AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (the "Restated
Agreement") dated as of February 16, 2000, between DIRECTRIX, INC., A Delaware
corporation (the "Borrower"), and J. XXXXX XXXXXXX and XXXXXX X. XXXXXXXX, XX.
(collectively, the "Original Lenders") and the persons whose names and addresses
appear on attached Schedule 1.01 (collectively, the "New Lenders").
RECITALS
WHEREAS, the Borrower and the Original Lenders are parties to a Loan
and Security Agreement dated as of March 15, 1999, as amended, (the "Original
Loan Agreement") that provided for the Original Lenders to loan up to $1.1
million (the "Original Maximum Amount") to the Borrower;
WHEREAS, the parties desire to set forth the terms of their agreement
with respect to the foregoing.Original Lenders have loaned an aggregate amount
equal to the Original Maximum Amount to the Borrower;
WHEREAS, the New Lenders desire to lend and the Borrower desires to
borrow an additional aggregate amount of up to $2.4 million from the New Lenders
(the "New Maximum Amount") in one loan or in installments ("Advances"); and
WHEREAS, the Original Lenders and the New Lenders (collectively, the
"Lenders") wish to amend and restate the Original Loan Agreement to govern the
terms and provisions of their loans to the Borrower.
NOW, THEREFORE, in consideration of the Advances made to the Borrower,
the parties hereby agree as follows:
ARTICLE I
TAKEDOWN; REPAYMENT OF THE ADVANCES; GRANT OF SECURITY
SECTION 1.01. LOANS. The Original Lenders have already loaned the
Borrower the Maximum Original Amount. The New Lenders severally agree to make
Advances to the Borrower from time to time prior to March 15, 2001 (the period
of time ending on March 15, 2001 is referred to as the "Commitment Period") in
the manner set forth in Section 1.03 in an aggregate principal amount at any one
time outstanding which does not exceed the New Maximum Amount.
SECTION 1.02. THE NOTES. The Borrower's obligation to repay the unpaid
principal amount of the Advances shall be evidenced by the notes in the form of
attached Exhibit A (the "Notes"), payable to the Lenders or their registered
assigns, duly executed and delivered by the Borrower to the Lenders. The notes
previously issued by Borrower to the Original Lenders under the Original
Agreement will be replaced with the Notes attached hereto; the Original Lenders
will receive the replacement notes upon surrender of their original notes. The
Notes shall mature on March 15, 2002 (the "Maturity Date") and bear interest and
be subject to such other terms and conditions as provided for herein and in the
Notes. At no time shall the amount outstanding under this Agreement exceed $3.5
million. The principal amount of the Advances, together with all accrued and
unpaid interest shall be repaid on the Maturity Date.
SECTION 1.03. INITIAL ADVANCES BY NEW LENDERS. Upon receipt of duly
executed Notes after the date hereof, the New Lenders shall make the first
Advance to the Borrower in the amount requested by Borrower up to the New
Maximum Amount pursuant to a written request (an "Advance Request"). The initial
Advance Request and any further Advance Requests under this Amended Agreement
shall be signed by the Chairman and Chief Financial Officer of the Borrower and
shall be for amounts of not less than $50,000 or integral multiples thereof. The
New Lenders shall make all subsequent Advances up to the New Maximum Amount
within five business days of the New Lenders' receipt of an Advance Request
therefor. Until the New Lenders have made Advances equal to the New Maximum
Amount, each New Lender shall be responsible for his share of the Advance as
determined by multiplying the amount of the Advance by the amount of his First
Round Commitment Percentage ("First Round Commitment Percentage"), as set forth
on Schedule 1.01.
SECTION 1.04. REPAYMENTS; FURTHER ADVANCES. During the Commitment
Period, and after the New Lenders have made Advances up to the New Maximum
Amount (i) the Borrower may prepay Advances and thereafter may reborrow any
amounts repaid and (ii) any principal payments and Advance prepayments made by
the Borrower shall be made among the Lenders in accordance with their respective
Second Round Commitment Percentages ("Second Round Commitment Percentages") set
forth on Schedule 1.01. Any reborrowing by the Borrower shall be made by the
Lenders making Advances within 5 business days of receipt of an Advance Request.
