1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment No. 1"),
dated as of June 11, 1999, is among True Temper Sports, Inc., a Delaware
corporation (the "Borrower"), the various financial institutions from time to
time parties thereto (collectively, the "Lenders"), DLJ Capital Funding, Inc.,
as syndication agent (the "Syndication Agent") for the Lenders, The First
National Bank of Chicago, as administrative agent (the "Administrative Agent")
for the Lenders, and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, as
lead arranger (the "Arranger").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Syndication Agent, the
Administrative Agent and the Arranger are parties to a Credit Agreement, dated
as of September 30, 1998 (as heretofore modified and supplemented and in effect
from time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested the Lenders to amend the Credit
Agreement to provide for the issuance under the Credit Agreement of Letters of
Credit in selected foreign currencies;
WHEREAS, all Loans and Obligations shall continue to be and shall be
fully guaranteed pursuant to, and fully secured by, the Holdco Guaranty and
Pledge Agreement and the Borrower Security Agreement; and
WHEREAS, the Borrower desires, and the Lenders are willing, on the
terms and subject to the conditions hereinafter set forth, to amend the Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
2
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendment No. 1, including
its preamble and recitals, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Amendment No. 1" is defined in the preamble.
"Amendment No. 1 Effective Date" is defined in Subpart 3.1.
"Arranger" is defined in the preamble.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Lenders" is defined in the preamble.
"Syndication Agent" is defined in the preamble.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment No. 1, including its
preamble and recitals, have the meanings ascribed thereto in the Credit
Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and
each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Credit Agreement shall from and after
the Amendment No. 1 Effective Date refer to the Credit Agreement, as amended
hereby.
PART II
AMENDMENTS TO CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 1
Effective Date, the Credit Agreement is amended in accordance with this Part II.
Except to the extent amended by this Amendment No. 1, the Credit Agreement is
and shall continue to be in full force and effect and is hereby ratified and
confirmed in all respects.
-2-
3
SUBPART 2.1. Amendments to Article I. Article I of the Credit Agreement
is amended as set forth in this Subpart 2.1.
SUBPART 2.1.1. Amendments to Section 1.1.
(a) Section 1.1 of the Credit Agreement is hereby amended by inserting
the following definitions in their alphabetically appropriate places:
"Australian Dollars" means the lawful currency of Australia.
"Available Currency" means Dollars and, with the consent of
the Administrative Agent, Foreign Currency.
"Dollar Equivalent" means, with respect to any Foreign
Currency on any date of determination, the equivalent amount in Dollars
of such Foreign Currency, determined by reference to the New York
foreign exchange selling rates, as published in The Wall Street Journal
on such date of determination for the immediately preceding Business
Day, or, if such rate is not available, such equivalent amount shall be
determined by the Administrative Agent (in accordance with its standard
practices) by using the quoted spot rate offered to the Administrative
Agent in the New York foreign exchange market for such Foreign Currency
at approximately 11:00 a.m. (New York time) on such date of
determination.
"Foreign Currency" means Pounds Sterling, Australian Dollars
and Japanese Yen.
"Foreign Currency Letter of Credit" means a Letter of Credit
denominated in a Foreign Currency.
"Foreign Guaranty" means a guaranty denominated in a Foreign
Currency issued by a foreign branch or Affiliate of the Issuer.
"Japanese Yen" means the lawful currency of Japan.
"Pounds Sterling" means the lawful currency of the United
Kingdom.
"U.S. Dollar Letter of Credit" means a Letter of Credit
denominated in Dollars.
(b) The following definitions appearing in Section 1.1 of the Credit
Agreement are hereby amended in their entirety to read as set forth below:
"Business Day" means any day which is neither a Saturday or
Sunday nor a legal holiday on which banks are authorized or required to
be closed in Memphis, Tennessee, New York, New York or Chicago,
Illinois and, (i) with respect to Borrowings of, Interest
-3-
4
Periods with respect to, payments of principal and interest in respect
of, and conversions of Base Rate Loans into, Eurodollar Loans, on which
dealings in Dollars are carried on in the London interbank market, and
(ii) with respect to Reimbursement Obligations in respect of Foreign
Currency Letters of Credit, on which banks are generally open for
business in the principal financial center of the jurisdiction of such
Foreign Currency.
