Loan Agreement - Textron Financial Corp., Dorfinco Corp. and ClubCorp Inc.
LOAN AGREEMENT
LOAN AGREEMENT (this "Loan Agreement") dated June 4, 2003, is made and
executed by TEXTRON FINANCIAL CORPORATION, a Delaware corporation ("Textron"),
DORFINCO CORPORATION, a Delaware corporation ("Dorfinco") (collectively Textron
and Dorfinco are referred to as Lender"), CLUBCORP, INC., a Delaware corporation
("ClubCorp"), and each of the undersigned affiliates of ClubCorp (referred to
herein individually as a "Borrower" and collectively as the "Borrowers").
R E C I T A L S:
A. Pursuant to the terms of a certain Loan Commitment dated April 7, 2003
(as subsequently amended in writing from time to time, the "Commitment"), Lender
has agreed to extend loans to each of the Borrowers in the aggregate original
principal amount of $56,645,000.00 (such loans are collectively called the
"Loans").
B. Lender, the Borrowers and ClubCorp now wish to enter into this Loan
Agreement to describe certain terms and conditions of the Loans.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, Lender, the Borrowers and
ClubCorp each hereby agree as follows:
1. Definitions. As used herein, the following terms have the following
definitions:
(a) Aggregate DSCR: The ratio determined by Lender from time to time
by dividing the Net Income of all of the Borrowers by the Debt Service
payable on all of the Loans.
(b) Cap Agreement: That certain Interest Rate Protection Agreement
issued by Bank of America, N.A. to ClubCorp and dated June 4, 2003.
(c) ClubCorp Guaranty: The Guaranty Agreement executed and delivered
by Club Corp to Lender concurrently herewith.
(d) CPI: The Consumer Price Index - All Urban Consumers (Current
Series), as published by the Bureau of Labor Statistics.
(e) Debt Service: All principal, interest and other payments due by
the Borrowers on the Loans, with interest on the Variable Rate Principal to
be calculated based upon the greater of (i) the then-current Variable
Interest Rate or (ii) eight percent (8%) per annum, and with interest on
the Fixed Rate Principal to be calculated at the Fixed Interest Rate. Debt
Service shall include, without limitation, any servicing fees paid on or
with respect to the Loans as more particularly described in that certain
Servicing and Arrangement Fee Letter dated April 7, 2003.
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(f) DSCR: The ratio determined by Lender from time to time by dividing
the Net Income of a Borrower by the Debt Service payable by such Borrower.
(g) Event of Default: An Event of Default as defined in the Loan
Documents.
(h) Fiscal Month: A twenty-eight (28) day period, or a portion
thereof, commencing on the first day following the termination of the prior
Fiscal Month. The first Fiscal Month may be a short Fiscal Month commencing
on the date hereof and ending on the date which would have been the last
date for such Fiscal Month if the Fiscal Year in which this Loan Agreement
is executed had begun on the Wednesday following the last Tuesday in the
December immediately preceding the date hereof. Within ten (10) days after
the date the Loans are funded, ClubCorp shall deliver a written notice to
Lender stating the final day of the first Fiscal Month.
(i) Fiscal Year: A period commencing on the Wednesday following the
last Tuesday in December of each calendar year and ending on the last
Tuesday of the next following December, provided, however, that the first
Fiscal Year will be a short Fiscal Year commencing on the date hereof and
ending on the last Tuesday of the following December.
(j) Fixed Interest Rate: 5.9% per annum.
(k) Fixed Rate Principal: The portion of the unpaid principal balance
of each of the Notes which bears interest at the Fixed Interest Rate.
(l) Guaranty Agreements: The Guaranty Agreements guaranteeing the
payment of the Loans executed from time to time by each of the Borrowers.
(m) IW Golf: IW Golf Club, Inc., a California corporation which is one
of the Borrowers under this Loan Agreement.
