Exhibit 10.1
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SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS
BORROWER: ONYX SOFTWARE CORPORATION
DATE: MARCH 31, 2004
THIS AMENDMENT TO LOAN DOCUMENTS is entered into between Silicon Valley
Bank ("Silicon") and the borrower named above ("Borrower").
The Parties agree to amend the Loan and Security Agreement between them,
dated February 14, 2002 (as otherwise amended, if at all, the "Loan Agreement"),
as follows, effective as of the date hereof. (Capitalized terms used but not
defined in this Amendment shall have the meanings set forth in the Loan
Agreement.)
1. MODIFIED CREDIT LIMIT. Section 1 of the Schedule to Loan and
Security Agreement, entitled "Credit Limit," is hereby amended to
read as follows:
1. CREDIT LIMIT
(Section 1.1): An amount equal to the sum of 1 and 2 below:
1. Revolving Loans. An amount (the
"Revolving Loans") not to exceed the lesser
of: (i) $8,000,000 at any one time
outstanding (the "Maximum Credit Limit"); or
(ii) 70% (an "Advance Rate") of the amount
of Borrower's Eligible Receivables (as
defined in Section 8 above).
Silicon may, from time to time, modify the
Advance Rates, in its good faith business
judgment, upon notice to the Borrower, based
on changes in collection experience with
respect to Receivables or other issues or
factors relating to the Receivables or other
Collateral.
plus
2. Term Loan. An amount equal to the unpaid
principal balance from time to time
outstanding of the Loan ("Term Loan") being
made concurrently herewith in an original
principal amount not to exceed $500,000. The
Term Loan
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shall be used to refinance the Borrower's
Cisco Voice Over IP Network. Any portion of
the Term Loan, once repaid, cannot be
reborrowed.
Notwithstanding the foregoing, an amount
equal to fifty percent (50%) of the
Obligations relating to the Term Loan shall
be reserved against the Revolving Loans
which would otherwise be available to
Borrower as set forth above.
As used in this Agreement, the word "Loans"
includes the Revolving Loans and the Term
Loan.
LETTER OF CREDIT
SUBLIMIT
(Section 1.5): $8,000,000.
EXIM AGREEMENT;
CROSS-COLLATERALIZATION;
CROSS-DEFAULT: Silicon and the Borrower are parties to that
certain Loan and Security Agreement (Exim
Program) dated approximately May 5, 2003
(the "Exim Agreement"). Both this Agreement
and the Exim Agreement shall continue in
full force and effect, and all rights and
remedies under this Agreement and the Exim
Agreement are cumulative. The term
"Obligations" as used in this Agreement and
in the Exim Agreement shall include without
limitation the obligation to pay when due
all Loans made pursuant to this Agreement
(the "Non-Exim Loans") and all interest
thereon and the obligation to pay when due
all Loans made pursuant to the Exim
Agreement (the "Exim Loans") and all
interest thereon. Without limiting the
generality of the foregoing, all
"Collateral" as defined in this Agreement
and as defined in the Exim Agreement shall
secure all Exim Loans and all Non-Exim Loans
and all interest thereon, and all other
Obligations. Any Event of Default under this
Agreement shall also constitute an Event of
Default under the Exim Agreement, and any
Event of Default under the Exim Agreement
shall also constitute an Event of Default
under this Agreement. In the event Silicon
assigns its rights under the Exim Agreement
and/or under any Note evidencing Exim Loans
and/or its
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rights under this Agreement and/or under any
Note evidencing Non-Exim Loans, to any third
party, including without limitation the
Export-Import Bank of the United States
("Exim Bank"), whether before or after the
occurrence of any Event of Default, Silicon
shall have the right (but not any
obligation), in its sole discretion, to
allocate and apportion Collateral to the
Agreement and/or Note assigned and to
specify the priorities of the respective
security interests in such Collateral
between itself and the assignee, all without
notice to or consent of the Borrower.
2. MODIFIED INTEREST RATE. The Interest Rate set forth in Section 2 of
the Schedule to Loan and Security Agreement is hereby amended to read as
follows:
INTEREST RATE (Section 1.2):
With respect to the Revolving Loans:
A rate equal to the "Prime Rate" in effect
from time to time, plus 1.5% per annum,
provided that the interest rate in effect on
any day shall not be less than 6% per annum.
