Exhibit 10.21
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Coast
Loan and Security Agreement
Borrower: CYBERLINK, INC.,
a California corporation
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Date: September 8, 1995
THIS LOAN AND SECURITY AGREEMENT ("Loan Agreement"), dated the above date, is
entered into at Los Angeles, California, between COASTFED BUSINESS CREDIT
CORPORATION ("CoastFed"), a California corporation, with offices at ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the borrower
named above ("Borrower"), whose chief executive office is located at the above
address ("Borrower's Address").
1. LOANS.
1.1 Loans, Collateral Agreements. Borrower has requested and may hereafter
request that CoastFed advance funds or otherwise extend credit to or for the
benefit of Borrower ("Loan(s)") in accordance with the terms and provisions of
this Loan Agreement and other written agreements ("Collateral Agreement(s)"),
including, but not limited to, any one or more of the following described
security agreements now or hereafter entered into between Borrower and CoastFed:
(a) Accounts Collateral Security Agreement; (b) Inventory Collateral Security
Agreement; (c) Equipment Collateral Security Agreement; and (d) any promissory
notes or guaranties. The amount and terms of payment of any Loans by CoastFed to
Borrower shall be determined in accordance with the terms and provisions of this
Loan Agreement and of any executed Collateral Agreements. Notwithstanding
anything herein or in any Collateral Agreement to the contrary, in no event
shall the Borrower permit the total balance of all Loans and all other
Obligations outstanding at any one time to exceed $7,000,000 ("Maximum Credit");
and, if for any reason they do, Borrower shall immediately pay the amount of
such excess to CoastFed in immediately available funds.
1.2 Interest. Unless specifically provided to the contrary in any
Collateral Agreement, all Loans shall bear interest at a rate equal to the
"Prime Rate" (as hereinafter defined), plus 2.25% per annum, calculated on the
basis of a 360-day year for the actual number of days elapsed. The interest rate
applicable to all Loans shall be adjusted monthly as of the first day of each
month, and the interest to be charged for that month shall be based on the
highest "Prime Rate" in effect during said month, but in no event shall the rate
of interest charged on any Loans in any month be less than 7.5% per annum. Prime
Rate" is defined as the actual "Reference Rate" or the substitute therefor of
the Bank of America NT & SA ("B of A") whether or not that rate is the lowest
interest rate charged by B of A. If the Prime Rate, as defined, is unavailable,
"Prime Rate" shall mean the highest of the prime rates published in the Wall
Street Journal on the first business day of the month, as the base rate on
corporate loans at large U.S. money center commercial banks.
1.3 Fees. Borrower shall pay to CoastFed a loan origination fee in the
amount of $52,500 concurrently with the initial funding of the Loans, and a
facility fee of $1,500 per quarter commencing with October 1, 1995 and
continuing on the first (1st) day of first (1st) month of each calendar quarter
thereafter during the term of this Loan Agreement. Said fees are in addition to
all other sums payable to CoastFed, are not refundable for any reason, and shall
bear interest from the date due to the date paid at the highest interest rate
applicable to any of the Obligations.
2. DEFINITIONS OF OBLIGATIONS AND COLLATERAL; GRANT OF SECURITY INTEREST
2.1 Obligations. The term "Obligations" as used in this Loan Agreement,
and any and all Collateral Agreements, shall mean and include each and all of
the following: the obligation to pay all Loans and all interest thereon when due
and to pay and perform when due all other indebtedness, liabilities,
obligations, guarantees, covenants, agreements, warranties and representations
of
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Borrower to CoastFed, whether heretofore, now or hereafter existing, owing or
arising; whether primary, secondary, direct, acquired from a third party,
absolute, contingent, fixed, secured or unsecured; joint or several, written or
oral, monetary or non-monetary; and whether created pursuant to, or caused by
Borrower's breach of, this Loan Agreement, a Collateral Agreement or any other
present or future agreement or instrument, or created by operation of law or
otherwise.
2.2 Collateral. As security and collateral for all Obligations, Borrower
hereby grants to CoastFed a continuing security interest in, and assigns to
CoastFed, all of Borrower's interest in the types of property described below,
whether now owned or hereafter acquired and wherever located, together with all
proceeds (including insurance proceeds), substitutions, accessions and products
thereof (collectively referred to as "Collateral"):
2.2(a) Accounts. All accounts, contract rights, chattel paper, and
instruments, and all other obligations now or hereafter owing to Borrower
(hereinafter sometimes collectively referred to as "Accounts"), including, but
not limited to, those described in any Accounts Collateral Security Agreement
executed by Borrower, and all right, title and interest of Borrower in, and all
of Borrower's rights and remedies with respect to, all goods, the sale or other
disposition of which gives rise to any Account, including, without limitation,
all returned, reclaimed and repossessed goods and all rights of stoppage in
transit, replevin, reclamation, and all rights as an unpaid vendor; and
2.2(b) Inventory. All inventory, goods, merchandise, materials, raw
materials, work in process, finished goods, advertising, packaging and shipping
materials, supplies, and all other tangible personal property which is held for
sale or lease or furnished under contracts of service or consumed in Borrower's
business, including, without limitation, any and all of the foregoing which are
returned, repossessed, reclaimed or stopped in transit, and including, but not
limited to, those described in any inventory Collateral Security Agreement
executed by Borrower, and all warehouse receipts and other documents or
instruments now or hereafter issued with respect to any of the foregoing; and
2.2(c) Equipment. All equipment, goods (other than inventory), machinery,
fixtures, trade fixtures, vehicles, furnishings, furniture, supplies, materials,
tools, machine tools, office equipment, appliances, apparatus, parts, dies,
jigs, and chattels, including, but not limited to, those described in any
Equipment Collateral Security Agreement executed by Borrower; and
2.2(d) Intangibles. All deposit accounts and general intangibles
(including, but not limited to, tax refunds, goodwill, name, drawings,
trademarks, blueprints, trade names, trade secrets, customer lists (except for
the customer list previously sold by Borrower to General Electric), patents,
patent applications, copyrights, security deposits, loan commitment fees,
royalties, licenses, processes, and all other rights, privileges and franchises
(including, licenses issued by the Federal Communications Commission ("FCC") and
all other licenses, approvals, permits and other authorizations issued by the
FCC to Borrower, including the proceeds of any sale or other disposition
thereof, in each case to the extent that a security interest therein is not
prohibited by law, provided that to the extent that a security interest therein
is now so prohibited and to the extent that such security interest at any time
hereafter shall no longer be so prohibited, then such security interest shall
automatically and without any further action attach and become fully effective
at that time (giving effect to any retroactive effect to any change in
applicable law or regulation)); and
All personal property of Borrower which comes into CoastFed's
possession, custody or control; and all tangible and intangible personal
property in which CoastFed now has or hereafter acquires a security interest to
secure any or all of the Obligations; and all substitutions, additions and
accessions to any or all of the foregoing items of Collateral; and all
guaranties of and security for any and all of the foregoing; and all books and
records relating to any and all of the foregoing and the equipment containing
said books and records. Payment and performance of the Obligations are
collateralized by the Collateral and by any security interest created in any
other agreement now or hereafter existing between CoastFed and Borrower unless
such other agreement is a deed of trust or other security instrument having real
property, or rents from real property as its subject matter and expressly
provides to the contrary.
2.3 Conditions Precedent. The effectiveness of this Agreement and the
obligation of CoastFed to make the Loans is subject to the satisfaction, in the
sole discretion of CoastFed, at or prior to the first advance of funds
hereunder, of each, every and all of the following conditions:
2.3(a) Status of Accounts. No Account shall be due and unpaid 120 days
past its due date; and
2.3(b) Lock Box Agreement. There shall be in place a completely executed
and delivered lock box agreement in form and substance and with a financial
institution acceptable to CoastFed, in its sole discretion; and
2.3(c) Agreement with Billing Service. There shall be in place a system of
verification and third party arrangement with Electronic Data Systems
(Borrower's billing service) in form and substance satisfactory to CoastFed, in
its sole discretion; and
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2.3(d) Subordination of Existing Indebtedness. There shall be in place a
complete subordination, in form and substance acceptable to CoastFed, in its
sole discretion, of all of the indebtedness owing from the Borrower to ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Lydiate, in the unpaid principal amount of $2,500,000.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR
To induce CoastFed to enter into this Loan Agreement and now and hereafter
to enter into any Collateral Agreement, Borrower represents and warrants that
subject to the Schedule of Exceptions, each of the following representations and
warranties now is and hereafter will continue to be true and correct in all
material respects and Borrower has and will timely perform each of the following
covenants:
3.1 Corporate Existence and Power. Borrower, if a corporation, is and will
continue to be, duly authorized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation. Except in those jurisdictions
where it is the process of obtaining qualification, licenses and authorizations
and the lack thereof does not materially impair Borrower's ability to lawfully
conduct its business, Borrower is and will continue to be qualified and licensed
to do business in all jurisdictions in which the nature of the business
transacted by it, or the ownership or leasing of its property, makes such
qualification or licensing necessary, and Borrower has and will continue to have
all requisite power and authority to carry on its business as it is now, or may
hereafter be, conducted.
3.2 Authority. Borrower is, and will continue to be, authorized to enter
into, to grant security interests in its property pursuant to, and to perform
its obligations under, this Loan Agreement, any Collateral Agreement and all
other instruments and transactions contemplated herein. The execution, delivery
and performance by Borrower of this Loan Agreement, any Collateral Agreement and
all other instruments and transactions contemplated herein have been validly
authorized, are enforceable against the Borrower in accordance with their terms,
and do not violate any law or any provision of, and are not grounds for
acceleration under, any agreement, indenture, note or instrument which is
binding upon Borrower, or any of its property, including, without limitation,
Borrower's Articles of Incorporation, By-Laws and any Shareholder Agreements.
