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EXHIBIT 10.24
AGREEMENT
AMONG
GOLF ACQUISITION GROUP, LLC
XXXXX XXXXX
GRAFIX CORPORATION
AND
TRANSTAR INDUSTRIES, INC.
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TABLE OF CONTENTS
Page
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ARTICLE I THE TRANSACTION................................................. 2
SECTION 1.1 Transaction................................................. 2
SECTION 1.2 Option; Proxy............................................... 2
SECTION 1.3 New CRRA Notes.............................................. 2
SECTION 1.4 Closing..................................................... 2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF M AHUJA...................... 3
SECTION 2.1 Ownership of CRRA Notes..................................... 3
SECTION 2.2 Authority of M Ahuja; Non-Contravention..................... 3
SECTION 2.3 Authority of Transtar; Non-Contravention.................... 3
SECTION 2.4 Organization, Standing and Power............................ 3
SECTION 2.5 Investment Representations and Warranties................... 4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF GAG......................... 5
SECTION 3.1 Organization, Standing and Power............................ 5
SECTION 3.2 Authority; Non-Contravention................................ 5
SECTION 3.3 Investment Representations and Warranties................... 5
ARTICLE IV ADDITIONAL REPRESENTATIONS AND WARRANTIES OF CRRA.............. 6
SECTION 4.1 Organization, Standing and Power............................ 6
SECTION 4.2 Capital Structure........................................... 7
SECTION 4.3 Notes....................................................... 7
SECTION 4.4 Authority; Non-Contravention................................ 7
SECTION 4.5 SEC Documents............................................... 7
SECTION 4.6 No Shares Registered Under Exchange Act..................... 8
SECTION 4.7 Ordinary Course of Business................................. 8
SECTION 4.8 No Undisclosed Material Liabilities......................... 8
SECTION 4.9 Litigation.................................................. 8
SECTION 4.10 Governmental Licenses and Permits; Compliance with Law..... 8
SECTION 4.11 Brokers.................................................... 8
SECTION 4.12 Disclosure................................................. 9
ARTICLE V ADDITIONAL AGREEMENTS........................................... 9
SECTION 5.1 Expenses.................................................... 9
SECTION 5.2 Reasonable Commercial Efforts............................... 9
SECTION 5.3 Public Announcements........................................ 9
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SECTION 5.4 Current Public Information.......................................9
SECTION 5.5 M Xxxxx'x Limited Representations and Warranties.................9
SECTION 5.6 Trickle-Out Agreement............................................9
ARTICLE VI CLOSING............................................................10
SECTION 6.1 Actions Prior to Closing........................................10
SECTION 6.2 Actions to be Taken at Closing..................................10
SECTION 6.3 Actions to be Taken After Closing...............................10
ARTICLE VII GENERAL PROVISIONS................................................11
SECTION 7.1 Survival of Representations, Warranties and Agreements..........11
SECTION 7.2 Notices.........................................................11
SECTION 7.3 Interpretation..................................................12
SECTION 7.4 Counterparts....................................................12
SECTION 7.5 Entire Agreement; No Third-Party Beneficiaries..................12
SECTION 7.6 Severability....................................................12
SECTION 7.7 Remedies........................................................12
SECTION 7.8 Attorneys' Fees.................................................13
SECTION 7.9 Governing Law...................................................13
SECTION 7.10 Rules of Construction..........................................13
SECTION 7.11 Assignment.....................................................13
SECTION 7.12 Captions and Headings..........................................13
SECTION 7.13 No Oral Change.................................................13
SECTION 7.14 Non-Waiver.....................................................13
SECTION 7.15 Time of Essence................................................13
SECTION 7.16 Binding Effect.................................................13
SECTION 7.17 Exhibits.......................................................13
SECTION 7.18 Facsimile Signatures...........................................13
* * *
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EXHIBITS
EXHIBIT A NEW AHUJA NOTE
EXHIBIT B NEW TRANSTAR NOTE
EXHIBIT C SECURITY AGREEMENT
EXHIBIT D IRREVOCABLE PROXY
EXHIBIT E OPINION OF GOLF ACQUISITION GROUP, LLC'S COUNSEL
EXHIBIT F OPINION OF CRRA'S COUNSEL
SCHEDULES
SCHEDULE A CRRA DISCLOSURE SCHEDULE
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AGREEMENT
AGREEMENT, dated as of February 11, 1999 (this "Agreement"), among Golf
Acquisition Group, LLC, a Colorado limited liability company ("GAG"), Xxxxx
Xxxxx, an individual ("M Ahuja"), Grafix Corporation, a Delaware corporation
doing business as Carrera Golf ("CRRA") and Transtar Industries, Inc., an Ohio
corporation ("Transtar"). GAG, M Ahuja, CRRA and Transtar are hereinafter
collectively referred to as the "Parties."
WITNESSETH:
WHEREAS, M Ahuja is the principal stockholder of CRRA and currently owns
4,000,000 of 6,825,113 shares of common stock currently outstanding of CRRA
(the "CRRA Common Shares"); and
WHEREAS, CRRA has aggregate outstanding debt payable to M Ahuja and
Transtar of approximately $1,298,310, consisting of an aggregate principal
amount of $1,125,000 and accrued interest at February 11, 1999 of approximately
$173,310, pursuant to the following promissory notes: (1) a promissory note
dated January 10, 1997 in the principal amount of $500,000 payable to M Ahuja
(the "Ahuja Notes"); (2) a promissory note dated August 31, 1998 in the
principal amount of $375,000 payable to M Ahuja, of which $200,000 plus
interest is still owing; (3) a promissory note dated August 5, 1997 in the
principal amount of $225,000 payable to Transtar; (4) a promissory note dated
November 21, 1997 in the principal amount of $100,000 payable to Transtar; and
(5) a promissory note dated December 2, 1997 in the principal amount of
$100,000 payable to Transtar (notes 3, 4 and 5 are collectively referred to
herein as the "Transtar Notes" and, collectively with the Ahuja Notes, the
"CRRA Notes"); and
WHEREAS, CRRA also has outstanding debt which, prior to February 10, 1999,
was payable to Huntington Bank, Cleveland, Ohio ("Huntington") in the principal
amount of $1,400,000 pursuant to a promissory note dated May 31, 1998 (the
"Huntington Note") (together with all accrued interest thereon through the
date of payment, the "Huntington Debt"); and
WHEREAS, on February 10, 1999, M Ahuja purchased the Huntington Note from
Huntington; and
WHEREAS, the Parties have proposed that at the Closing (as defined herein)
the following will occur: (1) M Ahuja shall exchange $86,000 of the principal
amount of the Ahuja Notes for 10,000,000 newly-issued CRRA Common Shares (the
"New CRRA Shares"); (2) M Ahuja shall exchange $8,600 of the principal amount
of the Ahuja Notes for 1,000,000 newly issued CRRA Common Shares (the
"Additional CRRA Shares"); (3) M Ahuja and Transtar shall exchange the
Huntington Note, the Transtar Notes, and the remainder of the Ahuja Notes for
two new promissory notes to be executed by CRRA, one in favor of M Ahuja, in
the principal amount of $545,000 and in the form of Exhibit A attached hereto
(the "New Ahuja Note") and one in favor of Transtar in the principal amount of
$105,000 and in the form of Exhibit B attached hereto (the "New Transtar Note"
and collectively with the New Ahuja Note, the "New CRRA Notes") such New CRRA
Notes to be secured by the inventory and accounts receivable of CRRA and
1,000,000 CRRA Common Shares to be issued by CRRA; and (4) M Ahuja shall sell
GAG 11,500,000 shares of CRRA Common Stock owned by M Ahuja for $100,000 (all
actions pursuant to this Agreement and the exhibits hereto are collectively
referred to herein as the "Transaction"); and
WHEREAS, the Parties desire to make certain representations, warranties
and agreements in connection with the Transaction and also to prescribe various
conditions to consummation of the Transaction.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained, the parties agree as follows:
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ARTICLE I
THE TRANSACTION
SECTION 1.1 Transaction. At the Closing, (i) M Ahuja shall deliver
evidence of purchase of the Huntington Note to CRRA and (ii) M Ahuja and
Transtar shall cancel the Huntington Note, Transtar Notes, and the Ahuja Notes
by marking each such note "cancelled" and delivering them to CRRA. In
consideration for the cancellation and the delivery of the Huntington Note, the
Ahuja Notes, and the Transtar Note by M Ahuja and Transtar, at the Closing CRRA
shall (i) execute and deliver to M Ahuja the New Ahuja Note in the principal
amount of $545,000, in exchange for the Huntington Note and all but $94,600 of
the principal amount of the Ahuja Notes, (ii) execute and deliver to Transtar
the New Transtar Note in the principal amount of $105,000 in exchange for the
Transtar Notes, (iii) issue to M Ahuja the 10,000,000 New CRRA Shares in
exchange for $86,000 of the principal amount of the Ahuja Notes, and (iv) issue
to M Ahuja, for himself and on behalf of Transtar, the 1,000,000 Additional
CRRA Shares subject to Section 1.2 below in exchange for $8,600 of the
principal amount of the Ahuja Notes. Upon receipt by M Ahuja of the New CRRA
Shares, M Ahuja shall immediately transfer 11,500,000 CRRA Common Shares
(including the 10,000,000 New CRRA Shares) (together with related stock power)
to GAG. In consideration for the transfer of the New CRRA Shares to GAG, GAG
shall pay to M Ahuja $100,000 in cash, by certified or bank cashier's check
payable to the order of, or by wire transfer of same-day funds pursuant to
instructions of, M Ahuja.
SECTION 1.2 Option; Proxy. M Ahuja and Transtar agree that if the
principal and any accrued interest payable on the New CRRA Notes is paid when
due, the 1,000,000 Additional CRRA Shares shall be returned to CRRA provided
that upon the occurrence of an Event of Default under either of the New CRRA
Notes, M Ahuja shall not be obligated to return the Additional CRRA Shares
under any circumstances. From the Closing Date until February 11, 2001, CRRA
shall have the right to vote the Additional CRRA Shares pursuant to the
Irrevocable Proxy attached hereto as Exhibit D, provided, however, in the event
of an Event of Default has occurred under either of the New CRRA Notes, such
Proxy will immediately terminate.
