LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement ("Agreement") is dated as of March 31,
1997, by and between Renaissance Golf Products, Inc., a Delaware corporation
("RGPI"), and Xxxx X. Xxxxxxx, an individual, jointly and severally
(collectively referred to as the "Borrower"), and AKA Charitable Remainder Unit
Trust Number 2 ( "Lender").
1. DEFINITIONS. As used herein, the following terms have the meanings
indicated:
1.1 "ACCOUNT," "ACCOUNTS" OR "OPEN ACCOUNTS" shall mean any right to
payment on Open Orders.
1.2 "ACCOUNT DEBTOR" shall mean the Person or entity obligated on an
Account.
1.3 "AFFILIATE," as applied to any Person, shall mean any other
Person directly or indirectly controlling, controlled by, or under common
control with, that Person.
1.4 "CODE" shall mean the Utah Uniform Commercial Code, except where
the Uniform Commercial Code of another state governs the perfection of a
security interest in Collateral located in that state.
1.5 "COLLATERAL" shall mean all Open Orders and Accounts securing the
Obligations as described herein.
1.6 "DEBT" shall mean, at any date, the aggregate amount of, without
duplication, all obligations of Borrower for borrowed money.
1.7 "EVENT OF DEFAULT" shall mean an event described in Section 8 of this
Agreement.
1.8 "INVENTORY" shall mean goods held for sale or lease in the ordinary
course of business, work in process and any and all raw materials used in
connection with the foregoing on Open Orders.
1.9 "LOAN" OR "LOANS" shall mean one or more of the Loans extended by
Lender to Borrower.
1.10 "NOTE" shall mean any Note required of Borrower by Lender.
1.11 "OBLIGATIONS" shall mean all present and future liabilities and
obligations of Borrower to Lender hereunder and all other liabilities and
obligations of Borrower to Lender of every kind and description, now existing or
hereafter owing, matured or unmatured, direct or indirect, absolute or
contingent, joint or several, including any extensions and renewals thereof and
substitutions therefor.
1.12 "OPEN ORDER" OR "OPEN ORDERS" shall mean each order for the purchase
of goods from RGPI which have arisen, have been conformed from, or will arise
from January 1, 1997 through the term of this Agreement and which have not been
filled.
1.13 "OPEN PURCHASE ORDER" shall mean each purchase order issued by RGPI
for Open Orders.
1.14 "PERSON" shall mean and include natural persons, corporations, limited
partnerships, general partnerships, joint ventures, associations, joint stock
companies, companies, trusts, banks, trust companies, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
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1.15 "POTENTIAL EVENT OF DEFAULT" shall mean any condition that with the
giving of notice or passage of time or both would, unless cured or waived,
become an Event of Default.
1.16 "REVOLVING CREDIT LOANS" shall mean loans from Lender to
Borrower under the terms of this Agreement.
1.17 "REVOLVING LOAN COMMITMENT" shall mean, Lender's commitment, in
accordance with the terms of this Agreement, to make Revolving Credit Loans in
the maximum aggregate principal amount of the lesser of $1,000,000, and 50% of
the aggregate of all Open Accounts and Open Orders.
1.18 "REVOLVING PROMISSORY NOTE" shall mean a promissory note
executed by Borrower payable to Lender pursuant to this Agreement.
1.19 "TERMINATION DATE" shall mean December 31, 1997, unless
terminated earlier pursuant to Section 8 hereof, or as mutually modified in
writing by the parties.
2. LOANS.
2.1 REVOLVING CREDIT LOANS. Subject to the terms and conditions of
this Agreement and the Revolving Promissory Note entered into between the
parties, Lender agrees to make Revolving Credit Loans to Borrower from time to
time from the date of this Agreement to, but not including, the Termination
Date, up to the maximum aggregate principal amount of the lesser of $1,000,000,
and 50% of the aggregate of all Open Accounts and Open Orders, which Revolving
Credit Loans may be repaid and reborrowed at any time up to the Termination
Date. The aggregate unpaid principal amount of the Revolving Credit Loans shall
be paid by Borrower to Lender on the Termination Date. The Revolving Credit
Loans shall be evidenced by a Revolving Promissory Note in the form attached
hereto as Exhibit "A."
