EXHIBIT 10.14
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FINANCING AGREEMENT
This Financing Agreement (the "Agreement"), dated as of March 29, 2005, is
entered into by and between Bridgeline Software, Inc. ("Client"), and Sand Hill
Finance, LLC ("SHF").
1. PURCHASE OF ACCOUNTS.
1.1 SCHEDULE OF ACCOUNTS. Client may request that SHF purchase Accounts by
delivering to SHF a Schedule of Accounts (the "Schedule of Accounts") in the
form of Exhibit A, and, if requested by SHF, an invoice for each of the listed
Accounts, signed by an authorized representative of Client. SHF is authorized to
act upon the written or oral directions of any person that SHF believes is an
authorized representative. SHF may, in its sole discretion, elect to purchase
any Account included in a Schedule of Accounts, but is under no obligation to
purchase any such Account.
1.2 PURCHASED ACCOUNT; CREATION OF A BOOK RESERVE. Upon acceptance of any
such Account (a "Purchased Account") SHF shall pay to Client EIGHTY PERCENT
(80%) of the face amount of the Purchased Account (the "Advance"). The aggregate
outstanding Advances under this Agreement shall not exceed FIVE HUNDRED THOUSAND
($500,000) DOLLARS (the "Credit Limit"). Client sells, transfers and assigns to
SHF, all of Client's right, title and interest in and to each Purchased Account,
together with all of the goods represented by each Purchased Account, all of
Client's rights and remedies as an unpaid Client under applicable law, and all
of Client's rights in and to all security for each such Purchased Account and
guaranties thereof, and all rights against third parties with respect thereto.
Any goods recovered or received by Client shall be set aside, marked with SHF's
name, and held for SHF's account as owner. The amount of Purchased Accounts
outstanding at any time shall constitute the "Account Balance". Upon payment of
the Advance to Client, SHF shall also create a reserve on SHF's books and
records with respect to each Purchased Account in an amount equal to the face
amount of the Purchased Account minus the Advance for such Purchased Account
(the "Reserve"). Notwithstanding the foregoing, in no event shall the Reserve
with respect to all Purchased Accounts outstanding at any time be less than
TWENTY PERCENT (20%) of the Account Balance. SHF may, in its discretion, change
the percentage of the Advance and the Reserve at any time upon notice to Client.
1.3 COLLECTION OF ACCOUNTS. SHF may directly collect each Purchased
Account. At the request of SHF, Client and SHF shall notify each person liable
on a Purchased Account (an "Account Debtor") by letter in a form acceptable to
SHF that Purchased Accounts owed by such Account Debtor have been assigned and
are payable to SHF. Client shall not take or permit any action to change or
revoke any notification without SHF's prior written consent and shall not
request any Account Debtor to pay any Purchased Account to Client. If Client
receives any payments of any Purchased Accounts despite this Agreement, Client
shall (i) immediately notify SHF of such payment, (ii) hold such payment in
trust and safekeeping for SHF, and (iii) immediately turn over to SHF the
identical checks, monies or other forms of payment received, with any necessary
endorsement or assignment. SHF shall have the right to endorse Client's name on
all payments received in connection with each Purchased Account and on any other
proceeds of Collateral. SHF shall apply payments received first to the Purchased
Accounts and, so long as there does not then exist an Event of Default or an
event that with notice or lapse of time would constitute an Event of Default, at
SHF's option, SHF shall credit the Reserve or remit to Seller the excess;
PROVIDED, that if any Event of Default or event that with notice or lapse of
time or otherwise would constitute an Event of Default then exists, SHF shall
have no duty to remit any such collections, which collections constitute
Collateral, and may apply such collections to reduce the Obligations. Client
shall indemnify and hold SHF harmless from any expenses, damages and claims
arising out of SHF's collection of any Accounts.
1.4 FULL RECOURSE. The purchase by SHF of Purchased Accounts from Client
shall be with full recourse against Client. Client shall be liable for any
deficiency in the event the Obligations exceed the amount of Purchased Accounts
and the other Collateral.