SECTION 1.3 New CRRA Notes. The New CRRA Notes shall accrue interest at the
rate of 10% per annum and the principal amount and accrued interest under the
New CRRA Notes shall be due and payable on February 11, 2001. The New CRRA Notes
shall be secured by the inventory and accounts receivable of CRRA, as set forth
in the security agreement attached hereto as Exhibit C.
SECTION 1.4 Closing. The following shall take place simultaneously with
the execution of this Agreement (the "Closing") at the offices of Xxxxx &
Xxxxxxxxx LLP, counsel for M Ahuja, at 10:00 a.m., local time, on February 11,
1999 or at such other time and place as the Parties hereto shall agree (the
"Closing Date"):
(1) Delivery of evidence of purchase of the Huntington Note by M Ahuja to
CRRA;
(2) Cancellation and delivery of the Huntington Note, the Transtar Notes,
and the Ahuja Notes to CRRA;
(3) Exchange of $86,000 of the Ahuja Notes for the issuance of the New
CRRA Shares to M Ahuja;
(4) Delivery of the New Ahuja Note by CRRA to M Ahuja;
(5) Delivery of the New Transtar Note by CRRA to Transtar;
(6) Payment of $100,000 to M Ahuja by GAG for 11,500,000 CRRA Common
Shares owned by M Ahuja;
(7) Issuance of the Collateral Shares to M Ahuja to be held as collateral
security pursuant to the Pledge Agreement; and
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(8) Execution of the Security Agreement and the Pledge Agreement by
the parties thereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF M AHUJA
M Ahuja represents and warrants to GAG as follows:
SECTION 2.1 Ownership of CRRA Notes. M Ahuja (or in the case of the
Transtar Notes, Transtar) beneficially holds the Huntington Note and the CRRA
Notes free and clear of any restrictions on transfer (other than restrictions
under the Securities Act of 1933, as amended (the "Securities Act") and state
securities laws), taxes, Liens (as defined in this Section), options, warrants,
purchase rights, contracts, commitments, equities, claims and demands. Neither M
Ahuja nor Transtar is a party to (i) any option, warrant, purchase right, or
other contract or commitment that could require him or it to sell, transfer, or
otherwise dispose of the Huntington Note or any CRRA Notes (other than pursuant
to this Agreement) or (ii) any voting trust, proxy, or other agreement or
understanding with respect to the Huntington Note or the CRRA Notes. For
purposes of this Agreement, "Liens" means liens, mortgages, pledges, security
interests, encumbrances, claims or charges of any kind.
SECTION 2.2 Authority of M Ahuja; Non-Contravention. M Ahuja has all
requisite power and authority to enter into this Agreement and the Security
Agreement (the "Transaction Documents") and to consummate the Transaction. The
Transaction Documents have been duly executed and delivered by M Ahuja and
(assuming the valid authorization, execution and delivery of the Transaction
Documents by CRRA) constitute valid and binding obligations of M Ahuja
enforceable against him in accordance with their terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights and by the effect
of general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law. No filing or registration with,
or authorization, consent or approval of, any domestic (federal and state),
foreign or supranational court, commission, governmental body, regulatory
agency, authority of tribunal (a "Governmental Entity") is required by or with
respect to M Ahuja in connection with the execution and delivery of the
Transaction Documents by M Ahuja or is necessary for the consummation by M Ahuja
of the Transaction or any other transaction contemplated by this Agreement.
SECTION 2.3 Authority of Transtar; Non-Contravention. Transtar has
all requisite power and authority to enter into the Transaction Documents and
to consummate the Transaction. The Transaction Documents have been duly executed
and delivered by Transtar and (assuming the valid authorization, execution and
delivery of this Agreement by GAG and CRRA) constitute valid and binding
obligations of Transtar enforceable against it in accordance with their terms,
except to the extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws of general
applicability relating to or affecting the enforcement of creditors' rights and
by the effect of general principles of equity regardless of whether
enforceability is considered in a proceeding in equity or at law. No filing or
registration with, or authorization, consent or approval of, any Governmental
Entity is required by or with respect to Transtar in connection with the
execution and delivery of the Transaction Documents by Transtar or is necessary
for the consummation by Transtar of the Transaction or any other transaction
contemplated by this Agreement.
SECTION 2.4 Organization, Standing and Power. Transtar is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has the requisite corporate
power and authority to own, lease and operate its properties and to carry on
its business as now being conducted. Transtar is duly qualified to do business,
and is in good standing, in each jurisdiction where the character of its
properties owned or held under lease or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect on Transtar.
"Material Adverse Change" or "Material Adverse Effect" means, with respect to an
entity, any change or effect that is or, so far as can reasonably be determined,
is likely to be materially adverse to the assets, properties, condition
(financial or otherwise), business or results of operations of that entity.
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SECTION 2.5 Investment Representations and Warranties.
(a) Investment Intent. M Ahuja will acquire the New CRRA Shares, the
New Ahuja Note and the Additional CRRA Shares and Transtar will acquire the New
Transtar Note (collectively the "New Securities") solely for his or its own
account, as the case may be, for investment and not with a view to or for sale
or distribution of the New Securities (except for the transfer of the New CRRA
Shares to GAG pursuant to the terms of this Agreement) and not with any present
intention of selling, offering to sell or otherwise disposing of or distributing
the New Securities or any portion thereof in any transaction (except for the
transfer of the New CRRA Shares to GAG pursuant to the terms of this Agreement)
other than a transaction registered under the Securities Act and any applicable
state securities laws or a transaction exempt from such registration.
(b) Transfer Restrictions. The sale or transfer of the New
Securities to M Ahuja and Transtar, as the case may be, has not been registered
under the Securities Act or any state securities laws, and, therefore, the New
Securities must be held indefinitely by M Ahuja or Transtar, as the case may be,
unless subsequently registered under the Securities Act and any applicable state
securities laws or an exemption from such registration is available. The share
certificate(s) and the promissory notes representing the New Securities will be
stamped with the following legend (or substantially equivalent language)
restricting transfer:
The securities represented by this certificate have not been
registered under the Securities Act of 1933 or the laws of any state
and may not be offered, sold, transferred, pledged or hypothecated in
the absence of such registration, or the availability of an exemption
from such registration.
(c) Other Actions. Neither M Ahuja nor Transtar has engaged or will
engage, directly or indirectly, in any general solicitation of purchasers or
offerees of the New Securities in connection with the transactions contemplated
by this Agreement. Neither M Ahuja nor Transtar has taken or permitted to be
taken on his or its behalf any action that would render the transactions
contemplated by this Agreement ineligible for exemption from registration under
the Securities Act.
(d) Access to Information and Advisors; Accreditation Status.
(1) M Ahuja, individually and on behalf of Transtar, has been advised
by counsel of the legal implications and effect of the acquisition of the New
Securities under the Securities Act and of the circumstances under which he or
Transtar may dispose of the New Securities under the Securities Act.
(2) M Ahuja has a net worth in excess of $1,000,000 or annual
individual income for each of the two most recent years preceding the Closing
Date and anticipated income for the current year in excess of $200,000 or joint
income with his spouse in excess of $300,000 for the same periods.
(3) Transtar is a corporation with total assets in excess of
$5,000,000 and was not formed for the specific purpose of acquiring the New
Transtar Note.
(4) Prior to signing this Agreement, M Ahuja, individually and on
behalf of Transtar, was given the opportunity to ask detailed questions and
receive satisfactory answers concerning (i) the terms and conditions of this
Agreement, and (ii) CRRA, its business and the risks associated with CRRA and an
investment in New Securities. All such questions have been answered to M Xxxxx'x
satisfaction, and M Ahuja has been supplied with all additional information and
documents requested and deemed necessary by him to make an investment decision
with respect to the New Securities being acquired pursuant to this Agreement.
(5) Prior to signing this Agreement, M Ahuja, individually and on
behalf of Transtar, had the opportunity to consult with his legal counsel,
investment advisor and other advisors to the extent desired by him as to his
investment and Transtar's investment. M Ahuja, individually and on behalf of
Transtar, represents that he, alone or with his purchaser representative, has
such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of the prospective investment in the
New Securities.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GAG
GAG represents and warrants to M Ahuja, Transtar and CRRA as follows:
SECTION 3.1 Organization, Standing and Power. GAG is a LLC duly
organized, validly existing and in good standing under the laws of jurisdiction
of its organization and has the requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted. GAG
is duly qualified to do business, and is in good standing, in each jurisdiction
where the character of its properties owned or held under lease or the nature of
its activities makes such qualification necessary, except where the failure to
be so qualified would not, individually or in the aggregate, have a Material
Adverse Effect on GAG.
SECTION 3.2 Authority; Non-Contravention. GAG has all requisite power
and authority to enter into this Agreement and to consummate the Transaction.
This Agreement has been duly executed and delivered by GAG and (assuming the
valid authorization, execution and delivery of this Agreement by M Ahuja, CRRA
and Transtar) constitutes a valid and binding obligations of GAG enforceable
against it in accordance with its terms, except to the extent enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws or general applicability relating to or affecting
the enforcement of creditors' rights and by the effect of general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or law. The execution and delivery of this Agreement by GAG does not, and
the consummation of the transactions contemplated hereby and thereby and
compliance with the provisions hereof and thereof will not, conflict with, or
result in any violation of, or default (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a material benefit under, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of GAG under, any provision of (i) GAG's
charter documents or other documents that govern the operation of GAG, (ii) any
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise or license applicable to
GAG (except for this Agreement) or (iii) any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to GAG or any of its respective
properties or assets, other than, in the case of clauses (ii) or (iii), any such
conflicts, violations, defaults, rights, liens, losses, security interests,
charges or encumbrances that, individually or in the aggregate, would not have a
Material Adverse Effect on GAG, materially impair the ability of GAG to perform
its obligations hereunder or prevent the consummation of the Transaction or any
of the transactions contemplated by this Agreement. No filing or registration
with, or authorization, consent or approval of, any Governmental Entity is
required by or with respect to GAG in connection with the execution and delivery
of this Agreement by GAG or is necessary for the consummation by GAG of the
Transaction and the other transactions contemplated by this Agreement.
SECTION 3.3 Investment Representations and Warranties.
(a) Investment Intent. GAG will acquire the 11,500,000 CRRA Common
Shares (the "GAG CRRA Shares") solely for its own account for investment and not
with a view to or for sale or distribution of the GAG CRRA Shares or any portion
thereof and not with any present intention of selling, offering to sell or
otherwise disposing of or distributing the GAG CRRA Shares or any portion
thereof in any transaction, other than a transaction registered under the
Securities Act and any applicable state securities laws or a transaction exempt
from such registration requirements.
