EXHIBIT 10.21
FOURTH AMENDMENT TO FIRST
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(this "Fourth Amendment"), dated and effective as of February 7,2002, by and
among the lenders listed on the signature pages hereof (the "Lenders"),
CLUBCORP, INC., a Delaware corporation (the "Borrower"), and BANK OF AMERICA,
N.A., as administrative agent for the Lenders (the "Administrative Agent"), to
the extent and in the manner provided for in the Credit Agreement (defined below
and herein so called).
BACKGROUND
A. The Borrower, the Lenders, certain co-agents, certain managing
agents and the Administrative Agent are parties to that certain First Amended
and Restated Credit Agreement, dated as of September 24, 1999, as amended by
that certain First Amendment to First Amended and Restated Credit Agreement,
dated as of November 5, 1999, that certain Second Amendment to First Amended and
Restated Credit Agreement, dated as of December 20, 2000, and that certain Third
Amendment and Waiver to First Amended and Restated Credit Agreement, dated as of
December 25, 2001 (said Credit Agreement, as amended, the "Credit Agreement";
the terms defined in the Credit Agreement and not otherwise defined herein shall
be used herein as defined in the Credit Agreement).
B. The Borrower, the Lenders and the Administrative Agent desire to
amend the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the parties
hereto covenant and agree as follows:
1. Amendments.
(a) The definition of "Acquisition Consideration" set forth in
Section 1.1 of the Credit Agreement is hereby amended to read as follows:
"Acquisition Consideration" means the consideration given by the
Borrower or any of its Subsidiaries for an Acquisition, including but
not limited to the sum of (without duplication) (a) the fair market
value of any cash, property (including Redeemable Stock) or services
given, plus (b) consideration paid with proceeds of Indebtedness
permitted pursuant to this Agreement, plus (c) the amount of any
Indebtedness, accounts payable and accrued expenses assumed, incurred or
guaranteed in connection with such Acquisition by the Borrower or any of
its Subsidiaries; provided, however, notwithstanding anything above to
the contrary, the Coto de Caza Payment shall not be Acquisition
Consideration.
(b) The definition of "Applicable Base Rate Margin" set forth in
Section 1.1 of the Credit Agreement is hereby amended to read as follows:
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"Applicable Base Rate Margin" means the following per annum
percentages, applicable in the following situations:
Revolving Facility A Facility B
Credit Term Loan Term Loan
Applicability Advances Advances Advances
------------- -------- -------- --------
(a) The Leverage Ratio is less 1.000 1.000 2.500
than 2.50 to 1
(b) The Leverage Ratio is 1.250 1.250 2.500
greater than or equal to 2.50
to 1 but less than 3.00 to 1
(c) The Leverage Ratio is 1.500 1.500 2.500
greater than or equal to 3.00
to 1 but less than 3.50 to 1
(d) The Leverage Ratio is 1.750 1.750 2.500
greater than or equal to 3.50
to 1 but less than 4.00 to 1
(e) The Leverage Ratio is 2.000 2.000 2.500
greater than or equal to 4.00
to 1 but less than 4.50 to 1
(f) The Leverage Ratio is 2.250 2.250 2.750
greater than or equal to 4.50
to 1 but less than 5.00 to 1
(g) The Leverage Ratio is 2.500 2.500 3.000
greater than or equal to 5.00
to 1 but less than 5.25 to 1
(h) The Leverage Ratio is 2.750 2.750 3.250
greater than or equal to 5.25
to 1
The Applicable Base Rate Margin payable by the Borrower on the Base Rate
Advances outstanding hereunder shall be subject to reduction or
increase, as applicable and as set forth in the table above, on a
quarterly basis according to the performance of the Borrower as tested
by using the Leverage Ratio as of the end of the most recent Fiscal
Quarter (calculated for the twelve Fiscal Months preceding the date of
determination); provided, that each adjustment in the Applicable Base
Rate Margin shall be effective on the date which is two Business Days
following receipt by the Administrative Agent of the financial
statements required to be delivered pursuant to Section 6.1 or 6.2 as
applicable,
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hereof and the Compliance Certificate required pursuant to section 6.3
hereof. If such financial statements and Compliance Certificate are not
received by the Administrative Agent by the date required, the
Applicable Base Rate Margin shall be determined as if the Leverage Ratio
is greater than or equal to 5.25 to 1 until such time as such financial
statements and Compliance Certificate are received. Notwithstanding the
above, until such time as the Lenders have received the financial
statements required for the fourth Fiscal Quarter of the Borrower's 2001
Fiscal Year and related Compliance Certificate, the Applicable Margin
shall be determined as if the Leverage Ratio is greater than or equal to
4.50 but less than 5.00 to 1.
(c) The definition of "Applicable LIBOR Rate Margin" set forth in
Section 1.1 of the Credit Agreement is hereby amended to read as follows:
"Applicable LIBOR Rate Margin" means the following per annum
percentages, applicable in the following situations:
Revolving Facility A Facility B
Credit Term Loan Term Loan
Applicability Advances Advances Advances
------------- ------- -------- --------
(a) The Leverage Ratio is less 1.875 2.250 3.750
than 2.50 to 1
(b) The Leverage Ratio is 2.000 2.500 3.750
greater than or equal to 2.50
to 1 but less than 3.00 to 1
(c) The Leverage Ratio is 2.250 2.750 3.750
greater than or equal to 3.00
to 1 but less than 3.50 to 1
(d) The Leverage Ratio is 2.500 3.000 3.750
greater than or equal to 3.50
to 1 but less than 4.00 to 1
(e) The Leverage Ratio is 2.750 3.250 3.750
greater than or equal to 4.00
to 1 but less than 4.50 to 1
(f) The Leverage Ratio is 3.000 3.500 4.000
greater than or equal to 4.50
to 1 but less than 5.00 to 1
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(g) The Leverage Ratio is 3.250 3.750 4.250
greater than or equal to 5.00
to 1 but less than 5.25 to 1
(h) The Leverage Ratio is 3.500 4.000 4.500
greater than or equal to 5.25
to 1
The Applicable LIBOR Rate Margin payable by the Borrower on the LIBOR
Advances outstanding hereunder shall be subject to reduction or
increase, as applicable and as set forth in the table above, on a
quarterly basis according to the performance of the Borrower as tested
by using the Leverage Ratio as of the end of the most recent Fiscal
Quarter (calculated for the twelve Fiscal Months preceding the date of
determination); provided, that each adjustment in the Applicable LIBOR
Rate Margin shall be effective on the date which is two Business Days
following receipt by the Administrative Agent of the financial
statements required to be delivered pursuant to Section 6.1 or 6.2, as
applicable, hereof and the Compliance Certificate required pursuant to
Section 6.3 hereof. If such financial statements and Compliance
Certificate are not received by the Administrative Agent by the date
required, the Applicable LIBOR Rate Margin shall be determined as if the
Leverage Ratio is greater than or equal to 5.25 to 1 until such time as
such financial statements and Compliance Certificate are received.
Notwithstanding the above, until such time as the Lenders have received
the financial statements required for the fourth Fiscal Quarter of the
Borrower's 2001 Fiscal Year and related Compliance Certificate, the
Applicable Margin shall be determined as if the Leverage Ratio is
greater than or equal to 4.50 to 1 but less than 5.00 to 1.
(d) The definition of "Capital Expenditures" set forth in Section
1.1 of the Credit Agreement is hereby amended to read as follows:
"Capital Expenditures" means, for any period, the aggregate
amount of all purchases and expenditures of the Borrower and its
Subsidiaries that are required to be capitalized for financial reporting
purposes in accordance with GAAP, and in any event shall include the
aggregate amount of items leased or acquired in respect of Capital Lease
Obligations at the cost of the item, and the acquisition of realty,
tools, equipment and fixed assets, and any deferred costs associated
with any of the foregoing (but excluding interest capitalized in
accordance with GAAP in respect of Capital Lease Obligations).
(e) The definition of "Collateral Documents" set forth in Section
1.1 of the Credit Agreement is hereby amended to read as follows:
"Collateral Documents" means the Pledge Agreements, the
Mortgages, the Security Agreements and any other document under which a
security interest in the Collateral is granted and any document related
thereto.
(f) The definition of "EBITDA" set forth in Section 1.1 of the
Credit Agreement is hereby amended to read as follows:
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"EBITDA" means, for any period, determined in accordance with
GAAP on a consolidated basis for the Borrower and its Subsidiaries, the
sum of (a) Pretax Net Income (excluding therefrom, to the extent
included in determining Pretax Net Income, (i) any items of
extraordinary gain, including net gains on the sale of assets other than
asset sales in the ordinary course of business, and (ii) equity in joint
venture net income, and adding thereto, to the extent included in
determining Pretax Net Income, any items of extraordinary loss,
including net losses on the sale of assets other than asset sales in the
ordinary course of business), plus (b) depreciation and amortization,
plus (c) interest expense (including but not limited to interest expense
pursuant to Capitalized Lease Obligations), plus (d) to the extent
included in determining Pretax Net Income, nonrecurring, non-cash
charges, minus (e) to the extent included in determining Pretax Net
Income, non-recurring credits, plus (1) cash distributions received from
any Person the financial results of which are not consolidated with the
financial results of the Borrower pursuant to GAAP, plus (g) without
duplication, to the extent included in determining Pretax Net Income,
non-cash equity compensation to employees and directors pursuant to a
non-cash equity compensation plan, if implemented.
(g) The definition of "Loan Documents" set forth in Section 1.1 of
the Credit Agreement is hereby amended to read as follows:
"Loan Documents" means this Agreement, the Notes, any Subsidiary
Guaranty, any Collateral Document, the L/C Related Documents, the Fee
Letter, the Administrative Agent Fee Letter, any Hedge Agreement with
any Lender or an Affiliate of any Lender entered into in the ordinary
course of business for the purpose of limiting risks entered into in the
ordinary course of business, and any other document or agreement
executed or delivered from time to time by the Borrower and any of its
Subsidiaries or any other Person in connection herewith or therewith or
as security for the Obligations, each as amended, modified, supplemented
or restated from time to time.
(h) The definition of "Net Cash Proceeds" set forth in Section 1.1
of the Credit Agreement is hereby amended to read as follows:
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset (including any Capital
Stock), by or of, or the issuance of any Indebtedness to, any Person,
the cash proceeds received by such Person in connection with such
transaction (including any cash received in respect of non-cash
proceeds, but only and as when received) after deducting therefrom the
aggregate, without duplication, of the following amounts to the extent
properly attributable to such transaction or to any asset that may be
the subject thereof: (i) reasonable brokerage commissions, legal fees,
finder's fees, financial advisory fees, fees for solvency opinions,
accounting fees, underwriting fees, investment banking fees, survey,
title insurance, appraisals, notaries and other similar commissions and
fees, and expenses, in each case, to the extent paid, payable or
reimbursed by such Person; (ii) filing, recording or registration fees
or charges or similar fees or charges paid by such Person; (iii) without
duplication, taxes paid or payable by such person or any shareholder,
partner or member of such Person to governmental taxing authorities as a
result of such sale or other disposition or issuance (after taking into
account any available tax credits or deductions or any tax sharing
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arrangements); and (iv) payment of the outstanding principal amount of,
premium or penalty, if any, and interest on any Indebtedness (other than
the Obligations) that is secured by a Lien on the asset in question, to
the extent required pursuant to the documentation evidencing such
Indebtedness
(i) The definition of "Permitted Liens degrees set forth in Section
1.1 of the Credit Agreement is hereby amended by (i) deleting "and" at the end
of clause (j) thereof, (ii) deleting "." at the end of clause (k) thereof and
inserting "; and" in lieu thereof and adding a new clause (1) thereto to read as
follows:
(1) Liens with respect to the Textron Mortgage Transaction
(and any replacement, extension or renewal (but not increases) thereof).
(j) The definition of "Permitted Secured Indebtedness" set forth in
Section 1.1 of the Credit Agreement is hereby amended to read as follows:
"Permitted Secured Indebtedness" means (a) Indebtedness of the
Borrower and its Subsidiaries secured by Liens described in clauses
(j), (k) and (l) of the definition of Permitted Liens and (b)
Indebtedness under the Loan Documents.
(k) Section 1.1 of the Credit Agreement is hereby amended by adding
the following defined terms thereto in proper alphabetical order:
"Acceptable Environmental Phase Ones" means those environmental
phase one assessments performed in accordance with the Administrative
Agent's Environmental Policy (as defined in the Negative Consent
Letter).
"Acceptable Surveys" means those surveys of the Appraised
Properties which satisfy the Survey Requirements (as defined in the
Negative Consent Letter).
"Appraised Properties" means, collectively, the First Tier
Appraised Properties and the Second Tier Appraised Properties.
"Appraised Value" means the appraised value of the Appraised
Properties as determined by the Approved Appraiser.
"Approved Appraiser" means National Valuation Consultants, with
its principal office in Denver, Colorado, which has been approved as
provided in the Negative Consent Letter, and/or such other appraisal
firms approved by the Determining Lenders.
"Coto de Caza Payment" means that certain payment to be made to
the previous owner of Coto de Caza Country Club based on performance of
such club for 2001 not to exceed an aggregate amount previously
disclosed to the Lenders by the Borrower by letter dated February 1,
2002.
"First Tier Appraised Properties" means Pinehurst, Inc., The
Homestead, L.C., Xxxxxx Creek Resort and Clubs, Inc. and Akron
Management Corp. (Firestone).
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"Fourth Amendment" means that certain Fourth Amendment to First
Amended and Restated Credit Agreement, dated and effective as of
February 7, 2002, among the Borrower, the lenders party thereto and the
Administrative Agent.
"Initial Appraised Properties" means those properties that are
initially First Tier Appraised Properties and Second Tier Appraised
Properties as of March 31, 2002.
"Initial Collateral Coverage Ratio" means, as of June 30, 2002
(or such later date as Appraisals are obtained on all Initial Appraised
Properties to the extent later obtained with the consent of the
Determining Lenders), the ratio of (a) the Appraised Value of the
Initial Appraised Properties to (b) the sum of (i) the Revolving Credit
Commitment in effect on such date and (ii) the aggregate principal
amount of the Term Loan Advances outstanding on such date.
