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EXHIBIT 10.22
NOTE PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made this 5th day of November 1998,
between GOLF ONE INDUSTRIES, INC., a Delaware corporation (the "Company") and
CAPITAL FUND LEASING, LLC, an Ohio limited liability company (the "Purchaser").
RECITAL
WHEREAS, the Company has authorized the issuance and sale of the
Company's 15% Notes up to an aggregate principal amount of $2,000,000 having the
terms set forth in Exhibit A attached hereto (the "Notes"); and
WHEREAS, the Purchaser desires to purchase, and the Company desires to
issue, the Notes on the terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in this Agreement, the Company and the Purchaser agree as
follows:
1. PURCHASE AND SALE OF NOTES. Subject to the terms and conditions
contained in this Agreement, at the First Closing and Second Closing (as
hereinafter defined) the Purchaser shall purchase from the Company and the
Company shall sell to the Purchaser the Notes in the amount of $2,000,000, which
shall be payable via wire transfer to the Company's designated account (not
later than the next business day after each Closing).
2. CLOSING.
2.1 Closing Dates. The closing of the purchased and sale of the Notes
shall take place as follows: (i) with respect to the first $1,000,000, on or
about November 5, 1998 (the "First Closing") and (ii) with respect to the second
$1,000,000 on or about November 13, 1999 (the "Second Closing") or such other
days as agreed to by the parties (the "Closing Dates").
2.2 Items to be Delivered to Purchaser. The following shall be
delivered by the Company to the Purchaser on each Closing Date:
(a) the Note in the amount of $1,000,000 purchased by the
Purchaser;
(b) a legal opinion of counsel to the Company acceptable to
the Purchaser;
(c) At the First Closing, a certificate of the secretary or an
assistant secretary of the Company certifying (i) an attached complete
and correct copy of its articles of incorporation, (ii) an attached
complete and correct copy of its bylaws, and (iii) an attached complete
and correct copy of resolutions duly adopted by its board of directors
authorizing the execution, delivery and performance of this Agreement
and the Notes;
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(d) At the Second Closing, a Certificate of the Chief
Financial Officer of the Company certifying that there has been no
material adverse change in the Company's financial condition since the
date of the First Closing; and
(e) At the Second Closing, a Certificate of the Company's
Secretary certifying that there has been no changes made or
contemplated to the Company's Certificate of Incorporation or Bylaws
since the date of the First Closing.
2.3 Items to be Delivered to the Company. On each Closing Date, the
Purchaser shall deliver to the Company $1,000,000 by wire transfer to the
account designated by the Company,
3. REPRESENTATIONS AND WARRANTIES.
3.1 Representations and Warranties of the Company. The Company
represents and warrants that as of the date of this Agreement and as of the
Closing Dates:
(a) Existence. The Company is a corporation duly organized and
in good standing under the laws of the State of Delaware and is duly
qualified to do business and is in good standing in all states where
such qualification is necessary, except for those jurisdictions in
which the failure to qualify would not, in the aggregate, have a
material adverse effect on the Company's financial condition, results
of operations or business.
(b) Authority. The execution and delivery by the Company of
this Agreement and the Notes (i) are within the Company's corporate
powers; (ii) are duly authorized by the Company's board of directors;
(iii) are not in contravention of the terms of the Company's
certificate of incorporation or bylaws; (iv) are not in contravention
of any law or laws; (v) except for the filing of a Form D Notice with
the Securities and Exchange Commission and any exemption filing related
thereto which may be required pursuant to applicable state securities
or "blue sky" laws, do not require any governmental consent,
registration or approval; (vi) do not contravene any contractual or
governmental restriction binding upon the Company; and (vii) will not
result in the imposition of any lien, charge, security interest or
encumbrance upon any property of the Company under any existing
indenture, mortgage, deed of trust, loan or credit agreement or other
material agreement or instrument to which the Company is a party or by
which the Company or any of the Company's property may be bound or
affected.
(c) Binding Effect. This Agreement and the Notes have been
duly authorized, executed and delivered by the Company and constitute
the valid and legally binding obligation of the Company, enforceable in
accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
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(d) Capitalization. The authorized capital stock of the
Company consists of 10,000,000 shares of Common Stock, per value $.0001
per share, 4,105,102 shares of which are issued and outstanding and
5,000,000 shares of Preferred Stock, par value $0.001 per share, of
which the following Preferred Shares are authorized, issued and
outstanding: Series B Convertible Preferred Stock authorized 750,750
shares, 572,649 shares issued and outstanding.
(e) Disclosure Documents. The Company has furnished the
Purchaser with the following Disclosure Documents (the "Disclosure
Documents"):
1) The Company's Registration Statement on
Form SB-2 as filed with the Securities and
Exchange Commission on May 27, 1998 (the
"Registration Statement");
2) Confidential Disclosure Memorandum of the
Company to the Purchaser dated as of the
date hereof, supplementing and modifying
certain of the information contained in the
Registration Statement; and
3) The Company's Consolidated Statement of
Operations for the five months ended August
31, 1998 and Consolidated Balance Sheet as
of August 31, 1998 (the "Interim Financial
Statements").