(b) Transfer Restrictions.
(1) The sale of the GAG CRRA Shares has not been registered under the
Securities Act or any state securities laws, and, therefore, the GAG CRRA Shares
must be held indefinitely unless subsequently registered under the Securities
Act and any applicable state securities laws or an exemption from such
registration is available.
(2) The share certificate representing the GAG CRRA Shares will be
stamped with the following legend (or substantially equivalent language)
restricting transfer:
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The securities represented by this certificate have not been registered
under the Securities Act of 1933 or the laws of any state and may not be
offered, sold, transferred, pledged or hypothecated in the absence of such
registration, or the availability of an exemption from such registration.
(c) Other Actions. GAG has not engaged and will not engage, directly or
indirectly, in any general solicitation of purchasers or offerees of the GAG
CRRA Shares in connection with the transactions contemplated by this Agreement.
GAG has not taken or permitted to be taken on its behalf any action that would
render the transactions contemplated by this Agreement ineligible for exemption
from registration under the Securities Act.
(d) Access to Information and Advisors; Accreditation Status.
(1) The Manager of GAG has been advised by counsel of the legal
implications and effect of the acquisition of the GAG CRRA Shares under the
Securities Act and of the circumstances under which GAG may dispose of the GAG
CRRA Shares under the Securities Act.
(2) GAG is a limited liability company which was not formed for the
specific purpose of acquiring the GAG CRRA Shares. GAG has only one member, who
is the Manager of GAG. The member of GAG has contributed all of the funds to
GAG which are being used for the purchase of the GAG CRRA Shares.
(3) The Manager of GAG has had full opportunity to review documents filed
by CRRA (the "CRRA SEC Documents") with the Securities and Exchange Commission
(the "SEC").
(3) In making the decision to invest in the GAG CRRA Shares, the Manager
of GAG has relied and will rely solely on the information in the CRRA SEC
Documents, and their own independent investigation.
(4) Prior to signing this Agreement, the Manager of GAG was given the
opportunity to ask detailed questions and receive satisfactory answers
concerning (i) the terms and conditions of this Agreement, and (ii) CRRA, its
business and the risks associated with CRRA and an investment in the GAG CRRA
Shares. All such questions have been answered to his satisfaction, and they have
been supplied with all additional information and documents requested and
deemed necessary by him to make an investment decision with respect to the GAG
CRRA Shares being acquired pursuant to this Agreement.
(5) Prior to signing this Agreement, the Manager of GAG had the
opportunity to consult with GAG's legal counsel, investment advisor and other
advisors to the extent desired as to GAG's investment in the GAG CRRA Shares.
The Manager of GAG represents that he, alone or with his purchase
representative, has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of the
prospective investment in the GAG CRRA Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CRRA
CRRA represents and warrants to GAG, M Ahuja and Transtar as follows:
SECTION 4.1 Organization, Standing and Power. CRRA is a corporation
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has the requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as now being conducted. CRRA is duly qualified to do business, and is
in good standing, in each jurisdiction where the character of its properties
owned or held under lease or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect on CRRA.
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SECTION 4.2 Capital Structure. As of the date hereof, the authorized
capital stock of CRRA consists of 50,000,000 shares of common stock and
5,000,000 shares of preferred stock. As of February 11, 1999, 6,825,113 shares
of such common stock and no shares of such preferred stock were issued and
outstanding. All issued and outstanding shares of common stock of CRRA are
validly issued, fully paid and non-assessable and not subject to preemptive
rights. All of the 10,000,000 New CRRA Shares issuable pursuant to the
Transaction in accordance with this Agreement will be, when so issued, duly
authorized, validly issued, fully paid and non-assessable and not subject to
preemptive rights.
SECTION 4.3 Notes. The CRRA Notes have been duly and validly authorized and
executed by CRRA and constitute the valid and binding obligations of CRRA. The
New CRRA Notes issuable pursuant to the Transaction in accordance with this
Agreement will be, when so issued, duly and validly authorized and executed by
CRRA and will constitute the valid and binding obligations of CRRA.
SECTION 4.4 Authority; Non-Contravention. CRRA has all requisite corporate
power and authority to enter into the Transaction Documents and to consummate
the Transaction. The Transaction Documents have been duly executed and delivered
by CRRA and (assuming the valid authorization, execution and delivery of this
Agreement by GAG, M Ahuja, Transtar and the Security Agreement by M Ahuja and
Transtar and the Pledge Agreement by M Ahuja and Transtar) constitute valid and
binding obligations of CRRA enforceable against it in accordance with their
terms, except to the extent enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws of general applicability relating to or affecting the enforcement of
creditors' rights and by the effect of general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at law. The
execution and delivery of the Transaction Documents by CRRA does not, and the
consummation of the Transaction contemplated hereby and thereby and compliance
with the provisions hereof and thereof will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to the loss of a material benefit under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
properties or assets of CRRA under, any provision of (i) the Articles of
Incorporation, as amended, or Bylaws of CRRA, (ii) any loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to CRRA (except for the Transaction
Documents and the New CRRA Notes) or (iii) any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to CRRA or any of its respective
properties or assets, other than, in the case of clauses (ii) or (iii), any such
conflicts, violations, defaults, rights, liens, losses, security interests,
charges or encumbrances that, individually or in the aggregate, would not have a
Material Adverse Effect on CRRA, materially impair the ability of CRRA to
perform its obligations hereunder or prevent the consummation of the
Transaction. No filing or registration with, or authorization, consent or
approval of, any Governmental Entity is required by or with respect to CRRA in
connection with the execution and delivery of the Transaction Documents by CRRA
or is necessary for the consummation by CRRA of the Transaction and the other
transactions contemplated by this Agreement.
SECTION 4.5 SEC Documents. CRRA has filed all required documents with the
SEC since January 1, 1997 (the "Recent CRRA SEC Documents"). CRRA has not filed
its Annual Report on Form 10-KSB for the fiscal year ended September 30, 1998
and has filed a Form 15 with the SEC under the Exchange Act to suspend its duty
to file reports under Section 15(d) of the Exchange Act. As of their respective
dates, the Recent CRRA SEC Documents complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
none of the Recent CRRA SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The consolidated financial statements of
CRRA included in the Recent CRRA SEC Documents comply as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, have been prepared in accordance
with generally accepted accounting principles (except, in the case of the
unaudited statements, as permitted by Form 10-QSB of the SEC) applied on a
consistent basis during the periods involved (except as may be indicated therein
or in the notes thereto) and fairly present the consolidated financial position
of CRRA and its consolidated subsidiaries, if any, as at the dates thereof and
the consolidated results of their operations and statements of cash flows for
the periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments and to any other adjustments described therein).
There is no liability or obligation of any kind, whether accrued, absolute,
fixed or contingent, of CRRA or any subsidiary of which CRRA has knowledge
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and which is required by generally accepted accounting principles to be
reflected or reserved against or otherwise disclosed in the most recent
financial statements of CRRA included in the Recent CRRA SEC Documents which is
not so reflected or reserved against that individually or in the aggregate
would have a Material Adverse Effect on CRRA. For purposes of this Agreement,
"CRRA Balance Sheet" means the consolidated balance sheet as of June 30, 1998,
set forth in the Quarterly Report on Form 10-QSB of CRRA for the fiscal quarter
ended June 30, 1998, and "CRRA Balance Sheet Date" means June 30, 1998.
SECTION 4.6 No Shares Registered Under Exchange Act. None of the
classes or series of capital stock of CRRA is currently registered under
Section 12 of the Exchange Act.
SECTION 4.7 Ordinary Course of Business. CRRA has conducted its
business in the ordinary course since its inception and through the date of
this Agreement. GAG has reviewed the Recent CRRA SEC Documents and subsequent
financial reports for the periods through October 31, 1998, and, as a result of
that review, is aware of all changes in CRRA's business results since October
31, 1998. CRRA has informed GAG of any material changes in CRRA's business
that have occurred since October 31, 1998.
SECTION 4.8 No Undisclosed Material Liabilities. Except for (i)
interest accrued on the CRRA Notes and the Huntington Note and (ii) the
incurrence of additional debt from M Ahuja in the remaining principal amount of
$200,000 pursuant to a promissory note dated July 15, 1998, and accrued
interest thereon, there have been no liabilities or obligations (whether
pursuant to contracts or otherwise) of any kind whatsoever incurred by CRRA or
any subsidiary of CRRA since the CRRA Balance Sheet Date, whether accrued,
contingent, absolute, determined, determinable or otherwise, other than:
(a) liabilities or obligations (i) disclosed or provided for in the CRRA
Balance Sheet or in the notes thereto, or (ii) disclosed in the Recent CRRA SEC
Documents filed prior to the date hereof;
(b) liabilities or obligations which, individually and in the aggregate,
have not had and are not reasonably likely to have a Material Adverse Effect on
CRRA;
(c) liabilities or obligations under this Agreement or incurred in
connection with the transactions contemplated hereby; or
(d) liabilities incurred by CRRA in the normal course of business and
disclosed in CRRA's Quarterly Report on Form 10-QSB and unaudited financial
statements delivered to GAG through the date of this Agreement.
SECTION 4.9 Litigation. Except as disclosed in Schedule A -- CRRA
Disclosure Schedule attached hereto, there is no suit, action, investigation or
proceeding pending or, to the knowledge of CRRA, threatened against CRRA at law
or in equity before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or before any arbitrator of any kind, and there is no judgment,
decree, injunction, rule or order of any court, governmental department,
commission, board, bureau, agency, instrumentality or arbitrator to which CRRA
is subject.
SECTION 4.10 Governmental Licenses and Permits; Compliance with Law.
CRRA has not received notice of any revocation or modification of any federal,
state, local or foreign governmental license, certification, tariff, permit,
authorization or approval, the revocation or modification of which would have a
Material Adverse Effect on CRRA. To the knowledge of CRRA, the conduct of the
business of CRRA complies with all statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees or arbitration awards applicable thereto,
except for violations or failures to comply, if any, that, individually or in
the aggregate, would not have a Material Adverse Effect on CRRA.
SECTION 4.11 Brokers. No broker, investment banker or other person is
entitled to any broker's, finder's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of CRRA.
