Exhibit 10.36
U.S. INDUSTRIES, INC.
MASTER AGREEMENT
CONFORMED COPY
WAIVER AND CONSENT
DATED AS OF DECEMBER 21, 2001
This WAIVER AND CONSENT dated as of December 21, 2001, under
the Amendment, Restatement, General Provisions and Intercreditor Agreement dated
as of August 15, 2001 between U.S. Industries, Inc. ("USI"), USI Global Corp.,
USI American Holdings, Inc., USI Atlantic Corp., Rexair Holdings, Inc., Rexair,
Inc. and the other subsidiaries of USI party thereto as Loan Parties, Wilmington
Trust Company and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Collateral Trustees, Bank of America,
N.A., as agent and the various bank and other lender parties thereto (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "MASTER AGREEMENT"). Capitalized terms used without definition in this
Waiver and Consent shall have the meanings provided in the Master Agreement.
W I T N E S S E T H:
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WHEREAS, the Loan Parties have requested that the Banks
provide certain waivers of compliance with the terms of the Master Agreement;
WHEREAS, the Banks are willing to grant the requests of the
Loan Parties as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and subject to the
terms and conditions hereof, the parties hereto agree as follows:
SECTION 1. WAIVERS. Subject to the occurrence of the Effective
Date, the Banks agree as follows:
(a) UNFUNDED COMMITMENT REDUCTION. To the extent that on
December 31, 2001 the cumulative Permanent Reductions of Senior Debt Exposure
paid by the Loan Parties pursuant to Section 3.04 of the Master Agreement is
less than the required Cumulative Amortization Amount for such date (the amount
of any such shortfall being the "SHORTFALL AMOUNT"), then a payment in the
amount of the Shortfall Amount shall automatically be made on such date by a
permanent reduction of Unfunded Commitments under the USI Credit Agreement and
the Rexair Credit Agreement. Such Unfunded Commitment reduction shall be pro
rata between the USI Credit Agreement and the Rexair Credit Agreement until
there is an aggregate Unfunded Commitment reduction under the Rexair Credit
Agreement of $3,000,000, and
thereafter the balance of such reductions shall be under the USI Credit
Agreement. In connection with such permanent reduction of Unfunded Commitments,
the relevant borrowers shall be deemed to have simultaneously borrowed an amount
equal in the aggregate to the Shortfall Amount, prepaid such amount and
voluntarily made Unfunded Commitment reductions in such amount, all on December
31, 2001, and no interest or breakage payments shall be payable with respect to
any such borrowing.
(b) WAIVER. The Banks hereby agree to waive (to the extent
necessary) compliance by the Loan Parties with the requirements of the "Use of
Bank Facility Proceeds" provisions under Sections 3.01(a), 4.03 and 6.01(o) of
the Master Agreement solely in order to permit the permanent reduction of
Unfunded Commitments described in Section 1(a) hereof.
(c) LIQUIDITY. For the period commencing January 1, 2002 and
ending on February 28, 2002, the Loan Parties shall be permitted to deduct and
retain (and use for the purposes described in Section 3.01(a) of the Master
Agreement) (in addition to the Retained Amount) from the proceeds of Asset
Dispositions and Extraordinary Receipts an aggregate amount equal to the
Shortfall Amount prior to the application of the Net Cash Proceeds thereof
pursuant to Sections 3.04(a) and 3.05(a) of the Master Agreement, and the Banks
shall be deemed to have released Collateral subject to such Asset Dispositions
and Extraordinary Receipts in an amount equal to the retained Shortfall Amount
from the Shared Collateral Lien or Non-Shared Collateral Lien, as the case may
be, immediately prior to any such Asset Dispositions and Extraordinary Receipts.
In this connection, the Debt Coordinator is hereby authorized to instruct the
Collateral Trustees to release such Collateral, PROVIDED that (i) for purposes
of the proviso in Section 3.04(a) of the Master Agreement, such retained
Shortfall Amount shall be deemed to have been received and applied to the
Permanent Reduction of Senior Debt Exposure from Asset Dispositions, and (ii)
for purposes of computing the share of Net Cash Proceeds of Asset Dispositions
and Extraordinary Receipts attributable to all Senior Debt Exposure, it shall be
assumed that an amount equal to the Shortfall Amount was received from such Net
Cash Proceeds on December 31, 2001.