2.1.1 INTEREST ON REVOLVING CREDIT LOANS. Each advance of a
Revolving Credit Loan shall bear interest from the date of disbursement on the
unpaid principal amount thereof until repaid in full, at an annual interest rate
equal to 12% per annum. Interest on each advance shall be payable monthly in
arrears on or before the 10th day of the month for each advance received during
the previous month, commencing on May 10, 1997 and on the date all Revolving
Credit Loans are paid in full.
2.1.2 AVAILABILITY OF REVOLVING CREDIT LOANS. Each Revolving
Credit Loan shall be made monthly within the first five days of the month in
response to a request from Borrower and upon Borrower's presentation to Lender
of a summary of Open Purchase Orders and Borrower's compliance with the other
terms and conditions of this Agreement. For example if Open Purchase Orders
total $300,000 at the beginning of any month, Lender would loan, at Borrower's
request, up to $150,000 to Borrower. If on the first day of the next month,
Open Purchase Orders total $350,000, Lender would loan an additional $25,000 to
Borrower and Borrower would make an interest payment equal to 12% per annum to
Lender on the total Revolving Credit Loan balance for the time period the loan
made during the previous month was outstanding.
2.1.3 OVERADVANCE. The total balance of Revolving Credit
Loans outstanding from time to time, shall not at any time exceed the Revolving
Loan Commitment. Any amount held by Borrower in excess of the Revolving Loan
Commitment shall be repaid by Borrower no later than the 10th day of the month
the excess was created. For example if Open Purchase Orders for the current
month total $50,000 less than the Open Purchase Orders for the previous month
upon which a loan was made, Borrower shall repay $25,000 on the Revolving Loan
Commitment on or before the 10th day of the current month together with any
interest due at 12% per annum on the total Revolving Credit Loan balance for the
time period the loan made during the previous month was outstanding.
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2.2 PAYMENTS. All payments hereunder shall be in United States
Dollars and in immediately available funds. All interest shall be computed on
the basis of a 360-day year and actual days elapsed. All payments of principal,
interest, fees and other charges on the Revolving Credit Loan shall be made to
AKA Charitable Remainder Unit Trust Number 2 and delivered personally, by
registered mail or by overnight carrier to the attention of Xxxxx Xxxxxxxxx at
000 Xxxx, 0000 Xxxxx, Xxxx, Xxxx 00000. Lender is hereby authorized to note
the date, amount and interest rate of the Loan and each payment of principal and
interest with respect thereto on Lender's books and records, which notations
shall constitute presumptive evidence of the accuracy of the information noted.
2.3 OVERDUE PAYMENT CHARGE. Overdue payments of principal (and of
interest to the extent permitted by law) on the Loan shall be subject to an
additional payment equal to 4% per month of the total overdue payment amount
from and after written notice by Lender to Borrower of the occurrence of an
Event of Default (and without constituting a waiver of such Event of Default),
until such overdue amount has been paid in full.
3. CONDITIONS TO EACH EXTENSION OF ALL LOANS. The obligation of Lender to
make any Loan hereunder shall be subject to the fulfillment of each of the
following conditions to Lender's satisfaction:
3.1 EXECUTED NOTE. Lender shall have received the Note duly executed
and delivered by Borrower;
3.2 FINANCING STATEMENTS. Lender shall have received (a) executed
copies of financing statements (Form UCC-1), in form and substance satisfactory
to Lender, duly filed under the Uniform Commercial Code in all such
jurisdictions as may be necessary, or in Lender's opinion desirable, to perfect
Lender's security interests in the Collateral; and (b) evidence, in form and
substance acceptable to Lender, that all filings, recordings and other actions
that are necessary or advisable, in the opinion of Lender, in order to
establish, protect, preserve and perfect Lender's security interests and liens
as legal, valid and enforceable first security interests and liens in the
Collateral have been effected;
3.3 WARRANTIES. The representations and warranties of Borrower as
set forth herein shall be true and correct on the date of the making of each
Loan with the same effect as though such representations and warranties had been
made on and as of such date;
3.4 NO DEFAULT. There shall have occurred no Event of Default or
Potential Event.
4. REPRESENTATIONS AND WARRANTIES. To induce Lender to enter into this
Agreement, RGPI makes the following representations and warranties which shall
survive the making and repayment of the Loans:
4.1 CORPORATE EXISTENCE. RGPI is duly organized, validly existing
and in good standing under the laws of Delaware, and is duly qualified to
conduct business as a foreign corporation in all jurisdictions where the failure
to do so would have a material adverse effect on its business.
