CREDIT AGREEMENT
This Credit Agreement ("Agreement") is made and entered into on August 14, 2000,
2000, by and between Full Moon Interactive, Inc., a Delaware Corporation, Full
Moon Interactive Group, Inc., a California corporation, ▇▇▇▇▇▇▇ Data System,
Inc., a Delaware corporation, Image Network, Inc., a California corporation,
▇▇▇▇▇▇ Communications, Inc., a California corporation (individually referred to
herein as "Co-Borrower" and collectively referred to herein as "Borrower") and
Grand Pacific Financing Corp., a California corporation, ("Lender").
Subject to the terms and conditions of this Agreement, any security agreements)
executed by Borrower in favor of Lender, or any other agreements executed in
conjunction therewith (collectively, the "Loan Documents"), Lender shall make
the loans and or advances (individually a "Loan" and collectively "Loans")
referred to below to Borrower.
In consideration of mutual covenants and conditions hereof, the parties hereto
agree as follows:
1. AMOUNT AND TERMS OF CREDIT
1.01 ASSET BASED LINE OF CREDIT COMMITMENT (ABL LINE OF CREDIT)
(a) LINE OF CREDIT - ACCOUNTS RECEIVABLE BORROWING BASE CONSTRAINED.
Subject to all the terms and conditions of this Agreement, provided that no
event of default then has occurred and is continuing, Lender shall upon
Borrower's request, make advances ("ABL Loans") to Borrower, from time to time
and in such amounts as Borrower shall request up to an aggregate principal
amount outstanding not to exceed:
The lesser of: (1) seventy percent (70%) of Eligible Accounts with
balances less than 30 days from invoice date plus thirty-five percent (35%) of
Eligible Accounts with balances over 30 days but less than 60 days from invoice
date plus fifteen percent (15%) of Eligible Accounts with balances over 60 days
from invoice date; or (2) $1,500,000. Such Eligible Accounts may be adjusted
from time to time as provided for under Section 4.14 hereof (the "Borrowing
Base") and in no event more than $1,500,000 (the "ABL Line of Credit').
If at any time or for any reason, the outstanding principal amount of
the ABL Loan Account (as defined below) is greater than the lesser of: (x) the
Borrowing Base or (y) the ABL Line of Credit, Borrower shall immediately pay to
Lender, in cash, the amount of such excess. Any commitment of Lender, pursuant
to the terms of this Agreement, to make ABL Loans shall expire on the ABL
Maturity Date (as hereinafter defined), subject to Lender's right to renew said
commitment in its sole and absolute discretion at Borrowers request. Any such
renewal of said commitment shall not be binding upon Lender unless it is in
writing and signed by an officer of Lender. Provided that no Event of Default
(as hereinafter defined) has occurred and is continuing, all or any portion of
the ABL Loans advanced by Lender which are repaid by Borrower shall be available
for reborrowing in accordance with the terms hereof. Borrower promises to pay to
Lender the entire outstanding unpaid principal balance (and all accrued unpaid
interest thereon) of the ABL Loan Account on the earlier of: (1) February 11,
2001; (2) upon Borrower's successful initial public offering of its equity
securities; (3) upon Borrower's liquidation, dissolution, merger or
consolidation or commencement of any proceedings thereof; or (4) upon Borrower's
equity or debt financing in excess of $5,000,000.
1
(b) LIMITATION ON ADVANCE OF ANY ABL LOANS. Notwithstanding any of the
provisions contained in Section 1.01 (a) hereof, prior to any advance of a ABL
Loan, a representative of Lender shall have conducted an audit of Borrower's
books and records relating to the Accounts and any other Collateral for the ABL
Loans and made extracts therefrom, and arranged for verification of the
Accounts, directly with the account debtors or otherwise, and with results
satisfactory to Lender, the cost of such audit of which shall be at Borrower's
sole expense. Based on Lender's review of such audit, and prior to the advance
of an ABL Loan in accordance with the terms hereof, if such audit reflects a
material adverse change relating to the Accounts, Lender may adjust the
Borrowing Base percentage, in its sole and reasonable discretion, as provided
for under Section 4.14 hereof.
(c) LOAN LEDGER ACCOUNT. The amount of each ABL Loan made by Lender to
Borrower hereunder shall be debited to the loan ledger account of Borrower
maintained by Lender for the ABL Line of Credit (herein called the "ABL Loan
Account") and Lender shall credit the ABL Loan Account with all loan repayments
in respect thereof made by Borrower. The proceeds of the ABL Loans may only be
used by Borrower for general corporate purposes.
(d) ABL LOANS INTEREST. Each Co-Borrower, jointly and severally, further
promises to pay to Lender from the date of the advance of the initial ABL Loan
through the ABL Maturity Date, on end of each month, interest on the unpaid
balance of the ABL Loan Account at a rate of interest equal to one percent (1%)
per annum in excess of the prime rate of interest published by the WALL STREET
JOURNAL from time to time (the "Prime Rate"). Interest shall be computed at the
above rate on the basis of the actual number of days during which the principal
balance of the ABL Loans are outstanding divided by 360, which shall for
interest computation purposes be considered one (1) year.