Except as disclosed in the Disclosure Documents, since March 31, 1998
the Company has not incurred any material liability except in the
ordinary course of its business consistent with past practice and there
has not been any change in the business, financial condition or results
of operations of the Company which has had a material adverse effect on
the Company. The Financial Statements contained in the Registration
Statement and the Interim Financial Statements are accurate, complete
and have been prepared in accordance with the books and records of the
Company and in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except as
may be indicated in the notes thereto) and fairly present (subject, in
the case of the unaudited statements, to normal, recurring audit
adjustments that are not material) the consolidated financial position
of the Company as at the dates thereof and the consolidated results of
its operations and cash flows for the periods then ended.
(f) Litigation. There is neither pending nor, to the Company's
knowledge, threatened any action, suit, proceeding or claim, or any
basis therefor, to which the Company is or may be named as a party or
its property is or may be subject other than routine litigation in the
ordinary course of business or which calls into question any of the
transactions contemplated by this Agreement.
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(g) Securities Matters. Subject to the accuracy of the
representations of the Purchaser set forth in Section 3.2 hereof, the
offer, sale and issuance of the Notes as contemplated by this Agreement
are exempt from the registration requirements of the Securities Act of
1933 as amended (the "Securities Act"). The Company has complied and
will comply with all applicable state "blue sky" or securities laws in
connection with the offer, sale and issuance of the Notes as
contemplated by this Agreement.
3.2 Representations and Warranties of the Purchaser. The Purchaser
represents and warrants that as of the date of the execution of this Agreement:
(a) Authorization. This Agreement constitutes a valid and
legally binding obligation of the Purchaser.
(b) Investment Representations. (i) The Purchaser has received
and reviewed the Company's Disclosure Documents and the Purchaser or
the Purchaser's designated representatives have concluded a
satisfactory due diligence investigation of the Company and have had an
opportunity to review the documents provided by the Company and to have
all of their questions related thereto satisfactorily answered.
(ii) The Purchaser acknowledges that the Notes are
speculative and involve a high degree of risk and the
Purchaser represents that it is able to sustain the loss of
the entire amount of its investment.
(iii) The Purchaser (or its members and/or officers)
has previously invested in unregistered securities and has
sufficient financial and investing expertise to evaluate and
understand the risks of the Notes.
(iv) The Purchaser has received from the Company, and
is relying on, no representations or projections (except as
set forth in this Agreement or the Disclosure Documents) with
respect to the Company's business and prospects.
(v) The Purchaser is an "accredited investor" within
the meaning of Regulation D under the Securities Act.
(vi) The Purchaser is engaged, as a substantial part
of its business or operations, in purchasing or holding
securities.
(vii) The Purchaser is acquiring the Notes for
investment purposes only without intent to distribute the
same, and acknowledges that the Notes have not been registered
under the Securities Act and applicable state securities laws,
and accordingly, constitute "restricted securities" for
purposes of the Securities Act and such state securities laws.
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(viii) The Purchaser acknowledges that it will not be
able to transfer the Notes except upon compliance with the
registration requirements of the Securities Act and applicable
state securities laws or exemptions therefrom.
(ix) The certificates and/or instruments evidencing
The Notes will contain a legend to the foregoing effect.
4. MERCHANDISE CREDIT. Purchaser and/or its designees shall be
entitled to a credit in the amount of $10,000 for the purchase from the Company
of any Xxxx Xxxxxx golf equipment at any time after the First Closing and Second
Closing have occurred.
5. MISCELLANEOUS.
5.1 Confidentiality. (a) The Purchaser agrees to keep confidential any
and all non-public information delivered or made available to the Purchaser by
the Company except for disclosures, as necessary, made by the Purchaser to the
Purchaser's officers, directors, employees, agents, counsel and accountants each
of whom shall be notified by the Purchaser of this confidentiality covenant and
for whom the Purchaser shall be liable in the event of any breach of this
covenant by any such individual or individuals; provided, however, that nothing
herein shall prevent the Purchaser from disclosing such information (a) upon the
order of any court or administrative agency, (b) upon the request or demand of
any regulatory agency or authority having jurisdiction over the Purchaser, (c)
which has been publicly disclosed or (d) to any of its members provided that any
such members agree in writing (with a copy provided to the Company) to be bound
by confidentiality provisions in form and substance substantially as are
contained herein. In the event of a mandatory disclosure as described in clause
(a) and/or (b) of the preceding sentence, the Purchaser shall promptly notify
the Company in writing of any applicable order, request or demand for such
information, cooperate with the Company if and to the extent that the Company
elects to seek an appropriate protective order or other relief from such order,
request, or demand, and disclose only the minimal amount of information
ultimately required to be disclosed. The Purchaser shall not use for its own
benefit, nor permit any other person to use for such person's benefit, any of
the Company's non-public information including, without limitation, in
connection with the purchase and/or sale of the Company's securities.
