EXHIBIT 10.56
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Pledge Agreement") is made and dated as of
the 16th day of June, 2003 by and between CALLAWAY GOLF COMPANY, a Delaware
corporation (the "Borrower" and, collectively, with any other person that joins
in this Pledge Agreement by execution and delivery of a Joinder Agreement
substantially in the form of Exhibit A to this Pledge Agreement, the
"Pledgors"), and BANK OF AMERICA, N.A., a national banking association (the
"Lender").
RECITALS
A. Pursuant to that certain Credit Agreement dated as of June 16,
2003 by and between the Borrower and the Lender (as amended, extended and
replaced from time to time, the "Credit Agreement") the Lender has agreed to
extend credit to the Borrower from time to time. All capitalized terms not
otherwise defined herein used with the meanings given such terms in the Credit
Agreement. All other terms not otherwise defined herein shall have the meanings
attributed to such terms in the California Uniform Commercial Code as in effect
from time to time.
B. As a condition precedent to the Lender's obligation to extend
and to continuing to credit under the Credit Agreement and as security for the
payment and performance of the Secured Obligations (as defined in Paragraph 3
below), the Pledgors are required to execute and deliver and/or from time to
time join in this Pledge Agreement, all for the purpose of granting a security
interest in collateral, all as hereinafter provided.
NOW, THEREFORE, in consideration of the above Recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Grant of Security Interest. Each Pledgor hereby pledges,
assigns and grants to the Lender a security interest in the property described
in Paragraph 2 below (collectively and severally, the "Collateral") to secure
payment and performance of such Pledgor's Secured Obligations.
2. Collateral. The Collateral shall consist of all right, title
and interest of each Pledgor, whether now existing or hereafter acquired:
(a ) all Pledged Equity Interests, including, without
limitation, those Pledged Equity Interests listed on Schedule 1 to this Pledge
Agreement;
(b) all Pledged Debt Securities, including, without
limitation, those Pledged Debt Securities listed on Schedule 1 to this Pledge
Agreement;
(c) all other property that may be delivered to and held by
the Lender pursuant to the terms of this Pledge Agreement;
(d) all payments of principal or interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed, in respect of, in exchange for or upon the conversion of
the securities referred to in subparagraphs (a) and (b) above;
(e) all rights, powers and privileges with respect to the
Collateral referred to in subparagraphs (a) through (d) above; and
(f) all proceeds of the foregoing Collateral.
Upon delivery to the Lender, (a) any stock certificates,
promissory notes or other securities now or hereafter included in the Collateral
(the "Pledged Securities") shall be accompanied by stock powers duly executed in
blank or other instruments of transfer satisfactory to the Lender and by such
other endorsement, instruments and documents as the Lender may reasonably
request and (b) all other property comprising part of the Collateral shall be
accompanied by proper instruments of assignment duly executed by the appropriate
Pledgor and such other endorsements, instruments or documents as the Lender may
reasonably request. Each Pledgor promises promptly to deliver to the Lender any
and all Pledged Securities and any and all certificates or other instruments or
documents representing the Collateral. Each delivery of or other change in
Pledged Securities shall be accompanied by a schedule describing the securities
theretofor and then being pledged hereunder, which schedule shall be attached
hereto as Schedule I and made a part hereof. Each schedule so delivered shall
supersede any prior schedules so delivered. If any Pledged Securities or other
assets of any Pledgor shall, at any time, cease to be Collateral hereunder
(including, without limitation, as the result of (i) any Disposition thereof
permitted by the Credit Agreement or (ii) the issuer thereof ceasing to be a
Direct Material Foreign Subsidiary), the Lender agrees (i) that its security
interest therein concurrently will be terminated without further action of the
Lender, (ii) promptly on receipt of written notice thereof, to re-deliver to
such Pledgor all stock certificates, promissory notes, stock powers,
endorsements, instruments and documents delivered to the Lender hereunder in
connection with such Collateral, and (iii) to terminate or appropriately amend
financing statements filed to perfect the security interest in such Collateral.