Each Lender shall be responsible for his share of the Advance as determined by
multiplying the amount of the Advance by the amount of his Second Round
Commitment Percentage. After the Commitment Period, if the New Lenders have not
made aggregate Advances up to the New Maximum Amount, all prepayments of
principal shall be made parri passu among the Lenders in relative proportion to
the outstanding principal amounts owed to each Lender at the end of the
Commitment Period.
SECTION 1.05. PAYMENT OF INTEREST; DEFAULT RATE. Interest shall be
payable on the outstanding unpaid principal amount of the Notes at the rate and
at the times specified in the Notes. Any amounts not paid when due shall bear
interest at the Default Rate (as such term is defined in the Notes).
SECTION 1.06. LOAN RECORD. The Lenders shall maintain a loan record in
which they shall record the date and amount of each Advance and payment or
prepayment of principal of the Advances and the interest paid with respect
thereto, which record may be kept by recordations on the Notes. The failure of
any Lender to make an entry in the loan register or any error made in any such
entry shall not in any way affect the Borrower's obligations under this
Agreement, including the Borrower's obligations to repay the principal amount of
the Advances and the interest accrued from the actual date on which the Advances
are made. The Borrower shall not be bound by any entry in the loan register not
made in accordance with the terms hereof.
SECTION 1.06. PREPAYMENTS; MANDATORY PREPAYMENT. Any prepayments of
Advances shall be applied first to the payment of interest due hereunder and
then to principal. If the Borrower completes an offering of equity securities in
the Borrower which results in net proceeds to the Borrower of more than $5
million, Borrower shall be obligated to prepay the Notes in an amount equal to
no less than 50% of such net proceeds in excess of $5 million.
SECTION 1.07. PLACE AND MANNER OF PAYMENTS. The Borrower shall make all
payments of principal and interest on the Advances to the Lenders in immediately
available funds to such place as the Lenders shall instruct the Borrower in
writing.
SECTION 1.08. PAYMENT WITHOUT SETOFF. The principal of, interest on and
all expenses and costs related to the Advances (collectively, the "Obligations")
shall be paid without setoff or counterclaim and free and clear of and exempt
from, and without deduction for or on account of, any present or future taxes,
imposts, duties, deduction, withholdings or other charges of whatsoever nature
imposed, levied, collected, withheld or assessed by any government or any
political subdivision or taxing authority thereof.
SECTION 1.09. ADVANCES SCHEDULED. As security for the prompt and
unconditional payment of any and all Obligations, the Borrower, subject to
Section 3.07, does hereby grant to the Lenders a continuing lien upon and first
security interest in the Collateral (as defined below) and hereby grants,
pledges, assigns and transfers to the Lenders all of the Collateral. For the
purposes of this Agreement "Collateral" shall mean and include all of the
Borrower's assets, including without limitation, all Accounts Receivables,
Accounts, , Machinery, Equipment, Furniture and Fixtures, Hardware & Software
Inventory (as such terms are defined in the New York Uniform Commercial Code, as
amended), the Borrower's option to acquire the stock or C-band television
network business of Emerald Media, Inc. and the Proceeds of the foregoing (as
defined such terms are defined in the New York Uniform Commercial Code, as
amended). Specifically excluded from the term "Collateral" shall be the
Borrower's shares of Playboy Class A Common Stock which are held in a margin
account by Bank of America NA as security for a margin loan.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that the following statements are
true and correct as of the date hereof and shall be true and correct on the date
each Advance is made:
SECTION 2.01. GOOD STANDING. The Borrower is a company duly
constituted, validly existing and in good standing under the laws of Delaware
and has all requisite power and authority to conduct its business, to own its
properties, and to execute and deliver and to perform all of its obligation
under this Agreement and the Notes.
SECTION 2.02. AUTHORITY. The execution, delivery and performance by the
Borrower of this Agreement and the issuance, execution and delivery by the
Borrower of the Notes have been duly authorized by all necessary action of the
Borrower and do not and will not (i) violate any provision of the Borrower's
governing documents or any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to the Borrower, or (ii) result in a breach or constitute a
default under any indenture or loan or credit agreement or any other agreement,
lease or instrument to which the Borrower is a party or by which the Borrower's
properties may be bound or affected, and the Borrower is not in default under
any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or any such indenture, agreement, lease or instrument.