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SECTION 4.12 Disclosure. No representation or warranty by CRRA contained
in this Agreement, and no statement contained in any document, certificate or
other instrument delivered to or to be delivered by or on behalf of CRRA
pursuant to this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact necessary, in
light of the circumstances under which it was or will be made, in order to make
the statements herein or therein not misleading.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1 Expenses. Whether or not the Transaction is consummated, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the Party incurring such
costs and expenses, provided that GAG agrees that the fees and expenses of
counsel for M Ahuja incurred in connection with the Transaction shall be paid
by GAG in an amount not to exceed $2,000.
SECTION 5.2 Reasonable Commercial Efforts. Upon the terms and subject to
the conditions set forth in this Agreement, each of the Parties hereto agrees
to use all reasonable commercial efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the
other Parties in doing, all things necessary, proper or advisable to consummate
and make effective, in the most expeditious manner practicable, the Transaction
and the other transactions contemplated by this Agreement and the prompt
satisfaction of the conditions hereto, including (a) the obtaining of all
necessary actions or non-actions, waivers, consents and approvals from
Governmental Entities and the making of all necessary registrations and filings
and the taking of all reasonable steps as may be necessary to obtain an
approval or waiver from, or to avoid an action or proceeding by, any
Governmental Entity, (b) the obtaining of all necessary consents, approvals or
waivers from third parties, (c) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this Agreement or
the consummation of the transactions contemplated hereby, including seeking to
have any stay or temporary restraining order entered by any court or other
Governmental Entity vacated or reversed, and (d) the execution and delivery of
any additional instruments necessary to consummate the transactions
contemplated by this Agreement.
SECTION 5.3 Public Announcements. Before issuing any press release or
otherwise making any public statements with respect to the transactions
contemplated by this Agreement, the Parties will consult with each other, and
will undertake reasonable efforts to agree upon the terms of such press
release, and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by applicable
law or by obligations pursuant to any listing agreement with a securities
trading market.
SECTION 5.4 Current Public Information. GAG agrees that it will use its
best efforts to cause CRRA to (i) become and continue to be subject to the
reporting requirements of Section 13 of the Exchange Act either by way of
Section 12 or Section 15(d) thereof, and (ii) to file all periodic and other
reports required to be filed by CRRA pursuant to the Exchange Act for a period
of at least three years following termination of the Pledge Period in order for
M Ahuja to be able to sell any of the New Securities in accordance with the
requirements of the Securities Act, including Rule 144.
SECTION 5.5 M Xxxxx'x Limited Representations and Warranties. The
Parties to this Agreement acknowledge and agree that M Ahuja shall have no
personal liability for any representation, warranty, covenant or agreement
contained in this Agreement and made by any Party, other than the
representations and warranties of M Ahuja contained in Article II of this
Agreement.
SECTION 5.6 Trickle-Out Agreement. For the period beginning on the
Closing Date and ending on the second anniversary of the Closing Date (the
"Trickle-Out Period"), M Ahuja agrees that sales in the market by him of the
2,500,000 CRRA Common Shares (the "Remaining CRRA Shares") he will own
immediately after consummation of the Transaction shall be limited as follows:
(i) during each calendar month M Ahuja may not sell more than 250,000 of the
Remaining CRRA Shares (assuming that such sales are otherwise permitted under
the Securities Act, including Rule 144, and any applicable state securities
laws). After the second anniversary of the Closing Date, M Ahuja may freely
sell any of the Remaining Shares he still owns at such time, provided such
sales are in accordance with the requirements of the Securities Act, including
Rule 144, and any applicable state securities laws. M Ahuja acknowledges that
for the period of time he is considered an "affiliate" of CRRA (as defined under
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the Securities Act), whether during the Trickle-Out Period or after, any sale
of his CRRA Common Shares will be subject to Rule 144 promulgated under the
Securities Act, including certain volume limitations on sales by affiliates.
ARTICLE VI
CLOSING
SECTION 6.1 Actions Prior to Closing. Not later than one (1) business day
in advance of the Closing Date, counsel for the Parties shall review the
conditions to consummation of the transactions contemplated hereby and the
manner in which it is proposed that each such condition shall be filled
(including the form and substance of all opinions, certificates and other
instruments to be received by the parties, respectively). If it is determined
that all conditions have been satisfied, the Parties shall execute this
Agreement.
SECTION 6.2 Actions to Be Taken at Closing.
(a) M Ahuja shall deliver evidence of purchase of the Huntington Note to
CRRA;
(b) M Ahuja and Transtar shall xxxx the Huntington Note, Transtar Notes,
and Ahuja Notes "cancelled";
(c) M Ahuja and Transtar shall deliver the cancelled Huntington Note,
Transtar Notes, and Ahuja Notes to CRRA;
(d) CRRA shall deliver the New Ahuja Note to M Ahuja;
(e) CRRA shall deliver the New Transtar Note to Transtar;
(f) GAG shall pay $100,000 to M Ahuja;
(g) M Ahuja shall deliver to CRRA a letter of resignation as the Chairman
of the Board of and as a member of the Board of Directors of CRRA;
(h) Vir X. Xxxxxx shall deliver to CRRA a letter of resignation as a
Director of the Board of CRRA;
(i) GAG shall deliver to M Ahuja an opinion of the Manager of and counsel
to Golf Acquisition Group, LLC addressed to M Ahuja, with the opinions listed in
Exhibit E attached hereto;
(j) CRRA shall deliver to M Ahuja and GAG the opinion of Xxxxxxxx LLC,
its counsel, with the opinions listed in Exhibit F attached hereto;
(k) GAG shall deliver to M Ahuja a Certificate of Good Standing (or its
equivalent) from the appropriate governmental authority in Colorado;
(l) CRRA shall deliver to M Ahuja and GAG a Certificate of Good Standing
(or its equivalent) from the appropriate governmental authority in Colorado; and
(m) The Security Agreement substantially in the form attached hereto as
Exhibit C shall be executed by and delivered to the parties thereto.
SECTION 6.3 Actions to be Taken After Closing.
(a) Within five (5) days of the Closing Date, CRRA shall issue to M Ahuja
a stock certificate or certificates evidencing the 10,000,000 New CRRA Shares;
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(b) Within five (5) days of the Closing Date, M Ahuja shall deliver
to GAG a stock certificate or certificates, duly endorsed (or with a stock
power) evidencing 11,500,000 CRRA Common Shares;
(c) Within five (5) days of the Closing Date, CRRA shall issue to M
Ahuja a stock certificate or certificates evidencing 1,000,000 CRRA Common
Shares to be held by M Ahuja for himself and Transtar as collateral security
pursuant to the Pledge Agreement; and
(d) Within five (5) days of the Closing Date, M Ahuja shall deliver
an irrevocable proxy in the form attached hereto as Exhibit D
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 Survival of Representations, Warranties and Agreements.
The representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Closing Date.
SECTION 7.2 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or by
commercial delivery service, or mailed by registered or certified mail (return
receipt requested) or sent via telecopy (receipt confirmed) to the parties at
the following addresses or telecopy numbers (or at such other address or
telecopy numbers for a party as shall be specified by like notice):
(a) If to GAG to:
Xxxxx Xxxxxx, Manager
Golf Acquisition Group, LLC
0000 X. Xxxxx Xxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
with a copy to:
(b) If to CRRA, to:
Grafix Corporation d/b/a Carrera Golf
0000 Xxxx Xxxxxxx Xxxxxx, #000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
(c) If to M Ahuja, to:
Xxxxx Xxxxx
c/o Transtar Industries, Inc.
0000 Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Telecopy No.: 000-000-0000
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with a copy to:
Xxxxx & Xxxxxxxxx LLP
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
(d) If to Transtar, to:
Transtar Industries, Inc.
0000 Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopy No.: 000-000-0000
with a copy to:
Xxxxx & Xxxxxxxxx LLP
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
SECTION 7.3 Interpretation. When a reference is made in this
Agreement to Exhibits, such reference shall be to an Exhibit to this Agreement
unless otherwise indicated. The words "include", "includes" and "including"
when used herein shall be deemed in each case to be followed by the words
"without limitation." The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. When reference is made herein to
"the business of" an entity, such reference shall be deemed to include the
business of all direct and indirect subsidiaries of such entity. All
representations and warranties contained herein which are made to the
"knowledge" of GAG or CRRA shall mean to the actual knowledge of GAG's or
CRRA's executive officers, respectively.
SECTION 7.4 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood
that all parties need not sign the same counterpart.
SECTION 7.5 Entire Agreement; No Third-Party Beneficiaries. This
Agreement and the documents and instruments and other agreements among the
parties hereto as contemplated by or referred to herein, including the
exhibits and schedules hereto (a) constitutes the entire agreement among the
Parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, and (b) are not intended to confer upon
any other person any rights or remedies hereunder.
SECTION 7.6 Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic business and other purposes of such void or unenforceable provision.
SECTION 7.7 Remedies. Except as otherwise provided herein, any and
all remedies herein expressly conferred upon a party will be deemed cumulative
with and not exclusive of any other remedy conferred
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hereby, or by law or equity upon such party, and the exercise by a party of
any one remedy will not preclude the exercise of any other remedy.
SECTION 7.8 Attorneys' Fees. In any action at law or suit in equity to
enforce this Agreement or the rights of any of the parties hereunder, the
prevailing party or parties in such action or suit shall be entitled to receive
a reasonable sum for its attorneys' fees and all other reasonable costs and
expenses incurred in such action or suit.
SECTION 7.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
law thereof. Each of the parties hereto irrevocably consents to the exclusive
jurisdiction of any state or federal court within the State of Ohio, in
connection with any matter based upon or arising out of this Agreement or the
matters contemplated herein, agrees that process may be served upon them in any
manner authorized by the laws of the State of Ohio for such persons and waives
and covenants not to assert or plead any objection which they might otherwise
have to such jurisdiction and such process.
SECTION 7.10 Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
documents will be construed against the party drafting such agreement or
document.
SECTION 7.11 Assignment. No Party may assign either this Agreement or any
of its rights, interests, or obligations hereunder without the prior written
approval of the Parties.
SECTION 7.12 Captions and Headings. The Article and paragraph headings
through this Agreement are for convenience and reference only, and shall in no
way be deemed to define, limit or add to the meaning of any provision of this
Agreement.