"Mortgaged Properties" means, collectively, the First Tier
Appraised Properties, the Second Tier Appraised Properties and the Third
Tier Properties.
"Mortgages" means any deed of trust or mortgage, as applicable,
related to the Mortgaged Properties, in form and substance satisfactory
to the Administrative Agent.
"Negative Consent Letter" means that certain letter from the
Administrative Agent to the Lenders, dated as of January 23, 2002,
whereby, among other things, the Determining Lenders evidenced their
approval of (a) the Approved Appraiser and the methodology to be used on
the appraisal of the Appraised Properties, (b) the environmental firm
initially retained to conduct environmental phase ones on the Appraised
Properties and the Administrative Agent's Environmental Policy (as
defined in the Negative Consent Letter), and (c) the Survey Requirements
(as defined in the Negative Consent Letter) with respect to the
Appraised Properties.
"Ranking Lists" means the lists prepared by the Borrower of
properties owned by the Borrower and its Subsidiaries, ranking such from
highest to lowest based on revenue, EBITDA (as customarily calculated
with respect to such properties in internal management reports) and
cost.
"Real Estate Collateral" means all Appraised Properties and all
Third Tier Properties.
"Second Tier Appraised Properties" means such Initial Appraised
Properties (other than the First Tier Appraised Properties) which result
in the Appraised Value of the Appraised Properties being in an aggregate
amount no less than $800,000,000 and which are approved by the
Determining Lenders, and such other property that becomes a Second Tier
Appraised Property pursuant to Section 5.15.
"Security Agreement" means any Security Agreement executed by
the Borrower and/or certain of its Subsidiaries granting a first Lien
in, among other assets, any promissory notes received by the Borrower or
such Subsidiaries as consideration for any disposition of any Mortgaged
Properties, in form and substance satisfactory to the Administrative
Agent.
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"Subsequent Collateral Coverage Ratio" means, as of any date of
determination, the ratio of (a) the Appraised Values of the Appraised
Properties (determined with respect to Initial Appraised Properties
using the initial Appraisals with respect to such Initial Appraised
Properties, and determined with respect to any property that becomes a
Second Tier Appraised Property pursuant to Section 5.15, in accordance
with the appraisal required pursuant to Section 5.15) to (b) the sum of
(i) the Revolving Credit Commitment in effect on such date and (ii) the
aggregate principal amount of the Term Loan Advances outstanding on such
date.
"Textron Mortgage Transaction" means that certain transaction
whereby the Borrower and/or its Subsidiaries shall mortgage four
properties (a Bear's Best property in Atlanta, Georgia, a Bear's Best
property in Las Vegas, Nevada, Lionsgate Country Club in Overland Park,
Kansas and Coto de Can Country Club in Orange County, California); the
terms of each loan executed in connection therewith is five years, with
a twenty year amortization, an interest rate of prime plus 1.5% with a
floor of 6%, a prepayment penalty of 3%, 2%, 1% for the first three
years, respectively, with a guaranty by the Borrower not to exceed
$10,000,000 in aggregate for all such loans, to be reduced as certain
debt service coverages are satisfied, all of which shall be required to
be in form and substance satisfactory to the Administrative Agent and
its Special Counsel.
"Third Tier Properties" means those properties of the Borrower
or its Subsidiaries, other than the Appraised Properties, which are
required by the Determining Lenders to be pledged to secure the
Obligations, which may include properties of the Borrower and its
Subsidiaries acquired or developed after March 31, 2002, and which are
required to be pledged pursuant to Section 5.17.
(l) Section 2.4(a) of the Credit Agreement is hereby amended to
read as follows:
(a) Facility Fee. Subject to Section 11.9 hereof, the
Borrower agrees to pay to the Administrative Agent, for the account of
each Lender, a facility fee ("Facility Fee") in an amount equal to the
product of (i) such Lender's Revolving Credit Specified Percentages
multiplied by the Revolving Credit Commitment multiplied (ii) by the
following per annum percentages, applicable in the following situations:
Applicability Percentage
------------- ----------
(a) The Leverage Ratio is less than 2.50 to 1 0.373
(b) The Leverage Ratio is greater than or equal to 2.50 to 1 0.500
Such Facility Fee shall accrue beginning on the Agreement Date and shall
be (i) payable in arrears on each Quarterly Date and on the Revolving
Credit Commitment Maturity Date, fully earned when due and, subject to
Section 11.9 hereof, nonrefundable when paid and (ii) subject to Section
11.9 hereof, computed on the basis of a 360-day year, for the actual
number of days elapsed. The Facility Fee shall be subject to reduction
or increase, as applicable and as set forth in the table above, on a
quarterly basis according to the performance of the Borrower as tested
by using the Leverage Ratio as of the end of the most recent Fiscal
Quarter (calculated for the twelve Fiscal Months preceding the
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date of determination). Any such increase or reduction in such fee shall
be effective on the date which is two Business Days after receipt by the
Lenders of the financial statements required pursuant to Section 6.1 or
6.2, as applicable, hereof and the Compliance Certificate required
pursuant to Section 6.3 hereof. If such financial statements and
Compliance Certificate are not received by the Lenders on the date
required, the fee payable in respect of the Revolving Credit Commitment
shall be determined as if the Leverage Ratio is greater than or equal to
2.50 to 1 until such time as such financial statements and Compliance
Certificate are received. Notwithstanding the above, until such time as
the Lenders shall have received the financial statements required for
the fourth Fiscal Quarter of the Borrower's 2001 Fiscal Year and related
Compliance Certificate, the facility fee shall be determined as if the
Leverage Ratio is greater than or equal to 2.50 to 1.
(m) Section 2.5(b)(ii) of the Credit Agreement is hereby amended to
read as follows:
(ii) Prepayment from Sales of Assets. Within two Business
Days of the receipt of the Net Cash Proceeds from the sale or
disposition by the Borrower or any of its Subsidiaries of any assets
(including any Capital Stock of any Subsidiary of the Borrower)
permitted under Section 7.7(a)(v) or 7.7(a)(vi) hereof, the Borrower
shall prepay Facility A Term Loan Advances and Facility B Term Loan
Advances in an amount equal to 100% of such Net Cash Proceeds with
respect to any sale or disposition permitted pursuant to Section
7.7(a)(vi) hereof (or 25% of such Net Cash Proceeds with respect to any
sale or disposition permitted pursuant to Section 7.7(a)(v) hereof
during any Fiscal Year other than Fiscal Year 2002), unless at the time
of such sale or disposition (a) the Administrative Agent shall have
received from the Borrower a pro forma Compliance Certificate indicating
that after giving effect to such sale or disposition the Leverage Ratio
will be less than or equal to 4.00 to 1 and (b) the Leverage Ratio
required to be maintained pursuant to Section 7.12 of this Agreement is
no greater than 4,00 to 1, in which event the Borrower shall prepay
Facility A Tent Loan Advances and Facility B Term Loan Advances in an
aggregate amount equal to 50% of such Net Cash Proceeds with respect to
any sale or disposition permitted pursuant to Section 7.7(a)(vi) hereof
(or 25% of such Net Cash Proceeds with respect to any sale or
disposition permitted pursuant to Section 7.7(a)(v) hereof during any
Fiscal Year other than Fiscal Year 2002). At such time, if any, as the
Facility A Term Loan Advances and Facility B Term Loan Advances have
been paid In full, the Borrower shall prepay the outstanding Revolving
Credit Advances in an aggregate principal amount equal to 100% of such
Net Cash Proceeds with respect to any sale or disposition permitted
pursuant to Section 7.7(a)(vi) hereof (or 25% of such Net Cash Proceeds
with respect to any sale or disposition permitted pursuant to Section
7.7(a)(v) hereof).
(n) Section 2.5(b) of the Credit Agreement is further amended by
adding Sections 2.5(b)(iii) and 2.5(b)(iv) thereto to read as follows:
(iii) Prepayment from Issuance of Indebtedness. Concurrently
with the receipt of Net Cash Proceeds from the issuance of any
Indebtedness permitted under Section 7.1(h) hereof, the Borrower shall
prepay Facility A Term Loan Advances and Facility B Term Loan Advances
in an aggregate principal amount equal to 100% of such
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Net Cash Proceeds. At such time, if any, as the Facility A Term Loan
Advances and Facility B Term Loan Advances have been paid in full, the
Borrower shall prepay the outstanding Revolving Credit Advances in an
aggregate principal amount equal to 100% of such Net Cash Proceeds. Each
such prepayment shall be applied as provided in Section 2.5&) hereof.
(iv) Prepayment from Capital Stock Issuance. Concurrently
with the receipt of Net Cash Proceeds from any issuance of the Capital
Stock of the Borrower prior to the Qualifying Date during any Fiscal
Year in which the aggregate amount of Net Cash Proceeds received from
such issuances exceeds $75,000,000, the Borrower shall prepay Facility A
Term Loan Advances and Facility B Term Loan Advances in an aggregate
principal amount equal to 50% of such Net Cash Proceeds in excess of
$75,000,000. At such time, if any, as the Facility A Term Loan Advances
and Facility B Term Loan Advances have been paid in full, the Borrower
shall prepay the outstanding Revolving Credit Advances in an aggregate
principal amount equal to 50% of such Net Cash Proceeds in excess of
$75,000,000. Each such prepayment shall be applied as provided in
Section 2.5(c) hereof.
(o) Section 2.5(c) of the Credit Agreement is hereby amended by
amending the last sentence thereof to read as follows:
Any prepayments required to be made pursuant to Section 2.5(b)(ii),
(iii) or (iv) hereof shall (i) not be subject to the notice and minimum
payment provisions of this Section 2.5 provided; however, the Borrower
shall be required to reimburse each Lender for any loss, cost or expense
incurred by each Lender in connection with any such prepayment as set
forth in Section 2.9 hereof if any prepayment results in a LIBOR Advance
being paid on a day other than the last day of an Interest Period for
such LIBOR Advance, (ii) be applied first to Base Rate Advances, if any,
and then to LIBOR Advances, and (iii) be applied to the outstanding
Revolving Credit Advances, to the extent that the Facility A Term Loan
Advances and the Facility B Term Loan Advances shall have been paid in
full.
(p) Section 2.5(d) of the Credit Agreement is hereby amended by
amending the last sentence thereof to read as follows:
(d) Prepayment Waiver. Any Lender holding Facility B Term
Loan Advances may elect on not less than one Business Day's prior
written notice to the Administrative Agent with respect to any mandatory
prepayment required to be made pursuant to Section 2.5(b)(ii), (iii) or
(iv) hereof not to have such prepayment applied to such Lender's
Facility B Term Loan Advances until all Facility A Term Loan Advances
have been paid in full, in which case the amount not so applied shall be
applied to the Facility A Term Loan Advances and shall reduce the then
remaining installments of Facility A Term Loan Advances pro rata based
on the outstanding principal amount of the Facility A Term Loan Advances
then unpaid.
(q) Article 5 of the Credit Agreement is hereby amended by adding
new Sections 5.15, 5.16 and 5.17 thereto to read as follows:
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Section 5.15 Sale of Appraised Properties. To the extent that
any Second Tier Appraised Properties are sold during any Fiscal Year, by
no later than June 30 of the immediately following Fiscal Year the
Borrower shall deliver to the Administrative Agent appraisals by the
Approved Appraiser, Acceptable Environmental Phase Ones, Acceptable
Surveys, title insurance in an amount sufficient to maintain the same
level of title insurance coverage as in effect prior to such sale and
local counsel opinions with respect to properties previously included as
Third Tier Properties (and which will become Second Tier Appraised
Properties upon the delivery of such documentation and information) in
an amount such that the Subsequent Collateral Coverage Ratio as of such
June 30 is no less than the Initial Collateral Coverage Ratio.
Section 5.16 Title Report Expenses. The Borrower shall pay
$7,500 of fees, expenses and costs charged by the title companies with
respect to any title reports and/or searches with respect to the Third
Tier Properties required to be performed by the Determining Lenders.
Section 5.17 Third Tier Mortgaged Properties. Prior to the
Qualifying Date, together with the financial statements required to be
delivered pursuant to Section 6.1, the Borrower shall deliver to each
Lender a list of all real estate property acquired by the Borrower and
its Subsidiaries during the Fiscal Quarter covered by such financial
statements ("New Real Estate Property"), which list shall set forth the
Acquisition Consideration for the New Real Estate Property acquired and
such other information as the Administrative Agent shall request. The
Borrower shall, or shall cause the appropriate Subsidiary to, no later
than thirty days after written request by the Administrative Agent, upon
direction of the Determining Lenders, deliver executed Mortgages with
respect to the New Real Estate Property as the Determining Lenders shall
require, and related UCC-1 financing statements and Security Agreements,
each in form and substance satisfactory to the Administrative Agent,
together with opinions, resolutions and certificates related thereto as
required by the Administrative Agent.
(r) Section 6.3 of the Credit Agreement is hereby amended by adding
the following sentence thereto to read as follows:
In completing the Compliance Certificate for the Fourth Fiscal Quarter
of Fiscal Year 2001, the Borrower shall complete the sections therein
related to Sections 7.12, 7.13 and 7.14 hereof, as the requirements of
said Sections for such Fiscal Quarter were in effect prior to the Fourth
Amendment.
(s) Section 6.4 of the Credit Agreement is hereby amended by (i)
deleting "and" after clause (d) thereof; (ii) deleting "." after clause (e)
thereof and inserting ";" in lieu thereof and (iii) adding a new clauses (f) and
(g) thereto to read as follows:
(f) By the last day of each month until there are Mortgages
on each Mortgaged Property and the documents required to be delivered
pursuant to Section 8.1(q) hereof are delivered, a summary update, in
form satisfactory to the Administrative Agent, of the documentation
process with respect to each Mortgaged Property; and
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(g) By January 31 of each year, a budget for Capital
Expenditures of the Borrower and its Subsidiaries for such Fiscal Year
of Maintenance Capital Expenditures by segment and new Capital
Expenditures by project.