2. FEES AND CUSTOMER PAYMENTS.
2.1 FEES. On the date of the first funding under this Agreement, and on
each anniversary of the date of this Agreement, Client shall pay SHF a
commitment fee equal to ONE QUARTER OF ONE PERCENT (0.25%) of the Credit Limit.
In addition, on the first day of the month following the first funding under
this agreement, Client shall
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pay SHF a commitment fee equal to ONE QUARTER OF ONE PERCENT (0.25%). Client
shall pay to SHF on the last day of each calendar month (the "Settlement Date"),
a finance fee (the "Finance Fees") in an amount equal to ONE AND SEVEN TENTHS
PERCENT (1.70%) per month of the average daily Obligations outstanding during
the month ending on such Settlement Date (the "Settlement Period"). Such accrued
fees shall be netted against the Reserve as described in Section 3.3. Client
shall pay SHF a fee of $40.00 for each check or item of payment that is returned
to SHF for insufficient funds and $25.00 for each wire, sent or received. In no
event shall any charges that may constitute interest hereunder exceed the
highest rate permitted under applicable law. In the event that a court of
competent jurisdiction makes a final determination that SHF has received
interest hereunder in excess of the maximum lawful rate, then such excess shall
be deemed a payment of principal and the interest payable hereunder deemed
amended to the amount payable under the maximum lawful rate.
2.2 CREDITING CUSTOMER PAYMENTS. Within one business day after SHF's
receipt of payment of a Purchased Account, SHF shall credit that payment (the
"Customer Payments") to the amount outstanding with respect to the Purchased
Account, provided that if any Customer Payment is subsequently dishonored or SHF
does not receive good funds for any reason, the amount of such uncollected
Customer Payment shall be included in the Account Balance as if such Customer
Payment had not been received, and Finance Fees shall accrue thereon, and the
credit to the specific Purchased Account shall be reversed. Notwithstanding the
foregoing, upon the occurrence of an Event of Default, SHF shall apply all
Customer Payments to Client's Obligations under this Agreement in such order and
manner as SHF shall, in its sole discretion, determine.
2.3 ACCOUNTING. SHF shall deliver to Client after each Settlement Date, a
statement of Client's account which shall include an accounting of the
transactions for that Settlement Period, including the amount of all Finance
Fees, Administrative Fees, Adjustments, Chargeback Amounts, Customer Payments
and Purchased Accounts. The accounting shall constitute an account stated and
shall be binding on Client and deemed correct unless Client delivers to SHF a
written objection within thirty (30) days after such accounting is mailed to
Client.
3. ADJUSTMENT, CHARGEBACKS AND REMITTANCES.
3.1 ADJUSTMENTS. If any Account Debtor asserts any offset, right or claim
with respect to a Purchased Account, or pays less than the face amount of such
Purchased Account (each, an "Adjustment"), SHF may, in its sole discretion,
either (A) deduct the amount of the Adjustment in calculating any amount owed to
Client, or (B) chargeback to Client the Purchased Account with respect to which
the Adjustment is asserted. Client shall advise SHF immediately upon learning of
any Adjustment asserted by any Account Debtor.
3.2 CHARGEBACKS. SHF shall have the right to chargeback to Client any
Purchased Account:
(a) that remains unpaid ninety (90) calendar days after the invoice date;
(b) with respect to which there has been a breach of any warranty,
representation, covenant or agreement set forth in this Agreement;
(c) with respect to which the Account Debtor asserts any Adjustment, or
(d) that is owed by an Account Debtor who has filed, or has had filed
against it, any bankruptcy case, insolvency proceeding, assignment for the
benefit of creditors, receivership or insolvency proceeding, or who has become
insolvent (as defined in the United States Bankruptcy Code) or who is generally
not paying its debts as such debts become due.