3.3 Name; Trade Names and Styles. Borrower has set forth above its correct
name. Listed on the Schedule hereto are all prior names of Borrower and each
fictitious name, trade name and trade style by which Borrower has been, or is
now, known. Borrower shall provide CoastFed with fifteen (15) days' advance
written notice prior to doing business under any other name, fictitious name,
trade name or trade style. Borrower has complied, and will hereafter comply,
with all laws relating to the conduct of business under, the ownership of
property in, and the renewal or continuation of the right to use, a corporate,
fictitious or trade name or trade style.
3.4 Place of Business; Location of Collateral. Borrower's sole place of
business; or, if Borrower has more than one place of business, Borrower's chief
executive office; or, if Borrower is an individual and does not have a separate
place of business, Borrower's residence is, and will continue to be, located at
Borrower's Address and all of Borrower's books and records including, but not
limited to, the books and records relating to Borrower's Accounts, are and will
be maintained at Borrower's Address unless and until CoastFed shall otherwise
consent in writing. In addition to Borrower's Address, Borrower has places of
business and Collateral is located only at the locations shown on the Schedule
hereto. Borrower will provide CoastFed with at least fifteen (15) days advance
written notice if Borrower moves any of the Collateral, or obtains any
additional sites for the conduct of Borrower's business or the location of any
Collateral.
3.5 Title to Collateral; Liens. Borrower is now, and will at all times
hereafter be, the lawful and sole owner of all the Collateral. With the
exception of the security interest granted CoastFed, the Collateral now is and
will remain free and clear of any and all liens, charges, security interests,
encumbrances and adverse claims. Without limiting any of CoastFed's other rights
and remedies, if Borrower grants any third party a lien or encumbrance on or
security interest in any of the Collateral, CoastFed, in its sole discretion,
shall have the right to treat such action as a notice of termination by Borrower
to CoastFed under Paragraph 8(d) hereof, as of any date subsequent to such grant
selected by CoastFed, in its sole discretion, and to charge Borrower the
termination fee therein provided. CoastFed now has, and will have, a perfected
and enforceable first priority security interest in all of the Collateral, and
Borrower will at all times defend CoastFed and the Collateral against all claims
of others. None of the Collateral now is or will be affixed to any real property
in such a manner, or with such intent, as to constitute a fixture thereto.
Borrower is not and will not become a lessee under any real property lease
pursuant to which the lessor may obtain any rights in any of the Collateral and
no such lease now prohibits, restrains, impairs or will prohibit, restrain or
impair Borrower's right to remove any Collateral from the leased premises.
Whenever any Collateral is located upon premises in which any third party has an
interest (whether as owner, mortgagee, beneficiary under a deed of trust, lien
or otherwise), Borrower shall, whenever requested by CoastFed, use its best
efforts to cause such third party to execute and deliver to CoastFed, in form
acceptable to CoastFed, whatever waivers and
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subordinations that CoastFed specifies, so as to ensure that CoastFed's rights
in the Collateral are, and will continue to be, superior to the rights of any
such third party. Borrower will keep in full force and effect, and will comply
with all the terms of, any lease of real property where any of the Collateral
now or in the future may be located.
3.6 Maintenance of Collateral. Borrower has maintained and will maintain
the Collateral and all of its assets in good working condition, at Borrower's
expense. Borrower will not use the Collateral or any of its other properties for
any unlawful purpose and will not secrete or abandon the Collateral. Borrower
will immediately advise CoastFed in writing of any material loss or depreciation
of the Collateral.
3.7 Books and Records. Borrower has maintained and will maintain at
Borrower's Address complete and accurate books and records comprising an
accounting system in accordance with generally accepted accounting principles.
Borrower has not and will not in the future enter into any agreement with any
accounting firm, service bureau or third party to prepare or store Borrower's
books and records at any location other than Borrower's Address, without first
obtaining CoastFed's written consent, which may be conditioned upon such
accounting firm, service bureau or other third party agreeing to give CoastFed
the same rights with respect to access to books and records and related rights
as CoastFed has under Paragraph 4.3 of this Loan Agreement.
3.8 Financial Condition and Statements. All financial statements now or
hereafter delivered to CoastFed have been, and will be, prepared in conformity
with generally accepted accounting principles and now and hereafter will
completely and accurately reflect the financial condition of Borrower, at the
times and for the periods therein stated. Since the last date covered by any
such statement, there has been no material adverse change in the financial
condition, operations or any other status of the Borrower. Borrower is now and
will continue to be solvent in both the "equity" and "bankruptcy" sense.
Borrower will deliver to CoastFed a copy of all financial statements prepared
with respect to Borrower no later than five (5) days after the preparation or
receipt thereof by Borrower. Borrower will cause to be prepared, and will
provide CoastFed (i) within thirty (30) days following the end of each month
internally prepared, complete quarterly financial statements, and (ii) within
ninety (90) days following the end of Borrower's fiscal year, complete annual
financial statements, reviewed by independent certified public accountants
acceptable to CoastFed.
3.9 Tax Returns and Payments; Pension Contributions. Borrower has timely
filed, and will timely file, all tax returns and reports required by foreign,
federal, state or local law. Borrower has timely filed, and will timely file,
all foreign, federal, state and local taxes, assessments, deposits and
contributions now or hereafter owed by Borrower. Borrower may defer payment of
any contested taxes provided that Borrower (i) in good faith contests Borrower's
obligation to pay such taxes by appropriate proceedings promptly and diligently
instituted and conducted, (ii) notifies CoastFed in writing of the commencement
of and any material development in such proceedings, and (iii) posts bonds or
takes any other steps required to keep such contested taxes from becoming a lien
against or charge upon any of the Collateral or other properties of Borrower.
Borrower shall, at all times, utilize the services of an outside payroll service
providing for the automatic deposit of all payroll taxes payable by Borrower.
Borrower is unaware of any claims or adjustments proposed for any of Borrower's
prior tax years which could result in additional taxes becoming due and payable
by Borrower. Borrower has paid, and shall continue to pay all amounts necessary
to fund all present and future pension, profit sharing and deferred compensation
plans in accordance with their terms, and Borrower has not and will not withdraw
from participation in, permit partial or complete termination of, or permit the
occurrence of any other event with respect to, any such plan which could result
in any liability of Borrower, including, without limitation, any liability to
the Pension Benefit Guaranty Corporation or its successors or any other
governmental agency. When requested, Borrower will furnish CoastFed with proof
satisfactory to CoastFed of Borrower's making the payment or deposit of all such
taxes and contributions, such proof to be delivered within five (5) days after
the due date established by law for each such payment or deposit. If Borrower
fails or is unable to pay or deposit such taxes or contributions, CoastFed may,
but is not obligated to, pay the same and treat all such advances as additional
Obligations of Borrower. Such advances shall bear interest at the highest
interest rate applicable to any of the Obligations.
3.10 Compliance with Law. Borrower has complied, and will comply, with all
provisions of all foreign, federal, state and local laws and regulations
relating to Borrower, including, but not limited to, those relating to
Borrower's ownership of real or personal property, conduct and licensing of
Borrower's business and employment of Borrower's personnel.
3.11 Litigation. There is no claim, suit, litigation, proceeding or
investigation pending or threatened by or against or affecting Borrower in any
court or before any regulatory commission, board or other governmental agency
(or any basis therefor known to Borrower) which might result, either separately
or in the aggregate, in any adverse change in the business or condition of
Borrower, or in any impairment in the ability of Borrower to carry on its
business in substantially the same manner as it is now
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being conducted. Borrower will immediately inform CoastFed in writing of any
claim, proceeding, litigation or investigation hereafter threatened or
instituted by or against Borrower.
3.12 Use of Proceeds. The proceeds of the Loans shall be used to repay the
Borrower's prior lender and to provide additional working capital. Borrower is
not purchasing or carrying any "margin stock" (as defined in Regulation G of the
Board of Governors of the Federal Reserve System) and no part of the proceeds of
any Loan will be used to purchase or carry any "margin stock" or to extend
credit to others for the purpose of purchasing or carrying any "margin stock."
All proceeds of all Loans shall be used solely for lawful business purposes.
3.13 Continuing Effect. All representations, warranties and covenants of
Borrower contained in this Loan Agreement and any Collateral Agreement and any
other agreement with CoastFed shall be true and correct at the time of the
effective date of each such agreement and shall be deemed continuing and shall
remain true, correct and in full force and effect until payment and satisfaction
in full of all of the Obligations, and Borrower acknowledges that Coast Fed is
and will be expressly relying on such representations, warranties and covenants
in making Loans to Borrower.
4. ADDITIONAL DUTIES OF DEBTOR
4.1 Insurance. Borrower shall, at all times, at Borrower's expense, insure
all of the Collateral and carry such other business insurance as is customarily
carried by businesses in Borrower's industry with insurers acceptable to
CoastFed, in such form and amounts as CoastFed may require. All such insurance
policies shall name CoastFed an additional loss payee, shall provide that
proceeds payable thereunder be payable directly to CoastFed unless written
authority to the contrary is obtained, and shall also provide that no act or
default of Borrower or any other person shall affect the right of CoastFed to
recover thereunder and shall contain a lenders loss payee endorsement in form
acceptable to CoastFed. Upon receipt of the proceeds of any such insurance,
CoastFed shall apply such proceeds in reduction of the Obligations as CoastFed
shall determine in its sole and absolute discretion. If Borrower fails to
provide or pay for any such insurance, CoastFed may, but is not obligated to,
procure the same at Borrower's expense. Borrower agrees to deliver to CoastFed,
promptly as rendered, copies of all reports made to all insurance companies.
4.2 Reports. At its expense, Borrower shall report, in form reasonably
satisfactory to CoastFed, such information as CoastFed may from time to time
specify regarding Borrower or the Collateral; such reports shall be rendered
with such frequency as CoastFed may specify. All reports furnished CoastFed
shall be complete and accurate in all respects.
4.3 Access to Collateral Books and Records. At any time CoastFed, or its
agents, shall have immediate access to the Collateral and any other property of
Borrower, wherever located. CoastFed shall have the right, up to four (4) times
annually, to audit and copy Borrower's books and records and accounts including
accountants' reports wherever located (hereinafter collectively the "Records").
Borrower hereby irrevocably authorizes and directs any of the officers, agents,
accountants and attorneys having possession or control of any of the Records
(including computer records) to physically deliver or make same available to
CoastFed upon CoastFed's request. Borrower waives the benefit of any accountant-
client privilege or other evidentiary privilege precluding or limiting the
disclosure, divulgence or delivery of any of the Records. CoastFed shall have
the right to possession of, or to move to the premises of CoastFed or any agent
of CoastFed, for so long as CoastFed may desire, all or any part of the Records.
4.4 Prohibited Transactions. Borrower shall not without CoastFed's prior
written consent: merge, consolidate, dissolve, acquire any other corporation;
enter into any transaction not in its usual course of business; guarantee or
otherwise become in any way liable with respect to the obligations of another
party or entity (except by endorsements of instruments or items of payment for
deposit to the general account of Borrower or which are transmitted or turned
over to CoastFed on account of the Obligations); pay or declare any dividends
upon Borrower's stock; redeem, retire, purchase or otherwise acquire, directly
or indirectly, any of Borrower's stock; make any change in Borrower's name,
identity, corporate or capital structure; sell or transfer any Collateral,
except for the sale of finished inventory in the ordinary course of Borrower's
business; lend or distribute any of Borrower's property or assets, or incur any
debts, outside of the ordinary course of Borrower's business.
4.5 Notification of Changes. Borrower will promptly notify CoastFed in
writing of any change of its officers, directors, or key employees, the death of
any partner or joint venturer, any purchase out of the regular course of
Borrower's business and any adverse or material change in the business or
financial affairs of Borrower.
4.6 Charges. Borrower shall pay all charges assessed by CoastFed, in
accordance with CoastFed's schedule of charges in effect from time to time, and
such charges shall be part of the Obligations and shall be payable on demand.
4.7 Litigation Cooperation. Should any suit or proceeding be instituted by
or against CoastFed with
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respect to any Collateral or for the collection or enforcement of any Account,
or in any manner relating to Borrower, Borrower shall, without expense to
CoastFed, and wherever and whenever designated by CoastFed, make available
Borrower and its officers, employees and agents and Borrower's Records to the
extent that CoastFed may deem reasonably necessary in order to prosecute or
defend any such suit or proceeding.
4.8 Remittance of Proceeds. All proceeds arising from the disposition of
the Collateral shall be delivered, in kind, by Borrower to CoastFed in the
original form in which received by Borrower not later than the following
business day after receipt by Borrower. Borrower agrees that it will not
commingle proceeds of Collateral with any of Borrower's other funds or property,
but will hold such proceeds separate and apart from such other funds and
property and in an express trust for CoastFed. CoastFed may from time to time
verify directly with the respective account debtors the validity, amount and any
other matters relating to the Accounts by means of mail, telephone or otherwise,
either in the name of Borrower or CoastFed or such other name as CoastFed may
choose.
4.9 Execute Additional Documentation. Borrower agrees, at its expense, on
demand by CoastFed, to execute all documents in form satisfactory to CoastFed,
as CoastFed, in its sole discretion, may deem necessary or useful in order to
perfect and maintain CoastFed's perfected first-priority or any other security
interest in the Collateral, and in order to fully consummate all of the
transactions contemplated under this Loan Agreement and under any Collateral
Agreement.
5. APPLICATION OF PAYMENTS.
All forms of payments delivered to CoastFed on account of the Obligations
constitute conditional payment only until such items are actually paid in cash
to CoastFed; solely for the purpose of computing interest earned by CoastFed,
credit therefor and for bank wire transfers shall be given as of the second
(2nd) business day after receipt by CoastFed in order to allow for clearance,
bookkeeping and computer entries. All payments made by Borrower may be applied,
and in CoastFed's sole discretion reversed and re-applied, in whole or in part
to any of the Obligations, in such order and manner as CoastFed shall determine
in its sole discretion.
6. EVENTS OF DEFAULT AND REMEDIES
6.1 Events of Default. If any of the following events shall occur, such an
occurrence shall constitute an "Event of Default" and Borrower shall provide
CoastFed with immediate written notice thereof: (a) Any warranty,
representation, statement, report or certificate made or delivered to CoastFed
by Borrower or any of Borrower's officers, employees or agents now or hereafter
shall be incorrect, false, untrue or misleading in any material respect; or (b)
Borrower shall fail to repay when due part or all of any Loan or to pay any
interest thereon when due; or (c) Borrower shall fail to perform when due (and
such failure shall continue for ten (10) days or more) any term or condition
contained in this Loan Agreement or in any Collateral Agreement, or any other
agreement between CoastFed and Borrower; or (d) Borrower shall fail to pay or
perform any other Obligation when due and such failure shall continue for ten
(10) days or more after the same was due; or (e) Any loss, theft, or substantial
damage to, or destruction of, any or all of the Collateral (unless within ten
(10) days after the occurrence of any such event, Borrower furnishes CoastFed
with evidence reasonably satisfactory to CoastFed that the amount of any such
loss, theft, damage to or destruction of the Collateral is fully insured under
policies designating CoastFed as the exclusive additional named insured); or (f)
A material impairment of the prospect of payment or performance of the
Obligations or a material impairment of the value of the Collateral or any
impairment in the priority of CoastFed's security interest; or (g) Any event
shall arise which may result or actually results in the acceleration of the
maturity of the indebtedness of Borrower to others under any loan or other
agreement or undertaking; or (h) Any levy, assessment, attachment, seizure, lien
or encumbrance for any cause or reason whatsoever, upon all or any part of the
Collateral or any other asset of Borrower (unless discharged by payment, release
or fully bonded against not more than fifteen (15) days after such event has
occurred); or (i) Dissolution, termination of existence, insolvency or business
failure of Borrower; or appointment of a receiver, trustee or custodian, for all
or any part of the property of, assignment for the benefit of creditors by, or
the commencement of any proceeding by or against, Borrower under any
reorganization, bankruptcy, insolvency (provided, however, in the case of an
involuntary bankruptcy the filing of the same against Borrower shall not
constitute an Event of Default unless such proceeding is not dismissed within
thirty (30) days), arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, now or hereafter in effect; or entry of a
court or governmental order which enjoins, restrains or in any way prevents
Borrower from conducting all or any part of its business; or failure to pay any
foreign, federal, state or local tax or other debt of Borrower unless, with
respect to any such tax, Borrower complies with the provisions of Paragraphs 3.9
(i), (ii), and (iii); or (j) A notice of lien, levy or assessment is filed of
record with respect to any of Borrower's assets by the United States or any
department, agency or instrumentality thereof, or by any state, county,
municipal or other governmental agency, or if any taxes or debts now or
hereafter owing to any one or more of them becomes a lien upon all or any of the
Collateral or any other assets of Borrower (other than a lien for real property
taxes which are not yet due and payable)
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and any such liens are not released or bonded against within fifteen (15) days;
or (k) Death, insolvency or incompetency of any guarantor of the Obligations;
appointment of a conservator or guardian of the person of any such guarantor;
appointment of a conservator, guardian, trustee, custodian or receiver of all or
any part of the assets, property or estate of, any such guarantor; revocation or
termination of, or limitation of liability upon, any guaranty of the
Obligations; or commencement of proceedings by or against any guarantor or
surety for Borrower under any bankruptcy or insolvency law; or (1) Borrower
makes any payment on account of any indebtedness or obligation which has been
subordinated to the Obligations or if any person who has subordinated such
indebtedness or obligations terminates or in any way limits his subordination
agreement; or (m) Borrower shall generally not pay its debts as they become due
or shall enter into any agreement (whether written or oral), or offer to enter
into any such agreement, with all or a significant number of its creditors
regarding any moratorium or other indulgence with respect to its debts or the
participation of such creditors or their representatives in the supervision,
management or control of the business of Borrower; or Borrower shall conceal,
remove or transfer any part of its property, with intent to hinder, delay or
defraud its creditors, or make or suffer any transfer of any of its property
which may be fraudulent under any bankruptcy, fraudulent conveyance or similar
law, or shall make any transfer of its property to or for the benefit of any
creditor at a time when other creditors similarly situated have not been paid;
or (n) CoastFed at any time, acting in good faith and in a commercially
reasonable manner, deems itself insecure because of (i) the occurrence of an
event prior to the effective date hereof of which CoastFed had no knowledge on
the effective date or (ii) the occurrence of an event on or subsequent to the
effective date.
6.2 Remedies. Upon the occurrence of any Event of Default, and at any time
thereafter, CoastFed, at its option, and without notice or demand of any kind
(all of which are hereby expressly waived by Borrower), may do any one or more
of the following: (a) Cease advancing money or extending credit to or for the
benefit of Borrower under this Loan Agreement, any Collateral Agreement, and any
other document or agreement; (b) Accelerate and declare all or any part of the
Obligations to be immediately due, payable, and performable notwithstanding any
deferred or installment payments allowed by any instrument evidencing or
relating to any Obligation; (c) Take possession of any or all of the Collateral
wherever it may be found, and for that purpose Borrower hereby authorizes
CoastFed without judicial process to enter onto any of the Borrower's premises
without hindrance to search for, take possession of, keep, store, or remove any
of the Collateral and remain on such premises or cause a custodian to remain
thereon in exclusive control thereof without charge for so long as CoastFed
deems necessary in order to complete the enforcement of its rights under this
Loan Agreement or any Collateral Agreement, or any other agreement; provided,
however, that should CoastFed seek to take possession of any or all of the
Collateral by Court process, Borrower hereby irrevocably waives: (i) any bond
and any surety or security relating thereto required by any statute, court rule
or otherwise as an incident to such possession; (ii) any demand for possession
prior to the commencement of any suit or action to recover possession thereof;
and (iii) any requirement that CoastFed retain possession of and not dispose of
any such Collateral until after trial or final judgment; (d) Require Borrower to
assemble any or all of the Collateral and make it available to CoastFed at a
place or places to be designated by CoastFed which are reasonably convenient to
CoastFed and Borrower, and to remove the Collateral to such locations as
CoastFed may deem advisable; (e) Complete processing, manufacturing or repair of
all or any portion of the Collateral prior to a disposition thereof and, for
such purpose and for the purpose of removal, CoastFed shall have the right to
use Borrower's premises, vehicles, hoists, lifts, cranes, equipment and all
other property without charge. Without limiting any security interest granted
CoastFed in other provisions of this Loan Agreement or in any Collateral
Agreement or other agreement, for the purpose of completing manufacturing,
processing or repair of Collateral and the disposition thereof, CoastFed is
hereby granted a security interest in, and CoastFed and any purchaser from
CoastFed may use without charge, all of the Borrower's plant, machinery,
equipment, labels, licenses, processes, patents, patent applications,
copyrights, names, trade names, trademarks, trade secrets, logos, advertising
material and all other assets, and may also utilize all of Borrower's rights
under any license or franchise agreement; (f) Sell, ship, reclaim, lease or
otherwise dispose of all or any portion of the Collateral in its condition at
the time CoastFed obtains possession or after further manufacturing, processing
or repair, at any one or more public and/or private sales (including execution
sales), in lots or in bulk, for cash, exchange or other property or on credit
and to adjourn any such sale from time to time without notice other than oral
announcement at the time scheduled for sale. CoastFed shall have the right to
conduct such disposition on Borrower's premises without charge for such time or
times as CoastFed deems fit, or on CoastFed's premises, or elsewhere and the
Collateral need not be located at the place of disposition. CoastFed may
directly or through any affiliated company purchase or lease any Collateral at
any such public disposition and if permissible under applicable law, at any
private disposition. Any sale or other disposition of Collateral shall not
relieve Borrower of any liability Borrower may have if any Collateral is
defective as to title or physical condition or otherwise at the time of sale;
(g) Demand payment of, and collect any Accounts and general intangibles
comprising part or all of the Collateral and, in connection therewith, Borrower
irrevocably
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authorizes CoastFed to endorse or sign Borrower's name on all collections,
receipts, instruments and other documents, to take possession of and open mail
addressed to Borrower and remove therefrom payments made with respect to any
item of the Collateral or proceeds thereof, and, in CoastFed's sole discretion,
to grant extensions of time to pay, compromise claims and settle Accounts and
the like for less than face value; (h) Demand and receive possession of any of
Borrower's federal and state income tax returns and the Records utilized in the
preparation thereof or referring thereto. Notwithstanding anything to the
contrary in this Section 6.2, CoastFed shall provide ten (10) days written
notice to Borrower and the FCC before any Equipment will be repossessed or
foreclosed upon. All attorneys' fees, expenses, costs, liabilities and
obligations incurred by CoastFed with respect to the foregoing shall be added to
and become part of the Obligations, shall be due on demand, and shall bear
interest at a rate equal to the highest interest rate applicable to any of the
Obligations. Without limiting any of CoastFed's rights and remedies, from and
after the occurrence of any Event of Default, the interest rate applicable to
the Obligations shall be increased by an additional five percent per annum.
6.3 Standards for Determining Commercial Reasonableness. Borrower and
CoastFed agree that the following conduct by CoastFed with respect to any
disposition of Collateral shall conclusively be deemed commercially reasonable
(but other conduct by CoastFed, including, but not limited to, CoastFed's use in
its sole discretion of other or different times, places and manners of noticing
and conducting any disposition of Collateral shall not be deemed unreasonable):
Any public or private disposition as to which on no later than the fifth
calendar day prior thereto written notice thereof is mailed or personally
delivered to Borrower and, with respect to any public disposition, on no later
than the fifth calendar day prior thereto notice thereof describing in general
non-specific terms, the Collateral to be disposed of is published once in a
newspaper of general circulation in the county where the sale is to be
conducted, at any place designated by CoastFed, with or without the Collateral
being present, and which commences at any time between 8:00 a.m. and 5:00 p.m.
Without limiting the generality of the foregoing, Borrower expressly agrees
that, with respect to any disposition of Accounts, instruments and general
intangibles (collectively "Receivables"), it shall be commercially reasonable
for CoastFed to direct any prospective acquirer thereof to ascertain directly
from Borrower any and all information (and CoastFed shall not be required to
maintain records of, or answer any inquiries) concerning the Receivables offered
for disposition, including, but not limited to, the terms of payment, aging and
delinquency, if any, of the Receivables, the financial condition of any obligor
or account debtor thereon or guarantor thereof, any collateral therefor and the
condition and location of the goods, if any, that are the subject of any of the
Receivables.
6.4 Application of Proceeds. All proceeds realized as the result of any
disposition of the Collateral shall be applied by CoastFed first to the costs,
expenses, liabilities, obligations and attorneys' fees incurred by CoastFed in
the exercise of its rights under this Loan Agreement and any Collateral
Agreement, second to the interest due upon any of the Obligations and third to
the principal of the Obligations in any order determined by CoastFed in its sole
discretion. The surplus, if any, shall be paid to Borrower; if any deficiency
shall arise, Borrower shall remain liable to CoastFed therefor. If, as a result
of the disposition of any of the Collateral, CoastFed directly or indirectly
enters into a credit transaction with any third party, CoastFed shall have the
option, exercisable at any time, in its sole discretion, of either reducing the
Obligations by the principal amount of such credit transaction or deferring the
reduction thereof until the actual receipt by CoastFed of cash therefor from
such third party.
6.5 Remedies Cumulative. In addition to the rights and remedies set forth
in this Loan Agreement and any Collateral Agreement, CoastFed shall have all the
other rights and remedies accorded a secured party under the California Uniform
Commercial Code and under any and all other applicable laws and in any other
instrument or agreement now or hereafter entered into between CoastFed and
Borrower and all of such rights and remedies are cumulative and none is
exclusive. Exercise or partial exercise by CoastFed of one or more of its rights
or remedies shall not be deemed an election, nor bar CoastFed from subsequent
exercise or partial exercise of any other rights or remedies. The failure or
delay of CoastFed to exercise any rights or remedies shall not operate as a
waiver thereof, but all rights and remedies shall continue in full force and
effect until all of the Obligations have been fully paid and performed.
7. POWER OF ATTORNEY
Borrower grants to CoastFed an irrevocable power of attorney coupled with
an interest, authorizing and permitting CoastFed (acting through any of its
employees, attorneys or agents) at any time, at its option, but without
obligation, with or without notice to Borrower, and at Borrower's expense, to do
any or all of the following, in Borrower's name or otherwise: (a) Execute on
behalf of Borrower any documents that CoastFed may, in its sole and absolute
discretion, deem advisable in order to perfect, maintain or improve CoastFed's
security interest in the Collateral or other real or personal property intended
to constitute Collateral, or in order to exercise a right of Borrower or
CoastFed, or in order to fully consummate all the transactions contemplated
under this Loan Agreement, any Collateral Agreement and all other present and
future
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agreements; (b) At any time after the occurrence of an Event of Default, to
execute on behalf of Borrower any document exercising, transferring or assigning
any option to purchase, sell or otherwise dispose of or to lease (as lessor or
lessee) any real or personal property which is part of CoastFed's Collateral or
in which CoastFed has an interest; (c) Execute on behalf of Borrower, any
invoices relating to any Account, any draft against any Account debtor and any
notice to any Account debtor, any proof of claim in bankruptcy, any Notice of
Lien, claim of mechanic's, materialman's or other lien, or assignment or
satisfaction of mechanic's, materialman's or other lien; (d) Take control in any
manner of any cash or non-cash items of payment or proceeds of Collateral;
endorse the name of Borrower upon any instruments, or documents, evidence of
payment or Collateral that may come into CoastFed's possession; (e) Upon the
occurrence of any Event of Default, to receive and open all mail addressed to
Borrower; and to notify the Post Office authorities to change the address for
the delivery of mail addressed to Borrower to such other address as CoastFed may
designate, including, but not limited to, CoastFed's own address; CoastFed shall
turn over to Borrower all of such mail not relating to the Collateral; (f)
Endorse all checks and other forms of remittances received by CoastFed "Pay to
the Order of CoastFed Business Credit Corporation," or in such other manner as
CoastFed may designate; (g) Pay, contest or settle any lien, charge,
encumbrance, security interest and adverse claim in or to any of the Collateral,
or any judgment based thereon, or otherwise take any action to terminate or
discharge the same; (h) Grant extensions of time to pay, compromise claims and
settle Accounts and the like for less than face value and execute all releases
and other documents in connection therewith; (i) Pay any sums required on
account of Borrower's taxes or to secure the release of any liens therefor, or
both; (j) Settle and adjust, and give releases of, any insurance claim that
relates to any of the Collateral and obtain payment therefor; (k) Instruct any
third party having custody or control of any books or records belonging to, or
relating to, Borrower to give CoastFed the same rights of access and other
rights with respect thereto as CoastFed has under Paragraph 4.3 of this Loan
Agreement; and (l) Take any action or pay any sum required of Borrower pursuant
to this Loan Agreement, any Collateral Agreement and any other present or future
agreements. Any and all sums paid and any and all costs, expenses, liabilities,
obligations and attorneys' fees incurred by CoastFed with respect to the
foregoing shall be added to and become part of the Obligations, shall be payable
on demand, and shall bear interest at a rate equal to the highest interest rate
applicable to any of the Obligations. In no event shall CoastFed's rights under
the foregoing power of attorney or any of CoastFed's other rights under this
Loan Agreement or any Collateral Agreement be deemed to indicate that CoastFed
is in control of the business, management or properties of Borrower.
8. TERMINATION.
This Loan Agreement and all Collateral Agreement(s) shall continue in
effect until August 31, 1998 (the "initial renewal date") and shall thereafter
automatically and continuously renew for up to two successive additional terms
of one year(s) each unless terminated as to future transactions as hereinafter
provided. Upon and concurrent with any renewal a renewal fee in an amount equal
to one quarter percent (.25%) of the Maximum Credit shall be paid. (The initial
renewal date and each subsequent date on which the terms of this Loan Agreement
and the Collateral Agreement(s) automatically renew are hereinafter referred to
as "renewal dates.") This Loan Agreement and any Collateral Agreement may be
terminated, as to future transactions only, as follows: (a) By written notice
from either CoastFed or Borrower to the other, not less than sixty (60) days
prior to the next renewal date, in which event termination shall be effective on
the next renewal date; or (b) By CoastFed at any time after the occurrence of an
Event of Default, without notice, in which event termination shall be effective
immediately; or (c) By sixty (60) days' prior written notice from Borrower to
CoastFed, in which event, termination shall be effective on the sixtieth day
after such notice is given; or (d) By the grant by Borrower to any third party
of a lien or encumbrance on, or security interest in, any of the Collateral, as
provided in Paragraph 3.5, in which event termination shall be effective on the
date selected by CoastFed pursuant to Paragraph 3.5. On the effective date of
termination, Borrower shall pay and perform in full all Obligations, whether
evidenced by installment notes or otherwise, and whether or not all or any part
of such Obligations are otherwise then due and payable. If Borrower attempts to
terminate this Loan Agreement under subparagraph (a) or (c) above, but does not
pay and perform all Obligations in full on the effective date of termination,
then CoastFed may elect, by written notice to Borrower, to continue this Loan
Agreement and all Collateral Agreement(s) in full force and effect until the
next renewal date and in that event this Loan Agreement and all Collateral
Agreement(s) shall automatically renew thereafter as provided above. If
termination occurs under subparagraph (b), (c) or (d) above, Borrower shall pay
to CoastFed a termination fee, if termination occurs during the first (1st) year
of the initial term in an amount equal to three percent (3%) of the Maximum
Credit; or, if termination occurs in the second (2nd) year of the initial term
in an amount equal to two percent (2%) of the Maximum Credit; or, if termination
occurs in the third (3rd) year of the initial term in an amount equal to one
percent (1%) of the Maximum Credit. Said termination fee shall be included in
the Obligations, shall be payable on the effective date of termination, and
shall bear interest at a rate equal to the highest interest rate applicable to
any of the Obligations. Notwithstanding any termination of this Loan Agreement
or any Collateral Agreement, all of CoastFed's security interest in all of the
Collateral and all
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of the terms and provisions of this Loan Agreement and all Collateral
Agreement(s) shall continue in full force and effect until all Obligations have
been paid and performed in full, and no termination shall in any way affect or
impair any right or remedy of CoastFed, nor shall any such termination relieve
Borrower of any Obligation to CoastFed until all of the Obligations have been
paid and performed in full. Without limiting the fact that all Loans are
discretionary on the part of CoastFed, CoastFed may, in its sole discretion,
refuse to make any further Loans after termination. Upon payment and performance
in full of all the Obligations, CoastFed shall promptly deliver to Borrower
termination statements, request for reconveyance and such other documents as may
be required to fully terminate any of CoastFed's security interests.
9. NOTICES.
All notices to be given hereunder shall be in writing and shall be served
either personally or by depositing the same in the United States mail, postage
prepaid, by regular first class mail, or by certified mail, return receipt
requested, addressed to CoastFed or Borrower at the addresses shown above, or at
any other address as shall be designated by one party in a written notice to the
other party. Any such notice shall be deemed to have been given upon delivery in
the case of notices personally delivered to Borrower or to an officer of
CoastFed, or at the expiration of three (3) business days following the deposit
thereof in the United States mail, with postage prepaid (except that any notice
of disposition referred to in Paragraph 6.3 hereof that is mailed shall be
deemed given at the time of deposit thereof in the United States mail, with
postage prepaid). If there is more than one Borrower, notice to any Borrower
shall constitute notice to all; if Borrower is a corporation, the service upon
any member of the Board of Directors, officer, employee or agent shall
constitute service upon the corporation.
10. GENERAL WAIVER
The failure of CoastFed at any time or times hereafter to require Borrower
to strictly comply with any of the provisions of this Loan Agreement or any
Collateral Agreement or any other present or future agreement between Borrower
and CoastFed shall not waive or diminish any right of CoastFed thereafter to
demand and receive strict compliance therewith. Any waiver of any default shall
not waive or affect any other default, whether prior or subsequent thereto. None
of the provisions of this Loan Agreement or any Collateral Agreement or other
agreement now or hereafter executed by Borrower and delivered to CoastFed shall
be deemed to have been waived by any act or knowledge of CoastFed or its agents
or employees, but only by a specific written waiver signed by an officer of
CoastFed and delivered to Borrower. Borrower waives the benefit of all
statute(s) of limitations in any action or proceeding based upon or arising out
of this Loan Agreement or any Collateral Agreement or any other present or
future instrument or agreement between CoastFed and Borrower. Borrower waives
any and all notices or demands which Borrower might be entitled to receive with
respect to this Loan Agreement, any Collateral Agreement, or any other agreement
by virtue of any applicable law. Borrower hereby waives demand, protest, notice
of protest and notice of default or dishonor, notice of payment and nonpayment,
release, compromise, settlement, extension or renewal of any commercial paper,
instrument, Account, general intangible, document or guaranty at any time held
by CoastFed on which Borrower is or may in any way be liable, and notice of any
action taken by CoastFed unless expressly required by this Loan Agreement or any
Collateral Agreement. Borrower hereby ratifies and confirms whatever CoastFed
may do pursuant to this Loan Agreement and any Collateral Agreement and agrees
that CoastFed shall not be liable for (a) the safekeeping of the Collateral or
any loss or damage thereto, or diminution in value thereof, from any cause
whatsoever, or (b) any act or omission of any carrier, warehouseman, bailee,
forwarding agent or other person, or (c) any act of commission or any omission
by CoastFed or its officers, employees, agents, or attorneys, or any of its or
their errors of judgment or mistakes of fact or law.
11. ATTACHMENT WAIVERS.
To the extent that CoastFed, in its sole and absolute discretion,
determines, prior to the disposition of all of the Collateral, that the amount
to be realized by CoastFed from the disposition of all of the Collateral may be
less than the amount of the Obligations, and to the full extent of any such
anticipated deficiency, Borrower waives the benefit of Section 483.010 (b) of
the California Code of Civil Procedure and of any and all other statutes
requiring CoastFed to first resort to and exhaust all of the Collateral before
seeking or obtaining any attachment remedy against Borrower, and Borrower
expressly agrees that, to the extent of such anticipated deficiency, CoastFed
shall have all of the rights of an unsecured creditor, including, but not
limited to, the right of CoastFed, prior to the disposition of all of the
Collateral, to obtain a temporary protective order and writ of attachment or
other available remedy. CoastFed shall have no liability to Borrower if the
actual deficiency realized by CoastFed is less than the anticipated deficiency
on the basis of which CoastFed obtained a temporary protective order or writ of
attachment. In the event CoastFed should seek a temporary protective order, or
writ of attachment, or both, Borrower hereby irrevocably waives any bond and any
surety or security relating thereto required by any statute, court rule or
otherwise as an incident or condition precedent to the issuance of any temporary
protective order or writ of attachment.
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12. ATTORNEYS' FEES AND COSTS
Borrower shall forthwith pay to CoastFed the amount of all attorneys' fees
and all filing, recording, publication, search and other costs incurred by
CoastFed pursuant to this Loan Agreement, any Collateral Agreement or any other
present or future agreement or in connection with any transaction contemplated
hereby, or with respect to the Collateral or the defense or enforcement of its
interests (whether or not CoastFed files a lawsuit against Borrower). Without
limiting the generality of the foregoing, Borrower shall, with respect to each
and all of the foregoing, pay all attorneys' fees and costs CoastFed incurs in
order to: obtain legal advice (after the occurrence of an Event of Default);
enforce, or seek to enforce, any of its rights; prosecute actions against, or
defend actions by, Account debtors; commence, intervene in, respond to, or
defend any action or proceeding; initiate any complaint to be relieved of the
effect of the automatic stay in bankruptcy in order to commence or continue any
foreclosure or other disposition of the Collateral or to commence, defend or
continue any action or other proceeding in or out of bankruptcy against Borrower
or relating to the Collateral; file or prosecute a claim or right in any action
or proceeding, including, but not limited to, any probate claim, bankruptcy
claim, third-party claim, secured creditor claim or reclamation complaint;
examine, audit count, test, copy, or otherwise inspect any of the Collateral or
any of Borrower's books and records; or protect, obtain possession of, lease,
dispose of, or otherwise enforce any security interest in or lien on, the
Collateral or represent CoastFed in any litigation with respect to Borrower's
affairs. Without limiting the generality of the foregoing, Borrower shall
reimburse CoastFed for its out of pocket costs in connection with CoastFed's
regular quarterly audits of Borrower and Borrower shall pay CoastFed an audit
fee of $550 per day for each auditor utilized in each such quarterly audit. If
either CoastFed or Borrower files any lawsuit against the other predicated on a
breach of this Loan Agreement or any Collateral Agreement, the prevailing party
in such action shall be entitled to recover its costs and attorneys' fees,
including, but not limited to, attorneys' fees and costs incurred in the
enforcement of, execution upon or defense of any order, decree, award or
judgment. All attorneys' fees and costs to which CoastFed may be entitled
pursuant to this Paragraph shall immediately become part of Borrower's
Obligations, shall be due on demand, and shall bear interest at a rate equal to
the highest interest rate applicable to any of the Obligations.
13. DESTRUCTION OF DEBTOR'S DOCUMENTS; LIMITATION OF ACTIONS.
Any documents, schedules, invoices or other papers delivered to CoastFed
may be destroyed or otherwise disposed of by CoastFed six (6) months after they
are delivered to CoastFed unless Borrower makes written request therefor and
pays all expenses attendant to their return, in which event, CoastFed shall
return same when CoastFed's actual or anticipated need therefor has terminated.
Borrower agrees that any claim or cause of action by Borrower against CoastFed,
its directors, officers, employees, agents, accountants or attorneys, based
upon, arising from, or relating to this Loan Agreement, or any Collateral
Agreement, or any other present or future agreement, or any other transaction
contemplated hereby or thereby or relating hereto or thereto, or any other
matter, cause or thing whatsoever, occurred, done, omitted or suffered to be
done by CoastFed, its directors, officers, employees, agents, accountants or
attorneys, relating in any way to Borrower, shall be barred unless asserted by
Borrower by the commencement of an action or proceeding in a court of competent
jurisdiction by the filing of a complaint within six (6) months after the first
act, occurrence or omission upon which such claim or cause of action, or any
part thereof is based, and the service of a summons and complaint on an officer
of CoastFed, or on any other person authorized to accept service on behalf of
CoastFed, within thirty (30) days thereafter. Borrower agrees that such
six-month period of time is a reasonable and sufficient time for Borrower to
investigate and act upon any such claim or cause of action. The six-month period
provided herein shall not be waived, tolled, or extended except by the written
consent of CoastFed in its sole and absolute discretion. This provision shall
survive any termination, however arising, of this Loan Agreement, any Collateral
Agreement, and any other present or future agreement.
14. GENERAL PROVISIONS
14.1 Severability. Should any provision, clause or condition of this Loan
Agreement or any Collateral Agreement be held by any court of competent
jurisdiction to be void or unenforceable, such defect shall not affect the
remainder of this Loan Agreement or any Collateral Agreement.
14.2 Integration. This Loan Agreement and any Collateral Agreements and
such other agreements, documents and instruments as may be executed in
connection herewith shall be construed as the entire and complete agreement
between Borrower and CoastFed and shall supersede all prior negotiations, all of
which are merged and integrated herein.
14.3 Amendment. The terms and provisions of this Loan Agreement and any
Collateral Agreement may not be waived or amended except in a writing executed
by Borrower and a duly authorized officer of CoastFed.
14.4 Time of Essence. Time is of the essence in the performance by
Borrower of each and every obligation under this Loan Agreement and any
Collateral Agreement.
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14.5 Mutual Waiver of Jury Trial. Borrower and CoastFed each hereby waive
the right to trial by jury in any action or proceeding based upon, arising out
of, or in any way relating to, this Loan Agreement or any Collateral Agreement
or any other present or future instrument or agreement between CoastFed and
Borrower, or any conduct, acts or omissions of CoastFed or Borrower any of their
directors, officers, employees, agents, attorneys or any other persons
affiliated with CoastFed or Borrower.
14.6 Benefit of Agreement. The provisions of this Loan Agreement and any
Collateral Agreement shall be binding upon and inure to the benefit of the
respective successors, assigns, heirs, beneficiaries and representatives of the
parties hereto; provided, however, that Borrower may not assign or transfer any
of its rights under this Loan Agreement or any Collateral Agreement without the
prior written consent of CoastFed, and any prohibited assignment shall be void.
No consent by CoastFed to any assignment shall relieve Borrower or any guarantor
from its liability for the Obligations.
14.7 Joint and Several Liability. The liability of each Borrower shall be
joint and several and the compromise of any claim with, or the release of, any
Borrower shall not constitute a compromise with, or a release of, any other
Borrower.
14.8 Paragraph Headings; Construction. Paragraph headings are used herein
for convenience only. Borrower acknowledges that the same may not describe
completely the subject matter of the applicable paragraph, and the same shall
not be used in any manner to construe, limit, define or interpret any term or
provision hereof. This Loan Agreement and the Collateral Agreements have been
fully reviewed and negotiated between the parties and no uncertainty or
ambiguity in any term or provision of this Loan Agreement or any Collateral
Agreement shall be construed strictly against CoastFed or Borrower under any
rule of construction or otherwise.
14.9 Governing Law; Jurisdiction; Venue. This Loan Agreement and any
Collateral Agreement and all acts and transactions hereunder and all rights and
obligations of CoastFed and Borrower shall be governed by and in accordance with
the laws of the State of California. Any undefined term used in this Loan
Agreement or in any Collateral Agreement that is defined in the California
Uniform Commercial Code shall have the meaning therein assigned to that term. As
a material part of the consideration to CoastFed to enter into this Agreement,
Borrower (i) agrees that all actions and proceedings relating directly or
indirectly hereto shall, at CoastFed's option, be litigated in courts located
within California, and that the exclusive venue therefor shall be Los Angeles
County; (ii) consents to the jurisdiction and venue of any such court and
consents to service of process in any such action or proceeding by personal
delivery or any other method permitted by law; and (iii) waives any and all
rights Borrower may have to object to the jurisdiction of any such court, or to
transfer or change the venue of any such action or proceeding.
14.10 Execution by CoastFed. This Loan Agreement and any Collateral
Agreement which has been executed and delivered by Borrower to CoastFed shall
not become effective unless and until executed by a duly authorized officer of
CoastFed.
14.11 Federal Communications Commission. Notwithstanding anything to the
contrary contained in this Agreement, any other Collateral Agreement or in any
other agreement, instrument or document executed by Borrower and delivered to
CoastFed, CoastFed will not take any action pursuant to this Agreement, any
other Collateral Agreement or any other document referred to above which would
constitute or result in any assignment of any FCC license or any change of
control of Borrower or any subsidiary of Borrower if such assignment of any FCC
license or change of control would require, under then existing law, the prior
approval of the FCC without first obtaining such prior approval of the FCC.
Borrower waives, to the extent permitted by law, any right it may have to
oppose, and agrees to take any action which CoastFed may request in order to
obtain from the FCC, such approval as may be necessary to enable CoastFed to
exercise and enjoy the full rights and benefits granted CoastFed by this
Agreement and the other documents referred to above, including specifically, at
the cost and expense of Borrower, the use of commercially reasonable efforts to
assist in obtaining approval of the FCC for any action or transaction
contemplated by this Agreement for which such approval is or shall be required
by law, and specifically, without limitation, upon request, to prepare, sign and
file with the FCC the assignor's or transferor's portion of any application or
applications for consent to the assignment of license or transfer of control
necessary or appropriate under the FCC's rules and regulations for approval of
(a) any sale or other disposition of the Collateral by or on behalf of CoastFed,
or (b) any assumption by CoastFed of voting rights in the Borrower or any
subsidiary of Borrower effected in accordance with the terms of this Agreement
or any Collateral Agreement. It is understood and agreed that all
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Credit Loan and Security Agreement
---------------------------------------------------------------------------
foreclosures and related actions will be made in accordance
with the rules and regulations of the FCC.
Borrower:
CYBERLINK, INC.,
a California corporation
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Lydiate
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Lydiate,
President
By /s/ ▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer
CoastFed:
COASTFED BUSINESS CREDIT
CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title Vice President
-13-
foreclosures and related actions will be made in accordance
with the rules and regulations of the FCC.
Borrower:
CYBERLINK, INC.,
a California corporation
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Lydiate
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Lydiate,
President
By /s/ ▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer
CoastFed:
COASTFED BUSINESS CREDIT
CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title Vice President
-13-
Schedule 1
SCHEDULE OF EXCEPTIONS
TO
LOAN AND SECURITY AGREEMENT, DATED AS OF SEPTEMBER 8, 1995, BY AND BETWEEN
CYBERLINK, INC. AND COASTFED BUSINESS CREDIT CORPORATION AND THE ANCILLARY
AGREEMENTS THERETO
The undersigned acknowledges that attached hereto is a Schedule of
Exceptions to that certain Loan and Security Agreement, dated as of September 8,
1995, by and between Cyberlink, Inc. and CoastFed Business Credit Corporation
(and the ancillary agreements thereto), which schedule is in a format
satisfactory to the undersigned.
COASTFED BUSINESS CREDIT CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Vice President
1
SET FORTH BELOW ARE SCHEDULES OR EXCEPTIONS, AS APPROPRIATE, TO THE
REPRESENTATIONS, WARRANTIES AND COVENANTS OF CYBERLINK, INC. (THE "BORROWER"),
CYBERLINK-CALIFORNIA, INC., CYBERLINK-NEVADA, INC., CYBERLINK-NEW YORK, INC.
AND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LYDIATE ("GUARANTOR") IN THE FOLLOWING DOCUMENTS:
I. the Loan and Security Agreement dated as of September 8, 1995 (the "Loan
Agreement") between the Borrower and CoastFed Business Credit Corporation
(the "Lender");
II. the Accounts Collateral Security Agreement dated as of September 8, 1995
between the Borrower and the Lender (the "Accounts Agreement");
III. the Equipment Collateral Agreement dated as of September 8, 1995 between
the Borrower and the Lender (the "Equipment Agreement");
IV. the Secured Promissory Note in the principal amount of $1,500,000 from the
Borrower to the lender (the "Note");
V. the Secured Promissory Note in the principal amount of $500,000 from the
Borrower to the Lender (the "Additional Note");
VI. the Security Agreement - Stock Pledge dated as of September 8, 1995
between the Borrower and the Lender;
VII. the Continuing Guaranty dated as of September 8, 1995 (the "Lydiate
Guaranty") between the Guarantor and the Lender;
VIII. the Subordination Agreement dated September 8, 1995 between the Guarantor
and the Lender (the "Subordination Agreement");
IX. the Security Agreement dated as of September 8, 1995 between
Cyberlink-California, Inc., a California corporation
("Cyberlink-California"), and the Lender;
X. the Security Agreement dated as of September 8, 1995 between
Cyberlink-Nevada, Inc., a Nevada corporation ("Cyberlink-Nevada"), and the
Lender;
XI. the Security Agreement dated as of September 8, 1995 between Cyberlink-New
York, Inc., a Delaware corporation ("Cyberlink-New York"), and the Lender;
XII. the Continuing Guaranty dated as of September 8, 1995 (the
"Cyberlink-California Guaranty") between Cyberlink-California and the
Lender;
2
XIII. the Continuing Guaranty dated as of September 8, 1995 (the
"Cyberlink-Nevada Guaranty") between Cyberlink-Nevada and the Lender; and
XIV. the Continuing Guaranty dated as of September 8, 1995 (the "Cyberlink-New
York Guaranty") between Cyberlink-New York and the Lender.
3
NAME, TRADE NAMES AND STYLES
Registered Patents
None
Registered Trademarks
Cyberlink is a trademark in the United State of America.
Tradenames
a. Cyberlink, Inc. was originally incorporated under the name Lesco
Enterprises, Inc.
b. Cyberlink, Inc. has the following fictitious names:
Cyberlink Telecommunications in Massachusetts
Cyberlink - New York in New York
c. Cyberlink-California, Inc. has the following fictitious names:
Cyberlink and Cyberlink, Inc.
Service Marks
None
Additional Disclosures
The trademark of Cyberlink, Inc. was originally obtained (only in the
United States) for voice messaging. To preserve this trademark, Cyberlink must
file an affidavit of continued use (and certain other documents) with the
Trademark Office before July 1996.
A corporation known as Audiotext has filed an application for Cyberlink as
a tradename. The Company has filed a subsequent application and protested the
application filed by Audiotext. Cyberlink's counsel for this matter is ▇▇▇▇▇▇
▇▇▇▇, ▇▇. ▇▇▇▇'▇ telephone number is (▇▇▇) ▇▇▇-▇▇▇▇.
4
PLACE OF BUSINESS; LOCATION OF COLLATERAL
The Company or its affiliates lease all of the real property set forth
below.
Business Addresses - United States
Headquarters ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Roseville ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Colton ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇ & ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
One Wilshire Building ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(includes generator
lease)
New York ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Employee Residences - United States
Apartment Lease ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇
This apartment is leased by the company for a manager with Cyberlink Oy in
Finland.
Apartment Lease ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
This apartment is leased by the company for a consultant to the Company.
Business Addresses - International
Finnish Office Cyberlink International Oy
Sapinlahdenkatu 3A9
00180 Helsinki
FINLAND
5
German Office Cyberlink GMBH
▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
D51674 ▇▇▇▇▇-▇▇▇▇▇▇▇ Industriechiet
GERMANY
Swedish Office Cyberlink Sweden AB
Soderbyvagen ▇▇
▇-▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
6
TITLE TO COLLATERAL; LIENS
Borrower is subject to the following liens and security interests:
a. Factoring Agreement and Amendments thereto with Chasin of Long Beach, dba
Colbie Pacific (includes, among other things, accounts receivables,
customer lists and switch) - Cyberlink, Inc., Cyberlink-California, Inc.
and Cyberlink-Nevada, Inc. are debtors (to be terminated in connection
with consummation of CoastFed Agreement).
b. Purchase Agreement with GE Capital Communication Services Corporation
granting a security interest on segment of customer base related directly
to purchase.
c. Various equipment - Secured Party - ▇▇▇▇▇▇▇ RenTelco.
d. Personal Computer Network - Secured Party - Tricon Capital, a unit of
Greyhound Financial Corporation.
e. Various equipment - Secured Party - JLA Credit Corporation.
f. One DataCard Model U-800 Ultra Graphix Printer - Secured Party Bankers
Leasing Association.
g. One Konica Copier - Lease No. 2-116573 (in New York) - Secured Party -
Tokai Financial Services, Inc.
h. Various furniture - New York - Secured Party - Technilease Corporation.
i. Various furniture - New York - Secured Party Tokai Financial Services,
Inc.
j. Various datacard/computer equipment leases - California and Massachusetts
- Secured Party - ▇▇▇▇▇ Financial Corp.
k. Telephone system lease - Michigan - Secured Party - Graybar Financial
Services.
l. Compression equipment lease - Connecticut - Secured Party - Newbridge
Leasing
m. Network computer equipment leases - Oregon - Secured Party - Colonial
Pacific Leasing
7
n. Debtor - Cyberlink, Les Lydiate and ▇▇▇▇▇ ▇▇▇▇▇ Secured Party - Imperial
Thrift & Loan
(Although this UCC is still on file, Cyberlink believes that the security
interest should be released. Cyberlink intends to file the appropriate
document to do so.)
SEE ALSO ATTACHMENT "A" HERETO.
8
BOOKS AND RECORDS
CoastFed has reviewed Borrowers' accounting books and records through
September 6, 1995, and is aware that such records have not been audited and
certified as being in accordance with generally accepted accounting principles.
9
LITIGATION
Borrower is subject to the following litigation or claims:
I. LITIGATION
1. Cyberlink, Inc. (Plaintiff) v. LDDS Communications, Inc.; Complaint for
Damages and Injunctive Relief for Breach of Contract and Unfair Business
Practices; filed on December 9, 1994; Counterclaim filed by LDDS; amount
at issue $2,000,000; settlement discussions in progress.
2. Telco (Plaintiff) v. Cyberlink; Complaint for Breach of Written Agreement
and Promissory Fraud; filed on April 14, 1995; amount at issue
approximately $200,000.
3. Cyberlink (Plaintiff) v. International Long Distance Telephone Company,
Inc.; Action brought for amounts due to Cyberlink for long-distance
services, in the amount of $337,982.05 plus interest; filed on February
22, 1995.
II. OTHER CLAIMS OR POTENTIAL ACTIONS
▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇
Each of these former employees was promised an equity interest in
Cyberlink of approximately 2 percent, to vest if the employee remained in
Cyberlink's employ until Cyberlink was sold to a third-party buyer. Before such
a sale of Cyberlink could occur, ▇▇. ▇▇▇▇▇▇▇▇ quit Cyberlink and ▇▇. ▇▇▇▇▇▇ was
terminated for cause. Both ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ have sent letters to Cyberlink
alleging that they are entitled to a 2 percent equity interest in the Company.
Universal Telecom
In 1994, Cyberlink entered into an agreement with Universal Telecom,
pursuant to which Universal Telecom was to act as Cyberlink's agent in Eastern
Africa under the fictitious business name of "Cyberlink Africa, Inc." On January
18, 1995, attorneys for Universal Telecom sent a letter to Cyberlink alleging
that Cyberlink owed Universal Telecom reimbursement in the amount of
approximately $140,000 for expenses incurred in setting up offices in Tanzania.
In Spring 1995, Cyberlink had discussions with Universal Telecom's attorneys
concerning the validity of this claim and the circumstances under which the
business relationship between the
11
parties might be continued, but Universal Telecom's attorneys have not followed
up on those discussions.
12
DEPOSIT ACCOUNTS
SEE ATTACHMENT "B" HERETO.
13
LEASED EQUIPMENT
1. Equipment Lease Agreement, dated May 2, 1994, between Cyberlink and MCI
Global Access Corporation.
2. Master Lease Agreement, dated as of June 29, 1995 between Cyberlink and
Newbridge Leasing, relating to certain equipment.
Incorporation by reference into this schedule of leased equipment are all
equipment leases set forth under "Title to Collateral; Liens" above.
14
ATTACHMENT A
CALIFORNIA
199434360526
UCC1 - FINANCING STATEMENT
FILE DATE: 11/21/1994
STATUS: ACTIVE
EXPIRATION DATE: 11/22/1999
TERMINATION DATE:
DEBTOR: CYBERLINK-NEVADA, INC. (A NEVADA CORPORATION)
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ #▇-▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ADD'L DEBTOR: CYBLERLINK
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ #▇-▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ADD'L DEBTOR: CYBLERLINK, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ #▇-▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ADD'L DEBTOR: CYBLERLINK TELECOMMUNICATIONS
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ #▇-▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: CHASIN OF LONG BEACH, INC. DBA COLBIE PACIFIC CAPITAL
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1990282909
UCC1 - FINANCING STATEMENT
FILE DATE: 11/19/1990
STATUS: ACTIVE
EXPIRATION DATE: 11/19/1995
TERMINATION DATE:
DEBTOR: CYBERLINK
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
SECURED: BURTRONICS BUSINESS SYSTEMS
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
ASSIGNEE: ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇/▇
▇▇▇▇▇▇▇, ▇▇
1
CALIFORNIA (CONT'D)
▇▇▇▇▇▇▇▇▇▇
UCC1 - FINANCING STATEMENT
FILE DATE: 09/20/1991
STATUS: ACTIVE
EXPIRATION DATE: 09/20/1996
TERMINATION DATE:
DEBTOR: CYBERLINK
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
SECURED: ▇▇▇▇▇ FINANCIAL CORP
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
2
CALIFORNIA (CONT'D)
199434360538
UCC1 - FINANCING STATEMENT
FILE DATE: 11/21/1994
STATUS: ACTIVE
EXPIRATION DATE: 11/22/1999
TERMINATION DATE:
DEBTOR: CYBERLINK-CALIFORNIA, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ADD'L DEBTOR: CYBERLINK
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ADD'L DEBTOR: CYBERLINK, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ADD'L DEBTOR: CYBERLINK TELECOMMUNICATIONS
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: CHASIN OF LONG BEACH, INC. DBA COLBIE PACIFIC CAPITAL
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3
CALIFORNIA (CONT'D)
FILING NUMBER: 1995192C0714
DOCUMENT ID: UCC2 - CHANGE TO A FINANCING STATEMENT
FILE DATE:D: 07/03/1995
ACTION TYPE: OTHER AMENDMENT
199517060065
UCC1 - FINANCING STATEMENT
FILE DATE: 06/15/1995
STATUS: ACTIVE
EXPIRATION DATE: 06/15/2000
TERMINATION DATE:
DEBTOR: CYBERLINK
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: ▇▇▇▇▇▇▇ RENTELCO
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4
CALIFORNIA (CONT'D)
199434360551
UCC1 - FINANCING STATEMENT
FILE DATE: 11/21/1994
STATUS: ACTIVE
EXPIRATION DATE: 11/22/1999
TERMINATION DATE:
DEBTOR: CYBERLINK, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ADD'L DEBTOR: CYBERLINK
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ADD'L DEBTOR: CYBERLINK-CALIFORNIA
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ADD'L DEBTOR: CYBERLINK TELECOMMUNICATIONS
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: CHASIN OF LONG BEACH, INC. DBA COLBIE PACIFIC CAPITAL
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DOCUMENT #: 1995192C0714
DOCUMENT ID: UCC2 - CHANGE TO A FINANCING STATEMENT
FILE DATED:D: 07/03/1995
FILE TIME:D: 08:00
ACTION TYPE: OTHER AMENDMENT
5
CALIFORNIA (CONT'D)
199521960873
UCC1 - FINANCING STATEMENT
FILE DATE: 08/03/1995
STATUS: ACTIVE
EXPIRATION DATE: 08/03/2000
TERMINATION DATE:
DEBTOR: CYBERLINK-CALIFORNIA, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: COASTFED BUSINESS CREDIT CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSN or FTN: ▇▇▇▇▇▇▇▇▇
6
CALIFORNIA (CONT'D)
1991046242
UCC1 - FINANCING STATEMENT
FILE DATE: 03/04/1991
STATUS: ACTIVE
EXPIRATION DATE: 03/04/1996
TERMINATION DATE:
DEBTOR: CYBERLINK, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇
ADD'L DEBTOR: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇
ADD'L DEBTOR: LES LYDIATE
▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
SECURED: IMPERIAL THRIFT & LOAN
▇▇▇▇ ▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇
UCC1 - FINANCING STATEMENT
FILE DATE: 04/03/1989
STATUS: EXPIRED
EXPIRATION DATE: 04/03/1994
TERMINATION DATE:
DEBTOR: CYBERLINK, INC.
▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇
SECURED: INDUSTRIAL BK
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
DOCUMENT #: 1989083998A0
DOCUMENT ID: UCC2 - CHANGE TO A FINANCING STATEMENT
FILE DATE:D: 10/09/1990
ACTION TYPE: RELEASE
7
CALIFORNIA (CONT'D)
1991016730
UCC1 - FINANCING STATEMENT
FILE DATE: 01/28/1991
STATUS: ACTIVE
EXPIRATION DATE: 01/28/1996
TERMINATION DATE:
DEBTOR: CYBERLINK, INC.
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇
SECURED: COLONIAL PACIFIC LEASING
P O BOX 1100
TUALATIN, OR
1992014110
UCC1 - FINANCING STATEMENT
FILE DATE: 01/22/1992
STATUS: ACTIVE
EXPIRATION DATE: 01/22/1997
TERMINATION DATE:
DEBTOR: CYBERLINK, INC.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
SECURED: ▇▇▇▇▇ FINANCIAL CORP.
P O BOX 4225
ANAHEIM, CA
▇▇▇▇▇▇▇▇▇▇
UCC1 - FINANCING STATEMENT
FILE DATE: 10/07/1993
STATUS: ACTIVE
EXPIRATION DATE: 10/07/1998
TERMINATION DATE:
DEBTOR: CYBERLINK, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
SECURED: BANKERS LEASING ASSOC INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
8
CALIFORNIA (CONT'D)
1993219794
UCC1 - FINANCING STATEMENT
FILE DATE: 10/29/1993
STATUS: ACTIVE
EXPIRATION DATE: 10/29/1998
TERMINATION DATE:
DEBTOR: CYBERLINK, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
SECURED: ▇▇▇▇▇ FINANCIAL CORP.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
1993224816
UCC1 - FINANCING STATEMENT
FILE DATE: 11/05/1993
STATUS: ACTIVE
EXPIRATION DATE: 11/05/1998
TERMINATION DATE:
DEBTOR: CYBERLINK, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
SECURED: JLA CREDIT CORP.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
1994026111
UCC1 - FINANCING STATEMENT
FILE DATE: 02/09/1994
STATUS: ACTIVE
EXPIRATION DATE: 02/09/1999
TERMINATION DATE:
DEBTOR: CYBERLINK INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
SECURED: JLA CREDIT CORP.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
9
CALIFORNIA (CONT'D)
199431360357
UCC1 - FINANCING STATEMENT
FILE DATE: 10/18/1994
STATUS: ACTIVE
EXPIRATION DATE: 10/18/1999
TERMINATION DATE:
DEBTOR: CYBERLINK INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: JLA CREDIT CORP.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. #▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSN or FTN: ▇▇▇▇▇▇▇▇▇
10
CALIFORNIA (CONT'D)
DOCUMENT #: 1995192C0714
DOCUMENT ID: UCC2 - CHANGE TO A FINANCING STATEMENT
FILE DATE:D: 07/03/1995
ACTION TYPE: OTHER AMENDMENT
199504860379
UCC1 - FINANCING STATEMENT
FILE DATE: 02/10/1995
STATUS: ACTIVE
EXPIRATION DATE: 02/10/2000
TERMINATION DATE:
DEBTOR: CYBERLINK INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: GRAYBAR FINANCIAL SERVICES
▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
11
CALIFORNIA (CONT'D)
199516760192
UCC1 - FINANCING STATEMENT
FILE DATE: 06/14/1995
STATUS: ACTIVE
EXPIRATION DATE: 06/14/2000
TERMINATION DATE:
DEBTOR: CYBERLINK, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: TRICON CAPITAL, A UNIT OF GREYHOUND FINANCIAL
CORPORATION
▇▇ ▇. ▇▇▇ ▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
199518160513
UCC1 - FINANCING STATEMENT
FILE DATE: 06/28/1995
STATUS: ACTIVE
EXPIRATION DATE: 06/28/2000
TERMINATION DATE:
DEBTOR: CYBERLINK, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: NEWBRIDGE LEASING
▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
199521961185
UCC1 - FINANCING STATEMENT
FILE DATE: 08/03/1995
STATUS: ACTIVE
EXPIRATION DATE: 08/03/2000
TERMINATION DATE:
DEBTOR: CYBERLINK, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: COASTFED BUSINESS CREDIT CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSN or FTN: ▇▇▇▇▇▇▇▇▇
12
CALIFORNIA (CONT'D)
DOCUMENT #: 1995192C0714
DOCUMENT ID: UCC2 - CHANGE TO A FINANCING STATEMENT
FILE DATE:D: 07/03/1995
FILE TIME:D: 08:00
ACTION TYPE: OTHER AMENDMENT
13
CALIFORNIA (CONT'D)
199504560508
JL1 - JUDGMENT LIEN
FILE DATE: 02/06/1995
STATUS: ACTIVE
EXPIRATION DATE: 02/07/2000
TERMINATION DATE:
DEBTOR: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇, #▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: CYBERLINK, INC. A CALIFORNIA CORPORATION
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
199516760219
JL1 - JUDGMENT LIEN
FILE DATE: 06/14/1995
STATUS: ACTIVE
EXPIRATION DATE: 06/14/2000
TERMINATION DATE:
DEBTOR: JAG ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ AKA ▇▇▇▇▇▇ ▇▇▇▇▇▇ IND. & DBA
NEW HORIZONS INTERNATIONAL
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED: CYBERLINK, INC., A CALIFORNIA CORPORATION
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇, % ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
14
NEW YORK
086774
UCC1 - FINANCING STATEMENT
FILE DATE/TIME: 05/01/1995
DEBTOR: CYBERLINK
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED PARTY: SANWA LEASING CORP.
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
COLLATERAL: LEASES
SPECIFIC EQUIPMENT
116101
UCC1 - FINANCING STATEMENT
FILE DATE/TIME: 06/08/1995 09:00
DEBTOR: CYBERLINK
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED PARTY: TECHNILEASE CORP.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
COLLATERAL: SPECIFIC EQUIPMENT
MICROFILM: 5087
103464
UCC1 - FINANCING STATEMENT
FILE DATE/TIME: 05/22/1995
DEBTOR: CYBERLINK INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED PARTY: TOKAI FINANCIAL SERVICES, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
COLLATERAL: PRODUCTS
: PROCEEDS
: SPECIFIC EQUIPMENT
15
NEW YORK (CONT'D)
230023
UCC1 - FINANCING STATEMENT
FILE DATE/TIME: 10/09/1984
DEBTOR: CYBERLINK SYSTEMS, INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED PARTY: MIDLANTICCOMMERCIAL LEASING CORP.
▇▇▇ ▇▇▇▇ ▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COLLATERAL: SPECIFIC EQUIPMENT
16
ATTACHMENT B
FAX TRANSMISSION
From: ▇▇▇▇▇▇▇▇ ▇. Trookey Cyberlink, Inc.
Questions? Call
Fax
To: ▇▇▇ ▇▇▇▇▇▇▇
Company: Coast Business Credit 213/896-0400
Address:
Date: September 8, 1995
Time: 4:03 PM Pages: (including this one)
--------------------------------------------------------------------------------
▇▇▇: All bank accounts are at Union Bank - 5855 Topanga Cyn Blvd, Woodland Hills
General - #1290011317
P/R #1290011496
Int'l #1290011341