3. Obligations. The "Secured Obligations" secured by this Pledge
Agreement shall consist of (i) in the case of the Borrower, all Obligations of
the Borrower under, and as defined in, the Credit Agreement and each other Loan
Document to which it is a party, in each case whether now existing or hereafter
arising, voluntary or involuntary, whether or not jointly owed with others,
direct or indirect, absolute or contingent, liquidated or unliquidated, and
whether or not from time to time decreased or extinguished and later increased,
created or incurred, whether now existing or hereafter arising and (ii) in the
case of any other Pledgor, all Guaranteed Obligations (as defined in the
Guaranty of such Pledgor) under such Guaranty and each other Loan Document to
which it is a party, in each case whether now existing or hereafter arising,
voluntary or involuntary, whether or not jointly owed with others, direct or
indirect, absolute or contingent, liquidated or unliquidated, and whether or not
from time to time decreased or
extinguished and later increased, created or incurred, in each case whether now
existing or hereafter arising.
4. Representations and Warranties. In addition to all
representations and warranties of the Pledgors set forth in the other Loan
Documents, which are incorporated herein by this reference, each Pledgor hereby
represents and warrants that: (a) the Pledged Equity Interests represent that
percentage set forth on Schedule I of the issued and outstanding Equity
Interests of the issuer with respect thereto; (b) except for the security
interest granted hereunder, such Pledgor (i) is and, except as otherwise
permitted by the Credit Agreement, will at all times continue to be the direct
owner, beneficially and of record, of the Pledged Securities indicated on
Schedule I, (ii) holds the same free and clear of all Liens except those
permitted by the Credit Agreement or any other Loan Document; (iii) will not
Dispose of or make no assignment, pledge, hypothecation or transfer of, or
create or permit to exist any security interest in or other Lien on, the
Collateral, other than pursuant hereto, or as permitted by the Credit Agreement
or the other Loan Documents, and (iv) will cause any and all Pledged Securities
received after the date of this Pledge Agreement, whether for value paid or
otherwise, to be forthwith deposited with the Lender and pledged or assigned
hereunder; (c) such Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and (ii) will defend its
title or interest thereto or therein against any and all Liens (other than the
Liens created by this Pledge Agreement or permitted by the Credit Agreement or
the other Loan Documents), however arising, of all Persons whomsoever; (d) no
consent of any other Person (including stockholders or creditors of the such
Pledgor) and no consent or approval of any Governmental Authority or any
securities exchange was or is necessary to the validity or enforceability of the
pledge effected hereby, except such consents as have been obtained and are in
full force and effect; and (e) by virtue of the execution and delivery by such
Pledgor of this Pledge Agreement, when the Pledged Securities, certificates or
other documents representing or evidencing the Collateral are delivered to the
Lender in accordance with this Pledge Agreement or, if a security interest in
the Collateral may not, under applicable law be perfected by possession, then
upon the filing of appropriate financing statements, the Lender will obtain a
valid and perfected first Lien upon and security interest in such Pledged
Securities as security for the payment and performance of the Secured
Obligations of such Pledgor; (f) all of the Pledged Equity Interests have been
duly authorized and validly issued and are fully paid and nonassessable and are
in certificated form; and (g) the Collateral will not be represented by any
certificates, notes, securities, documents, or other instruments other than
those delivered hereunder.
5. Registration in Nominee Name; Denominations. The Lender shall
have the right following an Event of Default which is continuing (in its sole
and absolute discretion) to hold the Pledged Securities in its own name as
pledgee, the name of its nominee (as pledge or as sub-agent) or the name of the
Pledgor granting a security interest therein, endorsed or assigned in blank or
in favor of the Lender. Each Pledgor will promptly give to the Lender copies of
any notices or other communication received by it from any Governmental
Authority with respect to the Pledged Securities registered in the name of such
Pledgor. The Lender shall at all times following an Event of Default which is
continuing have the right to exchange the certificates representing Pledged
Securities for certificates of smaller or larger denominations for any purpose
consistent with this Pledge Agreement. Each Pledgor hereby grants to the Lender
an exclusive, irrevocable power of attorney, with full power and authority in
the place and stead of such Pledgor to take all such action permitted under this
Paragraph 5. Each Pledgor agrees to reimburse the Lender upon demand for any
costs and expenses, including, without limitation, attorneys' fees, the Lender
may incur while acting as such Pledgor's attorney-in-fact hereunder, all of
which costs and expenses are included in the Secured Obligations of such Pledgor
secured hereby. It is further agreed and understood between the parties hereto
that such care as the Lender gives to the safekeeping of its own property of
like kind shall constitute reasonable care of the Collateral when in the
Lender's possession; provided, however, that the Lender shall not be required to
make any presentment, demand or protest, or give any notice and need not take
any action to preserve any rights against any prior party or any other Person in
connection with the Secured Obligations or with respect to the Collateral.