(b) The Company shall in no event disclose non-public
information to the Purchaser, advisors to or representatives of the
Purchaser unless prior to disclosure of such information the Company
marks such information as "Non-Public Information-Confidential" and
provides the Purchaser, such advisors and representatives with the
opportunity to accept or refuse to accept such non-public information
for review. The Company may, as a condition to disclosing any
non-public information hereunder, require the Purchaser's advisors and
representatives to enter into a confidentiality agreement in form
reasonably satisfactory to the Company and the Purchaser.
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(c) Nothing herein shall require the Company to disclose
non-public information to the Purchaser or its advisors or
representatives, and the Company represents that it does not
disseminate non-public information to any Purchasers who purchase stock
in the Company in a public offering, to money managers or to securities
analysts.
5.2 Legends. To the extent applicable, each note, certificate or other
document evidencing the Notes to be purchased and sold pursuant to this
Agreement shall be endorsed with the legends set forth below, and the Purchaser
on behalf of itself and each holder of the Notes covenants that, except to the
extent such restrictions are waived by the Company, it shall not transfer the
Notes without complying with the restrictions on transfer described in the
legends endorsed on such note or certificate:
(a) The following legend under the Securities Act:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR
HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER
SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH
ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL,
IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY
AND ITS COUNSEL AND FROM ATTORNEYS REASONABLY ACCEPTABLE TO
THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED."
(b) If required by the authorities of any state in connection
with the issuance or sale of the Note, the legend required by such
state authority.
5.3 Costs and Expenses. The Company shall reimburse Purchaser for its
reasonable legal fees and expenses in connection with the purchase of the Notes
up to a maximum of $6,000. The Company shall be responsible for all of its fees
and expenses in connection with this transaction.
5.4 Assignability; Successors. The provisions of this Agreement shall
inure to the benefit of and be binding upon the permitted successors and
assigns of the parties hereto.
5.5 Survival. All agreements, covenants, representations and
warranties made by the Company or by the Purchaser herein shall survive the
execution and delivery of this Agreement.
5.6 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED ACCORDING TO THE
LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF
RELATING TO CONFLICTS OF LAWS.
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5.7 Counterparts: Headings. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same agreement. The descriptive
headings in this Agreement are inserted for convenience of reference only and
shall not affect the construction of this Agreement.
5.8 Entire Agreement, Amendments. This Agreement and the Exhibits
contain the entire understanding of the parties with respect to the subject
matter hereof, and supersede all other representations and understandings oral
or written, with respect to the subject matter hereof. No amendment,
modification, alteration, or waiver of the terms of this Agreement or consent
required under the terms of this Agreement shall be effective unless made in a
writing, which makes specific reference to this Agreement and which has been
signed by the Company and the Purchaser. Any such amendment, modification,
alteration, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
5.9 Notices. All communications or notices required or permitted by
this Agreement shall be in writing and shall be deemed to have been given or
made when delivered in hand, deposited in the mail, or sent by facsimile, with
confirmation (if sent by facsimile on a non-business day, receipt shall be
deemed to have occurred on the next succeeding business day). Communications or
notices shall be delivered personally or by certified or registered mail,
postage, or by facsimile and addressed as follows, unless and until either of
such parties notifies the other in accordance with this Section of a change of
address:
if to the Company: Golf One Industries, Inc.
0000 Xxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Att: Secretary
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to: Xxxxxxxxx, Xxxxxx & Xxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
Att: Xxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000
Fax. (000) 000-0000
if to the Purchaser: Capital Fund Leasing, LLC
0000 Xxxxxxx, Xxxx, Xxxx 0
Xxxxxxxxx, Xxxx 00000
Att: Xxxxx X. Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
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with copies to: Xxxxxx & Associates
00000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxx 00000
Att: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
5.10 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
5.11 Maximum Interest. It is expressly stipulated and agreed to be the
intent of the Company and the Purchaser at all times to comply with the
applicable law governing the maximum rate of interest payable on or in
connection with all indebtedness and transactions hereunder (or applicable
United States federal law to the extent that it permits Purchaser to contract
for, charge, take, reserve or receive a greater amount of interest). If the
applicable law is ever judicially interpreted so as to render usurious any
amount of money or other consideration called for hereunder, or contracted for,
charged, taken, reserved or received with respect to any loan or advance
hereunder, or if acceleration of the maturity of the Note results in the
Company's having paid any interest in excess of that permitted by law, then it
is the Company's and the Purchaser's express intent that all excess cash amounts
theretofore collected by Purchaser be credited on the principal balance of the
Note (or if the Note has been or would thereby be paid in full, refunded to the
Company), and the provisions of this Agreement immediately be deemed reformed
and the amounts thereafter collectible hereunder reduced, without the necessity
of the execution of any new document, so as to comply with the applicable law,
but so as to permit the recovery of the fullest amount otherwise called for
hereunder. The right to accelerate maturity of the Note does not include the
right to accelerate any interest which has not otherwise accrued on the date of
such acceleration, and the Purchaser does not intend to collect any unearned
interest in the event of acceleration.
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IN WITNESS WHEREOF, This Agreement has been duly executed as of the day
and year first above written.
GOLF ONE INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
President and Chief Execute Officer
CAPITAL FUND LEASING INC.
