EXHIBIT 10.1
AMENDMENT AND EXTENSION OF CREDIT AGREEMENT
THIS AMENDMENT AND EXTENSION OF CREDIT AGREEMENT ("AMENDMENT") is made as
of June 28, 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:
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
Amendment 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 and Extension of Forbearance Agreement dated as
of May 15, 2002 (the "Third Amendment), a Fourth Amendment and Extension of
Forbearance Agreement dated as of May 31, 2002 (the "Fourth Amendment) and a
Fifth Amendment and Extension of Forbearance Agreement dated as of June 14, 2002
(the "Fifth Amendment", and collectively with the Original Forbearance
Agreement, the First Amendment, the Second Amendment, the Third Amendment and
the Fourth Amendment, 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) and to extend the Revolving Facility Termination Date.
C. Borrower and Guarantor have requested that the Lenders amend the Credit
Agreement to extend the Revolving Facility Termination Date and make certain
other changes thereto in consideration of the provision of collateral to secure
the Facility and the amendment of certain other provisions of the Credit
Agreement. The Lenders have agreed to amend such provisions of the Credit
Agreement and extend the Revolving Facility Termination Date on the conditions
set forth in this Amendment.
AGREEMENT
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. FORBEARANCE. Upon the Effective Date, the Specified Defaults shall be
deemed to have been waived for the period beginning on the Effective Date and
ending on March 31, 2003 (the "Amendment Period") and the Forbearance Agreement
shall be deemed to have expired, except to the extent that certain provisions
thereof have been expressly restated in this Amendment. The existence of
Defaults and Unmatured Defaults during the Amendment Period shall be determined
in accordance with the terms of revised Article VIII of the Credit Agreement as
described below and only those covenants, the breach of which is identified as a
Major Default in such revised Article VIII, shall be enforceable against the
Borrower and Guarantor during the Amendment Period.
2. EFFECTIVE DATE. The Lenders agree that all amendments to the Credit
Agreement contained herein shall be effective from the date that the following
conditions have been satisfied and this Amendment becomes effective (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 (i) 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 as of the Effective Date, which shall be
allocated among the Lenders executing this Agreement on a pro rata basis based
their relative principal amounts outstanding and (ii) an agent's administrative
fee to the Agent pursuant to a separate agreement between Agent and Borrower;
(c) 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;
(d) Borrower shall have provided to Agent evidence reasonably
satisfactory to Agent, including a certified resolution and an incumbency
certificate from Guarantor, substantially in the form attached as Exhibit 2(d)
to the Original Forbearance Agreement and to the effect that the individual
executing this Amendment on behalf of Borrower and Guarantor has been duly
authorized by all appropriate action to so execute and deliver this Amendment;
and
(e) Borrower has satisfied all of the conditions set out in Section 4
of this Amendment with respect to the creation of security interests in the
Collateral Projects, the Project-Related Cash Collateral Account and the
Title-Related Cash Collateral Account.
3. INDUCEMENTS TO LENDERS TO AMEND. For the benefit and reliance of
Lenders, and to induce Lenders to enter into this Amendment, 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 and subject to the
Forbearance Agreement, 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 Amendment and are enforceable against Borrower and/or Guarantor
in accordance with their terms;
(b) As of the date of this Amendment the unpaid balance of principal
due and payable under the Revolving Facility is $155,400,123 and under the Term
Facility is $76,146,060 (which amounts do not include attorneys' fees and other
costs of Lenders incurred and unpaid as of
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the date hereof, or any accrued and unpaid interest or fees, all of which shall
be in addition to such amount);.
(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 Amendment or the other Loan Documents as
of the date of execution of this Amendment, 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 Amendment, and this
Amendment has 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) Assuming the consent of the NGP Noteholders to the creation of
the collateral pool described in Section 4 below has been obtained, the
execution, delivery and performance of this Amendment 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 Amendment or any other Loan
Documents has been obtained and is in full force and effect; and
(f) To each's actual knowledge, except for the Specified Defaults and
the failure of the Borrower 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.
