EXECUTION COPY
AMENDMENT NO. 1 TO THE LOAN DOCUMENTS
Dated as of January 14, 2005
AMENDMENT NO. 1 TO THE LOAN DOCUMENTS (this "AMENDMENT") among XXXX TRUE
TEMPER, INC., a Delaware corporation (the "BORROWER"), ATT HOLDING CO., a
Delaware corporation, as a guarantor (the "GUARANTOR"), the banks, financial
institutions and other institutional lenders parties to the Credit Agreement
referred to below (collectively, the "LENDERS") and BANK OF AMERICA, N.A., as
administrative agent (the "ADMINISTRATIVE AGENT") for the Lenders.
PRELIMINARY STATEMENTS:
(1) WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into a Credit Agreement dated as of June 28, 2004 (as amended, amended
and restated, supplemented or otherwise modified through the date hereof, the
"CREDIT AGREEMENT"; capitalized terms not otherwise defined in this Amendment
have the same meanings as specified in the Credit Agreement);
(2) WHEREAS, in connection with the Credit Agreement, the Borrower and the
Grantors named therein entered into a Security Agreement dated as of June 28,
2004 (as amended, amended and restated, supplemented or otherwise modified
through the date hereof, the "SECURITY AGREEMENT");
(3) WHEREAS, the Borrower desires to prepay all outstanding Term Loans
under the Credit Agreement with the proceeds of an issuance of senior unsecured
notes of the Borrower (the "SENIOR NOTES") in an aggregate principal amount up
to $150,000,000;
(4) WHEREAS, the Borrower desires to permit Loans under the Revolving
Credit Facility to be made on a revolving basis up to the full amount of the
Revolving Credit Facility, subject to compliance with a borrowing base to be
comprised of eligible inventory and eligible receivables;
(5) WHEREAS, the Borrower has requested that the Lenders (a) amend the
Credit Agreement (i) to permit the issuance of the Senior Notes, (ii) to
incorporate a borrowing base for Revolving Credit Loans and (iii) to make other
amendments as described below and (b) amend the Security Agreement as set forth
below;
(6) WHEREAS, the Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend the Credit Agreement and the Security Agreement
in certain respects as set forth below.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the sufficiency and receipt of all of which is hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 4, hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by adding
the following definitions in the appropriate alphabetical order:
"BORROWING BASE CERTIFICATE" means a certificate in substantially the
form of Exhibit N hereto, duly certified by the Chief Financial Officer of
the Borrower.
"BORROWING BASE DEFICIENCY" means, at any time, the failure of (a) the
sum of the Loan Values of the Eligible Collateral at such time to equal or
exceed (b) the Total Outstandings.
"ELIGIBLE COLLATERAL" means, collectively, (a) Eligible Inventory, (b)
Eligible Receivables and (c) such equipment and real estate of the Borrower
and its Subsidiaries constituting Collateral that the Administrative Agent,
in its sole discretion, may elect to consider to be Eligible Collateral for
purposes of this Agreement with values, advance rates, reserves and
eligibility criteria determined by the Administrative Agent in its sole
discretion and not objected to by the Required Lenders within 10 days after
notice of such determination has been given to the Lenders by the
Administrative Agent.