By. ___________________________________
Name: Xxxxx X. Xxxxxxx
Title: Managing Member
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EXHIBIT A
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF
UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL AND FROM ATTORNEYS REASONABLY
ACCEPTABLE TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
No. ____ _______ , 1998
GOLF ONE INDUSTRIES, INC.
15% NOTE
FOR VALUE RECEIVED, Golf One Industries, Inc., a Delaware corporation
(the "Company") hereby promises to pay to the order __________ of _______ having
an address at ________ (the "Holder"), or registered assigns, the principal sum
of One Million Dollars ($1,000,000.00), and to pay interest from the date hereof
on the principal sum at the rate of 15% per annum based on a 365-day year, such
interest to accrue from the date hereof. The principal and accrued interest
shall be paid in full on or before the earlier of (i) the closing of the
Company's initial public offering of common stock or (ii) December 31, 1998 (the
"Maturity Date").
This Note is one of an authorized issue of $2,000,000 aggregate amount
of 15% Notes of the Company (collectively, the "Notes") issued pursuant to a
Note Purchase Agreement dated as of November , 1998 between the Company and the
Holder (the "Note Purchase Agreement"). The Holder of this Note is entitled to
the benefits of the Note Purchase Agreement and to enforce the agreements of the
Company contained therein. Capitalized terms used herein and not otherwise
defined shall have the meaning ascribed thereto in the Note Purchase Agreement.
All payments shall be paid in lawful money of the United States of America at
the principal office of the Holder or at such other place as the Holder may
designate from time to time in writing to the Company.
1. PREPAYMENT. The Company may prepay and redeem the Notes, at the
election of the Company, upon not less than 10 days' notice, at any time as a
whole only and not in part, at a price equal to the outstanding principal of the
Notes together with accrued interest to the redemption date.
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2. [INTENTIONALLY OMITTED]
3. REGISTRATION. The Company shall maintain at its principal office
a register of the Notes and shall record therein the names and addresses of the
registered holders of the Notes, the address to which notices are to be sent and
the address to which payments are to be made as designated by the registered
holder if other than the address of the holder, and the particulars of all
transfers, exchanges and replacements of Notes. No transfer of a Note shall be
valid unless the registered holder or his or its duly appointed attorney request
such transfer to be made on such register, upon surrender thereof for exchange
as hereinafter provided, accompanied by an instrument in writing, in form and
execution reasonably satisfactory to the Company. Each Note issued hereunder,
whether originally or upon transfer, exchange or replacement of a Note, shall be
registered on the date of execution thereof by the Company. The registered
holder of a Note shall be that person or entity in whose name the Note has been
so registered by the Company. A registered holder shall be deemed the owner of a
Note for all purposes, and the Company shall not be affected by any notice to
the contrary.
4. TRANSFER AND EXCHANGE. Subject to compliance with the restrictions
on transfer set forth in the Note Purchase Agreement, the registered holder of
any Note or Notes may, prior to maturity, surrender such Note or Notes at the
principal office of the Company for transfer or exchange. Within a reasonable
time after notice to the Company from a registered holder of its intention to
make such exchange and without expense (other than applicable transfer taxes, if
any) to such registered holder, the Company shall issue in exchange therefor
another Note or Notes dated the date to which interest has been paid on, and for
the unpaid principal amount of, the Note or Notes so surrendered, containing the
same provisions and subject to the same terms and conditions as the Note or
Notes so surrendered. Subject to the restrictions on transfer set forth in the
Note Purchase Agreement, each new Note shall be made payable to such person or
entity, as the registered holder of such surrendered Note or Notes may
designate. Notes issued upon any transfer or exchange shall be only in
authorized denominations, which shall be $20,000.
5. REPLACEMENT. Upon receipt of evidence satisfactory to the Company of
the loss, theft, destruction or mutilation of any Note and, if requested by the
Company in the case of any such loss, theft or destruction, upon delivery of an
indemnity bond or other agreement or security reasonably satisfactory to the
Company, or, in the case of any such mutilation, upon surrender and cancellation
of such Note, the Company will issue a new Note, of like tenor, in the amount of
the unpaid principal of such Note, and dated the date to which interest has been
paid, in lieu of such lost, stolen, destroyed or mutilated Note.
6. DEFAULT. The Company shall be in default under this Note upon the
occurrence of: (i) any of the events specified in Section 6(a) hereof and the
failure to cure such default within five (5) days after receipt of written
notice thereof from the Holder; (ii) any of the events specified in Section 6(b)
hereof and the failure to cure such default within ten (10) days after receipt
of written notice thereof from the Holder; or (iii) any of the events specified
in Section 6(c) hereof (any of the foregoing being an "Event of Default"):
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(a) Failure to make any principal or interest payment required
under this Note on the due date of such payment;
(b) Any material default, breach or misrepresentation shall
occur under the terms and provisions of the Note Purchase Agreement; or
(c) Insolvency of, business failure of, or an assignment for
the benefit of creditors by or the filing of a petition under
bankruptcy, insolvency or debtor's relief law, or for any readjustment
of indebtedness, composition or extension by the Company, or commenced
against the Company which is not discharged within sixty (60) days.
