Exhibit 10.2
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SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS (EXIM PROGRAM)
BORROWER: ONYX SOFTWARE CORPORATION
DATE: MARCH 31, 2004
THIS AMENDMENT TO LOAN DOCUMENTS (EXIM PROGRAM) is entered into between
Silicon Valley Bank ("Silicon") and the borrower named above ("Borrower").
The Parties agree to amend the Loan and Security Agreement (Exim Program)
between them, dated May 5, 2003 (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 MATURITY DATE. The Maturity Date set forth in Section 4 of
the Schedule to Loan and Security Agreement (Exim Program) is hereby amended to
read as follows:
4. MATURITY DATE
(Section 6.1): MARCH 30, 2005.
2. 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.
3. 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.
4. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and Borrower, and the
other written documents and agreements between Silicon and Borrower set forth in
full all of the representations and agreements of the parties with respect to
the subject matter hereof and supersede all prior discussions, representations,
agreements and understandings between the parties with respect to the subject
hereof. Except as herein expressly amended, all of the terms and provisions of
the Loan Agreement, and all other documents and agreements between Silicon and
Borrower shall continue in full force and effect and the same are hereby
ratified and confirmed.
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SILICON VALLEY BANK AMENDMENT TO LOAN AGREEMENT (EXIM)
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BORROWER: SILICON:
ONYX SOFTWARE CORPORATION SILICON VALLEY BANK
BY /S/ XXXXX X. XXXX BY /S/ XXXXX XXXXXXXX
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TREASURER TITLE PORTFOLIO MGR.
BY /S/ XXXX XXXXXX
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SECRETARY OR ASS'T SECRETARY
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SILICON VALLEY BANK
AMENDED AND RESTATED SECURED PROMISSORY NOTE
(Exim Program)
$2,000,000 MARCH 31, 2004
FOR VALUE RECEIVED, the undersigned (jointly and severally, the
"Borrower") promises to pay to the order of SILICON VALLEY BANK ("Silicon"), at
0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000, or at such other address as
the holder of this Note shall direct, the principal sum of TWO MILLION DOLLARS
($2,000,000), or such lesser or greater amount as shall be equal to the unpaid
balance of the "Exim Loans" as defined in the Loan and Security Agreement (Exim
Program) between Borrower and Silicon dated May 5, 2003 (the "Loan Agreement").
This Amended and Restated Secured Promissory Note amends and restates in its
entirety that certain Secured Promissory Note (Exim Program) in the original
principal amount of $2,000,000 executed by Borrower in favor of Silicon and
dated May 5, 2003.
The principal amount of this Note shall be payable as set forth in the
Loan Agreement.
This Note shall bear interest on the unpaid principal balance hereof from
time to time outstanding at a rate equal to the interest rate set forth in the
Loan Agreement.
Accrued interest on this Note shall be payable monthly in accordance with
the terms of the Loan Agreement. Any accrued interest not paid when due shall
bear interest at the same rate as the principal hereof.
Principal of and interest on this Note shall be payable in lawful money of
the United States of America. If a payment hereunder becomes due and payable on
a Saturday, Sunday or legal holiday, the due date thereof shall be extended to
the next succeeding business day, and interest shall be payable thereon during
such extension.
In the event any payment of principal or interest on this Note is not paid
in full when due, or if any other Event of Default occurs hereunder, under the
Loan Agreement or under any other present or future instrument, document, or
agreement between the Borrower and Silicon (collectively, "Events of Default"),
Silicon may, at its option, at any time thereafter, declare the entire unpaid
principal balance of this Note plus all accrued interest to be immediately due
and payable, without notice or demand. The acceptance of any installment of
principal or interest by Silicon after the time when it becomes due, as herein
specified, shall not be held to establish a custom, or to waive any rights of
Silicon to enforce payment when due of any further installments or any other
rights, nor shall any failure or delay to exercise any rights be held to waive
the same.
All payments hereunder are to be applied first to reasonable costs and
fees referred to hereunder, second to the payment of accrued interest and the
remaining balance to the payment of
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SILICON VALLEY BANK SECURED PROMISSORY NOTE
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principal. Silicon shall have the continuing and exclusive right to apply or
reverse and reapply any and all payments hereunder.
The Borrower agrees to pay all reasonable costs and expenses (including
without limitation reasonable attorney's fees) incurred by Silicon in connection
with or related to this Note, or its enforcement, whether or not suit be
brought. The Borrower hereby waives presentment, demand for payment, notice of
dishonor, notice of nonpayment, protest, notice of protest, and any and all
other notices and demands in connection with the delivery, acceptance,
performance, default, or enforcement of this Note, and the Borrower hereby
waives the benefits of any statute of limitations with respect to any action to
enforce, or otherwise related to, this Note.
This Note is secured by the Loan Agreement and all other present and
future security agreements between the Borrower and Silicon. Nothing herein
shall be deemed to limit any of the terms or provisions of the Loan Agreement or
any other present or future document, instrument or agreement, between the
Borrower and Silicon, and all of Silicon's rights and remedies hereunder and
thereunder are cumulative.
In the event any one or more of the provisions of this Note shall for any
reason be held to be invalid, illegal or unenforceable, the same shall not
affect any other provision of this Note and the remaining provisions of this
Note shall remain in full force and effect.
No waiver or modification of any of the terms or provisions of this Note
shall be valid or binding unless set forth in a writing signed by a duly
authorized officer of Silicon, and then only to the extent therein specifically
set forth. If more than one person executes this Note, their obligations
hereunder shall be joint and several.
SILICON, BY ITS ACCEPTANCE HEREOF, AND BORROWER EACH HEREBY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF,
OR IN ANY WAY RELATING TO: (I) THIS NOTE; OR (II) ANY OTHER PRESENT OR FUTURE
INSTRUMENT OR AGREEMENT BETWEEN SILICON AND BORROWER; OR (iii) ANY CONDUCT, ACTS
OR OMISSIONS OF SILICON OR BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH SILICON OR
BORROWER; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE.
This Note is payable in, and shall be governed by the laws of, the State
of California.
ONYX SOFTWARE CORPORATION
By /s/ XXXXX X. XXXX
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Title Treasurer
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