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EXHIBIT 10.3.8
SECURITY AGREEMENT
(FM Precision Golf Corp.)
THIS SECURITY AGREEMENT (this "Agreement"), dated as of May
31, 1996, between STAR BANK, NATIONAL ASSOCIATION, a national banking
association ("Bank"), and FM PRECISION GOLF CORP., an Ohio corporation
("Guarantor"), is as follows:
1. DEFINITIONS.
1.1 Defined Terms. In addition to the other terms defined in this
Agreement, whenever the following capitalized terms (whether or not underscored)
are used, they shall be defined as follows:
"Borrowers" means, collectively, FM Precision Golf Manufacturing Corp.,
a Delaware corporation and FM Precision Golf Sales Corp., a Delaware
corporation. "Borrower" means each of the foregoing corporations.
"Code" means the Uniform Commercial Code, as enacted in the State of
Ohio, Section 1301.01 et seq. of the Ohio Revised Code, as amended from time to
time.
"Collateral" means (i) all Equipment, General Intangibles, Inventory
and Receivables (all as defined below); (ii) all of Guarantor's rights, titles
and interests in and to any and all cash, funds, bank accounts, securities,
deposits, or other sums, whether maintained with Bank, an Affiliate of Bank or
any other Person and all other amounts at any time credited by, or due from Bank
or an Affiliate of Bank, as applicable, to Guarantor; (iii) all of Guarantor's
books, records and files of whatever type or nature, whether or not written,
stored electronically or electromagnetically or in any other form, relating to
any or all of the Equipment, Inventory, General Intangibles, Receivables or the
property or interests in property described in clause (ii) above of this
definition, or the proceeds of all of the foregoing, whether or not such books,
records, or files constitute Receivables, Equipment or General Intangibles; (iv)
all of the products and proceeds of all of the foregoing, including proceeds of
any insurance, whether or not in the form of original collateral, Receivables,
contract rights, General Intangibles, Equipment, fixtures, chattel paper,
instruments, leases, Inventory, securities, documents, deposit accounts, or
cash; and (v) all of the foregoing, whether now owned or existing or hereafter
acquired or arising, or in which Guarantor now has or hereafter acquires any
rights or interests.
"Equipment" means all of Guarantor's equipment, fixtures, and other
goods, including furniture, machinery, tools, dies, jigs, molds, forklifts,
computers and associated hardware and equipment, trade fixtures, vehicles, and
all other tangible personal property not otherwise described herein, together
with any and all attachments, accessions, parts and appurtenances thereto,
substitutions therefor and replacements thereof.
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"Financing Agreement" means the Financing Agreement of even date
herewith between Bank and Borrowers. "Affiliate," "Event of Default," "Lien,"
"Loan" and "Person" have the respective meanings ascribed thereto in the
Financing Agreement.
"General Intangibles" means all of Guarantor's general intangibles,
choses in action, causes of action and all other intangible personal property of
Guarantor of every kind and nature (other than Receivables), including corporate
or other business records, inventions, designs, patents, patent applications,
service marks, service xxxx applications, trademarks, trademark applications,
trade names, trade secrets, goodwill, registrations, copyrights, leases,
licenses, rights in and to all computer software and intellectual property
owned, developed, licensed or leased by Guarantor in the operation of computers
and associated hardware and other equipment, franchises, customer lists, tax
refunds, tax refund claims, pension plan refunds and reversions, rights and
claims against carriers and shippers and rights to indemnification and rights as
a lender or a secured party.
"Guaranteed Obligations" has the meaning ascribed thereto in the
Guaranty.
"Guaranty" means the Guaranty of even date herewith made by Guarantor
to and for the benefit of Bank.
"Inventory" means all of Guarantor's inventory and other goods,
including all merchandise, raw materials, work in process, and finished goods,
all rejected, rerouted, repossessed, or returned goods sold or delivered in
respect of any Receivable, and all other tangible personal property held for
sale or lease or furnished or to be furnished under contracts of service or used
or consumed in Guarantor's business or in connection with the manufacture,
packaging, shipping, advertising, selling or finishing of such goods,
merchandise or other personal property and all documents of title or documents
representing the same.
