Loan Agreement - On Ramp Inc. and THINK New Ideas Inc.
LOAN AGREEMENT THIS AGREEMENT (the "Agreement") is made and entered into this 31st day of March, 1996 by and between On Ramp, Inc., a New York corporation (the "Borrower") and Think New Ideas, Inc., a Delaware corporation (the "Lender"). W I T N E S S E T H : WHEREAS, the Borrower has requested that Lender make a loan to Borrower of $600,000, the proceeds of which shall be used for general corporate purposes; and WHEREAS, Lender has agreed to make such a loan available to Borrower upon the terms and conditions hereinafter set forth. NOW, THEREFORE, it is agreed as follows: SECTION 1. Definitions. For purposes of this Agreement, the following ----------- terms shall have the following meanings: 1.1 "Accounts" means accounts, general intangibles, chattel paper, instruments and documents, whether now owned or hereafter acquired by the Borrower. 1.2 "Account Debtor" means any Person who is or who may become obligated to Borrower under or on account of an Account. 1.3 "Advance" means any amount paid by Lender to the Borrower and debited to an Advance Account pursuant to the terms of Section 2.1 hereof, or otherwise. 1.4 "Advance Account" means an account on the books of Lender in which: (i) each Advance by Lender shall be debited thereto by recording therein on the date of such advance a debit entry in the amount of such Advance; and (ii) each payment made to Lender for credit to the Advance Account shall be credited thereto by recording therein on the date paid to Lender a credit entry in the amount of such payment. 1.5 "Affiliate" means a Person (i) which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with Borrower or a Subsidiary; (ii) which beneficially owns or holds 5% or more of any class of the outstanding voting stock (or in the case of a Person which is not a corporation, 5% or more of the equity interest) of Borrower or a Subsidiary; or (iii) 5% or more of any class of the outstanding voting stock (or in the case of a Person which is not a corporation, 5% or more of the equity interest of which is beneficially owned or held by Borrower or Subsidiary). The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting stock, by contract or otherwise. 1.6 "Agreement" shall include this Loan Agreement as amended, modified or supplemented from time to time by agreement in writing signed by the Borrower and Lender. <PAGE> 1.7 "Authorized Officer" shall mean Adam Curry or such other person designated in writing to the Lender, who is authorized to obtain Advances or otherwise act on behalf of the Borrower hereunder. 1.8 "Business Day" means a day upon which banks are open for the transaction of business of the nature required by this Agreement, in New York. 1.9 "Lender Expenditures" means with respect to any Person, all expenditures made and liabilities incurred for the acquisition of assets which are not, in accordance with Generally Accepted Accounting Principles, treated as expense items for such Person in the year made or incurred or as a prepaid expense applicable to a future year or years. 1.10 "Closing Date" means the date first set forth above. 1.11 "Collateral" shall have the meaning ascribed to "Pledged Stock" as set forth in the Pledge Agreement (as defined below). 1.12 "Committed Amount" means the principal amount of $600,000 which Lender has agreed to lend to Borrower as evidenced by the Note. 1.13 "Consistent Basis" means that the accounting principles observed in the current period are comparable in all material respects to those applied in the preceding period, in accordance with Generally Accepted Accounting Principles. 1.14 "Current Assets" means cash and all other assets or resources of Borrower and its subsidiaries which are expected to be realized in cash, sold in the ordinary course of business, or consummated within one year, all determined in accordance with Generally Accepted Accounting Principles. 1.15 "Current Liabilities" means the amount of all Liabilities of Borrower and its Subsidiaries which by their terms are payable within one year (including all indebtedness payable on demand or maturing not more than one year from the date of computation and the current portion of Indebtedness having a maturity date in excess of one year and all lease obligations payable within one year) all determined in accordance with Generally Accepted Accounting Principles. 1.16 "Debit Balance" means an amount equal to the excess, if any of all debit entries over all credit entries. 1.17 "Default" or "Event of Default" means the occurrence of all of any of the events specified in Section 8 and/or set forth in the Note (as defined below). 1.18 "Fiscal Year" means the twelve-month period (or shorter period in the case of the first fiscal year) ending on December 31. 