Fifth Forebearance and Amendment to Loan and Security Agreement



 Exhibit 10.1 
  
 FIFTH FORBEARANCE AND AMENDMENT 
 TO 
 LOAN AND SECURITY AGREEMENT 
  
 This FIFTH FORBEARANCE AND AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered
into as of the      day of December, 2005, by and among Silicon Valley Bank (“Bank” or “Silicon”) and each of the following named corporations: ACT Teleconferencing, Inc., ACT
Teleconferencing Services, Inc., ACT Videoconferencing, Inc., ACT Proximity, Inc., and ACT Research, Inc. (collectively and jointly and severally, the “Borrowers” and separately, a “Borrower”), with ACT
Teleconferencing, Inc., whose chief executive office is located at 1526 Cole Boulevard, Suite 300, Golden, CO 80401, acting as the Borrowers’ agent. 
  
 RECITALS 
  
 A. Bank and Borrowers have entered into that certain Loan and Security Agreement dated as of November 12, 2004 (as the same has been amended
by the First Forbearance Agreement, the Second Forbearance Agreement, the Third Forbearance Agreement, and the Fourth Forbearance Agreement, each referred to below, and as the same may from time to time be further amended, modified, supplemented or
restated, the “Loan Agreement”). Bank has extended credit to Borrowers for the purposes permitted in the Loan Agreement. 
  
 B. Bank and Borrowers entered into that certain Forbearance and Amendment to Loan and Security Agreement dated as of May 31, 2005 (the
“First Forbearance Agreement”), that certain Second Forbearance, Consent and Amendment to Loan and Security Agreement dated as of July 22, 2005 (the “Second Forbearance Agreement”), that certain Third
Forbearance to Loan and Security Agreement dated as of August 31, 2005 (the “Third Forbearance Agreement”) and that certain Fourth Forbearance and Amendment to Loan and Security Agreement dated as of October 31, 2005 (the
“Fourth Forbearance Agreement”) pursuant to which Bank agreed to forbear from exercising its rights and remedies against Borrowers, relating to certain events of default that had occurred under the Loan Agreement, through and
including 02/16/06 on the terms and conditions set forth therein, and Bank agreed to amend certain provisions of the Loan Agreement, but only to the extent, in accordance with the terms, subject to the conditions and in reliance upon the
representations and warranties set forth therein. 
  
 C.
Borrowers entered into certain agreements with Dolphin Direct Equity Partners, LP, a Delaware limited partnership (“Dolphin”), providing for the sales of up to $16,000,000 of preferred stock of ACT Teleconferencing, Inc. in two
tranches, with the first in the amount of $8,040,000 which has been completed and the second in the remaining amount to be completed through a public rights offering to existing shareholders of ACT Teleconferencing, Inc., with Dolphin funding any
shortfall. Pending completion of the second tranche, Dolphin loaned Borrowers $7,000,000 (the second “Bridge Loan”) secured by a junior lien on Borrowers’ assets and subordinated to Bank (collectively, the “Transaction”). In
connection with the Transaction, Borrowers used proceeds of this second Bridge Loan to repay the remaining balances of the existing Subordinated Debt and the proceeds of the second tranche will be used to repay this second Bridge Loan. Bank
consented to the Transaction and the payments or prepayments of Subordinated Debt and the borrowing of this Bridge Loan on a secured, subordinated basis before the closing of the second tranche pursuant to the terms of a Consent dated as of
October 28, 2005 by and among Bank and Borrowers. 
  
 D.
Borrowers again acknowledge that events of default occurred under the Loan Agreement including Borrowers’ failure to maintain the required Minimum Cash Income as of 08/31/05 and 09/30/05 and 10/31/05 (collectively, the “Existing
Defaults”) and that Borrowers continue to be in default of the Loan Agreement as a result of Borrowers’ previous failure to comply with Section 5.3 (Schedule Section 6, subsections 5, 6 and 8) and Section 5.1 (Schedule
Section 5) of the Loan Agreement. 







 E. Borrowers have requested that Bank (1) forbear and continue to forbear from exercising its
rights and remedies against Borrowers through and including 06/12/06 to allow Borrowers time to complete the Transaction or otherwise raise additional equity, continue restructuring, and implement their strategic plan. Although Bank is under no
obligation to do so, Bank is willing to forbear and continue to forbear from exercising its rights and remedies against Borrowers through and including 06/12/06 on the terms and conditions set forth in this Amendment, so long as Borrowers comply
with the terms, covenants and conditions set forth in this Amendment in a timely manner. 
  
 F. In consideration of such continued forbearance, Borrowers have agreed to amend the Loan Agreement as set forth in this Amendment. Bank has agreed to so amend certain provision of the Loan Agreement, but only
to the extent, in accordance with the terms, subject to the conditions and in reliance upon the representations and warranties set forth below. 
  
 AGREEMENT 
  
 NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: 
  
 1. Definitions. Capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Loan Agreement.

  
 2. Continued Forbearance. 
  
 2.1 Fifth Forbearance Period. So long as no Event of
Default, other than the Existing Defaults, occurs, subject to the terms and conditions set forth herein, Bank shall continue to forbear from filing any legal action or instituting or enforcing any rights and remedies it may have against Borrowers
through and including 06/12/06 (the “Fifth Forbearance Period”). Except as expressly provided herein, this Amendment does not constitute a waiver or release by Bank of any Existing Defaults or of any Obligations or of any
Event of Default which may arise in the future after the date of execution of this Amendment. If Borrowers do not comply with the terms of this Amendment, Bank shall have no further obligations under this Amendment and shall be permitted to exercise
at such time any rights and remedies against Borrowers as it deems appropriate in its sole and absolute discretion. Borrowers understand that Bank has made no commitment and is under no obligation whatsoever to grant any waiver or additional
extensions of time at the end of the Fifth Forbearance Period. 
  
 2.2 Forbearance Terms. Repayment and performance of all obligations of Borrowers to Bank under the Loan Agreement and this Amendment shall be and shall continue to be secured by the Collateral. The terms of the
First, Second, Third and Fourth Forbearance Agreements shall continue to apply except as set forth herein. 
  
 3. Amendment to Loan Agreement. The Schedule to the Loan Agreement is amended as follows: 
  
 3.1 Section 4 entitled “MATURITY DATE (Section
6.1)” shall be amended entirely to read as follows: “June 12, 2006.” 
  

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 3.2 Section 5 entitled “FINANCIAL COVENANTS (Section 5.1)” shall be
further amended entirely to read as follows: 
  
 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: 
  
 Minimum Cash Income: 
  
 Borrower shall maintain a minimum Cash Income of not less than (a) ($60,000) for the month of November
ending 11/30/05, (b) ($350,000) for the month of December ending 12/31/05, (c) ($250,000) for the month of January ending 01/31/06, (d) ($200,000) for the month of February ending 02/28/06, (e) $150,000 for the month of March
ending 03/31/06, (f). $150,000 for the month of April ending 04/30/06, and (g) $100,000 for the month of May ending 05/31/06. 
  
 Definitions. For purposes of the foregoing financial covenants, the following terms shall have the following meanings: 
  
 “Cash Income” is Borrower’s consolidated net
income (or loss) plus depreciation, plus amortization of intangible assets plus other non-cash charges made to Borrower’s income minus all principal debt service (excluding principal and interest payments on debt due Dolphin Direct Equity
Partners, LP) and minus un-financed capital expenditures, determined in accordance with GAAP. 
  
 4. Limitation of Amendments. 
  
 4.1 The amendment set forth in Section 4, above, is effective for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to any amendment, waiver
or modification of any other term or condition of any Loan Document, or (b) otherwise prejudice any right or remedy which Bank may now have or may have in the future under or in connection with any Loan Document. 
  
 4.2 This Amendment shall be construed in connection with and
as part of the Loan Documents and all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.

  
 5. Representations and Warranties. To induce
Bank to enter into this Amendment, each Borrower hereby represents and warrants to Bank as follows: 
  
 5.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Documents are
true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Event of
Default other than the Existing Defaults has occurred and is continuing; 
  
 5.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment; 
  
 5.3 The certificate of incorporation, bylaws and other
organizational documents of Borrower delivered to Bank on November 12, 2004 remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect; 
  
 5.4 The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower; 
  

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 5.5 The execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not and will not contravene (a) any law or regulation binding on or affecting Borrower, (b) the certificate of incorporation or bylaws of Borrower,
(c) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (d) any contractual restriction with a Person binding on Borrower; 
  
 5.6 The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption
by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, except as already has been obtained or made; and 
  
 5.7 This Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against
Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting
creditors’ rights. 
  
 6. Prior Agreement.
Except as expressly provided for in this Amendment, the Loan Documents are hereby ratified and reaffirmed and shall remain in full force and effect. This Amendment is not a novation and the terms and conditions of this Amendment shall be in addition
to and supplemental to all terms and conditions set forth in the Loan Documents. Nothing in this Amendment shall constitute a satisfaction of any of the Obligations. In the event of any conflict or inconsistency between this Amendment and the terms
of such documents, the terms of this Amendment shall be controlling, but such document shall not otherwise be affected or the rights therein impaired. 
  
 7. Release by Borrowers. 
  
 7.1 FOR GOOD AND VALUABLE CONSIDERATION, each Borrower hereby forever relieves, releases, and discharges Bank and its
present or former employees, officers, directors, agents, representatives, attorneys, and each of them, from any and all claims, debts, liabilities, demands, obligations, promises, acts, agreements, costs and expenses, actions and causes of action,
of every type, kind, nature, description or character whatsoever, whether known or unknown, suspected or unsuspected, absolute or contingent, arising out of or in any manner whatsoever connected with or related to facts, circumstances, issues,
controversies or claims existing or arising from the beginning of time through and including the date of execution of this Amendment (collectively “Released Claims”). Without limiting the foregoing, the Released Claims shall include
any and all liabilities or claims arising out of or in any manner whatsoever connected with or related to the Loan Documents, the Recitals hereto, any instruments, agreements or documents executed in connection with any of the foregoing or the
origination, negotiation, administration, servicing and/or enforcement of any of the foregoing. 
  
