EXHIBIT 10.6
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LOAN AND SECURITY AGREEMENT
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CONTENTS
1. ACCOUNTING AND OTHER TERMS ........................................................ 1
2. LOAN AND TERMS OF PAYMENT ......................................................... 1
2.1 Credit Extensions ........................................................ 1
2.1.1 Revolving Advances .............................................. 1
2.1.2 Term Loan Advances .............................................. 2
2.1.3 Letters of Credit ............................................... 3
2.2 Overadvances ............................................................. 3
2.3 Interest Rates, Payments ................................................. 3
2.4 Fees ..................................................................... 4
3. CONDITIONS OF LOANS ............................................................... 4
3.1 Conditions Precedent to Initial Credit Extension ......................... 4
3.2 Conditions Precedent to all Credit Extensions ............................ 4
4. CREATION OF SECURITY INTEREST ..................................................... 5
4.1 Grant of Security Interest ............................................... 5
5. REPRESENTATIONS AND WARRANTIES .................................................... 5
5.1 Due Organization and Authorization ....................................... 5
5.2 Collateral ............................................................... 5
5.3 Litigation ............................................................... 6
5.4 No Material Adverse Change in Financial Statements ....................... 6
5.5 Solvency ................................................................. 6
5.6 Regulatory Compliance .................................................... 6
5.7 Subsidiaries ............................................................. 6
5.8 Full Disclosure .......................................................... 7
6. AFFIRMATIVE COVENANTS ............................................................. 7
6.1 Government Compliance .................................................... 7
6.2 Financial Statements, Reports, Certificates .............................. 7
6.3 Inventory; Returns ....................................................... 8
6.4 Taxes .................................................................... 8
6.5 Insurance ................................................................ 8
6.6 Primary Accounts ......................................................... 8
6.7 Financial Covenants ...................................................... 9
6.8 Further Assurances ....................................................... 9
7. NEGATIVE COVENANTS ................................................................ 9
7.1 Dispositions ............................................................. 9
7.2 Changes in Business, Ownership, Management or Business Locations ......... 10
7.3 Mergers or Acquisitions .................................................. 10
7.4 Indebtedness ............................................................. 10
7.5 Encumbrance .............................................................. 11
7.6 Distributions; Investments ............................................... 11
7.7 Transactions with Affiliates ............................................. 11
7.8 Subordinated Debt ........................................................ 11
7.9 Compliance ............................................................... 11
8. EVENTS OF DEFAULT ................................................................. 11
8.1 Payment Default .......................................................... 11
8.2 Covenant Default ......................................................... 12
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8.3 Material Adverse Change .................................................. 12
8.4 Attachment ............................................................... 12
8.5 Insolvency ............................................................... 12
8.6 Other Agreements ......................................................... 13
8.7 Judgments ................................................................ 13
8.6 Misrepresentations ....................................................... 13
9. BANK'S RIGHTS AND REMEDIES ........................................................ 13
9.1 Rights and Remedies ...................................................... 13
9.2 Power of Attorney ........................................................ 14
9.3 Accounts Collection ...................................................... 14
9.4 Bank Expenses ............................................................ 14
9.5 Bank's Liability for Collateral .......................................... 15
9.6 Remedies Cumulative ...................................................... 15
9.7 Demand Waiver ............................................................ 15
10. NOTICES ........................................................................... 15
11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER ........................................ 15
12. GENERAL PROVISIONS ................................................................ 16
12.1 Successors and Assigns ................................................... 16
12.2 Indemnification .......................................................... 16
12.3 Time of Essence .......................................................... 16
12.4 Severability of Provision ................................................ 16
12.5 Amendments in Writing, Integration ....................................... 16
12.6 Counterparts ............................................................. 16
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12.7 Survival ................................................................. 16
12.8 Confidentiality .......................................................... 17
13. DEFINITIONS ....................................................................... 17
13.1 Definitions .............................................................. 17
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This LOAN AND SECURITY AGREEMENT dated _____________, between SILICON
VALLEY BANK ("Bank"), whose address is 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 with a loan production office located 000 - 000xx Xxxxxx X.X.,
Xxxxx 000, Xxxxxxxx, XX 00000 and ONYX SOFTWARE CORPORATION ("Borrower"), whose
address is 000 000xx Xxxxxx XX, Xxxxxxxx, Xxxxxxxxxx 00000, provides the terms
on which Bank will lend to Borrower and Borrower will repay Bank. The parties
agree as follows:
1. ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement will be construed following
GAAP Calculations and determinations must be made following GAAP. The term
"financial statements" includes the notes and schedules. The terms "including"
and includes" always mean "including (or includes) without limitation," in this
or any Loan Document. This Agreement shall be construed to impart upon Bank a
duty to act reasonably at all times.
2. LOAN AND TERMS OF PAYMENT
2.1 CREDIT EXTENSIONS
Borrower will pay Bank the unpaid principal amount of all Credit Extensions
and interest on the unpaid principal amount of the Credit Extensions.
2.1.1 REVOLVING ADVANCES
(a) Bank will make Advances not exceeding (i) the lesser of (A)
the Committed Revolving Line or (B) the Borrowing Base, whichever is less, minus
(ii) the amount of all outstanding Letters of Credit (including drawn but
unreimbursed Letters of Credit). Advances of up to $1,000,000 outstanding in the
aggregate may be made without regard to any limitation under the Borrowing Base.
However, if Borrower requests Advances beyond $1,000,000 in the aggregate, total
Advances may not exceed 25% of eligible accounts receivable until the initial
accounts receivable audit has been performed. Once an accounts receivable audit
has been completed that is deemed satisfactory to the Bank, if the total
outstanding Advances exceed $1,000,000, the entire amount must comply with the
Borrowing Based limitation set forth above. Amounts borrowed under this Section
may be repaid and reborrowed during the term of this Agreement.
(b) To obtain an Advance, Borrower must notify Bank by facsimile
or telephone by 3:00 p.m. Pacific time on the Business Day the Advance is to be
made. Borrower must promptly confirm the notification by delivering to Bank the
Payment/Advance Form attached as Exhibit B. Bank will credit Advances to
Borrower's deposit account. Bank may make Advances under this Agreement based on
instructions from a Responsible Officer or his or her designee or without
instructions if the Advances are necessary to meet Obligations which have become
due. Bank may rely on any telephone notice given by a person whom Bank believes
is a Responsible Officer or designee. Borrower will indemnify Bank for any loss
Bank suffers due to reliance.
(c) The Committed Revolving Line terminates on the Revolving
Maturity Date, when all Advances and other amounts due under this Agreement are
immediately payable.
2.1.2 TERM LOAN ADVANCES
(a) Bank will make Term Loan Advances not exceeding the lesser of
(i) the Committed Term Loan, or (ii) the Term Loan Borrowing Base, whichever is
less. Amounts borrowed under this Section may not be repaid and reborrowed
during the term of this Agreement.
(b) To obtain a Term Loan Advance, Borrower must notify Bank by
facsimile or telephone by 3:00 p.m. Pacific time on the Business Day the Term
Loan Advance is to be made. Borrower must promptly confirm the notification by
delivering to Bank the Payment/Advance Form attached as Exhibit B, along with
copies of appropriate equipment Invoices. Bank will credit Term Loan Advances
to Borrower's deposit account. Bank may make Term Loan Advances under this
Agreement based on Instructions from a Responsible Officer or his or her
designee or without instructions if the Term Loan Advances are necessary to meet
Obligations which have become due. Bank may rely on any telephone notice given
by a person whom Bank believes is a Responsible Officer or designee. Borrower
will indemnify Bank for any loss Bank suffers due to reliance.
(c) Bank shall make Term Loan Advances under the Committed Term
Loan, in accordance with the conditions described above, during the twelve month
period beginning with the date of this Agreement, and ending on that date which
is twelve months thereafter (the "Advance Period"). During the Advance Period,
interest shall be paid monthly, in arrears, on the first day of each month. At
the end of the Advance Period, the Committed Term Line shall convert to a fully
amortizing term loan, with thirty-six (36) equal monthly payments of principal,
plus interest. The first monthly payment of principal and interest shall be due
and payable on the first day of the first full month following the end of the
Advance Period. The final payment of all outstanding principal, plus any accrued
but unpaid interest, shall be due on the first day of that month which is
thirty-six (36) months from the end of the Advance Period (the "Term Loan
Maturity Date").
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2.1.3 LETTERS OF CREDIT
Bank will issue or have issued Letters of Credit for Borrower's account not
exceeding (i) the lesser of the Committed Revolving Line or the Borrowing Base
minus (ii) the outstanding principal balance of the Advances; however, the face
amount of outstanding Letters of Credit (including drawn but unreimbursed
Letters of Credit and any Letter of Credit Reserve) may not exceed $8,000,000.
Each Letter of Credit will have an expiry date of no later than 180 days after
the Revolving Maturity Date, but Borrower's reimbursement obligation will be
secured by cash on terms acceptable to Bank at any time after the Revolving
Maturity Date if the term of this Agreement is not extended by Bank.
2.2 OVERADVANCES
If Borrower's Obligations under Section 2.1.1, and 2.1.3 exceed the lesser
of either (i) the Committed Revolving Line or (ii) the Borrowing Base, Borrower
must immediately pay Bank the excess. In addition, if Borrower's Obligations
under Sections 2.1.1 and 2.1.3 exceed $1,000,000, and the Borrowing Base does
not support Advances in excess of $1,000,000, Borrower must immediately pay Bank
the excess.