"ELIGIBLE INVENTORY" means Inventory of the Borrower and its
Subsidiaries (i) held for sale in the ordinary course of business or (ii)
constituting raw materials or work in process that is intended to be used
in the manufacture or production of or converted into Inventory held for
sale in the ordinary course of business and, in each case, that is not
excluded as ineligible by virtue of one or more of the criteria set forth
below. The value of such Inventory shall be the lower of cost or fair
market value determined on a basis consistent with the historical
accounting practices of the Borrower and its Subsidiaries; provided,
however, that if, following an inventory appraisal pursuant to Section
6.02(i) hereto, it is determined that, after giving effect to the advance
rate set forth for Eligible Inventory in the definition of "LOAN VALUE",
80% of the orderly liquidation value of any Inventory is lower than 55% of
the cost or the fair market value of such Inventory, the value of such
Inventory shall be 80% of its orderly liquidation value. An item of
Inventory shall not be included in Eligible Inventory to the extent that it
is:
(a) Inventory located on leaseholds as to which the lessor has not
entered into a consent and agreement providing the Administrative Agent
with the right to receive notices of default, the right to repossess such
Inventory at any time and such other rights as may be requested by the
Administrative Agent, unless the Administrative Agent has instituted a
reserve equal to the rental costs under the applicable lease with respect
to such location for a three month period;
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(b) Inventory that is obsolete, or (except in the case of work in
process and raw materials) unusable or otherwise unavailable for sale;
(c) Inventory consisting of promotional, marketing, packaging or
shipping materials and supplies;
(d) Inventory that fails to meet all standards imposed by any
Governmental Authority having regulatory authority over such Inventory or
its use or sale;
(e) Inventory that uses any intellectual property of another Person
and that is subject to any licensing, patent, royalty, trademark, trade
name or copyright agreement with any third party from which the Borrower or
any of its Subsidiaries has received notice of a dispute in respect of any
such agreement, unless the Administrative Agent has instituted a reserve
against such Inventory equal to the amount in dispute;
(f) Inventory not located in the United States;
(g) Inventory at locations owned and operated by a third person as to
which the owner or operator has not entered into a collateral access
agreement or bailee letter in form and substance reasonably satisfactory to
the Administrative Agent with respect to such location, unless the
Administrative Agent has instituted a three-month reserve in respect of
amounts at any time due or to become due to the owner or operator thereof;
(h) Inventory with respect to which the representations and warranties
set forth in Section 9 of the Security Agreement applicable to Inventory
are not correct; and
(i) Inventory in respect of which the Security Agreement, after giving
effect to the related filings of financing statements that have then been
made, if any, does not or has ceased to create a valid and perfected first
priority lien or security interest in favor of the Collateral Agent, on
behalf of the Secured Parties, securing the Secured Obligations.
"ELIGIBLE RECEIVABLES" means Receivables created by the Borrower or
any of its Subsidiaries in the ordinary course of its business and that
arise out of its sale of goods or rendition of services, and that are not
excluded as ineligible by virtue of one or more of the criteria set forth
below. In determining the amount to be included, Eligible Receivables shall
be calculated net of customer deposits and unapplied cash remitted to the
Borrower and its Subsidiaries in respect of any Eligible Receivable.
Receivables shall not be included in Eligible Receivables to the extent
that they are:
(a) Receivables that do not arise out of sales of goods or rendering
of services in the ordinary course of the Borrower's or the relevant
Subsidiary's business;
(b) Receivables payable other than in Dollars or that are otherwise on
terms other than those normal or customary in the Borrower's or the
relevant Subsidiary's business;
(c) Receivables owing from any Person that is an Affiliate of the
Borrower;
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(d) Receivables more than 90 days past the original invoice date or
more than 60 days past the date due, except for Receivables not more than
180 days past the original invoice date in an aggregate amount not to
exceed $6,000,000 at any time;
(e) Receivables owing from any Person from which an aggregate amount
of more than 50% of the Receivables owing therefrom is either (i) more than
60 days past the date due or (ii) ineligible under one or more other
criteria set forth in clauses (d), (f), (g), (h), (j) or (l) of this
definition;
(f) Receivables owing from any Person that (i) has disputed liability
for any Receivable owing from such Person or (ii) has otherwise asserted
any claim, demand or liability against the Borrower or any of its
Subsidiaries, whether by action, suit, counterclaim or otherwise; provided
that such Receivables shall be excluded only to the extent of the amounts
being disputed or the amount of such claim, demand or liability by such
Person at any date of determination;
(g) Receivables owing from any Person that shall take or be the
subject of any action or proceeding of a type described in Section 9.01(f);