4. COLLATERAL. Borrower has agreed to establish on the Effective Date,
and the Lenders agree to participate in, a collateral pool to ratably secure
both the Facility and the Note Purchase Agreements consisting of all Projects
which would otherwise constitute Unencumbered Assets, excluding only those
Projects with respect to which the Agent determines, in the exercise of its
reasonable judgment, that mortgage taxes and other perfection expenses will be
disproportionate to
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the benefit to the Lenders of the incremental collateral value. A list of the
Projects that will be included in such collateral pool as of the Effective Date
(the "Collateral Projects") is attached hereto as Schedule 1 and made a part
hereof. As a condition to the effectiveness of this Amendment, Borrower shall
have:
(a) executed and delivered to Xxxxxxx Title Insurance Company (the
"Title Insurer") for recording and filing mortgages and deeds of trust on the
Collateral Projects, together with related UCC-1 financing statements, all in
the forms previously approved by the Agent's counsel (collectively, the
"Mortgages");
(b) delivered to the Agent the Security and Collateral Agency
Agreement in the form attached hereto as Exhibit A and made a part hereof or in
such other form as may be reasonably satisfactory to the Agent (the "Collateral
Agency Agreement") executed by the Borrower, the holders under the Note Purchase
Agreements (the "NGP Noteholders") and BNY Midwest Trust Company (the
"Collateral Trustee")
(c) caused the Title Insurer, at the Borrower's expense, (i) to issue
title insurance policies ("Title Policies"), with all agreed upon endorsements,
naming the Collateral Trustee as insured and insuring that the Mortgages
constitute first priority liens on those twenty (20) Collateral Projects
identified on Schedule 2 attached hereto and made a part hereof (the "Initially
Insured Projects") and (ii) to issue commitments for title insurance on the
balance of the Collateral Projects, subject in both cases to all Permitted
Encumbrances (as defined in the Collateral Agency Agreement) provided that, by
the Effective Date, Borrower either removes any title exceptions for unreleased
prior mortgages or deeds of trust or provides evidence reasonably satisfactory
to the Agent that the debt secured thereby has been repaid in full and no
further debt will be secured thereby;
(d) deposited with the Collateral Trustee the amount of $217,482.53
(which is 150% of the aggregate amount of the unreleased mechanics' Liens
against the Collateral Projects as of the Effective Date, all of which are being
contested by the Borrower pursuant to Section 7.15(ii) of the Credit Agreement)
to be held until (i) all of the Title Policies have been issued and (ii) such
Liens (and any other Liens on a Collateral Project which arise between the
Effective Date and the date the final Title Policies with respect to all
Collateral Projects have been issued) have been either released or insured
against by the Title Insurer;
(e) deposited with the Collateral Trustee the amount of $619,553.09
to be used solely as reimbursement of the Collateral Trustee's cost of causing
the Title Insurer to issue the balance of the Title Policies and endorsements
which the Collateral Trustee may cause to be issued, at the discretion of the
Agent, by written direction to the Title Insurer given at any time on or after
the first to occur of (i) a Major Default or (ii) August 31, 2002; and
(f) established with the Collateral Trustee pursuant to mutually
satisfactory documentation (i) a cash collateral account (the "Project-Related
Cash Collateral Account") and deposited therein an amount equal to the amount of
any Net Cash Proceeds which are being reserved by the Borrower as of the
Effective Date for reinvestment pursuant to Section 1031 Transactions and (ii)
another cash collateral account (the "Title-Related Cash Collateral Account")
and deposited therein the amounts deposited by Borrower with the Collateral
Trustee under clauses (d) and (e) of this Section 4.
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5. AMENDED PROVISIONS. Beginning on the Effective Date, the following
Sections of the Credit Agreement shall be modified in the following respects:
A. Article I, DEFINITIONS.
(i) The definition of "Adjusted ABR Rate" shall be deleted and
replaced with the following:
"Adjusted ABR Rate" means, for any day, a rate per annum equal to (i)
the Alternate Base Rate for such day plus (ii) two and three-quarters
of one percent (2.75%) per annum.
(ii) A new definition of "AGC Companies" shall be added as follows:
"AGC Companies" means, prior to accounting for minority interest, AGC
and its subsidiaries, GEI and its subsidiaries, American Golf of
Glendale, a California corporation, Kansas 19th Hole Corporation, a
Kansas corporation, and private liquor clubs related to the
properties operated by the aforementioned entities.
(iii) New definitions of "AGC Companies EBITDAR" and "AGC Companies
Projected EBITDAR" shall be added as follows:
"AGC Companies EBITDAR" means, as of the last day of any fiscal
quarter in 2002, revenue from operations as reported by AGC Companies
(including revenue otherwise excluded pursuant to GAAP) less cost of
sales, operating expenses and repairs before (i) gains and losses
attributable to golf courses ceased to be in operation or leased,
owned or managed by the AGC Companies, (ii) depreciation,
amortization, interest expense and cash taxes (excluding sales
taxes), (iii) expenses and charges incurred with respect to the Newco
Transaction and (iv) rent obligations, in each case on a cumulative
basis for the first quarter of 2002 and each full fiscal quarter
thereafter for which financial results have then been reported.
"AGC Companies Projected EBITDAR" means, as of the last day of any
fiscal quarter in 2002, the projected AGC Companies EBITDAR shown on
Schedule 3 attached hereto and made a part hereof, in each case on a
cumulative basis for the first quarter of 2002 and each full fiscal
quarter thereafter for which financial results have then been
reported, as adjusted to eliminate all projected AGC Companies
EBITDAR attributable to golf courses which have ceased to be in
operation or leased, owned or managed by the AGC Companies from the
projected amount for the full fiscal quarter in which such cessation
occurred and for each full fiscal quarter thereafter on a consistent
basis with the calculation of actual AGC Companies EBITDAR for such
period. For purposes of the calculation pursuant to Section 7.20(vi),
AGC Companies Projected EBITDAR shall also be reduced by the
corporate and regional overhead allocated to golf courses
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ceased to be in operation or leased, owned or managed by the AGC
Companies during such period.
(iv) A new definition of "Amendment and Extension" shall be added
as follows:
"Amendment and Extension" means that certain Amendment and Extension
to Credit Agreement dated as of June 28, 2002 by and among Borrower,
Guarantor, Agent and Lenders modifying this Agreement.