1.19 "Generally Accepted Accounting Principles" means those principles of accounting set forth in Opinions of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants or which have other substantial authoritative support generally followed by public 2 <PAGE> accountants and are applicable in the circumstances of the date of a report, as such principles are from time to time supplemented and amended. 1.20 "Indebtedness" means with respect to any Person, all indebtedness of such Person for borrowed money, all indebtedness of such Person for the acquisition of property other than purchases of products and merchandise in the ordinary course of business, indebtedness secured by a lien, pledge or other encumbrance on the property of such Person whether or not such indebtedness is assumed, all liability of such Person by way of endorsements (other than for collection or deposit in the ordinary course of business); all guarantees of Indebtedness of any other Person by such Person (including any agreement, contingent or otherwise, to purchase any obligation representing such Indebtedness or property constituting security therefor, or to advance or supply funds for such purpose or to maintain working capital or other balance sheet or income statement condition, or any other arrangement in substance effecting any of the foregoing); all leases and other items which in accordance with Generally Accepted Accounting Principles are classified as liabilities on a balance sheet; provided that in no event shall the term minority interest in the common stock of subsidiaries, reserves for deferred income taxes and investment creditors, other deferred credits and reserves, and deferred compensation obligations. 1.21 "Liabilities" mean all liabilities, obligations and indebtedness of any and every kind and nature (including, without limitation, lease obligations and interest, charges, expenses, attorneys' fees and other sums) chargeable to the Borrower and future advances made to or for the benefit of the Borrower, whether arising under this Agreement, or arising under the Note or arising under any of the Loan Documents of the Borrower form any other source, whether heretofore, now or hereafter owing, arising, due or payable from Borrower to the Lender and however evidenced, credited, incurred, acquired or owing, whether primary, secondary, direct, contingent, fixed, or otherwise, including obligation of performance. 1.22 "Loan" means the principal amount of $600,000 which Lender has agreed to lend Borrower. 1.23 "Note" means the Note in the original aggregate principal amount of $600,000,substantially in the form of Exhibit 1 attached hereto, the proceeds of which are to be used to for general corporate purposes. 1.24 "Loan Documents" means this Agreement, the Note, the Pledge Agreement and all documents, instruments, certificates, reports and all other written matters whether heretofore, now, or hereafter executed by or on behalf of the Borrower and/or delivered to Lender in connection herewith. 1.25 "Net Income" shall have the meaning and be determined in accordance with Generally Accepted Accounting Principles, reported on a Consistent Basis. 1.26 "Person" means an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated organization, association, joint venture or a government or agency or political subdivision thereof, but shall exclude each and every Subsidiary. 1.27 "Pledge Agreement" means the pledge agreement of even date herewith by and among Lender, Borrower and Adam Curry pursuant to which Mr. Curry has agreed to secure the $600,000 3 <PAGE> indebtedness evidenced by the Note and an additional $1,000,000 indebtedness evidence by a separate promissory note of even date herewith executed by Borrower in favor of Lender (the "Ancillary Note"). 1.28 "Subsidiary" means any corporation of which at least a majority of the outstanding securities having ordinary voting powers for the election of directors are at the time owned by Borrower and/or Subsidiary of the Borrower. 1.29 "Tangible Net Worth" means the consolidated net worth of Borrower, at the time of determination, as determined in accordance with Generally Accepted Accounting Principles, less: (i) goodwill; (ii) any writeup in the value ascribed to any asset set forth on Borrower's balance sheet resulting from a revaluation thereof; and (iii) accounts receivable or notes receivable from officers, directors and Affiliates of the Borrower. 1.30 "Termination Date" means April 30, 1997, unless sooner terminated by the occurrence and continuance beyond expiration of any cure period of an Event of Default (as hereinafter defined). 1.31 All accounting terms not specifically defined herein shall be construed in accordance with Generally Accepted Accounting Principles. 