EXHIBIT 10.12
AMENDMENT AND REAFFIRMATION OF GUARANTY
(SoftBank Capital Partners LP)
THIS AMENDMENT AND REAFFIRMATION OF GUARANTY (this "Amendment") is made
and executed as of the 13th day of November, 2004, by SOFTBANK CAPITAL PARTNERS
LP (the "Guarantor"), and SILICON VALLEY BANK, a California chartered bank, its
successors and assigns (the "Bank").
RECITALS
WHEREAS, the Bank has previously agreed to make a certain committed
revolving line of credit (the "Loan") in the maximum outstanding principal
amount of Twelve Million Dollars ($12,000,000) to ODIMO INCORPORATED., a
corporation organized and in good standing in the State of Delaware,
XXXXXXX.XXX, INC., a corporation organized and in good standing in the State
Delaware and D.I.A. MARKETING, INC., a corporation organized and in good
standing in the State of Florida (individually and collectively, the
"Borrower"), pursuant to that certain Loan and Security Agreement dated July 31,
2004 by and between the Borrower and the Bank (as amended restated, modified,
substituted, extended and renewed from time to time, the "Loan Agreement");
WHEREAS, the Borrower has requested and the Bank has agreed, among
other amendments, to increase the Loan in the maximum outstanding principal
amount of Fifteen Million Dollars ($15,000,000) in accordance with the terms of
that certain First Loan Modification Agreement of even date herewith, by and
between Bank and Borrower (the "First Amendment") and that certain First Amended
and Restated Revolving Promissory Note dated of even date herewith, from
Borrower in favor of the Lender (the "First Amended and Restated Promissory
Note");
WHEREAS, in connection with the Loan, the Guarantor executed and
delivered to Bank its Unconditional Guaranty dated July 31, 2004 from the
Guarantor in favor of the Bank (as amended, restated, modified, substituted,
extended and renewed from time to time, the "Guaranty");
WHEREAS, the Bank is not willing to increase the Loan, or make other
amendments to the Loan Agreement unless the Guarantor unconditionally reaffirms
its joint and several obligations under the Guaranty and consents to such
amendments; and
WHEREAS, the Guarantor will benefit directly from the Bank's agreement
to increase the Loan.
AGREEMENT
NOW THEREFORE, as an inducement for the Bank to increase the Loan, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties do hereby agree as follows:
15. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Guaranty.
16. The Recitals set forth hereinabove are hereby incorporated by this
reference with the same force and effect as it fully set forth herein.
17. Guarantor has requested and Bank has agreed to amend the Guaranty
as provided in this Amendment as follows:
(i) Section 10(e) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
10. The Guarantor will do all of the following:
e) Maintain as of the last day of each
month, on a consolidated basis with SOFTBANK Capital Advisors
Fund LP and SOFTBANK Capital LP (collectively with the
Guarantor, the "SOFTBANK Guarantors"), a minimum of
Twenty-Four Million Dollars ($24,000,000) of unrestricted cash
plus callable capital, net of all Contingent Liabilities (as
defined in the Agreement) of the SOFTBANK Guarantors,
provided, however, that during the period from date hereof
through December 31, 2004, the Guarantor, on a consolidated
basis with the SOFTBANK Guarantors, will maintain a minimum of
Thirty Million Dollars ($30,000,000) of unrestricted cash plus
callable capital, net of all Contingent Liabilities of the
SOFTBANK Guarantors.
18. Exhibit A (Compliance Certificate), to the Guaranty is hereby
replaced in its entirety with Exhibit A attached hereto.
19. The Guarantor acknowledges and agrees that pursuant to the First
Amendment and that certain First Amended and Restated Promissory Note the
maximum principal amount under the Loan has been increased to Fifteen Million
Dollars ($15,000,000) and hereby consents to such extension. The Guarantor does
hereby unconditionally reaffirm all of its obligations to the Bank under the
Guaranty including, without limitation, the payment and performance of the
guaranteed obligations as set forth in the Guaranty.
20. The Guarantor certifies that the representations and warranties
contained in its Guaranty remain true, correct and complete in all material
respects as of the date hereof with the same force and effect as if made on the
date hereof and that it has no offsets, counterclaims or defenses to any of its
obligations under the Guaranty as modifies hereby.
21. Except as modified hereby, the Guaranty remains unmodified and in
full force and effect.
[Signatures follow on the next page]
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IN WITNESS WHEREOF, the undersigned Guarantor has executed and
delivered this Amendment as of the day and year first hereinabove written.
GUARANTOR:
SOFTBANK CAPITAL PARTNERS LP
By: SOFTBANK CAPITAL PARTNERS LLC, its
sole General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
BANK:
SILICON VALLEY BANK
By: /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
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EXHIBIT A
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
FROM: SOFTBANK CAPITAL PARTNERS LP
SOFTBANK CAPITAL LP
SOFTBANK CAPITAL ADVISORS FUND LP
________________________________
________________________________
________________________________
Re: Unconditional Guaranties made in favor of Silicon Valley Bank
("Bank") in connection with Bank's loans to ODIMO, INC.,
XXXXXXX.XXX, INC., and D.I.A. MARKETING, INC. (collectively,
"Borrower")
The undersigned manager (the "Officer") of SOFTBANK Capital Partners
LLC (the "Company"), as the sole General Partner of each of SOFTBANK Capital
Partners LP., SOFTBANK Capital LP and SOFTBANK Capital Advisors Fund LP
(collectively, "Guarantors"), certifies that under the terms and conditions of
each Unconditional Guaranty made by Guarantor in favor of Bank (each, a
"Guaranty"), (i) Guarantors are in complete compliance for the period ending
_______________ with all required covenants except as noted below and (ii) all
representations and warranties in each Guaranty are true and correct on this
date. Attached are the required documents supporting the certification. The
Officer certifies that these are prepared in accordance with Generally Accepted
Accounting Principles (GAAP) consistently applied from one period to the next
except as explained in an accompanying letter or footnotes. The Officer
acknowledges that no borrowings may be requested by Borrower at any time or date
of determination that any Guarantor is not in compliance with any of the terms
of any Guaranty, and that compliance is determined not just at the date this
certificate is delivered.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN.
REPORTING COVENANT REQUIRED COMPLIES
------------------ -------- --------
All Guarantors:
Monthly CC Monthly within 30 days Yes No
Quarterly Financial Statements with CC Quarterly within 30 days Yes No
SOFTBANK Capital Partner LP only:
Audited Financial Statements with CC Annually within 120 days Yes No
SOFTBANK Capital LP and SOFTBANK Capital
Advisors Fund LP only:
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Company Prepared Financial Statements with CC Annually within 120 days Yes No
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
------------------ -------- ------ --------
Maintain on a consolidated basis, measured on the
last day of each month:
Minimum unrestricted cash and callable capital,
net of contingent liabilities (see breakdown below) $________* $______ Yes No
(1) Unrestricted Cash: $___________
(2) Callable Capital: $___________
(3) Contingent Liabilities: $___________
(4) Item #1 plus #2, minus #3: $___________
*$30,000,000 from November __, 2004 through December 31, 2004, and $24,000,000
at all times thereafter.
COMMENTS REGARDING EXCEPTIONS: See Attached.
Sincerely,
__________________________________
SIGNATURE
__________________________________
TITLE
__________________________________
DATE
BANK USE ONLY
Received by: _______________________________
AUTHORIZED SIGNER
Date:
______________________________________
Verified: __________________________________
AUTHORIZED SIGNER
Date: ______________________________________
Compliance Status: Yes No
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