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EXHIBIT 10.25
SECOND AMENDMENT TO FIRST
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(this "Second Amendment"), dated as of December 20, 2000, is entered into among
CLUBCORP, INC., a Delaware corporation (the "Borrower"), the lenders listed on
the signature pages hereof (the "Lenders"), and BANK OF AMERICA, N.A., in its
capacity as administrative agent for the Lenders (the "Administrative Agent").
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 (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 TO CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is hereby amended by adding the
following defined terms thereto in proper alphabetical order:
"AV" means Aliso Viejo Golf Club Joint Venture, a California
joint venture and indirect subsidiary of the Borrower.
"AV Non-Recourse Debt" means Indebtedness (i) as to which neither
the Borrower nor any of its Subsidiaries (other than AV) (a) provides
credit support of any kind (including any undertaking, agreement or
instrument that would constitute Indebtedness), or (b) is directly or
indirectly liable (as a guarantor or otherwise); and (ii) no default
with respect to which (including any rights that the holders thereof may
have to take enforcement action against AV) would permit (upon notice,
lapse of time or both) any holder of any other Indebtedness of the
Borrower or any of its Subsidiaries (other than AV) to declare a default
on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and (iii) as to
which the lenders with respect to such Indebtedness will not have any
recourse to the stock or assets of the Borrower or any of its
Subsidiaries (other than AV).
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"FCC Premium" means a per annum percentage rate equal to 0.250.
"FCC Premium Period" means any period of time commencing on and
including the first day of the Fiscal Quarter period for which a
Compliance Certificate (for the third Fiscal Quarter of Fiscal Year 2001
and for each Fiscal Quarter thereafter through and including for the
third Fiscal Quarter of Fiscal Year 2002) is received by the
Administrative Agent reporting that the Fixed Charge Coverage Ratio for
such Fiscal Quarter period is less than 1.25 to 1 through and including
the date of receipt by the Administrative Agent of a Compliance
Certificate reporting that the Fixed Charge Coverage Ratio for the
Fiscal Quarter period covered by such Compliance Certificate is 1.25 to
1 or higher; provided, however, notwithstanding the above, for any FCC
Premium applicable with respect to the third Fiscal Quarter of Fiscal
Year 2001, the FCC Premium Period shall commence on and include the date
immediately following the date of receipt by the Administrative Agent of
the Compliance Certificate for the second Fiscal Quarter of Fiscal Year
2001.
"Leverage Premium" means a per annum percentage equal to 0.250.
"Leverage Premium Period" means the period of time commencing on
and including December 20, 2000 through and including the date of
receipt by the Administrative Agent of the Compliance Certificate for
the second Fiscal Quarter of Fiscal Year 2001.
(b) The definition of "Applicable Base Rate Margin" set forth in
Section 1.1 of the Credit Agreement is hereby amended by adding the following
sentence to the end thereof.
Notwithstanding anything above to the contrary, during (a) the
Leverage Premium Period, the Applicable Base Rate Margin shall be
increased by an amount equal to the Leverage Premium and (b) any FCC
Premium Period, the Applicable Base Rate Margin shall be increased by an
amount equal to the FCC Premium.
(c) The definition of "Applicable LIBOR Rate Margin" set forth in
Section 1.1 of the Credit Agreement is hereby amended by adding the following
sentence to the end thereof:
Notwithstanding anything above to the contrary, during (a) the
Leverage Premium Period, the Applicable LIBOR Rate Margin shall be
increased by an amount equal to the Leverage Premium and (b) any FCC
Premium Period, the Applicable LIBOR Rate Margin shall be increased by
amount equal to the FCC Premium.
(d) The definition of "Leverage Ratio" set forth in Section 1.1 of the
Credit Agreement is hereby amended by adding the following sentence to the end
thereof:
Notwithstanding anything above to the contrary, for purposes of
calculation of the Leverage Ratio only for the fourth Fiscal Quarter of
Fiscal Year 2000 and the first two Fiscal Quarters of Fiscal Year 2001,
there shall be excluded from the calculation of
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(a) Total Debt the amount of the AV Non-Recourse Debt and (b) EBITDA
the amount of EBITDA attributable to AV.