SECTION 2.03. OWNERSHIP OF COLLATERAL. The Borrower owns the Collateral
free and clear of any lien, security interest or other charge or encumbrance of
any kind (collectively the "Liens"), except to the extent of any Liens
associated with the equipment lease financing set forth on attached Schedule
2.03 or any liens specifically permitted by the Lenders (collectively,
"Permitted Liens").
SECTION 2.04. REPRESENTATIONS RELATING TO THE COLLATERAL. No financing
statement or other filing listing any of the Collateral is on file in any
jurisdiction (other than any financing statement filed on behalf of the Lenders
as secured party or in connection with a Permitted Lien); (b) the chief
executive office of the Borrower is located at the address set forth in Section
5.03 herein; (c) the Borrower has not created and is not aware of any Lien on or
affecting any Collateral other than the Lien created by this Agreement in favor
of the Lenders or the Permitted Liens; and (d) the Borrower did not have or
conduct business under any name or trade name in any jurisdiction during the
past six years other than the name set forth on the signature page of this
Agreement, and the Borrower is entitled to use such name.
SECTION 2.05. BINDING OBLIGATIONS. This Agreement constitutes, and when
executed and delivered to the Lenders by the Borrower the Notes will constitute,
legal, valid and binding obligations of the Borrower that are enforceable
against the Borrower in accordance with their respective terms.
SECTION 2.06. CONSENTS. All authorizations, consents, approvals, and
licenses of, and filing and registrations with, any governmental authority
required under applicable law or regulations for the Borrower to enter into and
perform its obligations under this Agreement and the Notes have been obtained
and are in full force and effect.
ARTICLE III
COVENANTS
So long as the Notes are outstanding, unless the Lenders shall have
waived compliance in writing, the Borrower agrees that:
SECTION 3.01. FINANCIAL STATEMENTS. The Borrower will deliver to the
Lenders: (a) within 90 days after the end of each fiscal quarter and each fiscal
year of the Borrower, a consolidated balance sheet and consolidated statements
of income and surplus showing the financial condition of the Borrower and its
consolidated subsidiaries or affiliates, if any, as at the close of such year
and the results of operations during such quarter of such year as the case may
be, all certified by a duly authorized officer of the Borrower and (b) promptly,
from time to time, such other information regarding the operations, business
affairs and financial condition of the Borrower as the Lenders may reasonably
request. Furthermore, the Borrower will deliver to the Lenders within 60 days
after the end of each fiscal quarter, a copy of Borrower's quarterly financial
statements, or year-to-date statements, as the case may be.
SECTION 3.02. NOTICE OF DEFAULTS. The Borrower shall promptly notify
the Lenders of the occurrence of any event of which the Borrower has knowledge
which, alone or with lapse of time or notice or both, would constitute an Event
of Default (as hereinafter defined).
SECTION 3.03. NOTICE OF PROCEEDINGS. The Borrower will promptly give
notice in writing to the Lenders of all material litigation, arbitral
proceedings and regulatory proceedings affecting the Borrower or any of its
subsidiaries or affiliates or the property of the Borrower or any of its
subsidiaries or affiliates.
SECTION 3.04. CERTAIN AFFIRMATIVE COVENANTS. The Borrower will, and
will cause each of its affiliates to: (i) preserve and maintain its existence
and all of its rights, privileges and franchises necessary or desirable in the
normal conduct of its business, and conduct its business in a regular manner,
(ii) comply with the requirements of all material applicable laws, rules,
regulations and orders of any governmental body or regulatory agency having
jurisdiction, (iii) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any of its
property prior to the date on which penalties attach thereto (unless such
payment is being contested in good faith and by proper proceedings and which is
adequately reserved), (iv) maintain insurance in responsible companies in such
amounts and against such risks as are usually carried by owners of similar
businesses and properties in the same general areas in which the Borrower and
its affiliates operate and (v) keep all of its properties necessary in its
business in good working order and condition, ordinary wear and tear excepted,
without mortgage or lien incurred other than in the ordinary course of business.