6. Administration of the Pledged Securities.
(a) Until there shall have occurred and be continuing an
Event of Default, each Pledgor shall be entitled to vote or consent with respect
to the Pledged Securities in any manner not inconsistent with this Pledge
Agreement or any document or instrument delivered or to be delivered pursuant to
or in connection with any thereof; provided, however, that no Pledgor will be
entitled to exercise any such right if the result thereof could materially and
adversely affect the rights inuring to a holder of the Pledged Securities or the
rights and remedies of the Lender under this Pledge Agreement or the Credit
Agreement or the Loan Documents or the ability of the Lender to exercise the
same. If there shall have occurred and be continuing an Event of Default and the
Lender shall have notified a Pledgor that the Lender desires to exercise its
proxy rights with respect to all or a portion of the Pledged Securities, such
Pledgor hereby grants to the Lender an irrevocable proxy for the Pledged
Securities of such Pledgor pursuant to which proxy the Lender shall be entitled
to vote or consent, in its discretion, and in such event each such Pledgor
agrees to deliver to the Lender such further evidence of the grant of such proxy
as the Lender may request. Upon the occurrence and during the continuance of an
Event of Default, all rights of each Pledgor to exercise the voting and
consensual rights and powers it is entitled to exercise pursuant to this Pledge
Agreement shall cease, and all such rights shall thereupon become vested in the
Lender, which shall have the sole and exclusive right and authority to exercise
such voting and consensual rights and powers.
(b) In the event that at any time or from time to time
after the date hereof, any Pledgor, as record and beneficial owner of Pledged
Securities, shall receive or shall become entitled to receive, any dividend or
any other distribution whether in securities or property by way of stock split,
spin-off, split-up or reclassification, combination of shares or the like, or in
case of any reorganization, consolidation or merger, or any Pledgor, as record
and beneficial owner of Pledged Securities, shall thereby be entitled to receive
securities or property in respect of such Pledged Securities, then and in each
such case, each such Pledgor shall deliver to the Lender and the Lender shall be
entitled to receive and retain all such securities or property as part of the
Pledged
Securities as security for the payment and performance of such Pledgor's Secured
Obligations; provided, however, that until an Event of Default shall have
occurred and be continuing, each Pledgor shall be entitled to receive, retain,
and use any cash dividends, interest, principal payments and other distributions
paid to it on account of the Pledged Securities to the extent that such payments
or other distributions are permitted by, and otherwise paid in accordance with,
the terms and conditions of the Credit Agreement and the other Loan Documents.
(c) Upon the occurrence of an Event of Default, all
rights of the Pledgors to dividends, distributions, interest or principal that
any Pledgor is authorized to receive pursuant to this Pledge Agreement shall
cease, and all such rights shall thereupon become vested in the Lender, which
shall have the sole and exclusive right and authority to receive and retain such
dividends, distributions, interest or principal. All dividends, distributions,
interest or principal received by any Pledgor contrary to the provisions of this
Pledge Agreement shall be held in trust for the benefit of the Lender, shall be
segregated from other property or funds of such Pledgor and shall forthwith be
delivered to the Lender upon demand in the same form as so received (with any
necessary endorsement). Any and all money and other property paid over to or
received by the Lender pursuant to the provisions of this subparagraph (c) shall
be retained by the Lender in an account to be established by the Lender upon
receipt of such money or other property and shall constitute Collateral under
this Pledge Agreement to be applied in accordance herewith.
(d) Upon the occurrence of an Event of Default, the
Lender is authorized to sell the Pledged Securities and, at any such sale of any
of the Pledged Securities, if it deems it advisable to do so, to restrict the
prospective bidders or purchasers to persons or entities who (1) will represent
and agree that they are purchasing for their own account, for investment, and
not with a view to the distribution or sale of any of the Pledged Securities;
and (2) satisfy the offeree and purchaser requirements for a valid private
placement transaction under Section 4(2) of the Securities Act of 1933, as
amended (the "Act"), and under Securities and Exchange Commission Release Nos.
