EXHIBIT 10.1
EXECUTION COPY
CREDIT LINE LOAN AGREEMENT
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STYLECLICK, INC. (the "BORROWER") and USA NETWORKS, INC. (the
"LENDER"), for valuable consideration, the receipt of which is hereby
acknowledged, enter into this Credit Line Loan Agreement (this "AGREEMENT") and
agree as follows on and as of July 27, 2001:
I. DEFINITIONS.
Each reference herein to:
A. "AVERAGE RATE" shall mean the weighted average rate of interest
actually paid by the Lender during each calendar month (or part
thereof) from the date hereof through the Maturity Date under the
Credit Agreement, as amended from time to time, dated February 12,
1998, to which USA Networks, Inc., USANi LLC and The Chase
Manhattan Bank, as administrative agent, syndication agent and
collateral agent, are parties;
B. "BOOKS AND RECORDS" shall mean all books, correspondence, credit
files, records and other documents relating directly or indirectly
to the Obligations, including, without limitation, all tapes,
cards, runs, databases, software programs, diskettes, and other
papers and documents in the possession or control of the Borrower,
any computer service bureau, or other agent or independent
contractor;
C. "LOAN DOCUMENTS" shall mean this Agreement, the Note, and any
amendments thereto, and any and all other documents related to
this Agreement and/or the Credit Line Loan;
D. "MATERIAL ADVERSE CHANGE" shall mean with respect to the Borrower
and any of its respective properties or revenues, an event, action
or condition that would or is reasonably likely to (i) adversely
affect the validity or enforceability of, or the authority of the
Borrower to perform its obligations under any of the Loan
Documents, or (ii) materially adversely affect the business,
operations, assets or condition (financial or otherwise) of the
Borrower and any of its respective properties, taken as a whole,
or the ability of the Borrower to perform its obligations under
any of the Loan Documents;
E. "MATURITY DATE" shall mean any date on which the Lender demands
repayment of the Credit Line Loan on or after January 26, 2003;
F. "OBLIGATIONS" shall mean, collectively, all of the obligations and
liabilities of the Borrower to Lender, whether for principal,
interest (including, without limitation, interest accruing at the
then applicable rate provided herein after the Maturity Date and
interest accruing at the then applicable rate provided herein
after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding),
expenses, indemnities or otherwise, and whether direct or
indirect, joint or several, actual, absolute or contingent,
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matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise,
under or in respect of any of the Loan Documents; and
G. "STATE" shall mean the State of New York.
II. LINE OF CREDIT.
A. CREDIT LINE LOAN. This Agreement evidences a line of credit
extended by Lender to the Borrower for the Borrower's short-term
borrowing needs (the "CREDIT LINE LOAN") with a credit limit (the
"CREDIT LIMIT") of the maximum principal sum at any one time
outstanding of Fifteen Million Dollars ($15,000,000.00).
B. ADVANCES UNDER CREDIT LINE LOAN. Subject to the satisfaction of
all conditions precedent set forth in Section IV, the Lender
agrees to make advances to the Borrower under the Credit Line Loan
up to the Credit Limit until the earlier of the Maturity Date or
any earlier termination of the Lender's commitment upon the
occurrence of an Event of Default (as defined in Section VI).
Each advance under the Credit Line Loan shall be disbursed by
wire transfer to such account as the Borrower may designate in
accordance with Section VII(B).
Prior to the earlier of the Maturity Date or any earlier
termination of the Lender's commitment upon the occurrence of
an Event of Default, the Borrower may borrow, repay and
re-borrow the Credit Line Loan, provided that the Credit Line
Loan shall never exceed the Credit Limit at any one time
outstanding.
Upon the earlier of the Maturity Date or termination of the
Lender's commitment upon the occurrence of an Event of Default
as provided in Section VI below the Credit Limit shall be
reduced to zero in accordance with the terms hereof.
C. EXCESS ADVANCES. If for any reason the aggregate outstanding
principal balance of the Credit Line Loan should at any time
exceed the Credit Limit, the Borrower shall, without demand, not
later than the close of business on the second business day
thereafter immediately pay to the Lender a sum sufficient to
reduce the outstanding principal balance of the Credit Line Loan
(including capitalized interest) to the Credit Limit.
D. MINIMUM AMOUNT OF CREDIT LINE ADVANCE. Each advance under the
Credit Line shall be in minimum amount of Five Hundred Thousand
Dollars ($500,000.00) or the unadvanced balance of the Credit
Limit, whichever is less.
