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EXHIBIT 10.3.16
SIXTH AMENDMENT TO FINANCING AGREEMENT
THIS SIXTH AMENDMENT TO FINANCING AGREEMENT (this "Amendment")
is made and entered as of January 21, 1998, by and between STAR BANK, NATIONAL
ASSOCIATION, a national banking association ("Bank"), and FM PRECISION GOLF
MANUFACTURING CORP., a Delaware corporation, and FM PRECISION GOLF SALES CORP.,
a Delaware corporation (collectively, "Borrowers").
PRELIMINARY STATEMENTS
A. Borrowers and Bank have entered into a Financing Agreement
dated as of May 31, 1996, as amended by (i) a First Amendment to Financing
Agreement dated as of January 29, 1997, (ii) a Second Amendment to Financing
Agreement dated as of August 20, 1997, (iii) a Third Amendment to Financing
Agreement dated as of November 10, 1997, and (iv) a Fourth Amendment to
Financing Agreement dated as of January 6, 1998, and (v) a Fifth Amendment to
Financing Agreement dated as of January 13, 1998 (as amended, the "Financing
Agreement"). Capitalized terms used, but not defined, in this Amendment which
are defined in the Financing Agreement will have the meanings given to them in
the Financing Agreement.
B. Bank and Borrowers desire to amend the Financing Agreement
on and subject to the terms and conditions set forth in this Amendment.
STATEMENT OF AMENDMENT
In consideration of the mutual covenants and agreements set
forth in this Amendment, and for other good and valuable consideration, Bank and
Borrowers hereby agree as follows:
1. AMENDMENTS. Subject to the satisfaction of the conditions
of this Amendment, the Financing Agreement is amended as follows:
a. AMENDMENT OF SECTION 2.12. Section 2.12 of the
Financing Agreement is amended to provide in its entirety as follows:
2.12 Special Advance. Subject to the terms and conditions of
this Agreement, Bank, in its discretion exercised in good faith, may
make a loan (the "Special Advance") to Borrowers in the principal
amount of $350,000. The proceeds of the Special Advance shall be used
by Borrowers only for working capital purposes. Subject to the terms of
Section 11.4, the principal of the Special Advance shall be due and
payable $100,000 on May 11, 1998, $100,000 on May 18, 1998 and $150,000
on May 30, 1998. No part of the Special Advance may, on the repayment
thereof, be redrawn or reborrowed by Borrowers.
b. AMENDMENT OF SECTION 3.1(ii). Clause (ii) of
Section 3.1 of the Financing Agreement is amended to provide in its entirety as
follows:
(ii) The Term Loan will bear interest on the daily
unpaid principal amount thereof from the date made until paid in full
at a rate per annum equal to the sum of the Prime Rate, as in effect
from day to day as interest accrues, plus 1.50%; subject, however, to
clauses (iv) and (v) of this Section 3.1. The Special Advance will bear
interest on the daily unpaid principal amount thereof from the date
made until paid in full at a rate per annum equal to the sum of the
Prime Rate, as in effect from day to day as interest accrues, plus
1.50%; subject, however, to clause (v) of this Section 3.1.
c. AMENDMENT OF SECTION 3.1(iv). Clause (iv) of
Section 3.1 of the Financing Agreement is amended to provide in its entirety as
follows:
(iv) If Borrowers' audited annual financial
statements delivered to Bank in compliance with Section 8.7 are
accompanied by an unqualified audit report and establish to Bank's
satisfaction that Borrowers have satisfied each of the financial
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tests set forth in Exhibit 3.1 as of the end of and for Borrowers'
fiscal year ending on or about May 31, 1997, then, provided that there
does not then exist an Event of Default, the applicable rates of
interest with respect to the Revolving Loans and the Term Loan set
forth above in clauses (i) and (ii) of this Section 3.1 will be reduced
by 0.25% per annum effective as of the first Business Day of the first
calendar month following the calendar month in which the audited annual
financial statements, accompanied by an unqualified audit report, are
delivered to Bank.
d. AMENDMENT OF SECTION 15.8(i)(d). Clause (i)(d) of
Section 15.8 of the Financing Agreement is amended to provide in its entirety as
follows:
(d) any inspection, audit, appraisal, or
verification of the Loan Collateral or a Borrower (Bank currently
charges $450 per diem based on an 8 hour day plus out-of-pocket
expenses) per auditor or field examiner for the services of its
auditors and field examiners and a potentially greater amount if the
auditor is not a Bank employee; however, so long as there does not
exist an Event of Default, Borrowers shall not be required to reimburse
Bank for Expenses of field examinations for more than four field
examinations in any calendar year;
2. REAFFIRMATION OF CORPORATE GUARANTY. As a condition of this
Amendment, Borrowers will cause Corporate Guarantor to execute and deliver to
Bank the Reaffirmation of Corporate Guaranty set forth at the end of this
Amendment.