(t) Section 7.1 of the Credit Agreement is hereby amended by
amending clause (h) thereof to read as follows:
(h) (A) Prior to the Qualifying Date, other Unsecured
Subordinated Indebtedness of the Borrower and its Subsidiaries, provided
that (i) prior to and after giving effect to such other Unsecured
Subordinated Indebtedness, no Default or Event of Default shall have
occurred and be continuing, (ii) such other Unsecured Subordinated
Indebtedness shall not mature prior to 180 days after the Facility B
Term Loan Maturity Date and shall amortize in such amounts and on such
dates as are reasonably acceptable to the Administrative Agent, and
(iii) the Net Cash Proceeds thereof are applied in accordance with
Section 2.5(b)(iii) hereof, and (B) on and after the Qualifying Date,
other Unsecured Indebtedness of the Borrower and its Subsidiaries,
provided that (i) prior to and after giving effect to such other
Unsecured Indebtedness, no Default or Event of Default shall have
occurred and be continuing, (ii) the terms, covenants and provisions of
such other Unsecured Indebtedness shall not be more restrictive than any
terms, covenants or provisions of this Agreement, and (iii) such other
Unsecured Indebtedness shall not mature prior to 180 days after the
Facility A Term Loan Maturity Date and shall amortize in such amounts
and on such dates as are reasonably acceptable to the Administrative
Agent; and
(u) Section 7.7 of the Credit Agreement is hereby amended to read
as follows:
Section 7.7 Sales of Assets. The Borrower shall not, and shall
not permit any of its Subsidiaries to, sell, transfer or otherwise
dispose of, any of its assets except:
(a) prior to the Qualifying Date,
(i) inventory in the ordinary course of business,
(ii) obsolete or worn-out assets,
(iii) sales and dispositions from the Borrower or any
of its Subsidiaries to any Obligor,
(iv) sales of single or related assets in which the
Net Cash Proceeds do not exceed $500,000;
(v) subject to Section ll.11, sales of assets
(including Collateral) in which the Net Cash Proceeds do not
exceed $25,000,000 in aggregate amount during any Fiscal Year
(excluding the amount of any assets permitted to be sold
pursuant to clause (iv) immediately preceding), provided that,
(A) after giving effect to such sale, no Default or
Event of Default exists or would be continuing,
12
(B) such sales are for full and fair consideration,
and
(C) if any such sale occurs during any Fiscal Year
after Fiscal Year 2002, 25% of such Net Cash
Proceeds are applied to the extent required in
accordance with Section 2.5(b)(ii) hereof;
(vi) subject to Section 11.11, sales of other assets
(including Collateral) not otherwise permitted to be sold in
this clause (a) above, provided that,
(A) after giving effect to such sale, no Default or
Event of Default exists or would be continuing,
(B) such sales are for full and fair consideration,
and
(C) the Net Cash Proceeds thereof are applied in
accordance with Section 2.5(b)(ii) hereof, and
(b) on and after the Qualifying Date,
(i) inventory in the ordinary course of business,
(ii) obsolete or worn-out assets,
(iii) sales and dispositions from the Borrower or any
of its Subsidiaries to any Obligor, and
(iv) other assets not otherwise permitted to be sold
in this clause (b) above, provided that,
(A) after giving effect to such sale, no Default or
Event of Default exists or would be continuing,
(B) such sales are for full and fair consideration,
and
(C) the aggregate amount of such assets sold during
any Fiscal Year shall not exceed in aggregate
amount 10% of Net Tangible Assets as of the end
of the immediately preceding Fiscal Year.
(v) Section 7.8 of the Credit Agreement is hereby amended to read as
follows:
Section 7.8 Acquisitions. The Borrower shall not, and shall not
permit any of its Subsidiaries to, make any Acquisitions unless (a)
immediately prior to and after giving effect to the proposed Acquisition
there shall not exist a Default or Event of Default, (b) such
Acquisition shall not be opposed by the board of directors of the Person
being acquired, (c) the Compliance Certificate delivered for the most
recent Fiscal Quarter immediately preceding such proposed Acquisition,
indicates that the Leverage Ratio for such Fiscal Quarter is less than
or equal to 4.50 to 1, (d) if the Acquisition Consideration for such
Acquisition is greater than or equal to (i) prior to the Qualifying
Date,
13
55,000,000 and (ii) on and after the Qualifying Date, $50,000,000, the
Lenders shall have received written notice thereof at least 5 Business
Days prior to the date of such Acquisition, together with a Compliance
Certificate setting forth the covenant calculations both immediately
prior to and after giving effect to the proposed Acquisition, but
calculated to exclude any increases in EBITDA which would be the result
of any expenses that the Borrower projects to be eliminated by such
proposed Acquisition, (e) the assets, property or business acquired
shall be primarily in the business described in Section 4.1(d) hereof,
(f) if such Acquisition results in a Subsidiary which is to be a
Guarantor, (i) such Subsidiary shall execute a Subsidiary Guaranty and
(ii) the Administrative Agent on behalf of the Lenders shall receive
such board resolutions, officer's certificates and opinions of counsel
as the Administrative Agent shall reasonably request in connection with
such Acquisition, (g) if such Subsidiary is a Domestic Subsidiary and
unless otherwise waived by the Determining Lenders, 100% of such
Subsidiary's Capital Stock shall be pledged and the Administrative Agent
on behalf of the Lenders shall receive such stock certificates, stock
powers, board resolutions, officer's certificates and opinions of
counsel as the Administrative Agent shall reasonably request in
connection with such pledge, (h) if such is a Foreign Subsidiary and
unless otherwise waived by the Determining Lenders, 65% of such
Subsidiary's Capital Stock shall be pledged and the Administrative Agent
on behalf of the Lenders shall receive such stock certificates, stock
powers, board resolutions, officer's certificates and opinions of
counsel as the Administrative Agent shall reasonably request in
connection with such pledge, (i) the aggregate Acquisition Consideration
for all Non-Guarantors (excluding Acquisition Consideration in respect
of Subsidiaries which are not obligated to third Persons in respect of
any Indebtedness), together with Investments in Non-Guarantors
(calculated as provided in Section 7.4(f) hereof) and other Investments
(calculated as provided in Section 7.4(g) hereof) pursuant to Section
7.4(g) hereof, shall not exceed an amount equal to 10% of Total
Capitalization at any time, and (j) prior to the Qualifying Date, the
Acquisition Consideration for such Acquisition is less than or equal to
the sum of (i) $10,000,000 (or $25,000,000, if at the time of such
Acquisition, (y) the Administrative Agent shall have received from the
Borrower a pro forma Compliance Certificate indicating that after giving
effect to such Acquisition the Leverage Ratio will be less than or equal
to 4.00 to 1 and (z) the Leverage Ratio required to be maintained
pursuant to Section 7.12 of this Agreement is no greater than 4.00 to 1)
plus (ii) the aggregate Net Cash Proceeds received by the Borrower from
the issuance of any Capital Stock during the 365-day period beginning on
and after the Agreement Date and ending on the date of such Acquisition,
and the aggregate Acquisition Consideration for all Acquisitions during
any period of four consecutive Fiscal Quarters is less than or equal to
the sum of (i) $25,000,000 (or $75,000,000, if at the time of such
Acquisition, (y) the Administrative Agent shall have received from the
Borrower a pro forma Compliance Certificate indicating that after giving
effect to such Acquisition the Leverage Ratio will be less than or equal
to 4.00 to 1 and (z) the Leverage Ratio required to be maintained
pursuant to Section 7.12 of this Agreement is no greater than 4.00 to 1)
plus (ii) the aggregate Net Cash Proceeds received by the Borrower from
the issuance of any Capital Stock during the 365-day period ending on
the date of any Acquisition.
(w) Section 7.9 of the Credit Agreement is hereby amended to read
as follows:
14
Section 7,9 Restricted Payments. The Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly
declare, pay or make any Restricted Payments except (a) Dividends
payable by a Subsidiary to the Borrower or another Subsidiary that is an
Obligor, (b) payments and prepayments of principal of Indebtedness other
than Indebtedness permitted to be incurred pursuant to Section 7.1(h)
hereof, and (c) Dividends payable by the Borrower in an aggregate amount
not to exceed $7,500,000 during any Fiscal Year; provided, however, the
Borrower shall not pay or make any Restricted Payments permitted by this
Section 7.9 unless there shall exist no Default or Event of Default
prior to or after giving effect to any such proposed Restricted Payment.
(x) Section 7.12 of the Credit Agreement is hereby amended to read
as follows;
Section 7.12 Maximum Leverage Ratio. The Borrower shall not
permit the Leverage Ratio to be greater than (a) 5.50 to 1 at the end of
any Fiscal Quarter from and including the first Fiscal Quarter of Fiscal
Year 2002 through and including the third Fiscal Quarter of Fiscal Year
2002, (b) 4.50 to 1 from and including the fourth Fiscal Quarter of
Fiscal Year 2002 through and including the third Fiscal Quarter of
Fiscal Year 2003, (c) 4.00 to 1 at the end of the Fourth Fiscal Quarter
of Fiscal Year 2003, and (d) 3.75 to 1 at the end of any Fiscal Quarter
thereafter.
(y) Section 7.13 of the Credit Agreement is hereby amended to read
as follows:
Section 7.13 Minimum Fixed Charge Coverage Ratio. The Borrower
shall not permit the Fixed Charge Coverage Ratio to be less than (a)
0.90 to 1 at the end of arty Fiscal Quarter from and including the first
Fiscal Quarter of Fiscal Year 2002 through and including the third
Fiscal Quarter of Fiscal Year 2002, and (b) 1.00 to 1 at the end of any
Fiscal Quarter thereafter.
(z) Section 7.14 of the Credit Agreement is hereby amended to read
as follows:
Section 7.14 Minimum Tangible Net Worth. The Borrower shall not
permit the Tangible Net Worth at any time after the effective date of
the Fourth Amendment to be less than the sum of (a) an amount equal to
90% of Tangible Net Worth at December 25, 2001, plus (b) 50% of
cumulative Net Income for the period from, but not including, December
25, 2001 through the date of calculation (but excluding from the
calculation of such cumulative Net Income the effect, if any, of any
Fiscal Quarter (or portion OF a Fiscal Quarter not then ended) of the
Borrower for which Net Income was a negative number), plus (c) an amount
equal to 100% of the tangible net worth of any Person that becomes a
Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any Subsidiary of the Borrower or substantially all of the
assets of which are acquired by the Borrower or any Subsidiary of the
Borrower to the extent the purchase price paid therefor is paid in
equity securities of the Borrower or any Subsidiary of the Borrower or
pursuant to the conversion or exchange of any convertible subordinated
debt or redeemable preferred stock into Capital Stock of the Borrower or
any of its Subsidiaries, plus (d) 75% of the Net Cash Proceeds (but
without duplication) of any offerings of Capital Stock of the Borrower
or any of its Subsidiaries, plus (e) 100% of any reclassification of
redemption value of common Capital Stock to Net Worth.
15
(aa) Section 7.21 of the Credit Agreement is hereby amended to read
as follows:
Section 7.21 Capital Expenditures. The Borrower and its
Subsidiaries shall not permit Capital Expenditures for any fiscal year
set forth below to be more than the following amounts set forth opposite
each such fiscal year below:
Fiscal Year Amount
----------- ------
2002 $120,000,000
2003 $80,000,000
2004 $80,000,000
2005 $80,000,000
2006 $80,000,000
2007 $80,000,000
provided, however, that if no Default or no Event of Default exists or
would result therefrom, the amount of Capital Expenditures permitted to
be incurred above for each Fiscal Year from 2003 (subject to the
immediately following proviso) through 2007 shall be increased for each
such Fiscal Year by an amount equal to the sum of (a) 100% of Net Cash
Proceeds from the issuance of Capital Stock during such Fiscal Year up
to an including $75,000,000 in aggregate amount, plus (b) 50% of Net
Cash Proceeds from the issuance of Capital Stock during such Fiscal Year
in excess of $75,000,000 in aggregate amount, plus (c) 100% of Net Cash
Proceeds from the disposition of assets during such Fiscal Year up to
and including $25,000,000 in aggregate amount, plus (d) 50% of Net Cash
Proceeds from the disposition of assets during such Fiscal Year in
excess of $25,000,000 in aggregate amount, plus (e) 6% of the amount by
which consolidated revenue of the Borrower and its Subsidiaries for the
immediately preceding Fiscal Year exceeds the consolidated revenue of
the Borrower and its Subsidiaries for the Fiscal Year immediately
preceding such Fiscal Year; provided, however, notwithstanding anything
above to the contrary, the Capital Expenditures permitted to be incurred
in Fiscal Year 2003 may not be increased by any amounts received under
clauses (a) through (e) for such Fiscal Year unless (y) the Leverage
Ratio for the most recently ended Fiscal Quarter as set forth in the
Compliance Certificate delivered for such Fiscal Quarter (or a pro forma
Compliance Certificate as of certain date) indicates that the Leverage
Ratio for such Fiscal Quarter (or such date) was less than or equal to
4.01) to 1 and (z) the Leverage Ratio required to be maintained pursuant
to Section 7.12 of this Agreement is no greater than 4.00 to 1; provided
further, however, that the Borrower and its Subsidiaries shall be
entitled to make additional Capital Expenditures in the immediately
following Fiscal Year only and not on a cumulative basis in an amount up
to the amount permitted to be expended which was not used for the
immediately preceding Fiscal Year.
