FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT ("Amendment") is
made effective as of this 20th day of July, 1999 among TEARDROP GOLF COMPANY
("TearDrop"), XXXXX XXXXXX GOLF COMPANY ("Armour"), RAM GOLF CORPORATION
(formerly known as TearDrop Ram Golf Company) ("Ram"), TEARDROP ACQUISITION
CORP. ("Acquisition"; TearDrop, Armour, Ram and Acquisition shall be referred to
individually herein as a "Borrower" and collectively as "Borrowers") and FIRST
UNION NATIONAL BANK (successor by merger to CORESTATES BANK, N.A.) ("Lender").
All terms capitalized but not defined herein shall have the meanings given to
such terms in the Agreement (as such term is hereinafter defined).
BACKGROUND
A. The Borrowers (excluding Ram and Acquisition) and Lender entered
into a certain Loan and Security Agreement dated as of November 10, 1997 (as
amended from time to time, the "Agreement") pursuant to which Lender made
available to the Borrowers the revolving credit facility described therein. Ram
was added as a Borrower pursuant to a Consent and Joinder Agreement dated as of
December 29, 1997. Acquisition was added as a Borrower pursuant to an Amendment
and Joinder Agreement dated as of November 5, 1998, but effective as of
September 30, 1998. The Agreement was further amended by an Amendment to Loan
and Security Agreement dated as of February 24, 1999, a Third Amendment to Loan
and Security Agreement dated as of March 8, 1999, and a Fourth Amendment to Loan
and Security Agreement dated as of April 15, 1999.
B. Borrowers have asked that Lender enter into a certain Forbearance
and Overadvance Agreement ("Forbearance Agreement") of even date herewith and,
in connection therewith, the parties have agreed to amend the Agreement as set
forth herein.
NOW, THEREFORE, the parties agree as follows, intending to be
legally bound.
1. Subject to the satisfaction of the conditions set forth in
Section 4 hereof, the Agreement is hereby amended as follows:
(A) Section 1.1 of the Agreement is hereby amended to add the
following defined terms in alphabetical order:
"Forbearance Agreement" shall mean that certain Forbearance
and Overadvance Agreement among the Borrowers and Lender dated as of
July 20, 1999.
"Termination Event" shall have the meaning set forth in the
Forbearance Agreement.
(B) The following definitions contained in Section 1.1 of the
Agreement are hereby amended to read as follows:
"Adjusted Prime Rate" means the Prime Rate plus 1%. The
Adjusted Prime Rate shall change simultaneously with each change in
the Prime Rate.
"Borrowing Base" at any time means the sum of (A) 70% of
Borrowers' Qualified Accounts at such time, plus (B) 60% of
Borrowers' Qualified Inventory at such time (excluding Borrowers'
Qualified Inventory at the location in Canada listed on Exhibit 3.5
to the Agreement), plus (C) from November 5, 1998 through the date
of a Termination Event, $2,175,000.00, plus (D) the lesser of (1)
$500,000.00 or (2) the sum of (a) 70% of Borrowers' Qualified
Canadian Accounts and (b) 60% of Borrowers' Qualified Inventory at
the location in Canada listed on Exhibit 3.5 to the Agreement.
"Commitment" means, from July 1, 1999 through October 9, 1999,
$25,000,000, and, from and after October 10, 1999, $20,000,000.
(C) The Agreement is hereby amended from and after the date
hereof to replace Section 8.2 with the following Section which shall read as
follows:
SECTION 8.2 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be given
to each party hereto by overnight delivery service at its address
specified below or at such other address as shall be designated by such
party in a notice to each other party complying with the terms of this
Section 8.2:
If to Borrowers:
[Name of Borrower]
0000 Xxxxxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxx Xxxxxxx
If to Lender:
First Union National Bank
0000 Xxxxxxxx Xxxxxx
0xx Xxxxx XX 4812
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
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with a copy to:
Congress Financial Corporation (Central)
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
All notices, requests, demands and other communications provided for
hereunder shall be effective when delivered or received at the aforesaid
addresses.
2. The Borrowers acknowledge that Lender has advised Borrowers that
Lender has appointed and designated Congress Financial Corporation (Central)
("Congress") to serve as Lender's servicing agent with respect to the Agreement
and to exercise such rights and remedies on behalf of Lender with respect to the
Loan Agreement as Lender and Congress may from time to time agree. Borrowers
hereby consent to such appointment and have agreed that, until receipt by
Borrowers of further written notice from Lender, Borrowers shall recognize
Congress as Lender's duly authorized agent with respect to any and all rights of
Lender under the Agreement. Borrowers agree that all costs and expenses
(including reasonable fees and out-of-pocket expenses of legal counsel) incurred
by Congress in connection with the Agreement or with any Loan Document shall be
recoverable by Lender, and payable by Borrowers, as provided in Section 8.4 of
the Agreement to the same extent as any expenses incurred directly by Lender.
Until further notice from Lender, Borrowers agree that any and all
communications of any nature by any of Borrowers to Lender, including without
limitation all financial information required to be provided to Lender by
Section 6.2 of the Agreement, shall be simultaneously delivered to both Lender
and Congress in accordance with Section 8.2 of the Agreement, as amended hereby.
All payments made by Borrowers on account of any of the Liabilities shall
continue to be made directly to Lender as provided in Section 2.2 of the
Agreement.
3. The terms of this Amendment are hereby incorporated into the
Agreement.
4. The effectiveness of this Amendment is subject to the
satisfaction of each of the following conditions precedent:
(A) Borrowers shall have delivered or caused to be delivered
the following documents, each duly executed by Borrowers:
(1) this Amendment and
(2) the Forbearance Agreement.
(B) Borrowers shall pay all costs and out-of-pocket expenses
(including, without limitation, reasonable attorneys' fees and costs) of Lender
and Congress in connection with the Agreement (including without limitation this
Amendment), and the transactions contemplated thereby, which includes, among
other things, the preparation, review and negotiation of this Amendment, and all
costs and expenses incurred in connection with the above.
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5. Borrowers represent and warrant to Lender that:
(A) The representations and warranties set forth in Article
V of the Agreement, as the same have been updated in
prior amendments to the Agreement and as further updated
on Schedule 1 hereto, are true and correct in all
material respects as of the date hereof;
(B) No Default or Event of Default has occurred or is
continuing, excluding the Existing Defaults (as defined
in the Forbearance Agreement); and
(C) The indebtedness evidenced by the Agreement and the Note
shall continue to be secured as set forth in the
Agreement.
6. This Amendment contains all of the modifications to the
Agreement. No further modifications shall be deemed effective, unless set forth
in writing and executed by the parties hereto.
7. The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of Lender under the
Agreement, nor constitute a waiver of any Default or Event of Default or any
provision of the Agreement.
8. This Amendment shall be construed and enforced in accordance with
the laws of the State of New Jersey.
9. This Amendment may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Amendment by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound, have caused this Amendment to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
TEARDROP GOLF COMPANY
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: President
XXXXX XXXXXX GOLF COMPANY
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
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Title: President
RAM GOLF CORPORATION (formerly known
as TearDrop Ram Golf Company)
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: President
TEARDROP ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: President
FIRST UNION NATIONAL BANK (successor
by merger to CORESTATES BANK, N.A.)
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
SCHEDULES
Schedule 1 - Updates to Representations and Warranties
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