(n) License Agreements: (i) the license dated July 14, 1976, issued by
Coachella Valley County Water District in favor of Indian Wells Country
Club Estates and subsequently assigned to IW Golf, (ii) the license dated
March 13, 1984, issued by Coachella Valley Water District in favor of
Indian Wells Country Club Estates and subsequently assigned to IW Golf, and
(iii) any replacements of either of the foregoing including, without
limitation, any easement agreement executed and delivered in replacement of
either of the foregoing.
(o) Loan Documents: The Notes, the Mortgages, the ClubCorp Guaranty,
the Guaranty Agreements and the other documents executed by the Borrowers
and ClubCorp from time to time to evidence or secure the Loans, as
restated, modified and amended from time to time.
(p) Mortgages: The Mortgage, Deed of Trust, Deed to Secure Debt or
other form of security instrument executed by each Borrower covering the
Property owned or leased by each Borrower and securing the payment of the
Loans and the performance of all of the obligations of the Borrowers under
the Loan Documents.
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(q) Net Income: Each Borrower's income from the operation and
management of its Property, after deducting all operating expenses, but
prior to the deduction of income taxes, depreciation and Debt Service. Net
Income shall not include income from the sale of refundable memberships at
any Property (unless such memberships are not refundable for a period of
thirty (30) years or more from the date on which they are purchased, in
which case the income from the sale of such memberships may be included in
Net Income). For the purpose of calculating Net Income, operating expenses
for each Property shall be deemed to include (i) consulting fees in an
amount equal to the greater of (A) $200,000.00 for the first Fiscal Year,
with such amount to be increased each Fiscal Year thereafter by the same
percentage as any increase in the CPI applicable to such Fiscal Year (as
determined by Lender), or (B) the consulting fees and compensation actually
paid each Fiscal Year, and (ii) expenditures for capital improvements (or a
reserve therefor) equal to two percent (2%) of the annual gross revenues of
each Property.
(r) Notes: The promissory notes being executed by the Borrowers
concurrently herewith, made payable to Lender and evidencing the Loans made
to each Borrower as the same may be amended, restated, renewed, modified or
extended from time to time.
(s) Prepayment Premium. The prepayment premium in connection with the
Variable Principal Prepayment and Fixed Principal Prepayment as described
in the Notes.
(t) Property: The golf course and related real and personal property
owned or leased by each Borrower.
(u) Replacement Loan. A loan funded by Lender to an affiliate of
ClubCorp and secured by a first lien and security interest covering a
Replacement Property.
(v) Replacement Property. A golf course and related personal property
owned by an affiliate of ClubCorp.
(w) Variable Interest Rate: The Variable Interest Rate as defined in
the Notes.
(x) Variable Rate Principal: The portion of the unpaid principal
balance of each of the Notes which bears interest at the Variable Interest
Rate as provided in the Notes.
2. Financial Covenants: Each of the Borrowers covenant and agree as
follows:
(a) The Borrowers shall at all times maintain an Aggregate DSCR of
1.40:1 or greater. In addition, each Borrower shall at all times maintain a
DSCR of 1.30:1 or greater. Aggregate DSCR and DSCR shall each be calculated
by Lender from the monthly financial statements delivered to Lender by each
of the Borrowers based on the immediately preceding thirteen (13) Fiscal
Month period. Lender shall have the right to determine, in the exercise of
Lender's reasonable business judgment, whether any Borrower has deferred
any expenses or shifted the time of payment of any expenses solely for the
purpose of complying with the provisions of this Loan Agreement
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regarding Aggregate DSCR and/or DSCR and not in the exercise of prudent
business judgment. If Lender makes any such determination, Lender shall
have the right to make reasonable and appropriate adjustments to the
calculation of Net Income for the purpose of determining Aggregate DSCR or
DSCR.
(b) Within one hundred twenty (120) days after the expiration of each
Fiscal Year, each Borrower shall deliver to Lender (i) financial statements
for such Borrower as of the final day of the immediately preceding Fiscal
Year and for the thirteen (13) Fiscal Months then ended, certified by an
officer of such Borrower as being true, correct and complete and as having
been prepared in accordance with generally accepted accounting principles
consistently applied with prior accounting periods, setting out in
reasonable detail to the satisfaction of Lender all income and expenditures
from the operation of its Property, and (ii) a current annual rent roll for
its Property (if any leases exist), certified by an officer of such
Borrower as being true, correct and complete. In addition, each Borrower
shall deliver to Lender copies of its annual tax worksheets within sixty
(60) days after the date such Borrower files its tax return each Fiscal
Year.
