AMENDMENT NO. 3 AND WAIVER dated as of March 31,
2000 (this "Amendment") to the Amended and Restated
Credit, Security, Guaranty and Pledge Agreement dated as
of December 2, 1998 as amended and restated as of
October 15, 1999 (as the same may be further amended,
supplemented and otherwise modified from time to time,
the "Credit Agreement") by and among FAMILY GOLF
CENTERS, INC., a Delaware corporation (the "Company"),
the GUARANTORS name therein, the LENDERS named therein
and THE CHASE MANHATTAN BANK, a New York banking
corporation, as Agent for the lenders (in such capacity,
the "Agent").
WHEREAS, subject to the terms and conditions hereof, the Credit Parties, the
Lenders and the Agent desire to amend certain Sections of the Credit Agreement,
and the Lenders and the Agent desire to waive compliance by the Credit Parties
with certain Sections of the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
1. AMENDMENTS. Subject to the satisfaction of the conditions precedent
set forth in Section 4 hereof, the Credit Agreement is hereby amended as of the
Effective Date as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by
inserting in the correct alphabetical sequence the following new
definition:
"Budget' shall mean the six-week cash forecast prepared by the
Company attached hereto as Schedule 2, which forecast sets forth, among
other things, the Company's anticipated receipts and disbursements for
the period commencing the week ending March 31, 2000 through and
including the week ending May 5, 2000."
(b) Section 3.03(b) of the Credit Agreement is hereby amended by adding
to the end thereof the following sentence:
"Notwithstanding the foregoing or anything else herein to the contrary,
during the period from April 1, 2000 through May 5, 2000, (x) the
Company may retain fifty percent (50%) of Net Cash Proceeds derived
from the sale of the capital stock of Eagle Quest Golf Centers, Inc. to
American Golf Corporation received during such period (unless pursuant
to the formula set forth above the Company is entitled to retain less
than fifty percent (50%) of such Net Cash Proceeds, in which case the
Company may retain such lesser
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amount) and shall use such amount to prepay Tranche A Loans until the
Tranche A Loans are repaid in full, and the Company shall pay fifty
percent (50%) (unless pursuant to the formula set forth above the
Company is required to pay more than fifty percent (50%) of such Net
Cash Proceeds, in which case the Company shall pay such higher amount)
of such Net Cash Proceeds to the Lenders to permanently prepay Tranche
B Loans then outstanding and (y) except as set forth in clause (x) of
this Section, the Company may retain sixty percent (60%) of Net Cash
Proceeds received during such period (unless pursuant to the formula
set forth above the Company is entitled to retain less than sixty
percent (60%) of such Net Cash Proceeds, in which case the Company may
retain such lesser amount) and shall use such amount to prepay Tranche
A Loans until the Tranche A Loans are repaid in full, and the Company
shall pay forty percent (40%) (unless pursuant to the formula set forth
above the Company is required to pay more than forty percent (40%) of
such Net Cash Proceeds, in which case the Company shall pay such higher
amount) of such Net Cash Proceeds to the Lenders to permanently prepay
Tranche B Loans then outstanding."
(c) Section 3.03(d) of the Credit Agreement is hereby amended by adding
to the chart set forth therein the following:
"Date Principal Amount
----- ----------------
May 5, 2000 $5,500,000"
(d) Article VI of the Credit Agreement is hereby amended by adding to
the end thereof the following new Section 6.27 and Section 6.28:
"Section 6.27. Compliance with Budget. Comply with and in all
respects operate in strict accordance with the disbursements set forth
in the Budget, including, without limitation, by not disbursing for any
line item on a cumulative basis during the Budget period any amounts in
excess of the forecasted disbursements for such line item.
Section 6.28. Amendment to Keen Realty Agreement. No later
than April 5, 2000, deliver to the Agent a fully executed amendment to
the agreement between the Company and Keen Realty Consultants Inc.
which amendment shall set forth the release price for each property
subject to the agreement."
(e) The Credit Agreement is hereby amended by inserting in the correct
numerical sequence a new Schedule 2 in the form of Exhibit A hereto.
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2. WAIVERS.
