Exhibit 10.20
ACCOUNTS RECEIVABLE FINANCING AGREEMENT
This ACCOUNTS RECEIVABLE FINANCING AGREEMENT is entered into this 9th day
of August, 2001 by and between SILICON VALLEY BANK, a California-chartered bank,
with its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 and with a loan production office located at One Newton
Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
doing business under the name "Silicon Valley East" (FAX 000-000-0000) ("Bank")
and GREENFIELD ONLINE, INC., a Delaware corporation with its principal place of
business at 00 Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000 (FAX 000-000-0000)
("Borrower") and provides the terms on which Bank shall lend to Borrower and
Borrower shall repay Bank. The parties agree as follows:
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 Borrower's Books relating to any of the
foregoing.
"ACCOUNT BALANCE" is the aggregate outstanding Advances made hereunder.
"ACCOUNT DEBTOR" is as defined in the Code and shall include, without
limitation, any person liable on any Financed Receivable, such as, a guarantor
of the Financed Receivable and any issuer of a letter of credit or banker's
acceptance.
"ADJUSTED QUICK RATIO" is the ratio of Quick Assets to Current Liabilities
minus Deferred Revenue.
"ADJUSTMENTS" are all discounts, allowances, returns, disputes,
counterclaims, offsets, defenses, rights of recoupment, rights of return,
warranty claims, or short payments, asserted by or on behalf of any Account
Debtor for any Financed Receivable.
"ADVANCE" is defined in Section 2.2.
"ADVANCE RATE" is eighty percent (80.0%), net of any offsets related to
each specific Account Debtor, or such other percentage as Bank establishes under
Section 2.2; provided however, if the Borrower is unable to maintain a Adjusted
Quick Ratio of at least 1.25 to 1.0, then the Advance Rate will be 80% net of
Deferred Revenue and offsets related to each specific Account Debtor.
"APPLICABLE RATE" is a per annum rate equal to the "Prime Rate" plus one
and three-quarters percent (1.75%).
"BORROWER'S BOOKS" are all Borrower's books and records including ledgers,
records regarding Borrower's assets or liabilities, the Collateral, business
operations or financial condition and all computer programs or discs or any
equipment containing the information.
"CODE" is the Uniform Commercial Code as adopted by The Commonwealth of
Massachusetts (presently, Mass. Gen. Laws, Ch. 106), as may be amended and in
effect from time to time.
"COLLATERAL" is attached as EXHIBIT "A".
"COLLATERAL HANDLING FEE" is defined in Section 3.4.
"COLLECTIONS" are all funds received by Bank from or on behalf of an
Account Debtor for Financed Receivables.
"COMPLIANCE CERTIFICATE" is attached as EXHIBIT "B".
"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 sold 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 the amount may not exceed the maximum of the
obligations under the guarantee or other support arrangement.
"CURRENT LIABILITIES" are the aggregate amount of Borrower's Total
Liabilities which mature within one (1) year.
"DEFERRED REVENUE" is all amounts received in advance of performance under
contracts and not yet recognized as revenue.
"EARLY TERMINATION FEE" is defined in Section 4.3.
"EBITDA" means earnings before interest, taxes, depreciation and
amortization in accordance with GAAP.
"EVENT OF DEFAULT" is defined in Section 9.
"FACILITY" is an extension of credit by Bank to Borrower in order to
finance Receivables with an aggregate Account Balance not exceeding the Facility
Amount.
"FACILITY AMOUNT" is Four Million Dollars ($4,000,000.00).
"FACILITY FEE" is defined in Section 3.3.
"FACILITY PERIOD" is the period beginning on this date and continuing
until one year from the date of this Agreement, unless the period is terminated
sooner by Bank with notice to Borrower or by Borrower pursuant to Section 4.3.
"FINANCE CHARGES" is defined in Section 3.2.
"FINANCED RECEIVABLES" are all those accounts, receivables, chattel paper,
instruments, contract rights, documents, general intangibles, letters of credit,
drafts, bankers acceptances, and rights to payment, and all proceeds, including
their proceeds (collectively "receivables"), which Bank finances and make an
Advance. A Financed Receivable stops being a Financed Receivable (but remains
Collateral) when the Advance made for the Financed Receivable has been finally
paid.
"FINANCED RECEIVABLE BALANCE" is the total outstanding amount, at any
time, of all Financed Receivables.
"GAAP" is generally accepted accounting principles as adopted by the
Financial Accounting Standards Board.
"GOOD FAITH DEPOSIT" is described in Section 3.8.
"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.
"INELIGIBLE RECEIVABLE" is any accounts receivable:
(a) that is unpaid (90) calendar days after the invoice date; or
(b) that is owed by an Account Debtor that has filed, or has had
filed against it, any bankruptcy case, assignment for the
benefit of creditors, receivership, or Insolvency Proceeding
or who has become insolvent (as defined in the United States
Bankruptcy Code) or who is generally not paying its debts as
they become due; or
(c) for which there has been any breach of warranty or
representation in Section 6 or any breach of any covenant in
this Agreement; or
(d) for which the Account Debtor asserts any discount, allowance,
return, dispute, counterclaim, offset, defense, right of
recoupment, right of return, warranty claim, or short payment.
"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 similar relief.
"INVOICE TRANSMITTAL" shows accounts receivable which Bank may finance
and, for each receivable, includes the Account Debtor's, name, address, invoice
amount, invoice date and invoice number and is signed by Borrower's authorized
representative.
"LOCKBOX" is described in Section 6.3(J).
"MINIMUM FINANCE CHARGE" is a minimum monthly Finance Charge of $7,500.00
payable to the Bank.
"OBLIGATIONS" are all advances, liabilities, obligations, covenants and
duties owing, arising, due or payable by Borrower to Bank now or later under
this Agreement or any other document, instrument or agreement, account
(including those acquired by assignment) primary or secondary, such as all
Advances, Finance Charges, Facility Fee, Early Termination Fee, Collateral
Handling Fee, interest, fees, expenses, professional fees and attorneys' fees,
or other amounts now or hereafter owing by Borrower to Bank.
"PERMITTED INDEBTEDNESS" is: (i) Borrower's Indebtedness to Bank under
this Agreement; (ii) Indebtedness existing on the Closing Date and shown on the
Schedule entitled "permitted indebtedness"; (iii) Indebtedness to trade
creditors incurred in the ordinary course of business; (iv) Indebtedness secured
by Permitted Liens; (v) Subordinated Debt; and (v) reimbursement obligations not
to exceed $200,000 regarding letters of credit issued on behalf of Borrower for
the benefit of Borrower's landlords.
"PERMITTED LIENS" are: (i) Liens existing on the Closing Date and shown on
the Schedule entitled "permitted liens" or arising under this Agreement; and
(ii)Purchase money Liens securing Indebtedness not to exceed $750,000 (A) on
Equipment acquired or held by Borrower incurred for financing the acquisition of
the Equipment, or (B) existing on Equipment when acquired, if the Lien is
confined to the property and improvements and the proceeds of such specific
Equipment.
"PERSON" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company, 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.
"QUICK ASSETS" is, on any date, the Borrower's consolidated, unrestricted
cash, cash equivalents, net accounts receivable and investments with maturities
of fewer than 12 months determined according to GAAP.
"RECONCILIATION DAY" is the last calendar day of each month.
"RECONCILIATION PERIOD" is each calendar month.
"SUBORDINATED DEBT" is debt incurred by Borrower subordinated to
Borrower's debt to Bank (and identified as subordinated by Borrower and Bank,
pursuant to a subordination agreement entered into between the Bank, the
Borrower and the subordinated creditor), on terms acceptable to Bank.
"SUBSIDIARY" is for any Person, joint venture, or any other business
entity of which more than 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.
"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.
2. FINANCING OF ACCOUNTS RECEIVABLE.
2.1. REQUEST FOR ADVANCES. During the Facility Period, Borrower may offer
accounts receivable to Bank and request that the Bank finance such accounts
receivables, if there is not an Event of Default. Borrower will deliver an
Invoice Transmittal for each accounts receivable it offers. Bank may rely on
information on or with the Invoice Transmittal.
2.2. ACCEPTANCE OF ACCOUNTS RECEIVABLE. Bank is not obligated to finance
any accounts receivable. Bank may approve any Account Debtor's credit before
agreeing to finance any accounts receivable. When Bank agrees to finance a
receivable, it will extend credit to Borrower in an amount up to the result of
the Advance Rate multiplied by the face amount of the receivable (the
"Advance"). Bank may, in its discretion, change the percentage of the Advance
Rate. When Bank makes an Advance, the receivable becomes a "Financed
Receivable." All representations and warranties in Section 6 must be true as of
the date of the Invoice Transmittal and of the Advance and no Event of Default
exists would occur as a result of the Advance. The aggregate amount of all
Financed Receivables outstanding at any time may not exceed the Facility Amount.
3. COLLECTIONS, FINANCE CHARGES, REMITTANCES AND FEES. The Obligations shall be
subject to the following fees and Finance Charges. Fees and Finance Charges may,
in Bank's discretion, be charged as an Advance, and shall thereafter accrue fees
and Finance Charges as described below. Bank may, in its discretion, charge fees
and Finance Charges to Borrower's deposit account maintained with Bank.
3.1. COLLECTIONS. Collections will be credited to the Financed Receivables
Balance, but if there is an Event of Default, Bank may apply Collections to the
Obligations in any order it chooses. If Bank receives a payment for both a
Financed Receivable and a non Financed Receivable, the funds will first be
applied to the Financed Receivable and, if there is not an Event of Default, the
excess will be remitted to the Borrower, subject to Section 3.7.
3.2. FINANCE CHARGES. In computing Finance Charges on the Obligations, all
Collections received by Bank shall be deemed applied by Bank on account of the
Obligations three (3) Business Days after receipt of the Collections. Borrower
will pay a finance charge (the "Finance Charge"), which is equal to the greater
of (i) the Applicable Rate multiplied by the number of days in the
Reconciliation Period multiplied by the outstanding average daily Financed
Receivable Balance for that Reconciliation Period, or (ii) the Minimum Finance
Charge, as and when same may be applicable. After an Event of Default,
Obligations accrue interest at five percent (5%) above the Applicable Rate
effective immediately before the Event of Default.
3.3. FACILITY FEE. A fully earned, non-refundable facility fee of Forty
Thousand Dollars ($40,000.00) is due upon execution of this Agreement.
3.4. COLLATERAL HANDLING FEE. On each Reconciliation Day, Borrower will
pay to Bank a collateral handling fee, equal to 0.375% per month of the average
daily Financed Receivable Balance outstanding during the applicable
Reconciliation Period. After an Event of Default, the Collateral Handling Fee
will increase an additional 0.50% effective immediately before the Event of
Default.
3.5. ACCOUNTING. After each Reconciliation Period, Bank will provide an
accounting of the transactions for that Reconciliation Period, including the
amount of all Financed Receivables, all Collections, Adjustments, Finance
Charges, Collateral Handling Fee and the Facility Fee. If Borrower does not
object to the accounting in writing within thirty (30) days it is considered
correct. All Finance Charges and other interest and fees are calculated on the
basis of a 360 day year and actual days elapsed.
3.6. DEDUCTIONS. Bank may deduct fees, Finance Charges and other amounts
due pursuant to this Agreement from any Advances made or Collections received by
Bank.
3.7. ACCOUNT COLLECTION SERVICES. All Borrower's receivables are to be
paid to the same address/or party and Borrower and Bank must agree on such
address. If Bank collects all receivables and there is not an Event of Default
or an event that with notice or lapse of time will be an Event of Default,
within three (3) days of receipt of those collections, Bank will give Borrower
the receivables collections it receives for receivables other than Financed
Receivables and/or amount in excess of the amount for which Bank has made an
Advance to Borrower, less any amount due to Bank, such as the Finance Charge,
the Facility Fee, other fees and expenses, or otherwise. This Section 3.7 does
not impose any affirmative duty on Bank to do any act other than to turn over
amounts. All receivables and collections are Collateral and if an Event of
Default occurs, Bank need not remit collections of Collateral and may apply them
to the Obligations.
3.8. GOOD FAITH DEPOSIT. Borrower has paid to Bank a Good Faith Deposit of
$20,000.00 to initiate Bank's due diligence review process. Any portion of the
deposit not utilized to pay expenses will be applied to the Facility Fee.
4. REPAYMENT OF OBLIGATIONS.
4.1. REPAYMENT ON MATURITY. Borrower will repay each Advance on the
earliest of: (a) payment of the Financed Receivable in respect which the Advance
was made, (b) the Financed Receivable becomes an Ineligible Receivable, (c) when
any Adjustment is made to the Financed Receivable (but only to the extent of the
Adjustment if the Financed Receivable is not otherwise an Ineligible
Receivable), or (d) the last day of the Facility Period (including any early
termination). Each payment will also include all accrued Finance Charges on the
Advance and all other amounts due hereunder.
4.2. REPAYMENT ON EVENT OF DEFAULT. Upon the occurrence of an Event of
Default which has not been cured (if such default is capable of being cured),
Borrower will, if Bank demands (or, in an Event of Default under Section 9(B),
immediately without notice or demand from Bank) repay all of the Advances. The
demand may, at Bank's option, include the Advance for each Financed Receivable
then outstanding and all accrued Finance Charges, the Early Termination Fee,
Collateral Handling Fee, attorneys and professional fees, court costs and
expenses, and any other Obligations.
4.3. EARLY TERMINATION OF AGREEMENT. This Agreement may be terminated
prior to the last day of the Facility Period as follows: (i) by Borrower,
effective three (3) Business Days after written notice of termination is given
to Bank; or (ii) by Bank at any time after the occurrence of an Event of
Default, without notice, effective immediately. If this Agreement is terminated
by Borrower or by Bank, Borrower shall pay to Bank a termination fee in an
amount equal to Sixty Thousand Dollars ($60,000.00) (the "Early Termination
Fee"). The termination fee shall be due and payable on the effective date of
termination and thereafter shall bear interest at a rate equal to the highest
rate applicable to any of the Obligations. Notwithstanding the foregoing, Bank
agrees to waive the Early Termination Fee if Bank agrees to refinance the
Obligations (in its sole and exclusive discretion) prior to the last day of the
Facility Period.
5. POWER OF ATTORNEY. Borrower irrevocably appoints Bank and its successors and
assigns it attorney-in-fact and authorizes Bank to:
(A) following the occurrence of an Event of Default which has
not been cured, sell, assign, transfer, pledge, compromise, or
discharge all or any part of the Financed Receivables:
(B) following the occurrence of an Event of Default which has
not been cured, demand, collect, xxx, and give releases to any
Account Debtor for monies due and compromise, prosecute, or defend
any action, claim, case or proceeding about the Financed
Receivables, including filing a claim or voting a claim in any
bankruptcy case in Bank's or Borrower's name, as Bank chooses:
(C) following the occurrence of an Event of Default which has
not been cured, prepare, file and sign Borrower's name on any
notice, claim, assignment, demand, draft, or notice of or
satisfaction of lien or mechanics' lien or similar document;
(D) regardless of whether there has been an Event of Default,
notify all Account Debtors to pay Bank directly;
(E) regardless of whether there has been an Event of Default,
receive, open, and dispose of mail addressed to Borrower;
(F) regardless of whether there has been an Event of Default,
endorse Borrower's name on check or other instruments (to the extent
necessary to pay amounts owed pursuant to this Agreement); and
(G) regardless of whether there has been an Event of Default,
execute on Borrower's behalf any instruments, documents, financing
statements to perfect Bank's interests in the Financed Receivables
and Collateral and do all acts and things necessary or expedient, as
determined solely and exclusively by the Bank, to protect, preserve,
and otherwise enforce the Bank's rights and remedies under this
Agreement, as directed by the Bank.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants for
each Financed Receivable:
(A) Borrower is the owner with legal right to sell, transfer
and assign it;
(B) The correct amount is on the Invoice Transmittal and is
not disputed;
(C) Payment is not contingent on any obligation or contract
and it has fulfilled all its obligations as of the Invoice
Transmittal date;
(D) It is based on an actual sale and delivery of goods and/or
services rendered, due to Borrower, it is not past due or in
default, has not been previously sold, assigned, transferred, or
pledged and is free of any liens, security interests and
encumbrances;
(E) There are no defenses, offsets, counterclaims or
agreements for which the Account Debtor may claim any deduction or
discount;
(F) Borrower reasonably believes no Account Debtor is
insolvent or subject to any Insolvency Proceedings;
(G) Borrower has not filed or had filed against it Insolvency
Proceedings and does not anticipate any filing;
(H) Bank has the right to endorse and/ or require Borrower to
endorse all payments received on Financed Receivables and all
proceeds of Collateral; and
(I) No representation, warranty or other statement of Borrower
in any certificate or written
statement given to Bank contains any untrue statement of a material
fact or omits to state a material fact necessary to make the
statement contained in the certificates or statement not misleading.
6.2. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants
as follows:
(A) Borrower 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. The
execution, delivery and performance of this Agreement has been duly
authorized, and does not conflict with Borrower's organizational
documents or 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.
(B) Borrower has good title to the Collateral. All inventory
is in all material respects of good and marketable quality, free
from material defects.
(C) Other than as shown on Schedule 6.2(c), there are no
actions or proceedings pending or, to Borrower's knowledge,
threatened by or against Borrower or any Subsidiary.
(D) All consolidated financial statements for Borrower and any
Subsidiary delivered to Bank fairly present in all material respects
Borrower's 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.
(E) Borrower is able to pay its debts (including trade debts)
as they mature.
(F) No representation, warranty or other statement of Borrower
in any certificate or written statement given 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 misleading.
(G) 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 X, T and U of
the Federal Reserve Board of Governors). Borrower has complied with
the Federal Fair Labor Standards Act. Borrower has not violated any
laws, ordinances or rules. None of Borrower's properties or assets
has been used by Borrower, to the best of Borrower's knowledge, by
previous persons, in disposing, producing, storing, treating, or
transporting any hazardous substance other than legally. Borrower
has timely filed all required tax returns and paid, or made adequate
provision to pay, all taxes. Borrower 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.
6.3. AFFIRMATIVE COVENANTS. Borrower will do all of the following:
(A) Maintain its corporate existence and good standing in its
jurisdictions of incorporation and maintain its qualification in
each jurisdiction necessary to Borrower's business or operations.
(B) Pay all its taxes including gross payroll, withholding and
sales taxes when due and will deliver satisfactory evidence of
payment if requested.
(C) Provide a written report within sixty (60) days after the
invoice date respecting any Financed Receivable (or as and when
otherwise directed by the Bank), if payment of any Financed
Receivable does not occur by its due date and include the reasons
for the delay.
(D) Borrower shall deliver to Bank: (i) as soon as available,
but no later than thirty(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 acceptable to Bank and
certified Borrower; (ii) as soon as available, but no later than one
hundred twenty (120) days after the end of Borrower's fiscal year,
audited consolidated financial statements prepared under GAAP,
consistently applied, together with an unqualified opinion an
opinion which is unqualified or otherwise consented to by Bank on
the financial statements from an independent certified public
accounting firm acceptable to Bank; (iii) in the event that
Borrower's stock becomes publicly held, within five (5) days of
filing, copies of all statements, reports and notices made available
to Borrower's security holders or to any holders of Subordinated
Debt and all reports on Form 10-K, 10-Q and 8-K filed with the
Securities and Exchange Commission; and (vi) budgets, sales
projections, operating plans or other financial information Bank
requests.
(E) Borrower shall keep its business and the Collateral
insured for risks and in amounts, as Bank requests. Insurance
policies shall be in a form, with companies, and in amounts that are
reasonably satisfactory to Bank. All property policies shall have a
lender's loss payable endorsement showing Bank as an additional loss
payee and all liability policies shall show the Bank as an
additional insured and all policies shall provide that the insurer
must give Bank at least twenty (20) days notice before canceling its
policy. At Bank's request, Borrower shall deliver certified copies
of policies and evidence of all premium payments. Proceeds payable
under any policy shall, at Bank's option, be payable to Bank on
account of the Obligations.
(F) 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.
(G) Provide Bank with a Compliance Certificate no later than
forty-five (45) days following each quarter end or as requested by
Bank.
(H) Provide Bank with, as soon as available, but no later than
thirty (30) days following each Reconciliation Period, a company
prepared balance sheet and income statement, prepared under GAAP,
consistently applied, covering Borrower's operations during the
period together with an aged listing of accounts receivables and
accounts payable, along with a deferred revenue report. All of the
foregoing shall be in form and substance satisfactory to the Bank.
(I) Immediately notify, transfer and deliver to Bank all
collections Borrower receives for Financed Receivables (and, as and
when required hereunder, for all receivables).
(J) Borrower shall direct each Account Debtor (and each
depository institution where proceeds of accounts receivable are on
deposit) to make payments with respect to all receivables to a
lockbox account established with the Bank ("Lockbox") or to wire
transfer payments to a cash collateral account that Bank controls,
as and when directed by the Bank from time to time, at its option
and at the sole and exclusive discretion of the Bank. Until such
Lockbox can be established, the Borrower shall remit all receivable
cash payments and remittances to the Bank at least weekly (at the
close of business on each Friday) along with a detailed cash
receipts journal . It will be considered an immediate Event of
Default if the Lockbox is not set-up and operational within 60 days
from the date of this Agreement.
(K) Borrower will allow Bank to audit Borrower's Collateral,
including, but not limited to, Borrower's Accounts and accounts
receivable, at Borrower's expense, on a quarterly basis, upon
reasonable notice. Provided, however, if an Event of Default has
occurred, Bank may audit Borrower's Collateral, including, but not
limited to, Borrower's Accounts and accounts receivable at Bank's
sole and exclusive discretion and without notification and
authorization from Borrower. Notwithstanding the foregoing, Bank
will not make any Advances hereunder until it has conducted an
initial audit of Borrower's Collateral and is satisfied with the
results thereof.
(L) Maintain at all times after August 1, 2001 an Adjusted
Quick Ratio of at least 1.25 to 1.0, which Adjusted Quick Ratio will
be tested by Bank on a monthly basis.
(M) Sustain EBITDA losses of not more than: (i) $400,000 for
the month ending June 30, 2001, and (ii) $300,000 for the months
ending July 31, 2001 and August 31, 2001. Borrower shall have EBITDA
of not less than $1.00 for the month ending September 30, 2001 and
each month thereafter.
(N) Maintain its primary operating and depository accounts
with Bank. All necessary account transfers shall take place no later
than 30 days from the date of this Agreement.
6.4. NEGATIVE COVENANTS. Borrower will not do any of the following without
Bank's prior written consent:
(A) Assign, transfer, sell or grant, or permit any lien or
security interest in the Collateral, other than Permitted Liens.
(B) Convey, sell, lease, transfer or otherwise dispose of the
Collateral other than the sale or license of Borrower's inventory in
the ordinary course of business and the sale, transfer, or other
disposal of obsolete Equipment.
(C) Create, incur, assume, or be liable for any Indebtedness,
other than Permitted Indebtedness.
(D) Directly or indirectly enter into or permit to exist any
material transaction with any affiliate or subsidiary of Borrower or
make any distributions to any affiliate or subsidiary, except for
(i) transactions that are in the ordinary course of Borrower's
business, upon fair and reasonable terms that are no less favorable
to Borrower than would be obtained in an arm's length transaction
with a nonaffiliated person or (ii) the affliated transactions
described on Schedule 6.4(D) hereto
(E) 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.
(F) 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 Advance
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, or
permit any of its subsidiaries to do so.
(G) Borrower shall not, without at least thirty (30) days
prior written notice to Bank: (i) relocate its chief executive
office, or add any new offices or business locations, or (ii) change
its jurisdiction of organization, or (iii) change its organizational
structure or type, or (iv) change its legal name, or (v) change any
organizational number (if any) assigned by its jurisdiction of
organization.
(H) Keep any Collateral in the possession of any third party
bailee (such as at a warehouse). In the event that Borrower, after
the date hereof, intends to store or otherwise deliver any
Collateral to such a bailee, then Borrower shall receive the prior
written consent of Bank and such bailee must acknowledge in writing
that the bailee is holding such Collateral for the benefit of Bank.
7. ADJUSTMENTS. If any Account Debtor asserts a discount, allowance, return,
offset, defense, warranty claim, or the like on a Financed Receivable (an
"Adjustment") or if Borrower breaches any of the representations, warranties or
covenants set forth in Section 6, Borrower will promptly advise Bank. Borrower
will resell any rejected, returned, or recovered personal property for Bank, at
Borrower's expense, and pay proceeds to Bank. While Borrower has returned goods
that are Borrower property, Borrower will segregate and xxxx them "Subject to
a Security Interest on behalf of Silicon Valley Bank." Bank has a security
interest in the Financed Receivables and until receipt of payment, has the right
to take possession of any rejected, returned, or recovered personal property.
8. 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 this Agreement. Any security
interest shall be a first priority security interest in the Collateral. Bank may
place a "hold" on any deposit account pledged as Collateral.
9. EVENTS OF DEFAULT. Any one or more of the following is an Event of Default.
(A) Borrower fails to pay any amount owed to Bank when due;
(B) Borrower files or has filed against it any Insolvency
Proceedings or any assignment for the benefit of creditors, or
appointment of a receiver or custodian for any of its assets;
(C) Borrower becomes insolvent or is generally not paying its
debts as they become due;
(D) Any involuntary lien, garnishment, attachment attaches to
the Financed Receivables or any Collateral or the service of process
upon Bank seeking to attach, by mesne or trustee process any funds
of Borrower on deposit with Bank;
(E) Borrower breaches any covenant, agreement, warranty, or
representation set forth in this Agreement or any other agreement
between Borrower and Bank is an immediate Event of Default;
(F) Borrower is in default, after the expiration of all
applicable notice and cure periods, under any document, instrument
or agreement evidencing any debt, obligation or liability in favor
of Bank its affiliates or vendors regardless of whether the debt,
obligation or liability is direct or indirect, primary or secondary,
or fixed or contingent;
(G) An event of default occurs and continues after the
expiration of all applicable notice and cure periods under any
guaranty of the Obligations or any material provision of any
guaranty is not valid or enforceable or a guaranty is repudiated or
terminated;
(H) A material default or Event of Default occurs under any
agreement between Borrower and any creditor of Borrower that signed
a subordination agreement with Bank, insofar as Borrower has had
opportunity to cure such default and has failed to do so;
(I) Any creditor that has signed a subordination agreement
with Bank breaches any terms of the subordination agreement; or
(J) Any of the following occurs:(i) A material impairment in
the perfection or priority of Bank's security interest in the
Collateral or in the value of such Collateral; (ii) a material
adverse change in the business, operations, or condition (financial
or otherwise) of the Borrower occurs; or (iii) a material impairment
of the prospect of repayment of any portion of the Obligations; or
(iv) Bank determines, based upon information available to it and in
its reasonable judgment, that there is a reasonable likelihood that
Borrower shall fail to comply with one or more of the financial
covenants in Section 6.3 during the next succeeding financial
reporting period.
10. REMEDIES.
10.1. REMEDIES UPON DEFAULT. When an Event of Default occurs and for so
long as such Event of Default has not been cured, (1) Bank may stop financing
receivables or extending credit to Borrower; (2) at Bank's option and on demand,
all or a portion of the Obligations (or, for to an Event of Default described in
Section 9(B), automatically and without demand) are due and payable in full; (3)
the Bank may 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; (4) Bank may exercise all rights and remedies under this
Agreement and applicable law, including those of a secured party under the Code,
power of attorney rights in Section 5 for the Collateral, and the
right to ship, reclaim, recover, store, finish, maintain, repair, prepare for
sale, advertise for sale, collect, dispose of, sell, lease, use, and realize
upon all Financed Receivables and Collateral in any commercial manner; and (5)
Bank may make any payments and do any acts that are reasonably necessary to
protect its security interest in the Collateral. Borrower shall assemble the
Collateral if Bank requests 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. Borrower
agrees that any notice of sale required to be given to Borrower is deemed given
if at least five (5) days before the sale may be held.
10.2. 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 guaranties held by Bank on which
Borrower is liable.
10.3. DEFAULT RATE. If any amount is not paid when due, the amount bears
interest at the Applicable Rate plus five percent until the earlier of (a)
payment in good funds or (b) entry of a final judgment when the principal amount
of any money judgment will accrue interest at the highest rate allowed by law.
11. FEES, COSTS AND EXPENSES. The Borrower will pay on demand all fees, costs
and expenses (including attorneys' and professionals fees with costs and
expenses) that Bank incurs from: (a) preparing, negotiating, administering, and
enforcing this Agreement or related agreement, including any amendments, waivers
or consents, (b) any litigation or dispute relating to the Financed Receivables,
the Collateral, this Agreement or any other agreement, (c) enforcing any rights
against Borrower or any guarantor, or any Account Debtor, (d) protecting or
enforcing its interest in the Financed Receivables or other Collateral, (e)
collecting the Financed Receivables and the Obligations, and (f) any bankruptcy
case or insolvency proceeding involving Borrower, any Financed Receivable, the
Collateral, any Account Debtor.
12. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. This Agreement shall be
construed, governed, and enforced pursuant to the laws (without regard to
conflict of law principles) of The Commonwealth of Massachusetts. Borrower and
Bank each submits to the exclusive jurisdiction of the State and Federal courts
in Suffolk County, Massachusetts.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT 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.
13. NOTICES. Notices or demands by either party about this Agreement must be in
writing and personally delivered or sent by an overnight delivery service, by
certified mail postage prepaid return receipt requested, or by FAX to the
addresses listed at the beginning of this Agreement. A party may change notice
address by written notice to the other party.
14. GENERAL PROVISIONS.
14.1. SUCCESSORS AND ASSIGNS. This Agreement binds and is for the benefit
of 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 may, without the consent of or
notice to Borrower, sell, transfer, or grant participation in any part of Bank's
obligations, rights or benefits under this Agreement.
14.2. INDEMNIFICATION. Borrower will indemnify, defend and hold harmless
Bank and its officers, employees, and agents against: (a) obligations, demands,
claims, and liabilities asserted by any other party in connection with the
transactions contemplated by this Agreement; and (b) losses or expenses
incurred, or paid by Bank from 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.
14.3. RIGHT OF SET-OFF. Borrower and any guarantor hereby grant to Bank, a
lien, security interest and right of setoff as security for all Obligations to
Bank, whether now existing or hereafter arising upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Bank or any entity under the control of Silicon Valley
Bank or in transit to any of them. At any time after the occurrence and during
the continuance of an Event of Default, without demand or notice, Bank may set
off the same or any part thereof and apply the same to any liability or
obligation of Borrower and any guarantor even though unmatured and regardless of
the adequacy of any other collateral securing the loan. ANY AND ALL RIGHTS TO
REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH
RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER OR ANY
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
14.4. TIME OF ESSENCE. Time is of the essence for performance of all
obligations in this Agreement.
14.5. SEVERABILITY OF PROVISION. Each provision of this Agreement is
severable from every other provision in determining the enforceability of any
provision.
14.6. AMENDMENTS IN WRITING, INTEGRATION. All amendments to this Agreement
must be in writing. This Agreement is the entire agreement about this subject
matter and supersedes prior negotiations or agreements.
14.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts and when executed
and delivered are one Agreement.
14.8. REMEDIES CUMULATIVE. Bank's rights and remedies under this
Agreement, or any other documents, instruments and agreement by and between
Borrower and Bank are cumulative. Bank has all rights and remedies provided
under the Code, by law, or in equity. Bank's exercise of one right 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
hereunder shall be effective unless signed by Bank and then is only effective
for the specific instance and purpose for which it was given.
14.9. SURVIVAL. All covenants, representations and warranties made in this
Agreement continue in force while any Financed Receivable amount remains
outstanding. Borrower's indemnification obligations survive until all statutes
of limitations for actions that may be brought against Bank have run.
14.10. CONFIDENTIALITY. Bank will use the same degree of care handling
Borrower's confidential information that it uses for its own confidential
information, but may disclose information; (i) to its subsidiaries or affiliates
in connection with their business with Borrower, (ii) to prospective transferees
or purchasers of any interest in the Agreement, (iii) as required by law,
regulation, subpoena, or other order, (iv) as required in connection with an
examination or audit and (v) as it considers appropriate exercising the remedies
under this Agreement. Confidential information does not include information that
is either: (a) in the public domain or in Bank's possession when disclosed, or
becomes part of the public domain after disclosure to Bank; or (b) disclosed to
Bank by a third party, if Bank does not know that the third party is prohibited
from disclosing the information.
14.11. OTHER AGREEMENTS. This Agreement may not adversely affect Banks
rights under any other document or agreement. If there is a conflict between
this Agreement and any agreement between Borrower and Bank, Bank may determine
in its sole discretion which provision applies. Borrower acknowledges that any
security agreements, liens and/or security interests securing payment of
Borrower's Obligations also secure Borrower's Obligations under this Agreement
and are not adversely affected by this Agreement. Additionally, (a) any
Collateral under other agreements or documents between Borrower and Bank secures
Borrowers Obligations under this Agreement and (b) a default by Borrower under
this Agreement is a default under agreements between Borrower and Bank.
EXECUTED under seal as of the date first written above.
GREENFIELD ONLINE, INC.
By ___________________________________
Title ________________________________
SILICON VALLEY BANK
By____________________________________
Title ________________________________
EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest in
and to the following:
All goods, equipment, inventory, contract rights or rights to
payment of money, leases, license agreements, franchise agreements, general
intangibles (including payment intangibles), accounts (including health-care
receivables), documents, instruments (including any promissory notes), chattel
paper (whether tangible or electronic), cash, deposit accounts, fixtures,
letters of credit rights (whether or not the letter of credit is evidenced by a
writing), commercial tort claims, securities, and all other investment property
supporting obligations, and financial assets, whether now owned or hereafter
acquired, wherever located; and
Any copyright rights, copyright applications, copyright
registrations and like protections in each work of authorship and derivative
work, whether published or unpublished, now owned or later acquired; any
patents, trademarks, service marks and applications therefor; trade styles,
trade names, any trade secret rights, including any rights to unpatented
inventions, know-how, operating manuals, license rights and agreements and
confidential information, now owned or hereafter acquired; or any claims for
damages by way of any past, present and future infringement of any of the
foregoing; and
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, attachments, accessories, accessions and improvements to and
replacements, products, proceeds and insurance proceeds of any or all of the
foregoing.
EXHIBIT "B"
(SILICON VALLEY BANK LOGO)
SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
1. Compliance Certificate
I, as authorized officer of Greenfield Online, Inc. ("Borrower") certify under
the Accounts Receivable Financing Agreement (the "Agreement") between Borrower
and Silicon Valley Bank ("Bank") as follows.
BORROWER REPRESENTS AND WARRANTS FOR EACH FINANCED RECEIVABLE:
It is the owner with legal right to sell, transfer and assign it;
The correct amount is on the Invoice Transmittal and is not disputed;
Payment is not contingent on any obligation or contract and it has
fulfilled all its obligations as of the Invoice Transmittal date;
It is based on an actual sale and delivery of goods and/or services
rendered, due to Borrower, it is not past due or in default, has not been
previously sold, assigned, transferred, or pledged and is free of any liens,
security interests and encumbrances;
There are no defenses, offsets, counterclaims or agreements for which the
Account Debtor may claim any deduction or discount;
It reasonably believes no Account Debtor is insolvent or subject to any
Insolvency Proceedings;
It has not filed or had filed against it proceedings and does not
anticipate any filing;
Bank has the right to endorse and/ or require Borrower to endorse all
payments received on Financed Receivables and all proceeds of Collateral.
No representation, warranty or other statement of Borrower in any
certificate or written statement given to Bank contains any untrue statement of
a material fact or omits to state a material fact necessary to make the
statement contained in the certificates or statement not misleading.
ADDITIONALLY, BORROWER REPRESENTS AND WARRANTS AS FOLLOWS:
Borrower 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. The execution, delivery and performance of this Agreement has
been duly authorized, and do not conflict with Borrower's formations 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.
Borrower has good title to the Collateral. All inventory is in all
material respects of good and marketable quality, free from material defects.
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 X,
T and U of the Federal Reserve Board of Governors). Borrower has complied with
the Federal Fair Labor Standards Act. Borrower has not violated any laws,
ordinances or rules. None of Borrower's properties or assets has been used by
Borrower, to the best of Borrower's knowledge, by previous persons, in
disposing, producing, storing, treating, or transporting any hazardous substance
other than legally. Borrower has timely filed all required tax returns and paid,
or made adequate provision to pay, all taxes. Borrower 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.
All representations and warranties in the Agreement are true and correct
in all material respects on this date.
Sincerely,
SIGNATURE
TITLE
DATE
Schedule of Permitted Indebtedness
(none)
Schedule of Permitted Liens
(See Equipment Schedules No. 39 and No. 44 to the Lease Agreement dated
September 15, 1999 between Somerset Capital Group, Ltd. and Greenfield Online,
Inc.)
Schedule 6.2(c)
On September 29, 2000, Greenfield Online entered into a license with Onyx
Software (the "Onyx License") to license CRM software with license and
maintenance fees of $394,836.75. The Company has determined that the Onyx
Software does not contain the functionality represented and has requested via
letter dated January 15, 2001, that Onyx agree to a rescission of the Onyx
License. By letter dated January 9, 2001, (received by the Company on January
16, 2001) Onyx made demand for the payment of the Onyx License in full on or
before February 9, 2001, or it will "pursue all remedies afforded to it under
law". On June 8, 2001, Onyx served the Company with a complaint in the Superior
Court of Washington for Kings County alleging breach of contract and unjust
enrichment and demanded recovery of $439,206.41 for products and professional
services rendered. The Company believes it has meritorious defenses to this
action and has filed an Answer with Special Defenses as well as a Counterclaim
On August 28, 2000, NPD Group, Inc., notified Greenfield Online, Inc.,
that it believed that Greenfield Online had violated its patent number
6,070,145, issued to NPD on May 30, 2000. NPD claims that the patent covers the
solicitation of persons over the Internet to take surveys via a pop-up window.
Although a license agreement has been proposed by NPD, Greenfield Online
maintains the position that the patent is unenforceable and continues to
investigate prior art.
By Complaint dated August 6, 1999 and Amended on September 23, 1999, and filed
in the U.S. District Court for the Western district of New York, Xxxxxx
Interactive, Inc., filed a 5 count complaint against Greenfield Online, Inc. The
Amended Complaint seeks to have Greenfield Online, Inc.'s Service Xxxx "Research
Revolution" cancelled and seeks a declaratory judgment that Xxxxxx Interactive
is not infringing the xxxx (Count One), seeks monetary damages for alleged
defamatory statements made by an officer of Greenfield Online concerning Xxxxxx
Interactive's business practices (Count Two), seeks monetary damages for
allegedly disparaging remarks made by a Greenfield Online Officer concerning
Xxxxxx Interactive's business practices (Count Three), seeks monetary damages
for Greenfield Online's allegedly intentional interference with contractual
relationships (Count Four) and seeks monetary damages for Greenfield Online's
allegedly unfair competition. The parties are in the process of substantive
settlement negotiations, and have exchanged draft settlement agreements. No
anticipated settlement will result in any monetary payment from Borrower. On
December 7, 2000, the District Court, acting on its own motion, dismissed the
case without prejudice.
On June 19, 2001 the Company was notified by counsel for a former
employee, Xxxx Xxxxxxx, that Xx. Xxxxxxx intended to assert claims against the
Company for his alleged "constructive discharge" due to the Company's failure to
make reasonable accommodations for disabilities suffered by Xx. Xxxxxxx. The
Company is alleged to have violated Connecticut General Statute 46a-60 and the
American's With Disabilities Act. The Company believes that these claims are
without merit and has replied to Xx. Xxxxxxx'x attorney denying each and every
claim.
On June 21, 2001 the Company was notified by counsel for a former
employee, Xxxx Xxxxx, that Xx. Xxxxx intends to pursue claims in the California
courts for damages allegedly suffered by Xx. Xxxxx in connection with his
termination from employment. Xx. Xxxxx alleges that (i) he was induced to incur
relocation expenses to initiate a move of his personal residence from California
to Connecticut, and that the Company promised to compensate Xx. Xxxxx for these
expenses, (ii) that he was not paid accrued vacation pay in violation of
California law, (iii) that his wife, relying on his continued employment with
the Company reduced her work hours to prepare for the move and start a family
resulting in lost family income. Xx. Xxxxx claims a cash payment of $32,000 plus
6 months salary and an extension of the time in which he may exercise his vested
Company stock options. The Company has yet to form an opinion regarding the
validity of such claims.
On July 17, 2001 the Company was contacted by the law firm of Xxxxxxxx,
Xxxxx & Xxxx on behalf of Xxxxx Fin, Inc., a public relations firm which the
Company had engaged to render public relations services in 2000. Xxxxx Fin
claims an outstanding balance due of $25,000 as a monthly retainer due under a
written contract for the month of January, 2001, as well as $6,024 in expenses.
The Company disputes the claim on the basis that Xxxxx Fin and the Company
agreed that when the Company terminated Xxxxx Fin's engagement, Xxxxx Fin agreed
that the Company would be released from its obligations under the contract if it
paid its $25,000 retainer fee for the months of November and December of 2000.
The Company paid these amounts. The Company disputes the expenses claimed on the
basis that some were not pre-approved and that others were for ineffective
services. The Company has paid $2,855.65 of expenses it deems to be valid.
On July 13, 2001, the Company received a claim from Xxxxxxx.xxx, Inc.,
("Neopets"), that it was owed $25,000 as a fee for recruiting individuals to
become panelists in the Greenfield Online panel. It is the Company's position
that it does not owe Neopets any fees for the recruiting it did between 1/1/01
and 3/21/01, due to the fact that the vast majority of the recruits it received
from Neopets were received on March 17, 2001 and were the creation of a hacker.
The remaining recruits are also invalid as they have not activated their
accounts.
In May, 1998, Cybergold notified Greenfield Online that it believed that
Greenfield Online had violated its patent number 5,749,210, issued to Cybergold
for negatively induced solicitations, claiming that this patent covered paying
people to participate in surveys online. Although Cybergold proposed a license
agreement, Greenfield Online took the position that it did not infringe this
patent, and took no further action with respect to Cybergold. Since March of
1999 there has been no contact between Cybergold and Greenfield Online.
SCHEDULE 6.4(D)
AFFILIATED TRANSACTIONS
MANAGEMENT BUYOUT AND LEVERAGED RECAPITALIZATION TRANSACTION
On May 17, 1999, our management team and a group of new investors executed a
management buyout of our company in which approximately 97% of our outstanding
common stock at the time was acquired by Greenfield Holdings, a company formed
specifically to execute the management buyout, and other investors. The
transaction involved a series of agreements:
- Stock Purchase, Sale and Redemption Agreement. Under this agreement,
Greenfield Holdings purchased securities for a purchase price of
$8,863,548, which, adjusted for stock splits and reflecting the conversion
to common, gave them 21,855,150 shares of our common stock.
- Promissory Note. Under this note, Greenfield Holdings loaned us $14,136,452
that we used in part to redeem 94.5% of outstanding stock then owned by one
of our founders, Xxxxxx Xxxxxxxxxx. This note is still outstanding as of
July 31, 2001, and is due on the earlier of its stated Maturity of May 17,
2009 or the occurrence of certain mandatory prepayment events as stated in
the note.
- Stock Purchase, Consent and Waiver Agreement. We used a portion of the
proceeds of the loan granted to us by Greenfield Holdings to loan Xx.
Xxxxxx, our Chairman, President and Chief Executive Officer, and Xx. Xxxxx,
our Chief Technology Officer, $425,075 and $75,013, respectively, to allow
them to purchase Xx. Xxxxxxxxxx'x remaining shares of common stock.
Adjusted for stock splits and reflecting the conversion to common, the
purchase gave them 1,048,050 and 184,950 shares, respectively, of our
common stock as of March 3, 2000. We have the right to repurchase this
stock for its original purchase price from either one of Xx. Xxxxxx or Xx.
Xxxxx if his employment terminates for any reason. The restrictions on the
stock lapse and the stock becomes vested 25% one year after the management
buyout and 12.5% each six-month period thereafter until four years have
expired. For Xx. Xxxxx, the expiration of these restrictions will
accelerate on 50% of his stock if we sell the stock or all or substantially
all of the assets of our company. The stock purchased by Messrs. Nadilo and
Xxxxx is pledged to us to secure the repayment of their loans.
- Amendment to Xxxxx and Nadilo Promissory Note / Stock Redemption. In March
of 2000, the Company and Messrs. Nadilo and Xxxxx agreed to convert the
promissory notes described above from non-recourse notes to recourse notes.
Simultaneously with the closing of the Silicon Valley Facility, the Company
intends to convert both such notes back from recourse notes into
non-recourse notes. On April 30, 2001, Xxxx Xxxxxx resigned his position of
Chairman, president and CEO of Greenfield Online, Inc., and agreed to
transfer and convey all of the shares of the
Company's stock held by him in consideration for the Company's forgiveness
of the debt evidenced by the note. The Company intends to redeem Xx.
Xxxxxx'x stock via the forgiveness of this debt immediately following the
closing of the Silicon Valley Bank Facility and the amendment of Xx.
Xxxxxx'x note.
NEW OFFICER LOANS
In March of 2001, the Company advanced additional loans to Xx. Xxxxx in an
amount up to $56,285. The proceeds of this loan were to be used by Xx.
Xxxxx solely to purchase member units of Greenfield Holdings, LLC. The
proceeds of the sale of member units by Greenfield Holdings, LLC (including
the proceeds from the sale of the member units to Xx. Xxxxx) were used to
purchase Greenfield Holding's pro-rata portion of the Company's Series A
Preferred Stock offering. As security for the repayment of the loans, Xx.
Xxxxx will pledge the member units purchased with the loan proceeds.
AGREEMENTS WITH XXXXXX XXXXXXXXXX AND AFFILIATED ENTITIES
We are party to a number of agreements with Xxxxxx Xxxxxxxxxx, a founder of our
company, and with Greenfield Consulting Group, Digital Idea, Inc. and Strategic
Focus, Inc., all entities controlled by Xx. Xxxxxxxxxx. The agreements are:
- Forfeiture Agreement. Under this agreement, made as part of our Stock
Purchase, Sale and Redemption Agreement with Greenfield Holdings when we
redeemed 94.5% of Xx. Xxxxxxxxxx'x stock, he agreed that if Greenfield
Consulting Group did not refer a minimum of $2,500,000 of online research
business to us by May 17, 2001, he would be subject to forfeiting up to
493,200 shares of common stock determined on a sliding scale based on the
actual business referred.
- Non-competition Agreement. Under this agreement, made as part of our Stock
Purchase, Sale and Redemption Agreement with Greenfield Holdings, Xx.
Xxxxxxxxxx agreed that, until March 17, 2002, he will not be employed by,
own an interest in, or finance any company that provides quantitative or
qualitative research over the Internet. Xx. Xxxxxxxxxx was granted the
individual right to conduct qualitative marketing research over the
Internet as long as he used our services exclusively, provided our services
were available on fair and reasonable terms as measured by industry custom.
- Greenfield Consulting Group Agreement. In December 1999, we entered into a
two-year agreement in which Digital Idea agreed to purchase, at reduced
rates, qualitative and quantitative market research data from us. Under
this agreement, we agreed not to enter into any exclusive provider
arrangement with any other Internet-focused strategic consulting services
company in the marketing services category.
STOCK OPTION GRANT TO DIRECTOR
On September 17, 1999, as compensation for a speaking engagement, we granted to
Xx. Xxxxxxx, one of our directors, an option to purchase 10,500 shares of our
common stock at $0.51 per share. These options vested immediately upon issuance
and have been exercised.
NOTE AND WARRANT PURCHASE AGREEMENT WITH GREENFIELD HOLDINGS
On March 3, 2000, we entered into a Note and Warrant Purchase Agreement with
Greenfield Holdings, our largest shareholder. Greenfield Holdings agreed to loan
us up to $5 million at an interest rate of 10% per year for working capital
purposes. This loan matured on August 23, 2000 and was retired by conversion
into Class B Stock of the Company.
NOTE PURCHASE AGREEMENTS WITH AFFILIATED ENTITIES
On January 18, 2001 the Company entered into a Note Purchase Agreement with the
Purchasers listed therein to sell up to $1,500,000 of the Company's 10%
Convertible Notes. These Notes were amended by Amendment No. 1 dated February 1,
2001 to extend their maturity dates. The Purchasers are affiliated entities
On February 7, 2001 the Company entered into a Note Purchase Agreement with the
Purchasers listed therein to sell up to $1,500,000 of the Company's 10%
Convertible Notes. The Purchasers are affiliated entities
On June 28, 2001 the Company entered into a Note Purchase Agreement with the
Purchasers listed therein to sell up to $2,500,000 of the Company's June 2001
10% Notes. These Notes were amended by Amendment No. 1 dated September 17, 2001
to add an optional conversion feature and a provisional extension of their
maturity dates. The Purchasers are affiliated entities.
On September 17, 2001 the Company entered into a Note Purchase Agreement with
the Purchasers listed therein to sell up to $2,500,000 of the Company's
September 2001 10% Notes. These Notes contain and optional conversion feature as
well as provisional extension of their maturity dates. The Purchasers are
affiliated entities.
SALE OF SERIES A PREFERRED STOCK
On March 1, 2001 the Company entered into a Series A Preferred Stock Purchase
Agreement and related agreements for the sale of up to $12,000,000 of the
Company's Series A Preferred Stock. The Company's 10% Convertible Notes issued
in January and February of 2001 were used as partial consideration. Some of the
Investors under the Purchase Agreement were affiliated entities.
FIRST LOAN MODIFICATION AGREEMENT
This First Loan Modification Agreement (this "Loan Modification
Agreement") is entered into as of September 24, 2001, by and between SILICON
VALLEY BANK, a California-chartered bank, with its principal place of business
at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production
office located at One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East"
("Bank") and GREENFIELD ONLINE, INC., a Delaware corporation with its principal
place of business at 00 Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000 ("Borrower").
1. DESCRIPTION OF EXISTING INDEBTEDNESS. Among other obligations and
indebtedness which may be owing by Borrower to Bank, Borrower is indebted to
Bank pursuant to a loan arrangement dated as of August 9, 2001, evidenced by,
among other documents, a certain Accounts Receivable Financing Agreement dated
as of August 9, 2001 (as amended, the "Loan Agreement"). Capitalized terms used
but not otherwise defined herein shall have the same meaning as in the Loan
Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Obligations".
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the
Collateral as described in the Loan Agreement and a certain Intellectual
Property Security Agreement dated August 9, 2001 (the "IP Agreement") (the
"Security Documents").
Hereinafter, the Security Documents, together with all other documents
evidencing or securing the Obligations shall be referred to as the "Existing
Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
Modifications to Loan Agreement.
The Loan Agreement shall be amended by deleting the following definition
appearing in Section 1 thereof:
""FACILITY AMOUNT" is Four Million Dollars ($4,000,000.00)."
and inserting in lieu thereof the following:
""FACILITY AMOUNT" is (i) prior to the occurrence of an Audit
Event, One Million Eight Hundred Seventy-Five Thousand Dollars
($1,875,000.00) or (ii) after the occurrence of an Audit
Event, Four Million Dollars ($4,000,000.00)."
The Loan Agreement shall be amended by adding the following definition
alphabetically in Section 1 thereof:
""AUDIT EVENT" is the receipt by Bank of an audit of
Borrower's Collateral satisfactory to Bank (in its sole
discretion) in all respects."
The Loan Agreement shall be amended by deleting Section 6.3 (L) and (M) thereof
and inserting in lieu thereof the following:
"(L) INTENTIONALLY OMITTED.
(M) Borrower shall have EBITDA of not less than $1.00 for the
month ending September 30, 2001 and each month thereafter.
Notwithstanding the foregoing, Borrower may have one (1) month
thereafter of EBITDA losses not to exceed $50,000.00."
4. COLLATERAL AUDIT. Borrower acknowledges and agrees that in accordance with
Bank's right to audit Borrower's Collateral as set forth in Section 6.3(K) of
the Loan Agreement, Borrower will provide Bank access to its financial records
so that Bank may audit Borrower's Collateral on or before December 1, 2001.
5. FEES. Borrower shall reimburse Bank for all legal fees and expenses incurred
in connection with this amendment to the Existing Loan Documents.
6. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
7. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and
reaffirms all terms and conditions of all security or other collateral granted
to the Bank, and confirms that the indebtedness secured thereby includes,
without limitation, the Obligations.
8. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has no
defenses against the obligations to pay any amounts under the Obligations.
9. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
existing Obligations, Bank is relying upon Borrower's representations,
warranties, and agreements, as set forth in the Existing Loan Documents. Except
as expressly modified pursuant to this Loan Modification Agreement, the terms of
the Existing Loan Documents remain unchanged and in full force and effect.
Bank's agreement to modifications to the existing Obligations pursuant to this
Loan Modification Agreement in no way shall obligate Bank to make any future
modifications to the Obligations. Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Obligations. It is the intention of Bank
and Borrower to retain as liable parties all makers of Existing Loan Documents,
unless the party is expressly released by Bank in writing. No maker will be
released by virtue of this Loan Modification Agreement.
10. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
properties, unconditionally, the non-exclusive jurisdiction of any state or
federal court of competent jurisdiction in the Commonwealth of Massachusetts in
any action, suit, or proceeding of any kind against it which arises out of or by
reason of this Loan Modification Agreement; provided, however, that if for any
reason Bank cannot avail itself of the courts of the Commonwealth of
Massachusetts, then venue shall lie in Santa Xxxxx County, California.
NOTWITHSTANDING THE FOREGOING, THE BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION
OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION WHICH THE BANK DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE
ON THE COLLATERAL OR TO OTHERWISE ENFORCE THE BANK'S RIGHTS AGAINST THE BORROWER
OR ITS PROPERTY.
11. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank (provided, however,
in no event shall this Loan Modification Agreement become effective until signed
by an officer of Bank in California).
[The remainder of this page is intentionally left blank]
This Loan Modification Agreement is executed as a sealed instrument under
the laws of the Commonwealth of Massachusetts as of the date first written
above.