(v) A new definition of "AGC/GEI Base Rental" shall be added as
follows:
"AGC/GEI Base Rental" means that portion of the aggregate rental paid
by AGC and GEI to Borrower under Approved Operating Leases which is
fixed or subject to a previously agreed fixed escalation and is not
percentage rent or escalation rent determined by reference to a
consumer price or other index.
(v) A new definition of "GEI" shall be added as follows:
"GEI" means Golf Enterprises, Inc., a Kansas corporation.
(vi) The definition of "Loan Documents" shall be amended by adding
at the end thereof the phrase:
"including without limitation the Amendment and Extension, together
with the Mortgages and the Collateral Agency Agreement (as such terms
are defined in the Amendment and Extension)."
(vii) The definition of "Net Cash Proceeds" shall be deleted and
replaced by the following:
"NET CASH PROCEEDS": shall mean, with respect to any sale, transfer
or other disposition of any asset or the sale or issuance of any
Indebtedness or stock, partnership interests or other ownership
interests or warrants, rights or options to acquire any of the same
by the Borrower, General Partner or any of their subsidiaries, the
aggregate amount of cash received from time to time by or on behalf
of the Borrower or the General Partner or any of their subsidiaries,
in connection with such transaction after deducting therefrom only
(a) reasonable and customary brokerage commissions, underwriting fees
and discounts, legal fees, finder's fees and other similar fees and
commissions that are (1) actually paid to a Person that is not an
Affiliate of the Borrower or the General Partner and (2) properly
attributable to such transaction or to the asset that is the subject
thereof, (b) the amount of taxes payable in connection with or as a
direct result of such transaction, (c) in the case of a sale or
disposition of assets, the amount of any distributions required to be
made in order
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to avoid the imposition of any corporate level income or excise tax,
(d) in the case of a sale or disposition of assets, distributions in
respect of taxes required under Section 7.1(A)(3) of the Third
Amended and Restated Agreement of Limited Partnership of the
Borrower, provided that no deduction shall be made on account of any
such distributions to the General Partner, except to the extent
permitted under clauses (b) or (c) above, and provided further that
no deduction shall be made on account of clauses (b), (c) or (d) if
a Major Default has occurred and is then continuing, (e) the amount
of any indebtedness secured by a lien on such asset that, by the
terms of such transaction or such indebtedness, is required to be
repaid upon such disposition which is actually paid to a Person that
is not an Affiliate of the Borrower or the General Partner, and (f)
any amount required to be paid to AGC or GEI in connection with
termination of an Approved Operating Lease on such asset, pursuant
to the formula described in Schedule 4 attached to the Amendment and
Extension.
(viii) A new definition of "NGP Noteholders" shall be added as
follows:
"NGP Noteholders" means, as of any date, those Persons holding one or
more of the promissory notes issued pursuant to the Note Purchase
Agreements.
(ix) The definitions of "Required Aggregate Lenders", "Required
Lenders", "Required Revolving Lenders" and "Required Term
Lenders" are all deleted and all references thereto shall be
deemed to reference "Required Lenders" pursuant to the
following new definition:
"Required Lenders" means, as of any date, those Lenders who in the
aggregate hold at least 66-2/3 % of the then-outstanding Advances
hereunder.
(x) The definition of "Revolving Facility Termination Date" shall
be deleted and replaced by the following:
"Revolving Facility Termination Date" means March 31,
2003.
(xi) The definition of "Term Facility Termination Date" shall be
deleted and replaced by the following:
"Term Facility Termination Date" means March 31, 2003.
B. Article II, THE CREDIT.
(i) In Section 2.1, the Revolving Commitments have been
permanently terminated and no further borrowings under the
Revolving Facility or the Term Facility shall be permitted.
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(ii) Subsections (i), (ii), (iii) and (iv) of Section 2.8(b) are
hereby deleted and replaced by the following:
(i) NET CASH PROCEEDS OF EQUITY OFFERING. On the date of
receipt by Borrower, the General Partner or any of their
Subsidiaries of the Net Cash Proceeds from the sale or issuance
of any stock, partnership interest or other equity interest, in
each case preferred or common, (including, for purposes of this
clause (i), equity-like securities containing terms and
conditions deemed to approximate an equity interest in the
discretion of the Required Lenders), in Borrower, the General
Partner or any of their Subsidiaries, except for (A) issuance
and exercise of stock or stock options to employees of such
Person as part of their overall compensation package, (B)
capital contributions by General Partner and/or Borrower to
their respective Subsidiaries and (C) limited partnership
interests in Borrower issued in exchange for the contribution
of Properties to Borrower, Borrower shall pay to the Collateral
Trustee for distribution in accordance with the Collateral
Agency Agreement an amount equal to 50% of the amount of such
Net Cash Proceeds until the aggregate outstanding Advances
hereunder have been reduced to $225,000,000.