(bb) Section 8.1 of the Credit Agreement is hereby amended by (i)
deleting "or" at the end of clause (n) thereof, (ii) amending clause (o)
thereto to read as follows and (iii) adding the following clauses (p), (q) and
(r) thereto to read as follows:
16
(o) The Appraised Value of the Initial Appraised Properties
shall at June 30, 2002 be less than $800,000,000; provided, however, the
Determining Lenders may extend such deadline;
(p) The Borrower shall fail to deliver to the Administrative
Agent by March 31, 2002 (i) Ranking Lists or (ii) executed Mortgages and
UCC-1 financing statements on the Second Tier Appraised Properties and
the Third Tier Properties granting a first Lien (subject to Permitted
Liens) in the property covered thereby, in form and substance
satisfactory to the Administrative Agent, together with such opinions,
resolutions and certificates related thereto as required by the
Administrative Agent; provided, however, the Determining Lenders may
extend such deadline with respect to specific Second Tier Appraised
Properties or Third Tier Properties to the extent such extension is
necessary in the reasonable opinion of the Determining Lenders to file
such Mortgages;
(q) The Borrower shall fail to deliver title insurance in
the aggregate amount of the outstanding Term Loan Advances and Revolving
Credit Commitment, appraisals by the Approved Appraiser on the Initial
Appraised Properties, Acceptable Environmental Phase Ones, Acceptable
Surveys and local counsel opinions with respect to the Initial Appraised
Properties and title reports and/or searches with respect to the Third
Tier Properties (to the extent such reports and/or searches with respect
to the Third Tier Properties are required by the Determining Lenders) by
June 30, 2002 in form and substance satisfactory to the Administrative
Agent; provided, however, if in the opinion of the Determining Lenders
the Borrower on June 30, 2002 is using all reasonable efforts to obtain
such items and continues after June 30, 2002 to use such reasonable
efforts, the failure of the Borrower to deliver such items will not be
an Event of Default; or
(r) The Borrower and the Determining Lenders shall fail by
March 31, 2002 to agree on those properties which should be included as
Second Tier Appraised Properties and Third Tier Properties.
(cc) Section 11.11 of the Credit Agreement is hereby amended by
adding the following sentence to the end thereof to read as follows:
Notwithstanding anything to the contrary herein, no release of any Real
Estate Collateral to effect a sale of assets which is permitted pursuant
to Section 7.7 hereof will require the consent of any Lender (except
that no First Tier Appraised Property may be sold without the consent of
the Determining Lenders).
(dd) Exhibit E to the Credit Agreement, the Compliance Certificate,
is hereby amended to be in the form of Exhibit E attached to this Fourth
Amendment.
2. WAIVER. Subject to the satisfaction of the conditions of
effectiveness set forth in Section 4 hereof, the Lenders hereby waive
compliance with the (a) Leverage Ratio covenant set forth in Section 7.12 of
the Credit Agreement at the Fiscal Quarter ending December 25, 2001, (b) the
Fixed Charge Coverage Ratio covenant set forth in Section 7.13 of the Credit
Agreement at the Fiscal Quarter ending December 25, 2001 and (c) the Tangible
Net Worth
17
covenant set forth in Section 7.14 of the Credit Agreement at the Fiscal
Quarter ending December 25, 2001 (the "Waived Covenants"). The waiver provided
herein does not (a) affect any other covenant or provision of the Credit
Agreement or any other Loan Document or (b) relate to any other Fiscal Quarter.
3. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By
its execution and delivery hereof, the Borrower represents and warrants that,
as of the date hereof and after giving effect to the waiver set forth in the
foregoing Section 2:
(a) the representations and warranties contained in the Credit
Agreement and the other loan documents are true and correct on and as of the
date hereof as made on and as of such date; and
(b) no event has occurred and is continuing which constitutes a
Default or an Event of Default.
4. CONDITIONS OF EFFECTIVENESS. This Fourth Amendment shall be
effective as of February 7, 2002 (including the adjustments in the Applicable
Base Rate Margin, the Applicable LIBOR Rate Margin and the Facility Fee
provided herein), subject to the following:
(a) the representations and warranties set forth in Section 3 of
this Fourth Amendment shall be true and correct;
(b) the Administrative Agent shall have received counterparts of
this Fourth Amendment executed by the Determining Lenders;
(c) the Administrative Agent shall have received by February 7,
2002 executed mortgages, and/or deeds of trust, as applicable, and UCC-1
financing statements on Xxxxxx Creek Resort, Pinehurst Resort, The Homestead
and Firestone Country Club granting a first Lien (subject to Permitted Liens)
in the property covered thereby and an executed Security Agreement, each in
form and substance satisfactory to the Administrative Agent, together with
opinions, resolutions and certificates related thereto as required by the
Administrative Agent;
(d) the Administrative Agent shall have received counterparts of
this Fourth Amendment executed by the Borrower and acknowledged by each
Guarantor; and
(e) the Administrative Agent shall have received in form and
substance satisfactory to the Administrative Agent, such other documents,
certificates and instruments as the Lenders shall require.
5. RESERVATION OF RIGHTS. The Borrower acknowledges that the
Lenders execution and delivery of this Fourth Amendment shall not be deemed to
create a course of dealing or otherwise obligate the Lenders to execute
similar waivers under the same or similar circumstances in the future.
6. AMENDMENT FEE. The Borrower covenants and agrees to pay an
amendment fee to the Lenders which execute and deliver this Fourth Amendment
to the Administrative
18
Agent (or its counsel) not later than 5:00 p.m., Dallas time, February 11,
2002, in an amount equal to the product of (a) 0.300% multiplied by (b)(i)
with respect to each Lender having a portion of the Revolving Credit
Commitment, an amount equal to such Lender's portion of the Revolving Credit
Commitment and (ii) with respect to each Lender which is owed Facility A Term
Loan Advances or Facility B Term Loan Advances, the aggregate principal amount
of Facility A Term Loan Advances and Facility B Term Loan Advances owed to
such Lender. Such amendment fee shall be paid in immediately available funds
and shall be due and payable to each Lender eligible for payment pursuant to
the preceding sentence no later than February 12, 2002. The Borrower agrees
that the failure to pay the amendment fee provided in this Section 6 shall be
an Event of Default under Section 8.1(b)(ii) of the Credit Agreement.
7. GUARANTOR'S ACKNOWLEDGEMENT. By signing below, each Guarantor
(i) acknowledges, consents and agrees to the execution, delivery and
performance by the Borrower of this Fourth Amendment, (ii) acknowledges and
agrees that its obligations in respect of its Subsidiary Guaranty are not
released, diminished, waived, modified, impaired or affected in any manner by
this Fourth Amendment, or any of the provisions contemplated herein, (iii)
ratifies and confirms its obligations under its Subsidiary Guaranty and (iv)
acknowledges and agrees that it has no claim or offsets against, or defenses
or counterclaims to, its Subsidiary Guaranty.
8. REFERENCE TO TEE CREDIT AGREEMENT.
(a) Upon and during the effectiveness of this Fourth Amendment,
each reference in the Credit Agreement to "this Agreement", "hereunder", or
words of like import shall mean and be a reference to the Credit Agreement, as
affected by this Fourth Amendment.
(b) Except as expressly set forth herein, this Fourth Amendment
shall not by implication or otherwise limit, impair, constitute a waiver of,
or otherwise affect the rights or remedies of the Administrative Agent or the
Lenders under the Credit Agreement or any of the other Loan Documents, and
shall not alter, modify, amend, or in any way affect the terms, conditions,
obligations, covenants, or agreements contained in the Credit Agreement or the
other Loan Documents, all of which are hereby ratified and affirmed in all
respects and shall continue in full force and effect
9. COSTS AND EXPENSES. The Borrower shall be obligated to pay the
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and deliver of this Fourth Amendment and
the other instruments and documents to be delivered hereunder.
10. EXECUTION IN COUNTERPARTS. This Fourth Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same instrument. For purposes of this Fourth Amendment, a
counterpart hereof (or signature page thereto) signed and transmitted by any
Person party hereto to the Administrative Agent (or its counsel) by facsimile
machine, telecopier or electronic mail is to be treated as an original. The
signature of such Person thereon, for purposes hereof, is to be considered as
an original signature, and the counterpart (or signature
19
page thereto) so transmitted is to be considered to have the same binding
effect as an original signature on an original document.
11. GOVERNING LAW; BINDING EFFECT. This Fourth Amendment shall be
governed by and construed in accordance with the laws of the State of Texas
(without giving effect to conflict of laws) and the United States of America,
and shall be binding upon the Borrower and each Lender and their respective
Successors and assigns.
12. HEADINGS. Section headings in this Fourth Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Fourth Amendment for any other purpose.
13. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
FOURTH AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AS TO THE SUBJECT MATTER THEREIN AND HEREIN AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BETWEEN THE PARTIES.
------------------------------------------------------------------------------
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
------------------------------------------------------------------------------
20
IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment as of the date first above written.
CLUBCORP, INC.
By: /s/ XXXX X. XXXXXX, III
---------------------------
Name: Xxxx X. Xxxxxx, III
----------------------
Title: Vice President
---------------------
21
BANK OF AMERICA, N.A., as Administrative
Agent, Swing Line Bank, Issuing Bank, and as a
Lender
By: /s/ XXX X. XXXXXXX
-------------------------------------------
Name: Xxx X. Xxxxxxx
--------------------------------------
Title Managing Director
-------------------------------------
00
XXXX XXX, XXXXX, N.A.
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-------------------------
Title First Vice President
-------------------------
23
XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION, successor to XXXXX FARGO
BANK (TEXAS), N.A.
By: /s/ XXXX XXXXXXX
-------------------------------
Name: Xxxx Xxxxxxx
---------------------------
Title Vice President
---------------------------
24
CREDIT LYONNAIS NEW YORK BRANCH, as
Managing Agent and as a Lender
By: /s/ XXXXXX XXX
-----------------------------
Name: Xxxxxx Xxx
-----------------------
Title Senior Vice President
-----------------------
25
FIRST UNION NATIONAL BANK, as Managing
Agent and as a Lender
By: /s/ XXXXXXX X. XXXXX
------------------------------
Xxxxxxx X. Xxxxx
Vice President
26
GUARANTY BANK, as Co-Agent and as a Lender
By: /s/ XXXXXXX XXXXXXXXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
---------------------------
Title Vice President
---------------------------
27
BRANCH BANKING AND TRUST COMPANY,
As Co-agent and as a Lender
By: /s/ XXXXXXXXXXX XXXXXXXXX
--------------------------------
Name: Xxxxxxxxxxx Xxxxxxxxx
--------------------------
Title: Vice President
--------------------------
28
COMERICA BANK, as a Co-agent and as a Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------
Name: Xxxxx X. Xxxxxxxx
-----------------------
Title Vice President
-----------------------
29
SOUTHTRUST BANK, an Alabama banking
corporation, as a Co-Agent and as a Lender
By: /s/ XXXXXX X. XXXXX
----------------------------
Name: Xxxxxx X. Xxxxx
---------------------------
Title Senior Vice President
---------------------------
30
U.S. BANK NATIONAL ASSOCIATION
(fomerly FIRSTAR BANK, N.A.)
By: /s/ XXXXXXX X. XXXXXX
-------------------------
Xxxxxxx X. Xxxxxx
Vice President
31
COMPASS BANK
By: /s/ R. XXXXX XXXX
-------------------------
Name: R. Xxxxx Xxxx
--------------------
Title Vice President
--------------------
32
AMSOUTH BANK, successor in interest by merger
to Deposit Guaranty National bank
By: /s/ X. X. MAY
---------------------------------
Name: X.X. May
----------------------------
Title Vice President
----------------------------
33
MELLON BANK, N.A.
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------
Title Vice President
------------------------
34
HIBERNIA NATIONAL BANK
By: /s/ XXXXX X. XXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President
35
TEXTRON FINANCIAL CORPORATION
By: /s/ XXXXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxxxx X. Xxxxxx
---------------------------------
Title Vice President - Golf Course
---------------------------------
Finance Division
36
BANKAUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ XXXXX X. XXXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------
Title
-------------------
XXXXX X. XXXXXXXX
MANAGING DIRECTOR
By: /s/ XXXXX XXXXXX
------------------------
Name: Xxxxx Xxxxxx
-------------------
Title
-------------------
XXXXX XXXXXX
ASSOCIATE DIRECTOR
37
AIM FLOATING RATE FUND
By: INVESCO Senior Secured Management, Inc.
as attorney in fact
By: /s/ XXXXXXX XXXXXXXX
-------------------------
Name:
--------------------
Title
--------------------
XXXXXXX XXXXXXXX
AUTHORIZED SIGNATORY
38
AERIES FINANCE-II LTD.
By: INVESCO Senior Secured Management Inc.
as Sub-Managing Agent
By: /s/ XXXXXXX XXXXXXXX
-------------------------------
Name: Xxxxxxx Xxxxxxxx
--------------------------
Title Authorized Signatory
--------------------------
39
METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ XXXXX X. XXXXXXX
---------------------------
Name: Xxxxx X. Xxxxxxx
---------------------
Title Director
---------------------
40
XXXXXX FINANCIAL, INC.
By: /s/ XXXXX XXXXXX
-------------------------
Name: Xxxxx Xxxxxx
-------------------
Title Vice President
-------------------
41
PPM SPYGLASS FUNDING TRUST
BY: /s/ XXXXX X. XXXXXXX
----------------------------
Name: XXXXX X. XXXXXXX
-----------------------
Title AUTHORIZED AGENT
-----------------------
42
MONUMENT CAPITAL LTD.
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By: /s/ XXXXXX XXXXX
-----------------------------
Name: Xxxxxx Xxxxx
-----------------------
Title Vice President
-----------------------
43
BALANCED HIGH-YIELD FUND II, LTD.
BY: ING Capital Advisors LLC,
as Asset Manager
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------
Name: XXXXXXX X. XXXXXXXX
Title: MANAGING DIRECTOR
44
STANWICH LOAN FUNDING LLC
By: /s/ XXX X. XXXXXX
------------------------
Name: XXX X. XXXXXX
---------------------
Title ASST. VICE PRESIDENT
---------------------
45
BLACK DIAMOND INTERNATIONAL
FUNDING, LTD.
By: /s/ XXXX XXXXXXX
----------------------------
Name: Xxxx Xxxxxxx
----------------------
Title Director
----------------------
46
GALAXY CLO 1999-1, LTD.
By: SAI Invesment Adviser, Inc., its
Collateral Manager
By: /s/ XXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------
Title Authorized Agent
--------------------------
47
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.
as Portfolio Advisor
By: /s/ XXXXXXX XXXXXXXX
------------------------------
Name: Xxxxxxx Xxxxxxxx
------------------------
Title Authorized Signatory
------------------------
48
CAPTIVA FINANCE LTD.
By: /s/ XXXX XXXX
--------------------------
Name: Xxxx Xxxx
--------------------
Title Director
--------------------
49
BLACK DIAMOND CLO 2000-1 LTD.
