Exhibit 10.6
LOAN AND SECURITY AGREEMENT
by and among
SILICON VALLEY BANK
as Agent and a Lender
and
COMERICA BANK-CALIFORNIA
as a Lender
on the one hand
and
ONYX SOFTWARE CORPORATION
as Borrower
on the other hand
Credit Amount: $25,000,00
Commitment Amount Commitment
----------------- ----------
Silicon Valley Bank $12,500,000 50%
Comerica Bank-California $12,500,000 50%
TABLE OF CONTENTS
Page
1. ACCOUNTING AND OTHER TERMS..................................................................................... 1
2. LOAN AND TERMS OF PAYMENT...................................................................................... 1
2.1 Credit Extensions......................................................................................... 1
2.1.1 Revolving Advances................................................................................. 1
2.2 Letters of Credit Sublimit................................................................................ 2
2.3 Intentionally Omitted..................................................................................... 3
2.4 Overadvances.............................................................................................. 3
2.5 Interest Rate, Payments................................................................................... 3
2.6 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................................................................................................ 5
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........................................................................................... 6
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.......................................................................................... 9
6.7 Financial Covenants....................................................................................... 9
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6.8 Registration of Intellectual Property Rights.............................................................. 9
6.9 Further Assurances........................................................................................ 9
7. NEGATIVE COVENANTS............................................................................................. 9
7.1 Dispositions.............................................................................................. 10
7.2 Changes in Business, Ownership, Management or Business Locations.......................................... 10
7.3 Mergers or Acquisitions................................................................................... 10
7.4 Indebtedness.............................................................................................. 10
7.5 Encumbrance............................................................................................... 10
7.6 Distributions; Investments................................................................................ 10
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.......................................................................................... 11
8.3 Material Adverse Change................................................................................... 12
8.4 Attachment................................................................................................ 12
8.5 Insolvency................................................................................................ 12
8.6 Other Agreements.......................................................................................... 12
8.7 Judgments................................................................................................. 12
8.8 Misrepresentations........................................................................................ 12
9. LENDERS' RIGHTS AND REMEDIES................................................................................... 13
9.1 Rights and Remedies....................................................................................... 13
9.2 Power of Attorney......................................................................................... 13
9.3 Accounts Collection....................................................................................... 14
9.4 Lenders Expenses.......................................................................................... 14
9.5 Lenders' Liability for Collateral......................................................................... 14
9.6 Remedies Cumulative....................................................................................... 14
9.7 Demand Waiver............................................................................................. 14
10. NOTICES........................................................................................................ 15
11. CHOICE OF LAW , VENUE AND JURY TRIAL WAIVER.................................................................... 15
12. GENERAL PROVISIONS............................................................................................. 15
12.1 Successors and Assigns................................................................................... 15
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12.2 Indemnification.......................................................................................... 15
12.3 Time of Essence.......................................................................................... 15
12.4 Severability of Provision................................................................................ 16
12.5 Amendments in Writing, Integration....................................................................... 16
12.6 Counterparts............................................................................................. 16
12.7 Survival................................................................................................. 16
12.8 Confidentiality.......................................................................................... 16
12.9 Attorneys' Fees, Costs and Expenses...................................................................... 16
13. DEFINITIONS.................................................................................................... 17
13.1 Definitions.............................................................................................. 17
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This LOAN AND SECURITY AGREEMENT dated November 8, 2000, by and among
SILICON VALLEY BANK ("SVB"), as agent for itself and the Lenders (in such
capacity "Agent"), whose address is 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
00000 with a loan production office located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 and COMERICA BANK-CALIFORNIA ("Comerica") as a Lender, whose
executive office address is 000 Xxxx Xxxxx Xxxxx Xxxxxxxxx, Xxx Xxxx, Xxxxxxxxxx
00000, on the one hand, and ONYX SOFTWARE CORPORATION ("Borrower"), whose
address is 0000 000xx Xxxxxx XX, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000.
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 Agent and Lenders a duty to act reasonably at all times.
2. LOAN AND TERMS OF PAYMENT
-------------------------
2.1 Credit Extensions.
Borrower will pay Lenders when due 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) Lenders agree to make Advances, severally but not jointly,
according to each Lender's pro-rata share of the Credit Amount (based upon the
respective Commitment Percentage of each Lender), not exceeding (i) the lesser
of (A) the Committed Revolving Line or (B) the Borrowing Base, minus (ii) the
amount of all outstanding Letters of Credit (including drawn but unreimbursed
Letters of Credit). Amounts borrowed under this Section may be repaid without
premium or penalty and reborrowed during the term of this Agreement.
(b) Whenever Borrower desires that Lenders make an Advance,
Borrower shall notify Agent of such proposed Advance and the date on which it
desires Lenders to make such Advance by facsimile or telephone no later than 3
p.m. two (2) Business Days prior to the Funding Date. Borrower must promptly
confirm the notification by delivering to Agent the Payment/Advance Form
attached as Exhibit B hereto. Such notice shall (i) be made at least two (2)
Business Days in advance of the desired Funding Date, and (ii) be irrevocable.
