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EXHIBIT 10.48
LIMITED WAIVER
TO
RECEIVABLES TRANSFER AGREEMENT
THIS LIMITED WAIVER TO RECEIVABLES TRANSFER AGREEMENT, dated as of March
19, 2001 (this "Limited Waiver") relates to that certain Receivables Transfer
Agreement dated as of February 10, 1999 (as amended by the First Amendment to
Receivables Transfer Agreement, dated as of April 28, 2000 (the "First
Amendment"), as further amended by the Second Amendment to Receivables Transfer
Agreement, dated as of December 29, 2000 (the "Second Amendment") and as it may
be further amended, supplemented, restated or otherwise modified from time to
time, the "Transfer Agreement") and is entered into by and among GOLF FUNDING
CORPORATION, a Delaware Corporation ("GFC"), CALLAWAY GOLF SALES COMPANY, a
California corporation, as the originator (in such capacity, the "CGS
Originator") and as the servicer (in such capacity, the "Servicer"), CALLAWAY
GOLF COMPANY, a Delaware corporation, as the parent guarantor (the "Parent
Guarantor"), REDWOOD RECEIVABLES CORPORATION, as the purchaser (the
"Purchaser"), and GENERAL ELECTRIC CAPITAL CORPORATION, as the operating agent
and the collateral agent ("GECC").
W I T N E S S E T H
WHEREAS, GFC, the CGS Originator, the Servicer and the Parent Guarantor
(collectively, the "Parties") have entered into the Transfer Agreement;
WHEREAS, Parent Guarantor has notified the other Parties that it has
formed a domestic company ("Shell Co.") to be a wholly-owned subsidiary of
Borrower (the "Subsidiary Formation");
WHEREAS, Parent Guarantor has notified the other Parties that the bank
guaranty currently provided by Callaway Golf Europe, Ltd. ("CG Europe") to
ensure the deferment of United Kingdom ("U.K.") customs and excise duties
applied to products imported to the U.K., needs to be increased and, in
connection therewith, Parent Guarantor will provide a letter of comfort to
support such bank guaranty (as more fully described in Exhibit A attached
hereto, the "Bank Guaranty");
WHEREAS, Parent Guarantor has requested that the Parties grant a limited
waiver (the "Limited Waivers" and each, a "Limited Waiver") to Section 4.05(c)
(Mergers, Subsidiaries, Etc.) of the Transfer Agreement solely with respect to
the Subsidiary Formation;
WHEREAS, Parent Guarantor has requested that the Parties grant a Limited
Waiver to Sections 4.05(a) (Restricted Payments) and 4.05(b) (Indebtedness)
solely with respect to the Bank Guaranty; and
WHEREAS, the Parties are willing to so provide the Limited Waivers on the
terms and conditions set forth herein.
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NOW, THEREFORE, in consideration of the above premises, the Parties, the
Purchaser, the Operating Agent, and the Collateral Agent agree as follows:
1. Definitions and Usage. Capitalized terms used, but not defined, herein
have the meanings ascribed to such terms in Annex X. Any reference herein to
Section, Exhibit or Schedule shall, unless otherwise specified, refer to such
Section, Exhibit or Schedule hereof, in its entirety.
2. Limited Waivers. Upon the Effective Date (as defined in Section 4
below), and as limited herein, the Parties hereby waive the following provisions
of the Transfer Agreement solely with respect to the matters expressly described
below:
a. Section 4.05(c) (Mergers, Subsidiaries, Etc.) solely with respect
to the Subsidiary Formation; provided that should (i) Parent Guarantor
make an investment in, and/or loan to, Shell Co. or (ii) Shell Co. incur
or assume any indebtedness, Parent Guarantor shall promptly notify the
other parties in writing of the details and terms of such investment, loan
or indebtedness.
b. Sections 4.05(a) (Restricted Payments), 4.05(b) (Indebtedness)
solely with respect to the Bank Guaranty, provided that the Limited Waiver
to Section 4.05(a) permitting Parent Guarantor and/or CG Europe to enter
into any lending or borrowing transaction relating to the Bank Guaranty
shall be limited to only such lending or borrowing transactions that in
the aggregate does not exceed U.S. $7,000,000, and provided further that
the Limited Waiver to Section 4.05(b) permitting Parent Guarantor and/or
CG Europe to create, incur, assume or permit to exist Debt relating to the
Bank Guaranty shall be limited to only such Debt that in the aggregate
does not exceed U.S. $7,000,000.
c. The Limited Waivers shall be limited to those Events of Default,
if any, arising solely from the Subsidiary Formation and Bank Guaranty as
described herein and do not apply to any past, present or future Events of
Default caused by any other violation of Sections 4.02 or 4.03 or other
provisions of the Transfer Agreement or any of the Related Documents.
3. Representations and Warranties. The Parties hereby jointly and
severally represent and warrant to GFC that, as of the Effective Date and after
giving effect to this Limited Waiver:
a. All of the representations and warranties of the Parties
contained in this Limited Waiver, the Transfer Agreement and the other
Related Documents are true and correct in all material respects on and as
of the Effective Date, as if then made (other than representations and
warranties which expressly speak as of a different date, which shall be
true and correct in all material respects as of that date); and
b. No Termination Event or Incipient Termination Event has occurred
and is continuing or will result after giving effect to this Limited
Waiver.