(ii) NET CASH PROCEEDS OF PROPERTY SALES. On the date of
receipt by the Borrower, the General Partner or any of their
Subsidiaries of the Net Cash Proceeds of the sale, transfer or
other disposition of any assets of Borrower, the General
Partner or any of their Subsidiaries, except for (A) proceeds
of the sale of inventory in the ordinary course of business,
(B) proceeds of sales of damaged, worn or obsolete equipment to
the extent such proceeds are intended to be (and are) used to
purchase replacements for such equipment within 180 days or
sales of damaged, worn or obsolete equipment made after the
purchase of replacements for such equipment, (C) proceeds of
any sale or disposition of assets which are reserved to be used
to acquire other property in a Section 1031 Transaction,
provided that (i) the maximum amount so reserved at any time
shall not exceed $28,000,000, (ii) an amount equal to the
amount of Net Cash Proceeds so reserved is deposited into the
Project-Related Cash Collateral Account, (iii) either (X) such
Net Cash Proceeds are reinvested in another Collateral Project
within six (6) months after the date of the transfer generating
such Net Cash Proceeds and upon such reinvestment a Mortgage
has been executed and recorded against the replacement
Collateral Project or (Y) the corresponding amount in the
Project-Related Cash Collateral Account has been applied to
reduce the outstanding principal balance of the Facility and
the notes issued pursuant to the Note Purchase
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Agreements, all as described herein and distributed in
accordance with the Collateral Agency Agreement, (D) insurance
proceeds and condemnation awards which are invested in
substantially similar assets within twelve (12) months of
receipt of such proceeds, (E) any leases or subleases of golf
course properties in the ordinary course of business and (F)
amounts recouped by Borrower on account of any principal
prepayments made by Borrower under the side letter referred to
in Section 7.31 below with respect to the Rent Deferral
Agreement, the Borrower shall pay to the Collateral Agent an
amount equal to 100% of the amount of such Net Cash Proceeds
for distribution in accordance with the Collateral Agency
Agreement.
(iii) ALLOCATION OF NET CASH PROCEEDS. Borrower has, prior to
the Effective Date and pursuant to the First Amendment,
reserved the amount of $18,122,408 from Net Cash Proceeds
received after March 29, 2002 and prior to the Effective Date
for possible payment to the NGP Noteholders (the "Existing NGP
Noteholders Reserve") while previously paying the Lenders their
pro rata share of such Net Cash Proceeds. $3,165,945 of the
Existing NGP Noteholders Reserve has been paid to the NGP
Noteholders in payment of the scheduled amortization payment
due under the Note Purchase Agreements on June 14, 2002. The
balance of the Existing NGP Noteholders Reserve shall be paid
to the NGP Noteholders on the Effective Date and shall be used
solely to prepay the principal balance due to the NGP
Noteholders, including without limitation prepayment of their
scheduled amortization payment of $3,298,914 due December 15,
2002. All further Net Cash Proceeds which are available from
and after the Effective Date shall be shared between the
Lenders and such NGP Noteholders on a pro rata basis based on
their respective outstanding principal balances in accordance
with the Collateral Agency Agreement. All Net Cash Proceeds
paid to the Lenders and the NGP Noteholders during the
Amendment Period shall continue to be allocated among the
Lenders and the NGP Noteholders on a pro rata basis in
accordance with their respective outstanding principal balances
in accordance with the Collateral Agency Agreement. The
existing formula for calculating lease termination fees due to
or from AGC on the sale of Projects shall continue to be used
in calculating Net Cash Proceeds during the Amendment Period,
provided that NGP shall be permitted to allow AGC to continue
to accrue any lease termination fees due to NGP so long as any
lease termination fees due to AGC are not paid in cash until
the accrued
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obligation to NGP for lease termination fees has been paid or
offset in full.
(iv) CERTIFICATES. The Borrower shall deliver to the
Administrative Agent a certificate regarding its permitted use
of such Net Cash Proceeds not later than three (3) Business
Days prior to the applicable date such Net Cash Proceeds must
be paid to the Lenders and the NGP Noteholders or deposited
into the Project-Related Cash Collateral Account. If Borrower
fails to deliver such a certificate or if such certificate
discloses that any Net Cash Proceeds within the above
reinvestment exceptions have not been so used by the applicable
date, the full amount of such Net Cash Proceeds (if no
certificate is delivered) or any unused portion thereof, if
such a certificate is given, shall be applied to repayment of
the amounts due to the Lenders and the NGP Noteholders as
described above.
(v) DISTRIBUTIONS. Notwithstanding anything to the contrary
herein, all "Distributions" (as defined in the Collateral
Agency Agreement), which term includes without limitation the
Net Cash Proceeds described above and any other amounts
recovered from Borrower or Guarantor, shall be shared between
the Lenders and the NGP Noteholders in accordance with Section
15 of the Collateral Agency Agreement.
(iii) Due to the acceleration of the Term Facility Termination Date,
Section 2.8(c), entitled MANDATORY AMORTIZATION OF TERM
FACILITY, is hereby deleted.
(iv) Borrower's rights under Sections 2.9 and 2.10 to select the
Type of any Advance are hereby eliminated and only ABR
Advances shall be allowed hereafter.
(v) The first two sentences of Section 2.23 are hereby deleted and
replaced by the following sentence:
"Notwithstanding anything else herein to the contrary, all principal
payments distributed to the Administrative Agent in accordance with
the terms of the Collateral Agency Agreement shall be allocated
between the Term Facility and Revolving Facility on a pro rata basis
based on the relative principal amounts outstanding under the Term
Facility and Revolving Facility.
