Exhibit 10.1


 


SECOND LOAN MODIFICATION AGREEMENT


 


This Second Loan
Modification Agreement (this “Loan Modification Agreement”) is entered into as
of November 6, 2008, by and among (a) SILICON
VALLEY BANK, a California corporation, with its principal place of
business at 3003 Tasman Drive, Santa Clara, California 95054 and with a
loan production office located at One Newton Executive Park, Suite 200,
2221 Washington Street, Newton, Massachusetts 02462 (“Bank”), and (b) NMS COMMUNICATIONS CORPORATION, a Delaware
corporation (“NMS Borrower”), NMS
COMMUNICATIONS INTERNATIONAL CORPORATION, a Delaware corporation (“International
Borrower”), LIVEWIRE MOBILE, INC.,
a Delaware corporation (“LiveWire Borrower”), and GROOVE MOBILE, INC., a Delaware corporation (“Groove Borrower”,
and individually and collectively, jointly and severally with NMS Borrower,
International Borrower, and LiveWire Borrower, “Borrower”), each with its
respective principal place of business at 100 Crossing Boulevard, Framingham,
Massachusetts 01702.


 


1.                                       DESCRIPTION
OF EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other indebtedness and
obligations which may be owing by Borrower to Bank, Borrower is indebted to
Bank pursuant to a loan arrangement dated as of June 30, 2008, evidenced
by, among other documents, a certain Amended and Restated Loan and Security
Agreement dated as of June 30, 2008, between Borrower and Bank, as amended
by a certain First Loan Modification Agreement dated as of August 21,
2008, between Borrower and Bank (the “First Modification”) (as amended from
time to time, the “Loan Agreement”). 
Capitalized terms used but not otherwise defined herein shall have the
same meaning as in the Loan Agreement.


 


2.                                       DESCRIPTION
OF COLLATERAL.  Repayment of the
Obligations is secured by (a) the Collateral as defined in the Loan
Agreement, (b) the Intellectual Property Collateral as defined in a
certain Intellectual Property Security Agreement dated as of the date hereof
between Bank and NMS Borrower (the “NMS IP Agreement”), (c) the
Intellectual Property Collateral as defined in a certain Intellectual Property
Security Agreement dated as of the date hereof between Bank and International
Borrower (the “International IP Agreement”), (d) the Intellectual Property
Collateral as defined in a certain Intellectual Property Security Agreement
dated as of the date hereof between Bank and LiveWire Borrower (the “LiveWire
IP Agreement”), and (e) the Intellectual Property Collateral as defined in
a certain Intellectual Property Security Agreement dated as of the date hereof
between Bank and Groove Borrower (the “Groove IP Agreement”) (together with any
other collateral security granted to Bank, the “Security Documents”).   Hereinafter, the Security Documents,
together with all other documents evidencing or securing the Obligations shall
be referred to as the “Existing Loan Documents”.


 


3.                                       DESCRIPTION
OF CHANGE IN TERMS.


 


A.                                   Modifications
to Loan Agreement.


 


1              The
Loan Agreement shall be amended by deleting the following text, appearing in Section 2.1.1(f) thereof:


 


“If this Agreement is
terminated (A) by Bank in accordance with clause (ii) in the
foregoing sentence, or (B) by Borrower for any reason, Borrower shall pay
to Bank a termination fee in an amount equal to Forty Thousand Dollars
($40,000.00) (the “Early Termination Fee”).”


 


and inserting in lieu
thereof the following:


 


“If this Agreement is
terminated (A) by Bank in accordance with clause (ii) in the
foregoing sentence, or (B) by Borrower for any reason, Borrower shall pay
to Bank a termination fee in an amount equal to Fifty Thousand Dollars
($50,000.00) (the “Early Termination Fee”).”


 


2              The
Loan Agreement shall be amended by inserting the following new text, to appear
at the beginning of the third (3rd) paragraph in Section 5.2
thereof:


 

















 


“                                          Borrower
is the sole owner of its intellectual property, except for non-exclusive
licenses granted to its customers in the ordinary course of business.  Each patent is valid and enforceable, and no
part of the intellectual property has been judged invalid or unenforceable, in
whole or in part, and to the best of Borrower’s knowledge, no claim has been
made that any part of the intellectual property violates the rights of any
third party except to the extent such claim could not reasonably be expected to
have a material adverse effect on Borrower’s business.”


 


3              The
Loan Agreement shall be amended by deleting the following, appearing as Section 6.7
thereof:


 


“                                          6.7                               Protection
of Intellectual Property Rights, 
Borrower shall protect, defend and maintain the validity and
enforceability of its intellectual property material to Borrower’s businss.”


 


and
inserting in lieu thereof the following:


 


“                                          6.7                               Protection
and Registration of Intellectual Property Rights.  Borrower shall:  (a) protect, defend and maintain the
validity and enforceability of its intellectual property; (b) promptly
advise Bank in writing of material infringements of its intellectual property;
and (c) not allow any intellectual property material to Borrower’s
business to be abandoned, forfeited or dedicated to the public without Bank’s
written consent.  If Borrower (i) obtains
any patent, registered trademark or servicemark, registered copyright,
registered mask work, or any pending application for any of the foregoing,
whether as owner, licensee or otherwise, or (ii) applies for any patent or
the registration of any trademark or servicemark, then Borrower shall
immediately provide written notice thereof to Bank and shall execute such
intellectual property security agreements and other documents and take such
other actions as Bank shall request in its good faith business judgment to
perfect and maintain a first priority perfected security interest in favor of
Bank in such property.  If Borrower
decides to register any copyrights or mask works in the United States Copyright
Office, Borrower shall: (x) provide Bank with at least fifteen (15) days
prior written notice of Borrower’s intent to register such copyrights or mask
works together with a copy of the application it intends to file with the
United States Copyright Office (excluding exhibits thereto); (y) execute
an intellectual property security agreement and such other documents and take
such other actions as Bank may request in its good faith business judgment to
perfect and maintain a first priority perfected security interest in favor of
Bank in the copyrights or mask works intended to be registered with the United
States Copyright Office; and (z) record such intellectual property
security agreement with the United States Copyright Office contemporaneously
with filing the copyright or mask work application(s) with the United
States Copyright Office.  Borrower shall
promptly provide to Bank copies of all applications that it files for patents
or for the registration of trademarks, servicemarks, copyrights or mask works,
together with evidence of the recording of the intellectual property security
agreement necessary for Bank to perfect and maintain a first priority perfected
security interest in such property.”