(e) APPLICATION OF RECEIPTS. All sums received by Lender, whether from
Borrower or from Borrower's account debtors shall be applied to the outstanding
ABL Loan balance immediately upon receipt thereof by the Lender. The Borrower
will be charged, on a monthly basis, for the uncollected balance fees.
(f) CERTAIN DEFINITIONS. As used herein the following terms shall have the
following meanings:
"Accounts" means any right to payment for goods sold or leased, or
rented, or to be sold or to be leased, or to be rented, or for services rendered
or to be rendered no matter how evidenced, including accounts receivable,
contract rights, chattel paper, instruments, purchase orders, notes, drafts,
acceptances, general intangibles and other forms of obligations and receivables.
"Collateral" means any and all property of Borrower which is assigned
or hereafter is assigned to Lender as security or in which Lender now has or
hereafter acquires a security interest.
2
"Eligible Accounts" Eligible Accounts shall only include such accounts
as Lender in its sole discretion shall determine are eligible from time to time.
"Eligible Accounts" shall NOT include any of the following:
(1) All Accounts under which payment is not received within 90 days
from any invoice date.
(2) All Accounts against which the account debtor or any other person
obligated to make payment thereon asserts any defense, offset, counterclaim or
other right to avoid or reduce the liability represented by the Account.
(3) Any Accounts if the account debtor or any other person liable in
connection therewith is insolvent, subject to bankruptcy or receivership
proceedings or has made an assignment for the benefit of creditors or whose
credit standing is unacceptable to Lender and Lender has so notified Borrower.
(4) Account balances over 90 days from invoice date.
(5) Credit balances greater than 90 days from invoice date.
(6) Accounts due from a debtor if 25% or more of the aggregate amount
of accounts of such debtor have at that time remained unpaid for more then 90
days from invoice date.
(7) For accounts representing more than 15% of Borrower's total
accounts receivable, the balance in excess of the 15% is not eligible. However,
the Lender may deem, in its sole discretion, the entire amount, or any portion
thereof, eligible.
(8) Accounts with respect to international transactions unless insured
by an insurance company acceptable to the Lender or covered by letters of credit
issued or confirmed by a Lender acceptable to the Lender. Lender, in its sole
discretion, may deem as eligible amounts due from major, publicly owned foreign
companies.
(9) Accounts with respect to which the account debtor is an officer,
director, shareholder, employee, subsidiary or affiliate of Borrower.
(10) Accounts where the account debtor is a seller to Borrower, whereby
a potential offset (contra) exists.
(11) Consignment or guaranteed sales.
(12) ▇▇▇▇ and hold accounts.
(13) Collection accounts.
(14) C.O.D. accounts.
(15) Salesmen's accounts for promotional purposes.
(16) All United States Government receivables, unless formally assigned
to the Lender.
3
(17) Accounts representing ▇▇▇▇▇▇▇▇ for service or maintenance
contracts or for inventory or equipment on rent to the account debtor.
(18) Deferred revenues.
(19) Pre-▇▇▇▇▇▇▇▇.
(g) REQUESTS FOR ABL LOANS. Requests for ABL Loans hereunder shall be in
writing duly executed by Borrower in a form satisfactory to Lender, shall be
delivered to Lender not less than five (5) days prior to desired distribution
date and shall contain a certification setting forth the matters referred to in
Section 1 which shall disclose that Borrower is entitled to the amount of loan
being requested. Each ABL Loan request shall be a minimum of two hundred
thousand dollars ($200,000).
(h) LATE CHARGE. If any installment payment, interest payment, principal
payment or principal balance due under the ABL Line of Credit is delinquent ten
(10) or more days, Borrower agrees to pay Lender a late charge in the amount of
five percent (5%) of the payment so due and unpaid, in addition to the payment;
but nothing in this paragraph is to be construed as any obligation on the part
of the Lender to accept payment of any payment past due or less than the total
unpaid principal balance after maturity. All payments, at Lender's sole
discretion, shall be applied first to any late charges owing, then to interest
and the remainder, if any, to principal.
(i) DEFAULT RATE. If an Event of Default occurs hereunder, then during the
continuance thereof at the Lender's option, the interest rate shall be five
percent (5%) per year in excess of the rate otherwise applicable.
(j) INTEREST CALCULATIONS. The term "Prime Rate" shall mean the rate that
the Wall Street Journal, or its successor, has published as the prime lending
rate, which shall vary concurrently with any change in the Prime Rate. Interest
based on the Prime Rate shall vary concurrently with any change in the Prime
Rate. All interest shall be computed at the rate specified in any note on the
basis of the actual number of days during which the principal balance of the
corresponding Loans are outstanding divided by 360, which shall for interest
computation purposes be considered one (1) year.
1.02 LOAN FEE. In addition to any other amounts due, or to become due,
concurrent with the execution hereof, in connection with the ABL Line of Credit,
Borrower shall pay to Lender a loan fee of Seven Thousand Five Hundred Dollars
($7,500.00).
1.03 DOCUMENTATION FEE, COSTS AND EXPENSES. In addition to any other amounts
due, or to become due, concurrently with the execution hereof, each Co-Borrower
jointly and severally agrees to reimburse Lender for all reasonable costs and
expenses incurred by the Lender in connection with the transactions contemplated
herein including Lender's due diligence, the preparation of this Agreement, the
other Loan Documents, the perfection of any security interest granted to Lender
by Borrower and legal fees.