Within one (1) Business Day of receipt of such notice, Agent shall notify each
Lender by telephone or facsimile of the principal amount (including such
Lender's Commitment Percentage thereof) and Funding Date of the Advance being
requested by Borrower. Borrower's request for an Advance shall be deemed to be a
representation and warranty by Borrower that no Default or Event of Default has
occurred and is continuing, and that the representations and warranties set
forth in Section 5 are true and correct in all material respects as of the time
of such notice as if made at such time, provided that those representations and
warranties expressly referring to another date shall be true, correct and
complete in all material respects as of that date. Subject to the terms and
conditions of this
Agreement, as soon as practicable prior to 11:00 a.m. Pacific Time on the
Funding Date specified by Borrower, each Lender shall transfer an amount equal
to its Commitment Percentage multiplied by the amount of the Advance to the
account specified in clause (c) in immediately available funds. Each Lender's
obligation to make its Commitment Percentage of the Loan shall be expressly
subject to: (x) in the case of the initial Credit Extension the satisfaction of
the conditions set forth in Sections 3.1 and 3.2, and (y) in the case of all
subsequent Credit Extensions, the satisfaction of the conditions set forth in
Section 3.2.
(c) Each Lender shall disburse its pro rata portion of such
Advance by wire transfer to Borrower at Silicon Valley Bank, 0000 Xxxxxx Xxxxx,
Xxxxx Xxxxx, XX 00000, Account No.3300122353, ABA Routing No. 000000000, Account
Name: Onyx Software. Notwithstanding anything stated herein to the contrary, no
Lender shall have any obligation to advance funds on behalf of any other Lender.
(d) The Committed Revolving Line terminates on the Revolving
Maturity Date, when all Advances are immediately payable.
2.2 Letters of Credit Sublimit.
(a) SVB will issue or has issued Letters of Credit (each a
"Letter 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) may not
exceed $15,000,000. 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 Lenders at any time
after the Revolving Maturity Date if the term of this Agreement is not extended
by Lenders. Borrower agrees to execute any further documentation in connection
with the Letters of Credit as Agent and Lenders may reasonably request.
(b) If SVB is obligated to advance funds under a Letter of
Credit (an "L/C Disbursement"), Borrower immediately shall reimburse any L/C
Disbursement to SVB by paying to Agent an amount equal to the L/C Disbursement
not later than 11:00 a.m., Pacific time, on the date that such L/C Disbursement
is made. In the absence of such reimbursement, such L/C Disbursement immediately
and automatically shall be deemed to be an Advance hereunder and, thereafter,
shall bear interest at the rate then applicable to Advances. To the extent an
L/C Disbursement is deemed to be an Advance hereunder, Borrower's obligation to
reimburse such L/C Disbursement shall be discharged and replaced by the
resulting Advance. To the extent that Lenders have made payments pursuant the
terms of this Agreement to reimburse SVB, then any reimbursement received by
Agent shall be distributed to such Lenders and SVB as their interests may
appear.
(c) Promptly following receipt of a notice of L/C Disbursement
pursuant to Section 2.1.1 (b), each Lender agrees to fund an amount equal to
-----------------
such Lender's Commitment Percentage multiplied by the total Advance deemed made
pursuant to the foregoing subsection on the same terms and conditions as if
Borrower had requested such Advance and Agent shall promptly pay to SVB the
amounts so received by it from the Lenders. By the issuance of a Letter of
Credit (or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of SVB or the Lenders, SVB shall be
deemed to have granted to each
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Lender, and each Lender shall be deemed to have purchased, a participation in
each Letter of Credit, in an amount equal to its Commitment Percentage of such
Letter of Credit, and each such Lender agrees to pay to Agent, for the account
of the SVB, such Lender's Commitment Percentage of any payments made by SVB
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
Agent, for the account of SVB, such Lender's Commitment Percentage of each L/C
Disbursement made by SVB and not reimbursed by Borrower on the date due as
provided in this Section, or of any reimbursement payment required to be
refunded to Borrower for any reason. Each Lender acknowledges and agrees that
its obligation to deliver to Agent, for the account of SVB, an amount equal to
its respective Commitment Percentage pursuant to this Section shall be absolute
and unconditional and such remittance shall be made notwithstanding the
occurrence or continuation of an Event of Default or Default or the failure to
satisfy any condition set forth in Section 3 hereof. If any such Lender fails to
make available to Agent the amount of such Lender's Commitment Percentage of any
payments made by SVB in respect of such Letter of Credit as provided in this
Section, Agent (for the account of SVB) shall be entitled to recover such amount
on demand from such Lender together with interest thereon at the Default Rate
set forth herein until paid in full.
(d) Borrower will indemnify, defend and hold harmless each
Lender and its officers, employees, and agents against: (a) all obligations,
demands, claims, and liabilities asserted by any other party arising out of or
in connection with any Letter of Credit; and (b) all losses or Lenders Expenses
incurred, or paid by Agent or any Lender arising from any error, negligence, or
mistake, whether of omission or commission, in following Borrower's instructions
or those contained in the Letter of Credit, or any modification, amendment, or
supplements thereto (including reasonable attorneys fees and expenses), except
for losses caused by Lenders' gross negligence or willful misconduct. Borrower
agrees to be bound by SVB's regulations and interpretations of any Letter of
Credit issued by it or for Borrower's account, even though this interpretation
may be different from Borrower's own, provided, such regulations, and
interpretations do not depart from SVB's regulations and interpretations
applicable to borrowers generally.
(e) Any and all charges, commissions, fees, and costs incurred
by SVB relating to a Letter of Credit shall be Lenders Expenses for purposes of
this Agreement and immediately shall be reimbursable by Borrower to Agent for
the account of the SVB.
2.3 Intentionally Omitted.
2.4 Overadvances.
If Borrower's Obligations under Section 2.1.1 and 2.2 exceed the
lesser of either (i) the Committed Revolving Line or (ii) the Borrowing Base,
Borrower must immediately pay Agent the excess.
