Exhibit 2.3
AMENDMENT TO INTEREST PURCHASE
AGREEMENT
This Amendment to Interest Purchase
Agreement (this “ Amendment ”) is entered into
to be effective as of October 9, 2006 and amends that certain
Interest Purchase Agreement (the “ Agreement ”),
dated September 12, 2006, by and among Putterboy, Ltd., a
Texas limited partnership (“ Purchaser ”),
ClubCorp, Inc., a Delaware corporation (“ ClubCorp
”) and The Pinehurst Company, a Delaware corporation (“
Pinehurst Company ”). Capitalized terms used herein,
but not otherwise defined, shall have the meaning ascribed to such
terms in the Agreement.
RECITAL:
WHEREAS, Purchaser, ClubCorp and
Pinehurst Company desire to amend certain provisions of the
Agreement as more specifically set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of
the premises and the mutual covenants and agreements contained
herein and in the Agreement, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto do hereby agree as follows:
1. The definition of “Material
Adverse Effect” set forth in Section 1.1 of the
Agreement is hereby amended to read as follows:
“ Material Adverse
Effect ” means any effect, event, occurrence,
development, circumstance, change or condition that is materially
adverse to the Assets, business, financial condition or results of
operations of the Pinehurst Entities, taken as a whole, except to
the extent that such effect results from (i) changes or
conditions affecting economic or capital markets in the United
States or internationally, (ii) changes or conditions
affecting the industry in which the Pinehurst Entities operate
other than any such effects that have had an adverse and
disproportionate effect on the Pinehurst Entities, taken as a
whole, as compared to comparable participants in the industries in
which the Pinehurst Entities conduct their business,
(iii) changes in any Laws or GAAP or the accounting rules and
regulations of the SEC, (iv) the announcement of this
Agreement, the ClubCorp Merger Agreement or the transactions
contemplated hereby or thereby, or (v) any actions required
under this Agreement to obtain any authorization or approval under
applicable antitrust or competition laws for the consummation of
the transactions contemplated by this Agreement.”
2. Section 7.7 of the Agreement
is hereby deleted in its entirety.
3. Paragraph 3 of Exhibit I to the
Agreement (the Consulting and Shared Services Agreement) is hereby
amended to read as follows:
“3. CCUSA will ensure that
during the term Owner may participate in (i) the Avendra
program, which shall entitle Owner to a pricing rate equivalent to
founder pricing, with the status of
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an affiliate of CCUSA, or (ii) such other
preferred purchasing program as CCUSA or its affiliates may be then
participating in, which shall entitle Owner to a pricing rate
equivalent to the pricing available to CCUSA or its affiliates. Any
rebates attributable to the Owner’s purchases received by
CCUSA shall be paid to Owner, after deducting certain procurement
costs, including overhead costs. CCUSA will retain, and the Owner
will not be entitled to receive, any profit participation,
dividends or other payments made based on CCUSA’s ownership
interest in Avendra. The Owner may elect to not participate in the
Avendra program as its sole and exclusive remedy for any conflict
of interest or other claim or demand based upon CCUSA’s
relationship or any affiliate of CCUSA’s relationship with
the Avendra program or ownership in Avendra.”
4. Paragraph 2 of Section 1
(Accounting Services) of Exhibit H to the Agreement (the
Centralized Services Agreement) is hereby amended as
follows:
“2. Financial Reports .
During the term of this Agreement, for so long as FMC is using the
Oracle Accounting System (it being acknowledged that FMC may cease
using the Oracle Accounting System in the future), FMC shall use
the Oracle Accounting System to provide Owner with financial
statements and reports for each accounting period, as well as
annual financial statements and reports. In the event that FMC is
no longer using the Oracle Accounting System, FMC shall use its
then current accounting system to provide Owner with financial
statements and reports for each accounting period, as well as
annual financial statements and reports. All reports delivered by
FMC pursuant to this Paragraph 2 of Section 1 shall include
details of the invoices paid on behalf of Owner and the funds
obtained from Owner’s bank accounts for such
purposes.”
5. Section 6.13 of the
Agreement shall be amended to read as follows:
“6.13 Property Due
Diligence .
(a) As soon as reasonably
practicable following the date of this Agreement, ClubCorp, at its
expense, shall procure and deliver to Purchaser current title
commitments (the “ Title Commitments ”) showing
the state of title to each parcel of the Real Property which would
appear in an ALTA Owner’s Title Policy, together with copies
of all documents referenced as exceptions to title in the Title
Commitments. The Title Commitments shall be issued by LandAmerica
Financial Group, Inc. or another title company reasonably
satisfactory to Purchaser (the “ Title Company
”). The parcels of the Real Property described in
Section 6.13(a) of the Disclosure Schedule are herein referred
to as the “ Major Parcels .” With regard to any
parcel that is not a Major Parcel, in lieu of a Title Commitment,
ClubCorp may elect to deliver other evidence reasonably
satisfactory to Purchaser establishing only that fee simple title
to such parcel is vested in a Pinehurst Entity.
(b) As soon as reasonably
practicable following the date of this Agreement, ClubCorp shall
cause to be delivered to Purchaser and to the Title Company current
or updated on the ground surveys (the “ Surveys
”) of each Major Parcel (other than those noted in
Section 6.13(b)(i) of the Disclosure Schedule), prepared by a
licensed professional engineer or surveyor reasonably acceptable to
Purchaser and to the Title Company. The Surveys (including
specifically the certificate of the engineer or surveyor forming a
part thereof) shall be in form and substance reasonably acceptable
to Purchaser, its lender and to the Title Company. The
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Surveys shall not be required to meet the
requirements of the Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys jointly established by the American
Land Title Association, the American Congress on Surveying and
Mapping and the National Society of Professional Surveyors.
Notwithstanding anything to the contrary contained herein,
Purchaser acknowledges that the form and substance of the Surveys,
including the certificate of the engineer or surveyor forming a
part thereof, that ClubCorp delivered to PacLife in connection with
the PacLife Liens currently encumbering parts of the Real Property
(the “ PacLife Surveys ”) are in form and
substance reasonably acceptable to Purchaser, such that if the
Surveys are substantially similar to the PacLife Surveys, the
Surveys will be acceptable to Purchaser. Purchaser shall reimburse
ClubCorp at the Closing for the cost of the Surveys.
(c) ClubCorp, at its expense, shall
obtain and furnish to Purchaser at the Closing, ALTA Owner’s
Title Policies (the “ Title Policies ”) from the
Title Company relating to each Major Parcel. The Title Policies
shall insure at regular rates, in amounts reasonably determined by
the Parties (or as otherwise required by applicable Law), that the
Pinehurst Entities, as applicable, own fee simple title to each
Major Parcel, subject to no exceptions other than the Permitted
Encumbrances. In addition, Purchaser shall have the right to
request from the Title Company, by way of appropriate endorsements
and supplemental coverages (collectively, the “
Purchaser’s Requested En
