AMENDMENT NUMBER 2
This AMENDMENT NUMBER 2 (this "Amendment") to the SECURITIES PURCHASE
AGREEMENT dated as of September 30, 1998 among between True Temper Corporation
and the Purchaser (the "Securities Purchase Agreement"), the Debt Registration
Rights Agreement dated as of September 30, 1998 among True Temper Corporation
and the Purchaser (the "Debt Registration Rights Agreement") and the Escrow
Agreement dated as of September 30, 1998 among True Temper Corporation, the
Purchaser and Xxxxx, Inc. (the "Escrow Agreement"), each as amended by Amendment
Number 1 thereto, dated as of September 29, 1999 ("Amendment Number 1") is dated
as of October 19, 1999. Capitalized terms used herein and not otherwise defined
have the meanings ascribed to such terms in the Securities Purchase Agreement.
The parties wish to amend the Securities Purchase Agreement, the Debt
Registration Rights Agreement and the Escrow Agreement, each as amended by
Amendment Number 1, and hereto agree as follows:
1. FEES. Section 2.03(b) of the Securities Purchase Agreement, as
amended by Amendment Number 1, is hereby amended by deleting therein the words
"October 31, 1999" in their entirety and replacing them with "June 30, 2000" so
that Section 2.03(b) of the Securities Purchase Agreement is restated as
follows:
"(b) On June 30, 2000, the Company shall pay the Purchaser
the Extension Fee."
2. INTEREST. (a) Section 2.05(c) of the Securities Purchase
Agreement, as amended by Amendment Number 1, is hereby amended by deleting such
Section in its entirety and replacing it with the following so that Section
2.05(c) of the Securities Purchase Agreement is restated as follows:
"(c) (1) The interest rate applicable to each Note for the
period commencing on October 1, 1999 and ending on December 31, 1999,
shall be a floating rate per annum equal to the sum of (A) the Prime
Rate in effect from time to time plus (B) 4.00%; PROVIDED, that if the
principal amount of, and accrued and unpaid interest, if any, on such
Note is not paid in full as of or prior to December 31, 1999, then the
interest rate applicable to each Note for such period shall be a
floating rate per annum equal to greatest of (i) the sum of (A) the
Prime Rate in effect from time to time plus (B) 4.00%, (ii) the sum of
(A) the Treasury Rate plus (B) 7.00% and (iii) the sum of (A) the DLJ
High Yield Composite Index plus (B) 3.00%.
(2) The interest rate applicable to each Note for the period
commencing on January 1, 2000 and ending on March 31, 2000, shall be a
floating rate per annum equal to the sum of (A) the Prime Rate in
effect from time to time plus (B) 4.50%; PROVIDED, that if the
principal amount of, and accrued and unpaid interest, if any, on such
Note is not paid in full as of or prior to March 31, 2000, then the
interest rate applicable to each Note for such period shall be 17.00%.
(3) The interest rate applicable to each Note for the period
commencing on April 1, 2000 and ending on June 30, 2000, shall be a
floating rate per annum equal to the sum of (A) the Prime Rate in
effect from time to time plus (B) 5.00%; PROVIDED, that if the
principal amount of, and accrued and unpaid interest, if any, on such
Note is not paid in full as of or prior to June 30, 2000, then the
interest rate applicable to each Note for such period shall be 17.00%.
(4) If the principal amount of, and accrued and unpaid
interest, if any, on any Note is not paid in full as of or prior to
June 30, 2000, then such Note shall accrete an additional amount of
interest equal to the difference between (A) the amount of interest
which would have accrued on such Note had the interest rate applicable
to such Note for the period commencing on October 1, 1999 and ending
on June 30, 2000 been equal to 17.00% and (B) the amount of interest
actually accrued on such Note.
(5) The interest rate applicable to each Note commencing on
June 30, 2000 shall be a floating rate per annum equal to greatest of
(i) the sum of (A) the Prime Rate in effect from time to time plus (B)
4.00%, (ii) the sum of (A) the Treasury Rate plus (B) 7.00%, (iii) the
sum of (A) the DLJ High Yield Composite Index plus (B) 3.00%, and (iv)
the sum of (A) the interest rate applicable to such Note on the day
immediately preceding June 30, 2000 plus (B) .50%, in each case,
increasing by .50% on each Interest Payment Date thereafter until the
date the principal amount of, and accrued and unpaid interest on, if
any, such Note is paid in full."
(b) Section 2.05(d) of the Securities Purchase Agreement, as amended
by Amendment Number 1, is hereby amended by deleting therein each occurrence of
the words "Ocotber 31, 1999" in their entirety and replacing them with "June 30,
2000" so that Section 2.05(d) of the Securities Purchase Agreement is restated
as follows:
"(d) In addition to any adjustments to the Interest Rate set
forth in subsections (b) and (c) of this Section 2.05, if, pursuant to
the terms of the Debt Registration Rights Agreement, a Shelf
Registration with respect to the Notes either (i) has not been filed
with the Commission on or prior to the 90th day following June 30,
2000 or (ii) has not been declared effective by the Commission on or
prior to the 180th day following June 30, 2000, then the Company shall
pay liquidated damages thereafter of $.192 per week per $1,000
principal amount of Notes outstanding until the date on which the
Shelf Registration is declared effective by the Commission. Following
the effectiveness of the Shelf Registration, the Company shall also
pay such liquidated damages beginning on the first date on which such
Shelf Registration ceases to remain effective and shall continue at
such increased interest rate until such Shelf Registration is again
declared effective by the Commission."
