AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"AMENDMENT") is entered into to be effective as of August 13, 1999, between
XXXXX GOLF DIRECT RESPONSE, LTD., a Texas limited partnership, and XXXXX GOLF,
LTD., a Texas limited partnership (individually, a "BORROWER" and collectively,
"BORROWERS"), and BANK OF AMERICA, N.A., a national banking association,
formerly NationsBank, N.A., successor by merger to NationsBank of Texas, N.A.
("LENDER").
R E C I T A L S
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1. Borrowers and Lender are parties to that certain Amended and
Restated Revolving Credit Agreement dated as of February 26, 1999 (as modified,
amended, renewed, extended, and restated from time to time, the "CREDIT
AGREEMENT").
2. The parties hereto desire to amend the Credit Agreement subject to
the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrowers and Lender agree as
follows:
1. TERMS AND REFERENCES. Unless otherwise stated in this Amendment
(a) terms defined in the Credit Agreement have the same meanings when used in
this Amendment, and (b) references to "SECTIONS" are to the Credit Agreement's
sections.
2. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit Agreement is
hereby amended as follows:
(a) SECTION 1.1 is hereby amended to add the following definitions:
"CAPITAL EXPENDITURE" means any expenditure by a Person for an asset
which is properly classifiable in relevant financial statements of such Person
prepared in accordance with GAAP as a capital asset.
"CONSOLIDATED TANGIBLE NET WORTH" means, for any Person as of any date,
the total shareholder's equity of such Person LESS the aggregate book value of
Intangible Assets of such Person.
"ELIGIBLE BONDS" means corporate and municipal debt instruments and
corporate preferred stock which are (a) rated at least AA or the equivalent
thereof by Standard & Poor's Rating Group, a division of McGraw Hill, Inc., a
New York corporation or at least Aa or the equivalent thereof by Xxxxx'x
Investors Service, Inc., (b) regularly traded on a Public Market, and (c) not
subject to any federal or state securities laws or other laws which restrict or
limit their sale or transfer.
"ELIGIBLE GOVERNMENT SECURITIES" means obligations which are (a) issued
or guaranteed by the United States of America or any instrumentality thereof,
(b) regularly traded on a Public Market, and (c) not subject to any federal or
state securities laws or other laws which restrict or limit their sale or
transfer.
"ELIGIBLE SECURITIES" means common stock equity securities that are
(a) regularly traded on a Public Market, and (b) not subject to any federal or
state securities laws or other laws which restrict or limit their sale or
transfer.
"INTANGIBLE ASSETS" of any Person means those assets of such Person which
are (a) deferred assets, OTHER THAN prepaid insurance and prepaid taxes,
(b) patents, copyrights, trademarks, tradenames, franchises, goodwill,
experimental expenses, and other similar assets which would be classified as
intangible assets on a balance sheet of such Person, (c) unamortized debt
discount and expense, and (d) assets located, and notes and receivables due from
obligors domiciled, outside of the United States of America.
"PUBLIC MARKET" means a nationally recognized United States public
exchange or market acceptable to Lender on which securities, debt instruments,
and/or mutual funds are regularly traded.
(b) SECTION 7.14 is hereby deleted in its entirety and replaced with
the following:
7.14 MINIMUM TANGIBLE NET WORTH. Borrowers shall not permit, as
of any date, the Consolidated Tangible Net Worth of the Companies, on a
consolidated basis, to be less than $67,500,000.00.
(c) The following SECTION is hereby added as SECTION 7.17:
7.17. LIMITATION ON CAPITAL EXPENDITURES. Borrowers shall not
permit the aggregate amount of all Capital Expenditures made by the
Companies during any fiscal year ending after the date hereof to exceed
$10,000,000.00.
(d) The following SECTION is hereby added as SECTION 7.18:
7.18 LIQUID ASSETS. Borrowers shall not, as of any date, permit
the ratio of (a) THE SUM OF (i) cash, (ii) Temporary Cash Investments,
and (iii) the fair market value of Eligible Bonds, Eligible Government
Securities, and Eligible Securities of the Companies, to (b) THE SUM OF
(i) all Indebtedness of the Companies, PLUS (ii) the Unused Commitment,
in each case as of such date, to be less 3.0 to 1.0.