SECTION 7.13 No Oral Change. This Agreement and any provision hereof may
not be waived, changed, modified or discharged orally, but it can be changed by
any agreement in writing signed by the Party against whom enforcement of any
waiver, change, modification or discharge is sought.
SECTION 7.14 Non-Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition or provision of this Agreement shall be
deemed to have been made unless expressed in writing and signed by the Party
against whom such waiver is charged; and (i) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future
of any such provisions, covenants or conditions; (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition or provisions
hereof shall not be deemed a waiver of such breach or failure; and (iii) no
waiver by any Party of one breach by another Party be construed as waiver with
respect to any other or subsequent breach.
SECTION 7.15 Time of Essence. Time is of the essence in this Agreement and
of each and every provision hereof.
SECTION 7.16 Binding Effect. This Agreement shall inure to and be binding
upon the heirs, executors, personal representatives, successor and assigns of
each Party to this Agreement.
SECTION 7.17 Exhibits. As of the execution hereof, the Parties hereto
have provided each other with the exhibits and schedules provided for
hereinabove, including any items referenced thereon or required to be attached
thereto. Any material changes to the exhibits and schedules shall be
immediately disclosed to the other Parties. All such exhibits or schedules are
incorporated herein and made a part of this Agreement.
SECTION 7.18 Facsimile Signatures. Facsimile signatures of the Agreement
and all documents relating to this Agreement shall constitute approval and
acceptance of said documents as if such documents bore original signatures.
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IN WITNESS WHEREOF, GAG, CRRA, M Ahuja and Transtar have executed this
Agreement to be as of the date first written above.
GOLF ACQUISITION GROUP, LLC
By: /s/ Xxxxx Xxxxxx
------------------------
Name: Xxxxx Xxxxxx
Title: Manager
GRAFIX CORPORATION
By: /s/ Xxxx Xxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxx
Title: President
M AHUJA
------------------------------
Xxxxx Xxxxx
TRANSTAR INDUSTRIES, INC.
By:
--------------------------
Name: Xxxxx Xxxxx
Title:
-------------------
19
IN WITNESS WHEREOF, GAG, CRRA, M Ahuja and Transtar have executed this
Agreement to be as of the date first written above.
GOLF ACQUISITION GROUP, LLC
By:_________________________
Name: Xxxxx Xxxxxx
Title: Manager
GRAFIX CORPORATION
By:_________________________
Name: Xxxx Xxxxxxxx
Title: President
M AHUJA
/s/ Xxxxx Xxxxx
____________________________
Xxxxx Xxxxx
TRANSTAR INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxx
____________________________
Name: Xxxxx Xxxxx
Title:______________________
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THE SECURITIES REPRESENTED BY THIS PROMISSORY NOTE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE LAWS OF ANY STATE AND MAY NOTE BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH
REGISTRATION, OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION.
PROMISSORY NOTE
$545,000 FEBRUARY 11, 1999
FOR VALUE RECEIVED the undersigned, Grafix Corporation, a Delaware
corporation ("Maker"), hereby promises to pay to the order of Xxxxx Xxxxx
("Payee"), at the address set forth below for notices to Payee, or such other
place as Payee may from time to time designate, the principal sum of Five
Hundred Forty-Five Thousand Dollars ($545,000.00) together with interest on the
outstanding unpaid balance of such principal sum at the rate of 10% per annum
(the "Interest Rate").
The principal amount of and accrued interest on this Note shall be due and
payable on February 11, 2001 (the "Payment Date"). Maker may prepay this Note at
any time or from time to time prior to such maturity schedule, either in whole
or in part, without premium or penalty of any kind and any such prepayment shall
not delay or postpone any subsequent payment.
Maker waives all exemption rights under any applicable law and also waives
presentment for payment, demand, notice of nonpayment, valuation, appraisement,
protest, dishonor, notice of protest, notice of intent to accelerate, notice of
acceleration and all other notices and without further notice, hereby consents
to renewals, extensions or partial payments either before or after maturity.
Maker further agrees to pay all reasonable costs of collection, including
court costs, expenses and reasonable attorney's fees regardless of whether or
not involving litigation and/or appellate, administrative or bankruptcy
proceedings, in case the principal of this Note or any interest or Default
Interest (as defined herein) thereon is not paid when due, whether suit be
brought or not.
No delay or omission on the part of Payee hereof in exercising any right
hereunder shall operate as a waiver of such right or any other right under this
Note, nor shall any waiver on one occasion be construed as a bar to or waiver of
any such right on any future occasion. No waiver shall be effective unless in
writing and signed by Payee.
It is not intended hereby to charge interest at a rate in excess of the
maximum rate of interest that Payee may charge Maker under applicable usury and
other laws, but if, notwithstanding, interest in excess of such rate shall be
paid hereunder, the excess shall be retained by Payee as cash collateral for the
payment of this Note, unless such retention is not permitted by law, in which
case the Interest Rate on this Note shall be adjusted to the maximum permitted
under applicable law during the period or periods that the Interest Rate
otherwise provided herein would exceed such rate.
The entire principal balance of this Note plus accrued interest and all
other obligations of Maker to Payee, direct or indirect, shall become
immediately due and payable without presentment, demand, protest, or other
notice of any kind, all of which are hereby expressly waived, anything contained
herein to the contrary not withstanding, if any one of the following Events of
Default shall occur and shall not have been remedied: (i) Maker shall fail to
pay, within five (5) days after the Payment Date, the principal of this Note and
all accrued interest on this Note due on such Payment Date, or to pay when due
(whether by acceleration, maturity or otherwise) any other sums payable under
this Note; (ii) an Event of Default has occurred under that certain promissory
note dated February 11, 1999 with Maker as maker and Transtar Industries, Inc.,
an Ohio corporation, as payee; (iii) Maker shall commence a voluntary case under
the United States Bankruptcy Code (as now or hereafter in effect)(the
"Bankruptcy Code"); or (iv) Maker shall fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed against it in
an involuntary case under the Bankruptcy Code.
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Upon the occurrence of an Event of Default, the principal of this Note
shall bear interest at a rate equal to the lesser of (i) two points higher than
Interest Rate then in effect on the unpaid principal balance of this Note or
(ii) the highest amount permitted by law ("Default Interest"). Any accrued
Default Interest on the unpaid principal balance of or accrued interest on the
Note shall be paid quarterly in arrears, commencing on the last day of the
month in which the Event of Default occurs and continuing thereafter quarterly
on the last day of each final month of the quarter until this Note is paid in
full. Default Interest on this Note shall be computed on the actual number of
days elapsed over a 360-day year; i.e., 1/360th of a full year's Default
Interest shall accrue for each day any loan evidenced by this Note is
outstanding.
Payment of principal and interest (including Default Interest) is secured
by the inventory and accounts receivable and certain securities of Maker, all
as more fully described in a Security Agreement dated February 11, 1999 between
Maker, Payee and Transtar Industries, Inc., an Ohio corporation ("Transtar").
This Note is also subject to the provisions of that certain Agreement dated
February 11, 1999 by and among Maker, Payee, Transtar and Golf Acquisition
Group, LLC, a Colorado limited liability company, and Maker and Payee shall
have such rights as are set forth in that Agreement.
All of the stipulations, promises and agreements in this Note contained by
or on behalf of Maker and Payee shall bind their successors and assigns,
whether so expressed or not, and inure to the benefit of the successors and
assigns of the Maker and Payee.
If any provision of this Note shall be held invalid, illegal or
unenforceable in any jurisdiction, the validity, legality or enforceability of
any defective provisions shall not be in any way affected or impaired in any
other jurisdiction.
All notices or demands required or permitted hereunder shall be in writing
and shall be deemed given when actually delivered or on the third business day
following the day on which the same shall have been mailed by registered or
certified mail, postage prepaid, addressed as follows:
If to Maker: Grafix Corporation
0000 Xxxx Xxxxxxx Xxxxxx, #000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
If to Payee: Xxxxx Xxxxx
c/o Transtar Industries, Inc.
0000 Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Telecopy No.: 000-000-0000
In either case Xxxxxx X. Xxxxxxxx
with a copy to: Xxxxx & Xxxxxxxxx LLP
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either the Maker or Payee may change its respective address by giving
notice of such change to the other party in the manner provided herein. For
this purpose only, unless and until such written notice is actually received,
the address specified for each party shall be deemed to continue in effect for
all purposes.
The laws of the State of Colorado shall govern the validity, construction
enforcement and interpretation of this Note.
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MAKER HEREBY AND PAYEE BY ITS ACCEPTANCE OF THIS NOTE, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR PAYEE MAKING THE LOAN EVIDENCED BY THIS
NOTE.
Executed this 11 day of February, 1999.
MAKER:
GRAFIX CORPORATION
/s/ Xxxx X. Xxxxxxxx
----------------------------
By: Xxxx Xxxxxxxx
Title: President
23
THE SECURITIES REPRESENTED BY THIS PROMISSORY NOTE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE LAWS OF ANY STATE AND MAY NOT BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH
REGISTRATION, OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION.
PROMISSORY NOTE
$105,000 FEBRUARY 11, 1999
FOR VALUE RECEIVED the undersigned, Grafix Corporation, a Delaware
corporation ("Maker"), hereby promises to pay to the order of Transtar
Industries, Inc., an Ohio corporation ("Payee"), at the address set forth below
for notices to Payee, or such other place as Payee may from time to time
designate, the principal sum of One Hundred Five Thousand Dollars ($105,000.00)
together with interest on the outstanding unpaid balance of such principal sum
at the rate of 10% per annum (the "Interest Rate").
The principal amount of and accrued interest on this Note shall be due and
payable on February 11, 2001 (the "Payment Date"). Maker may prepay this Note at
any time or from time to time prior to such maturity schedule, either in whole
or in part, without premium or penalty of any kind and any such prepayment shall
not delay or postpone any subsequent payment.
Maker waives all exemption rights under any applicable law and also waives
presentment for payment, demand, notice of nonpayment, valuation, appraisement,
protest, dishonor, notice of protest, notice of intent to accelerate, notice of
acceleration and all other notices and without further notice, hereby consents
to renewals, extensions or partial payments either before or after maturity.
Maker further agrees to pay all reasonable costs of collection, including
court costs, expenses and reasonable attorney's fees regardless of whether or
not involving litigation and/or appellate, administrative or bankruptcy
proceedings, in case the principal of this Note or any interest or Default
Interest (as defined herein) thereon is not paid when due, whether suit be
brought or not.