By: /s/ XXXX XXXXXXX
-------------------------------
Name: Xxxx Xxxxxxx
-------------------------
Title Director
-------------------------
50
BLACK DIAMOND CLO 1998-1 LTD.
By: /s/ XXXX XXXXXXX
---------------------------
Name: Xxxx Xxxxxxx
---------------------
Title Director
---------------------
51
BANK OF TEXAS, N.A.
By: /s/ XXXXX X. XXXXXX XX
---------------------------
Name: Xxxxx X. Xxxxxx XX
---------------------
Title Vice President
---------------------
52
DEBIS FINANCIAL SERVICES, INC.
By: /s/ XXXXXXX XXXXXXX
---------------------------------
Name: Xxxxxxx XxXxxxx
---------------------------
Title Group Leader - Port Mgmt.
---------------------------
53
ELT LTD
By: /s/ XXXXX X. XXXXXXX
------------------------------
Name: XXXXX X. XXXXXXX
------------------------
Title AUTHORIZED AGENT
------------------------
54
FLEETBANK
By: /s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
------------------------
Title Director
------------------------
55
OCTAGON INVESTMENT PARTNERS III, LTD.
By: Octagon Credit Investors, LLC
as Portfolio Manager
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------
Title Portfolio Manager
------------------------
56
OCTAGON INVESTMENT PARTNERS III, LLC.
By: Octagon Credit Investors, LLC
as sub-investment manager
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------
Title Portfolio Manager
------------------------
57
KZH SOLIEL LLC
By: /s/ XXXXX XXX
------------------------------
Name: XXXXX XXX
------------------------
Title Authorized Agent
------------------------
58
SUNAMERICA LIFE INSURANCE COMPANY
By: /s/ XXXX X. XXXXXX III
------------------------------
Name: Xxxx X. Xxxxxx III
------------------------
Title Authorized Agent
------------------------
59
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc.,
as Investment Advisor
By: /s/ XXXXXXX XXXXXXXX
------------------------------
Name: Xxxxxxx Xxxxxxxx
------------------------
Title Authorized Signatory
------------------------
60
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.,
as Portfolio Advisor
By: /s/ XXXXXXX XXXXXXXX
------------------------------
Name: Xxxxxxx Xxxxxxxx
------------------------
Title Authorized Signatory
------------------------
61
ACKNOWLEDGED AND AGREED:
CLUBCORP USA, INC., a Delaware corporation
THE 191 CLUB, INC., a Georgia corporation
THE 410 CLUB MANAGEMENT CORP., an
Illinois corporation
AKRON MANAGEMENT CORP., an Ohio corporation
APRIL SOUND MANAGEMENT CORP., a Texas corporation
ASPEN XXXX GOLF CLUB MANAGEMENT
COMPANY, a Colorado corporation
ATHLETIC CLUB AT THE EQUITABLE CENTER,
INC., a New York corporation
BANKERS CLUB, INC., a Florida corporation
BAY OAKS COUNTRY CLUB, INC., a Texas
corporation
XXXXXXX RIDGE COUNTRY CLUB, INC., an
Ohio corporation
BIENVILLE CLUB, INC., an Alabama corporation
BRAEMAR COUNTRY CLUB, INC., a California
corporation
BROKEN ARROW MANAGEMENT CORP., an
Oklahoma corporation
BROOKHAVEN COUNTRY CLUB, INC., a
Texas corporation
BUCKHEAD CLUB, INC., a Georgia corporation
BUNKER HILL CLUB, INC., a California corporation
BR GP, INC., a Georgia corporation
BIRCHR1VER GOLF MANAGEMENT, INC., a
Georgia corporation
CANYON CREST COUNTRY CLUB, INC., a
California corporation
CANYON GATE AT LAS VEGAS, INC., a
Nevada corporation
CANYON SPRINGS GOLF CLUB, INC., a
Texas corporation
CAPITAL CITY CLUB OF XXXXXXXXXX, INC.,
an Alabama corporation
CAPITAL CITY CLUB OF RALEIGH, INC., a
North Carolina corporation
CAPITAL CLUB, INC., a Virginia corporation
CCA SILBAND/GOLFCORP/ROUND ROCK,
INC., a Texas corporation
CCA SILBAND HOLDING CORPORATION, a
Nevada corporation
62
CCA SILBAND/GOLFCORP, a California corporation
CCA SILBAND-- FAIRFIELD, INC., a California
corporation
CCA SILBAND UPLAND HILLS CORP., a
California corporation
SILBAND SPORTS CORP., a California corporation
PLANTATION SERVICES, INC., a Texas corporation
COUNTRY MEADOW MANAGEMENT, INC., an
Arizona corporation
CCA GOLF CENTERS, INC., a Texas corporation
CCA GOLF CENTER-ARLINGTON, INC., a Texas
corporation
CCA GOLF CENTER-CLEARWATER, INC., a
Florida corporation
CCA SILBAND INVESTMENT CORP., a Texas corporation
U.S. GOLF MANAGEMENT, INC., a Delaware corporation
MIDDLETOWN, GOLF, INC., a Pennsylvania corporation
CENTER CLUB, INC., a California corporation
CENTRE CLUB, INC., a Florida corporation
CITRUS CLUB, INC., a Florida corporation
CITY CLUB OF SAN FRANCISCO, INC., a
California corporation
CITY CLUB OF WASHINGTON, INC., a District
of Columbia corporation
CLEAR CREEK HOLDING COMPANY, a Texas corporation
CLUB AT BOSTON COLLEGE, INC., a
Massachusetts corporation
THE CLUB AT CANYON GATE, INC., a
Nevada corporation
CLUB AT CIMARRON, INC., a Texas corporation
CLUB AT FRANKLIN SQUARE, INC., a District
of Columbia corporation
CLUB AT XXXX OAKS, NC., an Iowa corporation
CLUB AT SOCIETY CENTER, INC., an Ohio
corporation
CLUB ATHLETIC CONSULTING, INC., a Texas corporation
CLUB CORPORATION OF CANADA, LTD., a
Canadian corporation
CLUB FINANCIAL CORP., a Nevada corporation
CLUB HARRIS BRANCH REALTY, INC., a
Texas corporation
63
CLUB XX XXXXX, INC., a Tennessee corporation
CLUB XXXXX BRANCH REALTY, INC., a Texas
corporation
CWBR OF DELAWARE, INC., a Texas corporation
CLUB COMPANY REALTY, INC., a Texas
corporation
CCRI OF DELAWARE, INC., a Delaware corporation
CLUBCORP BUYING SERVICES, INC., a Delaware
corporation
CLUBCORP AVEN HOLDINGS, INC., a Delaware corporation
CLUBCORP GLOBAL HOLDINGS, INC., a
Delaware corporation
CLUBCORP GLOBAL CONSULTING, INC., a
Delaware corporation
CLUBCORP GRAPHICS, INC., a Florida corporation
COLUMBIA CAPITAL CITY CLUB CORP., a
South Carolina corporation
COLUMBIA TOWER CLUB, INC., a Washington corporation
COMMERCE CLUB, INC., a South Carolina corporation
COTO PROPERTY HOLDINGS, INC., a California corporation
COUNTRYSIDE COUNTRY CLUB, INC., a
Florida corporation
CROW CANYON MANAGEMENT CORP., a
California corporation
DAYTON RACQUET CLUB, INC., an Ohio corporation
DEBARY MANAGEMENT CORP., a Florida corporation
DES MOINES CLUB TENANT CORP., an Iowa corporation
DES MOINES CLUB MANAGEMENT, INC., an
Iowa corporation
DESERT FALLS COUNTRY CLUB, INC., a
California corporation
DESERT OASIS GOLF CLUB MANAGEMENT
CORP., a California corporation
DIAMANTE GOLF CLUB MANAGEMENT, INC.,
an Arkansas corporation
DIAMANTE GOLF CLUB PARTNERS, INC., an
Arkansas corporation
DIAMOND RUN CLUB, INC., a Pennsylvania
corporation
64
THE DOWNTOWN CLUB, INC., a Texas corporation
EXCHANGE CLUB MANAGEMENT, INC., an
Illinois corporation
FAIR OAKS CLUB CORP., a Texas corporation
FAIRLANE MANOR, INC., a Michigan corporation
FCS CORP., a Nevada corporation
FIRST CITY CLUB MANAGEMENT, INC., a
Georgia corporation
FLORIDA GOLF CLUB OF GAINESVILLE, INC.,
a Florida corporation
FORT BEND ACQUISITION CORP., a Texas
corporation
FORTUNE FINANCIAL CORP., a Texas corporation
FOSSIL CREEK GOLF, INC., a Texas corporation
GCL CORPORATION, a California corporation
XXXXXX XXXXXXXXXX UNIVERSITY CLUB,
INC., a District of Columbia corporation
GLENDALE MANAGEMENT CORP., a
Wisconsin corporation
GLENDALE RACQUET CLUB, INC., a
Wisconsin corporation
GP BEAR'S BEST ATLANTA, INC., a Georgia
corporation
GP BEAR'S BEST LAS VEGAS, INC., a Nevada
corporation
GRANCH GOLF CLUB, INC., an Arizona
corporation
GREENBRIER COUNTRY CLUB, INC., a
Virginia corporation
GREENS GOLF & RACQUET CLUB, INC., an
Oklahoma corporation
GREENSPONT CLUB, INC., a Texas corporation
HACKBERRY CREEK COUNTRY CLUB, INC.,
a Texas corporation
XXXXX PLANTATION MANAGEMENT CORP.,
a Florida corporation
HARBOUR CLUB OF CHARLESTON, INC., a
South Carolina corporation
HEARTHSTONE COUNTRY CLUB, INC., a
Texas corporation
HERITAGE CLUB, INC., an Alabama corporation
HILLS II OF LAKEWAY, INC., a Texas
corporation
HOUSTON CITY CLUB, INC., a Texas corporation
HUNTER'S GREEN ACQUISITION CORP., a
Florida corporation
65
INDIGO RUN ASSET CORP., a South Carolina
corporation
IRVING CLUB ACQUISITION CORP., a Texas
corporation
IW GOLF CLUB, INC., a California corporation
JEFFERSON CLUB, INC., a Kentucky corporation
KINGWOOD COUNTRY CLUB, INC., a Texas corporation
KINGWOOD COVE, INC., a Texas corporation
KNOLLWOOD COUNTRY CLUB, INC., an
Indiana corporation
LAKES CLUB, INC., an Arizona corporation
LEGAV CORPORATION, a California corporation
LIONSGATE GOLF CLUB, INC., a Kansas corporation
MANAGEMENT COMPANY FOR ASPEN XXXX,
INC., a Colorado corporation
MANAGEMENT COMPANY FOR STONERIDGE
CLUB, INC., a California corporation
MANAGER FOR CCHH, INC., a South Carolina
corporation
MANAGER FOR INDIGO RUN, INC., a South
Carolina corporation
MEMORIAL STADIUM CLUB MANAGEMENT
CORP., a Texas corporation
MEMPHIS CITY CLUB, INC., a Tennessee
corporation
METROPOLITAN CLUB OF CHICAGO, INC., an
Illinois corporation
METROPOLITAN CLUB OF DENVER, INC. a
Colorado corporation
MISSION HILLS COUNTRY CLUB, INC., a
California corporation
NASHVILLE CLUB MANAGEMENT, INC., a
Tennessee corporation
NETCLUB, INC., a Texas corporation
NEW ENGLAND COUNTRY CLUB MANAGEMENT,
INC., a Massachusetts corporation
NORTHWOOD MANAGEMENT CORP., a Georgia
corporation
OAK POINTE COUNTRY CLUB, INC., a Michigan
corporation
OAKMONT MANAGEMENT CORPORATION, a
Texas corporation
PARADISE VALLEY MANAGEMENT, INC., a
California corporation
00
XXXX XXXXXX XXXX, INC. (formerly the Fifth Avenue
Club, Inc.), a New York corporation
PIEDMONT CLUB, INC., a North Carolina corporation
PLAZA CLUB OF SAN ANTONIO, INC., a Texas
corporation
PLAZA CLUB-HAWAII, LTD., a Hawaii corporation
XXXXXX VALLEY COUNTRY CLUB, INC., a
California corporation
PRESIDENTIAL COUNTRY CLUB, INC., THE, a Florida
corporation
PYRAMID CLUB MANAGEMENT, INC., a Pennsylvania
corporation
QUAIL HOLLOW MANAGEMENT, INC., an Ohio
corporation
QUEENS HARBOUR CORPORATION, a Florida
corporation
RAVINIA CLUB, INC., a Georgia
corporation
RENAISSANCE CLUB, INC., a Michigan
corporation
STANDARD CLUB MANAGEMENT, INC., a Michigan
corporation
XXXXXXXXXX COUNTRY CLUB CORP., a Texas
corporation
RIVER CREEK COUNTRY CLUB, INC., a Virginia
corporation
RIVERS CLUB, INC., a Pennsylvania
corporation
SABAL TRACE CORP., a Florida corporation
SAN FRANCISCO TENNIS CLUB, INC., a California
corporation
THE SAN XXXX CLUB, INC., a California
corporation
SAN XXXX RENAISSANCE CLUB, INC., a
California corporation
SHADOW RIDGE GOLF CLUB, INC., a California
corporation
SHADY VALLEY MANAGEMENT CORP., a
Texas corporation
SHOREBY CLUB MANAGEMENT, INC., an Ohio
corporation
SILVER LAKE MANAGEMENT CORP., an Ohio
corporation
SKYLINE CLUB, INC., an Indiana
corporation
XXXX FARM COUNTRY CLUB, INC., a South
Carolina corporation
SOCIETY MANAGEMENT, INC., a Nevada
corporation
SOUTHERN TRACE COUNTRY CLUB OF
SHREVEPORT, INC., a Louisiana corporation
SPR ENERGY CORPORATION, a Texas corporation
67
SPRING VALLEY LAKE COUNTRY CLUB INC.,
a California corporation
STONEBRIAR CLUB, INC., a Texas corporation
STONEBRIAR MANAGEMENT CORP., a Texas
corporation
STONEHENGE CLUB, INC., a Virginia corporation
SUMMIT CLUB, INC., an Ohio corporation
SUMMIT CLUB, INC., an Alabama corporation
SYMPHONY TOWERS CLUB, INC., a California
corporation
TAMPA PALMS CLUB, INC., a Florida corporation
TEAL BEND GOLF CLUB, INC., a California
corporation
TIMARRON GOLF CLUB, INC., a Texas corporation
TOWER CITY CLUB OF VIRGINIA, INC., a
Virginia corporation
TOWER CLUB OF DALLAS, INC., a Texas corporation
TOWER CLUB, INC., a North Carolina corporation
TOWER CLUB, INC., a Florida corporation
TOWN POINT CLUB, INC., a Virginia corporation
TRADITION GOLF CLUB, INC., a Texas corporation
TREESDALE COUNTRY CLUB, INC., a Pennsylvania corporation
TURKEY CREEK. GOLF CLUB, INC., a California corporation
UNC ALUMNI CLUB MANAGEMENT, INC., a