2.3 INTEREST RATES, PAYMENTS
(a) Committed Revolving Line Interest Rate. Advances accrue interest on
the outstanding principal balance at a per annum rate of (i) the Prime Rate, or
(ii) a rate equal to the LIBOR Rate, based on a 30-, 60- or 90-day LIBOR
interest period, plus 2.00% per annum, all as set forth in the LIBOR Supplement
to Agreement of even date herewith. Borrower may elect between (i) or (ii)
above at its own discretion. After an Event of Default, Obligations accrue
interest at 5 percent above the rate effective immediately before the Event of
Default. The interest rate shall increase or decrease when the Prime Rate or
LIBOR Rate changes. Interest is computed on a 360-day year for the actual
number of days elapsed.
(b) Committed Term Loan Interest Rate. Term Loan Advances accrue interest
on the outstanding principal balance at a per annum rate of 0.25% percentage
points above the Prime Rate. After an Event of Default, Obligations accrue
interest at 5 percent above the rate effective immediately before the Event of
Default. The interest rate increases or decreases when the Prime Rate changes.
Interest is computed on a 360-day year for the actual number of days elapsed.
(c) Payments. Interest due on the Committed Revolving Line and the
Committed Term Loan is payable on the first day of each month. Bank may debit
any of Borrower's deposit accounts including Account Number _______ for
principal and interest payments or any amounts Borrower owes Bank. Bank will
notify Borrower when it debits Borrower's accounts. These debits are not a set-
off. Payments received
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after 12:00 noon Pacific time are considered received at the opening of business
on the next Business Day. When a payment is due on a day that is not a Business
Day, the payment is due the next Business Day and additional fees or interest
accrue.
2.4 FEES
Borrower will pay:
(a) Committed Revolving Line Facility Fee. A fully earned, non-
refundable Facility Fee of $2,500 due on the Closing Date, plus a fee of 0.20%
per annum on the unused portion of the facility, paid quarterly in arrears.
(b) Committed Term Loan Facility Fee. A fully earned non-refundable
Facility Fee of, at Borrower's discretion, (i) 0.30 % of the Committed Term
Line, payable at closing, or (ii) 0.50% per annum of the unused portion of the
facility during the Advance Period, paid quarterly in arrears.
(c) Bank Expenses. All Bank Expenses (including reasonable attorneys'
fees and expenses) incurred through and after the date of this Agreement, are
payable when due.
3. CONDITIONS OF LOANS
3.1 CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION
Bank's obligation to make the initial Credit Extension is subject to the
condition precedent that it receive the agreements, documents and fees it
requires.
3.2 CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS
Bank's obligations to make each Credit Extension, including the initial
Credit Extension, is subject to the following:
(a) timely receipt of any Payment/Advance Form; and
(b) the representations and warranties in Section 5 must be materially
true on the date of the Payment/Advance Form and on the effective date of each
Credit Extension and no Event of Default may have occurred and be continuing, or
result from the Credit Extension. Each Credit Extension is Borrower's
representation and warranty on that date that the representations and warranties
of Section 5 remain true.
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4. CREATION OF SECURITY INTEREST
4.1 GRANT OF SECURITY INTEREST
Borrower grants Bank a continuing security interest in all presently
existing and later acquired Collateral to secure all Obligations and performance
of each of Borrower's duties under the Loan Documents. Except for Permitted
Liens, any security interest will be a first priority security interest in the
Collateral. Bank may place a "hold" on any deposit account pledged as
Collateral. Borrower does not grant Bank a security interest in, or lien on,
any assets except the Collateral. Borrower agrees not to grant a security
interest in those assets that are not part of the Collateral to any Person so
long as this Agreement, as amended or modified, remains in effect.
5. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1 DUE ORGANIZATION AND AUTHORIZATION
Borrower and each Subsidiary is duly existing and in good standing in its
state of formation and qualified and licensed to do business in, and in good
standing in, any state in which the conduct of its business or its ownership of
property requires that it be qualified.
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not conflict with Borrower's formation documents, nor
constitute an event of default under any material agreement by which Borrower is
bound. Borrower is not in default under any agreement to which or by which it
is bound in which the default could cause a Material Adverse Change.
5.2 COLLATERAL
Borrower has good title to the Collateral, free of Liens except Permitted
Liens. The Accounts are bona fide, existing obligations, and the service or
property has been performed or delivered to the account debtor or its agent for
immediate shipment to and unconditional acceptance by the account debtor.
Borrower has no notice of any actual or imminent Insolvency Proceeding of any
account debtor whose accounts are an Eligible Account in any Borrowing Base
Certificate. All inventory is in all material respects of good and marketable
quality, free from material defects.
5.3 LITIGATION
Except as shown in the Schedule, there are no actions or proceedings
pending or, to Borrower's knowledge, threatened by or against Borrower or any
Subsidiary in which an adverse decision could cause a Material Adverse Change.
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5.4 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS
All consolidated financial statements for Borrower, and any Subsidiary,
delivered to Bank fairly present in all material respects Borrower's
consolidated financial condition and Borrower's consolidated results of
operations. There has not been any material deterioration in Borrower's
consolidated financial condition since the date of the most recent financial
statements submitted to Bank.
5.5 SOLVENCY
The fair salable value of Borrower's assets (including goodwill minus
disposition costs) exceeds the fair value of its liabilities; Borrower is not
left with unreasonably small capital after the transactions in this Agreement
and Borrower is able to pay its debts (including trade debts) as they mature.
5.6 REGULATORY COMPLIANCE
Borrower is not an "investment company" or a company "controlled" by an
"investment company" under the Investment Company Act. Borrower is not engaged
as one of its important activities in extending credit for margin stock (under
Regulations G, T and U of the Federal Reserve Board of Governors). Borrower has
complied with the Federal Fair Labor Standards Act. Borrower has not violated
any laws, ordinances or rules, the violation of which could cause a Material
Adverse Change. None of Borrower's or any Subsidiary's properties or assets has
been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge,
by previous Persons, in disposing, producing, storing, treating, or transporting
any hazardous substance other than legally. Borrower and each Subsidiary has
timely filed all required tax returns and paid, or made adequate provision to
pay, all taxes, except those being contested in good faith with adequate
reserves under GAAP. Borrower and each Subsidiary has obtained all consents,
approvals and authorizations of, made all declarations or filings with, and
given all notices to, all government authorities that are necessary to continue
its business as currently conducted.
5.7 SUBSIDIARIES
Borrower does not own any stock, partnership interest or other equity
securities except for Permitted Investments.
5.8 FULL DISCLOSURE
No representation, warranty or other statement of Borrower in any
certificate or written statement given to Bank contains any untrue statement of
a material fact or omits to state a material fact necessary to make the
statements contained in the certificates or statements not misleading.
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6. AFFIRMATIVE COVENANTS
Borrower will do all of the following:
6.1 GOVERNMENT COMPLIANCE
Borrower will maintain its and all Subsidiaries' legal existence and good
standing in its jurisdiction of formation and maintain qualification in each
jurisdiction in which the failure to so qualify could have a material adverse
effect on Borrower's business or operations. Borrower will comply, and have
each Subsidiary comply, with all laws, ordinances and regulations to which it is
subject, noncompliance with which could have a material adverse effect on
Borrower's business or operations or cause a Material Adverse Change.
6.2 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES
(a) Borrower will deliver to Bank: (i) as soon as available, but no later
than 30 days after the last day of each month, a company prepared consolidated
balance sheet and income statement covering Borrower's consolidated operations
during the period, in a form and certified by a Responsible Officer acceptable
to Bank; (ii) as soon as available, but no later than 90 days after the last day
of Borrower's fiscal year, audited consolidated financial statements prepared
under GAAP, consistently applied, together with an unqualified opinion on the
financial statements from an independent certified public accounting firm
acceptable to Bank; (iii) a prompt report of any legal actions pending or
threatened against Borrower or any Subsidiary that could result in damages or
costs to Borrower or any Subsidiary of $100,000 or more; and (iv) budgets, sales
projections, operating plans or other financial information Bank requests.
(b) Within 20 days after the last day of each month, Borrower will deliver
to Bank a Borrowing Base Certificate signed by a Responsible Officer in the form
of Exhibit C with aged listings of accounts receivable and accounts payable.
This information shall not be required if less $1,000,000 is outstanding under
the Committed Revolving Line.
(c) Within 30 days after the last day of each quarter Borrower will
deliver to Bank with the monthly financial statements a Compliance Certificate
signed by a Responsible Officer in the form of Exhibit D. A Compliance
Certificate shall not be required if Borrower is not utilizing the Committed
Revolving Line or the Committed Term Loan.
(d) Bank has the right to audit Borrower's Accounts at Borrower's expense,
but the audits will be conducted no more often than every year unless an Event
of Default has occurred and is continuing. Borrower's initial audit must be
conducted
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within 45 days of the execution of this Agreement. Borrower's expense for such
audits is limited to $750 per audit.
6.3 INVENTORY; RETURNS
Borrower will keep all Inventory in good and marketable condition, free
from material defects. Returns and allowances between Borrower and its account
debtors will follow Borrower's customary practices as they exist at execution of
this Agreement. Borrower must promptly notify Bank of all returns, recoveries,
disputes and claims, that involve more than $50,000.
6.4 TAXES
Borrower will make, and cause each Subsidiary to make, timely payment of
all material federal, state, and local taxes or assessments and will deliver to
Bank, on demand, appropriate certificates attesting to the payment.