1.04 COLLATERAL. Borrower shall grant or cause to be granted to Lender a
first priority lien on any and all personal property of Borrower, which is
assigned or hereafter is assigned to Lender as security or in which Lender now
has or hereafter acquires a security interest or pursuant to the terms of any
security agreement, or otherwise as security for all of Borrower's obligations
to Lender, all as may be subject to Section 5.03 herein.
4
2. REPRESENTATIONS OF BORROWER
Each Co-Borrower represents and warrants that:
2.01 EXISTENCE AND RIGHTS. Each Co-Borrower is a corporation duly organized
and existing and in good standing under the laws of the state in which it was
incorporated, without limit as to the duration of its existence. Each
Co-Borrower is authorized and in good standing to do business in the state of
its incorporation; each Co-Borrower has the appropriate powers and adequate
authority, rights and franchises to own its property and to carry on its
business as now conducted, and is duly qualified and in good standing in each
state in which the character of the properties owned by it therein or the
conduct of its business makes such qualification necessary; and each Co-Borrower
has the power and adequate authority to make and carry out this Agreement, no
Co-Borrower has investment in any other business entity, unless specified in
writing to Lender.
2.02 AGREEMENT AUTHORIZED. The execution, delivery and performance of this
Agreement and the Loan Documents are duly authorized and do not require the
consent or approval of any governmental body or other regulatory authority; are
not in contravention of or in conflict with any law or regulation or any term or
provision of any Co-Borrower's charter/articles of incorporation, by-laws, or
similar document as the case may be, and this Agreement is the valid, binding
and legally enforceable obligation of each Co-Borrower in accordance with its
terms; subject only to bankruptcy, insolvency or similar laws affecting
creditors rights generally.
2.03 NO CONFLICT. The execution, delivery and performance of this Agreement
and the Loan Documents are not in contravention of or in conflict with any
agreement, indenture or undertaking to which any Co-Borrower is a party or by
which it or any of its property may be bound or affected, and do not cause any
lien, charge or other encumbrance to be created or imposed upon any such
property by reason thereof.
2.04 LITIGATION. Except as disclosed in writing to Lender by Borrower, there
is no litigation or other proceeding pending or threatened against or affecting
any Co-Borrower which if determined adversely to such Co-Borrower or its
interest would have a material adverse effect on the financial condition of
Borrower, and no Co-Borrower is in default with respect to any order, writ,
injunction, decree or demand of any court or other governmental or regulatory
authority.
2.05 FINANCIAL CONDITION. The consolidated balance sheet of each Co-Borrower
as of 7/31/1999, and the related profit and loss statement for the 12 month
period ended as of that date, a copy of which has heretofore been delivered to
Lender by each Co-Borrower, and all other statements and data submitted in
writing by each Co-Borrower to Lender in connection with this request for credit
are true and correct, and said balance sheet fairly presents the financial
condition of each Co-Borrower as of the date thereof, and has been prepared in
accordance with generally accepted accounting principles on a basis consistently
maintained. Since such date there have been no material adverse changes in the
financial condition or business of any Co-Borrower. Each
5
Co-Borrower has no knowledge of any liabilities, contingent or otherwise, at
such date not reflected in said balance sheet, and no Co-Borrower has entered
into any special commitments or substantial contracts which are not reflected in
said balance sheet, other than in the ordinary and normal course of its
business, which may have a materially adverse effect upon its financial
condition, operations or business as now conducted.
2.06 TITLE TO ASSETS. Each Co-Borrower has good title to its assets, and the
same are not subject to any liens or encumbrances other than those permitted by
Section 5.03 hereof.
2.07 TAX STATUS. Each Co-Borrower has no liability for any delinquent state,
local or federal taxes, and, if any Co-Borrower has contracted with any
government agency, such Co-Borrower has no liability for renegotiation of
profits.
2.08 TRADEMARKS, PATENTS. Each Co-Borrower, as of the date hereof, possesses
all necessary trademarks, trade names, copyrights, patents, patent rights, and
licenses to conduct its business as now operated, without any known conflict
with the valid trademarks, trade names, copyrights, patents and license rights
of others.
2.09 REGULATION U. None of the proceeds of any Loan shall be used to
purchase or carry margin stock (as defined within Regulation U of the Board of
Governors of the Federal Reserve system).
2.10 ERISA. All defined benefit pension plans as defined in the Employees
Retirement Income Security Act of 1974, as amended ("ERISA"), of each
Co-Borrower meet, as of the date hereof, the minimum funding standards of
Section 302 of ERISA, and no Reportable Event or Prohibited Transaction as
defined in ERISA has occurred with respect to any such plan.
3. CONDITIONS PRECEDENT TO LOAN.
Prior to Lender being obligated to make any Loan pursuant to this
Agreement, Lender must receive all of the following, each of which must be in
form and substance satisfactory to Lender:
3.01 FINANCING STATEMENT. Financing statement executed by each Co-Borrower.
3.02 INSURANCE. Borrower shall have delivered to Lender evidence of
insurance coverage required pursuant to that Agreement to Provide Insurance
executed by Borrower, in form, substance, amounts, covering risks and issued by
companies satisfactory to Lender, and where required by Lender, with loss
payable endorsements in favor of Lender.