4.2 REQUISITE POWER. RGPI has all requisite corporate power to
borrow the sums provided for in this Agreement, and to execute and deliver this
Agreement and each other document, contract and instrument delivered to Lender
in connection with this Agreement to which RGPI is required hereunder to be a
party. The execution, delivery and performance of this Agreement have been duly
authorized by the Board of Directors of RGPI and do not require any consent or
approval of the stockholders of RGPI.
4.3 BINDING AGREEMENT. This Agreement and the Note when delivered
pursuant hereto, will constitute the valid and legally binding obligations of
Borrower, enforceable against Borrower in
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accordance with their terms, except as the enforceability thereof may be
affected by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
4.4 OTHER AGREEMENTS. The execution, delivery and performance of
this Agreement and the Note will not violate any provision of law or regulation
or any order of any governmental authority, court, arbitration board or tribunal
or the Articles of Incorporation or Bylaws of RGPI, or result in the breach of,
constitute a default under, contravene any provisions of, or result in the
creation of any security interest, lien, charge or encumbrance upon any of the
property or assets of Borrower pursuant to any indenture or agreement to which
Borrower or any of its properties is bound.
4.5 LITIGATION. There is no litigation, investigation or proceeding
in any court or before any arbitrator or regulatory commission, agency or other
governmental authority pending, or threatened against or affecting Borrower or
any of their respective properties, which, if adversely determined would have a
material adverse effect on the business, operation or condition, financial or
otherwise, of Borrower.
4.6 FINANCIAL CONDITION. RGPI's most recent financial statements,
copies of which have heretofore been delivered to Lender, are true, complete and
correct and fairly present the financial condition of RGPI, including operating
results, as of the accounting period referenced therein. The financial
statements have been prepared in accordance with generally accepted accounting
principles consistently applied. There has been no material adverse change in
the business, operations or conditions, financial or otherwise, of RGPI since
the date of such financial statements. RGPI does not have any material
liabilities for taxes, long-term leases or long-term commitments, except as
disclosed in the aforementioned financial statements.
4.7 COLLATERAL.
4.7.1 RGPI owns and has the right and power to grant a
security interest in the Collateral;
4.7.2 The Collateral is genuine and free from liens, adverse
claims, set-offs, defaults, prepayments, defenses and encumbrances except those
in favor of Lender;
4.7.3 No bills of lading, warehouse receipts or other
documents or instruments of title are outstanding with respect to the Collateral
or any portion of the Collateral in favor of a person other than RGPI; and
4.7.4 The principal place of business and chief office of
Borrower is at the address specified in Section 9 herein.
4.8 CONSENTS. No consent, license, permit, approval or authorization
of, exemption by, notice to, report to, or registration, filing or declaration
with, any governmental authority or agency is required in connection with the
execution, delivery and performance by Borrower of this Agreement or the Note or
the transactions contemplated hereby or thereby.
5. AFFIRMATIVE COVENANTS. RGPI agrees that until payment in full of all
Obligations, RGPI shall comply with the following covenants:
5.1 BOOKS AND RECORDS. RGPI shall maintain, in accordance with sound
accounting practices, accurate records and books of account showing, among other
things, all Inventory and Accounts, the proceeds of the sale or other
disposition thereof and the collections therefrom. RGPI shall not change the
accounting method used to determine RGPI's Inventory cost without notification
to Lender. RGPI shall permit any representative of Lender, at any reasonable
time, to inspect, audit, examine and make extracts from or copies of all books,
records and other data, to inspect any of RGPI's properties and to
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confirm balances due on Accounts by direct inquiry to Account Debtors, and shall
furnish Lender with all information regarding the business or finances of RGPI
promptly upon Lender's request.
5.2 COLLATERAL. RGPI shall execute and deliver to Lender any
instrument, document, financing statement, assignment or other writing which
Lender may deem necessary or desirable to carry out the terms of this Agreement,
to perfect Lender's security interest in any Collateral for the Obligations, or
to enable Lender to enforce its security interest in any of the foregoing.
5.3 FINANCIAL STATEMENTS. RGPI shall furnish to Lender:
5.3.1 Upon Lender's request and as soon as available, all
10K, 10Q, and any and all other securities filings prepared and filed by the
RGPI with the Securities and Exchange Commission;
5.3.2 Each month, a report, in form acceptable to Lender
listing all current, unshipped Open Purchase Orders (including the cancellation
date and Purchase Order number and invoice number relative to each Account), to
be signed and attested to as true and correct by a corporate officer of RGPI;
5.3.3 Upon Lender's request and as soon as available, a copy
of its annual year-end financial statement consisting of at least a balance
sheet and income statement, prepared according to generally accepted accounting
principles consistently applied, and compiled by an independent certified public
accountant satisfactory to Lender; and
5.3.4 Upon Lender's request such additional information,
reports and/or statements as Lender may from time to time, reasonably request.
