EXHIBIT 10.42
LOAN AGREEMENT
LOAN AGREEMENT, dated as of January 31, 1997, among Xxxxxxx Xxxxx,
Inc., a California corporation (the "Borrower"), Styles On Video, Inc., a
Delaware corporation ("Parent"), and Hasco International, Inc., a Missouri
corporation (the "Lender").
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following definitions:
"AFFILIATE" shall mean, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled by,
such Person and, if such Person is an individual, any member of the immediate
family (including parents, spouse and children) of such individual, any trust
whose principal beneficiary is such individual or one or more members of such
individual's immediate family and any Person who is controlled by any such
member or trust.
"ASSET PURCHASE AGREEMENT" means the Asset Purchase Agreement, dated as of
January 31, 1997, among the Borrower, Parent, the Lender and Hasco Holdings
Corp.
"BANKRUPTCY CODE" means The United States Bankruptcy Code of 1978, as
amended from time to time, or any successor federal statute.
"BORROWING PERIOD" means each of the following periods: (a) the date of
this Agreement through and including February 14, 1997; (b) February 15, 1997
through and including March 14, 1997; and (c) March 15, 1997 through and
including April 15, 1997.
"BUSINESS DAY" shall mean any day on which commercial banks are not
authorized or required to close in the State of Missouri.
"CONTROL" (including, with its correlative meanings, "controlled by" and
"under common control with") shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of management or policies of the
subject Person (whether through ownership of securities or Borrower or other
ownership interests, by contract or otherwise).
"DEFAULT" shall mean any event which upon the giving of notice, passage of
time or both would result in an Event of Default.
"EVENT OF DEFAULT" shall mean one or more of the events specified in
Section 6.
"EXPIRATION DATE" shall mean the earlier of (a) the termination of the
Asset Purchase Agreement or (b) April 22, 1997; provided that such date shall be
extended by successive periods of 15 days if, at the time of any such extension,
(x) the Asset Purchase Agreement shall not have been terminated,(y) no Default
or Event of Default exists and (z) Borrower and Parent are proceeding diligently
and in good faith to satisfy the conditions set forth in the Asset Purchase
Agreement; provided that in no event shall the Expiration Date extend past May
22, 1997.
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent agreement
to purchase or to furnish funds for the payment or maintenance of, or otherwise
to be or become contingently liable under or with respect to, any Indebtedness
or other obligations, performance, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an agreement
to purchase, sell or lease (as lessee or lessor) property, products, materials,
supplies or services primarily for the purpose of enabling a debtor to make
payment of its obligations or an agreement to assure a creditor against loss,
and including causing a bank to issue a letter of credit for the benefit of
another Person, but excluding endorsements for collection or deposit in the
ordinary course of business.
"INDEBTEDNESS" shall mean, without duplication, as to any Person (a)
indebtedness created, issued or incurred by such Person for borrowed money
(whether by loan or the issuance or sale of debt securities) whether or not
recourse is limited to specific assets of such Person; (b) obligations of such
Person to pay the deferred purchase or acquisition price of property or
services, other than trade accounts payable arising in the ordinary course of
business; (c) Indebtedness of others secured by a Lien on the property of such
Person, whether or not the Indebtedness so secured has been assumed by such
Person; (d) reimbursement obligations of such Person in respect of letters of
credit or similar instruments issued or accepted by banks and other financial
institutions for the account of such Person; (e) capital lease obligations of
such Person; and (f) Indebtedness of others Guaranteed by such Person.
"INSTALLED" has the meaning given to such term in the Asset Purchase
Agreement.
"INVESTMENT" shall mean (without duplication), for any Person: (a) the
acquisition (whether for cash, property, services or securities or otherwise) of
capital stock, bonds, notes, debentures, Borrower or other ownership interests
or other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such sale); (b) the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of property
from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such property to such Person, but excluding any such
advance, loan or extension of credit having a term not exceeding 90 days
representing the purchase price of inventory or supplies sold in the ordinary
course of business); (c) the entering into of any Guarantee of, or other
contingent obligation with respect to, Indebtedness or other liability of any
other person and (without duplication) any amount committed to be advanced, lent
or extended to such Person or (d) any capital expenditure (including capital
leases) or any operating lease.