2.5 Interest Rate, Payments.
(a) Interest Rate. Advances accrue interest on the outstanding
principal balance at a per annum rate equal to 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
3
rate increases or decreases when the Prime Rate changes. Interest is computed on
a 360 day year for the actual number of days elapsed.
(b) Payments. Interest due on the Committed Revolving Line is
payable in arrears on the last day of each month. Agent may debit any of
Borrower's deposit accounts including Account Number ___________________- for
principal and interest payments owing or any amounts Borrower owes Lenders.
Agent will disburse to each Lender its respective Commitment Percentage of such
payment no later than one (1) Business Day after receipt of such payment. Agent
will promptly notify Borrower when it debits Borrower's accounts. These debits
are not a set-off. Payments received 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 interest will accrue.
2.6 Fees.
Borrower will pay:
(a) Facility Fee. A fully earned, non-refundable Facility Fee of
$18,750 for the Committed Revolving Line due on the Closing Date plus a fee of
0.25% per annum on the unused portion of the facility, paid quarterly in
arrears; and
(b) Lenders Expenses. All Lenders Expenses (including reasonable
attorneys' fees and reasonable expenses) incurred through this Agreement, are
payable at closing.
3. CONDITIONS OF LOANS
-------------------
3.1 Conditions Precedent to Initial Credit Extension.
Lenders' obligation to make the initial Credit Extension is subject to
the condition precedent that they receive the agreements, documents and fees
they require.
3.2 Conditions Precedent to all Credit Extensions.
Lenders' 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 (provided that those representations and
warranties expressly referring to another date shall be true, correct and
complete in all material respects as of that date.) 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, provided that those
representations and warranties expressly referring to another date shall be
true, correct and complete in all material respects as of that date.
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4. CREATION OF SECURITY INTEREST
-----------------------------
4.1 Grant of Security Interest.
Borrower grants Agent, for the ratable benefit of Lenders, 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. Upon an
Event of Default or in connection with Section 2.2, Agent and/or any Lender may
place a "hold" on any deposit account pledged as Collateral. If this Agreement
is terminated, Agent's lien and security interest in the Collateral, will
continue until Borrower fully satisfies its Obligations.
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, except where the failure to
do so could not reasonably be expected to cause a Material Adverse Change.
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 reasonably be expected to 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. Borrower is the sole owner of
the Intellectual Property, except for non-exclusive licenses granted to its
customers in the ordinary course of business. Each Patent is valid and
enforceable and no part of the Intellectual Property has been judged invalid or
unenforceable, in whole or in part, and no claim has been made that any part of
the Intellectual Property violates the rights of any third party, except to the
extent such claim could not reasonably be expected to cause a Material Adverse
Change.
5.3 Litigation.
Except as shown in the Schedule, there are no actions or proceedings
pending or, to the knowledge of Borrower's Responsible Officers and general
counsel, threatened by
5
or against Borrower or any Subsidiary in which a likely adverse decision could
reasonably be expected to cause a Material Adverse Change.
5.4 No Material Adverse Change in Financial Statements.
All consolidated financial statements for Borrower, and any
Subsidiary, delivered to Lenders 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 Lenders.
5.5 Solvency.
The fair salable value of Borrower's assets (including goodwill
minus disposition costs) exceeds the fair value of its liabilities; the 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 T and U of the Federal Reserve Board of Governors). Borrower
has complied in all material respects with the Federal Fair Labor Standards Act.
Borrower has not violated any laws, ordinances or rules, the violation of which
could reasonably be expected to 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 material 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, except where the failure to do so could not reasonably be
expected to cause a Material Adverse Change.
5.7 Subsidiaries.
Borrower does not own any stock, partnership interest or other
equity securities except for Permitted Investments.
5.8 Full Disclosure.
No written representation, warranty or other statement of
Borrower in any certificate or written statement given to Lenders (taken
together with all such written certificates and written statements to Lenders)
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, it being recognized by Lenders that the projections
and forecasts provided by Borrower in good faith and based upon reasonable
assumptions are not viewed as facts and that actual results
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during the period or periods covered by such projections and forecasts may
differ from the projected and forecasted results.
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 would reasonably be
expected to cause 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 would reasonably be expected to cause a Material Adverse Change.
6.2 Financial Statements, Reports, Certificates.
(a) Borrower will deliver to each Lender: (i) as soon as
available, but no later than 45 days after the last day of each quarter, 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 Lenders; (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 reasonably acceptable to Agent;
(iii) within 5 days of filing, copies of all statements, reports and notices
made available to Borrower's security holders or to any holders of Subordinated
Debt and all reports on Form 10-K, 10-Q and 8-K filed with the Securities and
Exchange Commission; (iv) 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; (v) budgets, sales
projections, operating plans or other financial information any Lender
reasonably requests; and (vi) prompt notice of any material change in the
composition of the Intellectual Property, including any subsequent ownership
right of Borrower in or to any Copyright, Patent or Trademark not shown in any
intellectual property security agreement between Borrower and Agent, for the
ratable benefit of Lenders, or knowledge of an event that materially adversely
affects the value of the Intellectual Property.
(b) Within 20 days after the last day of each month, Borrower
will deliver to each Lender a Borrowing Base Certificate signed by a Responsible
Officer in the form of Exhibit C, with aged listings of accounts receivable and
accounts payable.
(c) Within 45 days after the last day of each quarter, Borrower
will deliver to each Lender with the quarterly financial statements a Compliance
Certificate signed by a Responsible Officer in the form of Exhibit D.
