EXHIBIT 10.27
LOAN TERMINATION AGREEMENT
THIS LOAN TERMINATION AGREEMENT (this "Agreement") is effective as of March
10, 1999, by and among Callaway Golf Company, a California corporation
("Callaway Golf"), and Callaway Golf Media Ventures, LLC, a California limited
liability company ("CGMV"). Callaway Golf and CGMV are sometimes collectively
referred to herein as the "Parties" and individually as a "Party." Capitalized
terms used herein and not otherwise defined herein have the meaning given to
such terms in Section 6 below.
RECITALS
X. Xxxxxxxx Editions, Inc. ("Editions"), a Delaware corporation, and
Callaway Golf are members of CGMV and have entered into an Operating Agreement
for CGMV, dated January 26, 1998 (the "Operating Agreement"). Callaway Golf
owns an 80% membership interest in CGMV and Editions owns a 20% membership
interest in CGMV. Xxxxxxxx Xxxxxxxx ("Xxxxxxxx"), an individual, is the
principal shareholder of Editions.
B. On January 26, 1998, CGMV and Callaway Golf entered into a Loan and
Security Agreement for up to Twenty Million Dollars ($20,000,000.00) (the "Loan
Agreement"), evidencing a loan from Callaway Golf to CGMV. As of March 8, 1999,
there was outstanding under the CGMV Loan the principal amount plus accrued
interest of approximately Two Million One Hundred Forty-Eight Thousand Seven
Hundred Sixty-Four Dollars and Thirty-Nine Cents ($2,148,764.39) ("Existing
Balance"). Callaway Golf and CGMV have previously entered into a Loan
Forgiveness Agreement effective March 8, 1999 (the "Loan Forgiveness Agreement")
which forgave the Existing Balance.
C. CGMV and Callaway Golf desire to terminate the Loan Agreement such that
Callaway Golf shall have no further obligation to loan funds to CGMV pursuant to
the terms of the Loan Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
understandings herein contained, as well as for other good and valuable
consideration, acknowledged by each of them to be satisfactory and adequate, the
Parties hereby agree as follows:
1. Transaction.
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1.1 Termination of the Loan Agreement. Callaway Golf has delivered to
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CGMV, by wire transfer, One Million Dollars ($1,000,000) as consideration for
termination of the Loan Agreement (the "Liquidation Payment"). The Loan
Agreement is hereby terminated and of no further effect.
2. Deliveries.
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2.1 Deliveries by Callaway Golf. Callaway Golf has delivered the
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following to Buyer:
2.1.1 Resolutions of Callaway Golf. Certified copies of the
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resolutions duly adopted by Callaway Golf's board of directors authorizing the
execution, delivery and performance of this Agreement.
2.1.2 Liquidation Payment. The Liquidation Payment in the manner
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and amount set forth in Section 1.1.
2.2 Deliveries by CGMV. CGMV has delivered the following to Callaway
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Golf:
2.2.1 Resolutions. Certified copies of the resolutions duly
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adopted by CGMV authorizing the execution, delivery and performance of this
Agreement.
3. Representations and Warranties of Callaway Golf. As a material
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inducement to CGMV to enter into this Agreement, Callaway Golf hereby represents
and warrants to CGMV as follows:
3.1 Organization. Callaway Golf is a corporation duly organized,
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validly existing and in good standing under the laws of California and is
qualified to do business in every jurisdiction in which its ownership of
property or conduct of its business requires it to qualify as foreign
corporation. Callaway Golf has all necessary corporate powers and corporate
authority to carry on its business as now conducted presently and presently
proposed to be conducted and to execute, deliver and perform this Agreement and
any related agreements to which it is a party.
3.2 Authorization; No Breach. The execution, delivery and performance
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of this Agreement has been duly authorized, executed and delivered by Callaway
Golf. This Agreement constitutes a valid and binding obligation of Callaway
Golf, enforceable in accordance with its terms. The execution and delivery by
Callaway Golf of this Agreement and the fulfillment of and compliance with the
respective terms hereof and thereof by Callaway Golf do not and shall not (i)
conflict with or result in a breach of the terms, conditions or provisions of,
(ii) constitute a default under (whether with or without the passage of time,
the giving of notice or both), (iii) give any Person the right to modify,
terminate or accelerate any obligation under, (iv) result in a violation of, or
(v) require any authorization, consent, approval, exemption or other action by
or notice or declaration to, or filing with, any Person or any court or
administrative or governmental body or agency pursuant to, the organizational
documents of Callaway Golf, or any material law, statute, rule or regulation to
which Callaway Golf is subject, or any agreement, instrument, order, judgment or
decree to which Callaway Golf is subject.
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4. Representations and Warranties of CGMV. As a material inducement to
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Callaway Golf to enter into this Agreement and take the actions set forth in
Section 1, CGMV hereby represents and warrants to Callaway Golf as follows:
4.1 Organization, Power and Authority. CGMV is a duly organized,
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validly existing and in good standing under the laws of its jurisdiction of
organization. CGMV possess all requisite power and authority necessary to carry
out the transactions contemplated by this Agreement.