With respect to the Term Loan:
A rate equal to the "Prime Rate" in effect
from time to time, plus 2.0% per annum,
provided that the interest rate in effect on
any day shall not be less than 6% per annum.
With respect to all Loans:
Interest shall be calculated on the basis of
a 360-day year for the actual number of days
elapsed. "Prime Rate" means the rate
announced from time to time by Silicon as
its "prime rate;" it is a base rate upon
which other rates charged by Silicon are
based, and it is not necessarily the best
rate available at Silicon. The interest rate
applicable to the Obligations shall change
on each date there is a change in the Prime
Rate.
3. MODIFIED MATURITY DATE. The Maturity Date set forth in Section 4 of
the Schedule to Loan and Security Agreement is hereby amended to read as
follows:
4. MATURITY DATE
(Section 6.1): MARCH 30, 2005.
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Notwithstanding the foregoing, with respect
to the Term Loan: The outstanding principal
balance of the Term Loan shall be repaid by
Borrower to Silicon in thirty-six (36) equal
monthly payments of principal, commencing on
May 1, 2004 and continuing on the first day
of each subsequent month until the earlier
of the following dates: (i) April 1, 2007,
or (ii) the date the Term Loan has been
indefeasibly paid in full, or (iii) the date
the Revolving Loans are terminated, or (iv)
the date this Agreement terminates by its
terms or is terminated by either party in
accordance with its terms. On the earlier to
occur of the foregoing dates, the entire
unpaid principal balance of the Term Loan,
plus all accrued and unpaid interest
thereon, shall be due and payable. Interest
on the Term Loan shall be payable monthly as
provided in Section 1.2 of this Agreement.
4. MODIFIED FINANCIAL COVENANTS. Section 5 of the Schedule to Loan and
Security Agreement, entitled "5. FINANCIAL COVENANTS (Section 5.1)," is hereby
amended to read as follows:
5. FINANCIAL COVENANTS
(Section 5.1): Borrower shall comply with each of the
following financial covenant(s). Compliance
shall be determined as of the end of each
month, except as otherwise specifically
provided below:
ADJUSTED QUICK
RATIO: Borrower shall maintain an Adjusted Quick
Ratio of not less than 1.50 TO 1.00.
MINIMUM TANGIBLE
NET WORTH: Borrower shall, on a consolidated basis,
maintain a Tangible Net Worth of not less
than the following:
For the month ending March 31, 2004:
$2,000,000 plus an amount equal to (i) 50%
of all consideration received after March 1,
2004 for equity securities and subordinated
debt of the Borrower, plus (ii) 50% of the
Borrower's net income in each fiscal quarter
ending after March 1, 2004;
For each of the months ending April 30, 2004
and May 31, 2004: <$1,000,000> plus an
amount equal to (i) 50% of all consideration
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received after March 1, 2004 for equity
securities and subordinated debt of the
Borrower, plus (ii) 50% of the Borrower's
net income in each fiscal quarter ending
after March 1, 2004;
For the month ending June 30, 2004: $600,000
plus an amount equal to (i) 50% of all
consideration received after March 1, 2004
for equity securities and subordinated debt
of the Borrower, plus (ii) 50% of the
Borrower's net income in each fiscal quarter
ending after March 1, 2004;
For each of the months ending July 31, 2004
and August 31, 2004: <$2,400,000> plus an
amount equal to (i) 50% of all consideration
received after March 1, 2004 for equity
securities and subordinated debt of the
Borrower, plus (ii) 50% of the Borrower's
net income in each fiscal quarter ending
after March 1, 2004;
For the month ending September 30, 2004:
$600,000 plus an amount equal to (i) 50% of
all consideration received after March 1,
2004 for equity securities and subordinated
debt of the Borrower, plus (ii) 50% of the
Borrower's net income in each fiscal quarter
ending after March 1, 2004;
For each of the months ending October 31,
2004 and November 30, 2004: <$2,400,000>
plus an amount equal to (i) 50% of all
consideration received after March 1, 2004
for equity securities and subordinated debt
of the Borrower, plus (ii) 50% of the
Borrower's net income in each fiscal quarter
ending after March 1, 2004;
For the month ending December 31, 2004:
$600,000 plus an amount equal to (i) 50% of
all consideration received after March 1,
2004 for equity securities and subordinated
debt of the Borrower, plus (ii) 50% of the
Borrower's net income in each fiscal quarter
ending after March 1, 2004;
For each of the months ending January 31,
2005 and February 28, 2005: <$2,400,000>
plus an
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amount equal to (i) 50% of all consideration
received after March 1, 2004 for equity
securities and subordinated debt of the
Borrower, plus (ii) 50% of the Borrower's
net income in each fiscal quarter ending
after March 1, 2004; and
For the month ending March 31, 2005:
$600,000 plus an amount equal to (i) 50% of
all consideration received after March 1,
2004 for equity securities and subordinated
debt of the Borrower, plus (ii) 50% of the
Borrower's net income in each fiscal quarter
ending after March 1, 2004.
