EXHIBIT 10.48
SILICON VALLEY BANK
LOAN AND SECURITY AGREEMENT
BORROWER: FIRST VIRTUAL COMMUNICATIONS, INC., A DELAWARE CORPORATION ("FVCI");
AND
CUSEEME NETWORKS, INC., A DELAWARE CORPORATION ("CNI")
ADDRESS: 0000 XXXXXXXX XXXXX
XXXXX XXXXX, XX 00000
DATE: APRIL 3, 2003
THIS LOAN AND SECURITY AGREEMENT (this "Agreement") is entered into on the above
date between SILICON VALLEY BANK ("Silicon"), whose address is 0000 Xxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and the borrower(s) named above
(individually and collectively, and jointly and severally, the "Borrower"),
whose chief executive office is located at the above address ("Borrower's
Address"). The Schedule to this Agreement (the "Schedule") shall for all
purposes be deemed to be a part of this Agreement, and the same is an integral
part of this Agreement. (Definitions of certain terms used in this Agreement are
set forth in Section 8 below or the Schedule.)
1. LOANS.
1.1 LOANS. Subject to the terms and conditions of this Agreement, Silicon
will make * loans to Borrower (the "Loans"), in amounts determined by Silicon in
its good faith business judgment, ** up to the amounts (the "Credit Limit")
shown in Section 1 of the Schedule, provided no Default or Event of Default has
occurred and is continuing , and subject to deduction of Reserves for accrued
interest and such other Reserves as Silicon deems proper from time to time in
its good faith business judgment.
* THE LOAN
** , IN AN AMOUNT UP TO THE MAXIMUM CREDIT AMOUNT
1.2 INTEREST. * All Loans and all other monetary Obligations shall bear
interest at the rate shown on the Schedule, except where expressly set forth to
the contrary in this Agreement. Interest shall be payable monthly, on the last
day of the month. ** Interest may, in Silicon's discretion, be charged to
Borrower's loan account, and the same shall thereafter bear interest at the same
rate as the other Loans. Silicon may, in its discretion, charge interest to
Borrower's Deposit Accounts maintained with Silicon. Regardless of the amount of
Obligations that may be outstanding from time to time, Borrower shall pay
Silicon minimum monthly interest during the term of this Agreement in the amount
set forth on the Schedule (the "Minimum Monthly Interest").
* THE LOAN
** SILICON SHALL HAVE THE RIGHT, IN ITS DISCRETION, TO CHARGE ACCRUED BUT
UNPAID INTEREST (a) TO BORROWER'S DEPOSIT ACCOUNTS MAINTAINED WITH SILICON AND
(b) IF AND TO THE EXTENT BORROWER HAS INSUFFICIENT FUNDS IN SUCH DEPOSIT
ACCOUNTS, TO BORROWER'S LOAN ACCOUNT, AND SUCH ACCRUED BUT UNPAID INTEREST SHALL
THEREAFTER BEAR INTEREST AT THE SAME RATE ACCRUING ON PRINCIPAL OF THE LOAN.
1.3 [RESERVED].
1.4 FEES. Borrower shall pay Silicon the fees shown on the Schedule, which
are in addition to all interest and other sums payable to Silicon and are not
refundable.
-1-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
1.5 LOAN REQUESTS. To obtain a * Loan, Borrower shall make a request to
Silicon by facsimile or telephone. ** Loan requests received after 12:00 Noon
*** will not be considered by Silicon until the next Business Day. Silicon may
rely on any telephone request for * a Loan given by a person whom Silicon
believes is an authorized representative of Borrower, and Borrower will
indemnify Silicon for any loss Silicon suffers as a result of that reliance.
* THE
** A REQUEST FOR THE LOAN THAT IS
*** (CALIFORNIA TIME)
1.6 [RESERVED].
2. SECURITY INTEREST. To secure the payment and performance of all of the
Obligations when due, Borrower hereby grants to Silicon a security interest in
all of the following (collectively, the "Collateral"): all right, title and
interest of Borrower in and to all of the following, whether now owned or
hereafter arising or acquired and wherever located: all Accounts; all Inventory;
all Equipment; all Deposit Accounts; all General Intangibles (including without
limitation all Intellectual Property); all Investment Property; all Other
Property; and any and all claims, rights and interests in any of the above, and
all guaranties and security for any of the above, and all substitutions and
replacements for, additions, accessions, attachments, accessories, and
improvements to, and proceeds (including proceeds of any insurance policies,
proceeds of proceeds and claims against third parties) of, any and all of the
above, and all Borrower's books relating to any and all of the above. * +
* ANYTHING HEREIN OR IN THE INTELLECTUAL PROPERTY SECURITY AGREEMENT TO THE
CONTRARY NOTWITHSTANDING, THE GRANTS OF SECURITY INTERESTS PURSUANT HERETO AND
THERETO SHALL NOT EXTEND TO, AND THE TERM "COLLATERAL" SHALL NOT INCLUDE, ANY
INTENT-TO-USE FEDERAL TRADEMARK APPLICATION FOR A TRADEMARK, SERVICEMARK, OR
OTHER XXXX FILED ON BORROWER'S BEHALF PRIOR TO THE FILING UNDER APPLICABLE LAW
OF A VERIFIED STATEMENT OF USE (OR EQUIVALENT) FOR SUCH XXXX THAT IS THE SUBJECT
OF SUCH APPLICATION.
+ ANYTHING HEREIN OR IN THE INTELLECTUAL PROPERTY SECURITY AGREEMENT TO THE
CONTRARY NOTWITHSTANDING, THE GRANTS OF SECURITY INTERESTS PURSUANT HERETO AND
THERETO SHALL NOT EXTEND TO, AND THE TERM "COLLATERAL" SHALL NOT INCLUDE, ANY
NON-MONETARY LICENSE RIGHTS OF BORROWER (AS A LICENSEE RATHER THAN AS A
LICENSOR) TO THE EXTENT THAT (BUT ONLY TO THE EXTENT THAT) (y) SUCH LICENSE
RIGHTS ARE NOT ASSIGNABLE OR CAPABLE OF BEING ENCUMBERED AS A MATTER OF LAW OR
UNDER THE TERMS OF THE LICENSE OR OTHER AGREEMENT APPLICABLE THERETO (BUT SOLELY
TO THE EXTENT THAT ANY SUCH RESTRICTION SHALL BE ENFORCEABLE UNDER APPLICABLE
LAW (INCLUDING WITHOUT LIMITATION, TO THE EXTENT APPLICABLE, SECTIONS 9406,
9407, AND 9408 OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN CALIFORNIA FROM
TIME TO TIME)), WITHOUT THE CONSENT OF THE LICENSOR THEREOF OR OTHER APPLICABLE
PARTY THERETO, AND (z) SUCH CONSENT HAS NOT BEEN OBTAINED; PROVIDED, HOWEVER,
THAT THE GRANTS OF SECURITY INTERESTS PURSUANT HERETO AND THERETO SHALL EXTEND
TO, AND THE TERM "COLLATERAL" SHALL INCLUDE, (A) ANY AND ALL PROCEEDS OF ANY
SUCH LICENSE RIGHTS THAT ARE OTHERWISE EXCLUDED TO THE EXTENT THAT THE
ASSIGNMENT OR ENCUMBRANCE OF SUCH PROCEEDS IS NOT SO RESTRICTED, AND (B) UPON
OBTAINING THE CONSENT OF ANY SUCH LICENSOR OR OTHER APPLICABLE PARTY'S CONSENT
WITH RESPECT TO ANY SUCH OTHERWISE EXCLUDED LICENSE RIGHTS, SUCH LICENSE RIGHTS
AS WELL AS ANY AND ALL PROCEEDS THEREOF THAT MIGHT HAVE THERETOFORE HAVE BEEN
EXCLUDED FROM SUCH GRANT OF SECURITY INTERESTS AND THE TERM "COLLATERAL". EXCEPT
AS DISCLOSED IN SECTION 10 OF THE SCHEDULE, BORROWER IS NOT A PARTY TO, NOR IS
BORROWER BOUND BY, ANY MATERIAL LICENSE AGREEMENT (UNDER WHICH BORROWER IS THE
LICENSEE OR SUB-LICENSEE) THAT PROHIBITS OR OTHERWISE RESTRICTS BORROWER FROM
GRANTING A SECURITY INTEREST IN BORROWER'S INTEREST IN SUCH MATERIAL LICENSE
AGREEMENT OR ANY OTHER PROPERTY. WITHOUT PRIOR NOTICE TO SILICON, BORROWER SHALL
NOT ENTER INTO, OR BECOME BOUND BY, ANY SUCH MATERIAL LICENSE AGREEMENT.
BORROWER SHALL TAKE SUCH REASONABLE STEPS AS SILICON REASONABLY REQUESTS TO
OBTAIN THE CONSENT OF, OR WAIVER BY, ANY PERSON WHOSE CONSENT OR WAIVER IS
NECESSARY FOR ANY SUCH MATERIAL LICENSE AGREEMENT TO BE DEEMED "COLLATERAL" AND
FOR SILICON TO HAVE A SECURITY INTEREST IN IT THAT MIGHT OTHERWISE BE RESTRICTED
OR PROHIBITED BY LAW OR BY THE TERMS OF ANY SUCH LICENSE AGREEMENT, WHETHER NOW
EXISTING OR ENTERED INTO IN THE FUTURE; PROVIDED, HOWEVER, THAT BORROWER SHALL
BE PERMITTED TO ENTER INTO, OR BECOME BOUND BY SUCH LICENSE AGREEMENT
NOTWITHSTANDING THE FAILURE TO OBTAIN SUCH CONSENT OR WAIVER IF SILICON HAS
RECEIVED THE NOTICE REFERENCED IN THE IMMEDIATELY PRECEDING SENTENCE AND
BORROWER HAS TAKEN SUCH REASONABLE STEPS.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER.
In order to induce Silicon to enter into this Agreement and to make * Loans,
Borrower represents and warrants to Silicon as follows, and Borrower covenants
that the following representations will continue to be true, and that Borrower
will at all times comply with all of the following covenants, throughout the
term of this Agreement and until all Obligations have been paid and performed in
full:
* THE LOAN
-2-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
3.1 CORPORATE EXISTENCE AND AUTHORITY. Borrower is and will continue to be,
duly organized, validly existing and * in good standing under the laws of the
jurisdiction of its incorporation. Borrower is and will continue to be qualified
and licensed to do business in all jurisdictions in which any failure to do so
could reasonably be expected to result in a Material Adverse Change. The
execution, delivery and performance by Borrower of this Agreement, and all other
documents contemplated hereby (i) have been duly and validly authorized, (ii)
are enforceable against Borrower in accordance with their terms (except as
enforcement may be limited by equitable principles and by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to creditors'
rights generally), and (iii) do not violate Borrower's articles or certificate
of incorporation, or Borrower's by-laws, or any law or any material agreement or
instrument which is binding upon Borrower or its property, and (iv) do not
constitute grounds for acceleration of any material indebtedness or obligation
under any agreement or instrument which is binding upon Borrower or its
property.
* (SUBJECT TO SECTION 8(8) OF THE SCHEDULE)
3.2 NAME; TRADE NAMES AND STYLES. The name of Borrower set forth in the
heading to this Agreement is its correct name. Listed in the Representations are
all prior names of Borrower and all of Borrower's present and prior trade names
+. Borrower shall give Silicon 30 days' prior written notice before changing its
name or doing business under any other name. Borrower has complied, and will in
the future comply, in all material respects, with all laws relating to the
conduct of business under a fictitious business name, except where the failure
to so comply could not reasonably be expected to result in a Material Adverse
Change.
+ USED WITHIN THE PAST 6 YEARS
3.3 PLACE OF BUSINESS; LOCATION OF COLLATERAL. The address set forth in the
heading to this Agreement is Borrower's chief executive office. In addition,
Borrower has places of business, and Collateral * is located, only at the
locations set forth in the Representations. Borrower will give Silicon at least
30 days prior written notice before opening any additional place of business **,
changing its chief executive office, or moving any of the Collateral * to a
location other than Borrower's Address or one of the locations ** set forth in
the Representations, except that Borrower may maintain sales offices *** in the
ordinary course of business at which not more than a total of **** $10,000 fair
market value of ***** Equipment is located.
* (OTHER THAN ITEMS OF COLLATERAL THAT, INDIVIDUALLY OR IN THE AGGREGATE, ARE
IMMATERIAL IN VALUE)
** (WITHIN THE UNITED STATES)
*** NOT IDENTIFIED IN THE REPRESENTATIONS, AND KEEP COLLATERAL LOCATED AT
SUCH SALES OFFICES,
**** $50,000
***** COLLATERAL
3.4 TITLE TO COLLATERAL; PERFECTION; PERMITTED LIENS.
(a) Borrower is now, and will at all times in the future be, the sole owner
of all the Collateral, except for items of Equipment which are leased to
Borrower *. The Collateral now is and will remain free and clear of any and all
liens, charges, security interests, encumbrances and adverse claims, except for
Permitted Liens. Silicon now has, and will continue to have, a first-priority
perfected ** and enforceable security interest in all of the Collateral, subject
in lien priority only to those Permitted Liens that are expressly entitled to
such priority over the security interests of Silicon by operation of law or by
written subordination agreement duly executed and delivered by Silicon in favor
of the holders of such Permitted Liens, and Borrower will at all times defend
Silicon and the Collateral against all claims *** of others.
