EXHIBIT 10.1
SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS
BORROWER: ONYX SOFTWARE CORPORATION
DATE: MARCH 30, 2005
THIS AMENDMENT TO LOAN DOCUMENTS is entered into between Silicon Valley
Bank ("Silicon") and the borrower named above ("Borrower").
The Parties agree to amend the Loan and Security Agreement between them,
dated February 14, 2002 (as otherwise amended, if at all, the "Loan Agreement"),
as follows, effective as of the date hereof. (Capitalized terms used but not
defined in this Amendment shall have the meanings set forth in the Loan
Agreement.)
1. MODIFIED CREDIT LIMIT. Section 1 of the Schedule to Loan and Security
Agreement, entitled "Credit Limit," is hereby amended to read as follows:
1. CREDIT LIMIT
(Section 1.1): An amount equal to the sum of 1 and 2 below:
1. Revolving Loans. An amount (the "Revolving
Loans") not to exceed the lesser of: (i)
$6,000,000 at any one time outstanding (the
"Maximum Credit Limit"); or (ii) 70% (an "Advance
Rate") of the amount of Borrower's Eligible
Receivables (as defined in Section 8 above).
Silicon may, from time to time, modify the Advance
Rates, in its good faith business judgment, upon
notice to the Borrower, based on changes in
collection experience with respect to Receivables
or other issues or factors relating to the
Receivables or other Collateral.
Notwithstanding the foregoing, the total
outstanding Obligations under the Revolving Loans
and under the Exim Agreement (as defined below)
shall not at any time exceed $8,000,000 (inclusive
of any issued Letters of Credit).
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SILICON VALLEY BANK AMENDMENT TO LOAN AGREEMENT
plus
2. Term Loan. An amount equal to the unpaid
principal balance from time to time outstanding of
the Loan ("Term Loan") previously made by Silicon,
the current principal balance of which is
$347,200. The Term Loan shall be used to refinance
the Borrower's Cisco Voice Over IP Network. Any
portion of the Term Loan, once repaid, cannot be
reborrowed.
Notwithstanding the foregoing, an amount equal to
fifty percent (50%) of the Obligations relating to
the Term Loan shall be reserved against the
Revolving Loans which would otherwise be available
to Borrower as set forth above.
As used in this Agreement, the word "Loans"
includes the Revolving Loans and the Term Loan.
LETTER OF CREDIT
SUBLIMIT
(Section 1.5): $6,000,000.
EXIM AGREEMENT;
CROSS-COLLATERALIZATION;
CROSS-DEFAULT: Silicon and the Borrower are parties to that
certain Loan and Security Agreement (Exim Program)
dated approximately May 5, 2003 (as amended from
time to time, the "Exim Agreement"). Both this
Agreement and the Exim Agreement shall continue in
full force and effect, and all rights and remedies
under this Agreement and the Exim Agreement are
cumulative. The term "Obligations" as used in this
Agreement and in the Exim Agreement shall include
without limitation the obligation to pay when due
all Loans made pursuant to this Agreement (the
"Non-Exim Loans") and all interest thereon and the
obligation to pay when due all Loans made pursuant
to the Exim Agreement (the "Exim Loans") and all
interest thereon. Without limiting the generality
of the foregoing, all "Collateral" as defined in
this Agreement and as defined in the Exim
Agreement shall secure all Exim Loans and all
Non-Exim Loans and all interest thereon, and all
other Obligations. Any Event of Default under
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SILICON VALLEY BANK AMENDMENT TO LOAN AGREEMENT
this Agreement shall also constitute an Event of
Default under the Exim Agreement, and any Event of
Default under the Exim Agreement shall also
constitute an Event of Default under this
Agreement. In the event Silicon assigns its rights
under the Exim Agreement and/or under any Note
evidencing Exim Loans and/or its rights under this
Agreement and/or under any Note evidencing
Non-Exim Loans, to any third party, including
without limitation the Export-Import Bank of the
United States ("Exim Bank"), whether before or
after the occurrence of any Event of Default,
Silicon shall have the right (but not any
obligation), in its sole discretion, to allocate
and apportion Collateral to the Agreement and/or
Note assigned and to specify the priorities of the
respective security interests in such Collateral
between itself and the assignee, all without
notice to or consent of the Borrower.