7. LATE FEES. If the principal balance and accrued interest on this
Note are not paid in full at the Maturity Date, then the Company shall
immediately upon demand pay to the holder a late charge equal to ten percent
(10%) of the entire amount of principal and/or accrued interest unpaid as of the
Maturity Date. If the principal balance and accrued interest on this Note are
not paid in full before March 31, 1999, then the Company shall immediately upon
demand pay to the Holder an additional late charge equal to ten percent (10%) of
the entire amount of principal and/or accrued interest unpaid as of March 30,
1999. Such late fees shall be paid regardless of whether this Note has been, or
could be, declared in default and shall be in addition to all other remedies
available to the Holder.
8. REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event of
Default:
(a) specified in clause (c) of Section 6, then the Note shall
be automatically accelerated and immediately due and payable at the
option of Holder, without notice or demand, and said amount shall
accrue interest from the date of default at the rate of seventeen
percent (17%) per annum;
(b) specified in clauses (a) or (b) of Section 6, then the
Holder may declare the note immediately accelerated, due and payable
and said amount shall accrue interest from the date of default at the
rate of seventeen percent (17%) per annum; and
(c) the Holder shall have all of the rights and remedies, at
law and in equity, by statute or otherwise, and no remedy herein
conferred upon the Holder is intended to be exclusive of any other
remedy and each remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law,
in equity, by statute or otherwise.
9. CHANGES; PARTIES. This note can only be changed by an agreement in
writing signed by the Company and the Holder. This Note shall inure to the
benefit of and be binding upon the Company and the Holder and their respective
successors and assigns.
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10. WAIVER OF PRESENTMENT. The Company hereby waives presentment,
demand, notice, protest and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this Note.
11. MAXIMUM RATE OF INTEREST. It is expressly stipulated and agreed to
be the intent of the Company and Holder at all times to comply with the
applicable law governing the maximum rate of interest payable on or in
connection with all indebtedness and transactions hereunder (or applicable
United States federal law to the extent that it permits Holder to contract for,
charge, take, reserve or receive a greater amount of interest). If the
applicable law is ever judicially interpreted so as to render usurious any
amount of money or other consideration called for hereunder, or contracted for,
charged, taken, reserved or received with respect to any loan or advance
hereunder, or if acceleration of the maturity of this Note or the indebtedness
hereunder or if any prepayment by the Company results in the Company's having
paid any interest in excess of that permitted by law, then it is the Company's
and Holder's express intent that all excess cash amounts theretofore collected
by Holder be credited on the principal balance of this Note (or if this Note has
been or would thereby be paid in full, refunded to the Company), and the
provisions of this Note immediately be deemed reformed and the amounts
thereafter collectible hereunder reduced, without the necessity of the execution
of any new document, so as to comply with the applicable law, but so as to
permit the recovery of the fullest amount otherwise called for hereunder. The
right to accelerate maturity of this Note does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and Holder does not intend to collect any unearned interest in the
event of acceleration.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED ACCORDING TO THE
LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF
RELATING TO CONFLICTS OF LAWS.
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IN WITNESS WHEREOF, the Company has executed this Note as of the day
and year set forth above.
GOLF ONE INDUSTRIES, INC.
By:
Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF
UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, AND FROM ATTORNEYS REASONABLY
ACCEPTABLE TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
No. 1 November 5, 1998
GOLF ONE INDUSTRIES, INC.
15% NOTE
FOR VALUE RECEIVED, Golf One Industries, Inc., a Delaware corporation
(the "Company") hereby promises to pay to the order of Capital Fund Leasing, LLC
having an address at 0000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000 (the "Holder"), or
registered assigns, the principal sum of One Million Dollars ($1,000,000.00),
and to pay interest from the date hereof on the principal sum at the rate of 15%
per annum based on a 365-day year, such interest to accrue from the date hereof.
The principal and accrued interest shall be paid in full on or before the
earlier of (i) the closing of the Company's initial public offering of common
stock or (ii) December 31, 1998 (the "Maturity Date").
This Note is one of an authorized issue of $2,000,000 aggregate amount
of 15% Notes of the Company (collectively, the "Notes") issued pursuant to a
Note Purchase Agreement dated as of November 5, 1998 between the Company and the
Holder (the "Note Purchase Agreement"). The Holder of this Note is entitled to
the benefits of the Note Purchase Agreement and to enforce the agreements of
the Company contained therein. Capitalized terms used herein and not otherwise
defined shall have the meaning ascribed thereto in the Note Purchase Agreement.
All payments shall be paid in lawful money of the United States of America at
the principal office of the Holder or at such other place as the Holder may
designate from time to time in writing to the Company.
1. PREPAYMENT. The Company may prepay and redeem the Notes, at the
election of the Company, upon not less than 10 days' notice, at any time as a
whole only and not in part, at a price equal to the outstanding principal of the
Notes together with accrued interest to the redemption date.