(h) Receivables (i) owing from any Person that is also a supplier to
or creditor of the Borrower or any of its Subsidiaries unless such Person
has waived any right of setoff in a manner acceptable to the Administrative
Agent or (ii) representing any manufacturer's or supplier's credits,
discounts, incentive plans or similar arrangements entitling the Borrower
or any of its Subsidiaries to discounts on future purchase therefrom;
provided that for purposes of subclause (f)(i) above, such Receivables
shall be excluded only to the extent of the setoff of such Person at any
date of determination;
(i) Receivables arising out of sales to account debtors outside the
United States unless such Receivables are fully backed by an irrevocable
letter of credit on terms, and issued by an Eligible Assignee that is a
financial institution or another financial institution, reasonably
acceptable to the Administrative Agent and such irrevocable letter of
credit is in the possession of the Administrative Agent;
(j) Receivables arising out of sales on a xxxx-and-hold, guaranteed
sale, sale-or-return, sale on approval or consignment basis or subject to
any right of return, setoff or charge back;
(k) Receivables owing from an account debtor that is an agency,
department or instrumentality of the United States or any state thereof
unless the Borrower or its relevant Subsidiary shall have satisfied the
requirements of the Assignment of Claims Act of 1940, and any similar state
legislation and the Administrative Agent is reasonably satisfied as to the
absence of setoffs, counterclaims and other defenses on the part of such
account debtor;
(l) Receivables with respect to which the representations and
warranties set forth in Section 9 of the Security Agreement applicable to
Receivables are not correct;
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(m) Receivables in respect of which the Security Agreement, after
giving effect to the related filings of financing statements that have then
been made, if any, does not or has ceased to create a valid and perfected
first priority lien or security interest in favor of the Collateral Agent,
on behalf of the Secured Parties, securing the Secured Obligations; and
(n) Reserves in respect of volume discounts, co-op advertising and
other similar refunds and expenses.
"INVENTORY" has the meaning set forth in Section 1(b) of the Security
Agreement.
"LOAN VALUE" means, with respect to any Eligible Collateral, an amount
equal to:
(a) with respect to Eligible Inventory, the lowest of 55% of the cost
or fair market value, determined on a basis consistent with the historical
accounting practices of the Borrower and its Subsidiaries, of Eligible
Inventory or, if an inventory appraisal has been performed pursuant to
Section 6.02(i), 80% of the orderly liquidation value of the Eligible
Inventory;
(b) with respect to Eligible Receivables, 85% of the value of
Eligible Receivables; and
(c) with respect to equipment or real property described in clause (c)
of the definition of "Eligible Collateral", the percentage of the value of
such equipment or real estate that is determined by the Administrative
Agent and not objected to by the Required Lenders in accordance with the
terms of such clause (c).
"RECEIVABLES" has the meaning specified in Section 1(c) of the
Security Agreement.
"SENIOR NOTES" has the meaning specified in Section 7.02(a)(D).
"SENIOR NOTES DOCUMENTS" means the Senior Notes Indenture, the Senior
Notes and all other agreements, instruments and other documents pursuant to
which the Senior Notes have been or will be issued or otherwise setting
forth the terms of the Senior Notes, in each case as such agreement,
instrument or other document may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof, but to the
extent permitted under the terms of the Loan Documents.
"SENIOR NOTES INDENTURE" means the indenture dated on or about January
14, 2005 between the Borrower, the Guarantor and The Bank of New York as
trustee, with respect to the Senior Notes.
(b) Section 1.01 of the Credit Agreement is hereby further amended as
follows:
(i) The definition of "CONSOLIDATED CASH INTEREST EXPENSE" is
hereby amended and restated in full to read as follows:
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""CONSOLIDATED CASH INTEREST EXPENSE" means, with respect to
any Person for any period, without duplication, the interest
expense paid in cash on all Indebtedness of such Person and its
Subsidiaries (net of all interest income of such Person and its
Subsidiaries) for such period and cash interest expense paid or
payable in such period on the Senior Notes and the Subordinated
Notes (or other similar Indebtedness), in each case, for the
first twelve months after issuance thereof, determined on a
consolidated basis in accordance with GAAP."
(ii) The definition of "CONSOLIDATED EBITDA" is hereby amended by
amending and restating clause (vi) thereof in full to read as follows:
"(vi) fees and expenses in connection with the issuance of
the Senior Notes and the exchange of the Subordinated Notes and
the Senior Notes for registered notes with identical terms as
contemplated by the Subordinated Notes Documents or the Senior
Notes Documents, as the case may be, or exchanges, redemptions or
refinancings permitted by this Agreement,"
(iii) The definition of "CONSOLIDATED EBITDA" is hereby further
amended by replacing the word "and" at the end of clause (viii)
thereof with a comma and adding a new clause (x) at the end of such
definition to read in full as follows:
"and (x) non-recurring cash expenses related to cost-saving
initiatives incurred prior to the end of the Borrower's fiscal
year 2006 in an aggregate amount not to exceed $3,000,000."
