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EXHIBIT 10.3
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Obligator File Name Options Obligation Number Officer # AutoLift
$ Amount
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Chicago Illinois
Dated as of December 30, 1996
Term Note
(Single Principal Payment)
(Corporation, Partnership, or Joint Venture)
This Note has been executed by THE ARNOLD PALMER GOLF COMPANY a corporation
formed under the laws of the State of Tennessee ("Borrower"); if more than one
entity executes this Note, the term "Borrower" refers to each of them
individually and some or all of them collectively, and their obligations
hereunder shall be joint and several.* If a land trustee executes this Note,
"Borrower" as used in sections 6 and 7 below also includes any beneficiary(ies)
of the land trust.
FOR VALUE RECEIVED, Borrower promises to pay to the order of THE NORTHERN TRUST
COMPANY, an Illinois banking corporation (hereafter, together with any
subsequent holder hereof, called "Lender"), at its main banking office at 50
South LaSalle Street, Chicago, Illinois 60675, or at such other place as Lender
may direct, the principal sum of Twelve Million and no/100 United States
Dollars ($12,000,000) (the "Loan"), payable in full on December 31, 1999, the
scheduled maturity date of this Note.
1. INTEREST
Borrower agrees to pay interest on the unpaid principal amount from time
to time outstanding hereunder at the indicated rate (rate basis) per year, which
shall remain the same for the life of the Loan:
[CHECK ONE ONLY]
/ / (i) The "Prime-Based Rate", which shall mean the Prime Rate (as defined
below) plus ______ percent (_____%).
/ / (ii) The "WSJ Prime Rate", meaning the Wall Street Journal Prime Rate
plus ________ percent (______%). "Wall Street Journal Prime Rate" means
the highest domestic Prime Rate as reported in the Money Rate Section of
The Wall Street Journal, in the edition covering the state where the
main banking office of Lender is located. If The Wall Street Journal
stops reporting the "Wall Street Journal Prime Rate", or if the "Wall
Street Journal Prime Rate" is not available on the relevant day, Lender
will select a comparable index as a substitute for the Wall Street
Journal Prime Rate and will notify Borrower. Changes in the interest
rate resulting from a change in the Wall Street Journal Prime Rate shall
take effect on the date announced in The Wall Street Journal.
/X/ (iii) The "Fixed Rate", meaning a rate of interest equal to * percent
(8 1/4%).
*eight and one-quarter.
"Prime Rate" means that rate of interest announced from time to time by Lender
called its prime rate, which rate may not at any time be the lowest rate charged
by Lender. Changes in the rate of interest on the Loan resulting from a change
in the Prime Rate shall take effect on the date set forth in each announcement
of a change in the Prime Rate.
After the maturity of the Loan, whether by acceleration or otherwise,
the Loan shall bear interest until paid, at a rate to two percent (2%) in
addition to the rate in effect immediately prior to maturity (but not less than
the Prime Rate in effect at maturity).
Notwithstanding the foregoing, the maximum interest rate hereunder will
not exceed N/A% per year.**
Interest shall be computed for the actual number of days elapsed on the
basis of a year consisting of 360 days, including the date the Loan is made and
excluding the date the Loan, or any portion thereof is paid or prepaid.
Interest shall be due and payable as follows:
/X/ Monthly on the last day of each month, beginning January 31, 1997, with
all accrued but unpaid interest being due and payable in full with the
final principal payment due hereunder.
/ / Quarterly, on the ______ day of each _____________, ________________,
_____, and ________________________________ in each year, beginning
_____________________________________________, with all accrued but
unpaid interest being due and payable in full with the final principal
payment due hereunder.
/ / Other: ____________________________________________________________.
After maturity interest shall be payable on demand.
2. PREPAYMENTS.
If the Loan bears interest at the Prime-Based Rate or the WSJ Prime
Rate, Borrower may prepay the Loan without penalty or premium. If the Loan
bears interest at the Fixed Rate, and Borrower prepays the Loan in whole or in
part, or the maturity of the Loan is accelerated, then, to the fullest extent
permitted by law Borrower shall also pay Lender for all losses (including but
not limited to interest rate margin and any other losses of anticipated
profits) and expenses incurred by reason of the liquidation or re-employment of
deposits acquired by Lender to make the Loan or maintain principal outstanding
at the Fixed Rate. Upon Lender's demand in writing specifying such losses and
expenses, Borrower shall promptly pay them; Lender's specification shall be
deemed correct in the absence of manifest error. If bearing interest at the
Fixed Rate, the Loan shall be conclusively deemed to have been funded by or on
behalf of Lender by the purchase of a deposit corresponding in amount and in
maturity to the Loan. ***
3. REFERENCES TO PREVIOUS NOTES, FACILITY TYPE, COLLATERAL, GUARANTIES,
LOAN & OTHER AGREEMENTS. (CHECK AS APPLICABLE)
/ / This Note evidences a transaction or term loan in the amount of this
Note.