North Carolina corporation
UNIVERSITY CLUB MANAGEMENT COMPANY,
INC., a Florida corporation
UNIVERSITY CLUB OF HOUSTON, INC., a
Texas corporation
UNIVERSITY CLUB OF WEST PALM BEACH, INC.,
a Florida corporation
UNIVERSITY CLUB, INC., a Mississippi corporation
UNIVERSITY CLUB, INC., a Florida corporation
WALNUT CREEK MANAGEMENT CORP., a
Texas corporation
WESTLAKE CITY CLUB, INC., a Texas corporation
WILDFLOWER COUNTRY CLUB, INC., a Texas
corporation
WILLOW CREEK MANAGEMENT, INC., a Texas corporation
WOODSIDE PLANTATION COUNTRY CLUB, INC., a
South Carolina corporation
ABILENE CLUB MANAGEMENT CORP., a Texas corporation
68
ACI OF LATIN AMERICA, INC., a Delaware
corporation
AKRON CLUB MANAGEMENT CORP., an
Ohio corporation
ARLINGTON CITY CLUB, INC., a Texas corporation
ATLANTA CITY CLUB, INC., a Georgia corporation
ATRIUM CLUB, INC., a New York corporation
BALLENISLES COUNTRY CLUB MANAGEMENT, INC.,
a Florida corporation
BENTWOOD MANAGEMENT CORP., a Texas corporation
BRAE-BURN CLUB MANAGEMENT, INC., a Texas
corporation
CANE RUN CLUB, INC., an Ohio corporation
CANE RUN MANAGEMENT, INC., an Ohio
corporation
THE CAPITOL CLUB, INC., a California corporation
CASCADE ATHLETIC CLUB, INC., an Ohio corporation
CCC HOLDING, INC., a South Carolina corporation
CCT, INC., a Nevada corporation
CENTURY I MANAGEMENT, INC., a Texas corporation
CENTURY IT CLUB MANAGEMENT, INC., a Texas corporation
CHAPARRAL CLUB MANAGEMENT, INC., a Texas corporation
CIPANGO MANAGEMENT CORPORATION, a Texas corporation
CITY CLUB OF ROCKFORD, INC., an Illinois corporation
CITY CLUB OF SAN ANTONIO MGMT., INC., a Texas corporation
XXXXXXX CLUB MANAGEMENT CORP., a Missouri corporation
CLEAR CREEK MANAGEMENT CORP., a Texas corporation
CLEAR LAKE GOLF CLUB, INC., a Texas corporation
CLUB METROPOLITAN OF AUSTIN, INC., a
Texas corporation
COOKS CREEK MANAGEMENT CORP., a Ohio corporation
DALLAS HOSPITALITY SERVICES, INC., a
Texas corporation
XXXX XXXX MANAGEMENT CORP., a Tennessee corporation
DTC MANAGEMENT CORP., a Pennsylvania corporation
DUMFRIES CLUB, INC., a Virginia corporation
00
XXXXX XXXXX MANAGEMENT CORP., a California
corporation
XXXXX ESTATE MGMT., INC., a Florida corporation
FOREST OAKS COUNTRY CLUB, INC., a Texas
corporation
GOLF CONCEPT, INC., a Nevada corporation
HEATHROW MANAGEMENT CORP., a Florida
corporation
HERITAGE CLUB, INC., a Texas corporation
HIDEAWAY MANAGEMENT CORP., a Florida
corporation
JEFFERSON CLUB MANAGEMENT CORP., a
Virginia corporation
XXXXXXX GOLF MANAGEMENT, INC., a
Florida corporation
LACITA MANAGEMENT CORPORATION, a
Florida corporation
LAKE COUNTRY ESTATES COUNTRY CLUB,
INC., a Texas corporation
XXXX XXXX CLUB MANAGEMENT, INC., a
Florida corporation
LAKES CLUB, INC., a Washington corporation
LANCERS CLUB, INC., a Texas corporation
LANDMARK CLUB AT PARK CENTRAL, INC.,
a Texas corporation
LOS GATOS TENNIS, INC., a California corporation
LAKEVIEW CLUB, INC., a California corporation
MANAGEMENT COMPANY FOR HAMMOCK
CREEK, INC., a Florida corporation
MANAGEMENT COMPANY FOR THE HARTFORD
CLUB, INC., a Connecticut corporation
THE MANAGER FOR WESTWOOD COUNTRY CLUB,
INC., a Texas corporation
MARINA CLUB MANAGEMENT, INC., a California
corporation
MATTHEWS GOLF CLUB MANAGEMENT CORP.,
a North Carolina corporation
MCC MANAGEMENT CORP., a California corporation
METROPOLITAN CLUB MANAGEMENT CORP.,
an Iowa corporation
MIDLAND PLAZA CLUB, INC., a Texas corporation
MONROE STREET CITY CLUB, INC., an Illinois
corporation
MOUNTAIN SPA CLUB MANAGEMENT INC.,
a Nevada corporation
70
MOUNTAINSIDE CLUB CORPORATION, an
Iowa corporation
MOUNTAINTOP CLUB MANAGEMENT, INC., an
Alabama corporation
NEWPORT NEWS CLUB, INC., a Virginia corporation
NORTH HILLS MANAGEMENT CO., an Arkansas
corporation
NORTHSHORE MANAGEMENT CORP., a Texas
corporation
OAKMEADOW MANAGEMENT CORPORATION,
an Indiana corporation
PARK AVENUE CLUB MANAGEMENT, INC., a
New Jersey corporation
PHARAOHS MANAGEMENT CORP., a Texas
corporation
PICKAWAY REAL ESTATE, INC., an Ohio corporation
PINERY COUNTRY CLUB, INC., a Colorado
corporation
PINEWOOD MANAGEMENT CORP., a Texas
corporation
PINNACLE CLUB SERVICES, INC., a Texas
corporation
PINNACLE CLUB, INC., a Texas corporation
PLAZA ATHLETIC CLUB, INC., a Texas corporation
PLAZA CLUB OF BRYAN, INC., a Texas corporation
PLAZA CLUB OF PHOENIX, INC., an Arizona corporation
PLAZA CLUB OF TUCSON, INC., an Arizona
corporation
PLAZA CLUB OF TYLER, INC., a Texas corporation
PRE 1-7.00 OPERATOR OF DIAMOND BAR
MANAGEMENT CORP, a California corporation
PRE 10-13.00 OPERATOR OF WILLOWBEND
DEVELOPMENT CORPORATION OF
WICHITA, a Kansas corporation
PRE 2-1-95 OPERATOR COMPANY OF LANDMARK
ATHLETIC CLUB, a Connecticut corporation
PRE 6-1-96 OPERATOR OF THE MANAGER FOR
TOWER RIDGE COUNTRY CLUB, INC., a
Connecticut corporation
PRE 0-0-00 XXXXXXXX XX XXXXXX XXXXXX XXXX,
XXX., a Delaware corporation
71
PRE 12-31-98 MANAGEMENT COMPANY FOR
TREYBURN COUNTRY CLUB MANAGEMENT
CORPORATION, a North Carolina corporation
PRE 12-21-99 OPERATOR OF THE MISSION DORADO
COUNTRY CLUB, INC., a Texas corporation
PRE 12-23-99 OWNER LAFAYETTE CLUB, INC.
(formerly Lafayette Club, Inc.), a Kentucky corporation
PRE 12/26/96 MANAGEMENT CORP. FOR COLUMBIA
LAKES, a Texas corporation
PRE 12/30/98 OPERATOR OF HALLIFAX CLUB, INC.
(f/k/a Halifax Club, Inc.), a Florida corporation
PRE 5-3-00 OPERATOR OF THE XXXXXX CLUB, INC.
(f/k/a Xxxxxx Club, Inc.), a Tennessee corporation
PRE 8-24-00 OPERATOR OF PEBBLE CREEK COUNTRY
CLUB OF GREENVILLE, INC., a South Carolina
corporation
PRE 2-28-01 OPERATOR OF MEADOW CLUB, INC.
(f/k/a Meadow Club, Inc.), an Illinois corporation
PRE 3-16-01 OPERATOR OF BELLE TERRE
MANAGEMENT CORP., a Louisiana corporation
PRE 5-18-01 OPERATOR OF ORANGE PARK
COUNTRY CLUB, INC., a Florida corporation
PRE 5-31-01 OPERATOR OF INVERRARY COUNTRY
CLUB, INC., a Florida corporation
PREMIER ATHLETIC CLUB, INC., a Louisiana corporation
PRIVATE CLUB SERVICES, INC., a Florida corporation
PARK AVENUE CLUB, INC., a New York corporation
PROVIDENCE MANAGEMENT INC., a North Carolina
corporation
QUAIL VALLEY WORLD OF CLUBS, INC., a Texas
corporation
RAINTREE COUNTRY CLUB, INC., a North Carolina
corporation
RANCHLAND MANAGEMENT CORP., a Texas corporation
REGENCY CLUB, INC., a Texas corporation
RELAY HOUSE CORPORATION, an Alabama corporation
RENAISSANCE CLUB, INC., an Arizona corporation
RIVER CLUB, INC., an Illinois corporation
RIVER NORTH MANAGEMENT CORP., a Georgia
corporation
RMPC MANAGEMENT CORPORATION, a Utah
corporation
ROLLING HILLS MANAGEMENT CORPORATION,
an Alabama corporation
ROYAL DRIVE COUNTRY CLUB, INC., a California
corporation
72
SAN XXXXXX HERITAGE CLUB INC., a Texas
corporation
SATICOY MANAGEMENT, INC., a California
corporation
SCOTTY'S MANAGEMENT CORP., a Texas corporation
SHENANDOAH MANAGEMENT CORP., a Louisiana
corporation
SILVER SPRINGS SHORES COUNTRY CLUB
CORP., a Florida corporation
SKYLINE CLUB, INC., a Michigan corporation
SOUTH SHORE MANAGEMENT CORP., a Texas
corporation
SURREY HILLS MANAGEMENT CORP., an Oklahoma
corporation
SWEETWATER COUNTRY CLUB, INC., a Florida
corporation
TAMPA CLUB MANAGEMENT, INC., a Florida
corporation
TOP SEED MANAGEMENT CORP., an Arizona
corporation
TOPS'L CLUB, INC., a Florida corporation
TREASURE ISLAND TENNIS & YACHT CLUB,
INC., a Florida corporation
TWO THOUSAND ONE XXXXX TOWER CLUB,
INC., a Texas corporation
UNIVERSITY CLUB OF DALLAS, INC., a Texas
corporation
VITA CENTER MANAGEMENT CORP., a Texas
corporation
WESTBURY MANAGEMENT CORP., an Oklahoma
corporation
By: /s/ XXXX X. XXXXXX, III
---------------------------
Xxxx X. Xxxxxx, III
Vice President
THE PINEHURST COMPANY (f/k/a ClubCorp Resorts,
Inc. & ClubCorp Realty, Inc.), a Delaware corporation
XXXXXX CREEK RESORT & CLUBS, INC., a
Texas corporation
CCR PROJECT DEVELOPMENT, INC., a North
Carolina corporation
73
CITY WAREHOUSE CORP., a Texas corporation
CLUBCORP REALTY EAST, INC., a North Carolina
corporation
CONCORD REALTY, INC., a Texas corporation
CLUBCORP REALTY HOLDINGS, INC., a Texas
corporation
CLUBCORP REALTY SOUTHWEST, INC., a
Texas corporation
CLUBCORP REALTY HILTON HEAD, INC., a
South Carolina corporation
CLUBCORP REALTY HOMESTEAD, INC., a
Virginia corporation
CLUB ISLAND REALTY CORP., a South Carolina corporation
BLOODY POINT ASSET CORP, a South Carolina corporation
MELROSE LANDING CORPORATION, a South Carolina corporation
HILTON HEAD PLANTATION ASSET CORP., a
South Carolina corporation
MELROSE ASSET CORP., a South Carolina corporation
MELROSE UTILITY COMPANY, INC., a South
Carolina corporation
CSRESORT MANAGEMENT, INC., a Texas corporation
CLUB RESORTS, INC., a Nevada corporation
COUNTRY CLUB OF PINEWILD MANAGEMENT,
INC., a North Carolina corporation
HOMESTEAD SPRING WATER COMPANY, INC., a
Virginia corporation
MANAGEMENT COMPANY FOR HOMESTEAD,
INC., a Virginia corporation
OPERATIONS COMPANY FOR HOMESTEAD, INC.,
a Virginia corporation
CONSTRUCTION COMPANY OF PINEHURST, INC.,
a North Carolina corporation
DAUFUSKIE CLUB, INC., a South Carolina
corporation
ROSE MIX, INC., a South Carolina corporation
DLGA GOLF ACADEMY, INC., a Florida corporation
XXXXX LAND DEVELOPMENT COMPANY, a
Florida corporation
GFO PARTNER, INC., a Michigan
corporation
GP OWNERS CLUB AT ASPEN XXXX, INC.,
a Colorado corporation
74
LEGAV COMMERCIAL PROPERTY CORPORATION,
a California corporation
LEGAV HOTEL CORPORATION, a California
corporation
MASTER CLUB, INC., a Nevada corporation
MH VILLAS, INC., a California corporation
NORTHERN MICHIGAN FINANCIAL CORPORATION,
a Michigan corporation
OWNERS CLUB ASSET COMPANY, a Delaware
corporation
OWNERS CLUB AT HILTON HEAD PROPERTY
MANAGEMENT, INC., a South Carolina corporation
PCC REALTY CORP., a North Carolina corporation
PINEHURST ACQUISITION CORP., a North Carolina
corporation
PINEHURST, INC., a North Carolina corporation
PINEHURST CHAMPIONSHIP MANAGEMENT, INC.,
a North Carolina corporation
PINEHURST COUNTRY CLUB, INC., a North Carolina
corporation
PINEHURST HOTEL, INC., a North Carolina
corporation
PINEHURST REALTY CORP., a Nevada corporation
PINEHURST NO. VII, INC., a North Carolina
corporation
PINEWILD MANAGEMENT, INC., a Virginia
corporation
QUAIL HOLLOW DEVELOPMENT, INC., an
Ohio corporation
SHANGRI-LA DEVELOPMENT CORP., an
Oklahoma corporation
SHANGRI-LA MANAGEMENT CORP., an Oklahoma
corporation
SHANGRI-LA COUNTRY CLUB, INC., an Oklahoma
corporation
THE OWNERS CLUB HOLDING II, INC., a
Delaware corporation
THE OWNERS CLUB, INC. (f/k/a The Owners Club
Holding, Inc.), a Delaware corporation
OWNERS CLUB TELLURIDE REALTY, INC.,
a Colorado corporation
OWNERS CLUB AT TELLURIDE, INC., a
Colorado corporation
THE MANAGER OF THE OWNERS CLUB, INC.,
a South Carolina corporation
75
THE OWNERS CLUB AT THE HOMESTEAD,
INC., a Delaware corporation
By: /s/ XXXX X. XXXXXX, III
-------------------------
Xxxx X. Xxxxxx, III
Vice President
CLUBCORP INTERNATIONAL, INC., a Nevada
corporation
CLUBCORP INTERNATIONAL RESOURCE COMPANY, a Nevada
corporation
CLUB CORPORATION OF EUROPE, INC.,
a Nevada corporation
CLUBCORP-ASIA, a Nevada corporation
CLUBCORP ASIA INVESTMENT, INC., a
Nevada corporation
CLUBCORP MEXICO, a Nevada corporation
CLUBCORP PANAMA, INC., a Nevada
corporation
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
ASSOCIATE CLUBS INTERNATIONAL, INC.,
a Nevada corporation
CLUBCORP PUBLICATIONS, INC., a Nevada
corporation
CLUBCORP FINANCIAL MANAGEMENT
COMPANY, a Nevada corporation
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
76
FIRST FEDERAL FINANCIAL CORPORATION,
a Texas corporation
FRANKLIN FEDERAL BANCORP F.S.B., a
Nevada corporation
GRANITE BAY MANAGEMENT, INC., a
California corporation
BENBROOK BEVERAGE CORPORATION, a
Texas corporation
CLUB AT DAUFUSKIE, a South Carolina
corporation
CLUB AT GREENVILLE, INC., a South Carolina
corporation
CLUB AT PEBBLE CREEK, a South Carolina
corporation
CLUB AT XXXX FARM, a South Carolina
corporation
LE CLUB, INC., a South Carolina
corporation
THE CLUB AT WOODSIDE PLANTATION, a
South Carolina corporation
THE CLUB AT HARBOUR, a
South Carolina corporation
THE CLUB AT COLUMBIA CAPITAL, a South
Carolina corporation
THE XXX CAT CLUB, a Arkansas corporation
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
77
APPLE MOUNTAIN GOLF CLUB, LLC, a
Delaware limited liability company
EMPIRE RANCH, LLC, a Delaware limited
liability company
By: CLUBCORP USA, INC., its sole member
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
FLORIDA DEVELOPMENT OF GAINESVILLE,
L.L.C., a Florida limited liability company
By: Club Corp USA, Inc., its managing member
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
78
HOMESTEAD, L.C., a Virginia limited liability
company
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
CANYON SPRINGS GENERAL, L.L.C., a
Delaware limited liability company
TCRI LIMITED, LLC, a Delaware limited
liability company
By: THE PINEHURST COMPANY, f/k/a
ClubCorp Resorts, Inc., its sole member
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
THE OWNERS CLUB OF SOUTH CAROLINA,
L.L.C., a South Carolina limited liability company
By: Owners Club Asset Company, it,
managing member
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
79
THE OWNERS CLUB AT XXXXXX CREEK, L.P.,
a Texas Limited Partnership
By: The Owners Club Holding II, Inc., its
general partner
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
THE OWNERS CLUB AT HILTON HEAD, L.P.,
a South Carolina limited partnership
By: The Manager of The Owners Club, Inc.,
its general partner
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
THE OWNERS CLUB AT THE HOMESTEAD, L.P.,
a Virginia limited partnership
By: The Owners Club at The Homestead, Inc.,
its general partner
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
80
FFFC GOLF ACQUISITIONS, L.L.C., a Delaware
limited liability company
By: First Federal Financial Corporation
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
CLUBCORP GEN PAR OF TEXAS, L.L.C., a
Delaware limited liability company
CLUBCORP GOLF OF CALIFORNIA, L.L.C., a
Delaware limited liability company
CLUBCORP GOLF OF FLORIDA, L.L.C., a
Delaware limited liability company
CLUBCORP GOLF OF MISSOURI, L.L.C., a
Delaware limited liability company
CLUBCORP GOLF OF NORTH CAROLINA, L.L.C.,
a Delaware limited liability company
CLUBCORP GOLF OF OKLAHOMA, L.L.C., an
Oklahoma limited liability company
GOLF MANAGEMENT COMPANY OF LOUISIANA,
L.L.C., a Delaware limited liability company
PIEDMONT GOLFERS' CLUB, L.L.C., a South
Carolina limited liability company
By: FFFC Golf Acquisitions, L.L.C., managing
member of each
By: First Federal Financial Corporation
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
81
CLUBCORP GOLF OF TEXAS, L.P., a Texas
limited partnership
CLUBCORP GOLF OF GEORGIA, L.P., a
Georgia limited partnership
By: ClubCorp Xxxx Par of Texas, LLC, the
general partner for each
By; First Federal Financial Corporation, its
sole member
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
CAPITAL CLUB COMPANY, LTD., a China
corporation
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
BC RESORT, LP., a Texas General Partnership
By: Xxxxxx Creek Resort & Clubs, Inc., its
general partner
By: /s/ XXXX X. XXXXXX, III
--------------------------
Xxxx X. Xxxxxx, III
Vice President
82
EXHIBIT E
COMPLIANCE CERTIFICATE
To: Bank of America, N.A., as Administrative Agent
From: ClubCorp, Inc.
Date: ________________
Re: First Amended and Restated Credit Agreement, dated as of
September 24, 1999 (as amended, "Credit Agreement") among ClubCorp,
Inc., certain Lenders, and Bank of America, N.A., as Administrative
Agent, Xxxxx Fargo Bank, N.A., as Syndication Agent, Bank One, Texas,
N.A., as Documentation Agent, First Union National Bank, as a Managing
Agent, and Credit Lyonnais, New York Branch, as a Managing Agent.
This Compliance Certificate is delivered pursuant to Section 6.3 of the
Credit Agreement. All capitalized terms used herein and defined in the Credit
Agreement shall be used herein as so defined. For purposes hereof, section
references herein relate to sections of the Credit Agreement, and bracketed
amounts or ratios refer to the maximum or minimum amounts or ratios required
under the relevant sections of the Credit Agreement.
1. Covenant Calculations. [To be completed quarterly]. Demonstration
of compliance with certain covenants contained in Article 7 of the Credit
Agreement for the period ended ______________.
A. Leverage Ratio
1. Total Debt, determined for the Borrower and its Subsidiaries on
a consolidated basis
a. Indebtedness for borrowed money $__________
b. Obligations evidenced by bonds, debentures, notes or $__________
other similar instruments
c. Obligations to pay the deferred purchase price of $__________
property or services other than trade payables incurred
in the ordinary course of business
d. Capitalized Lease Obligations $__________
e. Obligations in respect of Redeemable Stock (excluding $__________
Redemption Obligation)
f. Total Debt [(a) + (b) + (c) + (d) + (e)] $_________
1
2. EBITDA for the four consecutive Fiscal Quarters ending on the date of
calculation, calculated on a consolidated basis for the Borrower and its
Subsidiaries (for purposes of calculation of the Leverage Ratio only,
with respect to assets not owned at all times during the four Fiscal
Quarters immediately preceding the date of calculation of EBITDA, there
shall be (i) included in EBITDA the proforma EBITDA (but calculated to
exclude any increase in EBITDA which would be the result of any expenses
that the Borrower projects to be eliminated by such proposed acquisition)
of any assets acquired during any such four Fiscal Quarters and (ii)
excluded from EBITDA the EBITDA of any assets disposed of during any of
such four Fiscal Quarters)
a. Pretax Net Income (excluding therefrom, to the extent $__________
included in determining Pretax Net Income, (i) any
items of extraordinary gain, including net gains on the
sale of assets other than asset sales in the ordinary
course of business, and (ii) equity in joint venture net
income, and adding thereto, to the extent included in
determining Pretax Net Income, any items of
extraordinary loss, including net losses on the sale of
assets other than asset sales in the ordinary course of
business)
b. Depreciation $__________
c. Amortization $__________
d. Interest expense (including but not limited to interest $__________
expense pursuant to Capitalized Lease Obligations)
e. Non-recurring non-cash charges, to the extent included $__________
in determining Pretax Net Income
f. Non-recurring credits, to the extent included in $__________
determining Pretax Net Income
g. Cash distributions from Person whose financial results $__________
are not consolidated with Borrower
h. Without duplication, non-cash equity compensation to $__________
officers and directors pursuant to a non-cash equity
compensation plan, if implemented
i. EBITDA [(a) + (b)+ (c) + (d) + (e)-- (f) + (g) + (h)] $__________
3. Leverage Ratio [(1) to (2)] _____ to 1
2
B. Section 7.1 (i) Other Unsecured Indebtedness
1. Maximum in aggregate principal amount outstanding at any time $________
a. Prior to the Qualifying Date -- $30,000,000
b. On and after the Qualifying Date -- $50,000,000
2. Actual $________
3. Difference [(a)-(2)] $________
C. Section 7.2 Permitted Secured Indebtedness
1. Maximum aggregate amount -- 10% of Net Tangible Assets $________
2. Actual amount of Secured Indebtedness (excluding Indebtedness $________
under Loan Documents)
3. Difference [(1)-(2)] $________
D. Sections 7.4(f), 7.4(g), and 7.8(i) Investments in Non-Guarantors,
Other Investments, and Acquisition of Non-Guarantors (calculated
cumulative from Agreement Date)
1. Maximum in aggregate amount for Investments in Non-
Guarantors, Other Investments, and Acquisition of Non-
Guarantors -- 10% of Total Capitalization
a. Total Capitalization, calculated for the Borrower and its
Subsidiaries on a consolidated basis determined in
accordance with GAAP
(1) Net Worth $________
(2) Redemption value of common Capital Stock of $________
the Borrower and its Subsidiaries
(3) Total Debt (from A.1.f. above) $________
(4) Total Capitalization [(1) + (2) + (3)] $________
b. Maximum -- 10% of Total Capitalization $________
3
2. Actual
a. Investments in Non-Guarantors, but excluding Investments in $_________
Non-Guarantors which are not obligated to third Persons in
respect of any Indebtedness (calculated on the initial
investment amount but adjusted to take into account any
proceeds received by the Borrower or any other Obligor on a
liquidation or repayment of any such Investments)
b. Investments after the Agreement Date not otherwise $_________
permitted pursuant to clauses (a) through (e) of
Section 7.4, but excluding Investments in joint ventures
which are not obligated to third Persons in respect of any
Indebtedness and which are obligated to distribute all cash
available to be distributed to their equity owners
(calculated on the initial investment amount but adjusted
to take into account any proceeds received by the Borrower
or any other Obligor on a liquidation or repayment of any
such Investments)
c. Aggregate Acquisition Consideration (excluding
Acquisition Consideration in respect of Subsidiaries
which are not obligated to third Persons in respect of
any Indebtedness) for all Non-Guarantors
d. Total [(a) + (b) + (c)] $__________
3. Difference [(1)-(2)] $__________
E. Section 7.6(d) Guaranties of Indebtedness of Persons other than the
Borrower and its Subsidiaries
1. Maximum in aggregate principal amount at any time-- 15% of $__________
Net Worth
2. Actual $__________
3. Difference [(1)-(2)] $__________
F. Section 7.7 Sales of Assets
1. Prior to Qualifying Date
a. Net Cash Proceeds of assets sold during Reporting Period $__________
(other than as permitted pursuant to Sections 7.7(a)(i),
(ii), (iii) and (iv)) during Fiscal Year including
Reporting Period
b. Maximum permitted to be sold during any Fiscal Year
after Fiscal Year 2002 without only 25% of such Net
Cash Proceeds applied as required by Section 2.5(b)(ii) $25,000,000
c. Difference [(a)-(b)] $__________
4
2. On and after Qualifying Date
a. Fair market value of assets sold during Reporting $________
Period (other than as permitted pursuant to
Sections 7.7(b)(i), (ii) and (iii) during Fiscal Year
including Reporting Period
b. Maximum -- 10% of Net Tangible Assets as of the end $________
of the immediately preceding Fiscal Year
c. Difference [(b)-(a)] $________
G. Section 7.8(i) Acquisitions
1.
a. Maximum Acquisition Consideration for any $________
Acquisition - $10,000,000 (or $25,000,000, if at the
time of such Acquisition, (y) the Administrative Agent
shall have received from the Borrower a pro forma
Compliance Certificate indicating that after giving
effect to such Acquisition the Leverage Ratio will be
less than or equal to 4.00 to 1 and (z) the Leverage
Ratio required to be maintained pursuant to Section
7.12 is no greater than 4.00 to 1) plus aggregate Net
Cash Proceeds from issuance of Capital Stock during
365-day period beginning on and after the Agreement
Date and ending on date of Acquisition
b. Actual $________
c. Difference [(a)-(b)] $________
2.