"Receivables" means all of Guarantor's accounts, accounts receivable,
contracts, contract rights, notes, bills, drafts, acceptances, instruments,
documents, shipping documents, documents of title, warehouse receipts, proceeds
of any letters of credit on which Guarantor is named as a beneficiary, chattel
paper, and all rights of Guarantor to payment for goods sold or leased or for
services rendered, whether or not earned by performance and whether or not
evidenced by an instrument, chattel paper, or a general intangible, and all
other debts, obligations and liabilities in whatever form owing to Guarantor or
however otherwise established or created, all guaranties, sureties' obligations,
and security therefor (including rights at law and in equity), all right, title
and interest of Guarantor in the Inventory, goods, or merchandise or services
which gave rise thereto (including the rights of reclamation and stoppage of
delivery in transit and all other rights of an unpaid seller for merchandise or
services), and all returned, rejected, rerouted or repossessed goods, the sale
of which gave rise to any Receivable.
1.2 Other Definitional Provisions; Construction. Unless otherwise
specified,
(i) As used in this Agreement, accounting terms relating to
Guarantor not defined in this Agreement have the respective meanings given to
them in accordance with GAAP.
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(ii) References to the Uniform Commercial Code, or UCC, mean
as enacted in the particular jurisdiction(s) encompassed by the reference.
(iii) The definition of any document or instrument includes
all schedules, attachments and exhibits thereto and all renewals, extensions,
supplements, restatements and amendments thereof. All Exhibits attached to this
Agreement are incorporated into, made and form an integral part of this
Agreement for all purposes.
(iv) "Hereunder," "herein," "hereto," "this Agreement" and
words of similar import refer to this entire document; "including" is used by
way of illustration and not by way of limitation, unless the context clearly
indicates the contrary; the singular includes the plural and conversely; and any
action required to be taken by Guarantor is to be taken promptly, unless the
context clearly indicates the contrary.
(v) All of the uncapitalized terms contained in this
Agreement which are defined under the Code will, unless the context indicates
otherwise, have the meanings provided for in the Code.
2. GRANT OF SECURITY INTEREST; SET-OFF AND RELATED MATTERS.
2.1 Security Interest. As security for the full, prompt and complete
payment and performance of the Guaranteed Obligations, Guarantor hereby grants
to, and creates in favor of, Bank a continuing security interest in all of the
Collateral.
2.2 Set-Off. All moneys, securities and other properties of Guarantor
and the proceeds thereof now or hereafter held or received by Bank from or for
the account of Guarantor, including any and all deposits (general or special),
account balances and credits of Guarantor with Bank or any Affiliate of Bank at
any time existing, (i) are part of the Collateral, (ii) will be held as security
for the Guaranteed Obligations, and (iii) may be set-off and applied against any
or all Guaranteed Obligations at any time. Guarantor authorizes Bank's
Affiliates to pay or to deliver to Bank any deposits or other sums credited by,
or due from, Bank's Affiliates to Guarantor for application against any or all
Guaranteed Obligations, at any time upon the occurrence of any Event of Default
and after the lapse of any applicable period of cure, all without further notice
to Guarantor (such notice being expressly waived) and without any necessity on
Bank's part to resort to other security or sources of reimbursement for the
Guaranteed Obligations. The rights given to Bank hereunder are cumulative with
Bank's other rights and remedies, including other rights of setoff. Bank will
promptly notify Guarantor of Bank's receipt of such funds for application
against the Guaranteed Obligations, but Bank's failure to do so will not affect
the validity or enforceability thereof. Bank may give notice of the above grants
of security interests and assignment of such deposits and other sums to any such
Affiliate of Bank. Bank has authorization to, and may make any suitable
arrangements with, any such Affiliate of Bank for effectuation thereof, and
Guarantor hereby irrevocably appoints Bank as its attorney to collect any and
all such deposits or other sums to the extent any such payment is not made to
Bank by such Affiliate.
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3. PERFECTION OF BANK'S SECURITY INTEREST; DUTY OF CARE.