"Issuer" means the Administrative Agent, in its capacity as
Issuer of Letters of Credit, any other Lender as may be designated by
the Borrower (and consented to by the Administrative Agent and such
Lender, such consent by the Administrative Agent not to be unreasonably
withheld) and any foreign branch or Affiliate of the Administrative
Agent or such Lender, in its capacity as Issuer of Letters of Credit.
"Letter of Credit" means (i) a standby or commercial letter of
credit denominated in an Available Currency for the account of the
Borrower, and (ii) a Foreign Guaranty.
"Letter of Credit Commitment Amount" means, on any date, with
respect to U.S. Dollar Letters of Credit and Foreign Currency Letters
of Credit collectively, a maximum amount (calculated, in the case of
Foreign Currency Letters of Credit, at the Dollar Equivalent thereof on
such date) of $10,000,000, as such amount may be reduced from time to
time pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount
equal to the sum (without duplication) of
(a) the then aggregate amount which is undrawn and
available under all issued and outstanding U.S. Dollar Letters
of Credit (whether or not the conditions to drawing thereunder
could be satisfied on such date);
plus
(b) the Dollar Equivalent of the then aggregate
amount which is undrawn and available under all issued and
outstanding Foreign Currency Letters of Credit (whether or not
the conditions to drawing thereunder could be satisfied on
such date);
plus
(c) the then aggregate amount of all unpaid and
outstanding Reimbursement Obligations (calculated, in the case
of Foreign Currency Letters of Credit, at the Dollar
Equivalent thereof on such date) in respect of such U.S.
Dollar Letters of Credit and Foreign Currency Letters of
Credit.
-4-
5
SUBPART 2.2. Amendments to Article II. Article II of the Credit
Agreement is hereby amended as set forth in this Subpart 2.2.
SUBPART 2.2.1. Amendment to Section 2.1. Clause (b) of Section 2.1 of
the Credit Agreement is hereby amended in its entirety to read as set forth
below:
"(b) the Issuer agrees that it will issue Letters of Credit
pursuant to Section 2.1.3, and each other Lender that has a Revolving
Loan Commitment severally agrees that it will purchase participation
interests in such Letters of Credit, or, in the case of Foreign
Guaranties, purchase participation interests or deem Disbursements to
be Revolving Loans, pursuant to Section 2.6.1. Any term or provision of
this Agreement or any other Loan Document (including this Article II or
Article III hereof) to the contrary notwithstanding, (i) each Foreign
Currency Letter of Credit and each Foreign Guaranty shall be issued,
and all Reimbursement Obligations in respect of such Foreign Currency
Letter of Credit shall be paid, in the applicable Foreign Currency;
(ii) all participation, reimbursement and other interests and
obligations of the Lenders (other than the Issuer) with respect to each
Foreign Currency Letter of Credit and each Foreign Guaranty shall be
calculated and paid in the Dollar Equivalent of such Foreign Currency;
and (iii) each Issuer of a Foreign Currency Letter of Credit or a
Foreign Guaranty shall be a "Qualified Business Unit", as defined in
Section 989(a) of the Code, which maintains an office in the
jurisdiction in which the requested Foreign Currency Letter of Credit
or Foreign Guaranty is to be issued."
SUBPART 2.2.2. Amendment to Section 2.1.3. Section 2.1.3 of the Credit
Agreement is hereby amended in its entirety to read as set forth below:
"SECTION 2.1.3. Letter of Credit Commitment. Subject to
compliance by the Borrower with the terms of Sections 2.1.5, 5.1 and
5.2, from time to time on any Business Day occurring after the Closing
Date but prior to the Revolving Loan Commitment Termination Date, the
Issuer will (i) issue one or more Letters of Credit denominated in the
relevant Available Currency for the account of the Borrower in the
Stated Amount requested by the Borrower on such day, or (ii) extend the
Stated Expiry Date of an existing Letter of Credit previously issued
hereunder to a date not later than the earlier of (x) the sixth
anniversary of the Closing Date and (y) one year from the date of such
extension, subject to the proviso in the penultimate sentence of
Section 2.6."
SUBPART 2.2.3. Amendment to Section 2.1.5. Section 2.1.5 of the Credit
Agreement is hereby amended in its entirety to read as set forth below:
"SECTION 2.1.5. Issuer Not Required to Issue Letters of
Credit. (a) No Issuer shall be required to issue any Letter of Credit
if, after giving effect thereto, (i) the aggregate amount of all Letter
of Credit Outstandings would exceed the Letter of Credit Commitment
Amount or (ii) the sum of the aggregate amount of all Letter of Credit
-5-
6
Outstandings plus the aggregate principal amount of all Revolving Loans
and Swing Line Loans then outstanding would exceed the Revolving Loan
Commitment Amount.