(iv) The definition of "CONSOLIDATED FIXED CHARGE COVERAGE RATIO"
is hereby amended by adding the following parenthetical immediately
following the phrase "Capital Expenditures" in clause (ii) therein
"(other than Capital Expenditures related to cost-saving initiatives
incurred prior to the end of the Borrower's fiscal year 2006 in an
aggregate amount not to exceed $5,000,000.)".
(v) The definition of "CONSOLIDATED FIXED CHARGE COVERAGE RATIO"
is hereby further amended by deleting from clause (iii) therein the
phrase "excluding Excess Cash Flow payments made pursuant to Section
2.05(b)(i)" and by adding the following phrase immediately following
the phrase "Section 7.02" in clause (iii) therein:
"and excluding the aggregate amount of the prepayment in
full of the Term Loans made during such period"
(vi) The definition of "EXCESS CASH FLOW" is hereby deleted in
its entirety.
(vii) The definition of "RELATED DOCUMENTS" is hereby amended and
restated in full to read as follows:
""RELATED DOCUMENTS" means the Purchase Agreement, the
Subordinated Notes Indenture, the Senior Notes Indenture and the
Bridge Facility Documents."
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(viii) The definition of "CONSOLIDATED INTEREST COVERAGE RATIO"
is hereby deleted in full.
(c) Sections 2.05(b)(i), (ii), (iii), and (iv) of the Credit Agreement
are hereby deleted in their entirety, and the following hereby substituted:
"Intentionally omitted."
(d) Section 2.05(b)(v) of the Credit Agreement is hereby amended and
restated in full to read as follows:
"If for any reason the Total Outstandings at any time exceed the
lesser of the sum of the Loan Values of the Eligible Collateral on
such day and the Aggregate Commitments then in effect, the Borrower
shall, not more than two Business Days after the earlier of (A)
receipt of notice of such excess from the Administrative Agent and (B)
the Borrower having knowledge of such excess, prepay Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such
excess; provided, however, that the Borrower shall not be required to
Cash Collateralize the L/C Obligations pursuant to this Section
2.05(b)(v) unless after the prepayment in full of the Loans and the
Swing Line Loans the Total Outstandings exceed the Aggregate
Commitments then in effect. For purposes of this Section 2.05(b)(v),
the word "knowledge", when used with respect to the Borrower, means
(A) the actual knowledge of a Responsible Officer of the Borrower and
(B) knowledge that would be obtained by a Responsible Officer of the
Borrower exercising customary diligence."
(e) Section 2.05(b)(vi) of the Credit Agreement is hereby amended and
restated in full to read as follows:
"The Borrower shall, on the first day of each Clean-Down Period
occurring during each consecutive 15-month period, prepay Revolving
Credit Loans (other than outstanding unfunded Letters of Credit), L/C
Borrowings and Swing Line Loans outstanding on such day, such that the
Outstanding Amount of all Revolving Credit Loans (other than
outstanding unfunded Letters of Credit), L/C Borrowings and Swing Line
Loans shall be equal to or less than $25,000,000."
(f) Section 2.05(d) of the Credit Agreement is hereby deleted in its
entirety.
(g) Section 4.02 of the Credit Agreement is amended by adding a new
subsection (d) immediately after subsection (c), to read as follows:
"(d) The sum of the Loan Values of the Eligible Collateral
exceeds the Total Outstandings at such time, after giving effect to
such Credit Extension."
(h) Section 6.01(b) of the Credit Agreement is hereby amended by
deleting the word "and" at the end thereof, adding the word "and" to the
end of Section 6.01(c) and adding a new Section 6.01(d) to read as follows:
"(d) as soon as available and in any event within 20 days after
the end of each monthly period of the Borrower, a Borrowing Base
Certificate, as at the end of the previous monthly period, certified
by the Chief Financial Officer of the Borrower."
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(i) Section 6.02(d) of the Credit Agreement is hereby amended by
adding the words ", the Senior Notes" immediately following the words "the
Subordinated Notes" in the second line thereof.