SECTION 3.05. COLLATERAL. Unless and until all of the Obligations have
been indefeasibly paid in full and all commitments of the Lenders to extend
credit which, once extended, would give rise to Obligations, have expired or
been terminated, the Borrower shall: (a) keep the Collateral free and clear of
any Lien of any kind, other than the Lien created by this Agreement and
Permitted Liens; (b) promptly pay, when due, all taxes and transportation,
storage, warehousing and other charges and fees affecting or arising out of the
Collateral and defend the Collateral against all claims and demands of all
Persons at any time claiming any interest therein adverse to or the same as that
of the Lenders, unless the Borrower is disputing such claim or demand in good
faith by appropriate proceedings; (c) provide the Lenders with such information
as the Lenders may from time to time reasonably request with respect to the
Collateral and the Borrower's place of business or location of any Collateral;
(d) give the Lenders at least 30 days' prior written notice before changing the
Borrower's name or chief executive office or changing the location or disposing
of any Collateral other than cash and cash equivalents; (e) not sell or
otherwise dispose of any Collateral other than cash and cash equivalents except
on commercially reasonable terms and in the ordinary course of business; (f)
permit the Lenders or their representatives, to have access to, examine and copy
at all reasonable times the Collateral, properties, minute books and other
corporate or partnership records, books of accounts, and financial and other
business records of the Borrower (including, without limitation, all books,
records, ledger cards, computer programs, tapes and computer disks and diskettes
and other property recording, evidencing or relating to any Collateral); and (g)
promptly notify the Lenders upon the occurrence of any Event of Default of which
the Borrower has knowledge.
SECTION 3.06. PRESERVATION AND PROTECTION OF SECURITY INTEREST; POWER
OF ATTORNEY. Subject to Section 3.07, the Borrower will faithfully preserve and
protect the Lien in the Collateral created by this Agreement and will, at its
own cost and expense, cause such Lien to be perfected and continue to be
perfected and to be and remain prior to all other Liens, so long as all or any
part of the Obligations are outstanding and unpaid, and for such purpose the
Borrower will from time to time at the request of the Lenders (i) make notations
of the security interest in certificates of title constituting proceeds of
Collateral, a security interest in which is perfected by such notation, and
deliver the same to the Lenders and (ii) file or record, or cause to be filed or
recorded, such instruments, documents and notices, including, without
limitation, financing statements and continuation statements, as the Lenders may
reasonably deem necessary or advisable from time to time in order to perfect and
continue to perfect the Lien and to maintain their priority over all the Lien.
The Borrower will do all such other acts and things and will execute and deliver
all such other instruments and documents, including further security agreements,
pledges, endorsements, assignments, and notices as the Lenders may reasonably
deem necessary or advisable from time to time in order to perfect and preserve
the priority of the Lien in the Collateral as contemplated by this Agreement.
The Lenders, acting through its authorized agent, are hereby irrevocably
appointed the attorney-in-fact of the Borrower to do, at the Borrower's expense,
all acts and things which the Lenders may reasonably deem necessary or advisable
to preserve, perfect, continue to perfect and/or maintain the priority of the
Lien in the Collateral, including the signing of financing, continuation or
other similar statements and notices on behalf of the Borrower, and which the
Borrower is required to do by the terms of this Agreement. The Borrower hereby
authorizes the Lenders to sign and file financing statements with respect to the
Collateral without the signature of the Borrower. The Borrower shall be liable
for and pay all filing fees for financing statements with respect to the
Collateral.
SECTION 3.07. ADDITIONAL LENDER. The Borrower may borrow additional
amounts from another lender ("Additional Borrowing") only if such borrowing is
subordinate to the Lenders' loan to the Borrower and Lenders' security interest
in the Collateral. The Lenders agree to negotiate in good faith with such other
lender on terms mutually acceptable to such parties and in a manner which will
facilitate the execution of documents related to an Additional Borrowing
consistent with the foregoing.
