EXHIBIT 10.2
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SILICON VALLEY BANK
SUBORDINATION AGREEMENT
BORROWER: FIRST VIRTUAL COMMUNICATIONS, INC.
CREDITORS: MORRISON & FOERSTER LLP
HURON CONSULTING GROUP
APPLIED DISCOVERY, INC.
DATE: AUGUST 19, 2004
THIS SUBORDINATION AGREEMENT is executed by the above-named Creditors (jointly
and severally "Creditor") in favor of Silicon Valley Bank ("Silicon"), whose
address is 3003 Tasman Drive, Santa Clara, California 95054, with respect to the
above-named Borrower ("Borrower"). In order to induce Silicon to extend or
continue to extend financing to the Borrower (but without obligation on
Silicon's part to do so), the Creditor hereby agrees as follows:
1. SUBORDINATION OF SECURITY INTEREST. All security interests now or
hereafter acquired by Silicon in any or all of the Collateral (as defined
below), in which the Borrower now has or hereafter acquires any ownership,
leasehold or other interest shall at all times be prior and superior to any
lien, ownership interest, security interest or other interest or claim now held
or hereafter acquired by the Creditor in the Collateral (the "Subordinate
Interest"). Said priority shall be applicable irrespective of the time or order
of attachment or perfection of any security interest or the time or order of
filing of any financing statements or other documents, or any statutes, rules or
law, or court decisions to the contrary. Upon any disposition of any of the
Collateral by Silicon, or by the Borrower with Silicon's written consent, the
Creditor agrees, if requested by Silicon, to execute and immediately deliver any
and all releases or other documents or agreements which Silicon deems necessary
to accomplish a disposition thereof free of the Subordinate Interest; provided
that Creditor shall retain its Subordinate Interest in the proceeds of the
Collateral so disposed of.
2. "COLLATERAL." As used in this Agreement, "Collateral" shall mean all
assets in which the Borrower now has or hereafter acquires any ownership,
leasehold or other interest, wherever located, including without limitation the
assets described on Exhibit A hereto.
3. DISPOSITION OF COLLATERAL. The Creditor agrees that, until Silicon have
received payment in full of all indebtedness, liabilities, guarantees and other
obligations of the Borrower to Creditor, now existing or hereafter arising
(collectively, the "Silicon Debt"), Silicon may dispose of, and exercise any
other rights with respect to, any or all of the Collateral, free of the
Subordinate Interest, provided that the Creditor retains any rights it may have
as a junior secured creditor with respect to the surplus, if any, arising from
any such disposition or enforcement. The Creditor agrees that any funds of the
Borrower which it obtains through the exercise of any right of setoff or other
similar right constitute Collateral, and the Creditor shall immediately pay such
funds to Silicon to be applied to the outstanding Silicon Debt. Creditor shall
provide Silicon with prompt written notice in the event it exercises any such
right of setoff or other similar right, setting forth the circumstances and
amount thereof.
4. MODIFICATIONS TO SILICON DEBT; WAIVERS. Until the Silicon Debt has been
paid and performed in full and all agreements providing for the extension of
credit by Silicon to Borrower have terminated, the Creditor agrees that, in
addition to any other rights that Silicon may have at law or in equity, Silicon
may at any time, and from time to time, without the Creditor's consent and
without notice to the Creditor, renew, extend or increase any of the Silicon
Debt or that of any other person at any time directly or indirectly liable for
the payment of any Silicon Debt, accept partial payments of the Silicon Debt,
settle, release (by operation of law or otherwise), compound, compromise,
collect or liquidate any of the Silicon Debt, make loans or advances to the
Borrower secured in whole or in part by the Collateral or refrain from making
any loans or advances to the Borrower, change, waive, alter or vary the interest
charge on, or any other terms or provisions of the Silicon Debt or any present
or future instrument, document or
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SILICON VALLEY BANK SUBORDINATION AGREEMENT
agreement between Silicon and the Borrower, release, exchange, fail to perfect,
delay the perfection of, fail to resort to, or realize upon any Collateral, and
take any other action or omit to take any other action with respect to the
Silicon Debt or the Collateral as Silicon deem necessary or advisable in
Silicon's sole discretion. The Creditor waives any right to require Silicon to
marshal any assets in favor of the Creditor or against or in payment of any or
all of the Silicon Debt. Creditor further waives any defense arising by reason
of any claim or defense based upon an election of remedies by Silicon which in
any manner impairs, affects, reduces, releases, destroys and/or extinguishes the
Creditor's subrogation rights, rights to proceed against the Borrower for
reimbursement, and/or any other rights of the Creditor. Creditor also hereby
waives and releases any claim that it may now or hereafter have against Silicon
arising out of any and all actions which Silicon, in good faith, takes or omits
to take with respect to the Collateral, including (a) actions with respect to
the creation, perfection or continuation of liens on or security interests in
the Collateral, (b) actions with respect to the foreclosure upon, sale, release
or disposition of, or failure to realize upon, any Collateral and (c) any other
action with respect to the enforcement of any provision with respect to the
Collateral or the valuation, use, protection or disposition of the Collateral.
Notwithstanding the foregoing, Silicon shall give the Creditor written notice of
any foreclosure upon or disposition of any Collateral by Silicon, as required by
the California Uniform Commercial Code.
5. INSOLVENCY PROCEEDINGS.
(a) This Agreement shall remain in full force and effect and enforceable
pursuant to its terms in any voluntary or involuntary bankruptcy, insolvency,
receivership or other statutory or common law proceeding or arrangement
involving the Borrower or the readjustment of its liabilities or any assignment
for the benefit of its creditors or any marshalling of its assets or liabilities
(collectively, an "Insolvency Proceeding"). In the event of any Insolvency
Proceeding, the Creditor agrees that the term "Silicon Debt" shall include
without limitation all indebtedness, liabilities and obligations incurred in any
such proceeding, and the term "Collateral" shall include without limitation all
types of property referred to in this Agreement as Collateral and other assets
of Borrower acquired after the commencement of any such proceeding, and the
Subordinate Interest shall continue to remain subordinate to Silicon's
continuing security interest in all Collateral. The Creditor agrees to take such
actions and execute such documents in any Insolvency Proceeding, as may be
required in order to continue such subordination, and the Creditor agrees not to
oppose or interfere with any financing of the Borrower by Silicon in any such
proceeding.
(b) Until the Silicon Debt has been paid and performed in full and all
agreements providing for the extension of credit by Silicon to Borrower have
terminated, the Creditor will not assert, without the written consent of
Silicon, any claim, motion or objection in respect of the Collateral in
connection with any Insolvency Proceeding (other than a claim or assertion that
Silicon has acted in bad faith or in violation of law) which could otherwise be
asserted or raised in connection with such Insolvency Proceeding by the
Creditor, including without limitation any claim, motion or objection seeking or
opposing adequate protection or relief from the automatic stay in respect of the
Collateral.
(c) Without limiting the generality of the foregoing, the Creditor
agrees that, if an Insolvency Proceeding occurs: (i) Silicon may consent to the
use of cash collateral on such terms and conditions and in such amounts as it
shall in good faith determine without seeking or obtaining the consent of the
Creditor as holder of an interest in the Collateral; (ii) Silicon may provide
postpetition financing for the Borrower pursuant to Section 364 of the
Bankruptcy Code or other applicable law and on such terms and conditions and in
such amounts as it shall in good faith determine without seeking or obtaining
the consent of the Creditor as holder of an interest in the Collateral, and
Creditor shall not oppose such financing; (iii) the Creditor shall not oppose
the Borrower's use of cash collateral on the basis that its interest in the
Collateral is impaired by such use or inadequately protected by such use to the
extent such use has been approved by Silicon; and (iv) Creditor shall not oppose
any sale or other disposition of any assets comprising all or part of the
Collateral free and clear of security interests and liens of any party,
including the Creditor, under Section 363 of the Bankruptcy Code on the basis
that the interest of the Creditor in the Collateral is impaired by such sale or
inadequately protected as a result of such sale, if Silicon has consented to
such sale or disposition of such assets.