3.03 ORGANIZATIONAL DOCUMENTS. Copies of the charter/articles of
incorporation, or similar document as the case may be, of each Co-Borrower.
3.04 AUTHORIZATIONS. Certified copies of all action taken by each
Co-Borrower to authorize the execution, delivery and performance of the Loan
Documents.
6
3.05 GOOD STANDING. Good standing certificates from the appropriate
secretary of state of the state in which each Co-Borrower is organized and in
each state in which it is required to be qualified to do business.
3.06 WARRANTS. Borrower to deliver to Lender 3 year warrants to purchase
43,000 shares of Full Moon Interactive, Inc. Common Stock, par value $0.001, at
an exercise price of $0.01 per share.
3.07 ADDITIONAL DOCUMENTS. Such other documents as Lender may reasonably
deem necessary.
3.08 PROMISSORY NOTE. Original, promissory note in the form attached hereto
as EXHIBIT A executed by each Co-Borrower.
4. AFFIRMATIVE COVENANTS OF BORROWER
Each Co-Borrower agrees that so long as it is indebted to Lender, under
borrowings, or other indebtedness, or so long as Lender has any obligation to
extend credit to Borrower it will, unless Lender shall otherwise consent in
writing:
4.01 RIGHTS AND FACILITIES. Maintain and preserve all rights, franchises and
other authority adequate for the conduct of its business; maintain its
properties, equipment and facilities in good order and repair; conduct its
business in an orderly manner without voluntary interruption and, if a
corporation or partnership, maintain and preserve its existence.
4.02 USE OF PROCEEDS. Use the proceeds of the loans only for purposes
specified in Section 1 of this Agreement.
4.03 INSURANCE. Maintain public liability, property damage and workers'
compensation insurance and insurance on all its insurable property against fire
and other hazards with responsible insurance carriers to the extent usually
maintained by similar businesses and/or in the exercise of good business
judgment, and as required by that Agreement to Provide Insurance executed by
Borrower, with the Lender to be shown as Lenders Loss Payee on such policies.
4.04 TAXES AND OTHER LIABILITIES. Pay and discharge, before the same become
delinquent and before penalties accrue thereon, all taxes, assessments and
governmental charges upon or against it or any of its properties, and all its
other liabilities at any time existing, except to the extent and so long as:
(a) The same are being contested in good faith and by appropriate
proceedings in such manner as not to cause any materially adverse effect upon
its financial condition or the loss of any right of redemption from any sale
thereunder; and
(b) It shall have set aside on its books reserves (segregated to the extent
required by generally accepted accounting practice) deemed by it to be adequate
with respect thereto.
4.05 RECORDS AND REPORTS. Maintain a standard and modern system of
accounting in accordance with generally accepted accounting principles on a
basis consistently maintained; permit Lender's representatives to have access
to, and to examine its properties, books and records at all reasonable times and
upon reasonable notice during normal business hours; and furnish Lender with the
following:
7
(a) MONTHLY FINANCIAL STATEMENT. As soon as available, and in any event
within thirty (30) days after the close of each month, a balance sheet, profit
and loss statement and reconciliation of each Co-Borrower's capital balance
accounts as of the close of such period and covering operations for the portion
of each Co-Borrower's fiscal year ending on the last day of such period, all in
reasonable detail and reasonably acceptable to Lender, in accordance with
generally accepted accounting principles on a basis consistently maintained by
each Co-Borrower and certified by an appropriate officer of each Co-Borrower.
(b) QUARTERLY FINANCIAL STATEMENT. As soon as available, and in any event
within thirty (30) days after the close of each quarter, a balance sheet, profit
and loss statement and reconciliation of each Co-Borrower's capital balance
accounts as of the close of such period and covering operations for the portion
of each Co-Borrower's fiscal year ending on the last day of such period, all in
reasonable detail and reasonably acceptable to Lender, in accordance with
generally accepted accounting principles on a basis consistently maintained by
each Co-Borrower and certified by an appropriate officer of each Co-Borrower.
(c) ANNUAL FINANCIAL STATEMENT. As soon as available, and in any event
within ninety (90) days after and as of the close of each fiscal year of each
Co-Borrower, a consolidated report of audit of Company, all in reasonable
detail, audited by a certified public accountant selected by Borrower and
reasonably acceptable to Lender, in accordance with generally accepted
accounting principles on a basis consistently maintained by each Co-Borrower and
certified by an appropriate officer of each Co-Borrower.
(d) OFFICER'S CERTIFICATE. Within thirty (30) days after the end of each
month and within ninety (90) days after the end of each fiscal year of each
Co-Borrower, a certificate of the chief financial officer or president of each
Co-Borrower, stating that each Co-Borrower has performed and observed each and
every covenant contained in this Agreement to be performed by it and that no
event has occurred and no condition then exists which constitutes an event of
default hereunder or would constitute such an event of default upon the lapse of
time or upon the giving of notice and the lapse of time specified herein; or, if
any such event has occurred or any such condition exists, specifying the nature
thereof.
