowledge that any confidentiality agreements executed between the Debtors and each Consenting Claim Holder or Consenting Equityholder prior to the execution of this Agreement shall continue in full force and effect for the duration of such confidentiality agreements.

24. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same agreement. Execution copies of this Agreement delivered by facsimile or PDF shall be deemed to be an original for the purposes of this paragraph.

25. Notices. All notices hereunder shall be deemed given if in writing and delivered if sent by electronic mail, facsimile, courier or by registered or certified mail (return receipt requested) to the following addresses and facsimile numbers:

(a) If to any Debtor, to: LakePoint Land, LLC 755 Hwy 293 Emerson, Georgia 30137 Attention: Bob Zurcher Email: [email protected] With a copy (which shall not constitute notice) to:


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Arnall Golden Gregory 171 17th Street NW, Suite 2100 Atlanta, Georgia 30363 Attention: Philip G. Skinner, Esq. and Sean Kulka, Esq. Email: [email protected]; [email protected]

(b) If to the Prepetition Lender or Rimrock Investor, to:

Rimrock High Income Plus (Master) Fund, Ltd. 100 Innovation Drive, Suite 200 Irvine, California 92617 Attention: Jeff Bemis Email: [email protected] With a copy (which shall not constitute notice) to: King & Spalding LLP 1180 Peachtree Street Atlanta, Georgia 30309 Attention: W. Austin Jowers, Esq. Email: [email protected]

And

King & Spalding LLP 444 W. Lake Street, Suite 1650 Chicago, Illinois 60606 Attention: Elizabeth Dechant, Esq. Email: [email protected] (c) If to any other Party, to the address(es) listed on such Party’s the signature page to this Agreement.

Any notice given by delivery, mail or courier, shall be effective when received. Any notice given by facsimile or electronic mail shall be effective upon oral, machine, or electronic mail (as applicable) confirmation of transmission.

26. Settlement Discussions. This Agreement is part of a proposed settlement of matters that could otherwise be the subject of litigation among the Parties. Pursuant to Rule 408 of the Federal Rules of Evidence, any applicable state rules of evidence and any other applicable law, foreign or domestic, this Agreement and all negotiations relating thereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce its terms.

27. No Solicitation; Adequate Information. This Agreement is not and shall not be deemed to be a solicitation for consents to the Plan. The votes of the holders of Claims against or Interests in the Debtors will not be solicited until such holders who are entitled to vote on the Plan have received the Plan, the Disclosure Statement and related ballots, and other


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required Solicitation materials once those items are approved by the Bankruptcy Court. In addition, this Agreement does not constitute an offer to issue or sell securities to any person or entity, or the solicitation of an offer to acquire or buy securities, in any jurisdiction where such offer or solicitation would be unlawful.

28. Interpretation; Rules of Construction; Representation by Counsel. When a reference is made in this Agreement to a Section, Exhibit or Schedule, such reference shall be to a Section, Exhibit or Schedule, respectively, of or attached to this Agreement unless otherwise indicated. Unless the context of this Agreement otherwise requires, (a) words using the singular or plural number also include the plural or singular number, respectively, (b) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement, (c) the words “include,” “includes,” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation,” and (d) the word “or” shall not be exclusive and shall be read to mean “and/or.” The Parties agree that they have been represented by legal counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding, or rule of construction providing that ambiguities in an agreement or other document shall be construed against the party drafting such agreement or document.

[Signature Pages Follow]


EXECUTION COPY

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EXHIBIT A

Plan Term Sheet


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_______________________________________________________________________________

LAKEPOINT LAND, LLC, et al., PLAN TERM SHEET

____________________________________________________________________________________

THIS TERM SHEET (THE “TERM SHEET”) OUTLINES THE MATERIAL TERMS OF A PROPOSED RESTRUCTURING TRANSACTION FOR LAKEPOINT LAND, LLC AND CERTAIN OF ITS SUBSIDIARIES, THE TERMS OF WHICH WILL BE EFFECTUATED PURSUANT TO A PLAN OF REORGANIZATION (THE “PLAN”), WHICH PLAN WILL BE PROPOSED BY THE DEBTORS (AS DEFINED BELOW) UNDER CHAPTER 11 OF TITLE 11 OF THE UNITED STATES CODE (THE “BANKRUPTCY CODE”) IN THEIR JOINTLY ADMINISTERED BANKRUPTCY CASES (THE “CHAPTER 11 CASES”) TO BE FILED IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF GEORGIA (ROME DIVISION) (THE “BANKRUPTCY COURT”).1

THE TERM SHEET IS NOT AN OFFER OR A SOLICITATION WITH RESPECT TO ANY SECURITIES OF THE DEBTORS, NOR IS IT A SOLICITATION OF THE ACCEPTANCE OR REJECTION OF A CHAPTER 11 PLAN FOR PURPOSES OF SECTIONS 1125 AND 1126 OF THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION SHALL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE. THIS TERM SHEET DOES NOT CONSTITUTE A COMMITMENT TO PROVIDE DEBTOR-IN-POSSESSION OR EXIT FINANCING OR EQUITY CAPITAL, AND ANY SUCH OBLIGATION WILL ARISE ONLY UNDER APPLICABLE DEFINITIVE DOCUMENTS IF ACCEPTED IN ACCORDANCE WITH THEIR RESPECTIVE TERMS.

OVERVIEW

Debtors: LakePoint Land, LLC (“LPL”), LakePoint Land III, LLC (“LPL III”), LakePoint Land IV, LLC (“LPL IV”), LakePoint Services, LLC (“LP Services”), LakePoint Sports South, LLC (“LP Sports”), LakePoint Housing, LLC (“LP Housing”), LakePoint Hospitality, LLC (“LP Hospitality”), and LakePoint Merchandise, LLC (“LP Merchandise,” and together with LPL, LPL III, LPL IV, LP Services, LP Sports, LP Housing and LP Hospitality, the “Debtors”).

Existing Ownership of LPL: The ownership interests of the members of LPL are as follows: LakePoint Investors, LLC (“LPI”) – 51.5825%;

1 This Term Sheet does not include a description of all of the terms, conditions and other provisions that are to be contained in the Plan and the related definitive documentation governing the restructuring transactions contemplated herein (the “Restructuring”), which shall be consistent with the terms and conditions hereof and otherwise in form and substance acceptable to the Debtors and Rimrock (as defined below). This Term Sheet is an attachment to that certain Restructuring Support Agreement which shall be entered into between the Debtors, Rimrock, Rimrock Investor, LPI, LSDG, some or all of the Preferred Members, and the holders of the Affiliate Note Claims, the MOU Claims and the Executive Compensation Claims (each as defined below) prior to the filing of the Chapter 11 Cases (the “Restructuring Support Agreement”).


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LakePoint Sports Development Group, LLC (“LSDG”) – 25.6361%; Certain holders of preferred membership interests (collectively, the “Preferred Members”), as set forth on the Schedule of Claims and Interests attached hereto as Schedule 1 (the “Claims and Interests Schedule”) – 14.2795%; and LP Investments I, LLC (“Rimrock Investor”), an affiliate of Rimrock (as defined below) – 8.5019%

Senior Secured Debt: The obligations of LPL, LPL III and LPL IV (the “Senior Debt”) under that certain Amended and Restated Loan Agreement, dated as of June 18, 2014, as amended and modified by that certain First Modification to Amended and Restated Loan Agreement, dated as of June 18, 2014, by that certain Second Modification to Amended and Restated Loan Agreement and Waiver dated as of July 9, 2015, by that certain Third Modification to Amended and Restated Loan Agreement dated as of October 2, 2015, by that certain Fourth Modification to Amended and Restated Loan Agreement dated as of October 14, 2015, by that certain Fifth Modification to Amended and Restated Loan Agreement dated as of December 31, 2015, by that certain Sixth Modification to Amended and Restated Loan Agreement dated as of January 29, 2016, by that certain Seventh Modification to Amended and Restated Loan Agreement dated as of March 1, 2016, and by that certain Eighth Modification to Amended and Restated Loan Agreement dated as of June 24, 2016 (as may be further amended, supplemented or otherwise modified from time to time, the “Prepetition Loan Agreement,” and the related facility, the “Prepetition Loan Facility”), by and between the LPL, as borrower, LPL III, LPL IV, LPI and LSDG, as guarantors, and Rimrock High Income Plus (Master) Fund, LTD (“Rimrock” or “Prepetition Lender”).

DIP Facility: The Debtors shall seek approval of a senior secured debtor-in-possession postpetition term loan financing agreement (the “DIP Term Agreement,” and together with related loan, security, collateral, and other documents, the “DIP Facility”) in the aggregate principal amount of up to $5 million, to be entered into by each of the Debtors and Rimrock Investor (in such capacity, the “DIP Lender”). The DIP Facility will be secured by a first priority lien on all assets of the Debtors. The principal balance drawn under the DIP Facility shall bear interest at a rate equal to 12% per annum, which amount shall be paid on the first business day of each month in arrears, either (a) in cash, or (b) “in kind” by adding such amount to the principal balance of the DIP Facility, based on the Debtors’ election. The DIP Facility will be a “delayed draw” term loan facility pursuant to which the Debtors may borrow up to $5 million pursuant to multiple draws made in accordance with the Budget (as defined below).


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The DIP Lender will charge no commitment, arrangement or other fees in connection with the DIP Facility. On, and subject to the occurrence of, the Effective Date (as defined below), in full and complete satisfaction of the obligations under the DIP Facility (other than expenses, which shall be paid in cash by the Debtors by no later than the Effective Date), the DIP Lender (or its designee) shall receive (a) the proceeds of the Exit Facility (as defined below), and (b) Class B-1 Membership Units (as defined below) in New HoldCo (as defined below) in a principal amount equal to the amount of outstanding obligations under the DIP Facility in excess of $2 million as of the Effective Date. The terms of the DIP Facility are set forth in greater detail in the DIP Term Sheet attached as Exhibit 1 (the “DIP Term Sheet”).

Purpose/Use of DIP Facility Proceeds:

Use of the proceeds of the DIP Facility shall be subject to an agreed upon budget (the “Budget”), and shall be used for: (i) working capital and general corporate purposes of the Debtors, and (ii) payment of the costs of administration of the Chapter 11 Cases, including, without limitation, the costs, fees and expenses incurred (A) in connection with the DIP Facility, and (B) by Rimrock or Rimrock Investor (in their respective capacities as either Prepetition Lender or DIP Lender) in connection with the Chapter 11 Cases, in each case, to the extent such costs, fees and expenses are reimbursable pursuant to the terms of the applicable loan documents.

Exit Equity Contribution: On the Effective Date, and in partial consideration for its receipt of certain Class A and Class B Membership Units, Rimrock Investor (or certain of its affiliates) shall contribute the following to the Reorganized Debtors:2 (a) all land, property and other assets that was transferred by the Debtors to Rimrock and then by Rimrock to Rimrock Investor on or around November 3, 2016 in connection with certain Deeds in Lieu delivered by the Debtors to Rimrock (collectively, the “Deed in Lieu Property Contribution”); (b) that certain approximately 2.2 acre parcel of property at the Project commonly referred to as Parcel J17 purchased by a Rimrock affiliate for $1,712,000 (the “J17 Parcel Contribution”); (c) if acquired by Rimrock or an affiliate of Rimrock, that certain approximately 6.058 acre parcel of property at the Project commonly referred to as the North Stars Way Parcel to be purchased for $450,000 (the “North Stars Way Parcel Contribution”); and

2 “Reorganized Debtors” means the Debtors on or after the Effective Date.


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(d) a commitment to contribute (either to Bartow County or directly to one or more approved contractors) an amount not less than $2,390,000 under that certain Supplemental Funding Agreement, dated as of February 7, 2018, between Bartow County and Rimrock Investor (the “County Development Contribution”, together with the Deed in Lieu Property Contribution, the J17 Parcel Contribution, and the North Stars Way Parcel Contribution, the “Exit Equity Contribution”).3

Exit Facility: On the Effective Date, Rimrock Investor (“Exit Lender”) will provide a revolving exit facility in the original principal amount of $2 million (the “Exit Facility”) by “rolling over” an equivalent amount of the DIP Facility. The Exit Facility will be secured by a first priority lien on all assets of the Reorganized Debtors. The Exit Facility shall bear interest at a rate equal to 12% per annum, which amount shall be paid on the first business day of each month in cash. The Exit Facility shall have an initial revolving balance and commitment of $2 million, but shall include an incremental revolving facility of up to an additional $18 million (for $20 million total) that may be borrowed by the Reorganized Debtors in the sole discretion of the Exit Lender upon request made by the Reorganized Debtors. The Exit Facility will have a maturity date of the five year anniversary of the Effective Date. The Exit Lender will charge no commitment, arrangement or other fees in connection with the Exit Facility.