E. INTEREST ACCRUAL AND PAYMENT. Except as provided in Section II(H)
below, the outstanding principal balance of the Credit Line Loan
shall bear interest at the Average Rate, payable with respect to
the Credit Line Loan in arrears as provided in the Note.
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F. DUE DATE. The entire outstanding principal balance of the Credit
Line Loan shall become due and payable on the Maturity Date, or,
if earlier, the occurrence of an Event of Default hereunder as
provided in Section VI. Accrued interest on any Credit Loan Line
shall be payable in arrears on the last business of each month and
on the Maturuty Date, or, if earlier, the occurrence of an Event
of Default hereunder as provided in Section VI.
G. NOTE. The Credit Line Loan shall be evidenced by a separate
promissory note of the Borrower dated as of the date hereof (the
"NOTE", a form of which is attached hereto as EXHIBIT A). Each
reference to the Note shall include all amendments thereto and any
additional or supplementary notes executed pursuant to this
Agreement.
H. DEFAULT INTEREST; INTEREST CALCULATION. All principal and other
amounts outstanding and payable under the Note and not paid when
due shall bear interest from the date due until paid in full at a
rate per annum equal to 2% plus the Average Rate.
III. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants that:
A. ORGANIZATION AND POWERS. (i) It is duly organized, validly
existing and in good standing, (ii) it has the power and authority
to own its properties and to carry on its business as now being
conducted and is qualified to do business in every jurisdiction
where such qualification is necessary, except where the failure to
be so qualified will not have a material adverse effect on the
Borrower and its subsidiaries taken as a whole ("MAE"), (iii) it
has the power to execute, deliver and perform the Loan Documents,
(iv) the execution, delivery and performance of the Loan Documents
have been duly authorized by all requisite corporate action of the
Borrower, and (v) the execution, delivery and performance of the
Loan Documents will not violate any provision of law, any order of
any court or other agency of government, the Articles of
Incorporation or By-laws of Borrower or any indenture, agreement
or other instrument to which it is a party, or by which it is
bound, or be in conflict with, result in a breach of or constitute
(with due notice of lapse of time or both) a default under any
such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the property or assets of the
Borrower or the acceleration of any of its outstanding
indebtedness, except for such violations, conflicts, breaches or
defaults which would not individually or in the aggregate have a
MAE.
B. LITIGATION. There is no action, suit or proceeding at law or in
equity or by or before any governmental instrumentality or other
agency now pending or threatened against or affecting the
Borrower, except those that have been previously disclosed to the
Lender.
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C. NO CONFLICT. The Borrower is not a party to any agreement or
instrument or subject to any restriction materially or adversely
affecting its business, properties or assets, operations or
condition, financial or otherwise except those that have been
previously disclosed to the Lender. The Borrower has no knowledge
that it is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which it is a party
except those defaults which would not individually or in the
aggregate have a MAE.
IV. CONDITIONS OF LENDING.
A. EACH ADVANCE. The Lender shall be obligated to make advances,
including the initial advance, under this Agreement only if on the
date any such advance is requested and after giving effect
thereto:
(1) The representations and warranties in Section III hereof are
true and correct in all material respects;
(2) All covenants in Section V hereof are complied with;
(3) No Event of Default exists;
(4) Any advance shall be used for working capital and general
corporate purposes
(5) Such advance has been duly authorized by the Borrower's Board
of Directors; and
(6) The Lender shall have received duly executed originals of (a)
the original Loan Documents, and (b) a borrowing request
executed by a duly authorized officer of the Borrower
specifying the amount to be borrowed hereunder, the account
to which the borrowed funds are to be paid, the date of the
requested borrowing (which shall be not less than three
business days after such borrowing request is received by the
Lender) and certifying as to the satisfaction of the
conditions set forth above in clauses (1), (2), (3), (4) and
(5) of this Section IV.
V. COVENANTS.
The Borrower covenants and agrees that:
A. USE OF PROCEEDS. The Borrower will use the proceeds of the Credit
Line Loan solely for working capital and general corporate
purposes.
B. RANKING. Principal and interest payable on the Credit Line Loan
shall rank at least equal to all existing and future unsecured and
unsubordinated indebtedness of the Borrower.