3.1 Required Guarantor Actions. Until the termination of this
Agreement, Guarantor shall perform any and all steps and take all actions
requested by Bank from time to time to perfect, maintain, protect, and enforce
Bank's security interest in the Collateral, including (i) executing and
delivering all appropriate documents and instruments as Bank may determine are
necessary or desirable to perfect, preserve, or enforce Bank's interest in the
Collateral, including financing statements, all in form and substance reasonably
satisfactory to Bank, (ii) delivering to Bank any warehouse receipts covering
that portion of the Collateral which, with Bank's consent, may be located in
warehouses and in respect of which warehouse receipts are issued, (iii)
transferring Inventory to warehouses approved by Bank (iv) placing notations on
Guarantor's books of account to disclose Bank's security interests therein, (v)
taking such other steps and actions as deemed necessary or desirable by Bank to
protect, perfect, and enforce Bank's Liens on, and interests in, the Inventory,
(vi) transferring to Bank all letters of credit on which Guarantor is named as a
beneficiary, and (vii) immediately delivering to Bank any instrument (whether
negotiable or non-negotiable) or any chattel paper that evidences any amount
payable under or in connection with any Collateral, which, in each instance, is
duly indorsed to Bank in a manner acceptable to it, to be held as Collateral
pursuant to this Agreement.
3.2 Financing Statements; Notices. Bank is authorized by Guarantor (i)
to file one or more financing statements disclosing Bank's security interests
under this Agreement without Guarantor's signature appearing thereon, and (ii)
to give notice to any creditor or landlord of Guarantor or to any other Person
who Bank may determine is necessary or desirable under applicable law to give
notice to perfect or preserve Bank's interests in the Collateral. Guarantor
shall pay the costs of, or incidental to, any recording or filing of any
financing statements and other notices in all public offices where filing is
deemed by Bank to be necessary or desirable to perfect, protect or enforce the
Liens granted to Bank under this Agreement. Guarantor agrees that a carbon,
photographic, photostatic or other reproduction of this Agreement or of a
financing statement is sufficient as a financing statement.
3.3 Bailees; Warehousemen. If any Inventory is in the possession or
control of any warehouseman or any of Guarantor's agents, processors, or other
bailees, Guarantor shall notify such warehousemen, agents, processors or other
bailees of Bank's security interests therein, and upon Bank's request, will
obtain a bailee letter agreement and financing statements acceptable to Bank
from such warehouseman, agent, processor or other bailee.
3.4 Impositions; Protection of Bank's Interests. To protect, perfect,
or enforce, from time to time, Bank's rights or interests in the Collateral,
Bank may, in its discretion (but without any obligation to do so), (i) discharge
any Liens at any time levied or placed on the Collateral, (ii) pay any
insurance, (iii) maintain guards where any Collateral is located if an Event of
Default has occurred and is continuing, and (iv) obtain any record from any
service bureau and pay such service bureau the cost thereof. All costs and
expenses incurred by Bank in exercising its discretion under
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this Section 3.4 will be part of the Guaranteed Obligations, payable on Bank's
demand and secured by the Collateral.
3.5 Bank's Duty of Care. Bank shall have no duty of care with respect
to the Collateral except that Bank shall exercise reasonable care with respect
to the Collateral in Bank's custody. Bank shall be deemed to have exercised
reasonable care if (i) such property is accorded treatment substantially equal
to that which Bank accords its own property or (ii) Bank takes such action with
respect to the Collateral as Guarantor shall request in writing; however,
neither (a) Bank's failure to comply with any such request or to do any such act
requested by Guarantor nor (b) Bank's failure to take steps to preserve rights
against any Persons in such property shall be deemed a failure to exercise
reasonable care. Guarantor agrees that Bank has no obligation to take steps to
preserve rights against any prior parties.
3.6 Receivable Verification. At any time that there exists an Event of
Default, Bank, in its own name or in the name of others, may communicate with
Guarantor's account debtors to verify with them to Bank's satisfaction the
existence, amount and terms of any Receivables and the nature of such account
debtor's relationship with Guarantor.
3.7 Equipment. Guarantor will, on Bank's request, deliver to Bank any
and all evidences of ownership of the Equipment including any certificates of
title and applications for title pertaining to Guarantor's motor vehicles so
that Bank may cause its security interests to be noted on such certificates of
title.
3.8 Inspection. Bank shall have the right to review the books and
records of Guarantor concerning the Collateral and to copy the same and make
excerpts therefrom, and to inspect and have access to the Collateral at all
times during regular business hours.