(a) Compliance with (i) Sections 7.13(a) and (c) of the Credit
Agreement, (ii) Section 6.16 of the Credit Agreement, but only with respect to
the Company's obligation thereunder to add additional directors to its board of
directors by March 31, 2000 and (iii) Section 8.01(f)(vii) of the Credit
Agreement is hereby waived for the period commencing April 1, 2000 to and
including 5:00 p.m. (New York City time) on May 5, 2000 (the "Waiver Period");
provided that (i) any breach during the Waiver Period in the timely performance,
observance or fulfillment of any of the terms or conditions contained in this
Amendment shall constitute an Event of Default under the Credit Agreement and,
unless the Agent and the requisite number of Lenders otherwise agree in writing,
shall result in an immediate termination of the effectiveness of the waivers
contained herein; and (ii) an Event of Default shall be deemed to have occurred
as of the close of business on the Waiver Termination Date (as defined below) if
the Company is not in compliance as of such date with Sections 7.13(a) and (c)
of the Credit Agreement at the levels set forth in the Credit Agreement as of
the date hereof without giving effect to the waivers contained herein. In
addition, the waivers provided for above shall automatically terminate upon the
failure by the Company to comply in any respect with Section 6.27 of the Credit
Agreement. As used herein, the term "Waiver Termination Date" shall mean 5:00
p.m. on May 5, 2000 (New York City time), or such later date as may be agreed
upon in writing by the Agent and the Required Lenders. Upon the occurrence of
any Event of Default, the Agent and the Lenders shall have all rights and
remedies available to them under the Loan Documents, at law or otherwise with
respect to each Event of Default, which rights and remedies are hereby expressly
reserved.
(b) Compliance with Section 6.03(a) of the Credit Agreement, but only
with respect to the requirement therein that the report of Xxxxxxx X. Xxxxxx &
Company, LLC or other certified public accountants shall be unqualified, is
hereby waived only with respect to the report accompanying the financial
statements of the Company and its Consolidated Subsidiaries for the fiscal year
ending December 31, 1999.
3. REPRESENTATIONS AND WARRANTIES. The Credit Parties represent and
warrant that, after giving effect to this Amendment:
(a) the representations and warranties contained in the Credit
Agreement are true and correct in all material respects on and as of the date
hereof as if such representations and warranties had been made on and as of the
date hereof (except to the extent that any such representations and warranties
specifically relate to an earlier date); and
(b) no Default or Event of Default will have occurred and be continuing
on and as of the date hereof.
4. CONDITIONS PRECEDENT. The effectiveness of this Amendment is subject
to the satisfaction in full of each of the conditions precedent set forth in
this Section 4 (the date on which all such conditions have been satisfied being
herein called the "Effective Date"):
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(a) the Agent shall have received counterparts of this Amendment which,
when taken together, bear the signatures of the Company, each Guarantor, the
Agent and each of the requisite number of Lenders;
(b) all legal matters incident to this Amendment shall be satisfactory
to Xxxxxx, Xxxxx & Bockius LLP, counsel to the Agent; and
(c) all fees and disbursements of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel
to the Agent, PricewaterhouseCoopers LLC, professional adviser to the Agent's
counsel and other fees, costs and expenses of the Agent and the Lenders which
are owing from the Company and the Guarantors under the Credit Agreement or
otherwise shall have been paid in full.
5. MISCELLANEOUS.
(a) Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement.
(b) Except as expressly amended hereby, the Credit Agreement shall
remain in full force and effect in accordance with the original terms thereof.
(c) The amendments and waivers herein contained are limited
specifically to the matters set forth above and do not constitute directly or by
implication an amendment or waiver of any other provision of Credit Agreement or
any default which may occur or may have occurred under the Credit Agreement.
(d) Should there be a need for further amendments or waivers with
respect to the matters addressed herein or any other matters, requests for such
amendments or waivers shall be evaluated by the Lenders when formally requested,
in writing, by the Company, and the Lenders may deny any such requests for any
reason in their sole discretion.
(e) This Amendment may be executed in one or more counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute but one Amendment. Facsimile signatures at the foot hereof shall be
given the same effect as originals.
(f) This Amendment shall constitute a Loan Document.
(g) This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York without regard to the principles of
conflicts of law.
(h) The Company agrees to pay all out-of-pocket expenses incurred by
the Agent in connection with the preparation, execution and delivery of this
Amendment, including, but not limited to, the reasonable fees and disbursements
of counsel for the Agent.
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(i) The Credit Parties acknowledge that they have no existing defense,
counterclaim, offset, cross-complaint, claim or demand of any kind or nature
whatsoever that can be asserted to reduce or eliminate all or any part of their
respective liability to pay the Obligations under or in respect of the Credit
Agreement and all other Loan Documents. The Credit Parties hereby release and
forever discharge the Agent, the Lenders and all of their officers, directors,
employees, agents, advisors and attorneys from any and all actions, causes of
action, debts, dues, claims, demands, liabilities and obligations of every kind
and nature, both in law and in equity, known or unknown, whether matured or
unmatured, absolute or contingent.