No delay or omission on the part of Payee hereof in exercising any right
hereunder shall operate as a waiver of such right or any other right under this
Note, nor shall any waiver on one occasion be construed as a bar to or waiver of
any such right on any future occasion. No waiver shall be effective unless in
writing and signed by Payee.
It is not intended hereby to charge interest at a rate in excess of the
maximum rate of interest that Payee may charge Maker under applicable usury and
other laws, but if, notwithstanding, interest in excess of such rate shall be
paid hereunder, the excess shall be retained by Payee as cash collateral for the
payment of this Note, unless such retention is not permitted by law, in which
case the Interest Rate on this Note shall be adjusted to the maximum permitted
under applicable law during the period or periods that the Interest Rate
otherwise provided herein would exceed such rate.
The entire principal balance of this Note plus accrued interest and all
other obligations of Maker to Payee, direct or indirect, shall become
immediately due and payable without presentment, demand, protest, or other
notice of any kind, all of which are hereby expressly waived, anything contained
herein to the contrary not withstanding, if any one of the following Events of
Default shall occur and shall not have been remedied: (i) Maker shall fail to
pay, within five (5) days after the Payment Date, the principal of this Note and
all accrued interest on this Note due on such Payment Date, or to pay when due
(whether by acceleration, maturity or otherwise) any other sums payable under
this Note; (ii) an Event of Default has occurred under that certain promissory
note dated February 11, 1999 with Maker as maker and Xxxxx Xxxxx as payee; (iii)
Maker shall commence a voluntary case under the United States Bankruptcy Code
(as now or hereafter in effect) (the "Bankruptcy Code"); or (iv) Maker shall
fail to controvert in a timely and appropriate manner, or acquiesce in writing
to, any petition filed against it in an involuntary case under the Bankruptcy
Code.
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Upon the occurrence of an Event of Default, the principal of this Note
shall bear interest at a rate equal to the lesser of (i) two points higher than
Interest Rate then in effect on the unpaid principal balance of this Note or
(ii) the highest amount permitted by law ("Default Interest"). Any accrued
Default Interest on the unpaid principal balance of or accrued interest on the
Note shall be paid quarterly in arrears, commencing on the last day of the
month in which the Event of Default occurs and continuing thereafter quarterly
on the last day of each final month of the quarter until this Note is paid in
full. Default Interest on this Note shall be computed on the actual number of
days elapsed over a 360-day year; i.e., 1/360th of a full year's Default
Interest shall accrue for each day any loan evidenced by this Note is
outstanding.
Payments of principal and interest (including Default Interest) is secured
by the inventory and accounts receivable and certain securities of Maker, all
as more fully described in a Security Agreement dated February 11, 1999 between
Maker, Payee and Xxxxx Xxxxx ("M Xxxxx"). This Note is also subject to the
provisions of that certain Agreement and dated February 11, 1999 by and among
Maker, Payee and M Ahuja and Golf Acquisition Group, LLC, and Maker and Payee
shall have such rights as are set forth in that Agreement.
All of the stipulations, promises and agreements in this Note contained by
or on behalf of Maker and Payee shall bind their successors and assigns,
whether so expressed or not, and inure to the benefit of the successors and
assigns of the Maker and Payee.
If any provision of this Note shall be held invalid, illegal or
unenforceable in any jurisdiction, the validity, legality or enforceability of
any defective provisions shall not be in any way affected or impaired in any
other jurisdiction.
All notices and demands required or permitted hereunder shall be in
writing and shall be deemed given when actually delivered or on the third
business day following the day on which the same shall have been mailed by
registered or certified mail, postage prepaid, addressed as follows:
If to Maker: Grafix Corporation
0000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
If to Payee: Transtar Industries, Inc.
0000 Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopy No.: 000-000-0000
In either case Xxxxxx X. Xxxxxxxx
with a copy to: Xxxxx & Xxxxxxxxx LLP
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either the Maker or Payee may change its respective address by giving
notice of such change to the other party in the manner provided herein. For
this purpose only, unless and until such written notice is actually received,
the address specified for each party shall be deemed to continue in effect for
all purposes.
The laws of the State of Colorado shall govern the validity, construction
enforcement and interpretation of this Note.
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MAKER HEREBY AND PAYEE BY ITS ACCEPTANCE OF THIS NOTE, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR PAYEE MAKING THE LOAN EVIDENCED BY THIS
NOTE.
Executed this 11 day of February, 1999.
MAKER:
GRAFIX CORPORATION
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx Xxxxxxxx
Title
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EXHIBIT C
SECURITY AGREEMENT
THIS AGREEMENT is made as of the 11th day of February, 1999, by and among
Grafix Corporation, a Delaware corporation ("Debtor"), Xxxxx Xxxxx ("M Ahuja")
and Transtar Industries, Inc., an Ohio corporation ("Transtar" and together
with M Ahuja, the "Secured Parties").
RECITALS:
1. Simultaneously herewith Debtor has issued two promissory notes dated
February 11, 1999, one to M Ahuja in the principal amount of $545,000 (the "New
Ahuja Note") and one to Transtar in the principal amount of $105,000 (the "New
Transtar Note" and together with the New Ahuja Note, the "New Notes");
2. The New Notes have been issued by Debtor to the Secured Parties as
partial consideration for the cancellation and delivery by the Secured Parties
of certain outstanding indebtedness of Debtor payable to the Secured Parties;
and
3. Debtor desires to grant the security hereinafter set forth to secure
the New Notes.
NOW, THEREFORE, the parties, intending to be legally bound, in
consideration of the premises and other good and valuable consideration, agree
as follows:
1. Obligations.
The obligations hereby secured consist of the indebtedness of Debtor
to the Secured Parties under the New Notes (the "Obligations").
2. Grant of Security.
In order to secure the due payment and performance of all the
Obligations, the Debtor hereby assigns, mortgages, pledges, hypothecates,
transfers and sets over to the Secured Parties and grants to the Secured
Parties a first lien upon and security interest in all of Debtor's inventory,
whether now owned or hereafter acquired, and all accounts receivable, all
hereinafter referred to as the "Collateral," including without limitation, all
items set forth on Schedule I annexed hereto.
3. Debtor's Title; Liens and Encumbrances.
Debtor represents and warrants that it is, or to the extent that this
Agreement states that the Collateral is to be acquired after the date hereof,
will be, the owner of the Collateral, having good and marketable title thereto,
free from any and all liens, security interests, encumbrances or claims. Debtor
will not create or assume or permit to exist any such lien, security interest,
encumbrance or claim on or against the Collateral except as created by this
Security Agreement, and Debtor will promptly notify the Secured Parties of any
such other claim, lien, security interest or other encumbrance made or asserted
against the Collateral and will defend the Collateral against any such claim,
lien, security interest or other encumbrance.
4. Location of Collateral and Records.
Debtor represents and warrants that it has no place of business,
offices where Debtor's books of account and records are kept, or places where
the Collateral is used, stored or located, except as set forth on Schedule II
annexed hereto, and covenants that Debtor will promptly notify the Secured
Parties of any change in the foregoing representation. Debtor shall at all
times maintain its records as to the Collateral at its chief place of business
at the address referred to on Schedule II and at none other. Debtor further
covenants that except for
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Collateral delivered to the Secured Parties or an agent for the Secured
Parties, Debtor will not store, use or locate any of the Collateral at any
place other than as listed on Schedule II hereto.
5. Perfection of Security Interest.
Debtor will join with the Secured Parties in executing one or more
financing statements pursuant to the Uniform Commercial Code or other notices
appropriate under applicable law in form satisfactory to the Secured Parties
and will pay all filing or recording costs with respect thereto, and all costs
of filing or recording this Agreement or any other instrument, agreement or
document executed and delivered pursuant hereto (including the cost of all
federal, state or local mortgage, documentary, stamp or other taxes), in each
case, in all public offices where filing or recording is deemed by the Secured
Parties to be necessary or desirable. Debtor hereby authorizes the Secured
Parties to take all action (including, without limitation, the filing of any
Uniform Commercial Code financing statements or amendment thereto without the
signature of Debtor) which the Secured Parties may deem necessary or desirable
to perfect or otherwise protect the liens and security interests created
hereunder and to obtain the benefits of this Agreement. Transtar hereby
authorizes M Ahuja to take all such actions referred to in the preceding
sentence on its behalf.
6. General Covenants.
Debtor shall:
(a) Pay all taxes and maintain all insurance; and
(b) Promptly execute and deliver to the Secured Parties
such further assignments, security agreements or other instruments, documents,
certificates and assurances and take such further action as the Secured Parties
may from time to time by necessary to perfect, protect or enforce their
security interest in the Collateral or otherwise to effectuate the intent of
this Agreement.
7. Insurance.
Debtor shall deliver to the Secured Parties copies of, or
certificates of the issuing companies with respect to, endorsements of any and
all policies of insurance owned by Debtor covering or in any manner relating to
the Collateral, in form and substance satisfactory to Secured Parties, naming
the Debtor as an additional insured party as their interest may appear and
indicating that the policy will not be terminated, or reduced in coverage or
amount, without at least ten (10) days prior written notice from the insurer to
the Secured Parties.
8. Fixtures.
If the Collateral or any part thereof is or is to become attached or
affixed to any real estate, it is intended that the Secured Parties have a
security interest therein.
9. Rights and Remedies on Default.
In the event of the occurrence and continuance of any Event of
Default as hereinafter defined, the Secured Parties shall have any and all
rights afforded to secured parties under the Uniform Commercial Code or other
applicable law. Transtar authorizes M Ahuja to act on its behalf in exercising
any of the rights Transtar has as a secured party under the Uniform Commercial
Code or other applicable law. Debtor and the Secured Parties agree that, as to
any proceeds received by the Secured Parties from any sale or other disposition
of the Collateral, the rights of each of the Secured Parties to such proceeds
to satisfy the Obligations shall be determined as follows: (i) M Ahuja shall be
entitled to the amount of such proceeds equal to (a) the total amount of such
proceeds multiplied by (b) a fraction, the numerator of which is the total
principal and accrued interest outstanding under the New Ahuja Note at such
time as the proceeds are realized and the denominator of which is the total
principal and accrued interest outstanding under the New Notes at such time as
the proceeds are realized; and (ii) Transtar shall be entitled to the amount of
such proceeds equal to (a) the total amount of such proceeds multiplied by (b)
a fraction, the numerator of which is the total principal and accrued interest
outstanding under the New Transtar Note at such
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time as the proceeds are realized and the denominator of which is the total
principal and accrued interest outstanding under the New Notes at such time as
the proceeds are realized.