4. POWER OF ATTORNEY.
4.1 Grant of Power. Guarantor does hereby make, constitute and appoint
Bank (or any officer or agent of Bank) as Guarantor's true and lawful
attorney-in-fact, with full power of substitution, in the name of Guarantor or
in the name of Bank or otherwise, for the use and benefit of Bank, but at the
cost and expense of Guarantor, (i) to indorse the name of Guarantor on any
notes, checks, drafts, money orders, or other instruments of payment (including
payments payable under any policy of insurance on the Collateral) or Collateral
that may come into the possession of Bank in full or part payment of any of the
Guaranteed Obligations; (ii) after an Event of Default has occurred and is
continuing, to sign and indorse the name of Guarantor on any invoice, freight or
express xxxx, xxxx of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications and notices in connection with Receivables
(exclusive of Bank's rights under Section 3.6 above), and any instrument or
document relating thereto or to Guarantor's rights therein; (iii) after an Event
of Default has occurred and is continuing, to give written notice to the United
States Post Office to effect change(s) of address so that all mail addressed to
Guarantor may be delivered directly to Bank; (iv) to sign and record financing
statements pursuant to the UCC and other notices appropriate under applicable
law as Bank deems necessary or desirable to perfect, preserve, and
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protect Bank's rights under this Agreement; and (v) after an Event of Default
has occurred and is continuing, to obtain and cancel the insurance required by
Section 6.7 of this Agreement and indorse any drafts; (vi) to adjust and settle
the insurance required by Section 6.7 of this Agreement and indorse any drafts;
and (vii) to do any and all things necessary or desirable to perfect Bank's
security interest in the Collateral, to preserve and protect the Collateral and
to otherwise carry out this Agreement.
4.2 Duration; Ratification of Acts. This power of attorney, being
coupled with an interest, will be irrevocable for the term of this Agreement and
all transactions under this Agreement and thereafter so long as any of the
Guaranteed Obligations remain in existence. Guarantor ratifies and approves all
acts of such attorney, and neither Bank nor its attorney will be liable for any
acts or omissions or for any error of judgment or mistake of fact or law, except
for willful misconduct. Guarantor will execute and deliver promptly to Bank all
instruments necessary or desirable, as determined in Bank's discretion, to
further Bank's exercise of the rights and powers granted it in this Section 4.
5. WARRANTIES AND REPRESENTATIONS. To induce Bank to make each Loan, Guarantor
represents to Bank that the following statements are, and will continue
throughout the term of this Agreement to be, true:
5.1 Places of Business; Registered Office. Guarantor's chief executive
office and principal place of business are set forth on Exhibit 5.1, and the
only other offices or locations where Guarantor keeps the Collateral (except for
Inventory in transit) or conducts any business are listed on Exhibit 5.1;
5.2 Prior Locations Of Collateral. None of the Inventory or Equipment
constituting part of the Collateral (except for Inventory in transit) has been
at, or has been removed from, any location during the five year period preceding
the date of this Agreement other than those locations set forth on Exhibit 5.1;
5.3 Names. All trade names, assumed names, fictitious names and other
names used by Guarantor are set forth on Exhibit 5.3, and, except as set forth
on Exhibit 5.3, Guarantor has not acquired any of its assets in any bulk
transfer; and
5.4 State of Title. Guarantor has good and indefeasible title to, and
ownership of, the Collateral, free and clear of all Liens.
5.5 Priority. Bank has a first priority security interest in, and Lien
on, the Collateral.