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IN WITNESS WHEREOF, the Company, the Guarantors, the Agent and the Lenders, have
caused this Amendment to be duly executed by their duly authorized officers, all
as of the day and year first above written.
FAMILY GOLF CENTERS, INC.
By:
-----------------------------------
Name:
Title:
TPT EL SEGUNDO, INC.
GLOBAL GOLF/GAVILAN
INDIAN RIVER FAMILY GOLF CENTERS, INC.
TUCSON FAMILY GOLF CENTERS, INC.
CINCINNATI FAMILY GOLF CENTERS, INC.
ST. LOUIS FAMILY GOLF CENTERS, INC.
WEST PALM BEACH FAMILY GOLF CENTERS, INC.
SAN XXXX FAMILY GOLF CENTERS, INC.
EASTON FAMILY GOLF CENTERS, INC.
XXXXXXX'X ISLAND FAMILY GOLF CENTERS, INC.
PRIVATIZATION PLUS, INC.
WESTMINSTER FAMILY GOLF CENTERS, INC.
CAROLINA SPRINGS FAMILY GOLF CENTERS, INC.
ORIENT ASSOCIATES INTERNATIONAL, INC.
SKYDRIVE ALLEY POND COMPANY, INC.
SKYDRIVE GREENBURGH CO., INC.
SKYCON CONSTRUCTION CO., INC.
SKYDRIVE WILLOWBROOK, NJ, INC.
SKYDRIVE CO., INC.
PELHAM FAMILY GOLF CENTERS, INC.
RICHMOND FAMILY GOLF CENTERS, INC.
PEACHTREE FAMILY GOLF CENTERS, INC.
ALPHARETTA FAMILY GOLF CENTERS, INC.
VALLEY VIEW FAMILY GOLF CENTERS, INC.
MESA FAMILY GOLF CENTERS, INC.
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VIRGINIA BEACH FAMILY GOLF CENTERS, INC.
DENVER FAMILY GOLF CENTERS, INC.
FLANDERS FAMILY GOLF CENTERS, INC.
MARGATE FAMILY GOLF CENTERS, INC.
BROOKLYN FAMILY GOLF CENTERS, INC.
LAKE GROVE FAMILY GOLF CENTERS, INC.
GOLDEN SPIKES, INC.
WHITEHALL FAMILY GOLF CENTERS, INC.
SPORTS PLUS PROPERTIES, INC.
SPORTS PLUS PROPERTIES, LLC
GENPROP, LLC
ICEWORKS OF AMERICA, INC.
COMMACK FAMILY GOLF CENTERS, INC.
GREENVILLE FAMILY GOLF CENTERS, INC.
CHICAGO FAMILY GOLF CENTERS, INC.
FLEMINGTON FAMILY GOLF CENTERS, INC.
YORKTOWN FAMILY GOLF CENTERS, INC.
THE PRACTICE TEE, INC.
THE SEVEN IRON, INC.
C.B. FAMILY GOLF CENTERS, INC.
DARLINGTON FAMILY GOLF CENTERS, INC.
MAINEVILLE FAMILY GOLF CENTERS, INC.
MILWAUKEE FAMILY GOLF CENTERS, INC.
OLNEY FAMILY GOLF CENTERS, INC.
PALM DESERT FAMILY GOLF CENTERS, INC.
BROWARD FAMILY GOLF CENTERS, INC.
ENGLEWOOD FAMILY GOLF CENTERS, INC.
RALEIGH FAMILY GOLF CENTERS, INC.
TEMPE FAMILY GOLF CENTERS, INC.
FEDERAL WAY FAMILY GOLF CENTERS, INC.
COUNTY LINE FAMILY GOLF CENTERS, INC.
FAIRFIELD FAMILY GOLF CENTERS, INC.
CONFIDENCE GOLF, INC.
KANSAS FAMILY GOLF CENTERS, INC.
ELK GROVE FAMILY GOLF CENTERS, INC.
SPORTS PLUS CINCINNATI, INC.
WICHITA FAMILY GOLF CENTERS, INC.
BLUE EAGLE OF FLORIDA, INC.
SPORTS PLUS RALEIGH, INC.
SPORTS PLUS WOODBRIDGE, INC.