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4. Effective Date. This Limited Waiver shall become effective as of the
date first written above (the "Effective Date") upon the satisfaction of each of
the following conditions:
a. GFC shall have received each of the following documents, in each
case in form and substance satisfactory to GFC:
i. counterparts hereof executed by each of the Parties;
ii. duly executed amendments to the Related Documents
effecting all modifications necessary to permit the Subsidiary
Formation, together with a certificate of the Chief Financial
Officer of the Parent Guarantor and the CGS Originator certifying
that all conditions to the effectiveness of the amendments have been
satisfied and that the amendments are in full force and effect as of
the Effective Date;
iii. the duly executed Pledge Amendment reflecting the
Subsidiary Formation accompanied by the share certificate
representing the outstanding Shell Co. Stock being pledged and a
stock power for such share certificate executed in blank;
iv. a certificate of the Secretary or Assistant Secretary of
each of the Parties dated the Effective Date certifying (A) that the
bylaws of such Party have not been amended or otherwise modified
since the date of the most recent certification thereof by the
Secretary or Assistant Secretary of such Party delivered to GFC and
remain in full force and effect as of the Effective Date, (B) that
the charter of such Party has not been amended or otherwise modified
since the date of the most recent certification thereof by the
Secretary of State of such Party's jurisdiction of incorporation
delivered to GFC and remain in full force and effect as of the
Effective Date and (C) that the execution, delivery and performance
of this Limited Waiver have been duly authorized by all necessary or
proper corporate and shareholder action; and
v. such additional documentation as GFC may reasonably
request;
b. No law, regulation, order, judgment or decree of any Governmental
Authority shall, and GFC shall not have received any notice that
litigation is pending or threatened which is likely to, enjoin, prohibit
or restrain the consummation of the transactions contemplated by this
Limited Waiver, except for such laws, regulations, orders or decrees, or
pending or threatened litigation, that in the aggregate could not
reasonably be expected to have a Material Adverse Effect;
c. All of the representations and warranties of the Parties
contained in this Limited Waiver, the Transfer Agreement and the other
Related Documents shall be true and correct in all material respects on
and as of the Effective Date, as if then made (other than representations
and warranties which expressly speak as of a different date, which shall
be true and correct in all material respects as of that date);
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d. All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated by this Limited Waiver shall be satisfactory in all respects
in form and substance to GFC; and
e. No Termination Event or Incipient Termination Event shall have
occurred and be continuing on the Effective Date or will result after
giving effect to this Limited Waiver.
5. Reference to and Effect on the Related Documents.
a. Upon the Effective Date, each reference in the Transfer Agreement
to "this Agreement", "hereunder", "hereof" or words of like import, and
each reference in the Loan Documents and the other Related Documents to
the Transfer Agreement, shall mean and be a reference to the Transfer
Agreement as amended and supplemented hereby.
b. Except to the extent specifically set forth herein, the
respective provisions of the Transfer Agreement and the other Related
Documents shall not be amended, modified, waived, impaired or otherwise
affected hereby, and such documents and the Obligations under each of them
are hereby confirmed as being in full force and effect.
c. This Limited Waiver shall be limited solely to the matters
expressly set forth herein and shall not (i) constitute an amendment or
waiver of any other term or condition of the Transfer Agreement or any
other Related Document, (ii) prejudice any right or rights which any of
the Parties may now have or may have in the future under or in connection
with the Transfer Agreement or any other Related Document, (iii) require
any of the Parties to agree to a similar transaction on a future occasion
or (iv) create any right herein to another Person or other beneficiary or
otherwise, except to the extent specifically provided herein.
6. Miscellaneous. This Limited Waiver is a Related Document. The headings
herein are for convenience of reference only and shall not alter or otherwise
affect the meaning hereof.
7. Section Titles. The Section titles in this Limited Waiver are and shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto.
8. Counterparts. This Limited Waiver may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
9. GOVERNING LAW. THIS LIMITED WAIVER, AND ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE HEREOF, SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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10. No Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Limited Waiver. In the event an
ambiguity or question of intent or interpretation arises, this Limited Waiver
shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Limited Waiver.
11. Waiver by Parent Guarantor, CGS Originator, the Servicer and GFC. Each
of the Parent Guarantor, the CGS Originator, the Servicer and GFC hereby waives
any claim, defense, demand, action or suit of any kind or nature whatsoever
against the Purchaser, the Operating Agent or the Collateral Agent arising on or
prior to the date of this Limited Waiver in connection with any of the Related
Documents or the transactions contemplated thereunder.
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IN WITNESS WHEREOF, GFC, the CGS Originator, the Servicer, the Parent
Guarantor, the Purchaser, the Operating Agent and the Collateral Agent have
caused this Limited Waiver to be executed by their respective officers thereunto
duly authorized as of the date first above written.
GOLF FUNDING CORPORATION
By:
--------------------------------
Name:
Title:
Signature Page
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CALLAWAY GOLF SALES COMPANY,
as CGS Originator and as Servicer
By:
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Name:
Title:
Signature Page
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CALLAWAY GOLF COMPANY,
as Parent Guarantor
By:
--------------------------------
Name:
Title:
Signature Page
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REDWOOD RECEIVABLES CORPORATION,
as Purchaser
By:
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Name:
Title:
Signature Page
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GENERAL ELECTRIC CAPITAL CORPORATION,
as Operating Agent and as Collateral Agent
By:
--------------------------------
Name:
Title:
Signature Page
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EXHIBIT A
TO
LIMITED WAIVER TO RECEIVABLES TRANSFER AGREEMENT
(SEE ATTACHED)
Exhibit A