/X/ This Note amends, restates, renews and replaces in its entirety the
note(s) dated July 14, 1996 in the amount of $15,000,000, and any previously
renewed note(s). Borrower hereby expressly confirms that all collateral and
guaranties given for such prior note(s) shall secure or guarantee this Note.
All amounts outstanding under such previous note(s) shall be deemed
automatically outstanding hereunder.
/ / This Note is secured without limitation as provided in the following
and all related documents, in each case as amended, modified, renewed, restated
or replaced from time to time:
/ / Security Agreement dated as of ____________________________.
/ / Mortgage dated as of _______________________________________
on property all or part of which is commonly known as
____________________________________________________________
____________________________________________________________.
/ / Pledge Agreement dated as of _______________________________.
/ / Other (describe) ___________________________________________
____________________________________________________________.
/X/ Payment of this Note has been unconditionally guaranteed by See Rider A
attached hereto and incorporated herein.
(each individually and all collectively referred to as "guarantor") as provided
in separately executed guaranties.
/ / This Note has been executed pursuant to a _____________________________
________________________ Agreement, dated as of the date hereof, as amended,
modified, restated, renewed, or replaced from time to time, containing
covenants and other terms, to which reference is hereby made.
4. USE OF PROCEEDS, CHECK ONE:
/X/ Borrower represents and warrants that the proceeds of this Note will be
used solely for business purposes, and not for personal, family
*Insert "N/A" in any blank in this Note which is not applicable. This Note may
be used for single principal payment (bullet) term loans. **Fill in if Loan is
subject to Truth-in-Lending, secured by a dwelling and at the WSJ Prime Rate
(maturity limit is 359 days, and do not use Prime-Based Rate in this case).
***Notwithstanding the above, if this Note is executed by a land trustee upon
the direction of an individual beneficiary(ies), unless the Loan is for
business purposes the Borrower shall NOT be liable for any such losses or
expenses, or any other charges for prepayment, if this Note is secured by
residential real estate and the interest rate hereon does or could exceed
eight percent (8%) per annum on a calendar-year basis.
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FORM 9611 (N 11/91)
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or household use, within the meaning of Federal Truth-in-Lending and similar
state laws and regulations.**
/ / Borrower represents that the proceeds of this Note will be used for
personal, family or household use.
If Loan process will be used to purchase or refinance the purchase of any
property describe:
N/A
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Notwithstanding any other provisions hereof, if this Note is covered by
Regulation Z of the Federal Reserve Board (Truth in Lending) or any like
disclosure requirement, this Note shall be secured by collateral referenced
herein or in any other document only if disclosed in a related disclosure
statement.
5. REPRESENTATIONS
Borrower hereby represents and warrants to Lender that:
(i) Borrower and any "Subsidiary" (as defined below) are existing and
in good standing under the laws of their state of formation,
are duly qualified, in good standing and authorized to do business in
each jurisdiction where failure to do so might have a material adverse
impact on the consolidated assets, condition or prospects of Borrower;
the execution, delivery and performance of this Note and all related
documents and instruments are within Borrower's powers and have been
authorized by all necessary corporate action;
(ii) the execution, delivery and performance of this Note and all
related documents and instruments have received any and all
necessary governmental approval, and do not and will not contravene or
conflict with any provision of law or of the charter or by-laws of
Borrower or any agreement affecting Borrower or its property; and
(iii) there has been no material adverse change in the
business, condition, properties, assets, operations or prospects of
Borrower or any guarantor since the date of the latest financial
statements provided on behalf of Borrower or any guarantor to Lender.
"Subsidiary" means any corporation, partnership, joint venture, trust,
or other legal entity of which Borrower owns directly or indirectly fifty
percent (50%) or more of the outstanding voting stock or interest, or of which
Borrower has effective control, by contract or otherwise.