(d) ▇▇▇▇ TRUE TEMPER, INC. In connection with the sale of ▇▇▇▇
True Temper, Inc., a Subsidiary of USI, the Banks agree to grant the waivers
described in Schedule I.
(e) ANNUAL FINANCIAL STATEMENTS. The Banks agree to waive the
requirements of Section 6.03(b) of the Master Agreement solely with respect to
the Fiscal Year ended on September 30, 2001, PROVIDED that all financial
statements, certificates, opinions and schedules required to be delivered
pursuant thereto shall have been delivered to the Debt Coordinator and the Banks
no later than January 14, 2002.
(f) CHINO, CALIFORNIA LEASEHOLD PROPERTY. The Banks agree to
waive any Default arising from the existence of its leasehold interest in
certain real property located in Chino, California or the failure of Jacuzzi,
Inc. or any other Loan Party to disclose such interest on Schedule 5.01(s) to
the Master Agreement (including, without limitation, any Default under Sections
6.02(h) or 6.02(m) of the Master Agreement). In connection therewith, USI agrees
to use its reasonable best efforts to obtain the consent of the landlord to a
mortgage of such lease and, upon obtaining such consent, to promptly thereafter
execute and deliver such mortgage to the Collateral Trustees.
SECTION 2. CONDITIONS TO EFFECTIVENESS. The provisions of this
Waiver and Consent shall become effective as of the date first above written
(the "EFFECTIVE DATE") when, and only when, the Debt Coordinator shall have
received confirmation of each of the following, each in form and substance
satisfactory to the Debt Coordinator:
(i) EXECUTION OF COUNTERPARTS. The Debt Coordinator shall have
received counterparts of this Waiver and Consent duly executed by each
of the Loan Parties and the Majority Banks.
(ii) PAYMENT OF FEES AND EXPENSES. The Debt Coordinator shall
have determined that all agency, trustee, custodial, filing service,
legal and other fees and disbursements incurred and invoiced through
the day immediately prior to the Effective Date, including all fees of
the Collateral Trustees and the Debt Coordinator, and their respective
counsel, including local real estate counsel, and of the Financial
Advisor, shall have been paid in full by the Loan Parties.
(iii) NO DEFAULT. No Default shall have occurred or be
continuing, other than a Default that shall be cured by the
effectiveness of the respective section hereof.
SECTION 3. WAIVER FEE. USI agrees to pay to the Debt
Coordinator on December 31, 2001, for the account of each Bank that returns an
executed counterpart of this Waiver and Consent to the Debt Coordinator by
December 21, 2001, a waiver fee in an amount equal to the greater of (i) .01% of
the Total Principal Exposure of such Bank and (ii) $2,000; PROVIDED, HOWEVER,
that if any payment of the Shortfall Amount is made on such date pursuant to
Section 1(a), the amount of such fee then payable to such Bank shall be
increased to a total amount of .05% of the Total Principal Exposure of such
Bank.
SECTION 4. CONFIRMATION OF REPRESENTATIONS AND WARRANTIES AND
CERTAIN ACKNOWLEDGEMENTS AND AGREEMENTS. Each of the Loan Parties hereby
represents and warrants, on and as of the Effective Date, that the
representations and warranties contained in the Master Agreement are correct and
true in all material respects on and as of the date hereof, before and after
giving effect to this Waiver and Consent, as though made on and as of the date
hereof, other than any such representations or warranties that, by their terms,
refer to a specific date or are waived hereby. In addition, each of the Loan
Parties hereby acknowledges and restates, on and as of the Effective Date, each
of its statements and agreements in Sections 8.02(d) and 8.03 of the Master
Agreement.
SECTION 5. REFERENCE TO AND EFFECT ON THE TRANSACTION
DOCUMENTS. (a) On and after the effectiveness of this Waiver and Consent, each
reference in the Master Agreement to "hereunder", "hereof" or words of like
import referring to the Master Agreement, and each reference in the other
Transaction Documents to the "Master Agreement", "thereunder", "thereof" or
words of like import referring to the Master Agreement, shall mean and be a
reference to the Master Agreement as modified by this Waiver and Consent.