"LIEN" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, xxxx, xxxx or similar
charge of any kind.
"LOAN" shall mean the loans made to the Borrower pursuant to this
Agreement.
"MATERIAL ADVERSE EFFECT" has the meaning given to such term in the Asset
Purchase Agreement.
"MATURITY DATE" shall mean the earlier of (a) the closing of the purchase
of assets under the Asset Purchase Agreement and (b) the 90th day following the
Expiration Date.
"OBLIGATIONS" shall mean (a) all the principal of and interest (including
interest accruing on or 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 of post-petition interest is allowed in
such proceeding) under this Agreement and the Note, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise and (b) all other monetary and non-monetary obligations of the
Borrower to the Lender under this Agreement and any other Loan Document.
"PRIOR LOAN" shall mean the $60,000 loan made on January 22, 1996 by the
Lender to the Borrower.
"RESTRICTED PAYMENTS" shall mean (a) dividends or distributions by or on
behalf of any Obligor (in cash, property or obligations, but excluding dividends
payable solely in shares of non-redeemable capital stock) on, or other payments
or distributions on account of or with respect to, or the setting apart of money
for a sinking or other analogous fund for, or the purchase, redemption,
retirement or other acquisition of, any shares of any class of capital stock or
partnership interest of any Obligor or any options, warrants or similar rights
to acquire any such capital stock or partnership interest and (b) any prepayment
by any Obligor of principal, optional redemption, purchase, retirement,
defeasance, or similar optional prepayment with respect to any Indebtedness for
borrowed money, other than the Loan, except in each case the exchange of debt or
securities of any Obligor for non-redeemable capital stock of such Obligor.
The terms set forth below are defined in the Sections set forth below:
Recitals
BORROWER
IDI (S)2.3
LENDER Recitals
LOAN DOCUMENTS (S)4.1
OBLIGOR (S)4
NOTE (S)3
PARENT Recitals
SECURITY AGREEMENT (S)3
All accounting terms used herein shall have the meanings given to them
under generally accepted accounting principals, consistently applied.
2. LOAN AND TERMS OF PAYMENT.
2.1 THE LOAN. The Lender agrees, on the terms and subject to the
conditions contained herein, to make loans to the Borrower during the period
from and including the date of this Agreement to but not including the
Expiration Date in an aggregate principal amount of up to $180,000 for each
Borrowing Period, but in no event more than an aggregate of $540,000; provided
that if the aggregate Loans in any Borrowing Period are less than $180,000, such
unborrowed amount may be borrowed in a subsequent Borrowing Period; provided
further that the Lender may in its sole discretion loan money in excess of such
limits and during periods other than the Borrowing Period and, if the lender
makes such loans, such loans shall be Loans made under this Agreement and
subject to the terms hereof. Notwithstanding the foregoing, on the execution
date of this Agreement a borrowing under the foregoing facility shall be deemed
to have been made in the principal amount of the Prior Loan, which amount shall
deemed to repay the Prior Loan, with such amount then constituting a Loan
hereunder.
2.2 INTEREST. The Loans shall bear interest at a rate per annum
equal to 10%. Accrued and unpaid interest outstanding under the Loans at the
Maturity Date shall be due and payable by the Borrower without demand upon such
date. Interest on the Loans shall be computed on the basis of a year of 365/366
days and actual days elapsed (including the first day but excluding the last
day) occurring in the period for which such amounts are payable. Interest on
the principal advanced to repay the Prior Loan shall accrue from January 22,
1997. If an Event of Default shall have occurred and be continuing, the
Borrower agrees to pay to the Lender interest on the unpaid principal amount of
the Loans (and, to the extent permitted by law, on the unpaid amount of all
interest, fees and other amounts payable hereunder that is not paid when due) at
a rate
per annum equal at all times to 2 percentage points per annum above the 10% rate
per annum otherwise required to be paid on such Loans pursuant to this Section
2.2.
2.3 PRINCIPAL REPAYMENT. The outstanding principal of the Loans
shall be due and payable by the Borrower without demand upon the Maturity Date.
The Loan may be repaid in whole or in part by the Borrower without penalty or
premium at any time and from time to time. International Digital Investors,
L.P. ("IDI") shall have the right to pay in cash to the Lender any and all of
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the Obligations (including, without limitation, the payment of the principal
amount of the Loans and any accrued or unpaid interest thereon); provided,
however, that nothing contained in this Agreement shall obligate IDI to fulfill
any Obligations.
