EXHIBIT 10.32
AMENDMENT AND JOINDER AGREEMENT
THIS AMENDMENT AND JOINDER AGREEMENT ("Amendment") is executed this 5th
day of November, 1998 and is effective as of the 30th day of September, 1998,
among TEARDROP GOLF COMPANY ("TearDrop"), XXXXX XXXXXX GOLF COMPANY ("Armour"),
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.
B. Pursuant to Section 6.18 of the Agreement, Borrowers are not permitted
to, among other things, create any Subsidiary. Borrowers have requested that
Lender consent to the creation of Acquisition by TearDrop. Borrowers have also
asked Lender to amend certain financial covenants and otherwise amend the
Agreement as set forth herein. Subject to the terms and conditions set forth
herein, Lender is willing to consent to the formation of Acquisition and to
amend the Agreement as set forth herein.
NOW, THEREFORE, the parties agree as follows, intending to be legally
bound.
1. The Agreement is hereby amended as follows:
(a) The definition of "Borrowing Base" contained in Section 1.1 of
the Agreement is hereby amended in its entirety to read as follows:
"Borrowing Base" at any time means the sum of (A) 70% of Borrowers'
Qualified Accounts at such time, plus (B) 60% of Borrowers' Qualified
Inventory at such time, plus (C) from November 5, 1998 through June 30,
1999, the Value of Real Estate.
(b) Section 1.1 of the Agreement is hereby amended to incorporate
the following definitions which shall read as follows:
"Illinois Property" means the real property and improvements thereon
located at 0000 Xxxxx Xxxxxx Xxxxxx xx Xxxxxx Xxxxx, Xxxxxxxx.
"Value of Real Estate" means (A) from November 5, 1998 through the date
prior to the satisfactory completion of the appraisal ordered by Lender on
the Illinois Property, Two Million Dollars ($2,000,000.00) and, (B) from
and after the completion of the appraisal ordered by Lender on the
Illinois Property, the lesser of (1) Two Million Dollars ($2,000,000.00)
or (2) 75% of the appraised value of the Illinois Property.
(c) Section 6.5 of the Agreement is hereby amended in its entirety
to read as follows:
SECTION 6.5 Minimum Tangible Net Worth. Borrowers shall maintain a
Tangible Net Worth of not less than $10,000,000.00 prior to December 31,
1998 and $11,000,000.00 from and after December 31, 1998.
(d) Section 6.6 of the Agreement is hereby amended in its entirety
to read as follows:
SECTION 6.6 Leverage Ratio. Borrowers shall maintain a Leverage Ratio at
all times of not greater than the following during the following periods:
Period Leverage Ratio
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as of September 30, 1998 3.0:1.0
from October 1, 1998 through June 30, 1999 4.0:1.0
from and after July 1, 1999 3.0:1.0
(e) Each and every reference to the term "Borrower" in the Agreement
shall be deemed to include Acquisition from and after the effective date of this
Amendment.
2. Acquisition hereby: (a) shall be, become and is a Borrower under, in
accordance with and subject to the terms and conditions of the Agreement; (b)
joins in and agrees to be bound by and to perform in accordance with the terms
of the Agreement; (c) confirms that Acquisition and the other Borrowers are
jointly and severally liable to Lender for all the Liabilities; (d) hereby
pledges, transfers, assigns and delivers and grants to Lender a lien on and
security interest in and to the Collateral, and (e) confirms the truth and
accuracy of the representations and warranties in the Agreement as of the date
hereof insofar as they relate to it.
3. Acquisition hereby agrees to deliver to Lender within twenty (20) days
of the execution hereof such UCC-1 financing statements and other documents and
agreements as Lender may request to perfect its interest in the Collateral owned
by Acquisition. Borrowers hereby agree that failure to deliver such agreements
within twenty (20) days of execution hereof shall constitute an Event of Default
under the Agreement.
4. Borrowers hereby agree to deliver within fourteen (14) days of the date
hereof, the following:
(a) a mortgage or deed of trust on the Illinois Property duly
executed by the owner of the Illinois Property and in form and substance
acceptable to Lender;
(b) a lien search on the Illinois Property showing no liens and
encumbrances on the Illinois Property other than those acceptable to Lender;
(c) flood insurance for the Illinois Property or evidence that the
Illinois Property is not in a flood zone;
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(d) a metes and bounds description of the Illinois Property;
(e) a copy of an all risk casualty insurance policy (or insurance
binder and certificate of insurance) in an amount equal to 100% of the
replacement value of all improvements on the Illinois Property, in form and
substance satisfactory to Lender containing a loss payable clause entitling
Lender to receive any and all proceeds of any insured casualty; and
(f) such other instruments and documents as Lender may reasonably
request to effectuate the purposes of this Amendment and the Agreement.
5. 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) After giving effect hereto, 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.
6. The indebtedness evidenced by the Agreement and the Note shall continue
to be secured as set forth in the Agreement.
7. 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.
8. 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.
9. This Amendment shall be construed and enforced in accordance with the
laws of the State of New Jersey.
10. 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.
11. Lender hereby consents to the creation of Acquisition. This consent
should not be construed to waive Lender's rights under Section 6.18 of the Loan
Agreement other than as specifically provided herein. In accordance with Section
6.18 of the Loan Agreement, no further Subsidiaries (other than expressly
permitted hereby) may be formed without Lender's prior written consent.
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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
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Name: Xxxx X. Xxxxxxx
Title: President
XXXXX XXXXXX GOLF COMPANY
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
TEARDROP RAM GOLF COMPANY
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
TEARDROP ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
FIRST UNION NATIONAL BANK
(successor by merger to CORESTATES
BANK, N.A.)
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Senior Vice President
