1
EX-4.(c)
SENIOR SECURED PROMISSORY NOTE
$___________.00 San Francisco, California
Date: __________, 1996
EDNET, INC., a Colorado corporation ("Borrower"), FOR VALUE RECEIVED,
hereby unconditionally promises to pay to the order of XXXXXX XXXXXX CAPITAL
GROUP L.L.C. (such entity, together with its successors and assigns being
referred to herein as "Lender"), in lawful money of the United States of
America, the aggregate principal amount of _______________________ and No/100
Dollars ($__________.00) (the "Loan"), together with accrued and unpaid interest
thereon, payable in the amounts, on the dates and in the manner set forth below.
1. Principal Payments. The entire principal amount of and all accrued
interest on this Senior Secured Promissory Note (the "Note") shall be due and
payable on November 15, 1996 (the "Maturity Date"), provided, however, that if
the entire principal amount of and all accrued interest on this Note is not
repaid on the Maturity Date, the Loan shall be converted into a term loan and
Borrower shall pay to Lender on the first day of each calendar month, commencing
on December 1, 1996 (the "Conversion Date"), principal in the amount of
$100,000.00, and all accrued interest thereon, until the entire principal amount
of and all accrued interest on this Note is repaid in full.
2. Interest. Xxxxxxxx further promises to pay interest on the
outstanding principal balance of this Note on March 31, June 30, September 31
and December 31 of each year, calculated pro rata for any partial quarter, from
the date hereof until the Conversion Date, at the rate of fourteen percent (14%)
per annum, and thereafter until payment in full, at the rate of eighteen percent
(18%) per annum.
3. Place of Payment. All amounts payable hereunder shall be payable to
Lender, at the office of Xxxxxx Xxxxxx Capital Group L.L.C., 000 Xxxxxx Xxxxxx,
Xxxxx 0000 Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxxxx, or
such other place of payment as may be specified by Xxxxxx in writing.
4. Application of Payments. Payments on this Note shall be applied:
first, to any late fees, charges and costs, second, to accrued interest, and
thereafter, to the outstanding principal balance hereof.
5. Prepayment; Late Charges; Loan Fee. This Note may be prepaid by
Xxxxxxxx without penalty. In the event that any principal or interest due
hereunder is not timely paid and until the occurrence of an Event of Default (as
defined below), Borrower shall pay Lender a late charge of five percent (5%) of
such overdue principal or interest payment. On the date of this Note, Borrower
shall pay Lender a loan fee of five percent (5%) of the Loan.
1.
2
6. Secured Note. The full amount of this Note is secured by the
collateral identified and described as security therefor in that certain
Security Agreement dated as of even date herewith, executed and delivered by
Xxxxxxxx (the "Security Agreement"). This Note, the Security Agreement and any
of other documents executed in connection herewith or therewith are referred to
herein collectively as the "Loan Documents."
7. Representations and Warranties. Borrower hereby warrants and
represents to Lender as follows, and agrees that each of said warranties and
representations shall be deemed to continue until full, complete and
indefeasible payment and performance of this Note:
a. Borrower is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Colorado and has the
corporate power and authority, rights and franchises to own its property and
assets and to carry on its business as now conducted.
b. Xxxxxxxx has the corporate power and authority to execute,
deliver and perform the terms of the Loan Documents and all other instruments
and documents contemplated hereby or thereby.
8. BORROWER'S NEGATIVE COVENANTS. Until full, complete and indefeasible
payment and performance of the Obligations, unless Xxxxxx shall otherwise
consent in writing, Borrower covenants and agrees that it shall not create,
incur, assume or suffer to exist any Lien of any nature upon or with respect to
any of its Property, whether now or hereafter owned, leased or acquired, unless
such Lien is subordinate to the Lien created by the Security Agreement.
9. Default. Each of the following events shall be an "Event of Default"
hereunder:
a. Borrower fails to pay timely any of the principal amount
due under this Note on the date the same becomes due and payable or any accrued
interest or other amounts due under this Note on the date the same becomes due
and payable, whether upon demand, at stated maturity, by acceleration or
otherwise, and such failure shall not have been cured to Lender's satisfaction
within five (5) calendar days; or
b. Any representation or warranty made by or on behalf of
Borrower in this Note or any of the other Loan Documents or any statement or
certificate at any time given in writing pursuant hereto or in connection
herewith shall be false, misleading or incomplete in any material respect when
made.
Upon the occurrence of an Event of Default hereunder, all unpaid principal shall
bear interest at the rate specified in Section 2 of this Note plus five percent
(5%), and all unpaid principal, accrued interest and other amounts owing
hereunder shall be immediately collectible by Lender pursuant to applicable law.
2.
3
10. Waivers. Borrower waives presentment and demand for payment, notice
of dishonor, protest and notice of protest of this Note, and shall pay all costs
of collection when incurred by or on behalf of Lender, including, without
limitation, reasonable attorneys' fees, costs and other expenses.
11. Expenses. Each party shall bear its own costs and expenses incurred
in connection with the negotiation, amendment, modification, or its performance
or compliance with the terms of this Note, including any litigation, contest,
dispute, suit, proceeding or action seeking to enforce any Obligations of, or
collecting any payments due from, Borrower under this Note).
12. No Waiver by Xxxxxx. No failure or delay on the part of Lender in
the exercise of any power, right or privilege under this Note or any of the
other Loan Documents 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.
13. Notices. Except as otherwise provided in this Note, any notice or
other communication herein required or permitted to be given shall be in writing
and may be delivered in person, with receipt acknowledged, or sent by telex,
facsimile, telecopy, computer transmission or by United States mail, registered
or certified, return receipt requested, or by Federal Express or other
nationally recognized overnight courier service, postage prepaid and
confirmation of receipt requested, and addressed as set forth on the signature
pages to this Note or at such other address as may be substituted by notice
given as herein provided. The giving of any notice required hereunder may be
waived in writing by the party entitled to receive such notice. Every notice,
demand, request, consent, approval, declaration or other communication hereunder
shall be deemed to have been duly given or served on the date on which the same
shall have been personally delivered, with receipt acknowledged, or sent by
telex, facsimile, telecopy or computer transmission (with appropriate
answerback), three (3) Business Days after the same shall have been deposited in
the United States mail or on the next succeeding Business Day if the same has
been sent by Federal Express or other nationally recognized overnight courier
service. Failure or delay in delivering copies of any notice, demand, request,
consent, approval, declaration or other communication to the persons designated
above to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
14. Headings. Section and subsection headings in this Note are included
herein for convenience of reference only and shall not constitute a part of this
Note for any other purpose or be given any substantive effect.
15. Severability. Whenever possible, each provision of this Note and
each of the other Loan Documents 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 Note or any of the other Loan Documents shall be invalid, illegal or
unenforceable under the applicable law of any jurisdiction, the validity,
3.
4
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.
16. Entire Agreement; Construction; Amendments and Waivers.
a. This Note and each of the other Loan Documents, taken
together, constitute and contain the entire agreement among Borrower and Lender
and supersede any and all prior agreements, negotiations, correspondence,
understandings and communications between the parties, whether written or oral,
respecting the subject matter hereof. Borrower and Xxxxxx agree that they intend
the literal words of this Note and the other Loan Documents and that no parol
evidence shall be necessary or appropriate to establish Borrower's or Xxxxxx's
actual intentions.
b. Any and all other amendments, modifications, discharges or
waivers of, or consents to any departures from any provision of this Note or of
any of the other Loan Documents shall not be effective without the written
consent of Lender. 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. No notice to or demand on Borrower in
any case shall entitle Borrower to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, waiver or consent
effected in accordance with this Section 16 shall be binding upon Lender and on
Borrower.
17. Reliance by Xxxxxx. All covenants, agreements, representations and
warranties made herein by Borrower shall, notwithstanding any investigation by
Xxxxxx be deemed to be material to and to have been relied upon by Xxxxxx.
18. Marshalling; Payments Set Aside. Lender shall be under no
obligation to xxxxxxxx any assets in favor of Borrower or any other Person or
against or in payment of any or all of the Obligations. To the extent that
Borrower makes a payment or payments to Lender, or Lender enforces its Liens or
exercises its rights of set-off, and such payment or payments or the proceeds of
such enforcement or set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party under the Bankruptcy Code or under any
other similar federal or state law, common law or equitable cause, then to the
extent of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or set-off had not occurred.
19. No Set-Offs by Borrower. All sums payable by Borrower under this
Note or pursuant to any of the other Loan Documents shall be payable without
notice or demand and shall be payable in United States Dollars without set-off
or reduction of any manner whatsoever.
20. Binding Effect, Assignment. This Note and the other Loan Documents
shall be binding upon and shall inure to the benefit of the parties hereto and
thereto and their respective successors and assigns, except that Borrower may
not assign its rights hereunder or thereunder or any interest herein or therein
without the prior written consent of Xxxxxx. Subject to the
4.
5
limitations of this Section 20, Xxxxxx may also grant, from time to time,
participation interests in the interests of Lender under this Note and the other
Loan Documents without notice to, or approval of, Borrower. The grant of such a
participation interest shall be on such terms as Lender determines are
appropriate, provided only that (i) the holder of such participation interest
shall not have any of the rights of a Lender under this Agreement and (ii) the
consent of the holder of such a participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents.
21. Equitable Relief. Borrower recognizes that, in the event Borrower
fails to perform, observe or discharge any of its obligations or liabilities
under this Note or any of the other Loan Documents, any remedy at law may prove
to be inadequate relief to Lender; therefore, Borrower agrees that Lender, if
Lender so requests, shall be entitled to temporary and permanent injunctive
relief in any such case without the necessity of proving actual damages.
22. Governing Law. Except as otherwise expressly provided in any of the
Loan Documents, in all respects, including all matters of construction, validity
and performance, this Note and the Obligations arising hereunder 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.
23. Defined Terms. As used herein, the following terms have the
following meanings:
"Bankruptcy Code" means the Bankruptcy Code of 1978, as
amended, as codified under Title 11 of the United States Code, and the
Bankruptcy Rules promulgated thereunder, as the same may be in effect from time
to time.
"Business Day" means any day which is not a Saturday, Sunday
or a legal holiday under the laws of the State of California or is not a day on
which banking institutions located in the State of California are authorized or
permitted by law or other governmental action to close.
"Governmental Authority" means (a) any federal, state, county,
municipal or foreign government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality or public body, (c) any court or administrative
tribunal or (d) with respect to any Person, any arbitration tribunal or other
non-governmental authority to whose jurisdiction that Person has consented.
"Lien" means any mortgage, pledge, hypothecation, assignment
for security, security interest, encumbrance, xxxx, xxxx or charge of any kind,
whether voluntarily incurred or arising by operation of law or otherwise,
affecting any Property, including any agreement to grant any of the foregoing,
any conditional sale or other title retention agreement, any lease in the nature
of a security interest, and the filing of or agreement to file or deliver any
financing statement (other than a precautionary financing statement with respect
to a lease that is not in the nature of a security interest) under the UCC or
comparable law of any jurisdiction.
5.
6
"Obligations" means all loans, advances, liabilities and
obligations for monetary amounts owing by Borrower to Lender, whether due or to
become due, matured or unmatured, liquidated or unliquidated, contingent or
non-contingent, and all covenants and duties regarding such amounts, of any kind
or nature, arising under any of the Loan Documents. This term includes, without
limitation, all principal, interest (including interest that accrues after the
commencement of a case or proceeding against Borrower under the Bankruptcy
Code), fees, including, without limitation, any and all prepayment fees,
facility fees, commitment fees, arrangement fees, agent fees and attorneys' fees
and any and all other fees, expenses, costs or other sums chargeable to Borrower
under any of the Loan Documents.
"Person" means any individual, sole proprietorship,
partnership, joint venture, limited liability company, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
firm, joint stock company, estate, entity or Governmental Authority.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, whether tangible or intangible.
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of California, as the same may be
amended, modified or restated.
"Borrower"
EDNET, INC.
a Colorado corporation
By: __________________________________
Xxx Xxxxxxxxx
Chief Executive Officer
Notices to be sent to Borrower at:
Ednet, Inc.
Xxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxxxx,
Chairman and Chief Executive
Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
6.
7
Notices to be sent to Lender at:
Xxxxxx Xxxxxx Capital Group L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7.