(c) Within thirty (30) days following the end of each Fiscal Month,
each Borrower shall deliver to Lender copies of the monthly operating
statements with respect to its Property for the immediately preceding
Fiscal Month, certified by an authorized officer of such Borrower to be
true, correct and complete. Each such monthly financial statement shall
contain, at a minimum, information for each Fiscal Month as to the total
number of rounds of golf played at such Property, the number of rounds
played by members, the total number of rounds of public play, the number of
rounds of public play with discounted cards, and the revenue and expense
items for such Property, all of which must be in form and substance
satisfactory to Lender.
(d) ClubCorp hereby agrees to pay all amounts and to take all other
actions necessary to maintain the Cap Agreement in full force and effect.
At least thirty (30) days prior to the expiration of the term of the Cap
Agreement, or any renewal thereof, ClubCorp shall deliver to Lender a
renewal of the Cap Agreement for a period of at least one (1) year and in
form and content acceptable to Lender. ClubCorp's failure to either
maintain the Cap Agreement in full force and effect or to deliver any such
renewal of the Cap Agreement to Lender in accordance with the requirements
of this Section 2(d) shall constitute an Event of Default. ClubCorp hereby
grants to Lender a security interest in and to the Cap Agreement.
3. Limitation on Prepayment Rights.
(a) Notwithstanding anything in the Notes to the contrary, but subject
to Section 4 below, (i) not more than three (3) of the Loans may be prepaid
in full, and (ii) in order to obtain a release of the Mortgage securing any
Loan to be prepaid in full, the Borrower making such prepayment shall be
required to pay to Lender one hundred ten percent (110%) of the outstanding
principal balance of the Loan to be prepaid, all accrued but unpaid
interest thereon and the applicable Prepayment Premium. Any excess
principal payment received by Lender in connection with any such prepayment
shall be
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applied by Lender equally to Variable Rate Principal and Fixed Rate
Principal on one (1) or more of the Loans as determined by Lender in its
sole discretion.
(b) Notwithstanding anything contained in the Notes to the contrary, a
Borrower shall have the right to prepay its Loan in order to comply with
one (1) or both of the covenants set forth in Section 2(a) above, provided
that each such prepayment must be accompanied by the Prepayment Premium.
(c) Lender shall have the right to allocate any partial prepayment
received on a Loan (but not funds paid by a Borrower which are intended to
prepay one (1) or more of the Loans in full or which are paid in order to
comply with Section 2(a) above) to one (1) or more of the other Loans in
such order as Lender may elect in its sole discretion.
4. Asset Replacement. In the event any Borrower desires to prepay its Loan
and obtain a release of the Mortgage encumbering its Property, then provided
that no Event of Default has occurred which is continuing, ClubCorp shall have
the right, up to three (3) times during the term of the Loans, to cause an
affiliate of ClubCorp to obtain a Replacement Loan from Lender secured by a
first lien and security interest covering a Replacement Property, which
Replacement Loan must provide a DSCR equal to or greater than the DSCR
attributed to the Property which secures the Loan to be prepaid; provided,
however, that if IW Golf desires to prepay its Loan pursuant to this Section 4,
the DSCR for the Property owned by IW Golf shall be calculated for the purposes
of this Section 4 as if the Loan to IW Golf was in the principal amount of
$21,230,000.00. Any Replacement Loan funded by Lender shall be on the same terms
and conditions as the Loans and shall be coterminous with the Loans. If Lender
funds a Replacement Loan with a principal balance less than the unpaid principal
balance of the Loan to be prepaid, the Borrower which is prepaying its Loan
shall be obligated to pay the Prepayment Premium based on the difference between
the two (2) amounts. In addition, ClubCorp or the owner of the Replacement
Property shall pay an asset replacement fee to Lender upon the funding of any
Replacement Loan in an amount equal to one-half of one percent (.50%) of the
original principal amount of the Replacement Loan, as well as all costs, fees
and expenses incurred by Lender in connection with the Replacement Loan. Nothing
herein shall obligate Lender to fund a Replacement Loan, and ClubCorp and the
Borrowers acknowledge that any Replacement Loan shall be subject to Lender's
standard underwriting procedures and credit approval process.