* AND SUBJECT TO THE INTERESTS OF LICENSORS IN INTELLECTUAL PROPERTY THAT
IS LICENSED TO BORROWER
** (SUBJECT, IN THE CASE OF REGISTERED COPYRIGHTS, TO THE RECORDATION OF
APPROPRIATE SECURITY INTEREST FILINGS IN RESPECT THEREOF WITH THE U.S. COPYRIGHT
OFFICE, IF AND TO THE EXTENT REQUIRED UNDER APPLICABLE LAW FOR THE PERFECTION OF
SILICON'S SECURITY INTERESTS IN SAME)
*** (OTHER THAN PERMITTED LIENS)
(b) Borrower has set forth in the Representations all of Borrower's Deposit
Accounts, and Borrower will give Silicon five Business Days advance written
notice before establishing any new Deposit Accounts and, in accordance with
Section 8(1) of the Schedule, will cause the institution where any such new
Deposit Account is maintained to execute and deliver to Silicon a control
agreement in form sufficient to perfect Silicon's security interest in the
Deposit Account and otherwise satisfactory to Silicon in its good faith business
judgment. Nothing herein limits any requirements which may be set forth in the
Schedule as to where Deposit Accounts will be maintained.
-3-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
(c) In the event that Borrower shall at any time after the date hereof have
any commercial tort claims against others, which it is asserting or intends to
assert, and in which the potential recovery exceeds * $100,000, Borrower shall
promptly notify Silicon thereof in writing and provide Silicon with such
information regarding the same as Silicon shall * request (unless providing such
information would waive the Borrower's attorney-client privilege). Such
notification to Silicon shall constitute a grant of a security interest in the
commercial tort claim and all proceeds thereof to Silicon, and Borrower shall
execute and deliver all such documents and take all such actions as Silicon
shall ** request in connection therewith.
* $250,000 INDIVIDUALLY OR IN THE AGGREGATE
** REASONABLY
(d) None of the Collateral now is or will be affixed to any real property
in such a manner, or with such intent, as to become a fixture *. Borrower is not
and will not become a lessee under any real property lease pursuant to which the
lessor may obtain any rights in any of the Collateral and no such lease now
prohibits, restrains, impairs or will prohibit, restrain or impair Borrower's
right to remove any Collateral from the leased premises. Whenever any Collateral
is located upon premises in which any third party has an interest, Borrower
shall, whenever ** requested by Silicon, use its *** best efforts to cause such
third party to execute and deliver to Silicon, in form acceptable to Silicon,
such waivers and subordinations as Silicon shall specify in its good faith
business judgment. Borrower will keep in full force and effect, and will comply
with all material terms of, any lease of real property where any of the
Collateral now or in the future may be located.
* (OTHER THAN CUSTOMARY LEASEHOLD IMPROVEMENTS IN BORROWER'S LEASED LOCATIONS
OR OTHER ITEMS OF TANGIBLE COLLATERAL THAT, INDIVIDUALLY OR IN THE AGGREGATE,
ARE IMMATERIAL)
** REASONABLY
*** COMMERCIALLY REASONABLE
3.5 MAINTENANCE OF COLLATERAL. Borrower will maintain the Collateral in good
working condition (ordinary wear and tear excepted), and Borrower will not use
the Collateral for any unlawful purpose. Borrower will * immediately advise
Silicon in writing of any material loss or damage to the Collateral.
* PROMPTLY
3.6 BOOKS AND RECORDS. Borrower has maintained and will maintain at
Borrower's Address complete and accurate books and records, comprising an
accounting system in accordance with GAAP.
3.7 FINANCIAL CONDITION, STATEMENTS AND REPORTS. All financial statements now
or in the future delivered to Silicon have been, and will be, prepared in
conformity with GAAP and now and in the future will fairly present the results
of operations and financial condition of Borrower, in accordance with GAAP, at
the times and for the periods therein stated. Between the last date covered by
any such statement provided to Silicon and the date hereof, there has been no
Material Adverse Change.
3.8 TAX RETURNS AND PAYMENTS; PENSION CONTRIBUTIONS. Borrower has timely
filed, and will timely file, all required tax returns and reports *, and
Borrower has timely paid, and will timely pay, all foreign, federal, state and
local taxes, assessments, deposits and contributions now or in the future owed
by Borrower **. Borrower may, however, defer payment of any contested Taxes,
provided that Borrower (i) in good faith contests Borrower's obligation to pay
the Taxes by appropriate proceedings promptly and diligently instituted and
conducted, (ii) notifies Silicon in writing of the commencement of, and any
material development in, the proceedings ***, and (iii) posts bonds or takes any
other steps required to keep the contested Taxes from becoming a lien upon any
of the Collateral. Borrower is unaware of any claims or adjustments proposed for
any of Borrower's prior tax years which could result in additional Taxes
becoming due and payable by Borrower. Borrower has paid, and shall continue to
pay all amounts necessary to fund all present and future pension, profit sharing
and deferred compensation plans in accordance with their terms, and Borrower has
not and will not withdraw from participation in, permit partial or complete
termination of, or permit the occurrence of any other event with respect to, any
such plan which could reasonably be expected to result in any liability of
Borrower, including any liability to the Pension Benefit Guaranty Corporation or
its successors or any other governmental agency.
* (OTHER THAN SUCH RETURNS AND REPORTS THAT, INDIVIDUALLY OR IN THE
AGGREGATE, ARE IMMATERIAL)
** (COLLECTIVELY, "TAXES") (OTHER THAN SUCH TAXES THAT, INDIVIDUALLY OR IN
THE AGGREGATE, ARE IMMATERIAL)
*** (EXCEPT SOLELY IF AND TO THE EXTENT PROVIDING SUCH INFORMATION WOULD
WAIVE BORROWER'S ATTORNEY-CLIENT PRIVILEGE)
3.9 COMPLIANCE WITH LAW. Borrower has, to the best of its knowledge,
complied, and will comply, in all material respects, with all provisions of all
foreign, federal, state and local laws and regulations applicable to Borrower,
including, but not
-4-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
limited to, those relating to Borrower's ownership of real or personal property,
the conduct and licensing of Borrower's business, and all environmental matters.
3.10 LITIGATION. * There is no claim, suit, litigation, proceeding or
investigation pending or (to best of Borrower's knowledge) threatened ** against
or affecting Borrower in any court or before any governmental agency (or any
basis therefor known to Borrower) which could reasonably be expected to result,
either separately or in the aggregate, in any Material Adverse Change. Borrower
will promptly inform Silicon in writing of any claim, proceeding, litigation or
investigation in the future threatened ** or instituted against Borrower
involving any single claim of *** $50,000 or more, or involving + $100,000 or
more in the aggregate.
* EXCEPT AS OTHERWISE EXPRESSLY DISCLOSED IN THE REPRESENTATIONS OR DISCLOSED
IN WRITING TO SILICON PURSUANT TO THIS SECTION 3.10, THERE
** IN WRITING
*** $100,000
+ $300,000
3.11 USE OF PROCEEDS. All proceeds of * all Loans shall be used solely for
lawful business purposes. Borrower is not purchasing or carrying any "margin
stock" (as defined in Regulation U of the Board of Governors of the Federal
Reserve System) and no part of the proceeds of * any Loan will be used to
purchase or carry any "margin stock" or to extend credit to others for the
purpose of purchasing or carrying any "margin stock."
* THE LOAN
4. ACCOUNTS.
4.1 REPRESENTATIONS RELATING TO ACCOUNTS. Borrower represents and warrants to
Silicon as follows: Each Account * with respect to which Loans are requested by
Borrower shall, on the date each Loan is requested and made, (i) represent an
undisputed bona fide existing unconditional obligation of the Account Debtor
created by the sale, delivery, and acceptance of goods or the rendition of
services, or the non-exclusive licensing of Intellectual Property, in the
ordinary course of Borrower's business, and (ii) meet the Minimum Eligibility
Requirements set forth in Section 8 below.
* INCLUDED BY BORROWER IN ANY TRANSACTION REPORT OR OTHER CERTIFICATION
DELIVERED TO SILICON FOR PURPOSES OF DEMONSTRATING BORROWER'S COMPLIANCE WITH
THE LIQUIDITY FINANCIAL COVENANT SET FORTH IN SECTION 5 OF THE SCHEDULE SHALL,
ON THE DATE OF SUCH TRANSACTION REPORT OR OTHER CERTIFICATION AS WELL AS ON THE
DATE OF DETERMINATION OF SUCH COMPLIANCE,
4.2 REPRESENTATIONS RELATING TO DOCUMENTS AND LEGAL COMPLIANCE. Borrower
represents and warrants to Silicon as follows: All statements made and all
unpaid balances appearing in all invoices, instruments and other documents
evidencing the Accounts are and shall be true and correct * and all such
invoices, instruments and other documents and all of Borrower's books and
records are and shall be genuine and * in all respects what they purport to be.
All sales and other transactions underlying or giving rise to each Account shall
comply in all material respects with all applicable laws and governmental rules
and regulations. To the best of Borrower's knowledge, all signatures and
endorsements on all documents, instruments, and agreements relating to all
Accounts are and shall be genuine, and all such documents, instruments and
agreements are and shall be legally enforceable in accordance with their terms.
* IN ALL MATERIAL RESPECTS
4.3 SCHEDULES AND DOCUMENTS RELATING TO ACCOUNTS. Borrower shall deliver to
Silicon transaction reports and schedules of collections, as provided in the
Schedule, on Silicon's standard forms; provided, however, that Borrower's
failure to execute and deliver the same shall not affect or limit Silicon's
security interest and other rights in all of Borrower's Accounts, nor shall
Silicon's failure to advance or lend against a specific Account affect or limit
Silicon's security interest and other rights therein. If requested by Silicon *,
Borrower shall furnish Silicon with copies (or, at Silicon's request, originals)
of all contracts, orders, invoices, and other similar documents, and all
shipping instructions, delivery receipts, bills of lading, and other evidence of
delivery, for any goods the sale or disposition of which gave rise to such
Accounts, and Borrower warrants the genuineness of all of the foregoing.
Borrower shall also furnish to Silicon an aged accounts receivable trial balance
as provided in the Schedule. In addition, Borrower shall deliver to Silicon, on
its request, the originals of all instruments, chattel paper, security
agreements, guarantees and other documents and property evidencing or securing
any Accounts, in the same form as received, with all necessary indorsements, and
copies of all credit memos.
* (WHICH REQUEST SHALL BE REASONABLE, SO LONG AS NO EVENT OF DEFAULT HAS
OCCURRED AND IS CONTINUING)
-5-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
4.4 * COLLECTION OF ACCOUNTS. Borrower shall have the right to collect all
Accounts, unless and until a Default or an Event of Default has occurred and is
continuing. Whether or not an Event of Default has occurred and is continuing,
Borrower shall hold all payments on, and proceeds of, Accounts in trust for
Silicon ** and Borrower shall immediately deliver all such payments and proceeds
to Silicon in their original form, duly endorsed, to be applied to the
Obligations in such order as Silicon shall determine. Silicon may, in its good
faith business judgment, require that all proceeds of Collateral be deposited by
Borrower into a lockbox account, or such other "blocked account" as Silicon may
specify, pursuant to a blocked account agreement in such form as Silicon may
specify in its good faith business judgment.
* COLLECTION OF ACCOUNTS; DOMINION ACCOUNT
** . FROM AND AFTER THE DATE (IF EVER) THAT BORROWER MAINTAINS LESS THAN THE
DESIGNATED AMOUNT (AS DEFINED BELOW) OF UNRESTRICTED CASH ON DEPOSIT IN
BORROWER'S DEPOSIT ACCOUNTS AT SILICON OR THAT AN EVENT OF DEFAULT HAS OCCURRED
AND IS CONTINUING, BORROWER SHALL IMMEDIATELY DELIVER ALL SUCH PAYMENTS AND
PROCEEDS, IN THEIR ORIGINAL FORM, DULY ENDORSED, AND ALL OTHER MONETARY PROCEEDS
OF COLLATERAL, INTO SUCH LOCKBOX ACCOUNT OR OTHER "BLOCKED ACCOUNT" AS SILICON
MAY SPECIFY, PURSUANT TO A LOCKBOX/BLOCKED ACCOUNT AGREEMENT IN SUCH FORM AS
SILICON MAY SPECIFY IN ITS GOOD FAITH BUSINESS JUDGMENT (THE "DOMINION
ACCOUNT"). SILICON SHALL HAVE THE RIGHT, UPON THE OCCURRENCE AND DURING THE
CONTINUATION OF AN EVENT OF DEFAULT, TO APPLY ALL SUCH PAYMENTS ON, AND PROCEEDS
OF, ACCOUNTS AND OTHER PROCEEDS OF COLLATERAL (INCLUDING AMOUNTS IN THE DOMINION
ACCOUNT) TO THE OBLIGATIONS IN SUCH ORDER AS SILICON SHALL DETERMINE. AS USED
HEREIN, THE TERM "DESIGNATED AMOUNT" MEANS, AS OF ANY DATE OF DETERMINATION, THE
SUM OF (y) $4,000,000 PLUS (z) THE AGGREGATE OUTSTANDING AMOUNT OF OBLIGATIONS
(IF ANY).
4.5. REMITTANCE OF PROCEEDS. All proceeds arising from the disposition of any
Collateral shall * be delivered, in kind, by Borrower to Silicon in the original
form in which received by Borrower not later than the following Business Day
after receipt by Borrower, ** to be applied to the Obligations in such order as
Silicon shall determine; provided that, if no Default or Event of Default has
occurred and is continuing, Borrower shall not be obligated to remit to Silicon
the proceeds of the sale of worn out or obsolete Equipment disposed of by
Borrower in good faith in an arm's length transaction for an aggregate purchase
price of $25,000 or less (for all such transactions in any fiscal year).
Borrower agrees that it will not commingle proceeds of Collateral with any of
Borrower's other funds or property, but will hold such proceeds separate and
apart from such other funds and property and in an express trust for Silicon.
Nothing in this Section limits the restrictions on disposition of Collateral set
forth elsewhere in this Agreement.