10. Costs and Expenses.
Any and all fees, costs and expenses, of whatever kind or nature,
including the reasonable attorneys' fees and legal expenses incurred by the
Secured Parties, in connection with enforcing, foreclosing, retaking, holding,
storing, processing, selling or otherwise realizing upon the Collateral and the
Secured Parties' security interest therein, whether through judicial proceedings
or otherwise, or in defending or prosecuting any actions or proceedings arising
out of or related to the transactions to which this Agreement relates, shall be
borne and paid by Debtor on demand by the Secured Parties and until so paid
shall be added to the principal amount of the Obligations and shall bear
interest at the rate prescribed in the New Notes.
11. Consent to File Financing Statement. Debtor agrees to give its
consent to the Secured Parties to file a financing statement or financing
statements in any jurisdictions in which such filing would be necessary to
perfect the security interest granted hereby.
12. Power of Attorney.
Debtor authorizes M Ahuja and does hereby make, constitute and
appoint M Ahuja, with full power of substitution, as Debtor's true and lawful
attorney-in-fact, with power, in its own name, after the occurrence and during
the continuance of any Event of Default as specified in the New Notes, to
endorse any notes, checks, drafts, money orders, or other instruments of
payment (including payments payable under or in respect of any policy of
insurance) in respect of the Collateral that may come into possession of the
Secured Parties; to sign and endorse any invoice, freight or express xxxx, xxxx
of lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with accounts, and other documents
relating to the Collateral; to pay or discharge taxes, liens, security
interests or other encumbrances at any time levied or placed on or threatened
against the Collateral; to demand, collect, receipt for, compromise, settle and
xxx for monies due in respect of the Collateral, and, generally, to do at the
Secured Parties' option and at Debtor's expense, at any time, or from time to
time, all acts and things which the Secured Parties deem necessary to protect,
preserve and realize upon the Collateral and the Secured Parties' security
interest therein in order to effect the intent of this Agreement and of the New
Notes all as fully and effectively as Debtor might or could do; and Debtor
hereby ratifies all that said attorney shall lawfully do or cause to be done by
virtue hereof. This power of attorney shall be irrevocable for the term of this
Agreement and thereafter as long as any of the Obligations shall be
outstanding. Transtar agrees to the appointment of M Ahuja as such
attorney-in-fact and authorizes M Ahuja to act on Transtar's behalf with
respect to the actions outlined in this Section 12.
13. Notices.
Any notice required hereunder shall be deemed duly given if deposited
in the mails, postage prepaid and sent by certified mail, addressed to a party
at the address set forth below or at such other address as such party shall
have specified by notice given in the same manner.
14. Events of Default.
For purposes of this Agreement, "Event of Default" shall mean an
Event of Default as defined in the New Notes.
15. Miscellaneous.
(a) Beyond the safe custody thereof, the Secured Parties shall
have no duty as to the collection of any Collateral in their possession or
control or in the possession or control of any agent or nominee of the Secured
Parties, or any income thereon or as to the preservation of rights against
prior parties or any other right pertaining thereto.
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(b) No course of dealing between Debtor and the Secured Parties, nor
any failure to exercise, nor any delay in exercising, on the part of the Secured
Parties, any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege.
(c) All of the Secured Parties' rights and remedies with respect to
the Collateral, whether established hereby or by any other agreements,
instruments or documents or by law shall be cumulative and may be exercised
singly or concurrently.
(d) The provisions of this Agreement are severable, and if any
clause or provision shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
(e) This Agreement is subject to modification only by a writing
signed by the parties.
(f) The benefits and burdens of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties; provided, however, that the rights and obligations of Debtor under
this Agreement shall not be assigned or delegated without the prior written
consent of the Secured Parties, and any purported assignment or delegation
without such consent shall be void.
(g) This Agreement shall be governed by and construed in accordance
with the laws of the state of Colorado.
16. Term of Agreement.
The term of this Agreement shall commence on the date hereof and this
Agreement shall continue in full force and effect, and be binding upon Debtor,
until all of the Obligations have been fully paid and performed and such
payment and performance has been acknowledged in writing by the Secured
Parties, whereupon this Agreement shall terminate.
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WITNESS the execution hereof under seal as of the day and year first above
written.
GRAFIX CORPORATION
By:__________________________
Xxxx Xxxxxxxx
President
XXXXX XXXXX
___________________________
TRANSTAR INDUSTRIES, INC.
By:___________________________
Xxxxx Xxxxx
___________________
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SCHEDULE I
List of Collateral
All accounts receivable and inventory of Debtor, including, without
limitation, all goods, merchandise, and other personal property now owned or
hereafter acquired by the Debtor that are held for sale or lease, or are
furnished or to be furnished under any contract of service or are raw
materials, work in process, supplies or materials used or consumed in the
Debtor's business and all accounts, and all products thereof, and
substitutions, replacements, additions, accessions thereto or proceeds thereof
and proceeds of insurance thereon.
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SCHEDULE II
TO
SECURITY AGREEMENT
Chief Place of Business of Debtor:
Offices Where Records are Kept:
Other Locations Where Collateral is Stored, Used or Located:
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EXHIBIT D
PLEDGE AGREEMENT
THIS AGREEMENT, made as of the 11th day of February, 1999 by and between
Golf Acquisition Group, LLC, a Colorado limited liability company ("Pledgor"),
Xxxxx Xxxxx ("M Ahuja") and Transtar Industries, Inc., an Ohio corporation
("Transtar" and together with M Ahuja, "Pledgees").
RECITALS
1. Simultaneously herewith Grafix Corporation, a Delaware corporation
("CRRA") has issued two promissory notes dated February 11, 1999, one to M
Ahuja in the principal amount of $545,000 (the "New Ahuja Note") and one to
Transtar in the principal amount of $105,000 (the "New Transtar Note" and
together with the New Ahuja Note, the "New Notes") (the obligations under the
New Notes hereinafter referred to as the "Obligations");
2. The New Notes have been issued by CRRA to Pledgees as partial
consideration for the cancellation and delivery by Pledgees of certain
outstanding indebtedness of CRRA payable to Pledgees; and
3. The Pledgor has agreed to secure the performance by CRRA of all
Obligations with all of Pledgor's right, title and interest in the Pledged
Stock, as hereinafter defined.
NOW THEREFORE, in consideration of the premises and the mutual promises
hereinafter contained and other good and valuable consideration, the parties
hereby agree as follows:
1. Pledge.
As collateral security for the due payment and performance of the
Obligations, the Pledgor does hereby pledge, assign, hypothecate, deliver and
set over to Pledgees and hereby deposits with M Ahuja, to hold for himself and
Transtar, a certificate for the securities listed on the attached Exhibit 1
(the "Pledged Stock") and hereby grants to Pledgees a security interest in the
Pledged Stock and in the proceeds thereof. The certificate is to be held by M
Ahuja in accordance with the terms and provisions of this Agreement. M Ahuja
does hereby acknowledge receipt of said certificate for the purpose of securing
the Obligations. Transtar agrees to allow M Ahuja to hold such certificate for
himself and on behalf of Transtar pursuant to the terms of this Agreement for
the purpose of securing the Obligations.
2. Absence of Liens.
The security delivered by the Pledgor under this Agreement is free of
any lien, restriction or other encumbrance and is in proper form for transfer
and accompanied by stock transfer powers duly executed in blank.
3. Right to Vote.
At all times during the terms of this Agreement, Pledgor shall have
the right to vote upon, or to give any consent in respect of, the Pledged Stock
for all purposes.
4. Right to Receive Dividends.
At all times during the term of this Agreement, Pledgees shall be
entitled to receive and hold all dividends and distributions on the Pledged
Stock as collateral security for the due payment and performance of the
Obligations. Pledgor hereby authorizes and directs CRRA to pay such dividends
and distributions to the Pledgees.
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5. Remedies in Default.
Upon the occurrence of an Event of Default, M Ahuja, for himself
and on behalf of Transtar, (a) shall give written notice signed by M Ahuja to
the Pledgor of the default, and (b) shall have and shall exercise, in respect to
the Pledged Stock, all the rights of, and remedies available to, a secured party
under Article 9 of the Colorado Uniform Commercial Code (as from time to time
amended) and any other applicable laws, including, without limitation, the right
to sell, convert into money, and apply as specified in Section 6 hereof, the
Pledged Stock. Transtar agrees that M Ahuja shall have the sole right to
exercise the rights listed in this Section 5 for himself and on Transtar's
behalf and apply any proceeds as specified in Section 6 hereof. At any sale the
Pledgees may purchase all or any part of the Pledged Stock.
6. Application of Proceeds.
The proceeds received by the Pledgees from any sale or other
disposition of the Pledged Stock pursuant hereto shall be applied as follows:
(a) First, to the payment of all advances, costs and expenses,
incurred in connection with (i) any such sale or
disposition, (ii) the enforcement of the provisions hereof,
and (iii) the collection of any of the Obligations;
(b) Second, to the payment of the Obligations. Pledgor and the
Pledgees agree that, as to any proceeds received by the
Pledgees from any sale or other disposition of the Pledged
Stock, the rights of each of the Pledgees to such proceeds
to satisfy the Obligations shall be determined as follows:
(i) M Ahuja shall be entitled to the amount of such proceeds
equal to (a) the total amount of such proceeds multiplied by
(b) a fraction, the numerator of which is the total
principal and accrued interest outstanding under the New
Ahuja Note at such time as the proceeds are realized and the
denominator of which is the total principal and accrued
interest outstanding under the New Notes at such time as the
proceeds are realized; and (ii) Transtar shall be entitled
to the amount of such proceeds equal to (a) the total amount
of such proceeds multiplied by (b) a fraction, the numerator
of which is the total amount of such proceeds multiplied by
(b) a fraction, the numerator of which is the total
principal and accrued interest outstanding under the New
Transtar Note at such time as the proceeds are realized and
the denominator of which is the total principal and accrued
interest outstanding under the New Notes at such time as the
proceeds are realized;
(c) Third, to the payment of any other amounts required by
applicable law, including without limitation, Section
9-504(1)(c) of the Uniform Commercial Code of the State of
Colorado; and
(d) Fourth, to the Pledgor, to the extent of the surplus
proceeds, if any.