Upon demand by SHF, Client shall pay to SHF the full face amount of any
Purchased Account that has been charged back pursuant to this Section, or to the
extent partial payment has been made, the amount by which the face amount of
such Purchased Account exceeds such partial payment, together with any
attorneys' fees and costs incurred by SHF in connection with collecting such
Purchased Account (collectively, the "Chargeback Amount"), SHF shall advise
Client regarding how the Chargeback Amount shall be paid, which may be by any
one or a combination of the following, in SHF's sole discretion: (1) payment in
cash immediately upon demand; (2) deduction from or offset against any
Remittance that would otherwise be payable to Client; (3) payment from
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any Advances that may otherwise be made to Client; (4) adjustment to the Reserve
pursuant to Section 1.2 hereof; or (5) delivery of substitute Accounts and a
Schedule of Accounts acceptable to SHF, which Accounts shall constitute
Purchased Accounts.
3.3 REMITTANCE. SHF shall remit to Client after the Settlement Date, the
amount, if any, that SHF owes to Client at the end of the Settlement Period
based on the following calculations set forth below (the "Remittance");
provided, that if there then exists any Event of Default or any event or
condition that with notice or lapse of time would constitute an Event of
Default, SHF shall not be obligated to remit any payments to Client. If the
amount resulting from the following calculation is a positive number, such
amount is the amount of the Remittance for such Settlement Period. If the
resulting amount is a negative number, such amount is the amount owed by Client
to SHF.
The calculations to be used are as follows:
(a) The sum of the following:
(1) The Reserve as of the beginning of the subject Settlement
Period, PLUS
(2) The Reserve created for each Account purchased during the
subject Settlement Period;
MINUS
(b) The sum of the following:
(1) Finance Fees accrued during the subject Settlement Period;
PLUS
(2) Administrative Fees accrued during the subject Settlement
Period; PLUS
(3) Adjustments during the subject Settlement Period; PLUS
(4) Chargeback Amounts, to the extent SHF has agreed to accept
payment of any such Chargeback Amount by deduction from the Remittance: PLUS
(5) All professional fees and expenses as set forth in Section
9 for which oral or written demand has been made by SHF during the subject
Settlement Period; PLUS
(6) The Reserve for the Account Balance as of the first day of
the following Settlement Period in the minimum percentage set forth in Section
1.2 hereof.
If the foregoing calculations result in a Remittance payable to Client, SHF
shall make such payment by check, subject to SHF's rights of offset and
recoupment, and its right to deduct any Chargeback Amount as set forth in
Section 3.2. If the foregoing calculations result in an amount due to SHF from
Client, Client shall make such payment by any one or a combination of the
methods set forth in Section 3.2 hereof for chargebacks, as determined by SHF in
its discretion.
4. REPRESENTATIONS AND WARRANTIES. Client represents to SHF as follows: (a)
Client is not in default under any agreement under which Client owes any money,
or any agreement, the violation or termination of which could have a material
adverse effect on Client; (b) Client has taken all action necessary to authorize
the execution, delivery and performance of this Agreement; (c) except for liens
approved in writing by SHF, there are no liens, security interests or other
encumbrances on the Collateral; (d) the execution and performance of this
Agreement do not conflict with, or constitute a default under, any agreement to
which Client is party or by which Client is bound; (e) the information provided
to SHF on or prior to the date of this Agreement is true and correct in all
material respects; (f) all financial statements and other information provided
to SHF fairly present Client's financial condition, and there has not been a
material adverse change in the financial condition of Client since the date of
the most recent of
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the financial statements submitted to SHF; (g) Client is in compliance with all
laws and orders applicable to it; (h) Client is not party to any litigation and
is not the subject of any government investigation, and Client has no knowledge
of any pending litigation or investigation or the existence of circumstances
that reasonably could be expected to give rise to such litigation or
investigation; (i) no representation or other statement made by Client to SHF
contains any untrue statement of a material fact or omits to state a material
fact necessary to make any statements made to SHF not misleading; and (j) each
Account described on each Schedule of Accounts is owned by Client, is correctly
stated therein, is not in dispute, is unconditionally owing at the time stated
in the invoice evidencing such Account as attached to the Schedule of Accounts,
is not past due or subject to any offset or in default, represents a bona fide
indebtedness arising from the actual sale of goods or performance of services to
an Account Debtor in the ordinary course of Client's business which has been
received and finally accepted by the Account Debtor.
