LIST OF EXHIBITS AND SCHEDULES. Exhibit A-1 Form of Canadian Revolver Note Exhibit A-2 Form of U.S. Revolver Note Exhibit A-3 Form of U.K. Revolver Note Exhibit B Assignment and Acceptance Exhibit C Assignment Notice Exhibit D Form of Compliance Certificate Exhibit E Form of Debenture Schedule E-1 Existing Letters of Credit Schedule 1.1 Commitments of Lenders Schedule 1.1A Mandatory Cost Formulae Schedule 1.1C U.K. Eligible Foreign Accounts Schedule 1.1D U.K. Non-Bank Lenders Schedule 5.9.9 Treaty Lenders under HMRC DT Passport Scheme Schedule 8.6.1 Business Locations Schedule 9.1.9 Environmental Matters Schedule 9.1.12 ERISA Compliance Schedule 9.1.13 Names and Capital Structure Schedule 9.1.21 Labor Contracts Schedule 10.2.1 Existing Liens Schedule 10.2.2 Permitted Investments Schedule 10.2.3 Permitted Debt SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT THIS SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is dated as of December 22, 2011, among CALLAWAY GOLF COMPANY, a Delaware corporation (“Parent”), CALLAWAY GOLF SALES COMPANY, a California corporation (“Callaway Sales”), CALLAWAY GOLF BALL OPERATIONS, INC., a Delaware corporation (“Callaway Operations”, and together with Parent and Callaway Sales, collectively, “U.S. Borrowers”), CALLAWAY GOLF CANADA LTD., a Canada corporation (“Canadian Borrower”) CALLAWAY GOLF EUROPE LTD., a company organized under the laws of England (registered number 02756321) (“U.K. Borrower” and together with the U.S. Borrowers and the Canadian Borrower, collectively, “Borrowers”), the other Obligors party to this Agreement from time to time, the financial institutions party to this Agreement from time to time as lenders (collectively, “Lenders”), and BANK OF AMERICA, N.A., a national banking association, as administrative agent and as security trustee for the Lenders (“Agent”).
LIST OF EXHIBITS AND SCHEDULES. Exhibit A Form of Note Exhibit B Form of Class A Warrants Exhibit C Escrow Agreement Exhibit D Form of Legal Opinion Exhibit E1 Form of Lockup Agreement Exhibit E2 and E3 Form of Employee Lockup Agreement Schedule 1 List of Subscribers Schedule 5(a) Subsidiaries Schedule 5(d) Capitalization and Additional Issuances Schedule 5(h) Litigation Schedule 5(k) Solvency Schedule 5(l) Defaults Schedule 5(o) Undisclosed Liabilities Schedule 5(w) Transfer Agent Schedule 8 Fees Schedule 9(e) Use of Proceeds Schedule 9(p)(v) Negative Covenants Schedule 9(l) Intellectual Property Schedule 9(v) Lockup Providers Schedule 11.1 Securities to be Registered Schedule 12(a) Excepted Issuances Exhibit A Form of Convertible Promissory Note NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER, AT THE COMPANY’S EXPENSE), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. Principal Amount: $ Issue Date: February ___, 2011 SECURED CONVERTIBLE PROMISSORY NOTE FOR VALUE RECEIVED, ATTITUDE DRINKS, INC., a Delaware corporation (hereinafter called “Borrower”), hereby promises to pay to the order of (the “Holder”), address at, without demand, the sum of up to __________ ($______.00) (“Principal Amount”), with interest accruing thereon, on July 15, 2012 (the “Maturity Date”), if not sooner paid or modified as permitted herein. This Note has been entered into pursuant to the terms of a subscription agreement by and among the Borrower, the Holder and certain other holders (the “Other Holders”) of convertible promissory notes (the “Other Notes”), dated of even date herewith (the “Subscription Agreement”) for an aggregate Principal Amount of up to $400,000. Unless otherwise separately defined herein, each capitalized term used in this Note shall have the same meani...
