LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement ("Agreement") is dated as of October 29,
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
Xxxxxxxx # 0 ( "Lender"). This Agreement and the Revolving Promissory Note
attached as Exhibit "A" replace any and all previously executed loan agreements
and promissory notes executed between the parties hereto.
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 Inventory, Open Orders, Accounts and
all other assets of the Borrower 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 operations.
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 at
any time 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.
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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.
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 up
to the maximum aggregate principal amount of $5,000,000.00.
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, 1999, unless
terminated earlier pursuant to Section 8 hereof, extended 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 $5,000,000, 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 or upon terms as agreed in writing by
the parties. 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 November 10, 1997 and on the date all Revolving
Credit Loans are paid in full.
2.1.2 AVAILABILITY OF REVOLVING CREDIT LOANS. Borrower shall be
entitled to borrow on the Revolving Credit Loan at any time so long as the
Revolving Credit Loans outstanding do not exceed the Revolving Loan Commitment
in an amount equal to the lesser of $5,000,000 or 80% of RGPI's current assets,
which for purposes of this Agreement shall mean cash, accounts receivable aged
less than 90 days, and inventory.
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.
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
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days elapsed. All payments of principal, interest, fees and other charges on the
Revolving Credit Loan shall be made to AKA Charitable Remainder Xxxxxxxx # 0 and
delivered personally, by registered mail or by overnight carrier to the
attention of Xxxxx X. Xxxxxxxxx, Esq., Trustee, 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 the due date, 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 does 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 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.
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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 AKA Charitable Remainder Unitrust #2 ("AKA #2) in connection with
indebtedness of Borrower to AKA #2, which indebtedness Lender has agreed will be
repaid out of the proceeds of the Loan;
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 10-KSB, 10-
QSB, and any and all other documents prepared and filed by RGPI with the
Securities and Exchange Commission;
5.3.2 Upon Lender's request and as soon as available, a copy of its
annual, year-end, audited 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;
5.3.3 A copy of its monthly, unaudited financial statement consisting
of at least a balance sheet and income statement, prepared according to
generally accepted accounting principles consistently applied, which monthly
financial statement shall be delivered to Lender on or before the close of the
next calendar month to which the monthly financial statement relates; 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. RGPI shall obtain, within 30 days of the execution of
this Agreement, and maintain during the term of the Note life insurance on the
life of Xxxx X. Xxxxxxx, its Chairman of the Board and one of the Borrowers, in
the amount of $5,000,000 naming the Lender as the beneficiary under such policy.
RGPI shall provide a copy of such policy to Lender as soon as practicable after
the policy is obtained.
5.6 NOTICE. RGPI shall promptly advise Lender in writing of (a) each
location at which Inventory or other assets are 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 10 days before, any planned material
changes in its general or financial management.
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5.8 BOARD OF DIRECTORS SEAT. RGPI agrees to nominate and elect Xxxxx X.
Xxxxxxxxx, Esq. to serve as a member of the Board of Directors of RGPI during
the term of the Note as a condition subsequent to this Agreement. Failure to
elect Xx. Xxxxxxxxx as a member of the Board of Directors prior to October 31,
1997 shall be deemed an Event of Default.
5.9 STOCK PURCHASE WARRANTS. As additional consideration for the Loan,
RGPI agrees to grant Lender stock purchase warrants to purchase 200,000 shares
of the Common Stock of RGPI at an exercise price of $1.50, 100,000 shares of the
Common Stock of RGPI at an exercise price of $2.00, and 100,000 shares of the
Common Stock of RGPI at an exercise price of $3.00 (the "Warrants"). The
Warrants shall be exercisable immediately and shall expire on December 31, 2002.
A copy of the Warrant Agreement is attached hereto as Exhibit "B." The Loan
shall be convertible into shares of Common Stock in exercise of the Warrants at
the election of Lender. RGPI agrees to grant "piggy-back" registration rights
on the shares issuable upon exercise of the Options in accordance with the terms
of the Warrant Agreement.
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.
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.
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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, Open Orders, Inventory and other
assets;
7.1.2 All 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. TERM OF AGREEMENT.
8.1 INITIAL TERM. The initial term of this Agreement shall be from October
29, 1997 until December 31, 1999, the Termination Date.
8.2 EXTENSION OF TERM. This Agreement shall automatically renew each
calendar year for one additional calendar year term if neither party provides
notice of termination to the other party on or before 60 days before the end of
the then current calendar year.
9. EVENTS OF DEFAULT.
9.1 EVENTS OF DEFAULT. The following shall constitute Events of Default
for purposes of this Agreement:
9.1.1 Borrower shall fail to pay when due any installment of
principal or interest or any other payment payable hereunder or under the Note;
9.1.2 Borrower shall fail to perform or observe any of the terms,
provisions, covenants, conditions, agreements or obligations contained in this
Agreement;
9.1.3 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.
9.1.4 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;
9.1.5 Lender's security interest in or lien on any portion of the
Collateral shall become impaired or otherwise unenforceable;
9.1.6 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;
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9.1.7 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;
9.1.8 All or substantially all of the property of Borrower shall be
condemned, seized or otherwise appropriated;
9.2 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.
9.3 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.
9.4 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.
10. MISCELLANEOUS.
10.1 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.
10.2 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.
10.3 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.
10.4 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
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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.
10.5 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 10.5. 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 Unitrust #1
Attention: Xxxxx X. Xxxxxxxxx, Esq.
000 Xxxx 0000 Xxxxx
Xxxx, Xxxx 00000
Borrower: Renaissance Golf Products, Inc.
Attention Xxxx X. Xxxxxxx
0000 Xxxx Xxxxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000
Copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
10.6 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.
10.7 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 10.7 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.
10.8 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.
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10.9 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.
10.10 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.
10.11 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.
10.12 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.
10.13 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.
10.14 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.
(end of page)
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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: /s/ Xxxx X. Xxxxxxx
_________________________________
Xxxx X. Xxxxxxx,
Chairman of the Board
ATTEST:
/s/ Xxxxx X. Xxxxxxx
_____________________________
Xxxxx X. Xxxxxxx, Secretary
/s/ Xxxx X. Xxxxxxx
"Borrower" ____________________________________
XXXX X. XXXXXXX
"Lender" AKA CHARITABLE REMAINDER
UNITRUST #1
By: /s/ Xxxxx X. Xxxxxxxxx
_________________________________
Xxxxx X. Xxxxxxxxx,
Trustee
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