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EXHIBIT 10.4
FIFTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT, made as of the 3rd
day of January, 2001 (this "Amendment"), is by and between S2 GOLF INC., a New
Jersey corporation ("Existing Borrower"), having its principal place of business
at 00 Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, S2 GOLF ACQUISITION CORP., a New
Jersey corporation, having its principal place of business at 00 Xxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000 ("Additional Borrower", and collectively, jointly
and severally with Existing Borrower "Borrower") and PNC BANK, NATIONAL
ASSOCIATION (successor in interest to Midlantic Bank, National Association), a
national banking association, having offices at Xxx Xxxxx Xxxxxx Xxxxxxxxx, 0xx
Xxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000 ("Lender").
W I T N E S S E T H:
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WHEREAS, Lender and Existing Borrower are engaged in a commercial
lending relationship pursuant to a certain Loan and Security Agreement as of
December 29, 1994, as amended by the First Amendment to Loan and Security
Agreement dated April 9, 1996, by the Second Amendment to Loan and Security
Agreement dated as of December 1, 1997, by the Third Amendment to Loan and
Security Agreement dated as of September 23, 1998, and by the Fourth Amendment
to Loan and Security Agreement dated as of July 31, 2000 (collectively referred
to herein as the "Loan Agreement"), pursuant to which Lender has advanced and
may in the future advance certain sums of money to Existing Borrower and
Existing Borrower has agreed to repay same; and
WHEREAS, Additional Borrower seeks to become a Borrower pursuant to the
Loan Agreement and become obligated thereunder jointly and severally with
Existing Borrower; and
WHEREAS, Lender has agreed to permit Additional Borrower to become a
Borrower under the terms and conditions hereinafter set forth,
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, receipt of which is
hereby acknowledged, it is agreed as follows:
ARTICLE I
AMENDMENT TO LOAN AGREEMENT
RELATING TO ADDITIONAL BORROWER
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1.01 ADDITIONAL BORROWER. The preamble to the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
This is a LOAN AND SECURITY AGREEMENT (this "Agreement") made
as of December 29, 1994 by and among PNC BANK, NATIONAL ASSOCIATION
(successor in interest to Midlantic Bank, National Association), a
national banking association, having offices at Two Tower Center
Boulevard,
2
8th Floor, East Brunswick, New Jersey 08816 ("Lender"), S2 GOLF INC., a
New Jersey corporation, having its principal place of business at 00
Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, and S2 GOLF ACQUISITION
CORP., a New Jersey corporation, having its principal place of business
at 00 Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (collectively, jointly
and severally "Borrower").
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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Borrower represents and warrants to Lender, knowing and intending that
Lender will rely thereon in entering into this Amendment, that the following
statements are true and accurate:
2.01 ASSUMPTION OF OBLIGATIONS. Additional Borrower hereby assumes and
accepts as a joint and several obligor, all of the Obligations (as defined in
the Loan Agreement), covenants, terms and conditions of the Loan Agreement in
the same manner and to the same extent as Borrower, agrees to pay all sums due
pursuant to the Loan Agreement in the manner and at the times therein set forth
and grants to Lender a security interest in the Collateral, as such is defined
in the Loan Agreement, to secure the repayment of the Obligations.
2.02 NO DIMINISHMENT OF DUTIES OR LIABILITIES OF BORROWER. It is hereby
understood and agreed that Additional Borrower's acceptance of the Obligation as
herein set forth does not diminish or release and shall not in any way affect
any of the Obligations, duties or liabilities of Borrower to Lender.
2.03 AFFIRMATION OF REPRESENTATIONS. All of the representations and
warranties contained in Section 4 of the Loan Agreement, as such Section may be
amended by this Amendment, are, immediately after the execution and delivery of
this Amendment, true and accurate as of the date hereof with the same force and
effect as though such representations and warranties had been more fully set
forth herein and made on the date hereof.
2.04 DUE AUTHORIZATION: NO DEFAULT.
(a) The execution, delivery and performance by Borrowers of
this Amendment are within Borrower's powers, have been duly authorized by all
necessary action on the part of each Borrower and (i) do not and will not (A)
require any consent or approval of the stockholders of either Borrower, or (B)
constitute or result in a breach of, or default under (with due notice or
passage of time or both) any agreement, undertaking, or instrument to which
Borrowers are a party or by which they may be affected, or (C) result in the
creation or imposition of any lien or restriction on any assets of Borrower,
other than liens in favor of Lender, and (ii) are not and will not be prevented
or limited by, or violate, conflict with or breach either Borrower's Certificate
of Incorporation or By-laws, or any applicable law or regulations, or any
judgment, order, award or decree of any judicial body or other governmental
authority or arbitrator applicable to Borrower or any of Borrower's assets.
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(b) This Amendment upon its delivery will have been duly
executed and delivered by the Borrower and the Loan Agreement, as amended by
this Amendment, will be legal, valid and binding obligations of Borrower,
enforceable against Borrower in accordance with its terms and provisions except
as may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws from time to time in effect that affect
creditors' rights generally.
3.03 NO GOVERNMENTAL CONSENT NECESSARY. No authorization, approval or
other action by, and no notice to or filing with, any Person or governmental
authority or regulatory body is required for the due execution, delivery and
performance by Borrower of this Amendment or any of the Relevant Documents.
3.04 PROCEEDINGS. There is no claim, action, suit, proceeding, inquiry,
hearing or investigation pending or (to the knowledge of Borrowers) threatened
against Borrower or any of its assets, in any court of law or equity, or before
or by any federal, state or local governmental authority or before any
arbitrator. There are no unsatisfied judgments or awards against Borrower or any
of its assets.
3.05 BROKERAGE COMMISSIONS. No Person is entitled to receive from
Borrower any brokerage commission, finder's fee or similar fee or payment in
connection with the consummation of the transactions contemplated by this
Amendment. No brokerage or other fee, commission or compensation is to be paid
by Lender by reason of any act, alleged act or omission of Borrower with respect
to the transactions contemplated hereby.
3.06 NO DEFENSES TO PAYMENT. Borrower has no defenses to the repayment
of the Obligations and have no claims or rights of set-off against Lender in
connection with the Obligations.
ARTICLE IV
MISCELLANEOUS
4.01 ENTIRE AGREEMENT; AMENDMENTS; LENDER'S CONSENT. This Amendment
supersedes, with respect to its subject matter, all prior and contemporaneous
agreements, understandings, inducements or conditions between the respective
parties, whether express or implied, oral or written. No amendment or waiver of
any provision of this Amendment, nor consent to any departure by Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Lender, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
4.02 GENDER. Throughout this Amendment, the masculine shall include the
feminine and vice versa and the singular shall include the plural and vice
versa, unless the context of this Amendment indicates otherwise.
4.03 BINDING EFFECT; GOVERNING LAW. This Amendment shall be binding
upon and inure to the benefit of Borrower and Lender and their respective
successors and assigns, except
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that Borrowers shall not have the right to assign their rights hereunder or any
interest herein without the prior written consent of Lender. This Amendment and
the other documents delivered in connection with this Amendment shall be
governed by, and construed in accordance with, the laws (both substantive and
procedural, and without reference to conflicts of laws) of the State of New
Jersey.
4.04 SEVERABILITY OF PROVISIONS. Any provision of this Amendment that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
4.05 HEADINGS. The headings preceding the text of this Amendment are
inserted solely for convenience of reference and shall not constitute a part of
this Amendment nor affect its meaning, construction or effect.
4.06 LOAN AGREEMENT; FULL FORCE AND EFFECT. Except, and solely to the
extent, that the same has been specifically modified, amended or supplemented
herein, all of the terms and conditions of the Loan Agreement shall remain in
full force and effect.
4.07 NO WAIVER OF DEFAULT. Borrower hereby acknowledges and agrees that
the execution, delivery and performance of this Amendment by Lender is not
intended, and shall not be deemed, to be a waiver or release of any Event of
Default as defined under the Loan Agreement, and that Lender reserves all of its
rights and remedies to which it may be entitled, whether an Event of Default
occurred at, before or after the date of this Amendment.
4.08 WAIVER OF TRIAL BY JURY. TO THE FULL EXTENT PERMITTED BY LAW,
BORROWER AND LENDER HEREBY WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY LITIGATION
RELATING TO THE LOAN AGREEMENT OR THE RELEVANT DOCUMENTS.
4.09 CONFLICTS WITH LOAN AGREEMENT. If any term, condition or provision
of this Amendment is inconsistent or conflicts with any term, condition or
provision of the Loan Agreement, the term, condition or provision of this
Amendment shall govern to the extent of such inconsistency or conflict.
4.10 CONDITIONS PRECEDENT. The effectiveness and enforceability of this
Amendment are conditioned on the consummation of the following conditions
precedent:
(i) The execution by Borrower, and delivery to Lender, of this
Amendment, UCC-1 Financing Statements and such other documents as Lender shall
deem to be required, necessary or desirable in its reasonable judgment;
(ii) Receipt by Lender of results of searches for UCC financing
statements, judgments, tax liens and the like that are reasonably acceptable to
Lender;
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(iii) Receipt by Lender of perfected, first-priority security interests
in the Collateral; and
(iv) Receipt by Lender of such other documents, reports and evidence as
Lender shall require in its sole and absolute discretion.
IN WITNESS WHEREOF, the undersigned have set their hands or caused
these presents to be executed by duly authorized corporate officers as of the
day and year first above written.
S2 GOLF INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: XXXXXXX X. XXXXXXXXXX
Title: President
S2 GOLF ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: XXXXXXX X. XXXXXX
Title: Secretary
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxxxx
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Name: XXXXXXX XXXXXXXX
Title: Assistant Vice President
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STATE OF :
: SS.
COUNTY OF :
On the ______ day of January, 2001, before me personally came XXXXXXX X.
XXXXXXXXXX, who, being duly sworn by me, stated that he is the President of S2
GOLF INC., a New Jersey corporation, and that he, as the said President, and
with the authority of the board of directors of said corporation, executed the
instrument set forth above on behalf of said corporation as its voluntary act
and deed.
/s/ Xxxxxx X. Xxxxxxxxxxx
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Name:
Notary Public of the State of Ohio
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My commission expires: Mar. 29, 2001
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STATE OF PENNSYLVANIA :
: SS.
COUNTY OF ALLEGHENY :
On the 3RD day of January, 2001, before me personally came XXXXXXX X.
XXXXXX, who, being duly sworn by me, stated that he is the Secretary of S2 GOLF
ACQUISITION CORP., a New Jersey corporation, and that he, as the said President,
and with the authority of the board of directors of said corporation, executed
the instrument set forth above on behalf of said corporation as its voluntary
act and deed.
/s/ Xxxxx X. Xxxxxxx
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Name:
Notary Public of the State of Pennsylvania
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My commission expires: May 4, 2002
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