6. COLLATERAL COVENANTS. Until the Guaranteed Obligations are fully paid,
performed and satisfied and this Agreement is terminated, Guarantor will:
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6.1 Claims Against Collateral. Maintain the Collateral, as the same is
constituted from time to time, free and clear of all Liens, and will defend or
cause to be defended the Collateral against all of the claims and demands of all
Persons whomsoever;
6.2 Notice of Change in Place of Business. Give Bank at least 30 days
advance notice in writing of any change in its (i) chief executive office,
registered office, principal place of business, or other places of business, or
the opening of any new places of business and (ii) names from those set forth on
Exhibit 5.3 or the adoption by Guarantor of trade names, assumed names or
fictitious names;
6.3 Notice of Governmental or Foreign Receivables. Notify Bank in
writing immediately upon the creation of any Receivables with respect to which
the account debtor is (i) the United States of America or any state, city,
county or other governmental authority or any department, agency or
instrumentality of any of them, or any foreign government or instrumentality
thereof or (ii) any business which is located in a foreign country;
6.4 Notice of Adverse Information. Immediately notify Bank in writing
of any information which it has or may receive with respect to the Collateral
which might in any manner materially and adversely affect the value thereof or
the rights of Bank with respect thereto;
6.5 Equipment. Maintain the Equipment in good operating condition and
repair, make all necessary replacements thereof so that the value and operating
efficiency thereof shall at all times be maintained and preserved. Guarantor
will not permit any of the Equipment to become a fixture to real property not
mortgaged to Bank or an accession to other personal property not constituting
part of the Collateral;
6.6 Inventory. Maintain the Inventory in good and salable condition and
will handle, maintain and store the Inventory in a safe and careful manner in
accordance with all applicable laws, rules, regulations, ordinances and
governmental orders;
6.7 Insurance. Insure the Collateral in accordance with the insurance
requirements applicable to Borrowers as provided in the Financing Agreement;
6.8 Removal of Collateral. Not remove its books and records concerning
the Collateral from the locations set forth in Exhibit 5.1 of this Agreement or
keep any of such books and records or the Collateral at any other office or
location without giving Bank at least 30 days prior notice of such action and
complying with the other terms of this Agreement; provided that such location is
in the continental United States; and
6.9 No Liens. Not create or permit to be created or to exist any Lien
on any of the Xxxxxxxxxx.
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0. XXXX. Subject to Section 11.5 below, this Agreement will terminate on the
later to occur of (i) the full performance, payment and satisfaction of the
Guaranteed Obligations and (ii) the termination of the Financing Agreement.
8. BANK'S RIGHTS AND REMEDIES.
8.1 Remedies. (i) On the occurrence of an Event of Default and
immediately on and after the lapse of any applicable period of cure, Bank may,
at any time, take any one or more of the following actions, without notice,
demand or legal process of any kind, all of which Guarantor waives to the
fullest extent permitted by law:
(a) proceed to enforce payment of the Guaranteed Obligations
and to exercise all of the rights and remedies afforded to Bank by the UCC and
by law and in equity provided;
(b) take possession of the Collateral and maintain such
possession on Guarantor's premises at no cost to Bank, or remove the Collateral,
or any part thereof, to such other place(s) as Bank may desire;
(c) enter on any premises on which the Collateral, or any part
or records thereof, may be situated and remove the same therefrom, for which
action Guarantor will not assert against Bank any claim for trespass, breach of
the peace or similar claim and Guarantor will not hinder Bank's efforts to
effect such removal;
(d) require Guarantor, at its cost, to assemble the Collateral
and make it available at a place designated by Bank;
(e) collect, compromise, sell or otherwise deal with the
Collateral or proceeds thereof in its own name or in the name of Guarantor and
bring suit on the Receivables, in the name of Guarantor or Bank, and exercise
all such other rights respecting the Receivables, including the right to
accelerate or extend the time of payment, settle, release in whole or in part
any amounts owing on any Receivables and issue credits in the name of Guarantor
or Bank;
(f) sell part or all of the Collateral at public or private
sale(s), for cash, upon credit or otherwise, at such prices and upon such terms
as Bank deems advisable, at Bank's discretion, and Bank may, if Bank deems it
reasonable, postpone or adjourn any sale of the Collateral from time to time by
an announcement at the time and place of sale or by announcement at the time and
place of such postponed or adjourned sale, without being required to give a new
notice of sale;
(g) to the extent Bank has not so acted or is currently so
acting pursuant to the other terms of this Agreement, notify Guarantor's account
debtors that the Receivables have been assigned to Bank and that payments should
be made directly to Bank;
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(h) require Guarantor, using such form as Bank may approve, to
notify such account debtors, and to indicate on all of Guarantor's xxxxxxxx to
such account debtors, that their Receivables must be paid to Bank directly;
(i) sign any indorsements, assignments or other instruments of
conveyance or transfer in connection with any disposition of the Collateral;
(j) sell, assign, transfer or otherwise dispose of all or any
part of the Collateral in any manner permitted by law and do any other thing and
exercise any other right or remedy which Bank may, with or without judicial
process, do or exercise under applicable law; and
(k) apply for and have a receiver appointed under state or
federal law by a court of competent jurisdiction in any action taken by Bank to
enforce its rights and remedies under this Agreement in order to manage,
protect, preserve, and sell and otherwise dispose of all or any portion of the
Collateral and continue the operation of the business of Guarantor, and to
collect all revenues and profits thereof and apply the same to the payment of
all expenses and other charges of such receivership, including the compensation
of the receiver, and to the payment of the Guaranteed Obligations until a sale
or other disposition of such Collateral is finally made and consummated.