C. Article III, THE LETTER OF CREDIT SUBFACILITY TO THE REVOLVING LOAN
FACILITY. Due to the permanent elimination of the Revolving Commitment, no
further Facility Letters of Credit will issued.
D. Article VII, COVENANTS
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(i) The following additional subsection shall be added at the end of
Section 7.1, FINANCIAL REPORTING
Borrower shall use its reasonable best efforts to provide to the
Administrative Agent no later than fifteen (15) days following the
end of each month, monthly course level operating results (including
a comparison of actual results versus budgeted results for the
applicable month and for the year-to-date). In addition, to the
extent (a) obtainable using all reasonable efforts, and (b) not
covered by any agreement of confidentiality that would preclude such
disclosure, Borrower shall provide monthly course-level financial
projections, (including data for the corresponding month in fiscal
year 2001) for AGC. Furthermore, Borrower shall also provide at the
time of deliverance of its monthly course operating results, a report
on recent asset sales, including copies of all pending letters of
intent and contracts for asset sales (to the extent not previously
provided) and a report on the projected tax liability for each
proposed asset sale. Borrower shall also use its reasonable best
efforts to provide from time to time upon request a 13 week cash flow
forecast and such additional information as may be reasonably
requested by the Administrative Agent or by Lenders' advisor.
(ii) The following sentence shall be added at the end of Section
7.4:
Notwithstanding the foregoing terms of this Section 7.4, Borrower
shall not acquire or invest in any new golf course properties or
ancillary businesses or invest in any of the other items identified
in this Section 7.4, provided, however, that Borrower shall have the
right to enter into Section 1031 Transactions as set forth in the
Amendment and Extension, pay for capital expenditures which Borrower
has already budgeted or which are necessary to maintain the quality
of the Projects or make remedial maintenance and improvements to the
extent reasonably necessary to maintain the Projects in a first class
manner, purchase office equipment and otherwise operate in the
ordinary course of business (other than with respect to the
acquisition of or investment in any new golf course properties or
ancillary businesses) as required for it to conduct its business.
(iii) Section 7.11 shall be deleted and replaced with the following:
Section 7.11, DIVIDENDS. Neither Guarantor nor Borrower shall pay any
dividends or make any other distributions with respect to its Capital
Stock (including all preferred units of Borrower) except that, so
long as there is not a continuing Major Default under Sections 8.1 or
8.2, the Guarantor and the Borrower may make (i) distributions with
respect to taxes related to the sale of assets as described in the
definition of "Net Cash Proceeds" (including distributions required
under the Operating Agreement in respect of taxes), (ii)
distributions to the holders of partnership interests in Borrower
that are entitled to
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any preference in distribution to the extent of any "Preferred
Distribution Shortfall" (as defined in the Operating Agreement) and
any preferred distribution for the then-current quarter as provided
in clauses (1) and (2) of the first sentence of Section 5.1 of the
Operating Agreement and (iii) whatever amount of dividends Guarantor
is required to distribute to maintain its tax status as a real
estate investment trust and to avoid the imposition of any corporate
income or excise tax on Guarantor.
(iv) The following sentences shall be added at the end of Section
7.12:
Notwithstanding the foregoing or any other provision of this
Agreement, the Lenders consent to the transaction (the "Newco
Transaction") contemplated by the Agreement and Plan of Merger and
Reorganization dated as of March 29, 2002 among the Borrower,
Guarantor or AGC and certain affiliates (as it may be amended as
described below, the "Merger Agreement") including (i) the
establishment of a new holding company ("Newco") which upon
consummation of such transactions will hold all of the common stock
of AGC and the Guarantor, and (ii) termination of the Guarantor's
status as a REIT, subject to review and approval by the Required
Lenders (which may be granted or denied in their discretion) of any
(i) amendments to the Merger Agreement or (ii) changes to the
Operating Agreement not expressly addressed in the Merger Agreement
that, in either case, materially and adversely affect the position of
the Lenders in relation to Borrower, Guarantor or any of their
creditors. The Lenders will not be deemed to have approved any
consolidation of, or cross-support between, the assets and debt of
the Borrower and the assets and debt of AGC. A further approval from
the Lenders will be required before any such consolidation or
cross-support. In addition, the Borrower agrees not to permit Newco
to incur any Indebtedness or grant any Liens on its assets unless
Newco simultaneously guarantees the Facility and if a Lien is granted
to any other creditor, grants a pari passu Lien to the Lenders to
secure the Facility and to the NGP Noteholders to secure the notes
and other obligations of the Borrower under the Note Purchase
Agreements.
(v) The following sentences shall be added at the end of Section
7.13:
Guarantor's Bylaws shall at all times provide, among other things,
that (a) the majority of Guarantor's directors shall be Independent
Directors, and (b) the Committee of Independent Directors (as defined
in Guarantor's Bylaws) shall approve all transactions between
Guarantor and Xxxxx X. Xxxxx and his affiliates. As used herein, an
"Independent Director" shall have the meaning ascribed to such term
in the Guarantor's Bylaws and shall further refer to a director of
Guarantor who was not at the time of initial appointment and is not
at any time while serving as a director of Guarantor: (W) a director
of AGC; (X) an officer or employee (with the exception of Xxxxxxx X.