(j) Section 6.02(h) of the Credit Agreement is hereby amended by
deleting the word "and" at the end thereof and adding new subsections (i)
and (j) immediately thereafter, to read as follows:
"(i) as soon as possible after the request therefor (i) once
during each fiscal year or (ii) upon the occurrence and during the
continuance of an Event of Default, in each case if requested by the
Administrative Agent, an inventory appraisal and receivables audit
update prepared by an independent third party (all upon reasonable
notice and at such reasonable times during normal business hours as
may be reasonably requested, and to be conducted in a manner so as to
minimize any disruption of business) and reasonable out-of-pocket fees
and expenses incurred by the Administrative Agent in connection with
any inventory appraisal requested pursuant to this clause (i) shall be
reimbursed by the Borrower;
(j) promptly after any sale or other Disposition (whether in one
transaction or a series of related transactions) of Inventory or
Receivables with an aggregate book value in excess of $400,000 and not
made in the ordinary course of business, a Borrowing Base Certificate
demonstrating that the Loan Values of the Eligible Collateral shall be
greater than or equal to the Total Outstandings after giving effect to
such Disposition; and"
and by relettering the existing clause (i) as clause (k).
(k) Article VI of the Credit Agreement is hereby amended by adding
thereto a new Section 6.22, to read as follows:
"6.22. Loan Value Determination. Upon the occurrence and during
the continuance of a Default under Section 9.01(a) or an Event of
Default, the Borrower shall conduct, or shall cause to be conducted,
at its expense, and upon request of the Administrative Agent, and
present to the Administrative Agent for approval, such appraisals,
investigations or reviews as the Administrative Agent shall reasonably
request for the purpose of determining the Loan Value, all upon
reasonable notice and at such reasonable times during normal business
hours and as often as may be reasonably requested, but to be conducted
in a manner so as to minimize any disruption of business. The Borrower
shall furnish to the Administrative Agent any information that the
Administrative Agent may reasonably request regarding the
determination and calculation of the Loan Value including, without
limitation, correct and complete copies of any invoices, underlying
agreements, instruments or other documents and the identity of all
obligors."
(l) Section 7.01(a)(P) of the Credit Agreement is hereby amended in
full to read as follows:
"(P) Liens on assets of Foreign Subsidiaries securing
Indebtedness permitted under Sections 7.02(c)(Q) and 7.02(c)(R); and"
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(m) Section 7.02(a) of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (B) thereof, replacing the
comma at the end of clause (C) with the clause "; and", and adding a new
clause (D) to read as follows:
"(D) Indebtedness evidenced by senior unsecured notes of the
Borrower due 2012 in an aggregate principal amount of up to
$150,000,000 (the "SENIOR NOTES") on terms satisfactory to the
Administrative Agent,"
(n) Section 7.02(c)(B) of the Credit Agreement is hereby amended by
adding the words "and of the Senior Notes" immediately following the words
"the Subordinated Notes".
(o) Section 7.02(d)(B) of the Credit Agreement is hereby amended by
adding the words "and of the Senior Notes" immediately following the words
"the Subordinated Notes".
(p) Section 7.06(f) of the Credit Agreement is hereby amended to add
the phrase "or CHATT" after the word "Holdings" in the third line therein
and to add the phrase "or CHATT, as the case may be," after the word
"Holdings" in the fourth line therein.
(q) Section 7.06 of the Credit Agreement is further amended by
deleting the word "and" at the end of clause (e) therein, replacing the
period at the end of clause (f) with the phrase "; and" and adding a new
clause (g) at the end of such Section to read as follows:
"(g) Holdings, the Borrower and each Subsidiary may issue or
transfer Equity Interests or accept capital contributions (x) in
connection with an Equity Investment or an acquisition to the extent
permitted by Section 7.03(i)(D) and (y) so long as (i) no Change of
Control results from such issuance or transfer and (ii) with respect
to Equity Interests of the Borrower and any Subsidiary of the
Borrower, the Administrative Agent will retain a pledge of the same
percentage of such Equity Interests as existed immediately prior to
such issuance or transfer; provided, that the Borrower shall only
issue its Equity Interests to Holdings and such additional Equity
Interests will be pledged to the Administrative Agent as Collateral
under the Loan Documents."