6.5 INSURANCE
Borrower will keep its business and the Collateral insured for risks and in
amounts, as Bank requests. Insurance policies will be in a form, with
companies, and in amounts that are satisfactory to Bank. All property policies
will have a lender's loss payable endorsement showing Bank as an additional loss
payee and all liability policies will show Bank as an additional insured and
provide that the insurer must give Bank at least 20 days notice before canceling
its policy. At Bank's request, Borrower will deliver certified copies of
policies and evidence of all premium payments. Proceeds payable under any
policy will, at Bank's option, be payable to Bank on account of the Obligations.
6.6 PRIMARY ACCOUNTS
Borrower will maintain its primary depository and operating accounts with
Bank.
6.7 FINANCIAL COVENANTS
Borrower will maintain as of the last day of each quarter:
(i) ADJUSTED QUICK RATIO. A ratio of Quick Assets to Current
Liabilities of at least 1.25 to 1.00.
(ii) Borrower shall maintain either:
(a) DEBT SERVICE COVERAGE of at least 1.40 to 1.00; or
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(b) LIQUIDITY COVERAGE of at least 1.40 to 1.00.
(iii) PROFITABILITY. Borrower shall not incur a maximum quarterly
"Loss," as defined below, in excess of $2,000,000 for the quarter ending
September 30, 1998; in excess of $2,000,000, for the quarter ending December 31,
1998; in excess of $1,000,000 for the quarter ending March 31, 1999; in excess
of $750,000 for the quarter ending June 30, 1999; and in excess of $500,000 for
the quarter ending September 30, 1999. For purposes of this Section, "Loss"
means net income after taxes of less than $0.00, as reported on Borrower's
financial statements, and as adjusted to exclude non-recurring charges, fees and
expenses associated with mergers and acquisitions (other non-recurring items
shall not be excluded).
6.8 FURTHER ASSURANCES
Borrower will execute any further instruments and take further action as
Bank requests to perfect or continue Bank's security interest in the Collateral
or to effect the purposes of this Agreement.
7. NEGATIVE COVENANTS
Borrower will not do any of the following:
7.1 DISPOSITIONS
Convey, sell, lease, transfer or otherwise dispose of (collectively
"Transfer"), or permit any of its subsidiaries to Transfer, all or any part of
its business or property, other than Transfers (i) of Inventory in the ordinary
course of business; (ii) of non-exclusive licenses and similar arrangements for
the use of the property of Borrower or its Subsidiaries in the ordinary course
of business; or (iii) of worn-out or obsolete Equipment.
7.2 CHANGES IN BUSINESS, OWNERSHIP, MANAGEMENT OR BUSINESS LOCATIONS
Engage in or permit any of its Subsidiaries to engage in any business other
than the businesses currently engaged in by Borrower or have a material change
in its ownership of greater than 25%. Borrower will not, without at least 30
days prior written notice, relocate its chief executive office. (Prior to the
date of this Agreement Borrower provided Bank with satisfactory notice of its
intention to relocate its chief executive office in 1999).
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7.3 MERGERS OR ACQUISITIONS
Merge or consolidate, or permit any of its Subsidiaries to merge or
consolidate, with any other Person, Subsidiary or with Borrower, or acquire, or
permit any of its Subsidiaries to acquire, all or substantially all of the
capital stock or property of another Person, unless the following conditions are
satisfied:
(i) Borrower shall be the surviving entity in any merger,
consolidation or acquisition;
(ii) The merger, consolidation or acquisition must be in the same
industry as Borrower is currently engaged in, or a related industry;
(iii) Borrower shall provide Bank with written notice of any such
merger, consolidation or acquisition upon execution of a letter of intent
documenting the transaction; and
(iv) Borrower shall remain in compliance with all terms and
conditions of this Loan and Security Agreement, including financial covenants,
and no Event of Default shall have occurred or be caused by the merger,
consolidation or acquisition.
7.4 INDEBTEDNESS
Create, incur, assume, or be liable for any indebtedness, or permit any
Subsidiary to do so, other than Permitted Indebtedness. If the additional
Indebtedness arises in connection with a transaction pursuant to Section 7.3
above, such additional Indebtedness shall be deemed Permitted Indebtedness
provided that the additional Indebtedness has no effect upon the priority or
validity of Bank's security interest in the Collateral.
7.5 ENCUMBRANCE
Create, incur, or allow any Lien on any of its property, or assign or
convey any right to receive income, including the sale of any Accounts, or
permit any of its Subsidiaries to do so, except for Permitted Liens, or permit
any Collateral not to be subject to the first priority security interest granted
here.
7.6 DISTRIBUTIONS; INVESTMENTS
Pay any dividends or make any distribution or payment or redeem, retire or
purchase any capital stock.
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7.7 TRANSACTIONS WITH AFFILIATES
Directly or indirectly enter or permit any material transaction with any
Affiliate except transactions that are in the ordinary course of Borrower's
business, on terms less favorable to Borrower than would be obtained in an arm's
length transaction with a non-affiliated Person.
7.8 SUBORDINATED DEBT
Make or permit any payment on any Subordinated Debt, except under the terms
of the Subordinated Debt, or amend any provision in any document relating to the
Subordinated Debt without Bank's prior written consent.
7.9 COMPLIANCE
Become an "investment company" or a company controlled by an "investment
company," under the Investment Company Act of 1940 or undertake as one of its
important activities extending credit to purchase or carry margin stock, or use
the proceeds of any Advance for that purpose; fail to meet the minimum funding
requirements of ERISA, permit a Reportable Event or Prohibited Transaction, as
defined in ERISA, to occur; fail to comply with the Federal Fair Labor Standards
Act or violate any other law or regulation, if the violation could have a
material adverse effect on Borrower's business or operations or cause a Material
Adverse Change, or permit any of its Subsidiaries to do so.
8. EVENTS OF DEFAULT
Any one of the following is an Event of Default:
8.1 PAYMENT DEFAULT
If Borrower fails to pay any of the Obligations;
8.2 COVENANT DEFAULT
If Borrower does not perform any obligation in Section 6 or violates any
covenant in Section 7 or does not perform or observe any other material term,
condition or covenant in this Agreement, any Loan Documents, or in any agreement
between Borrower and Bank and as to any default under a term, condition or
covenant that can be cured, has not cured the default within 10 days after it
occurs, or if the default cannot be cured within 10 days or cannot be cured
after Borrower's attempts within 10 day period, and the default may be cured
within a reasonable time, then Borrower has an additional period (of not more
than 30 days) to attempt to cure the default. During the additional time, the
failure to cure the default is not an Event of Default (but no Credit Extensions
will be made during the cure period);
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8.3 MATERIAL ADVERSE CHANGE
(i) If there occurs a material impairment in the perfection or priority of
Bank's security interest in the Collateral or in the value of such Collateral
which is not covered by adequate insurance or (ii) if Bank determines, based
upon information available to it and in its reasonable judgment, that there is a
reasonable likelihood that Borrower will fail to comply with one or more of the
financial covenants in Section 6 during the next succeeding financial reporting
period;
8.4 ATTACHMENT
If any material portion of Borrower's assets is attached, seized, levied
on, or comes into possession of a trustee or receiver and the attachment,
seizure or levy is not removed in 10 days, or if Borrower is enjoined,
restrained, or prevented by court order from conducting a material part of its
business or if a judgment or other claim becomes a Lien on a material portion of
Borrower's assets, or if a notice of lien, levy, or assessment is filed against
any of Borrower's assets by any government agency and not paid within 10 days
after Borrower receives notice. These are not Events of Default if stayed or if
a bond is posted pending contest by Borrower (but no Credit Extensions will be
made during the cure period);
8.5 INSOLVENCY
If Borrower becomes insolvent or if Borrower begins an Insolvency
Proceeding or an Insolvency Proceeding is begun against Borrower and not
dismissed or stayed within 30 days (but no Credit Extensions will be made before
any Insolvency Proceeding is dismissed);
8.6 OTHER AGREEMENTS
If there is a default in any agreement between Borrower and a third party
that gives the third Party the right to accelerate any Indebtedness exceeding
$100,000 or that could cause a Material Adverse Change;
8.7 JUDGMENTS
If a money judgment(s) in the aggregate of at least $50,000 is rendered
against Borrower and is unsatisfied and unstayed for 10 days (but no Credit
Extensions will be made before the judgment is stayed or satisfied); or
8.6 MISREPRESENTATIONS
If Borrower or any Person acting for Borrower makes any material
misrepresentation or material misstatement now or later in any warranty or
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representation in this Agreement or in any writing delivered to Bank or to
induce Bank to enter this Agreement or any Loan Document.
9. BANK'S RIGHTS AND REMEDIES
9.1 RIGHTS AND REMEDIES
When an Event of Default occurs and continues Bank may, without notice or
demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an
Event of Default described in Section 8.5 occurs all Obligations are immediately
due and payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's benefit
under this Agreement or under any other agreement between Borrower and Bank;
(c) Settle or adjust disputes and claims directly with account
debtors for amounts, on terms and in any order that Bank considers advisable;
(d) Make any payments and do any acts it considers necessary or
reasonable to protect its security interest in the Collateral. Borrower will
assemble the Collateral if Bank requires and make it available as Bank
designates. Bank may enter premises where the Collateral is located, take and
maintain possession of any part of the Collateral, and pay, purchase, contest or
compromise any Lien which appears to be prior or superior to its security
interest and pay all expenses incurred. Borrower grants Bank a license to enter
and occupy any of its premises, without charge, to exercise any of Bank's rights
or remedies;
(e) Apply to the Obligations any (i) balances and deposits of
Borrower it holds, or (ii) any amount hold by Bank owing to or for the credit or
the account of Borrower;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare
for sale, advertise for sale, and sell the Collateral; and
(g) Dispose of the Collateral according to the Code.
