EXHIBIT 10.1
FIFTH AMENDMENT AND EXTENSION OF
FORBEARANCE AGREEMENT
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THIS FIFTH AMENDMENT AND EXTENSION OF FORBEARANCE AGREEMENT ("Agreement")
is made as of June 14, 2002, among NATIONAL GOLF OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership (the "Borrower"), continued pursuant to that
certain Third Amended and Restated Agreement of Limited Partnership, dated as of
July 28, 1999, as amended (the "Operating Agreement"), NATIONAL GOLF PROPERTIES,
INC., a Maryland corporation (the "Guarantor"), BANK ONE, NA, a national banking
association with its main office in Chicago Illinois, individually and as agent
("Agent") for Lenders (as defined in the Credit Agreement referenced below) and
the Lenders.
Recitals:
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A. Pursuant to the terms of the Amended and Restated Credit Agreement dated
as of July 30, 1999, among Borrower, Guarantor, Agent, and the Lenders from time
to time that are parties thereto (as amended from time to time, the "Credit
Agreement"), the Lenders agreed to provide a term loan facility in the amount of
$100,000,000 ("Term Facility") and a revolving credit facility in the maximum
aggregate amount of $200,000,000 ("Revolving Facility"). Terms appearing as
initially capitalized terms and not otherwise expressly defined in this
Agreement shall have the respective meanings given them in the Credit Agreement.
B. Pursuant to the terms of a Forbearance Agreement dated as of February 8,
2002 among the Borrower, Guarantor, Agent and Lenders (the "Original Forbearance
Agreement"), as amended by an Amendment and Extension of Forbearance Agreement
dated as of March 29, 2002 (the "First Amendment"), a Second Amendment and
Extension of Forbearance Agreement dated as of April 30, 2002 ( the "Second
Amendment"), a Third Amendment to Forbearance Agreement dated as of May 15, 2002
(the "Third Amendment") and a Fourth Amendment to Forbearance Agreement dated as
of May 31, 2002 (the "Fourth Amendment", and collectively with the First
Amendment, the Second Amendment, the Third Amendment and the Original
Forbearance Agreement, the "Forbearance Agreement"), Lenders agreed to forbear
from exercising their remedies under the Loan Documents on account of certain
"Specified Defaults" (as defined in Section 1 of the Original Forbearance
Agreement).
C. Borrower and Guarantor have requested that Lenders extend the
effectiveness of the Forbearance Agreement and agree to amend certain other
provisions of the Credit Agreement. Lenders have agreed to amend such provisions
of the Credit Agreement and extend the effectiveness of the Forbearance
Agreement for a limited period of time on the conditions set forth in this
Agreement.
Agreement
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NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements of the parties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Borrower, Guarantor, Agent and Lenders hereby agree as follows:
1. EXTENSION. The Required Lenders agree that, upon the Effective Date, the
stated expiration date of the "Forbearance Period" (as defined in Section 2 of
the Original Forbearance Agreement) shall be extended from June 14, 2002 to June
28, 2002 and that all other provisions of the Forbearance Agreement shall
continue in effect, unless otherwise expressly provided herein.
The Revolving Lenders and the Required Term Lenders agree that, upon
the Effective Date, the Revolving Facility Termination Date shall be extended
from June 14, 2002 to June 28, 2002.
This Agreement shall be effective on the date that the following
conditions have been satisfied (the "Effective Date"),
(a) Borrower, Guarantor, Agent, and a sufficient number of the Lenders
have executed this Amendment and delivered counterparts to Agent;
(b) Borrower has paid all costs and expenses of Agent's counsel and
advisors payable pursuant to Section 10.7 of the Credit Agreement which
have been billed prior to the Effective Date.
2. INDUCEMENTS TO LENDERS TO EXTEND. For the benefit and reliance of
Lenders, and to induce Lenders to enter into this Agreement, Borrower and
Guarantor individually and each on its own behalf hereby represents and warrants
as follows:
(a) Other than as contemplated by the terms hereof, the Credit Agreement,
Notes, and all of the other Loan Documents executed by Borrower and/or
Guarantor are in full force and effect on the date of this Agreement and
are enforceable against Borrower and/or Guarantor in accordance with their
terms;
(b) As of the date of this Agreement the unpaid balance of principal due
and payable under the Revolving Facility is $157,177,772.41 and under the
Term Facility is $77,017,108.59 (which amounts do not include attorneys'
fees and other costs of Lenders incurred and unpaid as of the date hereof,
or any accrued and unpaid interest or fees, all of which shall be in
addition to such amount) and the Aggregate Revolving Commitment has been
reduced to $157,177,772.41.
