FIRST AMENDMENT TO CREDIT AGREEMENT and PROMISSORY NOTE
FIRST
AMENDMENT TO CREDIT AGREEMENT
and
PROMISSORY
NOTE
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT AND PROMISSORY NOTE (the "Amendment"), dated
as of February 10, 2005, by and among XXXXX
GOLF, INC., a
Delaware corporation; XXXXX
GOLF HOLDING CORP, a
Delaware corporation; XXXXX
GOLF GP CORP, a
Delaware corporation; XXXXX
GOLF, LTD., a Texas
limited partnership; XXXXX
GOLF IP, LP, a
Delaware limited partnership; and XXXXX
GOLF MANAGEMENT CORP, a
Delaware corporation (the "Borrowers"), and
BANK
OF TEXAS, N.A.
("Lender").
RECITALS
A. Borrowers
and Lender entered into that certain Credit Agreement dated as of February 13,
2004 (the "Credit
Agreement").
B. In
connection with the Credit Agreement, Borrower executed and delivered to Lender
that certain Promissory Note dated February 13, 2004, in the original principal
amount of $2,000,000 (the "Note").
C. Borrowers
and Lender desire to amend the Credit Agreement and the Note as hereinafter set
forth.
NOW,
THEREFORE, in consideration of the premises herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
ARTICLE
I
Definitions
Section
1.1 Definitions.
Capitalized terms used in this Amendment, to the extent not otherwise defined
herein, shall have the same meaning as in the Credit Agreement, as amended
hereby.
ARTICLE
II
Amendments
Section
2.1 Amendment
to Definition of "Termination Date" in the Credit Agreement. The
definition of "Termination Date" contained in Article
1 of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
""Termination
Date" means April 13, 2005, unless sooner terminated pursuant to Section
6.2."
Section
2.2 Amendment
to Note. The
fourth paragraph of the Note beginning with "The principal" and ending with "in
full" is hereby amended and restated in its entirety as follows:
The
principal of this Note is due and payable on April 13, 2005. Accrued interest
hereunder is due and payable in quarterly installments as it accrues on May 13,
2004, August 13, 2004, November 13, 2004, February 13, 2005 and April 13, 2005,
on which date the unpaid principal and all accrued unpaid interest thereon shall
be due and payable in full.
ARTICLE
III
Conditions
Precedent
Section
3.1 Conditions. The
effectiveness of this Amendment is subject to the satisfaction of the following
conditions precedent, unless specifically waived by Lender:
(a) Lender
shall have received this Amendment duly executed by Borrowers;
(b) The
representations and warranties contained herein, in the Credit Agreement, as
amended hereby, and in each other Loan Document shall be true and correct in all
material respects as of the date hereof, as if made on the date hereof (except
to the extent such representation or warranty relates specifically to an earlier
date); and
(c) No Event
of Default shall have occurred and be continuing and no default shall exist
under the Credit Agreement or any other Loan Document.
ARTICLE
IV
Ratifications,
Representations and Warranties
Section
4.1 Ratifications. The
terms and provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions set forth in the Credit Agreement and, except
as expressly modified and superseded by this Amendment, the terms and provisions
of the Credit Agreement and the other Loan Documents are ratified and confirmed
and shall continue in full force and effect. Borrowers and Lender agree that the
Credit Agreement, as amended hereby, and the other Loan Documents shall continue
to be legal, valid, binding and enforceable in accordance with their respective
terms.
Section
4.2 Representations
and Warranties. Each
Borrower hereby represents and warrants to Lender as follows:
(a) The
execution, delivery and performance of this Amendment and any and all other Loan
Documents executed and delivered in connection herewith have been authorized by
all requisite corporate action on the part of Borrowers and do not and will not
conflict with or violate any provision of any applicable laws, rules,
regulations or decrees, the articles of incorporation or bylaws of the Borrowers
or any agreement, document, judgment, license, order or permit applicable to or
binding upon the Borrowers or their respective assets. No consent, approval,
authorization or order of, and no notice to or filing with, any court or
governmental authority or third person is required in connection with the
execution, delivery or performance of this Amendment or to consummate the
transactions contemplated hereby;
(b) The
representations and warranties contained in the Credit Agreement, as amended
hereby, and the other Loan Documents are true and correct in all material
respects on and as of the date hereof as though made on and as of the date
hereof, except to the extent such representations and warranties relate to an
earlier date;
(c) Borrowers
are in full compliance with all covenants and agreements contained in the Credit
Agreement, as amended hereby, and the other Loan Documents; and
(d) Borrowers
have not amended their articles of incorporation or bylaws or any other
organizational documents since the date of the execution of the Credit
Agreement.
FIRST
AMENDMENT TO CREDIT AGREEMENT - Page 2
ARTICLE
V
Miscellaneous
Section
5.1 Survival
of Representations and Warranties. All
representations and warranties made in the Credit Agreement and any other
document or documents relating thereto, including, without
limitation, any Loan Document furnished in connection therewith and with this
Amendment, shall survive the execution and delivery of this Amendment and the
other Loan Documents, and no investigation by Lender or any closing shall affect
the representations and warranties or the right of Lender to rely upon
them.