METROGOLF INCORPORATED
METROGOLF VIRGINIA, INC.
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METROGOLF NEW YORK, INC.
FAMILY GOLF ACQUISITION, INC.
BRONX FAMILY GOLF CENTERS, INC.
MILPITAS FAMILY GOLF CENTERS, INC.
SAN BRUNO FAMILY GOLF CENTERS, INC.
INTERBAY FAMILY GOLF CENTERS, INC.
XXXXXX FAMILY GOLF CENTERS, INC.
PALM FAMILY GOLF CENTERS, INC.
CERRITOS FAMILY GOLF CENTERS, INC.
PHILADELPHIA FAMILY GOLF CENTERS, INC.,
AS SUCCESSOR BY MERGER TO PINLEY
ENTERPRISES LTD.
ENCINO/BALBOA FAMILY GOLF CENTERS, INC.
XXXXXXXX FAMILY GOLF CENTERS, INC.
XXXXXXX FAMILY GOLF CENTERS, INC.
SPORTS PLUS NEW XXXXXXXX, INC.
METROGOLF SAN DIEGO INC.
METROGOLF ILLINOIS CENTER, INC.
METROGOLF MANAGEMENT, INC.
FAMILY GOLF VENDING, INC.
OVERLAND FAMILY GOLF CENTERS, INC.
PARDOC VENDING CORP.
EAGLE QUEST GOLF CENTERS (TEXAS II) INC.
EAGLE QUEST GOLF CENTERS (CALIFORNIA) INC.
EAGLE QUEST GOLF CENTERS (H.P.) INC.
EAGLE QUEST GOLF CENTERS (WASHINGTON) INC.
GOLF PARK, INC.
GOOSE CREEK GOLF PARTNERS
LIMITED PARTNERSHIP
VINTAGE NEW YORK GOLF, LLC
SACRAMENTO FAMILY GOLF CENTERS, INC.
PORTLAND FAMILY GOLF CENTERS, INC.
CARLSBAD FAMILY GOLF CENTERS, INC.
EVERGREEN FAMILY GOLF CENTERS, INC.
OVERLAND PARK, LLC
EAGLE QUEST GOLF CENTERS (TEXAS) INC.
PRECISION COURSES, INC.
IMG PROPERTIES, INC.
EAGLE QUEST GOLF CENTERS ENTERTAINMENT, INC.
EAGLE QUEST GOLF CENTERS (U.S.) INC.
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XXXXXX GOLF CENTER, LP
ILLINOIS CENTER GOLF PARTNERS, L.P.
GBGC FAMILY GOLF CENTERS, INC.
XXXXXXXX FAMILY GOLF CENTERS, INC.
EL CAJON FAMILY GOLF CENTERS, INC.
BLUE EAGLE OF KANSAS, INC.
BLUE EAGLE (OP) INC.
SKATENATION, INC.
RECREATIONAL MANAGEMENT CORPORATION
SKATENATION OF RICHMOND WEST, LLC
SKATENATION OF PRINCE XXXXXXX, LLC
SKATENATION OF PINEY ORCHARD, LLC
82ND AVENUE GOLF RANGE, INC.
EVERGREEN GOLF COURSE, LLC
EAGLE QUEST GOLF CENTERS (WASHINGTON II), INC.
KANSAS CITY FAMILY GOLF CENTERS, INC.
BLUE EAGLE OF FLORIDA, INC.
PINNACLE ENTERTAINMENT, INC.
RECREATIONAL MANAGEMENT
SERVICES CORPORATION
RECREATIONAL MANAGEMENT SERVICES
CORPORATION OF NEW JERSEY, INC.
SKATENATION OF RICHMOND SOUTH, LLC
SKATENATION OF RESTON, LLC
INTERNATIONAL SKATING CENTER OF
CONNECTICUT, LLC
RMSC OF CALIFORNIA, INC.
LODI FAMILY GOLF CENTERS, INC.
By:
-----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Agent and as a Lender
By:
-----------------------------------
Name:
Title:
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CIBC, INC., as a Lender
By:
-----------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as a Lender
By:
-----------------------------------
Name:
Title:
THE DIME SAVINGS BANK OF NEW YORK FSB, as a Lender
By:
-----------------------------------
Name:
Title:
THE MERCHANTS BANK OF NEW YORK,
as a Lender
By:
-----------------------------------
Name:
Title:
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EXHIBIT A
SCHEDULE 2
[Attach Budget]