4.2 Authorization; No Breach. The execution, delivery and performance
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of this Agreement has been duly authorized by CGMV. This Agreement constitutes
valid and binding obligations of CGMV, enforceable in accordance with its terms.
The execution and delivery by CGMV of this Agreement and the fulfillment of and
compliance with the respective terms hereof and thereof by CGMV do not and shall
not (i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under (whether with or without the
passage of time, the giving of notice or both), (iii) give any third party the
right to modify, terminate or accelerate any obligation under, (iv) result in a
violation of, or (v) require any authorization, consent, approval, exemption or
other action by or notice or declaration to, or filing with, any court or
administrative or governmental body or agency pursuant to, the organizational
documents of CGMV, or any material law, statute, rule or regulation to which
CGMV is subject, or any material agreement, instrument, order, judgment or
decree to which CGMV is subject.
5. Post-Closing Covenants.
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5.1 No Contracting. CGMV shall not at any time after the execution of
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this Agreement enter into any contract, agreement or lease on behalf of Callaway
Golf or represent that it has authority to act on behalf of Callaway Golf. CGMV
acknowledges it has no right to enter any contract, agreement or lease on behalf
of Callaway Golf or represent that it has authority to act on behalf of Callaway
Golf.
5.2 Further Assurances. If at any time after the execution of this
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Agreement any further action is necessary or desirable to carry out the purposes
of this Agreement or the transactions contemplated hereby, each of the Parties
will take such further action (including the execution and delivery of such
further instruments and documents) as any other Party may reasonably request,
all at the sole cost and expense of the requesting Party.
6. Definitions. For the purposes of this Agreement, the following terms
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have the meanings set forth below:
"Person" means an individual, a partnership, a corporation, a limited
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liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
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7. Miscellaneous.
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7.1 Fees and Expenses. Each Party shall pay all of its own fees and
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expenses (including fees and expenses of legal counsel, accountants, investment
bankers and other representatives and consultants) in connection with this
Agreement and the consummation of the transactions contemplated hereby. Callaway
Golf acknowledges that it shall not seek reimbursement from CGMV for the fees
and expenses incurred by Callaway Golf in the negotiation and preparation of
this Agreement. If any legal action or other proceeding relating to this
Agreement, the agreements contemplated hereby, the transactions contemplated
hereby or thereby or the enforcement of any provision of this Agreement or the
agreements contemplated hereby is brought against any Party, the prevailing
Party in such action or proceeding shall be entitled to recover all reasonable
expenses relating thereto (including attorneys' fees and expenses) from the
Party against which such action or proceeding is brought in addition to any
other relief to which such prevailing Party may be entitled.
7.2 Special Remedies and Enforcement. Each Party recognizes and
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agrees that a breach by one of the Parties ("Breaching Party"), of any of the
covenants set forth in this Agreement could cause irreparable harm to the other
Parties, that the Parties' remedies at law in the event of such breach would be
inadequate, and that, accordingly, in the event of any such breach a restraining
order or injunction or both may be issued against the Breaching Party in
addition to any other rights and remedies which are available to the Parties. If
this Section 7.2 is more restrictive than permitted by applicable law, this
Section 7.2 shall be limited to the extent required by such law.
7.3 Entire Agreement. Modifications. This Agreement, together with
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exhibits and schedules attached hereto, contains the entire agreement between
the parties hereto with respect to the transactions contemplated hereby, and
contains all of the terms and conditions thereof and supersedes all prior
agreements and understandings relating to the subject matter hereof. No changes
or modifications of or additions to this Agreement shall be valid unless the
same shall be in writing and signed by each party hereto.
7.4 Waivers. No waiver of any of the provisions of this Agreement
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shall be deemed to be or shall constitute a waiver of any other provision of
this Agreement, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver of any provision of this Agreement shall be binding
on the parties hereto unless it is executed in writing by the party making the
waiver.
7.5 Successors and Assigns.
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7.5.1 This Agreement and all covenants and agreements contained
herein and rights, interests or obligations hereunder, by or on behalf of any of
the Parties hereto, shall bind and inure to the benefit of the respective
successors and assigns of the Parties hereto whether so expressed or not.
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7.5.2 No Party may assign their rights or obligations under this
document. Any attempted assignment in violation of this Agreement shall be void
and of no effect.
7.6 Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement or the application of any
such provision to any Person or circumstance shall be held to be prohibited by,
illegal or unenforceable under applicable law in any respect by a court of
competent jurisdiction, such provision shall be ineffective only to the extent
of such prohibition or illegality or unenforceability, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
7.7 Counterparts. This Agreement may be executed simultaneously in
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counterparts (including by means of telecopied signature pages), any one of
which need not contain the signatures of more than one Party, but all such
counterparts taken together shall constitute one and the same Agreement.