2. MODIFIED COLLATERAL MONITORING FEE. The Collateral Monitoring Fee set
forth in Section 3 of the Schedule to Loan and Security Agreement is hereby
amended to read as follows:
Collateral
Monitoring Fee: $1,000 per month, payable in arrears (prorated for
any partial month at the beginning and at
termination of this Agreement); provided, however
such fee will be $0.00 while that certain
Streamline Facility Agreement dated March 30, 2005
is in effect.
3. MODIFIED MATURITY DATE. The Maturity Date set forth in Section 4 of the
Schedule to Loan and Security Agreement is hereby amended to read as follows:
4. MATURITY DATE
(Section 6.1): MARCH 29, 2006.
Notwithstanding the foregoing, with respect to the
Term Loan: The outstanding principal balance of
the Term Loan shall continue to be repaid by
Borrower to Silicon in thirty-six (36) equal
monthly payments of principal, having commenced on
May 1, 2004 and continuing on the first day of
each subsequent month until the earlier of the
following dates: (i) April 1, 2007, or (ii) the
date the Term Loan has been indefeasibly paid in
full, or (iii) the date the Revolving Loans are
terminated, or (iv) the date this Agreement
terminates by its terms or is terminated by either
party in accordance with its
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SILICON VALLEY BANK AMENDMENT TO LOAN AGREEMENT
terms. On the earlier to occur of the foregoing
dates, the entire unpaid principal balance of the
Term Loan, plus all accrued and unpaid interest
thereon, shall be due and payable. Interest on the
Term Loan shall be payable monthly as provided in
Section 1.2 of this Agreement.
4. MODIFIED FINANCIAL COVENANTS. Section 5 of the Schedule to Loan and
Security Agreement, entitled "5. FINANCIAL COVENANTS (Section 5.1)," is hereby
amended to read as follows:
5. FINANCIAL COVENANTS
(Section 5.1): Borrower shall comply with each of the following
financial covenant(s). Compliance shall be
determined as of the end of each month, except as
otherwise specifically provided below:
ADJUSTED QUICK
RATIO: Borrower shall maintain an Adjusted Quick Ratio of
not less than 1.50 TO 1.00.
MINIMUM TANGIBLE
NET WORTH: Borrower shall, on a consolidated basis, maintain
a Tangible Net Worth of not less than the
following:
For the month ending March 31, 2005: $600,000 plus
an amount equal to (i) 50% of all consideration
received after March 1, 2005 for equity securities
and subordinated debt of the Borrower, plus (ii)
50% of the Borrower's net income in each fiscal
quarter ending after March 1, 2005;
For each of the months ending April 30, 2005 and
May 31, 2005: <$2,000,000> plus an amount equal to
(i) 50% of all consideration received after March
1, 2005 for equity securities and subordinated
debt of the Borrower, plus (ii) 50% of the
Borrower's net income in each fiscal quarter
ending after March 1, 2005;
For the month ending June 30, 2005: $600,000 plus
an amount equal to (i) 50% of all consideration
received after March 1, 2005 for equity securities
and subordinated debt of the Borrower, plus (ii)
50% of the Borrower's net
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SILICON VALLEY BANK AMENDMENT TO LOAN AGREEMENT
income in each fiscal quarter ending after March
1, 2005;
For each of the months ending July 31, 2005 and
August 31, 2005: <$2,000,000> plus an amount equal
to (i) 50% of all consideration received after
March 1, 2005 for equity securities and
subordinated debt of the Borrower, plus (ii) 50%
of the Borrower's net income in each fiscal
quarter ending after March 1, 2005;
For the month ending September 30, 2005: $600,000
plus an amount equal to (i) 50% of all
consideration received after March 1, 2005 for
equity securities and subordinated debt of the
Borrower, plus (ii) 50% of the Borrower's net
income in each fiscal quarter ending after March
1, 2005;
For each of the months ending October 31, 2005 and
November 30, 2005: <$2,000,000> plus an amount
equal to (i) 50% of all consideration received
after March 1, 2005 for equity securities and
subordinated debt of the Borrower, plus (ii) 50%
of the Borrower's net income in each fiscal
quarter ending after March 1, 2005;
For the month ending December 31, 2005: $600,000
plus an amount equal to (i) 50% of all
consideration received after March 1, 2005 for
equity securities and subordinated debt of the
Borrower, plus (ii) 50% of the Borrower's net
income in each fiscal quarter ending after March
1, 2005;
For each of the months ending January 31, 2006 and
February 28, 2006: <$2,000,000> plus an amount
equal to (i) 50% of all consideration received
after March 1, 2005 for equity securities and
subordinated debt of the Borrower, plus (ii) 50%
of the Borrower's net income in each fiscal
quarter ending after March 1, 2005; and
For the month ending March 31, 2006: $600,000 plus
an amount equal to (i) 50% of all consideration
received after March 1, 2005 for equity securities
and subordinated debt of the
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SILICON VALLEY BANK AMENDMENT TO LOAN AGREEMENT
Borrower, plus (ii) 50% of the Borrower's net
income in each fiscal quarter ending after March
1, 2005.
Increases in the Minimum Tangible Net Worth
Covenant based on consideration received for
equity securities and subordinated debt of the
Borrower shall be effective as of the end of the
month in which such consideration is received, and
shall continue effective thereafter. Increases in
the Minimum Tangible Net Worth Covenant based on
net income shall be effective on the last day of
the fiscal quarter in which said net income is
realized, and shall continue effective thereafter.
In no event shall the Minimum Tangible Net Worth
Covenant be decreased.
DEFINITIONS. For purposes of the foregoing financial covenants,
the following term shall have the following
meaning:
"< >" shall mean a negative figure or loss, as
applicable.
"Current assets", "current liabilities" and
"liabilities" shall have the meaning ascribed
thereto by generally accepted accounting
principles.
"Adjusted Quick Ratio" shall mean, as of any
applicable date, the ratio of (i) consolidated
cash, cash equivalents and Receivables of Borrower
determined in accordance with generally accepted
accounting principles, consistently applied, to
(ii) Borrower's current liabilities plus the face
amount of all outstanding Letters of Credit
reserved against the Loans less Borrower's
deferred revenues less the current portion of
Borrower's restructuring accrual and set forth in
Borrower's financial statements with respect to
excess office space.
"Tangible Net Worth" shall mean the excess of
total assets over total liabilities, determined in
accordance with generally accepted accounting
principles, with the following adjustments:
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SILICON VALLEY BANK AMENDMENT TO LOAN AGREEMENT
(A) there shall be excluded from assets: (i)
notes, accounts receivable and other obligations
owing to Borrower from its officers or other
Affiliates, and (ii) all assets which would be
classified as intangible assets under generally
accepted accounting principles, including without
limitation goodwill, licenses, patents,
trademarks, trade names, copyrights, capitalized
software and organizational costs, licenses and
franchises
(B) there shall be excluded from liabilities: all
indebtedness which is subordinated to the
Obligations under a subordination agreement in
form specified by Silicon or by language in the
instrument evidencing the indebtedness which is
acceptable to Silicon in its discretion.
5. FEE. In consideration for Silicon entering into this Amendment,
Borrower shall concurrently pay Silicon a fee in the amount of $30,000, which
shall be non-refundable and in addition to all interest and other fees payable
to Silicon under the Loan Documents. Silicon is authorized to charge said fee to
Borrower's loan account.
6. REPRESENTATIONS TRUE. Borrower represents and warrants to Silicon that
all representations and warranties set forth in the Loan Agreement, as amended
hereby, are true and correct.
7. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and Borrower, and the
other written documents and agreements between Silicon and Borrower set forth in
full all of the representations and agreements of the parties with respect to
the subject matter hereof and supersede all prior discussions, representations,
agreements and understandings between the parties with respect to the subject
hereof. Except as herein expressly amended, all of the terms and provisions of
the Loan Agreement, and all other documents and agreements between Silicon and
Borrower shall continue in full force and effect and the same are hereby
ratified and confirmed.
BORROWER: SILICON:
ONYX SOFTWARE CORPORATION SILICON VALLEY BANK
BY /s/ XXXXX X. XXXX BY /s/ XXXXX XXXXXXXX
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TREASURER TITLE RELATIONSHIP MGR
BY /s/ XXXX XXXXXX
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SECRETARY OR ASS'T SECRETARY
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