(e) AUDIT REPORTS. Promptly after the receipt thereof by each Co-Borrower,
copies of any detailed audit reports submitted to each Co-Borrower by
independent accountants in connection with each annual or interim work on the
accounts of such Co-Borrower made by such accountants.
(f) ACCOUNTS RECEIVABLE AND ACCOUNTS PAYABLE AGINGS. Upon initial usage of
Asset Based Line, and for as long as borrowings exist under the Asset Based
Line, within 20 days from each month-end, deliver to Lender a detailed accounts
receivable aging reconciled to the general ledger of each Co-Borrower, a
detailed accounts payable aging reconciled to each Co-Borrower's general ledger
and setting forth the amount of any book overdraft or the amount of checks
issued but not sent and an inventory certification outlining both inventory
composition and activity for the month. All the foregoing will be in a form and
with such detail as Lender may request from time to time.
8
(g) BORROWING BASE CERTIFICATE. Deliver to Lender, on a monthly basis
within thirty (30) days of each month end, a Borrowing Base Certificate.
(h) LIST OF CUSTOMERS. As requested by the Lender, each Co-Borrower will
provide Lender with an alphabetized list of customers including addresses.
(i) OTHER INFORMATION. Such other information relating to the affairs of
each Co-Borrower as the Lender reasonably may request from time to time.
4.06 ADJUSTED QUICK RATIO. Maintain on a monthly basis a minimum adjusted
quick ratio defined as (unrestricted cash plus net accounts receivable less
deferred revenue, divided by current liabilities and all Lender debt, including
outstanding standby letters of credit and credit card sublimits) of at least
1.0:1.0.
4.07 DEBT TO NET WORTH. Maintain on a monthly basis a ratio of total
liabilities to Net Worth of not greater than 1.3:1.0.
4.08 ERISA. Cause all defined benefit pension plans, as defined in ERISA, of
each Co-Borrower to, at all times, meet the minimum funding standards of Section
302 of ERISA, and ensure that no Reportable Event or Prohibited Transaction, as
defined in ERISA, will occur with respect to any such plan.
4.09 LAWS. At all times comply with, or cause to be complied with, all laws,
statues, rules, regulations, orders and directions of any governmental authority
having jurisdiction over each Co-Borrower or each Co-Borrower's business.
4.10 USE OF PROCEEDS. Use the proceeds of the Loans only for the purposes
specified in Section 1 herein.
4.11 GAAP. Compliance with all financial covenants shall be calculated based
on generally accepted accounting principles applied on a basis consistently
maintained by Borrower.
4.12 OPERATING ACCOUNTS. Maintain all primary accounts and lending
relationship with the Lender. Maintain, or cause to be maintained, on deposit
with Lender, non-interest bearing demand deposit balances sufficient to
compensate Lender for all services provided by Lender. Balances shall be
calculated after reduction for the reserve requirement of the Federal Reserve
Board and uncollected funds. Any deficiencies shall be charged directly to the
Borrower on a monthly basis.
4.13 NOTICES. Promptly notify Lender in writing of (i) the occurrence of any
Event of Default hereunder or any event which upon notice and lapse of time
would be an Event of Default; (ii) all litigation affecting any Co-Borrower
where the amount is $100,000 or more; (iii) any substantial dispute which may
exist between any Co-Borrower and any governmental regulatory body or law
enforcement authority; (iv)any change in any Co-Borrower's name or principal
place of business; or (v) any other matter which has resulted or might result in
a material adverse change in any Co-Borrower's financial condition or
operations.
9
4.14 AUDITS. Permit representatives of Lender to conduct audits of each
Co-Borrower's books and records relating to the Accounts and other Collateral
and make extracts therefrom, with results satisfactory to Lender, provided that
Lender shall use its best efforts to not interfere with the conduct of each
Co-Borrower's business, and to the extent possible to arrange for verification
of the Accounts directly with the account debtors obligated thereon or
otherwise, all under reasonable procedures acceptable to Lender and at
Borrower's sole expense; provided further that, prior to an Event of Default,
Borrower shall not be responsible for the expense of more than two (2) such
audits, in any fiscal year. Notwithstanding any of the provisions contained in
Section 1.01 (a) hereof, each Co-Borrower hereby acknowledges and agrees that
upon completion of any such audit Lender shall have the right to adjust the
Borrowing Base percentage, in its sole and reasonable discretion, based on its
review of the results of such collateral audits.
4.15 COVENANTS RELATING TO COLLATERAL. In addition to any covenants in any
Loan Document relating to any Collateral each Co-Borrower agrees:
(a) To execute and deliver to Lender such assignments, including Lender's
standard forms of specific or general assignment covering individual Accounts,
notices, financing statements, and other documents and papers as Lender may
require in order to affirm, effectuate or further assure the assignment to
Lender of the Collateral or to give any third party, including the account
debtors obligated on the Accounts, notice of Lender's interest in the
Collateral.