-12-
Xxxx, serving as interim Chief Executive Officer of Guarantor),
partner or attorney of Guarantor or AGC; (Y) a person controlling any
such partner, or (Z) a member of the immediate family of any of the
foregoing. It is acknowledged and agreed by the parties hereto that
Messrs. Xxxxxxx X. Xxxx, Xxxxx Xxxxxx and Xxxx X. Xxxxxxx III are
Independent Directors for the purposes hereof.
(vi) The following additional clause shall be added at the end of
Section 7.20:
"(vi) as of the last day of any fiscal quarter during 2002, the AGC
Companies EBITDAR for the elapsed full quarters of 2002, on a
cumulative basis, to be less than sixty percent (60%) of the AGC
Companies Projected EBITDAR for such period, provided that if the
proposed Newco Transaction is completed the Borrower may substitute
the consolidated EBITDAR of Newco and its subsidiaries, for the AGC
Companies EBITDAR, provided the Required Lenders have approved the
projections of such consolidated EBITDAR and any other adjustments to
such covenant, such approval not to be unreasonably withheld.
(vii) The following clause shall be added at the end of Section
7.28:
"except to the extent permitted under the Rent Deferral Agreement
described in Section 7.31 hereof."
(viii) The following sentences shall be added at the end of Section
7.29:
Notwithstanding Section 7.31, the Borrower may release approximately
$13,000,000 of capital expenditure funds which have previously been
committed to AGC or GEI for capital improvements on the Projects
during the Amendment Period but only in exchange for the previously
agreed rent increases and pursuant to a funding procedure reasonably
satisfactory to the Administrative Agent designed to ensure that all
such capital expenditure funds for the Projects are correctly applied
by AGC and GEI solely to the Borrower's Projects.
(ix) The following new Section 7.31 shall be added at the end of
Article VII:
Section 7.31. RENT DEFERRAL AGREEMENT. The Lenders will approve in a
side letter acceptable to the Required Lenders the Borrower's
entering into an agreement with AGC and GEI (the "Rent Deferral
Agreement") in which Borrower may agree to forbear from enforcing
payment of rent now or hereafter delinquent and lease termination fee
receivables due from AGC and GEI to Borrower, but only to the extent
necessary to permit the following payments to be made in the order
set forth below, up to the maximum amount of deferral described
therein. Borrower agrees not to waive or subordinate its claim
against AGC or GEI for any unpaid rent and lease termination
-13-
fee receivables, or contribute, loan or otherwise advance any funds
to or for the benefit of AGC or GEI that would in any way increase
the net obligations of AGC and GEI to Borrower.
Borrower's agreement to such forbearance and rent deferral shall be
conditioned upon (i) the absence of any principal payments to Bank of
America or the AGC Noteholders from AGC or NGP or any of their
subsidiaries until the date (the "AGC Extension Date") that Bank of
America and the AGC Noteholders have waived the existing AGC defaults
and extended the maturity date of their facilities with AGC to March
31, 2003, and (ii) AGC's and Xxxxx X. Xxxxx'x agreement to apply the
net operating income of AGC and the other AGC Companies on a combined
basis after payment of taxes and overhead from April 1, 2002 to March
31, 2003 as follows:
1. to meet bonding obligations and to make capital expenditures and
reserves needed to maintain the courses operated by the AGC Companies
(including without limitation the Borrower's Projects) at an
appropriate level of quality, anticipated to be approximately
$20,500,000 in the aggregate during the Amendment Period for remedial
maintenance and on-going expenditures;
2. to payment of its current monthly rental obligations, LESS, if and
only if there is not sufficient cash flow to pay the current monthly
amounts payable under clauses (3), (4) and (5), that portion of the
allowable rent deferral under the Rent Deferral Agreement needed to
enable AGC and the AGC Companies to pay such current monthly amounts
in full;
3. to payments of current monthly interest due during the Amendment
Period to the AGC Companies' bona fide creditors (it being understood
that failure to make such payments shall constitute an event of
default on the indebtedness due to such creditors whether or not
amounts listed in prior clauses of this paragraph have been paid);
4. to equal monthly principal payments to Bank of America and the AGC
Noteholders ratably, commencing to accrue on April 1, 2002 but not
being payable until the AGC Extension Date and not to exceed on an
annual basis the projected annual maximum allowed under the Rent
Deferral Agreement so long as any delinquent rent and lease
termination fee receivables due to Borrower shall be outstanding,
provided that the payment on the AGC Extension Date may include the
equal monthly installments that would have been due from April 1,
2002 through the AGC Extension Date and provided further that payment
thereof to the AGC Noteholders shall be conditioned on the waiver or
satisfactory reduction of pre-payment penalties and any such
unscheduled principal payments not paid to the AGC Noteholders shall
be paid to Bank of America (it being
-14-
understood that failure to make such payments shall constitute an
event of default on the indebtedness due to Bank of America and the
AGC Noteholders whether or not amounts listed in prior clauses of
this paragraph have been paid);
5. reserves for interest and principal payments coming due on such
debt to bona fide creditors of the AGC Companies during the Amendment
Period and for minimum rental obligations during such period, unless
reasonably projected future net operating income after taxes and
overhead will be sufficient to make such payments when due; and
6. to payment of the balance of the full rent due to Borrower for
such month and then to repayment of any deferred rent owing to the
Borrower for prior months from and after April 1, 2002.