Effective Date: The “Effective Date” shall mean (a) the first business day after the entry of the order confirming the Plan (the “Confirmation Order”) on which (i) the Confirmation Order is final and non-appealable, (ii) no stay of the Confirmation Order is in effect, and (iii) all conditions precedent to effectiveness of the Plan shall have been satisfied or waived, or (b) such other date as may be agreed to by the Debtors and Rimrock.

CLASSIFICATION AND TREATMENT OF CLAIMS IN THE PLAN

Unclassified Claims

DIP Facility Claims: All obligations, other than expenses (which shall be paid in cash by no later than the Effective Date), owed under or in connection with the DIP Facility by the Debtors (the “DIP Term Facility Claims”), shall be

3 The Plan and Confirmation Order shall provide that all property contributed to the Reorganized Debtors in connection making the Exit Facility Contribution shall vest in the Reorganized Debtors free and clear of any liens, claims and encumbrances that arise from or relate to the obligations against the Debtors.


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satisfied in full by (a) the $2 million proceeds of the Exit Facility, and (b) the distribution to the DIP Lender (or its designee) of Class B-1 Membership Units based on a capital contribution to New HoldCo equal to the amount of outstanding obligations under the DIP Facility in excess of $2 million as of the Effective Date. Not classified – non-voting.

Administrative Claims: Each Holder of an Allowed4 administrative claim against the Debtors under section 507(a)(2) of the Bankruptcy Code (an “Administrative Claim”) shall receive, in full satisfaction and discharge thereof, cash equal to the unpaid amount of such Allowed Administrative Claim (except to the extent that such holder agrees to less favorable treatment thereof) either: (a) if such Administrative Claim is Allowed on or prior to the Effective Date, on the Effective Date or as soon as reasonably practicable thereafter (or, if not then due and payable, when such Allowed Administrative Claim is due and payable or as soon as reasonably practicable thereafter); (b) if such Administrative Claim is not Allowed as of the Effective Date, no later than thirty (30) days after the date on which an order Allowing such Administrative Claim becomes a final order, or as soon as reasonably practicable thereafter; (c) if such Allowed Administrative Claim is based on liabilities incurred by the Debtors in the ordinary course of their business after the filing of the Chapter 11 Cases in accordance with the terms and conditions of the particular transaction giving rise to such Allowed Administrative Claim, without any further action by the holders of such Allowed Administrative Claim; (d) at such time and upon such terms as may be agreed upon by such holder and the Debtors (with the consent of Rimrock) or the Reorganized Debtors, as applicable; or (e) at such time and upon such terms as set forth in an order of the Bankruptcy Court. Not classified – non-voting.

Priority Tax Claims: Each holder of an Allowed priority tax claim against the Debtors under section 507(a)(8) of the Bankruptcy Code (a “Priority Tax Claim”) shall receive, in full satisfaction and discharge thereof, cash equal to the unpaid amount of such Allowed Priority Tax Claim (except to the extent that such holder agrees to less favorable treatment thereof) either on, or as soon as practicable after, the latest of (a) the Effective Date, (b) the date on which such Priority Tax Claim becomes Allowed, (c) the date on which such Priority Tax Claim becomes due and payable, and (d) such other date as mutually may be agreed to by and among such holder and the Debtors (with the consent of Rimrock) or the Reorganized Debtors, as applicable. Not classified – non-voting.

4 “Allowed” means, with respect to any claim, such claim or portion thereof against any Debtor that is allowed under the Plan, under the Bankruptcy Code, or by a final order, in each case subject to the limitations set forth in section 502 of the Bankruptcy Code.


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Unimpaired Classes of Claims and Interests

Class 1 – Other Secured Claims:

Each holder of an Allowed secured claim (other than a Class 3 Prepetition Lender Claim) against the Debtors (an “Other Secured Claim”) shall receive, in full and complete settlement, release, and discharge of such claim, in the sole discretion of the Debtors (with the consent of Rimrock) or the Reorganized Debtors, as applicable: (i) reinstatement of its Allowed Other Secured Claim in accordance with section 1124(2) of the Bankruptcy Code (including any cash necessary to satisfy the requirements for reinstatement), such that such claim is rendered unimpaired; (ii) either (a) cash in the full amount of such Allowed Other Secured Claim, including any postpetition interest accrued pursuant to section 506(b) of the Bankruptcy Code, (b) the proceeds of the sale or disposition of the collateral securing such Allowed Other Secured Claim, to the extent of the value of such holder’s secured interest in such collateral, (c) the collateral securing such Allowed Other Secured Claim and any interest on such Allowed Other Secured Claim required to be paid pursuant to section 506(b) of the Bankruptcy Code, or (d) such other distribution as necessary to satisfy the requirements of section 1129 of the Bankruptcy Code; or (iii) such other treatment as mutually may be agreed to by and among such holder and the Debtors or the Reorganized Debtors. Any cure amount that the Debtors may be required to pay pursuant to section 1124(2) of the Bankruptcy Code on account of any such reinstated Other Secured Claim shall be paid on, or as soon as practicable after, the latest of (x) the Effective Date, (y) the date on which such Other Secured Claim becomes Allowed, or (z) such other date as mutually may be agreed to by and among such holder and the Debtors or the Reorganized Debtors. Any distributions due pursuant to clause (ii) above shall be made either on, or as soon as practicable after, the latest of (I) the Effective Date, (II) the date on which such Other Secured Claim becomes Allowed, (III) the date on which such Other Secured Claim becomes due and payable, and (IV) such other date as mutually may be agreed to by such holder and the Debtors. A list of the Class 1 Other Secured Claims is set forth on the Claims and Interests Schedule. Unimpaired – deemed to accept.

Class 2 – Other Priority Claims:

Each holder of an Allowed priority claim against the Debtors under section 507(a) (other than Administrative Claims and Priority Tax Claims) (an “Other Priority Claim”) shall receive, in full and complete settlement, release, and discharge of such claim, (i) reinstatement of its Allowed Other Priority Claim in accordance with section 1124(2) of the Bankruptcy Code (including any cash necessary to satisfy the requirements for reinstatement), such that such claim is rendered unimpaired or (ii) such other treatment as mutually may be agreed to by and among such holder and the Debtors (with the consent of Rimrock) or the Reorganized Debtors. Any cure amount that the Debtors may be required to pay pursuant to section 1124(2) of the Bankruptcy Code on account of any such reinstated Other Priority Claim shall be paid on, or as soon as practicable after, the latest of (w) the Effective Date, (x) the


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date on which such Other Priority Claim becomes Allowed, (y) the date on which such Other Priority Claim otherwise is due and payable, and (z) such other date as mutually may be agreed to by and among such holder and the Debtors. Unimpaired – deemed to accept.

Class 4 – General Unsecured Claims:

Each holder of an Allowed general unsecured claim against the Debtors (a “General Unsecured Claim”) shall receive, at the election of the Debtors (with the consent of Rimrock) or the Reorganized Debtors, as applicable, in full and complete settlement, release, and discharge of such claim, (i) reinstatement pursuant to section 1124(2) of the Bankruptcy Code (including any cash necessary to satisfy the requirements for reinstatement), such that such claim is rendered unimpaired, (ii) payment in full in cash on, or as soon as practicable after, the latest of (a) the Effective Date, (b) the date on which such General Unsecured Claim becomes Allowed, (c) the date on which such General Unsecured Claim otherwise is due and payable, and (d) such other date as mutually may be agreed to by and among such holder and the Debtors, or (iii) such other treatment as mutually may be agreed to by and among such holder and the Debtors or the Reorganized Debtors. Any cure amount that the Debtors may be required to pay pursuant to section 1124(2) of the Bankruptcy Code on account of any such reinstated General Unsecured Claim shall be paid on, or as soon as practicable after, the latest of (w) the Effective Date, (x) the date on which such General Unsecured Claim becomes Allowed, (y) the date on which such General Unsecured Claim otherwise is due and payable, and (z) such other date as mutually may be agreed to by and among such holder and the Debtors. For the sake of clarity, Class General Unsecured Claims shall not include unsecured claims included in Class 5 (Freeman Note Claims), Class 6 (MOU Claims) or Class 7 (Executive Compensation Claims). A list of the Class 4 General Unsecured Claims is set forth on the Claims and Interests Schedule. Unimpaired – deemed to accept.

Class 8 – Intercompany Claims:

Each claim by and among the Debtors (an “Intercompany Claim”) shall, on the Effective Date, (i) be reinstated, in full or in part, and treated in the ordinary course of business or (ii) be cancelled and discharged, as determined by the Debtors, with the consent of Rimrock. Holders of Intercompany Claims shall not receive or retain any property on account of such Intercompany Claim to the extent that such Intercompany Claim is cancelled and discharged. Unimpaired – deemed to accept.

Impaired Classes of Claims and Interests Entitled to Vote

Class 3 – Prepetition Lender Claims:

In exchange for the complete settlement, release and discharge of the outstanding principal amount, accrued but unpaid interest and all other amounts owing under the Prepetition Loan Facility (other than expenses


8 12284659v1

and professional fees of the Prepetition Lender which will be paid in full in cash on the Effective Date), as well as in consideration for the making of the Exit Equity Contribution by Rimrock Investor and the waiver by Rimrock Investor of any distributions to which it may be entitled on account of its existing equity interests in LPL, on the Effective Date, the Prepetition Lender (or its designee) shall receive Class A Membership Units (the “Class A Membership Units”), Class B-1 Membership Units (the “Class B-1 Membership Units”), and Class B-2 Membership Units (the “Class B-2 Membership Units”, and together with the Class B-1 Membership Units and the Class B-3 Membership Units (defined below), the “Class B Membership Units”) issued by LakePoint Land Holdings, LLC (“New HoldCo”), a newly-formed entity that will hold 100% of the equity interests in Reorganized LPL upon the consummation of the Restructuring (and that will also issue the Class C through F Membership Units described below consistent with this Term Sheet). The number of Class A Membership Units issued to the Prepetition Lender (or its designee) shall be based on a capital contribution to New HoldCo equal to $4,552,000 (based on a pre-money valuation of New HoldCo equal to $50 million).5 The Class A Membership Units issued to the Prepetition Lender (or its designee) shall constitute 100% of the Class A Membership Units issued as of the Effective Date. The holders of Class A Membership Units shall be entitled to a return of capital and other distributions in accordance with the terms and priorities set forth in the equity waterfall attached hereto as Exhibit 2 (the “Waterfall”). The number of Class B-1 Membership Units issued to the Prepetition Lender (or its designee) shall be based on a capital contribution to New HoldCo equal to $61,600,000.6 Together with the Class B-1 Membership Units issued to the DIP Lender (or its designee) in satisfaction of the obligations under the DIP Facility, the Class B-1 Membership Units issued to the Prepetition Lender (or its designee) shall constitute 100% of the Class B-1 Membership Units issued as of the Effective Date. The holders of Class B-1 Membership Units shall be entitled to a return on capital, a return of capital and other distributions in accordance with the terms and priorities set forth in the Waterfall. The number of Class B-2 Membership Units issued to the Prepetition Lender (or its designee) shall be based on a capital contribution to New HoldCo equal to $10,000,000 and shall represent 100% of the Class B-2 Membership Units issued as of the Effective Date. The holders of Class B-2 Membership Units shall be entitled to a return of capital and other distributions in accordance with the terms and priorities set forth in the Waterfall.

5 This amount is equal to the amount of the J17 Parcel Contribution, the North Stars Way Parcel Contribution, and the County Development Contribution. 6 This amount is current as of March 31, 2018, and is subject to increase based on any necessary incremental prepetition advances by Rimrock to LPL.


9 12284659v1

In addition to the foregoing, all outstanding professional fees and expenses of the Prepetition Lender under the Prepetition Loan Agreement (including fees and expenses of legal advisors, financial advisors, and investment banks) shall be paid in full in cash by the Debtors on the Effective Date. Impaired – entitled to vote.

Class 5 – Affiliate Note Claims:

In exchange for the complete settlement, release and discharge of the outstanding principal amount, accrued but unpaid interest and all others amounts owing under those certain promissory notes issued by the Debtors in favor of certain affiliates or officers of the Debtors (as set forth on the Claims and Interests Schedule, the “Affiliate Notes”), on the Effective Date (or as soon as reasonably practicable thereafter), each holder of an Allowed claim under such Affiliate Notes (the “Affiliate Note Claims”) will receive Class E Membership Units issued by New HoldCo (the “Class E Membership Units”). Each holder of an Allowed Affiliate Note Claim shall receive a number of Class E Membership Units based on a capital contribution to New HoldCo equal to the Allowed outstanding principal amount of the Affiliate Notes held by such holder as of the Effective Date, adjusted to reflect the Membership Interest of LSDG as discussed in Class 10 below and as set forth in the Waterfall. The holders of Class E Membership Units shall be entitled to a return on capital (including interest accrued on the Affiliate Notes as of the Effective Date), a return of capital and other distributions in accordance with the terms and priorities set forth in the Waterfall. Impaired – entitled to vote.