(d) Agent has the right to audit Borrower's Collateral at
Borrower's reasonable expense, but the audits will be conducted no more often
than once every year unless an Event of Default has occurred and is continuing.
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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 Agent 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 each Lender, 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 Agent may reasonably request, provided, however,
Borrower shall not be required to maintain insurance coverage in amounts of
excess of that required for other businesses of a similar size and nature.
Insurance policies will be in a form, with companies, and in amounts that are
satisfactory to Agent in Agent's reasonable discretion. All property policies
will have a lender's loss payable endorsement showing Agent, for the ratable
benefit of Lenders as an additional loss payee and all liability policies will
show the Agent, for the ratable benefit of Lenders as an additional insured and
provide that the insurer must give Agent at least 20 days notice before
canceling its policy. At any Lender's request, Borrower will deliver certified
copies of policies and evidence of all premium payments to such Lender. Proceeds
payable under any policy will, at Lender's option, be payable to Lenders on
account of the Obligations. Statutory notice regarding insurance:
WARNING
Unless you provide us with evidence of the insurance coverage as
required by our contract or loan agreement, we may purchase insurance at your
expense to protect our interest. This insurance may, but need not, also protect
your interest. If the collateral becomes damaged, the coverage we purchase may
not pay any claim you make or any claim made against you. You may later cancel
this coverage by providing evidence that you have obtained property coverage
elsewhere.
You are responsible for the cost of any insurance purchased by
us. The cost of this insurance may be added to your contract or loan balance. If
the cost is added to your contract or loan balance, the interest rate on the
underlying contract or loan will apply to this added amount. The effective date
of coverage may be the date your prior coverage lapsed or the date you failed to
provide proof of coverage.
This coverage we purchased may be considerably more expensive
than insurance you can obtain on your own and may not satisfy any need for
property damage coverage or any mandatory liability insurance requirements
imposed by applicable law.
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6.6 Primary Accounts.
Borrower will maintain its primary depository and operating
accounts with SVB.
6.7 Financial Covenants.
Borrower will maintain as of the last day of each quarter:
(i) Quick Ratio (Adjusted). A ratio of Quick Assets to Current
Liabilities minus Deferred Maintenance Revenue and Notes Payable to Shareholders
in the form of Onyx Software common stock related to the acquisition of Market
Solutions Limited of at least 2.00 to 1.00.
(ii) Profitability. Borrower shall not incur a maximum quarterly
"Loss", as defined below, in excess of $500,000 at any time during the term of
this Agreement. 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 not to be excluded).
Amortization expenses associated with mergers and acquisitions will also be
excluded.
6.8 Registration of Intellectual Property Rights.
Borrower will register its Patents, Copyrights and Trademarks
with the United States Patent and Trademark Office or the United States
Copyright Office within 120 days of the Closing Date and, thereafter, within 30
days of the date of acquiring or creating such Patents, Copyrights or
Trademarks, in each case which its Board of Directors of Borrower deems, in good
faith, appropriate for the development of Borrower's business, together with
additional Patents, Copyrights and Trademarks rights developed or acquired
including revisions or additions with any product before the sale or licensing
of the product to any third party.
Borrower will (i) protect, defend and maintain the validity and
enforceability of the Intellectual Property and promptly advise each Lender in
writing of material infringements and (ii) not allow any Intellectual Property
to be abandoned, forfeited or dedicated to the public without each Lender's
written consent.
6.9 Further Assurances.
Borrower will execute any further instruments and take further
action as Agent reasonably requests to perfect or continue Agent's security
interest in the Collateral (for the ratable benefit of Lenders) or to effect the
purposes of this Agreement.
7. NEGATIVE COVENANTS
------------------
Borrower will not do any of the following without Lender's prior
written consent, which will not be unreasonably withheld:
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7.1 Dispositions.
Convey, sell, lease, sublease, 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
reasonably related thereto or have a material change in its ownership or
management (other than the sale of Borrower's equity securities in a public
offering or to venture capital investors approved by Lenders) of greater than
40%. Borrower will not, without at least 30 days prior written notice, relocate
its chief executive office or add any new offices or business locations where
material Collateral is located.
7.3 Mergers or Acquisitions.
Merge or consolidate, or permit any of its Subsidiaries to merge
or consolidate, with any other Person, or acquire, or permit any of its
Subsidiaries to acquire, all or substantially all of the capital stock or
property of another Person, except where (i) no Event of Default has occurred
and is continuing or would result from such action during the term of this
Agreement and (ii) such transaction would not result in a decrease of more than
25% of Tangible Net Worth. A Subsidiary may merge or consolidate into another
Subsidiary or into Borrower.
7.4 Indebtedness.
Create, incur, assume, or be liable for any Indebtedness, or
permit any Subsidiary to do so, other than Permitted Indebtedness.
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, subject to Permitted Liens.
7.6 Distributions; Investments.
Directly or indirectly acquire or own any Person, or make any
Investment in any Person, other than Permitted Investments, or permit any of its
Subsidiaries to do so. Pay any dividends or make any distribution or payment or
redeem, retire or purchase any capital stock, except for repurchases of stock
from former employees or directors of Borrower under the terms of applicable
repurchase agreements in an aggregate amount not to exceed $250,000 in any
fiscal year, provided that no Event of Default has occurred, is continuing or
would exist after giving effect to the repurchases.
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7.7 Transactions with Affiliates.
Directly or indirectly enter into 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 in a manner adverse to any Lender without
Lender'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 Credit Extension 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 reasonably be expected to have a material adverse effect on
Borrower's business or operations or would reasonably be expected to 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 within 3 days
after their due date. During the additional period the failure to cure the
default is not an Event of Default (but no Credit Extension will be made during
the cure period);
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 any Lender and as to any default under a
term, condition or covenant that can be cured, has not cured the default within
10 days after Borrower becomes aware of such default, 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.