(e) Section 2.3(c)(i) of the Credit Agreement is hereby amended by
deleting "." at the end thereof and inserting the following in lieu thereof:
; provided, further, however, notwithstanding anything above to the
contrary, with respect to any Swing line Advance outstanding at the
commencement of (A) the Leverage Premium Period, the rate applicable to
such Swing Line Advance shall be increased by an amount equal to the
Leverage Premium and (B) any FCC Premium Period, the rate applicable to
such Swing Line Advance shall be increased by an amount equal to the FCC
Premium.
(f) 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) 4.50 to 1 at the end of
any Fiscal Quarter through and including the second Fiscal Quarter of
Fiscal Year 2001, (b) 4.25 to 1 at the end of the Third Fiscal Quarter
of Fiscal Year 2001, and (c) 4.00 to 1 at the end of any Fiscal Quarter
thereafter.
(g) 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)
1.10 to 1 at the end of any Fiscal Quarter through and including the
third Fiscal Quarter of Fiscal Year 2001, (b) 1.15 to 1 at the end of
any Fiscal Quarter from and including the fourth Fiscal Quarter of
Fiscal Year 2001 through and including the third Fiscal Quarter of
Fiscal Year 2002, (c) 1.25 to 1 at the end of any Fiscal Quarter from
and including the fourth Fiscal Quarter of Fiscal Year 2002 through and
including the first Fiscal Quarter of Fiscal Year 2005 and (d) 1.05 to 1
at the end of any Fiscal Quarter thereafter.
(h) The Compliance Certificate is hereby amended to be in the form of
Exhibit E attached hereto.
2. 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 amendments provided in the
foregoing Section 1:
(a) the representations and warranties contained in the Credit Agreement
are true and correct on and as of the date hereof as if made on and as of such
date;
(b) no event has occurred and is continuing which constitutes a Default
or an Event of Default;
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(c) the Borrower has full power and authority to execute, deliver and
perform this Second Amendment, and the Credit Agreement, as amended by this
Second Amendment, the execution, delivery and performance of this Second
Amendment, and the Credit Agreement as amended by this Second Amendment, have
been duly authorized by all corporate action of the Borrower, and this Second
Amendment, and the Credit Agreement, as amended hereby, constitute the legal,
valid and binding obligations of the Borrower, enforceable in accordance with
their respective terms, except as enforceability may be limited by applicable
Debtor Relief Laws and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except as rights
to indemnity may be limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this Second
Amendment, or the Credit Agreement, as amended by this Second Amendment, nor the
consummation of any transactions herein or therein, will contravene or conflict
with any Law to which the Borrower is subject or any indenture, agreement or
other instrument to which the Borrower or any of its property is subject; and
(e) no authorization, approval, consent or other action by, notice to,
or filing with, any governmental authority or other Person, including the Board
of Directors of the Borrower, is required for the (i) execution, delivery or
performance by the Borrower of this Second amendment, and the Credit Agreement,
as amended by this Second Amendment, or (ii) acknowledgment of this Second
Amendment by any Guarantor.
3. CONDITIONS OF EFFECTIVENESS. This Second Amendment shall be
effective as of December 20, 2000, subject to the following:
(a) the Administrative Agent shall have received counterparts of this
Second Amendment executed by the Determining Lenders;
(b) the Administrative Agent shall have received counterparts of this
Second Amendment executed by the Borrower and acknowledged by each Guarantor;
(c) the Administrative Agent shall have received certified resolutions
of the Board of Directors of the Borrower authorizing (i) the execution,
delivery and performance of this Second Amendment, and (ii) the performance of
the Credit Agreement, as amended by this Second Amendment, and the other Loan
Documents; and
(d) the Administrative Agent shall have received in form and substance
satisfactory to the Administrative Agent, such other documents, certificates and
instruments as Lender shall require.
