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EXHIBIT 10.3.11
FIRST AMENDMENT TO FINANCING AGREEMENT
THIS FIRST AMENDMENT TO FINANCING AGREEMENT (this "Amendment") is
made and entered as of January 29, 1997, 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 (each a "Borrower" and collectively, "Borrowers").
Preliminary Statements
A. Borrowers and Bank have entered into a Financing Agreement dated
as of May 31, 1996 (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. Borrowers have requested that Bank amend the Financing Agreement
to make a $375,000 increase in the Term Loan to facilitate the purchase of a
Lawsure polishing and buffing machine.
C. Bank is willing to increase the Term Loan by $375,000 to
facilitate the purchase of a Lawsure polishing and buffing machine, all as
contemplated by the terms, and subject to the conditions, of 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 TO FINANCING AGREEMENT. The Financing Agreement is
hereby amended as follows:
1.1 DEFINITION OF "TERM LOAN AVAILABILITY". The definition of "Term
Loan Availability" in Section 1.1 of the Financing Agreement is hereby amended
in its entirety by substituting in its stead the following:
"Term Loan Availability" means, as of any time, an amount equal to:
(i) an amount equal to the lesser of: (a) $3,625,000; or (b) the sum
of (1) an amount up to 75% of the aggregate orderly liquidation value of the
Eligible Equipment owned
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and held by FM Manufacturing (excluding the Lawsure polishing and buffing
machine installed in January, 1997 (the "Lawsure Machine")), plus (2) an amount
up to 60% of the fair market value of that portion of Borrower's Facility which
constitutes real estate, such fair market value to be determined in accordance
with an appraisal complying with all regulatory requirements applicable to Bank,
provided that Bank has obtained an environmental assessment of the real estate
satisfactory to Bank; plus (3) 70% of the hard cost of the Lawsure Machine; less
(ii) the principal amortization payments of the Term Loan made
or required to have been made by Borrowers; less
(iii) the then outstanding principal amount of the Term Loan.
For purposes of determining the Term Loan Availability, the orderly liquidation
value of the Eligible Equipment owned and held by FM Manufacturing and the fair
market value of Borrower's Facility will be determined in accordance with
appraisals performed from time to time, but not more frequently than annually,
at Borrowers' cost by appraisers acceptable to Bank, in its discretion exercised
in good faith, based on methods of appraisal acceptable to Bank.
1.2 Section 2.3.1 of the Financing Agreement is hereby amended in
its entirety by substituting in its stead the following:
2.3.1 General. Subject to the terms and conditions of this
Agreement, Bank shall make a loan (the "Term Loan") to FM Manufacturing in the
amount of $3,625,000; provided, however, that the principal amount of the Term
Loan may not, as of any time, exceed the Term Loan Availability. Borrowers
acknowledge that, on the Closing Date, Bank made a term loan to FM Manufacturing
in the amount of $3,750,000, the principal balance of which will be, after the
installment due and payable on February 1, 1997, $3,250,000, and further
acknowledge that, on or after the date the First Amendment to Financing
Agreement is signed by Bank, Bank will advance to FM Manufacturing $375,000 to
bring the balance of the Term Loan to $3,625,000. Subject to the terms of
Section 2.3.2 and Section 11.4, the principal of the Term Loan shall be due and
payable by FM Manufacturing in equal consecutive monthly installments in the
amount of $69,711.54 each, commencing on the first day of March, 1997 and
continuing on the first day of each month thereafter until the termination of
this Agreement, at which time the entire unpaid principal balance of, and
accrued interest on, the Term Loan, if not sooner repaid, shall be due and
payable. No part of the Term Loan may, on the repayment thereof, be redrawn or
reborrowed by FM Manufacturing.
1.3 Section 1 of Exhibit 10.29 of the Financing Agreement is hereby
amended in its entirety by substituting the following in its stead:
Section 1. Capital Expenditures. Borrowers will not make
capital expenditures (including, without limitation, expenditures for fixed
assets or leases capitalized or required, in accordance with GAAP consistently
applied, to be capitalized by purchase, lease-purchase agreement, option or
otherwise) in an aggregate amount exceeding $___________
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during the fiscal year of Borrowers ending on or about May 31, 1997 and $700,000
during each fiscal year of Borrowers ending on or about May 31, 1998 and May 31,
1999.
2. OTHER CLOSING DELIVERIES. With the signing of this Amendment,
Borrowers will cause the delivery to Bank of (i) the Reaffirmation of Individual
Guaranty signed by Individual Guarantors, (ii) the Reaffirmation of Corporate
Guaranty signed by Corporate Guarantor, and (iii) all 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.
3. REPRESENTATIONS. To induce Bank to accept this Amendment,
Borrowers hereby represent and warrant to Bank as follows:
3.1 Each Borrower 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.
3.2 This Amendment constitutes the legal, valid and binding
obligations of each Borrower enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally.
3.3 Each Borrower's 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.
4. 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.
5. RELEASE. Each Borrower hereby releases 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.
6. 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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7. 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.
8. 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.
9. COUNTERPARTS. This Amendment and each Reaffirmation of 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.
10. 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 ____________ __, 1997
STAR BANK, NATIONAL ASSOCIATION
By:________________________________
Name:______________________________
Title:_____________________________
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REAFFIRMATION OF EACH INDIVIDUAL GUARANTY
In satisfaction of the condition set forth in Section 2 of the above
First Amendment to Financing Agreement (the "Amendment"), each Individual
Guarantor hereby consents to the Amendment and to the transactions contemplated
thereby, reaffirms his or its respective Individual Guaranty, and acknowledges
and agrees that he or it is not released from his or its obligations under his
or its respective Individual Guaranty by reason of the Amendment and that the
obligations of such Individual Guarantor under his or its respective Individual
Guaranty extend to the Financing Agreement and the other Loan Documents as
amended by the Amendment. This Reaffirmation of Individual Guaranty shall not be
construed, by implication or otherwise, as imposing any requirement that Bank
notify or seek the consent of Individual Guarantors relative 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 an Individual
Guaranty, it being expressly acknowledged and reaffirmed that Individual
Guarantors have under each respective Individual Guaranty consented to
modifications, extensions and other actions with respect thereto without any
notice thereof. All capitalized terms used in this Reaffirmation of Individual
Guaranty and not otherwise defined herein shall have the meanings ascribed
thereto in the Amendment.
IN WITNESS WHEREOF, Individual Guarantors have executed this
Reaffirmation of Individual Guaranty to be effective as of the date of the
Amendment.
XXXXXXXX XXXXXXX & COMPANY, L.P.
By:_______________________________
Name:_____________________________
Title:____________________________
__________________________________________
Xxxxxxxxxxx X. Xxxxxxxx
__________________________________________
Xxxxxxx X. Xxxxxxxx
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REAFFIRMATION OF CORPORATE GUARANTY
In satisfaction of the condition set forth in Section 2 of the above
First 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, 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.
FM PRECISION GOLF CORP.
By:_______________________________
Name:_____________________________
Title:____________________________
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