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EXHIBIT 10.1
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT ("First Amendment") made this 9th day of April,
1996 to the LOAN AND SECURITY AGREEMENT dated December 29, 1994, by and between
S2 GOLF INC., a New Jersey corporation, (hereinafter referred to as "Borrower"),
having its principal place of business at 00 Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx
00000 and MIDLANTIC BANK, NATIONAL ASSOCIATION, a banking association organized
and existing under the laws of the United States of America, (hereinafter
referred to as "Lender"), having offices at 000 Xxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx
00000.
WITNESSETH:
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WHEREAS, Lender and Borrower have previously entered into a
commercial lending arrangement in accordance with the terms and conditions of a
certain Loan and Security Agreement dated December 29, 1994, as such may be
amended and/or supplemented from time to time ("Loan Agreement"), pursuant to
which Lender has advanced funds to Borrower on a secured basis and Borrower has
agreed to repay same; and
WHEREAS, it has become necessary to amend some of the terms and
conditions of the Loan Agreement; and
WHEREAS, Lender and Borrower seek to memorialize the terms of their
agreements and the said amendments to the Loan Agreement by this writing,
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration receipt of
which is hereby acknowledged, the parties agree as follows:
1. Effective as of April 9, 1996, Section 6. NEGATIVE COVENANTS of
the Loan Agreement, Subsection 6.19 Tangible Net Worth is hereby amended and
changed to read as follows:
6.19 TANGIBLE NET WORTH. Cause or permit Tangible Net
Worth to be:
(a) Less than $2,195,000.00 for the fiscal
year-end December 31, 1995;
(b) For the fiscal year-end December 31, 1996
the Tangible Net Worth shall increase by an amount equal
to the greater of (A) one-hundred percent (100%) of the
actual net income of Borrower for the fiscal year-ending
December 31, 1996 or (B) $50,000.00; and
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(c) Each fiscal year-end subsequent to December
31, 1996 an amount equal to the greater of (A) one-hundred
and ten percent (110%) of the actual Tangible Net Worth of
Borrower as at the immediately preceding fiscal year-end
of Borrower or (B) the actual Tangible Net Worth of
Borrower as at the immediately preceding fiscal year-end
of Borrower plus $250,000.00.
The term Tangible Net Worth meaning, as of the time of any
determination thereof, the difference between (a) the sum
of (i) the par value (or value stated on the books of
Borrower) of the capital stock of all classes of Borrower,
plus (or minus in the case of a deficit) (ii) the amount of
Borrower's surplus, whether capital or earned, less (b) the
sum of treasury stock, unamortized debt discount and
expense, good will, trademarks, trade names, patents,
deferred charges (exclusive of deferred taxes), leasehold
improvements and other intangible assets, and any write-up
of the value of any assets, all determined in accordance
with generally accepted accounting principles, applied on a
consistent basis.
2. RATIFICATION OF AGREEMENT. Subject to the amendments to the Loan
Agreement as set forth herein, as of this day, the parties hereto hereby ratify
and confirm, in full, each and every term, condition, agreement, representation,
warranty and covenant set forth in the Loan Agreement.
3. SURVIVAL. All representations and warranties, whether ratified
hereby or made herein or in any instrument or certificate! contemplated hereby,
shall survive any independent investigation made by Lender and the execution and
delivery of the Loan Agreement, together with this First Amendment to the Loan
Agreement, and the relevant documents and said certificates or instruments shall
continue so long as any of the Borrower's obligations are outstanding and
unsatisfied, applicable Statutes of Limitations to the contrary notwithstanding.
4. AMENDMENT ONLY. This is intended as an amendment only to the Loan
Agreement and is not a new loan agreement, therefore all of the remaining terms
and conditions of the Loan Agreement (including any amendments or supplements
thereto), shall remain in full force and effect as though set forth herein at
length to the extent not inconsistent with the terms of this First Amendment,
and any term in initial capitals and not otherwise defined herein shall have the
meaning ascribed thereto in the Loan Agreement.
5. HEADINGS. The headings as used in this First Amendment are
inserted solely for convenience of reference and shall not constitute a part of
this First Amendment nor affect its meaning, construction or effect.
6. NO DEFENSES TO PAYMENT. Borrower waives and forever releases and
discharges Lender, its officers, directors, agents and employees, successors and
assigns from any
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and all claims, actions, causes of action, suits, counterclaims, set-offs,
rights and defenses which against Lender (its officers, directors, agents and
employees, successors and assigns), Borrower its successors or assigns have or
hereafter can, shall or may have, for, upon, or by reason of any matter, cause
or thing whatsoever up to and including the date of this Amendment; and Borrower
represents and warrants to Lender that Borrower has no defenses to the repayment
of any or all of the Obligations and has no claims, rights of set-off or causes
of action against Lender.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals or caused these presents to be signed by their proper corporate
officers and their proper corporate seals to be hereto affixed this 9th day of
April, 1996.
(SEAL) S2 GOLF, INC.
ATTEST: By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
By: /s/ Xxxxxxx X. Xxxxxx President
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Xxxxxxx X. Xxxxxx
Secretary
MIDLANTIC BANK, NA
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Vice President