5.4 TAXES AND PREMIUMS. RGPI shall pay and discharge all taxes,
assessments, governmental charges and real and personal property taxes,
including, but not limited to, federal and state income taxes, employee
withholding taxes and payroll taxes, and all premiums for insurance required
hereunder prior to the date upon which penalties are attached thereto.
5.5 INSURANCE. RGPI shall maintain and keep in force insurance of
the types and in amounts customarily carried in its lines of business,
including, but not limited to, fire, public liability, property damage, business
interruption and worker's compensation, such insurance to be carried with
companies and in amounts reasonably satisfactory to Lender, and shall deliver to
Lender from time to time, as Lender may request, schedules setting forth all
insurance then in effect.
5.6 NOTICE. RGPI shall promptly advise Lender in writing of (a) each
location at which Inventory is or will be kept, and of the change of RGPI's
name, trade name or other name under which it does business or of any such new
or additional name; (b) the occurrence of any Event of Default or Potential
Event of Default; (c) any litigation pending or threatened against RGPI where
the amount or amounts in controversy exceed $50,000.00; (d) any unpaid taxes of
RGPI which are more than 15 days delinquent; and (e) any other matter that might
materially or adversely affect RGPI's financial condition, operations, property
or business.
5.7 CHANGE IN MANAGEMENT. RGPI shall provide Lender written notice,
as soon as possible, but in no event less than 30 days before, any planned
changes in its general or financial management.
6. NEGATIVE COVENANTS. RGPI agrees that during the term of this Agreement or
until payment in full of all Obligations, RGPI shall not do any of the following
without Lender's prior written consent:
6.1 LOANS. Make loans or advances to any Person except credit
extended to employees or to customers in the ordinary course of its business.
Page 5 of Ten
6.2 CONTINGENT LIABILITIES. Assume, guarantee, endorse, contingently
agree to purchase or otherwise become liable for the obligation of any Person
including RGPI or Affiliate, except (a) by the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business, and (b) contingent liabilities in favor of Lender.
6.3 MORTGAGES, LIENS, ETC. Mortgage, pledge, hypothecate, grant or
contract to grant any security interest of any kind in the Collateral, to anyone
except Lender.
6.4 INVOLUNTARY LIENS. Permit any involuntary liens to arise with
respect to any property or assets including but not limited to those arising
from the levy of a writ of attachment or execution, or the levy of any state or
federal tax lien which lien shall not be removed within a period of 30 days.
6.5 SALE AND LEASEBACK. Enter into any sale-leaseback transaction.
6.6 MERGERS AND ACQUISITIONS. Enter into any merger or
consolidation, or, acquire all or substantially all the assets of any Person.
6.7 REDEMPTIONS, DIVIDENDS AND DISTRIBUTIONS. Redeem or repurchase
stock or partnership interests, declare or pay any dividends or make any other
distribution, whether of capital, income or otherwise, and whether in cash or
other property.
6.8 EVENT OF DEFAULT. Permit a default to occur under any document
or instrument evidencing Debt incurred under any indenture, agreement or other
instrument under which such Debt may be issued, or any event to occur under any
of the foregoing which would permit any holder of the Debt outstanding
thereunder to declare the same due and payable before its stated maturity,
whether or not such acceleration occurs or such default be waived.
7. SECURITY AGREEMENT.
7.1 GRANT OF SECURITY INTEREST. To secure all of RGPI's Obligations
hereunder as well as other Obligations to Lender, RGPI hereby grants and
transfers to Lender a continuing security interest in the following whether now
owned or hereafter acquired:
7.1.1 All of RGPI's Open Accounts and Open Orders;
7.1.2 All of RGPI's Inventory;
7.1.3 All proceeds received on Open Orders and Open Accounts
and any other sale of Inventory; and
7.1.4 Any other Collateral which Lender and RGPI may
designate as additional security from time to time by separate instruments.