(e) SECTION 8.1(c) is hereby deleted in its entirety and replaced with
the following:
(c) default shall occur in the performance of (i) any of the
covenants or agreements of any Company contained in SECTION 6.1 and
SECTION 7, or (ii) any other covenants or agreements of any Company
contained herein or in any of the other Loan Documents and, in the case
of (II), such failure shall continue for ten (10) days after written
notice thereof from Lender to Borrower; or
(f) EXHIBIT A is hereby deleted in its entirety and replaced with
EXHIBIT A attached hereto.
(g) SCHEDULE 5.10 is hereby deleted in its entirety and replaced with
SCHEDULE 5.10 attached hereto.
3. WAIVERS.
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(a) Lender hereby waives any Potential Default or Event of Default
arising from Borrowers' failure to comply with the fixed charges ratio set forth
in SECTION 7.14 of the Credit Agreement as of the fiscal quarter ended June 30,
1999.
(b) The waiver hereby granted by Lender (i) is limited expressly as
written, (ii) does not impair Lender's rights to insist upon strict compliance
with the Credit Agreement and the other Loan Documents, and (iii) do not extend
to any other Loan Document.
4. AMENDMENTS TO OTHER LOAN DOCUMENTS.
(a) All references in the Loan Documents to the Credit Agreement shall
henceforth include references to the Credit Agreement, as modified and amended
hereby, and as may, from time to time, be further amended, modified, extended,
renewed, and/or increased.
(b) Any and all of the terms and provisions of the Loan Documents are
hereby amended and modified wherever necessary, even though not specifically
addressed herein, so as to conform to the amendments and modifications set forth
herein.
5. RATIFICATIONS. Each Borrower (a) ratifies and confirms all
provisions of the Loan Documents as amended by this Amendment, (b) ratifies and
confirms that all guaranties, assurances, and liens granted, conveyed, or
assigned to Lender under the Loan Documents are not released, reduced, or
otherwise adversely affected by this Amendment and continue to guarantee,
assure, and secure full payment and performance of the present and future Loans,
and (c) agrees to perform such acts and duly authorize, execute, acknowledge,
deliver, file, and record such additional documents, and certificates as Lender
may request in order to create, perfect, preserve, and protect those guaranties,
assurances, and liens.
6. REPRESENTATIONS. Each Borrower represents and warrants to Lender
that as of the date of this Amendment: (a) this Amendment and the other Loan
Documents to be delivered under this Amendment have been duly authorized,
executed, and delivered by Borrowers; (b) no action of, or filing with, any
governmental authority is required to authorize, or is otherwise required in
connection with, the execution, delivery, and performance by Borrowers of this
Amendment; (c) the Loan Documents, as amended by this Amendment, are valid and
binding upon Borrowers and are enforceable against Borrowers in accordance with
their respective terms; (d) the execution, delivery, and performance by
Borrowers of this Amendment do not require the consent of any other person and
do not and will not constitute a violation of any laws, agreements, or
understandings to which any Borrower is a party or by which any Borrower is
bound; (e) all representations and warranties in the Loan Documents (as amended
hereby) are true and correct in all material respects except to the extent that
(i) any of them speak to a different specific date, or (ii) the facts on which
any of them were based have been changed by transactions contemplated or
permitted by the Credit Agreement; and (f) after giving effect to this
Amendment, no Potential Default or Event of Default exists.
7. CONTINUED EFFECT. Except to the extent amended hereby, all terms,
provisions and conditions of the Credit Agreement and the other Loan Documents,
and all documents executed in connection therewith, shall continue in full force
and effect and shall remain enforceable and binding in accordance with their
respective terms.
8. CONDITIONS PRECEDENT. This Amendment shall not be effective
unless and until: (a) Lender receives a fully-executed copy of this Amendment,
and (b) the representations and warranties in the Loan
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Agreement, as amended by this Amendment, and each other Loan Document are
true and correct in all material respects on and as of the date of this
Amendment as though made as of the date of this Amendment.