LIST OF EXHIBITS AND SCHEDULES. Exhibits
LIST OF EXHIBITS AND SCHEDULES. EXHIBIT A-1 Form of Class A-1 Certificate EXHIBIT A-2 Form of Class A-2 Certificate EXHIBIT A-3 Form of Class A-3 Certificate EXHIBIT A-4 Form of Class A-SB Certificate EXHIBIT A-5 Form of Class A-4 Certificate EXHIBIT A-6 Form of Class A-1A Certificate EXHIBIT A-7 Form of Class XC Certificate EXHIBIT A-8 Form of Class XP Certificate EXHIBIT A-9 Form of Class A-M Certificate EXHIBIT A-10 Form of Class A-J Certificate EXHIBIT A-11 Form of Class B Certificate EXHIBIT A-12 Form of Class C Certificate EXHIBIT A-13 Form of Class D Certificate EXHIBIT A-14 Form of Class E Certificate EXHIBIT A-15 Form of Class F Certificate EXHIBIT A-16 Form of Class G Certificate EXHIBIT A-17 Form of Class H Certificate EXHIBIT A-18 Form of Class J Certificate EXHIBIT A-19 Form of Class K Certificate EXHIBIT A-20 Form of Class L Certificate EXHIBIT A-21 Form of Class M Certificate EXHIBIT A-22 Form of Class N Certificate EXHIBIT A-23 Form of Class O Certificate EXHIBIT A-24 Form of Class P Certificate EXHIBIT A-25 Form of Class R-I Certificate EXHIBIT A-26 Form of Class R-II Certificate EXHIBIT A-27 Form of Class V Certificate EXHIBIT B Form of Investment Representation Letter EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to Section 5.02(d)(i)(B) EXHIBIT C-2 Form of Transferor Certificate Pursuant to Section 5.02(d)(i)(D) EXHIBIT D Request for Release EXHIBIT E Form of ERISA Representation Letter EXHIBIT F Form of Custodial Certification EXHIBIT G Form of Trustee Distribution Date Statement EXHIBIT H Form of Request for Review EXHIBIT I Form of Notice Regarding Purchase Option Exercise EXHIBIT J Form of Notice and Certification Regarding Defeasance of Mortgage Loan EXHIBIT K Form of Certification to be Provided with Form 10-K EXHIBIT L Form of Certification to be Provided to Depositor EXHIBIT M Form of Confidentiality Agreement EXHIBIT N Form of Regulation S Certificate EXHIBIT O Form of Transfer Certificate for Exchange or Transfer from Domestic Global Certificate to Regulation S Global Certificate During the Restricted Period EXHIBIT P Form of Transfer Certificate for Exchange or Transfer from Domestic Global Certificate to Regulation S Global Certificate After the Restricted Period EXHIBIT Q Form of Transfer Certificate for Exchange or Transfer from Regulation S Global Certificate to Domestic Global Certificate SCHEDULE I Mortgage Loan Schedule SCHEDULE II Sub-Servicing Agreements in Effect as of the Closing Date SCHEDULE III Schedule of Exceptions under Sect...