9.2 POWER OF ATTORNEY
Effective only when an Event of Default occurs and continues, Borrower
irrevocably appoints Bank as its lawful attorney to: (i) endorse Borrower's
name on any checks or other forms of payment or security: (ii) sign Borrower's
name on any invoice or xxxx of lading for any Account or drafts against account
debtors, (iii) make, settle, and adjust all claims under Borrower's insurance
policies; (iv) settle and adjust
-13-
disputes and claims about the Accounts directly with account debtors, for
amounts and on terms Bank determines reasonable; and (v) transfer the Collateral
into the name of Bank or a third party as the Code permits. Bank may exercise
the power of attorney to sign Borrower's name on any documents necessary to
perfect or continue the perfection of any security interest regardless of
whether an Event of Default has occurred. Bank's appointment as Borrower's
attorney in fact, and all of Bank's rights and powers, coupled with an interest,
are irrevocable until all Obligations have been fully repaid and performed and
Bank's obligation to provide Credit Extensions terminates.
9.3 ACCOUNTS COLLECTION
When an Event of Default occurs and continues, Bank may notify any Person
owing Borrower money of Bank's security interest in the funds and verify the
amount of the Account. Borrower must collect all payments in trust for Bank
and, if requested by Bank, immediately deliver the payments to Bank in the form
received from the account debtor, with proper endorsements for deposit.
9.4 BANK EXPENSES
If Borrower fails to pay any amount or furnish any required proof of
payment to third persons Bank may make all or part of the payment or obtain
insurance policies required in Section 6.5, and take any action under the
policies Bank deems prudent. Any amounts paid by Bank are Bank Expenses and
immediately due and payable, bearing interest at the then applicable rate and
secured by the Collateral. No payments by Bank are deemed an agreement to make
similar payments in the future or Bank's waiver of any Event of Default.
9.5 BANK'S LIABILITY FOR COLLATERAL
If Bank complies with reasonable banking practices it is not liable for:
(a) the safekeeping of the Collateral; (b) any loss or damage to the Collateral;
(c) any diminution in the value of the Collateral; or (d) any act or default of
any carrier, warehouseman, bailee, or other person. Borrower bears all risk of
loss, damage or destruction of the Collateral.
9.6 REMEDIES CUMULATIVE
Bank's rights and remedies under this Agreement, the Loan Documents, and
all other agreements are cumulative. Bank has all rights and remedies provided
under the Code, by law, or in equity. Bank's exercise of one right or remedy is
not an election, and Bank's waiver of any Event of Default is not a continuing
waiver. Bank's delay is not a waiver, election, or acquiescence. No waiver is
effective unless signed by Bank and then is only effective for the specific
instance and purpose for which it was given.
-14-
9.7 DEMAND WAIVER
Borrower waives demand, notice of default or dishonor, notice of payment
and nonpayment, notice of any default, nonpayment at maturity, release,
compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guarantees held by Bank on which Borrower is
liable.
10. NOTICES
All notices or demands by any party about this Agreement or any other
related agreement must be in writing and be personally delivered or sent by an
overnight delivery service, by certified mail, postage prepaid, return receipt
requested, or by telefacsimile to the addresses set forth at the beginning of
this Agreement. A Party may change its notice address by giving the other Party
written notice.
11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
Washington law governs the Loan Documents without regard to principles of
conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction
of the State and Federal courts in King County, Washington.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12. GENERAL PROVISIONS
12.1 SUCCESSORS AND ASSIGNS
This Agreement binds and is for the benefit of the successors and permitted
assigns of each party. Borrower may not assign this Agreement or any rights
under it without Bank's prior written consent which may be granted or withheld
in Bank's discretion. Bank has the right, without the consent of or notice to
Borrower, to sell, transfer, negotiate, or grant participation in all or any
part of, or any interest in, Bank's obligations, rights and benefits under this
Agreement.
12.2 INDEMNIFICATION
If any claim or demand is brought against Bank because of Bank's lending
relationship with Borrower, Borrower agrees to reimburse Bank for all reasonable
expenses, including attorneys' fees.
-15-
12.3 TIME OF ESSENCE
Time is of the essence for the performance of all obligations in this
Agreement.
12.4 SEVERABILITY OF PROVISION
Each provision of this Agreement is severable from every other provision in
determining the enforceability of any provision.
12.5 AMENDMENTS IN WRITING, INTEGRATION
All amendments to this Agreement must be in writing and signed by Borrower
and Bank. This Agreement represents the entire agreement about this subject
matter, and supersedes prior negotiations or agreements. All prior agreements,
understandings, representations, warranties, and negotiations between the
parties about the subject matter of this Agreement merge into this Agreement and
the Loan Documents.
12.6 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and
delivered, are an original, and all taken together, constitute one Agreement.
12.7 SURVIVAL
All covenants, representations and warranties made in this Agreement
continue in full force while any Obligations remain outstanding. The
obligations of Borrower in Section 12.2 to indemnify Bank will survive until all
statutes of limitations for actions that may be brought against Bank have run.
12.8 CONFIDENTIALITY
In handling any confidential information, Bank will exercise the same
degree of care that it exercises for its own proprietary information, but
disclosure of information may be made (i) to Bank's subsidiaries or affiliates
in connection with their business with Borrower, (ii) to prospective transferees
or purchasers of any interest in the Loans, (iii) as required by law,
regulation, subpoena, or other order, (iv) as required in connection with Bank's
examination or audit and (v) as Bank considers appropriate exercising remedies
under this Agreement. Confidential information does not include information
that either: (a) is in the public domain or in Bank's possession when disclosed
to Bank, or becomes part of the public domain after disclosure to Bank; or (b)
is disclosed to Bank by a third party, if Bank does not know that the third
party is prohibited from disclosing the information.
-16-
13. DEFINITIONS
13.1 DEFINITIONS
In this Agreement:
"ACCOUNTS" are all existing and later arising accounts, contract rights,
and other obligations owed Borrower in connection with its sale or lease of
goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
"ADVANCE" is an Advance or Advances under the Committed Revolving Line.
"ADVANCE PERIOD" is defined in Section 2.1.2.
"AFFILIATE" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"BANK EXPENSES" are all audit fees (except as limited by Section 6.2(d)
above) and expenses and reasonable costs or expenses (including reasonable
attorneys' fees and expenses) for preparing, negotiating, administering,
defending and enforcing the Loan Documents (including appeals or Insolvency
Proceedings).
"BORROWER'S BOOKS" are all Borrower's books and records including ledgers,
records regarding Borrower's assets or liabilities, the Collateral, business
operations or financial condition and all computer programs or discs or any
equipment containing the information.
"BORROWING BASE" is 80% of Eligible Accounts as determined by Bank from
Borrower's most recent Borrowing Base Certificate for all Advances in excess of
$1,000,000 in the aggregate. All Advances up to an aggregate amount of
$1,000,000 shall not be subject to the margin requirement of the Borrowing Base.
"BUSINESS DAY" is any day that is not a Saturday, Sunday or a day on which
Bank is closed.
"CLOSING DATE" is the date of this Agreement.
"CODE" is the Washington Uniform Commercial Code.
"COLLATERAL" is the property described on Exhibit A.
-17-
"COMMITTED REVOLVING LINE" is an Advance of up to $8,000,000.
"COMMITTED TERM LOAN" is a Term Loan Advance of up to $3,000.000.
"CONTINGENT OBLIGATION" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (ii) any obligations for undrawn letters of credit for the account of
that Person; and (iii) all obligations from any interest rate, currency or
commodity swap agreement, interest rate cap or collar agreement or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but "Contingent
Obligation" does not include endorsements in the ordinary course of business.
The amount of a Contingent Obligation is the stated or determined amount of the
primary obligation for which the Contingent Obligation is made or, if not
determinable, the maximum reasonably anticipated liability for it determined by
the Person in good faith; but the amount may not exceed the maximum of the
obligations under the guarantee or other support arrangement.
"CREDIT EXTENSION" is each Advance, Letter of Credit, Exchange Contract, or
any other extension of credit by Bank for Borrower's benefit.
"CURRENT LIABILITIES" are the aggregate amount of Borrower's Total
Liabilities which mature within one (1) year, excluding the current portion of
Borrower's deferred revenue.
"DEBT SERVICE COVERAGE" is defined as net income, plus interest expense,
plus depreciation, plus the change in capitalized software for the most recent
quarter, annualized (multiplied by four) and divided by the current portion of
long term debt plus annualized (multiplied by four) interest expense for the
most recent quarter.