Increases in the Minimum Tangible Net Worth
Covenant based on consideration received for
equity securities and subordinated debt of
the Borrower shall be effective as of the
end of the month in which such consideration
is received, and shall continue effective
thereafter. Increases in the Minimum
Tangible Net Worth Covenant based on net
income shall be effective on the last day of
the fiscal quarter in which said net income
is realized, and shall continue effective
thereafter. In no event shall the Minimum
Tangible Net Worth Covenant be decreased.
DEFINITIONS. For purposes of the foregoing financial
covenants, the following term shall have the
following meaning:
"< >" shall mean a negative figure or loss,
as applicable.
"Current assets", "current liabilities" and
"liabilities" shall have the meaning
ascribed thereto by generally accepted
accounting principles.
"Adjusted Quick Ratio" shall mean, as of any
applicable date, the ratio of (i)
consolidated cash, cash equivalents and
Receivables of Borrower determined in
accordance with generally accepted
accounting principles, consistently applied,
to (ii) Borrower's current liabilities plus
the face amount of all outstanding Letters
of Credit reserved against the Loans less
Borrower's deferred revenues
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less the current portion of Borrower's
restructuring accrual and set forth in
Borrower's financial statements with respect
to excess office space.
"Tangible Net Worth" shall mean the excess
of total assets over total liabilities,
determined in accordance with generally
accepted accounting principles, with the
following adjustments:
(A) there shall be excluded from assets:
(i) notes, accounts receivable and other
obligations owing to Borrower from its
officers or other Affiliates, and (ii)
all assets which would be classified as
intangible assets under generally
accepted accounting principles,
including without limitation goodwill,
licenses, patents, trademarks, trade
names, copyrights, capitalized software
and organizational costs, licenses and
franchises
(B) there shall be excluded from
liabilities: all indebtedness which is
subordinated to the Obligations under a
subordination agreement in form
specified by Silicon or by language in
the instrument evidencing the
indebtedness which is acceptable to
Silicon in its discretion.
5. FEE. In consideration for Silicon entering into this Amendment,
Borrower shall concurrently pay Silicon a fee in the amount of $45,000 ($40,000
with respect to the Revolving Loans and $5,000 with respect to the Term Loan),
which shall be non-refundable and in addition to all interest and other fees
payable to Silicon under the Loan Documents. Silicon is authorized to charge
said fee to Borrower's loan account.
6. REPRESENTATIONS TRUE. Borrower represents and warrants to Silicon
that all representations and warranties set forth in the Loan Agreement, as
amended hereby, are true and correct.
7. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and Borrower, and the
other written documents and agreements between Silicon and Borrower set forth in
full all of the representations and agreements of the parties with respect to
the subject matter hereof and supersede all prior discussions, representations,
agreements and understandings between the parties with respect to the subject
hereof. Except as herein expressly amended, all of the terms and provisions of
the Loan Agreement, and all other documents and agreements between Silicon and
Borrower shall continue in full force and effect and the same are hereby
ratified and confirmed.
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BORROWER: SILICON:
ONYX SOFTWARE CORPORATION SILICON VALLEY BANK
BY /S/ XXXXX X. XXXX BY /S/ XXXXX XXXXXXXX
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TREASURER TITLE PORTFOLIO MGR.
BY /S/ XXXX XXXXXX
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SECRETARY OR ASS'T SECRETARY
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