16
2. [INTENTIONALLY OMITTED]
3. REGISTRATION. The Company shall maintain at its principal office a
register of the Notes and shall record therein the names and addresses of the
registered holders of the Notes, the address to which notices are to be sent and
the address to which payments are to be made as designated by the registered
holder if other than the address of the holder, and the particulars of all
transfers, exchanges and replacements of Notes. No transfer of a Note shall be
valid unless the registered holder or his or its duly appointed attorney request
such transfer to be made on such register, upon surrender thereof for exchange
as hereinafter provided, accompanied by an instrument in writing, in form and
execution reasonably satisfactory to the Company. Each Note issued hereunder,
whether originally or upon transfer, exchange or replacement of a Note, shall be
registered on the date of execution thereof by the Company. The registered
holder of a Note shall be that person or entity in whose name the Note has been
so registered by the Company. A registered holder shall be deemed the owner of a
Note for all purposes, and the Company shall not be affected by any notice to
the contrary.
4. TRANSFER AND EXCHANGE. Subject to compliance with the restrictions
on transfer set forth in the Note Purchase Agreement, the registered holder of
any Note or Notes may, prior to maturity, surrender such Note or Notes at the
principal office of the Company for transfer or exchange. Within a reasonable
time after notice to the Company from a registered holder of its intention to
make such exchange and without expense (other than applicable transfer taxes, if
any) to such registered holder, the Company shall issue in exchange therefor
another Note or Notes dated the date to which interest has been paid on, and for
the unpaid principal amount of, the Note or Notes so surrendered, containing the
same provisions and subject to the same terms and conditions as the Note or
Notes so surrendered. Subject to the restrictions on transfer set forth in the
Note Purchase Agreement, each new Note shall be made payable to such person or
entity, as the registered holder of such surrendered Note or Notes may
designate. Notes issued upon any transfer or exchange shall be only in
authorized denominations, which shall be $20,000,
5. REPLACEMENT. Upon receipt of evidence satisfactory to the Company of
the loss, theft, destruction or mutilation of any Note and, if requested by the
Company in the case of any such loss, theft or destruction, upon delivery of an
indemnity bond or other agreement or security reasonably satisfactory to the
Company, or, in the can of any such mutilation, upon surrender and cancellation
of such Note, the Company will issue a new Note, of like tenor, in the amount
of the unpaid principal of such Note, and dated the date to which interest has
been paid, in lieu of such lost, stolen, destroyed or mutilated Note.
6. DEFAULT. The Company shall be in default under this Note upon the
occurrence of: (i) any of the events specified in Section 6(a) hereof and the
failure to cure such default within five (5) days after receipt of written
notice thereof from the Holder; (ii) any of the events specified in Section 6(b)
hereof and the failure to cure such default within ten (10) days after receipt
of written notice thereof from the Holder; or (iii) any of the events specified
in Section 6(c) hereof (any of the foregoing being an "Event of Default"):
2
17
(a) Failure to make any principal or interest payment required
under this Note on the due date of such payment;
(b) Any material default, breach or misrepresentation shall
occur under the terms and provisions of the Note Purchase Agreement; or
(c) Insolvency of, business failure of, or an assignment for
the benefit of creditors by or the filing of a petition under
bankruptcy, insolvency or debtor's relief law, or for any readjustment
of indebtedness, composition or extension by the Company, or commenced
against the Company which is not discharged within sixty (60) days.
7. LATE FEES. If the principal balance and accrued interest on this
Note are not paid in full at the Maturity Date, then the Company shall
immediately upon demand pay to the holder a late charge equal to ten percent
(10%) of the entire amount of principal and/or accrued interest unpaid as of
the Maturity Date. If the principal balance and accrued interest on this Note
are not paid in full before March 31, 1999, then the Company shall immediately
upon demand pay to the Holder an additional late charge equal to ten percent
(10%) of the entire amount of principal and/or accrued interest unpaid as of
March 30, 1999. Such late fees shall be paid regardless of whether this Note has
been, or could be, declared in default and shall be in addition to all other
remedies available to the Holder.
8. REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event
of Default:
(a) specified in clause (c) of Section 6, then the Note shall
be automatically accelerated and immediately due and payable at the
option of Holder, without notice or demand, and said amount shall
accrue interest from the date of default at the rate of seventeen
percent (17%) per annum;
(b) specified in clauses (a) or (b) of Section 6, then the
Holder may declare the Note immediately accelerated, due and payable
and said amount shall accrue interest from the date of default at the
rate of seventeen percent (17%) per annum; and
(c) the Holder shall have all of the rights and remedies, at
law and in equity, by statute or otherwise, and no remedy herein
conferred upon the Holder is intended to be exclusive of any other
remedy and each remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law,
in, equity, by statute or otherwise.
9. CHANGES; PARTIES. This Note can only be changed by an agreement in
writing signed by the Company and the Holder. This Note shall inure to the
benefit of and be binding upon the Company and the Holder and their respective
successors and assigns.
3
18
10. WAIVER OF PRESENTMENT. The Company hereby waives presentment,
demand, notice, protest and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this Note.