5. Cross Default and Cross Collateralization. Each of the Borrowers further
covenant and agree as follows: Each Loan and all obligations of the Borrower
thereunder shall be and are hereby expressly cross-defaulted and
cross-collateralized with any and all Loans and with any and all other
obligations of any other Borrower to Lender, whether now existing or arising in
the future (collectively referred to herein as the "Borrower/Lender
Obligations"), such that the occurrence of any Event of Default under any of the
Borrower/Lender Obligations shall be a default under all of the Borrower/Lender
Obligations and under all documents and instruments evidencing and/or securing
the Borrower/Lender Obligations. If any such Event of Default occurs, Lender
shall be entitled to exercise any and all rights and remedies including, without
limitation, foreclosure against the collective collateral for the
Borrower/Lender Obligations in any order and in any combination as Lender shall
desire, it being expressly understood and agreed by each Borrower that the
collateral securing any part of the
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Borrower/Lender Obligations is (and shall become to the extent of the
Borrower/Lender Obligations created in the future) collateral for all such
ClubCorp/Lender Obligations. Nothing in this Loan Agreement shall limit the
rights and remedies of Lender against a Borrower after the occurrence of an
Event of Default under the Loan Documents applicable to such Borrower's Loan.
6. Assignment. This Loan Agreement may be endorsed, assigned and
transferred in whole or in part by Lender, and any such holder and assignee of
this Loan Agreement shall succeed to and be possessed of the rights of Lender
under this Loan Agreement to the extent transferred and assigned.
Notwithstanding the foregoing, Lender agrees that it shall not assign more than
fifty percent (50%) of its rights under this Loan Agreement to any third party
without the prior written consent of ClubCorp, which consent shall not be
unreasonably withheld or delayed. This Loan Agreement and the rights of ClubCorp
and the Borrowers hereunder may not be assigned by either ClubCorp or the
Borrowers.
7. Entire Agreement. THIS LOAN AGREEMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS LOAN
AGREEMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS LOAN AGREEMENT, AND
MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS WITH THE PARTIES HERETO. THERE ARE NO
ORAL AGREEMENTS AMONG THE PARTIES HERETO. THIS LOAN AGREEMENT SHALL SUPERSEDE
AND CONTROL OVER THE SIMILAR PROVISIONS SET FORTH IN THE COMMITMENTS.
8. Notices. Any and all notices, elections or demands permitted or required
to be made under this Loan Agreement must be in writing, and shall be deemed to
have been given, served and effective on the earlier of (a) the date of receipt
by the addressee or (b) three (3) business days after deposit in the United
States mail, registered or certified, return receipt requested, first-class
postage prepaid, addressed to Lender, ClubCorp or the Borrowers as follows:
The address of Textron is:
Textron Financial Corporation
11575 Great Oaks Way, Suite 210
Alpharetta, Georgia 30022
Attn: President, Golf Finance
The address of Dorfinco is:
Dorfinco Corporation
71 Washington Street
Reno, Nevada 89503
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The address of the Borrowers and ClubCorp is:
ClubCorp, Inc.
3030 LBJ Freeway
Suite 700
Dallas, Texas 75243-7703
Attn: John M. Massey, III
The address to which any notice or other writing must be sent to either Party
hereto may be changed upon written notice given by such Party as provided above.
Notices given by Lender to any Borrower may be given delivered by Lender to
ClubCorp on behalf of such Borrower.