2.4 PAYMENT WITH HOSPITAL CONTRACTS. At the Maturity Date, the
Borrower may repay the Obligations either in cash or, subject to the conditions
set forth herein, by the assignment of Hospital Contracts; provided that the
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Lender must consent to each Hospital Contract proposed to be assigned in payment
of the Obligations, which consent will not be unreasonably withheld (it being
understood that the Lender may consider the stability, sale rate and terms of
the Hospital Contract). Each assigned Hospital Contract shall be deemed to have
a value equal to that assigned to such contract on Schedule 2.1(a) to the Asset
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Purchase Agreement or, if such Hospital Contract is not set forth on such
Schedule 2.1(a), a value equal to $20 per annualized hospital births at the
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covered hospital (with the number of annualized hospital births calculated as
contemplated by in Section 4.2(h) of the Asset Purchase Agreement). No Hasco
Hospital (as defined in the Asset Purchase Agreement) may be included in the
assignment. The assignment documents will be in form and substance reasonably
satisfactory to the Lender and the Borrower, and will contain a binding
undertaking of Parent and the Borrower not to directly or indirectly solicit
such assigned hospital for three years following the assignment and not to
disclose confidential information regarding such hospital or Hospital Contract.
2.5 USE OF PROCEEDS. The Borrower shall use the proceeds of the Loan
solely to pay trade payables, salaries, commissions and other ordinary course
operating expenses; provided in no event shall any proceeds be used to repay any
obligations to, or expenses or amounts advanced by, any Affiliate of the
Borrower or Parent (other than to individuals in the ordinary course of business
and to Dycam under agreements in existence prior to the date hereof or arising
in the ordinary course of business after the date hereof) or for any expenses or
other amounts incurred in connection with the transactions contemplated by this
Agreement or the Asset Purchase Agreement.
2.6 CONDITIONS. Loans may be requested by the Borrower on or before
12 noon (St. Louis time) on any Business Day by written request that shall
represent and warrant that all of the conditions to such Loan are satisfied.
Loan requests may be submitted for minimum amounts of $50,000 (or such lesser
amount as is then available for borrowing under the terms of this Agreement).
Subject to the terms and conditions of this Agreement, the Lender shall fund any
proper loan request no later than 4:00 pm (St. Louis time) on the Business Day
following receipt of such request. The obligations of the Lender to make any
Loan are subject to the following conditions:
(a) no Default or Event of Default shall have occurred and be
continuing; and
(b) the representations and warranties made by the Borrower and
the Parent in this Agreement, any other Loan Document and the Asset
Purchase Agreement shall be true, complete and correct in all material
respects on and as of the date of the making of such Loan with the
same force and effect as if made on and as of such date (or, in the
case of any such representation and warranty made only as of a
particular date, as of such particular date).
3. SECURITY; NOTE.
The Obligations shall be secured by the Security Agreement, dated as
of the date hereof (the "Security Agreement"). The Obligations shall be
evidenced by a promissory note in the form attached hereto as Exhibit A (the
"Note"). In the event that the Lender extends Loans to the Borrower in excess
of $540,000 hereunder, the Borrower shall execute and deliver to the Lender an
additional promissory note for such additional Loans; provided, that the failure
to deliver such additional promissory note shall not affect the Borrower's
obligations with respect to such additional Loans.
4. REPRESENTATIONS AND WARRANTIES.
The Borrower and Parent (collectively the "Obligors" and individually,
an "Obligor") represent and warrant as follows:
4.1 EXISTENCE. Each Obligor is a corporation duly existing and in
good standing under the laws of its state of incorporation. Each Obligor (a)
has all requisite corporate power, and has all governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as now being or as proposed to be conducted and to consummate the
transactions contemplated by this Agreement, the Security Agreement and the Note
(collectively the "Loan Documents") and (b) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure to so qualify would have a Material
Adverse Effect.