7.2 LENDER'S RIGHTS. Lender shall have the right to notify any
Account Debtor to make payments thereon directly to Lender, to take control of
the cash and non-cash proceeds of any Account and to settle any Account, which
right Lender may exercise at any time in the Event of Default.
8. EVENTS OF DEFAULT.
8.1 EVENTS OF DEFAULT. The following shall constitute Events of
Default for purposes of this Agreement:
Page 6 of Ten
8.1.1 Borrower shall fail to pay when due any installment of
principal or interest or any other payment payable hereunder or under the Note;
8.1.2 Borrower shall fail to perform or observe any of the
terms, provisions, covenants, conditions, agreements or obligations contained in
this Agreement;
8.1.3 There shall occur the entry of an order for relief or
the filing of an involuntary petition with respect to Borrower under the United
States Bankruptcy Code; there shall occur the appointment of a receiver,
trustee, custodian or liquidator of or for any part of the assets or property of
Borrower; or Borrower shall make any general assignment for the benefit of
creditors.
8.1.4 Any financial statement, representation or warranty
made or furnished by Borrower in connection with this Agreement should prove to
be in any material respect incorrect;
8.1.5 Lender's security interest in or lien on any portion of
the Collateral shall become impaired or otherwise unenforceable;
8.1.6 Any person shall obtain an order or decree in any court
of competent jurisdiction enjoining or prohibiting Borrower or Lender or either
of them from performing this Agreement, and such proceedings shall not be
dismissed or such decree shall not be vacated within 10 days after the granting
thereof;
8.1.7 Borrower shall neglect, fail or refuse to keep in full
force and effect any governmental permit or approval which is necessary to the
operation of its business;
8.1.8 All or substantially all of the property of Borrower
shall be condemned, seized or otherwise appropriated;
8.2 NOTICE OF DEFAULT AND CURE OF POTENTIAL EVENTS OF DEFAULT.
Lender shall give Borrower at least 10 days' written notice of any event which
constitutes or, with the lapse of time would become an Event of Default, during
which time Borrower shall be entitled to cure such Default.
8.3 LENDER'S REMEDIES. Upon the occurrence of an Event of Default
and failure to timely cure such Event of Default, at the sole and exclusive
option of Lender, and upon written notice to Borrower, Lender may (a) declare
the principal of and accrued interest on the Loans immediately due and payable
in full, whereupon the same shall immediately become due and payable; (b)
terminate this Agreement as to any future liability or obligation of Lender, but
without affecting Lender's rights and security interest in the Collateral and
without affecting the Obligations owing by Borrower to Lender; and/or (c)
exercise its rights and remedies hereunder and under the Note, or any security
agreement or deed of trust securing the Obligations, and in addition to the
rights and remedies given it by this Agreement, all of the rights and remedies
of a secured party under the Code and other applicable laws with respect to all
of the Collateral.
8.4 ADDITIONAL REMEDIES. Notwithstanding any other provision of this
Agreement, upon the occurrence of any event, action or in action by Borrower, or
in the event any action or inaction is threatened which Lender reasonably
believes will materially affect the value of the Collateral, Lender may take
such legal actions as it deems reasonably necessary under the circumstances to
protect the Collateral, including but not limited to, seeking injunctive relief
and the appointment of a receiver, irrespective of whether an Event of Default
or Potential Event of Default has occurred under this Agreement.
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9. MISCELLANEOUS.
9.1 COSTS AND EXPENSES. Borrower shall reimburse Lender for all
costs and expenses, including reasonable attorney fees, expended or incurred by
Lender in collecting any sum which becomes due Lender under this Agreement, the
Note, or any other agreement delivered hereunder or in connection herewith,
irrespective of whether suit is filed, or in the protection, perfection,
preservation or enforcement of any and all rights of Lender in connection with
this Agreement, the Note, or any other agreements delivered hereunder or in
connection herewith, including, without limitation, the fees and costs incurred
in any out-of-court work-out or a bankruptcy or reorganization proceeding.
9.2 CUMULATIVE RIGHTS AND NO WAIVER. Each and every right and remedy
granted to Lender hereunder or under any other document delivered hereunder or
in connection herewith, shall be cumulative and no one such right or remedy
shall be exclusive of any other. No failure on the part of Lender to exercise,
and no delay in exercising, any right or remedy shall operate as a waiver
thereof, nor shall any single or partial exercise or waiver by Lender of any
right or remedy preclude any other or future exercise thereof or the exercise of
any other right or remedy.