1.32 All of the terms defined in this Agreement shall have such defined meanings when used in the other Loan Documents and any certificates, reports or other documents or instruments issued under or delivered pursuant to this Agreement unless the context shall require otherwise. SECTION 2. Loan. ---- 2.1 Committed Amount. Subject to the terms and conditions of this ---------------- Agreement, Lender agrees to loan to the Borrower up to $600,000 pursuant to the terms of the Note upon the execution of this Loan Agreement. The Borrower shall make each request to borrow funds hereunder to the Lender in writing; the Lender shall thereafter provide such funds (via check or wire transfer) to the Borrower within five business days of receipt by the Lender of such written request; provided that the Borrower is not in default of any of the provisions of this Agreement, the Note, the Ancillary Note or any other Loan Documents. Upon any borrowings hereunder, Lender shall record as a debit on its books any amount so borrowed; upon any repayments, Lender shall record as a credit on its books any amount so repaid. Nothing set forth herein shall prohibit the Borrower from making prepayments without penalty at any time and from time to time. 2.2 Payments of Interest and Principal. Interest on the average daily ---------------------------------- Debit Balance shall accrue at the rate of twelve percent (12%) per annum. The Borrower shall pay to Lender on the Termination Date, the entire amount of the Debit Balance, together with accrued interest thereon and any fees then owed. Interest on the Note shall be computed and payable in the manner set forth in Section 9.1 hereof. 4 <PAGE> 2.3 Use of Proceeds. The proceeds evidenced by the Note shall be used by --------------- the Borrower for general working capital purposes. 2.4 Pledge Agreement. Contemporaneous with the execution of this ---------------- Agreement, Borrower shall execute the Pledge Agreement. SECTION 3. All Advances to Constitute One Loan. All loans by Lender to ----------------------------------- Borrower under this Agreement and the Note shall constitute one obligation of the Borrower. Borrower recognizes and agrees that it maintains a single loan facility with Lender and that Borrower is liable to Lender for all Liabilities hereunder, regardless of whether such Liabilities arise as a result of Advances to such Borrower. SECTION 4. Representations and Warranties. In order to induce Lender to ------------------------------ enter into this Agreement and to make the Loan available, Borrower represents and warrants to Lender (which representations and warranties shall survive the delivery of the documents mentioned herein, the extension of the Advances contemplated hereby and the termination of this Agreement) as follows: 4.1 Organization. Each of Borrower and every Subsidiary (if any) is a ------------ corporation duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has the power to own its respective properties and to carry on their respective businesses as now being conducted and is duly qualified to do business in every jurisdiction in the United States of America for which the failure to so qualify will have a material impact on the Borrower's business. 4.2 Power and Authority. Borrower is duly authorized under all applicable ------------------- provisions of law to execute, deliver and perform this Agreement, the Note, the Pledge Agreement, and the other Loan Documents to which it is a party, and all other action on the part of such Borrower required for the lawful execution, delivery and performance thereof have been duly taken; and this Agreement, the Note and each of the other Loan Documents, upon the due execution and delivery thereof, will be valid and enforceable instruments, obligations or agreements of such Borrower, in accordance with their respective terms, except as to enforcement of creditors rights generally. Neither the execution of this Agreement, the Note or the other Loan Documents, nor the fulfillment of or compliance with their provisions and terms, will conflict with, or result in a breach of the terms, conditions or provisions of, or constitute a violation of or default under: (a) to the best knowledge of the Borrower, any applicable law, regulation, order, writ or decree; or (b) any agreement or instrument to which such Borrower is a party, or create any lien, charge or encumbrance upon any of the property or assets of any of them pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them are bound except those in favor of Lender expressly created hereunder. 4.3 Litigation. There are no pending or threatened actions or proceedings ---------- before any court, any state or federal regulatory body, or any self-regulatory organization arbitrator or governmental or administrative body or agency which may materially adversely affect the properties, business or condition, financial or otherwise, of the Borrower or in any way materially affect or call into question the power and authority of the Borrower to enter into or perform this Agreement and the Note. 4.4 Taxes. Except as previously disclosed to the Lender, Borrower has ----- filed all income tax returns (if any) required to be filed by it and all taxes due thereon have been paid, and no controversy 5 <PAGE> in respect of additional income taxes, state or federal, of Borrower is pending, or to the knowledge of Borrower, threatened. 