5. COVENANTS.
(a) Reports. Upon request by SHF, Client will provide to SHF in form and
substance acceptable to SHF (i) monthly unaudited financial statements within
thirty (30) days after the last day of each month (other than the month in which
Client's fiscal year ends), prepared in accordance with GAAP, consistently
applied; (ii) audited fiscal year end financial statements with an unqualified
opinion within thirty (30) days of receipt by Client-; and (iii) such other
information relating to Client's operations and condition, as SHF may reasonably
request from time to time. SHF shall have the right to review and copy Client's
books and records and audit and inspect the Collateral, from time to time, upon
reasonable notice to Client. Client will reimburse SHF for the reasonable costs
it may incur from time to time in such inspections and review.
(b) Insurance. Client will maintain insurance on the Collateral and
Client's business, in amounts and of a type that are customary to businesses
similar to Client's, and SHF will be named in a lender's loss payable
endorsement in favor of SHF, in form reasonably acceptable to SHF.
(c) Negative Covenants. Without SHF's prior written consent, Client shall
not do any of the following: (i) except for an Initial Public Offering, or
Private Equity Offering of Securities, permit or suffer a change in control of
Client or a transfer of more than 20 percent of its securities; (ii) acquire any
assets, except in the ordinary course of business or in a transaction involving
the payment of an aggregate amount of $100,000 or less; (iii) sell, lease, or
transfer any property except for sales of Inventory and Equipment in the
ordinary course of business; (iv) transfer, sell or license any intellectual
property, except for non-exclusive licenses thereof entered into in the ordinary
course of business; (v) pay or declare any dividends on Client's stock (except
for dividends payable solely in stock of Client); (vi) redeem, purchase or
otherwise acquire, any of Client's stock, except in connection with a repurchase
of stock from employees or consultants in connection with any termination of a
relationship with the Company, (vii) permit any Account Debtor to make payments
on a Purchased Account other than to SHF; (viii) make any investments in, or
loans or advances to, any person other than in the ordinary course of business
as currently conducted; (ix) directly or indirectly enter into any material
transaction with any affiliate of Client except for transactions that are in the
ordinary course of Client's business, and on fair and reasonable terms that are
no less favorable to Client than would be obtained in an arm's length
transaction with a non-affiliated person; (x) make any payment on any
indebtedness that is subordinate to the Obligations, other than in accordance
with the subordination agreement, if any, in favor of SHF relating thereto; (xi)
except for the capital lease line with Bank of America of $100,000, incur any
indebtedness other than trade credit incurred in the ordinary course of business
or for indebtedness which is subordinate to the Obligations, other than in
accordance with the subordination agreement, if any, in favor of SHF relating
thereto, (xii) permit any lien or security interest to attach to any Collateral
other than in favor of SHF, (xiii) fail to make any tax payment on or before the
due date; or (xiv) agree to do any of the foregoing.
6. GRANT OF SECURITY INTEREST. To secure the prompt payment and performance of
all fees, amounts and obligations of Client now or hereafter owing to SHF under
this or any other agreement, involving reasonable attorneys fees, collectively,
(the "Obligations"), Client hereby grants to SHF a security interest in all of
Client's property, now owned or hereafter acquired, including all accounts,
inventory, chattel paper, documents, instruments, letters of credit, securities,
general intangibles, deposit accounts, patents, trademarks, copyrights,
goodwill, inventory equipment, investment property, financial assets, and all
proceeds of the foregoing (collectively, the "Collateral").