(b) Until Lender exercises its rights to collect the Accounts pursuant to
Section 4.15(e), Borrower will collect with diligence all of Borrower's
Accounts. Any collection of Accounts by Borrower, whether in the form of cash,
checks, notes, or other instruments for the payment of money (properly endorsed
or assigned where required to enable Lender to collect same), shall be in trust
for Lender, and Borrower shall keep all such collections separate and apart from
all other funds and property so as to be capable of identification as the
property of Lender and deliver said collections, together with the proceeds of
all cash sales, daily to Lender in the identical form received. The proceeds of
such collections when received by Lender may be applied by Lender directly to
the payment of Borrower's Loan Account or any other obligation secured hereby.
Any credit given by Lender upon receipt of said proceeds shall be conditional
credit subject to collection. Returned items at Lender's option may be charged
to Borrower's general account. All collections of the Accounts shall be set
forth on an itemized schedule, showing the name of the account debtor, the
amount of each payment and such other information as Lender may request.
(c) That until Lender exercises its rights to collect the Accounts pursuant
to Section 4.15(e), each Co-Borrower may continue its present policies with
respect to returned merchandise and adjustments. However, each Co-Borrower
shall, within 90 days of the end of each month notify Lender of all cases
involving returns, repossessions, and loss or damage of or to merchandise
represented by the Accounts and of any credits, adjustments or disputes arising
in connection with the goods or services represented by the Accounts and, in any
of such events, Borrower will immediately pay to Lender from its own funds (and
10
not from the proceeds of Accounts or Inventory) for application to Borrower's
Loan Account or any other obligation secured hereby the amount of any credit for
such returned or repossessed merchandise and adjustments made to any of the
Accounts. Until payment is made as provided herein or until release by Lender
from its security interest, all merchandise returned to or repossessed by
Borrower shall be set aside and identified as the property of Lender and Lender
shall be entitled to enter upon any premises where such merchandise is located
and take immediate possession thereof and remove same.
(d) To promptly notify Lender of any attachment or other legal process
levied against any of the Collateral and any information received by each
Co-Borrower relative to the Collateral, including the Accounts, the account
debtors or other persons obligated in connection therewith, which may in any way
affect the value of the Collateral or the rights and remedies of Lender in
respect thereto.
(e) In the Event of Default, that Lender may at any time, without prior
notice to Borrower, collect the Accounts and may give notice of assignment to
any and all account debtors, and Borrower does hereby make, constitute and
appoint Lender its irrevocable, true and lawful attorney with power to receive,
open and dispose of all mail addressed to Borrower, to endorse the name of
Borrower upon any checks or other evidences of payment that may come into the
possession of Lender upon the Accounts; to endorse the name of the undersigned
upon any document or instrument relating to the Collateral; in its name or
otherwise, to demand, ▇▇▇ for, collect and give acquittances for any and all
moneys due or to become due upon the Accounts; to compromise, prosecute or
defend any action, claim or proceeding with respect thereto; and to do any and
all things necessary and proper to carry out the purpose herein contemplated.
(f) To do all acts necessary to maintain, preserve, and protect the
Inventory, keep all Inventory in good condition and repair and not to cause any
waste or unusual or unreasonable depreciation thereof.
(g) In the event any unpaid balance of Borrower's Loan Account shall exceed
the maximum amount of outstanding Loans to which the Borrower is entitled under
Section 1 hereof, Borrower shall immediately pay to Lender for credit to
Borrower's Loan Account the amount of such excess.
5. NEGATIVE COVENANTS OF BORROWER
Each Co-Borrower agrees that so long as it is indebted to Lender, or so long as
Lender has any obligation to extend credit to Borrower, it will not, without
Lender's written consent:
5.01 TYPE OF BUSINESS; MANAGEMENT; CHANGE IN CONTROL. Make any substantial
change in the character of its business; make any change in its executive
management; or permit the current shareholders to decrease their ownership in
such Co-Borrower.
5.02 OUTSIDE INDEBTEDNESS. Create, incur, assume or permit to exist any
indebtedness for borrowed moneys secured by the assets or stock of each
Co-Borrower other than Loans from the Lender except obligations listed on
Schedule 5.02, the financial statement dated June 30, 2000, or sell or transfer,
either with or without recourse, any accounts or notes receivable or any moneys
due or to become due.
11
5.03 LIENS AND ENCUMBRANCES. Except for equipment leases assumed in the
ordinary course of business up to $300,000, create, incur, permit to exist, or
assume any mortgage, pledge, encumbrance, lien or charge of any kind upon any
asset now owned or hereafter acquired by it, other than liens for taxes not
delinquent and liens in Lender's favor and other than liens agreed to in writing
by Lender.
5.04 LOANS, INVESTMENTS, SECONDARY LIABILITIES. Make any loans or advances
to any person or other entity other than in the ordinary and normal course of
its business as now conducted or make any investment in the securities of any
person or other entity other than the United States Government; or guarantee or
otherwise become liable upon the obligation of any person or other entity,
except by endorsement of negotiable instruments for deposit or collection in the
ordinary and normal course of its business.
5.05 ACQUISITION OR SALE OF BUSINESS; MERGER OR CONSOLIDATION. Liquidate,
dissolve, merge or consolidate, or commence any proceedings thereof.