9. MISCELLANEOUS. Unless stated otherwise (a) the singular number
includes the plural and VICE VERSA and words of any gender include each other
gender, in each case, as appropriate, (b) headings and captions may not be
construed in interpreting provisions, (c) this Amendment must be construed --
and its performance enforced -- under Texas law, (d) if any part of this
Amendment is for any reason found to be unenforceable, all other portions of it
nevertheless remain enforceable, and (e) this Amendment may be executed in any
number of counterparts with the same effect as if all signatories had signed the
same document, and all of those counterparts must be construed together to
constitute the same document.
10. ENTIRETIES. THE CREDIT AGREEMENT AS AMENDED BY THIS AMENDMENT
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF
THE CREDIT AGREEMENT AS AMENDED BY THIS AMENDMENT AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
11. PARTIES. This Amendment binds and inures to Borrowers and Lender,
and their respective successors and permitted assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES TO FOLLOW]
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EXECUTED as of the date first stated above.
BORROWERS:
XXXXX GOLF DIRECT RESPONSE, LTD.,
By: XXXXX GOLF GP CORP., a Delaware
corporation, General Partner
By:____________________________
Name:_______________________
Title:______________________
XXXXX GOLF, LTD., a Texas limited partnership
By: XXXXX GOLF GP CORP., a Delaware
corporation, General Partner
By:____________________________
Name:_______________________
Title:______________________
LENDER:
BANK OF AMERICA, N.A., a national banking
association, formerly NationsBank, N.A.,
successor by merger to NationsBank of Texas,
N.A.
By:_________________________________
Xxxxxx Xxxxxxxx
Senior Vice President
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To induce Lender to enter into this Amendment, each of the undersigned
jointly and severally (a) consent and agree to the execution and delivery of
this Amendment, (b) ratify and confirm that all guaranties, assurances, and
liens granted, conveyed, or assigned to Lender under the Loan Documents are not
released, diminished, impaired, reduced, or otherwise adversely affected by this
Amendment and continue to guarantee, assure, and secure the full payment and
performance of all present and future Loans, (c) agree to perform such acts and
duly authorize, execute, acknowledge, deliver, file, and record such additional
guaranties, assignments, security agreements, deeds of trust, mortgages, and
other agreements, documents, instruments, and certificates as Lender may
reasonably deem necessary or appropriate in order to create, perfect, preserve,
and protect those guaranties, assurances, and liens, and (d) waive notice of
acceptance of this consent and agreement, which consent and agreement binds the
undersigned and their successors and permitted assigns and inures to Lender and
their respective successors and permitted assigns.
XXXXX GOLF, INC., a Delaware corporation
By: ____________________________________________
Name:_______________________________________
Title:______________________________________
XXXXX GOLF HOLDING CORP., a Delaware corporation
By: ____________________________________________
Name:_______________________________________
Title:______________________________________
XXXXX GOLF GP CORP., a Delaware corporation
By: ____________________________________________
Name:_______________________________________
Title:______________________________________
XXXXX GOLF MANAGEMENT CORP., a Delaware
corporation
By: ____________________________________________
Name:_______________________________________
Title:______________________________________
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XXXXX GOLF IP, L.P., a Delaware limited partnership
By: XXXXX GOLF GP CORP., a Delaware corporation,
General Partner
By: _______________________________________
Name:__________________________________
Title:_________________________________
XXXXX GOLF FOREIGN SALES CORPORATION, a
Barbados corporation
By: ______________________________________________
Name:_________________________________________
Title:________________________________________
XXXXX GOLF RAC CORP.,a Delaware corporation
By: ______________________________________________
Name:_________________________________________
Title:________________________________________
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EXHIBIT A
FORM OF COMPLIANCE CERTIFICATE
FOR PERIOD ENDED ________________________ (THE "SUBJECT PERIOD")
LENDER: Bank of America, N.A.
BORROWERS: Xxxxx Golf Direct Response, Ltd. and Xxxxx Golf, Ltd.
This certificate is delivered under the Amended and Restated Revolving
Credit Agreement (as modified, amended, renewed, extended, and restated from
time to time, the "CREDIT AGREEMENT") dated as of February 26, 1999, between
Borrowers and Lender. Capitalized terms when used in this certificate shall,
unless otherwise indicated, have the meanings set forth in the Credit Agreement.