4.5 Agreements or Restrictions Affecting the Borrower. The Borrower is ------------------------------------------------- not a party to or otherwise bound by any contract or agreement or subject to any restrictions which adversely affects the business, properties, or condition, financial or otherwise, of the Borrower or restricts the Borrower's ability to enter into the Loan Documents or the Borrower's ability to effect the transactions contemplated therein and herein. 4.6 Governmental Approval. No approval of any federal, state or local --------------------- governmental authorities is necessary to carry out the terms of this Agreement, the Note, or the other Loan Documents, and no consents or approvals are required in the making or performance of this Agreement, the Note or the other Loan Documents. 4.7 No Untrue Statements. None of this Agreement, the Note or the other -------------------- Loan Documents nor any other agreements, reports, schedules, certificates or instruments heretofore or simultaneously with the execution of this Agreement delivered to Lender, contains any misrepresentation or untrue statement of fact or omits to state any material fact necessary to make any of such agreements, reports, schedules, certificates or instruments not misleading. 4.8 Regulation T. No part of the proceeds of the Loan made pursuant to ------------ this Agreement will be or have been used to purchase or carry or to reduce or retire any loan incurred to purchase or carry, any margin stocks (within the meaning of any regulation of the Board of Governors of the Federal Reserve System) or to extend credit to others for the purpose of purchasing or carrying any such margin stocks. If requested by Lender, the Borrower will furnish to Lender, in connection with the loans hereunder, a statement in conformance with the requirements of Federal Reserve Form U-1 referred to in said regulations. In addition, no part of the proceeds of the loans hereunder will be used for the purchase of commodity future contracts (or margins therefor for short sales). SECTION 5. Conditions Precedent to Making Loans. ------------------------------------ Lender shall not be obligated to make any Advances until all of the following conditions have been satisfied by proper evidence, execution and/or delivery to Lender of the following items, all in form, and substance reasonably satisfactory to Lender: (a) The Note; (b) This Agreement; and (c) The Pledge Agreement. (d) Resolutions of the Board of Directors and/or the stockholder of Borrower, certified by the Secretary of the Borrower as of the Closing Date, approving or otherwise ratifying the transactions contemplated by this Agreement, and approving the form of this Agreement, the Note and the Pledge Agreement and authorizing execution, delivery, and performance thereof. 6 <PAGE> (e) Specimen signatures of the officer of the Borrower executing this Agreement and the Note and the officer authorized to borrow under the Note, certified by the Secretary of the Borrower. (f) Copies of the Article of Incorporation of the Borrower, certified by the Secretary of State of Borrower's corporation's state of incorporation and further certified by the Secretary of Borrower not to have been altered or amended since certification by the Secretary of State. (g) A copy of the Bylaws of the Borrower, certified by the Secretary of Borrower to be true and correct copy as currently in effect. (h) Such other instruments, documents or items as Lender may reasonably request. (i) No Event of Default shall have occurred and be continuing beyond any applicable cure period under the Note or the Ancillary Note. SECTION 6. Affirmative Covenants. Borrower covenants that, so long as any --------------------- portion of the Liabilities remains unpaid and unless the Lender otherwise consents in writing, it will and, where applicable, will cause each Subsidiary: 6.1 Financial Reports and Other Data. -------------------------------- (a) As soon as practicable and in any event within forty-five (45) days after the end of each fiscal quarter deliver or cause to be delivered to Lender consolidated and consolidating balance sheets of Borrower as at the last day of such quarter and related consolidated and consolidating statements of income and retained earnings and changes in financial condition for such quarter and cumulative year-to-year date balance sheet and income statement data for Borrower setting forth in each case in comparative form figures for the corresponding period in the preceding fiscal quarter, all in reasonable detail and satisfactory in scope to the Lender, and certified by an Authorized Officer of Borrower to have been prepared in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis, subject to changes resulting from normal, recurring year-end adjustments. (b) As soon as practicable and in any event within sixty (60) days after the end of each