LIST OF EXHIBITS AND SCHEDULES. Exhibits Exhibit A - Second Amended and Restated Articles of Incorporation Exhibit B - Registration Rights Agreement Exhibit C - Shareholders Agreement Exhibit D - Opinion of Company's Counsel for Initial Closing Exhibit E - Opinion of Company's Counsel for each Additional Closing Exhibit F - Tax Allocation and Indemnification Agreement Exhibit G - Opinion of Purchasers' Counsel Exhibit H - Outstanding Indebtedness to Shareholders Schedules Schedule 1 - List of Purchasers Schedule 3.12 - Indebtedness to be repaid to Shareholders Schedule 5.2 - Capital Stock and Related Matters schedule 5.3 - Authorization; No Conflict Schedule 5.5 - No Material Adverse Change Schedule 5.6 - Undisclosed Liabilities Schedule 5.7 - Certain Developments Schedule 5.8 - No Material Adverse Change Schedule 5.9 - Taxes Schedule 5.10 - Litigation Schedule 5.12 - Consents Schedule 5.18 - Affiliate Transactions Schedule 5.19 - Employment and Management Agreements Schedule 5.20 - Material Contracts Schedule 5.21 - Intellectual Property
LIST OF EXHIBITS AND SCHEDULES. EXHIBITS
LIST OF EXHIBITS AND SCHEDULES. Exhibit A-1 – JPMC Form of Letter of Credit Application Exhibit A-2 – Citibank Form of Letter of Credit Application Exhibit B-1 – JPMC Form of Standard Letter of Credit Exhibit B-2 – Citibank Form of Standard Letter of Credit Exhibit C – Form of Assignment and Acceptance Exhibit D-1 – Form of XX Xxxx Collateral Account Agreement Exhibit D-2 – Form of Revolving Loan Cash Collateral Account Agreement Exhibit E – Summary of Terms and Conditions for Backstop Facility Term Loans Schedule 1 – Lenders’ Commitment Amount Schedule 2 – Litigation Schedule 3 – List of Continuing Letters of Credit SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 31, 2005, among DYNEGY HOLDINGS INC., a Delaware corporation (the “Borrower”), DYNEGY INC. (the “Parent Guarantor”), the SUBSIDIARY GUARANTORS party hereto (the “Guarantors”), CITIBANK, N.A. and JPMORGAN CHASE BANK, N.A., each in their respective capacity as an issuer of the Letters of Credit under this Agreement (in such capacity, together with its successors in such capacity, each an “Issuing Bank”), CITICORP USA, INC. and JPMORGAN CHASE BANK, N.A., each in their respective capacity as a co-administrative agent for the Issuing Banks and the LC Lenders (in such capacity, together with its successors in such capacity, each a “Co-Administrative Agent”), CITICORP USA, INC., in its capacity as administrative agent for the Revolving Loan Lenders (in such capacity, together with its successors in such capacity, the “Revolving Loan Administrative Agent” and collectively with the Co-Administrative Agents, the “Administrative Agents”), CITIGROUP GLOBAL MARKETS, INC., and X.X. XXXXXX SECURITIES, INC., each in its respective capacities as co-arrangers of the Letter of Credit facility described herein (in such capacity, together with its successors in such capacity, each a “Co-Arranger”), CITIGROUP GLOBAL MARKETS, INC., in its capacity as the sole arranger of the Revolving Loan facility described herein (in such capacity, together with its successors in such capacity, the “Revolving Loan Sole Arranger” and collectively with the Co-Arrangers, the “Arrangers”), CITICORP USA, INC., in its capacity as payment agent for the Issuing Banks and the Lenders (in such capacity, together with its successors in such capacity, the “Payment Agent”), JPMORGAN CHASE BANK, N.A., in its capacity as collateral agent for the LC Secured Parties referred to below (in such capacity, together with its successors in such capacity, the “LC Collater...