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7. EVENTS OF DEFAULT; REMEDIES. Any one or more of the following shall
constitute an Event of Default under this Agreement: (a) Client's failure (i) to
pay all or any part of the principal or interest hereunder on the date due and
payable or (ii) to comply with any agreement or covenant set forth in this
Agreement, (iii) to comply with the terms of any material contract to which
Client is a party and any agreement pursuant to which Client has incurred
indebtedness, or (iv) to comply with any law to which Client is subject; (b) Any
of Client's assets are attached or become subject to levy or legal proceeding,
or if Client becomes insolvent, or becomes the subject of any case or proceeding
under the United States Bankruptcy Code or any other law relating to the
reorganization or restructuring of debt (an "Insolvency Event"); or (c) any
representation made to SHF in this Agreement, the Schedule of Accounts, the
Warrant issued of even date herewith, or any information given to SHF by or on
behalf of Client shall be incorrect in any respect; or (d) the occurrence of a
material adverse change in Client's condition or prospects. Upon the occurrence
of an Event of Default, all fees and other amounts owing hereunder shall, at the
option of SHF, be immediately due and payable, and SHF may exercise all of the
rights of a secured party under the Uniform Commercial Code. SHF shall have a
right to dispose of the Collateral in any commercially reasonable manner, and
shall have a royalty-free license to use any name, trademark, advertising matter
or any property of a similar nature to complete production of, advertisement
for, and disposition of any Collateral. SHF shall have a license to enter into,
occupy and use Client's premises and the Collateral without charge to exercise
any of SHF's rights or remedies under this Agreement. All rights are cumulative
and may be exercised in SHF's discretion singularly or together with any other
rights.
8. POWER OF ATTORNEY. Client appoints SHF and its designees as Client's true
and lawful attorney in fact, to exercise in SHF's discretion, and regardless of
whether an Event of Default is then existing, all of the following powers, such
powers being coupled, with an interest: (A) to notify all Account Debtors to
make payment directly to SHF; (B) to receive, deposit, and endorse Client's name
on all checks, drafts, money orders and other forms of payment relating to the
Accounts; (C) to demand, collect, receive, sue, and give releases to any Account
Debtor for the monies due or which may become due on or in connection with the
Accounts; (D) to compromise, prosecute, or defend any action, claim, case, or
proceeding relating to the Accounts, including the filing of a claim or the
voting of such claims in any bankruptcy case, all in SHF's name or Client's
name, as SHF may elect; (E) to sell, assign, transfer, pledge, compromise, or
discharge any Accounts; (F) to receive, open, redirect and dispose of all mail
addressed to Client for the purpose of collecting the Accounts and to take all
the actions permitted in subsection (B) above with respect to any payment in any
such mail; (G) after the occurrence of an Event of Default, to dispose of any
Collateral, and (H) to do all acts and things necessary or expedient, in
furtherance of any such purposes. Upon the occurrence of an Event of Default,
all of the power of attorney rights granted by Client to SHF hereunder shall be
applicable with respect to all Collateral.
9. ADMINISTRATIVE EXPENSES AND ATTORNEYS' FEES. Client shall pay to SHF
immediately upon demand, all costs and expenses, including reasonable fees and
expenses of attorneys and other professionals, that SHF incurs in connection
with any and all of the following: (A) preparing, administering and enforcing
this Agreement, or any other agreement executed in connection herewith; (B)
perfecting, protecting or enforcing SHF's interest in the Purchased Accounts and
the other Collateral; (C) collecting the Purchased Accounts and the Obligations;
(D) defending or in any way addressing claims made or litigation initiated by or
against SHF as a result of SHF's relationship with Client or any guarantor; and
(E) representing SHF in connection with any bankruptcy case or insolvency
proceeding involving Client, any Purchased Account, any other Collateral or any
Account Debtor. Any attorneys' fees and expenses may, at SHF's option, be netted
against the reserve as set forth in Section 3.3.