4.2 DUE AUTHORIZATION; NO CONFLICT. The execution, delivery, and
performance of the Loan Documents to which each Obligor is a party is within
each Obligor's powers, has been duly authorized, and is not in conflict with nor
constitutes a breach of any provision contained in any governing documents, or
any other document, instrument or agreement to which the Obligor is a party or
by which the Obligor, or its property or assets is or may be bound, nor will it
constitute an event of default under any material agreement to which the Obligor
is a party or by which the Obligor is bound.
4.3 VALID AND BINDING AGREEMENT. The Loan Documents and all of the
other documents, instruments and agreements executed in connection herewith or
contemplated hereby constitute the valid and binding agreements of each Obligor
executing such Loan Documents and other documents instruments and agreements,
enforceable in accordance with their terms against such Obligor.
4.4 FEDERAL RESERVE REGULATIONS. No Obligor is engaged in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying Margin Stock. No part of the proceeds of any
extension of credit hereunder, whether directly or indirectly, and whether
immediately, incidentally or ultimately, will be used (a) to purchase or carry
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying Margin Stock or to refund indebtedness originally incurred for such
purpose, or (b) for any purpose which entails a violation of, or which is
inconsistent with, the provisions of the Regulations of the Board of Governors
of the Federal Reserve System, including Regulations G, T, U or X.
4.5 NO OTHER SECURITY INTERESTS. The Collateral (as defined in
the Security Agreement) are subject to no Liens other than Liens in favor of
IDI, which Liens are subordinate to those created under the Security Agreement,
and Liens described in Sections 5.6(a), (b), (c) and (d).
5. COVENANTS.
The Borrower covenants and agrees that, until payment in full of the
Obligations, the Borrower shall do all of the following:
5.1 GOOD STANDING. Each of the Borrower and Parent shall maintain
its corporate existence and its good standing in its jurisdiction of
incorporation and maintain qualification in each jurisdiction in which the
failure to so qualify could reasonably be expected to have a Material Adverse
Effect.
5.2 GOVERNMENT COMPLIANCE. Each of the Borrower and Parent shall
comply with all statutes, laws, ordinances and government rules and regulations
to which it is subject, except noncompliance with which could not reasonably be
expected to have a Material Adverse Effect.
5.3 INSURANCE. The Borrower shall maintain insurance coverage that
is usual and customary for a business of a type operated by the Borrower.
5.4 PAYMENT OF TAXES. Each of the Borrower and Parent shall promptly
pay all state and federal taxes when due; provided, however, that if either the
Borrower or Parent contests any such tax, it shall do so in good faith by
appropriate proceedings and shall establish such reserves on its books as are
appropriate under generally accepted accounting principles.
5.5 FINANCIAL STATEMENTS. The Borrower shall furnish to the Lender:
(a) on or prior to the Tuesday of each week, a statement of cash flows of the
Borrower for the preceding week, (b) on or prior to the 21st day of each month,
a balance sheet and statement of operations for the Borrower for the preceding
month and (c) such other financial or other information reasonably requested by
the Lender.
5.6 LIMITATION ON LIENS. The Borrower will not create, incur, assume
or suffer to exist any Lien upon any of its property, whether now owned or
hereafter acquired, except:
(a) Liens created pursuant to the Loan Documents;
(b) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or which are being contested in good faith
and by appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Borrower in accordance with generally accepted
accounting principles;
(c) Carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in good
faith by appropriate proceedings;
(d) Pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(e) Liens relating to Dycam cameras purchased or leased after the
date hereof consistent with prior terms and in the ordinary course of business
for Installation in hospitals subject to Hospital Contracts; and
(f) Liens existing on the date hereof.
5.7 INDEBTEDNESS. The Borrower will not create, incur or suffer to
exit any Indebtedness except:
(a) Indebtedness to Hasco under the Loan Documents;
(b) Indebtedness for Dycam cameras purchased or leased after the date
hereof in the ordinary course of business for Installation in hospitals subject
to Hospital Contracts;
(c) Indebtedness to Affiliates created after the date hereof to
finance operations of the Borrower; and
(d) Indebtedness outstanding on the date hereof.
5.8 INVESTMENTS. The Borrower will not make or permit to remain
outstanding any Investments except:
(a) Operating deposit accounts with banks;
(b) Investments for Dycam cameras purchased or leased after the date
hereof consistent with prior terms and in the ordinary course of business for
Installation in hospitals subject to Hospital contracts; and
(c) Investments made prior to, and outstanding on, the date hereof.