SECTION 3.08. BORROWER SUBSIDIARIES. If the Borrower forms or acquires
any subsidiaries ("Subsidiaries"), at the Lenders' request, the Borrower agrees
to (i) cause the Subsidiaries to guarantee the Obligations and (ii) pledge the
stock of the Subsidiaries to the Lenders.
SECTION 3.09. EMI RECEIVABLE. The Borrower will not reduce, forgive or
compromise the account receivable owed by EMI to the Borrower.
SECTION 3.10. FINANCIAL COVENANTS.
3.10.1 Stockholders' Equity. The Borrower will not fail to
maintain Stockholders' Equity of at least $3 million at the end of each fiscal
year prior to the Maturity Date commencing with the fiscal year ending
March 31, 2001.
3.10.2 EBITDA. The Borrower's EBITDA shall not be, on an
annual basis, less than zero and on a quarterly basis, less than ($500,0000),
commencing with the fiscal quarter ending September 30, 2000.
3.10.3 Definitions. The defined terms used in this Section
3.10 shall have the following meanings:
"Stockholders' Equity" shall mean the Stockholders' Equity as reported
on the Borrower's audited financial statements for each the fiscal year ending
prior to the Maturity Date.
"EBITDA" shall mean the Borrower's earnings from continuing operations
before reductions for interest, taxes, depreciation and amortization and without
regard to compensation expenses attributable to the issuance or exercise of
options or warrants.
3.10.5 ADDITIONAL PROVISIONS
3.10.5.1 Borrower and Lenders acknowledge
and agree that if Borrower engages in a major transaction, which, for these
purposes, means an acquisition, merger or similar transaction which materially
alters Borrower's business, assets or property, then the Borrower and the
Lenders agree to negotiate, in good faith, an amendment to this Amended
Agreement which provides for an adjustment to these financial covenants.
3.10.5.2 Notwithstanding any other
provision of this Amended Agreement to the contrary, Borrower may elect on one
occasion to waive a violation of one or more financial covenants and such
violation shall not be deemed an "Event of Default" as that term is defined in
Section 4.01.
3.11 NO DIVIDENDS. The Borrower shall not pay any dividends or
make any distribution on, or purchase, redeem, or retire, any shares of its
capital stock or any warrants, options, or other rights to reacquire any such
shares other than dividends payable solely in shares of its common stock.
ARTICLE IV
EVENTS OF DEFAULT
SECTION 4.01. EVENTS OF DEFAULT. If any of the following events
("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of the Notes within
three days of such principal becoming due and payable, or shall fail to pay any
interest thereon within twenty days after such interest becoming due and
payable; or
(b) any representation or warranty made in connection with the
execution and delivery of this Agreement, the Notes or in any document delivered
pursuant hereto shall prove to have been incorrect in any material respect upon
the date when made and shall remain unremedied for thirty days after written
notice thereof shall have been given to the Borrower by the Lenders; or
(c) the Borrower shall fail to perform or observe any term, covenant
or agreement contained in this Agreement and any such failure remains unremedied
for thirty days after written notice thereof shall have been given to the
Borrower by the Lenders; or
(d) the Borrower shall cease to own the Collateral;
(e) the Borrower shall be in default of its Transponder Services
Agreement with Loral Skynet and such default continue after notice thereof
from Loral Skynet for more than thirty days after notice thereof;
(f) the net accounts receivable owed by EMI to the Borrower exceeds,
at any time, $2,000,000;
(g) any indebtedness of the Borrower for borrowed money in excess of
$500,000 is not paid when due, whether by acceleration or otherwise, or is
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required payment), prior to the stated maturity thereof and
such default is not cured within any applicable cure or grace periods provided
before therein; or
(h) the Borrower shall make an assignment for the benefis of
creditors, file a petition in bankruptcy, be adjudicated insolvent or bankrupt,
petition or apply to any tribunal for any receiver or trustee for itself or for
any substantial part of its property, commence any proceeding relating to it
under any reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or hereafter in
effect, or by any act indicate its consent to, approval of, or acquiescence in,
any such proceeding for the appointment of any receiver of, or trustee for, it
or any substantial part of its property and such appointment shall continue
undischarged for a period of thirty days, or a petition in bankruptcy or for
reorganization shall be filed against the Borrower and shall not be dismissed
for a period of thirty days; then, and in any such event, the Lenders may, in
their sole discretion, by notice to the Borrower, declare the entire unpaid
principal amount of the Notes, all interest accrued and unpaid thereon, and all
other amounts payable hereunder to be forthwith due and payable, whereupon the
Notes, all such accrued interest and all such other amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower.