Class 6 – MOU Claims: In exchange for the complete settlement, release and discharge of all obligations of the Debtors with respect to certain terminated Memoranda of Understanding (as set forth on the Claims and Interests Schedule, the “MOUs”), on the Effective Date (or as soon as reasonably practicable thereafter), each holder of an Allowed claim under such terminated MOUs (as set forth on the Claims and Interests Schedule, the “MOU Claims”) will receive Class F Membership Units issued by New HoldCo (the “Class F Membership Units”). Each holder of an Allowed MOU Claim shall receive a number of Class F Membership Units based on a capital contribution to New HoldCo equal to the Allowed principal amount of such holder’s claim against the Debtors as of the Effective Date pursuant to the terminated MOU to which such holder is a counterparty, adjusted to reflect the Membership Interest of LSDG as discussed in Class 10 below and as set forth in the Waterfall. The holders of Class F Membership Units shall be entitled to a return on capital, a return of capital and other distributions in accordance with the terms and priorities set forth in the Waterfall.


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Impaired – entitled to vote.

Class 7 – Executive Compensation Claims:

In exchange for the complete settlement, release and discharge of all obligations of the Debtors with respect to all claims arising under prepetition employment agreements, including, without limitation, any and all claims for deferred compensation, termination payments, or severance payments (as set forth on the Claims and Interests Schedule, the “Executive Compensation Claims”), on the Effective Date (or as soon as reasonably practicable thereafter), each holder of an Allowed Executive Compensation Claim will receive Class F Membership Units issued by New HoldCo. Unless otherwise specifically assumed by the Debtors in accordance with the terms of the Plan, all executive employment agreements will be rejected by the Debtors prior to or in connection with the occurrence of the Effective Date. Each holder of an Allowed Executive Compensation Claim shall receive a number of Class F Membership Units based on a capital contribution to New HoldCo equal to the Allowed amount of deferred compensation owed to such holder by the Debtors as of the Effective Date, adjusted to reflect the Membership Interest of LSDG as discussed in Class 10 below and as set forth in the Waterfall. The holders of Class F Membership Units shall be entitled to a return on capital, a return of capital and other distributions in accordance with the terms and priorities set forth in the Waterfall. Impaired – entitled to vote.

Impaired Classes of Interests Entitled to Vote

Class 9 – Preferred Member Interests:

In exchange for the complete settlement, release, discharge, cancellation, and extinguishment of the equity interests held by the Preferred Members in, to and against LPL (as set forth on the Claims and Interests Schedule, the “Preferred Member Interests”), on the Effective Date (or as soon as reasonably practicable thereafter), each holder of a Preferred Member Interest will receive Class C Membership Units issued by New HoldCo (the “Class C Membership Units”). Each holder of an Allowed Preferred Member Interest shall receive a number of Class C Membership Units based on a capital contribution to New HoldCo equal to the principal amount of the capital account held by such holder against LPL on account of its Allowed Preferred Member Interest as of the Effective Date, adjusted to reflect the Membership Interest of LSDG as discussed in Class 10 below and as set forth in the Waterfall. The holders of Class C Membership Units shall be entitled to a return on capital (including preferred returns accrued on the Preferred Member Interests as of the Effective Date), a return of capital and other distributions in accordance with the terms and priorities set forth in the Waterfall. Impaired – entitled to vote.


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Class 10 – Common Member Interests:

In exchange for the complete settlement, release, discharge, cancellation, and extinguishment of the equity interests held by LPI and LSDG in, to and against LPL (as set forth on the Claims and Interests Schedule, the “Common Member Interests”), on the Effective Date (or as soon as reasonably practicable thereafter), (i) LPI, as a holder of Allowed Common Member Interests with respect to additional capital contributions made in 2015, shall receive Class D-1A Membership Units issued by New HoldCo (the “Class D-1A Membership Units”), (ii) LPI, as a holder of Allowed Common Membership Interests with respect to original capital contributions made in 2011 through 2013, shall receive Class D-1B Membership Units issues by New HoldCo (the “Class D-1B Membership Units”), and (iii) LSDG, as a holder of Allowed Common Member Interests, will receive Class D-2 Membership Units issued by New HoldCo (the “Class D-2 Membership Units” and together with the Class D-1A Membership Units and the Class D-1B Membership Units, the “Class D Membership Units”). For the sake of clarity, LPI and LSDG are receiving different tranches of Class D units as a matter of administrative convenience due to the fact that LPI has paid in capital with respect to its Common Member Interests (which is entitled to priority as set forth in the Waterfall) and LSDG does not. LPI, as holder of an Allowed Common Member Interest shall receive a number of Class D-1A Membership Units based on a capital contribution to New HoldCo equal to the principal amount of the capital account held by such holder against LPL on account of its Allowed Common Member Interest as of the Effective Date with respect to additional capital contributions made in 2015, adjusted to reflect the Membership Interest of LSDG as discussed below and as set forth in the Waterfall. The holders of Class D-1A Membership Units shall be entitled to a return on capital (including preferred returns accrued on the Common Member Interests as of the Effective Date), a return of capital and other distributions in accordance with the terms and priorities set forth in the Waterfall (with it being understood that only holders of Class D-1A and D-1B Membership Units will have capital accounts on the Effective Date). LPI, as holder of an Allowed Common Member Interest shall receive a number of Class D-1B Membership Units based on a capital contribution to New HoldCo equal to the principal amount of the capital account held by such holder against LPL on account of its Allowed Common Member Interest as of the Effective Date with respect to the original capital contributions made in 2011 through 2013, adjusted to reflect the Membership Interest of LSDG as discussed below and as set forth in the Waterfall. The holders of Class D-1B Membership Units shall be entitled to a return on capital (including preferred returns accrued on the Common Member Interests as of the Effective Date), a return of capital and other distributions in accordance with the terms and priorities set forth in the Waterfall (with it being understood that only holders of Class D-1A Membership Units and Class D-1B Membership Units will have capital accounts on the Effective Date).


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LSDG, as holder of an Allowed Common Member Interest shall receive a number of Class D-2 Membership Units proportional to the number of D-1A Membership Units and D-1B Membership Units received by LPI, determined by dividing the capital account of LPI by 51.5825% (percentage of LPI’s Existing Ownership of LPL) and multiplying the result by 25.6361% (percentage of LSDG’s Existing Ownership of LPL) The holders of Class D-2 Membership Units shall be entitled to distributions in accordance with the terms and priorities set forth in the Waterfall. Impaired – entitled to vote.

Impaired Classes of Interests Not Entitled to Vote

Class 11 – Rimrock Investor Member Interests:

On the Effective Date, the existing equity interests held by Rimrock Investor in, to and against LPL shall be cancelled, extinguished and discharged, and Rimrock Investor shall not receive or retain any property or interest on account of such interest. Impaired – deemed to reject.

OTHER PROVISIONS

New HoldCo and LPL Operating Agreements:

On the Effective Date, the holders of Class A through F Membership Units of New HoldCo (collectively, the “Membership Units” and the holders of such Membership Unit, the “Members”) will enter into an operating agreement with respect to the governance and operation of New HoldCo (the “HoldCo Operating Agreement”). Furthermore, the existing operating agreement of LPL shall be amended and restated to (a) reflect 100% ownership of Reorganized LPL by New HoldCo, and (b) provide that Reorganized LPL will be managed by its sole member, New HoldCo (the “Amended LPL Operating Agreement”). The HoldCo Operating Agreement will provide for a Board of Directors initially consisting of three (3) members, with one (1) seat for the CEO and two (2) seats to be appointed by Members holding a majority of the Membership Units (which shall initially be Rimrock and/or Rimrock Investor). The HoldCo Operating Agreement will also include the following provisions (as well as other customary approval rights and purchase and sell provisions):

(i) Preemptive Rights: With respect to (a) any future offering of Class A or Class B Membership Units, or (b) any future offering of any other equity interests or debt securities in or by New HoldCo in which one or more Class A or Class B Members has committed to participate (excluding any incremental borrowings under the Exit Facility) (any such


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offering set forth in subsection (a) or (b), a “Class A/B Offering”), the Class C through F Members shall have the right to participate in such Class A/B Offering on a pro rata basis based on their respective holdings of all issued and outstanding Membership Units; provided, however, that, notwithstanding the foregoing, for a period of three (3) years after the Effective Date, New HoldCo may sell up to $5 million of additional Class A Membership Units (based on a pre-money valuation of $54.552 million) to any person or entity (including any existing Member) without offering preemptive purchase rights to the Class C through F Members. With respect to any equity or debt offering other than a Class A/B Offering, the Members shall have no preemptive rights so long as (y) such offering has been approved by the Board of Directors, and (z) if such offering is an equity offering, the class of equity offered shall have a distribution priority that is either (i) senior to all existing Membership Units, or (ii) junior to all existing Membership Units.

(ii) Right of First Offer: Whenever any Member with more than

5% of the then outstanding Membership Units excluding outstanding Class B-3 Membership Units (any such Member, a “Major Unitholder”) desires to transfer all or any portion of its Membership Units, such Major Unitholder shall first deliver to each Member holding at least 5% of the Class A, Class B-1 and B-2 Membership Units in the aggregate (each, an “Offeree”) written notice (the “Offer Notice”) that sets forth the number of Membership Units, the amount per Membership Unit that such holder proposes to be paid for the Membership Units (the “Sale Price”), the manner of payment and the material terms of such sale. The Offer Notice shall constitute an irrevocable offer by such Major Unitholder to sell to the Offerees at the Sale Price on the terms set forth in the Offer Notice. Each Offeree shall have fourteen (14) business days to respond to such offer.

(iii) Majority Voting: The following actions will require the

approval of the Members holding at least fifty-one percent (51%) of the outstanding Membership Units excluding outstanding Class B-3 Membership Units:

(a) any sale, lease, or other disposition of, all or

substantially all of the assets of New HoldCo; (b) purchase, lease, exchange, or otherwise acquire

securities or assets of any other person (other than a Reorganized Debtor or any wholly owned subsidiary of New HoldCo or any Reorganized Debtor), involving aggregate consideration paid by New HoldCo or its subsidiaries (including by way of assumption of liabilities) in excess of $5,000,000;


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(c) merge, consolidate with or into, engage in a share

exchange with, or otherwise consummate any business combination transaction with, any other person (other than transactions solely involving the merger or consolidation of a wholly owned subsidiary of New HoldCo with or into, or a share exchange by a wholly owned subsidiary of New HoldCo with, New HoldCo or another wholly owned subsidiary of New HoldCo);

(d) commence any proceeding or file any petition seeking

relief under any insolvency law, consent to the institution of or fail to contest in a timely and appropriate manner any such proceeding or filing under any insolvency law, apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, or similar official for New HoldCo or any of its subsidiaries or assets; initiate or take any action for the liquidation, dissolution or winding up of New HoldCo or any of its subsidiaries; make a general assignment for the benefit of creditors; or take or authorize the taking of any action for the purpose of effecting any of the foregoing; or

(e) cause Reorganized LPL or any of its subsidiaries to do

any of the foregoing.

(iv) Amendments: The HoldCo Operating Agreement may be amended from time to time by one or more Members holding a majority of the Membership Units; provided, however, any amendment, modification or waiver of any provision of the HoldCo Operating Agreement that disproportionately, materially and adversely affects any Member (or class of Membership Units) shall require the approval of such Member.

(v) Voting; Thresholds: Any voting or other shareholder

thresholds set forth above shall be without reference to or dilution by the Class B-3 Membership Units.

The HoldCo Operating Agreement and the Amended LPL Operating Agreement shall be consistent with the foregoing and shall be in form and substance acceptable to Rimrock in its sole discretion. By no later than ten (10) days prior to the voting deadline on the Plan, copies of the proposed HoldCo Operating Agreement and the Amended LPL Operating Agreement shall be filed with the Bankruptcy Court and served on all holders of claims and interests entitled to vote on the Plan. A pro forma schedule of the capital accounts (and accrued interest) that are estimated to be held by the Members as of the Effective Date is included as an attachment to the Waterfall.