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C. LEGAL EXISTENCE; INSURANCE; ETC. The Borrower will (i) keep in
full force and effect its legal existence, rights, licenses,
permits and franchises necessary for the operation of its business
as conducted prior to the date hereof, except for the
relinquishment of such as would not individually or in the
aggregate have a MAE; (ii) operate its business in all material
respects as conducted prior to the date hereof, except for the
Borrower's proposed closing of its Los Angeles facilities and the
transfer of its business and assets to its Chicago facility as
disclosed to the Lender, and the Borrower's shut down of its
XxxxxXxxxxxx.xxx business in May 2001; (iii) maintain all property
used and reasonably necessary in the conduct of its business and
keep the same in good repair, working order and condition, and
(iv) maintain adequate insurance on its business and properties.
D. COMPLIANCE WITH LAWS. Each of the Borrower and its subsidiaries
will comply in all material respects with all present and future
applicable laws, ordinances, rules, regulations, directives and
other requirements of all governmental instrumentalities.
E. PAYMENT OF TAXES. Each of the Borrower and its subsidiaries will
pay and discharge all taxes, assessments, and governmental charges
imposed upon the Borrower, its income or its property before the
same shall be in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid might become
a lien upon any such properties, except for the failure to pay and
discharge all taxes, assessments, charges and claims which will
result in liens, the existence of which will not individually or
in the aggregate have a MAE.
F. INSPECTION. The Borrower will permit agents or representatives of
the Lender, at reasonable hours and upon reasonable notice, to
inspect the Books and Records of the Borrower and to make
abstracts or reproductions thereof, all at the Borrower's expense.
G. LIENS. Neither the Borrower nor any of its subsidiaries will
create, assume or suffer to exist any mortgage, security interest,
or lien on any if its assets, now or hereafter owned, or assign or
otherwise convey any right to receive income, other than (i) liens
securing indebtedness to the Lender, (ii) liens securing the
payment of taxes not yet due, (iii) mechanics liens or liens
imposed by law (other than for borrowed money, judgments or
delinquent taxes), (iv) liens incurred in the ordinary course of
business, and (v) other liens permitted in writing by the Lender.
H. GUARANTIES; ETC. Neither the Borrower nor any of its subsidiaries
will guarantee, endorse or otherwise become or be responsible for
obligations of any other person or entity, whether by agreement to
purchase the indebtedness of any other person or entity or
agreement for the furnishing of funds to any other person or
entity through purchase of goods, supplies or services, or by way
of stock purchase, capital contribution, advance or loan, for the
purpose of paying or discharging any indebtedness or obligation of
such other person or entity, or otherwise, except endorsements of
negotiable instruments for collection in the ordinary course of
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business and except for such other guarantees granted in the
ordinary course of business of Borrower and its subsidiaries and
consistent with past practice.
I. INDEBTEDNESS. Neither the Borrower nor any of its subsidiaries
will incur or permit to exist any indebtedness for borrowed money
except: (i) indebtedness to the Lender, (ii) unsecured trade
obligations incurred in the ordinary course of business and (iii)
any other indebtedness for borrowed money permitted in writing by
the Lender.
J. SALES AND TRANSFERS. Neither the Borrower nor its subsidiaries
will sell, assign, lease, transfer, sell and leaseback, or
otherwise dispose of all or any material amount of its assets to
any person or entity or turn over the management of, or enter into
a management contract with respect to, itself or such assets,
except as set forth in the Services Agreement by and between the
Borrower and USA Electronic Commerce Solutions LLC, dated May 14,
2001, and in connection with the Borrower's proposed closing of
its Los Angeles facilities and the transfer of its business and
assets to its Chicago facility as disclosed to the Lender.
K. NOTICE. If any one or more Events of Default or Material Adverse
Changes shall occur, the Borrower shall, immediately after it
becomes aware that any such Events of Default or Material Adverse
Changes has occurred, give written notice to the Lender,
specifying the nature of such event.
L. FISCAL YEAR. The Borrower shall not change its fiscal year without
the written consent of Lender.