7.8 Descriptive Heading; Interpretation. The headings and captions
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used in this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. The use of the word
"including" herein shall mean "including without limitation." The Parties
intend that each representation, warranty and covenant contained herein shall
have independent significance. If any Party has breached any representation,
warranty or covenant contained herein in any respect, the fact that there exists
another representation, warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the Party has not
breached shall not detract from or mitigate the fact that the Party is in breach
of the first representation, warranty or covenant.
7.9 No Third-Party Beneficiaries. This Agreement is for the sole
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benefit of the Parties and their permitted successors and assigns and nothing
herein expressed or implied shall give or be construed to give any Person, other
than the Parties and such permitted successors and assigns, any legal or
equitable rights hereunder.
7.10 Cooperation on Tax Matters. The Parties shall cooperate fully,
as and to the extent reasonably requested by each Party and at the requesting
Party's expense, in connection with any audit, litigation or other proceeding
with respect to Taxes. Such cooperation shall include the retention and (upon
any Party's request) the provision of records and information which are
reasonably relevant to any such audit, litigation or other proceeding and making
employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder. The Parties
agree (i) to retain all books and records with respect to Tax matters pertinent
to CGMV relating to any taxable period beginning before the effective date of
this Agreement until the expiration of the statute of limitations (and, to the
extent notified by any Party, any extensions thereof) applicable to such taxable
periods, and to abide by all record retention agreements entered into with any
taxing authority, and (ii) to give each Party reasonable written notice prior to
transferring, destroying or discarding any such books and records and, if any
Party
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so requests, the other party as the case may be, shall allow such party to
take possession of such books and records.
7.11 Governing Law. This Agreement is made and shall be governed by,
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and construed and enforced in accordance with, the internal laws of the State of
California, without regard to the conflict of laws principles thereof, as the
same apply to agreements executed solely by residents of California and wholly
to be performed within California.
7.12 Authority. Each of the persons executing this Agreement
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represents and warrants that it is authorized to execute this Agreement and the
entity on whose behalf they are signing is bound by the terms hereof.
7.13 Notices. All notices, demands or other communications to be
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given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, one day after being sent to the recipient by reputable
overnight courier service (charges prepaid), upon machine-generated
acknowledgment of receipt after transmittal by facsimile or five (5) days after
being mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications
shall be sent to the Parties at the addresses indicated below or to such other
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party.
To Callaway Golf: Callaway Golf Company
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxx, Executive Vice President,
Administration and Planning, and Chief Financial
Officer
With a copy to: Callaway Golf Company
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. XxXxxxxxx, Executive Vice President,
Licensing, Chief Legal Officer and Secretary
To CGMV: Callaway Editions, Inc.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxxx, President, and Editor-in-Chief
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With a Copy to: Xxxxx X. Xxxxxx, Esq.
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
7.14 No Strict Construction. The Parties have participated jointly
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in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties, and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of the authorship of any
of the provisions of this Agreement.
7.15 Incorporation of Recitals. The Recitals to this Agreement are
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incorporated herein by this referenced with the same force and effect as if set
forth in full herein.
7.16 Brokers. No broker, finder, or investment banker is entitled to
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any brokerage, finder's, or other fee or commission in connection with the
transactions hereunder based upon arrangements made by or on behalf of any party
to this Agreement .
7.17 No Public Announcement. Except as otherwise required by law, no
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party to this Agreement shall make or cause to be made any public announcement
or press release with respect to the terms of this Agreement or the transactions
contemplated hereby without the prior written approval of the other party
hereto, which consent shall not be unreasonably withheld or delayed.
7.18 Good Faith. All parties hereto agree to carry out the terms of
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this Agreement and to act in good faith with respect to the terms and conditions
contained herein before and after the execution hereof.
7.19 Time is of the Essence. Time is of the essence in this
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Agreement, and all of the terms, covenants and conditions hereof.
7.20 Venue; Submission to Jurisdiction. Each of the Parties submits
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to the jurisdiction of any state or federal court sitting in San Diego County,
California, in any action or proceeding arising out of or relating to this
Agreement, agrees that all claims in respect of the action or proceeding may be
heard and determined in any such court, and agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other court. Each
of the Parties waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety, or other
security that might be required of any other Party with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Loan Termination
Agreement to be effective on March 10, 1999.
CGMV: CALLAWAY GOLF:
CALLAWAY GOLF MEDIA VENTURES, LLC, a CALLAWAY GOLF COMPANY, a California
California limited liability company corporation
By: CALLAWAY EDITIONS, INC., a Delaware
corporation, Member
/s/ Xxxxxxxx Xxxxxxxx /s/ Xxxxx X. Xxxx
By:________________________________ By: ________________________________
Xxxxxxxx Xxxxxxxx, President, and Xxxxx X. Xxxx, Executive Vice President,
Editor-in-Chief Administration and Planning, and Chief
Financial Officer
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