6. EVENTS OF DEFAULT: The occurrence of any of the following shall
constitute an "Event of Default":
(a) failure to pay, when and as due, any principal, interest or other
amounts payable hereunder; failure to comply with or perform any agreement or
covenant of Borrower contained herein; or failure to furnish (or caused to be
furnished to) Lender when and as requested by Lender (but not more often than
once every twelve months) fully completed financial statement(s) of any
guarantor on Lender's then-standard form together with such supporting
information as Lender may reasonably request; or
(b) any default, event of default, or similar event shall occur or
continue under any other instrument, document, note, agreement, or guaranty
delivered to Lender in connection with this Note, or any such instrument,
document, note, agreement, or guaranty shall not be, or shall cease to be,
enforceable in accordance with its terms; or
(c) there shall occur any default or event of default, or any event or
condition that might become such with notice or the passage of time or both, or
any similar event, or any event that requires the prepayment of borrowed money
or the acceleration of the maturity thereof, under the terms of any evidence of
indebtedness or other agreement issued or assumed or entered into by Borrower,
any Subsidiary, or any guarantor, or under the terms of any indenture,
agreement, or instrument under which any such evidence of indebtedness or other
agreement is issued, assumed, secured, or guaranteed, and such event shall
continue beyond any applicable period of grace; or
(d) any representation, warranty, schedule, certificate, financial
statement, report, notice, or other writing furnished by or on behalf of
Borrower, any Subsidiary, or any guarantor to Lender is false or misleading in
any material respect on the date as of which the facts therein set forth are
stated or certified; or
(e) any guaranty of or pledge of collateral security for this Note
shall be repudiated or become unenforceable or incapable of performance: or
(f) Borrower or any Subsidiary shall fail to maintain their existence
in good standing in their state of formation or shall fail to be duly
qualified, in good standing and authorized to do business in each jurisdiction
where failure to do so might have a material adverse impact on the consolidated
assets, condition or prospects of Borrower; or
(g) Borrower, any Subsidiary, or any guarantor shall die, become
incompetent, dissolve, liquidate, merge, consolidate, or cease to be in
existence for any reason; or
(h) any person or entity presently not in control of Borrower, or any
guarantor, shall obtain control directly or indirectly of Borrower, or any
guarantor, whether by purchase or gift of stock or assets, by contract, or
otherwise; or
(i) any proceeding (judicial or administrative) shall be commenced
against Borrower, any Subsidiary, or any guarantor, or with respect to any
assets of Borrower, any Subsidiary, or any guarantor which shall threaten to
have a material and adverse effect on the assets, condition or prospects of
Borrower, any Subsidiary, or any guarantor; or final judgment(s) and/or
settlement(s) in an aggregate amount in excess of One Hundred Thousand and
no/100 UNITED STATES DOLLARS ($100,000) in excess of insurance for which the
insurer has confirmed coverage in writing, a copy of which writing has been
furnished to Lender, shall be entered in any suit or action commenced against
Borrower, any Subsidiary, or any guarantor; or
(j) Borrower shall grant or any person (other than Lender) shall obtain
a security interest in any collateral for this Note; Borrower or any other
person shall perfect (or attempt to perfect) such a security interest; a court
shall determine that Lender does not have a first priority security interest in
any of the collateral for this Note enforceable in accordance with the terms of
the related documents; or any notice of a federal tax lien against Borrower
shall be filed with any public recorder; or
(k) there shall be any material loss or depreciation in the value of
any collateral for this Note for any reason, or Lender shall otherwise
reasonably deem itself insecure; or, unless, expressly permitted by the related
documents, all or any part of any collateral for this Note or any direct,
indirect, legal, equitable or beneficial interest therein is assigned,
transferred or sold without Lender's prior written consent; or
(l) any bankruptcy, insolvency, reorganization, arrangement,
readjustments, liquidation, dissolution, or similar, proceeding, domestic or
foreign, is instituted by or against Borrower, any Subsidiary, or any
guarantor; or Borrower, any Subsidiary, or any guarantor shall take any steps
toward, or to authorize, such a proceeding; or
(m) Borrower, any Subsidiary, or any guarantor shall become insolvent,
generally shall fail or be unable to pay its debts as they mature, shall admit
in writing its inability to pay its debts as they mature, shall make a general
assignment for the benefit of its creditors, shall enter into any composition
or similar agreement, or shall suspend the transaction of all or a substantial
portion of its usual business.
7. DEFAULT REMEDIES
(a) Upon the occurrence and during the continuance of any Event of
Default specified in Section 6(a)-(k), Lender at its option may declare this
Note (principal, interest and other amounts) immediately due and payable
without notice or demand of any kind. Upon the occurrence of any Event of
Default specified in Section 6(l)-(m), this Note (principal, interest and other
amounts) shall be immediately and automatically due and payable without action
of any kind on the part of Lender. Upon the occurrence and during the
continuance of any Event of Default, Lender may exercise any rights and
remedies under this Note, any related document or instrument (including without
limitation any pertaining to collateral), and at law or in equity.