(ii) Guarantor acknowledges that portions of the Collateral could be
difficult to preserve and dispose of and be further subject to complex
maintenance and management. Accordingly, Bank, in exercising its rights under
this Section 8.1, shall have the widest possible latitude to preserve and
protect the Collateral and Bank's security interest therein.
8.2 Notice of Disposition; Allocations. If any notice is required by
law to effectuate any sale or other disposition of the Collateral, (i) Bank will
give Guarantor written notice of the time and place of any public sale or of the
time after which any private sale or other intended disposition thereof will be
made, and at any such public or private sale, Bank may purchase all or any of
the Collateral; and (ii) Bank and Guarantor agree that such notice will not be
unreasonable as to time if given in compliance with this Agreement five days
prior to any sale or other disposition. The proceeds of the sale will be applied
first to all costs and expenses of such sale including attorneys' fees and other
costs and expenses, and second to the payment of all Guaranteed Obligations in
the manner and order determined by Bank in its discretion. Guarantor shall
remain liable to Bank for any deficiency. Unless otherwise directed by law, Bank
will return any excess to Guarantor.
8.3 Payment of Expenses. Guarantor shall pay to Bank, on its demand,
all costs and expenses, including court costs, attorneys' fees and costs of
sale, incurred by Bank in exercising any of its rights or remedies hereunder,
all of which constitute part of the Guaranteed Obligations and are secured by
the Collateral.
9. INDEMNIFICATION. In consideration of the execution and delivery of the
Financing Agreement and the making of any Loan to Borrowers, Guarantor will
indemnify and hold Bank, and Bank's directors, Affiliates, and agents (for the
purposes of this Section 9 each is an
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"Indemnified Party") harmless from and against any and all claims, losses,
obligations and liabilities arising out of or resulting from any or all of (i)
this Agreement and (ii) the transactions contemplated by this Agreement
(including enforcement of this Agreement), except for claims, losses or
liabilities resulting from an Indemnified Party's bad faith or willful
misconduct. The indemnification provided for in this Section 9 is in addition
to, and not in limitation of, any other indemnification or insurance provided by
Borrowers to Bank.
10. NOTICE. Any notice, certificate, request, notification and other
communication required, permitted or contemplated hereunder must be in writing
and given in accordance with Section 6.10 of the Guaranty.
11. GENERAL.
11.1 Severability. If any term of this Agreement is found invalid under
Ohio law or other laws of mandatory application by a court of competent
jurisdiction, the invalid term will be considered excluded from this Agreement
and will not invalidate the remaining terms of this Agreement.
11.2 GOVERNING LAW. THIS AGREEMENT HAS BEEN DELIVERED AND ACCEPTED AT
AND SHALL BE DEEMED TO HAVE BEEN MADE AT CINCINNATI, OHIO. THIS AGREEMENT SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF OHIO (WITHOUT REFERENCE TO OHIO CONFLICTS OF LAW PRINCIPLES).
11.3 WAIVER OF JURISDICTION. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR
BANK TO ENTER INTO THIS AGREEMENT AND EXTEND CREDIT TO BORROWERS, GUARANTOR
AGREES THAT ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS
AGREEMENT, ITS VALIDITY OR PERFORMANCE, AT THE SOLE OPTION OF BANK, ITS
SUCCESSORS AND ASSIGNS, AND WITHOUT LIMITATION ON THE ABILITY OF BANK, ITS
SUCCESSORS AND ASSIGNS, TO EXERCISE ALL RIGHTS AS TO THE COLLATERAL OR INITIATE
AND PROSECUTE IN ANY APPLICABLE JURISDICTION ACTIONS RELATED TO REPAYMENT OF THE
GUARANTEED OBLIGATIONS, SHALL BE INITIATED AND PROSECUTED AS TO ALL PARTIES AND
THEIR SUCCESSORS AND ASSIGNS AT CINCINNATI, OHIO. BANK AND GUARANTOR EACH
CONSENTS TO AND SUBMITS TO THE EXERCISE OF JURISDICTION OVER ITS PERSON BY ANY
COURT SITUATED AT CINCINNATI, OHIO HAVING JURISDICTION OVER THE SUBJECT MATTER,
AND CONSENTS THAT ALL SERVICE OF PROCESS BE MADE BY CERTIFIED MAIL DIRECTED TO
GUARANTOR AND BANK AT THEIR RESPECTIVE ADDRESSES SET FORTH IN SECTION 6.10 OF
THE GUARANTY OR AS OTHERWISE PROVIDED UNDER THE LAWS OF THE STATE OF OHIO.