3. OTHER DOCUMENTS. As a condition of this Amendment,
Borrowers will execute and deliver, or cause to be executed and delivered, to
Bank such other documents, instruments and agreements deemed necessary or
desirable by Bank to effect the amendments to Borrowers' credit facilities with
Bank contemplated by this Amendment.
4. REPRESENTATIONS. To induce Bank to accept this Amendment,
Borrowers hereby represent and warrant to Bank as follows:
4.1 Each of Borrowers has full power and authority to
enter into, and to perform its obligations under, this Amendment, and the
execution and delivery of, and the performance of its obligations under and
arising out of, this Amendment have been duly authorized by all necessary
corporate action.
4.2 This Amendment constitutes the legal, valid and
binding obligations of Borrowers enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
4.3 Borrowers' representations and warranties
contained in the Financing Agreement are complete and correct as of the date of
this Amendment with the same effect as though these representations and
warranties had been made again on and as of the date of this Amendment, subject
to those changes as are not prohibited by, or do not constitute Events of
Default under, the Financing Agreement.
5. COSTS AND EXPENSES. As a condition of this Amendment,
Borrowers will promptly on demand pay or reimburse Bank for the costs and
expenses incurred by Bank in connection with this Amendment, including, without
limitation, attorneys' fees.
6. RELEASE. Borrowers hereby release Bank from any and all
liabilities, damages and claims therefor arising from or in any way related to
the Loans, other than such liabilities, damages and claims which arise after the
execution of this Amendment. The foregoing release does not release or
discharge, or operate to waive performance by, Bank of its express agreements
and obligations stated in the Loan Documents on and after the date of this
Amendment.
7. DEFAULT. Any default by Borrowers in the performance of
Borrowers' obligations under this Amendment shall constitute an Event of Default
under the Financing Agreement.
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8. CONTINUING EFFECT OF FINANCING AGREEMENT. Except as
expressly amended hereby, all of the provisions of the Financing Agreement are
ratified and confirmed and remain in full force and effect.
9. ONE AGREEMENT; REFERENCES. The Financing Agreement, as
amended by this Amendment, will be construed as one agreement. All references in
any of the Loan Documents to the Financing Agreement will be deemed to be
references to the Financing Agreement as amended by this Amendment.
10. COUNTERPARTS. This Amendment and the Reaffirmation of
Corporate Guaranty provided below may be executed in multiple counterparts, each
of which shall be an original but all of which together shall constitute one and
the same instrument.
11. ENTIRE AGREEMENT. This Amendment sets forth the entire
agreement of the parties with respect to the subject matter of this Amendment
and supersedes all previous understandings, written or oral, in respect of this
Amendment.
IN WITNESS WHEREOF, Bank and Borrowers have executed this
Amendment to be effective as of the date in the opening paragraph of this
Amendment.
FM PRECISION GOLF
MANUFACTURING CORP.
By:________________________________
Name:______________________________
Title:_____________________________
FM PRECISION GOLF SALES CORP.
By:________________________________
Name:______________________________
Title:_____________________________
Accepted at Cincinnati, Ohio, as of January ___, 1998.
STAR BANK, NATIONAL ASSOCIATION
By:__________________________
Name:________________________
Title:_______________________
REAFFIRMATION OF CORPORATE GUARANTY
In satisfaction of the condition set forth in Section 2 of the
above Sixth Amendment to Financing Agreement (the "Amendment"), Corporate
Guarantor hereby consents to the Amendment and to the transactions contemplated
thereby, reaffirms the Corporate Guaranty, and acknowledges and agrees that it
is not released from its obligations under the Corporate Guaranty by reason of
the Amendment and that the obligations of Corporate Guarantor under the
Corporate Guaranty extend to the Financing Agreement and the other Loan
Documents as amended by the Amendment. This Reaffirmation of Corporate Guaranty
shall not be construed, by implication or otherwise, as imposing any requirement
that Bank notify or seek the consent of Corporate Guarantor to any past or
future extension of credit, or modification, extension or other action with
respect thereto, in order for any such extension of credit or modification,
extension or other action with respect thereto to be subject to the Corporate
Guaranty, it being expressly acknowledged and reaffirmed that Corporate
Guarantor has under the Corporate Guaranty consented to modifications,
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extensions and other actions with respect thereto without any notice thereof.
All capitalized terms used in this Reaffirmation of Corporate Guaranty and not
otherwise defined herein shall have the meanings ascribed thereto in the
Amendment.
IN WITNESS WHEREOF, Corporate Guarantor has executed this
Reaffirmation of Corporate Guaranty to be effective as of the date of the
Amendment.
ROYAL PRECISION, INC., formerly known as
FM Precision Golf Corp.
By:________________________________
Name:______________________________
Title:_____________________________