4. AMENDMENT FEE. The Borrower covenants and agrees to pay an amendment
fee to the Lenders which execute and deliver this Second Amendment to the
Administrative Agent (or its counsel) not later than 5:00 p.m., Dallas time,
December 19, 2000, in an amount equal to the product of (a) 0.25% multiplied by
(b)(i) with respect to each Lender having a portion of the
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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 one Business Day after the date
on which this Second Amendment becomes effective. The Borrower agrees that the
failure to pay the amendment fee provided in this Section 4 shall be an Event of
Default under Section 8.1(b)(ii) of the Credit Agreement.
5. GUARANTOR'S ACKNOWLEDGMENT. By signing below, each Guarantor (i)
acknowledges, consents and agrees to the execution, delivery and performance by
the Borrower of this Second 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 Second Amendment,
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.
6. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Second 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 amended by this Second
Amendment.
(b) The Credit Agreement, as amended by this Second Amendment, and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
7. COSTS, EXPENSES AND TAXES. The Borrower shall be obligated to pay
the costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Second Amendment and
the other instruments and documents to be delivered hereunder.
8. EXECUTION IN COUNTERPARTS. This Second 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 takes together shall constitute but one and
the same instrument.
9. GOVERNING LAW; BINDING EFFECT. This Second 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.
10. HEADINGS. Section headings in this Second Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Second Amendment for any other purpose.
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11. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS SECOND
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.
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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first above written.
CLUBCORP, INC.
By: /s/ JOHN M. MASSEY III
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Name: John M. Massey III
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Title Treasurer
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BANK OF AMERICA, N.A., as Administrative
Agent, Swing Line Bank, Issuing Bank, and as
a Lender
By: /s/ DAN M. KILLIAN
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Name: Dan M. Killian
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Title Managing Director
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BANK ONE, TEXAS, N.A.
By: /s/ THOMAS R. FREAS
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Name: Thomas R. Freas
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Title Managing Director
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WELLS FARGO BANK TEXAS, N.A., successor
to WELLS FARGO BANK (TEXAS), N.A.
By: /s/ ZACH JOHNSON
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Name: Zach Johnson
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Title Vice President
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CREDIT LYONNAIS NEW YORK BRANCH, as
Managing Agent and as a Lender
By: /s/ ATTILA KOC
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Name: Attila Koc
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Title Senior Vice President
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FIRST UNION NATIONAL BANK, as Managing
Agent and as a Lender
By: /s/ WILLIAM R. GOLEY
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William R. Goley
Vice President
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GUARANTY FEDERAL BANK, F.S.B., as Co-
Agent and as a Lender
By: /s/ ROBERT S. HAYES
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Name: Robert S. Hayes
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Title Senior Vice President
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BRANCH BANKING AND TRUST COMPANY,
as Co-Agent and as a Lender
By: /s/ CORY BOYTE
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Name: Cory Boyte
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Title Vice President
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COMERICA BANK, as a Co-Agent and as a
Lender
By: /s/ CAROL S. GERAGHTY
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Name: Carol S. Geraghty
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Title Vice President
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SOUTHTRUST BANK, an Alabama banking
corporation, as a Co-Agent and as a Lender
By: /s/ AMY LEE COLE
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Name: Amy Lee Cole
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Title Vice President
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FIRSTAR BANK, N.A.
By: /s/ GREGORY L. DRYDEN
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Gregory L. Dryden
Vice President
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COMPASS BANK
By: /s/ R. BRUCE FREY
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Name: R. Bruce Frey
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Title Vice President
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AMSOUTH BANK, successor in interest by merger
to Deposit Guaranty National Bank
By: /s/ MARK D. EVANS
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Name: Mark D. Evans
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Title Senior Vice President
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MELLON BANK, N.A.
By: /s/ CHARLES H. STAUB
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Name: Charles H. Staub
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Title Senior Vice President
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BANK OF TEXAS, N.A.
By: /s/ DAVID BROUSSARD, JR.
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Name: David Broussard, Jr.
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Title Sr. Vice President
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HIBERNIA NATIONAL BANK
By: /s/ MATTHEW H. BREAUX
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Matthew H. Breaux
Portfolio Manager
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TEXTRON FINANCIAL CORPORATION
By: /s/ RAMON J. MUNOZ
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Name: Ramon J. Munoz
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Title Division President
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DEBIS FINANCIAL SERVICES, INC.