9.3 APPLICABLE LAW. This Agreement and the rights and obligations of
the parties hereunder shall be governed by and interpreted and construed in
accordance with the laws of the State of Utah and venue and jurisdiction with
respect hereto shall be with any court of competent jurisdiction located in Salt
Lake County, State of Utah.
9.4 LIEN AND RIGHT OF SETOFF. Borrower hereby grants to Lender a
continuing lien for all Obligations of Borrower to Lender upon any and all Open
Accounts and the proceeds thereof, now or hereafter held or received by or in
transit to Lender from or for Borrower, whether for safekeeping, custody,
pledge, transmission, collection or otherwise, and also upon any and all
deposits (general or special) and credits of Borrower with, and any and all
claims of Borrower against Lender at any time existing. Upon the occurrence of
any Event of Default, Lender is hereby authorized at any time and from time to
time, without notice to Borrower or any other person, to setoff, appropriate and
apply any or all items hereinabove referred to against all Obligations of
Borrower whether under this Agreement or otherwise, and whether now existing or
hereafter arising.
9.5 NOTICES. Any notice required or permitted to be given shall be
given in writing and shall be deemed to have been given when deposited in the
United States mail certified, return receipt requested, with first-class postage
prepaid and properly addressed or with a commercial express mail service (e.g.
Federal Express, Airborne, etc.) for next day delivery to the address of the
party receiving the notice as set forth in this Section 9.5. For the purposes
hereof, the addresses of the parties hereto shall, until further notice given as
herein provided, be as follows:
Lender: AKA Charitable Remainder Unit Trust Number 2
Attention: Xxxxx Xxxxxxxxx
000 Xxxx 0000 Xxxxx
Xxxx, Xxxx 00000
Borrower: Renaissance Golf Products, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Xxxx X. Xxxxxxx
0000 Xxxx Xxxxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000
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Copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
9.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original with the same effect as if the
signatures thereto and hereto were upon the same instrument.
9.7 INDEMNIFICATION. Borrower shall, at all times, defend and
indemnify and hold Lender harmless from and against any and all liabilities,
claims, demands, causes of action, losses, damages, expenses, attorney fees,
costs, settlements, judgments or recoveries arising out of or resulting from (a)
any breach of the representations, warranties, agreements or covenants made by
Borrower herein; (b) any suit or proceeding of any kind or nature whatsoever
against Lender arising from or connected with the transactions contemplated by
this Agreement or any of the documents, instruments or agreements to be executed
pursuant hereto or any of the rights and properties assigned to Lender
hereunder; and/or (c) any suit or proceeding that Lender may deem necessary or
advisable to institute, in the name of Lender, Borrower or both, against any
other person, company or entity, for any reason whatsoever to protect the rights
of Lender hereunder or under any of the documents, instruments or agreements
executed or to be executed pursuant hereto. Any obligation or liability of
Borrower to Lender under this Section 9.7 shall survive the expiration or
termination of this Agreement and the repayment of all Loans and the payment or
performance of all other Obligations of Borrower to Lender.
9.8 ASSIGNMENTS. The provisions of this Agreement are hereby made
applicable to and shall inure to the benefit of Lender's successors and assigns
and Borrower's successors and assigns; provided, however, that Borrower may not
assign or transfer its rights or Obligations under this Agreement without the
prior written consent of Lender.
9.9 HEADINGS. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of the Agreement for any purpose or be given any substantive effect.
9.10 DEFINITIONS. Any of the terms defined in this Agreement may,
unless the context otherwise requires, be used in the singular or the plural
depending on the reference.
9.11 ACCOUNTING TERMS. All accounting terms not specifically defined
in this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
generally accepted accounting principles applied on a consistent basis, as in
effect on the date hereof, except as otherwise specifically prescribed herein.
9.12 SEVERABILITY. Any provision of this Agreement and the Note which
is prohibited or unenforceable in any jurisdiction, shall be, only as to such
jurisdiction, ineffective to the extent of such prohibition or unenforceability,
but all the remaining provisions of this Agreement and the Note shall remain
valid.
9.13 DISPUTE RESOLUTION. Any dispute or claim arising out of, in
connection with, or in relation to the interpretation, performance or breach of
this Agreement shall be resolved through arbitration to be presided over by a
mutually agreeable arbitrator. If the parties cannot agree upon a specific
arbitrator, one shall be appointed by the presiding judge in the county in which
the matter is to be heard, provided that the arbitrator so appointed shall not
be currently or formerly associated with the Borrower or Lender.