"ELIGIBLE ACCOUNTS" are Accounts in the ordinary course of Borrower's
business that meet all Borrower's representations and warranties in Section 5.2;
but Bank may change eligibility standards by giving Borrower notice. Unless
Bank agrees otherwise in writing, Eligible Accounts will not include:
(a) Accounts that the account debtor has not paid within 90 days of
invoice date, or 120 days if extended terms have been granted to the account
debtor;
(b) Accounts for an account debtor, 50% or more of whose Accounts
have not been paid within 90 days of invoice date, or 120 days if extended terms
have been granted to the account debtor;
-18-
(c) Credit balances over 90 days from invoice date;
(d) Accounts for an account debtor, including Affiliates, whose total
obligations to Borrower exceed 25% of all Accounts, for the amounts that exceed
that percentage, unless Bank approves in writing;
(e) Accounts for which the account debtor does not have its principal
place of business in the United States, if such accounts exceed 20% of eligible
accounts receivable;
(f) Accounts for which the account debtor is a federal, state or
local government entity or any department, agency, or instrumentality;
(g) Accounts for which Borrower owes the account debtor, but only up
to the amount owed (sometimes called "contra" accounts, accounts payable,
customer deposits or credit accounts);
(h) Accounts for demonstration or promotional equipment, or in which
goods are consigned, sales guaranteed, sale or return, sale on approval, xxxx
and hold, or other terms if account debtor's payment may be conditional;
(i) Accounts for which the account debtor is Borrower's Affiliate,
officer, employee, or agent;
(j) Accounts in which the account debtor disputes liability or makes
any claim and Bank believes there may be a basis for dispute (but only up to the
disputed or claimed amount), or if the Account Debtor is subject to an
Insolvency Proceeding, or becomes insolvent, or goes out of business;
(k) Accounts for which Bank reasonably determines collection to be
doubtful.
"EQUIPMENT" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which Borrower has any interest.
"ERISA" is the Employment Retirement Income Security Act of 1974, and its
regulations.
"GAAP" is generally accepted accounting principles.
"INDEBTEDNESS" is (a) indebtedness for borrowed money or the deferred price
of property or services, such as reimbursement and other obligations for surety
bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
-19-
"INSOLVENCY PROCEEDING" are proceedings by or against any Person under the
United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INVENTORY" is present and future inventory in which Borrower has any
interest, including merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products intended for sale or
lease or to be furnished under a contract of service, of every kind and
description now or later owned by or in the custody or possession, actual or
constructive, of Borrower, including inventory temporarily out of its custody or
possession or in transit and including returns on any accounts or other proceeds
(including insurance proceeds) from the sale or disposition of any of the
foregoing and any documents of title.
"INVESTMENT" is any beneficial ownership of (including stock, partnership
interest or other securities) any Person, or any loan, advance or capital
contribution to any Person.
"LIEN" is a mortgage, lien, deed of trust charge, pledge, security interest
or other encumbrance.
"LIQUIDITY COVERAGE" is defined as Borrower's unrestricted cash balances,
plus 80% of Borrower's eligible accounts receivable (or 60% of Borrower's total
accounts receivable if less than $1,000,000 is outstanding under the Committed
Revolving Line), less the balance outstanding under the Committed Revolving
Line, divided by the principal balance of the Committed Term Loan.
"LOAN DOCUMENTS" are, collectively, this Agreement, any note, or notes or
guaranties executed by Borrower or Guarantor, and any other present or future
agreement between Borrower and/or for the benefit of Bank in connection with
this Agreement, all as amended, extended or restated.
"LOSS" is defined in Section 6.7.
"MATERIAL ADVERSE CHANGE" is defined in Section 8.3.
"OBLIGATIONS" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including letters of credit and
Exchange Contracts and including interest accruing after Insolvency Proceedings
begin and debts, liabilities, or obligations of Borrower assigned to Bank.
"PERMITTED INDEBTEDNESS" is:
-20-
(a) Borrower's indebtedness to Bank under this Agreement or any other
Loan Document;
(b) Indebtedness existing on the Closing Date and shown on the
Schedule;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors incurred in the ordinary course
of business; and
(e) Indebtedness secured by Permitted Liens.
"PERMITTED INVESTMENTS" are:
(a) Investments shown on the Schedule and existing on the Closing Date;
and
(b) (i) marketable direct obligations issued or unconditionally guaranteed
by the United States or its agency or any State maturing within one year from
its acquisition, (ii) commercial paper maturing no more than one year after its
creation and having the highest rating from either Standard & Poor's Corporation
or Xxxxx'x Investors Service, Inc., and (iii) Bank's certificates of deposit
issued maturing no more than one year after issue.
"PERMITTED LIENS" are:
(a) Liens existing on the Closing Date and shown on the Schedule or
arising under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or
levies, either not delinquent or being contested in good faith and for which
Borrower maintains adequate reserves on its Books, if they have no priority over
any of Bank's security interests;
(c) Purchase money Liens (i) on Equipment acquired or held by
Borrower or its Subsidiaries incurred for financing the acquisition of the
Equipment, or (ii) existing on equipment when acquired, if the Lien is confined
to the property and improvements and the proceeds of the equipment;
(d) Leases or subleases and licenses or sublicenses granted in the
ordinary course of Borrower's business and any interest or title of a lessor,
licensor or under any lease or license, if the leases, subleases, licenses and
sublicenses permit granting Bank a security interest;
-21-
(e) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c), but any extension,
renewal or replacement Lien must be limited to the property encumbered by the
existing Lien and the principal amount of the indebtedness may not increase.
"PERSON" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company association, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
firm, joint stock company, estate, entity or government agency.
"PRIME RATE" is Bank's most recently announced "prime rate," even if it is
not Bank's lowest rate.
"QUICK ASSETS" is, on any date, Borrower's consolidated, unrestricted cash,
cash equivalents, net billed accounts receivable and investments with maturities
of fewer than 12 months determined according to GAAP.
"RESPONSIBLE OFFICER" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Controller of Borrower.
"REVOLVING MATURITY DATE" is June 1, 2000.
"SCHEDULE" is any attached schedule of exceptions.
"SUBORDINATED DEBT" is debt incurred by Borrower subordinated to Borrower's
debt to Bank (and identified as subordinated by Borrower and Bank).
"SUBSIDIARY" is for any Person, or any other business entity of which more
than 50% of the voting stock or other equity interests is owned or controlled,
directly or indirectly, by the Person or one of more Affiliates of the Person.
"TERM LOAN ADVANCE" is an advance or advances under the Committed Term
Loan.
"TERM LOAN BORROWING BASE," for each advance under the Committed Term Line,
100% of invoice amounts for equipment purchased by Borrower after June 1, 1998.
However, non-standard equipment, including charges for taxes, shipping and
installation, shall be limited to 35% of the amount outstanding under the
Committed Term Loan.
"TERM LOAN MATURITY DATE" is defined in Section 2.1.2.
BORROWER: BANK:
ONYX SOFTWARE CORPORATION SILICON VALLEY BANK
-22-
By: /s/ XXXXXX XXXXXXX 9-3-98 By: /s/ XXXX X. XXXXXX
------------------------------- ----------------------------------
Title: C.F.O Title: AVP
---------------------------- -------------------------------
-23-
EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest in
and to the following:
All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower, whether or not earned by performance, and any
and all credit insurance, guaranties, and other security therefor, as well as
all merchandise returned to or reclaimed by Borrower;
All goods and equipment now owned or hereafter acquired, including, without
limitation, all machinery, fixtures, vehicles (including motor vehicles and
trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located; and
All Borrower's Books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions
and accessions to and proceeds thereof.
-24-
EXHIBIT B
LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM
DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., P.S.T.
TO: CENTRAL CLIENT SERVICE DIVISION DATE:______________
FAX#: (000) 000-0000 TIME:______________
--------------------------------------------------------------------------------
FROM: ONYX Software Corporation
-----------------------------------------------------------------------
CLIENT NAME (BORROWER)
REQUESTED BY:________________________________________________________________
AUTHORIZED SIGNER'S NAME
AUTHORIZED SIGNATURE:________________________________________________________
PHONE NUMBER:________________________________________________________________
FROM ACCOUNT #_____________________ TO ACCOUNT #______________________
REQUESTED TRANSACTION TYPE REQUESTED DOLLAR AMOUNT
-------------------------- -----------------------
PRINCIPAL INCREASE (ADVANCE) $________________________________
PRINCIPAL PAYMENT (ONLY) $________________________________
INTEREST PAYMENT (ONLY) $________________________________
PRINCIPAL AND INTEREST (PAYMENT) $________________________________
OTHER INSTRUCTIONS:__________________________________________________________
_____________________________________________________________________________
All Borrower's representations and warranties in the Loan and Security Agreement
are true, correct and complete in all material respects on the date of the
telephone request for and Advance confirmed by this Borrowing Certificate; but
those representations and warranties expressly referring to another date shall
be true, correct and complete in all material respects as of that date.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
BANK USE ONLY
TELEPHONE REQUEST:
-----------------
The following person is authorized to request the loan payment transfer/loan
advance on the advance designated account and is known to me.