SECTION 4.02. EFFECT OF DEFAULT ON THE COLLATERAL. After the occurrence
and during the continuance of an Event of Default, the Lenders may, without
notice to or demand (other than any notice required by law, the giving of which
is not waivable), upon the Borrower (all of which are hereby waived by the
Borrower), without releasing the Borrower from any obligation under this
Agreement or any other instruments or agreements with the Lenders and without
waiving any rights the Lenders may have: (i) demand, collect or receive upon all
or any part of the Collateral; (ii) in such manner and to such extent as the
Lenders may deem necessary to protect the Collateral or the interest, rights,
powers or duties of the Lenders, enter into and upon any premises of the
Borrower and take and hold possession of all or any part of the Collateral (the
Borrower hereby waiving and releasing any claim for damages in respect of such
taking) and exclude the Borrower and all other Persons from the Collateral;
(iii) collect any and all income, rents, issues, profits and proceeds from the
Collateral, the same being hereby assigned and transferred to the Lenders and
from time to time apply or accumulate such income, rents, issues, profits and
proceeds in such order and manner as the Lenders in its sole discretion, shall
instruct, it being understood that the collection or receipt of income, rents,
issues, profits or proceeds from the Collateral after declaration of default and
election to cause the Collateral to be sold under the pursuant to the terms of
this Agreement shall not affect or impair any event of default or declaration of
default under any agreement or instrument among the Borrower and the Lenders or
election to cause any Collateral to be sold or any sale proceedings predicated
on the same, but such proceedings may be conducted and sale effected
notwithstanding the collection or receipt of any such income, rents, issues,
profits and proceeds; (iv) take control of any and all of the Accounts,
contractual or other rights that are included in the Collateral and Proceeds
arising from any such Accounts or contractual or other rights, enforce
collection, either in the name of the Lenders or in the name of the Borrower, of
any or all of the Accounts, contractual and other rights that are included in
the Collateral and Proceeds by suit or otherwise, receive, receipt for,
surrender, release or exchange all or any part of such Collateral or compromise,
settle, extend or renew (whether or not longer than the original period) any
indebtedness under such Collateral; (v) sell all or any part of the Collateral
at public or private sale at such place or places and at such time or times and
in such manner and upon such terms, whether for cash or credit, as the Lenders
in their sole discretion may determine; (vi) endorse in the name of the Borrower
any instrument, however received by the Lenders representing Collateral or
Proceeds of any of the Collateral; and (vii) exercise all of the rights and
remedies granted to a secured party under the New York Uniform Commercial Code
and all other rights and remedies given to the Lenders under this Agreement or
any other instrument or agreement otherwise available at law or in equity. The
Lenders shall be under no obligation to make any of the payments or do any of
the acts referred to in this Section 4.02 or elsewhere in this Agreement and any
of the actions referred to in this Section 4.02 or elsewhere in this Agreement
may be taken regardless of whether any notice of default or election to sell has
been given under this Agreement (provided, however, that all notices required by
law, the giving of which may not be waived, shall be given in accordance with
such law) without regard to the adequacy of the security for the Obligations.
SECTION 4.03. APPLICATION OF PROCEEDS OF SALE The Lenders may apply the
net proceeds of any sale, lease or other disposition of Collateral pursuant to
Section 4.02, after conducting all reasonable costs and expenses of every kind
incurred thereon or incidental to the retaking, holding, preparing for sale,
selling, leasing, or the like of the Collateral or in any way relating to the
rights of the Lenders thereunder, including attorneys' fees and expenses
hereinafter provided for, to the payment, in whole or in part, of one or more of
the Obligations in accordance with the terms of this Agreement. The Borrower
shall remain liable to the Lenders for the payment of any deficiency, with
interest at the Default Rate, as provided in the Notes.