If there (i) occurs a material adverse change in the business,
operations, or condition (financial or otherwise) of the Borrower, or (ii) is a
material impairment of the prospect of repayment of any portion of the
Obligations;
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 $250,000 or that could cause a Material Adverse Change;
8.7 Judgments.
If any final, single judgment of $250,000 or more or a
combination of final judgments aggregating $250,000 or more is entered against
Borrower and is not covered by insurance or any attachment or levy of execution
against any substantial part of Borrower's properties for any amount (not
covered by insurance) remains unpaid, unstayed on appeal, undischarged, unbonded
or undismissed for a period of ten (10) days or more; or
8.8 Misrepresentations.
If Borrower or any Person acting for Borrower makes any material
misrepresentation or material misstatement now or later in any warranty or
representation in this Agreement or in any writing delivered to any Lender or to
induce any Lender to enter this Agreement or any Loan Document.
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9. LENDERS' RIGHTS AND REMEDIES
----------------------------
9.1 Rights and Remedies.
When an Event of Default occurs and continues Lenders may,
without notice or demand, instruct Agent to 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 any Lender);
(b) Stop advancing money or extending credit for Borrower's
benefit under this Agreement or under any other agreement between Borrower and
any Lender;
(c) Settle or adjust disputes and claims directly with account
debtors for amounts, on terms and in any order that Agent 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 Agent requires and make it available as Agent
designates. Agent 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 Agent a license to enter
and occupy any of its premises, without charge, to exercise any of Agent's and
Lenders rights or remedies;
(e) Apply to the Obligations any (i) balances and deposits of
Borrower Lenders hold, or (ii) any amount held by Lenders 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. Agent is granted
a non-exclusive, royalty-free license or other right to use, without charge,
Borrower's labels, Patents, Copyrights, Mask Works, rights of use of any name,
trade secrets, trade names, Trademarks, service marks, and advertising matter,
or any similar property as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral and, in
connection with Agent's exercise of Lenders' rights under this Section,
Borrower's rights under all licenses and all franchise agreements inure to Agent
for the ratable benefit of Lenders; 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 Agent, on behalf of Lenders, as their 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 disputes and
claims about the Accounts directly with account debtors, for amounts and on
terms Agent determines are reasonable; and (v) transfer the Collateral into the
name of Agent or a third party as the Code permits. Agent
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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. Agent's appointment as
Borrower's attorney in fact, and all of Agent's rights and powers, coupled with
an interest, are irrevocable until all Obligations have been fully repaid and
performed and Lenders' obligation to provide Credit Extensions terminates.
9.3 Accounts Collection.
When an Event of Default occurs and continues, Agent may notify
any Person owing Borrower money of Agent's security interest in the funds and
verify the amount of the Account. Borrower must collect all payments in trust
for Lenders and, if requested by Agent, immediately deliver the payments to
Agent in the form received from the account debtor, with proper endorsements for
deposit.
9.4 Lenders Expenses.
If Borrower fails to pay any amount or furnish any required proof
of payment to third persons, Lenders may make all or part of the payment or
obtain insurance policies required in Section 6.5, and take any action under the
policies Agent deems prudent. Any amounts paid by Lenders are Lenders Expenses
and immediately due and payable, bearing interest at the then applicable rate
and secured by the Collateral. No payments by Lenders are deemed an agreement to
make similar payments in the future or Lenders' waiver of any Event of Default.
9.5 Lenders' Liability for Collateral.
If Agent complies with reasonable banking practices and Section
9-207 of the Code, Lenders are 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.
Lenders' rights and remedies under this Agreement, the Loan
Documents, and all other agreements are cumulative. Lenders have all rights and
remedies provided under the Code, by law, or in equity. Lenders exercise of one
right or remedy is not an election, and Lenders' waiver of any Event of Default
is not a continuing waiver. Lenders delay is not a waiver, election, or
acquiescence. No waiver is effective unless signed by all Lenders and then is
only effective for the specific instance and purpose for which it was given.
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 Lenders on which Borrower is
liable.
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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: (i) if to Silicon Valley Bank or Agent, to the
address set forth at the beginning of this Agreement; (ii) if to Comerica, to 00
Xxxxxxx Xxxxxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000. 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 each Lender each submit to the
exclusive jurisdiction of the State and Federal courts in King County,
Washington.
BORROWER AND EACH LENDER 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. THIS
WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.
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 each Lender's prior written consent which may be granted
or withheld in Lenders' discretion. Each Lender shall have 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, such Lender's
obligations, rights and benefits under this Agreement pursuant to the terms of a
separate Intercreditor Agreement between the Lenders. Agent shall have the
right to resign as Agent hereunder without Borrower's consent and pursuant to
the terms of a separate Intercreditor Agreement entered into between the
Lenders.
12.2 Indemnification.
Borrower will indemnify, defend and hold harmless each Lender and its
officers, employees, and agents against: (a) all obligations, demands, claims,
and liabilities asserted by any other party in connection with the transactions
contemplated by the Loan Documents; and (b) all losses or Lenders Expenses
incurred, or paid by Agent or any Lender from, following, or consequential to
transactions between Lenders and Borrower (including reasonable attorneys' fees
and expenses), except for losses caused by Lenders' gross negligence or willful
misconduct.
12.3 Time of Essence.
Time is of the essence for the performance of all obligations in
this Agreement.