(r) Section 7.09 of the Credit Agreement is hereby amended by adding
the words ", the Senior Notes Documents" immediately following the words
"Loan Document" in the second line thereof.
(s) Section 7.10(a) of the Credit Agreement is hereby deleted in full.
(t) Section 7.10(b) of the Credit Agreement is hereby amended and
restated to read in full as follows:
"(a) Minimum Consolidated EBITDA. Permit Consolidated EBITDA to
be less than $41,000,000 at any time."
(u) Section 7.10(c) of the Credit Agreement is hereby amended and
restated to read in full as follows:
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"(b) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal
quarter of Holdings to be less than 1.00:1.00."
(v) Section 7.11 of the Credit Agreement is hereby deleted in full.
(w) Exhibit D to the Credit Agreement is amended and restated in full
in the form of new Exhibit D attached hereto as Exhibit A.
(x) The Exhibit B attached hereto is hereby added as Exhibit N to the
Credit Agreement.
SECTION 2. Amendments to Security Agreement. Clause (i) of Section 5(a) of
the Security Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 4, hereby amended
and restated in full to read as follows:
"(i) upon (x) the occurrence and during the continuation of (A) an
Event of Default under Section 9.01(a) of the Credit Agreement, (B) a
Default under Section 9.01(f) or (g) of the Credit Agreement, or (C) an
Event of Default under Section 9.01(b) of the Credit Agreement by reason of
any violation of Section 7.10 of the Credit Agreement or (y) any action
taken by the Administrative Agent pursuant to Section 9.02(b) of the Credit
Agreement (a "SPECIFIED DEFAULT"), comply with instructions originated by
the Collateral Agent directing the disposition of funds in the Account
Collateral without the further consent of the Grantor and"
SECTION 3. Agreement as to Accounts. The Borrower hereby agrees that, if
the Consolidated Fixed Charge Coverage Ratio is equal to or less than 1.15:1.00
for any two consecutive fiscal quarters of the Borrower, within 180 days
following the date that financial statements are required to be delivered
pursuant to Section 6.01(a) or (b), as the case may be, for the first such
quarter, it will move each of the Accounts set forth on Schedule 1 hereto to
Bank of America and that it will maintain each such Account and any similar
Account opened in accordance with Section 5 of the Security Agreement with Bank
of America. It is further agreed that failure to comply with this Section 3
shall be deemed to be an Event of Default under the Credit Agreement unless
waived in accordance with Section 11.01 of the Credit Agreement.
SECTION 4. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written (the "AMENDMENT EFFECTIVE DATE")
when (i) the Administrative Agent shall have received counterparts of this
Amendment executed by the Borrower and the Required Lenders holding Revolving
Credit Commitments or, as to any of such Revolving Credit Lenders, advice
satisfactory to the Administrative Agent that such Revolving Credit Lender has
executed this Amendment and the consent attached hereto executed by each of the
Loan Parties (other than the Borrower), (ii) the Borrower shall have received at
least $140,000,000 gross proceeds in cash from the sale of the Senior Notes,
(iii) the Administrative Agent shall have received written notice of the
prepayment of the Term Loans required by Section 2.05(a) of the Credit Agreement
and a Borrowing Base Certificate in substantially the form of Exhibit N attached
hereto, (iv) the Borrower shall have prepaid in full
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the Term Loans, (v) the Administrative Agent shall have received updated
Schedule VII to the Security Agreement, (vi) the Borrower shall have paid all
reasonable costs and expenses (including the reasonable fees, charges and
disbursements of counsel to the Administrative Agent invoiced to the Borrower)
incurred in connection with the preparation, negotiation and execution of this
Amendment, (vii) the Administrative Agent shall have received, for the account
of each Revolving Credit Lender executing this Amendment by 5:00 p.m. on January
7, 2005, a fee equal to 0.05% of such Revolving Credit Lender's Revolving Credit
Commitment and (viii) no Default shall have occurred and be continuing, or would
occur as a result of the transactions contemplated by this Amendment. This
Amendment is subject to the provisions of Section 11.01 of the Credit Agreement.