GREENFIELD ONLINE, INC. SILICON VALLEY BANK
By: By:
------------------------------------ --------------------------------
Name: Xxxxxxxx X. Xxxxxx Name:
---------------------------------- ------------------------------
Title: Secretary Title:
--------------------------------- -----------------------------
SECOND LOAN MODIFICATION AGREEMENT
This Second Loan Modification Agreement (this "Loan Modification
Agreement") is entered into as of September 24, 2001, by and between SILICON
VALLEY BANK, a California-chartered bank, with its principal place of business
at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production
office located at One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East"
("Bank") and GREENFIELD ONLINE, INC., a Delaware corporation with its principal
place of business at 00 Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000 ("Borrower").
1. DESCRIPTION OF EXISTING INDEBTEDNESS. Among other obligations and
indebtedness which may be owing by Borrower to Bank, Borrower is indebted to
Bank pursuant to a loan arrangement dated as of August 9, 2001, evidenced by,
among other documents, a certain Accounts Receivable Financing Agreement dated
as of August 9, 2001 (as amended, the "Loan Agreement"). Capitalized terms used
but not otherwise defined herein shall have the same meaning as in the Loan
Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Obligations".
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the
Collateral as described in the Loan Agreement and a certain Intellectual
Property Security Agreement dated August 9, 2001 (the "IP Agreement") (the
"Security Documents").
Hereinafter, the Security Documents, together with all other documents
evidencing or securing the Obligations shall be referred to as the "Existing
Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
Modifications to Loan Agreement.
The Loan Agreement shall be amended by adding the following
definitions alphabetically in Section 1 thereof:
""CONTINGENT GUARANTEE" is a guarantee of all
Obligations to the Bank remaining due under the Facility
after Bank has exercised all of its rights in and
recourse to the Collateral."
""INVESTORS" are all holders of the June 2001 10% Notes
and the September 2001 10% Notes and their respective
subsidiaries and affiliates."
""JUNE 2001 10% NOTES" are those certain promissory
notes issued pursuant to a Note Purchase Agreement dated
June 28, 2001 between the Company and the Purchasers
listed therein.)."
""SEPTEMBER 2001 10% NOTES" are those certain promissory
notes issued pursuant to a Note Purchase Agreement dated
September 18, 2001 between the Company and the
Purchasers listed therein."
The Loan Agreement shall be amended by adding Section 9 (K):
"(K) The Borrower fails to deliver a Contingent
Guarantee in such form and content, and executed by such
Investors, as may be satisfactory to the Bank on or
before November 1, 2001."
4. FEES. Borrower shall reimburse Bank for all legal fees and expenses incurred
in connection with this amendment to the Existing Loan Documents.
5. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
6. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and
reaffirms all terms and conditions of all security or other collateral granted
to the Bank, and confirms that the indebtedness secured thereby includes,
without limitation, the Obligations.
7. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has no
defenses against the obligations to pay any amounts under the Obligations.
8. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
existing Obligations, Bank is relying upon Borrower's representations,
warranties, and agreements, as set forth in the Existing Loan Documents. Except
as expressly modified pursuant to this Loan Modification Agreement, the terms of
the Existing Loan Documents remain unchanged and in full force and effect.
Bank's agreement to modifications to the existing Obligations pursuant to this
Loan Modification Agreement in no way shall obligate Bank to make any future
modifications to the Obligations. Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Obligations. It is the intention of Bank
and Borrower to retain as liable parties all makers of Existing Loan Documents,
unless the party is expressly released by Bank in writing. No maker will be
released by virtue of this Loan Modification Agreement.
9. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
properties, unconditionally, the non-exclusive jurisdiction of any state or
federal court of competent jurisdiction in the Commonwealth of Massachusetts in
any action, suit, or proceeding of any kind against it which arises out of or by
reason of this Loan Modification Agreement; provided, however, that if for any
reason Bank cannot avail itself of the courts of the Commonwealth of
Massachusetts, then venue shall lie in Santa Xxxxx County, California.
NOTWITHSTANDING THE FOREGOING, THE BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION
OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION WHICH THE BANK DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE
ON THE COLLATERAL OR TO OTHERWISE ENFORCE THE BANK'S RIGHTS AGAINST THE BORROWER
OR ITS PROPERTY.
10. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank (provided, however,
in no event shall this Loan Modification Agreement become effective until signed
by an officer of Bank in California).
[The remainder of this page is intentionally left blank]
This Loan Modification Agreement is executed as a sealed instrument
under the laws of the Commonwealth of Massachusetts as of the date first written
above.
GREENFIELD ONLINE, INC. SILICON VALLEY BANK
By:___________________________________ By:____________________________________
Name:__Jonathan A. Flatow_____________ Name:__________________________________
Title:___Secretary____________________ Title:_________________________________
THIRD LOAN MODIFICATION AGREEMENT
This Third Loan Modification Agreement (this "Loan Modification
Agreement") is entered into as of ___________, 2002, by and between SILICON
VALLEY BANK, a California-chartered bank, with its principal place of business
at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production
office located at One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East"
("Bank") and GREENFIELD ONLINE, INC., a Delaware corporation with its principal
place of business at 00 Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000 ("Borrower").
1. DESCRIPTION OF EXISTING INDEBTEDNESS. Among other obligations and
indebtedness which may be owing by Borrower to Bank, Borrower is indebted to
Bank pursuant to a loan arrangement dated as of August 9, 2001, evidenced by,
among other documents, a certain Accounts Receivable Financing Agreement dated
as of August 9, 2001, as amended by a certain First Loan Modification Agreement
dated as of September 24, 2001, as affected by a certain Consent and Partial
Release dated December 21, 2001 and a certain Consent dated January 30, 2002, as
further amended by a certain Second Loan Modification Agreement dated as of
January 31, 2002 (as amended, the "Loan Agreement"). Capitalized terms used but
not otherwise defined herein shall have the same meaning as in the Loan
Agreement.
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the
Collateral as described in the Loan Agreement and a certain Intellectual
Property Security Agreement dated August 9, 2001 (the "IP Agreement") (the
"Security Documents").
Hereinafter, the Security Documents, together with all other documents
evidencing or securing the Obligations shall be referred to as the "Existing
Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
Modifications to Loan Agreement.
The Loan Agreement shall be amended by deleting the following
definition appearing in Section 1 thereof:
""FACILITY PERIOD" is the period beginning on this date
and continuing until one year from the date of this
Agreement, unless the period is terminated sooner by
Bank with notice to Borrower or by Borrower pursuant to
Section 4.3."
and inserting in lieu thereof the following:
""FACILITY PERIOD" is the period beginning on this date
and August 22, 2003, unless the period is terminated
sooner by Bank with notice to Borrower or by Borrower
pursuant to Section 4.3."
The Loan Agreement shall be amended by deleting Section 6.3 (M)
thereof and inserting in lieu thereof the following:
"(M) Borrower shall have EBITDA of not less than $1.00
for the month ending September 30, 2002 and each month
thereafter."
4. COLLATERAL AUDIT. Borrower acknowledges and agrees that in accordance with
Bank's right to audit Borrower's Collateral as set forth in Section 6.3(K) of
the Loan Agreement, Borrower will provide Bank access to its financial records
so that Bank may audit Borrower's Collateral on or before December 1, 2002.
5. FEES. Borrower shall pay to Bank a modification fee equal to Twenty Thousand
Dollars ($20,000.00), which fee shall be due on the date hereof and shall be
deemed fully earned as of the date hereof. Borrower shall also reimburse Bank
for all legal fees and expenses incurred in connection with this amendment to
the Existing Loan Documents.
6. RATIFICATION OF INTELLECTUAL PROPERTY SECURITY AGREEMENT. Borrower hereby
ratifies, confirms and reaffirms, all and singular, the terms and conditions of
the IP Agreement, and acknowledges, confirms and agrees that the IP Agreement
contains an accurate and complete listing of all Intellectual Property
Collateral as defined in said Intellectual Property Security Agreement.
7. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
8. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and
reaffirms all terms and conditions of all security or other collateral granted
to the Bank, and confirms that the indebtedness secured thereby includes,
without limitation, the Obligations.
9. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has no
defenses against the obligations to pay any amounts under the Obligations.
10. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
existing Obligations, Bank is relying upon Borrower's representations,
warranties, and agreements, as set forth in the Existing Loan Documents. Except
as expressly modified pursuant to this Loan Modification Agreement, the terms of
the Existing Loan Documents remain unchanged and in full force and effect.
Bank's agreement to modifications to the existing Obligations pursuant to this
Loan Modification Agreement in no way shall obligate Bank to make any future
modifications to the Obligations. Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Obligations. It is the intention of Bank
and Borrower to retain as liable parties all makers of Existing Loan Documents,
unless the party is expressly released by Bank in writing. No maker will be
released by virtue of this Loan Modification Agreement.
11. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
properties, unconditionally, the non-exclusive jurisdiction of any state or
federal court of competent jurisdiction in the Commonwealth of Massachusetts in
any action, suit, or proceeding of any kind against it which arises out of or by
reason of this Loan Modification Agreement; provided, however, that if for any
reason Bank cannot avail itself of the courts of the Commonwealth of
Massachusetts, then venue shall lie in Santa Xxxxx County, California.
NOTWITHSTANDING THE FOREGOING, THE BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION
OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION WHICH THE BANK DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE
ON THE COLLATERAL OR TO OTHERWISE ENFORCE THE BANK'S RIGHTS AGAINST THE BORROWER
OR ITS PROPERTY.
12. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank (provided, however,
in no event shall this Loan Modification Agreement become effective until signed
by an officer of Bank in California).