10. TERM AND TERMINATION. The term of this Agreement shall be for one (1) year
from the date hereof, and from year to year thereafter unless terminated in
writing by SHF or Client. Client and SHF shall each have the right to terminate
this Agreement at any time. Notwithstanding the foregoing, any termination of
this Agreement shall not affect SHF's security interest in the Collateral and
SHF's ownership of the Purchased Accounts, and this Agreement shall continue to
be effective, and SHF's rights and remedies hereunder shall survive such
termination, until all transactions entered into and Obligations incurred
hereunder or in connection herewith have been completed and satisfied in full.
11. MISCELLANEOUS.
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11.1 SEVERABILITY. In the event that any provision of this Agreement is
held to be invalid or unenforceable, this Agreement will be construed as not
containing such provision and the remainder of the Agreement shall remain in
full force and effect.
11.2 CHOICE OF LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California without giving effect to
principles of conflicts of law. Unless otherwise defined, capitalized terms
shall have the meaning assigned in the Uniform Commercial Code.
11.3 NOTICES. All notices shall be given to SHF and Client at the addresses
set forth in this Agreement and shall be deemed to have been delivered and
received: (A) if mailed, three (3) calendar days after deposited in the United
States mail, first class, postage prepaid; (B) one (1) calendar day after
deposit with an overnight mail or messenger service; or (C) on the same date of
transmission if sent by hand delivery or fax.
11.4 JURY WAIVER; ARBITRATION; JURISDICTION. SHF AND CLIENT IRREVOCABLY
WAIVE ANY RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. IF THIS JURY WAIVER IS FOR ANY REASON NOT ENFORCEABLE, THEN
SHF AND CLIENT AGREE TO RESOLVE AL CLAIMS, CAUSES AND DISPUTES THROUGH FINAL AND
BINDING ARBITRATION TO BE HELD IN SAN MATEO COUNTY, CALIFORNIA IN ACCORDANCE
WITH THE THEN-CURRENT COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION. JUDGMENT UPON ANY AWARD RESULTING FROM ARBITRATION MAY BE ENTERED
INTO AND ENFORCED BY ANY STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. SHF
and Client submit to the jurisdiction of the state and Federal courts located in
San Mateo County,
11.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one instrument.
11.6 INTEGRATION. This Agreement and the documents executed in connection
herewith constitute the entire agreement of the parties, and supercedes any
prior discussions or agreements, oral or written. This Agreement may not be
amended except by written instrument signed by both parties. No waiver shall be
effective unless in writing and signed by SHF. Any waiver on one occasion is not
a waiver on any subsequent occasion
11.7 ASSIGNMENT. Client may not assign any interests or rights, or delegate
any duties, hereunder. SHF may grant participations in, assign its rights, and
grant one or more security interests, in its rights hereunder.
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IN WITNESS WHEREOF, Client and SHF have executed this Agreement on the day
and year written above.
"SHF" "CLIENT"
SAND HILL FINANCE, LLC BRIDGELINE SOFTWARE, INC.
By: /S/ RON ERNST By: /S/ GARY M. CEBULA
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Title: CFO Title: CFO
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ADDRESS OF CLIENT, CHIEF EXECUTIVE OFFICE
AND LOCATION OF COLLATERAL
3000 Sand Hill Road 130 New Boston Street
Menlo Park, CA 94025 Woburn, MA 01801
Telephone No: (650) 926-7019 781-376-5555
Facsimile No: (650) 926-7018 781-376-5033
OTHER LOCATIONS OF COLLATERAL, IF ANY,
IN ADDITION TO ABOVE:
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[LOGO]
Sand Hill Finance
Exhibit A Schedule #
CLIENT: BRIDGELINE SOFTWARE, INC. DATE:___________
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INVOICE INVOICE ACCOUNT DEBTOR INFORMATION PURCHASE INVOICE
DATE NUMBER (PRINT OR TYPE) ORDER # AMOUNT
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The Client named above, hereby delivers this Schedule of Accounts to Sand Hill ------------------------ ----------------------
Finance, LLC, ("SHF") pursuant to a Financing Agreement between SHF and Client. TOTAL $
The undersigned represents that he or she is authorized representative of Client ------------------------ ----------------------
with full right, power and authority to deliver this Schedule of Accounts to LESS RESERVE
SHF. The Accounts evidenced by the invoices on this Schedule of Accounts are ------------------------ ----------------------
submitted for purchase under the terms and conditions of the Financing Agreement OTHER ADJUSTMENTS:
now in force. THE UNDERSIGNED ATTESTS THAT THESE INVOICES REPRESENT ACTUAL SALES ------------------------ ----------------------
AND THAT SHIPMENT/DELIVERY OF GOODS AND /OR COMPLETION OF SERVICES HAVE BEEN NET ADVANCE
MADE. The undersigned further attests that all of the representations and ------------------------ ----------------------
warranties in Section 4 of the Financing Agreement are true and correct with CHECK# CHECK DATE
respect to each of the Accounts and Account Debtors described on this Schedule
of Accounts. ------------------------ ----------------------
DISBURSEMENT INSTRUCTIONS:
Authorized Signature:____________________________________________________
Print Name:______________________________________________________________
(a) Please fax to 650-926-7018
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RESOLUTIONS TO BORROW
CLIENT: BRIDGELINE SOFTWARE, INC.
I, the undersigned officer of Bridgeline Software, Inc. ("Client"), HEREBY
CERTIFY that Client is a corporation organized and existing under and by virtue
of the laws of the state of its organization.
I FURTHER CERTIFY that attached hereto as Attachments 1 and 2 are true and
complete copies of Client's Certificate of Incorporation and Bylaws and other
organizational documents, each of which is in full force and effect on the date
hereof.
I FURTHER CERTIFY that by unanimous written consent of the directors of
Client, (or by other duly authorized action in lieu of a meeting), the following
resolutions were adopted.
BE IT RESOLVED, that ANY ONE (1) of the following named officers, partners,
members, employees, or agents, whose actual signatures are shown below:
NAMES POSITIONS ACTUAL SIGNATURES
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acting for and on behalf of this entity and as its act and deed be, and they
hereby are, authorized and empowered:
OBTAIN CREDIT. To sell accounts to, and obtain credit from time to time
from, Sand Hill Finance, LLC ("SHF") on such terms as may be agreed upon between
the officers, employees, or agents and SHF, as in their judgment should be
obtained, without limitation, including such sums as are specified in one or
more financing or factoring agreements between SHF and Client.
EXECUTE AGREEMENT. To execute and deliver on behalf of Client one or more
agreements relating to the extension of credit, and also one or more renewals,
extensions, modifications, refinancings, consolidations, or substitutions for
one or more of the notes, or any portion of the notes.
GRANT SECURITY. To grant a security interest to SHF in the property of
Client to secure all of the Client's obligations to SHF.
ISSUE WARRANTS. To issue to SHF warrants to purchase Client's equity
securities.
FURTHER ACTS. 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 as they may in their discretion
deem reasonably necessary or proper in order to carry into effect the provisions
of these Resolutions.
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
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these Resolutions shall remain in full force and effect and SHF may rely on
these Resolutions until written notice of their revocation shall have been
delivered to and received by SHF. Any such notice shall not affect any of the
Client's agreements or commitments in effect at the time notice is given.
I FURTHER CERTIFY that the officers, employees, and agents named above are
duly elected, appointed, or employed by or for Client, as the case may be, and
occupy the positions set forth opposite their respective names; that the
foregoing Resolutions now stand of record on the books of the Client; and that
the Resolutions are in full force and effect and have not been modified or
revoked in any manner whatsoever.
IN WITNESS WHEREOF, I have hereunto set my hand on _____________, 2005 and
attest that the signatures set opposite the names listed above are their genuine
signatures.
CERTIFIED TO AND ATTESTED BY:
X
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