The Borrower agrees that forthwith upon the occurrence of an Event of
Default it will notify the Lenders of the details thereof and the action
which it is taking or proposes to take with regard thereto. If an Event
of Default occurs and shall be continuing and the Lenders, in their sole
discretion, do not declare the Notes, all interest accrued and unpaid thereon,
and all other amounts payable hereunder to be forthwith due and payable, the
terms of this Agreement and the Notes shall continue in full force and effect
subject to the right of the Lenders to declare the Notes, all interest accrued
and unpaid thereon, and all other Obligations to be forthwith due and payable.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. NO WAIVER, CUMULATIVE REMEDIES. No failure or delay on
the part of the Lenders or the holder of the Notes in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy
hereunder. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 5.02. AMENDMENTS. No amendment, modification, termination, or
waiver of any provision of this Agreement or the Notes, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Lenders and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.
SECTION 5.03. ADDRESSES FOR NOTICES. All notices, requests, demands and
other communications provided for hereunder shall be in writing and, if to the
Lenders, mailed by certified mail or delivered to it, by hand or by facsimile,
addressed to them at their addresses and/or facsimile numbers set forth on
Schedule 1.101 and if to the Borrower, mailed by certified mail or delivered to
it by hand or by facsimile, addressed to it at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000 (fax number 000-000-0000), Attention: J. Xxxxx Xxxxxxx, Chief
Executive Officer and Xxxxxx X. XxXxxxxx, Chief Financial Officer or as to each
party, at such other address as shall be designated by such party in written
notice to the other party complying as to delivery with the terms of this
Section. All notices, requests, demands and other communication provided for
hereunder shall be effective when received.
SECTION 5.05. COSTS. The Borrower agrees to pay all of the Lenders'
legal and other professional fees in connection with this Agreement and the
enforcement thereof and of the Notes.
SECTION 5.06. BINDING EFFECT, ASSIGNMENT. This Agreement shall become
effective when it shall have been executed by the Borrower and the Lenders and
thereafter shall be binding upon and inure to the benefit of the Borrower and
the Lenders and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights or obligation hereunder
or any interest herein without the prior written consent of the Lenders except
that the Borrower may assign all of such rights and obligations, including,
without limitation, the security interest in the Collateral to any successor
corporation following any merger of the Borrower.
SECTION 5.07. ADDITIONAL SECURITY. If the Lenders at any time hold
security for any Obligations in addition to the Collateral, the Lenders may
enforce the terms of this Agreement or otherwise realize upon the Collateral, at
their option, either before or concurrently with the exercise of remedies as to
such other security or, after a sale is made of such other security, they may
apply the proceeds upon the Obligations without affecting the status of or
waiving any right to exhaust all or any other security, including the
Collateral, and without waiving any breach or default or any right or power
whether exercised under this Agreement, contained in this Agreement, or provided
for in respect of any such other security.
SECTION 5.08. GOVERNING LAW AND SUBMISSION TO JURISDICTION. This
Agreement and the Notes shall be deemed to be contracts made under the laws of
the State of New York, and for all purposes shall be governed by, and construed
in accordance with, the laws of said State, and the parties hereto hereby
irrevocably agree to submit to the jurisdiction and venue of the federal and
state courts of said State, and the Borrower authorizes the service of process
on it by registered or certified mail sent to any address authorized in Section
5.03 as an address for the sending of notices.
SECTION 5.09. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 5.10. HEADINGS. Article and Section headings used in this
Agreement are for convenience only and shall not affect the construction of this
Agreement.
SECTION 5.11. EXECUTION IN COUNTERPARTS. This Agreement may be executed
and delivered (including by facsimile) in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute but one and the same instrument.
SECTION 5.12. WAIVER OF TRIAL BY JURY. EACH OF THE LENDERS AND THE
BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY OR AGAINST IT ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT,
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE NOTES, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
DIRECTRIX, INC.