11. MAXIMUM RATE OF INTEREST. It is expressly stipulated and agreed to
be the intent of the Company and Holder at all times to comply with the
applicable law governing the maximum rate of interest payable on or in
connection with all indebtedness and transactions hereunder (or applicable
United States federal law to the extent that it permits Holder to contract for,
charge, take, reserve or receive a greater amount of interest). If the
applicable law is ever judicially interpreted so as to render usurious any
amount of money or other consideration called for hereunder, or contracted for,
charged, taken, reserved or received with respect to any loan or advance
hereunder, or if acceleration of the maturity of this Note or the indebtedness
hereunder or if any prepayment by the Company results in the Company's having
paid any interest in excess of that permitted by law, then it is the Company's
and Holder's express intent that all excess cash amounts theretofore collected
by Holder be credited on the principal balance of this Note (or if this Note has
been or would thereby be paid in full, refunded to the Company), and the
provisions of this Note immediately be deemed reformed and the amounts
thereafter collectible hereunder reduced, without the necessity of the execution
of any new document, so as to comply with the applicable law, but so as to
permit the recovery of the fullest amount otherwise called for hereunder. The
right to accelerate maturity of this Note does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and Holder does not intend to collect any unearned interest in the
event of acceleration.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED ACCORDING TO THE
LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF
RELATING TO CONFLICTS OF LAWS.
4
19
IN WITNESS WHEREOF, the Company has executed this Note as of the day
and year set forth above.
GOLF ONE INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
5
20
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF
UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL AND FROM ATTORNEYS REASONABLY
ACCEPTABLE TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
No. 2 November 16, 1998
GOLF ONE INDUSTRIES, INC.
15% NOTE
FOR VALUE RECEIVED. Golf One Industries, Inc., a Delaware corporation
(the "Company") hereby promises to pay to the order of Capital Fund Leasing, LLC
having and address at 0000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000 (the "Holder"),
or registered assigns, the principal sum of One Million Dollars ($1,000,000.00),
and to pay interest from the date hereof on the principal sum at the rate of 15%
per annum based on a 365-day year, such interest to accrue from the date hereof.
The principal and accrued interest shall be paid in full on or before the
earlier of (i) the closing of the Company's initial public offering of common
stock or (ii) December 31, 1998 ( the "Maturity Date").
This Note is one of an authorized issue of $2,000,000 aggregate amount
of 15% Notes of the Company (collectively, the "Notes") issued pursuant to a
Note Purchase Agreement dated as of November 5, 1998 between Company and the
Holder (the "Note Purchase Agreement"). The Holder of this Note is entitled to
the benefits of the Note Purchased Agreement and to enforce the agreements of
the Company contained therein. Capitalized terms used herein and not otherwise
defined shall have the meaning ascribed thereto in the Note Purchase Agreement.
All payments shall be paid in lawful money of the United States of America at
the principal office of the Holder or at such other place as the Holder may
designate from time to time in writing to the Company
1. PREPAYMENT. The Company may prepay and redeem the Notes, at the
election of the Company, upon not less than 10 days' notice at any time as a
whole only and not in part, at a price equal to the outstanding principal of
the Notes together with accrued interest to the redemption date.
21
2. [INTENTIONALLY OMITTED]
3. REGISTRATION. The Company shall maintain at its principal office a
register of the Notes and shall record therein the names and addresses of the
registered holders of the Notes, the address to which notices are to be sent and
the address to which payments are to be made as designated by the registered
holder if other than the address of the holder, and the particulars of all
transfers, exchanges and replacements of Notes. No transfer of a Note shall be
valid unless the registered holder or his or its duly appointed attorney request
such transfer to be made on such register, upon surrender thereof for exchange
as hereinafter provided, accompanied by an instrument in writing, in form and
execution reasonably satisfactory to the Company. Each Note issued hereunder,
whether originally or upon transfer, exchange or replacement of a Note, shall be
registered on the date of execution thereof by the Company. The registered
holder of a Note shall be that person or entity in whose name the Note has been
so registered by the Company. A registered holder shall be deemed the owner of a
Note for all purposes, and the Company shall not be affected by any notice to
the contrary.
4. TRANSFER AND EXCHANGE. Subject to compliance with the restrictions
on transfer set forth in the Note Purchase Agreement, the registered holder of
any Note or Notes may, prior to maturity, surrender such Note or Notes at the
principal office of the Company for transfer or exchange. Within a reasonable
time after notice to the Company from a registered holder of its intention to
make such exchange and without expense (other than applicable transfer taxes, if
any) to such registered holder, the Company shall issue in exchange therefor
another Note or Notes dated the date to which interest has been paid on, and for
the unpaid principal amount of, the Note or Notes so surrendered, containing the
same provisions and subject to the same terms and conditions as the Note or
Notes so surrendered. Subject to the restrictions on transfer set forth in the
Note Purchase Agreement, each new Note shall be made payable to such person or
entity, as the registered holder of such surrendered Note or Notes may
designate. Notes issued upon any transfer or exchange shall be only in
authorized denominations, which shall be $20,000.