(b) Lender may, by written notice to Borrower, at any time and from
time to time, waive any Event of Default or "Unmatured Event of Default" (as
defined below), which shall be for such period and subject is such conditions
as shall be specified in any such notice. In the case of any such waiver,
Lender and Borrower shall be restored to their former position and rights
hereunder, any Event of Default or Unmatured Event of Default so waived shall
be deemed to be cured and not continuing, but no such waiver shall extend to or
impair any subsequent or other Event of Default or Unmatured Event of Default.
No failure to exercise, and no delay in exercising, on the part of Lender of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies of Lender herein provided are cumulative and not exclusive
of any rights or remedies provided by law. "Unmatured Event of Default" means
any event or condition which would become an Event of Default with notice or
the passage of time or both.
8. NO INTEREST OVER LEGAL RATE.
Borrower does not intend or expect to pay, nor does Lender intend or
expect to charge, accept or collect any interest which, when added to any fee
or other charge upon the principal which may legally be treated as interest,
shall be in excess of the highest lawful rate. If acceleration, prepayment or
any other charges upon the principal or any portion thereof, or any other
circumstance, result in the computation or earning of interest in excess of
the highest lawful rate, then any and all such excess is hereby waived and
shall be applied against the remaining principal balance. Without limiting the
generality of the foregoing, and notwithstanding anything to the contrary
contained herein or otherwise, no deposit of funds shall be required in
connection herewith which will, when deducted from the principal amount
outstanding hereunder, cause the rate of interest hereunder to exceed the
highest lawful rate.
9. PAYMENTS, ETC.
All payments hereunder shall be made in immediately available funds and
shall be applied first to accrued interest and then to principal; however, if
an Event of Default occurs, Lender may, in its sole discretion, and in such
order as it may choose, apply any payment to interest, principal and/or lawful
charges and expenses then accrued. Borrower shall receive immediate credit on
payments received during Lender's normal banking hours if made in cash,
immediately available funds, or by debit to available balances in an account at
Lender; otherwise payments shall be credited after clearance through normal
banking channels. Borrower authorizes Lender to charge any account of Borrower
maintained with Lender for any amounts of principal, interest, taxes, duties,
or other charges or amounts due or payable hereunder, with the amount of such
payment subject to availability of collected balances in Lender's discretion;
unless Borrower instructs otherwise, the Loan shall be credited to an
account(s) of Borrower with Lender. LENDER AT ITS OPTION MAY MAKE THE LOAN
HEREUNDER UPON TELEPHONIC INSTRUCTIONS AND IN SO DOING SHALL BE FULLY ENTITLED
TO RELY SOLELY UPON INSTRUCTIONS, INCLUDING WITHOUT
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LIMITATION INSTRUCTIONS TO MAKE TRANSFERS TO THIRD PARTIES, REASONABLY BELIEVED
BY LENDER TO HAVE BEEN GIVEN BY AN AUTHORIZED PERSON, WITHOUT INDEPENDENT
INQUIRY OF ANY TYPE. All payments shall be made without deduction for or on
account of any present or future taxes, duties or other charges levied or
imposed on this Note or the proceeds, Lender or Borrower by any government or
political subdivision thereof. Borrower shall upon request of Lender pay all
such taxes, duties or other charges in addition to principal and interest,
including without limitation all documentary stamp and intangible taxes, but
excluding income taxes based solely on Lender's income.
10. SETOFF.
At any time and without notice of any kind, any account, deposit or
other indebtedness owing by Lender to Borrower, and any securities or other
property of Borrower delivered to or left in the possession of Lender or its
nominee or bailee, may be set off against and applied in payment of any
obligation hereunder, whether due or not.
11. NOTICES.
All notices, requests and demands to or upon the respective parties
hereto shall be deemed to have been given or made when deposited in the mail,
postage prepaid, addressed if to Lender to its main banking office indicated
above (Attention: Division Head ** _________________ Division), and if to
Borrower to its address set forth below, or to such other address as may be
hereafter designated in writing by the respective parties hereto or, as to
Borrower, may appear in Lender's records.