5.9 RESTRICTED PAYMENTS. The Borrower will not make any
Restricted Payments.
5.10 LINES OF BUSINESS. Neither the Borrower nor the Parent
shall engage to any substantial extent in any business activity other than the
business engaged in by the Borrower and Parent, respectively, on the date
hereof.
5.11 TRANSACTIONS WITH AFFILIATES. The Borrower will not,
directly or indirectly: (a) make any Investment in an Affiliate of an Obligor;
(b) transfer, sell, lease, assign or otherwise dispose of any property to an
Affiliate of an Obligor; (c) merge into or consolidate with or purchase or
acquire property from an Affiliate of an Obligor; (d) enter into any other
transaction directly or indirectly with or for the benefit of an Affiliate of an
Obligor (including, without limitation, guarantees and assumptions of
obligations of an Affiliate of an Obligor) or (e) make any loans, advances or
any other payments by any Obligor to any Affiliate of an Obligor, except (w) for
leases or purchases of Dycam cameras and other related transactions consistent
with prior terms and in the ordinary course of business, (x) exchanges of the
Borrower's debt or securities for non-redeemable capital stock of the Borrower,
(y) transactions that occurred prior to the date hereof and (z) loans or
advances to the Borrower by its Affiliates to finance operations of the
Borrower.
6. EVENTS OF DEFAULT.
Any one or more of the following events which remains uncured during
the applicable cure period provided below shall constitute an Event of Default
by the Borrower under this Agreement:
6.1 PAYMENT DEFAULT. The Borrower fails to pay when due and payable,
or when declared due and payable in accordance with this Agreement, any portion
of the Obligations.
6.2 COVENANT DEFAULT; REPRESENTATIONS. The Borrower violates any of
the covenants contained in this Agreement, any other Loan Document or the Asset
Purchase Agreement, and such covenant violation is not cured within five (5)
business days following receipt by the Borrower of notice of such violation; or
any of the representations or warranties in this Agreement, any other Loan
Document or the Asset Purchase Agreement are not true in any material respect
when made or deemed made.
6.3 INSOLVENCY. (a) Any Obligor shall admit in writing its
inability to, or be generally unable to, pay its debts as such debts become due.
(b) Any Obligor shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary case
under the Bankruptcy Code, (iv) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or readjustment of debts, (v) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed against it in
an involuntary case under the Bankruptcy Code, or (vi) take any corporate action
for the purpose of effecting any of the foregoing.
(c) A proceeding or case shall be commenced against any Obligor,
without its application or consent, in any court of competent jurisdiction,
seeking (i) its liquidation, reorganization, dissolution or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of all or any substantial part of
its assets, or (iii) similar relief under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of debts,
and such proceeding or case shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 60 or more days; or an order for relief
against any Obligor shall be entered in an involuntary case under the Bankruptcy
Code.
6.4 JUDGMENTS. A money judgment, writ or warrant of attachment or
similar process is entered or filed against any Obligor or any Obligor's
subsidiaries which is not fully covered by insurance or remains unvacated,
unbonded, unstayed or unpaid or undischarged for more than thirty (30) days
(whether or not consecutive) or in any event later than five (5) business days
prior to the date of any proposed sale thereunder, which, together with all such
other unvacated, unbonded, unstayed, unpaid and undischarged judgments or
attachments against the Obligors exceeds in the aggregate $25,000.
6.5 OTHER INDEBTEDNESS. Any Obligor is in default under any other
agreement under which it has incurred Indebtedness in excess of $25,000, which
default results in the acceleration of such Indebtedness.
6.6 CHANGE OF CONTROL. The acquisition by any Person or a group
(as defined in section 13(d) of the Exchange Act of 1934) of Persons (other than
IDI, Pacific Capital Group or Dycam and, in the case of the Seller, Parent) of
control directly or indirectly) of control of any Obligors; provided that the
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change of directors or officers of Parent or the Borrower shall not be deemed an
acquisition of control.