5. REPLACEMENT. Upon receipt of evidence satisfactory to the Company
of the loss, theft, destruction or mutilation of any Note and, if requested by
the Company in the case of any such loss, theft or destruction, upon delivery of
an indemnity bond or other agreement or security reasonably satisfactory to the
Company, or, in the case of any such mutilation, upon surrender and cancellation
of such Note, the Company will issue a new Note, of like tenor, in the amount of
the unpaid principal of such Note, and dated the date to which interest has been
paid, in lieu of such lost, stolen, destroyed or mutilated Note.
6. DEFAULT. The Company shall be in default under this Note upon the
occurrence of (i) any of the events specified in Section 6(a) hereof and the
failure to cure such default within five (5) days after receipt of written
notice thereof from the Holder; (ii) any of the events specified in Section 6(b)
hereof and the failure to cure such default within ten(10) days after receipt of
written notice thereof from the Holder; or (iii) any of the events specified in
Section 6(c) hereof (any of the foregoing being an "Event of Default"):
2
22
(a) Failure to make any principal or interest payment required
under this Note on the due date of such payment:
(b) Any material default, breach or misrepresentation shall
occur under the terms and provisions of the Note Purchase Agreement; or
(c) Insolvency of, business failure of, or an assignment for
the benefit of creditors by or the filing of a petition under
bankruptcy, insolvency or debtor's relief law, or for any readjustment
of indebtedness, composition or extension by the Company, or commenced
against the Company which is not discharged within sixty (60) days.
7. LATE FEES. If the principal balance and accrued interest on this
Note are not paid in full at the Maturity Date, then the Company shall
immediately upon demand pay to the holder a late charge equal to ten percent
(10%) of the entire amount of principal and/or accrued interest unpaid as of
the Maturity Date. If the principal balance and accrued interest on this Note
are not paid in full before March 31, 1999, the Company shall immediately
upon demand pay to the Holder an additional late charge equal to ten percent
(10%) of the entire amount of principal and/or accrued interest unpaid as of
March 30, 1999. Such late fees shall be paid regardless of whether this Note has
been, or could be, declared in default and shall be in addition to all other
remedies available to the Holder.
8. REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event of
Default:
(a) specified in clause (c) of Section 6, the Note shall be
automatically accelerated and immediately due and payable at the option
of Holder, without notice or demand, and said amount shall accrue
interest from the date of default at the rate of seventeen percent
(17%) per annum;
(b) specified in clauses (a) or (b) of Section 6, then the
Holder may declare the Note immediately accelerated, due and payable
and said amount shall accrue interest from the date of default at the
rate of seventeen percent (17%) per annum: and
(c) the Holder shall have all of the rights and remedies, at
law and in equity, by statue or otherwise, and no remedy herein
conferred upon the Holder is intended to be exclusive of any other
remedy and each remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law,
in, equity, by statue or otherwise.
9. CHANGES; PARTIES. This Note can only be changed by an agreement in
writing signed by the Company and the Holder. This Note shall insure to the
benefit of and be binding upon the Company and the Holder and their respective
successors and assigns.
3
23
10. WAIVER OF PRESENTMENT. The Company hereby waives presentment,
demand, notice, protest and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this Note.
11. MAXIMUM RATE OF INTEREST. It is expressly stipulated and agreed to
be the intent of the Company and Holder at all times to comply with the
applicable law governing the maximum rate of interest payable on or in
connection with all indebtedness and transactions hereunder (or applicable
United States federal law to the extent that it permits Holder to contract for,
charge, take, reserve or receive a greater amount of interest). If the
applicable law is ever judicially interpreted so as to render usurious any
amount of money or other consideration called for hereunder, or contracted for,
charged, taken, reserved or received with respect to any loan or advance
hereunder, or if acceleration of the maturity of this Note or the indebtedness
hereunder or if any prepayment by the Company results in the Company's having
paid any interest in excess of that permitted by law, then it is the Company's
and Holder's express intent that all excess cash amounts theretofore collected
by Holder be credited on the principal balance of this Note (or if this Note has
been or would thereby be paid in full, refunded to the Company), and the
provisions of this Note immediately be deemed reformed and the amounts
thereafter collectible hereunder reduced, without the necessity of the execution
of any new document, so as to comply with the applicable law, but so as to
permit the recovery of the fullest amount otherwise called for hereunder. The
right to accelerate maturity of this Note does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and Holder does not intend to collect any unearned interest in the
event of acceleration.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED ACCORDING TO THE
LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF
RELATING TO CONFLICTS OF LAWS.
4
24
IN WITNESS WHEREOF, the Company has executed this Note as of the day
and year set forth above.
GOLF ONE INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
5
25
GOLF ONE INDUSTRIES, INC.
Certificate of the Chief Executive Officer
Pursuant to the Note Purchase Agreement dated as of November 5, 1998,
the undersigned Chief Executive Officer of Golf One Industries, Inc., a Delaware
corporation (the "Company"), hereby certifies that there has been no material
negative change in the financial condition of the Company since November 5,
1998.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: November 16, 1998
/s/ Xxxxxxx X. Xxxxxxxxx, Xx.
------------------------------------
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