By:
--------------------------------
J. Xxxxx Xxxxxxx, Chairman & CEO
ORIGINAL LENDERS
-----------------------------------
J. Xxxxx Xxxxxxx
-----------------------------------
Xxxxxx X. XxXxxxxx, Xx.
NEW LENDERS
XXXXXX CAPITAL CORP
By:
--------------------------------
Xxxx Xxxxx, President
-----------------------------------
Xxxxxx X. Xxxxx
NEW HORIZONS INVESTMENT CORP., N.V.
By:
--------------------------------
Xxxxxxx Xxxxxx, Attorney-In-Fact
Schedule 1.01
----------------------------------- ---------------------------- --------------- -----------------
Original Lenders Address First Round Second Round
Facsimile Number Commitment Commitment
%age %age
----------------------------------- ---------------------------- --------------- -----------------
000 Xxxx 00xx Xxxxxx, 00xx 81.82 25.71
J. Xxxxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax. No.: 000-000-0000
----------------------------------- ---------------------------- --------------- -----------------
Xxxxxx X. XxXxxxxx, Xx. 000 Xxxx 00xx Xxxxxx, 00xx 18.18 5.71
Floor
Xxx Xxxx, XX 00000
Fax. No.: 000-000-0000
----------------------------------- ---------------------------- --------------- -----------------
----------------------------------- ---------------------------- --------------- -----------------
New Lenders Address First Round Second Round
Facsimile Number Commitment Commitment
%age %age
----------------------------------- ---------------------------- --------------- -----------------
Xxxxxx X. Xxxxx 00 Xxxxxx Xxxxxx 16.67 11.43
Xxx Xxxx, XX 00000
----------------------------------- ---------------------------- --------------- -----------------
Xxxxxx Capital Corp 00 Xxxxx XxXxxxx Xxxxxx 20.83 14.29
Xxxxx 0000
Xxxxxxx, XX 00000
----------------------------------- ---------------------------- --------------- -----------------
New Horizons Investment Corp. N.V. c/o 0000 Xxxxxxx, Xxxxx 000 62.50 42.86
Xxxxxxx, XX 00000
----------------------------------- ---------------------------- --------------- -----------------
Exhibit A
FORM OF PROMISSORY NOTE
New York, New York
Dated: , 2000
PROMISSORY NOTE
$XX.XX
FOR VALUE RECEIVED DIRECTRIX, INC., a company organized under the laws
of Delaware (the "Borrower"), does hereby promise to PAY TO THE ORDER OF (THE
"LENDER") the principal amount of UNITED STATES DOLLARS ($_______), or the
aggregate principal amount of all advances (the "Advances") made by the Lenders
pursuant to the Loan Agreement referred to below, whichever is less, at the time
and in the manner specified in the Amended and Restated Loan Agreement. All
defined terms used herein shall have the meanings assigned thereto in the
Amended and Restated Loan Agreement.
The Borrower also promises to pay interest on the unpaid principal
amount of this Note at 11% per annum. The interest rate in effect from time to
time pursuant to this Note shall be referred to herein as the "Applicable Rate".
Interest on the Advances shall accrue and be due and payable monthly in
arrears on the last day of each month, until the entire principal amount of the
Note has been repaid in full. All interest accrued hereunder not previously paid
shall be due and payable on the date that the last payment of the principal
amount hereof is paid or payable as set forth in Article 1 of the Amended and
Restated Loan Agreement. Payments of interest and principal will be made to the
order of the Lender at its Account ______________ maintained at [Bank] in the
City of New York.
Any amount of principal or interest hereof which is not paid when due,
whether at stated maturity, by acceleration, or otherwise, shall bear interest
from the date when due until said amount is paid in full, payable on demand, at
a rate per annum equal to 2% above the then Applicable Rate (the "Default
Rate").
Absent manifest error, the records of the Lender and the notice in
respect of interest due, shall be conclusive as to amounts of principal
outstanding and interest due on this Note from time to time.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Amended and Restated Loan and Security Agreement dated as of
January , 2000 among the Borrower, the Lender and other persons which agreement
provides, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain stated events.
This Note shall be governed by the laws of the State of New York.
DIRECTRIX, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
