EXHIBIT 10.1
SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS
BORROWER: FIRST VIRTUAL COMMUNICATIONS, INC., A DELAWARE CORPORATION ("FVCI");
AND CUSEEME NETWORKS, INC., A DELAWARE CORPORATION ("CNI")
ADDRESS: 0000 XXXXXX XXXXXXX, XXXXX 000
XXXXXXX XXXX, XX 00000
DATE: MAY 25, 2004 (THE "MAY 2004 AMENDMENT EFFECTIVE DATE")
THIS AMENDMENT TO LOAN DOCUMENTS (THIS "AMENDMENT") is entered into
between SILICON VALLEY BANK ("Silicon"), whose main 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 ("Xxxxxxxx's
Address"). The defined term "May 2004 Amendment Effective Date" set forth above
hereby is incorporated into the Loan Agreement.
Effective as of the May 2004 Amendment Effective Date, Silicon and
Borrower agree to amend the Loan and Security Agreement between them, dated as
of April 3, 2003 (as amended, restated, supplemented, or otherwise modified from
time to time, the "Loan Agreement") and any and all documents, instruments and
agreements relating thereto (collectively, the "Loan Documents"), all as set
forth herein. (Capitalized terms used but not defined in this Amendment, shall
have the meanings set forth in the Loan Agreement.)
1. AMENDMENTS.
(a) Section 1 of the Schedule to Loan Agreement hereby is amended and
restated in its entirety to read as follows:
1. LOAN
(Section 1.1): Term Loan. Subject to the terms and conditions of
this Agreement: (i) previously made one (1) term loan (the "First
Term Loan") to Borrower in the original principal amount of
$3,000,000, which has a principal balance of $2,083,333.37 as of the
May 2004 Amendment Effective Date (the "First Term Loan May 2004
Balance"); and (ii) has agreed to make, on the May 2004 Amendment
Effective Date,
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one (1) additional term loan (the "Second Term Loan") to Borrower in
the original principal amount of $916,666.63 (the "Second Term Loan
May 2004 Amount"). The First Term Loan and the Second Term Loan are
referred to herein, collectively, as the "Loan". The aggregate
principal amount of the Loan as of the May 2004 Amendment Effective
Date is $3,000,000 (the "Maximum Credit Amount"), which is the sum
of the First Term Loan May 2004 Balance plus the Second Term Loan
May 2004 Amount.
The Loan shall be repaid by the Borrower to Silicon in full in
cash on the earliest of the following dates (the "Maturity Date"):
(i) 364 days following the May 2004 Amendment Effective Date; and
(ii) the date this Agreement terminates by its terms or is
terminated, as provided in this Agreement. On the Maturity Date, all
outstanding Obligations (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.
(b) The portion of Section 2 of the Schedule to Loan Agreement that
currently reads:
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.
, hereby is amended and restated in its entirety to read as follows:
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) 2.50%
per annum.
(c) The portion of Section 3 of the Schedule to Loan Agreement that
currently reads:
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
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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.
, hereby is deleted in its entirety.
(d) The portion of Section 5 of the Schedule to Loan Agreement that
currently reads:
(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.
, hereby is deleted in its entirety and replaced with the following:
(A) Minimum
Quarterly
Net Sales
Revenue: Borrower shall achieve actual net sales
revenues (in accordance with generally
accepted accounting principles, consistently
applied): (a) of not less than $3,600,000
during the fiscal quarter ending March 31,
2004; (b) of not less than $3,600,000 during
the fiscal quarter ending June 30, 2004; (c)
of not less than $4,400,000 during the
fiscal quarter ending September 30, 2004 and
(d) of not less than $5,200,000 during the
fiscal quarter ending December 31, 2004.
(e) Section 8(1) of the Schedule to Loan Agreement, which currently reads:
(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
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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.