Section
5.2 Reference
to Credit Agreement and Note. Each of
the Loan Documents, including the Credit Agreement and the Note and any and all
other agreements, documents or instruments now or hereafter executed and
delivered pursuant to the terms hereof or pursuant to the terms of the Credit
Agreement and the Note, as amended hereby, are hereby amended so that any
reference in such Loan Documents to the Credit Agreement and the Note shall mean
a reference to the Credit Agreement and the Note, as amended
hereby.
Section
5.3 Expenses
of Lender. As
provided in the Credit Agreement, each Borrower agrees to pay on demand all
reasonable costs and expenses incurred by Lender in connection with the
preparation, negotiation and execution of this Amendment and the other Loan
Documents executed pursuant hereto and any and all amendments, modifications,
and supplements hereto, including, without limitation, the reasonable costs and
fees of Lender's legal counsel, and all reasonable costs and expenses incurred
by Lender in connection with the enforcement or preservation of any rights under
the Credit Agreement, as amended hereby, and any other Loan Document, including,
without limitation, the reasonable costs and fees of Lender's legal
counsel.
Section
5.4 RELEASE.
EACH BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET,
CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE
ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE
OBLIGATIONS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM
THE LENDER. EACH BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES THE LENDER, ITS PREDECESSORS, AGENTS, ATTORNEYS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF
ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR
CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE
THE DATE THIS AMENDMENT IS EXECUTED, WHICH THE BORROWERS MAY NOW OR HEREAFTER
HAVE AGAINST THE LENDER, ITS PREDECESSORS, AGENTS, ATTORNEYS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND
ARISING FROM ANY OF THE OBLIGATIONS, INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST
IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE CREDIT AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR
AND EXECUTION OF THIS AMENDMENT.
Section
5.5 Severability. Any
provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provision so held to
be invalid or unenforceable.
FIRST
AMENDMENT TO CREDIT AGREEMENT - Page 3
Section
5.6 APPLICABLE
LAW.
THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE
DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN DALLAS, TEXAS, AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
Section
5.7 Successors
and Assigns. This
Amendment is binding upon and shall inure to the benefit of Lender and Borrowers
and their respective successors and assigns, except the Borrowers may not assign
or transfer any of its rights or obligations hereunder without the prior written
consent of Lender.
Section
5.8 Counterparts. This
Amendment may be executed in one or more counterparts, each of which when so
executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same instrument. Delivery
of an executed counterpart of this Amendment by facsimile shall be equally as
effective as delivery of an executed original counterpart and shall constitute a
covenant to deliver an executed original counterpart, but the failure to do so
shall not affect the validity, enforceability and binding effect of this
Amendment.
Section
5.9 Effect
of Waiver. No
consent or waiver, express or implied, by Lender to or for any breach of or
deviation from any covenant or condition of the Credit Agreement shall be deemed
a consent or waiver to or of any other breach of the same or any other covenant,
condition or duty.
Section
5.10 Headings. The
headings, captions, and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
Section
5.11 FINAL
AGREEMENT.
THE CREDIT AGREEMENT AND THE NOTE, AS AMENDED HEREBY, AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES RELATED TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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FIRST
AMENDMENT TO CREDIT AGREEMENT - Page 4
IN
WITNESS WHEREOF, Borrowers and the Lender have caused this Amendment to be
executed on the date first written above by their duly authorized
officers.
| LENDER: | ||
| |
LENDER: | |
| BANK OF TEXAS, N.A., a national banking association | ||
| By: | /s/ XXXX X. XXXXX | |
|
Name: XXXX X. XXXXX | ||
| Title: Vice President | ||
| BORROWERS: | ||
| XXXXX GOLF, INC., a Delaware corporation | ||
|
| ||
| By: | /s/ XXXX XXXXX | |
|
Name: Xxxx Xxxxx | ||
| Title: Chief Financial Officer | ||
| XXXXX GOLF HOLDING COPR., a delaware corporation | ||
| |
|
|
| By: | /s/ XXXX XXXXX | |
|
Name: Xxxx Xxxxx | ||
| Title: Vice President | ||
| XXXXX GOLF GP CORP., a Delaware corporation | ||
| |
|
|
| By: | /s/ XXXX XXXXX | |
|
Name: Xxxx Xxxxx | ||
| Title: President | ||
| XXXXX GOLF, LTD., a Texas limited partnership | ||
| |
By:
Xxxxx Golf GP Corp, a Delaware corporation, its sole General
Partner | |
| By: | /s/ XXXX XXXXX | |
|
Name: Xxxx Xxxxx | ||
| Title: President | ||
FIRST
AMENDMENT TO CREDIT AGREEMENT - Signature Xxxx
| XXXXX GOLF IP LP, a Delaware corporation | ||
| |
By:
Xxxxx Golf IP LP, a Delaware corporation, its sole General
Partner | |
| By: | /s/ XXXX XXXXX | |
|
Name: Xxxx Xxxxx | ||
| Title: President | ||
| XXXXX GOLF MANAGEMENT CORP., a Delaware corporation | ||
| |
|
|
| By: | /S/ XXXX XXXXX | |
|
Name: Xxxx Xxxxx | ||
| Title: Vice President | ||
FIRST
AMENDMENT TO CREDIT AGREEMENT - Signature Page