** Wealth Management
12. MISCELLANEOUS.
This Note and any document or instrument executed in connection
herewith shall be governed by and constructed in accordance with the internal
law of the State of Illinois, and shall be deemed to have been executed in the
State of Illinois. Unless the context requires otherwise, wherever used herein
the singular shall include the plural and vice versa, and the use of one gender
shall also denote the other. Captions herein are for convenience of reference
only and shall not define or limit any of the terms or provisions hereof;
references herein to Sections or provisions without reference to the document
in which they are contained are references to this Note. This Note shall bind
Borrower, its heirs, trustees (including without limitation successor and
replacement trustees), executors, personal representatives, successors and
assigns, and shall inure to the benefit of Lender, its successors and assigns,
except that Borrower may not transfer or assign any of its rights or interest
hereunder without the prior written consent of Lender. Borrower agrees to pay
upon demand all expenses (including without limitation attorneys' fees, legal
costs and expenses, and time charges of attorneys who may be employees of
Lender, in each case whether in or out of court, in original or appellate
proceedings or in bankruptcy) incurred or paid by Lender or any holder hereof
in connection with the enforcement or preservation of its rights hereunder or
under any document or instrument executed in connection herewith. Borrower
expressly and irrevocably waives notice of dishonor or default as well as
presentment, protest, demand and notice of any kind in connection herewith. If
there shall be more than one person or entity constiting Borrower, each of them
shall be primarily, jointly and severally liable for all obligations hereunder.
13. WAIVER OF JURY TRIAL, ETC.
BORROWER HEREBY IRREVOCABLY AGREES THAT, SUBJECT TO LENDER'S SOLE AND
ABSOLUTE ELECTION, ALL SUITS, ACTIONS OR OTHER PROCEEDINGS WITH RESPECT TO,
ARISING OUT OF OR IN CONNECTION WITH THIS NOTE OR ANY DOCUMENT OR INSTRUMENT
EXECUTED IN CONNECTION HEREWITH SHALL BE SUBJECT TO LITIGATION IN COURTS HAVING
SITUS WITHIN OR JURISDICTION OVER COOK COUNTY, ILLINOIS. BORROWER HEREBY
CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT
LOCATED IN OR HAVING JURISDICTION OVER SUCH COUNTY, AND HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO REQUEST OR DEMAND TRIAL BY JURY, TO TRANSFER OR
CHANGE THE VENUE OF ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY LENDER IN
ACCORDANCE WITH THIS PARAGRAPH, OR TO CLAIM THAT ANY SUCH PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
/X/ See Rider attached hereto and incorporated herein by reference.
Lender is hereby authorized by Borrower without notice to Borrower to fill in
any blank spaces and dates and strike inapplicable terms herein or in any
related document to conform to the terms upon which the Loan evidenced hereby
is or may be made, for which purpose Lender shall be deemed to have been
granted an irrevocable power of attorney coupled with an interest.
Address for Notices:
THE ARNOLD PALMER GOLF COMPANY 6201 Mountain View
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By: /s/ George H. Nichols Ooltewah, TN 37363
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Title: President Attention: David Kirby
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Attention:
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Rider to Term Note
DATED AS OF DECEMBER 30, 1996, EXECUTED BY THE ARNOLD PALMER GOLF COMPANY (the
"Borrower") IN FAVOR OF THE NORTHERN TRUST COMPANY (the "Lender").
1. This Rider is attached to and forms an integral part of the
above-referenced Term Note (as amended, the "Note"). Capitalized terms
defined in the Note and not otherwise defined in this Rider shall have
the same meaning in this Rider as in the Note. Wherever possible this
Rider and the Note shall be construed so as to be consistent with each
other; however, if and to the extent that the terms of the Rider
conflict or are inconsistent with the Note, the terms of the Rider
shall prevail. Except as modified by this Rider, the terms of the Note
shall apply.
2. Section 3 of the printed form dealing with guarantees is deleted and
the following is substituted therefor:
"Payment of this Note has been unconditionally guaranteed by (i) John T.
Lupton pursuant to a Guaranty dated as of December 30, 1996 (as amended, the
"Guaranty") which Guaranty is secured by (a) that certain Security Agreement
dated as of August 22, 1995 (as amended) between John T. Lupton and Lender and
(ii) the John T. Lupton Trust pursuant to that certain Note Purchase Agreement
dated as of December 30, 1996 (as amended) between the Trust and the Lender
(each individually and collectively selected to as "guarantor") as provided in
separately executed documentation."
THE ARNOLD PALMER GOLF COMPANY
By: /s/ George H. Nichols
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Type Name:
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Title: President
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