___________________________ _____________________________
Authorized Requester Phone #
___________________________ _____________________________
Received By (Bank) Phone #
-2-
--------------------------------------------------------------------------------
__________________________________
Authorized Signature (Bank)
--------------------------------------------------------------------------------
-3-
EXHIBIT C
BORROWING BASE CERTIFICATE
-2-
BORROWING BASE CERTIFICATE
------------------------------------------------------------------------------
Borrower: ONYX Software Corporation Lender: Silicon Valley Bank
000 000xx Xxxxxx XX 0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000
Commitment Amount: $8,000.000
------------------------------------------------------------------------------
ACCOUNTS RECEIVABLE
1. Accounts Receivable Book Value as of ________ $________
2. Additions (please explain on reverse). $________
3. TOTAL ACCOUNTS RECEIVABLE $________
ACCOUNTS RECEIVABLE DEDUCTIONS (without duplication)
4. Amounts over 90/120 days from invoice date* $_____________
5. Balance if over 50% of total owing from account
debtor is over 90/120 days from invoice date* $_____________
6. Credit balances $_____________
7. Concentration Limits $_____________
8. Governmental Accounts $_____________
9. Contra Accounts $_____________
10. Promotion or Demo Accounts $_____________
11. Intercompany/Employee Accounts $_____________
12. Other (please explain on reverse) $_____________
13. TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS $________
14. Eligible Accounts (#3 minus #13) $________
15. Deduction for amount by which
accounts over 90 days
from invoice date and less than 120
days from invoice
date exceed 20% of Eligible Accounts $________
16. Foreign Accounts* $________
17. Net Eligible Accounts (#14 minus #15 and #16) $________
18. LOAN VALUE OF ACCOUNTS (80% of #17) $________
BALANCES
19. Maximum Loan Amount $8,000,000
20. Total Funds Available [Lesser of #19 or #18]* $________
21. Present balance owing on Line of Credit $_____________
22. Outstanding under Sublimits (LC) $_____________
23. RESERVE POSITION (#20 minus #21 and #22) $________
The undersigned represents and warrants that this is true, complete and correct,
and that the information in this Borrowing Base Certificate complies with the
representations and warranties in the Loan and Security Agreement between the
undersigned and Silicon Valley Bank.
COMMENTS:*
4. If extended terms are offered, then amounts over 120 days from invoice date
shall be deducted.
5. If extended terms are offered, balance is ineligible if over 50% of
accounts owing from account debtor is over 120 days from invoice date.
16. Deduction for amount by which foreign accounts exceed 20% of Eligible
Accounts.
-3-
BANK USE ONLY
Rec'd by: __________________________________
Authorized Signer
Date: _____________________________________
Verified: __________________________________
Authorized Signer
Date: _____________________________________
_____________________________________
20. Advances up to $1,000,000 in the aggregate may be made without regard to
the Loan Value of Accounts (Line 18); Advances may not exceed, in the
aggregate, 25% of Line 17 until the initial accounts receivable examination
has been completed.
ONYX SOFTWARE CORPORATION
By:_______________________________
Authorized Signer
-4-
EXHIBIT D
COMPLIANCE CERTIFICATE
-5-
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
FROM: ONYX SOFTWARE CORPORATION
000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
The undersigned authorized officer of ONYX Software Corporation certifies
that under the terms and conditions of the Loan and Security Agreement between
Borrower and Bank (the "Agreement"), (i) Borrower is in complete compliance for
the period ending ______________________ with all required covenants except as
noted below and (ii) all representations and warranties in the Agreement are
true and correct in all material respects on this date. Attached are the
required documents supporting the certification. The Officer certifies that
these are prepared in accordance with Generally Accepted Accounting Principles
(GAAP) consistently applied from one period to the next except as explained in
an accompanying letter or footnotes. The Officer acknowledges that no
borrowings may be requested at any time or date of determination that Borrower
is not in compliance with any of the terms of the Agreement, and that compliance
is determined not just at the date this certificate is delivered.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN.
REPORTING COVENANTS REQUIRED COMPLIES
------------------- -------- --------
Monthly financial statements Monthly within 30 days Yes No
+Comp. Cert/1/
Annual (Audited) FYE within 90 days Yes No
A/R & A/P Agings/2/ Monthly within 20 days Yes No
A/R Audit/3/ Initial and Annual Yes No
Borrowing Base Certificate/4/ Monthly within 20 days Yes No
______________________
/1/ Only required when borrowing.
/2/ Only required when more than $1,000,000 is outstanding under the
Committed Revolving Line.
/3/ Initial A/R audit must be completed within 45 days of closing of the loan.
/4/ Borrower shall be deemed in compliance if either the Liquidity Coverage
Ratio or Debt Service Coverage Ratio Covenants are met (see Loan Agreement).
-6-
FINANCIAL COVENANTS REQUIRED ACTUAL COMPLIES
------------------- -------- ------ --------
Maintain on a Quarterly Basis.
---------------------------------------------------------------------------------------------------------
Profitability: Quarterly "Loss" not to exceed: $_________ Yes No
$2,000,000 for 9/30/98;
$2,000,000 for 12/31/98;
$1,000,000 for 3/31/99;
$750,000 for 6/30/99; and
$500,000 for 9/30/99
---------------------------------------------------------------------------------------------------------
Adjusted Quick Ratio: 1.25:1.00 :1.00 Yes No
---------------------------------------------------------------------------------------------------------
Liquidity Coverage Ratio/4/: 1.40:1.00 :1.00 Yes No
---------------------------------------------------------------------------------------------------------
Debt Service Coverage Ratio/4/: 1.40:1.00 :1.00 Yes No
---------------------------------------------------------------------------------------------------------
----------------------------------------------
COMMENTS REGARDING EXCEPTIONS: See Attached BANK USE ONLY
Received by:______________________________
AUTHORIZED SIGNER
Sincerely,
Date:_____________________________________
ONYX SOFTWARE CORPORATION
Verified:_________________________________
AUTHORIZED SIGNER
__________________________________________________ Date:_____________________________________
Signature
Compliance Status: Yes No
__________________________________________________ ----------------------------------------------
Title
__________________________________________________
Date
-7-
LIBOR SUPPLEMENT TO AGREEMENT
This LIBOR Supplement to Agreement (the "Supplement") is a supplement to
the Loan and Security Agreement (the "Loan Agreement") between Silicon Valley
Bank ("Bank") and ONYX Software Corporation, a Washington corporation
("Borrower"), and forms a part of and is incorporated into the Loan Agreement.
1. Definitions.
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"Business Day" means a day of the year (a) that is not a Saturday, Sunday
or other day on which banks in the State of California or the City of London are
authorized or required to close and (b) on which dealings are carried on in the
interbank market in which Bank customarily participates.
"Interest Period" means for each LIBOR Rate Loan, a period of approximately
one, two or three months as the Borrower may elect, provided that the last day
--------
of an Interest Period for a LIBOR Rate Loan shall be determined in accordance
with the practices of the LIBOR interbank market as from time to time in effect,
provided, further, in all cases such period shall expire not later than the
-------- -------
applicable Maturity Date.
"Interest Rate" shall mean as to: (a) Prime Rate Loans, a rate equal to
the Prime Rate; and (b) LIBOR Rate Loans, a rate of 2.00% per annum in excess of
the LIBOR Rate (based on the LIBOR Rate applicable for the Interest Period
selected by the Borrower).
"LIBOR Base Rate" means, for any Interest Period for a LIBOR Rate Loan, the
rate of interest per annum determined by Bank to be the per annum rate of
interest as which deposits in United States Dollars are offered to Bank in the
London interbank market in which Bank customarily participates at 11:00 A.M.
(local time in such interbank market) TWO (2) BUSINESS DAYS before the first day
of such Interest Period for a period approximately equal to such Interest Period
and in an amount approximately equal to the amount of such Loan.
"LIBOR Rate" shall mean, for any Interest Period for a LIBOR Rate Loan, a
rate per annum (rounded upwards, if necessary, to the nearest 1/16 of 1%) equal
to (i) the LIBOR Base Rate for such Interest Period divided by (ii) 1 minus the
Reserve Requirement for such Interest Period.
"LIBOR Rate Loans" means any Loans made or a portion thereof on which
interest is payable based on the LIBOR Rate in accordance with the terms hereof.
"Prime Rate" means the variable rate of interest per annum, most recently
announced by Bank as its "prime rate," whether or not such announced rate is the
lowest rate available from Bank. The interest rate applicable to the Prime Rate
Loans shall change on each date there is a change in the Prime Rate.
"Prime Rate Loans" means any Loans made or a portion thereof on which
interest is payable based on the Prime Rate in accordance with the terms hereof.
"Regulatory Change" means, with respect to Bank, any change on or after the
date of this Loan Agreement in United States federal, state or foreign laws or
regulations, including Regulation D, or the adoption or making on or after such
date of any interpretations, directives or requests applying to a class of
lenders including Bank of or under any United States federal or state, or any
foreign, laws or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"Reserve Requirement" means, for any Interest Period, the average maximum
rate at which reserves (including any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest Period under
Regulation D against "Eurocurrency liabilities" (as such term is used in
Regulation D) by member banks of the Federal Reserve System. Without limiting
the effect of the foregoing, the Reserve Requirement shall reflect any other
reserves required to be maintained by Bank by reason of any Regulatory Change
against (i) any category of liabilities which includes deposits by reference to
which the LIBOR Rate is to be determined as provided in the definition of "LIBOR
Base Rate" or (ii) any category of extensions of credit or other assets which
include Loans.
2. Requests for Loans; Confirmation of Initial Loans. Each LIBOR Rate
-------------------------------------------------
Loan shall be made upon the irrevocable written request of Borrower RECEIVED BY
BANK NOT LATER THAN 11:00 A.M. (SANTA CLARA, CALIFORNIA TIME) ON THE BUSINESS
DAY THREE (3) BUSINESS DAYS PRIOR TO THE DATE SUCH LOAN IS TO BE MADE. Each
such notice shall specify the date such Loan is to be made, which day shall be a
Business Day; the amount of such Loan, the Interest Period for such Loan, and
comply with such other requirements as Bank determines are reasonable or
desirable in connection therewith.
Each written request for a LIBOR Rate Loan shall be in the form of a LIBOR
Rate Loan Borrowing Certificate as set forth on Exhibit A, which shall be duly
executed by the Borrower.
