Exhibit 10.10
Sand Hill Capital
Innovative Financing Solutions
LOAN AGREEMENT
Dated as of November 15, 1999
by and between
SAND HILL CAPITAL II, LP
as lender
and
2BRIDGE, a California Corporation
as borrower
TOTAL CREDIT AMOUNT: $5,050,000
Maturity: July 31, 2000
Formula: None
Loan Fee: $50,000
Interest: Prime Rate plus 3.0%, floating
Warrants:
Number of shares: 15% Coverage
Class of stock: See Warrant
Initial exercise price: See Warrant
Purchase Option:
Number of shares: The Holder or any one of its affiliates, have the
right to invest up to and equal to $500,000 in the next equity
round of preferred stock at a price per share equivalent to that
round This option will be at the Holder's sole discretion.
Class of stock: Preferred Stock
Initial exercise price: At the price per share of that round (see
Conversion Sub-Section "Number of shares" above).
The terms and information set forth on this cover page are a part of the
attached Loan Agreement, dated as of the date first written above (as amended,
modified or otherwise supplemented from time to time, this "Agreement"), entered
into by and among Sand Hill Capital II, LP ("Sand Hill") and 2Bridge, a
California corporation ("Borrower") set forth above. The terms and conditions of
the Agreement agreed to between Sand Hill and Borrower are as follows:
1. Advances. Borrower may request one or more advances (each, an "Advance"
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and collectively, the "Advances") from time to time in an aggregate outstanding
amount not to exceed the principal sum of $5,050,000 (the "Committed Line") and
pursuant to the terms and conditions of this Agreement. Subject to the terms and
conditions of this Agreement, amounts borrowed pursuant to Section 1(a) may be
repaid and reborrowed at any time during the term of this Agreement.
Borrower shall pay interest on each Advance from the date made until
Maturity or until prepaid in accordance with this Agreement at a floating rate
equal to the Prime Rate, as published in the Western Edition of The Wall Street
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Journal from time to time, plus three (3.0) percent. Interest shall be payable
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in arrears on the first business day of each month. On the Maturity Date
specified on the cover page, the entire outstanding principal balance of the
Advances and all accrued and unpaid interest thereon shall be immediately due
and payable. Advances can be prepaid in whole or in part at any time without
premium or penalty.
All payments on this Agreement shall be applied first to fees and expenses,
then to interest and then to principal. If any payment is not made within ten
(10) days of the due date, Borrower shall pay a late payment fee equal to the
lesser of 5% of the amount of such late payment or the maximum amount permitted
by law. Any principal or interest payments on this Agreement outstanding after
the occurrence and during the continuance of a default under this Agreement
shall bear interest at a rate equal to the greater of 18% or 5% above the rate
otherwise applicable under this Agreement. The provision in this Paragraph for
extension, late fees and default interest shall not be construed as Sand Hill's
consent to Borrower's failure to pay any amounts in strict accordance with this
Agreement, and Sand Hill's acceptance of any such payments shall not restrict
Sand Hill's exercise of any remedies arising out of any such failure.
2. Secured Agreement. To secure repayment of all obligations evidenced by
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this Agreement and performance of all of Borrower's obligations hereunder
(including interest accruing after an Insolvency Event), Borrower grants Sand
Hill a security interest in the property described in Exhibit A attached hereto
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(the "Collateral").
3. Representations and Warranties. Borrower represents to Sand Hill as
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follows: (a) Borrower is not in material default under any material agreement
under which Borrower owes any money, or any agreement, the violation or
termination of which could have a material adverse effect on Borrower; (b)
Borrower has taken all action necessary to authorize the execution, delivery and
performance of this Agreement; (c) there are no liens, security interests or
other encumbrances ("Liens") on the Collateral, except for purchase money
security interests and leases on particular items of equipment (additionally,
Borrower will be permitted to purchase equipment and then enter into a sale and
lease back arrangement for such equipment), and mechanic's liens on Borrower's
real property or improvements thereon and Permitted Lien; (d) the execution and
performance of this Agreement do not conflict with; or constitute a default
under, any material agreement to which Borrower is party or by which Borrower is
bound; (e) the information provided by Borrower to Sand Hill on or prior to the
date of this Agreement in connection with the transactions contemplated by this
Agreement is true and correct in all material respects or, with respect to any
financial or business projections so provided, were prepared in good faith and
based upon assumptions believed to be reasonable by Borrower; (f) all financial
statements and other information provided to Sand Hill fairly present in all
material respects Borrower's financial condition, and there has not been a
material adverse change in the financial condition of Borrower since the date of
the most recent of the financial statements submitted to Sand Hill; (g) Borrower
is in material compliance with all laws and orders applicable to it; (h) except
as disclosed by Borrower to Sand Hill, Borrower is not party to any litigation
and is not the subject of any government investigation that could reasonably be
expected to result in damages or costs to Borrower of $50,000 or more, and
Borrower has no knowledge of any pending litigation or investigation or the
existence of circumstances that reasonably could be expected to give rise to
such litigation or investigation; and (i) no representation or other statement
made by Borrower to Sand Hill contains any untrue statement of a material fact
or omits to state a material fact necessary to make any statements made to Sand
Hill not misleading.