(c) To each's knowledge, Borrower and Guarantor have no right of set-off,
defense, claim, or cause of action against Agent, Lenders or any of their
affiliates, or any of their respective officers, directors, employees,
agents, or attorneys, in connection with the Loan Documents as of the date
hereof (whether fixed or contingent, or based on contract, tort, statute,
strict liability, or other legal or equitable theory of recovery). Borrower
and Guarantor each hereby, for itself, its successors and assigns (each a
"Releasing Party" and collectively, the "Releasing Parties"), releases,
acquits and forever discharges Agent and Lenders and their respective
directors, officers, employees, agents, affiliates, successors and assigns
("Released Parties") of and from any and all claims, actions, causes of
action, demands, rights, damages, costs, and expenses whatsoever which any
Releasing Party might have because of anything done, omitted to be done, or
allowed to be done by any of the Released Parties and in connection with
the Revolving Facility, the Term Facility, the Credit Agreement or this
Agreement or the other Loan Documents as of the date of execution of this
Agreement, whether known or unknown, foreseen or unforeseen, including any
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damages and the consequences thereof resulting or to result from the events
described, referred to or inferred hereinabove;
(d) Borrower and Guarantor have taken all necessary action to authorize
the execution, delivery and performance of this Agreement, and this
Agreement as been duly executed and delivered by or on behalf of Borrower
and Guarantor and constitutes the legal, valid and binding obligation of
Borrower and Guarantor enforceable against Borrower and Guarantor in
accordance with its terms;
(e) The execution, delivery and performance of this Agreement by Borrower
and Guarantor will not conflict with or result in a breach of any of the
terms or provisions of, constitute a default under, require any consent
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of Borrower or Guarantor
pursuant to the terms of, any indenture, mortgage, deed of trust, loan
agreement, or other agreement or instrument to which Borrower or Guarantor
is a party or by which Borrower's or Guarantor's property or assets is
subject, nor will such action result in any violation of the provisions of
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over Borrower or any of its properties
or assets, and any consent, approval, authorization, order, registration or
qualification of or with any court or any such regulatory authority or
other governmental agency or body required for the execution, delivery and
performance by Borrower of this Agreement or any other Loan Documents has
been obtained and is in full force and effect;
(f) To each's actual knowledge, except for the Specified Defaults and the
failure of AGC to meet its fixed charge coverage ratio for the first
quarter of 2002, no material Default has occurred that remains uncured as
of the date hereof; and
(g) Other than the Liens on the Property described on Exhibit 3(g) to the
Original Forbearance Agreement, which was incorrectly identified as an
Unencumbered Asset on the most recent compliance certificate furnished to
Lenders, Borrower has not granted or suffered to exist any material Liens
(other than Permitted Liens identified in Subsections 7.15 (i) to (iv)) on
any of the Projects included in Unencumbered Assets as referenced in the
most recent compliance certificate furnished to Lenders, and all such
Projects comply with each of the requirements set forth in the definition
of "Unencumbered Asset."
3. COLLATERAL. Although Borrower and the NGP Noteholders are in general
agreement on the terms pursuant to which the NGP Noteholders will consent to the
establishment of a collateral pool to secure the Facility and the Note Purchase
Agreements, a definitive agreement has not yet been executed. As a result,
solely for the purpose of allowing additional time for such a definitive
agreement to be reached, Borrower has requested the extension provided herein.
As consideration for the extension of the Forbearance Period and of the
Revolving Facility Termination Date, the Borrower agrees to extend the Revolving
Facility Termination Date to March 31, 2003 and to provide collateral to the
Lenders for the Facility on the terms of the draft Amendment and Extension of
Credit Agreement, and the draft Security and Collateral Agency Agreement
attached as Exhibit A thereto, each in the most recent form prepared by Agent's
counsel and delivered to Borrower's counsel on June 14, 2002. immediately upon
the NGP Noteholders' execution and delivery of such a definitive agreement and
of the Security and Collateral Agency Agreement. If the NGP Noteholders request
any modifications to such Security and Collateral Agency Agreement, the Agent
shall not unreasonably withhold its consent to such changes so long as such
changes are
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consistent with the Lenders' rights under the draft Amendment and Extension to
Credit Agreement and with the general pari passu concept of the collateral pool.
4. VOLUNTARY AGREEMENT. Borrower represents and warrants that it is
represented by legal counsel of its choice, that it has consulted with counsel
regarding this Agreement, that it is fully aware of the terms of this Agreement,
and that it has entered into this Agreement voluntarily and without coercion or
duress of any kind.
5. NO COURSE OF CONDUCT. Borrower acknowledges that the determination by
Lenders to enter into this Agreement does not constitute a course of conduct or
course of dealing. Borrower acknowledges that it has no basis to expect any
Lender to enter into any further forbearance or any modification of the Loan
Documents.
6. SEVERABILITY. In case any provision of this Agreement shall be invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
7. NO MODIFICATION EXCEPT IN WRITING. None of the terms of this Agreement
may be modified, waived, altered, amended, supplemented, extended, consolidated,
replaced, exchanged or otherwise changed except by an instrument in writing duly
executed by all of the parties hereto.
8. FURTHER ASSURANCES. Borrower, Guarantor, Agent and the Lenders executing
this Agreement shall execute and deliver such further instruments and perform
such further acts as may be reasonably requested by each other of the foregoing
persons from time to time to confirm the provisions of this Agreement and to
carry out the intents and purposes of this Agreement.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
10. RESERVATION AND REMEDIES. Except as specifically stated in this
Agreement or in the Forbearance Agreement, this Agreement shall not be deemed or
construed to (i) constitute a waiver of any right or remedy available to any of
Borrower, Guarantor, Agent or Lenders under the Loan Documents, at law, in
equity or otherwise, and each of the foregoing hereby expressly reserves all of
such rights and remedies; or (ii) give any of Borrower, Guarantor, Agent or
Lenders any rights under the Credit Agreement that each would otherwise not have
due to the existence of a Default (even if such Default is one of the Specified
Defaults), unless expressly provided for in this Agreement or in the Forbearance
Agreement.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
assigns.
12. INTERPRETATION. As used herein, the terms (a) "person" shall mean an
individual, a corporation, a partnership, a trust, an unincorporated
organization or other entity or any agency or political subdivision thereof; and
(b) "including" or "include" shall mean "including without limitation" or
"include, among other things", or "include, without limiting the generality of
the foregoing". The Recitals to this Agreement are incorporated herein and
expressly made a part hereof. The terms and provisions of this Agreement shall
be interpreted and construed in accordance with their usual and customary
meanings, and the parties hereby expressly waive and disclaim in connection with
the interpretation and construction of this Agreement, any rule of law or
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procedure requiring otherwise, including, any rule of law to the effect that
ambiguous or conflicting terms or provisions contained in this Agreement shall
be interpreted or construed against the party whose attorney prepared this
Agreement or any earlier draft of this Agreement.
13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts (including by facsimile transmission of signature pages hereto),
each of which may be executed by one or more of the parties hereto, but all of
which, when taken together, shall constitute but one agreement.
14. WAIVER OF JURY TRIAL. AGENT, LENDERS, BORROWER AND GUARANTOR, BY THEIR
ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENTS RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH
IS THE SUBJECT OF THIS AGREEMENT AND AGREE THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
15. INTEGRATION. This Agreement, together with the Forbearance Agreement
and the Loan Documents, constitute the entire agreement among Agent, Lenders,
Borrower, and Guarantor with respect to the Term Facility and the Revolving
Facility and the subject matter of the foregoing documents, and all prior
writings and discussions and all contemporaneous discussions are hereby merged
into and superseded by the provisions of the foregoing documents. Except as
expressly modified by this Agreement, the Forbearance Agreement shall continue
in full force and effect.
16. AGREEMENT CONTROLLING. In the event of a conflict or inconsistency
between the provisions of the Loan Documents and the provisions of this
Agreement, the provisions of this Agreement shall govern. This Agreement shall
constitute a Loan Document for all purposes. Any reference to the Credit
Agreement in any of the Loan Documents shall hereafter mean the Credit Agreement
as supplemented by the Forbearance Agreement and this Agreement as the same may
be subsequently amended, modified, altered, supplemented, extended,
consolidated, replaced, exchanged or otherwise changed.
[SIGNATURES ARE CONTAINED ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Borrower, Guarantor, Agent and Lenders have caused
this Agreement to be executed as of the date first above written.
BORROWER: NATIONAL GOLF OPERATING
-------- PARTNERSHIP, L.P.
By: National Golf Properties, Inc., its
general partner
By:/s/ Xxxx X. Xxxxxx
------------------------------------
Print Name: Xxxx X. Xxxxxx
Title: CFO and Secretary
GUARANTOR: NATIONAL GOLF PROPERTIES, INC.
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By:/s/ Xxxx X. Xxxxxx
------------------------------------
Print Name: Xxxx X. Xxxxxx
Title: CFO and Secretary
AGENT: BANK ONE, NA, Individually and as
----- Administrative Agent
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Title: Vice President
LENDERS: XXXXXXX XXXXX CAPITAL CORPORATION,
------- Individually and as Syndication Agent
By:/s/ Xxxxxxx X. X'Xxxxx
------------------------------------
Print Name: Xxxxxxx X. X'Xxxxx
Title: Vice President
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ING CAPITAL LLC, as successor to
ING (U.S.) CAPITAL LLC, Individually and
as Co-Documentation Agent and Co-Arranger
By:/s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Print Name: Xxxxx X. Xxxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
Individually and as Co-Documentation Agent
By:/s/ Xxxxx Xxxxxx Bleifer
-----------------------------------
Print Name: Xxxxx Xxxxxx Xxxxxxx
Title: Vice President
FLEET NATIONAL BANK, Individually and as
Co-Agent
By:/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Print Name: Xxxxxxx X. Xxxxx
Title: Vice President
CITY NATIONAL BANK, Individually and as
Co-Agent
By:/s/ Xxxxx Xxxxx
-------------------------------------
Print Name: Xxxxx Xxxxx
Title: Senior Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, Individually and as Co-Agent
By:/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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PACIFIC LIFE INSURANCE COMPANY
By:/s/ T. Xxxxxxx Xxxxxx
-------------------------------------
Print Name: T. Xxxxxxx Xxxxxx
Title: Vice President
By:/s/ X.X. Xxxxxxx
-------------------------------------
Print Name: X.X. Xxxxxxx
Title: Assistant Secretary
AMSOUTH BANK
By:/s/ Xxxx X. Xxxxxx
-------------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Vice President
CALIFORNIA FEDERAL BANK
By:/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Print Name: Xxxxxxx X. Xxxxx
Title: Vice President
FIRST AMERICAN BANK TEXAS, SSB
By:/s/ Xxxx Xxxxxx
-------------------------------------
Print Name: Xxxx Xxxxxx
Title: Assistant Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:/s/ Xxxxx Xxxxxx
-------------------------------------
Print Name: Xxxxx Xxxxxx
Title: Vice President
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XXXXXXXX XXXX, XX, XXX XXXX AND
GRAND CAYMAN BRANCHES
By:/s/ Xxxxxxxx Xxxxx
-------------------------------------
Print Name: Xxxxxxxx Xxxxx
Title: Director
By:/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
ING PRIME RATE TRUST
By: ING Investments LLC
By:/s/ Xxxxx Xxxxx
-------------------------------------
Print Name: Xxxxx Xxxxx
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By:/s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------------
Print Name: Xxxxxx Xxxxxxxxxxxx
Title: Investment Officer
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By:/s/ Xxxxxx X. Xxxx
-------------------------------------
Print Name: Xxxxxx X. Xxxx
Title: Second Vice President and
Associate General Counsel
OCTAGON INVESTMENT PARTNERS II, LLC
By:
-------------------------------------
Print Name:
Title:
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OCTAGON INVESTMENT PARTNERS III, LTD.
By:
-------------------------------------
Print Name:
Title:
OCTAGON INVESTMENT PARTNERS IV, LTD.
By:
-------------------------------------
Print Name:
Title:
KZH Soleil LLC
By:/s/ Xxxxx Xxxxxx Xxxxxx
-------------------------------------
Print Name: Xxxxx Xxxxxx Xxxxxx
Title: Authorized Agent
KZH Soleil-2 LLC
By:/s/ Xxxxx Xxxxxx Xxxxxx
-------------------------------------
Print Name: Xxxxx Xxxxxx Xxxxxx
Title: Authorized Agent
FIRSTRUST BANK
By:/s/ Xxxx Xxxxxx
-------------------------------------
Print Name: Xxxx Xxxxxx
Title: Vice President
GALAXY CLO 1999-1, Ltd.
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Print Name: Xxxxxx X. Xxxxxx
Title: Managing Director
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PINEHURST TRADING, INC.
By:/s/ Xxx X. Xxxxxx
-------------------------------------
Print Name: Xxx X. Xxxxxx
Title: Assistant Vice President
CENTREPACIFIC SIERRA CLO I
By:/s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Print Name: Xxxx X. Xxxxxxxxx
Title: Chief Operating Officer
PB CAPITAL CORPORATION
By:/s/ Xxxx Xxxx
-------------------------------------
Print Name: Xxxx Xxxx
Title: Associate
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
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