EACH PRIME RATE LOAN SHALL BE MADE UPON THE IRREVOCABLE WRITTEN REQUEST OF
BORROWER RECEIVED BY BANK NOT LATER THEN 11:00 A.M. (SANTA CLARA, CALIFORNIA
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TIME) ON THE BUSINESS DAY ONE (1) BUSINESS DAY PRIOR TO THE DATE SUCH LOAN IS TO
BE MADE. Each such notice shall specify the date such Loan is to be made, which
day shall be a Business Day and the amount of such Loan, and comply with such
other requirements as Bank determines are reasonable or desirable in connection
therewith.
3. Conversion/Continuation of Loans.
--------------------------------
(a) Borrower may from time to time submit in writing a request that
Prime Rate Loans be converted to LIBOR Rate Loans or that any existing LIBOR
Rate Loans continue for an additional Interest Period. Such request shall
specify the amount of the Prime Rate Loans which will constitute LIBOR Rate
Loans (subject to the limits set forth below) and the Interest Period to be
applicable to such LIBOR Rate Loans. Each written request for a conversion to a
LIBOR Rate Loan or a continuation of a LIBOR Rate Loan shall be substantially in
the form of a LIBOR Rate Conversion/Continuation Certificate as set forth on
Exhibit B, which shall be duly executed by the Borrower. Subject to the terms
and conditions contained herein THREE (3) BUSINESS DAYS AFTER BANK'S RECEIPT OF
SUCH A REQUEST FROM BORROWER, such Prime Rate Loans shall be converted to LIBOR
Rate Loans or such LIBOR Rate Loans shall continue, as the case may be provided
that:
(i) no Event of Default or event which with notice or passage
of time or both would constitute an Event of Default exists;
(ii) no party hereto shall have sent any notice of termination
of this Supplement or of the Loan Agreement.
(iii) Borrower shall have complied with such customary procedures
as Bank has established from time to time for Borrower's requests for LIBOR Rate
Loans;
(iv) the amount of a LIBOR Rate Loan shall be $500,000 or such
greater amount which is an integral multiple of $50,000; and
(v) Bank shall have determined that the Interest Period or
LIBOR Rate is available to Bank which can be readily determined as of the date
of the request for such LIBOR Rate Loan.
Any request by Borrower to convert Prime Rate Loans to LIBOR Rate Loans or
continue any existing LIBOR Rate Loans shall be irrevocable. Notwithstanding
anything to the contrary contained herein, Bank shall not be required to
purchase United States Dollar deposits in the London interbank market or other
applicable LIBOR Rate market to fund any LIBOR Rate Loans, but the provisions
hereof shall
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be deemed to apply as if Bank had purchased such deposits to fund the LIBOR Rate
Loans.
(b) Any LIBOR Rate Loans shall automatically convert to Prime Rate
Loans upon the last day of the applicable Interest Period, UNLESS BANK HAS
RECEIVED AND APPROVED A COMPLETE AND PROPER REQUEST TO CONTINUE SUCH LIBOR RATE
LOAN AT LEAST THREE (3) BUSINESS DAYS PRIOR TO SUCH LAST DAY in accordance with
the terms hereof. Any LIBOR Rate Loans shall, at Bank's option, convert to Prime
Rate Loans in the event that (i) an Event of Default, or event which with the
notice or passage of time or both would constitute an Event of Default, shall
exist, (ii) this Supplement or the Loan Agreement shall terminate, or (iii) the
aggregate principal amount of the Prime Rate Loans which have previously been
converted to LIBOR Rate Loans, or the aggregate principal amount of existing
LIBOR Rate Loans continued, as the case may be, at the beginning of an Interest
Period shall at any time during such Interest Period exceeds the Borrower's
availability under the Committed Revolving Line. Borrower agrees to pay to Bank,
upon demand by Bank (or Bank may, at its option, charge Borrower's loan account)
any amounts required to compensate Bank for any loss (including loss of
anticipated profits), cost or expense incurred by such person, as a result of
the conversion of LIBOR Rate Loans to Prime Rate Loans pursuant to any of the
foregoing.
(c) On all Loans, Interest shall be payable by Borrower to Bank
monthly in arrears not later than the first (1st) day of each calendar month at
the applicable Interest Rate.
4. Additional Requirements/Provisions Regarding LIBOR Rate Loans; Etc.
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(a) IF FOR ANY REASON (INCLUDING VOLUNTARY OR MANDATORY PREPAYMENT OR
ACCELERATION), BANK RECEIVES ALL OR PART OF THE PRINCIPAL AMOUNT OF A LIBOR RATE
LOAN PRIOR TO THE LAST DAY OF THE INTEREST PERIOD FOR SUCH LOAN, BORROWER SHALL
IMMEDIATELY NOTIFY BORROWER'S ACCOUNT OFFICER AT BANK AND, ON DEMAND BY BANK,
PAY BANK THE AMOUNT (if any) by which (i) the additional interest which would
have been payable on the amount so received had it not been received until the
last day of such Interest Period exceeds (ii) the interest which would have been
recoverable by Bank by placing the amount so received on deposit in the
certificate of deposit markets or the offshore currency interbank markets or
United States Treasury investment products, as the case may be, for a period
starting on the date on which it was so received and ending on the last day of
such Interest Period at the interest rate determined by Bank in its reasonable
discretion. Bank's determination as to such amount shall be conclusive absent
manifest error.
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(b) Borrower shall pay to Bank, upon demand by Bank, from time to time
such amounts as Bank may determine to be necessary to compensate it for any
costs incurred by Bank that Bank determines are attributable to its making or
maintaining of any amount receivable by Bank hereunder in respect of any Loans
relating thereto (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), in each case resulting from any
Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to
Bank under this Supplement in respect of any Loans (other than changes which
affect taxes measured by or imposed on the overall net income of Bank by the
jurisdiction in which such Bank has its principal office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of Bank (including any Loans or any deposits
referred to in the definition of "LIBOR Base Rate"); or
(iii) imposes any other condition affecting this Supplement (or
any of such extensions of credit or liabilities).
Bank will notify Borrower of any event occurring after the date of the Loan
Agreement which will entitle Bank to compensation pursuant to this section as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation. Bank will furnish Borrower with a statement setting
forth the basis and amount of each request by Bank for compensation under this
Section 4. Determinations and allocations by Bank for purposes of this Section
4 of the effect of any Regulatory Change on its costs of maintaining its
obligations to make Loans or of making or maintaining Loans or on amounts
receivable by it in respect of Loans, and of the additional amounts required to
compensate Bank in respect of any Additional Costs, shall be conclusive absent
manifest error.
(c) Borrower shall pay to Bank, upon the request of Bank, such amount
or amounts as shall be sufficient (in the sole good faith opinion of such Bank)
to compensate it for any loss, costs or expense incurred by it as a result of
any failure by Borrower to borrow a Loan on the date for such borrowing
specified in the relevant notice of borrowing hereunder.
(d) If Bank shall determine that the adoption or implementation of any
applicable law, rule, regulation or treaty regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
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interpretation or administration thereof, or compliance by Bank (or its
applicable lending office) with any respect or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on capital of Bank or any person or entity controlling Bank (a "Parent")
as a consequence of its obligations hereunder to a level below that which Bank
(or its Parent) could have achieved but for such adoption, change or compliance
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by Bank to be material, then from time to time, within 15 days
after demand by Bank, Borrower shall pay to Bank such additional amount or
amounts as will compensate Bank for such reduction. A statement of Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive absent manifest error.
(e) If at any time Bank, in its sole and absolute discretion,
determines that: (i) the amount of the LIBOR Rate Loans for periods equal to the
corresponding Interest Periods are not available to Bank in the offshore
currency interbank markets, or (ii) the LIBOR Rate does not accurately reflect
the cost to Bank of lending the LIBOR Rate Loan, then Bank shall promptly give
notice thereof to Borrower, and upon the giving of such notice Bank's obligation
to make the LIBOR Rate Loans shall terminate, unless Bank and the Borrower agree
in writing to a different interest rate Loans shall terminate, unless Bank and
the Borrower agree in writing to a different interest rate applicable to LIBOR
Rate Loans. If it shall become unlawful for Bank to continue to fund or maintain
any Loans, or to perform its obligations hereunder, upon demand by Bank,
Borrower shall prepay the Loans in full with accrued interest thereon and all
other amounts payable by Borrower hereunder (including, without limitation, any
amount payable in connection with such prepayment pursuant to Section 4(a)).
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EXHIBIT A
LIBOR RATE LOAN BORROWING CERTIFICATE
The undersigned hereby certifies as follows:
I, __________________, am the duly elected and acting ______________ of
_______________ ("Borrower").
This certificate is delivered pursuant to Section 2 of that certain LIBOR
Supplement to Agreement together with the Loan and Security Agreement by and
between Borrower and Silicon Valley Bank ("Bank") (the "Loan Agreement"). The
terms used in this Borrowing Certificate which are defined in the Loan Agreement
have the same meaning herein as ascribed to them therein.
Borrower hereby requests on __________, 19__ a LIBOR Rate Loan (the "Loan")
as follows:
(a) The date on which the Loan is to be made is _______, 19__.
(b) The amount of the Loan is to be _____________ ($_________), for an
Interest Period of ________ month(s).
All representations and warranties of Borrower stated in the Loan Agreement
are true, correct and complete in all material respects as of the date of this
request for a loan; provided, however, that those representations and warranties
expressly referring to another date shall be true, correct and complete in all
material respects as of such date.
IN WITNESS WHEREOF, this Borrowing Base Certificate is executed by the
undersigned as of this _________ day of ___________, 19__.