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4. Covenants.
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(a) Borrower will provide to Sand Hill in a form reasonably
acceptable to Sand Hill (i) monthly unaudited financial statements within thirty
(30) days of the last day of each month; (ii) audited fiscal year end financial
statements with an unqualified opinion within one hundred twenty (120) days of
the last day of each fiscal year (Sand Hill acknowledges that a "going concern"
qualification may appear in such audited financial statements); and (iii) upon
request, such other financial reports relating to Borrower's operations and
condition, including information on equity and funding status as Sand Hill may
reasonably request from time to time. Sand Hill shall have the right to review
and copy Borrower's books and record from time to time upon reasonable notice to
Borrower. Borrower will pay Sand Hill for the reasonable costs it may incur from
time to time in auditing the Collateral.
(b) Borrower will maintain insurance on the Collateral that includes
a lender's loss payable endorsement in favor of Sand Hill as an additional loss
payee. Borrower will maintain insurance in a form reasonably acceptable to Sand
Hill relating to the Collateral and Borrower's business in amounts and of a type
that are customary to businesses similar to Borrower's. In addition, Borrower
shall carry product liability insurance in a form reasonably acceptable to Sand
Hill.
(c) Borrower will maintain its corporate existence and good standing
and will maintain in force all licenses and agreements, the loss of which could
have a material adverse effect on Borrower's business. Borrower will pay all
taxes on or before the date such taxes are due, except for taxes being contested
in good faith or by and appropriate proceedings and for which adequate reserves
have been made in accordance with generally accepted accounting principles, and
will comply in all material respects with all laws and orders applicable to it.
(d) Borrower will not (i) make any material investments in, or loans
or advances to, any person other than in the ordinary course of business as
currently conducted, (ii) acquire any material assets other than in the ordinary
course of business as currently conducted, (iii) make any distributions or pay
any dividends to any person on account of Borrower's shares, (iv) borrow any
money except under equipment lease agreements and under the existing Imperial
Bank line of credit, or (v) dispose of or encumber any portion of its assets,
except for dispositions in the ordinary and normal course of business as now
conducted including, without limitation, the selling of any property or other
asset accompanied by the leasing of the same.
(e) Borrower will register on an expedited basis with the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, those intellectual property rights listed on Exhibits A, B and C to
the Intellectual Property Security Agreement delivered to Sand Hill by Borrower.
Borrower will register such additional intellectual property rights developed or
acquired by Borrower from time to time in connection with any product prior to
the sale or licensing of such product to any third party. Borrower will execute
such documents and take such other actions as Sand Hill may reasonably request
to perfect the security interest granted in such rights.
(f) Borrower agrees that so long as any loans, obligations or
Advances remain outstanding that Borrower will not, without the prior written
consent of Sand Hill, which consent will not be unreasonably withheld or
delayed: (1) Purchase or otherwise acquire all or substantially all of the
assets or business of any person or other entity; or (2) liquidate or dissolve
or commence any proceedings therefor; or (3) except in the ordinary and normal
course of its business as now conducted, sell (including, without limitation,
the selling of any property or other asset accompanied by the leasing back of
the same) any assets including any fixed assets, any property, or other assets
necessary for the continuance of its business as now conducted. Notwithstanding
the foregoing, Borrower may proceed with the repurchase of any of its franchised
businesses (a) so long as no Event of Default has occurred and is continuing or
would exist after giving effect to such transaction, and (b) prior to
consummating such transaction Borrower executes and delivers to Sand Hill all
such additional agreements, documents and instruments as Sand Hill may require
in order to affirm, effectuate or further assure its continuing, priority lien
in the Collateral after giving effect to such transaction.
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(g) If Borrower does not repay the entire outstanding balance
hereunder on or before July 31, 2000. the number of shares that Sand Hill may
purchase under the Warrant issued as of the date hereof shall be adjusted in
accordance with the Warrant.
(h) If Borrower merges or consolidates with any person or entity such
that Borrower is not the surviving entity, Sand Hill shall have the right to
terminate this Agreement and require Borrower to pay all unpaid principal,
interest, and any other amounts owing hereunder on the effective date of such
merger or consolidation.
(i) Borrower shall notify (shall include but is not limited to the
time and location) Sand Hill at least two weeks in advance of any regularly
scheduled meeting or as soon as reasonably possible of any unscheduled meeting
of the Board of Directors. Additionally, Lender has the right to attend and
observe any Board of Directors meeting it so chooses, however, this is not in
any manner to be construed as having a seat, along with the rights associated
therewith, on the Board of Directors.
(j) Borrower shall take such actions as Sand Hill requests from time
to time to perfect or continue the security interest granted hereunder. Borrower
shall not dispose of or encumber or permit to be encumbered or attached any part
of the Collateral without Sand Hill's prior written consent except for (i)
dispositions in the ordinary and normal course of business as now conducted
including, without limitation, the selling of any property or other asset
accompanied by the leasing of the same and (ii) Permitted Liens. "Permitted
Liens" means (i) Liens for taxes not yet delinquent or Liens for taxes being
contested in good faith and by appropriate proceedings for which adequate
reserves have been established, (ii) Liens in respect of property or assets
imposed by law which were incurred in the ordinary course of business and which
do not in the aggregate materially detract from the value of such property or
assets or materially impair the use thereof in the operation of the business of
Borrower, (iii) Liens created by this Agreement and the Intellectual Property
Security Agreement executed in connection with this Agreement, (iv) Liens
incurred or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, mechanic's Liens, carrier's Liens and other Liens to secure the
performance of tenders, statutory obligations, contract bids, government
contracts, performance bonds and similar obligations, in each case incurred in
the ordinary course of business, whether pursuant to statutory requirements,
common law or consensual requirements, and (v) easements, rights-of-way, zoning
or other restrictions, charges, encumbrances, defects in title, prior rights of
other person and obligations contained in, or to which the rights of the owner
or lessor are subject.
5. Fees, Expenses and Deliveries. On the date of this Agreement, Borrower
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shall pay Sand Hill the Loan Fee specified on the cover page, plus all legal and
underwriting expenses up to a maximum of $5,000 that Sand Hill incurs in
connection with this Agreement. Borrower shall also deliver to Sand Hill, in
form and substance satisfactory to Sand Hill, the following: (a) a warrant to
purchase stock; and (b) evidence of liability insurance. Borrower shall pay all
reasonable costs that Sand Hill incurs in enforcing this Agreement or exercising
any rights with respect to the Collateral (including all costs incurred after
the occurrence of an Insolvency Event), including without limitation reasonable
attorneys fees and expenses.
6. Events of Default; Remedies. Any one or more of the following shall
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constitute an Event of Default under this Agreement:
(a) Borrower's failure to cure any of the following defaults within
ten (10) days after such obligations are due: (i) to pay all or any part of the
principal or interest hereunder on the date due and payable, or (ii) to comply
with any agreement or covenant set forth in this Agreement, or (iii) to comply
with the terms of any material contract to which Borrower is a party and any
agreement pursuant to which Borrower has incurred indebtedness, or (iv) to
comply with any law to which Borrower is subject and which Borrower's failure to
comply with such law will result in a material adverse impact on Borrower; or
(b) Borrower becomes insolvent, or becomes the subject of any case or
proceeding under the United States Bankruptcy Code or any other law relating to
the reorganization or restructuring of debt (an "Insolvency Event"); or
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(c) any representation made to Sand Hill in this Agreement, the
Warrant issued of even date herewith, or any information given to Sand Hill by
or on behalf of Borrower shall be incorrect in any material respect on the date
made; or
(d) the occurrence of a material adverse change in the financial or
other condition of Borrower.
(e) Lender's determination, in its reasonable discretion, that
Borrower may not be able to pay all or any part of the obligation(s), or to
satisfy any condition, or to perform any obligation under this Agreement.
Upon the occurrence and during the continuance of an Event of Default
hereunder, all unpaid principal, accrued interest and other amounts owing
hereunder shall, at the option of Sand Hill, be immediately collectible by or on
behalf of Sand Hill, and Sand Hill may exercise all of the rights of a secured
party under the California Uniform Commercial Code. In such case, Sand Hill
shall have a right to dispose of the Collateral in any commercially reasonable
manner, and shall have a royalty-free license to use any name, trademark,
advertising matter or any property of a similar nature to complete production
of, advertisement for, and disposition of any Collateral and Sand Hill shall
have a license to enter into, occupy and use Borrower's premises and the
Collateral without charge to exercise any of Sand Hill's rights or remedies
under this Agreement. Borrower irrevocably appoints Sand Hill (and any of Sand
Hill's designated employees or agents) as Borrower's true and lawful attorney in
fact to: endorse Borrower's name on any checks or other forms of payment; make,
settle and adjust all claims under and decisions with respect to Borrower's
policies of insurance; settle and adjust disputes and claims respecting accounts
receivable with account debtors; execute and deliver all notices, instruments
and agreements in connection with the perfection of the security interest
granted in this Agreement; and sell, lease or otherwise dispose of all or any
part of the Collateral. The appointment of Sand Hill as Borrower's attorney in
fact, and each of Sand Hill's rights and powers, being coupled with an interest,
is irrevocable until all amounts owing to Sand Hill have been repaid in full and
may be exercised only while an Event of Default has occurred and is continuing.
7. Waivers; Indemnity. Borrower waives presentment and demand for payment,
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notice of dishonor, protest and notice of protest of this Agreement, and shall
pay all costs of collection when incurred, including reasonable attorneys' fees,
costs and expenses incurred before, after or in connection with of an Insolvency
Event. Borrower shall indemnify and hold Sand Hill harmless from any claim,
obligation or liability (including without limitation reasonable attorneys fees
and expenses) arising out of this Agreement or the transactions contemplated
hereby, including any claim, obligation or liability arising before, after or in
connection with an Insolvency Event.
8. Miscellaneous. Sand Hill may assign all or any part of its interest in
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this Agreement and the Advances to any person or entity, or grant a
participation of any interest in this Agreement, without notice to, or the
consent of, Borrower. This Agreement can be amended only by an instrument signed
by Sand Hill and Borrower. All prior agreements are superseded by this
Agreement. Borrower may not assign any obligation hereunder without Sand Hill's
consent. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one
instrument. This Agreement shall be governed by the internal laws of the State
of California, without regard to conflicts of laws rules. Borrower and Sand Hill
consent to the exclusive jurisdiction of the United States District Court of the
Northern District of California and the state courts for Santa ▇▇▇▇▇ County,
California.
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9. JURY WAIVER. SAND HILL AND BORROWER EACH WAIVES ANY RIGHT TO A JURY
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TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREIN.
2BRIDGE SAND HILL CAPITAL II, LP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: CFO Title: PRINCIPAL
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By:_______________________________
Its:______________________________
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EXHIBIT A
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The Collateral shall consist of all right, title and interest of Borrower
in and to the following:
(a) All goods and equipment now owned or hereafter acquired,
including, without limitation, all machinery, fixtures, vehicles (including
motor vehicles and trailers), and any interest in any of the foregoing, and all
attachments, accessories, accessions, replacements, substitutions, additions,
and improvements to any of the foregoing, wherever located;
(b) All inventory, now owned or hereafter acquired, including,
without limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above, and
Borrower's books relating to any of the foregoing;
(c) All contract rights and general intangibles now owned or
hereafter acquired, including, without limitation, goodwill, trademarks,
servicemarks, trade styles, trade names, patents, patent applications, leases,
license agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance and rights to payment of any kind;
(d) All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower, whether or not earned by performance, and any
and all credit insurance, guaranties, and other security therefor, as well as
all merchandise returned to or reclaimed by Borrower and Borrower's books
relating to any of the foregoing;
(e) All documents, cash, deposit accounts, securities, financial
assets, securities entitlements, letters of credit, certificates of deposit,
instruments and chattel paper now owned or hereafter acquired and Borrower's
books relating to the foregoing;
(f) All copyright rights, copyright applications, copyright
registrations and like protections in each work of authorship and derivative
work thereof, whether published or unpublished, now owned or hereafter acquired;
all trade secret rights, including all rights to unpatented inventions, know-
how, operating manuals, license rights and agreements and confidential
information, now owned or hereafter acquired; all mask work or similar rights
available for the protection of semiconductor chips, now owned or hereafter
acquired; all claims for damages by way of any past, present and future
infringement of any of the foregoing; and
(g) Any and all claims, rights and interests in any of the above and
all substitutions for, additions and accessions to and proceeds thereof.
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SECRETARY'S CERTIFICATE
2Bridge
I, ▇▇▇▇▇▇ ▇▇▇▇▇, hereby certify that I am the duly elected and qualified
Secretary of 2Bridge, a California corporation (the "Corporation") and that, as
such, I am authorized to execute this Secretary's Certificate on behalf of the
Corporation. This Secretary's Certificate is being delivered in connection with
the Loan Agreement, dated as of November 15, 1999, by and between Sand Hill
Capital II, LP and the Corporation. I further certify that:
Attached hereto as Exhibit A is a true and complete copy of the written
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consent of the Directors of the Corporation dated November 19, 1999. The
resolutions contained in the written consent attached hereto as Exhibit A are
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the only resolutions of the Board of Directors of the Corporation with respect
to the Credit Documents and Warrant referred to therein, are in full force and
effect on and as of the date hereof and have not been modified, amended or
repealed.
The undersigned has executed this Secretary's Certificate as of this 2nd
day of December, 1999.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇, Secretary
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