(b) No Issuer shall be permitted or required to issue any
Foreign Currency Letter of Credit or Foreign Guaranty if the
Administrative Agent has not consented to the issuance pursuant to
Section 2.6 or such Issuer is not a "Qualified Business Unit", as
defined in Section 989(a) of the Code, which maintains an office in the
jurisdiction in which the requested Foreign Currency Letter of Credit
or Foreign Guaranty is to be issued.
(c) No Issuer shall be required to issue any Foreign Guaranty
if any Lender that has a Revolving Loan Commitment is prohibited by law
from participating in such Foreign Guaranty."
SUBPART 2.2.4. Amendment to Section 2.6. Section 2.6 of the Credit
Agreement is hereby amended in its entirety to read as set forth below:
"SECTION 2.6. Issuance Procedures. (a) By delivering to the
Administrative Agent an Issuance Request on or before 12:00 noon,
Chicago time, on a Business Day, the Borrower may, from time to time
irrevocably request, on not less than three nor more than ten Business
Days' notice (or such shorter or longer notice as may be acceptable to
the Issuer), in the case of an initial issuance of a Letter of Credit,
and not less than three nor more than ten Business Days' notice (unless
a shorter or longer notice period is acceptable to the Issuer) prior to
the then existing Stated Expiry Date of a Letter of Credit, in the case
of a request for the extension of the Stated Expiry Date of a Letter of
Credit, that the Issuer issue, or extend the Stated Expiry Date of, as
the case may be, an irrevocable Letter of Credit on behalf of the
Borrower denominated in the applicable Available Currency (whether
issued for the account of or on behalf of the Borrower or any of its
Subsidiaries) in such form as may be requested by the Borrower and
approved by the Issuer, for the purposes described in clause (b) of
Section 7.1.9. Notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the
Borrower hereby acknowledges and agrees that it shall be obligated to
reimburse the Issuer upon each Disbursement paid under a Letter of
Credit, and it shall be deemed to be the obligor for purposes of each
such Letter of Credit issued hereunder (whether the account party on
such Letter of Credit is the Borrower or a Subsidiary of the Borrower).
(b) Upon receipt of an Issuance Request which requests the
issuance of a Foreign Currency Letter of Credit, the Administrative
Agent shall promptly notify the Borrower either that the requested
currency is acceptable to the Administrative Agent, in which case such
Foreign Currency Letter of Credit shall be issued, or that the
requested currency is not acceptable to the Administrative Agent (in
its reasonable determination), in which case such Foreign Currency
Letter of Credit shall not be issued.
-6-
7
(c) Upon receipt of an Issuance Request which requests the
issuance of a Foreign Guaranty, the Administrative Agent shall promptly
notify the Borrower (i) that the requested currency is acceptable to
the Administrative Agent and no Lender that has a Revolving Loan
Commitment is prohibited by law from participating in such Foreign
Guaranty, in which case such Foreign Guaranty shall be issued, or (ii)
that the requested currency is acceptable to the Administrative Agent
and, although one or more Lenders that have a Revolving Loan Commitment
are prohibited by law from participating in such Foreign Guaranty, the
Issuer has determined (in its sole and absolute discretion) to issue
such Foreign Guaranty, or (iii) that the requested currency is not
acceptable to the Administrative Agent (in its reasonable
determination), in which case such Foreign Guaranty shall not be
issued, or (iv) that any Lender that has a Revolving Loan Commitment is
prohibited by law from participating in such Foreign Guaranty and, as a
result, the Issuer has determined (in its sole and absolute discretion)
not to issue such Foreign Guaranty.
(d) Upon receipt of an Issuance Request, and following any
determination required by this Section 2.6, the Administrative Agent
shall promptly notify the Issuer and each Lender thereof. Each Letter
of Credit shall by its terms be stated to expire on a date (its "Stated
Expiry Date") no later than the earlier to occur of (i) the Revolving
Loan Commitment Termination Date or (ii) one year from the date of its
issuance; provided, notwithstanding the terms of clause (ii) above,
that a Letter of Credit may, if required by the beneficiary thereof,
contain "evergreen" provisions pursuant to which the Stated Expiry Date
shall be automatically extended (in each case, to the date no later
than the earlier to occur of (x) the Revolving Loan Commitment
Termination Date or (y) one year from the date of such automatic
extension), unless notice to the contrary shall have been given to the
beneficiary by the Issuer or the account party more than a specified
period prior to the then existing Stated Expiry Date. The Issuer will
make available to the beneficiary thereof the original of each Letter
of Credit which it issues hereunder."
