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Exhibit 10.30
SECOND AMENDMENT TO CREDIT AGREEMENT
This Amendment is made as of the 28th day of August, 1997 by and between
ROYAL GRIP, INC., a Nevada corporation ("Royal Grip") and ROXXI, INC., a Nevada
corporation ("Roxxi") (collectively, the "Borrower"), and NORWEST BUSINESS
CREDIT, INC., a Minnesota corporation (the "Lender").
Recitals
The Borrower and the Lender have entered into the Credit and Security
Agreement dated as of February 10, 1997, as amended by that certain First
Amendment to Credit Agreement dated as of April 11, 1997 (the "Credit
Agreement").
The Lender has agreed to make certain loan advances to the Borrower
pursuant to the terms and conditions set forth in the Credit Agreement.
The loan advances under the Credit Agreement are evidenced by the
Borrower's Revolving and Term Note dated as of February 10, 1997, in the maximum
principal amount of $2,450,000.00 and payable to the order of the Lender (the
"Note").
All indebtedness of the Borrower to the Lender is secured pursuant to
the terms of the Credit Agreement and all other Security Documents as defined
therein (collectively, the "Security Documents").
The Borrower has requested that certain amendments be made to the Credit
Agreement, which the Lender is willing to make pursuant to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, it is agreed as follows:
1. Terms used in this Amendment which are defined in the Credit
Agreement shall have the same meanings as defined therein, unless otherwise
defined herein.
2. The Credit Agreement is hereby amended as follows:
(a) The definition of "Net Income" is hereby deleted in its
entirety and replaced as follows:
"Net Income" means consolidated after tax net income of both the
Borrowers from continuing operations, but before extraordinary gains,
provided however, during Borrower's 1997 fiscal year only, non-cash
out-of-pocket expenses of Borrower directly attributable to the issuance
of warrants and options to Everen shall be added back into the net
income calculation.
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(b) The definition of "Net Worth" is hereby deleted in its entirety
and replaced as follows:
"Net Worth" means the net worth of the Borrower determined in
accordance with generally accepted accounting principles consistent with
those used in preparing Borrower's most recent consolidating and
consolidated audited financial statements; provided however, during
Borrower's 1997 fiscal year only, non-cash out-of-pocket expenses of
Borrower directly attributable to the issuance of warrants and options
to Everen shall be added back into the net worth calculation
(c) There is hereby added new subsections (iv) and (v) to Section
7.4 of the Credit Agreement which provides as follows:
(iv) Loans, advances or any other credits shown on the balance sheet
of Borrower granted to Royal Precision, FM Precision Golf
Corp., or FMPSUB,, Inc. not to exceed in the aggregate
$25,000.00 at any time outstanding.
(v) Payments to Royal Precision, FM Precision Golf Corp or FMPSUB,
Inc. so long as they are expensed in accordance with generally
accepted accounting principles, and appear on all statements of
income required pursuant to Section 6.1.
(d) Section 7.10 of the Credit Agreement is hereby deleted in its
entirety and replaced as follows:
7.10 CAPITAL EXPENDITURES. The Borrower will not expend or contract
to make unfinanced Capital Expenditures greater than (i) $400,000.00 in
the aggregate during the 1997 fiscal year, or (ii) $800,000.00 in the
aggregate during any fiscal year thereafter for the lease, purchase or
other acquisition of any capital asset, or for the lease of any other
asset, whether payable currently or in the future.
3. Except as specifically amended by this Amendment, all of the terms
and conditions of the Credit Agreement shall remain in full force and effect and
shall apply to any Advance thereunder.
4. This Amendment shall be effective upon receipt by the Lender of an
executed original hereof, together with each of the following, each in substance
and form acceptable to the Lender in its sole discretion:
(a) Certificate of the Secretary of the Borrower certifying as to
(i) the approval of the board of directors of the Borrower regarding the
execution and delivery of this
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Amendment, (ii) the fact that the Articles of Incorporation and Bylaws of the
Borrower, which were certified and delivered to the Lender in connection with
the execution and delivery of the Credit Agreement continue in full force and
effect and have not been amended or otherwise modified except as set forth in
the Certificate to be delivered, and (iii) certifying that the officers and
agents of the Borrower who have been certified to the Lender as being authorized
to sign and to act on behalf of the Borrower continue to be so authorized.
5. The Borrower hereby represents and warrants to the Lender as
follows:
(a) The Borrower has all requisite power and authority to execute
this Amendment and to perform all of its obligations hereunder, and this
Amendment has been duly executed and delivered by the Borrower and constitutes
the legal, valid and binding obligation of the Borrower, enforceable in
accordance with its terms.
(b) The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate action and do not
(i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, (ii) violate any provision of any law, rule or regulation or of any
order, writ, injunction or decree presently in effect, having applicability to
the Borrower, or the articles of incorporation or by-laws of the Borrower, or
(iii) result in a breach of or constitute a default under any indenture or loan
or credit agreement or any other agreement, lease or instrument to which the
Borrower is a party or by which it or its properties may be bound or affected.
(c) All of the representations and warranties contained in Article
V of the Credit Agreement are correct on and as of the date hereof as though
made on and as of such date, except to the extent that such representations and
warranties relate solely to an earlier date.
6. All references in the Credit Agreement to "this Agreement" shall be
deemed to refer to the Credit Agreement as amended hereby; and any and all
references in the Security Documents to the Credit Agreement shall be deemed to
refer to the Credit Agreement as amended hereby.
7. The execution of this Amendment and acceptance of any documents
related hereto shall not be deemed to be a waiver of any Default, Event of
Default or Default Period under the Credit Agreement or breach, default or event
of default under any Security Document or other document held by the Lender,
whether or not known to the Lender and whether or not existing on the date of
this Amendment.
8. The Borrower hereby absolutely and unconditionally releases and
forever discharges the Lender, and any and all participants, parent
corporations, subsidiary corporations, affiliated corporations, insurers,
indemnitors, successors and assigns thereof, together with all of the
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present and former directors, officers, agents and employees of any of the
foregoing, from any and all claims, demands or causes of action of any kind,
nature or description, whether arising in law or equity or upon contract or tort
or under any state or federal law or otherwise, which the Borrower has had, now
has or has made claim to have against any such person for or by reason of any
act, omission, matter, cause or thing whatsoever arising from the beginning of
time to and including the date of this Amendment, whether such claims, demands
and causes of action are matured or unmatured or known or unknown.
9. The Borrower hereby reaffirms its agreement under the Credit
Agreement to pay or reimburse the Lender on demand for all costs and expenses
incurred by the Lender in connection with the Credit Agreement, the Security
Documents and all other documents contemplated thereby, including without
limitation all reasonable fees and disbursements of legal counsel. Without
limiting the generality of the foregoing, the Borrower specifically agrees to
pay all fees and disbursements of counsel to the Lender for the services
performed by such counsel in connection with the preparation of this Amendment
and the documents and instruments incidental hereto. The Borrower hereby agrees
that the Lender may, at any time or from time to time in its sole discretion and
without further authorization by the Borrower, make a loan to the Borrower under
the Credit Agreement, or apply the proceeds of any loan, for the purpose of
paying any such fees, disbursements, costs and expenses.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
ROYAL GRIP, INC., a Nevada corporation
By /s/ Xxxxxx Xxxxxxxxx
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Its Secretary
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ROXXI, INC., a Nevada corporation
By /s/ Xxxxxx Xxxxxxxxx
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Its Secretary
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NORWEST BUSINESS CREDIT, INC., a
Minnesota corporation
By /s/ [ILLEGIBLE SIGNATURE]
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Its Vice President
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