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
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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.
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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
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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
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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.
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2.1 Committed Amount. Subject to the terms and conditions of this
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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
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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.
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2.3 Use of Proceeds. The proceeds evidenced by the Note shall be used by
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the Borrower for general working capital purposes.
2.4 Pledge Agreement. Contemporaneous with the execution of this
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Agreement, Borrower shall execute the Pledge Agreement.
SECTION 3. All Advances to Constitute One Loan. All loans by Lender to
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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
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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
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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
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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
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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
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filed all income tax returns (if any) required to be filed by it and all taxes
due thereon have been paid, and no controversy
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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
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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
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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
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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
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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.
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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.
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(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
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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.
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(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
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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,
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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
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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
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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
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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.
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6.6 Right of Inspection. Permit any person designated by Lender, at
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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
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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
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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
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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
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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
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Bloom to remain active in the day-to-day operations of the Borrower.
SECTION 7. Negative Covenants. Borrower covenants and agrees that, so
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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,
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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
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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
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has borrowed and owes the Lender the maximum amount available to the Borrower
hereunder, the foregoing capital expenditure amount may not exceed $25,000.
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7.3 Loans and Investments. Other than in the ordinary course of business,
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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
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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-
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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,
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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
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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.
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8.1 Defaults. Each of the following shall constitute an event of default
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(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
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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
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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
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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.
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9.1 Computation of Interest and Payment and Prepayment of Principal.
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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
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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.
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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
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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
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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
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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
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Adam Curry, President
WITNESS: THINK NEW IDEAS, INC.
By: /s/ Frank M. DeLape
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Frank M. DeLape, President
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