SUBPART 2.2.5. Amendment to Section 2.6.1. Section 2.6.1 of the Credit
Agreement is hereby amended in its entirety to read as set forth below:
"SECTION 2.6.1. Other Lenders' Participation. (a) Upon the
issuance of each U.S. Dollar Letter of Credit or Foreign Currency
Letter of Credit issued by the Issuer pursuant hereto, and without
further action, each Lender (other than the Issuer) that has a
Revolving Loan Commitment shall be deemed to have irrevocably purchased
from the Issuer, to the extent of its Percentage in respect of
Revolving Loans, and the Issuer shall be deemed to have irrevocably
granted and sold to such Lender a participation interest in such U.S.
Dollar Letter of Credit or Foreign Currency Letter of Credit, as the
case may be (including the Contingent Liability and any Reimbursement
Obligation and all rights with respect thereto).
-7-
8
(b) Upon the issuance of each Foreign Guaranty issued by the
Issuer pursuant hereto, each Lender (other than the Issuer) that has a
Revolving Loan Commitment shall, unless prohibited by law, be deemed to
have irrevocably purchased from the Issuer, to the extent of its
Percentage in respect of Revolving Loans, and the Issuer shall be
deemed to have irrevocably granted and sold to such Lender a
participation interest in such Foreign Guaranty (including the
Contingent Liability and any Reimbursement Obligation and all rights
with respect thereto). If any Lender that has a Revolving Loan
Commitment is prohibited by law from participating in such Foreign
Guaranty, such Lender shall (i) promptly notify the Administrative
Agent in writing that it is prohibited by law from participating in
such Foreign Guaranty, and (ii) deem each Disbursement under such
Foreign Guaranty, without further action, to be a Revolving Loan and,
to the extent that the Borrower does not reimburse the Administrative
Agent for such Disbursement pursuant to Section 2.6.2, such Lender, on
or before 12:00 noon, Chicago time, on the Business Day following the
Disbursement Due Date (unless such Disbursement is converted into a
Base Rate Loan on the Disbursement Due Date), shall deposit with the
Administrative Agent same day funds in an amount equal to the Dollar
Equivalent of such Lender's Percentage of such Disbursement. Each
Lender's obligation under this Section 2.6.1(b) shall be absolute and
unconditional under any and all circumstances and irrespective of any
Default or Event of Default under this Agreement or any other Loan
Document.
(c) Each Lender (other than the Issuer) shall, to the extent
of its Percentage in respect of Revolving Loans, be responsible for
reimbursing promptly (and in any event within one Business Day) the
Issuer for Reimbursement Obligations which have not been reimbursed by
the Borrower in accordance with Section 2.6.3. In addition, such Lender
shall, to the extent of its Percentage in respect of Revolving Loans,
be entitled to promptly receive a ratable portion of the Letter of
Credit fees payable pursuant to Section 3.3.3 with respect to each
Letter of Credit and of interest payable pursuant to Section 2.6.2 with
respect to any Reimbursement Obligation. To the extent that any Lender
has reimbursed the Issuer for a Disbursement as required by this
Section, such Lender shall be entitled to receive its ratable portion
of any amounts subsequently received (from the Borrower or otherwise)
in respect of such Disbursement."
SUBPART 2.2.6. Amendment to Section 2.6.2. Section 2.6.2 of the Credit
Agreement is hereby amended by deleting the proviso at the end thereof and
inserting in lieu thereof the following proviso:
"provided, however, that, if no Default shall have then occurred and be
continuing, unless the Borrower has notified the Administrative Agent
no later than one Business Day prior to the Disbursement Due Date that
it will reimburse the Issuer for the applicable Disbursement, then the
amount of the Disbursement, or, if the Disbursement was in a Foreign
Currency, the Dollar Equivalent of the amount of the Disbursement,
shall be deemed to be a Borrowing of Revolving Loans constituting Base
Rate Loans and
-8-
9
following the giving of notice thereof by the Administrative Agent to
the Lenders, each Lender with a Revolving Loan Commitment (other than
the Issuer) will deliver to the Issuer on the Disbursement Due Date
immediately available funds in an amount equal to such Lender's
Percentage of such Borrowing. Each conversion of Disbursement amounts
into Revolving Loans shall constitute a representation and warranty by
the Borrower that on the date of the making of such Revolving Loans all
of the statements set forth in Section 5.2.1 are true and correct."