VI. EVENTS OF DEFAULT.
A. EVENTS OF DEFAULT. If any one or more of the following events,
herein called "EVENTS OF Default", shall occur, for any reason
whatsoever, and whether such occurrence shall be voluntary or
involuntary or come about or be effected by operation of law or
pursuant to or in compliance with any judgment, decree or order of
a court of competent jurisdiction or any order, rule or regulation
of any administrative or other governmental authority, and such
Event of Default shall be continuing:
(1) there occurs any Material Adverse Change;
(2) any representation or warranty made herein or in any report,
certificate, financial statement or other instrument
furnished in connection with this Agreement shall prove to be
false or misleading in any material respect;
(3) default shall be made in the payment of the principal,
pursuant to the terms of the Note, when and as the same shall
become due and payable, whether at maturity or by
acceleration or otherwise;
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(4) default shall be made in the due observance or performance of
any other covenant, condition or agreement on the part of the
Borrower or its subsidiaries to be observed or performed
pursuant to the terms of this Agreement, and such default
shall continue for five days after written notice thereof,
specifying such default and requesting that the same be
remedied, shall have been given to the Borrower by the
Lender;
(5) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Borrower in an
involuntary case under the Bankruptcy Code or any other
applicable federal or state bankruptcy, insolvency or other
similar laws, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the
Borrower or for any substantial part of its property, or
ordering the winding-up or liquidation of any of its affairs
and the continuance of any such decree or order unstayed and
in effect for a period of 30 consecutive days; or
(6) the commencement by the Borrower of a voluntary case under
the Bankruptcy Code or any other applicable federal or state
bankruptcy, insolvency or other similar laws, or the consent
by it to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Borrower or
for any substantial part of its property, or the making by it
of any assignment for the benefit of creditors, or the
admission by the Borrower in writing of its inability to pay
its debts generally as such debts become due, or the taking
of corporate action by the Borrower in furtherance of any
such action;
then, in addition to all other rights and remedies available to
the Lender at law or in equity or otherwise, (i) if an Event of
Default set forth in clauses (5) or (6) of this Section VI shall
occur and be continuing, or shall exist, this Note automatically
shall become immediately due and payable, together with interest
accrued thereon, and any commitment of the Lender to make advances
to the Borrower hereunder automatically shall terminate, all
without presentment, demand, protest or notice of any kind, all of
which are expressly waived to the fullest extent permitted by law
and (ii) if an Event of Default other than an Event of Default set
forth in clauses (5) or (6) of this Section VI shall occur and be
continuing, or shall exist, the Lender may, at its sole option, by
written notice to the Borrower, declare this Note to be, and this
Note shall thereupon be and become, immediately due and payable,
together with interest accrued thereon, whereupon any commitment
of the Lender to make any advances to the Borrower hereunder shall
automatically terminate, all without presentment, demand, protest
or other notice of any kind, all of which are expressly waived to
the fullest extent permitted by law.
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VII. MISCELLANEOUS.
A. WAIVER OF EVENT OF DEFAULT. No delay in terminating the Lender's
commitment under this Agreement and/or in making demand shall
affect the rights of the Lender later to take such action with
respect thereto, and no waiver as to one Event of Default shall
affect rights as to any other default hereunder.
B. NOTICES. Except as otherwise specifically provided for herein, any
notice, demand or communication hereunder shall be given in
writing (including facsimile transmission or telex) and mailed or
delivered to each party at its principal offices, or, as to each
party, at such other address as be designated by such party by a
prior notice to the other party in accordance with the terms of
this provision. All notices hereunder shall be effective upon the
earliest to occur of (i) five (5) business days after such notice
is mailed, by registered or certified mail, postage prepaid
(return receipt requested), (ii) upon delivery by hand, (iii) upon
delivery if delivered by overnight courier (such delivery to be
evidenced by the courier's records), and (iv) in the case of any
notice or communication by telex or telecopy, on the date when
sent if confirmation of transmission is received by the sender.
C. SURVIVAL. This Agreement and all covenants, agreements,
representations and warranties made herein and in the certificates
delivered pursuant hereto shall survive any making by the Lender
of the Credit Line Loan and the execution and delivery of any Loan
Document and shall continue in full force and effect until this
Agreement is terminated and all the Obligations are paid in full.
D. LEGAL FEES AND EXPENSES; ADDITIONAL FEES AND CHARGES. The Borrower
will pay all expenses incurred by the Lender in connection with
the preparation of the Loan Documents, the making of the Credit
Line Loan, and the enforcement of the rights of the Lender in
connection with this Agreement, any of the other Loan Documents
and the Credit Line Loan, including, but not limited to, the
reasonable fees of its counsel, plus the disbursements of said
counsel.
E. CHOICE OF LAW. This Agreement and all the other Loan Documents
shall be construed in accordance with and governed by the laws of
the State, without reference to the choice-of-law principles
thereof.
F. WRITTEN MODIFICATION AND WAIVER. No modification or waiver of any
provision of this Agreement or of any of the other Loan Documents
nor consent to any departure by the Borrower therefrom shall in
any event be effective unless the same shall be in writing, and
then such waiver or consent shall be effective only in the
specific instance and for the 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 the same,
similar or other circumstances.
