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Exhibit
10.1
Silicon Valley Bank
Amendment to Loan and
Security Agreement and Limited Waiver
Borrower: eGain Communications
Corporation
Date: November 13,
2007
This Amendment to Loan and
Security Agreement and Limited Waiver is entered into between
Silicon Valley Bank (“Bank”) and the borrower named
above (“Borrower”) as of the above-stated
date.
The Parties agree to amend
the Loan and Security Agreement between them, dated
October 29, 2004 (as otherwise amended, if at all, the
“Loan Agreement”), as follows, effective as of the date
hereof unless otherwise specifically set forth herein, and Bank
agrees to the limited waiver set forth below. (Capitalized terms
used but not defined in this Amendment, shall have the meanings set
forth in the Loan Agreement.)
1. Tangible Net Worth
Covenant. The portion of Section 5 of Schedule 1 to the
Loan Agreement, which presently reads as follows,:
“5. Financial Covenants
(Section 6.7). Borrower shall maintain at all times, to be tested
as of the last day of each month, on a consolidated
basis:
“(a) Tangible Net
Worth. A Tangible Net Worth of not less than Negative $750,000
(“Minimum Tangible Net Worth”), plus (i) 60% of
all consideration received after November 7, 2006 for equity
securities and Subordinated Debt of the Borrower, plus
(ii) 50% of the Borrower’s net income in each fiscal
quarter ending after the date of the December 2006 Amendment.
Increases in the Minimum Tangible Net Worth 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 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 be
decreased.”
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| Silicon Valley Bank |
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Amendment to Loan Agreement |
is amended to read as
follows, effective October 31, 2007:
“5. Financial Covenants
(Section 6.7). Borrower shall maintain, on a consolidated basis, as
of the last day of each month, commencing October 31, 2007 and
continuing at the last day of each succeeding month:
“(a) Tangible Net
Worth. A Tangible Net Worth of not less than
Negative $8,500,000 (“Minimum Tangible Net
Worth”), plus (i) 60% of all consideration received
after November 9, 2006 for equity securities and Subordinated
Debt of the Borrower, plus (ii) 50% of the Borrower’s
net income in each fiscal quarter, commencing with the fiscal
quarter ending December 31, 2007. Increases in the Minimum
Tangible Net Worth 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 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 be
decreased.”
2. Limited
Waivers.
A. Borrower has failed to
comply with the Minimum Tangible Net Worth covenant set forth in
Section 5 of Schedule 1 to the Loan Agreement (as in effect
prior to the effectiveness of this Amendment) for the periods
ending January 31, 2007 through and including
September 30, 2007 (the “Financial Covenant
Defaults”). Bank hereby waives said Financial Covenant
Defaults.
B. It is understood by the
parties hereto that the foregoing waiver does not constitute a
waiver of any other default under the Loan Agreement or any other
Loan Document (including without limitation defaults of the type
referred to above for any other periods), nor an agreement by Bank
to waive or forbear from exercising its rights and remedies in the
future regarding defaults under any financial cove
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