Page 9 of Ten
9.14 COMPLETE AGREEMENT. This written Agreement, together with the
exhibits is intended by Lender and Borrower as a final expression of their
agreement and is intended as a complete statement of the terms and conditions of
their agreement.
IN WITNESS WHEREOF, Lender and Borrower have caused this Agreement to be
executed on the day and year first written at the head of this Agreement.
"Borrower" RENAISSANCE GOLF PRODUCTS, INC.
a Delaware Corporation
By: ___________________________
Xxxx X. Xxxxxxx,
Chairman of the Board
ATTEST:
______________________________________
Xxxxx X. Xxxxxxx, Secretary
"Borrower" _______________________________
XXXX X. XXXXXXX
"Lender" AKA CHARITABLE REMAINDER TRUST
NUMBER 2
By: ___________________________
Xxxxx Xxxxxxxxx
Trustee
Page 10 of Ten
This FINANCING STATEMENT is presented for filing and will remain effective with certain exceptions for a period
of five years from the date of filing pursuant to section 9403 of the California Uniform Commercial Code.
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1. DEBTOR (LAST NAME FIRST--IF AN INDIVIDUAL) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
RENAISSANCE GOLF PRODUCTS, INC. 00-0000000
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1B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
0000 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxx, XX 00000
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2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST--IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
Xxxx X. Xxxxxxx ###-##-####
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2A. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
0000 Xxxx Xxxxxxx Xxxxxx Xxxxxx Xxxxx, Xxxx 00000
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3. DEBTOR'S TRADE NAMES OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
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4. SECURED PARTY 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME AKA CHARITABLE REMAINDER UNITRUST NUMBER 2
MAILING ADDRESS 000 XXXX 0000 XXXXX
XXXX XXXX XXXXX XXXX ZIP CODE 84058
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5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME
MAILING ADDRESS
CITY STATE ZIP CODE
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6. This FINANCING STATEMENT covers the following types or items of property (INCLUDE DESCRIPTION OF REAL PROPERTY ON WHICH
LOCATED AND OWNER OF RECORD WHEN REQUIRED BY INSTRUCTION 4).
a) Orders for the purchase of goods from the Debtor which have arisen, have been conformed from, or will arise from January
1, 1997;
b) Any right to payments to be received for orders for the purchase of goods from the Debtor which have arisen, have been
conformed from or will arise from January 1, 1997;
c) Inventory which consists of goods held for sale or lease in the ordinary course of the Company's business, work in process
and any and all raw materials held or received by the Company to be used in connection with orders for the purchase of
goods from the Debtor which have arisen, have been conformed from, or will arise from January 1, 1997; and
d) Proceeds received by the Company for orders for the purchase of goods from the Debtor which have arisen, have been
conformed from, or will arise from January 1, 1997.
The Secured Party is not a seller or purchase money lender of the Collateral.
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7. CHECK /X/ 7A. / / PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE ARE ALSO COVERED INSTRUCTION B(4) ITEM:
/ /(1) / /(2) / /(3) / /(4)
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8. CHECK /X/ / / DEBTOR IS A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC SECTION 9100 (1)(n)
IF APPLICABLE
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9. DATE: | C | 10. THIS SPACE FOR USE OF FILING OFFICER
RENAISSANCE GOLF PRODUCTS, INC. | O | (DATE, TIME, FILE NUMBER
--) BY: /S/ XXXXX X. XXXXXXX APRIL 4, 1997 | D | AND FILING OFFICER)
SIGNATURE(S) OF DEBTOR(S) | E |
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| 1 |
TYPE OR PRINT OF PRINT NAME(S) OF DEBTOR(S) Xxxxx X. Xxxxxxx, Secretary | 2 |
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--) | 3 |
SIGNATURE(S) OF SECURED PARTY(IES) | 4 |
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| 5 |
TYPE OR PRINT NAME(S) OF SECURED PART(IES) | 6 |
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11. RETURN COPY TO: | 7 |
| 8 |
--- --- | 9 |
NAME | Xxxxx X. Xxxxxxx | | 0 |
ADDRESS 0000 Xxxx Xxxxxx, Xxxxx 000 | |
CITY Irvine | |
STATE | California | | |
ZIP CODE --- 92614 --- | |
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FORM UCC.1 | |
APPROVED BY THE SECRETARY OF STATE | |
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