(b) The Master Agreement and each of the other Transaction
Documents, as specifically modified by this Waiver and Consent, are and shall
continue to be in full force and effect and are hereby in all respects ratified
and confirmed.
(c) The execution, delivery and effectiveness of this Waiver
and Consent shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of any Bank or the Debt Coordinator under any of
the Transaction Documents, nor constitute a waiver of any provision of any of
the Transaction Documents.
SECTION 6. TERMINATION. Each of the waivers and consents set
forth in Section 1 hereof shall terminate and be of no further force and effect
as of the earliest of (i) the date of the failure of any condition or the
failure of any Loan Party to perform or observe any other agreement set forth
herein, and (ii) January 15, 2002, if, and only if, the Debt Coordinator shall
not be satisfied that USI shall have taken or shall have caused its Subsidiaries
to take all steps necessary to perfect in all material respects its security
interests in and Liens on the assets and properties described in Schedule II
hereto.
SECTION 7. EXECUTION IN COUNTERPARTS. This Waiver and Consent
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Waiver and Consent by telecopier shall be effective as delivery of a manually
executed counterpart of this Waiver and Consent.
SECTION 8. GOVERNING LAW. This Waiver and Consent shall be
governed by, and construed in accordance with, the laws of the State of New
York, and shall be subject to the jurisdictional and service provisions of the
Master Agreement, as if this were a part of the Master Agreement.
SECTION 9. ENTIRE AGREEMENT; MODIFICATION. This Waiver and
Consent constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof, there being no other agreements or understandings,
oral, written or otherwise, respecting such subject matter, any such agreement
or understanding being superseded hereby, shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, and
may not be amended, extended or otherwise modified, except in a writing executed
in whole or in counterparts by each party hereto.
SECTION 10. WAIVER PROVISIONS. This Waiver and Consent is
subject to the provisions of Section 10.01 of the Master Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
and Consent to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
Signatures
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BANK OF AMERICA, N.A., as Debt Coordinator, and as
a USI Bank and Rexair Bank:
By: /s/ ▇▇▇▇▇ ▇▇
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Title: Managing Director
ABN AMRO BANK N.V., as USI Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Group Vice President Group Senior Vice President
BANCA NAZIONALE DEL LAVORO SPA, as USI Bank
By:
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Name:
Title:
BANKERS TRUST COMPANY, as USI Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
BANK OF NEW YORK, as USI Bank and Rexair Bank
By: /s/ ▇▇▇▇▇ ▇. Judge
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Title: Senior Vice President
Signatures
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THE BANK OF NOVA SCOTIA, as USI Bank and Rexair Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Managing Director
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as USI Bank
By:
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Name:
Title:
BANK ONE, N.A. (MAIN OFFICE CHICAGO), as USI
Bank and Rexair Bank
By:
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Name:
Title:
BNP PARIBAS, as USI Bank
By:
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Name:
Title:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, as USI Bank
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
CITIBANK, N.A., as USI Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Managing Director
Signatures
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COMERICA BANK, as Rexair Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH, as USI Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: SVP
CREDIT SUISSE FIRST BOSTON, as Rexair Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇
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Title: Vice President Associate
THE DAI-ICHI KANGYO BANK, LIMITED., as USI Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK FRANKFURT
AM MAIN, as Rexair Bank
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Title: Vice President
Signatures
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DEUTSCHE BANK, as USI Bank and as Rexair Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Director
FARALLON, JACUZZI, L.L.C., as USI Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Managing Member
FIRSTAR BANK, N.A., as USI Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: AVP
FLEET NATIONAL BANK, as USI Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
THE FUJI BANK LTD., as Rexair Bank
By:
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Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION., as USI Bank
By: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Duly Authorized Signatory
Signatures
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▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS, L.P., as USI Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Authorized Signatory
HSBC BANK USA, as USI Bank and Independent L/C Issuer
By:
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Name:
Title:
INDUSTRIAL BANK OF JAPAN, LIMITED, as USI Bank
By: /s/ Mabuchi Akihiko
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Title: Senior Vice President
MELLON BANK, N.A., as USI Bank and Rexair Bank
By:
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Name:
Title:
NATIONAL WESTMINSTER BANK PLC, as USI Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Manager
PNC BANK, NATIONAL ASSOCIATION, as USI Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
Signatures
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ROYAL BANK OF CANADA, as USI Bank
By:
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Name:
Title:
ROYAL BANK OF SCOTLAND PLC, as USI Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Manager
SOCIETE GENERALE, as USI Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Director
STANDARD FEDERAL BANK, as Rexair Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: First Vice President
STB DELAWARE FUNDING TRUST I, as USI Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION, as USI Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Title: Senior Vice President
Signatures
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TORONTO-DOMINION (NEW YORK), INC., as USI Bank
By:
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Name:
Title:
ACKNOWLEDGED AND AGREED:
▇▇▇▇ TRUE TEMPER PROPERTIES, INC.