_________________________________________
By: _____________________________________
Title: __________________________________
FOR INTERNAL BANK USE ONLY
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LIBOR Pricing Date LIBOR Rate LIBOR Rate Variance Maturity Date
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%
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EXHIBIT B
LIBOR RATE CONVERSION/CONTINUATION CERTIFICATE
The undersigned hereby certifies as follows:
I, ___________, am the duly elected and acting _____________ of
_______________ ("Borrower").
This certificate is delivered pursuant to Section 2 of that certain LIBOR
Supplement to Agreement together with the Loan and Security Agreement by and
between Borrower and Silicon Valley Bank ("Bank") (the "Loan Agreement"). The
terms used in this LIBOR Rate Conversion/Continuation Certificate which are
defined in the Loan Agreement have the same meaning herein as ascribed to them
therein.
Borrower hereby requests on ____________, 19__ a LIBOR Rate Loan (the
"Loan") as follows:
(a) ___(i) A rate conversion of an existing Prime Rate Loan from a
Prime Rate Loan to a LIBOR Rate Loan; or
____(ii) A continuation of an existing LIBOR Rate Loan as a LIBOR
Rate Loan;
[Check (i) or (ii) above]
(b) The date on which the Loan is to be made is ______, 19__.
(c) The amount of the Loan is to be _________($__________), for an
Interest Period of _________ month(s).
All representations and warranties of Borrower stated in the Loan Agreement
are true, correct and complete in all material respects as of the date of this
request for a loan, provided, however, that those representations and warranties
expressly referring to another date shall be true, correct and complete in all
material respects as of such date.
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IN WITNESS WHEREOF, this LIBOR Rate Conversion/Continuation Certificate is
executed by the undersigned as of this _____ day of _________, 19__.
_________________________________________
By: _____________________________________
Title: __________________________________
FOR INTERNAL BANK USE ONLY
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LIBOR Pricing Date LIBOR Rate LIBOR Rate Variance Maturity Date
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%
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CORPORATE BORROWING RESOLUTION
BORROWER: ONYX SOFTWARE CORPORATION BANK: SILICON VALLEY BANK
000 - 000XX XXXXXX X.X. 00000 X.X. XXXXXXX, XXX. 000
XXXXXXXX, XX 00000 XXXXXXXXX, XX 00000-0000
I, THE UNDERSIGNED SECRETARY OR ASSISTANT SECRETARY OF ONYX SOFTWARE
CORPORATION ("BORROWER"), HEREBY CERTIFY that Borrower is a corporation duly
organized and existing under and by virtue of the laws of the State of
Washington.
I FURTHER CERTIFY that at a meeting of the Directors of Borrower (or by
other duly authorized corporate action in lieu of a meeting), duly called and
held, at which a quorum was present and voting, the following resolutions were
adopted.
BE IT RESOLVED, that ANY ONE (1) of the following named officers,
employees, or agents of Borrower, whose actual signatures are shown below:
NAMES POSITIONS ACTUAL SIGNATURES
----- --------- -----------------
XXXXXX X. XXXXXXX C.F.O. XXXXXX XXXXXXX
----------------- ----------------------- -----------------------
----------------- ----------------------- -----------------------
----------------- ----------------------- -----------------------
----------------- ----------------------- -----------------------
acting for and on behalf of Borrower and as its act and deed be, and they hereby
are, authorized and empowered:
BORROW MONEY. To borrow from time to time from Silicon Valley Bank
("Bank"), on such terms as may be agreed upon between the officers of
Borrower and Bank, such sum or sums of money as in their judgment
should be borrowed.
EXECUTE LOAN DOCUMENTS. To execute and deliver to Bank the loan
documents of Borrower, on Bank'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 Borrower to Bank, and also to execute
and deliver to Bank one or more renewals, extensions, modifications,
refinancings, consolidations, or substitutions for one or more of the
loan documents, or any portion of the loan documents.
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GRANT SECURITY. To grant a security interest to Bank in any of
Borrower's assets, which security interest shall secure all of
Borrower's obligations to Bank.
NEGOTIATE ITEMS. To draw, endorse, and discount with Bank all drafts,
trade acceptances, promissory notes, or other evidences of
indebtedness payable to or belonging to Borrower or in which Borrower
may have an interest, and either to receive cash for the same or to
cause such proceeds to be credited to the account of Borrower with
Bank, or to cause such other disposition of the proceeds derived
therefrom as they may deem advisable.
LETTERS OF CREDIT. To execute letter of credit applications and other
related documents pertaining to Bank's issuance of letters of credit.
FOREIGN EXCHANGE CONTRACTS. To execute and deliver foreign exchange
contracts, either spot or forward, from time to time, in such amount
as, in the judgment of the officer or officers herein authorized.
ISSUE WARRANTS. To issue warrants to purchase Borrower's capital
stock, for such class, series and number, and on such terms, as an
officer of Borrower shall deem appropriate.
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.
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 Bank may rely on these Resolutions until written notice of their
revocation shall have been delivered to and received by Bank. Any such notice
shall not affect any of Borrower's agreements or commitments in effect at the
time notice is given.
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I FURTHER CERTIFY that the persons named above are principal officers of the
Corporation 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 they are in full force and effect and have not been modified or revoked
in any manner whatsoever.
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IN WITNESS WHEREOF, I have hereunto set my hand on ______________, and attest
that the signatures set opposite the names listed above are their genuine
signatures.
CERTIFIED TO AND ATTESTED BY:
X ________________________________________
*Secretary or Assistant Secretary
X ________________________________________
*NOTE: In case the Secretary or other certifying officer is designated by the
foregoing resolutions as one of the signing officers, this resolution should
also be signed by a second Officer or Director of Borrower.
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CORPORATE BORROWING RESOLUTION
BORROWER: ONYX SOFTWARE CORPORATION BANK: SILICON VALLEY BANK
000 - 000XX XXXXXX X.X. 00000 X.X. XXXXXXX, XXX. 000
XXXXXXXX, XX 00000 XXXXXXXXX, XX 00000-0000
I, THE UNDERSIGNED SECRETARY OR ASSISTANT SECRETARY OF ONYX SOFTWARE
CORPORATION ("BORROWER"), HEREBY CERTIFY that Borrower is a corporation duly
organized and existing under and by virtue of the laws of the State of
Washington.
I FURTHER CERTIFY that at a meeting of the Directors of Borrower (or by
other duly authorized corporate action in lieu of a meeting), duly called and
held, at which a quorum was present and voting, the following resolutions were
adopted.
BE IT RESOLVED, that ANY ONE (1) of the following named officers,
employees, or agents of Borrower, whose actual signatures are shown below:
NAMES POSITIONS ACTUAL SIGNATURES
----- --------- -----------------
XXXXXX X. XXXXXXX C.F.O. XXXXXX XXXXXXX
----------------- -------------- --------------
Xxx X. Xxxxxxxx Controller XXX XXXXXXXX
----------------- -------------- --------------
Xxxxx X. Xxxx CEO XXXXX XXXX
----------------- -------------- --------------
----------------- -------------- --------------
acting for and on behalf of Borrower and as its act and deed be, and they hereby
are, authorized and empowered:
BORROW MONEY. To borrow from time to time from Silicon Valley Bank
("Bank"), on such terms as may be agreed upon between the officers of
Borrower and Bank, such sum or sums of money as in their judgment
should be borrowed.
EXECUTE LOAN DOCUMENTS. To execute and deliver to Bank the loan
documents of Borrower, on Bank'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 Borrower to Bank, and also to execute
and deliver to Bank one or more renewals, extensions, modifications,
refinancings, consolidations, or substitutions for one or more of the
loan documents, or any portion of the loan documents.
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GRANT SECURITY. To grant a security interest to Bank in any of
Borrower's assets, which security interest shall secure all of
Borrower's obligations to Bank.
NEGOTIATE ITEMS. To draw, endorse, and discount with Bank all drafts,
trade acceptances, promissory notes, or other evidences of
indebtedness payable to or belonging to Borrower or in which Borrower
may have an interest, and either to receive cash for the same or to
cause such proceeds to be credited to the account of Borrower with
Bank, or to cause such other disposition of the proceeds derived
therefrom as they may deem advisable.
LETTERS OF CREDIT. To execute letter of credit applications and other
related documents pertaining to Bank's issuance of letters of credit.
FOREIGN EXCHANGE CONTRACTS. To execute and deliver foreign exchange
contracts, either spot or forward, from time to time, in such amount
as, in the judgment of the officer or officers herein authorized.
ISSUE WARRANTS. To issue warrants to purchase Borrower's capital
stock, for such class, series and number, and on such terms, as an
officer of Borrower shall deem appropriate.
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.
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 Bank may rely on these Resolutions until written notice of their
revocation shall have been delivered to and received by Bank. Any such notice
shall not affect any of Borrower's agreements or commitments in effect at the
time notice is given.
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I FURTHER CERTIFY that the persons named above are principal officers of the
Corporation 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 they are in full force and effect and have not been modified or revoked
in any manner whatsoever.
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IN WITNESS WHEREOF, I have hereunto set my hand on ______________, and attest
that the signatures set opposite the names listed above are their genuine
signatures.
CERTIFIED TO AND ATTESTED BY:
X XXXXX XXXX
---------------------------------------
*Secretary or Assistant Secretary
X_______________________________________
*NOTE: In case the Secretary or other certifying officer is designated by the
foregoing resolutions as one of the signing officers, this resolution should
also be signed by a second Officer or Director of Borrower.
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