E. Article VIII, DEFAULTS. All Defaults and Unmatured Defaults under the
Credit Agreement in existence on the Effective Date or arising during the
Amendment Period shall be deemed to have been waived for the full Amendment
Period, except for the following Major Defaults:
8.1 NONPAYMENT OF PRINCIPAL. Nonpayment of any
principal payment on any Note when due.
8.2 NONPAYMENT OF OTHER AMOUNTS. Nonpayment of interest upon any Note
or of any other payment Obligations under any of the Loan Documents
within five (5) Business Days after the same becomes due.
8.3 BREACH OF CERTAIN COVENANTS. The breach of Section
7.20 (vi).
8.4 BREACH OF OTHER PROVISIONS. The breach of Section 2.8(b) hereof
(in each case only as to deposits into the Project-Related Cash
Collateral Account and the provision of Mortgages on replacement
Collateral Projects) which is not cured within ten (10) days after
written notice thereof has been given to Borrower by the
Administrative Agent, or the breach (other than a breach which
constitutes a Major Default under Sections 8.1, 8.2 or 8.3) of
Section 4 of the Amendment and Extension or of Sections 7.11, 7.12,
7.28, or 7.31 hereof which is not cured within thirty (30) days after
written notice thereof has been given to Borrower by the
Administrative Agent.
8.5 MATERIAL INDEBTEDNESS. (i) Any failure of the General Partner or
the Borrower to pay when due any payment due under the Note Purchase
Agreements ("MATERIAL INDEBTEDNESS") after giving effect to any
applicable grace period thereunder; or (ii) any default in the
performance of any term, provision or condition contained in any
agreement under which the Material Indebtedness was created or is
-15-
governed, or any other event shall occur or condition exist, the
effect of which is to cause, or to permit the holder or holders of
the Material Indebtedness to cause, the Material Indebtedness to
become due prior to its stated maturity; or (iii) the Material
Indebtedness shall be declared to be due and payable or required to
be prepaid or repurchased (other than by a regularly scheduled
payment) prior to the stated maturity thereof.
8.6 VOLUNTARY BANKRUPTCY. The General Partner or the Borrower shall
(i) have an order for relief entered with respect to it under the
federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek,
consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it
or any Substantial Portion of its Property, (iv) institute any
proceeding seeking an order for relief under the federal bankruptcy
laws as now or hereafter in effect or seeking to adjudicate it as a
bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, (v) take any corporate action
to authorize or effect any of the foregoing actions set forth in this
SECTION 8.6 or (vi) not pay, or admit in writing its inability to
pay, its debts generally as they become due.
8.7 INVOLUNTARY BANKRUPTCY. A receiver, trustee, examiner, liquidator
or similar official shall be appointed for the General Partner or the
Borrower, or a proceeding described in SECTION 8.6(IV) shall be
instituted against the General Partner or the Borrower and such
appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of sixty (60) consecutive days.
8.8 JUDGMENTS. The General Partner or the Borrower shall fail within
sixty (60) days to pay, bond or otherwise discharge any judgments or
orders for the payment of money in an amount which, when added to all
other judgments or orders outstanding against the General Partner or
the Borrower would exceed $10,000,000 in the aggregate, which have
not been stayed on appeal or otherwise appropriately contested in
good faith.
8.9 REVOCATION OF GUARANTY. The revocation or attempted
revocation of any Guaranty.
8.10. AGC/GEI RENT DEFAULT. AGC and GEI, in the aggregate, fail to
make scheduled rent payments to the Borrower in excess of the
delinquent amount on the Effective Date plus, as of any date, the
"Maximum Deferral Percentage" times all AGC/GEI Base Rental due from
April 1, 2002 through such date, taking in account both rent
reductions due to sales of Projects and rent escalations and rent
increases on account of capital expenditures by the Borrower (such
-16-
excess, the "Delinquent Rent Amount"). The Maximum Deferral
Percentage has been defined in a separate side letter among Borrower
and the Administrative Agent of even date with the Amendment and
Extension. Notwithstanding the foregoing, if AGC and GEI fail to pay
in full the aggregate minimum rent, the Borrower shall have a 90 day
period to use all reasonable efforts to cause AGC and GEI to pay such
amounts in full and such failure by AGC and GEI will not constitute a
Major Default during such 90 day period so long as the Borrower
establishes within ten (10) days after such failure a standing cash
collateral account with the Collateral Trustee for the benefit of the
Lenders and the NGP Noteholders (the "Rent Deferral Cash Collateral
Account") and deposits therein an amount equal to 90 days interest on
the Facility and on the Note Purchase Agreements as reasonably
projected by the Administrative Agent and the NGP Noteholders,
respectively, such deposit to be returned to Borrower if and only if
AGC and GEI fully cure such failure to pay minimum rent within such
period and otherwise to be applied to reduce the outstanding
principal balance of the Facility and the Note Purchase Agreements at
the end of such period in accordance with the terms of the Collateral
Agency Agreement.