* : (a) IN THE CASE OF MONETARY PROCEEDS (SUBJECT TO SECTION 4.4),
** AND TOGETHER WITH NECESSARY ENDORSEMENTS, FOR DEPOSIT INTO THE DOMINION
ACCOUNT IN ACCORDANCE WITH SECTION 4.4; OR (b) IN THE CASE OF NON-MONETARY
PROCEEDS, EITHER (i) IF SO REQUIRED BY SILICON IN ITS GOOD FAITH BUSINESS
JUDGMENT, BE DELIVERED (NOT LATER THAN THE FOLLOWING BUSINESS DAY AFTER RECEIPT)
BY BORROWER TO SILICON AS PLEDGED COLLATERAL, OR (ii) OTHERWISE, CONSTITUTE
COLLATERAL (SUBJECT IN ALL EVENTS TO SILICON'S CONTINUING SECURITY INTEREST
THEREIN) TO BE HELD OR USED BY BORROWER IN ACCORDANCE WITH THE IMMEDIATELY
FOLLOWING SENTENCE AND ALL OTHER APPLICABLE PROVISIONS OF THIS AGREEMENT
RELATIVE TO COLLATERAL.
4.6 DISPUTES. Borrower shall notify Silicon promptly * of all disputes or
claims ** relating to Accounts. Borrower shall not forgive (completely or
partially), compromise or settle any Account for less than payment in full, or
agree to do any of the foregoing, except that Borrower may do so, provided that:
(i) Borrower does so in good faith, in a commercially reasonable manner, in the
ordinary course of business, and in arm's length transactions, which are
reported to Silicon on the regular reports provided to Silicon; *** (ii) no
Default or Event of Default has occurred and is continuing ; and (iii) taking
into account all such discounts, settlements and forgiveness, the total
outstanding Loans will not exceed the Credit Limit.
* (AND IN ANY EVENT NOT LATER THAN CONCURRENTLY WITH THE DELIVERY OF THE NEXT
SET OF MONTHLY REPORTS REQUIRED UNDER SECTION 6 OF THE SCHEDULE)
** , IN EXCESS OF $25,000 INDIVIDUALLY OR IN THE AGGREGATE AT ANY ONE TIME,
*** AND
4.7 RETURNS. Provided no Event of Default has occurred and is continuing, if
any Account Debtor returns any Inventory to Borrower, Borrower shall promptly
determine the reason for such return and promptly issue a credit memorandum to
the Account Debtor in the appropriate amount. In the event any attempted return
occurs after the occurrence and during the continuance of any Event of Default,
Borrower shall hold the returned Inventory in trust for Silicon, and immediately
* notify Silicon of the return of the Inventory.
* PROMPTLY (AND IN ANY EVENT NOT LATER THAN CONCURRENTLY WITH THE DELIVERY OF
THE NEXT SET OF MONTHLY REPORTS REQUIRED UNDER SECTION 6 OF THE SCHEDULE)
-6-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
4.8 VERIFICATION. Silicon may, from time to time, verify directly with the
respective Account Debtors the validity, amount and other matters relating to
the Accounts, by means of mail, telephone or otherwise, either in the name of
Borrower or Silicon or such other name as Silicon may choose.
4.9 NO LIABILITY. Silicon shall not be responsible or liable for any shortage
or discrepancy in, damage to, or loss or destruction of, any goods, the sale or
other disposition of which gives rise to an Account, or for any error, act,
omission, or delay of any kind occurring in the settlement, failure to settle,
collection or failure to collect any Account, or for settling any Account in
good faith for less than the full amount thereof, nor shall Silicon be deemed to
be responsible for any of Borrower's obligations under any contract or agreement
giving rise to an Account. Nothing herein shall, however, relieve Silicon from
liability for its own gross negligence or willful misconduct.
5. ADDITIONAL DUTIES OF BORROWER.
5.1 FINANCIAL AND OTHER COVENANTS. Borrower shall at all times comply
with the financial and other covenants set forth in the Schedule.
5.2 INSURANCE. Borrower shall, at all times insure all of the tangible
personal property Collateral and carry such other business insurance, with
insurers reasonably acceptable to Silicon, in such form and amounts as Silicon
may reasonably require and that are customary and in accordance with standard
practices for Borrower's industry and locations, and Borrower shall provide
evidence of such insurance to Silicon. All such insurance policies shall name
Silicon as an additional insured and loss payee, and shall contain a lenders
loss payee endorsement in form reasonably acceptable to Silicon. Upon receipt of
the proceeds of any such insurance, Silicon shall * apply such proceeds in
reduction of the Obligations as Silicon shall determine in its good faith
business judgment +, except that, provided no Default or Event of Default has
occurred and is continuing, Silicon shall release to Borrower insurance proceeds
with respect to Equipment totaling less than $100,000, which shall be utilized
by Borrower for the replacement of the Equipment with respect to which the
insurance proceeds were paid ++. Silicon may require reasonable assurance that
the insurance proceeds so released will be so used. If Borrower fails to provide
or pay for any insurance, Silicon may, but is not obligated to, obtain the same
at Borrower's expense. Borrower shall promptly deliver to Silicon copies of all
material reports made to insurance companies.
* HAVE THE RIGHT TO
+ (UNTIL NO MONETARY OBLIGATIONS ARE OUTSTANDING, AND THEN ANY EXCESS
INSURANCE PROCEEDS SHALL BE PROMPTLY RELEASED TO BORROWER AND SHALL BE UTILIZED
BY BORROWER FOR THE REPLACEMENT OF THE EQUIPMENT WITH RESPECT TO WHICH THE
INSURANCE PROCEEDS WERE PAID (UNLESS AND TO THE EXTENT SUCH EQUIPMENT WAS
OBSOLETE OR NO LONGER NEEDED IN BORROWER'S BUSINESS)
++ (UNLESS AND TO THE EXTENT SUCH EQUIPMENT WAS OBSOLETE OR NO LONGER NEEDED
IN BORROWER'S BUSINESS)
5.3 REPORTS. Borrower, at its expense, shall provide Silicon with the written
reports set forth in the Schedule, and such other written reports with respect
to Borrower (including budgets, sales projections, operating plans and other
financial documentation), as Silicon shall from time to time specify in its good
faith business judgment.
5.4 ACCESS TO COLLATERAL, BOOKS AND RECORDS. At reasonable times, and on at
least one Business Day's notice, Silicon, or its agents, shall have the right to
inspect the Collateral, and the right to audit and copy Borrower's books and
records. + Silicon shall take reasonable steps to keep confidential all
information obtained in any such inspection or audit, but Silicon shall have the
right to disclose any such information to its auditors, regulatory agencies, and
attorneys, and pursuant to any subpoena or other legal process. ** The foregoing
inspections and audits shall be at Borrower's expense and the charge therefor
shall be $750 per person per day (or such higher amount as shall represent
Silicon's then current standard charge for the same), plus reasonable
out-of-pocket expenses. In the event Borrower and Silicon schedule an audit more
than 10 days in advance, and Borrower seeks to reschedules the audit with less
than 10 days written notice to Silicon, then (without limiting any of Silicon's
rights or remedies), Borrower shall pay Silicon a cancellation fee of $1,000
plus any out-of-pocket expenses incurred by Silicon, to compensate Silicon for
the anticipated costs and expenses of the cancellation.
+ AUDITS WILL BE CONDUCTED NO MORE FREQUENTLY THAN ONCE EVERY 4 MONTHS, SO
LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING AND SO LONG AS
SILICON (IN ITS GOOD FAITH BUSINESS JUDGMENT) HAS NOT DETERMINED THERE TO EXIST
ANY DETERIORATION IN THE STATUS OR VALUE OF THE COLLATERAL OR IN THE FINANCIAL
CONDITION OF BORROWER (IT BEING UNDERSTOOD THAT AUDITS TAKING PLACE AT ONE OR
MORE LOCATIONS OF BORROWER DURING SUBSTANTIALLY THE SAME OVERALL EXAMINATION
PERIOD SHALL CONSTITUTE BUT A SINGLE AUDIT FOR PURPOSES OF THIS SENTENCE).
** SILICON AGREES TO TAKE REASONABLE STEPS TO TREAT ALL MATERIAL, NON-PUBLIC
INFORMATION REGARDING BORROWER AND THE OPERATIONS, ASSETS, AND EXISTING AND
CONTEMPLATED BUSINESS PLANS OF BORROWER IN A CONFIDENTIAL MANNER; IT BEING
UNDERSTOOD AND AGREED BY BORROWER THAT IN ANY EVENT (AND WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING) SILICON
-7-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
MAY MAKE DISCLOSURES: (a) TO COUNSEL FOR AND OTHER ADVISORS, ACCOUNTANTS, AND
AUDITORS TO SILICON WHO HAVE A GOOD FAITH NEED TO KNOW SUCH INFORMATION IN ORDER
TO PERFORM THEIR DUTIES; (b) REASONABLY REQUIRED BY ANY BONA FIDE POTENTIAL OR
ACTUAL ASSIGNEE, TRANSFEREE, OR PARTICIPANT IN CONNECTION WITH ANY CONTEMPLATED
OR ACTUAL ASSIGNMENT OR TRANSFER BY SILICON OF AN INTEREST HEREIN OR ANY
PARTICIPATION INTEREST IN SILICON'S RIGHTS HEREUNDER; PROVIDED, HOWEVER, THAT
SUCH POTENTIAL OR ACTUAL ASSIGNEE, TRANSFEREE, OR PARTICIPANT HAS ENTERED INTO A
COMPARABLE AGREEMENT RELATIVE TO SUCH CONFIDENTIAL TREATMENT OF SUCH
INFORMATION; (c) OF INFORMATION THAT IS OR HAS BECOME PUBLIC BY DISCLOSURES MADE
BY PERSONS OTHER THAN SILICON; (d) AS SILICON MAY DEEM APPROPRIATE IN ITS GOOD
FAITH BUSINESS JUDGMENT IN CONNECTION WITH THE EXERCISE OF SILICON'S REMEDIES
FOLLOWING THE OCCURRENCE AND DURING THE CONTINUATION OF ANY EVENT OF DEFAULT; OR
(e) AS REQUIRED OR REQUESTED BY ANY COURT, GOVERNMENTAL OR ADMINISTRATIVE OR
REGULATORY AGENCY, PURSUANT TO ANY SUBPOENA OR OTHER LEGAL PROCESS, OR BY ANY
LAW, STATUTE, REGULATION, OR COURT ORDER. IN HANDLING SUCH CONFIDENTIAL
INFORMATION, SILICON AGREES TO EXERCISE THE SAME DEGREE OF CARE THAT IT
GENERALLY EXERCISES FOR ITS OWN MATERIAL, NON-PUBLIC INFORMATION
5.5 NEGATIVE COVENANTS. Except as may be permitted in the Schedule, Borrower
shall not, without Silicon's prior written consent (which shall be a matter of
its good faith business judgment), do any of the following:
(i) merge or consolidate with another corporation or entity +;
+ (EXCEPT THAT, SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING OR WOULD RESULT THEREFROM: (y) ONE BORROWER MAY MERGE WITH THE OTHER
BORROWER; AND (z) A SUBSIDIARY OF BORROWER MAY MERGE WITH AND INTO BORROWER,
WITH BORROWER AS THE SURVIVING ENTITY OF SUCH MERGER, PROVIDED THAT SILICON
SHALL RECEIVE ALL APPLICABLE LIEN SEARCHES RELATIVE TO SUCH SUBSIDIARY, THE
RESULTS OF WHICH SHALL BE SATISFACTORY TO SILICON)
(ii) acquire any assets, except in the ordinary course of business;
(iii) enter into any other transaction outside the ordinary course of
business +;
+ (EXCEPT FOR TRANSACTIONS THAT, INDIVIDUALLY OR IN THE AGGREGATE,
ARE IMMATERIAL)
(iv) sell or transfer any Collateral, except * for the sale of finished
Inventory in the ordinary course of Borrower's business, and except for the sale
of obsolete or unneeded Equipment in the ordinary course of business;
* : (a) THE SALE OF FINISHED INVENTORY IN THE ORDINARY COURSE OF
BORROWER'S BUSINESS; (b) THE SALE OR TRANSFER OF OBSOLETE OR UNNEEDED EQUIPMENT
IN THE ORDINARY COURSE OF BUSINESS; (c) THE GRANT OF NON-EXCLUSIVE LICENSES OF
INTELLECTUAL PROPERTY TO CUSTOMERS OF BORROWER IN THE ORDINARY COURSE OF
BUSINESS; AND (d) SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING
OR WOULD RESULT THEREFROM, THE SALE OR TRANSFER OF COLLATERAL BY ONE BORROWER TO
THE OTHER BORROWER, SUBJECT TO SILICON'S CONTINUING SECURITY INTERESTS THEREIN
AND THE CONTINUED PERFECTION AND PRIORITY OF SUCH SECURITY INTERESTS
(v) store any Inventory or other Collateral with any warehouseman or
other third party +;
+ , UNLESS (a) SUCH WAREHOUSEMAN OR OTHER THIRD PARTY HAS NO
RIGHTS IN THE COLLATERAL, OR (b) THE RIGHTS (INCLUDING, WITHOUT LIMITATION,
LIENS) OF SUCH WAREHOUSEMAN OR OTHER THIRD PARTY IN THE COLLATERAL DO NOT, UNDER
APPLICABLE LAW, HAVE PRIORITY OVER SILICON'S SECURITY INTERESTS IN SUCH
COLLATERAL, OR (c) IN THE CASE OF SUCH WAREHOUSEMAN OR OTHER THIRD PARTY WHOSE
RIGHTS (INCLUDING, WITHOUT LIMITATION, LIENS) IN SUCH COLLATERAL, UNDER
APPLICABLE LAW, HAVE PRIORITY OVER SILICON'S SECURITY INTERESTS IN SUCH
COLLATERAL, SILICON HAS RECEIVED A BAILEE AGREEMENT OR SIMILAR AGREEMENT, IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO SILICON, FROM SUCH WAREHOUSEMAN OR
OTHER THIRD PARTY
(vi) sell any Inventory on a sale-or-return, guaranteed sale,
consignment, or other contingent basis;
(vii) make any loans of any money or other assets +;
+ , EXCEPT: (A) LOANS CONSISTING OF (1) TRAVEL ADVANCES AND
EMPLOYEE RELOCATION LOANS AND OTHER EMPLOYEE LOANS AND ADVANCES IN THE ORDINARY
COURSE OF BUSINESS; PROVIDED THE AGGREGATE AMOUNT OF SUCH LOANS UNDER THIS
-8-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
SUBCLAUSE (VII)(A)(1) DO NOT EXCEED $400,000 AT ANY ONE TIME OUTSTANDING AND (2)
LOANS TO EMPLOYEES, OFFICERS OR DIRECTORS RELATING TO THE PURCHASE OF EQUITY
SECURITIES OF BORROWER PURSUANT TO EMPLOYEE STOCK PURCHASE PLANS OR AGREEMENTS
APPROVED BY BORROWER'S BOARD OF DIRECTORS; PROVIDED THE AGGREGATE AMOUNT OF SUCH
LOANS UNDER THIS SUBCLAUSE (VII) (A)(2) DO NOT EXCEED $25,000 AT ANY ONE TIME
OUTSTANDING; AND (B) 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;
(viii) incur any debts, outside the ordinary course of business, which
could reasonably be expected to result in a Material Adverse Change;
(ix) guarantee or otherwise become liable with respect to the
obligations of another party or entity +;
+ (EXCEPT: (a) FOR THE CROSS-GUARANTY; AND (b) PURSUANT TO THE
ENDORSEMENT OF INSTRUMENTS FOR COLLECTION OR DEPOSIT IN THE ORDINARY COURSE OF
BUSINESS)
(x) pay or declare any dividends on Borrower's stock (except for *
dividends payable solely in stock of Borrower;
* :(a) DIVIDENDS PAID BY CVI TO FVCI, SUBJECT TO SILICON'S
CONTINUING SECURITY INTERESTS THEREIN AND THE CONTINUED PERFECTION AND PRIORITY
OF SUCH SECURITY INTERESTS; AND (b)
(xi) redeem, retire, purchase or otherwise acquire, directly or
indirectly, any of Borrower's stock +;
+ , EXCEPT, SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING OR WOULD RESULT THEREFROM, REPURCHASES OF STOCK FROM FORMER
EMPLOYEES, CONSULTANTS, OR DIRECTORS OF BORROWER UNDER THE TERMS OF APPLICABLE
REPURCHASE AGREEMENTS BETWEEN BORROWER AND SUCH EMPLOYEES, CONSULTANTS, OR
DIRECTORS ALL IN AN AGGREGATE AMOUNT NOT TO EXCEED $100,000 WHILE THIS AGREEMENT
IS IN EFFECT
(xii) make any change in Borrower's capital structure which could
reasonably be expected to result in a Material Adverse Change;
(xiii) engage, directly or indirectly, in any business other than the
businesses currently engaged in by Borrower or reasonably related thereto; or
(xiv) dissolve or elect to dissolve*.