SECTION 5. Representations and Warranties of the Borrower The Borrower
represents and warrants as follows:
(a) The execution, delivery and performance by each Loan Party of this
Amendment and each Loan Document as amended by this Amendment, are within
such Loan Party's corporate or other powers, have been duly authorized by
all necessary corporate or other organizational action, and do not and will
not (i) contravene the terms of any of such Person's Organization
Documents; (ii) conflict with or result in any breach or contravention of,
or the creation of any Lien under, or require any payment to be made under
(x) any material Contractual Obligation to which such Person is a party or
affecting such Person or the properties of such Person or any of its
Subsidiaries or (y) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its
property is subject; or (iii) violate any Law.
(b) This Amendment and the consent attached hereto, when delivered
hereunder, will have been duly executed and delivered by each Loan Party
that is party thereto. This Amendment and the consent attached hereto, when
so delivered, will constitute a legal, valid and binding obligation of such
Loan Party, enforceable against each Loan Party that is party thereto in
accordance with its terms, except as the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws affecting creditors' rights generally.
(c) After giving effect to this Amendment, (i) the representations and
warranties contained in the Credit Agreement and the other Loan Documents
are true and correct in all material respects, except to the extent that
such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct in all material respects as of
such earlier date, and (ii) no Default or Event of Default has occurred and
is continuing as of the date hereof.
SECTION 6. Reference to and Effect on the Credit Agreement and the the Loan
Documents. (a) On and after the effectiveness of this Amendment, each reference
in the Credit Agreement or the Security Agreement to "this Agreement",
"hereunder", "hereof" or words of like import referring to the Credit Agreement
or the Security Agreement, as applicable, and each reference in the Notes and
each of the other Loan Documents to "the Credit Agreement", "the Security
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit
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Agreement or the Security Agreement, as applicable, shall mean and be a
reference to the Credit Agreement or the Security Agreement, as applicable, as
amended by this Amendment.
(b) The Credit Agreement, the Security Agreement, the Notes and each of the
other Loan Documents, as specifically amended by this Amendment, are and shall
continue to be in full force and effect and are hereby in all respects ratified
and confirmed. Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therein do and shall continue to
secure the payment of all Obligations of the Loan Parties under the Loan
Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 7. Costs, Expenses The Borrower agrees to pay on demand all costs
and expenses of the Administrative Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Administrative Agent) in accordance with the terms of Section 11.04 of the
Credit Agreement.
SECTION 8. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same agreement. Delivery
of an executed counterpart of a signature page to this Amendment by telecopier
shall be effective as delivery of a manually executed counterpart of this
Amendment.
SECTION 9. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
12
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
With respect to all Sections
except Section 2: XXXX TRUE TEMPER, INC.
By /s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Financial Officer
With respect to all Sections
except Section 1: ATT HOLDING CO.
By /s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Financial Officer
With respect to all Sections
except Section 1: XXXX TRUE TEMPER PROPERTIES, INC.
By /s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Financial Officer
BANK OF AMERICA, N.A.,
as Administrative Agent, as
Collateral Agent and as Lender
By /s/ W. Xxxxxx Xxxxxxx
-------------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Senior Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORAITON
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Duly Authorized Signatory
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
PNC Bank, National Association
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent and as a Lender
By: /s/Xxxxxxx X. Xxxxxx III
--------------------------------
Name: Xxxxxxx X. Xxxxxx III
Title: Assistant Vice President
CONSENT
Dated as of January 14, 2005
Each of the undersigned hereby consents to the foregoing
Amendment and hereby confirms and agrees that (a) notwithstanding the
effectiveness of such Amendment, each Loan Document to which it is a party is,
and shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects, except that, on and after the effectiveness of such
Amendment, each reference in the Loan Documents to the "Credit Agreement",
"Security Agreement", "thereunder", "thereof" or words of like import shall mean
and be a reference to the Credit Agreement or the Security Agreement, as
applicable, as amended by such Amendment, and (b) the Collateral Documents to
which each of the undersigned is a party and all of the Collateral described
therein do, and shall continue to, secure the payment of all of the Secured
Obligations (in each case, as defined therein). Capitalized terms used herein
and not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement.
ATT HOLDING CO.
By /s/ Xxxx Xxxxxxxxx
-------------------------------
Title:
XXXX TRUE TEMPER PROPERTIES, INC.
By /s/ Xxxx Xxxxxxxxx
-------------------------------
Title: