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EXHIBIT 10.34
SIGNATURE AUTHORIZATION
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BORROWER: WEBSIDESTORY, INC. LENDER: IMPERIAL BANK
10182 TELESIS COURT EMERGING GROWTH INDUSTRIES GROUP --
XXX XXXXX, XX 00000 SOUTHERN CALIFORNIA REGIONAL XXXXXX
000 X XXXXXX, XXXXX 000
XXX XXXXX, XX 00000-0000
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THIS SIGNATURE AUTHORIZATION IS ATTACHED TO AND BY THIS REFERENCE IS MADE A
PART OF EACH BORROWING RESOLUTION, DATED MARCH 27, 2000, AND EXECUTED IN
CONNECTION WITH A LOAN OR OTHER FINANCIAL ACCOMMODATIONS BETWEEN IMPERIAL BANK
AND WEBSIDESTORY, INC.
The individuals named below, any one acting alone, are hereby authorized and
appointed for and on behalf of Borrower from time to time to do any of the
following:
(1) To request advances of credit under the Agreement and to effect repayment
of any credit outstanding under the Agreement;
(2) To execute and deliver assignments, borrowing certificates, instruments,
schedules, reports, invoices, bills, shipping documents and such other
documents or certificates as may be necessary or appropriate under the
Agreement or any other agreement or instrument relating thereto or delivered in
connection therewith;
(3) To transfer and endorse to Bank in payment of Borrower's obligations to
Bank any checks, drafts, notes or other instruments payable to Borrower; and
(4) To do or perform any and all other acts or matters in any way relating to
any or all of the foregoing.
The undersigned individuals each further certifies that the specimen signatures
below are the genuine signatures of the individuals designated herein and that
their signatures shall be binding on Borrower until Bank receives written
notice of termination of the authority of any such designated individuals.
Signature:
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Name:
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Signature: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: XXXXXXX X. XXXXXXXXX
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Signature: /s/ Xxxx Xxxxxxxx
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Name: XXXX XXXXXXXX
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Signature: /s/ Xxxxxxx Xxxxxxxxx
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Name: XXXXXXX XXXXXXXXX
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THIS SIGNATURE AUTHORIZATION IS EXECUTED ON MARCH 27, 2000.
BORROWER:
WEBSIDESTORY, INC.
By: /s/ Xxxx Xxxxxxxx
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XXXX XXXXXXXX, PRESIDENT/CEO
By: /s/ Xxxxxxx Xxxxxxxxx
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XXXXXXX XXXXXXXXX, SVP
LENDER:
IMPERIAL BANK
By:
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AUTHORIZED OFFICER
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CORPORATE RESOLUTION TO BORROW
Principal Loan Date Maturity Loan No Call Collateral Account Officer Initials
$3,000,000.00 03-27-2000 04-02-2004 24 738000065 177
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Borrower: WEBSIDESTORY, INC. Lender: IMPERIAL BANK
10182 TELESIS COURT EMERGING GROWTH INDUSTRIES GROUP-
XXX XXXXX, XX 00000 SOUTHERN CALIFORNIA REGIONAL XXXXXX
000 X XXXXXX, XXXXX 000
XXX XXXXX, XX 00000-0000
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I, THE UNDERSIGNED SECRETARY OR ASSISTANT SECRETARY OF WEBSIDESTORY, INC. (THE
"CORPORATION"), HEREBY CERTIFY that the Corporation is organized and existing
under and by virtue of the laws of the State of California as a corporation for
profit, with its principal office at 00000 XXXXXXX XXXXX, XXX XXXXX, XX 00000,
and is duly authorized to transact business in the State of California.
I FURTHER CERTIFY that at a meeting of the Directors of the Corporation, duly
called and held on 4/10/2000, at which a quorum was present and voting, or by
other duly authorized corporate action in lieu of a meeting, the following
resolutions were adopted:
BE IT RESOLVED, that ANY TWO (2) of the following named officers, employees, or
agents of this Corporation, whose actual signatures are shown below:
NAMES POSITIONS ACTUAL SIGNATURES
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XXXX XXXXXXXX PRESIDENT/CEO /s/ Xxxx Xxxxxxxx
XXXXXXX XXXXXXXXX SENIOR VICE PRESIDENT/SECRETARY /s/ Xxxxxxx Xxxxxxxxx
acting for and on behalf of the Corporation and as its act and deed be, and
they hereby are, authorized and empowered:
BORROW MONEY. To borrow from time to time from Imperial Bank ("Lender"),
on such terms as may be agreed upon between the Corporation and Lender,
such sum or sums of money as in their judgment should be borrowed; however,
not exceeding at any one time the amount of THREE MILLION & 00/100 DOLLARS
($3,000,000.00), in addition to such sum or sums of money as may be
currently borrowed by the Corporation from Lender.
EXECUTE NOTES. To execute and deliver to Lender the promissory note or
notes, or other evidence of credit accomodations of the Corporation, on
Lender's forms, at such rates of interest and on such terms as may be
agreed upon, evidencing the sums of money so borrowed or any indebtedness
of the Corporation to Lender, and also to execute and deliver to Lender one
or more renewals, extensions, modifications, refinancings, consolidations,
or substitutions for one or more of the notes, any portion of the notes, or
any other evidence of credit accomodations.
GRANT SECURITY. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender, as security for the payment of
any loans or credit accomodations so obtained, any promissory notes so
executed (including any amendments to or modifications, renewals, and
extensions of such promissory notes), or any other or further indebtedness
of the Corporation to Lender at any time owing, however the same may be
evidenced, any property now or hereafter belonging to the Corporation or in
which the Corporation now or hereafter may have an interest, including
without limitation all real property and all personal property (tangible or
intangible) of the Corporation. Such property may be mortgaged, pledged,
transferred, endorsed, hypothecated, or encumbered at the time such loans
are obtained or such indebtedness is incurred, or at any other time or
times, and may be either in addition to or in lieu of any property
theretofore mortgaged, pledged, transferred, endorsed, hypothecated, or
encumbered.
EXECUTE SECURITY DOCUMENTS. To execute and deliver to Lender the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which may be required by
Lender, and which shall evidence the terms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are given;
and also to execute and deliver to Lender any other written instruments,
any chattel paper, or any other collateral, of any kind or nature, which
Lender may deem necessary or proper in connection with or pertaining to the
giving of the liens and encumbrances. Notwithstanding the foregoing, any
one of the above authorized persons may execute, deliver, or record
financing statements.
NEGOTIATE ITEMS. To draw, endorse, and discount with Lender all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness
payable to or belonging to the Corporation in which the Corporation may
have an interest, and either to receive cash for the same or to cause such
proceeds to be credited to the account of the Corporation with Lender, or
to cause such other disposition of the proceeds derived therefrom as they
may deem advisable.
FURTHER ACTS. In the case of lines of credit, to designate additional or
alternate individuals as being authorized to request advances thereunder,
and in all cases, to do and perform such other acts and things, to pay any
and all fees and costs, and to execute and deliver such other documents and
agreements, INCLUDING AGREEMENTS WAIVING THE RIGHT TO A TRIAL BY JURY, as
they may in their discretion deem reasonably necessary or proper in order
to carry into effect the provisions of these Resolutions. The following
person or persons currently are authorized to request advances and
authorize payments under the line of credit until Lender receives written
notice of revocation of their authority: XXXX XXXXXXXX, PRESIDENT/CEO; and
XXXXXXX XXXXXXXXX, COO/SECRETARY.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
Resolutions and performed prior to the passage of these Resolutions are hereby
ratified and approved, that these Resolutions shall remain in full force and
effect and Lender may rely on these Resolutions until written notice of their
revocation shall have been delivered to and received by Lender. Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
BE IT FURTHER RESOLVED, that the Corporation will notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (a) change in the name of the Corporation, (b)
change in the assumed business name(s) of the Corporation, (c) change in the
management of the Corporation, (d) change in the authorized signer(s), (e)
conversion of the Corporation to a new or different type of business entity, or
(f) change in any other aspect of the Corporation that directly or indirectly
relates to any agreements between the Corporation and Lender. No change in the
name of the Corporation will take effect until after Lender has been notified.
SIGNATURE AUTHORIZATION. An exhibit, titled "SIGNATURE AUTHORIZATION," is
attached to this Resolution and by this reference is made a part of this
Resolution just as if all the provisions, terms and conditions of the Exhibit
had been fully set forth in this Resolution.
I FURTHER CERTIFY that the officers, employees, and agents named above are duly
elected, appointed, or employed by or for the Corporation, as the case may be,
and occupy the positions set opposite their respective names; that the
foregoing Resolutions now stand of record on the books of the Corporation; and
that the Resolutions are in full force and effect and have not been modified or
revoked in any manner whatsoever. The Corporation has no corporate seal, and
therefore, no seal is affixed to this certificate.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND ON MARCH 27, 2000 AND ATTEST
THAT THE SIGNATURES SET OPPOSITE THE NAMES LISTED ABOVE ARE THEIR GENUINE
SIGNATURES.
CERTIFIED TO AND ATTESTED BY:
X /s/ illegible
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X ------------------------------------
NOTE: In case the Secretary or other certifying officer is designated by the
foregoing resolutions as one of the signing officers, it is advisable to have
this certificate signed by a second Officer or Director of the Corporation.
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CREDIT AGREEMENT
This Amended and Restated Credit Agreement ("Agreement") is made and entered
into on March 27, 2000, by and between WEBSIDESTORY, INC., a California
corporation ("Borrower") and IMPERIAL BANK, a California banking corporation,
("Bank").
Subject to the terms and conditions of this Agreement, any security agreement(s)
executed by Borrower in favor of Bank, any note(s) executed by Borrower in favor
of Bank, or any other agreements executed in conjunction therewith
(collectively, the "Loan Documents"), Bank shall make the loan(s) and or
advance(s)(individually a "Loan" and collectively "Loans") referred to below to
Borrower.
In consideration of mutual covenants and conditions hereof, the parties hereto
agree as follows:
1. AMOUNT AND TERMS OF CREDIT
1.01 REVOLVING CREDIT COMMITMENT.
(a) REVOLVING LINE OF CREDIT. Subject to the terms and conditions of this
Agreement, provided that no event of default then has occurred and is
continuing, Bank shall, upon Borrower's request make advances ("Revolving
Loans") to Borrower, for general corporate purposes, future capital equipment
expenditures and the issuance of letters of credit, in an amount not to exceed
$3,000,000 (the "Revolving Line of Credit") until April 2, 2001 (the "Revolving
Line of Credit Maturity Date"). Revolving Loans may be repaid and reborrowed,
provided that all outstanding principal and accrued interest on the Revolving
Loans shall be payable in full on the Revolving Line of Credit Maturity Date.
(b) EQUIPMENT DRAWS. Equipment draws, paid on an interest monthly basis,
made under the Revolving Line of Credit shall be converted to a term loan on
April 2, 2001, which shall provide for thirty-six (36) equal principal payments
plus interest as follows:
Equipment draws made under the Revolving Line of Credit may include up
to 100% of invoice value excluding soft costs, freight, and sales tax.
Each equipment advance shall require a detailed schedule of equipment
purchases and other expenses associated with each draw-down.
(c) REVOLVING NOTE. The interest rate, principal and interest payments,
maturity date and certain other terms of the Revolving Loan will be contained in
a promissory note dated the date of this agreement, as such may be amended or
replaced from time to time.
(d) LETTER OF CREDIT USAGE AND SUBLIMIT. Subject to availability under the
Revolving Line of Credit, at any time and from time to time from the date hereof
through the banking day immediately prior to the Revolving Line of Credit
Maturity Date, Bank shall issue for the account of Borrower such standby and
commercial letters of credit ("Letters of Credit") as Borrower may request,
which requests shall be made by delivering to Bank a duly executed
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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letter of credit application on Bank's standard form; provided, however, that
the outstanding and undrawn amounts under all such Letters of Credit (i) shall
not at any time exceed $360,000 ("Letter of Credit Sublimit") and (ii) shall be
deemed to constitute Revolving Loans for the purpose of calculating availability
under the Revolving Line of Credit. If the Revolving Line of Credit is not
renewed upon its maturity date, the Letters of Credit will be secured by
Imperial Bank Time Certificate of Deposits. All Letters of Credit shall be in
form and substance acceptable to Bank in its sole discretion and shall be
subject to the terms and conditions of Bank's form application and letter of
credit agreement and other agreements required by Bank. Borrower will pay all
usual issuance and other fees that Bank notifies Borrower will be charged for
issuing and processing Letters of Credit for Borrower.
(e) LATE CHARGE. If any installment payment, interest payment, principal
payment or principal balance due under the Revolving Line of Credit is
delinquent ten (10) or more days, Borrower agrees to pay Bank a late charge in
the amount of five percent (5%) of the payment so due and unpaid, in addition
to the payment; but nothing in this paragraph is to be construed as any
obligation on the part of the Bank to accept any past due payment or less than
the total unpaid principal balance after maturity. All payments, at Bank's sole
discretion, shall be applied first to any late charges owing, then to interest
and the remainder, if any, to principal.
(f) DEFAULT RATE. If an Event of Default occurs hereunder, then during
the continuance thereof at the Bank's option, the interest rate shall be five
percent (5%) per year in excess of the rate otherwise applicable.
(g) INTEREST CALCULATIONS. The term "Prime Rate" shall mean the rate that
the Bank has announced as its prime lending rate, which shall vary concurrently
with any change in the Prime Rate.
1.02 DOCUMENTATION FEE, COSTS AND EXPENSES. In addition to any other
amounts due, or to become due, concurrently with the execution hereof, Borrower
agrees to pay to Bank a documentation fee in the amount of $250, and all other
costs and expenses incurred by the Bank in the preparation of this Agreement,
the other Loan Documents and the perfection of any security interest granted to
Bank by Borrower.
1.03 COLLATERAL. Borrower shall grant or cause to be granted to Bank a
first priority lien on any and all personal property assets of Borrower which
is assigned or hereafter is assigned to Bank as security or in which Bank now
has or hereafter acquires a security interest or pursuant to the terms of any
security agreement, an intellectual property security agreement or otherwise as
security for all of Borrower's obligations to Bank, all as may be subject to
Section 5.03 hereof.
1.04 COLLECTION OF PAYMENTS. Borrower authorizes Bank to collect all
interest, fees, costs and/or expenses due under this Agreement by charging
Borrower's demand deposit account number 00-000-000 with Bank, or any other
demand deposit account maintained by Borrower with Bank, for the full amount
thereof. Should there be insufficient funds in any such demand deposit account
to pay all such sums when due, the full amount of such deficiency shall be
immediately due and payable by Borrower.
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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2. REPRESENTATIONS OF BORROWER
Borrower represents and warrants that:
2.01 Existence and Rights. Borrower is a corporation duly organized and
existing and in good standing under the laws of the state of California, which
shall survive at least five years beyond the maturity of any Loans hereunder;
Borrower is authorized and in good standing to do business in the state of its
incorporation; Borrower has the appropriate powers and adequate authority,
rights and franchises to own its property and to carry on its business as now
conducted, and is duly qualified and in good standing in each state in which the
character of the properties owned by it therein or the conduct of its business
makes such qualification necessary; and Borrower has the power and adequate
authority to make and carry out this Agreement. Borrower has no investment in
any other business entity unless specified in writing to Bank.
2.02 Agreement Authorized. The execution, delivery and performance of this
Agreement and the Loan Documents are duly authorized and do not require the
consent or approval of any governmental body or other regulatory authority; are
not in contravention of or in conflict with any law or regulation or any term or
provision of Borrower articles of incorporation, by-laws, or similar document as
the case may be, and this Agreement is the valid, binding and legally
enforceable obligation of Borrower in accordance with its terms; subject only to
bankruptcy, insolvency or similar laws affecting creditors rights generally.
2.03 No Conflict. The execution, delivery and performance of this
Agreement and the Loan Documents are not in contravention of or in conflict with
any agreement, indenture or undertaking to which Borrower is a party or by which
it or any of its property may be bound or affected, and do not cause any lien,
change or other encumbrance to be created or imposed upon any such property by
reason thereof.
2.04 Litigation. Except as disclosed in writing to Bank by Borrower, there
is no litigation or other proceeding pending or threatened against or affecting
Borrower which if determined adversely to Borrower or its interest would have a
material adverse effect on the financial condition of Borrower, and Borrower is
not in default with respect to any order, writ, injunction, decree or demand of
any court or other governmental or regulatory authority.
2.05 Financial Condition. The balance sheet of Borrower as of February 29,
2000, and the related profit and loss statement for the same period ended as of
that date, a copy of which has heretofore been delivered to Bank by Borrower,
and all other statements and data submitted in writing by Borrower to Bank in
connection with this request for credit are true and correct, and said balance
sheet truly presents the financial condition of Borrower as of the date thereof,
and has been prepared in accordance with generally accepted accounting
principles on a basis consistently maintained. Since such date there have been
no material adverse changes in the financial condition or business of Borrower.
Borrower has no knowledge of any liabilities, contingent or otherwise, at such
date not reflected in said balance sheet, and Borrower has not entered into any
special commitments or substantial contracts which are not reflected in said
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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balance sheet, other than in the ordinary and normal course of its business,
which may have a materially adverse effect upon its financial condition,
operations or business as now conducted.
2.06 TITLE TO ASSETS. Borrower has good title to its assets, and the same
are not subject to any liens or encumbrances other than those permitted by
Section 5.03 hereof.
2.07 TAX STATUS. Borrower has no liability for any delinquent state, local
or federal taxes, and, if Borrower has contracted with any government agency,
Borrower has no liability for renegotiation of profits.
2.08 TRADEMARKS, PATENTS. Borrower, as of the date hereof, possesses all
necessary trademarks, trade names, copyrights, patents, patent rights, and
licenses to conduct its business as now operated, without any known conflict
with the valid trademarks, trade names, copyrights, patents and license rights
of others.
2.09 REGULATION U. None of the proceeds of any Loan shall be used to
purchase or carry margin stock (as defined within Regulation U of the Board of
Governors of the Federal Reserve system).
2.10 ERISA. All defined benefit pension plans as defined in the Employees
Retirement Income Security Act of 1974, as amended ("ERISA"), of Borrower meet,
as of the date hereof, the minimum funding standards of Section 302 of ERISA,
and no Reportable Event or Prohibited Transaction as defined in ERISA has
occurred with respect to any such plan.
3. CONDITIONS PRECEDENT TO LOAN
Prior to Bank being obligated to make any Loan pursuant to this
Agreement, Bank must receive all of the following, each of which must be in
form and substance satisfactory to Bank:
3.01 PROMISSORY NOTE. Original, executed promissory note as applicable.
3.02 SECURITY AGREEMENT. Original, executed security agreement covering
the personal property collateral securing the Loan.
3.03 FINANCING STATEMENT. Financing statement executed by Borrower and any
grantor of a security interest.
3.04 INSURANCE. Borrower shall have delivered to Bank evidence of
insurance coverage required pursuant to that Agreement to Provide Insurance
executed by Borrower, in form, substance, amounts, covering risks and issued by
companies satisfactory to Bank, and where required by Bank, with Lenders Loss
Payable endorsement in favor of Bank.
3.05 ORGANIZATIONAL DOCUMENTS. Copies of the articles of incorporation,
or similar document as the case may be, of the Borrower.
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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3.06 Authorizations. Certified copies of all action taken by any Borrower
to authorize the execution, delivery and performance of the Loan Documents.
3.07 Good Standing. Good standing certificates from the appropriate
secretary of state of the state in which any Borrower is organized and in each
state in which it is required to be qualified to do business.
3.08 Warrants. Borrower to deliver to Bank a five year warrant to purchase
80,000 shares of common stock at an initial exercise price of $2.50 per share.
3.09 This Agreement executed by Borrower.
3.10 Additional Documents. Such other documents as Bank may reasonably
deem necessary.
4. AFFIRMATIVE COVENANTS OF BORROWER
Borrower agrees that so long as it is indebted to Bank, under borrowings, or
other indebtedness, or so long as Bank has any obligation to extend credit to
Borrower it will, unless Bank shall otherwise consent in writing:
4.01 Rights and Facilities. Maintain and preserve all rights, franchises
and other authority adequate for the conduct of its business; maintain its
properties, equipment and facilities in good order and repair; conduct its
business in an orderly manner without voluntary interruption and, if a
corporation or partnership, maintain and preserve its existence.
4.02 Use of Proceeds. Use the proceeds of the Loans only for purposes
specified in Section 1 of this Agreement.
4.03 Insurance. Maintain public liability, property damage and workers'
compensation insurance and insurance on all its insurable property against fire
and other hazards with responsible insurance carriers to the extent usually
maintained by similar businesses and/or in the exercise of good business
judgment, and as required by that Agreement to Provide Insurance executed by
Borrower, with the Bank to be shown as Lenders Loss Payee on such policies.
4.04 Taxes and Other Liabilities. Pay and discharge, before the same
become delinquent and before penalties accrue thereon, all taxes, assessments
and governmental charges upon or against it or any of its properties, and all
its other liabilities at any time existing, except to the extent and so long as:
(a) The same are being contested in good faith and by appropriate
proceedings in such manner as not to cause any materially adverse effect upon
its financial condition or the loss of any right of redemption from any sale
thereunder; and
(b) It shall have set aside on its books reserves (segregated to the
extent required by generally accepted accounting practice) deemed by it to be
adequate with respect thereto.
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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4.05 Records and Reports. Maintain a standard and modern system of
accounting in accordance with generally accepted accounting principles on a
basis consistently maintained; permit Bank's representatives to have access to,
and to examine its properties, books and records at all reasonable times and
upon reasonable notice during normal business hours; and furnish Bank:
(a) Monthly Financial Statement. As soon as available, and in any event
within thirty (30) days after the close of each month, a balance sheet, profit
and loss statement and reconciliation of Borrower's capital balance accounts as
of the close of such period and covering operations for the portion of
Borrower's fiscal year ending on the last day of such period, all in reasonable
detail and reasonably acceptable to Bank, in accordance with generally accepted
accounting principles on a basis consistently maintained by Borrower and
certified by an appropriate officer of Borrower.
(b) Annual Financial Statement. As soon as available, and in any event
within one hundred twenty (120) days after and as of the close of each fiscal
year of Borrower, a report of audit of Company, all in reasonable detail,
audited by an independent certified public accountant selected by Borrower and
reasonably acceptable to Bank, in accordance with generally accepted accounting
principles on a basis consistently maintained by Borrower and certified by an
appropriate officer of Borrower;
(c) Officer's Certificate. Within thirty (30) days after the end of each
month and fiscal year of Borrower, a certificate of the chief financial officer
of Borrower, stating that Borrower has performed and observed each and every
covenant contained in this Agreement to be performed by it and that no event has
occurred and no condition then exists which constitutes an event of default
hereunder or would constitute such an event of default upon the lapse of time or
upon the giving of notice and the lapse of time specified herein; or, if any
such event has occurred or any such condition exists, specifying the nature
thereof.
(d) Other Information. Such other information relating to the affairs of
Borrower as the Bank reasonably may request from time to time.
4.06 Minimum Liquidity. Maintain a Minimum Liquidity (defined as
unrestricted cash and cash equivalents plus eligible accounts receivable),
measured monthly only when Revolving Line of Credit is being utilized, of the
greater of (a) 1.50 times current liabilities and all Bank debit, or (b) three
months cash burn.
4.07 ERISA. Cause all defined benefit pension plans, as defined in ERISA,
of Borrower to, at all times, meet the minimum funding standards of Section 302
of ERISA, and ensure that no Reportable Event or Prohibited Transaction, as
defined in ERISA, will occur with respect to any such plan.
4.08 Laws. At all times comply with, or cause to be complied with, all
laws, statutes, rules, regulations, orders and directions of any governmental
authority having jurisdiction over Borrower or Borrower's business.
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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4.09 GAAP. Compliance with all financial covenants shall be calculated based on
generally accepted accounting principles applied on a consistent basis as
maintained by Borrower.
4.10 OPERATING ACCOUNTS. Maintain all primary accounts and banking relationship
with the Bank. Maintain, or cause to be maintained, on deposit with Bank,
non-interest bearing demand deposit balances sufficient to compensate Bank for
all services provided by Bank. Balances shall be calculated after reduction for
the reserve requirement of the Federal Reserve Board and uncollected funds. Any
deficiencies shall be charged directly to the Borrower on a monthly basis.
4.11 NOTICES. Promptly notify Bank in writing of (i) the occurrence of any
Event of Default hereunder or any event which upon notice and lapse of time
would be an Event of Default; (ii) all litigation affecting Borrower where the
amount is $500,000 or more; any substantial dispute which may exist between
Borrower and any governmental regulatory body or law enforcement authority; any
change in Borrower's name or principal place of business; or any other matter
which has resulted or might result in a material adverse change in Borrower's
financial condition or operations.
5. NEGATIVE COVENANTS OF BORROWER
Borrower agrees that so long as it is indebted to Bank, or so long as Bank has
any obligation to extend credit to Borrower, it will not, without Bank's
written consent:
5.01 TYPE OF BUSINESS. Make any substantial change in the character of its
business.
5.02 OUTSIDE INDEBTEDNESS. Create, incur, assume or permit to exist any
indebtedness for borrowed moneys other than Loans from the Bank except
obligations now existing as shown in the financial statement dated February 29,
2000, excluding those obligations being refinanced by Bank, or sell or
transfer, either with or without recourse, any accounts or notes receivable or
any moneys due or to become due.
5.03 LIENS AND ENCUMBRANCES. Create, incur, permit to exist, or assume any
mortgage, pledge, encumbrance, lien or charge of any kind upon any asset now
owned or hereafter acquired by it, other than liens for taxes not delinquent
and liens in Bank's favor and other than liens agreed to in writing by Bank.
5.04 LOANS, INVESTMENTS, SECONDARY LIABILITIES. Make any loans or advances to
any person or other entity other than in the ordinary and normal course of its
business as now conducted or make any investment in the securities of any
person or other entity other than the United States Government; or guarantee or
otherwise become liable upon the obligation of any person or other entity,
except by endorsement of negotiable instruments for deposit or collection in
the ordinary and normal course of its business.
5.05 ACQUISITION OR SALE OF BUSINESS; MERGER OR CONSOLIDATION. Purchase or
otherwise acquire the assets or business of any person or other entity; or
liquidate, dissolve, merge or consolidate, or commence any proceedings
therefor; or sell any assets except in the
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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ordinary and normal course of its business as now conducted; or sell, lease,
assign, or transfer any substantial part of its business or fixed assets, or any
property or other assets necessary for the continuance of its business as now
conducted, including without limitation the selling of any property or other
asset accompanied by the leasing back of the same.
5.06 DIVIDENDS AND DISTRIBUTIONS. Declare or pay any dividend or make any
other distribution on any of its capital stock now outstanding or hereafter
issued or purchase, redeem or retire any of such stock other than in dividends
or distributions payable in Borrower's capital stock, except for the repurchase
of Borrower's capital stock from officers, directors, employees or consultants
of Borrower upon termination of their employment with or rendering of service
to Borrower.
6. EVENTS OF DEFAULT
The occurrence of any of the following events of default ("Events of Default")
shall, at Bank's option, terminate Bank's commitment to lend and make all sums
of principal and interest then remaining unpaid on all Borrower's indebtedness
to Bank immediately due and payable, all without demand, presentment or notice,
all of which are hereby expressly waived:
6.01 FAILURE TO PAY. Failure to pay any installment of principal or of
interest on any indebtedness of Borrower to Bank within five (5) days of its
due date.
6.02 BREACH OF COVENANT. Failure of Borrower to perform any other term or
condition of this Agreement or any Loan Document binding upon Borrower.
6.03 BREACH OF WARRANTY. Any of Borrower's representations or warranties
made herein or any statement or certificate at any time given in writing
pursuant hereto or in connection herewith shall be false or misleading in any
respect.
6.04 INSOLVENCY; RECEIVER OR TRUSTEE. Borrower shall become insolvent; or
admit its inability to pay its debts as they mature; or make an assignment for
the benefit of creditors; or apply for or consent to the appointment of a
receiver or trustee for it or for a substantial part of its property or
business.
6.05 JUDGMENTS, ATTACHMENTS. Any money judgment in excess of $500,000,
writ or warrant of attachment, or similar process shall be entered or filed
against Borrower or any of its assets and shall remain unvacated, unbonded or
unstayed for a period of ten (10) days or in any event later than five (5) days
prior to the date of any proposed sale thereunder.
6.06 BANKRUPTCY. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors shall be instituted by or against Borrower and, if
instituted against it, shall not be dismissed within thirty (30) days
thereafter.
6.07 CESSATION OF BUSINESS. Borrower shall voluntarily suspend its
business.
Borrower's Name: WEBSIDESTORY, INC.
DATE: March 27, 2000
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6.08 ADVERSE CHANGE. Any change which, in the opinion of Bank, is
materially adverse to the financial condition of Borrower; or should Bank, for
any reason, believe that the prospect of Borrower's payment or performance
hereunder or under any other agreement or instrument with Bank be impaired.
6.09 IMPAIRMENT OF SECURITY. Bank in good xxxxx xxxxx itself insecure.
6.10 OTHER DEFAULTS. Borrower shall commit or do or fail to commit or do
any act or thing which would constitute an event of default under any of the
terms of any other agreement, document or instrument executed by it concerning
the obligation to pay money.
6.11 ADVANCES. Notwithstanding anything to the contrary contained herein,
Bank shall have no duty to make advances while any event of default exists
notwithstanding any cure period provided for herein.
6.12 RIGHT TO CURE. If any default, other than a default on indebtedness,
is curable, and if Borrower has not been given a prior notice of a breach of the
same provision of this agreement, it may be cured, (and no Event of Default will
have occurred), if Borrower, after Bank sends written notice demanding cure of
such default, (a) cures the default within ten (10) days, or (b) if the cure
requires more than ten (10) days, immediately initiates steps which Bank deems,
in Bank's sole discretion, to be sufficient to cure the default and thereafter
continues and completes all reasonable and necessary steps sufficient to produce
compliance as soon as reasonably practical.
7. MISCELLANEOUS PROVISIONS
7.01 FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of
Bank or any holder of notes issued hereunder, in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under this Agreement or any note(s) issued in
connection with a Loan that Bank may make hereunder, are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
7.02 COUNTERPARTS; ENTIRE AGREEMENT. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement. This Agreement, and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and amends and restates in full any prior agreements, written or oral, with
respect thereto.
7.03 ATTORNEY'S FEES. Borrower will pay promptly to Bank without demand
after notice, with interest thereon from the date of expenditure at the rate
applicable to the Loan, reasonable attorneys' fees and all costs and expenses
paid or incurred by Bank in collecting or compromising the Loan after the
occurrence of an Event of Default, whether or not suit is filed.
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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If suit is brought to enforce any provision of this Agreement, the prevailing
party shall be entitled to recover its reasonable attorneys' fees and court
costs in addition to any other remedy or recovery awarded by the court.
7.04 Additional Remedies. The rights, powers and remedies given to Bank
hereunder shall be cumulative and not alternative and shall be in addition to
all rights, powers and remedies given to Bank by law against Borrower or any
other person, including but not limited to Bank's rights of setoff or banker's
lien.
7.05 Inurement. The benefits of this Agreement shall inure to the
successors and assigns of Bank and the permitted successors and assigns of
Borrower.
7.06 Applicable Law. This Agreement and all other agreements and
instruments required by Bank in connection therewith shall be governed by and
construed according to the laws of the state of California, to the jurisdiction
of whose courts the parties hereby agree to submit.
7.07 Offset. In addition to and not in limitation of all rights of offset
that Bank or other holder of the Loan may have under applicable law, Bank or
other holder of any note issued hereunder shall, upon the occurrence of any
Event of Default or any event which with the passage of time or notice would
constitute such an Event of Default, have the right to appropriate and apply to
the payment of the Loan any and all balances, credits, deposits, accounts or
monies of Borrower then or thereafter with Bank or other holder, within ten (10)
days after the Event of Default, and notice of the occurrence of any Event of
Default by Bank to Borrower.
7.08 Severability. Should any one or more provisions of the Agreement be
determined to be illegal or unenforceable, all other provisions nevertheless
shall be effective.
7.09 Time of the Essence. Time is hereby declared to be of the essence of
this Agreement and of every part hereof.
7.10 Accounting. All accounting terms shall have the meanings applied
under generally accepted accounting principles unless otherwise specified.
7.11 Reference Provision.
(a) Other than (i) nonjudicial foreclosure and all matters in connection
therewith regarding security interests in real or personal property; or (ii) the
appointment of a receiver, or the exercise of other provisional remedies (any
and all of which may be initiated pursuant to applicable law), each controversy,
dispute or claim between the parties arising out of or relating to this Credit
Agreement, any security agreement executed by Borrower in favor of Bank or any
note executed by Borrower in favor of Bank or any other agreement or instrument
issued in favor of Bank by Borrower (collectively in this Section, the
"Agreement") which controversy, dispute or claim is not settled in writing
within thirty (30) days after the "Claim Date" (defined as the date on which a
party subject to this Agreement gives written notice to all other parties that a
controversy, dispute or claim exists), will be settled by a reference proceeding
in California in accordance with the
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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provisions of Section 638 et seq. of the California Code of Civil Procedure, or
their successor section ("CCP"), which shall constitute the exclusive remedy
for the settlement of any controversy, dispute or claim concerning this
Agreement, including whether such controversy, dispute or claim is subject to
the reference proceeding and except as set forth above, the parties waive their
rights to initiate any legal proceedings against each other in any court or
jurisdiction other than the Superior Court in the County where the Real
Property, if any, is located or Los Angeles County if none (the "Court"). The
referee shall be a retired Judge of the Court selected by mutual agreement of
the parties, and if they cannot so agree within forty-five (45) days after the
Claim Date, the referee shall be promptly selected by the Presiding Judge of
the Court (or his representative). The referee shall be appointed to sit as a
temporary judge, with all of the powers for a temporary judge, as authorized by
law, and upon selection should take and subscribe to the oath of office as
provided for in Rule 244 of the California Rules of Court (or any subsequently
enacted Rule). Each party shall have one peremptory challenge pursuant to CCP
Section 170.6. The referee shall (a) be requested to set the matter for hearing
within sixty (60) days after the date of selection of the referee and (b) try
any and all issues of law or fact and report a statement of decision upon them,
if possible, within ninety (90) days of the Claim Date. Any decision rendered
by the referee will be final, binding and conclusive and judgment shall be
entered pursuant to CCP Section 644 in any court in the state of California
having jurisdiction. Any party may apply for a reference proceeding at any time
after thirty (30) days following notice to any other party of the nature of the
controversy, dispute or claim, by filing a petition for a hearing and/or trial.
All discovery permitted by this Agreement shall be completed no later than
fifteen (15) days before the first hearing date established by the referee. The
referee may extend such period in the event of a party's refusal to provide
requested discovery for any reason whatsoever, including, without limitation,
legal objections raised to such discovery or unavailability of a witness due to
absence or illness. No party shall be entitled to "priority" in conducting
discovery. Depositions may be taken by either party upon seven (7) days written
notice, and request for production or inspection of documents shall be
responded to within ten (10) days after service. All disputes relating to
discovery which cannot be resolved by the parties shall be submitted to the
referee whose decision shall be final and binding upon the parties. Pending
appointment of the referee as provided herein, the Superior Court is empowered
to issue temporary and/or provisional remedies, as appropriate.
(b) Except as expressly set forth in this Agreement, the referee shall
determine the manner in which the reference proceeding is conducted including
the time and place of all hearings, the order of presentation of evidence, and
all other questions that arise with respect to the course of the reference
proceeding. All proceedings and hearings conducted before the referee, except
for trial, shall be conducted without a court reporter except that when any
party so requests, a court reporter will be used at any hearing conducted
before the referee. The party making such a request shall have the obligation
to arrange for and pay for the court reporter. The costs of the court reporter
at the trial shall be borne equally by the parties.
(c) The referee shall be required to determine all issues in accordance with
existing case law and the statutory laws of the state of California. The rules
of evidence applicable to proceedings at law in the state of California will be
applicable to the reference proceeding. The referee shall be empowered to enter
equitable as well as legal relief, to provide all temporary and/or provisional
remedies and to enter equitable orders that will be binding upon the parties.
The referee shall issue a single judgment at the close of the reference
proceeding which shall dispose of all of the claims of the parties that are the
subject of the reference. The parties hereto expressly reserve the right to
contest or appeal from the final judgment or any appealable order or appealable
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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(b) Except as expressly set forth in this Agreement, the referee shall
determine the manner in which the reference proceeding is conducted including
the time and place of all hearings, the order of presentation of evidence, and
all other questions that arise with respect to the course of the reference
proceeding. All proceedings and hearings conducted before the referee, except
for trial, shall be conducted without a court reporter except that when any
party so requests, a court reporter will be used at any hearing conducted
before the referee. The party making such a request shall have the obligation
to arrange for and pay for the court reporter. The costs of the court reporter
at the trial shall be borne equally by the parties.
(c) The referee shall be required to determine all issues in accordance with
existing case law and the statutory laws of the state of California. The rules
of evidence applicable to proceedings at law in the state of California will be
applicable to the reference proceeding. The referee shall be empowered to enter
equitable as well as legal relief, to provide all temporary and/or provisional
remedies and to enter equitable orders that will be binding upon the parties.
The referee shall issue a single judgment at the close of the reference
proceeding which shall dispose of all of the claims of the parties that are the
subject of the reference. The parties hereto expressly reserve the right to
contest or appeal from the final judgment or any appealable order or appealable
judgment entered by the referee. The parties hereto expressly reserve the right
to findings of fact, conclusions of laws, a written statement of decision, and
the right to move for a new trial or a different judgment, which new trial, if
granted, is also to be a reference proceeding under this provision.
(d) In the event that the enabling legislation which provides for appointment
of a referee is repealed (and no successor statute is enacted), any dispute
between the parties that would otherwise be determined by the reference
procedure herein described will be resolved and determined by arbitration. The
arbitration will be conducted by a retired judge of the Court, in accordance
with the California Arbitration Act, Section 1280 through Section 1294.2 of the
CCP as amended from time to time. The limitations with respect to discovery as
set forth hereinabove shall apply to any such arbitration proceeding.
7.12 This Agreement may be modified only by writing signed by all parties
hereto.
This Agreement is executed on behalf of the parties by duly authorized officers
as of the date first above written.
IMPERIAL BANK WEBSIDESTORY, INC.
("BANK") ("BORROWER")
By: /s/ Imperial Bank By:
----------------------- ---------------------------------
Xxxx Xxxxxxxx, President/CEO
By:
---------------------------------
Xxxxxxx Xxxxxxxxx, COO/Secretary
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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judgment entered by the referee. The parties hereto expressly reserve the right
to findings of fact, conclusions of laws, a written statement of decision, and
the right to move for a new trial or a different judgment, which new trial, if
granted, is also to be a reference proceeding under this provision.
(d) In the event that the enabling legislation which provides for
appointment of a referee is repealed (and no successor statute is enacted), any
dispute between the parties that would otherwise be determined by the reference
procedure herein described will be resolved and determined by arbitration. The
arbitration will be conducted by a retired judge of the Court, in accordance
with the California Arbitration Act, Section 1280 through Section 1294.2 of the
CCP as amended from time to time. The limitations with respect to discovery as
set forth hereinabove shall apply to any such arbitration proceeding.
7.12 This Agreement may be modified only by writing signed by all parties
hereto.
This Agreement is executed on behalf of the parties by duly authorized officers
as of the date first above written.
IMPERIAL BANK WEBSIDESTORY, INC.
("BANK") ("BORROWER")
By: By: /s/ Xxxx X. Xxxxxxxx
-------------------------------- ----------------------------------
Xxxx Xxxxxxxx, President/CEO
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Xxxxxxx Xxxxxxxxx, Senior Vice
President
Borrower's Name: WEBSIDESTORY, INC.
Date: March 27, 2000
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16
[LOGO OF IMPERIAL BANK]
PROMISSORY NOTE
PRINCIPAL LOAN DATE MATURITY LOAN NO. CALL COLLATERAL ACCOUNT OFFICER INITIALS
$3,000,000.00 03-27-2000 04-02-2004 24 738000065 177
----------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to
any particular loan or item.
----------------------------------------------------------------------------------------------------------------
BORROWER: WEBSIDESTORY, INC. LENDER: Imperial Bank
10182 TELESIS COURT Emerging Growth Industries Group -
XXX XXXXX, XX 00000 Southern California Regional Xxxxxx
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
================================================================================
PRINCIPAL AMOUNT: $3,000,000.00 INITIAL RATE: 9.250% DATE OF NOTE: March 27, 2000
PROMISE TO PAY. WEBSIDESTORY, INC. ("Borrower") promises to pay to Imperial
Bank ("Lender"), or order, in lawful money of the United States of America, the
principal amount of Three Million & 00/100 Dollars ($3,000,000.00) or so much
as may be outstanding, together with Interest on the unpaid outstanding
principal balance of each advance. Interest shall be calculated from the date
of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in accordance with the following payment
schedule:
Advances under the Note shall be available through April 2, 2001 (the
"Revolving Line of Credit Maturity Date"). Prior to such date, interest
only shall be due monthly beginning May 2, 2000. The outstanding
principal balance of the advances under the Note used for equipment
expenditures shall be payable monthly in 36 equal payments of principal
plus accrued interest beginning May 2, 2001. All principal and accrued
but unpaid interest for equipment expenditures shall in any event be
due and payable on or before April 2, 2004. All principal plus accrued
but unpaid interest for all other purposes shall be due and payable on
the Revolving Line of Credit Maturity Date.
The annual interest rate for this Note is computed on a 365/360 basis; that is,
by applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual
number of days the principal balance is outstanding. Borrower will pay Lender
at Lender's address shown above or at such other place as Lender may designate
in writing. Unless otherwise agreed or required by applicable law, payments
will be applied first to any unpaid collection costs and any late charges, then
to any unpaid interest, and any remaining amount to principal.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change
from time to time based on changes in an index which is the Imperial Bank Prime
Rate (the "Index"). The Prime Rate is the rate announced by Lender as its Prime
Rate of interest from time to time. Lender will tell Borrower the current index
rate upon Borrower's request. Borrower understands that Lender may make loans
based on other rates as well. The interest rate change will not occur more
often than each day. THE INDEX CURRENTLY IS 9.000%. THE INTEREST RATE TO BE
APPLIED TO THE UNPAID PRINCIPAL BALANCE OF THIS NOTE WILL BE AT A RATE OF 0.250
PERCENTAGE POINTS OVER THE INDEX, RESULTING IN AN INITIAL RATE OF 9.250%.
NOTICE: Under no circumstances will the interest rate on this Note be more than
the maximum rate allowed by applicable law.
PREPAYMENT; MINIMUM INTEREST CHARGE. Borrower agrees that all loan fees and
other prepaid finance charges are earned fully as of the date of the loan and
will not be subject to refund upon early payment (whether voluntary or as a
result of default), except as otherwise required by law. In any event, even
upon full prepayment of this Note, Borrower understands that Lender is entitled
to a minimum interest charge of $250.00. Other than Borrower's obligation to
pay any minimum interest charge, Borrower may pay without penalty all or a
portion of the amount owed earlier than it is due. Early payments will not,
unless agreed to by Lender in writing, relieve Borrower of Borrower's
obligation to continue to make payments of accrued unpaid interest. Rather,
they will reduce the principal balance due.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% of the unpaid portion of the regularly scheduled payment.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform
when due any other term, obligation, covenant, or condition contained in this
Note or any agreement related to this Note, or in any other agreement or loan
Borrower has with Lender. (c) Any representation or statement made or furnished
to Lender by Borrower or on Borrower's behalf is false or misleading in any
material respect either now or at the time made or furnished. (d) Borrower
becomes insolvent, a receiver is appointed for any part of Borrower's property,
Borrower makes an assignment for the benefit of creditors, or any proceeding is
commenced either by Borrower or against Borrower under any bankruptcy or
insolvency laws. (e) Any creditor tries to take any of Borrower's property on
or in which Lender has a lien or security interest. This includes a garnishment
of any of Borrower's accounts with Lender. (f) Any guarantor dies or any of the
other xxxxx described in this default section occurs with respect to any
guarantor of this Note. (g) A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or performance
of the indebtedness is impaired. (h) Lender in good xxxxx xxxxx itself insecure.
If any default, other than a default in payment, is curable and if Borrower has
not been given a notice of a breach of the same provision of this Note within
the preceding twelve (12) months, it may be cured (and no event of default will
have occurred) if Borrower, after receiving written notice from Lender
demanding cure of such default: (a) cures that default within ten (10) days; or
(b) if the cure requires more than ten (10) days, immediately initiates steps
which Lender deems in Lender's sole discretion to be sufficient to cure the
default and thereafter continues and completes all reasonable and necessary
steps sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon Borrower's failure to pay
all amounts declared due pursuant to this section, including failure to pay
upon final maturity, Lender, at its option, may also, if permitted under
applicable law, do one or both of the following: (a) increase the variable
interest rate on this Note to 5.250 percentage points over the Index, and (b)
add any unpaid accrued interest to principal and such sum will bear interest
therefrom until paid at the rate provided in this Note (including any increased
rate). Lender may hire or pay someone else to help collect this Note if
Borrower does not pay. Borrower also will pay Lender that amount. This
includes, subject to any limits under applicable law, Lender's attorneys' fees
and Lender's legal expenses whether or not there is a lawsuit, including
attorney's fees and legal expenses for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Borrower also will pay any court
costs, in addition to all other sums provided by law. THIS NOTE HAS BEEN
DELIVERED TO LENDER AND ACCEPTED BY LENDER IN THE STATE OF CALIFORNIA. IF THERE
IS A LAWSUIT, BORROWER AGREES UPON LENDER'S REQUEST TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF LOS ANGELES COUNTY, THE STATE OF CALIFORNIA.
LENDER AND BORROWER HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER LENDER OR BORROWER AGAINST THE
OTHER. (INITIAL HERE MC/JJH) THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
DISHONORED ITEM FEE. Borrower will pay a fee to the Lender of $25.00 if
Borrower makes a payment on Borrower's loan and the check or preauthorized
charge with which Borrower pays is later dishonored.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, conveys, delivers, pledges, and transfers to Lender all
Borrower's right, title and interest in and to, Borrower's accounts with Lender
(whether checking, savings, or some other account), including without
limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all XXX and Xxxxxx accounts,
and all trust accounts for which the grant of a security interest
would be prohibited by law. Borrower authorizes Lender, to the extent permitted
by applicable law, to charge or setoff all sums owing on this Note against any
and all such accounts.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under
this Note may be requested orally by Borrower or by an authorized person. All
oral requests shall be confirmed in writing on the day of the request. All
communications, instructions, or directions by telephone or otherwise to Lender
are to be directed to Lender's office shown above. The following party or
parties are authorized to request advances under the line of credit until
Lender receives from Borrower at Lender's address shown above written notice of
revocation of their authority: XXXX XXXXXXXX, PRESIDENT/CEO; AND XXXXXXX
XXXXXXXXX, COO/SECRETARY. Borrower agrees to be liable for all sums either: (a)
advanced in accordance with the instructions of an authorized person or (b)
credited to any of Borrower's accounts with Lender. The unpaid principal
balance owing on this Note at any time may be evidenced by endorsements on this
Note or by Lender's internal records, including daily computer print-outs.
Lender will have no obligation to advance funds under this Note if: (a)
Borrower or any guarantor is in default under the terms of this Note or any
agreement that Borrower or any guarantor has with Lender, including any
agreement made in connection with the signing of this Note; (b) Borrower or any
guarantor ceases doing business or is insolvent; (c) any guarantor seeks,
claims or otherwise attempts to limit, modify or revoke such guarantor's
guarantee of this Note or any other loan with Lender; (d) Borrower has applied
funds provided to this Note for purposes other than those authorized by Lender;
or
17
03-27-2000 PROMISSORY NOTE Page 2
(CONTINUED)
===============================================================================
(e) Lender in good xxxxx xxxxx itself insecure under this Note or any other
agreement between Lender and Borrower.
CREDIT AGREEMENT. This Note is subject to the provisions of the Credit
Agreement dated March 27, 2000, and all amendments thereto and replacements
therefor.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
any applicable statute of limitations, presentment, demand for payment, protest
and notice of dishonor. Upon any change in the terms of this Note, and unless
otherwise expressly stated in writing, no party who signs this Note, whether as
maker, guarantor, accommodation maker or endorser, shall be released from
liability. All such parties agree that Lender may renew or extend (repeatedly
and for any length of time) this loan, or release any party or guarantor or
collateral; or impair, fail to realize upon or perfect Lender's security
interest in the collateral; and take any other action deemed necessary by
Lender without the consent of or notice to anyone. All such parties also agree
that Lender may modify this loan without the consent of or notice to anyone
other than the party with whom the modification is made.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE.
BORROWER:
WEBSIDESTORY, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------- ---------------------------------
XXXX XXXXXXXX, PRESIDENT/CEO XXXXXXX XXXXXXXXX, SECRETARY AND SVP
===============================================================================
18
[IMPERIAL BANK LOGO]
IMPERIAL BANK
Member FDIC
DISBURSEMENT REQUEST AND AUTHORIZATION
---------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$3,000,000.00 03-27-2000 04-02-2004 24 738000065 177
---------------------------------------------------------------------------------------------------
References in the shade area are for Lender's use only and do not limit the applicability of this
document to any particular loan or item.
BORROWER: WEBSIDESTORY, INC. LENDER: IMPERIAL BANK
10182 TELESIS COURT EMERGING GROWTH INDUSTRIES GROUP --
XXX XXXXX, XX 00000 SOUTHERN CALIFORNIA REGIONAL XXXXXX
000 X XXXXXX, XXXXX 000
XXX XXXXX, XX 00000-0000
================================================================================
LOAN TYPE. This is a Variable Rate (0.250% over Imperial Bank Prime Rate,
making an initial rate of 9.250%) Revolving Line of Credit Loan to a
Corporation for $3,000,000.00 due on April 2, 2004.
PRIMARY PURPOSE OF LOAN. The primary purpose of this loan is for (please
initial)
[ ] ______ PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES OR PERSONAL INVESTMENT.
[X] ______ BUSINESS (INCLUDING REAL ESTATE INVESTMENT).
SPECIFIC PURPOSE. The specific purpose of this loan is: GENERAL CORPORATE
PURPOSES, FUTURE CAPITAL EQUIPMENT EXPENDITURES AND ISSUANCE OF LETTERS OF
CREDIT.
DISBURSEMENT INSTRUCTIONS. Borrower understands that no loan proceeds will be
disbursed until all of Lender's conditions for making the loan have been
satisfied. Please disburse the loan proceeds of $3,000,000.00 as follows:
AMOUNT PAID TO BORROWER DIRECTLY: $3,000,000.00
$3,000,000.00 Deposited to Account #00-000-000*
-------------
NOTE PRINCIPAL: $3,000,000.00
CHARGES PAID IN CASH. Borrower has paid or will pay in cash as agreed the
following charges:
PREPAID FINANCE CHARGES PAID IN CASH:
$250.000 Documentation Fee $250.00
-------------
TOTAL CHARGES PAID IN CASH: $250.00
INTERNATIONAL SUB-LIMITS. Subject to conditions and limitations as specified in
the Credit Agreement dated March 27, 2000, as it may be revised from time to
time. Proceeds are to be available and applied as required for international
transactions.
DISBURSEMENT PROVISION. *or by Cashier's Check or by wire transfer when
advances are requested.
AUTOMATIC PAYMENT. Borrower hereby authorizes Lender automatically to deduct
from Borrower's account numbered 00-000-000 the amount of any loan payment. If
the funds in the account are insufficient to cover any payment, Lender shall
not be obligated to advance funds to cover the payment,
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, BORROWER REPRESENTS AND
WARRANTS TO LENDER THAT THE INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND
THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN BORROWER'S FINANCIAL
CONDITION AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO LENDER.
THIS AUTHORIZATION IS DATED MARCH 27, 2000.
BORROWER:
WEBSIDESTORY, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------- ----------------------------------
XXXX XXXXXXXX, PRESIDENT/CEO XXXXXXX XXXXXXXXX, SVP
================================================================================
19
STATE OF CALIFORNIA UNIFORM COMMERCIAL CODE - FINANCING STATEMENT CHANGE - FORM UCC-2
----------------------------------------------------------------------------------------------------------------------------
This STATEMENT is presented for filing pursuant to the CALIFORNIA Uniform Commercial Code
----------------------------------------------------------------------------------------------------------------------------
1. FILE NO. OF ORIG. 1A. DATE OF FILING OF ORIG. 1B. DATE OF ORIG. 1C. PLACE OF FILING ORIG.
FINANCING STATEMENT FINANCING STATEMENT FINANCING STATEMENT FINANCING STATEMENT
9924560816 8-23-99 SACRAMENTO
----------------------------------------------------------------------------------------------------------------------------
2. DEBTOR (LAST NAME FIRST) 2A. SOCIAL SECURITY NO., FEDERAL TAX NO.
WEBSIDESTORY, INC., A CALIFORNIA CORPORATION 00-0000000
----------------------------------------------------------------------------------------------------------------------------
2B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
0000 XXXX XXXX., XXXXX X000 XXX XXXXX, XX. 00000
----------------------------------------------------------------------------------------------------------------------------
3. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST) 3A. SOCIAL SECURITY OR FEDERAL TAX NO.
----------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME IMPERIAL BANK
16-144/1222
MAILING ADDRESS 000 X XXXXXX, XXXXX 000
XXXX XXX XXXXX XXXXX XX ZIP CODE 92101-8120
----------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME
MAILING ADDRESS
CITY STATE ZIP CODE
----------------------------------------------------------------------------------------------------------------------------
6.
A [ ] CONTINUATION - The original Financing Statement between the foregoing Debtor and Secured Party bearing the file number
and date shown above is continued, if collateral is crops or timber, check here [ ] and insert description of real
property on which growing or to be grown in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
B [ ] RELEASE - From the collateral described in the Financing Statement bearing the file number shown above, the Secured
Party releases the collateral described in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
C [ ] ASSIGNMENT - The Secured Party certifies that the Secured Party has assigned to the Assignee above named, all the
Secured Party's rights under the Financing Statement bearing the file number shown above in the collateral described
in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
D [ ] TERMINATION - The Secured Party certifies that the Secured Party no longer claims a security interest under the
Financing Statement bearing the file number shown above.
----------------------------------------------------------------------------------------------------------------------------
E [X] AMENDMENT - The Financing Statement bearing the file number shown above is amended as set forth in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
F [ ] OTHER
----------------------------------------------------------------------------------------------------------------------------
7. CHANGE DEBTORS ADDRESS TO:
00000 XXXXXXX XXXXX
XXX XXXXX, XX. 00000
----------------------------------------------------------------------------------------------------------------------------
8. (Date) MARCH 27 2000 C 9. THIS SPACE FOR USE OF FILING OFFICER
------------------------------------ 0 (DATE, TIME, FILING OFFICE)
D
WEBSIDESTORY, INC. E
------------------------------------------------------------------------------
BY: /s/ Xxxxxxx Xxxxxxxxx SENIOR VICE PRESIDENT 1
-------------------------------------------------------------------------- 2
SIGNATURE(S) OF DEBTOR(S) (TITLE) 3
4
IMPERIAL BANK 5
------------------------------------------------------------------------------ 6
7
BY: 8
--------------------------------------------------------------------------- 9
SIGNATURE(S) OF SECURED PARTY(IES) (TITLE)
------------------------------------------------------------------------------
10. RETURN COPY TO
NAME IMPERIAL BANK-ACCT #P6-0001-070-6
ADDRESS LOAN DOCUMENTATION SERVICES
CITY AND 0000 X. XX XXXXXXX XXXX., XXXXX #000
XXXXX XXXXXXXXX, XX 00000
ATTN: XXXXXX XXXXXX
BR: 3805
Filing officer is requested to note date and
hour of filing on (3) Filing Officer Copy UNIFORM COMMERCIAL CODE-FORM UCC-2
Acknowledgement and return to the above party.
(1) Secured Party Copy
20
STATE OF CALIFORNIA UNIFORM COMMERCIAL CODE - FINANCING STATEMENT CHANGE - FORM UCC-2
----------------------------------------------------------------------------------------------------------------------------
This STATEMENT is presented for filing pursuant to the CALIFORNIA Uniform Commercial Code
----------------------------------------------------------------------------------------------------------------------------
1. FILE NO. OF ORIG. 1A. DATE OF FILING OF ORIG. 1B. DATE OF ORIG. 1C. PLACE OF FILING ORIG.
FINANCING STATEMENT FINANCING STATEMENT FINANCING STATEMENT FINANCING STATEMENT
9924560816 8-23-99 SACRAMENTO
----------------------------------------------------------------------------------------------------------------------------
2. DEBTOR (LAST NAME FIRST) 2A. SOCIAL SECURITY NO., FEDERAL TAX NO.
WEBSIDESTORY, INC., A CALIFORNIA CORPORATION 00-0000000
----------------------------------------------------------------------------------------------------------------------------
2B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
0000 XXXX XXXX., XXXXX X000 XXX XXXXX, XX. 00000
----------------------------------------------------------------------------------------------------------------------------
3. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST) 3A. SOCIAL SECURITY OR FEDERAL TAX NO.
----------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME IMPERIAL BANK
16-144/1222
MAILING ADDRESS 000 X XXXXXX, XXXXX 000
XXXX XXX XXXXX XXXXX XX ZIP CODE 92101-8120
----------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME
MAILING ADDRESS
CITY STATE ZIP CODE
----------------------------------------------------------------------------------------------------------------------------
6.
A [ ] CONTINUATION - The original Financing Statement between the foregoing Debtor and Secured Party bearing the file number
and date shown above is continued, if collateral is crops or timber, check here [ ] and insert description of real
property on which growing or to be grown in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
B [ ] RELEASE - From the collateral described in the Financing Statement bearing the file number shown above, the Secured
Party releases the collateral described in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
C [ ] ASSIGNMENT - The Secured Party certifies that the Secured Party has assigned to the Assignee above named, all the
Secured Party's rights under the Financing Statement bearing the file number shown above in the collateral described
in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
D [ ] TERMINATION - The Secured Party certifies that the Secured Party no longer claims a security interest under the
Financing Statement bearing the file number shown above.
----------------------------------------------------------------------------------------------------------------------------
E [X] AMENDMENT - The Financing Statement bearing the file number shown above is amended as set forth in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
F [ ] OTHER
----------------------------------------------------------------------------------------------------------------------------
7. CHANGE DEBTORS ADDRESS TO:
00000 XXXXXXX XXXXX
XXX XXXXX, XX. 00000
----------------------------------------------------------------------------------------------------------------------------
8. (Date) MARCH 27 2000 C 9. THIS SPACE FOR USE OF FILING OFFICER
------------------------------------ 0 (DATE, TIME, FILING OFFICE)
D
WEBSIDESTORY, INC. E
------------------------------------------------------------------------------
BY: /s/ Xxxxxxx Xxxxxxxxx SENIOR VICE PRESIDENT 1
-------------------------------------------------------------------------- 2
SIGNATURE(S) OF DEBTOR(S) (TITLE) 3
4
IMPERIAL BANK 5
------------------------------------------------------------------------------ 6
7
BY: 8
--------------------------------------------------------------------------- 9
SIGNATURE(S) OF SECURED PARTY(IES) (TITLE)
------------------------------------------------------------------------------
10. RETURN COPY TO
NAME IMPERIAL BANK-ACCT #P6-0001-070-6
ADDRESS LOAN DOCUMENTATION SERVICES
CITY AND 0000 X. XX XXXXXXX XXXX., XXXXX #000
XXXXX XXXXXXXXX, XX 00000
ATTN: XXXXXX XXXXXX
BR: 3805
Filing officer is requested to note date and
hour of filing on (3) Filing Officer Copy UNIFORM COMMERCIAL CODE-FORM UCC-2
Acknowledgement and return to the above party.
(2) Filing Officer Copy
21
STATE OF CALIFORNIA UNIFORM COMMERCIAL CODE - FINANCING STATEMENT CHANGE - FORM UCC-2
----------------------------------------------------------------------------------------------------------------------------
This STATEMENT is presented for filing pursuant to the CALIFORNIA Uniform Commercial Code
----------------------------------------------------------------------------------------------------------------------------
1. FILE NO. OF ORIG. 1A. DATE OF FILING OF ORIG. 1B. DATE OF ORIG. 1C. PLACE OF FILING ORIG.
FINANCING STATEMENT FINANCING STATEMENT FINANCING STATEMENT FINANCING STATEMENT
9924560816 8-23-99 SACRAMENTO
----------------------------------------------------------------------------------------------------------------------------
2. DEBTOR (LAST NAME FIRST) 2A. SOCIAL SECURITY NO., FEDERAL TAX NO.
WEBSIDESTORY, INC., A CALIFORNIA CORPORATION 00-0000000
----------------------------------------------------------------------------------------------------------------------------
2B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
0000 XXXX XXXX., XXXXX X000 XXX XXXXX, XX. 00000
----------------------------------------------------------------------------------------------------------------------------
3. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST) 3A. SOCIAL SECURITY OR FEDERAL TAX NO.
----------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME IMPERIAL BANK
16-144/1222
MAILING ADDRESS 000 X XXXXXX, XXXXX 000
XXXX XXX XXXXX XXXXX XX ZIP CODE 92101-8120
----------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME
MAILING ADDRESS
CITY STATE ZIP CODE
----------------------------------------------------------------------------------------------------------------------------
6.
A [ ] CONTINUATION - The original Financing Statement between the foregoing Debtor and Secured Party bearing the file number
and date shown above is continued, if collateral is crops or timber, check here [ ] and insert description of real
property on which growing or to be grown in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
B [ ] RELEASE - From the collateral described in the Financing Statement bearing the file number shown above, the Secured
Party releases the collateral described in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
C [ ] ASSIGNMENT - The Secured Party certifies that the Secured Party has assigned to the Assignee above named, all the
Secured Party's rights under the Financing Statement bearing the file number shown above in the collateral described
in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
D [ ] TERMINATION - The Secured Party certifies that the Secured Party no longer claims a security interest under the
Financing Statement bearing the file number shown above.
----------------------------------------------------------------------------------------------------------------------------
E [X] AMENDMENT - The Financing Statement bearing the file number shown above is amended as set forth in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
F [ ] OTHER
----------------------------------------------------------------------------------------------------------------------------
7. CHANGE DEBTORS ADDRESS TO:
00000 XXXXXXX XXXXX
XXX XXXXX, XX. 00000
----------------------------------------------------------------------------------------------------------------------------
8. (Date) MARCH 27 2000 C 9. THIS SPACE FOR USE OF FILING OFFICER
------------------------------------ 0 (DATE, TIME, FILING OFFICE)
D
WEBSIDESTORY, INC. E
------------------------------------------------------------------------------
BY: /s/ Xxxxxxx Xxxxxxxxx SENIOR VICE PRESIDENT 1
-------------------------------------------------------------------------- 2
SIGNATURE(S) OF DEBTOR(S) (TITLE) 3
4
IMPERIAL BANK 5
------------------------------------------------------------------------------ 6
7
BY: 8
--------------------------------------------------------------------------- 9
SIGNATURE(S) OF SECURED PARTY(IES) (TITLE)
------------------------------------------------------------------------------
10. RETURN COPY TO
NAME IMPERIAL BANK-ACCT #P6-0001-070-6
ADDRESS LOAN DOCUMENTATION SERVICES
CITY AND 0000 X. XX XXXXXXX XXXX., XXXXX #000
XXXXX XXXXXXXXX, XX 00000
ATTN: XXXXXX XXXXXX
BR: 3805
Filing officer is requested to note date and
hour of filing on (3) Filing Officer Copy UNIFORM COMMERCIAL CODE-FORM UCC-2
Acknowledgement and return to the above party.
(3) Filing Officer Copy Acknowledgement
22
STATE OF CALIFORNIA UNIFORM COMMERCIAL CODE - FINANCING STATEMENT CHANGE - FORM UCC-2
----------------------------------------------------------------------------------------------------------------------------
This STATEMENT is presented for filing pursuant to the CALIFORNIA Uniform Commercial Code
----------------------------------------------------------------------------------------------------------------------------
1. FILE NO. OF ORIG. 1A. DATE OF FILING OF ORIG. 1B. DATE OF ORIG. 1C. PLACE OF FILING ORIG.
FINANCING STATEMENT FINANCING STATEMENT FINANCING STATEMENT FINANCING STATEMENT
9924560816 8-23-99 SACRAMENTO
----------------------------------------------------------------------------------------------------------------------------
2. DEBTOR (LAST NAME FIRST) 2A. SOCIAL SECURITY NO., FEDERAL TAX NO.
WEBSIDESTORY, INC., A CALIFORNIA CORPORATION 00-0000000
----------------------------------------------------------------------------------------------------------------------------
2B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
0000 XXXX XXXX., XXXXX X000 XXX XXXXX, XX. 00000
----------------------------------------------------------------------------------------------------------------------------
3. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST) 3A. SOCIAL SECURITY OR FEDERAL TAX NO.
----------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME IMPERIAL BANK
16-144/1222
MAILING ADDRESS 000 X XXXXXX, XXXXX 000
XXXX XXX XXXXX XXXXX XX ZIP CODE 92101-8120
----------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME
MAILING ADDRESS
CITY STATE ZIP CODE
----------------------------------------------------------------------------------------------------------------------------
6.
A [ ] CONTINUATION - The original Financing Statement between the foregoing Debtor and Secured Party bearing the file number
and date shown above is continued, if collateral is crops or timber, check here [ ] and insert description of real
property on which growing or to be grown in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
B [ ] RELEASE - From the collateral described in the Financing Statement bearing the file number shown above, the Secured
Party releases the collateral described in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
C [ ] ASSIGNMENT - The Secured Party certifies that the Secured Party has assigned to the Assignee above named, all the
Secured Party's rights under the Financing Statement bearing the file number shown above in the collateral described
in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
D [ ] TERMINATION - The Secured Party certifies that the Secured Party no longer claims a security interest under the
Financing Statement bearing the file number shown above.
----------------------------------------------------------------------------------------------------------------------------
E [X] AMENDMENT - The Financing Statement bearing the file number shown above is amended as set forth in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
F [ ] OTHER
----------------------------------------------------------------------------------------------------------------------------
7. CHANGE DEBTORS ADDRESS TO:
00000 XXXXXXX XXXXX
XXX XXXXX, XX. 00000
----------------------------------------------------------------------------------------------------------------------------
8. (Date) MARCH 27 2000 C 9. THIS SPACE FOR USE OF FILING OFFICER
------------------------------------ 0 (DATE, TIME, FILING OFFICE)
D
WEBSIDESTORY, INC. E
------------------------------------------------------------------------------
BY: /s/ Xxxxxxx Xxxxxxxxx SENIOR VICE PRESIDENT 1
-------------------------------------------------------------------------- 2
SIGNATURE(S) OF DEBTOR(S) (TITLE) 3
4
IMPERIAL BANK 5
------------------------------------------------------------------------------ 6
7
BY: 8
--------------------------------------------------------------------------- 9
SIGNATURE(S) OF SECURED PARTY(IES) (TITLE)
------------------------------------------------------------------------------
10. RETURN COPY TO
NAME IMPERIAL BANK-ACCT #P6-0001-070-6
ADDRESS LOAN DOCUMENTATION SERVICES
CITY AND 0000 X. XX XXXXXXX XXXX., XXXXX #000
XXXXX XXXXXXXXX, XX 00000
ATTN: XXXXXX XXXXXX
BR: 3805
Filing officer is requested to note date and
hour of filing on (3) Filing Officer Copy UNIFORM COMMERCIAL CODE-FORM UCC-2
Acknowledgement and return to the above party.
(4) Debtor Copy
23
STATE OF CALIFORNIA UNIFORM COMMERCIAL CODE - FINANCING STATEMENT CHANGE - FORM UCC-2
----------------------------------------------------------------------------------------------------------------------------
This STATEMENT is presented for filing pursuant to the CALIFORNIA Uniform Commercial Code
----------------------------------------------------------------------------------------------------------------------------
1. FILE NO. OF ORIG. 1A. DATE OF FILING OF ORIG. 1B. DATE OF ORIG. 1C. PLACE OF FILING ORIG.
FINANCING STATEMENT FINANCING STATEMENT FINANCING STATEMENT FINANCING STATEMENT
9924560816 8-23-99 SACRAMENTO
----------------------------------------------------------------------------------------------------------------------------
2. DEBTOR (LAST NAME FIRST) 2A. SOCIAL SECURITY NO., FEDERAL TAX NO.
WEBSIDESTORY, INC., A CALIFORNIA CORPORATION 00-0000000
----------------------------------------------------------------------------------------------------------------------------
2B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
0000 XXXX XXXX., XXXXX X000 XXX XXXXX, XX. 00000
----------------------------------------------------------------------------------------------------------------------------
3. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST) 3A. SOCIAL SECURITY OR FEDERAL TAX NO.
----------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME IMPERIAL BANK
16-144/1222
MAILING ADDRESS 000 X XXXXXX, XXXXX 000
XXXX XXX XXXXX XXXXX XX ZIP CODE 92101-8120
----------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME
MAILING ADDRESS
CITY STATE ZIP CODE
----------------------------------------------------------------------------------------------------------------------------
6.