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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 each Lender. 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. UNDER WASHINGTON AND OREGON LAW, MOST
AGREEMENTS, PROMISES AND COMMITMENTS MADE BY LENDERS AFTER OCTOBER 3, 1989
CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY
OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN
WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY US TO BE ENFORCEABLE.
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 Lenders will survive until
all statutes of limitations for actions that may be brought against any Lender
have run.
12.8 Confidentiality.
In handling any confidential information, Lenders will exercise
the same degree of care that it exercises for its own proprietary information,
but disclosure of information may be made (i) to Lenders' 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
Lenders' examination or audit and (v) as Lenders consider appropriate exercising
remedies under this Agreement. Confidential information does not include
information that either: (a) is in the public domain or in Lenders' possession
when disclosed to any Lender, or becomes part of the public domain after
disclosure to any Lender; or (b) is disclosed to any Lender by a third party, if
such Lender does not know that the third party is prohibited from disclosing the
information.
12.9 Attorneys' Fees, Costs and Expenses.
In any action or proceeding between Borrower and Lenders
arising out of the Loan Documents, the prevailing party will be entitled to
recover its reasonable attorneys' fees
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and other reasonable costs and expenses incurred, in addition to any other
relief to which it may be entitled.
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" or "Advances" is a loan advance (or advances) under
the Committed Revolving Line.
"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.
"Agent" means Silicon Valley Bank in its capacity as agent for
the Lenders and any successor Agent.
"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 (i) 80% of Eligible Accounts as determined
by Agent from Borrower's most recent Borrowing Base Certificate; provided,
however, that Lenders may lower the percentage of the Borrowing Base after
performing an audit of Borrower's Collateral.
"Business Day" is any day that is not a Saturday, Sunday or a
day on which SVB is closed.
"Closing Date" is the date of this Agreement.
"Code" is the Washington Uniform Commercial Code.
"Collateral" is the property described on Exhibit
"Committed Revolving Line" is an Advance of up to $25,000,000.
"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
17
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.
"Copyrights" are all copyright rights, applications or
registrations and like protections in each work or authorship or derivative
work, whether published or not (whether or not it is a trade secret) now or
later existing, created, acquired or held.
"Credit Extension" is each Advance, Letter of Credit, Term Loan,
or any other extension of credit by Lenders for Borrower's benefit.
"Current Liabilities" are the aggregate amount of Borrower's
Total Liabilities which mature within one (1) year.
"Deferred Maintenance Revenue" is all amounts received in advance
of performance under maintenance contract and not yet recognized as revenue.
"Eligible Accounts" are Accounts in the ordinary course of
Borrower's business that meet all Borrower's representations and warranties in
Section 5; but Lenders may change eligibility standards by giving Borrower
notice. Unless Lenders agree 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 account
debtor to the extent such Accounts exceed 20% of the total Borrowing Base;
(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 account debtor;
(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 Lenders approve 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;
(f) Accounts for which the account debtor is a federal, state or
local government entity or any department, agency, or instrumentality;
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(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 Agent 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 Agent 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.
"Funding Date" means any date on which an Advance is made to or
on account of Borrower under this Agreement.
"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.
"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.
"Intellectual Property" is:
(a) Copyrights, Trademarks, Patents, and Mask Works including
amendments, renewals, extensions, and all licenses or other rights to use and
all license fees and royalties from the use;
(b) Any trade secrets and any intellectual property rights in
computer software and computer software products now or later existing, created,
acquired or held;
19
(c) All design rights which may be available to Borrower now or
later created, acquired or held;
(d) Any claims for damages (past, present or future) for
infringement of any of the rights above, with the right, but not the obligation,
to xxx and collect damages for use or infringement of the intellectual property
rights above; and
All proceeds and products of the foregoing, including all
insurance, indemnity or warranty payments.
"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.
"Lenders Expenses" means all reasonable costs or expenses
(including reasonable attorneys' fees and expenses) incurred in connection with
the preparation, negotiation, documentation, administration, funding, and
enforcement of the Loan Documents; and Lenders' reasonable attorneys' fees and
expenses incurred in amending, modifying, enforcing or defending the Loan
Documents, including the exercise of any rights or remedies afforded hereunder
or under applicable law, whether or not suit is brought.
"Letter of Credit" is defined in Section 2.2.
"Lien" is a mortgage, lien, deed of trust, charge, pledge,
security interest or other encumbrance.
"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 Lenders in
connection with this Agreement, all as amended, extended or restated.
"Mask Works" are all mask works or similar rights available for
the protection of semiconductor chips, now owned or later acquired.
"Material Adverse Change" is defined in Section 8.3.
"Obligations" means all debt, principal, interest, fees, charges,
expenses and attorneys' fees and costs and other amounts, obligations,
covenants, and duties owing by Borrower to Lenders or Agent of any kind and
description (whether pursuant to or evidenced by the Loan Documents, or by any
other agreement among Agent, Lenders and Borrower, and SVB and whether or not
for the payment of money), whether direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising, including the
principal, interest Letter of Credit fees,
20
and cash management fees (if any) due with respect to the Credit Extensions,
interest accruing after Insolvency Proceedings begin, debt liabilities or
obligations of Borrower assigned to Lenders and further including all Lenders'
Expenses Borrower is required to pay or reimburse by the Loan Documents, by law,
or otherwise.
"Patents" are patents, patent applications and like protections,
including improvements, divisions, continuations, renewals, reissues, extensions
and continuations-in-part of the same.