7. LENDER'S RIGHTS AND REMEDIES.
7.1 RIGHTS AND REMEDIES. Upon the occurrence of an Event of Default,
the Lender may, at its election (a) declare all Obligations immediately due and
payable (provided that upon the occurrence of an Event of Default described in
Section 6.3 all Obligations shall become immediately due and payable without any
action by the Lender) and (b) exercise any and all rights and remedies under the
Loan Documents and applicable law.
7.2 REMEDIES CUMULATIVE. The Lender's rights and remedies under the
Loan Documents shall be cumulative. The Lender shall have all other rights and
remedies not inconsistent herewith as provided by law or in equity. No exercise
by the Lender of one right or remedy shall be deemed an election which precludes
other remedies, and no waiver by the Lender of any Event of Default on the
Borrower's part shall be deemed made unless done in a writing signed by the
Lender. No delay by the Lender shall constitute a waiver, election, or
acquiescence by it.
7.3 EXPENSES. The Borrower shall pay, or reimburse the Lender for
all reasonable out-of-pocket costs and expenses (including, without limitation,
attorneys fees and expenses) paid or incurred by the Lender before and after
judgment in enforcing, protecting or preserving its rights under the Loan
Documents and any other document, instrument or agreement relating hereto or
contemplated hereby, and including without limitation, the enforcement of the
Lender's rights against, or realization on, any collateral or security therefor.
8. NOTICES.
Any and all notices or other communications or deliveries required or
permitted to be given or made pursuant to any of the provisions of this
Agreement shall be deemed to have been duly given or made for all purposes if
(i) sent by certified or registered mail, return receipt requested and postage
prepaid, (ii) hand delivered, (iii) sent by a nationally recognized overnight
courier or (iv) sent by telephone facsimile transmission (the receipt of which
is confirmed) as follows:
If to the Lender:
Hasco International, Inc.
0000 Xxxxxxx Xxxx
Xx. Xxxxxxx, XX 00000
Attention: Xxxxx Xxx Xxxxx
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
If to the Borrower:
Xxxxxxx Xxxxx, Inc.
000 Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: Xxxxx X'Xxxxx
Telecopy No.: (000) 000-0000
If to Parent:
Styles on Video, Inc.
000 Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: K. Xxxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
With a copy (in each case) to:
Sanders, Barnet, Xxxxxxx, Xxxxxx & Mosk
1901 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
9. CHOICE OF LAW.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN DOCUMENTS,
IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING PURSUANT TO THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED
IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF
LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
10. GENERAL PROVISIONS.
10.1 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to
the benefit of the respective successors and assigns of each of the parties;
provided, however, that neither this Agreement nor any rights hereunder may be
assigned by the Borrower without the Lender's written consent, which consent may
be granted or withheld in the Lender's sole discretion.
10.2 AMENDMENTS IN WRITING, INTEGRATION. This Agreement cannot be
changed or terminated orally. Any amendment of, supplement to or other
modification of this Agreement must be in a written instrument executed by the
Borrower and the Lender. All prior agreements, understandings, representations,
warranties, and negotiations between the parties hereto with respect to the
subject matter of this Agreement, if any, are merged into this Agreement.
10.3 SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the execution and delivery hereof and the
making of the Loan.
10.4 NO WAIVER. No failure or delay on the part of the Lender in
the exercise of any power, right or privilege under this Agreement shall impair
such power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other right, power or privilege. Any waiver or consent with respect to any
provision of the Loan Documents shall be effective only in the specific instance
and for the specific purpose for which it was given.
10.5 HEADINGS. Section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
10.6 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be valid, legal and
enforceable under the applicable law of any jurisdiction. Without limiting the
generality of the foregoing sentence, in case any provision of this Agreement
shall be invalid, illegal or unenforceable under the applicable law of any
jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provision in any other jurisdiction, shall not in any way
be affected or impaired thereby.
10.7 LIMITATIONS ON INTEREST RATES. Notwithstanding any provision
in this Agreement, the total liability for payments in the nature of interest
shall not exceed the applicable limits imposed by any applicable federal or
state interest rate laws. If any payments in the nature of interest, additional
interest and other charges made hereunder are held to be in excess of the
applicable limits imposed by any applicable federal or state law the amount held
to be in excess shall be considered payment of principal under the Loan and the
indebtedness evidenced hereby shall be reduced by such amount so that the total
liability for payments in the nature of interest, additional interest and other
charges shall not exceed the applicable limits imposed by any applicable federal
or state interest-rate laws.