A [ ] CONTINUATION - The original Financing Statement between the foregoing Debtor and Secured Party bearing the file number
and date shown above is continued, if collateral is crops or timber, check here [ ] and insert description of real
property on which growing or to be grown in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
B [ ] RELEASE - From the collateral described in the Financing Statement bearing the file number shown above, the Secured
Party releases the collateral described in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
C [ ] ASSIGNMENT - The Secured Party certifies that the Secured Party has assigned to the Assignee above named, all the
Secured Party's rights under the Financing Statement bearing the file number shown above in the collateral described
in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
D [ ] TERMINATION - The Secured Party certifies that the Secured Party no longer claims a security interest under the
Financing Statement bearing the file number shown above.
----------------------------------------------------------------------------------------------------------------------------
E [X] AMENDMENT - The Financing Statement bearing the file number shown above is amended as set forth in item 7 below.
----------------------------------------------------------------------------------------------------------------------------
F [ ] OTHER
----------------------------------------------------------------------------------------------------------------------------
7. CHANGE DEBTORS ADDRESS TO:
00000 XXXXXXX XXXXX
XXX XXXXX, XX. 00000
----------------------------------------------------------------------------------------------------------------------------
8. (Date) MARCH 27 2000 C 9. THIS SPACE FOR USE OF FILING OFFICER
------------------------------------ 0 (DATE, TIME, FILING OFFICE)
D
WEBSIDESTORY, INC. E
------------------------------------------------------------------------------
BY: 1
-------------------------------------------------------------------------- 2
SIGNATURE(S) OF DEBTOR(S) (TITLE) 3
4
IMPERIAL BANK 5
------------------------------------------------------------------------------ 6
7
BY: /s/ Xxx Xxxxxxx SVP 8
--------------------------------------------------------------------------- 9
SIGNATURE(S) OF SECURED PARTY(IES) (TITLE)
------------------------------------------------------------------------------
10. RETURN COPY TO
NAME IMPERIAL BANK-ACCT #P6-0001-070-6
ADDRESS LOAN DOCUMENTATION SERVICES
CITY AND 0000 X. XX XXXXXXX XXXX., XXXXX #000
XXXXX XXXXXXXXX, XX 00000
ATTN: XXXXXX XXXXXX
BR: 3805
Filing officer is requested to note date and
hour of filing on (3) Filing Officer Copy UNIFORM COMMERCIAL CODE-FORM UCC-2
Acknowledgement and return to the above party.
(1) Secured Party Copy
24
SIGNATURE AUTHORIZATION
===============================================
Borrower: WEBSIDESTORY, INC. LENDER: Imperial Bank
10182 TELESIS COURT Emerging Growth Industries Group --
XXX XXXXX, XX 00000 Southern California Regional Xxxxxx
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
===============================================
This SIGNATURE AUTHORIZATION is attached to and by this reference is made a
part of each Borrowing Resolution, dated March 27, 2000, and executed in
connection with a loan or other financial accommodations between Imperial Bank
and WEBSIDESTORY, INC.
The individuals named below, any one acting alone, are hereby authorized and
appointed for and on behalf of Borrower from time to time to do any of the
following:
(1) To request advances of credit under the Agreement and to effect repayment
of any credit outstanding under the Agreement;
(2) To execute and deliver assignments, borrowing certificates, instruments,
schedules, reports, invoices, bills, shipping documents and such other
documents or certificates as may be necessary or appropriate under the
Agreement or any other agreement or instrument relating thereto or delivered in
connection therewith;
(3) To transfer and endorse to Bank in payment of Borrower's obligations to
Bank any checks, drafts, notes or other instruments payable to Borrower; and
(4) To do or perform any and all other acts or matters in any way relating to
any or all of the foregoing.
The undersigned individuals each further certifies that the specimen signatures
below are the genuine signatures of the individuals designated herein and that
their signatures shall be binding on Borrower until Bank receives written
notice of termination of the authority of any such designated individuals.
Signature:
-----------------------------
Name:
----------------------------------
Signature:
-----------------------------
Name:
----------------------------------
Signature:
-----------------------------
Name:
----------------------------------
Signature:
-----------------------------
Name:
----------------------------------
THIS SIGNATURE AUTHORIZATION IS EXECUTED ON MARCH 27, 2000.
BORROWER:
WEBSIDESTORY, INC.
By:
------------------------------------
XXXX XXXXXXXX, PRESIDENT/CEO
By:
------------------------------------
XXXXXXX XXXXXXXXX, COO/SECRETARY
LENDER:
Imperial Bank
By: /s/ illegible
------------------------------------
Authorized Officer
===============================================================================
25
IMPERIAL BANK
--------------------------------------------------------------------------------
Emerging Growth Division * Southern California Region
00000 Xx Xxxxxx Xxxx, Xxxxx 000 * Xxx Xxxxx, Xxxxxxxxxx 00000 * (000)000-0000 *
(000) 000-0000 * Fax (000) 000-0000
March 9, 2000
Xx. Xxxxxxx Xxxxxxxxx, SVP
WebSideStory, Inc.
00000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Dear Xx. Xxxxxxxxx:
Based on our discussions concerning the financing needs of WebSideStory, Inc.
("Borrower"), and based upon our preliminary review of the information provided
to date, Imperial Bank ("IB" or "Bank") is pleased to propose the following
financing arrangement. The matters outlined herein constitute a proposal as to
certain terms and conditions under which we may provide financing. It is
intended to be used as a vehicle for continued discussions and further due
diligence, and does not constitute a commitment on behalf of IB at this time.
Nevertheless, subject to the qualifications listed below and the satisfactory
completion of our due diligence, we believe we should be in a position to offer
you a financing package structured along the following lines:
1. CREDIT FACILITY - REVOLVING EQUIPMENT LINE OF CREDIT
1.1 Amount: Up to $3,000,000.
1.2 Availability: Up to 100% for general corporate purposes and to
finance capital equipment expenditures.
1.3 Maturity: Up to 12 months from issuance.
1.4 Amortization: Capital equipment financing shall be available up to 12
months from the date of commitment, with interest only payable. At the
end of the 12 months the outstanding equipment balance will convert
to a 36-month term loan with equal principal payments, plus interest.
(Equipment draws to include 100% of invoice value excluding soft
costs, freight, and sales tax).
1.5 Pricing: Interest shall be payable monthly at the Bank's Prime Rate
plus 0.25%.
1.6 Documentation Fee, Costs and Expenses: In addition to any other
amounts due, or to become due, concurrently with the execution hereof,
Borrower agrees to pay to Bank a documentation fee in the amount of
$500, and all other reasonable costs and expenses incurred by the Bank
in the preparation of this Agreement and any other Loan Documents.
1.7 Collateral: First position security interest evidenced by a UCC-1
filing on all corporate assets of Borrower, including specific filings
on intellectual property.
26
1.8 Covenants: Minimum liquidity (defined as unrestricted cash and cash
equivalents plus eligible accounts receivable), measured monthly, the
greater of 1) 1.50 times current liabilities and all Bank debt, or 2)
three months cash burn.
2. GENERAL CONDITIONS
The extensions of credit would necessarily be subject to the fulfillment of a
number of conditions, including, but not limited to, the following:
2.1 The execution and delivery by the Borrower to IB of such agreements,
documents, instruments, financing statements, consents, evidences of
corporate authority, certificates, insurance certificates, opinions of
counsel, and other such writings to confirm and effectuate the lending
transaction as may be required by IB and its counsel in form and
content acceptable to IB.
2.2. No material adverse change in the business, operations, profits, or
prospects of Borrower or in the condition of the assets of Borrower
prior to funding.
2.3 Negotiation and execution of a satisfactory loan agreement.
2.4 Borrower agrees to maintain all substantive depository accounts with
IB.
2.5 IB's final credit approval and issuance of formal commitment.
2.6 Borrower to deliver to Bank a five-year warrant to purchase $200,000
worth of common stock at $2.50 per share. In the event the Borrower
completes an IPO, the Bank will agree to exercise this warrant, no
later than, one year from the conclusion of the IPO lock out period.
3. REPORTING REQUIREMENTS
3.1 Company prepared monthly financial statements within 30 days of month
end.
3.2 Detailed schedule of equipment purchases and other expenses
associated with each drawdown.
3.3 Annual audited financial statements from independent CPA's
satisfactory to IB within 120 days of fiscal year-end.
3.4 A letter will accompany each delivery of interim financial statements
from Borrower, signed by its Chief Financial Officer, attesting to
compliance or detailing non-compliance with all material covenants in
the loan agreements.
3.5 Access to all Company Board of Directors' minutes upon request by
Bank.
2
27
CONFIDENTIALITY
This letter is provided solely for your information and is delivered to you with
the understanding that neither it, nor its substance, shall be disclosed to any
third person, except those who are in a confidential relationship to you, or
where the same is required by law.
This letter is meant to be a working document, outlining the general terms and
conditions under which Imperial Bank would be willing to consider a financing
arrangement for WebSideStory, Inc. It is not meant to be a comprehensive list
of terms and conditions that may apply to any future commitment, any credit
agreement, or other document that may be entered into by and between IB and
Borrower. Rather, it is intended only to outline certain basic points of
business understanding around which further discussions may take place.
As a result of further analysis and investigation by us, or by reason of
information of which we are not now aware, impediments to closing may be
discovered. We may require that the arrangement be restructured or otherwise
modified to make allowances for such impediments, or the impediments may be so
serious as to affect the closing of these financial arrangements.
We hope this proposal is acceptable to you and request that you execute the
enclosed copy of this letter and return it to us prior to March 24, 2000, at
which time this proposal will expire. Imperial Bank looks forward to assisting
you in achieving your goals of growth and profitability. Please do not hesitate
to contact us if you have any questions regarding this proposal.
Sincerely,
IMPERIAL BANK
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxx Xxxxxxx
------------------------------------ ----------------------------------
Xxxxx X. Xxxxx, Venture Loan Officer Xxx Xxxxxxx, Senior Vice President
Received and Accepted:
WEBSIDESTORY, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------- SUBJECT TO BOARD APPROVAL
Xxxxxxx Xxxxxxxxx, Senior Vice President
Date: March 15, 2000
--------------
3
