EXHIBIT 10.34
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT ("Amendment") is made
as of this 8th day of March, 1999 among TEARDROP GOLF COMPANY ("TearDrop"),
XXXXX XXXXXX GOLF COMPANY ("Armour"), RAM GOLF CORPORATION (formerly known as
TearDrop Ram Golf Company) ("Ram"), TEARDROP ACQUISITION CORP. ("Acquisition";
TearDrop, Armour, Ram and Acquisition shall be referred to individually herein
as a "Borrower" and collectively as "Borrowers") and FIRST UNION NATIONAL BANK
(successor by merger to CORESTATES BANK, N.A.) ("Lender"). All terms capitalized
but not defined herein shall have the meanings given to such terms in the
Agreement (as such term is hereinafter defined).
BACKGROUND
A. The Borrowers (excluding Ram and Acquisition) and Lender entered into a
certain Loan and Security Agreement dated as of November 10, 1997 (as amended
from time to time, the "Agreement") pursuant to which Lender made available to
the Borrowers the revolving credit facility described therein. Ram was added as
a Borrower pursuant to a Consent and Joinder Agreement dated as of December 29,
1997. Acquisition was added as a Borrower pursuant to an Amendment and Joinder
Agreement dated as of November 5, 1998, but effective as of September 30, 1998.
The Agreement was further amended by an Amendment to Loan and Security Agreement
dated as of February 24, 1999.
B. Pursuant to Section 6.15 of the Agreement, Borrowers are not permitted
to incur obligations for the payment of money without Lender's prior written
consent. Borrowers have requested that (1) Lender amend Section 6.15 of the
Agreement to permit TearDrop to borrow Five Hundred Thousand Dollars
($500,000.00) from Xxxx Xxxxxxx and (2) Lender increase the maximum amount
available under the Credit Limit from $25,000,000.00 to $30,000,000.00 through
June 30, 1999. Subject to the terms and conditions set forth herein, Lender is
willing to consent to Borrowers' requests set forth above.
NOW, THEREFORE, the parties agree as follows, intending to be legally
bound.
1. Subject to the satisfaction of the conditions set forth in Section 3
hereof, the Agreement is hereby amended as follows:
(A) Section 1.1 of the Agreement is hereby amended to incorporate
the following definitions:
"Commitment" means from March 4, 1999 through June 30, 1999,
$30,000,000.00 and, from and after July 1, 1999, $25,000,000.00.
"Slucker Note" has the meaning given to such term in Section 6.15
hereof.
(B) The following definition contained in Section 1.1 of the
Agreement is hereby amended to read as follows:
"Credit Limit" at any time means the lesser of (A) the Commitment or
(B) the Borrowing Base, provided however that in the event Borrowers pay
the Slucker Note before June 30, 1999, the Borrowing Base shall be reduced
by $1,000,000.00 from the date of such repayment through and including
June 30, 1999.
(C) Section 2.1(D) of the Agreement is hereby amended in its
entirety to read as follows:
(D) The joint and several obligation of Borrowers to repay the
Advances outstanding under the Revolving Credit shall be evidenced, from
the date of this Agreement through and including January 8, 1998 by a
promissory note, payable to the order of Lender, in the principal amount
of Eighteen Million Dollars ($18,000,000.00), from January 9, 1998 to
March 5, 1999, by a promissory note, payable to the order of Lender, in
the principal amount of Twenty-Five Million Dollars ($25,000,000.00), and
from and after March 5, 1999, by a promissory note, payable to the order
of Lender, in the principal amount of Thirty Million Dollars
($30,000,000.00)and otherwise substantially in the form of Exhibit 2.1(D)
attached hereto (as such promissory note is amended, restated, extended or
modified from time to time, the "Note").
(D) Section 6.15 of the Agreement is hereby amended to read as
follows:
SECTION 6.15 Limitations on Borrowing. No Borrower will incur or
otherwise permit to exist any obligation for the payment of borrowed
money, whether as borrower or guarantor, except debt owed to Lender in
connection herewith, trade debt incurred by such Borrower in the ordinary
course of business, the Debt set forth on Exhibit 6.15 and the obligations
of TearDrop to Xxxx Xxxxxxx pursuant to that certain Subordinated Note
dated March 5, 1999 in the principal amount of $500,000.00 (the "Slucker
Note"). Borrowers hereby agree that they will not make any payment on the
Slucker Note until the earlier of (A) June 30, 1999 or (B) the date the
Borrowing Base exceeds the Advances by at least $1,500,000.00, provided
that Borrowers shall not be permitted to pay the Slucker Note in
accordance with the foregoing subsection (B) unless based on Borrowers'
reasonable projections, at all times after such payment the Borrowing Base
will exceed the Advances by $1,000,000.00.
2. The terms of this Amendment are hereby incorporated into the Agreement.
3. The effectiveness of this Amendment is subject to the satisfaction of
each of the following conditions precedent:
-2-
(A) Borrowers shall have delivered or caused to be delivered the
following documents:
(1) this Amendment duly executed by Borrowers;
(2) the replacement Revolving Credit Note attached hereto as
Exhibit 1.1;
(3) a certified copy of the Slucker Note, which shall be
acceptable in form and substance to Lender, including without limitation the
subordination provisions contained therein;
(4) Borrowers deliver such other documentation as the Lender
may reasonably request.
(B) Xxxx Xxxxxxx shall have advanced a $500,000.00 loan to Borrowers
evidenced by the Slucker Note;
(C) The representations and warranties set forth in Article V of the
Agreement are true and correct in all material respects as of the date hereof;
(D) No Default or Event of Default has occurred or is continuing
except as set forth in Section 4(B) hereof; and
(E) Borrowers shall pay all costs and out-of-pocket expenses
(including, without limitation, reasonable attorneys' fees and costs) of Lender
in connection with the Agreement (including without limitation this Amendment),
and the transactions contemplated thereby, which includes, among other things,
the preparation, review and negotiation of this Amendment, and all costs and
expenses incurred in connection with the above.
4. Borrowers represent and warrant to Lender that:
(A) Except as set forth on Schedule 1 attached hereto, the
representations and warranties set forth in Article V of the Agreement are true
and correct in all material respects as of the date hereof; and
(B) No Default or Event of Default has occurred or is continuing,
excluding such Defaults or Events of Default waived in writing by Lender prior
to the date hereof and Borrowers' non-compliance as of December 31, 1998 with
Sections 6.5 and 6.6 of the Agreement. By executing this Amendment, Lender does
not hereby waive Borrowers' non-compliance with Sections 6.5 and 6.6 of the
Agreement and hereby reserves its rights and remedies with respect thereto.
5. The indebtedness evidenced by the Agreement and the Note shall continue
to be secured as set forth in the Agreement.
-3-
6. This Amendment contains all of the modifications to the Agreement. No
further modifications shall be deemed effective, unless in writing executed by
the parties hereto.
7. The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of Lender under the Agreement,
nor constitute a waiver of any Default or Event of Default or any provision of
the Agreement, except as specifically set forth herein.
8. This Amendment shall be construed and enforced in accordance with the
laws of the State of New Jersey.
9. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Amendment by signing any such counterpart.
-4-
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have caused this Amendment to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
TEARDROP GOLF COMPANY
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
XXXXX XXXXXX GOLF COMPANY
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
RAM GOLF CORPORATION (formerly
known as TearDrop Ram Golf Company)
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
TEARDROP ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
FIRST UNION NATIONAL BANK
(successor by merger to CORESTATES
BANK, N.A.)
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
-5-