GUARANTOR WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION
TO VENUE OF ANY ACTION INSTITUTED HEREUNDER, AND CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.
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11.4 Survival and Continuation of Representations and Warranties. All
of Guarantor's representations and warranties contained in this Agreement shall
(i) survive the execution, delivery and acceptance hereof by the parties hereto
and the closing of the transactions described herein or related hereto, and (ii)
remain true until the Guaranteed Obligations are fully performed, paid and
satisfied, made by Guarantor with the same effect as though the representations
and warranties had been made again on, and as of, each day of the term of this
Agreement, subject to such changes as may not be prohibited hereby, do not
constitute Events of Default, and have been consented to by Bank in writing.
11.5 Application of Payments; Revival of Guaranteed Obligations. Bank
shall have the continuing right, but not the obligation, to apply or reverse and
reapply any payments to any portion of the Guaranteed Obligations. To the extent
Bank receives any payment or payments in respect of the Guaranteed Obligations
or proceeds of the Collateral, which payment(s) or proceeds or any part thereof
are subsequently voided, invalidated, declared to be fraudulent or preferential,
set aside or required to be repaid to a trustee, receiver or any other party
under any bankruptcy act, state or federal law, common law or equitable cause,
then, to the extent of such payment(s) or proceeds received, the Guaranteed
Obligations or part thereof intended to be satisfied shall be revived and shall
continue in full force and effect, as if such payment(s) or proceeds had not
been received by Bank.
11.6 Equitable Relief. Guarantor recognizes that, in the event
Guarantor fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement, any remedy of law may prove to be inadequate
relief to Bank; therefore, Guarantor agrees that Bank, if Bank so requests,
shall be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
11.7 Entire Agreement. This Agreement and the Guaranty set forth the
entire agreement of the parties with respect to the subject matter hereof and
supersede all previous understandings, written or oral, in respect thereof.
11.8 Headings. Section headings in this Agreement are included for
convenience of reference only and shall not relate to the interpretation or
construction of this Agreement.
11.9 Cumulative Remedies. The remedies provided in this Agreement and
the Guaranty are cumulative and not exclusive of any remedies provided by law.
Exercise of one or more remedy(ies) by Bank does not require that all or any
other remedy(ies) be exercised and does not preclude later exercise of the same
remedy.
11.10 Waivers and Amendments in Writing. Failure by Bank to exercise
any right, remedy or option under this Agreement or delay by Bank in exercising
the same shall not operate as a waiver by Bank of its right to exercise any such
right, remedy or option. No waiver by Bank shall be effective unless it is in
writing and then only to the extent specifically stated. This Agreement cannot
be changed or terminated orally.
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11.11 Assignment. Bank shall have the right to assign this Agreement.
Guarantor may not assign, transfer or otherwise dispose of any of its rights or
obligations hereunder, by operation of law or otherwise, and any such
assignment, transfer or other disposition without Bank's written consent shall
be void. All of the rights, privileges, remedies and options given to Bank under
this Agreement shall inure to the benefit of Bank's successors and assigns, and
all the terms, conditions, covenants, provisions and warranties herein shall
inure to the benefit of and bind the permitted successors and assigns of
Guarantor and Bank, respectively.
11.12 WAIVER OF JURY TRIAL. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR
BANK TO ENTER INTO THIS AGREEMENT AND EXTEND CREDIT TO BORROWERS, GUARANTOR AND
BANK EACH WAIVE TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR
PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS AGREEMENT OR THE CONDUCT OF THE
RELATIONSHIP BETWEEN BANK AND GUARANTOR.
IN WITNESS WHEREOF, this Agreement has been duly executed by Guarantor
as of May 31, 1996.
FM PRECISION GOLF CORP.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Its: Vice President
Accepted at Cincinnati, Ohio,
as of May 31, 1996.
STAR BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Vice President
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