SUBPART 2.3. Amendments to Article III. Article III of the Credit
Agreement is hereby amended as set forth in this Subpart 2.3.
SUBPART 2.3.1. Amendment to Section 3.3.3. Section 3.3.3 of the Credit
Agreement is hereby amended in its entirety to read as set forth below:
"SECTION 3.3.3. Letter of Credit Fees. The Borrower agrees to
pay to the Administrative Agent, for the pro rata account of the Issuer
and each other Lender that has a Percentage of the Revolving Loan
Commitment Amount of greater than zero, a Letter of Credit fee for each
day on which there shall be any Letters of Credit outstanding, at a
rate per annum equal to (i) with respect to each standby Letter of
Credit and each Foreign Guaranty, the then Applicable Margin for
Revolving Loans maintained as Eurodollar Loans, multiplied by the
Stated Amount of each such Letter of Credit, and (ii) with respect to
each documentary Letter of Credit, 1.25% per annum multiplied by the
Stated Amount of each such Letter of Credit, such fees to be payable in
the currency in which such Letter of Credit is denominated by the
Borrower quarterly in arrears on each Quarterly Payment Date and on the
Revolving Loan Commitment Termination Date for any period then ending
for which such fees shall not theretofore have been paid. The Borrower
further agrees to pay to the Issuer for its own account, quarterly in
arrears on each Quarterly Payment Date, a fronting fee equal to 1/4 of
1% per annum, multiplied by the Stated Amount of the applicable Letter
of Credit payable in the currency in which such Letter of Credit is
denominated. In addition, customary issuance costs, fees and expenses
shall be payable to the Issuer for its own account."
SUBPART 2.4. Amendment to Article X. Article X of the Credit Agreement
is hereby amended as set forth in this Subpart 2.4.
SUBPART 2.4.1. New Section 10.16. A new Section 10.16 is hereby added
to the end of Article X of the Credit Agreement to read in its entirety as set
forth below:
"SECTION 10.16. Judgment Currency. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due
hereunder, under any Note or under any other Loan Document in another
currency into Dollars or into a Foreign Currency, as the case may be,
the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at
which, in accordance with
-9-
10
normal banking procedures, the applicable Secured Party could purchase
such other currency with Dollars or with such Foreign Currency, as the
case may be, in New York City, at the close of business on the Business
Day immediately preceding the day on which final judgment is given,
together with any premiums and costs of exchange payable in connection
with such purchase.
(b) The obligation of the Borrower in respect of any sum due
from it to any Agent, any Lender or any other Secured Party hereunder,
under any Note or under any other Loan Document shall, notwithstanding
any judgment in a currency other than Dollars or a Foreign Currency, as
the case may be, be discharged only to the extent that on the Business
Day next succeeding receipt by such Agent, such Lender or such other
Secured Party of any sum adjudged to be so due in such other currency,
such Agent, such Lender or such other Secured Party may, in accordance
with normal banking procedures, purchase Dollars or such Foreign
Currency, as the case may be, with such other currency. If the Dollars
or such Foreign Currency so purchased are less than the sum originally
due to such Agent, such Lender or such other Secured Party in Dollars
or in such Foreign Currency, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such
Agent, such Lender or such other Secured Party against such loss."
SUBPART 2.5. Amendment to Issuance Request. The Issuance Request
attached as Exhibit B-2 to the Credit Agreement shall be amended in its entirety
to read as set forth on Annex I hereto.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Effective Date. This Amendment No. 1 shall become
effective as of the date (the "Amendment No. 1 Effective Date") when all of the
conditions set forth in this Subpart 3.1 shall have been satisfied.
SUBPART 3.1.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Amendment No. 1 duly executed by the
Borrower, the Administrative Agent, the Issuer and the Required Lenders (or
evidence thereof satisfactory to the Administrative Agent). The delivery of an
executed counterpart hereof by the Borrower shall constitute a representation
and warranty by the Borrower that, on the Amendment No. 1 Effective Date, after
giving effect to this Amendment No. 1, all statements set forth in Section 5.2.1
of the Credit Agreement, as amended by Amendment No. 1, are true and correct as
of such date, except to the extent that such statement expressly relates to an
earlier date (in which case such statement shall be true and correct on and as
of such earlier date).