a. Maximum Aggregate Consideration for Acquisitions $________
during each period of four consecutive Fiscal Quarters -
$25,000,000 (or $75,000,000, if at the time of such
Acquisition, (y) the Administrative Agent shall have
received from the Borrower a pro forma Compliance
Certificate indicating that after giving effect to such
Acquisition the Leverage Ratio will be less than or
equal to 400 to 1 and (z) the Leverage Ratio required to be
maintained pursuant to Section 7.12 is no greater than 4.00
to 1) plus the aggregate Net Cash Proceeds from issuance of
Capital Stock during the 365-day period ending on the date
of any Acquisition
b. Actual $________
c. Difference [(a)-(b)] $________
5
H. Section 7.9 Restricted Payments
1. Maximum Dividends payable by Borrower during any Fiscal
Year - $7,500,000
2. Actual $______
3. Difference [(1)-(2)] $______
I. Section 7.12 Maximum Leverage Ratio
1.
a. Maximum at the end of any Fiscal Quarter from and 5.50 to 1
including the first Fiscal Quarter of Fiscal Year 2002
through and including the third Fiscal Quarter of Fiscal
Year 2002
b. Maximum at the end of the fourth Fiscal Quarter of 4.50 to 1
Fiscal Year 2002 through and including the third
Fiscal Quarter of Fiscal Year 2003
c. Maximum at the end of the fourth Fiscal Quarter of 4.00 to 1
Fiscal Year 2003
d. Maximum at the end of each Fiscal Quarter thereafter 3.75 to 1
2. Actual (from A.3. above) ___ to 1
J. Section 7.13 Minimum Fixed Charge Coverage Ratio
1.
a. Minimum at end of any Fiscal Quarter from and 0.90 to 1
including the first Fiscal Quarter of Fiscal Year 2002
through and including the third Fiscal Quarter of Fiscal
Year 2002
b. Minimum at the end of any Fiscal Quarter thereafter 1.00 to 1
2. Actual, as of the last day of each Fiscal Quarter
a. EBITDAR, for the immediately preceding four Fiscal Quarters
(1) EBITDA $______
(a) Pretax Net Income (excluding therefrom, to $______
the extent included in determining Pretax Net
Income, (i) any items of extraordinary gain,
including net gains on the sale of assets other
than asset sales in the ordinary course of
business, and (ii) equity in joint venture net
income, and adding thereto, to the extent
included in determining Pretax Net Income, any
items of extraordinary loss,
6
including net losses on the sale of assets
other than asset sales in the ordinary
course of business)
(b) Depreciation $
------
(c) Amortization $
------
(d) Interest expense (including but not $
limited to interest expense pursuant to ------
Capitalized Lease Obligations)
(e) Non-recurring non-cash charges, to the $
extent included in determining Pretax ------
Net Income
(f) Non-recurring credits, to the extent $
included in determining Pretax Net ------
Income
(g) Cash distributions from Persons whose $
financial results are not consolidated ------
with Borrower
(h) Without duplication, non-cash equity $
compensation to officers and directors ------
pursuant to a non-equity compensation
plan, if implemented
(i) EBITDA [(a)+(b)+(c)+(e)-(f) $
+(g)+(h)] ------
(2) Lease expense pursuant to Operating Leases $
------
(3) EBITDAR [(1)+(2)] $
------
b. Maintenance Capital Expenditures, for the immediately
preceding four Fiscal Quarters
(1) Gross revenue of the Borrower and its $
Subsidiaries, on a consolidated basis, ------
determined in accordance with GAAP,
calculated for the four consecutive Fiscal
Quarters ending on the date of determination
(2) Maintenance Capital Expenditures - 5% of b.(1) $
------
c. Fixed Charges for the immediately preceding four Fiscal Quarters,
calculated for the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP
(1) Interest expense (including but not limited to $
interest expense pursuant to Capitalized Lease ------
Obligations, but not including amortization of
7
discount on Membership Deposits and
amortization of discounts on Indebtedness)
(2) Lease expense under Operating Leases $
-------
(3) All scheduled principal payments of Total Debt $
-------
(4) Fixed Charges [(1)+(2)+(3)] $
------
d. Fixed Charge Coverage Ratio {[(a)-(b)] to (c)} to 1
---
K. Section 7.14 Minimum Tangible Net Worth
1. Minimum
a. 90% of Tangible Net Worth at December 26, 2001 $
-------
b. 50% of cumulative Net Income for the period from, $
but not including, December 25, 2001 through the -------
date of calculation (but excluding from the
calculation of such cumulative Net Income the
effect, if any, of any Fiscal Quarter (or portion
of a Fiscal Quarter not then ended) of the
Borrower for which Net Income was a negative number)
c. 100% of the tangible net worth of any Person that $
become a Subsidiary of the Borrower or is merged -------
into or consolidated with the Borrower or any
Subsidiary of the Borrower or substantially all of
the assets of which are acquired by the Borrower or
any Subsidiary of the Borrower to the extent the
purchase price paid therefor is paid in equity
securities of the Borrower or any Subsidiary of the
Borrower or pursuant to the conversion or exchange
of any convertible subordinated debt or redeemable
preferred stock into Capital Stock of the Borrower
or any of its Subsidiaries
d. 75% of the Net Proceeds (but without duplication) $
of any offerings of Capital Stock of the Borrower ------
or any of its Subsidiaries
e. 100% of any reclassification of redemption value of $
common Capital Stock to Net Worth ------
f. Minimum [a + b + c + d + e] $
------
2. Actual
a. Net Worth $
------
b. The sum of the following (without duplication in $
respect of items already deducted in arriving at ------
Net Worth): the book value of all assets which would
be treated as intangible assets under GAAP,
including, without limitation, goodwill,
trademarks, copyrights,
8
patents, organizational expense and
experimental expense, deferred assets,
unamortized debt discount and expense, any
write-up in the book value of assets
resulting from the revaluation thereof
subsequent to December 29, 1998
c. Tangible Net Worth [a-b] $
-----------
3. Difference [(2)-(1)] $
-----------
L. Section 7.19 Non-Guarantors
1. Maximum EBITDA for all Non-Guarantors during any
period of four consecutive Fiscal Quarters
a. EBITDA (from J.2.a(1) above) $
------
b. Maximum - 15% of EBITDA $
-----------
2. Actual EBITDA for all Non-Guarantors $
-----------
3. Difference [(1)-(2)] $
-----------
4. Maximum assets of all Non-Guarantors as of the
end of any Fiscal Quarter
a. Assets of the Borrower and all of its $
Subsidiaries ------
b. Maximum - 15% of such assets $
-----------
5. Actual assets of all Non-Guarantors $
-----------
6. Difference [(4)-(5)] $
-----------
M. Section 7.21 Capital Expenditures
1. Maximum in 2002 $120,000,000
2. Actual for 2002 $
-----------
3. Difference for 2002 [1-2] $
-----------
4. Maximum for 2003, if the Leverage Ratio for the
most recently ended Fiscal Quarter as set forth
in the Compliance Certificate delivered for such
Fiscal Quarter (or a pro forma Compliance
Certificate as of a certain date) indicates that
the Leverage Ratio for such Fiscal Quarter (or
such date) was less than or equal to 4.00 to 1
and the leverage Ratio required to be maintained
pursuant to Section 7.12 of this Agreement is no
greater that 4.00 to 1.00, then
a. $80,000,000 $80,000,000
b. 100% of Net Proceeds from the issuance of $
Capital Stock during such Fiscal Year up to ------
an including $75,000,000 in aggregate
amount,
c. 50% of Net Proceeds from the issuance of $
Capital Stock during such Fiscal year in ------
excess of $75,000, 000 in
9
aggregate amount,
d. 100% of Net Proceeds from the disposition $
of assets during such Fiscal Year up to ----------
and including $25,000,000 in aggregate
amount,
e. 50% of net proceeds from the disposition of $
assets during such Fiscal year in excess ----------
of $25,000,000 in aggregate amount,
f. 6% of the amount by which consolidated $
revenue of the Borrower and its ----------
Subsidiaries for the immediately preceding
Fiscal Year exceeds the consolidated
revenue of the Borrower and its Subsidiaries
for the Fiscal year immediately preceding
such Fiscal Year
g. Line 3 (if a positive number) $
----------
h. Maximum for 2003 (a + b + c + d + e +
f + g)
5. Actual for 2003 $
-------
6. Difference for 2003 [4-5] $
-------
7. Maximum for 2004: $
-------
a. $80,000,000 $80,000,000
b. 100% of Net Proceeds from the issuance of $
Capital Stock during such Fiscal Year up to ----------
an including $75,000,000 in aggregate
amount,
c. 50% of Net Proceeds from the issuance of $
Capital Stock during such Fiscal Year in ----------
excess of $75,000,000 in aggregate amount,
d. 100% of Net Proceeds from the disposition $
of assets during such Fiscal Year up to ----------
and including $25,000,000 in aggregate
amount,
e. 50% of Net Proceeds from the disposition of $
assets during such Fiscal Year in excess ----------
of $25,000,000 in aggregate amount,
f. 6% of the amount by which consolidated $
revenue of the Borrower and its ----------
Subsidiaries for the immediately preceding
Fiscal Year exceeds the consolidated
revenue of the Borrower and its
Subsidiaries for the Fiscal Year
immediately preceding such Fiscal Year
g. Line 6 (if a positive number) $
----------
h. Maximum for 2004 (a + b + c + d + e + $
f + g) -------
8. Actual of 2004 $
-------
10
9. Difference for 2004 [7-8] $
-------
10 Maximum for 2005:
a. $80,000,000 $80,000,000
b. 100% of Net Proceeds from the issuance $
of Capital Stock during such Fiscal Year ----------
up to an including $75,000,000 in aggregate
amount,
c. 50% of Net Proceeds from the issuance of $
Capital Stock during such Fiscal Year in ----------
excess of $75,000,000 in aggregate amount,
d. 100% of Net Proceeds from the disposition $
of assets during such Fiscal Year up to and ----------
including $25,000,000 in aggregate amount,
e. 50% of Net Proceeds from the disposition of $
assets during such Fiscal Year in excess of ----------
$25,000,000 in aggregate amount,
f. 6% of the amount by which consolidated $
revenue of the Borrower and its Subsidiaries ----------
for the immediately preceding Fiscal Year
exceeds the consolidated revenue of the
Borrower and its Subsidiaries for the Fiscal
Year immediately preceding such Fiscal Year
g. Line 9 (if a positive number) $
---------
h. Maximum for 2005 (a + b + c + d + e + f + g) $
-------
11. Actual for 2005
12. Difference for 2005 [10-11] $
-------
13. Maximum for 2006: $
-------
a. $80,000,000 $ 80,000,000
b. 100% of Net Proceeds from the issuance $
of Capital Stock during such Fiscal Year -----------
up to an including $75,000,000 in aggregate
amount,
c. 50% of Net Proceeds from the issuance of $
Capital Stock during such Fiscal Year in -----------
excess $75,000,000 in aggregate amount,
d. 100% of Net Proceeds from the disposition $
of assets during such Fiscal Year up to -----------
and including $25,000,000 in aggregate
amount,
$
e. 50% of Net Proceeds from the disposition -----------
of assets during such Fiscal Year in excess
of $25,000,000 in aggregate amount,
f. 6% of the amount by which consolidated $
revenue of the -----------
11
Borrower and its Subsidiaries for the
immediately preceding Fiscal Year exceeds
the consolidated revenue of the Borrower
and its Subsidiaries for the Fiscal Year
immediately preceding such Fiscal Year
g. Line 12 (if a positive number) $
-----------
h. Maximum for 2006 (a + b + c + d + e + f + g) $
------
14. Actual for 2006 $
------
15. Difference for 2006 [13-14] $
------
16. Maximum for 2007
a. $80,000,000 $80,000,000
b. 100% of Net Proceeds from the issuance of $
Capital Stock during such Fiscal Year up to -----------
an including $75,000,000 in aggregate
amount,
c. 50% of Net Proceeds from the issuance of $
Capital Stock during such Fiscal Year in -----------
excess of $75,000,000 in aggregate amount,
d. 100% of Net Proceeds from the disposition of $
assets during such Fiscal Year up to and -----------
including $25,000,000 in aggregate amount,
e. 50% of Net Proceeds from the disposition of $
assets during such Fiscal Year in excess -----------
of $25,000,000 in aggregate amount,
f. 6% of the amount by which consolidated $
revenue of the Borrower and its Subsidiaries -----------
for the immediately preceding Fiscal Year
exceeds the consolidated revenue of the
Borrower and its Subsidiaries for the Fiscal
Year immediately preceding such Fiscal Year
g. Line 15 (if a positive number) $
-----------
h. Maximum for 2007 (a + b + c + d + e + f + g) $
------
17. Actual for 2007 $
------
18. Difference for 2007 [16-17] $
------
2. Compliance Certificate. [To be completed quarterly] The undersigned hereby
certifies to you as follows:
(a) I am the duly elected qualified and acting chief financial or treasurer
[or chief accounting officer] of Borrower.
12
(b) I have reviewed the provisions of the Credit Agreement and the other Loan
Documents, and a review of the activities of Borrower during the period
from______, _______to______, _______(the "Reporting Period") has been made
under my supervision with a view toward determining whether, during he
Reporting Period, Borrower had kept, observed, performed and fulfilled all
its obligations under the Credit Agreement and such other Loan Documents.
(c) the representations and warranties made in the Loan Documents are true and
correct in all material respects as of the date hereof as though made at and
as of the date hereof, except for such representations and warranties which
relate to a particular date or which fail to be true and correct as a result
of events or occurrences permitted under the Loan Documents, and no Default
or Event of Default has occurred or is continuing or is imminent.
This Compliance Certificate is executed and delivered on the ____ day
of_________________,______.
CLUBCORP, INC.
By:
-------------------------------
Name:
--------------------------
Title:
--------------------------
13