"Permitted Indebtedness" is:
(a) Borrower's indebtedness to Lenders 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;
(e) Indebtedness secured by Permitted Liens;
(f) Indebtedness of Borrower to any Subsidiary and Contingent
Obligations of any Subsidiary with respect to obligations of Borrower (provided
that the primary obligations are not prohibited hereby), and Indebtedness of any
Subsidiary to any other Subsidiary and Contingent Obligations of any Subsidiary
with respect to obligations of any other Subsidiary (provided that the primary
obligations are not prohibited hereby);
(g) Extensions, refinancings, modifications, amendments and
restatements of any items of Permitted Indebtedness (a) through (f) above,
provided that the principal amount thereof is not increased or the terms thereof
are not modified to impose more burdensome terms upon Borrower or its
Subsidiary, as the case may be; and
(h) Interest rate and foreign currency hedge agreements, not to
exceed an aggregate of Three Million Dollars ($3,000,000.00); and
(i) Other Indebtedness not otherwise permitted by Section 7.4 not
exceeding Five Hundred Thousand Dollars ($500,000) in the aggregate outstanding
at any time.
"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 1
year from its acquisition, (ii) commercial paper maturing no more than 1 year
after its creation and having the highest rating
21
from either Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc.,
(iii) SVB's or Comerica's certificates of deposit issued maturing no more than 1
year after issue, and (iv) any Investments permitted by Borrower's investment
policy, as amended from time to time, provided that such investment policy (and
any such amendment thereto) has been approved by Lenders (such approval not to
be unreasonably withheld);
(c) Investments consisting of the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of Borrower;
(d) Investments accepted in connection with Transfers permitted by
Section 7.1;
(e) Investments otherwise permitted by Section 7.3;
(f) Investments of Subsidiaries in other Subsidiaries or Borrower and
Investments by Borrower in Subsidiaries not to exceed Five Hundred Thousand
Dollars ($500,000) in the aggregate in any fiscal year;
(g) Investments consisting of (i) travel advances and employee
relocation loans and other employee loans and advances in the ordinary course of
business, and (ii) loans to employees, officers or directors relating to the
purchase of equity securities of Borrower or its Subsidiaries pursuant to
employee stock purchase plans or agreements approved by Borrower's Board of
Directors;
(h) Investments (including debt obligations) received in connection
with the bankruptcy or reorganization of customers or suppliers and in
settlement of delinquent obligations of, and other disputes with, customers or
suppliers arising in the ordinary course of business;
(i) Investments consisting of notes receivable of, or prepaid
royalties and other credit extensions, to customers and suppliers who are not
Affiliates, in the ordinary course of business; provided that this
paragraph (h) shall not apply to Investments of Borrower in any Subsidiary;
(j) Joint ventures or strategic alliances in the ordinary course of
Borrower's business consisting of the non-exclusive licensing of technology, the
development of technology or the providing of technical support, provided that
any cash investments by Borrower do not exceed One Million Dollars ($1,000,000)
in the aggregate in any fiscal year; and
(k) Other Investments not otherwise permitted by Section 7.6 not
exceeding Five Hundred Thousand Dollars ($500,000) in the aggregate outstanding
at any time.
22
"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 Agent'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) Licenses or sublicenses granted in the ordinary course of
Borrower's business and any interest or title of a licensor or under any license
or sublicense, if the licenses and sublicenses permit granting Agent, for the
ratable benefit of Lenders, a security interest;
(e) Leases or subleases granted in the ordinary course of Borrower's
business, including in connection with Borrower's leased premises or leased
property;
(f) 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.
(g) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 8.4 or 8.7;
(h) Liens in favor of other financial institutions arising in
connection with Borrower's deposit accounts held at such institutions, provided
that Agent, for the ratable benefit of Lenders, has a perfected security
interest in the amounts held in such deposit accounts; and
(i) Other Liens not described above arising in the ordinary course of
business and not having or not reasonably likely to have a material adverse
effect on Borrower and its Subsidiaries taken as a whole.
"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 SVB's most recently announced "prime rate," even
if it is not SVB's lowest rate.
"Quick Assets" is, on any date, the Borrower's consolidated,
unrestricted cash, cash equivalents, plus accounts receivable.
23
"Responsible Officer" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Controller of Borrower.
"Revolving Maturity Date" is August 8, 2001.
"Schedule" is any attached schedule of exceptions.
"Subordinated Debt" is debt incurred by Borrower subordinated to
Borrower's indebtedness owed to Lenders and which is reflected in a written
agreement in a manner and form reasonably acceptable to Lenders and approved by
Lenders in writing such approval will not be reasonably withheld.
"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 or more Affiliates of
the Person.
"Tangible Net Worth" is, on any date, the consolidated total assets of
Borrower and its Subsidiaries minus, (i) any amounts attributable to (a)
goodwill, (b) intangible items such as unamortized debt discount and expense,
Patents, trade and service marks and names, Copyrights and research and
development expenses except prepaid expenses, and (c) reserves not already
deducted from assets, and (ii) Total Liabilities.
"Total Liabilities" is on any day, obligations that should, under
GAAP, be classified as liabilities on Borrower's consolidated balance sheet,
including all Indebtedness, and current portion Subordinated Debt allowed to be
paid, but excluding all other Subordinated Debt.
"Trademarks" are trademark and servicemark rights, registered or not,
applications to register and registrations and like protections, and the entire
goodwill of the business of Assignor connected with the trademarks.