The undersigned certify to Lender that, on the date of this certificate, (a) the
Financial Statements of the Companies attached to this certificate were prepared
in accordance with GAAP, and present fairly the financial condition and results
of operations of the Companies as of the end of and for the Subject Period,
(b) no Potential Default or Event of Default currently exists or has occurred
which has not been cured or waived by Lender, and (c) the status of compliance
by the Companies with certain covenants of the Credit Agreement as of the end of
the Subject Period is as set forth below:
In Compliance as of
End of Subject Period
(Please Indicate)
1. FINANCIAL STATEMENTS AND REPORTS.
(a) Provide annual audited FYE financial statements
within one hundred twenty (120) days after last
day of each fiscal year. Yes No
(b) Provide quarterly financial statements as required by
SECTION 6.1(a) of the Credit Agreement. Yes No
(c) Provide a Compliance Certificate and accounts receivable
aging contemporaneously with the delivery of the quarterly
financial statements described in (b) above. Yes No
2. ADDITIONAL INDEBTEDNESS.
None, except Indebtedness permitted by SECTION 7.1 of
the Credit Agreement. Yes No
3. LIENS AND ENCUMBRANCES; NEGATIVE PLEDGE AGREEMENTS.
None at any time, except as permitted by SECTION 7.2 of
the Credit Agreement. Yes No
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4. DIVIDENDS.
None except as permitted by SECTION 7.4 of
the Credit Agreement. Yes No
5. INVESTMENTS.
None, except as permitted by SECTION 7.5 of
the Credit Agreement. Yes No
6. AFFILIATE TRANSACTIONS.
None, except as permitted by SECTION 7.6 of the Credit
Agreement. Yes No
7. CHANGE IN EXECUTIVE PERSONNEL.
None except as permitted by SECTION 7.7 of
the Credit Agreement. Yes No
8. DISPOSAL OF MATERIAL ASSETS OTHER THAN IN THE ORDINARY
COURSE OF BUSINESS.
None. Yes No
9. SUBSIDIARIES.
None, except as permitted by SECTION 7.9 of the
Credit Agreement. Yes No
10. LIMITATION OF ACQUISITIONS AND MERGERS.
None, except as permitted by SECTION 7.10 of
the Credit Agreement. Yes No
11. CHANGES IN BUSINESS OF BORROWERS; CHANGES IN RECEIVABLES POLICY,
OTHER THAN IN THE ORDINARY COURSE OF BUSINESS.
None. Yes No
12. GUARANTIES OF THIRD PARTY INDEBTEDNESS.
None. Yes No
13. SALE AND LEASEBACK TRANSACTIONS.
None. Yes No
14. CONSOLIDATED TANGIBLE NET WORTH.
Minimum of $67,500,000.00 (defined as
total shareholder's equity less Intangible Assets). Yes No
(________________ - ___________________) = ____________
Shareholder's Intangible Assets
Equity
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15. DEBT TO EBITDA.
Maximum of 2.0 to 1.0
(Indebtedness to EBITDA)