-10-
11
SUBPART 3.1.2. Affirmation and Consent. The Administrative Agent shall
have received executed counterparts of the Affirmation and Consent to Amendment
No. 1 to Credit Agreement, dated the Amendment No. 1 Effective Date,
substantially in the form of Annex II hereto, duly executed and delivered by the
parties thereto.
SUBPART 3III.1.3. Payment of Fees and Expenses. The Borrower hereby
agrees to pay and reimburse the Administrative Agent for all its reasonable fees
and expenses incurred in connection with the negotiation, preparation, execution
and delivery of this Amendment No. 1 and related documents, including all
reasonable fees and disbursements of counsel to the Administrative Agent.
SUBPART 3.1.4. Legal Details, etc. The Administrative Agent and its
counsel shall have received all information, and such counterpart originals or
such certified or other copies of such materials, as the Administrative Agent or
its counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment No. 1 shall be reasonably
satisfactory to the Administrative Agent and its counsel. All documents executed
or submitted pursuant hereto or in connection herewith shall be reasonably
satisfactory in form and substance to the Administrative Agent and its counsel.
SUBPART 3.2. Limitation. Except as expressly provided hereby, all of
the representations, warranties, terms, covenants and conditions of the Credit
Agreement and each other Loan Document shall remain unamended and unwaived and
shall continue to be, and shall remain, in full force and effect in accordance
with their respective terms. The amendments, modifications and consents set
forth herein shall be limited precisely as provided for herein, and shall not be
deemed to be a waiver of, amendment of, consent to or modification of any other
term or provision of the Credit Agreement or of any term or provision of any
other Loan Document or other instrument referred to therein or herein, or of any
transaction or further or future action on the part of the Borrower or any other
Person which would require the consent of the Administrative Agent, the Issuer
or any of the Lenders under the Credit Agreement or any such other Loan Document
or instrument.
PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendment No. 1 to
any Part or Subpart are, unless otherwise specified, to such Part or Subpart of
this Amendment No. 1. References in this Amendment No. 1 to any Article or
Section are, unless otherwise specified, to such Article or Section of the
Credit Agreement.
SUBPART 4.2. Loan Document Pursuant to Credit Agreement. This Amendment
No. 1 is a Loan Document executed pursuant to the Credit Agreement and shall
(unless otherwise
-11-
12
expressly indicated therein) be construed, administered and applied in
accordance with the terms and provisions of the Credit Agreement, as amended
hereby, including Article X thereof.
SUBPART 4.3. Counterparts, etc. This Amendment No. 1 may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
Agreement.
SUBPART 4.4. Governing Law. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SUBPART 4.5. Successors and Assigns. This Amendment No. 1 shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
-12-
13
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be executed by their respective officers hereunto duly authorized as of the
day and year first above written.
TRUE TEMPER SPORTS, INC.
By:____________________________
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent, Issuer and as a Lender
By:____________________________
Title:
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent and as a Lender
By:____________________________
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION,
as Arranger
By:____________________________
Title:
14
SUMMIT BANK,
as a Lender
By:____________________________
Title:
THE PROVIDENT BANK,
as a Lender
By:____________________________
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST,
as a Lender
By:____________________________
Title:
XXX XXXXXX AMERICAN CAPITAL
SENIOR FLOATING RATE FUND,
as a Lender
By:____________________________
Title:
KZH HIGHLAND-2 LLC,
as a Lender
By:____________________________
Title:
15
ANNEX I
EXHIBIT B-2
ISSUANCE REQUEST
The First National Bank of Chicago,
as Administrative Agent
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Re: Credit Agreement, dated as of September 30, 1998 (as amended,
supplemented, amended and restated or otherwise modified from time
to time, the "Credit Agreement"), among True Temper Sports, Inc., a
Delaware corporation (the "Borrower"), the various financial
institutions as are or may from time to time thereafter become
parties thereto (the "Lenders"), DLJ Capital Funding, Inc., as the
Syndication Agent, and The First National Bank of Chicago, as the
Administrative Agent.
Ladies and Gentlemen:
This Issuance Request is delivered to you pursuant to Section 2.6 of the
Credit Agreement. Unless otherwise defined herein, terms used herein have the
meanings assigned to them in the Credit Agreement.
The Borrower hereby requests that on ________ __, ____ (the "Date of
Issuance") _______________ (the "Issuer") [issue a [U.S. Dollar Letter of
Credit][Foreign Currency Letter of Credit][Foreign Guaranty] in the initial
Stated Amount of _______________* with a Stated Expiry Date (as defined therein)
of ________ __, ____] [extend the Stated Expiry Date (as defined under
Irrevocable Standby Letter of Credit No.__, issued on ________ __, ____, in the
initial Stated Amount of ______________*) to a revised Stated Expiry Date (as
defined therein) of ________ __, ____] and containing the further terms and
conditions set forth in the attached Letter of Credit application.
The beneficiary of the requested Letter of Credit will be _______________,
and such Letter of Credit will be in support of
________________________________.
--------
* Insert amount in appropriate currency.
16
The Borrower hereby acknowledges that, pursuant to Section 5.2.2 of the
Credit Agreement, each of the delivery of this Issuance Request and the
[issuance][extension] of the Letter of Credit requested hereby constitutes a
representation and warranty by the Borrower that, on such date of [issuance]
[extension] all statements set forth in Section 5.2.1 are true and correct.
The Borrower agrees that if, prior to the time of the [issuance]
[extension] of the Letter of Credit requested hereby, any matter certified to
herein by it will not be true and correct at such time as if then made, it will
immediately so notify the Administrative Agent. Except to the extent, if any,
that prior to the time of the issuance or extension requested hereby the
Administrative Agent shall receive written notice to the contrary from the
Borrower, each matter certified to herein shall be deemed to be so certified at
the date of such issuance or extension.
IN WITNESS WHEREOF, the Borrower has caused this request to be executed and
delivered by its Authorized Officer this ____ day of ________, ____.
TRUE TEMPER SPORTS, INC.
By:____________________________
Title:
17
ANNEX II
AFFIRMATION AND CONSENT
June 11, 1999
The Lenders (as defined below) and
The First National Bank of Chicago,
as Administrative Agent for the Lenders
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
True Temper Sports, Inc.
Gentlemen and Ladies:
This affirmation and consent is delivered to the Administrative Agent
and the Lenders pursuant to Subpart 3.1.2 of Amendment No. 1 to Credit
Agreement, dated as of the date hereof ("Amendment No. 1"), among True Temper
Sports, Inc., a Delaware corporation (the "Borrower"), the financial
institutions parties thereto (collectively, the "Lenders"), DLJ Capital Funding,
Inc. ("DLJ"), as syndication agent (the "Syndication Agent") for the Lenders,
The First National Bank of Chicago ("First Chicago"), as administrative agent
(the "Administrative Agent") for the Lenders and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, as Lead Arranger (the "Arranger"). Reference is also
made to the Credit Agreement, dated as of September 30, 1998 (as amended or
otherwise modified through the date hereof, the "Credit Agreement"), among the
Borrower, the Lenders, the Agents and the Arranger. Unless otherwise defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Credit Agreement.
By its signature below, the undersigned hereby acknowledges and
consents to Amendment No. 1 and the Credit Agreement as amended thereby. The
undersigned hereby reaffirms as of the Amendment No. 1 Effective Date (as
defined in Amendment No. 1), its covenants and agreements contained in each Loan
Document to which it is a party, including, in each case, as such covenants and
agreements may be modified by Amendment No. 1. The undersigned hereby further
certifies that, as of the date hereof (both before and after giving effect to
the effectiveness of Amendment No. 1), its representations and warranties
contained in the Loan Documents to which it is a party are true and correct with
the same effect as if made on the
18
date hereof, except to the extent any thereof refer or pertain solely to a date
prior to the date hereof. The undersigned further confirms that each Loan
Document to which it is a party is and shall continue to be in full force and
effect and the same are hereby ratified and confirmed in all respects, except
that upon the occurrence of the Amendment No. 1 Effective Date, all references
in such Loan Documents to the "Credit Agreement", "Loan Documents",
"thereunder", "thereof", or words of like import shall mean the Credit Agreement
and the Loan Documents, as the case may be, as in effect, as amended by
Amendment No. 1.
-2-
19
IN WITNESS WHEREOF, the party hereto has executed and delivered this
Affirmation and Consent as of the date first above written.
TRUE TEMPER CORPORATION
By:___________________________
Title:
