EXHIBIT 10.1
SECOND AMENDMENT AND EXTENSION OF
FORBEARANCE AGREEMENT
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THIS SECOND AMENDMENT AND EXTENSION OF FORBEARANCE AGREEMENT ("Agreement")
is made as of April 30, 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", and collectively
with 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 the stated expiration date of the
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"Forbearance Period" (as defined in Section 2 of the Original Forbearance
Agreement) shall be extended from April 30, 2002 to May 15, 2002 and that all
other provisions of the Forbearance Agreement shall continue in effect, unless
otherwise expressly provided herein, subject to satisfaction of all of the
"Extension Conditions" (as defined below) on or before April 30, 2002.
The Revolving Lenders and the Required Term Lenders agree that the
Revolving Facility Termination Date shall be extended from April 30, 2002 to May
15, 2002, subject to satisfaction of all of the Extension Conditions on or
before April 30, 2002. The "Extension Conditions" shall be as follows:
(a) Borrower, Guarantor, Agent, all of the Revolving Lenders and the Required
Term Lenders have executed this Agreement and delivered counterparts to
Agent; and
(b) Borrower has paid a fee to Agent for the benefit of the Lenders equal to
0.125% of the aggregate outstanding principal balance of the Revolving
Facility and Term Facility, which shall be allocated among the Lenders
executing this Agreement on a pro rata basis based their relative
principal amounts outstanding.
2. INDUCEMENTS TO LENDERS TO EXTEND. For the benefit and reliance of
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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 $169,742,468 and under the Term
Facility is $83,173,809 (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
$169,742,468.
(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 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
has been duly executed and delivered by or on behalf of Borrower and
Guarantor and constitutes the legal, valid and
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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, no material
Default has occurred that remains uncured as of the date hereof; and
(g) Other than the Liens on one 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. As consideration for the extension of the Forbearance Period and
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of the Revolving Facility Termination Date, the Borrower has agreed in the First
Amendment to provide collateral to the Lenders for the Facility when the Lenders
are prepared to agree to an extension of the Revolving Facility Termination Date
to March 31, 2003, on such other terms as may be mutually agreeable, and
Borrower hereby agrees that the collateral described therein shall be increased
to include all of Borrower's right, title and interest in and to those Net Cash
Proceeds from Section 1031 Transactions being reserved from time to time for
reinvestment and any replacement Projects purchased using such Net Cash Proceeds
to be evidenced by security interests in favor of the collateral agent which
shall hold such collateral for the benefit of the Lenders and the holders under
the Note Purchase Agreements.
4. VOLUNTARY AGREEMENT. Borrower represents and warrants that it is represented
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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
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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.
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6. SEVERABILITY. In case any provision of this Agreement shall be
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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
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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
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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
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accordance with the laws of the State of Illinois.
10. RESERVATION AND REMEDIES. Except as specifically stated in this Agreement or
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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
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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
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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
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
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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
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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
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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
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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
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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
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Print Name: Xxxx X. Xxxxxx
Title: CFO
GUARANTOR: NATIONAL GOLF PROPERTIES, INC.
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By:/s/ Xxxx X. Xxxxxx
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Print Name: Xxxx X. Xxxxxx
Title: CFO
AGENT: BANK ONE, NA, Individually and as
----- Administrative Agent
By:/s/ Xxxxxxx X. Xxxxxx
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Print Name: Xxxxxxx X. Xxxxxx
Title: Vice President
LENDERS: XXXXXXX XXXXX CAPITAL CORPORATION,
------- Individually and as Syndication Agent
By:/s/ Xxxxxxx X. X'Xxxxx
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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 Xxxxxxxx
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Print Name: Xxxxx 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
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Print Name: Xxxxxxx X. Xxxxx
Title: Vice President
CITY NATIONAL BANK, Individually and as
Co-Agent
By:/s/ Xxxx Xxxxxx
-------------------------------------
Print Name: Xxxx Xxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, Individually and as Co-Agent
By:/s/ Xxxxxxx X. Xxxxxx
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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/ Xxxxxxxx Xxxxx
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Print Name: Xxxxxxxx Xxxxx
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
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Print Name: Xxxx Xxxxxx
Title: Assistant Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:/s/ Bruno DeFloor
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Print Name: Bruno DeFloor
Title: Vice President
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XXXXXXXX XXXX, XX, XXX XXXX AND
GRAND CAYMAN BRANCHES
By:/s/ Xxxxx Xxxxxx
-------------------------------------
Print Name: Xxxxx Xxxxxx
Title: Associate
By:/s/ Xxxxxxxx Xxxxx
-------------------------------------
Print Name: Xxxxxxxx Xxxxx
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
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Print Name: Xxxxxx Xxxxxxxxxxxx
Title: Investment Officer
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By:/s/ Xxxxxx X. Xxxx
-------------------------------------
Print Name: Xxxxxx X. Xxxx
Title: Associate General Counsel
OCTAGON INVESTMENT PARTNERS II, LLC
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Print Name:
Title:
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OCTAGON INVESTMENT PARTNERS III, LTD.
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Print Name:
Title:
OCTAGON INVESTMENT PARTNERS IV, LTD.
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Print Name:
Title:
KZH Soleil LLC
By:/s/ Xxxxx Xxx
-------------------------------------
Print Name: Xxxxx Xxx
Title: Authorized Agent
KZH Soleil-2 LLC
By:/s/ Xxxxx Xxx
-------------------------------------
Print Name: Xxxxx Xxx
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/ Xxxxxxx Xxxxx
-------------------------------------
Print Name: Xxxxxxx Xxxxx
Title: Managing Director,
Portfolio Management
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