24
BORROWER:
ONYX SOFTWARE CORPORATION
By: /s/ Xxx Xxxxxxxx
-----------------------------------
Title: Acting CFO/Asst. Secretary
--------------------------------
AGENT:
SILICON VALLEY BANK
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Title: Vice President
--------------------------------
LENDER:
COMERICA BANK-CALIFORNIA
By: Signature Illegible
-----------------------------------
Title: Vice President
--------------------------------
EXHIBIT A
---------
The Collateral consists of all of Borrower's right, title and interest in
and to the following:
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;
All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above;
All contract rights and general intangibles now owned or hereafter
acquired, including, without limitation, goodwill, trademarks, servicemarks,
trade styles, trade names, patents, patent applications, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance and rights to payment of any kind;
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 documents, cash, deposit accounts, securities, securities entitlements,
securities accounts, investment property, financial assets, letters of credit,
certificates of deposit, instruments and chattel paper now owned or hereafter
acquired and Borrower's Books relating to the foregoing;
All copyright rights, copyright applications, copyright registrations and
like protections in each work of authorship and derivative work thereof, whether
published or unpublished, now owned or hereafter acquired; all trade secret
rights, including all rights to unpatented inventions, know-how, operating
manuals, license rights and agreements and confidential information, now owned
or hereafter acquired; all mask work or similar rights available for the
protection of semiconductor chips, now owned or hereafter acquired; all claims
for damages by way of any past, present and future infringement of any of the
foregoing; 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.
EXHIBIT B
---------
LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM
DEADLINE FOR TWO BUSINESS 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 #______________________
FUNDING DATE_______________________
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.
________________________________________________________________________________
________________________________________________________________________________
AGENT 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 #
____________________________________
Authorized Signature (Bank)
________________________________________________________________________________
EXHIBIT C
BORROWING BASE CERTIFICATE
________________________________________________________________________________
Borrower: ONYX SOFTWARE CORPORATION Lenders: Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Comerica Bank-California
00 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000
Comitment Amount: $25,000,000
--------------------------------------------------------------------------------
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 days but less than 120 days due* $__________
5. Balance of 50% over 90 day but less than 120 day accounts $__________
6. Credit balances over 90 days $__________
7. Concentration Limits $__________
8. Foreign Accounts* $__________
9. Governmental Accounts $__________
10. Contra Accounts $__________
11. Promotion or Demo Accounts $__________
12. Intercompany/Employee Accounts $__________
13. Other (please explain on reverse) $__________
14. TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS $__________
15. Eligible Accounts (#3 minus #14) $__________
16. LOAN VALUE OF ACCOUNTS (80% of #15) $__________
*limited to 20% of total Borrowing Base
BALANCES
17. Maximum Loan Amount $__________
18. Total Funds Available (Lesser of #17 or #16) $__________
19. Present balance owing on Line of Credit $__________
20. Outstanding under Sublimits (LC) $__________
21. RESERVE POSITION (#18 minus #19 and #20) $__________
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, Silicon Valley Bank as Agent, Comerica Bank-California, as a lender
and the Lenders from time to time party to the Agreement.
______________________________
BANK USE ONLY
COMMENTS: ---- --- ----
ONYX SOFTWARE CORPORATION Rec'd By:___________
Auth. Signer
By:________________________ Date:_______________
Authorized Signer
Verified:___________
Auth. Signer
Date:_______________
______________________________
EXHIBIT D
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
COMERICA BANK-CALIFORNIA
00 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000
FROM: ONYX SOFTWARE CORPORATION
The undersigned authorized officer of ONYX SOFTWARE CORPORATION
("Borrower") certifies that under the terms and conditions of the Loan and
Security Agreement between Borrower, Agent and Lenders (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 Covenant Required Complies
------------------ --------- --------
Quarterly financial statements + CC Quarterly within 45 days Yes No
Annual (Audited) FYE within 90 days Yes No
10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No
A/R & A/P Agings Monthly within 20 days Yes No
Borrowing Base Certificate Monthly within 20 days Yes No
Financial Covenant Required Actual Complies
------------------ -------- ------ --------
Maintain on a Quarterly Basis:
Minimum Quick Ratio (Adjusted) 2.00:1.00 _____:1.00 Yes No
Profitability: Quarterly $___________ Yes No
"Loss" not to exceed: Yes No
Have there been updates to Borrower's intellectual property, if appropriate? Yes / No
Comments Regarding Exceptions: See Attached. ________________________________
Sincerely, BANK USE ONLY
ONYX SOFTWARE CORPORATION
Rec'd By:_______________________
AUTHORIZED SIGNER
____________________________
Signature Date:___________________________
____________________________
Title Verified:______________________
AUTHORIZED SIGNER
____________________________
Date
Date:___________________________
Compliance Status: Yes No
________________________________
2
[LOGO]
SILICON VALLEY BANK
PRO FORMA INVOICE FOR LOAN CHARGES
BORROWER: ONYX SOFTWARE CORPORATION
LOAN OFFICER: Xxxx Xxxxxx
DATE: November 8, 2000
Revolving Loan Fee $ 18,750
Documentation Fee/1/) _________
Legal Fees/1/) _________
TOTAL FEE DUE $18,750/1/
------------- ========
/1/)Documentation and legal fees will be invoiced separately.
Please indicate the method of payment:
[_] A check for the total amount is attached.
[X] Debit DDA # Checking for the total amount.
--------
[_] Loan proceeds
Borrower:
By: /s/ Xxx Xxxxxxxx
------------------------------------
(Authorized Signer)
/s/ Xxxx X. Xxxxxx 11/30/00
----------------------------------------
Silicon Valley Bank, as Agent Date)
Account Officer's Signature