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For the sake of clarity, Rimrock and Rimrock Investor will hold a majority of the Membership Units on the Effective Date and will control all operations and management of the Reorganized Debtors at that time.

Management Incentive Plan

Certain Membership Units representing ten percent (10%) of all Membership Units (other than Class A Membership Units) shall be reserved and may be issued post-Effective Date to the management, employees or consultants of the Reorganized Debtors in accordance with the terms and conditions of any incentive plan or employment or consulting agreement approved by the Board of Directors of New HoldCo (such Membership Units, the “Class B-3 Membership Units”). The holders of Class B-3 Membership Units shall be entitled to receive distributions in accordance with the terms and priorities set forth in the Waterfall.

Executory Contracts and Unexpired Leases:

The Debtors shall seek to assume or reject executory contracts and unexpired leases in consultation with, and with the consent of, Rimrock.

The Plan will provide that the executory contracts and unexpired leases that are not assumed or rejected as of the Effective Date (either pursuant to the Plan or a separate motion) will be deemed rejected pursuant to section 365 of the Bankruptcy Code. For the avoidance of doubt, the consent of Rimrock shall be required to be obtained with respect to all decisions to assume or reject, including the deemed rejection of executory contracts and unexpired leases pursuant to the Plan.

Upon the occurrence of the Effective Date, unless otherwise agreed to by the Debtors and approved by Rimrock, all contracts, leases and agreements (including, without limitation, any management or similar agreements) between any of the Debtors, on the one hand, and LSDG and/or LPI, on the other hand, shall be deemed rejected and terminated as of the Effective Date (and by and through their acceptance of the Plan, LSDG and LPI agree that they shall receive no consideration under the Plan on account of the rejection and termination of such contracts, leases and agreements).

The Debtors shall use their commercially reasonable efforts to cause the Bankruptcy Court to approve the assumption of that certain Separation Agreement and Release between LPL and W. Neal Freeman, that certain Consulting Agreement between LPL and W. Neal Freeman, and that certain Separation Agreement and Release between LPL and Earl Ehrhart in connection with the occurrence of the Effective Date.

Project Governance: On or before the Effective Date (and as a condition to the occurrence thereof), the Debtors shall cause the following to occur with respect to the operation and governance of the LakePoint Sporting Community & Town Center (the “Project”):

(i) the Board of the LakePoint Master Owners’ Association, Inc.


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(the “MOA”) shall be replaced with such persons designated by Rimrock (and the composition of such Board and the management composition of the MOA shall otherwise be satisfactory to Rimrock in its sole discretion);

(ii) the Design Review Committee (the “DRC”) described in that certain Master Declaration of Protective Covenants, Conditions, Restrictions, Easements for LakePoint Sporting Community & Town Center dated August 16, 2011 (as amended to date) shall be replaced with such persons designated by Rimrock (and the composition of the DRC shall otherwise be satisfactory to Rimrock in its sole discretion);

(iii) the Debtors’ designees on the Board of the Red Top Community Improvement District (the “CID”) shall be replaced with such persons designated by Rimrock (and the composition of such Board and the management composition of the CID shall otherwise be satisfactory to Rimrock in its sole discretion); and

(iv) with respect to any other governing bodies or other entities related to the Project to which the Debtors are entitled to appoint board members or other officers or responsible persons, the Debtors shall have replaced such persons with persons designated by Rimrock (and the composition of such boards and the management composition of such governing bodies or entities shall otherwise be satisfactory to Rimrock in its sole discretion).

Exemption from SEC Registration:

To the extent available, the issuance of any securities under the Plan shall be exempt from SEC registration under section 1145 of the Bankruptcy Code. To the extent section 1145 is unavailable, such securities shall be exempt from SEC registration as a private placement pursuant to Section 4(2) of the Securities Act of 1933, as amended, and/or the safe harbor of Regulation D promulgated thereunder, or such other exemption as may be available from any applicable registration requirements.

Chapter 11 Milestones: The Debtors shall satisfy the following chapter 11 milestones (the “Milestones”). The Debtors’ failure to satisfy any of the below milestones shall constitute an event of default by the Debtors under the Restructuring Support Agreement.

• The Bankruptcy Court’s entry of an interim order (in form and substance acceptable to the DIP Lender) approving the DIP Facility on or before three (3) calendar days following the filing of the Chapter 11 Cases (the “Petition Date”).

• No later than 21 calendar days after the Petition Date the Debtors shall have filed the Plan, in form and substance satisfactory to Rimrock, and consistent with this Term Sheet and


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the Restructuring Support Agreement.

• No later than 21 calendar days after the Petition Date the Debtors shall have filed a disclosure statement motion and disclosure statement (the “Disclosure Statement”) in form and substance satisfactory to Rimrock.

• No later than 21 calendar days after the Petition Date the Debtors shall have filed their schedules and Statement of Financial Affairs with the Bankruptcy Court.

• The Bankruptcy Court’s entry of a final order (in form and substance acceptable to the DIP Lender) on or before 35 calendar days following the Petition Date.

• No later than 35 calendar days after the Petition Date the Bankruptcy Court shall have entered an order setting the date (the “Bar Date”) by which proofs of claim and interests for creditors and interest holders must be filed. The Bar Date order shall require that all creditors with unliquidated or contingent claims include an estimate of the liquidated non-contingent value of such creditor’s claim.

• The hearing on the Disclosure Statement shall have been heard by the Bankruptcy Court on or before 60 calendar days following the Petition Date.

• The Bankruptcy Court’s entry of an order, in form and substance reasonably satisfactory to Rimrock, approving the Disclosure Statement (the “Disclosure Statement Order”) on or before 62 calendar days following the Petition Date.

• The Bar Date shall have occurred on or before 65 calendar days following the Petition Date.

• The Debtors shall have commenced solicitation on the Plan on or before 65 calendar days following the Petition Date.

• The hearing on Plan confirmation shall have been heard by the Bankruptcy Court on or before 110 calendar days following the Petition Date.

• The Bankruptcy Court’s shall have entered an order, in form and substance satisfactory to Rimrock, confirming the Plan (the “Plan Confirmation Order”) on or before 114 calendar days following the Petition Date.

The Effective Date shall have occurred not later than 128 calendar days following the Petition Date.

Conditions Precedent to Occurrence of the Effective Date:

The following conditions shall be met to the satisfaction of the Debtors and Rimrock as a condition to the occurrence of the Effective Date:


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• The Disclosure Statement Order shall have been entered.

• The Confirmation Order shall have been entered, without any material modification that would require re-solicitation, and shall be final and non-appealable and shall not be subject to any stay.

• The Debtors shall be in material compliance with all covenants in, and the satisfaction or waiver of all the conditions in, the Restructuring Support Agreement.

• Rimrock Investor shall have made the Exit Equity Contribution and the Confirmation Order shall provide that the Exit Equity Contribution will vest in the Reorganized Debtors free and clear of any and all liens and claims arising from obligations owed by the Debtors (other than agreed upon permitted encumbrances).

• The proceeds of the Exit Facility, together with cash on hand upon the consummation of the Restructuring, shall be sufficient to fund the Restructuring consistent with this Term Sheet.

• The execution and delivery of the HoldCo Operating Agreement, the Amended LPL Operating Agreement, the Exit Facility documents, and all other definitive documents necessary to accomplish the Restructuring consistent with this Term Sheet and the Plan.

• The replacement of the MOA Board, the DRC and the CID Board consistent with this Term Sheet.

• The absence of material litigation restraining or materially altering the Restructuring.

• No claims or interests have been filed against the Debtors in an amount more than $500,000 greater (either individually or in the aggregate) than those set forth on the Schedule of Claims and Interests that (a) have been Allowed by the Bankruptcy Court, or (b) that Rimrock has determined are bona fide in nature (based on its reasonable judgment and determination).

• That certain Indoor Support Agreement dated as of February 7, 2018, by and among LP Indoor Pavilion, LLC (“LPIP”), the Development Authority of Bartow County, and Bartow County Georgia shall not have been terminated and shall be continuing and binding upon the parties thereto as of the Effective Date.

• The absence of an event or occurrence that has caused (or is reasonably likely to cause) a material adverse effect with respect to the Debtors, their operations, their assets or the Project.


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Releases: The Plan will provide ordinary and customary releases for the Released Parties. “Released Party” means each of the following: (a) each Debtor and Reorganized Debtor; (b) the Debtors’ current and former officers and directors; (c) the Prepetition Lender; (d) the DIP Lender; (e) Rimrock Investor; (f) the parties to the Restructuring Support Agreement; and (g) with respect to each of the foregoing entities in clauses (a) through (f), such entities’ predecessors, successors and assigns, subsidiaries, affiliates, managed accounts or funds, current or former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, fund advisors and other professionals, and such entities’ respective heirs, executors, estates, servants and nominees, in each case, solely in their capacity as such. To the maximum extent permitted by applicable law, the Plan shall provide for a full release from liability of the Released Parties by the Debtors, all of their creditors and all of their interest holders from any claims and causes of action, whether known or unknown, foreseen or unforeseen, arising from or related to any actions, transactions, events or omissions before the Effective Date relating to the Debtors, the Chapter 11 Cases or the obligations under the Prepetition Loan Facility, the Prepetition Loan Agreement or the DIP Facility; provided, however, (i) the foregoing release shall not apply to obligations arising under the Plan (or otherwise assumed pursuant thereto); (ii) the foregoing release shall not be construed to prohibit a party in interest from seeking to enforce the terms of the Plan; and (iii) the foregoing release shall not apply to any confidentiality, non-solicitation, non-competition or other provisions of any employment agreement that otherwise survives the termination or expiration of such agreement pursuant to its terms.

Exculpation: Customary exculpation provisions, including all Released Parties.

Injunction: Customary injunction provisions, including all Released Parties.

Discharge: Customary discharge provisions.

Tax Issues The Restructuring shall be structured to preserve favorable tax attributes to the extent practicable and shall be otherwise acceptable to Rimrock.

Other Terms and Conditions

The Plan, the definitive documentation and other material agreements relating to the Restructuring shall be in form and substance satisfactory to the Debtors and Rimrock, and shall contain such other terms and conditions consistent with this Term Sheet as are customary for transactions of this type.


Class 1 - Other Secured Claims1 None -$

Class 2 - Other Priority Claims2 None -$

Class 4 - General Unsecured Claims(1)

4a Accts Payable 137,667$ 4b Accrued Liabilities 423,203$ 4c Housing Rebates Owed 7,702$ 4d Event Deposits Held 9,660$ 4e Kiosk Lease Deposits Held 9,600$

TOTAL 587,832$

Class 8 - Intercompany Claims8 None - on consolidated basis -$

Class 3 - Prepetition Lender Claims(2)

3 Rimrock High Income Plus Fund, LP 22,401,250$

Class 5 - Affiliate Note Claims(2)

5 Neal Freeman (4 notes) 3,123,985$

Class 6 - MOU Claims(2)

6 7 Parties 3,274,883$

Class 7 - Executive Compensation Claims(2)

7 5 Parties 1,189,220$

Class 9 - Preferred Member Interests(2)

9 24 Parties 7,296,817$

Class 10 - Common Member Interests(2)

10 1 Party 26,344,872$

Class 11 - Rimrock Investor Members Interests:11 None -$

Notes:(1) As of May 31, 2018(2) As of June 6, 2018

Schedule 1Claims and Interest Schedule

Schedule 1 - Page 1 of 3



Class Name Amount3 Rimrock High Income Plus Fund,LP 22,401,250$ 5 W. Neal Freeman 3,123,985$ 6 Sport Parks of Georgia, LLC 1,056,831$ 6 Wilwat Properties, Inc. 1,020,235$ 6 TriCapita, LLC 334,224$ 6 Site Services Group, LLC 301,977$ 6 MCS Realty Services, Inc. 237,203$ 6 Smartegies, LLC 196,013$ 6 SSG Investment, LLC 128,400$ 7 Earl Ehrhart 397,667$ 7 W. Neal Freeman 287,583$ 7 Belt & Associates, Inc. 247,000$ 7 Robert D. Zurcher 129,470$ 7 Jonathan D. Crumly, Sr. 127,500$ 9 Lagoon Invesments, LLC 1,800,000$ 9 L. Craig Ramsey 1,272,002$ 9 Creola Holdings, LLC 1,000,000$ 9 John Stegeman 1,000,000$ 9 Worthington Hyde Partners - IV, L.P. 500,000$ 9 DB 2006 Family Trust 395,589$ 9 Neal Freeman 300,000$ 9 George & Alyne Sertl 237,352$ 9 Robert Stickel 100,000$ 9 Jeremy Schell 100,000$ 9 Steve Powers 100,000$ 9 Fernando Nasmyth 100,000$ 9 Bruce and Louise Plagman 74,781$ 9 Michael Morris 74,781$ 9 GKB LakePoint Invest, LLC 62,700$ 9 Betty T. Freeman Recep. Trust 55,002$ 9 Ron & Deborah Bailey 39,558$ 9 Bonny Snyder 19,779$ 9 Schuler Family Trust 19,779$ 9 Ralson & Kimberly Goetz 9,892$ 9 William Worthington 9,892$ 9 Katherine Lughes 9,892$ 9 Jessica Roles Plagman Hill 7,909$ 9 Tony Plagman 7,909$