LIST OF EXHIBITS AND SCHEDULES. Exhibits:
LIST OF EXHIBITS AND SCHEDULES. Exhibit A Form of Note Exhibit B Form of Class A and Class B Warrants Exhibit C Escrow Agreement Exhibit D Merger Documents Exhibit E Super 8-K Exhibit F Form of Security Agreement Exhibit G Form of Guaranty Exhibit H Form of Legal Opinion Exhibit I Form of Audit Opinion Exhibit J Form of Lockup Agreement Schedule 1 List of Subscribers Schedule 5(a) Subsidiaries Schedule 5(d) Capitalization and Additional Issuances Schedule 5(o) Undisclosed Liabilities Schedule 5(w) Transfer Agent Schedule 9(e) Use of Proceeds Schedule 9(l) Intellectual Property Schedule 9(p)(iv) Transactions with Principals Schedule 9(x) Lockup Providers Schedule 12(a) Excepted Issuances and Garden State Offering SCHEDULE 1 SUBSCRIBER AND ADDRESS PRINCIPAL AMOUNT CLASS A WARRANT CLASS B WARRANT ALPHA CAPITAL ANSTALT Pradafant 7 9490 Furstentums Vaduz, Lichtenstein Fax: 000-00-00000000 $500,000.00 1,250,000 1,250,000 ADVENTURE VENTURES LLC 0 Xxxxxxxxx Xxxx Spring Valley, NY 10977 Fax: (000) 000-0000 $125,000.00 312,500 312,500 OSHER CAPITAL PARTNERS LLC 0 Xxxxxxxxx Xxxx Spring Valley, NY 10977 Fax: (000) 000-0000 $125,000.00 312,500 312,500 WHALEHAVEN CAPITAL FUND LIMITED 000 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxx, X.X. 00000 Fax: (000) 000-0000 $500,000.00 1,250,000 1,250,000 FLM HOLDINGS LLC 8 Hop Xxxxx Xxxx Xxxxxxx, Xxx Xxxxxx 00000 $506,488.89 represented by the surrender of Debentures consisting of $500,000 of principal amount and $6,488.89 accrued principal FJD HOLDINGS LLC 0000 Xxxxxxxxx Xxxxx Lakeland, FL 33801 Attn: Xxxxx X’Xxxxxxxx Tax ID#: 00-0000000 $250,000.00 625,000 625,000 BRIO CAPITAL L.P. 000 X. 00xx Xxxxxx – Suite South 33C New York, NY 10016 Attn: Xxxxx Xxxxxx Fax: (000) 000-0000 $150,000.00 375,000 375,000 XXXXXX XXXX Rampartners SA 00 Xxxx., Xxxxxxx-Xxxxx Xxxxxx, Xxxxxxxxxxx 0000 Fax: +00-00-000-0000 $100,000.00 250,000 250,000 XXXXXXX XXXXXXXXXX HOLDINGS LLC 0000 Xxxxx Xxxx, Xxx. 000 Xxxxx Xxxxxx, XX 00000 Fax: (000) 000-0000 $150,000.00 375,000 375,000 BRISTOL INVESTMENT FUND, LTD. c/o Bristol Capital Advisors, LLC 0000 X. Xxxxxx Xxxx., Xxxxx 0000 Xxxxxxxxx, XX 00000 Attn: Xxx Xxxx, Esq. Fax: (000) 000-0000 $280,000.00 875,000 875,000 BRISTOL CAPITAL ADVISORS PROFIT SHARING PLAN c/o Bristol Capital Advisors, LLC 0000 X. Xxxxxx Xxxx., Xxxxx 0000 Xxxxxxxxx, XX 00000 Attn: Xxx Xxxx, Esq. Fax: (000) 000-0000 $40,000.00 100,000 100,000 BRISTOL CAPITAL, LLC c/o Bristol Capital Advisors, LLC 0000 X. Xxxxxx Xxxx., Xxxxx 0000 Xxxxxxxxx, XX 00000 Attn: Xxx Xxxx, Esq. Fax: (000) 000-0...
LIST OF EXHIBITS AND SCHEDULES. Exhibit A — Form of Assignment and Acceptance Exhibit B — Form of Note Exhibit B-1 — Form of Designated Bank Note Exhibit C — Form of Notice of Committed Borrowing Exhibit D — Form of Notice of Conversion/Continuation Exhibit E — List of Closing Documents Exhibit F — Form of Officer’s Certificate to Accompany Reports Exhibit G — Sample Calculations of Financial Covenants Exhibit H — Form of Money Market Quote Request Exhibit I — Form of Invitation for Money Market Quote Exhibit J — Form of Money Market Quote Exhibit K — Form of Designation Agreement Exhibit L — Form of Qualified Borrower Guaranty of Payment Exhibit M — Form of Guaranty of Collection Exhibit N — Form of U.S. Tax Compliance Certificates Exhibit O — Form of Notice of Qualified Borrower Schedule 1.1A — Allocations Schedule 1.1B — Swingline Commitments Schedule 1.1C — Letter of Credit Commitments