7. Termination of this Agreement.
Unless otherwise sold or converted pursuant to the terms of
Sections 5 and 6 above, when all Obligations have been paid in full, this
Agreement shall cease and terminate, and the Pledged Stock shall automatically
revert to the Pledgor and the estate, rights, title and interests of Pledgees
therein shall cease, determine and become void. Thereupon, on the Pledgor's
demand and at his cost and expense, Pledgees shall execute proper instruments,
acknowledging satisfaction of an discharging this Agreement, and shall redeliver
to the Pledgor the Pledged Stock.
8. Amendments.
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Amendments of this Agreement may be made, or compliance with any
warranty, covenant, or condition herein set forth may be omitted or waived only
by a written instrument duly executed by the Pledgor and Pledgees.
9. Pledgor Representations and Warranties.
The Pledgor represents and warrants:
(a) That it has the power to execute, deliver and perform this
Agreement, and has taken all necessary action to authorize the execution,
delivery and performance hereof;
(b) That no consent or approval of any person and no consent,
license, approval, authorization or declaration of any governmental authority,
bureau or agency, is or will be required in connection with the execution,
delivery, performance, validity or enforcement of this Agreement; and
(c) That the execution and delivery of this Agreement and
performance hereunder will not violate any provision of law and will not
conflict with or result in a breach of any order, writ, injunction, ordinance,
resolution, decree, or other similar document or instrument of any court or
governmental authority, bureau or agency, or create (with or without the giving
of notice or lapse of time, or both) a default under or breach of any
agreement, bond, note or indenture to which the Pledgor is a party or by which
he is bound or any of his properties or assets is affected, or result in the
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets owned by the Pledgor, except as created hereunder.
10. Notices.
All notices, requests, reports and other communications pursuant to
this Agreement shall be in writing (delivered by hand or sent by certified
mail, return receipt requested, except for routine reports which shall be by
ordinary first-class mail) addressed to the parties hereto at the addresses set
forth below. Any notice, request or communication hereunder shall be deemed to
have been given on the day on which it is delivered by hand to such party at
the address specified below, or, if sent by mail, on the third business day
after the day deposited in the mail, postage prepaid. Any party may change the
person or address to whom or which notices are to be given hereunder, by notice
duly given hereunder.
11. Further Assurances.
The Pledgor will promptly make, execute and deliver all such
instruments and will take all such action as Pledgees may reasonably request
for the better assuring to Pledgees of the obligations, rights and security
hereby pledged or intended so to be.
12. Events of Default.
For purposes of this Agreement "Event of Default" shall mean an Event
of Default as defined in the New Notes.
13. Effective Date.
All of the terms and provisions of this Agreement shall become
effective as of the date first above written and shall bind and inure to the
benefit of the signatories and their respective successors and assigns.
14. Choice of Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado. Any provision of this Agreement which is in
conflict with the laws of the State of Colorado shall be null and void without
affecting the remaining provisions of this Agreement, which shall be in full
force and effect.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered the day and year first above written.
PLEDGOR:
GOLF ACQUISITION GROUP, LLC
By:
-------------------------------------
Name:
Title:
PLEDGEES:
XXXXX XXXXX
-----------------------------------------
TRANSTAR INDUSTRIES, INC.
By:
-------------------------------------
Name: Xxxxx Xxxxx
Title:
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EXHIBIT 1
1,000,000 shares of the common stock of Grafix Corporation, a Delaware
corporation
D-5
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EXHIBIT E
FORM OF OPINION OF GAG'S COUNSEL
The opinion of counsel will provide the following opinions:
(1) GAG is a limited liability company duly organized, validly existing
and in good standing under the laws of Colorado; has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now conducted; and is duly qualified as a foreign corporation in each state
in which such qualification is required, except where failure to be so
qualified would not have a material adverse effect on the business or financial
condition of GAG.
(2) GAG has the full power, capacity and authority to execute and deliver
and to perform its obligations under the Agreement and the Pledge Agreement
(the "Agreements"). The Agreements have been duly executed and delivered by
GAG, and, assuming the valid authorization and execution of the Agreements by
the parties thereto, constitute the valid and binding obligations of GAG,
enforceable in accordance with its terms, except (i) as enforceability may be
affected by bankruptcy, insolvency, reorganization, arrangement, moratorium or
similar laws affecting the rights of creditors generally; (ii) as enforceability
may be affected by the exercise of judicial discretion in accordance with
general principles of equity (whether applied by a court of law or of equity);
(iii) as enforceability may be affected by the covenant of good faith and fair
dealing implied in every contract; (iv) as enforceability may be affected by
a court refusing to enforce or limiting application of a contract or any clause
of a contract that the court finds to be unreasonable under the circumstances
existing at the time the contract was made; and (v) no opinion is expressed as
to the availability of any specific legal or equitable remedy.
(3) The execution, delivery and performance of the Agreements, and the
transactions provided for therein, have been duly and validly authorized by all
necessary actions of GAG, and no other actions on the part of GAG or its
managers or members except as set forth in the Agreements, are required.
(4) To the best of his knowledge, neither the execution and delivery of
the Agreements, nor the consummation of the transactions contemplated thereby
will: (i) conflict with any provisions of the Articles of Organization or
Operating Agreement of GAG; (ii) require any consent, approval, authorization,
or permit of, or filing with or notification to, any governmental or regulatory
authority which has not been obtained; (iii) result in a default (or give rise
to any penalty, right of termination, cancellation or acceleration) under any
of the terms, conditions or provisions of any note, lease, mortgage, license,
agreement or instrument or obligation to which GAG is a party or by which GAG
may be bound or to which any of the assets of GAG may be subject; or, (iv)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to GAG.
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XXXXXXX X
FORM OF OPINION OF CRRA'S COUNSEL
The opinion of counsel will provide the following:
(1) CRRA is a corporation duly organized, validly existing under the
laws of the State of Delaware; has all requisite power and authority to own,
lease and operate its properties and to carry on its business as now conducted;
and is duly qualified as a foreign corporation in each state in which such
qualification is required, except where failure to be so qualified would not
have a material adverse effect on the business or financial condition of CRRA.
(2) Immediately prior to the consummation of the Transaction, there
were 6,825,113 shares of CRRA common stock, and -0- shares of CRRA preferred
stock, issued and outstanding as of the date of this opinion. The shares of
CRRA common stock outstanding are duly authorized and validly issued, fully
paid and non-assessable. The outstanding shares of CRRA common stock are owned
beneficially and of record and are not owned or held in violation of any
statutory preemptive right or, to the best of his knowledge, any contractual or
similar preemptive right. All of the 10,000,000 New CRRA Shares issuable
pursuant to the Transaction in accordance with the Agreement will be when so
issued duly authorized, validly issued, fully paid and not assessable and owned
beneficially and of record by M Ahuja, prior to the transfer to GAG, and not
owned or held in violation of any statutory preemptive right or, to the best of
his knowledge, any contractual or similar preemptive right.
(3) CRRA has the full corporate power, capacity and authority to
execute and deliver and to perform its obligations under the Agreement and the
Security Agreement (the "Agreement"). The Agreements have been duly executed
and delivered by CRRA, and, assuming the valid authorization and execution of
the Agreements by the parties thereto, constitute the valid and binding
obligations of CRRA, enforceable in accordance with its terms, except (i) as
enforceability may be affected by bankruptcy, insolvency, reorganization,
arrangement, moratorium or similar laws affecting the rights of creditors
generally; (ii) as enforceability may be affected by the exercise of judicial
discretion in accordance with general principles of equity (whether applied by
a court of law or of equity); (iii) as enforceability may be affected by the
covenant of good faith and fair dealing implied in every contract; (iv) as
enforceability may be affected by a court refusing to enforce or limiting
application of a contract or any clause of a contract that the court finds to
be unreasonable under the circumstances existing at the time the contract was
made; and (v) no opinion is expressed as to the availability of any specific
legal or equitable remedy.
(4) The execution, delivery and performance of the Agreements, and the
transactions provided for therein, have been duly and validly authorized by all
necessary corporate actions of CRRA, and no other corporate actions on the part
of CRRA or its directors or shareholders, except as set forth in the
Agreements, are required.
(5) To the best of his knowledge and except as specifically disclosed in
the Schedule A - CRRA Disclosure Schedule to the Agreement: (i) there are no
actions, suits, investigations or proceedings by or against CRRA; and (ii)
there are no claims, actions, suits, investigations or proceedings pending or
threatened by or against CRRA, at law or in equity, or before any Federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality in which any claim has been made or asserted against
CRRA, the business or assets of CRRA, or the issued and outstanding shares of
CRRA common stock.
(6) To the best of his knowledge, neither the execution and delivery of
the Agreements, nor the consummation of the transactions contemplated thereby
will: (i) conflict with any provisions of the Certificate of Incorporation or
Bylaws of CRRA; (ii) require any consent, approval, authorization, or permit
of, or filing with or notification to, any governmental or regulatory authority
which has not been obtained, except for the filing of a Form 8-K with the SEC
by CRRA following the closing; (iii) result in a default (or give rise to any
penalty, right of termination, cancellation or acceleration) under any of the
terms, conditions or provisions of any note, lease, mortgage, license,
agreement or instrument or obligation to which CRRA is a party or by which CRRA
may be bound or to which any of the assets of CRRA may be subject; or, (iv)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to CRRA.
F-1
40
(7) The CRRA Notes referenced in the Agreement were duly and validly
authorized and executed by CRRA, and constitute valid and binding obligations
of CRRA. The New CRRA Notes issuable pursuant to the Transaction in accordance
with the Agreement will be, when so issued, duly and validly authorized and
executed by CRRA and will constitute valid and binding obligations of CRRA.
F-2
41
SCHEDULE B
CRRA DISCLOSURE SCHEDULE
Section Number Disclosure(s)
5.9 Karani, et al. v. Grafix Time Corporation, et al, Cuyahoga
County Court of Common Pleas, Cleveland, Ohio,
Case No. 97344765-CV;
Xxxxxx v. Grafix Time Corporation, Xxxxxx Xxxxx xx Xxx #0,
Xxxxxxx Xxxxxx, Xxxxx, Case No 805064600002.
1