9. Waiver of Conditions. Any condition imposed herein by Lender may, in
Lender's sole discretion, be waived by Lender in a writing specifying the
condition waived. No waiver of any condition shall, unless said waiver so
states, constitute a waiver of the condition in question in the future.
10. Headings. The headings of the Sections of this Loan Agreement are only
for convenience of reference and in no way define, limit or describe the scope
or intent of this Loan Agreement, or the proper construction hereof, and are not
to be considered a part hereof and shall not limit or otherwise affect any of
the terms hereof.
11. Further Acts. The Borrowers agree to execute and deliver to Lender from
time to time such certifications as Lender may reasonably request with respect
to the performance by the Borrowers of their respective obligations under this
Loan Agreement and the Loan Documents. In addition, the Borrowers agree to
execute and deliver to Lender from time to time such other documents and
instruments as may be reasonably requested in order to effectuate the terms of
this Loan Agreement.
12. Partial Invalidity. Wherever possible, each provision of this Loan
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Loan Agreement shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Loan Agreement.
13. Time of Essence. Time shall be of the essence with respect to any
payment or performance due from the Borrowers hereunder.
14. No Beneficiaries. This Loan Agreement is for the benefit of the parties
hereto and, subject to Section 6 above, their respective successors and assigns,
but is not intended to benefit any other person or entity.
15. Gender. Whenever the singular or plural number, or the masculine,
feminine or neuter gender is used herein, it shall legally include the other.
16. No Amendments. Neither this Loan Agreement nor any provision hereof may
be changed, waived, discharged, modified or terminated orally, but only by an
instrument in writing
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signed by the Party against whom enforcement of the change, waiver, discharge,
modification or termination is sought.
17. Governing Law. This Loan Agreement has been executed and delivered in,
and shall be governed by and construed in accordance with the laws of, the State
of Georgia. ClubCorp, the Borrowers and Lender acknowledge that they have all
participated in the drafting of this Loan Agreement and that none of Lender,
ClubCorp or the Borrowers shall be entitled to the benefit of the legal
principle that a document is to be construed against its draftsman.
18. Counterparts. This Loan Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
agreement.
19. Miscellaneous. Nothing contained herein or in the Notes or any of the
Loan Documents, nor the acts or omissions of the parties hereto, shall be
construed to create a cotenancy, partnership, joint venture or similar
relationship between the Borrowers and Lender. The relationship between the
Borrowers and Lender is the relationship of "debtor" and "creditor." The
Borrowers hereby indemnify and hold Lender harmless from and against any and all
suits, actions, claims, proceedings (including third party proceedings),
damages, losses, liabilities and expenses (including, without limitation,
reasonable attorneys' fees) which may be incurred by or asserted against Lender
with respect to any claim or assertion which, if true, would be inconsistent
with or contradict the statements made in the preceding two sentences. The
provisions of this Section 19 shall survive the repayment of the Loans.
20. Default. The occurrence of a default by ClubCorp or by any of the
Borrowers in any of their respective obligations under this Loan Agreement shall
constitute an Event of Default under the Loan Documents.
