EXHIBIT 10.11
FIRST AMENDED AND RESTATED REVOLVING PROMISSORY NOTE
$15,000,000 ________, _______
November 13, 2004
FOR VALUE RECEIVED, the undersigned, Odimo Incorporated, a Delaware
corporation, Xxxxxxx.xxx, Inc., a Delaware corporation and D.I.A. Marketing,
Inc., a Florida corporation (each a "Borrower" and collectively, "Borrowers")
jointly and severally promise to pay to the order of Silicon Valley Bank, a
California-chartered bank ("Bank"), at such place as the holder hereof may
designate, in lawful money of the United States of America, the aggregate unpaid
principal amount of all advances ("Advances") made by Bank to Borrowers in
accordance with the terms and conditions of the Loan and Security Agreement
among Borrowers and Bank of even date herewith (as amended from time to time,
the "Loan Agreement"), up to a maximum principal amount of Fifteen Million
Dollars ($15,000,000) ("Principal Sum"), or so much thereof as may be advanced
or readvanced and remains unpaid.
The unpaid Principal Sum, together with interest thereon at the rate or
rates provided in the Loan Agreement, shall be payable as set forth in the Loan
Agreement.
The fact that the balance hereunder may be reduced to zero from time to
time pursuant to the Loan Agreement will not affect the continuing validity of
this Note or the Loan Agreement, and the balance may be increased to the
Principal Sum after any such reduction to zero.
Each Borrower further agrees that, if any payment made by any Borrower or
any other Person is applied to this Note and is at any time annulled, set aside,
rescinded, invalidated, declared to be fraudulent or preferential or otherwise
required to be refunded or repaid, or the proceeds of any property hereafter
securing this Note is required to be returned by Bank to Borrowers, its estate,
trustee, receiver or any other party, including, without limitation, such
Borrower, under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or repayment, Borrowers'
liability hereunder (and any lien, security interest or other collateral
securing such liability) shall be and remain in full force and effect, as fully
as if such payment had never been made, or, if prior thereto any such lien,
security interest or other collateral hereafter securing each Borrower's
liability hereunder shall have been released or terminated by virtue of such
cancellation or surrender, this Note (and such lien, security interest or other
collateral) shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the joint and several obligations of Borrowers in respect of
the amount of such payment (or any lien, security interest or other collateral
securing such obligation).
This Note is the "Replacement Promissory Note" described in that certain
First Loan Modification Agreement of even date herewith by and between the
Borrower and the Bank, which First Loan Modification Agreement amends the Loan
Agreement, to which reference is hereby made for a more complete statement of
the terms and conditions under which the Advances evidenced hereby are made.
This Note is secured as provided in the Loan Agreement. This Note increases,
amends and restates in its entirety that certain Revolving Promissory Note
dated July 31, 2004 from Borrower in favor of the Bank in the maximum principal
amount of Twelve Million Dollars ($12,000,000) (the "Prior Note"). It is
expressly agreed that the indebtedness evidenced by the Prior Note has not been
extinguished or discharged by this Note. All capitalized terms used herein and
not otherwise defined shall have the meanings given to such terms in the Loan
Agreement.
Each Borrower irrevocably waives the right to direct the application of
any and all payments at any time hereafter received by Bank from or on behalf of
each Borrower and each Borrower irrevocably agrees that Bank shall have the
continuing exclusive right to apply any and all such payments against the then
due and owing joint and several obligations of Borrowers as Bank may deem
advisable. In the absence of a specific determination by Bank with respect
thereto, all payments shall be applied in the following order: (a) then due and
payable fees and expenses; (b) then due and payable interest payments and
mandatory prepayments; and (c) then due and payable principal payments and
optional prepayments.
Bank is hereby authorized by each Borrower to endorse on Bank's books and
records each Advance made by Bank under this Note and the amount of each payment
or prepayment of principal of each such Advance received by Bank; it being
understood, however, that failure to make any such endorsement (or any error in
notation) shall not affect the joint and several obligations of Borrowers with
respect to Advances made hereunder, and payments of principal by Borrowers shall
be credited to Borrowers notwithstanding the failure to make a notation (or any
errors in notation) thereof on such books and records.
The occurrence of any one or more of the following events shall constitute
an event of default (individually, an "Event of Default" and collectively, the
"Events of Default") under the terms of this Note:
(a) The failure of any Borrower to pay to Bank when due any and all
amounts payable by any Borrower to Bank under the terms of this Note; or
(b) The occurrence of an Event of Default (as defined therein) under
the terms and conditions of any of the other Loan Documents.
Upon the occurrence of an Event of Default, at the option of Bank, all
amounts payable by Borrowers to Bank under the terms of this Note shall
immediately become due and payable by Borrowers to Bank without notice to any
Borrower or any other person, and Bank shall have all of the rights, powers, and
remedies available under the terms of this Note, any of the other Loan Documents
and all applicable laws. Each Borrower and all endorsers, guarantors, and other
parties who may now or in the future be primarily or secondarily liable for the
payment of the indebtedness evidenced by this Note hereby severally waive
presentment, protest and demand, notice of protest, notice of demand and of
dishonor and non-payment of this Note and expressly agree that this Note or any
payment hereunder may be extended from time to time without in any way affecting
the joint and several liability of Borrowers, guarantors and endorsers.