(d) The Creditor agrees that it will not initiate or prosecute any
claim, action or other proceeding (i) challenging the validity or enforceability
of any present or future documents, instruments or agreements between Silicon
and Borrower or relating to the Silicon Debt, (ii) challenging the validity,
enforceability or unavoidability of any claim of Silicon with respect to the
Collateral, (iii) challenging the perfection, enforceability or unavoidability
of any liens or security interests of Silicon in the Collateral or (iv)
asserting any such claims which the Borrower may hold with respect to Silicon or
the Silicon Debt.
(e) Notwithstanding any other provision of this Section 3, the Creditor
shall be entitled to file any necessary responsive or defensive pleadings in
opposition to any motion, claim, adversary proceeding or other pleading made by
any person objecting to or otherwise seeking the disallowance of the claims of
the Creditor, including without limitation any claims secured by the
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SILICON VALLEY BANK SUBORDINATION AGREEMENT
Collateral, or challenging the perfection, enforceability or unavoidability of
the security interest of Creditor.
6. DEFAULT. The Creditor shall promptly give Silicon written notice of any
default or event of default under any document, instrument or agreement
evidencing, securing or relating to any and all present and future indebtedness,
liabilities and obligations of the Borrower to the Creditor ("Creditor Debt"),
and, until the Silicon Debt has been paid and performed in full and all
agreements providing for the extension of credit by Silicon to Borrower have
terminated, the Creditor shall not collect, take possession of, foreclose upon,
or exercise any other rights or remedies with respect to, the Collateral,
judicially or non-judicially, or attempt to do any of the foregoing, until 180
days after Creditor has given written notice of such default to Silicon. In the
event, after such 180-day period, Creditor collects, takes possession of,
forecloses upon, or exercises any other rights or remedies with respect to, the
Collateral, judicially or non-judicially, and at the time any Silicon Debt
remains outstanding, all proceeds thereof received by Creditor shall be remitted
promptly to Silicon to be applied to the Silicon Debt in such order and manner
as Silicon shall determine in its discretion, until the Silicon Debt has been
paid and performed in full.
7. NO COMMITMENT. It is understood and agreed that this Agreement shall in
no way be construed as a commitment or agreement by Silicon to continue
financing arrangements with the Borrower and that Silicon may terminate such
arrangements at any time, in accordance with Silicon 's agreements with the
Borrower.
8. NO CONTEST. Creditor agrees not to contest the validity, perfection,
priority or enforceability of Silicon's security interest in the Collateral or
the Silicon Debt.
9. FINANCIAL CONDITION OF BORROWER. The Creditor is presently informed of
the financial condition of the Borrower and of all other circumstances which a
diligent inquiry would reveal and which bear upon the risk of non-payment of the
Silicon Debt and the Creditor Debt. The Creditor covenants that it will continue
to keep itself informed as to the Borrower's financial condition and all other
circumstances which bear upon the risk of non-payment of the Silicon Debt and
the Creditor Debt. The Creditor waives any right to require Silicon to disclose
to it any information which Silicon may now or hereafter acquire concerning the
Borrower.
10. REVIVOR. If, after payment of the Silicon Debt, the Borrower
thereafter becomes liable to Silicon on account of the Silicon Debt, or any
payment made on the Silicon Debt shall for any reason be returned by Silicon
(whether because of a claim that the same constituted a preference, or for any
other reason), this Agreement shall thereupon in all respects become effective
with respect to such subsequent or reinstated Silicon Debt, without the
necessity of any further act or agreement between Silicon and the Creditor.