G. DOCUMENTATION. All documents required hereunder shall be in form
and substance satisfactory to the Lender.
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H. REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of an officer
of the Lender as to the loss, theft, destruction or mutilation of
the Note or any other document which is not of public record, and,
in the case of any such loss, theft, destruction, mutilation, upon
cancellation of such Note or other document, the Borrower will
issue, in lieu thereof, a replacement note or other document in
the same principal amount thereof and otherwise of like tenor.
I. UNENFORCEABILITY. In the event any term or provision of this
Agreement or the application thereof to any person or circumstance
shall, to any extent, be held invalid or unenforceable, the
remainder of this Agreement or the application of such term or
provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall be valid and enforceable
to the fullest extent permitted by law.
J. REMEDIES CUMULATIVE. No course of dealing on the part of Lender or
any delay or failure on the part of Lender to exercise any right
shall operate as a waiver of the right or otherwise prejudice
Lender's rights, powers and remedies. All of the Lender's rights
and remedies shall be cumulative.
K. MAXIMUM RATE OF INTEREST. All provisions of this Agreement are
expressly subject to the condition that in no event shall the
amount paid or agreed to be paid to the Lender hereunder and
deemed interest under applicable law exceed the maximum rate of
interest on the unpaid principal balance of the Credit Line Loan
allowed by applicable law (the "MAXIMUM ALLOWABLE RATE"), which
shall mean the law in effect on the date of this Agreement, except
that if there is a change in such law which results in a higher
Maximum Allowable Rate being applicable to this Agreement, then
this Agreement shall be governed by such amended law from and
after its effective date. In the event that fulfillment of any
provision of this Agreement results in the interest rate hereunder
being in excess of the Maximum Allowable Rate, the obligation to
be fulfilled shall automatically be reduced to eliminate such
excess. If, notwithstanding the foregoing, the Lender receives an
amount which under applicable law would cause the interest rate
set forth in this Agreement to exceed the Maximum Allowable Rate,
the portion thereof which would be excessive shall automatically
be applied to and deemed a prepayment of the unpaid principal
balance of the Credit Line Loan and not a payment of interest.
L. JURISDICTION AND VENUE. The Borrower irrevocably consents that any
legal action or proceeding against it or any of its property with
respect to any matter arising under or relating to this Agreement
and the other Loan Documents may be brought in any court of the
State, or any Federal Court of the United States of America
located in the State, as the Lender may elect, and by execution
and delivery of this Agreement the Borrower hereby submits to and
accepts with regard to any such action or proceeding, for itself
and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The Borrower further
irrevocably consents to the service or process in any such action
or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Borrower at its address
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set forth herein. The foregoing, however, shall not limit the
Lender's rights to serve process in any other manner permitted by
law or to bring any legal action or proceeding or to obtain
execution of judgment in any other jurisdiction. The Borrower
irrevocably waives any objection which it may now or hereafter
have to the laying of the venue of any suit, action or proceeding
arising out of or relating to this Agreement and the other Loan
Documents, and further irrevocably waives any claim that the State
is not a convenient forum for any such suit, action or proceeding.
M. WAIVER OF PRESENTMENT; ETC. The Borrower expressly waives
presentment, notice of dishonor, protest and notice of
non-payment.
N. INTEGRATION. The Loan Documents supersede all prior agreements
between the parties with respect to the Credit Line Loan, whether
oral or written, including, without limitation, all correspondence
between counsel for the respective parties. The Loan Documents
constitute the entire agreements between the parties with respect
to the Credit Line Loan, and the rights, duties, and obligations
of the parties with respect thereto.
O. LENDER LIABILITY. The Lender shall not be liable for any loss
sustained by any party resulting from any action, omission, or
failure to act by the Lender, whether with respect to the exercise
or enforcement of the Lender's rights or remedies under the Loan
Documents, the Credit Line Loan, or otherwise, unless such loss is
caused by the actual willful misconduct of the Lender conducted in
bad faith. IN NO EVENT SHALL THE LENDER EVER BE LIABLE FOR
CONSEQUENTIAL OR PUNITIVE DAMAGES, ANY RIGHT OR CLAIM THERETO
BEING EXPRESSLY AND UNCONDITIONALLY WAIVED.
P. LENDER'S DECISIONAL STANDARDS. To the extent that applicable laws
require the Lender's actions or decisions under the Loan Documents
to be conducted in good faith, the term "good faith" shall be
defined (using a subjective standard) as honesty in fact with
regard to the conduct or transaction concerned based upon the
facts and circumstances actually known to the individual(s) acting
for the Lender, and such requirement may be satisfied by reliance
upon the advice of attorneys, accountants, appraisers, architects,
engineers, or other qualified professionals.
Q. DESCRIPTIVE HEADINGS; CONTEXT. The captions in this Agreement are
for convenience of reference only and shall not define or limit
any provision. Whenever the context requires, reference in this
Agreement to the neuter gender shall include the masculine and/or
feminine gender, and the singular number shall include the plural,
and, in each case, vice versa.
R. ACKNOWLEDGEMENT OF COPY. The Borrower acknowledges that it has
received a fully executed copy of this Agreement.
* * * * * *
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IN WITNESS WHEREOF, the Borrower and the Lender, by persons duly
authorized, have executed this Agreement on and as of the date first above
written.
STYLECLICK, INC.
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
USA NETWORKS, INC.
By:
--------------------------
Name:
Title:
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Exhibit A
CREDIT LINE LOAN PROMISSORY NOTE
--------------------------------
MAXIMUM PRINCIPAL AMOUNT: $15,000,000.00 NEW YORK, NEW YORK
July 27, 2001
BORROWER: STYLECLICK, INC.
LENDER: USA NETWORKS, INC.
ADDITIONAL DEFINITIONS
----------------------
LENDER'S ADDRESS: 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000
INTEREST RATE: The interest rate per annum equal to the Average Rate, as such
term is defined in the Loan Agreement.
LOAN AGREEMENT: That certain Loan Agreement dated as of the date hereof between
the Lender and the Borrower relating to the indebtedness evidenced hereby,
the terms and provisions of which are incorporated herein by reference.
All capitalized words or phrases which are not otherwise specifically defined
hereinabove or elsewhere in this Note shall have the meaning assigned in
the Loan Agreement.
1. PROMISE TO PAY. FOR VALUE RECEIVED, the Borrower promises to pay to the
order of the Lender, on the Maturity Date or on such earlier date as
the Obligations under the Loan Agreement may become due and payable
upon acceleration, the Maximum Principal Amount or, if less, the
aggregate unpaid principal amount of the Credit Line Loan made by the
Lender to the Borrower pursuant to the Loan Agreement. The Borrower
also agrees to pay interest at the Average Rate on the unpaid Principal
Amout. Interest shall be payable in arrears on the last business day of
each month and on the Maturity Date or on such earlier date as the
Obligations under the Loan Agreement may become due and payable upon
acceleration. Notwithstanding the foregoing, from and after the date
payment is due, all principal and other amounts outstanding and payable
under this Note shall bear interest at a rate per annum equal to 2%
plus the Average Rate until paid in full.
2. PAYMENT PROVISIONS. All sums payable hereunder are payable in lawful
money of the United States of America and in immediately available
funds at the Lender's Address or at such place or places as the Lender,
its successors or assigns may designate in writing. If this Note or any
payment hereunder becomes due on a Saturday, Sunday or other holiday on
which the Lender is authorized to close, the due date of this Note or
payment shall be extended to the next succeeding business day, but all
interest or fees shall be calculated based on the actual time of
payment. On the Maturity Date or on such earlier date as the
Obligations under the Loan Agreement may become due and payable upon
acceleration, this Note shall become immediately due and payable.
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3. REVOLVING CREDIT FACILITY. Prior to the earlier of the Maturity Date or
any earlier termination of the Lender's commitment upon the occurrence
of an Event of Default, the Borrower may borrow, repay and re-borrow
the Credit Line Loan, up to the Credit Limit.
4. FEES AND EXPENSES. The Borrower will pay all expenses incurred by the
Lender in connection with the preparation of the Loan Documents, the
making of the Credit Line Loan evidenced by this Note, and the
enforcement of the rights of the Lender in connection with this Note
and the Loan Documents, including, but not limited to, the reasonable
fees of its counsel, plus the disbursements of said counsel. The
Borrower further agrees to pay to the Lender on demand all reasonable
fees, costs and expenses incurred by the Lender in connection with the
administration of this Credit Line Loan.
5. WAIVER. The Borrower expressly waives presentment, notice of dishonor,
protest and notice of nonpayment.
6. CHOICE OF LAW. This Note shall be construed in accordance with and
governed by the laws of the State of New York, without reference to the
choice-of-law principles thereof.
WITNESS:
STYLECLICK, INC.
By:
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NAME
TITLE
By:
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NAME
TITLE
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