Fiscal Year deliver or cause to be delivered to Lender consolidated and consolidating balance sheets of Borrower and its Subsidiaries as at the end of such Fiscal Year, and related statements of income and retained earnings and changes in financial position comparative form corresponding figures from the preceding annual audit, all in reasonable detail and satisfactory in scope to Lender and audited by and containing (as to the consolidated financial statements) an unqualified opinion of independent certified public accountants acceptable to Lender. (c) Borrower agrees to provide Lender with a copy of any filing made with a federal or state agency or self-regulatory organization promptly after the filing thereof. (d) Together with each delivery of those items required by clauses (a) and (b) above, Borrower shall deliver to Lender a certificate of the Authorized Officer setting forth: (i) that to the best of his knowledge, the Borrower has kept, observed, performed and fulfilled each and every agreement binding on it contained in this Agreement and the other Loan Documents, and is not at the time in 7 <PAGE> default of the keeping, observance, performance of fulfillment of any of the terms, provisions and conditions hereof; and (ii) that no Event of Default has occurred, or specifying all such Events of Defaults of which they may have knowledge; (e) Together with each delivery of the financial statements required by clause (b) above, Borrower shall deliver to Lender letters of representation signed by the most senior officer of Borrower indicating and confirming that Borrower is not in breach of the covenants set forth in Section 6.11 and Sections 7.2, 7.3, and 7.6 hereof; (f) With reasonable promptness, deliver to Lender a copy of all reports and management letters, if any, delivered to Borrower by its independent certified public accountants; and (g) With reasonable promptness, deliver such additional financial or other data as Lender may reasonably request. Lender is hereby authorized to deliver a copy of any financial statements or any other information relating to the business operations or financial condition of Borrower which may be furnished to it or come to its attention pursuant to this Agreement or otherwise, to any regulatory body or agency having jurisdiction over Lender or to any person which shall have the right or obligation to succeed to all or any part of Lender's interest in the Note. 6.2 Taxes and Liens. Promptly pay, or cause to be paid, all taxes, --------------- assessments and other governmental charges which may lawfully be levied or assessed upon the income or profits of the Borrower, or upon any property, real, personal or mixed, belonging to the Borrower, or upon any part thereof, and also any lawful claims for labor, material and supplies which if unpaid, might become a lien or charge against any such property; provided, however, Borrower shall not be required to pay any such tax, assessment, charge, levy or claim so long as the validity thereof shall be actively contested in good faith by property proceedings; but provided further that any such tax, assessment, charge, levy or claim shall be paid or bonded in a manner satisfactory to Lender forthwith upon the commencement of proceedings to foreclose any lien securing the same. 6.3 Business and Existence. Do or cause to be done all things necessary ---------------------- to preserve and to keep in full force and effect any licenses necessary to the business of each of the Borrower and its Subsidiaries, its corporate existence and rights of its franchises, trade names, trademarks, and permits which are reasonably necessary for the continuance of its business; and continue to engage principally in the business currently operated by Borrower and its Subsidiaries. 6.4 True Books. Keep true books of record and account in which full, true ---------- and correct entries will be made of all of its dealings and transactions, and set aside on its books such reserves as may be required by Generally Accepted Accounting Principles with respect to all taxes, assessments, charges, levies and claims referred to in Section 6.2 hereof, and with respect to its business in general, and include such reserves in interim as well as year-end financial statements. 6.5 Pay Indebtedness to Lender and Perform Other Covenants. (a) Make full ------------------------------------------------------ and timely payment of the principal of and interest on the Note, the Ancillary Note and all other indebtedness of the Borrower to Lender, whether now existing or hereafter arising, including the payment of fees; and (b) Duly comply with all terms and covenants contained in this Agreement and all other instruments and documents given to Lender pursuant to this Agreement. 8 <PAGE> 6.6 Right of Inspection. Permit any person designated by Lender, at ------------------- Lender's expense, to visit and inspect any of the properties, books and financial reports of Borrower and its Subsidiaries, all at such reasonable times and as often as Lender may reasonable request. 