10 LakePoint Investors, LLC 26,344,872$ 4a LakePoint MOA, Inc. 56,703$ 4a Wakefield Beasley & Assoc Architects Inc 34,754$

DETAIL




4a Neal Freeman (reimb) 17,586$ 4a Parker Systems, LLC 11,060$ 4a GA Power 1,073$ 4a LP Indoor Pavilion LLC 496$ 4a 7 Hills Fire Protection Co., Inc. 455$ 4a Titan Rentals 399$ 4a RallyVB at LakePoint LLC 78$ 4a Georgia Department of Revenue 43$ 4a Neal Freeman 5,343$ 4a Geo-Hydro Engineers, Inc. 9,450$ 4a Haines, Gipson & Associates Inc. 225$ 4b Brasfield & Gorrie, LLC 148,573$ 4b TGC, LLC 148,191$ 4b South Campus Land Consortium One, LLC 66,440$ 4b Marshal Eagle 60,000$ 4c LP Indoor Pavilion, LLC 5,338$ 4c LPIP Event Organizer 1,351$ 4c SLAX Event operators 1,014$ 4d Southern Soccer Academy 4,660$ 4d DLC Sports Inc 3,000$ 4d Trilogy Lacrosse 1,000$ 4d Grand Sports Management 1,000$ 4e PT Solutions 1,500$ 4e Baseballism, Inc. 1,200$ 4e Evoshield LLC 1,200$ 4e Louisville Slugger/Wilson 1,200$ 4e M^Powered Strategic Partners Inc. 1,200$ 4e Rawlings Sporting Goods Company, Inc. 1,200$ 4e Heart of a champion 1,000$ 4e Game Ready (S Medical) 800$ 4e Collegiate Sports of America Inc. 300$

TOTAL 64,218,859$



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_______________________________________________________________________________

EXHIBIT 1 LAKEPOINT LAND, LLC, et al.,

DIP TERM SHEET ____________________________________________________________________________________

This term sheet (“DIP Term Sheet”) outlines certain terms of the DIP Facility (as defined below) committed to be provided by the DIP Lender (as defined below) subject to the conditions herein and as set forth more fully below.

Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed thereto in the Restructuring Support Agreement (“RSA”) and Plan Term Sheet (“Plan Term Sheet”) to which this DIP Term Sheet is attached. This DIP Term Sheet is subject to execution of definitive documentation in form and substance reasonably acceptable to the DIP Lender. In the event of any conflict between this DIP Term Sheet and the Plan Term Sheet, the Plan Term Sheet shall control. Borrowers: Each of the foregoing parties as co-Borrowers on a joint and several basis:

LakePoint Land, LLC (“LPL”), LakePoint Land III, LLC (“LPL III”), LakePoint Land IV, LLC (“LPL IV”), LakePoint Services, LLC (“LP Services”), LakePoint Sports South, LLC (“LP Sports”), LakePoint Housing, LLC (“LP Housing”), LakePoint Hospitality, LLC (“LP Hospitality”), and LakePoint Merchandise, LLC (“LP Merchandise” and together with LPL, LPL III, LPL IV, LP Services, LP Sports, LP Housing and LP Hospitality, the “Borrowers”). This DIP Term Sheet assumes that each of the Borrowers will file voluntary proceedings simultaneously under the Bankruptcy Code in the Bankruptcy Court and will request joint administration of the Chapter 11 Cases (in their capacities as debtors and debtors-in-possession, each a “Debtor”, and collectively, the “Debtors”).

DIP Lender: LP Investments I, LLC (in such capacity, together with its successors and permitted assigns, the “DIP Lender”).

Type and Amount of the DIP Facility:

A new money non-amortizing multiple draw term loan facility in an aggregate principal amount not to exceed $5 million (the “DIP Facility”; the DIP Lender’s commitment under the DIP Facility, the “DIP Commitment”; the loans under the DIP Facility, the “DIP Loans”). The DIP Loans will be made for purposes not inconsistent with the Budget (as defined below). The DIP Loans may be incurred during the Availability Period (as defined below) upon periodic draw requests made by the Debtors to the DIP Lender setting forth the amounts that the Debtors desire to borrow under the DIP Facility (each a “Draw Request”). The Debtors shall not be permitted to submit any Draw Request (and the DIP Lender shall not be required to honor any such Draw Request) seeking DIP Loans greater than the Debtors’ anticipated borrowings set forth in the Budget (taking into consideration any Permitted Variances (defined below)) for the two week period immediately following the date of such Draw Request (after taking into account any prior


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DIP Loans advanced with respect to such period). The Absent the consent of the DIP Lender, the Debtors shall not be permitted to submit a Draw Request more than once per calendar week. The date that the DIP Lender honors any Draw Request by making a DIP Loan shall be referred to herein as a “Draw Date.” Once repaid, the DIP Loans incurred under the DIP Facility cannot be reborrowed.

Credit Bidding: The Orders (as defined below) and the DIP Loan Documents shall provide that, in connection with any sale of any of the Debtors’ assets under section 363 of the Bankruptcy Code or under a plan of reorganization (i) the Prepetition Lender shall have the right to credit bid the full amount of all amounts due and outstanding under the Prepetition Loan Documents (the “Prepetition Obligations”), and (ii) the DIP Lender shall have the right to credit bid all amounts outstanding under the DIP Facility, in each case, in accordance with section 363(k) of the Bankruptcy Code.

Availability Period: The DIP Loans may be drawn during the period from and including the Closing Date up to but excluding the DIP Termination Date (as defined below) (such period, the “Availability Period”). The DIP Commitment will expire at the end of the Availability Period. The DIP Commitment shall be permanently reduced on each Draw Date by the aggregate principal amount of DIP Loans made and advanced to Borrowers on such Draw Date.

Closing Date: The date of the satisfaction or waiver by the DIP Lender of the relevant “Conditions Precedent to the Closing of the DIP Facility” set forth below (the “Closing Date”).

Maturity: Subject to the terms of the Plan Term Sheet, all DIP Obligations (as defined below) will be due and payable in full in cash on the earliest of (i) the date that is 130 calendar days after the Petition Date (as defined below), (ii) the consummation of any sale of all or substantially all of the assets of the Debtors pursuant to Section 363 of the Bankruptcy Code, (iii) if the Final Order (as defined below) has not been entered, the date that is thirty-five (35) calendar days after the Petition Date, (iv) the acceleration of the DIP Loans and the termination of the DIP Commitments upon the occurrence of an event referred to below under “Termination”, and (v) the Effective Date (any such date, the “DIP Termination Date”). Principal of, and accrued interest on, the DIP Loans and all other amounts owing to the DIP Lender under the DIP Facility shall be payable on the DIP Termination Date.

Use of Proceeds: Proceeds of the DIP Loans under the DIP Facility shall be used for: (i) working capital and general corporate purposes of the Debtors, and (ii) payment of the costs of administration of the Chapter 11 Cases, including, without limitation, the costs, fees and expenses incurred (A) in connection with the DIP Facility, and (B) by Rimrock or Rimrock Investor (in their respective capacities as either Prepetition Lender or DIP Lender) in connection with the Chapter 11 Cases, in each case, to the extent such costs, fees and expenses are reimbursable pursuant to the terms of the applicable loan documents.


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Without in any way limiting the foregoing, no DIP Collateral (as defined below), proceeds of the DIP Loans, any portion of the Carve-Out (as defined below) or any other amounts may be used directly or indirectly by any of the Debtors, the official committee of unsecured creditors appointed in the Chapter 11 Cases (the “Committee”), if any, or any trustee or other estate representative appointed in the Chapter 11 Cases (or any successor case) or any other person or entity (or to pay any professional fees, disbursements, costs or expenses incurred in connection therewith): (a) to seek authorization to obtain liens or security interests that are senior to, or on a parity with, the DIP Liens or the Superpriority DIP Term Facility Claims (each as defined below) (except to the extent expressly set forth herein); or (b) to investigate (including by way of examinations or discovery proceedings), prepare, assert, join, commence, support or prosecute any action for any claim, counter-claim, action, proceeding, application, motion, objection, defense, or other contested matter seeking any order, judgment, determination or similar relief against, or adverse to the interests of, in any capacity, against any of the DIP Lender, the Prepetition Lender, and each of their respective officers, directors, controlling persons, employees, agents, attorneys, affiliates, assigns, or successors of each of the foregoing (collectively, the “DIP Released Parties”), with respect to any transaction, occurrence, omission, action or other matter (including formal discovery proceedings in anticipation thereof), including, without limitation: (i) any claims or causes of action arising under chapter 5 of the Bankruptcy Code; (ii) any so-called “lender liability” claims and causes of action; (iii) any action with respect to the validity, enforceability, priority and extent of, or asserting any defense, counterclaim, or offset to, the DIP Obligations, the Superpriority DIP Term Facility Claims, the DIP Liens, the DIP Loan Documents, the documents evidencing the Prepetition Loan Facility (collectively, the “Prepetition Loan Documents”), or the Prepetition Obligations; (iv) any action seeking to invalidate, modify, set aside, avoid or subordinate, in whole or in part, the DIP Obligations or the Prepetition Obligations; (v) any action seeking to modify any of the rights, remedies, priorities, privileges, protections and benefits granted to either (A) the DIP Lender hereunder or under any of the DIP Loan Documents, or (B) the Prepetition Lender under any of the Prepetition Loan Documents (in each case, including, without limitation, claims, proceedings or actions that might prevent, hinder or delay the DIP Lender’s assertions, enforcements, realizations or remedies on or against the DIP Collateral (as defined below) in accordance with the applicable DIP Loan Documents and the Orders); or (vi) objecting to, contesting, or interfering with, in any way, the DIP Lender’s enforcement or realization upon any of the DIP Collateral once an Event of Default (as defined below) has occurred; provided, however, that no more than $25,000 in the aggregate of the DIP Collateral, the Carve-Out, proceeds from the borrowings under the DIP Facility or any other amounts, may be used by any Committee to investigate claims and/or liens of the Prepetition Lender under the Prepetition Loan Agreement.

Documentation: The DIP Facility will be evidenced by a credit agreement (the “DIP Credit Agreement”), security documents, guarantees and other legal documentation (collectively, together with the DIP Credit Agreement, the “DIP Loan


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Documents”) reasonably required by the DIP Lender, which DIP Loan Documents shall be in form and substance consistent with this term sheet and otherwise satisfactory to the DIP Lender.

Controlled Accounts: The Debtors shall use commercially reasonable efforts to enter into a deposit account control agreement, within three weeks of the Petition Date, with respect to accounts holding the DIP Proceeds (collectively, the “Controlled Accounts”), which establishes “control” (as defined in the Uniform Commercial Code as in effect from time to time in the State of Georgia) in favor of the DIP Lender, in form and substance satisfactory to the DIP Lender. The DIP Credit Agreement shall require the Debtors to maintain the DIP Proceeds in the Controlled Accounts except as permitted to be used in accordance with the Budget.

Interest: The principal balance drawn under the DIP Facility will bear interest at a rate equal to 12% per annum, which amount shall be paid on the first business day of each month in arrears, either (a) in cash, or (b) “in kind” by adding such amount to the principal balance of the DIP Facility, based on the Debtors’ election. In the event that no election is made, the interest shall be paid “in kind” pursuant to clause (b). Interest shall be calculated on the basis of the actual number of days elapsed in a 360 day year.

Default Interest: Upon the occurrence of and during the continuance of a default or an Event of Default under the DIP Loan Documents, the DIP Obligations (as defined below) will bear interest at a rate equal to 14% per annum.

Voluntary Prepayments: Voluntary prepayments of the DIP Loans shall be permitted at any time, without premium or penalty.

Amortization: None.