 7.2 By entering into this release, each Borrower recognizes that no facts or representations are ever absolutely certain and it may
hereafter discover facts in addition to or different from those which it presently knows or believes to be true, but that it is the intention of Borrower to hereby fully, finally and forever settle and release all matters, disputes and differences,
known or unknown, suspected or unsuspected; accordingly, if Borrower should subsequently discover that any fact that it relied upon in entering into this release was untrue, or that any understanding of the facts was incorrect, Borrower shall not be
entitled to set aside this release by reason thereof, regardless of any claim of mistake of fact or law or any other circumstances whatsoever. Each Borrower acknowledges that it is not relying upon and has not relied upon any representation or
statement made by Bank with 

  

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respect to the facts underlying this release or with regard to any of such party’s rights or asserted rights. 
  
 7.3 This release may be pleaded as a full and complete
defense and/or as a cross-complaint or counterclaim against any action, suit, or other proceeding that may be instituted, prosecuted or attempted in breach of this release. Each Borrower acknowledges that the release contained herein constitutes a
material inducement to Bank to enter into this Amendment, and that Bank would not have done so but for Bank’s expectation that such release is valid and enforceable in all events. 
  
 7.4 Each Borrower hereby represents and warrants to Bank, and acknowledges that Bank is relying thereon, as
follows: 
  
 (a) Except as expressly stated in
this Amendment, neither Bank nor any agent, employee or representative of Bank has made any statement or representation to Borrower regarding any fact relied upon by Borrower in entering into this Amendment. 
  
 (b) Borrower has made such investigation of the facts
pertaining to this Amendment and all of the matters appertaining thereto, as it deems necessary. 
  
 (c) The terms of this Amendment are contractual and not a mere recital. 
  
 (d) Borrower has carefully read this Amendment and the contents hereof are known and understood by Borrower,
and this Amendment is signed by Borrower freely and without duress. 
  
 (e) Borrower represents and warrants that it is the sole and lawful owner of all right, title and interest in and to every claim and every other matter which it releases herein, and that it has not heretofore assigned
or transferred, or purported to assign or transfer, to any person, firm or entity any claims or other matters herein released. Each Borrower shall indemnify Bank, defend and hold it harmless from and against all claims based upon or arising in
connection with prior assignments or purported assignments or transfers of any claims or matters released herein. 
  
 8. Counterparts. This Amendment may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument. 
  
 9.
Effectiveness. This Amendment shall be deemed effective only upon (a) the due execution and delivery to Bank of this Amendment by each other party hereto, and (b) Borrowers’ payment to Bank of a further forbearance and
extension fee in an amount equal to $25,000. 
  
 10.
Governing Law. This Amendment and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of Colorado. 
  
 [Signature page follows.] 
  

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 11. JURY TRIAL WAIVER. BANK AND BORROWERS EACH IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY
ACTION OR PROCEEDING OF ANY ISSUE, CLAIM, COUNTERCLAIM OR OTHER CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, BASED UPON OR ARISING OUT OF THIS AMENDMENT OR THE LOAN AGREEMENT, THE CREDIT EXTENDED THEREUNDER, ANY COLLATERAL PROPERTY SECURING SUCH
CREDIT, OR ANY OTHER AGREEMENT OR DEALINGS RELATING TO THE SUBJECT MATTER OF THIS AMENDMENT OR THE LOAN AGREEMENT. 
  
 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as
of the date first written above. 
  

									
	BANK	 	 	 	BORROWER
			
	 Silicon Valley Bank
	 	 	 	 ACT Teleconferencing, Inc.

					
	 By:
	 	 	 	 	 	 By:
	 	 
	 Name:
	 	 	 	 	 	 Name:
	 	 
	 Title:
	 	 	 	 	 	 Title:
	 	 
			
	BORROWER	 	 	 	BORROWER
			
	 ACT Teleconferencing Services, Inc.
	 	 	 	 ACT Videoconferencing, Inc.

					
	 By:
	 	 	 	 	 	 By:
	 	 
	 Name:
	 	 	 	 	 	 Name:
	 	 
	 Title:
	 	 	 	 	 	 Title:
	 	 
			
	BORROWER	 	 	 	BORROWER
			
	 ACT Proximity, Inc.
	 	 	 	 ACT Research, Inc.

					
	 By:
	 	 	 	 	 	 By:
	 	 
	 Name:
	 	 	 	 	 	 Name:
	 	 
	 Title:
	 	 	 	 	 	 Title:
	 	 

  

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