▇▇▇▇ TRUE TEMPER, INC.
ARCHITECTURAL AREA LIGHTING, INC.
ARROW CONSOLIDATED CORPORATION
ASTERIA COMPANY
BATHCRAFT INC.
▇▇▇▇▇▇ BROTHERS, INC.
▇▇▇▇▇▇▇▇ MANUFACTURING CORP.
CARLSBAD CORP.
COLUMBIA LIGHTING, INC.
COLUMBIA LIGHTING-LCA, INC.
COLUMBIA LIGHTING MFG., CO.
COLUMBIA LIGHTING PROPERTIES, INC.
COLUMBIA MATERIALS, LLC
COMPAX CORP.
DUAL-LITE INC.
DUAL-LITE MANUFACTURING, INC.
ELJER INDUSTRIES, INC.
ELJER PLUMBINGWARE, INC.
ENVIRONMENTAL ENERGY COMPANY
EZ HOLDINGS, INC.
▇▇▇▇ CONCRETE PRODUCTS, INC.
GATSBY SPAS, INC.
HL CAPITAL CORP.
IXL MANUFACTURING COMPANY, INC.
JACUZZI INC.
JACUZZI WHIRLPOOL BATH, INC.
JUSI HOLDINGS, INC.
▇▇▇ LIGHTING INC.
KLI, INC.
LCA GROUP INC.
LCA (NS) INC.
LIGHTING CORPORATION OF AMERICA, INC.
LOKELANI DEVELOPMENT CORPORATION
LUXOR INDUSTRIES, INC.
MAILI KAI LAND DEVELOPMENT CORPORATION
MOBILITE INC.
NEPCO OF AUSTRALIA, INC.
NEPCO OF CANADA, INC.
NEPCO OF FORD HEIGHTS, INC.
NEPCO OF ▇▇▇▇▇▇, INC.
NEPCO OF PAKISTAN, INC.
▇▇▇▇▇▇ UNIVERSAL HOLDINGS INC.
OUTDOOR PRODUCTS LLC
PH PROPERTY DEVELOPMENT COMPANY
PRESCOLITE LITE CONTROLS, INC.
PRESCOLITE, INC.
PROGRESS LIGHTING INC.
PROGRESSIVE LIGHTING, INC. (NC)
PROGRESSIVE LIGHTING, INC. (SC)
PROGRESS LIGHTING PROPERTIES, INC.
REDMONT, INC.
REXAIR, INC.
REXAIR HOLDINGS, INC.
SANITARY-DASH MANUFACTURING CO., INC.
SELKIRK CANADA U.S.A., INC.
SELKIRK EUROPE U.S.A., INC.
SELKIRK, INC.
▇▇▇▇▇▇▇▇▇ LIGHTING, INC.
STRATEGIC CAPITAL MANAGEMENT, INC.
STREAMWOOD CORPORATION
SUNDANCE SPAS, INC.
TA LIQUIDATION CORP.
TRIMFOOT CO.
TT LIQUIDATION CORP.
UGE LIQUIDATION INC.
UNITED STATES BRASS CORP.
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
USI ATLANTIC CORP.
USI CAPITAL, INC.
USI FUNDING, INC.
USI GLOBAL CORP.
USI PROPERTIES, INC.
USI REALTY CORP.
ZURCO, INC.
ZURNACQ OF CALIFORNIA, INC.
▇▇▇▇ (CAYMAN ISLANDS), INC.
▇▇▇▇ CONSTRUCTORS, INC.
▇▇▇▇ DEVCO, INC.
▇▇▇▇ ▇▇▇ SERVICES, INC.
▇▇▇▇ GOLF HOLDING CORPORATION
▇▇▇▇ INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President