EBITDA =____________+____________+____________+____________=____________
Consolidated Depreciation Cash Interest Taxes
Adjusted Net and Expense
Income Amortization
____ DIVIDED BY ____________ = ____________ Yes No
Indebtedness EBITDA
16. CHANGE OF BORROWERS' FISCAL YEARS.
None. Yes No
17. CHANGE OF THE COMPANIES' METHODS OF ACCOUNTING.
None. Yes No
18. CAPITAL EXPENDITURES.
Maximum of $10,000,000.00 in any fiscal year. Yes No
Capital Expenditures = $____________
19. LIQUID ASSETS TO INDEBTEDNESS.
Minimum of 3.0 to 1.0
(defined as the ratio of (a) cash, Eligible Bonds, Eligible Government
Securities, Eligible Securities, and Temporary Cash Investments,
to (b) Indebtedness plus Unused Commitment) Yes No
Cash $ ____________
Eligible Bonds ____________
Eligible Government Securities ____________
Eligible Securities ____________
Temporary Cash Investments ____________
Subtotal $ ____________(a)
Indebtedness ____________
Unused Commitment ____________
Subtotal ____________(b)
Ratio of (a) to (b) ____________
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BORROWERS:
XXXXX GOLF DIRECT RESPONSE, LTD., a
Texas limited partnership
By: XXXXX GOLF GP, CORP., a Delaware
corporation, General Partner
By: ____________________________
Name:_______________________
Title:______________________
XXXXX GOLF, LTD., a Texas limited
partnership
By: XXXXX GOLF GP, CORP., a Delaware
corporation, General Partner
By: ____________________________
Name:_______________________
Title:______________________
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SCHEDULE 5.10
LITIGATION
1. C&A INTERNATIONAL, INC. d/b/a NICKENT GOLF EQUIPMENT, XXXX-XXXX XXXXX AND
XXXXXXX XXXXX X. XXXXX GOLF, INC. AND XXXXXXXXXX GOLF CENTER, INC. d/b/a
XXXXXX GOLF PRO SHOP, CIVIL ACTION 1:98 CV 0166 filed January 23, 1998 in
the United States District Court for the Northern District of Ohio,
Eastern Division.
2. XXXXX X. XXXX ENTERPRISES, INC. filed in the U.S. District Court -
Northern District of Texas. Xxxxx Golf initiated this litigation on
March 3, 1998 against Xxxx Enterprises ("Xxxx") arising out of the sale
by Xxxx of so-called "knock-off" golf clubs. Xxxxx Golf has asserted
claims for patent infringement, false advertisement and unfair
competition. In its lawsuit, Xxxxx sought injunctive relief, as well as
damages for potential infringement and has participated in court-ordered
settlement discussions. No depositions have been taken. Xxxx filed a
motion for summary judgment, which is pending before the court. Xxxxx
Golf has filed a motion for leave to file a second amended complaint,
which is pending before the court. In this proposed second amended
complaint, Xxxxx Golf asserts claims for unfair competition (15 U.S.C.
Section 1125(a)), federal trademark infringement (15 U.S.C. Section
114), and common law unfair competition. The court has not yet issued
any decision on these motions. This case is set for trial on June 7,
1999.
3. Beginning in June 1999, the first of six purported class action lawsuits
was filed against Xxxxx Golf, Inc. (the "Company"), certain of its
current and former directors and the three underwriters of the Company's
initial public offering ("IPO") in the United States District Court for
the District of Delaware. The complaints allege violations of
SECTIONS 11, 12(a)(2) and 15 of the Securities Act of 1933 in connection
with the Company's IPO. In particular, the complaints alleged that the
Company made materially false and misleading statements and omissions in
the registration statement and incorporated prospectus, which became
effective July 9, 1998, concerning inventory and distribution of its
products. In addition, certain of the complaints alleged other factors
occurring subsequent to the IPO. Specifically, the proceedings pending
are as follows: XXXXXXX X XXXXXXXX X. XXXXX GOLF, INC., et al., Civil
Action No. 99-371 (D.Del.) filed on June, 1999; XXXX X. XXXXX X. XXXXX
GOLF, INC. et al., Civil Action No. 99-397 (D.Del.) filed on or about
June 22, 1999; F. XXXXXXX XXXXXX X. XXXXX GOLF, INC. et al., Civil Action
No. 99-421 (D.Del.) filed on or about July 2, 1999; XXXXXX X. XXXXXXXX X.
XXXXX GOLF, INC. et al., Civil Action No. 99-469 (D.Del.) filed on or
about July 22, 1999; XXXXXX XXXXX X. XXXXX GOLF, INC. et al., Civil
Action No. 99-498 (D.Del.) filed on or about August 3, 1999; and XXXX
XXXXXXXXXX X. XXXXX GOLF, INC. et al., Civil Action No. 99-511 (D.Del.)
filed on or about August 9, 1999. In each case, the plaintiffs are
seeking unspecified amounts of compensatory damages, interests, and
costs, including legal fees. The Company has denied the allegations in
the complaints and intends to defend against each of them vigorously.
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