Exhibit 10.14
SECOND AMENDED AND RESTATED REVOLVING PROMISSORY NOTE
$12,000,000 ________, _______
January 7, 2005
FOR VALUE RECEIVED, the undersigned, Odimo Incorporated, a Delaware
corporation, ▇▇▇▇▇▇▇.▇▇▇, 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 Twelve Million
Dollars ($12,000,000) ("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aside, rescinded, invalidated, declared to be fraudulent or preferential or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 Second Loan Modification Agreement of even date herewith by and between
the Borrower and the Bank, which Second 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 Amended and Restated
Revolving Promissory Note dated November 13, 2004 from Borrower in favor of the
Bank in the maximum principal amount of Fifteen Million Dollars ($15,000,000)
(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 ▇▇▇▇▇ 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/ ▇▇▇▇ ▇▇▇▇▇▇ (SEAL)
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
WITNESS/ATTEST: ▇▇▇▇▇▇▇.▇▇▇, INC.
______________________________ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ (SEAL)
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
WITNESS/ATTEST: D.I.A. MARKETING, INC.
______________________________ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ (SEAL)
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
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