By: /s/ RAYMOND M. MCGOWAN
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Name: Raymond M. McGowan
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Title Group Leader Portfolio Management
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BANKAUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ Francisco Ossino
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Name: Francisco Ossino
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Title Vice President
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By: /s/ David M. Harnisch
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Name: David M. Harnisch
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Title Senior Vice President
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FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
as attorney in fact
By: /s/ Gregory Stoeckle
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Name: Gregory Stoeckle
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Title Authorized Signatory
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AERIES FINANCE-II LTD.
By: INVESCO Senior Secured Management Inc.
as Sub-Managing Agent
By: /s/ Gregory Stoeckle
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Name: Gregory Stoeckle
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Title Authorized Signatory
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METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ JAMES R. DINGLE
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Name: James R. Dingle
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Title Director
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PPM SPYGLASS FUNDING TRUST
By: /s/ ANN E. MORRIS
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Name: Ann E. Morris
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Title Authorized Agent
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ELT, LTD.
By: /s/ ANN E. MORRIS
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Name: Ann E. Morris
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Title Authorized Agent
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HELLER FINANCIAL, INC.
By: /s/ SCOTT ZIEMKE
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Name: Scott Ziemke
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Title Vice President
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OCTAGON INVESTMENT PARTNERS III, LTD.
By: Octagon Credit Investors, LLC
as Sub-Investment Manager
By: /s/ MICHAEL B. NECHAMKIN
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Name: Michael B. Nechamkin
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Title Portfolio Manager
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OCTAGON INVESTMENT PARTNERS II, LLC
By: Octagon Credit Investors, LLC
as Sub-Investment Manager
By: /s/ MICHAEL B. NECHAMKIN
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Name: Michael B. Nechamkin
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Title Portfolio Manager
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MONUMENT CAPITAL LTD.
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By: /s/ ROBERT BAYER
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Name: Robert Bayer
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Title Vice President
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BALANCED HIGH-YIELD FUND II LTD.
By: BHF (USA) Capital Corporation, Acting as
Attorney-In-Fact
By: /s/ CHRISTOPHER J. RUZZI
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Name: Christopher J. Ruzzi
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Title Vice President
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By: /s/ NINA ZHOU
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Name: Nina Zhou
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Title Associate
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CYPRESSTREE SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ JEFFREY W. HEUER
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Name: Jeffrey W. Heuer
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Title Principal
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NORTH AMERICAN SENIOR FLOATING RATE
FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ JEFFREY W. HEUER
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Name: Jeffrey W. Heuer
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Title Principal
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BLACK DIAMOND INTERNATIONAL
FUNDING, LTD.
By: /s/ DAVID DYER
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Name: David Dyer
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Title Director
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GALAXY CLO 1999-1, LTD.
By: SAI Investment Adviser, Inc., its
Collateral Manager
By: /s/ CHRISTOPHER F. OCHS
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Name: Christopher F. Ochs
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Title Authorized Agent
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ELC (CAYMAN) LTD. 1999-II
By: /s/ JOHN W. STELWAGER
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Name: John W. Stelwager
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Title Director
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AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.
as Portfolio Advisor
By: /s/ GREGORY STOECKLE
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Name: Gregory Stoeckle
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Title Authorized Signatory
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OSPREY INVESTMENTS PORTFOLIO
By: CITIBANK, N.A., as Manager
By: /s/ Daniel Slotkin
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Name: Daniel Slotkin
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Title Vice President
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CAPTIVA FINANCE LTD.
By: /s/ David Dyer
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Name: David Dyer
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Title Director
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APEX (IDM) CDO I, LTD.
By: /s/ John W. Stelwager
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Name: John W. Stelwager
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Title Director
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BLACK DIAMOND CLO 2000-1 LTD.
By: /s/ DAVID DYER
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Name: David Dyer
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Title Director
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BLACK DIAMOND CLO 1998-1 LTD.
By: /s/ JOHN H. CULLIDAN
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Name: John H. Cullidan
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Title Director
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