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Loan and Security Agreement

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Title:

Loan and Security Agreement

Entities:

Principal Financial Group Inc.

Date:

2007

Size:

Preview shows 6KB of 130KB total

Price:

$44

ID:

#2765840

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LOAN AND SECURITY AGREEMENT NO. V07106 This Loan and Security Agreement (this "Loan Agreement"), made as of March 23, 2007 by and between BlueCrest Capital Finance, L.P. ("Lender"), a Delaware limited partnership with its principal place of business at 225 West Washington Street, Suite 200, Chicago, Illinois 60606, and SWMX, Inc., a Delaware corporation, and SoftWave Media Exchange, Inc., a Delaware corporation (jointly and severally, "Borrower"), each having its principal place of business at One Bridge Street, Irvington, New York, 10533. In consideration of the promises set forth herein, Lender and Borrower agree upon the following terms and conditions: 1. GENERAL DEFINITIONS The following words, terms and /or phrases shall have the meanings set forth thereafter and such meanings shall be applicable to the singular and plural form thereof giving effect to the numerical difference: A. "Account" means any "account," as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest and, in any event, shall include all accounts receivable, book debts, rights to payment, and other forms of obligations now owned or hereafter received or acquired by or belonging or owing to Borrower (including under any trade name, style or division thereof), whether or not arising out of goods or software sold or licensed or services rendered by Borrower or from any other transaction (including any such obligation that may be characterized as an account or contract right under the UCC), and all of Borrower's rights in, to and under all purchase orders or receipts now owned or hereafter acquired by it for goods or services, and all of Borrower's rights to any goods represented by any of the foregoing (including unpaid seller's rights of rescission, replevin, reclamation and stoppage in transit and rights to returned, reclaimed or repossessed goods), and all monies due or to become due to Borrower under all purchase orders and contracts for the sale of goods or the performance of services or both by Borrower or in connection with any other transaction (whether or not yet earned by performance on the part of Borrower), now in existence or hereafter occurring, including the right to receive the proceeds of said purchase orders and contracts, and all collateral security and guarantees of any kind given by any Person with respect to any of the foregoing. B. "Account Debtor" means any Person obligated on an Account. C. "Affiliate" means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlling", "controlled by" and "under common control with"), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote 10% or more of the securities having ordinary voting power for the election of directors of such Person or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise. D. "Approved Foreign Account Debtors" means the collective reference to those Persons identified on Schedule 1 hereto, as such Schedule may be revised by Borrower and Lender in writing from time to time; provided that Lender may, after consultation with Borrower, disqualify one or more Persons as Approved Foreign Account Debtors in its reasonable discretion. E. "Borrower's Liabilities" means all obligations and liabilities of Borrower to Lender (including without limitation all debts, claims, and indebtedness) whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and/or from time to time hereafter owing, due or payable, however evidenced, created, incurred, acquired or owing and however arising, whether under this Loan Agreement and/or any promissory note or other instrument issued pursuant hereto or the "Other Agreements" (hereinafter defined), or by oral agreement or operation of law or otherwise. 1 F. "Borrowing Base" means, at any time, (a) 80% of Borrower's Eligible Accounts at such time, minus (b) any Reserves established by Lender. Lender may, in its sole discretion, reduce the advance rate set forth above, adjust Reserves or reduce one or more of the other elements used in computing the Borrowing Base after consultation with Borrower, with any such changes to be effective three (3) Business Days after delivery of notice thereof to Borrower. G. "Borrowing Base Certificate" means a certificate, signed and certified as accurate and complete by the Chief Financial Officer of Borrower, in substantially the form of Exhibit C or another form which is acceptable to Lender in its sole discretion. H. "Business Day" means a day of the year on which banks are not required or authorized to close in New York City or Chicago, Illinois. I. "Cash" means all cash, money (as such term is defined in the UCC), currency, and liquid funds, wherever held, in which Borrower now or hereafter acquires any right, title, or interest. J. "Change of Control" means, at any time, (i) the current shareholders of Borrower shall cease to beneficially own and control, directly or indirectly on a fully diluted basis, a majority of the economic and voting interests in the capital stock or other ownership interests of Borrower or (ii) any Person or

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