11. GENERAL. The Creditor agrees, upon Silicon's request, to execute all
such documents and instruments and take all such actions as Silicon shall deem
necessary or advisable in order to carry out the purposes of this Agreement,
including, without limitation appropriate amendments to financing statements
executed by the Borrower in favor of Creditor in order to refer to this
Agreement (but this Agreement shall remain fully effective notwithstanding any
failure to execute any additional documents or instruments). The word
"indebtedness" is used in this agreement in its most comprehensive sense and
includes without limitation any and all present and future loans, advances,
credit, debts, obligations, liabilities, representations, warranties, and
guarantees, of any kind and nature, absolute or contingent, liquidated or
unliquidated, and individual or joint. Creditor represents and warrants that it
has not heretofore transferred or assigned the Creditor Debt, the Subordinate
Interest or any financing statement naming Borrower as debtor and Creditor as
secured party, and that it will not do so without prior written notice to
Silicon and without making such transfer or assignment expressly subject to this
Agreement. This Agreement is solely for the benefit of Silicon and Silicon 's
successors and assigns, and neither the Borrower nor any other person shall have
any right, benefit, priority or interest under, or because of the existence of,
this Agreement. All of Silicon 's rights and remedies hereunder and under
applicable law are cumulative and not exclusive. This Agreement sets forth in
full the terms of agreement between the parties with respect to the subject
matter hereof, and may not be modified or amended, nor may any rights hereunder
be waived, except in a writing signed by Silicon and the Creditor. The Creditor
agrees to reimburse Silicon, upon demand, for all reasonable costs and expenses
(including reasonable attorneys' fees) incurred by Silicon in enforcing this
Agreement against Creditor, whether or not suit be brought. In the event of any
litigation between the parties based upon or arising out of this Agreement, the
prevailing party shall be entitled to recover all of its reasonable costs and
expenses (including without limitation reasonable attorneys fees) from the
non-prevailing party. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of California. As a material part of the
consideration to the parties for entering into this Agreement, each party (i)
agrees that all actions and proceedings based upon, arising out of or relating
in any way directly or indirectly to, this Agreement shall be litigated
exclusively in courts located within Santa Clara County, California, (ii)
consents to the jurisdiction of any such court and consents to the service of
process in any such action or proceeding by personal delivery, first-class mail,
or any other method permitted by law, and (iii) waives any and all rights to
transfer or change the venue of any such action or
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SILICON VALLEY BANK SUBORDINATION AGREEMENT
proceeding to any court located outside Santa Clara County, California. This
Agreement shall be binding upon the Creditor and its successors and assigns and
shall inure to the benefit of Silicon and Silicon's successors and assigns.
12. MUTUAL WAIVER OF JURY TRIAL. CREDITOR 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: (I) THIS AGREEMENT; OR (II) ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN CREDITOR AND SILICON; OR (III) ANY
CONDUCT, ACTS OR OMISSIONS OF CREDITOR OR SILICON OR ANY OF THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH
CREDITOR OR SILICON; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE.
"CREDITOR:"
MORRISON & FOERSTER LLP
BY: /s/ Adam A. Lewis
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TITLE: Partner/Member
ADDRESS: 425 Market Street
San Francisco, CA 94105
"CREDITOR:"
HURON CONSULTING GROUP
BY: /s/ James B. Leach
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TITLE: Managing Director
ADDRESS: One Front Street
Suite 800
San Francisco, CA 94111
"CREDITOR:"
APPLIED DISCOVERY, INC.
BY_______________________________
TITLE____________________________
ADDRESS: _______________________
_______________________
CONSENT AND AGREEMENT OF BORROWER
The undersigned Borrower hereby approves of, agrees to and consents to all
of the terms and provisions of the foregoing Subordination Agreement and agrees
to be bound thereby and further agrees that any default or event of default by
the Borrower under any present or future instrument or agreement between the
Borrower and the Creditor shall constitute an immediate default and event of
default under all present and future instruments and agreements between the
Borrower and Silicon. Borrower further agrees that, at any time and from time to
time, the foregoing Agreement may be altered, modified or amended by Silicon and
the Creditor without notice to or the consent of Borrower.
BORROWER:
FIRST VIRTUAL COMMUNICATIONS, INC
BY /S/ TRUMAN COLE
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VICE PRESIDENT
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SILICON VALLEY BANK SUBORDINATION AGREEMENT
EXHIBIT "A"
All of the following: all right, title and interest of Borrower in and to
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, all of the above, and all Borrower's books relating to any of the
above.
As used above the following terms have the following meanings:
"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.
"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.
"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.
"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.
"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 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, wherever located, and all other
securities of every kind, whether certificated or uncertificated.
"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", "documents", "instruments", "promissory notes",
"chattel paper", "letters of credit", "letter-of-
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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.
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