33-6383; 34-18524; 35-22407; 39-700; IC-12264; AS-306, or under any similar
statute, rule or regulation. Each Pledgor agrees that disposition of the Pledged
Securities pursuant to any private sale made as provided above may be at prices
and on other terms less favorable than if the Pledged Securities were sold at
public sale, and that the Lender has no obligation to delay the sale of any
Pledged Securities for public sale under the Act. Each Pledgor agrees that a
private sale or sales made under the foregoing circumstances shall be deemed to
have been made in a commercially reasonable manner. In the event that the Lender
elects to sell the Pledged Securities of such Pledgor, or part of them, and
there is a public market for such Pledged Securities, in a public sale such
Pledgor shall use its best efforts to register and qualify its Pledged
Securities, or applicable part thereof, under the Act and all state blue sky or
securities laws required by the proposed terms of sale and all expenses thereof
shall be payable by such Pledgor, including, but not limited to, all costs of
(i) registration or qualification of, under the Act or any state blue sky or
securities laws or pursuant to any applicable rule or regulation issued pursuant
thereto, any Pledged Securities, and (ii) sale of such Pledged Securities,
including, but not limited
to, brokers' or underwriters' commissions, fees or discounts, accounting and
legal fees, costs of printing and other expenses of transfer and sale.
(e) If any consent, approval or authorization of any
state, municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or other disposition of the Pledged Securities
of a Pledgor, or any part thereof, such Pledgor will execute such applications
and other instruments as may be reasonably required in connection with securing
any such consent, approval or authorization, and will otherwise use its
commercially reasonable efforts to secure the same.
(f) Nothing contained in this Paragraph 6 shall be deemed
to limit the other obligations of any Pledgor contained in the Credit Agreement,
the Guaranties, this Pledge Agreement, or the other Loan Documents or the rights
of the Lender hereunder or thereunder.
7. Remedies.
(a) Upon the occurrence of an Event of Default, the
Lender may, without notice to or demand on any Pledgor and in addition to all
rights and remedies available to the Lender with respect to the Secured
Obligations, at law, in equity or otherwise, do any one or more of the
following:
(1) Foreclose or otherwise enforce the Lender's
security interest in Collateral of such Pledgor in any manner permitted by law
or provided for in this Pledge Agreement.
(2) Sell, lease, license or otherwise dispose of
any Collateral of such Pledgor at one or more public or private sales at the
Lender's place of business or any other place or places, including, without
limitation, any broker's board or securities exchange, whether or not such
Collateral is present at the place of sale, for cash or credit or future
delivery, on such terms and in such manner as the Lender may determine.
(3) Recover from such Pledgor all costs and
expenses, including, without limitation, reasonable attorneys' fees (including
the allocated cost of internal counsel), incurred or paid by the Lender in
exercising any right, power or remedy provided by this Pledge Agreement.
(4) In connection with the disposition of any
Collateral of such Pledgor, disclaim any warranty relating to title, possession
or quiet enjoyment.
(b) Unless the Collateral of a Pledgor threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, such Pledgor shall be given ten (10) Business Days' prior notice of the
time and place of any public sale or of the time after which any private sale or
other intended disposition of such Collateral is to be made pursuant to this
Pledge Agreement, which notice each Pledgor hereby agrees shall be deemed
reasonable notice thereof.
(c) Upon any sale or other Disposition pursuant to this
Pledge Agreement, the Lender shall have the right to deliver, assign and
transfer to the purchaser thereof the Collateral or portion thereof so sold or
Disposed of. Each purchaser at any such sale or other disposition (including the
Lender) shall hold the Collateral free from any claim or right of whatever kind,
including any equity or right of redemption of any Pledgor, and each Pledgor
specifically waives (to the extent permitted by law) all rights of redemption,
stay or appraisal which it has or may have under any rule of law or statute now
existing or hereafter adopted.
(d) Any deficiency with respect to the Secured
Obligations of a Pledgor which exists after the Disposition or liquidation of
the Collateral of such Pledgor shall be a continuing liability of such Pledgor
to the Lender and shall be immediately paid by such Pledgor to the Lender.
8. Application of Non-Cash Proceeds. Notwithstanding anything
else contained in this Pledge Agreement, if any non-cash proceeds are received
in connection with any sale or Disposition of any Collateral, the Lender shall
not apply such non-cash proceeds to the Secured Obligations unless and until
such proceeds are converted to cash; provided, however, that if such non-cash
proceeds are not expected on the date of receipt thereof to be converted to cash
within one year after such date, the Lender shall use commercially reasonable
efforts to convert such non-cash proceeds to cash within such one year period.
9. Waiver of Hearing. Each Pledgor expressly waives to the extent
permitted under applicable law any constitutional or other right to a judicial
hearing prior to the time the Lender takes possession or Disposes of the
Collateral upon the occurrence of an Event of Default.
10. Cumulative Rights. The rights, powers and remedies of the
Lender under this Pledge Agreement shall be in addition to all rights, powers
and remedies given to the Lender by virtue of any statute or rule of law, the
Credit Agreement, the Guaranties, any Loan Document or any other agreement, all
of which rights, powers and remedies shall be cumulative and may be exercised
successively or concurrently without impairing the Lender's security interest in
the Collateral.