* (PROVIDED, HOWEVER, THAT THE NON-SURVIVING BORROWER OF THE
MERGER OF ONE BORROWER WITH THE OTHER BORROWER AS PERMITTED UNDER SECTION 5.5(i)
MAY DISSOLVE, AND TERMINATE ITS EXISTENCE, BY OPERATION OF LAW AS A RESULT OF
SUCH MERGER)
Transactions permitted by the foregoing provisions of this Section 5.5 are only
permitted if no Default or Event of Default has occurred and is continuing or
would occur as a result of such transaction. Borrower agrees that it shall not,
while this Agreement is in effect, transfer funds, assets, or any Collateral to
any of Borrower's subsidiaries and affiliates *.
* (EXCEPT AS EXPRESSLY PERMITTED IN THIS SECTION 5.5)
5.6 LITIGATION COOPERATION. Should any third-party suit or proceeding be
instituted by or against Silicon with respect to any Collateral or relating to
Borrower, Borrower shall, without expense to Silicon, make available Borrower
and its officers, employees and agents and Borrower's books and records, to the
extent that Silicon may deem them reasonably necessary in order to prosecute or
defend any such suit or proceeding.
5.7 FURTHER ASSURANCES. Borrower agrees, at its expense, promptly upon
Silicon's reasonable request, to execute all documents and take all actions, as
Silicon, may, in its good faith business judgment, deem necessary or useful in
order to perfect, and maintain the first-lien-priority of, Silicon's security
interests in the Collateral (subject in lien priority only to those Permitted
Liens that are expressly entitled to such priority over the security interests
of Silicon by operation of law or by
-9-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
written subordination agreement duly executed and delivered by Silicon in favor
of the holders of such Permitted Liens), and in order to fully consummate the
transactions contemplated by this Agreement.
6. TERM.
6.1 MATURITY DATE. This Agreement shall continue in effect until the
maturity date set forth on the Schedule (the "Maturity Date"), subject to
Section 6.3 below.
6.2 EARLY TERMINATION. This Agreement may be terminated prior to the Maturity
Date as follows: (i) by Borrower, effective three Business Days after written
notice of termination is given to Silicon; or (ii) by Silicon at any time after
the occurrence and during the continuance of an Event of Default, without
notice, effective immediately. If this Agreement is terminated by Borrower or by
Silicon under this Section 6.2, Borrower shall pay to Silicon a termination fee
in an amount equal to * two percent (2.0%) of the Maximum Credit Limit, provided
that no termination fee shall be charged if the credit facility hereunder is
replaced with a new facility from another division of Silicon Valley Bank. The
termination fee shall be due and payable on the effective date of termination
and thereafter shall bear interest at a rate equal to the highest rate
applicable to any of the Obligations.
6.3 PAYMENT OF OBLIGATIONS. On the Maturity Date or on any earlier effective
date of termination, Borrower shall pay and perform in full all Obligations,
whether evidenced by installment notes or otherwise, and whether or not all or
any part of such Obligations are otherwise then due and payable. Without
limiting the generality of the foregoing, if on the Maturity Date, or on any
earlier effective date of termination, there are any outstanding Letters of
Credit issued by Silicon or issued by another institution based upon an
application, guarantee, indemnity or similar agreement on the part of Silicon,
then on such date Borrower shall provide to Silicon cash collateral in an amount
equal to * 105% of the face amount of all such Letters of Credit plus all
interest, fees and cost due or to become due in connection therewith (as
estimated by Silicon in its good faith business judgment), to secure all of the
Obligations relating to said Letters of Credit, pursuant to Silicon's then
standard form cash pledge agreement. Notwithstanding any termination of this
Agreement, all of Silicon's security interests in all of the Collateral and all
of the terms and provisions of this Agreement shall continue in full force and
effect until all Obligations have been paid and performed in full; provided that
Silicon may, in its sole discretion, refuse to make any further ** Loans after
termination. No termination shall in any way affect or impair any right or
remedy of Silicon, nor shall any such termination relieve Borrower of any
Obligation to Silicon, until all of the Obligations have been paid and performed
in full. Upon payment and performance in full of all the Obligations and
termination of this Agreement, Silicon shall promptly terminate its financing
statements with respect to the Borrower and deliver to Borrower such other
documents as may be required to fully terminate Silicon's security interests.
* 100%
** EXTENSIONS OF CREDIT (IF ANY)
7. EVENTS OF DEFAULT AND REMEDIES.
7.1 EVENTS OF DEFAULT. The occurrence of any of the following events shall
constitute an "Event of Default" under this Agreement, and Borrower shall give
Silicon immediate written notice thereof:
(a) Any warranty, representation, statement, report or certificate made
or delivered to Silicon by Borrower or any of Borrower's officers, employees or
agents, now or in the future, shall be untrue or misleading in a material
respect when made or deemed to be made *; or
* , AND BORROWER KNEW (TO THE BEST OF ITS KNOWLEDGE), OR WITH
REASONABLE DILIGENCE SHOULD HAVE KNOWN, THAT SUCH WARRANTY, REPRESENTATION,
STATEMENT, REPORT OR CERTIFICATE WAS UNTRUE OR MISLEADING IN A MATERIAL RESPECT
WHEN MADE OR DEEMED TO BE MADE
(b) Borrower shall fail to pay when due * any Loan or any interest
thereon or any other monetary Obligation **; or
* THE LOAN OR ANY PRINCIPAL INSTALLMENT THEREOF
** , WHICH FAILURE IS NOT CURED WITHIN 1 BUSINESS DAY AFTER THE DATE
DUE
(c) + the total Loans and other Obligations outstanding at any time shall
exceed the Credit Limit; or
+ [RESERVED]
-10-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
(d) Borrower shall fail to comply with any of the financial covenants set
forth in the Schedule, or shall fail to perform any other non-monetary
Obligation which by its nature cannot be cured, or shall fail to permit Silicon
to conduct an inspection or audit as specified in Section 5.4 hereof; or
(e) Borrower shall fail to perform any other non-monetary Obligation,
which failure is not cured within + five Business Days after the date due; or
+ TEN (10) DAYS
(f) any levy, assessment, attachment, seizure, lien or encumbrance (other
than a Permitted Lien) is made on all or any part of the Collateral which is not
cured within * 10 days after the occurrence of the same; or
* TEN (10) BUSINESS DAYS
(g) any default or event of default occurs under any obligation secured
by a Permitted Lien, which is not cured within any applicable cure period or
waived in writing by the holder of the Permitted Lien; or
(h) Borrower breaches any material contract or obligation *, which has
resulted or could reasonably be expected to result in a Material Adverse Change;
or
* (WHICH BREACH IS NOT TIMELY CURED IN FULL BY BORROWER OR WAIVED IN
WRITING BY THE APPLICABLE OTHER PARTY TO SUCH CONTRACT OR BENEFICIARY OF SUCH
OBLIGATION)
(i) Dissolution, termination of existence, insolvency or business
failure of Borrower + or any guarantor of the Obligations; or appointment of a
receiver, trustee or custodian, for all or any part of the property of,
assignment for the benefit of creditors by, or the commencement of any
proceeding by Borrower or any guarantor of any of the Obligations under any
reorganization, bankruptcy, insolvency, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, now or in the
future in effect; or
+ (PROVIDED, HOWEVER, THAT THE NON-SURVIVING BORROWER OF THE MERGER OF
ONE BORROWER WITH THE OTHER BORROWER AS PERMITTED UNDER SECTION 5.5(i) MAY
DISSOLVE, AND TERMINATE ITS EXISTENCE, BY OPERATION OF LAW AS A RESULT OF SUCH
MERGER)
(j) the commencement of any proceeding against Borrower or any guarantor
of any of the Obligations under any reorganization, bankruptcy, insolvency,
arrangement, readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction, now or in the future in effect, which is not cured by the
dismissal thereof within * 30 days after the date commenced; or
* 45
(k) revocation or termination of, or limitation or denial of liability
upon, any guaranty of the Obligations or any attempt to do any of the foregoing;
or
(l) revocation or termination of, or limitation or denial of liability
upon, any pledge of any certificate of deposit, securities or other property or
asset of any kind pledged by any third party to secure any or all of the
Obligations, or any attempt to do any of the foregoing, or commencement of
proceedings by or against any such third party under any bankruptcy or
insolvency law; or
(m) Borrower makes any payment on account of any indebtedness or
obligation which has been subordinated to the Obligations other than as
permitted in the applicable subordination agreement, or if any Person who has
subordinated such indebtedness or obligations terminates or in any way limits
his subordination agreement; or
(n) without the prior written consent of Silicon, (1) a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended) becomes, after the date of this Agreement, the
"beneficial
-11-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of more than * 20% of the total voting power
of all classes of capital stock then outstanding of any Borrower, or (2) a
majority of the members of the Board of Directors of any Borrower shall not
constitute Continuing Directors **; or
* 35%
** , OR (3) FVCI SHALL CEASE TO OWN AND CONTROL 100% OF THE ISSUED
AND OUTSTANDING CAPITAL STOCK OF CNI
(o) Borrower shall generally not pay its debts as they become due, or
Borrower shall conceal, remove or transfer any part of its property, with intent
to hinder, delay or defraud its creditors, or make or suffer any transfer of any
of its property which may be fraudulent under any bankruptcy, fraudulent
conveyance or similar law; or
(p) a Material Adverse Change shall occur; or
(q) + Silicon, acting in good faith and in a commercially reasonable
manner, deems itself insecure because of the occurrence of an event prior to the
effective date hereof of which Silicon had no knowledge on the effective date or
because of the occurrence of an event on or subsequent to the effective date; or
+ [INTENTIONALLY OMITTED]
(r) an event of default has occurred and is continuing under any other
Loan Document (after giving effect to, but without duplication of, any
applicable grace periods).
Silicon may cease making any * Loans hereunder during any of the above cure
periods, and thereafter if an Event of Default has occurred and is continuing.