6.7 Observance of Laws. Conform to and duly observe all laws, regulations ------------------ and other valid requirements of any regulatory authority with respect to the conduct of its business. 6.8 Borrower's Knowledge of Default. Upon an officer or director of the ------------------------------- Borrower obtaining knowledge of, or threat of, an Event of Default hereunder or under any other obligation of the Borrower, cause such officer to promptly, no more than five (5) days, deliver to Lender notice thereof specifying the nature thereof, the period of existence thereof, and what action the Borrower proposes to take with respect thereto. 6.9 Notice of Proceedings. Upon an officer or director of the Borrower --------------------- obtaining knowledge of any material litigation, dispute or proceedings being instituted or threatened against the Borrower, or any material attachment, levy, execution or other process being instituted against any assets of the Borrower, cause such officer to promptly, no more than five (5) days, give Lender written notice of such litigation, dispute, proceeding, levy, execution or other process. 6.10 Further Assurances. At its cost and expense, Borrower hereby ------------------ expressly agrees to execute any additional documents necessary in order to correct, amend, modify or take any other action necessary in order to effect the transactions contemplated by the Loan Documents. In the event that Borrower fails to execute and deliver any such documents within seven (7) days after Lender requests same, Borrower hereby expressly grants to Lender in irrevocable power of attorney, to execute, deliver and file any such documents in the name of Borrower. The foregoing irrevocable power of attorney shall be deemed to be irrevocable and coupled with an interest. 6.11 Continued Service by Current Officers. Cause Adam Curry and Ronald ------------------------------------- Bloom to remain active in the day-to-day operations of the Borrower. SECTION 7. Negative Covenants. Borrower covenants and agrees that, so ------------------ long as any portion of the Liabilities remains unpaid and unless the Lender otherwise gives its prior written consent, it will not and, where applicable, will not cause any Subsidiary, directly or indirectly, to: 7.1 Mortgages, Liens, Etc. Incur, create, assume or permit to exist, ---------------------- other than in the ordinary course of business, any mortgage, pledge, security interest, encumbrance, lien or charge of any kind, including liens arising under conditional sales or other title retention agreements upon any of assets or properties of any character, without the prior written consent of Lender, which consent will not be unreasonably withheld. 7.2 Capital Expenditures. Make or become committed to make, directly or -------------------- indirectly, until the Termination Date, capital expenditures (including, without limitation, capitalized leases) amounting to in excess of $75,000 in the aggregate, without the prior written consent of Lender, which consent will not be unreasonably withheld; provided however, that in the event that the Borrower -------- ------- has borrowed and owes the Lender the maximum amount available to the Borrower hereunder, the foregoing capital expenditure amount may not exceed $25,000. 9 <PAGE> 7.3 Loans and Investments. Other than in the ordinary course of business, --------------------- lend or advance money, credit or property to any Person, or invest in (by capital contribution or otherwise), or purchase or repurchase the stock or indebtedness or assets or properties of any Person, or agree to do any of the foregoing, without the prior written consent of Lender, which consent will not be unreasonably withheld. 7.4 Guaranties. Guarantee, assume, endorse or otherwise become or remain ---------- liable in connection with the obligations (including accounts payable) of any other Person, other than the endorsement of negotiable instruments in the ordinary course of business for deposit or collection, without the prior written consent of Lender, which consent will not unreasonably withheld. 7.5 Sale of Assets, Dissolution, Etc. Except with respect to inter- --------------------------------- corporate transfers by and between Borrower and its Subsidiaries (if any) and other than in connection with the acquisition of the Borrower by the Lender (or its Subsidiary), transfer, sell, assign, lease or otherwise dispose of any of its properties or assets (or allow any Subsidiary to transfer, sell, assign, lease or otherwise any of its assets or properties), other than in the ordinary course of business, or any assets or properties necessary or desirable for the proper conduct of its business, or transfer, sell, assign or otherwise dispose of any of its notes, Accounts, or contract rights to any Person, or change the nature of its business, wind-up, liquidate or dissolve, or agree to any of the foregoing, without the prior written consent of Lender, which consent will not unreasonably withheld. 7.6 Acquisition of Assets. Other than in the ordinary course of business, --------------------- permit the purchase, acquisition or lease of assets of any Person or Persons, without the prior written consent of Lender, which consent will not unreasonably withheld. 7.7 No Further Issuance of Securities. Borrower hereby expressly agrees --------------------------------- not to (other than in connection with the acquisition of the Borrower by the Lender (or its Subsidiary)) create, issue or permit the issuance of any additional securities of Borrower or of any of its Subsidiaries (if any), or any rights, options or warrants to acquire any such securities, without the prior written consent of the Lender, which consent will not be unreasonably withheld. SECTION 8. Events of Default. ----------------- 8.1 Defaults. Each of the following shall constitute an event of default -------- (an "Event of Default") hereunder: (i) the failure to pay when due any principal or interest hereunder and the continuance of such failure for a period of thirty (30) days after written notice from the Lender to the Borrower of such failure; (ii) the violation by the Borrower of any covenant or agreement contained in this Agreement, the Note or the Ancillary Note and the continuance of such violation for a period of thirty (30) days after written notice from the Lender to the Borrower of such failure; (iii) any change in control of the Borrower which is not previously approved by the written consent of the Lender; (iv) the assignment for the benefit of creditors by the Borrower; (v) the application for the appointment of a receiver or liquidator for the Borrower or the property of the Borrower; (vi) the filing of a petition in bankruptcy by or against the Borrower; (vii) the issuance of an attachment or the entry of a judgment against the Borrower in excess of $50,000; (viii) a default by the Borrower with respect to any other indebtedness due to the Lender; (ix) the making or sending of a notice of intended bulk sale by the Borrower; or (x) the termination of existence, dissolution or any other insolvency of the Borrower. Upon the occurrence of any of the foregoing Events of Default, the Note shall be considered to be in 10 <PAGE> default and the entire unpaid principal sum hereof, together with accrued interest, shall at the option of the holder hereof become immediately due and payable in full. Upon the occurrence of an Event of Default and the placement of the Note or this Agreement in the hands of an attorney for collection, the Borrower agrees to pay reasonable collection costs and expenses, including reasonable attorneys' fees and interest from the date of the default at the rate of fifteen percent (15%) per annum computed on the unpaid principal balance. 8.2 Waiver of Default. The Lender may waive any Event of Default ----------------- hereunder. Such waiver shall be evidenced by written notice or other document specifying the Event or Events of Default being waived and shall be binding on any subsequent Lenders under the Note. 8.3 Cure Period. Notwithstanding anything else to the contrary set forth ----------- herein, upon the occurrence of an Event of Default, including but not limited to the failure to pay when due any principal or interest hereunder, the Borrower shall have six (6) months from the date of the occurrence of such Event of Default to cure such default, during which time, the Lender may not take any action with respect to the Collateral, collection of amounts due and owing hereunder or enforcement of the provisions hereof. SECTION 9. Miscellaneous. ------------- 9.1 Computation of Interest and Payment and Prepayment of Principal. --------------------------------------------------------------- Interest on the Note shall be computed on the basis of a year of 365 days. If any principal amount under the Note becomes due and payable on other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day and interest on such principal shall be payable at the then applicable rate during such extension period. 9.2 Waiver of Default. Lender may, by written notice to the Borrower, at ----------------- time and from time to time, waive any default in the performance or observance of any condition, covenant or other term hereof or any Event of Default which shall have occurred hereunder and its consequences. Any such waiver shall be for such period and subject to such conditions as shall be specified in any such notice. In the case of any such waiver, the Borrower and Lender shall be restored to their former position and rights hereunder and the other Loan Documents, and any Event of Default so waived shall be deemed to be cured and not continuing; but no such waiver shall extent to any subsequent or other Event of Default, or impair any right consequent thereon. 9.3 Amendments and Waivers. Lender and the Borrower may, subject to the ---------------------- provisions of this section, from time to time, enter into written agreements supplemental hereto for the purpose of adding any provisions to this Agreement or the other Loan Documents of changing in any manner the rights of Lender or of the Borrower hereunder and Lender may execute and deliver to the Borrower a written instrument waiving any of the requirements of this Agreement. Any such written supplemental agreement or waiver shall be binding upon the Borrower and Lender. 9.4 Notices. All notices, requests and demands to or upon the respective ------- parties hereto under this Agreement and all other Loan Documents shall be deemed to have been given or made when deposited in the mail, postage prepaid by registered or certified mail, return receipt requested, addressed as follows or to such other address as may be hereafter designated in writing by the respective parties. 11 <PAGE> The Borrower: On Ramp, Inc. 11 West 42nd Street, 28th Floor New York, New York 10036 The Lender: Think New Ideas, Inc. 16815 Royal Crest Drive, Suite 160 Houston, Texas 77058 except in cases where it is expressly herein provided that such notice, request or demand is not effective until received by the party to whom it is addressed. 9.5 No Waiver; Cumulative Remedies. No failure to exercise and no delay ------------------------------ in exercising, on the part of Lender, any right, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein and in the other Loan Documents provided are cumulative and not exclusive of any rights or remedies provided by law. 9.6 Survival of Agreements. All agreements, representations and ---------------------- warranties made herein shall survive the execution of this Agreement, the delivery of the Note and the making and renewal loans hereunder and the termination of this Agreement. 9.7 Governing Law. This Agreement and the legal relations among the ------------- parties hereto shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflicts of law doctrine. Each of the parties hereto irrevocably consents to the jurisdiction of the federal and state courts located in the State of Delaware. 9.8 Enforceability of Agreement. Should any one or more of the provisions --------------------------- of this Agreement be determined to be illegal or unenforceable as to one or more of the parties, all other provisions nevertheless shall remain effective and binding on the parties hereto, up to the full amount permitted by law. 9.9 Usury Savings Clause. Notwithstanding any other provision herein, the -------------------- aggregate interest rate charged under the Note, including all charges or fees in connection therewith deemed in the nature of interest exceeds the maximum legal rate, then Lender shall have the right to make such adjustments as are necessary to reduce the aggregate interest rate to the maximum legal rate. The Borrower waives any right to prior notice of such adjustment and further agree that such adjustment may be made by Lender subsequent to notification from the Borrower that the aggregate interest charged exceeds the maximum legal rate. 9.10 Execution of Counterparts. This Agreement may be executed in any ------------------------- number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. 9.11 Stamp or Other Taxes. The Borrower agrees to pay any and all -------------------- documentary, intangible stamp or excise taxes now or hereafter payable in respect to this Agreement and the other Loan Documents or any modification thereof, and shall hold Lender harmless with respect thereto. The 12 <PAGE> Borrower further agrees that Lender may deduct from any account of the Borrower the amount of any such documentary or intangible stamp or tax payable, the decision of Lender as to the amount thereof to be conclusive, absent manifest error. 9.12 Waiver of Trial by Jury. The Borrower hereby waives any right to a ----------------------- trial by jury in any action brought by Lender whether under this Agreement or any of the other Loan Documents to enforce any claims or right arising hereunder or thereunder. 9.13 Assignability. This Agreement shall inure to the benefit and be ------------- binding upon the parties hereto and their respective successors and assigns. This Agreement shall not be assignable, in whole or in part, by the Borrower, without the prior written consent of the Lender. This Agreement may be assigned or transferred, in whole or in part by Lender upon written notice to the Borrower. IN WITNESS WHEREOF, the Borrower and Lender have caused this Agreement to be duly executed by their duly authorized officers, all as of the day and year first above written. WITNESS: ON RAMP, INC. By: /s/ Adam Curry ------------------------- ----------------------------- Adam Curry, President WITNESS: THINK NEW IDEAS, INC. By: /s/ Frank M. DeLape ------------------------- ----------------------------- Frank M. DeLape, President 13