11. Waiver. Any forbearance or failure or delay by the Lender in
exercising any right, power or remedy shall not preclude the further exercise
thereof, and every right, power or remedy of the Lender shall continue in full
force and effect until such right, power or remedy is specifically waived in a
writing executed by the Lender. Each Pledgor waives any right to require the
Lender to proceed against any person or to exhaust any Collateral or to pursue
any remedy in the Lender's power.
12. Setoff. Each Pledgor agrees that the Lender may exercise its
rights of setoff with respect to the Secured Obligations in the same manner as
if the Secured Obligations of such Pledgor were unsecured.
13. Financing Statements. Each Pledgor hereby consents to,
authorizes and instructs the Lender to file financing statements with respect to
the Collateral in all locations deemed appropriate by the Lender from time to
time.
14. Entire Agreement. This Pledge Agreement and the other Loan
Documents embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
15. Survival. All representations, warranties, covenants and
agreements contained herein and in the other Loan Documents of each Pledgor
shall survive the termination of this Agreement and shall be effective until the
Secured Obligations of all Pledgors are paid and performed in full or longer as
expressly provided herein.
16. Notices. All notices shall be given in accordance with the
Credit Agreement, which, in the case of Pledgors other than the Borrower, shall
be addressed to such Pledgor care of the Borrower at the address indicated in
the Credit Agreement.
17. Governing Law. This Pledge Agreement shall be governed by and
construed in accordance with the laws of the State of California without giving
effect to its choice of law rules.
18. Counterparts. This Pledge Agreement may be executed in any
number of counterparts, all of which together shall constitute one agreement.
19. Severability. The illegality or unenforceability of any
provision of this Pledge Agreement or any instrument or agreement required
hereunder or thereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions hereof or thereof.
[Signature Pages Following}
EXECUTED as of the day and year first above written.
CALLAWAY GOLF COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President and CEO
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
SCHEDULE I
(TO PLEDGE AGREEMENT)
PLEDGED SECURITIES
1. PLEDGED EQUITY INTERESTS
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NO. OF EQUITY PERCENTAGE OF
PLEDGOR ISSUER INTERESTS PLEDGED TOTAL
----------------------------------------------------------------------------
Borrower Callaway Golf Kabushiki Certificates representing 65%
Kaisha 650 Shares
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Borrower Callaway Golf Europe Certificate representing 65%
Limited 2,066,918 Shares
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2. PLEDGED DEBT SECURITIES
None
EXHIBIT A
(TO PLEDGE AGREEMENT)
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this "Agreement") is made and dated as of the
____ day of ___, 200_ by and between _______________________, a
_________________ (the "Joining Pledgor").
WHEREAS, Callaway Golf Company (the "Borrower") and Bank of America, NA
(the "Lender") have entered into a Credit Agreement dated as of June 16, 2003
(as amended, modified, or waived, the "Credit Agreement") pursuant to which the
Lender has agreed to extend credit to the Borrower on the terms and conditions
contained thereon;
WHEREAS, the Borrower and the Lender have executed a Pledge Agreement
(as such term and all other capitalized terms used, but not otherwise defined,
are defined in the Credit Agreement) pursuant to which the Borrower has, and
certain other Pledgors may have, granted to the Lender a security interest in
the Collateral as defined therein;
WHEREAS, the Joining Pledgor is or concurrently herewith is becoming a
Guarantor under the Credit Agreement and will acquire an interest in Collateral
and, pursuant to the Credit Agreement, is required to join in the Pledge
Agreement;
NOW, THEREFORE, in consideration of the above Recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Joining Pledgor hereby (a) joins in the Pledge
Agreement as though a party thereto ab initio, (b) grants to the Lender a
security interest in all right, title and interest of the Joining Pledgor in the
Collateral of the Joining Pledgor, whether now owned or hereafter acquired, (c)
delivers to the Lender a new Schedule 1 to the Pledge Agreement to the extent
required by the Pledge Agreement on account of Pledged Securities of the Joining
Pledgor and (d) agrees to deliver to the Lender such other agreements and
documents as the Lender may reasonably required to effectuate this joinder and
to realize for the Lender the benefits of the Collateral intended to be granted
pursuant to the Pledge Agreement.
_______________________, a ______________
By:______________________________________
Name:____________________________________
Title:___________________________________