8.11 BREACH OF PROVISIONS OF COLLATERAL AGENCY Agreement. The breach
of any one or more of Sections 6(a), 6(f) (only with respect to
policies of insurance required to be maintained by the Borrower under
the Collateral Agency Agreement), 7(a) (only to the extent of a
material breach thereof and except to the extent of any involuntary
Lien (as such term is defined in the Collateral Agency Agreement)
contested by Borrower, provided the Borrower has set aside a reserve
in the contested amount and is continuously and diligently pursuing
resolution thereof) and 7(b) of the Collateral Agency Agreement which
is not cured within thirty (30) days after written notice thereof has
been given to the Borrower by the Administrative Agent.
F. Article IX, ACCELERATION, WAIVERS, AMENDMENT AND REMEDIES.
Section 9.2 shall be deleted and replaced by the following:
AMENDMENTS. Subject to the provisions of this Article IX, the
Required Lenders (or the Administrative Agent with the consent in
writing of the Required Lenders) and the Borrower may enter into
agreements supplemental hereto for the purpose of adding or modifying
any provisions to the Loan Documents or changing in any manner the
rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder (any of the foregoing being referred to as a
"Modification"); provided, however, that any such Modification with
respect to the matters described below shall require the consent of
all Lenders so indicated below:
(i) Releasing the General Partner from the Guaranty;
-17-
(ii) Reducing the percentage specified in the
definition of Required Lenders or Super Majority
Lenders;
(iii) Increasing the amount of the Aggregate
Commitment;
(iv) Permitting the Borrower to assign or allow another Person
to assume its rights under this Agreement, other than pursuant
to a merger or other transaction permitted or consented to
hereunder;
(v) Amending this Section 9.2;
(vi) Amending clause (vi) of Section 7.20 or any of
the defined terms contained therein; and
(vii) Subordinating the Obligations to any other
Indebtedness of the Borrower or the Guarantor.
(viii) Extending the Revolving Facility Termination Date, the
Term Facility Termination Date or the time of payment of any of
the other Obligations; (ix) Forgiving all or any portion of the
principal amount of any Advance or accrued interest thereon; and
(x) Modifying the Adjusted ABR Rate or any of the
defined terms contained therein.
(d) No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent
of the Administrative Agent, and no amendment increasing the
Commitment of any Lender shall be effective without the written
consent of such Lender.
6. VOLUNTARY AGREEMENT. Borrower represents and warrants that it is
represented by legal counsel of its choice, that it has consulted with counsel
regarding this Amendment, that it is fully aware of the terms of this Amendment,
and that it has entered into this Amendment voluntarily and without coercion or
duress of any kind.
7. NO COURSE OF CONDUCT. Borrower acknowledges that the determination by
Lenders to enter into this Amendment 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 amendment, waiver or modification of any of the
terms of the Loan Documents.
8. FURTHER ASSURANCES. Borrower, Guarantor, Agent and the Lenders
executing this Amendment 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 Amendment
and to carry out the intents and purposes of this Amendment.
-18-
9. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
10. 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 Amendment are incorporated herein and
expressly made a part hereof. The terms and provisions of this Amendment 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 Amendment, 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 Amendment shall
be interpreted or construed against the party whose attorney prepared this
Amendment or any earlier draft of this Amendment.
11. COUNTERPARTS. This Amendment 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.
12. CONTINUING EFFECT. Except as expressly modified by this Amendment,
the Credit Agreement shall continue in full force and effect. Guarantor hereby
reaffirms the Guaranty and agrees that all of the undertakings, agreements,
waivers and releases contained therein shall continue in full force and effect
with respect to the Credit Agreement and other Loan Documents as modified
herein.
[SIGNATURES ARE CONTAINED ON THE FOLLOWING PAGE]
-19-
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.
---------
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
-20-
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
-21-
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/ Bruno DeFloor
-------------------------------------
Print Name: Bruno DeFloor
Title: Vice President
-00-
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 X. Xxxxxxxxxxxx
-------------------------------------
Print Name: Xxxxxx X. 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: Octagon Credit Investors, LLC as
Portfolio Manager
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Print Name: Xxxxxx X. Xxxxxx
Title: Portfolio Manager
-23-
OCTAGON INVESTMENT PARTNERS III, LTD.
By: Octagon Credit Investors, LLC as
Portfolio Manager
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Print Name: Xxxxxx X. Xxxxxx
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS IV, LTD.
By: Octagon Credit Investors, LLC as
Portfolio Manager
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Print Name: Xxxxxx X. Xxxxxx
Title: Portfolio Manager
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: Vice President
-24-
PINEHURST TRADING, INC.
By:/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Print Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
CENTREPACIFIC SIERRA CLO I
By:/s/ Xxxxx Xxxxxx
-------------------------------------
Print Name: Xxxxx Xxxxxx
Title: Managing
PB CAPITAL CORPORATION
By:/s/ Xxxx Xxxx
-------------------------------------
Print Name: Xxxx Xxxx
Title: Assistant Vice President
By:/s/ Xxxxxxx Xxxxx
-------------------------------------
Print Name: Xxxxxxx Xxxxx
Title: Managing Director,
Portfolio Management
-25-