21. WAIVER OF JURY TRIAL. FOR AND IN CONSIDERATION OF LENDER'S FUNDING OF
THE LOANS, CLUBCORP AND EACH OF THE BORROWERS, BEING SOPHISTICATED GOLF COURSE
OPERATORS AND PARTICIPANTS IN SOPHISTICATED REAL ESTATE VENTURES, AND HAVING
CONSULTED WITH COUNSEL OF THEIR CHOOSING, HEREBY WAIVE ANY RIGHT TO TRIAL BY
JURY WITH RESPECT TO ANY ACTION OR PROCEEDING (I) BROUGHT BY CLUBCORP OR ANY OF
THE BORROWERS, LENDER OR ANY OTHER PERSON RELATING TO (A) THE LOANS OR (B) THE
LOAN DOCUMENTS, OR (II) TO WHICH LENDER IS A PARTY. CLUBCORP AND EACH OF THE
BORROWERS HEREBY AGREE THAT THIS LOAN AGREEMENT CONSTITUTES A WRITTEN CONSENT TO
WAIVER OF TRIAL BY JURY, AND CLUBCORP AND EACH OF THE BORROWERS DO HEREBY
CONSTITUTE AND APPOINT LENDER ITS TRUE AND LAWFUL ATTORNEY-IN-FACT, WHICH
APPOINTMENT IS COUPLED WITH AN INTEREST, AND CLUBCORP AND EACH OF THE BORROWERS
DO HEREBY AUTHORIZE AND EMPOWER LENDER, IN THE NAME, PLACE AND STEAD OF CLUBCORP
AND EACH OF THE BORROWERS, TO FILE THIS LOAN AGREEMENT WITH THE CLERK OR JUDGE
OF ANY COURT OF COMPETENT JURISDICTION AS A STATUTORY WRITTEN CONSENT TO WAIVER
OF TRIAL BY JURY. CLUBCORP AND EACH OF THE BORROWERS
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ACKNOWLEDGE THAT THEIR WAIVER OF TRIAL BY JURY HAS BEEN MADE KNOWINGLY,
INTENTIONALLY AND WILLINGLY BY CLUBCORP AND EACH OF THE BORROWERS AS PART OF A
BARGAINED FOR LOAN TRANSACTION.
22. License Agreements. In the event either or both of the License
Agreements is revoked or terminated for any reason, such revocation or
termination shall constitute an Event of Default and shall entitle Lender to
exercise all of its rights and remedies under the Loan Documents including,
without limitation, the rights and remedies described in Section 5 of this Loan
Agreement.
23. Indian Wells Indemnity. IW Golf hereby indemnifies Lender and agrees to
hold and defend Lender harmless from and against any and all causes of action,
claims, damages, demands, liabilities, losses, costs or expenses at any time
suffered or incurred by Lender or asserted against Lender in connection with the
pending lawsuit styled Stanley Young, et al. v. Asbestos Defendants (Case No.
300870) including, without limitation, any claims for indemnification by IWCC
Acquisition Corporation, Inc.
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EXECUTED AND DELIVERED as of the date first above written.
TEXTRON:
TEXTRON FINANCIAL CORPORATION,
a Delaware corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
DORFINCO:
DORFINCO CORPORATION,
a Delaware corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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CLUBCORP:
CLUBCORP, INC.,
a Delaware corporation
By:
-------------------------------------
John M. Massey, III
Treasurer
BORROWERS:
CANYON GATE AT LAS VEGAS, INC.
d/b/a Canyon Gate Country Club,
a Nevada corporation
By:
-------------------------------------
John M. Massey, III
Vice President
CLUBCORP GOLF OF NORTH CAROLINA,
L.L.C., a Delaware limited liability
company
By:
-------------------------------------
John M. Massey, III
Vice President
HEARTHSTONE COUNTRY CLUB, INC.
a Texas corporation
By:
-------------------------------------
John M. Massey, III
Vice President
IW GOLF CLUB, INC.,
d/b/a Indian Wells Golf Club,
a California corporation
By:
-------------------------------------
John M. Massey, III
Vice President
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INDIGO RUN ASSET CORP.,
d/b/a Golden Bear Golf Club at Indigo Run
and d/b/a The Golf Club at Indigo Run,
a South Carolina corporation
By:
-------------------------------------
John M. Massey, III
Vice President
CLUBCORP GOLF OF CALIFORNIA,
L.L.C., d/b/a Morgan Run Resort & Club,
a Delaware limited liability company
By:
-------------------------------------
John M. Massey, III
Vice President
CLUBCORP GOLF OF NORTH CAROLINA,
L.L.C., d/b/a Nags Head Golf Links,
a Delaware limited liability company
By:
-------------------------------------
John M. Massey, III
Vice President
RIVER CREEK COUNTRY CLUB, INC.,
a Virginia corporation
By:
-------------------------------------
John M. Massey, III
Vice President
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KNOLLWOOD COUNTRY CLUB, INC.,
an Indiana corporation
By:
-------------------------------------
John M. Massey, III
Vice President
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