(c) Section 2.05(e) of the Securities Purchase Agreement, as amended
by Amendment Number 1, is hereby amended by deleting therein the words October
31, 1999" in their entirety and replacing them with "June 30, 2000" so that
Section 2.05(e) of the Securities Purchase Agreement is restated as follows:
"(e) The Purchaser may, on June 30, 2000, fix the interest
rate on the Notes at a rate to be determined by the Purchaser in its
sole discretion provided that such rate shall not exceed seventeen
percent (17.00%)."
3. Shelf Registration. Section 3 of the Debt Registration Rights
Agreement, as amended by Amendment Number 1, is hereby amended by deleting
therein the words "October 31, 1999" in their entirety and replacing them with
"June 30, 2000" so that Section 3 of the Debt Registration Rights Agreement is
restated as follows:
"3. SHELF REGISTRATION. The Registrants shall file, and shall use
their best efforts to cause to become effective a "shelf" registration
statement on any appropriate form pursuant to Rule 415 (or similar
rule that may be adopted by the SEC) under the Securities Act (a
"Shelf Registration") on or as soon as practicable after June 30, 2000
in order to permit registered resales of all of the Registrable
Securities. Subject to the last paragraph of Section 6, the
Registrants agree to use their best efforts thereafter to keep such
Shelf Registration continuously effective, and to prevent the
happening of any event of the kind described in Section 6(c) hereof
that requires the Registrants to give notice pursuant to the last
paragraph of Section 6 hereof, until such time as all the Registrable
Securities covered by the Shelf Registration have been sold pursuant
to such Shelf Registration or have been otherwise redeemed in full by
the Company."
4. RELEASE OF WARRANTS. Section 2 of the Escrow Agreement, as
amended by Amendment Number 1, is hereby amended by deleting therein each
occurrence of the words "October 31, 1999" in their entirety and replacing them
with "June 30, 2000" so that Section 2 of the Escrow Agreement is restated as
follows (with the defined term "First Anniversary Date" now being used to refer
to June 30, 2000):
"2. RELEASE OF WARRANTS.
(a) If Notes remain outstanding on June 30, 2000 (the "FIRST
ANNIVERSARY DATE") and, so long as Notes remain outstanding, and if
the Escrow Agent shall have received written notice in the form of
Exhibit A hereto from the Majority Holders (as such term is defined in
the Securities Purchase Agreement), then the Escrow Agent shall
release Warrants on any one or more occasions in an aggregate amount
not to exceed the Eligible Percentage (as defined below) (as of the
date of any such notice) as shall be specified in the notice to the
Escrow Agent of the amount of Warrants originally placed into escrow
pursuant to this Escrow Agreement. Upon the redemption in full of the
Notes, and the receipt by the Escrow Agent of written notice in the
form of Exhibit B hereto from the Majority Holders, the Escrow Agent
shall release Warrants remaining in escrow, to the extent that such
Warrants have not been "earned" as set forth in Section 2(b) below,
upon such sale or redemption to Holdings. If, upon such redemption,
Warrants that have been "earned" but not released shall be released to
the holders of the Notes in accordance with Section 2(b) below.
(b) The "ELIGIBLE PERCENTAGE" with respect to any Warrants to be
released from escrow pursuant to this Escrow Agreement on June 30,
2000 (the "FIRST ANNIVERSARY DATE") and on each date after the First
Anniversary Date (each such date, including the First Anniversary
Date, a "RELEASE DATE") set forth under Column A below, until the
Notes have been redeemed or repurchased in full, shall be the sum of
(1) the percentage set forth in Column B below and (2) the cumulative
percentage of all Warrants previously "earned" pursuant to clause (1)
above on each of the prior dates under Column A that have occurred and
that have not been previously released pursuant to this Escrow
Agreement. Each holder of Notes shall be entitled to a pro rata share
of Warrants equal to the product of (a) the ratio of the aggregate
principal amount of all Notes held by such holder at the time of such
"earn-in" release to the aggregate principal amount of all Notes then
outstanding and (b) the amount of Warrants "earned" pursuant to
clauses (1) and (2) above.
Once "earned," Warrants remain "earned" and the fully-vested
property of the holder of Notes, as the case may be, despite any
future payments or redemptions of the Notes.
A B
Release Date Percentage
First Anniversary Date 5.0%
91 5.0%
181 10.0%
271 10.0%
361 12.5%
451 12.5%
541 15.0%
631 15.0%
721 15.0%
(c) Holdings will provide, or cause to be provided, to the
Escrow Agent all such information as the Escrow Agent may from time to
time reasonably request."
5. COUNTERPARTS. This Amendment be executed in any number of
counterparts, each of which shall be an original with the same effect as if the
signatures thereto and hereto were upon the same instrument.
6. ENTIRE AGREEMENT. This Amendment, together with the Securities
Purchase Agreement, the Debt Registration Rights Agreement and the Escrow
Agreement, and the exhibits and schedules thereto, is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein or therein. This Amendment, together with the Securities
Purchase Agreement, the Debt Registration Rights Agreement and the Escrow
Agreement, and the exhibits and schedules thereto, supersede all prior
agreements and understandings between the parties with respect to such subject
matter. Except to the extent specifically set forth herein, the Securities
Purchase Agreement, the Debt Registration Rights Agreement and the Escrow
Agreement, shall remain in full force and effect and shall not be deemed amended
or superseded in any respect.
7. INCORPORATION BY REFERENCE. Sections 9.01, 9.02, 9.07, 9.09
and 9.10 of the Securities Purchase Agreement are incorporated herein by
reference as if included herein.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers, as of the date first
above written.
TRUE TEMPER CORPORATION
By:/s/XXXX X. XXXXX
Name:Xxxx X. Xxxxx
Title:
EMHART, INC.
By:/s/XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX, INC., as Escrow Agent
By:/s/XXXXXXX XXXXXXX
Name:Xxxxxxx Xxxxxxx
Title:
