EXHIBIT 10.23
GRID TIME PROMISSORY NOTE
(PRIME RATE)
$1,500,000.00 November 27, 2000
For value received, the undersigned unconditionally (and if more than
one, jointly and severally) promises to pay to the order of THE CHASE MANHATTAN
BANK (the "Bank"), at its principal office located at 1211 Avenue of the
Americas, New York, New York 10036, the principal amount of One Million Five
Hundred Thousand DOLLARS ($1,500,000.00) or, if less, the aggregate unpaid
principal amount of all loans made to the undersigned by the Bank and
outstanding under this Note, on January 31, 2001.
The undersigned promise(s) to pay interest on the unpaid balance of the
principal amount of each such loan from and including the date of each such loan
to but excluding the due date of such loan at a variable rate per annum equal to
that rate of interest from time to time announced by the Bank at its principal
office as its prime commercial lending rate (the "Prime Rate") plus 0% (the
"Margin"). Interest shall be payable on the last day of each calendar
(commencing on the first such date occurring after the date of the first such
loan) and on any payment of such principal. Any principal not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear interest
from and including such date to but excluding the date paid in full at a
variable rate per annum equal to 2% above the Prime Rate plus the Margin, such
interest to be payable ON DEMAND and on any payment of such principal. The
interest rate on this Note shall change in accordance with, and changes in such
interest rate shall be effective as of the effective date of, announcements by
the Bank of changes in the Prime Rate. Interest shall be calculated on the basis
of a year of 360 days for the actual number of days elapsed.
All payments under this Note shall be made in lawful money of the
United States of America and in immediately available funds at the Bank's
principal office specified above. If the loan evidenced by this Note becomes due
and payable on a Saturday, Sunday or a day that is not a banking day in New York
City, the maturity of such loan shall be extended to the next succeeding banking
day, and interest shall be payable for such extension on such loan at the rate
of interest specified in this Note. The Bank may (but shall not be obligated to)
debit the amount of any payment under this Note that is not made when due to any
deposit account of (any of) the undersigned with the Bank. If the undersigned
are more than one, all obligations of each of the undersigned under this Note
shall be joint and several. This Note may be prepaid without penalty.
The date and amount of each loan under this Note and each payment of
principal, loan(s) to which such principal is applied (which shall be at the
discretion of the Bank) and the outstanding principal balance of loans, shall be
recorded by the Bank on its books and prior to any transfer of this Note (or, at
the discretion of the Bank at any other time) endorsed by the Bank on a
schedule. Any such endorsement shall be conclusive in the absence of manifest
error.
If any of the following events of default shall occur with respect to
any of the undersigned: (a) the undersigned shall fail to pay the principal of,
or interest on, this Note, or any other amount payable under this Note, as and
when due and payable; (b) any representation or warranty made or deemed made by
the undersigned in this Note or in any document granting security or support for
(or otherwise executed in connection with) this Note or by any third party
supporting or liable with respect to this Note (whether by guaranty,
subordination, grant of security or any other credit support, a "Third Party")
in any document evidencing the obligations of a Third Party (this Note and all
of the foregoing documents of the undersigned or a Third Party being the
"Facility Documents") or which is contained in any certificate, document,
opinion, financial or other statement furnished at any time under or in
connection with any Facility Document, shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; (c) the undersigned
or any Third Party shall fail to perform or observe any term,
covenant or agreement contained in any Facility Document on its part to be
performed or observed; (d) the undersigned or any Third Party shall fail to pay
when due any indebtedness (including but not limited to indebtedness for
borrowed money) or if any such indebtedness shall become due and payable, or
shall be capable of becoming due and payable at the option of any holder
thereof, by acceleration of its maturity, or if there shall be any default by
the undersigned or any Third Party under any agreement relating to such
indebtedness; (e) the undersigned or any Third Party: (i) shall generally not,
or be unable to, or shall admit in writing its inability to, pay its debts as
such debts become due; (ii) shall make an assignment for the benefit of
creditors; (iii) shall file a petition in bankruptcy or for any relief under any
law of any jurisdiction relating to reorganization, arrangement, readjustment of
debt, dissolution or liquidation; (iv) shall have any such petition filed
against it and the same shall remain undismissed for a period of 30 days or
shall consent or acquiesce thereto; or (v) shall have had a receiver, custodian
or trustee appointed for all or a substantial part of its property; (f) the
undersigned or any Third Party shall die, dissolve or for any reason cease to be
in existence or shall merge or consolidate, or if the undersigned or any Third
Party is a partnership, limited liability partnership or limited liability
company, any general partner, partner or member, respectively, shall die,
dissolve or for any reason cease to be in existence or cease to be a partner or
member, as the case may be, or shall merge or consolidate; (g) the undersigned
or any Third Party is involved in a proceeding which may result in a forfeiture
of all or a substantial part of the undersigned's or any Third Party's assets or
a material judgment is entered against the undersigned or any Third Party; (h)
there is, in the opinion of the Bank, a material adverse change in the business,
prospects or financial condition of the undersigned; (i) any Third Party
Facility Document shall at any time and for any reason cease to be in full force
and effect or shall be declared null and void, or its validity or enforceability
shall be contested by the relevant Third Party or such Third Party shall deny it
has any further liability or obligation under any Facility Document or shall
fail to perform its obligations under any Facility Document; or (j) any security
agreement or other agreement (whether by the undersigned or any Third Party)
granting a security interest, lien, mortgage or other encumbrance securing
obligations under any Facility Document shall at any time and for any reason
cease to create a valid and perfected first priority security interest, lien,
mortgage or other encumbrance in or on the property purported to be subject to
such agreement or shall cease to be in full force and effect or shall be
declared null and void, or the validity or enforceability of any such agreement
shall be contested by any party to such agreement, or such party shall deny it
has any further liability or obligation under such agreement or any such party
shall fail to perform any of its obligations under such agreement; THEN, in any
such case, if the Bank shall elect by notice to the undersigned, the unpaid
principal amount of this Note, together with accrued interest, shall become
forthwith due and payable; provided that in the case of an event of default
under (e) above, the unpaid principal amount of this Note, together with accrued
interest, shall immediately become due and payable without any notice or other
action by the Bank.
The undersigned waive(s) presentment, notice of dishonor, protest and
any other notice or formality with respect to this Note.
The undersigned agree(s) to reimburse the Bank on demand for all costs,
expenses and charges (including, without limitation, fees and charges of
external legal counsel for the Bank and costs allocated by its internal legal
department) in connection with the interpretation, performance or enforcement of
this Note.
The undersigned consent(s) to the nonexclusive jurisdiction and venue
of the state or federal courts located in the City of New York. Service of
process by the Bank in connection with any dispute shall be binding on the
undersigned if sent to the undersigned by registered mail at the address(es)
specified below. The undersigned waive(s) any right the undersigned may have to
jury trial.
This Note shall be governed by, and interpreted and construed in
accordance with, the law of the State of New York; provided that the foregoing
is not intended to limit the maximum rate of interest which may be charged or
collected by the Bank on this Note if, under the law applicable to it, the Bank
may charge or collect such interest at a higher rate than is permissible under
the law of said State. In no case shall the interest on this Note exceed the
maximum amount which the Bank may charge or collect under such law applicable to
it.
Each reference in this Note to the Bank shall include its successors,
endorsees, and assigns, in whose favor the provisions hereof shall also inure.
Each reference in this Note to the undersigned shall include the heirs,
executors, administrators, legal representatives, successors and assigns of the
undersigned, all of whom shall be bound by the provisions hereof.
ADDRESS FOR NOTICES TO THE
BANK:
The Chase Manhattan Bank
1211 Avenue of the Americas
New York, New York 10036
Attn: Robert Richardson
Telecopier: (212) 789-5307
Telephone: (212) 789-5683
DREAMLIFE, INC.
By: /s/ Philicia Levinson
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Name: Philicia Levinson
Title: Chief Financial Officer
ADDRESS FOR NOTICES:
425 WEST 15TH STREET
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FLOOR 3R
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NEW YORK, NY 10011
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Telecopier: (212) 433-1415
Telephone: (212) 433-1413