Priority and Security under DIP Facility:

All obligations of the Borrowers to the DIP Lender under the DIP Facility, including, without limitation, all principal and accrued interest, premiums (if any), costs, fees and expenses or any other amounts due under the DIP Facility (collectively, the “DIP Obligations”), shall be secured by the following liens and security interests (the “DIP Liens”):

(a) subject to the Carve-Out, pursuant to section 364(d)(1) of the Bankruptcy Code, a first priority perfected senior priming lien on, and security interest in the Collateral (as defined in the Prepetition Credit Agreement) securing the Prepetition Obligations, wherever located, that may be subject to a validly perfected security interest in existence on the Petition Date securing the Prepetition Obligations under the Prepetition Loan Documents (the “Prepetition Credit Agreement Liens”), which Prepetition Credit Agreement Liens shall be primed by and made subject and subordinate to the perfected first priority senior priming liens and security interests to be granted to the DIP Lender, which senior priming liens and security interests in favor of the DIP Lender shall also be senior to


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the Prepetition Lender Adequate Protection Liens (as defined below);

(b) subject to the Carve-Out, pursuant to section 364(c)(2) of the Bankruptcy Code, a first priority perfected lien on, and security interest in, all present and after acquired property of the Debtors, wherever located, not subject to a lien or security interest on the date of commencement of the Chapter 11 Cases (the “Petition Date”); and

(c) a first priority perfected lien on, and security interest in, all funds in the Controlled Accounts.

The property referred to in the preceding clauses (a), (b) and (c) is collectively referred to as the “DIP Collateral” and shall include, without limitation, all assets (whether tangible, intangible, real, personal or mixed) of the Debtors, whether now owned or hereafter acquired and wherever located, before or after the Petition Date, including, without limitation, all accounts, inventory, equipment, equity interests or capital stock in subsidiaries, investment property, instruments, chattel paper, real estate, leasehold interests, contracts, patents, copyrights, trademarks and other general intangibles, the proceeds of all claims or causes of action (including, upon entry of the Final Order, avoidance actions and proceeds of avoidance actions under chapter 5 of the Bankruptcy Code) and all products, offspring, profits and proceeds thereof.

The DIP Liens shall be effective and perfected as of the entry of the Interim Order (as defined below) and without necessity of the execution, filing or recording of mortgages, security agreements, pledge agreements, control agreements, financing statements or other agreements. However, the DIP Lender may, in its discretion, require the execution, filing or recording of any or all of the documents described in the preceding sentence.

Superpriority DIP Term Facility Claims:

To the extent of any diminution in the DIP Collateral the DIP Lender shall be entitled to the benefits of section 364(c)(1) of the Bankruptcy Code, having a superpriority over any and all administrative expenses of the kind that are specified in sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), 546(c), 726, 1114 or any other provisions of the Bankruptcy Code (the “Superpriority DIP Term Facility Claims”), subject only to the Carve-Out.

The Superpriority DIP Term Facility Claims will, at all times during the period that the DIP Loans remain outstanding, remain senior in priority to all other claims or administrative expenses, including (a) any claims allowed pursuant to the obligations under the Prepetition Loan Documents, and (b) the Prepetition Superpriority Claims (as defined below),subject only to the Carve-Out.

Carve-Out: “Carve-Out” means the sum of the following: (i) all fees required to be paid to the Clerk of the Bankruptcy Court and to the Office of the United States Trustee under 28 U.S.C. § 1930(a) plus interest pursuant to 31 U.S.C. § 3717; (ii) to the extent allowed by the Bankruptcy Court at any time, but strictly limited to the line item amounts set forth in the Budget applicable to


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such professionals, the paid and accrued and unpaid fees, costs and expenses incurred by professionals and professional firms retained by the Debtors or any Committee (each, a “Professional” and the fees, costs and expenses of Professionals, the “Professional Fees”) at any time before the date and time of the delivery by the DIP Lender (the “Trigger Date”) of a Carve-Out Trigger Notice (as defined below); and (iii) after the Trigger Date to the extent allowed by the Bankruptcy Court at any time, all unpaid fees, disbursements, costs and expenses incurred by Professionals in an aggregate amount not to exceed $50,000 (the amount set forth in this clause (iii) being the “Post-Carve-Out Trigger Notice Cap”); provided, however, that nothing herein shall be construed to impair the ability of any party to object to any fees, expenses, reimbursement or compensation sought by any such Professionals or any other person or entity. For purposes of the foregoing, “Carve-Out Trigger Notice” shall mean a written notice delivered by the DIP Lender to the Debtors and their counsel, the United States Trustee, and lead counsel to any Committee, which notice may be delivered following the occurrence of an Event of Default and stating that the Post-Carve-Out Trigger Notice Cap has been invoked. For the avoidance of doubt and notwithstanding anything to the contrary herein or elsewhere, the Carve-Out shall be senior to all liens and security interests securing the DIP Obligations and the Prepetition Obligations, the adequate protection liens, all claims and any and all other forms of adequate protection, liens or claims securing the DIP Obligations and the Prepetition Obligations.

Investigation Rights: The Committee (to the extent one is appointed) shall have a maximum of thirty (30) calendar days from the date of the Committee’s appointment, but in no event later than sixty (60) calendar days from entry of the Interim Order (the “Investigation Period”) to investigate and commence an adversary proceeding or contested matter, as required by the applicable Federal Rules of Bankruptcy Procedure, and challenge (each, a “Challenge”) the findings, the Debtors’ stipulations, or any other stipulations contained in the Orders, including, without limitation, any challenge to the extent, validity, priority or enforceability of the liens securing the obligations under the Prepetition Loan Documents, or to assert any claim or cause of action against the Prepetition Lender arising under or in connection with the Prepetition Loan Documents or the Prepetition Obligations, as the case may be, whether in the nature of a setoff, counterclaim or defense of Prepetition Obligations, or otherwise. The Investigation Period may only be extended with the prior written consent of counsel to the DIP Lender, as memorialized in an order of the Bankruptcy Court. Except to the extent asserted in an adversary proceeding or contested matter filed during the Investigation Period, upon the expiration of such applicable Investigation Period (to the extent not otherwise waived or barred), (i) any and all Challenges or potential challenges shall be deemed to be forever waived and barred; (ii) all of the agreements, waivers, releases, affirmations, acknowledgements and stipulations contained in the Orders shall be irrevocably and forever binding on the Debtors, the Committee and all parties-in-interest and any and all successors-in-interest as to any of the foregoing, including any Chapter 7 Trustee, without further action by any party or the Bankruptcy Court; (iii) the Prepetition Obligations shall be deemed to be finally allowed and the Prepetition Credit Agreement Liens


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shall be deemed to constitute valid, binding and enforceable encumbrances, and not subject to avoidance pursuant to the Bankruptcy Code or applicable non-bankruptcy law; and (iv) the Debtors shall be deemed to have released, waived and discharged the Released Parties from any and all claims and causes of action arising out of, based upon or related to, in whole or in part, the Prepetition Obligations. Notwithstanding anything to the contrary herein: (x) if any Challenge is timely commenced, the stipulations contained in the Final Order shall nonetheless remain binding on all other parties-in-interest and preclusive except to the extent that such stipulations are expressly and successfully challenged in such Challenge; and (y) the Released Parties reserve all of their rights to contest on any grounds any Challenge.

Conditions Precedent to the Closing of the DIP Facility:

The DIP Credit Agreement will contain the following conditions:

• All documentation relating to the DIP Facility shall be in form and substance satisfactory to the DIP Lender and its counsel.

• All reasonable and documented (in summary form) out-of-pocket fees,

costs, disbursements and expenses of the DIP Lender incurred in connection with negotiating, documenting, and seeking approval of and closing the DIP Facility, including all reasonable fees, costs, disbursements and expenses of the DIP Lender’s outside counsel, King & Spalding LLP (“K&S”), and the DIP Lender’s financial advisor, GlassRatner (“GR”), shall have been paid in full in cash (or DIP Lender is otherwise satisfied that such amounts will be paid from the proceeds of the DIP Loans on the Closing Date).

• The DIP Lender shall have received a 13-week operating budget setting

forth all forecasted receipts and disbursements on a weekly basis for such 13-week period beginning as of the week of the Petition Date, broken down by week, including the anticipated weekly uses of the proceeds of the DIP Facility for such period, which shall include, among other things, available cash, cash flow, trade payables and ordinary course expenses, total expenses and capital expenditures, fees and expenses relating to the DIP Facility, fees and expenses related to the Chapter 11 Cases, and working capital and other general corporate needs, which forecast shall be in form and substance satisfactory to the DIP Lender (the “Budget”).

• All first day motions filed by the Debtors and related orders entered by

the Bankruptcy Court in the Chapter 11 Cases shall be in form and substance satisfactory to the DIP Lender.

• All material motions and other documents to be filed with and submitted to the Bankruptcy Court related to the DIP Facility and the approval thereof shall be in form and substance satisfactory to the DIP Lender.

• Other than the Orders, there shall not exist any law, regulation, ruling,


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judgment, order, injunction or other restraint that prohibits, restricts or imposes a materially adverse condition on the DIP Facility or the exercise by the DIP Lender of its rights as a secured party with respect to the DIP Collateral.

• Other than, in each case, the commencement and continuation of the Chapter 11 Cases and/or consummation of transactions contemplated by the Debtors’ “first day” pleadings reviewed by the DIP Lender, there shall have occurred no event which has resulted in a material adverse change in (i) the business, operations, properties or condition (financial or otherwise) of the Debtors, individually, and the Debtors since the Petition Date, (ii) the legality, validity or enforceability of any DIP Loan Document or the Orders, (iii) the ability of the Borrowers to perform their material obligations under the DIP Loan Documents, (iv) the perfection or priority of the DIP Liens granted pursuant to the DIP Loan Documents or the Orders, or (v) the rights and remedies of the DIP Lender under the DIP Loan Documents taken as a whole (any of the foregoing being a “Material Adverse Change”).

• Other than the Chapter 11 Cases, or as stayed upon the commencement

of the Chapter 11 Cases, there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (i) except as disclosed, if adversely determined, could reasonably be expected to result in a Material Adverse Change, or (ii) restrains, prevents or imposes materially adverse conditions upon the DIP Facility, the DIP Collateral or the transactions contemplated thereby.

• Other than the Orders, all governmental and third party consents and

approvals necessary in connection with the DIP Facility shall have been obtained (without the imposition of any conditions that are not acceptable to the DIP Lender in its reasonable discretion) and shall remain in effect.

• The DIP Lender shall have a valid and perfected lien on and security

interest in the DIP Collateral on the basis and with the priority set forth herein.

• The Bankruptcy Court shall have entered an interim order (the “Interim

Order”) within three (3) calendar days following the Petition Date, in form and substance satisfactory to the DIP Lender, which Interim Order shall include, without limitation, a copy of the Budget as an exhibit thereto, entered on notice to such parties as may be reasonably satisfactory to the DIP Lender (and otherwise required by the Bankruptcy Court), (i) authorizing and approving the DIP Facility and the transactions contemplated thereby, including, without limitation, the granting of the superpriority status, security interests and liens, and the payment of all fees, referred to herein; (ii) lifting or modifying the automatic stay to permit the Borrowers to perform their obligations and the DIP Lender to exercise its rights and remedies with respect to the


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DIP Facility; (iii) authorizing the use of cash collateral and providing for adequate protection in favor of the Prepetition Lender as and to the extent provided herein; and (iv) reflecting such other terms and conditions that are satisfactory to the DIP Lender in its reasonable discretion; which Interim Order shall be in full force and effect, shall not have been reversed, vacated or stayed and shall not have been amended, supplemented or otherwise modified without the prior written consent of the DIP Lender.

• The RSA shall not have been terminated.

Conditions Precedent to DIP Loans on Each Draw Date:

In addition to the satisfaction of the conditions on the Closing Date, the DIP Credit Agreement will contain the following additional conditions for the incurrence of DIP Loans on each Draw Date: • Immediately prior to the funding of any DIP Loan and immediately

following the funding of any DIP Loan, there shall exist no default under the DIP Loan Documents.

• The representations and warranties of the Borrowers therein shall be true and correct in all material respects on the Closing Date and shall be true and correct in all material respects on each Draw Date thereafter without duplication of materiality qualifiers and (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date), in each case immediately prior to, and after giving effect to, the funding of any DIP Loans.

• The making of such DIP Loan shall not violate any requirement of law and shall not be enjoined, temporarily, preliminarily or permanently.

• No Material Adverse Change shall have occurred.

• The Debtors have complied with the Budget, subject to Permitted Variances.

• Other than the Orders, there shall not exist any law, regulation, ruling, judgment, order, injunction or other restraint that prohibits, restricts or imposes a materially adverse condition on the DIP Facility or the exercise by the DIP Lender of its rights as a secured party with respect to the DIP Collateral.

• The RSA shall not have been terminated.

Representations and Warranties:

The DIP Credit Agreement will contain customary representations and warranties (which will be applicable to each Debtor) to be consistent with “Documentation” above and to be made as of (x) the date the Borrowers execute the DIP Loan Documents and (y) each Draw Date, in each case, including, representations and warranties regarding valid existence, requisite power, due authorization, no conflict with orders or applicable law,


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governmental consent, enforceability of DIP Loan Documents, accuracy of financial statements, projections, budgets and all other information provided, compliance with law, absence of Material Adverse Change, no default under the DIP Loan Documents, absence of material litigation, taxes, subsidiaries, ERISA, pension and benefit plans, ownership of properties and necessary rights to intellectual property, insurance, no burdensome restrictions, inapplicability of Investment Company Act, compliance with OFAC, money laundering, PATRIOT Act and other anti-terrorism laws and anti-corruption laws, continued accuracy of representations and continued effectiveness of the applicable Order and each other order of the Bankruptcy Court with respect to the DIP Facility.

Affirmative, Negative and Financial Covenants:

The DIP Credit Agreement will contain customary affirmative, negative and financial covenants consistent with “Documentation” above (which will be applicable to each Debtor), including the following, in each case with such materiality thresholds and exceptions or baskets to be mutually agreed.

• Deliver for review and comment, as soon as commercially reasonable, and in any event not less than two (2) business days prior to filing, all material pleadings, motions and other documents (provided that any of the foregoing relating to the DIP Facility shall be deemed material) to be filed on behalf of the Debtors with the Bankruptcy Court to counsel for the DIP Lender.

• Promptly deliver, upon receipt of same, to the DIP Lender copies of any

term sheets, proposals, presentations or other documents, from any party, related to (i) the restructuring of the Debtors, or (ii) the sale of assets of one or all of the Debtors.

• Comply in all material respects with laws (including without limitation,

the Bankruptcy Code, ERISA and environmental laws), pay taxes, maintain all necessary licenses and permits and trade names, trademarks, patents, preserve corporate existence, maintain appropriate and adequate insurance coverage and permit inspection of properties, books and records.

• Conduct all transactions with affiliates on terms no less favorable to the

Debtors than those obtainable in arm’s length transactions, including, without limitation, restrictions on management fees to affiliates.

• Except as modified by an order of the Bankruptcy Court, maintain a

cash management system as in effect on the Petition Date.

• Not make or commit to make payments to critical vendors (other than those critical vendors set forth in the Orders or that are approved in writing by the DIP Lender) in respect of prepetition amounts in excess of the amount included in the Budget.

• Delivery of the Budget on a weekly basis and adherence to the Budget.


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• (i) Actual aggregate disbursements shall not exceed the aggregate amount of disbursements in the Budget for the applicable period by more than the Permitted Variance, and (ii) actual aggregate cash receipts (excluding proceeds of the DIP Loans that may be deemed a receipt) during the applicable period shall not be less than the aggregate amount of such cash receipts in the Budget for such period by more than the Permitted Variance; provided, however, that a Default or Event of Default shall not be deemed to occur on account of the failure to meet one of such aggregate cash receipts covenants if the Debtors receive sufficient additional receipts within five (5) Business Days after the applicable date of determination that, when added to the receipts as of the applicable date of determination, would enable the Debtors to satisfy such covenant. For purposes hereof, the term “Permitted Variances” will mean (i) all favorable variances, (ii) an unfavorable variance of no more than 10.0% with respect to the first four weeks after the Closing Date and on a rolling basis with respect to each subsequent four-week period (each such period, the “Testing Periods”). The Permitted Variance with respect to each Testing Period shall be determined and reported to the DIP Lender not later than the Friday immediately following each such Testing Period. Subject to the proviso to the immediately preceding paragraph, additional variances, if any, from the Budget, and any proposed changes to the Budget, shall be subject to the approval of the DIP Lender.

• Not incur or assume any additional debt or contingent obligations, give any guaranties, create any liens, charges or encumbrances or incur additional lease obligations, in each case, other than with respect to indebtedness under the DIP Facility as specified in the Plan Term Sheet and in accordance with the Budget or otherwise beyond agreed upon limits; not merge or consolidate with any other person, change the nature of business or corporate structure or create or acquire new subsidiaries, in each case, beyond agreed upon limits; not amend its charter or by-laws; not sell, lease or otherwise dispose of assets (including, without limitation, in connection with a sale leaseback transaction) outside the ordinary course of business and beyond agreed upon limits; not give a negative pledge on any assets in favor of any person other than the DIP Lender; in each case, subject to customary exceptions or baskets as may be agreed.

• Not prepay, redeem, purchase, defease, exchange or repurchase any

debt for borrowed money or amend or modify any of the terms of any such debt entered into by any Debtor, except as provided for in the Plan Term Sheet.

• Not make any loans, advances, capital contributions or acquisitions,

form any joint ventures or partnerships or make any other investments in subsidiaries or any other person.


12284669v112

• Not make or commit to make any payments in respect of warrants, options, repurchase of stock, dividends or any other distributions.

• Not make, commit to make, or permit to be made any bonus payments

to executive officers of the Debtors and their subsidiaries in excess of the amounts set forth in the Budget.

• Except as contemplated by the Plan, not permit any change in

ownership or control of any Debtor or any change in accounting treatment or reporting practices, except as required by GAAP and as permitted by the DIP Credit Agreement.

• Without the prior written consent of the DIP Lender, not make or permit

to be made any change to the Orders or any other order of the Bankruptcy Court with respect to the DIP Facility.

• Not permit the Debtors to seek authorization for, and not permit the

existence of, any claims other than that of the DIP Lender entitled to a superpriority under section 364(c)(1) of the Bankruptcy Code that is senior or pari passu with the Superpriority DIP Term Facility Claims, except for the Carve-Out.

Financial Reporting Requirements:

The Borrowers shall provide to the DIP Lender (hereinafter the “Financial Reporting Requirements”): (i) monthly consolidated financial statements of the Debtors, within thirty (30) days of month end, certified by the Debtors’ chief financial officer; (ii) quarterly consolidated financial statements of the Debtors within forty-five (45) days of fiscal quarter end, certified by the Borrowers’ chief financial officer; (iii) following delivery of the Budget, and each month thereafter during the Chapter 11 Cases, an updated 13-week cash flow forecast, in each case, in form and substance satisfactory to the DIP Lender (the “Weekly Cash Flow Forecast”) for the subsequent 13 week period consistent with the form of the Budget; and (iv) beginning on the second Friday following the Closing Date, and on each Friday following, a variance report (the “Variance Report”) setting forth actual cash receipts and disbursements of the Debtors for the prior week and setting forth all the variances, on a line-item and aggregate basis, from the amount set forth for such week as compared to (1) the most recently approved Budget delivered prior to such Variance Report on a weekly and cumulative basis (which shall be subject to the variances set forth in the DIP Loan Documents), and (2) the most recent Weekly Cash Flow Forecast (as applicable) delivered by the Debtors, in each case, on a weekly and cumulative basis (and each such Variance Report shall include explanations for all material variances and shall be certified by the Chief Financial Officer of the Debtors). The Borrowers will promptly provide notice to the DIP Lender of any Material Adverse Change.

Access Rights:

The Borrowers shall provide to Rimrock and GR prompt and unfettered access during normal business hours to (a) all books and records and other information regarding the Borrowers’ businesses, properties or financial condition (provided, however, that the Borrowers shall not be required to


12284669v113

provide Rimrock or GR with any information (i) that is subject to the attorney client privilege, or (ii) that would result in a violation of law by the Rimrock), (b) all owned, leased or managed properties at which the Borrowers conducts their businesses, and (c) the Borrowers’ management team and employees.

Other Notice Requirements: The DIP Credit Agreement will contain other notice requirements consistent with “Documentation” above, including, without limitation, with respect to litigation, contingent liabilities, ERISA or environmental events (collectively with the financial reporting information described above, the “Information”).

Chapter 11 Cases Milestones:

The DIP Credit Agreement will include the milestones (the “Milestones”) related to the Debtors’ Chapter 11 Cases set forth in the RSA, including, without limitation:

• The Bankruptcy Court’s entry of the Interim Order approving the DIP Facility on or before three (3) calendar days following the Petition Date.

• No later than 21 calendar days after the Petition Date the Debtors shall have filed the Plan, in form and substance satisfactory to Rimrock, and consistent with the Plan Term Sheet and the RSA.

• No later than 21 calendar days after the Petition Date the Debtors shall have filed a disclosure statement (the “Disclosure Statement”) in form and substance satisfactory to Rimrock.

• No later than 21 calendar days after the Petition Date the Debtors shall each have filed their Schedules and Statement of Financial Affairs with the Bankruptcy Court.

• The Bankruptcy Court’s entry of an order (in form and substance acceptable to the DIP Lender) approving the DIP Financing and the relief set forth in the Interim Order on a final basis (the “Final Order” and together with the Interim Order, the “Orders”) on or before 35 calendar days following the Petition Date.

• No later than 35 calendar days after the Petition Date the Bankruptcy Court shall have entered an order setting the date (the “Bar Date”) by which proofs of claim and interests for creditors and interest holders must be filed. The order approving the Bar Date shall require that all creditors with unliquidated or contingent claims include an estimate of the liquidated non-contingent value of such creditor’s claim.

• The hearing on the Disclosure Statement shall have been heard by the Bankruptcy Court on or before 60 calendar days following the Petition Date.

• The Bankruptcy Court’s entry of an order, in form and substance reasonably satisfactory to Rimrock, approving the Disclosure Statement (the “Disclosure Statement Order”) on or before 62


12284669v114

calendar days following the Petition Date.

• The Bar Date shall have occurred on or before 65 calendar days following the Petition Date.

• The Debtors shall have commenced solicitation on the Plan on or before 65 calendar days following the Petition Date.

• The hearing on confirmation of the Plan shall have been heard by the Bankruptcy Court on or before 110 calendar days following the Petition Date.

• The Bankruptcy Court’s shall have entered an order, in form and substance satisfactory to Rimrock, confirming the Plan (the “Plan Confirmation Order”) on or before 114 calendar days following the Petition Date.

• The Effective Date shall have occurred not later than 128 calendar

days following the Petition Date. Events of Default: The DIP Credit Agreement will contain events of default consistent with

“Documentation” above, which will be applicable to the Debtors (each an “Event of Default”), in each case subject to cure periods and thresholds to be agreed, which shall be limited to the following:

• failure to make payments when due;

• noncompliance with covenants;

• breaches of representations and warranties in any material respect;

• the occurrence of an event which has resulted in a Material Adverse Change;

• change in ownership or control of any of the Borrowers;

• filing of a plan of reorganization or liquidation by the Debtors that has not been consented to by the DIP Lender;

• filing of a plan of reorganization or liquidation by the Debtors (other than the Plan described in the RSA and the Plan Term Sheet) that does not propose to indefeasibly repay the DIP Obligations in full in cash, unless otherwise consented to by the DIP Lender;

• any of the Debtors shall file a pleading seeking to modify or otherwise alter any of the Orders without the prior consent of the DIP Lender;

• entry of an order without the prior consent of the DIP Lender amending, supplementing or otherwise altering any of the Orders;

• reversal, vacation or stay of the effectiveness of any of the Orders for a period in excess of seven (7) calendar days;

• any material violation of the terms of any of the Orders by any of the Debtors;

• dismissal of the Chapter 11 Cases or conversion of the Chapter 11


12284669v115

Cases to a case under Chapter 7 of the Bankruptcy Code (which dismissal or conversion shall not have been reversed, stayed or vacated within seven (7) calendar days);

• appointment of a Chapter 11 trustee without the consent of the DIP Lender (which appointment shall not have been reversed, stayed or vacated within seven (7) calendar days);

• any sale of all or substantially all assets of the Debtors pursuant to section 363 of the Bankruptcy Code, unless (i) the proceeds of such sale are used to indefeasibly satisfy the DIP Obligations in full in cash, or (ii) such sale is consented to by the DIP Lender;

• appointment of a responsible officer or examiner with enlarged powers relating to the operation of the business of the Borrowers without the consent of the DIP Lender (which appointment shall not have been reversed, stayed or vacated within seven (7) calendar days);

• failure to meet any of the Milestones, unless extended or waived within two (2) business days by the consent of the DIP Lender;

• granting of relief from the automatic stay in the Chapter 11 Cases to permit foreclosure or enforcement on Collateral of any of the Debtors;

• the Debtors’ filing of (or supporting another party in the filing of) a motion seeking entry of, or the entry of an order, granting any superpriority claim or lien (except as contemplated herein) which is senior to or pari passu with the DIP Lender’s claims under the DIP Facility;

• the Debtors’ challenge (or support of any other person’s challenge) to the validity or enforceability of any of the obligations of the parties under the Prepetition Loan Documents;

• payment of or granting adequate protection with respect to prepetition debt, other than as expressly provided herein or consented to by the DIP Lender;

• expiration or termination of exclusivity by the Debtors or the filing of a plan of reorganization other than the Plan without the prior consent of the DIP Lender;

• cessation of the DIP Liens or the Superpriority DIP Term Facility Claims to be valid, perfected and enforceable in all respects;

• any of the Debtors uses cash collateral or DIP Loans for any item other than those set forth in, and in accordance with, the Budget and as approved by the Bankruptcy Court, the Carve-Out or prepays any pre-petition debt, except with the prior consent of the DIP Lender;

• Permitted Variances under the Budget are exceeded for any period of time, subject to the proviso to the Permitted Variances covenant;

• the Debtors’ existing management ceases to serve in such capacity (as such management serves on the Petition Date) or is replaced, unless such replacement is reasonably acceptable to the DIP Lender in its


12284669v116

reasonable discretion;

• any uninsured judgments are entered with respect to any post-petition liabilities against any of the Debtors or any of their respective properties in a combined aggregate amount in excess of $100,000, unless stayed, vacated or satisfied for a period of twenty (20) days after entry thereof; and

• the termination of the RSA by any party thereto.

Termination: Upon the occurrence and during the continuance of an Event of Default, the DIP Lender may, by written notice to the Borrowers, their counsel, the U.S. Trustee and counsel for any Committee, terminate the DIP Facility, declare the obligations in respect thereof to be immediately due and payable and, subject to the immediately following paragraph, exercise all rights and remedies under the DIP Loan Documents and the Orders.

Remedies: The DIP Lender shall have customary remedies, including, without limitation, the following: Without further order from the Bankruptcy Court, and subject to the terms of the Orders, the orders approving the DIP Facility and the other provisions contained herein, the automatic stay provisions of section 362 of the Bankruptcy Code shall be vacated and modified to the extent necessary to permit the DIP Lender to exercise, upon the occurrence and during the continuance of any Event of Default under their respective DIP Loan Documents, all rights and remedies provided for in the DIP Loan Documents, and to take any or all of the following actions without further order of or application to the Bankruptcy Court (as applicable): (a) immediately terminate the Debtors’ use of any cash collateral; (b) cease making any DIP Loans under the DIP Facility to the Debtors; (c) declare all DIP Obligations to be immediately due and payable; (d) freeze monies or balances in the Debtors’ accounts (and, with respect to the DIP Credit Agreement and the DIP Facility, sweep all funds contained in the Controlled Account); (e) immediately set-off any and all amounts in accounts maintained by the Debtors with the DIP Lender against the DIP Obligations, or otherwise enforce any and all rights against the DIP Collateral in the possession of the DIP Lender, including, without limitation, disposition of the DIP Collateral solely for application towards the DIP Obligations; and (f) take any other actions or exercise any other rights or remedies permitted under the Orders, the DIP Loan Documents or applicable law to effect the repayment of the DIP Obligations; provided, however, that prior to the exercise of any right in clauses (a), (d), (e) or (f) of this paragraph, the DIP Lender shall be required to provide three (3) calendar days written notice to the Debtors and the Committee of the DIP Lender’s intent to exercise its rights and remedies; provided, further, that neither the Debtors, the Committee nor any other party-in-interest (other than the Prepetition Lender or the DIP Lender) shall have the right to contest the enforcement of the remedies set forth in the Orders and the DIP Loan Documents on any basis other than an assertion that an Event of Default has not occurred or has been cured within the cure periods expressly set forth in the applicable DIP Loan Documents. The Debtors shall


12284669v117

cooperate fully with the DIP Lender in its exercise of rights and remedies, whether against the DIP Collateral or otherwise.

Adequate Protection: As adequate protection for the use of the collateral securing the Prepetition Obligations (the “Prepetition Collateral”), the Prepetition Lender, shall receive, in each case subject to the Carve-Out, (i) current payment of all reasonable and documented (in summary form) out-of-pocket fees, costs and expenses (including all reasonable fees, costs, disbursements and expenses of its outside counsel, K&S, and its financial advisor, GR); (ii) replacement liens to the extent of any postpetition diminution in value of the Prepetition Lender’s interest in the Prepetition Collateral, including replacement liens on all unencumbered assets of the Debtors, which liens will be junior to the liens of the DIP Lender under the DIP Facility (the “Prepetition Lender Adequate Protection Liens”); (iii) superpriority administrative expense claims to the extent of any postpetition diminution in value of the Prepetition Lender’s interest in the Collateral (the “Prepetition Lender Superpriority Claims”), which claims will be junior to the DIP Obligations and be payable from and have recourse to all assets and property of the Debtors; and (iv) reasonable access to the Debtors’ books and records and such financial reports as are provided to the DIP Lender pursuant to the Financial Reporting Requirements section.

Marshalling and Waiver of 506(c) Claims:

The Orders shall provide that in no event shall the DIP Lender or the Prepetition Lender be subject to the equitable doctrine of “marshaling” or any similar doctrine with respect to the DIP Collateral or the Prepetition Collateral, as applicable, and the Final Order shall approve the waiver of all Section 506(c) claims against the DIP Collateral or the Prepetition Collateral.

Indemnification: The Debtors shall jointly and severally indemnify and hold harmless the DIP Lender and its affiliates and each of the respective officers, directors, employees, controlling persons, agents, advisors, attorneys and representatives of each (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto, arising out of or in connection with or relating to the DIP Facility, the DIP Loan Documents or the transactions contemplated thereby, or any use made or proposed to be made with the proceeds of the DIP Facility, whether or not such investigation, litigation or proceeding is brought by any Debtor, any members or shareholders or creditors of the foregoing, an Indemnified Party or any other person, or an Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby or under the DIP Loan Documents are consummated, except, with respect to any Indemnified Party, to the extent such claim, damage, loss, liability or expense is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the bad faith, gross negligence or willful misconduct of such Indemnified Party or any of such Indemnified Party’s affiliates or their respective principals,


12284669v118

directors, officers, employees, representatives, agents, attorneys or third party advisors. No Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any Debtor or any members or shareholders or creditors of the foregoing for or in connection with the transactions contemplated hereby, except, with respect to any Indemnified Party, to the extent such liability is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the bad faith, gross negligence or willful misconduct of such Indemnified Party or any of such Indemnified Party’s affiliates or their respective principals, directors, officers, employees, representatives, agents, attorneys or third party advisors. In no event, however, shall any person be liable on any theory of liability for any special, indirect, consequential or punitive damages.

Expenses: The Borrowers shall jointly and severally pay promptly all (i) reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and expenses of the DIP Lender (including all reasonable fees, costs, disbursements and expenses of the DIP Lender’s outside counsel, K&S, and its financial advisors, GR), in connection with the negotiations, preparation, execution and delivery of the DIP Loan Documents and the funding of all DIP Loans under the DIP Facility, including, without limitation, all due diligence, transportation, computer, duplication, messenger, audit, insurance, appraisal, valuation and consultant costs and expenses, and all search, filing and recording fees, incurred or sustained by the DIP Lender and its counsel and professional advisors in connection with the DIP Facility, the DIP Loan Documents or the transactions contemplated thereby, the administration of the DIP Facility and any amendment or waiver of any provision of the DIP Loan Documents, and (ii) without duplication, reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and expenses of the DIP Lender (including all reasonable fees, costs, disbursements and expenses of the DIP Lender’s outside counsel, K&S, and its financial advisors, GR) in connection with the enforcement of any rights and remedies under the DIP Loan Documents.

Governing Law: Except as governed by the Bankruptcy Code, the laws of the State of Georgia

Counsel to the DIP Lender: King & Spalding LLP


12284682v1

Exhibit 2

Waterfall

The HoldCo Operating Agreement shall provide that available distributable cash of New HoldCo shall be distributed to the Members at such time as such cash is available in the following order of priority:1

First, a percentage of all distributable cash equal to the percentage of all Membership Units held by Class A Members, shall be distributed to the Class A Members, pro rata based on percentage of Class A Membership Units held (the “Class A Distribution”);2

Second, after making the Class A Distribution, such remaining distributable cash shall be distributed to the Class B-1 Members, pro rata based on percentage of contribution, until each Class B-1 Member’s accrued, unpaid Preferred Return has been paid in full;

Third, any remaining distributable cash shall be distributed to the Class B-1 Members, pro rata based on percentage of contribution, until each Class B-1 Member’s Total Capital Equity Investment equals zero;

Fourth, until such time as each Class B-2 Member’s Total Capital Equity Investment equals zero, any remaining distributable cash shall be distributed as follows: (a) seventy-five percent (75%) shall be distributed to the Class B-2 Members, pro rata based on percentage of contribution, and (b) twenty-five percent (25%) of such distributable cash shall be distributed to Class C, Class D (i.e., Classes D-1A, D-1B, and D-2), Class E, and Class F Members (collectively, the “Junior Class Members”) in accordance with the Junior Class Waterfall (as defined below);

Thereafter, any remaining distributable cash shall be distributed as follows: (a) a percentage of such cash equal to the percentage of all Class B-3 Membership Units held by Class B-3 Members as compared to all Class B-1 through F Membership Units (in each case, only to the extent that such Membership Units held have fully vested) shall be distributed to the Class B-3 Members, pro rata based on percentage of Class B-3 Membership Units held (such distribution, the “Class B-3 Distribution”), (b) after taking into account the making of the Class B-3 Distribution, fifty percent (50%) of such cash shall be distributed to the Class B-1 and B-2 Members, pro rata based on percentage of Membership Units held, and (c) after taking into account the making of the Class B-3 Distribution, fifty percent (50%) of such cash shall be distributed to the Junior Class Members in accordance with the Junior Class Waterfall.

1 The capitalization table attached hereto as Schedule 1 sets forth the following information, inter alia, applicable to each Class of Membership Units on a pro forma basis as if the Restructuring occurred as of March 31, 2018: (a) number of Membership Units issued and outstanding; (b) number of Membership Units reserved; (c) total capital equity investment (“Total Capital Equity Investment”); (d) total accrued preferred return (as applicable to each Class of Membership Units, “Preferred Return”); and (e) rate of Preferred Return on Total Capital Equity Investment. 2 For example, if the Class A Members hold five percent (5%) of all issued Membership Units, the Class A Members will receive five percent (5%) of any distributable cash proceeds before the balance of the proceeds are distributed to the other Members in accordance with the Waterfall.


12284682v1

The distributable cash payable to the Junior Class Members pursuant to the foregoing shall be distributed in the following order of priority (the “Junior Class Waterfall”):

First, such distributable cash shall be distributed to the Class C Members, pro rata based on percentage of each Member’s balance of accrued, unpaid Preferred Return, until each Class C Member’s accrued, unpaid Preferred Return has been paid in full;

Second, any remaining distributable cash shall be distributed to the Class C Members, pro rata based on percentage of contribution, until each Class C Member’s Total Capital Equity Investment equals zero;

Third, any remaining distributable cash shall be distributed to the Class D-1A Members, pro rata based on percentage of contribution, until each Class D-1A Member’s Total Capital Equity Investment equals zero;

Fourth, any remaining distributable cash shall be distributed to the Class D-1B Members, pro rata based on percentage of contribution, until each Class D-1B Member’s Total Capital Equity Investment equals zero;

Fifth, any remaining distributable cash shall be distributed to the Class E Members, pro rata based on percentage of contribution, until each Class E Member’s Total Capital Equity Investment equals zero;

Sixth, any remaining distributable cash shall be distributed to the Class D-1A, Class D-1B, Class E and Class F Members pro rata based on each such Member’s percentage of: (a) the Class D-1A Members aggregate accrued, unpaid Preferred Return, (b) the Class D-1B Members aggregate accrued, unpaid Preferred Return, (c) the Class E Members aggregate accrued, unpaid Preferred Return, and (d) the Class F Member’s Total Capital Equity Investment and return on such investment. Such proportional distributions to the Class D-1A, Class D-1B, Class E and Class F Members shall be made until each such Class’s total per (a), (b), (c), and (d) above equals zero;

Thereafter, any remaining distributable cash shall be distributed to all Junior Class Members, pro rata based on percentage of Membership Units held by such Junior Class Members.


1228

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EXHIBIT 1 - media.bizj.us · EXHIBIT 1 Case 18-41337-bem Doc 5-1 Filed 06/11/18 Entered 06/11/18...

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Transcript of EXHIBIT 1 - media.bizj.us · EXHIBIT 1 Case 18-41337-bem Doc 5-1 Filed 06/11/18 Entered 06/11/18...