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Borrowers promise to pay all costs and expense of collection of this Note
and to pay all reasonable attorneys' fees incurred in such collection, whether
or not there is a suit or action, or in any suit or action to collect this Note
or in any appeal thereof. No delay by Bank in exercising any power or right
hereunder shall operate as a waiver of any power or right. Time is of the
essence as to all obligations hereunder.
This Note is issued pursuant to the Loan Agreement, which shall govern the
rights and obligations of Borrowers with respect to all obligations hereunder.
Each Borrower acknowledges and agrees that this Note shall be governed by
the laws of the State of Georgia, excluding conflicts of laws principles, even
though for the convenience and at the request of Borrowers, this Note may be
executed elsewhere.
EACH 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 STATE OF GEORGIA IN ANY ACTION, SUIT, OR
PROCEEDING OF ANY KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
AGREEMENT; PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF
THE COURTS OF GEORGIA, EACH BORROWER ACCEPTS JURISDICTION OF THE COURTS AND
VENUE IN SANTA XXXXX COUNTY, CALIFORNIA. EACH BORROWER AND BANK EACH HEREBY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY
RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL
INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH PARTY REPRESENTS AND
WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Borrowers have caused this Note to be executed under
seal by its duly authorized officers as of the date first written above.
WITNESS/ATTEST: ODIMO INCORPORATED
By: /s/ Xxxx Xxxxxx (SEAL)
------------------------------ -------------------------
Name: Xxxx Xxxxxx
Title: CEO
WITNESS/ATTEST: XXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxx (SEAL)
------------------------------ -------------------------
Name: Xxxx Xxxxxx
Title: President
WITNESS/ATTEST: D.I.A. MARKETING, INC.
By: /s/ Xxxx Xxxxxx (SEAL)
------------------------------ -------------------------
Name: Xxxx Xxxxxx
Title: President
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AFFIDAVIT OF OUT-OF-STATE EXECUTION AND DELIVERY
STATE OF ___________________
COUNTY OF _________________
THIS AFFIDAVIT OF OUT-OF-STATE EXECUTION AND DELIVERY is executed this ___ day
of November, 2004 by the undersigned, who after being duly sworn, deposes and
states under oath that:
1. The undersigned, as ___________________ of Odimo Incorporated, a
Delaware corporation, Xxxxxxx.xxx, Inc., a Delaware corporation and D.I.A.
Marketing, Inc., a Florida corporation (collectively, the "Company"), executed
each of (i) the First Amended and Restated Revolving Promissory Note of even
date herewith in the face principal amount of $15,000,000.00 in favor of Silicon
Valley Bank (the "Lender"), and (ii) the First Loan Modification Agreement of
even date herewith by and between the Company and the Lender, (collectively, the
"Amendment Documents").
The Amendment Documents were executed by the undersigned in the State of
_________, County of _______________, and then delivered via overnight delivery
to the Lender, at 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx X-00, Xxxxxxx, Xxxxxxx 00000,
Attn: Xxxxxx XxXxxxxxxx.
IN WITNESS WHEREOF, the undersigned has sworn to and subscribed this Affidavit
as of the date set forth above.
_____________________________________
Print Name:__________________________
_____________________________________
Print Name:__________________________
The foregoing instrument was acknowledged before me this ___ day of
November, 2004, by ___________________, who is personally known to me or who has
produced ________________________ as identification.
___________________________________
NOTARY PUBLIC
Print Name:________________________
Serial #:__________________________
My Commission Expires:_____________
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AFFIDAVIT OF OUT-OF-STATE RECEIPT OF DELIVERY
STATE OF _________________
COUNTY OF _______________
THIS AFFIDAVIT OF OUT-OF-STATE RECEIPT OF DELIVERY is executed this ___ day
of November, 2004, by ____________________, who after being duly sworn, deposes
and states under oath that:
1. I am the ____________________ of Silicon Valley Bank (the "Lender").
2. On the ___ day of __________, 2004, I accepted delivery, in __________,
Georgia, on behalf of the Lender of each of (i) the First Amended and Restated
Revolving Promissory Note in the face principal amount of $15,000,000.00
executed by Odimo Incorporated, a Delaware corporation, Xxxxxxx.xxx, Inc., a
Delaware corporation and D.I.A. Marketing, Inc., a Florida corporation
(collectively, the "Company") in favor of the Lender, and (ii) the First Loan
Modification Agreement by and between the Company and the Lender.
IN WITNESS WHEREOF, the undersigned has sworn to and subscribed this Affidavit
as of the date set forth above.
_____________________________________
Print Name: _________________________
_____________________________________
Print Name: _________________________
The foregoing instrument was acknowledged before me this ___ day of November,
2004, by __________________, who is personally known to me or who has produced
__________________________ as identification.
___________________________________
NOTARY PUBLIC
Print Name: _______________________
Serial #: _________________________
My Commission Expires: ____________
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