6. EVENTS OF DEFAULT
The occurrence of any of the following events of default ("Events of Default")
shall, at Lender's option, terminate Lender's commitment to lend and make all
sums of principal and interest then remaining unpaid on all Borrower's
indebtedness to Lender immediately due and payable, all without demand,
presentment or notice, all of which are hereby expressly waived:
6.01 FAILURE TO PAY. Failure to pay any installment of principal or of
interest on any indebtedness of Borrower to Lender within, ten (10) days of its
due date.
6.02 BREACH OF COVENANT. Failure of any Co-Borrower to perform any other
term or condition of this Agreement or any Loan Document binding upon Borrower.
6.03 BREACH OF WARRANTY. Any Co-Borrower's representations or warranties
made herein or any statement or certificate at any time given in writing
pursuant hereto or in connection herewith shall be false or misleading in any
respect.
6.04 INSOLVENCY; RECEIVER OR TRUSTEE. Any Co-Borrower shall become
insolvent; or admit its inability to pay its debts as they mature; or make an
assignment for the benefit of creditors; or apply for or consent to the
appointment of a receiver or trustee for it or for a substantial part of its
property or business.
6.05 JUDGMENTS, ATTACHMENTS. Any money judgment in excess of $100,000, writ
or warrant of attachment, or similar process shall be entered or filed against
any Co-Borrower or any of its assets and shall remain unvacated, unbonded or
unstayed for a period of ten (10) days or in any event later than five (5) days
prior to the date of any proposed sale thereunder.
6.06 BANKRUPTCY. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any Bankruptcy law or any law
for the relief of debtors shall be instituted by or against any Co-Borrower and,
if instituted against it, shall not be dismissed within thirty (30) days
thereafter.
12
6.07 ADVANCES. Notwithstanding anything to the contrary contained herein,
Lender shall have no duty to make advances while any event of default exists
notwithstanding any cure period provided for herein.
7. MISCELLANEOUS PROVISIONS
7.01 FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of
Lender or any holder of notes issued hereunder, in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under this Agreement or any note(s) issued in
connection with a Loan that Lender may make hereunder, are cumulative to, and
not exclusive of, any rights or remedies otherwise available.
7.02 COUNTERPARTS; ENTIRE AGREEMENT. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement. This Agreement, and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and amends and restates in full any prior agreements, written or oral, with
respect thereto.
7.03 ATTORNEY'S FEES. Borrower will pay promptly to Lender without demand
after notice, with interest thereon from the date of expenditure at the rate
applicable to the Loan, reasonable attorneys' fees and all costs and expenses
paid or incurred by Lender in collecting or compromising the Loan after the
occurrence of an Event of Default, whether or not suit is filed. If suit is
brought to enforce any provision of this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys' fees and court costs in
addition to any other remedy or recovery awarded by the court.
7.04 ADDITIONAL REMEDIES. The rights, powers and remedies given to Lender
hereunder shall be cumulative and not alternative and shall be in addition to
all rights, powers and remedies given to Lender by law against Borrower or any
other person, including but not limited to Lender's rights of setoff or Lender's
lien.
7.05 INUREMENT. The benefits of this Agreement shall inure to the successors
and assigns of Lender and the permitted successors and assigns of Borrower.
7.06 APPLICABLE LAW. This Agreement and all other agreements and instruments
required by Lender in connection therewith shall be governed by and construed
according to the laws of the state of California, to the jurisdiction of whose
courts the parties hereby agree to submit.
13
7.07 OFFSET. In addition to and not in limitation of all rights of offset
that Lender or other holder of the Loan may have under applicable law, Lender or
other holder of any note issued hereunder shall, upon the occurrence of any
Event of Default or any event which with the passage of time or notice would
constitute such an Event of Default, have the right to appropriate and apply to
the payment of the Loan any and all balances, credits, deposits, accounts or
monies of Borrower then or thereafter with Lender or other holder, within ten
(10) days after the Event of Default, and notice of the occurrence of any Event
of Default by Lender to Borrower.
7.08 SEVERABILITY. Should any one or more provisions of the Agreement be
determined to be illegal or unenforceable, all other provisions nevertheless
shall be effective.
7.09 TIME OF THE ESSENCE. Time is hereby declared to be of the essence of
this Agreement and of every part hereof.
7.10 ACCOUNTING. All accounting terms shall have the meanings applied under
generally accepted accounting principles unless otherwise specified.
7.11 REFERENCES TO BORROWER. Any and all obligations, representations and
covenants of Borrower in this Agreement and the Loan Documents shall be deemed
to be joint and several obligations, representations and covenants of each
Co-Borrower.
7.12 REFERENCE PROVISION.
(a) Other than (i) nonjudicial foreclosure and all matters in connection
therewith regarding security interests in real or personal property; or (ii) the
appointment of a receiver, or the exercise of other provisional remedies (any
and all of which may be initiated pursuant to applicable law), each controversy,
dispute or claim between the parties arising out of or relating to this Credit
Agreement, any security agreement executed by Borrower in favor of Lender or any
notes executed by Borrower in favor of Lender or any other agreement or
instrument issued in favor of Lender by Borrower (collectively in this Section,
the "Agreement") which controversy, dispute or claim is not settled in writing
within thirty (30) days after the "CLAIM DATE" (defined as the date on which a
party subject to this Agreement gives written notice to all other parties that a
controversy, dispute or claim exists), will be settled by a reference proceeding
in California in accordance with the provisions of Section 838 ET SEQ. of the
California Code of Civil Procedure, or their successor section ("CCP"), which
shall constitute the exclusive remedy for the settlement of any controversy,
dispute or claim concerning this Agreement, including whether such controversy,
dispute or claim is subject to the reference proceeding and except as set forth
above, the parties waive their rights to initiate any legal proceedings against
each other in any court or jurisdiction other than the Superior Court in the
County of Los Angeles (the "Court"). The referee shall be a retired Judge of the
Court selected by mutual agreement of the parties, and if they cannot so agree
within forty-five (45) days after the Claim Date, the referee shall be promptly
selected by the Presiding Judge of the Court (or his representative). The
referee shall be appointed to sit as a temporary judge, with all of the powers
for a temporary judge, as authorized by law, and upon selection should take and
subscribe to the oath of office as provided for in Rule 244 of the California
Rules of Court (or any subsequently enacted Rule). Each party shall have one
peremptory challenge pursuant to CCP ss.110.6. The referee shall (a) be
requested to set the matter for hearing within sixty (80) days after the date of
selection of the referee and (b) try any and all issues of law or fact and
report a statement of decision upon them, if possible, within ninety (90) days
14
of the Claim Date. Any decision rendered by the referee will be final, binding
and conclusive and judgment shall be entered pursuant to CCP ss.64.4 in any
court in the state of California having jurisdiction. Any party may apply for a
reference proceeding at any time after thirty (30) days following notice to any
other party of the nature of the controversy, dispute or claim, by filing a
petition for a hearing and/or trial. All discovery permitted by this Agreement
shall be completed no later than fifteen (15) days before the first hearing date
established by the referee. The referee may extend such period in the event of a
party's refusal to provide requested discovery for any reason whatsoever,
including, without limitation, legal objections raised to such discovery or
unavailability of a witness due to absence or illness. No party shall be
entitled to "priority" in conducting discovery. Depositions may be taken by
either party upon seven (7) days written notice, and request for production or
inspection of documents shall be responded to within ten (10) days after
service. All disputes relating to discovery which cannot be resolved by the
parties shall be submitted to the referee whose decision shall be final and
binding upon the parties. Pending appointment of the referee as provided herein,
the Superior Court is empowered to issue temporary and/or provisional remedies,
as appropriate.
(b) Except as expressly set forth in this Agreement, the referee shall
determine the manner in which the reference proceeding is conducted including
the time and place of all hearings, the order of presentation of evidence, and
all other questions that arise with respect to the course of the reference
proceeding. All proceedings and hearings conducted before the referee, except
for trial, shall be conducted without a court reporter except that when any
party so requests, a court reporter will be used at any hearing conducted before
the referee. The party making such a request shall have the obligation to
arrange for and pay for the court reporter. The costs of the court reporter at
the trial shall be borne equally by the parties.
(c) The referee shall be required to determine all issues in accordance
with existing case law and the statutory laws of the state of California. The
rules of evidence applicable to proceedings at law in the state of California
will be applicable to the reference proceeding. The referee shall be empowered
to enter equitable as well as legal relief, to provide all temporary and/or
provisional remedies and to enter equitable orders that will be binding upon the
parties. The referee shall issue a single judgment at the close of the reference
proceeding which shall dispose of all of the a claims of the parties that are
the subject of the reference. The parties hereto expressly reserve the right to
contest or appeal from the final judgment or any appealable order or appealable
judgment entered by the referee. The parties hereto expressly reserve the right
to findings of fact, conclusions of laws, a written statement of decision, and
the right to move for a new trial or a different judgment, which new trial, if
granted, is also to be a reference proceeding under this provision.
(d) In the event that the enabling legislation which provides for
appointment of a referee is repealed (and no successor statute is enacted), any
dispute between the parties that would otherwise be determined by the reference
procedure herein described ▇▇▇▇ be resolved and determined by arbitration. The
arbitration will be conducted by a retired judge of the Court, in accordance
with the California Arbitration Act, ss.1280 through ss.1294.2 of the CCP as
amended from time to time. The limitations with respect to discovery as set
forth hereinabove shall apply to any such arbitration proceeding.
15
7.13 This Agreement may be modified only by a writing signed by all parties
hereto.
This Agreement is executed on behalf of the parties by duly authorized officers
as of the date first above written.
LENDER BORROWER
GRAND PACIFIC FINANCING CORP., FULL MOON INTERACTIVE, INC.,
A CALIFORNIA CORPORATION A DELAWARE CORPORATION
By:______________________________ By:____________________________________
Its:_____________________________ Its:___________________________________
FULL MOON INTERACTIVE GROUP, INC.,
A CALIFORNIA CORPORATION
By:____________________________________
Its:___________________________________
▇▇▇▇▇▇▇ DATA SYSTEM, INC.,
A DELAWARE CORPORATION
By:____________________________________
Its:___________________________________
IMAGE NETWORK, INC.,
A CALIFORNIA CORPORATION
By:____________________________________
Its:___________________________________
▇▇▇▇▇▇ COMMUNICATIONS, INC.,
A CALIFORNIA CORPORATION
By:____________________________________
Its:___________________________________
16
Exhibit A
Promissory Note
17