, hereby is amended and restated in its entirety to read as follows:
(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 all unrestricted
cash and cash equivalents of Borrower (except for an
amount, if any, up to the below-defined Permitted Other
Institutions Deposit Amount) on deposit with Silicon. As
used herein, the term "Permitted Other Institutions
Deposit Amount" means, as of any date of determination,
the lesser of: (a) $750,000; and (b) 20% of Borrower's
total unrestricted cash and cash equivalents. 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 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 or grant
Silicon "control" (within the meaning of Articles 8 and
9 of the Code) over such Investment Property (including
securities accounts), as the case may be.
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(f) Without limiting the right of Silicon to approve, in its good faith
business judgment and from time to time, a percentage higher than 25% with
respect to any particular Account Debtor as the concentration limit under the
third-to-last sentence of the definition of "Eligible Accounts" in Section 8 of
the Loan Agreement, Silicon hereby reduces the concentration limit for the
Account Debtor known as CompView from 50% to 35%.
(g) Without limiting the right of Silicon, in its discretion and from time
to time, to pre-approve (or withdraw such approval of) Accounts owing from an
Account Debtor located outside the United States or Canada under clause (viii)
of the Minimum Eligibility Requirements set forth in the definition of "Eligible
Accounts" in Section 8 of the Loan Agreement, Silicon hereby preapproves, under
such clause (viii), Accounts owing from the following Account Debtors located
outside the United States or Canada: NEC (Japan); Aethra (Italy); Feeder
(France); and Durante Telecomunicazi (Italy).
(h) The portion of Section 4.4 of the Loan Agreement that currently reads:
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).
, hereby is amended and restated in its entirety to read as follows:
As used herein, the term "Designated Amount" means, as of any date
of determination, $3,000,000.
2. FEE. In consideration for Silicon entering into this Amendment, Borrower
shall pay Silicon a fee of $12,500 concurrently with the execution and delivery
of this Amendment, which fee shall be non-refundable and in addition to all
interest and other fees payable to Silicon under the Loan Documents. Silicon is
authorized to charge said fee to Xxxxxxxx's loan account.
3. ADDITIONAL WARRANTS. Concurrently with the execution and deliver of this
Amendment, FVCI shall provide Silicon with new five-year warrants to purchase
the Designated Number (as defined below) of shares of common stock of FVCI (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 and related documents being executed and delivered concurrently
with this Agreement (collectively, the "May 2004 Warrant"). 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 (rounded up to
the nearest whole number) obtained from dividing (a) $18,333.33 (i.e., an amount
equal to 2.00% of the Second Term Loan May 2004 Amount), by (b) the Designated
Price.
4. REPRESENTATIONS TRUE. Borrower represents and warrants to Silicon that all
representations and warranties set forth in the Loan Agreement, as amended
hereby, are true and
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correct in all material respects (except to the extent such representations may
be affected by transactions permitted by the Loan Agreement, as amended hereby).
5. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any prior written
amendments to the Loan Agreement signed by Silicon and Borrower, and the other
Loan Documents between Silicon and Borrower set forth in full all of the
representations and agreements of the parties with respect to the subject matter
hereof and supersede all prior discussions, representations, agreements and
understandings between the parties with respect to the subject hereof. Except as
herein expressly amended, all of the terms and provisions of the Loan Agreement,
and all other Loan Documents shall continue in full force and effect and the
same are hereby ratified and confirmed.
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6. COUNTERPARTS. This Amendment may be executed in any number of counterparts
and by different parties on separate counterparts, each of which, when executed
and delivered, shall be deemed to be an original, and all of which, when taken
together, shall constitute but one and the same document. Delivery of an
executed counterpart of this Amendment by telefacsimile shall be equally as
effective as delivery of an original executed counterpart of this Amendment.
Borrower: Silicon:
FIRST VIRTUAL COMMUNICATIONS, INC. SILICON VALLEY BANK
By /s/ Xxxxxx Xxxx By /s/ Xxxxxxx X. Xxxxxx
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Title Chief Financial Officer Title Vice President
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CUSEEME NETWORKS, INC.
By /s/ Xxxxxx Xxxx
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Title Chief Financial Officer
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