* EXTENSIONS OF CREDIT (IF ANY)
7.2 REMEDIES. Upon the occurrence and during the continuance of any Event of
Default, and at any time thereafter, Silicon, at its option, and without notice
or demand of any kind (all of which are hereby expressly waived by Borrower),
may do any one or more of the following: (a) Cease making Loans or otherwise
extending credit to Borrower under this Agreement or any other Loan Document;
(b) Accelerate and declare all or any part of the Obligations to be immediately
due, payable, and performable, notwithstanding any deferred or installment
payments allowed by any instrument evidencing or relating to any Obligation; (c)
Take possession of any or all of the Collateral wherever it may be found, and
for that purpose Borrower hereby authorizes Silicon without judicial process to
enter onto any of Borrower's premises without interference to search for, take
possession of, keep, store, or remove any of the Collateral, and remain on the
premises or cause a custodian to remain on the premises in exclusive control
thereof, without charge for so long as Silicon deems it necessary, in its good
faith business judgment, in order to complete the enforcement of its rights
under this Agreement or any other Loan Document; provided, however, that should
Silicon seek to take possession of any of the Collateral by court process,
Borrower hereby irrevocably waives: (i) any bond and any surety or security
relating thereto required by any statute, court rule or otherwise as an incident
to such possession; (ii) any demand for possession prior to the commencement of
any suit or action to recover possession thereof; and (iii) any requirement that
Silicon retain possession of, and not dispose of, any such Collateral until
after trial or final judgment; (d) Require Borrower to assemble any or all of
the Collateral and make it available to Silicon at places designated by Silicon
which are reasonably convenient to Silicon and Borrower, and to remove the
Collateral to such locations as Silicon may deem advisable; (e) Complete the
processing, manufacturing or repair of any Collateral prior to a disposition
thereof and, for such purpose and for the purpose of removal, Silicon shall have
the right to use Borrower's premises, vehicles, hoists, lifts, cranes, and other
Equipment and all other property without charge; (f) Sell, lease or otherwise
dispose of any of the Collateral, in its condition at the time Silicon obtains
possession of it or after further manufacturing, processing or repair, at one or
more public and/or private sales, in lots or in bulk, for cash, exchange or
other property, or on credit, and to adjourn any such sale from time to time
without notice other than oral announcement at the time scheduled for sale.
Silicon shall have the right to conduct such disposition on Borrower's premises
without charge, for such time or times as Silicon deems reasonable, or on
Silicon's premises, or elsewhere and the Collateral need not be located at the
place of disposition. Silicon may directly or through any affiliated company
purchase or lease any Collateral at any such public disposition, and if
-12-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
permissible under applicable law, at any private disposition. Any sale or other
disposition of Collateral shall not relieve Borrower of any liability Borrower
may have if any Collateral is defective as to title or physical condition or
otherwise at the time of sale; (g) Demand payment of, and collect any Accounts
and General Intangibles comprising Collateral and, in connection therewith,
Borrower irrevocably authorizes Silicon to endorse or sign Borrower's name on
all collections, receipts, instruments and other documents, to take possession
of and open mail addressed to Borrower and remove therefrom payments made with
respect to any item of the Collateral or proceeds thereof, and, in Silicon's
good faith business judgment, to grant extensions of time to pay, compromise
claims and settle Accounts and the like for less than face value; (h) Offset
against any sums in any of Borrower's general, special or other Deposit Accounts
with Silicon against any or all of the Obligations; and (i) Demand and receive
possession of any of Borrower's federal and state income tax returns and the
books and records utilized in the preparation thereof or referring thereto. All
reasonable attorneys' fees, expenses, costs, liabilities and obligations
incurred by Silicon with respect to the foregoing shall be added to and become
part of the Obligations, shall be due on demand, and shall bear interest at a
rate equal to the highest interest rate applicable to any of the Obligations.
Without limiting any of Silicon's rights and remedies, from and after the
occurrence and during the continuance of any Event of Default, the interest rate
applicable to the Obligations shall be increased by an additional four percent
per annum (the "Default Rate").
7.3 STANDARDS FOR DETERMINING COMMERCIAL REASONABLENESS. Borrower and Silicon
agree that a sale or other disposition (collectively, "sale") of any Collateral
which complies with the following standards will conclusively be deemed to be
commercially reasonable *: (i) Notice of the sale is given to Borrower at least
ten days prior to the sale, and, in the case of a public sale, notice of the
sale is published at least five ** days before the sale in a newspaper of
general circulation in the county where the sale is to be conducted; (ii) Notice
of the sale describes the collateral in general, non-specific terms; (iii) The
sale is conducted at a place designated by Silicon, with or without the
Collateral being present; (iv) The sale commences at any time between 8:00 a.m.
and 6:00 p.m; (v) Payment of the purchase price in cash or by cashier's check or
wire transfer is required; (vi) With respect to any sale of any of the
Collateral, Silicon may (but is not obligated to) direct any prospective
purchaser to ascertain directly from Borrower any and all information concerning
the same. Silicon shall be free to employ other methods of noticing and selling
the Collateral, in its discretion, if they are commercially reasonable.
* WITH RESPECT TO SUCH ASPECTS OF SUCH SALE
** TEN
7.4 POWER OF ATTORNEY. Upon the occurrence and during the continuance of any
Event of Default, without limiting Silicon's other rights and remedies, Borrower
grants to Silicon an irrevocable power of attorney coupled with an interest,
authorizing and permitting Silicon (acting through any of its employees,
attorneys or agents) at any time, at its option, but without obligation, with or
without notice to Borrower, and at Borrower's expense, to do any or all of the
following, in Borrower's name or otherwise, but Silicon agrees that if it
exercises any right hereunder, it will do so in good faith and in a commercially
reasonable manner: (a) Execute on behalf of Borrower any documents that Silicon
may, in its good faith business judgment, deem advisable in order to perfect and
maintain Silicon's security interest in the Collateral, or in order to exercise
a right of Borrower or Silicon, or in order to fully consummate all the
transactions contemplated under this Agreement, and all other Loan Documents;
(b) Execute on behalf of Borrower, any invoices relating to any Account, any
draft against any Account Debtor and any notice to any Account Debtor, any proof
of claim in bankruptcy, any Notice of Lien, claim of mechanic's, materialman's
or other lien, or assignment or satisfaction of mechanic's, materialman's or
other lien; (c) Take control in any manner of any cash or non-cash items of
payment or proceeds of Collateral; endorse the name of Borrower upon any
instruments, or documents, evidence of payment or Collateral that may come into
Silicon's possession; (d) Endorse all checks and other forms of remittances
received by Silicon; (e) Pay, contest or settle any lien, charge, encumbrance,
security interest and adverse claim in or to any of the Collateral, or any
judgment based thereon, or otherwise take any action to terminate or discharge
the same; (f) Grant extensions of time to pay, compromise claims and settle
Accounts and General Intangibles for less than face value and execute all
releases and other documents in connection therewith; (g) Pay any sums required
on account of Borrower's taxes or to secure the release of any liens therefor,
or both; (h) Settle and adjust, and give releases of, any insurance claim that
relates to any of the Collateral and obtain payment therefor; (i) Instruct any
third party having custody or control of any books or records belonging to, or
relating to, Borrower to give Silicon the same rights of access and other rights
with respect thereto as Silicon has under this Agreement; and (j) Take any
action or pay any sum required of Borrower pursuant to this Agreement and any
other Loan Documents. Any and all reasonable sums paid and any and all
reasonable costs, expenses, liabilities, obligations and attorneys' fees
incurred by Silicon with respect to the foregoing shall be added to and become
part of the Obligations, shall be payable on demand, and shall bear interest at
a rate equal to the highest interest rate applicable to any of the Obligations.
In no event shall Silicon's rights under the foregoing power of attorney or any
of Silicon's other rights under this Agreement be deemed to indicate that
Silicon is in control of the business, management or properties of Borrower.
-13-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
7.5 APPLICATION OF PROCEEDS. All proceeds realized as the result of any sale
of the Collateral shall be applied by Silicon first to the reasonable costs,
expenses, liabilities, obligations and attorneys' fees incurred by Silicon in
the exercise of its rights under this Agreement, second to the interest due upon
any of the Obligations, and third to the principal of the Obligations, in such
order as Silicon shall determine in its sole discretion. Any surplus shall be
paid to Borrower or other persons legally entitled thereto; Borrower shall
remain liable to Silicon for any deficiency. If, Silicon, in its good faith
business judgment, directly or indirectly enters into a deferred payment or
other credit transaction with any purchaser at any sale of Collateral, Silicon
shall have the option, exercisable at any time, in its good faith business
judgment, of either reducing the Obligations by the principal amount of purchase
price or deferring the reduction of the Obligations until the actual receipt by
Silicon of the cash therefor.
7.6 REMEDIES CUMULATIVE. In addition to the rights and remedies set forth in
this Agreement, Silicon shall have all the other rights and remedies accorded a
secured party under the California Uniform Commercial Code and under all other
applicable laws, and under any other instrument or agreement now or in the
future entered into between Silicon and Borrower, and all of such rights and
remedies are cumulative and none is exclusive. Exercise or partial exercise by
Silicon of one or more of its rights or remedies shall not be deemed an
election, nor bar Silicon from subsequent exercise or partial exercise of any
other rights or remedies. The failure or delay of Silicon to exercise any rights
or remedies shall not operate as a waiver thereof, but all rights and remedies
shall continue in full force and effect until all of the Obligations have been
fully paid in cash and otherwise performed and this Agreement has been
terminated.
8. DEFINITIONS. As used in this Agreement, the following terms have the
following meanings:
"Account Debtor" means the obligor on an Account.
"Accounts" means all present and future "accounts" as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without limitation
all accounts receivable and other sums owing to Borrower.
"Affiliate" means, with respect to any Person, a relative, partner,
shareholder, director, officer, or employee of such Person, or any parent or
subsidiary of such Person, or any Person controlling, controlled by or under
common control with such Person.
"Business Day" means a day on which Silicon is open for business.
"Code" means the Uniform Commercial Code as adopted and in effect in the
State of California from time to time.
"Collateral" has the meaning set forth in Section 2 above.
"continuing" and "during the continuance of" when used with reference to a
Default or Event of Default means that the Default or Event of Default has
occurred and has not been either waived in writing by Silicon or cured within
any applicable cure period.
"Continuing Director" means (a) any member of the Board of Directors who was
a director (or comparable manager) of Borrower on the date of this Agreement,
and (b) any individual who becomes a member of the Board of Directors after the
date of this Agreement if such individual was appointed or nominated for
election to the Board of Directors by a majority of the Continuing Directors,
but excluding any such individual originally proposed for election in opposition
to the Board of Directors in office at the date of this Agreement in an actual
or threatened election contest relating to the election of the directors (or
comparable managers) of Borrower (as such terms are used in Rule 14a-11 under
the Securities Exchange Act of 1934, as amended) and whose initial assumption of
office resulted from such contest or the settlement thereof.
"Default" means any event which with notice or passage of time or both, would
constitute an Event of Default.
"Default Rate" has the meaning set forth in Section 7.2 above.
"Deposit Accounts" means all present and future "deposit accounts" as defined
in the California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without limitation
all general and special bank accounts, demand accounts, checking accounts,
savings accounts and certificates of deposit.
"Dot Com Account Debtor" means an Account Debtor that, in Silicon's sole
discretion, is an internet based company.
"Eligible Accounts" means Accounts of Borrower arising in the ordinary course
of Borrower's business from the sale of goods by Borrower or the rendition of
services by Borrower, or the non-exclusive licensing of Intellectual Property by
Borrower (as a licensor), that Silicon, in its good faith business judgment,
shall deem eligible for borrowing. Without limiting the fact that the
determination of which Accounts are eligible for borrowing is a matter of
Silicon's good faith business judgment, the requirements set forth in the
remainder of this definition (the "Minimum Eligibility Requirements") are the
-14-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
minimum requirements for an Account to be an Eligible Account: (i) the Account
must not be outstanding for more than 90 days from its invoice date (the
"Eligibility Period"), (ii) the Account must not represent progress xxxxxxxx, or
be due under a fulfillment or requirements contract with the Account Debtor,
(iii) the Account must not be subject to any contingencies (including Accounts
arising from sales on consignment, guaranteed sale or other terms pursuant to
which payment by the Account Debtor may be conditional), (iv) the Account must
not be owing from an Account Debtor with whom Borrower has any dispute (whether
or not relating to the particular Account), (v) the Account must not be owing
from an Affiliate of Borrower, (vi) the Account must not be owing from an
Account Debtor which is subject to any insolvency or bankruptcy proceeding, or
whose financial condition is not acceptable to Silicon, or which, fails or goes
out of a material portion of its business, (vii) the Account must not be owing
from the United States or any department, agency or instrumentality thereof
(unless there has been compliance, to Silicon's satisfaction, with the United
States Assignment of Claims Act), (viii) the Account must not be owing from an
Account Debtor located outside the United States or Canada (unless pre-approved
by Silicon in its discretion in writing, or backed by a letter of credit
satisfactory to Silicon, or FCIA insured satisfactory to Silicon), (ix) the
Account must not be owing from an Account Debtor to whom Borrower is or may be
liable for goods or services purchased by Borrower, or third-party intellectual
property licensed by Borrower (as licensee) from such Account Debtor or
otherwise (but, in such case, the Account will be deemed not eligible only to
the extent of any amounts owed by Borrower to such Account Debtor), (x) the
Account must not be owing from a Dot Com Account Debtor unless and to the extent
specifically approved by Silicon, (xi) * the Account must not be owing by an
Account Debtor as to whom Borrower has recognized or can recognize deferred
revenue, unless and in which case the portion of such Account that is equal to
such deferred revenue amount shall be ineligible under this clause (xi), (xii)
the Account must have been billed to the Account Debtor, (xiii) the Account
conforms in all respects to the warranties and representations set forth in this
Agreement, and (xiv) the Account is at all times subject to Silicon's duly
perfected, first priority security interest. Accounts owing from one Account
Debtor will not be deemed Eligible Accounts to the extent they exceed 25% ** of
the total Accounts outstanding. In addition, if more than 50% of the Accounts
owing from an Account Debtor are outstanding for a period longer than their
Eligibility Period (without regard to unapplied credits) or are otherwise not
Eligible Accounts, then all Accounts owing from that Account Debtor will be
deemed ineligible for borrowing. Silicon may, from time to time, in its good
faith business judgment, revise the Minimum Eligibility Requirements, upon ***
written notice to Borrower.
* ACCOUNTS WITH THE POTENTIAL FOR DEFERRED REVENUE OFFSET, IN BANK'S GOOD
FAITH BUSINESS JUDGMENT, WILL BE EXCLUDED FROM ELIGIBLE ACCOUNTS UNDER THIS
CLAUSE (xi)
** (OR, WITH RESPECT TO ANY PARTICULAR ACCOUNT DEBTOR, SUCH HIGHER
PERCENTAGE, IF ANY, THAT SILICON MAY FROM TIME TO TIME APPROVE IN ITS GOOD FAITH
BUSINESS JUDGMENT)
*** AT LEAST 15 DAYS' PRIOR
"Eligible Inventory" [Not Applicable]
"Equipment" means all present and future "equipment" as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without limitation
all machinery, fixtures, goods, vehicles (including motor vehicles and
trailers), and any interest in any of the foregoing.
"Event of Default" means any of the events set forth in Section 7.1 of this
Agreement.
"GAAP" means generally accepted accounting principles consistently applied.
"General Intangibles" means all present and future "general intangibles" as
defined in the California Uniform Commercial Code in effect on the date hereof
with such additions to such term as may hereafter be made, and includes without
limitation all Intellectual Property, payment intangibles, royalties, contract
rights, goodwill, franchise agreements, purchase orders, customer lists, route
lists, telephone numbers, domain names, claims, income tax refunds, security and
other deposits, options to purchase or sell real or personal property, rights in
all litigation presently or hereafter pending (whether in contract, tort or
otherwise), insurance policies (including without limitation key man, property
damage, and business interruption insurance), payments of insurance and rights
to payment of any kind.
"good faith business judgment" means honesty in fact and good faith (as
defined in Section 1201 of the Code) in the exercise of Silicon's business
judgment.
"including" means including (but not limited to).
"Intellectual Property" means all present and future (a) copyrights,
copyright rights, copyright applications, copyright registrations and like
protections in each work of authorship and derivative work thereof, whether
published or unpublished, (b) trade secret rights, including all rights to
unpatented inventions and know-how, and confidential information; (c) mask
-15-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
work or similar rights available for the protection of semiconductor chips; (d)
patents, patent applications and like protections including without limitation
improvements, divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same; (e) trademarks, servicemarks, trade styles,
and trade names, whether or not any of the foregoing are registered, and all
applications to register and registrations of the same and like protections, and
the entire goodwill of the business of Borrower connected with and symbolized by
any such trademarks; (f) computer software and computer software products; (g)
designs and design rights; (h) technology; (i) all claims for damages by way of
past, present and future infringement of any of the rights included above; (j)
all licenses or other rights to use any property or rights of a type described
above.
"Inventory" means all present and future "inventory" as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without limitation
all merchandise, raw materials, parts, supplies, packing and shipping materials,
work in process and finished products, including without limitation such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returned goods and any documents of title representing
any of the above.
"Investment Property" means all present and future investment property,
securities, stocks, bonds, debentures, debt securities, partnership interests,
limited liability company interests, options, security entitlements, securities
accounts, commodity contracts, commodity accounts, and all financial assets held
in any securities account or otherwise, and all options and warrants to purchase
any of the foregoing, wherever located, and all other securities of every kind,
whether certificated or uncertificated.
"Loan Documents" means, collectively, this Agreement, the Representations,
and all other present and future documents, instruments and agreements between
Silicon, on the one hand, and Borrower or any guarantor of any of the
Obligations, on the other hand, including, but not limited to those relating to
this Agreement, or any other Loan Document, and all amendments and modifications
thereto and replacements therefor.
"Material Adverse Change" means any of the following: (i) a material adverse
change in the business, operations, or financial or other condition of the
Borrower, or (ii) a material impairment of the prospect of repayment of any
portion of the Obligations; or (iii) a material impairment of the value or
priority of Silicon's security interests in the Collateral.
"Obligations" means * all present and future Loans, advances, debts,
liabilities, obligations, guaranties, covenants, duties and indebtedness at any
time owing by any one or more of the Borrowers to Silicon, whether evidenced by
this Agreement or any note or other instrument or document, or otherwise,
whether arising from an extension of credit, opening of a letter of credit,
banker's acceptance, loan, guaranty, indemnification or otherwise, whether
direct or indirect (including, without limitation, those acquired by assignment
and any participation by Silicon any debts of any one or more of the Borrowers,
absolute or contingent, due or to become due, including, without limitation, all
interest, charges, expenses, fees, attorney's fees, expert witness fees, audit
fees, letter of credit fees, collateral monitoring fees, closing fees, facility
fees, termination fees, minimum interest charges and any other sums chargeable
to any one or more of the Borrowers under this Agreement or under any other Loan
Documents. It is expressly acknowledged and agreed that each and all of the
Borrowers are, and at all times shall be, jointly and severally liable for all
Obligations, regardless of which Borrower or Borrowers requested, received,
used, or directly enjoyed the benefit of, the Obligations.
* THE LOAN AND ALL OTHER PRESENT AND FUTURE LOANS,
"Other Property" means the following as defined in the California Uniform
Commercial Code in effect on the date hereof with such additions to such term as
may hereafter be made, and all rights relating thereto: all present and future
"commercial tort claims" (including without limitation any commercial tort
claims identified in the Representations), "documents", "instruments",
"promissory notes", "chattel paper", "letters of credit", "letter-of-credit
rights", "fixtures", "farm products" and "money"; and all other goods and
personal property of every kind, tangible and intangible, whether or not
governed by the California Uniform Commercial Code.
"Permitted Liens" means the following:
(i) purchase money security interests in specific items of Equipment *;
* AND THE INTERESTS OF LESSORS UNDER CAPITALIZED LEASES OF SPECIFIC
ITEMS OF EQUIPMENT (AS TO WHICH BORROWER IS THE LESSEE)
-16-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
(ii) * leases of specific items of Equipment;
* THE INTERESTS OF LESSORS UNDER OPERATING LEASES OF SPECIFIC ITEMS
OF EQUIPMENT (AS TO WHICH BORROWER IS THE LESSEE) IN THE ORDINARY COURSE OF
BUSINESS AND THE INTERESTS OF LICENSORS UNDER LICENSES OF SPECIFIC ITEMS OF
INTELLECTUAL PROPERTY (AS TO WHICH BORROWER IS THE LICENSEE) IN THE ORDINARY
COURSE OF BUSINESS
(iii) liens for taxes not yet payable;
(iv) additional security interests and liens consented to in writing by
Silicon, which consent may be withheld in its good faith business judgment;
(v) security interests being terminated substantially concurrently with
this Agreement;
(vi) (A) liens of landlords, warehousemen, and other bailees, if and to
the extent such lien is (1) pursuant to applicable law, expressly junior and
subordinate to the security interests of Silicon, or (2) subject to a landlord
agreement or bailee agreement (in form and substance satisfactory to Silicon in
its good faith business judgment) duly executed and delivered to Silicon by such
lienholder and in full force and effect; and (B) liens of materialmen,
mechanics, carriers, or other similar liens arising in the ordinary course of
business and securing obligations which are not delinquent;
(vii) liens incurred in connection with the extension, renewal or
refinancing of the indebtedness secured by liens of the type described above in
clauses (i) or (ii) above, provided that any extension, renewal or replacement
lien is limited to the property encumbered by the existing lien and the
principal amount of the indebtedness being extended, renewed or refinanced does
not increase;
(viii) liens in favor of customs and revenue authorities which secure
payment of customs duties in connection with the importation of goods +.
+ (ix) JUDGMENT LIENS THE EXISTENCE OF WHICH DOES NOT CONSTITUTE AN
EVENT OF DEFAULT UNDER SECTION 7.1(f); (x) DEPOSITS TO SECURE BORROWER'S
PERFORMANCE OF BIDS, TENDERS, OR LEASES INCURRED IN THE ORDINARY COURSE OF
BUSINESS OF BORROWER AND NOT IN CONNECTION WITH THE BORROWING OF MONEY; (xi)
LIENS WHICH CONSTITUTE BANKER'S LIENS, RIGHTS OF SET-OFF OR SIMILAR RIGHTS AS TO
DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS, OR OTHER FUNDS MAINTAINED WITH A BANK OR
OTHER FINANCIAL INSTITUTION (BUT ONLY TO THE EXTENT SUCH BANKER'S LIENS, RIGHTS
OF SET-OFF OR OTHER RIGHTS ARE IN RESPECT OF CUSTOMARY SERVICE CHARGES RELATIVE
TO SUCH DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS, AND OTHER FUNDS, AND NOT IN
RESPECT OF ANY LOANS OR OTHER EXTENSIONS OF CREDIT TO BORROWER); AND (xii)
DEPOSITS MADE IN THE ORDINARY COURSE OF BUSINESS IN CONNECTION WITH WORKER'S
COMPENSATION INSURANCE, UNEMPLOYMENT INSURANCE, AND SOCIAL SECURITY
Silicon will have the right to require, as a condition to its consent under
subparagraph (iv) above, that the holder of the additional security interest or
lien sign an intercreditor agreement on Silicon's then standard form,
acknowledge that the security interest is subordinate to the security interest
in favor of Silicon, and agree not to take any action to enforce its subordinate
security interest so long as any Obligations remain outstanding, and Borrower
hereby agrees that any uncured default in any obligation secured by the
subordinate security interest shall also constitute an Event of Default under
this Agreement.
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation, limited
liability company, government, or any agency or political division thereof, or
any other entity.
"Representations" means the written Representations and Warranties provided
by Borrower to Silicon referred to in the Schedule.
"Reserves" means, as of any date of determination, such amounts as Silicon
may from time to time establish and revise in its good faith business judgment,
reducing the amount of Loans, Letters of Credit and other financial
accommodations which
-17-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
would otherwise be available to Borrower under the lending formula(s) provided
in the Schedule: (a) to reflect events, conditions, contingencies or risks
which, as determined by Silicon in its good faith business judgment, do or may
adversely affect (i) the Collateral or any other property which is security for
the Obligations or its value (including without limitation any increase in
delinquencies of Accounts), (ii) the assets, business or prospects of Borrower
or any guarantor of any of the Obligations, or (iii) the security interests and
other rights of Silicon in the Collateral (including the enforceability,
perfection and priority thereof); or (b) to reflect Silicon's good faith belief
that any collateral report or financial information furnished by or on behalf of
Borrower, or any guarantor of any of the Obligations, to Silicon is or may have
been incomplete, inaccurate or misleading in any material respect; or (c) in
respect of any state of facts which Silicon determines in good faith constitutes
an Event of Default or may, with notice or passage of time or both, constitute
an Event of Default.
Other Terms. All accounting terms used in this Agreement, unless otherwise
indicated, shall have the meanings given to such terms in accordance with GAAP,
consistently applied. All other terms contained in this Agreement, unless
otherwise indicated, shall have the meanings provided by the Code, to the extent
such terms are defined therein.
9. GENERAL PROVISIONS.
9.1 INTEREST COMPUTATION. In computing interest on the Obligations, all
checks , wire transfers and other items of payment received by Silicon
(including proceeds of Accounts and payment of the Obligations in full) shall be
deemed applied by Silicon on account of the Obligations three Business Days
after receipt by Silicon of immediately available funds *, and, for purposes of
the foregoing, any such funds received after 12:00 Noon ** on any day shall be
deemed received on the next Business Day. Silicon shall not, however, be
required to credit Borrower's account for the amount of any item of payment
which is unsatisfactory to Silicon in its good faith business judgment, and
Silicon may charge Borrower's loan account for the amount of any item of payment
which is returned to Silicon unpaid.
* (EXCEPT WITH RESPECT TO WIRE TRANSFERS, WHICH SHALL BE DEEMED APPLIED BY
SILICON ON ACCOUNT OF THE OBLIGATIONS THE SAME BUSINESS DAY AS DEEMED RECEIVED
BY SILICON)
** (CALIFORNIA TIME)
9.2 APPLICATION OF PAYMENTS. All payments with respect to the Obligations may
be applied, and in Silicon's good faith business judgment reversed and
re-applied, to the Obligations, in such order and manner as Silicon shall
determine in its good faith business judgment.
9.3 CHARGES TO ACCOUNTS. Silicon may, in its discretion, require that
Borrower pay monetary Obligations in cash to Silicon, or charge them to
Borrower's Loan account, in which event they will bear interest at the same rate
applicable to the Loans. Silicon may also, in its discretion, charge any
monetary Obligations to Borrower's Deposit Accounts maintained with Silicon.
9.4 MONTHLY ACCOUNTINGS. Silicon shall provide Borrower monthly with an
account of advances, charges, expenses and payments made pursuant to this
Agreement. Such account shall be deemed correct, accurate and binding on
Borrower and an account stated (except for reverses and reapplications of
payments made and corrections of errors discovered by Silicon), unless Borrower
notifies Silicon in writing to the contrary within 60 days after such account is
rendered, describing the nature of any alleged errors or omissions.
9.5 NOTICES. All notices to be given under this Agreement shall be in writing
and shall be given either personally or by reputable private delivery service or
by regular first-class mail, or certified mail return receipt requested,
addressed to Silicon or Borrower * at the addresses shown in the heading to this
Agreement, or at any other address designated in writing by one party to the
other party. Notices to Silicon shall be directed to the Structured Finance
Division, to the attention of the Division Manager or the Division Credit
Manager. All notices shall be deemed to have been given upon delivery in the
case of notices personally delivered, or at the expiration of one Business Day
following delivery to the private delivery service, or two Business Days
following the deposit thereof in the United States mail, with postage prepaid.
* (IN CARE OF FVCI WITH RESPECT TO ANY AND ALL BORROWERS)
9.6 SEVERABILITY. Should any provision of this Agreement be held by any court
of competent jurisdiction to be void or unenforceable, such defect shall not
affect the remainder of this Agreement, which shall continue in full force and
effect.
9.7 INTEGRATION. This Agreement and such other written agreements, documents
and instruments as may be executed in connection herewith are the final, entire
and complete agreement between Borrower and Silicon and supersede all prior and
contemporaneous negotiations and oral representations and agreements, all of
which are merged and integrated in this Agreement. There are no oral
understandings, representations or agreements between the parties which are not
set forth in this Agreement or in other written agreements signed by the parties
in connection herewith.
-18-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
9.8 WAIVERS; INDEMNITY. The failure of Silicon at any time or times to
require Borrower to strictly comply with any of the provisions of this Agreement
or any other Loan Document shall not waive or diminish any right of Silicon
later to demand and receive strict compliance therewith. Any waiver of any
default shall not waive or affect any other default, whether prior or
subsequent, and whether or not similar. None of the provisions of this Agreement
or any other Loan Document shall be deemed to have been waived by any act or
knowledge of Silicon or its agents or employees, but only by a specific written
waiver signed by an authorized officer of Silicon and delivered to Borrower. *
Borrower waives the benefit of all statutes of limitations relating to any of
the Obligations or this Agreement or any other Loan Document, and Borrower
waives demand, protest, notice of protest and notice of default or dishonor,
notice of payment and nonpayment, release, compromise, settlement, extension or
renewal of any commercial paper, instrument, account, General Intangible,
document or guaranty at any time held by Silicon on which Borrower is or may in
any way be liable, and notice of any action taken by Silicon, unless expressly
required by this Agreement or any other Loan Document. Borrower hereby agrees to
indemnify Silicon and its affiliates, subsidiaries, parent, directors, officers,
employees, agents, and attorneys, and to hold them harmless from and against any
and all claims, debts, liabilities, demands, obligations, actions, causes of
action, penalties, costs and expenses (including reasonable attorneys' fees), of
every kind, which they may sustain or incur based upon or arising out of any of
the Obligations, or any relationship or agreement between Silicon and Borrower,
or any other matter, relating to Borrower or the Obligations; provided that,
with respect to any indemnitee, this indemnity shall not extend to damages
proximately caused by the indemnitee's own gross negligence or willful
misconduct. Notwithstanding any provision in this Agreement to the contrary, the
indemnity agreement set forth in this Section shall survive any termination of
this Agreement and shall for all purposes continue in full force and effect.
* TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
9.9 NO LIABILITY FOR ORDINARY NEGLIGENCE. Neither Silicon, nor any of its
directors, officers, employees, agents, attorneys or any other Person affiliated
with or representing Silicon shall be liable for any claims, demands, losses or
damages, of any kind whatsoever, made, claimed, incurred or suffered by Borrower
or any other party through the ordinary negligence of Silicon, or any of its
directors, officers, employees, agents, attorneys or any other Person affiliated
with or representing Silicon, but nothing herein shall relieve Silicon from
liability for its own gross negligence or willful misconduct.
9.10 AMENDMENT. The terms and provisions of this Agreement may not be waived
or amended, except in a writing executed by Borrower and a duly authorized
officer of Silicon.
9.11 TIME OF ESSENCE. Time is of the essence in the performance by Borrower
of each and every obligation under this Agreement.
9.12 ATTORNEYS FEES AND COSTS. Borrower shall reimburse Silicon for all
reasonable attorneys' fees and all filing, recording, search, title insurance,
appraisal, audit, and other reasonable costs incurred by Silicon, pursuant to,
or in connection with, or relating to this Agreement (whether or not a lawsuit
is filed), including, but not limited to, any reasonable attorneys' fees and
costs Silicon incurs in order to do the following: prepare and negotiate this
Agreement and all present and future documents relating to this Agreement;
obtain legal advice in connection with this Agreement or Borrower; enforce, or
seek to enforce, any of its rights; prosecute actions against, or defend actions
by, Account Debtors; commence, intervene in, or defend any action or proceeding;
initiate any complaint to be relieved of the automatic stay in bankruptcy; file
or prosecute any probate claim, bankruptcy claim, third-party claim, or other
claim; examine, audit, copy, and inspect any of the Collateral or any of
Borrower's books and records; protect, obtain possession of, lease, dispose of,
or otherwise enforce Silicon's security interest in, the Collateral; and
otherwise represent Silicon in any litigation relating to Borrower. In
satisfying Borrower's obligation hereunder to reimburse Silicon for attorneys
fees, Borrower may, for convenience, issue checks directly to Silicon's
attorneys, Levy, Small & Xxxxxx, but Borrower acknowledges and agrees that Levy,
Small & Xxxxxx is representing only Silicon and not Borrower in connection with
this Agreement. If either Silicon or Borrower files any lawsuit against the
other predicated on a breach of this Agreement, the prevailing party in such
action shall be entitled to recover its reasonable costs and attorneys' fees,
including (but not limited to) reasonable attorneys' fees and costs incurred in
the enforcement of, execution upon or defense of any order, decree, award or
judgment. All attorneys' fees and costs to which Silicon may be entitled
pursuant to this Paragraph shall immediately become part of Borrower's
Obligations, shall be due on demand, and shall bear interest at a rate equal to
the highest interest rate applicable to any of the Obligations. *
* BORROWER AND SILICON HEREBY AGREE THAT THE $15,000 DEPOSIT PAID BY BORROWER
TO SILICON (ON OR ABOUT MARCH 17, 2003) PURSUANT TO THAT CERTAIN PROPOSAL
LETTER, DATED AS OF MARCH 17, 2002, BETWEEN SILICON AND BORROWER, SHALL BE
APPLIED (IN ACCORDANCE WITH SUCH PROPOSAL LETTER) TO SILICON'S FEES, COSTS, AND
EXPENSES INCURRED IN CONNECTION WITH OR RELATING TO SUCH PROPOSAL LETTER AND
THIS AGREEMENT.
9.13 BENEFIT OF AGREEMENT. The provisions of this Agreement shall be binding
upon and inure to the benefit of the respective successors, assigns, heirs,
beneficiaries and representatives of Borrower and Silicon; provided, however,
that Borrower may not assign or transfer any of its rights under this Agreement
without the prior written consent of Silicon, and
-19-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
any prohibited assignment shall be void. No consent by Silicon to any assignment
shall release Borrower from its liability for the Obligations.
9.14 JOINT AND SEVERAL LIABILITY. If Borrower consists of more than one
Person, their liability shall be joint and several, and the compromise of any
claim with, or the release of, any Borrower shall not constitute a compromise
with, or a release of, any other Borrower.
9.15 LIMITATION OF ACTIONS. Any claim or cause of action by Borrower against
Silicon, its directors, officers, employees, agents, accountants or attorneys,
based upon, arising from, or relating to this Loan Agreement, or any other Loan
Document, or any other transaction contemplated hereby or thereby or relating
hereto or thereto, or any other matter, cause or thing whatsoever, occurred,
done, omitted or suffered to be done by Silicon, its directors, officers,
employees, agents, accountants or attorneys, shall be barred unless asserted by
Borrower by the commencement of an action or proceeding in a court of competent
jurisdiction by the filing of a complaint within * one year after the first act,
occurrence or omission upon which such claim or cause of action, or any part
thereof, is based, and the service of a summons and complaint on an officer of
Silicon, or on any other person authorized to accept service on behalf of
Silicon, within thirty (30) days thereafter. Borrower agrees that such **
one-year period is a reasonable and sufficient time for Borrower to investigate
and act upon any such claim or cause of action. The ** one-year period provided
herein shall not be waived, tolled, or extended except by the written consent of
Silicon in its sole discretion. This provision shall survive any termination of
this Loan Agreement or any other Loan Document.
* TWO (2) YEARS
** TWO-YEAR
9.16 PARAGRAPH HEADINGS; CONSTRUCTION. Paragraph headings are only used in
this Agreement for convenience. Borrower and Silicon acknowledge that the
headings may not describe completely the subject matter of the applicable
paragraph, and the headings shall not be used in any manner to construe, limit,
define or interpret any term or provision of this Agreement. This Agreement has
been fully reviewed and negotiated between the parties and no uncertainty or
ambiguity in any term or provision of this Agreement shall be construed strictly
against Silicon or Borrower under any rule of construction or otherwise.
9.17 GOVERNING LAW; JURISDICTION; VENUE. This Agreement and (except to the
extent expressly provided to the contrary) the other Loan Documents and all acts
and transactions hereunder and (except to the extent expressly provided to the
contrary) thereunder and all rights and obligations of Silicon and Borrower
shall be governed by the laws of the State of California. As a material part of
the consideration to Silicon to enter into this Agreement and the other Loan
Documents, Borrower (i) agrees that all actions and proceedings relating
directly or indirectly to this Agreement and the other Loan Documents shall, at
Silicon's option, be litigated in courts located within California, and that the
exclusive venue therefor shall be Santa Xxxxx County; (ii) consents to the
jurisdiction and venue of any such court and consents to service of process in
any such action or proceeding by personal delivery or any other method permitted
by law; and (iii) waives any and all rights Borrower may have to object to the
jurisdiction of any such court, or to transfer or change the venue of any such
action or proceeding.
9.18 MUTUAL WAIVER OF JURY TRIAL. BORROWER AND SILICON 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, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR 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 ALL OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
-20-
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
BORROWER: SILICON:
FIRST VIRTUAL COMMUNICATIONS, INC. SILICON VALLEY BANK
BY_______________________________ BY_______________________
PRESIDENT OR VICE PRESIDENT TITLE____________________
BY____________________________________
SECRETARY OR ASSISTANT SECRETARY
BORROWER:
CUSEEME NETWORKS, INC.
BY_______________________________
PRESIDENT OR VICE PRESIDENT
BY____________________________________
SECRETARY OR ASSISTANT SECRETARY
Signature Page
SILICON VALLEY BANK
SCHEDULE TO
LOAN AND SECURITY AGREEMENT
BORROWER: FIRST VIRTUAL COMMUNICATIONS, INC., A DELAWARE CORPORATION ("FVCI");
AND
CUSEEME NETWORKS, INC., A DELAWARE CORPORATION ("CNI")
ADDRESS: 0000 XXXXXXXX XXXXX
XXXXX XXXXX, XX 00000
DATE: APRIL __, 2003
This Schedule forms an integral part of the Loan and Security Agreement between
Silicon Valley Bank and the above-named borrower(s) (individually and
collectively, and jointly and severally, the "Borrower") of even date (as
amended, restated, supplemented, or otherwise modified from time to time, this
"Agreement").
JOINT AND SEVERAL LIABILITY
The Borrowers each are, and at all times shall be, jointly and
severally liable for each and every one of the Obligations, regardless of which
Borrower or Borrowers requested, received, used, or directly enjoyed the benefit
of, the Obligations. All of the Collateral shall secure all of the Obligations.
1. LOAN
(Section 1.1): Term Loan. Subject to the terms
and conditions of this Agreement:
Silicon agrees to make, during the
period commencing on the date hereof and
ending on December 31, 2003, one (1)
term loan (the "Loan") in an original
principal amount not to exceed
$3,000,000 (the "Maximum Credit
Amount").
The Loan shall be made in only one
disbursement and may not be made
following December 31, 2003. The Loan
shall be repaid by the Borrower to
Silicon in 36 equal monthly payments of
principal, commencing on the first day
of the first calendar month following
the date the Loan is made and continuing
until the earliest of the following
dates (the "Maturity Date"): (i) the
date the Loan has been paid in full;
(ii) the first day of the thirty-sixth
calendar month following the date the
Loan is made; (iii) January 1, 2007; and
(iv) the date this Agreement terminates
by its terms or is terminated, as
provided in this Agreement. On the
Maturity Date, all outstanding
Obligations
-1-
SILICON VALLEY BANK SCHEDULE TO LOAN AND SECURITY AGREEMENT
(including the entire unpaid principal
balance of the Loan, plus all accrued
and unpaid interest thereon) shall be
due and payable, subject, however, to
acceleration as otherwise set forth in
this Agreement. No portion of the Loan
may be reborrowed after being repaid.
Interest on the Loan shall be paid
monthly as provided in Section 1.2 of
this Loan Agreement. Borrower shall have
the right to prepay the Loan in whole or
in part and without any penalty or
premium.
2. INTEREST.
INTEREST RATE (Section 1.2):
A rate equal to the greater of (a) 6.50%
per annum and (b) the sum of the (i)
"Prime Rate" in effect from time to
time, plus (ii) 2.25% per annum.
Interest shall be calculated on the
basis of a 360-day year for the actual
number of days elapsed. "Prime Rate"
means the rate announced from time to
time by Silicon as its "prime rate;" it
is a base rate upon which other rates
charged by Silicon are based, and it is
not necessarily the best rate available
at Silicon. The interest rate applicable
to the Obligations shall change on each
date there is a change in the Prime
Rate.
MINIMUM MONTHLY
INTEREST (Section 1.2): n/a.
3. FEES (Section 1.4):
Loan Fee: $22,500, payable concurrently herewith.
Non-Utilization Fee: In the event, in any fiscal quarter of
Borrower (or portion thereof commencing
on the date hereof) through the quarter
ending December 31, 2003), the original
principal amount of the Loan funded on
or before the last day of such quarter
(the "Funded Amount"; it being
understood that the Funded Amount shall
equal zero at any time prior to the
funding of the Loan) is less than the
amount of the Maximum Credit Amount,
Borrower shall pay Silicon a
non-utilization fee in an amount equal
to 0.25% per annum on the difference
between the amount of the Maximum Credit
Amount and the Funded Amount as of the
last day of such fiscal quarter, which
non-utilization fee shall be computed
and paid quarterly, in arrears, on the
first day of the following fiscal
quarter.
-2-
SILICON VALLEY BANK SCHEDULE TO LOAN AND SECURITY AGREEMENT
4. MATURITY DATE
(Section 6.1): As set forth in Section 1 of this
Schedule.
5. FINANCIAL COVENANTS
(Section 5.1): Borrower shall comply with each of
the following covenants. Compliance
shall be determined as of the end of
each month, except as otherwise
specifically provided below:
(A) MINIMUM CASH
ON DEPOSIT AT SILICON: At all times, Borrower shall maintain
not less than $2,900,000 of unrestricted
cash on deposit in deposit accounts at
Silicon.
(B) LIQUIDITY: During the period commencing on the
date the Loan is funded and ending on
the date the Loan is paid in full in
cash, Borrower shall maintain Liquidity
of not less than 2.00.
DEFINITIONS. For purposes of the foregoing financial
covenants, the following term shall have
the following meaning:
"Liquidity" shall mean, as of any date
of determination, the quotient obtained
from dividing (a) the sum of (i) the
amount of Borrower's unrestricted cash
on deposit in deposit accounts at
Silicon, plus (ii) the amount of
Borrower's Eligible Accounts (as defined
in Section 8 above), by (b) the then
outstanding principal amount of the
Loan.
6. REPORTING.
(Section 5.3):
Borrower shall provide Silicon with the
following:
1. Monthly transaction reports
(including as to the amount of
Borrower's Eligible Accounts)
and schedules of collections,
on Silicon's standard form,
within fifteen days after the
end of each month.
2. Monthly accounts receivable
agings, aged by invoice date,
within fifteen days after the
end of each month.
-3-
SILICON VALLEY BANK SCHEDULE TO LOAN AND SECURITY AGREEMENT
3. Monthly accounts payable
agings, aged by invoice date,
and outstanding or held check
registers, if any, within
fifteen days after the end of
each month.
4. Monthly reconciliations of
accounts receivable agings
(aged by invoice date),
transaction reports, and
general ledger, within fifteen
days after the end of each
month.
5. [reserved]
6. Monthly unaudited financial
statements, as soon as
available, and in any event
within thirty days after the
end of each month.
7. Monthly Compliance
Certificates, within thirty
days after the end of each
month, in such form as Silicon
shall reasonably specify,
signed by the Chief Financial
Officer of Borrower,
certifying that as of the end
of such month Borrower was in
full compliance with all of
the terms and conditions of
this Agreement, (or, if
Borrower was not in such full
compliance, specifying the
nature and period of existence
of such non-compliance), and
setting forth calculations
showing compliance (or
non-compliance, as the case
may be) with the financial
covenants set forth in this
Agreement and such other
information as Silicon shall
reasonably request, including,
without limitation, a
statement that at the end of
such month there were no held
checks.
8. Quarterly unaudited financial
statements, as soon as
available, and in any event
within forty-five days after
the end of each fiscal quarter
of Borrower.
9. Annual operating budgets
(including income statements,
balance sheets and cash flow
statements, by month) for the
upcoming fiscal year of
Borrower within thirty days
prior to the end of each
fiscal year of Borrower.
10. Annual financial statements,
as soon as available, and in
any event within 120 days
following the end of
Borrower's fiscal year,
certified by, and with an
unqualified opinion of,
independent certified public
accountants acceptable to
Silicon.
With respect to the financial statements referred to above, Borrower agrees to
deliver financial statements prepared on both a consolidated and consolidating
basis and agrees that no subsidiary of Borrower will have a fiscal year
different from that of Borrower.
7. BORROWER INFORMATION:
Borrower represents and warrants that
the information set forth in the
Representations and Warranties of the
Borrower dated March 18,
-4-
SILICON VALLEY BANK SCHEDULE TO LOAN AND SECURITY AGREEMENT
2003, previously submitted to Silicon
(the "Representations") is true and
correct as of the date hereof.
8. ADDITIONAL PROVISIONS
(1) BANKING RELATIONSHIP. Borrower
shall at all times maintain
its primary banking
relationship with Silicon.
Without limiting the
generality of the foregoing,
Borrower shall, at all times,
maintain unrestricted cash and
cash equivalents of Borrower,
in an amount not less than the
Required Deposit Amount, on
deposit with Silicon. As used
herein, the term "Required
Deposit Amount" means, as of
any date of determination: (a)
$5,000,000, if Borrower's
total unrestricted cash and
cash equivalents is at least
$5,000,000; and (b) 100% of
Borrower's total unrestricted
cash and cash equivalents at
Silicon, if the amount of
Borrower's total unrestricted
cash and cash equivalents is
less than $5,000,000 (it being
understood, however, that at
least $2,900,000 of
unrestricted cash of Borrower
must be on deposit with
Silicon at all times in
accordance with Section 5(A)
of this Schedule). As to any
Deposit Accounts and
Investment Property (including
securities accounts)
maintained by Borrower with
another institution, Borrower
shall cause such institution,
within 30 days after the date
of this Agreement, to enter
into a control agreement in
form acceptable to Silicon in
its good faith business
judgment in order to perfect
Silicon's first-priority
security interest in such
Deposit Accounts and grant
Silicon "control" (within the
meaning of Articles 8 and 9 of
the Code) over such Investment
Property (including securities
accounts). Thereafter,
Borrower shall not maintain
any Deposit Accounts or
Investment Property (including
securities accounts) with any
bank, securities intermediary,
or other institution unless
Silicon has received such a
control agreement duly
executed by such party in
favor of Silicon covering such
Deposit Account or Investment
Property (including securities
accounts), as the case may be.
(2) SUBORDINATION OF INSIDE DEBT.
All present and future
indebtedness of Borrower to
its officers, directors,
shareholders, and subsidiaries
("Inside Debt") shall, at all
times, be subordinated to the
Obligations pursuant to one or
more subordination agreements
in form and substance
satisfactory to Silicon
(individually and
collectively, the "Insider
Subordination Agreement").
Borrower represents and
warrants that there is no
Inside Debt presently
outstanding, except for Inside
Debt that is the subject of
the Intercompany Subordination
Agreement (defined below).
Prior to incurring any Inside
Debt in the future,
-5-
SILICON VALLEY BANK SCHEDULE TO LOAN AND SECURITY AGREEMENT
Borrower shall cause the
person to whom such Inside
Debt will be owed to execute
and deliver to Silicon an
Insider Subordination
Agreement.
(3) COPYRIGHTS, PATENTS, AND
TRADEMARKS
(a) Exhibit A attached to the
IP Security Agreement
identifies, as of the date of
this Agreement, any and all
maskworks, computer software,
and other copyrights of
Borrower that are registered
(or are the subject of any
application for registration)
with the United States
Copyright Office
(collectively, the "Existing
Registered Copyrights").
Except for the Existing
Copyright Registrations,
Borrower will NOT register
with the United States
Copyright Office (or apply for
such registration of) any of
Borrower's maskworks, computer
software, or other copyrights,
unless Borrower has provided
Silicon not less than 30 days
prior written notice of the
commencement of such
registration/application and
Borrower has executed and
delivered to Silicon such
security agreement(s) and
other documentation (in form
and substance reasonably
satisfactory to Silicon) which
Silicon in its good faith
business judgment may require
for filing with the United
States Copyright Office with
respect to such registration
or application.
(b) Borrower will identify to
Silicon in writing any and all
patents and trademarks of
Borrower that are registered
(or the subject of any
application for registration)
with the United States Patent
and Trademark Office and, upon
Silicon's request therefor,
promptly execute and deliver
to Silicon such security
agreement(s) and other
documentation (in form and
substance reasonably
satisfactory to Silicon) which
Silicon in its good faith
business judgment may require
for filing with the United
States Patent and Trademark
Office with respect to such
registration or application.
(c) Borrower will: (i)
protect, defend and maintain
the validity and
enforceability of Borrower's
copyrights, patents, and
trademarks; (ii) promptly
advise Silicon in writing of
material infringements of
Borrower's copyrights,
patents, or trademarks of
which Borrower is or becomes
aware; and (iii) not allow any
material item of Borrower's
copyrights, patents, or
trademarks to be abandoned,
forfeited or dedicated to the
public without Silicon's
written consent.
(4) LANDLORD AGREEMENT. With
respect to any leased premises
of Borrower, Borrower shall,
promptly upon Silicon's
request therefor, deliver to
Silicon a landlord agreement
(in form and
-6-
SILICON VALLEY BANK SCHEDULE TO LOAN AND SECURITY AGREEMENT
substance satisfactory to
Silicon) duly executed by the
lessor of such leased
premises.
(5) BAILEE AGREEMENT. Borrower
hereby represents and warrants
that, as of the date of
execution and deliver of this
Agreement, no goods of
Borrower are in the possession
of any warehouseman or other
bailee, and hereby covenants
that Borrower promptly shall
deliver written notice to
Silicon of any goods of
Borrower being in the
possession of any warehouseman
or other bailee. With respect
to any goods of Borrower in
the possession of any
warehouseman or other bailee,
Borrower shall, promptly upon
Silicon's request therefor,
deliver to Silicon a bailee
agreement (in form and
substance satisfactory to
Silicon) duly executed by such
warehouseman or other bailee.
(6) [RESERVED]
(7) WARRANTS. Borrower shall
provide Silicon with five-year
warrants to purchase the
Designated Number (as defined
below) of shares of common
stock of the Borrower (the
"Shares"), at a price per
share equal to the Designated
Price (as defined below), on
terms acceptable to Silicon,
all as set forth in the
Warrant to Purchase Stock (the
"Warrant") and related
Registration Rights Agreement
being executed concurrently
with this Agreement. Said
warrants shall be deemed fully
earned on the date hereof,
shall be in addition to all
interest and other fees, and
shall be non-refundable. As
used herein, the term
"Designated Price" means the
average per share closing
price of the Shares reported
during the 30 day period
immediately before the date of
this Agreement. As used
herein, the term "Designated
Number" equals the quotient
obtained from dividing (a)
$90,000 by (b) the Designed
Price.
(8) GOOD STANDING. On or before
the 30th day following the
date hereof, Borrower shall
deliver to Silicon evidence,
satisfactory to Silicon in its
good faith business judgment,
that each Borrower is in good
standing in Delaware as of a
date on or after March 24,
2003.
-7-
SILICON VALLEY BANK SCHEDULE TO LOAN AND SECURITY AGREEMENT
9. CONDITIONS PRECEDENT
In addition to the other conditions
precedent set forth in this Agreement, the
making of the Loan is subject to the
following additional conditions:
(A) Silicon shall have received lien
searches listing all effective financing
statements which name any Borrower (or any
predecessor corporation or any tradename
thereof or any seller of assets acquired by
any Borrower outside of the ordinary course
of business) as debtor that are filed in the
applicable filing offices with respect to
such Borrower, none of which financing
statements shall cover any of the Collateral
of any Borrower, except (i) Permitted Liens,
(ii) financing statements as to which
Silicon has received duly executed
authorization by the applicable secured
party to file executed termination
statements or partial release statements in
form and substance satisfactory to Silicon,
or (iii) as otherwise agreed in writing by
Silicon. Without limiting the generality of
the foregoing, Silicon shall have received
(a) written authorization by Comdisco to
terminate any UCC financing statements in
favor of Comdisco covering any assets of
Borrower other than specific equipment
leased by Comdisco to Borrower or specific
software licensed by Comdisco to Borrower
(the "Comdisco Broad UCC Filings"), or (b)
evidence satisfactory to Silicon that such
Comdisco Broad UCC Filings have been
terminated of record.
(B) Each Borrower shall execute and deliver
to Silicon a continuing guaranty with
respect to all of the Obligations of all
other Borrowers, in form and substance
satisfactory to Silicon (the "Cross
Guaranty"). Throughout the term of this
Agreement, Borrower shall not cause, suffer,
or permit the Cross Guaranty to cease to be
in full force and effect.
(C) Each Borrower (and guarantor of any of
the Obligations) shall execute and deliver
to Silicon a subordination agreement with
respect to all indebtedness and obligations
of all other Borrowers (and guarantors of
any of the Obligations) owing to such
Borrower (and guarantor of any of the
Obligations), on Silicon's standard form
(the "Intercompany Subordination
Agreement"). Throughout the term of this
Agreement, Borrower shall not cause, suffer,
or permit the Intercompany Subordination
Agreement to cease to be in full force and
effect.
10. RESTRICTIVE MATERIAL LICENSE AGREEMENTS (AS DESCRIBED IN SECTION 2 OF THE
LOAN AGREEMENT)
NONE (except as expressly identified below in this Section 10
(if at all).
-8-
SILICON VALLEY BANK SCHEDULE TO LOAN AND SECURITY AGREEMENT
[remainder of page intentionally left blank; signature page follows]
-9-
SILICON VALLEY BANK SCHEDULE TO LOAN AND SECURITY AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Schedule to Loan and
Security Agreement to be executed and delivered as of the date first above
written.
BORROWER: SILICON:
FIRST VIRTUAL COMMUNICATIONS, INC. SILICON VALLEY BANK
BY /s/ Xxxxxx Xxxx BY /s/ Xxxxx Xxxxxxx
------------------------------ ------------------------
PRESIDENT OR VICE PRESIDENT TITLE_____________________
BY____________________________________
SECRETARY OR ASSISTANT SECRETARY
BORROWER:
CUSEEME NETWORKS, INC.
BY_______________________________
PRESIDENT OR VICE PRESIDENT
BY____________________________________
SECRETARY OR ASSISTANT SECRETARY
Signature Page