10.8 INTERPRETATION. As used in this Agreement, the words 'herein,"
"hereof" and "hereunder" and other words of similar meaning refer to this
Agreement as a whole, including the Exhibits and Schedules hereto, all of which
are by this reference incorporated into this Agreement, as the same may from
time to time be amended, modified or supplemented, and not to any particular
section, subsection or clause contained in this Agreement, unless otherwise
specifically indicated. The term "including" shall not be limiting or
exclusive, unless specifically indicated to the contrary. The term "or" is
disjunctive; the term "and" is conjunctive. The term "shall" is mandatory; the
term "may" is permissive. Wherever from the context it appears appropriate,
each term stated in either the singular or plural shall include the singular and
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and the neuter. Any reference to a "Section,"
"Subsection," "Exhibit" or "Schedule" shall refer to the relevant Section or
Subsection of or Exhibit or Schedule to this Agreement, unless otherwise
specifically indicated.
10.9 INDEMNIFICATION; LIMITATION ON DAMAGES. The Borrower agrees to
indemnify the Lender for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Lender in any way relating to or arising out of this Agreement or
any other Loan Document or the transactions contemplated hereby, except to the
extent such losses arise from the gross negligence or wilful misconduct of the
Lender. Notwithstanding anything contained in the Agreement to the contrary, no
claim may be made by the Borrower or Parent against the Lender for any lost
profits or any special, indirect or consequential damages in respect of any
breach or wrongful conduct (other than willful misconduct constituting actual
fraud) in connection with, arising out of or in any way related to the
transactions contemplated hereunder or under the other Loan Documents, or any
act, omission or event occurring in connection herewith or therewith; and the
Borrower and Parent hereby waive, release and agree not to xxx upon any such
claim for any such damages.
10.10 GUARANTEE BY THE PARENT. The Parent, as principal obligor and
not as surety, covenants with the Lender:
(a) to cause the Borrower to effect prompt and complete performance
of all the terms, covenants, conditions and provisions of this Agreement and the
agreements contemplated hereby that are to be kept, observed and performed by
the Borrower.
(b) that, if for any reason whatsoever, including the insolvency or
bankruptcy of the Borrower, the Borrower shall at any time or from time to time
fail to keep, perform or
observe any term, covenant, condition or provision of this Agreement or any of
the agreements contemplated hereby that is to be kept, observed or performed by
the Borrower, then Parent shall forthwith on demand of the Lender, perform or
observe, as the case may be, such term, covenant, condition or provision in
accordance with the relevant provisions of this Agreement and the agreements
contemplated hereby;
(c) that Parent is jointly and severally bound with the Borrower to
perform the terms, covenants, conditions and provisions of this Agreement and
the agreements contemplated hereby that are to be kept, observed and performed
by the Borrower and, in the enforcement of its rights pursuant to this Section
10.10 the Lender may proceed against Parent as if Parent were a principal party
under this Agreement with respect to such terms, covenants, conditions and
provisions applicable to the Borrower.
In the event of a default by the Borrower under this Agreement or the
agreements contemplated hereby, Parent waives any right to require the Lender
to:
(i) proceed against the Borrower or pursue any rights or
remedies with respect to this Agreement or the agreements contemplated
hereby against the Borrower, or
(ii) pursue any other remedy whatsoever in the power of the
Lender prior to the Lender pursuing any rights it may have under this
Agreement or the agreements contemplated hereby against Parent.
Without limiting the generality of the foregoing, the liability of
Parent shall not be deemed to have been waived, released, discharged, impaired
or affected by reason of the release or discharge of the Borrower in any
receivership, bankruptcy, winding-up or other creditors' proceedings or the
rejection, disaffirmance or disclaimer of this Agreement or any of the
agreements contemplated hereby in any proceeding, and shall continue with
respect to the periods prior thereto and thereafter, for and with respect to
this Agreement and the agreements contemplated hereby.
* * * * * *
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as
of the date first written above.
HASCO INTERNATIONAL, INC.
By:________________________________
Name:
Title:
XXXXXXX XXXXX, INC.
By:________________________________
Name:
Title:
STYLES ON VIDEO, INC.
By:________________________________
Name:
Title:
