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EXHIBIT 10.36
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT dated May 19, 1999, between SILICON VALLEY BANK
("Bank"), whose address is 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and
ONELIST, INC. ("Borrower"), whose address is 000 Xxx Xxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxx 00000 provides the terms on which Bank will lend to Borrower and
Borrower will repay Bank. The parties agree as follows:
1 ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement will be construed following GAAP.
Calculations and determinations must be made following GAAP. The term "financial
statements" includes the notes and schedules. The terms "including" and
"includes" always mean "including (or includes) without limitation," in this or
any Loan document This Agreement shall be construed to impart upon Bank a duty
to act reasonably at all times.
2 LOAN AND TERMS OF PAYMENT
2.1 Credit Extensions.
Borrower will pay Bank the unpaid principal amount of all Credit Extensions and
interest on the unpaid principal amount of the Credit Extensions
2.1.1 Equipment Advances.
(a) Subject to the terms and conditions of this Agreement Bank agrees to lend to
Borrower, from time to time prior to the Commitment Termination Date, equipment
advances (each an "Equipment Advance" and collectively the "Equipment Advances")
in an aggregate amount not to exceed the Committed Equipment Line. When repaid,
the Equipment Advances may not be re-borrowed. The proceeds of the Equipment
Advances will be used solely to reimburse Borrower for the purchase of Eligible
Equipment. Each Equipment Advance shall be considered a promissory note
evidencing the amounts due hereunder for all purposes. Bank's obligation to lend
hereunder shall terminate on the earlier of (i) the occurrence and continuance
of an Event of Default, or (ii) the Commitment Termination Date. For purposes of
this Section, the minimum amount of each Equipment Advance is $30,000 and the
maximum number of Equipment Advances that will be made is 3.
(a) (b) To obtain an Equipment Advance, Borrower will deliver to Bank a
completed supplement in substantially the form attached as Exhibit C ("Loan
Supplement"), and such additional information as Bank may request at least five
(5) Business Days before the proposed funding date (the "Funding Date"). On each
Funding Date, Bank will specify in the Loan Supplement for each Equipment
Advance, the Basic Rate, the Loan Factor, and the Payment Dates. If Borrower
satisfies the conditions of each Equipment Advance specified from time to time
by Bank, Bank will disburse such Equipment Advance by internal transfer to
Borrower's deposit account with Bank. Each Equipment Advance may not exceed 100%
of the Original Stated Cost.
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(c) Bank's obligation to lend the undisbursed portion of the Committed Equipment
Line will terminate if, in Bank's sole discretion, there has been a material
adverse change in the general affairs, management, results of operation,
condition (financial or otherwise) or the prospects of Borrower, whether or not
arising from transactions in the ordinary course of business, or there has been
any material adverse deviation by Borrower from the most recent business plan of
Borrower presented to and accepted by Bank prior to the execution of this
Agreement.
2.2 Interest Rate, Payments.
(a) Principal and Interest Payments On Payment Dates. Borrower will repay the
Equipment Advances on the terms provided in the Loan Supplement Borrower will
make payments monthly in advance of principal and accrued interest for each
Equipment Advance (collectively, "Scheduled Payments"), on the first Business
Day of the month following the Funding Date (or commencing on the Funding Date
if the Funding Date is the first Business Day of the month) with respect to such
Equipment Advance and continuing thereafter during the Repayment Period on the
first Business Day of each calendar month (each a "Payment Date"), in an amount
equal to the Loan Factor multiplied by the Loan Amount for such Equipment
Advance as of such Payment Date. All unpaid principal and accrued interest is
due and payable in full on the last Payment Date with respect to such Equipment
Advance. Payments received after 12:00 noon Pacific time are considered received
at the opening of business on the next Business Day. When a payment is due on a
day that is not a Business Day, the payment is due the next Business Day and
additional fees or interest accrue. An Equipment Advance may only be prepaid in
accordance with Sections 2.2 (e) and 2.2 (g).
(b) Interest Rate. Borrower will pay interest on the unpaid principal amount of
each Equipment Advance from the first Payment Date after the Funding Date of
such Equipment Advance until the Equipment Advance has been paid in full, at the
per annum rate of interest equal to the Basic Rate determined by Bank as of the
Funding Date for each Equipment Advance in accordance with the definition of the
Basic Rate. Any amounts outstanding during the continuance of an Event of
Default shall bear interest at a per annum rate equal to the Basic Rate plus
five percent (5%). If any change in the law increases Bank's expenses or
decreases its return from the Equipment Advances, Borrower will pay Bank upon
request the amount of such increase or decrease.
(c) Interim Payment In addition to the Scheduled Payments, on the Funding Date
for each Equipment Advance (unless the Funding Date is the first Business Day of
the month) Borrower shall pay to Bank, on behalf of Bank, an amount (the
"Interim Payment") equal to the initial Equipment Advance multiplied by the
product of (i) the quotient derived from dividing the initial Loan Factor with
respect to such Equipment Advance by 30, and (ii) the number of days from the
Funding Date of the Equipment Advance until the first Payment Date with respect
to such Equipment Advance.
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(d) Final Payment on the Maturity Date with respect to each Equipment Advance,
Borrower will pay, in addition to the unpaid principal and accrued interest and
all other amounts due on such date with respect to such Equipment Advance, an
amount equal to the Final Payment.
(e) Prepayment Upon an Event of Loss. If any Financed Equipment is subject to an
Event of Loss and Borrower is required to or elects to prepay the Equipment
Advance with respect to such Financed Equipment pursuant to Section 6.7, then
such Equipment Advance shall be prepaid to the extent and in the manner provided
in such section.
(f) Mandatory Prepayment Upon an Acceleration. If the Equipment Advances are
accelerated following the occurrence of an Event of Default or otherwise (other
than following an Event of Loss), then Borrower will immediately pay to Bank (i)
all unpaid Scheduled Payments with respect to each Equipment Advance due prior
to the date of prepayment (ii) all accrued unpaid interest, including the
default rate of interest, to the date of the prepayment, (iii) the Final Payment
and (iv) all other sums, if any, that shall have become due and payable with
respect to any Equipment Advance.
(g) Permitted Prepayment of Loans. With Bank's prior written consent, Borrower
shall have the option to prepay all, but not less than all, of the Equipment
Advances advanced by Bank under this Agreement, provided Borrower (i) provides
written notice to Bank of its election to exercise to prepay the Equipment
Advances at least thirty (30) days prior to such prepayment and (ii) pays, on
the date of the prepayment (A) all remaining Scheduled Payments (including
principal and interest); (B) all unpaid accrued interest to the date of the
prepayment (C) the Final Payment, and (D) all other sums, if any, that shall
have become due and payable hereunder with respect to this Agreement.
2.3 Fees.
Borrower will pay:
(a) Facility Fee. A fully earned, non-refundable Facility Fee of $5,000 due on
the Closing Date; and
(b) Bank Expenses. All Bank Expenses (including reasonable attorneys' fees and
reasonable expenses) incurred through and after the date of this Agreement, are
payable when due.
3 CONDITIONS OF LOANS
3.1 Conditions Precedent to Initial Credit Extension.
Bank's obligation to make the initial Credit Extension is subject to the
condition precedent that it receive the agreements, documents and fees it
requires.
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3.2 Conditions Precedent to all Credit Extensions.
Bank's obligations to make each Credit Extension, including the initial Credit
Extension, is subject to the following:
(a) timely receipt of any Payment Advance Form; and
(b) the representations and warranties in Section 5 must be materially true on
the date of the Payment/Advance Form and on the effective date of each Credit
Extension and no Event of Default may have occurred and be continuing, or result
from the Credit Extension. Each Credit Extension is Borrower's representation
and warranty on that date that the representations and warranties of Section 5
remain true.
4 CREATION OF SECURITY INTEREST
4.1 Grant of Security Interest
Borrower grants Bank a continuing security interest in all presently existing
and later acquired Collateral to secure all Obligations and performance of each
of Borrower's duties under the Loan Documents. Except for Permitted Liens, any
security interest will be a first priority security interest in the Collateral.
Bank may place a "hold" on any deposit account pledged as Collateral. If this
Agreement is terminated, Bank's lien and security interest in the Collateral
will continue until Borrower fully satisfies its Obligations.
5 REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1 Due Organization and Authorization.
Borrower and each Subsidiary is duly existing and in good standing in its state
of formation and qualified and licensed to do business in, and in good standing
in, any state in which the conduct of its business or its ownership of property
requires that it be qualified, except where the failure to do so could not
reasonably be expected to cause a Material Adverse Change.
The execution, delivery and performance of the Loan Documents have been duly
authorized, and do not conflict with Borrower's formation documents, nor
constitute an event of default under any material agreement by which Borrower is
bound. Borrower is not in default under any agreement to which or by which it is
bound in which the default could cause reasonably be expected to cause a
Material Adverse Change.
5.2 Collateral.
Borrower has good title to the Collateral, free of Liens except Permitted Liens.
All Inventory is in all material respects of good and marketable quality, free
from material defects.
5.3 Litigation.
Except as shown in the Schedule, there are no actions or proceedings pending or,
to the knowledge or Borrower's Responsible Officers and legal counsel,
threatened by or against
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Borrower or any Subsidiary in which an adverse decision could reasonably be
expected to cause a Material Adverse Change.
5.4 No Material Adverse Change In Financial Statements.
All consolidated financial statements for Borrower, and any Subsidiary,
delivered to Bank fairly present in all material respects Borrowers consolidated
financial condition and Borrower's consolidated results of operations. There has
not been any material deterioration in Borrower's consolidated financial
condition since the date of the most recent financial statements submitted to
Bank.
5.5 Solvency.
The fair salable value of Borrower's assets (including goodwill minus
disposition costs) exceeds the fair value of its liabilities; the Borrower is
not left with unreasonably small capital after the transactions in this
Agreement; and Borrower is able to pay its debts (including trade debts) as they
mature.
5.6 Regulatory Compliance.
Borrower is not an "investment company" or a company "controlled" by an
"investment company" under the Investment Company Act Borrower is not engaged as
one of its important activities in extending credit: for margin stock (under
Regulations G, T and U of the Federal Reserve Board of Governors). Borrower has
complied in all material respects with the Federal Fair Labor Standards Act
Borrower has not violated any laws, ordinances or rules, the violation of which
could reasonably be expected to cause a Material Adverse Change. None of
Borrower's or any Subsidiary's properties or assets has been used by Borrower or
any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in
disposing, producing, storing, treating, or transporting any hazardous substance
other than legally. Borrower and each Subsidiary has timely filed all required
tax returns and paid, or made adequate provision to pay, all material taxes,
except those being contested in good faith with adequate reserves under GAAP.
Borrower and each Subsidiary has obtained all consents, approvals and
authorizations of, made all declarations or filings with, and given all notices
to, all government authorities that are necessary to continue its business as
currently conducted, except where the failure to do so could not reasonably be
expected to cause a Material Adverse Change.
5.7 Subsidiaries.
Borrower does not own any stock, partnership interest or other equity securities
except for Permitted Investments.
5.8 Full Disclosure.
No written representation, warranty or other statement of Borrower in any
certificate or written statement given to Bank (taken together with all such
written certificates and written statements to Bank) contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained in the certificates or statements not
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misleading. It being recognized by Bank that the projections and forecasts
provided by Borrower in good faith and based upon reasonable assumptions are not
viewed as facts and that actual results during the period or periods covered by
such projections and forecasts may differ from the projected and forecasted
results.
6 AFFIRMATIVE COVENANTS
Borrower will do all of the following:
6.1 Government Compliance. Borrower will maintain its and all Subsidiaries'
legal existence and good standing in its jurisdiction of formation and maintain
qualification in each jurisdiction in which the failure to so qualify would
reasonably be expected to cause a material adverse effect on Borrower's business
or operations. Borrower will comply, and have each Subsidiary comply, with all
laws, ordinances and regulations to which it is subject, noncompliance with
which could have material adverse effect on Borrower's business or operations or
would reasonably be expected to cause a Material Adverse Change.
6.2 Financial Statements, Reports, Certificates.
(a) Borrower will deliver to Bank: (i) as soon as available, but no later than
30 days after the last day of each month, a company prepared consolidated
balance sheet and income statement covering Borrower's consolidated operations
during the period, in a form and certified by a Responsible Officer acceptable
to Bank; (ii) as soon as available, but no later than 90 days after the last day
of Borrower's fiscal year, audited consolidated financial statements prepared
under GAAP, consistently applied, together with an unqualified opinion on the
financial statements from an independent certified public accounting firm
reasonably acceptable to Bank; (iii) a prompt report of any legal actions
pending or threatened against Borrower or any Subsidiary that could result in
damages or costs to Borrower or any Subsidiary of $100,000 or more; and (iv)
budgets, sales projections, operating plans or other financial information Bank
requests.
(b) Bank has the right to audit Borrower's Collateral anytime an Event of
Default has occurred and is continuing.
6.3 Inventory; Returns.
Borrower will keep all Inventory in good and marketable condition, free from
material defects. Returns and allowances between Borrower and its account
debtors will follow Borrower's customary practices as they exist at execution of
this Agreement. Borrower must promptly notify Bank of all returns, recoveries,
disputes and claims, that involve more than $50,000.
6.4 Taxes.
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Borrower will make, and cause each Subsidiary to make, timely payment of all
material federal, state, and local taxes or assessments and will deliver to
Bank, on demand, appropriate certificates attesting to the payment.
6.5 Insurance.
Borrower will keep its business and the Collateral insured for risks and in
amounts, as Bank requests. Insurance policies will be in a form, with companies,
and in amounts that are reasonably satisfactory to Bank. All property policies
will have a lender's loss payable endorsement showing Bank as an additional loss
payee and all liability policies will show the Bank as an additional insured and
all policies will provide that the insurer must give Bank at least 20 days
notice before canceling its policy. At Bank's request, Borrower will deliver
certified copies of policies and evidence of all premium payments. Subject to
Section 6.7 (a) below, so long as no Event of Default has occurred and is
continuing, Borrower shall have the option of applying the proceeds of any
casualty policy to the replacement or repair of destroyed or damaged property;
provided that, after the occurrence and during the continuance of an Event of
Default, all proceeds payable under any such casualty policy shall, at the
option of Bank, be payable to Bank on account of the Obligations.
6.6 Primary Accounts.
Borrower will maintain its primary depository and operating accounts with Bank.
6.7 Loss; Destruction; or Damage. Borrower will bear the risk of the Financed
Equipment being lost stolen, destroyed, or damaged. If during the term of this
Agreement any item of Financed Equipment becomes obsolete or is lost, stolen,
destroyed, damaged beyond repair, rendered permanently unfit for use, or seized
by a governmental authority for any reason for a period equal to at least the
remainder of the term of this Agreement (an "Event of Loss"), then in each case,
Borrower (a) prior to the occurrence of an Event of Default, at Borrowers
option, will (i) pay to Bank on account of the Obligations all accrued interest
to the date of the prepayment plus all outstanding principal, plus the Final
Payment; or (ii) repair or replace any Financed Equipment subject to an Event of
Loss provided the repaired or replaced Financed Equipment is of equal or like
value to the Financed Equipment subject to an Event of Loss and provided further
that Bank has a first priority perfected security interest in such repaired or
replaced Financed Equipment (b) during the continuance of an Event of Default,
on or before the Payment Date after such Event of Loss for each such item of
Financed Equipment subject to such Event of Loss, Borrower will, at Bank's
option, pay to Bank an amount equal to the sum of. (i) all accrued and unpaid
Scheduled Payments (with respect to such Equipment Advance related to the Event
of Loss) due prior to the next such Payment Date, (ii) all Regularly Scheduled
Payments (including principal and interest), (iii) the Final Payment plus (iv)
all other sums, if any, that shall have become due and payable, including
interest at the Default Rate with respect to any past due amounts. (c) On the
date of receipt by Bank of the amount specified above with respect to each such
item of Financed Equipment subject to an Event of Loss, this Agreement shall
terminate as to such Financed Equipment.
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If any proceeds of insurance or awards received from governmental authorities
are in excess of the amount owed under this Section, Bank shall promptly remit
to Borrower the amount in excess of the amount owed to Bank.
6.8 Further Assurances.
Borrower will execute any further instruments and take further action as Bank
reasonably requests to perfect or continue Bank's security interest in the
Collateral or to effect the purposes of this Agreement.
7 NEGATIVE COVENANTS
Borrower will not do any of the following without Bank's prior written consent,
which will not be unreasonably withheld:
7.1 Dispositions.
Convey, sell, lease, transfer or otherwise dispose of (collectively "Transfer"),
or permit any of its Subsidiaries to Transfer, all or any part of its business
or property, other than Transfers (i) of Inventory in the ordinary course of
business; (ii) of non-exclusive licenses and similar arrangements for the use of
the property of Borrower or its Subsidiaries in the ordinary course of business;
or (iii) of worn-out or obsolete Equipment.
7.2 Changes in Business, Ownership, Management or Business Locations.
Engage in or permit any of its Subsidiaries to engage in any business other than
the businesses currently engaged in by Borrower or reasonably related thereto or
have a material change in its ownership (other than the sale of Borrower's
equity securities in a public offering or to venture capital investors approved
by Bank) of greater than 25%. Borrower will not without at least 30 days prior
written notice, relocate its chief executive office or add any new offices or
business locations.
7.3 Mergers or Acquisitions.
Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate,
with any other Person, or acquire, or permit any of its Subsidiaries to acquire,
all or substantially all of the capital stock or property of another Person,
except where (i) no Event of Default has occurred and is continuing or would
result from such action during the term of this Agreement and result in a
decrease of more than 25% of Tangible Net Worth. A Subsidiary may merge or
consolidate into another Subsidiary or into Borrower.
7.4 Indebtedness.
Create, incur, assume, or be liable for any Indebtedness, or permit any
Subsidiary to do so, other than Permitted Indebtedness.
7.5 Encumbrance.
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Create, incur, or allow any Lien on any of its property, or assign or convey any
right to receive income, including the sale of any Accounts, or permit any of
its Subsidiaries to do so, except for-Permitted Liens, or permit any Collateral
not to be subject to the first priority security interest granted here, subject
to Permitted Liens.
7.6 Distributions; Investments.
Directly or indirectly acquire or own any Person, or make any Investment in any
Person, other than Permitted Investments, or permit any of its Subsidiaries to
do so. Pay any dividends or make any distribution or payment or redeem, retire
or purchase any capital stock.
7.7 Transactions with Affiliates.
Directly or indirectly enter or permit any material transaction with any
Affiliate except transactions that are in the ordinary course of Borrower's
business, on terms less favorable to Borrower than would be obtained in an arm's
length transaction with a non-affiliated Person.
7.8 Subordinated Debt.
Make or permit any payment on any Subordinated Debt except under the terms of
the Subordinated Debt, or amend any provision, in any document relating to the
Subordinated Debt without Bank's prior written consent.
7.9 Compliance.
Become an "investment company" or a company controlled by an "investment
company," under the Investment Company Act of 1940 or undertake as one of its
important activities extending credit to purchase or carry margin stock, or use
the proceeds of any Credit Extension for that purpose; fail to meet the minimum
funding requirements of ERISA, permit a Reportable Event or Prohibited
Transaction, as defined in ERISA, to occur, fail to comply with the Federal Fair
Labor Standards Act or violate any other law or regulation, if the violation
could reasonable be expected to have a material adverse effect on Borrower's
business or operations or would reasonably be expected to cause a Material
Adverse Change, or permit any of its Subsidiaries to do so.
8 EVENTS OF DEFAULT
Any one of the following is an Event of Default.
8.1 Payment Default.
If Borrower fails to pay any of the Obligations within 3 days after their due
date. During the additional period the failure to cure the default is not an
Event of Default (but no Credit Extension will be made during the cure period).
8.2 Covenant Default.
If Borrower violates any covenant in Section 7 or does not perform or observe
any other material term, condition or covenant in this Agreement, any Loan
Documents, or in any
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agreement between Borrower and Bank and as to any default under a term,
condition or covenant that can be cured, has not cured the default within 10
days after it occurs, or if the default cannot be cured within 10 days or cannot
be cured after Borrower's attempts within 10 day period, and the default may be
cured within a reasonable time, then Borrower has an additional period (of not
more than 30 days) to attempt to cure the default During the additional time,
the failure to cure the default is not an Event of Default (but no Credit
Extensions will be made during the cure period).
8.3 Material Adverse Change.
If there (i) occurs a material impairment in the perfection or priority of the
Bank's security interest in the Collateral or in the value of such Collateral
which is not covered by adequate insurance or (ii) is a material impairment of
the prospect of repayment of any portion of the Obligations.
8.4 Attachment.
If any material portion of Borrower's assets is attached, seized, levied on, or
comes into possession of a trustee or receiver and the attachment, seizure or
levy is not removed in 10 days, or if Borrower is enjoined, restrained, or
prevented by court order from conducting a material part of its business or if a
judgment or other claim becomes a Lien on a material portion of Borrower's
assets, or if a notice of lien, levy, or assessment is filed against any of
Borrower's assets by any government agency and not paid within 10 days after
Borrower receives notice. These are not Events of Default if stayed or if a bond
is posted pending contest by Borrower (but no Credit Extensions will be made
during the cure period).
8.5 Insolvency.
If Borrower becomes insolvent or if Borrower begins an Insolvency Proceeding or
an Insolvency Proceeding is begun against Borrower and not dismissed or stayed
within 30 days (but no Credit Extensions will be made before any Insolvency
Proceeding is dismissed).
8.6 Other Agreements.
If there is a default in any agreement between Borrower and a third party that
gives the third party the right to accelerate any Indebtedness exceeding
$100,000 or that could cause a Material Adverse Change.
8.7 Judgments.
If a money judgment(s) in the aggregate of at least $50,000 is rendered against
Borrower and is unsatisfied and unstayed for 10 days (but no Credit Extensions
will be made before the judgment is stayed or satisfied).
8.8 Misrepresentations.
If Borrower or any Person acting for Borrower makes any material
misrepresentation or material misstatement now or later in any warranty or
representation in this Agreement or in
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any writing delivered to Bank or to induce Bank to enter this Agreement or any
Loan Document.
9 BANK'S RIGHTS AND REMEDIES
9.1 Rights and Remedies.
When an Event of Default occurs and continues Bank may, without notice or
demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an Event of
Default described in Section 8.5 occurs all Obligations are immediately due and
payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's benefit under this
Agreement or under any other agreement between Borrower and Bank;
(c) Settle or adjust disputes and claims directly with account debtors for
amounts, on terms and in any order that Bank considers advisable;
(d) Make any payments and do any acts it considers necessary or reasonable to
protect its security interest in the Collateral. Borrower will assemble the
Collateral if Bank requires and make it available as Bank designates. Bank may
enter premises where the Collateral is located, take and maintain possession of
any part of the Collateral, and pay, purchase, contest, or compromise any Lien
which appears to be prior or superior to its security interest and pay all
expenses incurred. Borrower grants Bank a license to enter and occupy any of its
premises without charge, to exercise any of Bank's rights or remedies;
(e) Apply to the Obligations any (i) balances and deposits of Borrower it holds,
or (ii) any amount held by Bank owing to or for the credit or the account of
Borrower,
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale,
advertise for sale, and sell the Collateral; and
(g) Dispose of the Collateral according to the Code.
9.2 Power of Attorney. Effective only when an Event of Default occurs and
continues, Borrower irrevocably appoints Bank as its lawful attorney to: (i)
endorse Borrowers name on any checks or other forms of payment or security; (ii)
sign Borrower's name on any invoice or xxxx of lading for any Account or drafts
against account debtors, (iii) make, settle, and adjust all claims under
Borrower's insurance policies; (iv) settle and adjust disputes and claims about
the Accounts directly with account debtors, for amounts and on terms Bank
determines reasonable; and (v) transfer the Collateral into the name of Bank or
a third party as the Code permits. Bank may exercise the power of attorney to
sign Borrower's name on
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any documents necessary to perfect or continue the perfection of any security
interest regardless of whether an Event of Default has occurred. Bank's
appointment as Borrower's attorney in fact, and all of Bank's rights and powers,
coupled with an interest, are irrevocable until all Obligations have been fully
repaid and performed and Bank's obligation to provide Credit Extensions
terminates.
9.3 Accounts Collection.
When an Event of Default occurs and continues, Bank may notify any Person owing
Borrower money of Bank's security interest in the funds and verify the amount of
the Account. Borrower must collect all payments in trust for Bank and, if
requested by Bank, immediately deliver the payments to Bank in the form received
from the account debtor, with proper endorsements for deposit.
9.4 Bank Expenses.
If Borrower fails to pay any amount or furnish any required proof of payment to
third persons, Bank may make all or part of the payment or obtain insurance
policies required in Section 6.5, and take any action under the policies Bank
deems prudent. Any amounts paid by Bank are Bank Expenses and immediately due
and payable, bearing interest at the then applicable rate and secured by the
Collateral. No payments by Bank are deemed an agreement to make similar payments
in the future or Bank's waiver of any Event of Default.
9.5 Bank's Liability for Collateral.
If Bank complies with reasonable banking practices and Section 9-207 of the
Code, it is not liable for (a) the safekeeping of the Collateral; (b) any loss
or damage to the Collateral; (c) any diminution in the value of the Collateral;
or (d) any act or default of any carrier, warehouseman, bailee, or other person.
Borrower bears all risk of loss, damage or destruction of the Collateral.
9.6 Remedies Cumulative.
Bank's rights and remedies under this Agreement the Loan Documents, and all
other agreements are cumulative. Bank has all rights and remedies provided under
the Code, by law, or in equity. Bank's exercise of one night or remedy is not an
election, and Bank's waiver of any Event of Default is not a continuing waiver.
Bank's delay is not a waiver, election, or acquiescence. No waiver is effective
unless signed by Bank and then is only effective for the specific instance and
purpose for which it was given.
9.7 Demand Waiver.
Borrower waives demand, notice of default or dishonor, notice of payment and
nonpayment notice of any default nonpayment at maturity, release, compromise,
settlement extension, or renewal of accounts, documents, instruments, chattel
paper, and guarantees held by Bank on which Borrower is liable.
10 NOTICES
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All notices or demands by any party about this Agreement or any other related
agreement must be in writing and be personally delivered or sent by an overnight
delivery service, by certified mail, postage prepaid, return receipt requested,
or by telefacsimile to the addresses set forth at the beginning of this
Agreement. A party may change its notice address by giving the other party
written notice.
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
California law governs the Loan Documents without regard to principles of
conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction of
the State and Federal courts in Santa Xxxxx County, California.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS
WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12 GENERAL PROVISIONS
12.1 Successors and Assigns.
This Agreement binds and is for the benefit of the successors and permitted
assigns of each party. Borrower may not assign this Agreement or any rights
under it without Bank's prior written consent which may be granted or withheld
in Bank's discretion. Bank has the right, without the consent of or notice to
Borrower, to sell, transfer, negotiate, or grant participation in all or any
part of, or any interest in, Bank's obligations, rights and benefits under this
Agreement
12.2 Indemnification.
Borrower will indemnify, defend and hold harmless Bank and its officers,
employees, and agents against: (a) all obligations, demands, claims, and
liabilities asserted by any other party in connection with the transactions
contemplated by the Loan Documents; and (b) all losses or Bank Expenses
incurred, or paid by Bank from, following, or consequential to transactions
between Bank and Borrower (including reasonable attorneys fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
12.3 Time of Essence.
Time is of the essence for the performance of all obligations in this Agreement
12.4 Severability of Provision. Each provision of this Agreement is severable
from every other provision in determining the enforceability of any provision.
12.5 Amendments in Writing, Integration.
All amendments to this Agreement must be in writing and signed by Borrower and
Bank.
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This Agreement represents the entire agreement about this subject matter, and
supersedes prior negotiations or agreements. All prior agreements,
understandings, representations, warranties, and negotiations between the
parties about the subject matter of this Agreement merge into this Agreement and
the Loan Documents.
12.6 Counterparts.
This Agreement may be executed in any number of counterparts and by different
parties on separate counterparts, each of which, when executed and delivered,
are an original, and all taken together, constitute one Agreement.
12.7 Survival.
All covenants, representations and warranties made in this Agreement continue in
full force while any Obligations remain outstanding. The obligations of Borrower
in Section 12.2 to indemnify Bank will survive until all statutes of limitations
for actions that may be brought against Bank have run.
12.8 Confidentiality.
In handling any confidential information, Bank will exercise the same degree of
care that it exercises for its own proprietary information, but disclosure of
information may be made (i) to Bank's subsidiaries or affiliates in connection
with their business with Borrower, (ii) to prospective transferees or purchasers
of any interest in the loans, (iii) as required by law, regulation, subpoena, or
other order, (iv) as required in connection with Bank's examination or audit and
(v) as Bank considers appropriate exercising remedies under this Agreement
Confidential information does not include information that either (a) is in the
public domain or in Bank's possession when disclosed to Bank, or becomes part of
the public domain after disclosure to Bank; or (b) is disclosed to Bank by a
third party, if Bank does not know that the third party is prohibited from
disclosing the information.
12.9 Attorneys' Fees, Costs and Expenses.
In any action or proceeding between Borrower and Bank arising out of the Loan
Documents, the prevailing party will be entitled to recover its reasonable
attorneys' fees and other reasonable costs and expenses incurred, in addition to
any other relief to which it may be entitled.
13 DEFINITIONS
13.1 Definitions.
In this Agreement "Accounts" are all existing and later arising accounts,
contract rights, and other obligations owed Borrower in connection with its sale
or lease of goods (including licensing software and other technology) or
provision of services, all credit insurance, guaranties, other security and all
merchandise returned or reclaimed by Borrower and Borrowers Books relating to
any of the foregoing.
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"Affiliate" of a Person is a Person that owns or controls directly or indirectly
the Person, any Person that controls or is controlled by or is under common
control with the Person, and each of that Person's senior executive officers,
directors, partners and, for any Person that is a limited liability company,
that Person's managers and members.
"Bank Expense" are all audit fees and expenses and reasonable costs and expenses
(including reasonable attorneys' fees and expenses) for preparing, negotiating,
administering, defending and enforcing the Loan Documents (including appeals or
Insolvency Proceedings).
"Basic Rate" is, as of the Funding Date, the per annum rate of interest (based
on a year of 360 days) equal to the sum of (a) the U.S. Treasury note yield to
maturity for a term equal to the Treasury Note Maturity as quoted in The Wall
Street Journal on the day the Loan Supplement is prepared, plus (b) the Loan
Margin.
"Borrower's Books" are all Borrowers books and records including ledgers,
records regarding Borrowers assets or liabilities, the Collateral, business
operations or financial condition and all computer programs or discs or any
equipment containing the information.
"Business Day" is any day that is not a Saturday, Sunday or a day on which the
Bank is closed.
"Closing Date" is the date of this Agreement
"Code" is the California Uniform Commercial Code. "Collateral" is the property
described on Exhibit .
"Committed Equipment Line" is a Credit Extension of up to $200,000.
"Commitment Termination Date" is January 19, 2000.
"Contingent Obligation" is, for any Person, any direct or indirect liability,
contingent or not , of that Person for (i) any indebtedness, lease, dividend,
letter of credit or other obligation of another such as an obligation directly
or indirectly guaranteed, endorsed, co-made, discounted or so and with recourse
by that Person, or for which that Person is directly or indirectly liable; (ii)
any obligations for undrawn letters of credit for the account of that Person;
and (iii) all obligations from any interest rate, currency or commodity swap
agreement interest rate cap or collar agreement or other agreement or
arrangement designated to protect a Person against fluctuation in interest
rates, currency exchange rates or commodity prices; but "Contingent Obligation"
does not include endorsements in the ordinary course of business. The amount of
a Contingent Obligation is the stated or determined amount of the primary
obligation for which the Contingent Obligation is made or if not determinable,
the maximum reasonably anticipated liability for it determined by the Person in
good faith; but
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the amount may not exceed the maximum of the obligations under the guarantee or
other support arrangement.
"Credit Extension" is each Equipment Advance or any other extension of credit by
Bank for Borrower's benefit.
"Eligible Equipment" is general purpose computer equipment, office equipment
test and laboratory equipment furnishings, and, subject to the limitations set
forth below, Other Equipment that complies with all of Borrower's
representations and warranties to Bank and which is acceptable to Bank in all
respects. All Equipment financed with the proceeds of Equipment Advances shall
be new, provided that Bank, in its sole discretion, may finance used equipment
Invoices for Eligible Equipment must be dated within 120 days of the Equipment
Advance.
"Equipment" is all present and future machinery, equipment, tenant improvements,
furniture, fixtures, vehicles, tools, parts and attachments in which Borrower
has any interest.
"Equipment Advance" is defined in Section 2.1.1.
"Equipment Availability End Date" is defined in Section 2.1.1.
"Equipment Maturity Date" is defined in Section 2.1.1.
"ERISA" is the Employment Retirement Income Security Act of 1974, and its
regulations.
"Final Payment" is a payment (in addition to and not a substitution for the
regular monthly payments of principal plus accrued interest) due on the Maturity
Date for such Equipment Advance equal to the Loan Amount for such Equipment
Advance at such time multiplied by the Final Payment Percentage.
"Final Payment Percentage" is, for each Equipment Advance, 8%.
"Financed Equipment" is defined in the Loan Supplement
"Funding Date" is any date on which an Equipment Advance is made to or on
account of Borrower.
"GAAP" is generally accepted accounting principles.
"Indebtedness" is (a) indebtedness for borrowed money or the deferred price of
property or services, such as reimbursement and other obligations for surety
bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
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"Insolvency Proceeding" are proceedings by or against any Person under the
United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"Inventory" is present and future inventory in which Borrower has any interest,
including merchandise, raw materials, parts, supplies, packing and shipping
materials, work in process and finished products intended for sale or lease or
to be furnished under a contract of service, of every kind and description now
or later owned by or in the custody or possession, actual or constructive, of
Borrower, including inventory temporarily out of its custody or possession or in
transit and including returns on any accounts or other proceeds (including
insurance proceeds) from the sale or disposition of any of the foregoing and any
documents of title.
"Investment" is any beneficial ownership of (including stock, partnership
interest or other securities) any Person, or any loan, advance or capital
contribution to any Person.
"Lien" is a mortgage, lien, deed of trust charge, pledge, security interest or
other encumbrance.
"Loan Amount" is the aggregate amount of the Equipment Advance.
"Loan Documents" are, collectively, this Agreement, any note, or notes or
guaranties executed by Borrower or Guarantor, and any other present or future
agreement between Borrower and/or for the benefit of Bank in connection with
this Agreement all as amended, extended or restated.
"Loan Factor" is the percentage which results from amortizing the Equipment
Advance over the Repayment Period, using the Basic Rate as the interest rate.
"Loan Margin" is 400 basis points.
"Loan Supplement" is attached as Exhibit C
"Material Adverse Change" is defined in Section 8.3.
"Maturity Date" is, with respect to each Equipment Advance, the last day of the
Repayment Period for such Equipment Advance, or if earlier, the date of
acceleration of such Equipment Advance by Bank following an Event of Default.
"Obligations" are debts, principal, interest, Bank Expenses and other amounts
Borrower owes Bank now or later, including cash management services, letters of
credit and foreign
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exchange contracts, if any and including interest accruing after Insolvency
Proceedings begin and debts, liabilities, or obligations of Borrower assigned to
Bank.
"Original Stated Cost" is (i), the original cost to the Borrower of the item of
new Equipment net of any and all freight, installation, tax or (ii) the fair
market value assigned to such item of used Equipment by mutual agreement of
Borrower and Bank at the time of making of the Equipment Advance.
"Other Equipment" is leasehold improvements, intangible property such as
computer software and software licenses, equipment specifically designed or
manufactured for Borrower, other intangible property, limited use property and
other similar property, taxes, shipping and installation expenses. Unless
otherwise agreed to by Bank: not more than 25% of the Equipment financed with
the proceeds of each Equipment Advance shall consist of Other Equipment.
"Permitted Indebtedness" is:
(a) Borrower's indebtedness to Bank under this Agreement or any other Loan
Document (b) Indebtedness existing on the Closing Date and shown on the
Schedule; (c) Subordinated Debt; (d) Indebtedness to trade creditors incurred in
the ordinary course of business; and (e) Indebtedness secured by Permitted
Liens.
"Permitted Investments" are: (a) Investments shown on the Schedule and existing
on the Closing Date; and (b)(i) marketable direct obligations issued or
unconditionally guaranteed by the United States or its agency or any State
maturing within 1 year from its acquisition, (ii) commercial paper maturing no
more than 1 year after its creation and having the highest rating from either
Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc., and (iii)
Bank's certificates of deposit issued maturing no more than 1 year after issue.
"Permitted Liens" are:
(a) Liens existing on the Closing Date and shown on the Schedule or arising
under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government changes or levies,
either not delinquent or being contested in good faith and for which Borrower
maintains adequate reserves on its Books, if they have no priority over any of
Bank's security interests;
(c) Purchase money Liens (i) on Equipment acquired or held by Borrower or its
Subsidiaries incurred for financing the acquisition of the Equipment, or (ii)
existing on equipment when acquired, if the Lien is confined to the property and
improvements and the proceeds of the equipment;
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(d) Leases or subleases and licenses or sublicenses granted in the ordinary
course of the Borrowers business and any interest or title of a lessor, licensor
or under any lease or license, if the leases, subleases, licenses and
sublicenses permit granting Bank a security interest.
(e) Liens incurred in the extension, renewal or refinancing of the indebtedness
secured by Liens described in (a) through (c), but any extension, renewal or
replacement Lien must be limited to the property encumbered by the existing Lien
and the principal amount of the indebtedness may not increase.
"Person" is any individuals sole proprietorship, partnership, limited liability
company, joint venture, company association, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate entity or government agency.
"Prime Rate" is Bank's most recently announced "prime rate", even if it is not
Bank's lowest rate.
"Repayment Period", as to the Equipment Advances, is 24 months.
"Responsible Officer" is each of the Chief Executive Officer, the President, the
Chief Financial Officer and the Controller of Borrower.
"Schedule" is any attached schedule of exceptions.
"Subordinated Debt" is debt incurred by Borrower subordinated to Borrower's debt
to Bank (and identified as subordinated by Borrower and Bank).
"Subsidiary" is for any Person, or any other business entity of which more that
50% of the voting stock or other equity interests is owned or controlled,
directly or indirectly, by the Person or one or more Affiliates of the Person.
"Tangible Net Worth" is, on any date, the consolidated total assets of Borrower
and its Subsidiaries minus, (i) any amounts attributable to (a) goodwill, (b)
intangible items such as unamortized debt discount and expense, Patents, trade
and service marks and names, Copyrights and research and development expenses,
and (c) reserves not already deducted from assets, and (ii) Total Liabilities.
"Total Liabilities" is on any day, obligations that should, under GAAP, be
classified as liabilities on Borrower's consolidated balance sheet, including
all indebtedness, and current portion Subordinated Debt allowed to be paid, but
excluding all other Subordinated Debt.
"Treasury Note Maturity" is 24 months.
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BORROWER:
ONEList, Inc.
By:
---------------------------------
Title:
------------------------------
BANK:
SILICON VALLEY BANK
By:
---------------------------------
Title:
------------------------------
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EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest in and to
the following: 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;
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;
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;
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,
All documents, cash, deposit accounts, securities, securities entitlements,
securities accounts, investment property, financial assets, letters of credit,
certificates of deposit, instruments and chattel paper now owned or hereafter
acquired and Borrower's Books relating to the foregoing;
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
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All Borrower's Books relating to the foregoing and 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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