[The remainder of this page is intentionally left blank]
This Loan Modification Agreement is executed as a sealed instrument under
the laws of the Commonwealth of Massachusetts as of the date first written
above.
GREENFIELD ONLINE, INC. SILICON VALLEY BANK
By:___________________________________ By:____________________________________
Name:_________________________________ Name:__________________________________
Title:________________________________ Title:_________________________________
FOURTH LOAN MODIFICATION AGREEMENT
This Fourth Loan Modification Agreement (this "Loan Modification
Agreement") is entered into as of August 22, 2003, by and between SILICON VALLEY
BANK, a California-chartered bank, with its principal place of business at 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office
located at One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East"
("Bank") and GREENFIELD ONLINE, INC., a Delaware corporation with its principal
place of business at 00 Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000 ("Borrower").
1. DESCRIPTION OF EXISTING INDEBTEDNESS. Among other obligations and
indebtedness which may be owing by Borrower to Bank, Borrower is indebted to
Bank pursuant to a loan arrangement dated as of August 9, 2001, evidenced by,
among other documents, a certain Accounts Receivable Financing Agreement dated
as of August 9, 2001, as amended by a certain First Loan Modification Agreement
dated as of September 24, 2001, as affected by a certain Consent and Partial
Release dated December 21, 2001 and a certain Consent dated January 30, 2002, as
further amended by a certain Second Loan Modification Agreement dated as of
January 31, 2002, as further amended by a certain Third Loan Modification
Agreement dated September 26, 2002, as further affected by a certain Limited
Waiver dated August 6, 2003 (as amended, the "Loan Agreement"). Capitalized
terms used but not otherwise defined herein shall have the same meaning as in
the Loan Agreement
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the
Collateral as described in the Loan Agreement and a certain Intellectual
Property Security Agreements dated August 9, 2001 and September 26, 2002
(collectively, the "IP Agreement") (hereinafter, collectively, the "Security
Documents").
Hereinafter, the Security Documents, together with all other documents
evidencing or securing the Obligations shall be referred to as the "Existing
Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
Modifications to Loan Agreement.
Effective as of the date hereof, the Loan Agreement shall be amended
by deleting the definition of "Applicable Rate" appearing in
Section 1 thereof and inserting in lieu thereof the following:
""APPLICABLE RATE" is a per annum rate equal to the
Prime Rate plus one percent (1.00%)."
The Loan Agreement shall be amended by deleting the definition of
"Facility Period" appearing in Section 1 thereof and inserting
in lieu thereof the following:
""FACILITY PERIOD" is the period beginning on this date
and ending on August 22, 2005, unless the period is
terminated sooner by Bank with notice to Borrower or by
Borrower pursuant to Section 4.3."
The Loan Agreement shall be amended by deleting the definition of
"Minimum Finance Charge" appearing in Section 1 thereof and
inserting in lieu thereof the following:
""MINIMUM FINANCE CHARGE" is a minimum monthly Finance
Charge of $5,000.00 payable by Borrower to Bank."
The Loan Agreement shall be amended by deleting Section 4.3 thereof
and inserting in lieu thereof the following:
"4.3 EARLY TERMINATION OF AGREEMENT. This Agreement may
be terminated prior to the last day of the Facility
Period as follows: (i) by Borrower, effective three (3)
Business Days after written notice of termination is
given to Bank; or (ii) by Bank at any time after the
occurrence of an Event of Default, without notice,
effective immediately. If this Agreement is terminated
by Borrower or by Bank on or before the last day of the
Facility Period, Borrower shall pay to Bank a
termination fee in an amount equal to Ten Thousand
Dollars ($10,000.00). The termination fee (the "Early
Termination Fee") shall be due and payable on the
effective date of termination and thereafter shall bear
interest at a rate equal to the highest rate applicable
to any of the Obligations. Notwithstanding the
foregoing, Bank agrees to waive the Early Termination
Fee if Bank agrees to refinance and redocument this
Agreement under this or another division of Bank (in its
sole and exclusive discretion) prior to the last day of
the Facility Period."
The Loan Agreement shall be amended by deleting Section 6.3(D)(ii)
thereof and inserting in lieu thereof the following:
"(ii) audited consolidated financial statements prepared
under GAAP, consistently applied, together with an
unqualified opinion an opinion which is unqualified or
otherwise consented to by Bank on the financial
statements from an independent certified public
accounting firm acceptable to Bank, to be delivered to
Bank as soon as available, but no later than: (x)
September 30, 2003 for Borrower's fiscal year 2001
audited statements, (y) March 31, 2004 for Borrower's
fiscal year 2002 audited statements, and (z) one hundred
eighty (180) days after the end of Borrower's fiscal
year for each fiscal year thereafter.
The Loan Agreement shall be amended by deleting Section 6.3(K)
thereof and inserting in lieu thereof the following:
"(K) Borrower will allow Bank to audit the Collateral,
including, but not limited to, Borrower's Accounts, at
Borrower's expense, annually upon reasonable notice.
Provided, however, if an Event of Default has occurred,
Bank may audit the Collateral, including, but not
limited to, Borrower's Accounts, at Bank's sole and
exclusive discretion and without notification and
authorization from Borrower."
4. FEES. Borrower shall pay to Bank a modification fee equal to Fifteen Thousand
Dollars ($15,000.00) (the "Modification Fee"), which Modification Fee shall be
due on the date hereof and shall be deemed fully earned as of the date hereof.
Borrower shall also reimburse Bank for all legal fees and expenses incurred in
connection with this amendment to the Existing Loan Documents.
5. ACQUISITION FINANCING. Borrower and Bank acknowledge and agree that Borrower
is considering acquiring one or more entities or assets (the "Potential
Acquisitions") prior to the end of the Facility Period. Borrower has indicated
to Bank that it may seek to finance all or portions of any such Potential
Acquisitions with Bank (the "Acquisition Financing"). Bank agrees that in the
event that Bank is unwilling to provide to Borrower the Acquisition Financing
with respect to any Potential Acquisition proposed by Borrower during the
Facility Period, on terms reasonably acceptable to Borrower and Borrower elects
to terminate the Loan Agreement solely as a result of same, Bank will agree to
waive the Early Termination Fee and will refund a pro-rata portion of the
Modification Fee, up to $10,000, based upon the date of termination (for
example, termination after one year (August 22, 2004) would result in a
$7,500.00 refund of the Modification Fee and termination after 23 months (July
22, 2005) would result in a $625.00 refund of the Modification Fee). Nothing
contained herein shall be deemed to waive any rights
Bank has to consent to any such Potential Acquisition which is otherwise
prohibited by the terms of the Loan Agreement.
6. RATIFICATION OF INTELLECTUAL PROPERTY SECURITY AGREEMENT. Borrower hereby
ratifies, confirms and reaffirms, all and singular, the terms and conditions of
the IP Agreement, and acknowledges, confirms and agrees that, IP Agreement
contains an accurate and complete listing of all Intellectual Property
Collateral as defined in the IP Agreement.
7. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
8. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and
reaffirms all terms and conditions of all security or other collateral granted
to the Bank, and confirms that the indebtedness secured thereby includes,
without limitation, the Obligations.
9. NO DEFENSES OF BORROWER. Borrower hereby acknowledges and agrees that
Borrower has no offsets, defenses, claims, or counterclaims against Bank with
respect to the Obligations, or otherwise, and that if Borrower now has, or ever
did have, any offsets, defenses, claims, or counterclaims against Bank, whether
known or unknown, at law or in equity, all of them are hereby expressly WAIVED
and Borrower hereby RELEASES Bank from any liability thereunder.
10. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
existing Obligations, Bank is relying upon Borrower's representations,
warranties, and agreements, as set forth in the Existing Loan Documents. Except
as expressly modified pursuant to this Loan Modification Agreement, the terms of
the Existing Loan Documents remain unchanged and in full force and effect.
Bank's agreement to modifications to the existing Obligations pursuant to this
Loan Modification Agreement in no way shall obligate Bank to make any future
modifications to the Obligations. Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Obligations. It is the intention of Bank
and Borrower to retain as liable parties all makers of Existing Loan Documents,
unless the party is expressly released by Bank in writing. No maker will be
released by virtue of this Loan Modification Agreement.
11. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
properties, unconditionally, the non-exclusive jurisdiction of any state or
federal court of competent jurisdiction in the Commonwealth of Massachusetts in
any action, suit, or proceeding of any kind against it which arises out of or by
reason of this Loan Modification Agreement; provided, however, that if for any
reason Bank cannot avail itself of the courts of the Commonwealth of
Massachusetts, then venue shall lie in Santa Xxxxx County, California.
NOTWITHSTANDING THE FOREGOING, THE BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION
OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION WHICH THE BANK DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE
ON THE COLLATERAL OR TO OTHERWISE ENFORCE THE BANK'S RIGHTS AGAINST THE BORROWER
OR ITS PROPERTY.
12. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank.
[The remainder of this page is intentionally left blank]
This Loan Modification Agreement is executed as a sealed instrument under
the laws of the Commonwealth of Massachusetts as of the date first written
above.
GREENFIELD ONLINE, INC. SILICON VALLEY BANK
By:___________________________________ By:____________________________________
Name:_________________________________ Name:__________________________________
Title:________________________________ Title:_________________________________