 


4                                          The
Loan Agreement shall be amended by inserting the following definitions,
appearing alphabetically in Section 13.1 thereof:


 


“                                          “2008 Effective Date” is November 6, 2008.”


 


“                                          “Intellectual Property Collateral” is defined in the IP
Agreement.”


 

















 


“                                          “IP Agreement” is, collectively, (a) that certain Intellectual
Property Security Agreement dated as of the 2008 Effective Date, executed and
delivered by NMS Borrower to Bank, (b) that certain Intellectual Property
Security Agreement dated as of the 2008 Effective Date, executed and delivered
by International Borrower to Bank, (c) that certain Intellectual Property
Security Agreement dated as of the 2008 Effective Date, executed and delivered
by LiveWire Borrower to Bank, and (d) that certain Intellectual Property
Security Agreement dated as of the 2008 Effective Date, executed and delivered
by Groove Borrower to Bank.”


 


5                                          The
Loan Agreement shall be amended by deleting the following definitions,
appearing in Section 13.1 thereof:


 


“                                          “Applicable Rate” is a per annum rate equal to the Prime Rate
plus one percent (1.0%).”


 


“                                          “Facility Amount” is Five Million Dollars ($5,000,000.00).”


 


“                                          “Loan Documents” are, collectively, this Agreement, the
Perfection Certificate, any subordination agreement, any note, or notes or
guaranties executed by Borrower or any Guarantor, and any other present or
future agreement between Borrower any Guarantor and/or for the benefit of Bank
in connection with this Agreement, all as amended, restated, or otherwise
modified.”


 


and inserting in lieu
thereof the following:


 


“                                          “Applicable Rate” is a per annum rate equal to the Prime Rate
plus one percent (1.0%); provided, however, as of the 2008 Effective Date, the
Applicable Rate shall be a per annum rate equal to the Prime Rate plus two
percent (2.0%).”


 


“                                          “Facility Amount” is Six Million Two Hundred Fifty Thousand
Dollars ($6,250,000.00); provided, however, the Facility Amount shall reduce to
Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00) on the
earlier to occur of (a) January 1, 2009, and (b) the Company
Sale.”


 


“                                          “Loan Documents” are, collectively, this Agreement, the
Perfection Certificate, the IP Agreement, any subordination agreement, any
note, or notes or guaranties executed by Borrower or any Guarantor, and any
other present or future agreement between Borrower any Guarantor and/or for the
benefit of Bank in connection with this Agreement, all as amended, restated, or
otherwise modified.”


 


6                                          The
Loan Agreement shall be amended by deleting Exhibit A thereof and
inserting in lieu thereof Exhibit A hereto.  Borrower hereby grants Bank, to secure the
payment and performance in full of all of the Obligations and the performance
of each of Borrower’s duties under the Existing Loan Documents, a continuing
security interest in, and pledges and assigns to Bank, the Collateral, wherever
located, whether now owned or hereafter acquired or arising, and all proceeds
and products thereof.


 


4.                                       FEES.  Borrower shall pay to Bank a modification fee
equal to Twenty-Five Thousand Dollars ($25,000.00), which fee shall be due on
the date hereof and shall be deemed fully earned as of the date hereof.  Borrower shall also reimburse Bank for all
legal fees and expenses incurred in connection with this amendment to the
Existing Loan Documents.


 

















 


5.                                       RATIFICATION
OF INTELLECTUAL PROPERTY SECURITY AGREEMENTS.


 


(a)                                  NMS
Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms
and conditions of the NMS IP Agreement, and acknowledges, confirms and agrees
that the NMS IP Agreement contains an accurate and complete listing of all Intellectual
Property Collateral as defined in the NMS IP Agreement, shall remain in full
force and effect.


 


(b)                                 International
Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms
and conditions of the International IP Agreement, and acknowledges, confirms
and agrees that the International IP Agreement contains an accurate and
complete listing of all Intellectual Property Collateral as defined in the
International IP Agreement, shall remain in full force and effect.


 


(c)                                  LiveWire
Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms
and conditions of the LiveWire IP Agreement, and acknowledges, confirms and
agrees that the LiveWire IP Agreement contains an accurate and complete listing
of all Intellectual Property Collateral as defined in the LiveWire IP
Agreement, shall remain in full force and effect.


 


(d)                                 Groove
Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms
and conditions of the Groove IP Agreement, and acknowledges, confirms and
agrees that the Groove IP Agreement contains an accurate and complete listing
of all Intellectual Property Collateral as defined in the Groove IP Agreement,
shall remain in full force and effect.


 


6.                                       RATIFICATION
OF PERFECTION CERTIFICATES.


 


(a)                                  NMS
Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms
and disclosures contained in a certain Perfection Certificate dated as of May 6,
2008, between NMS Borrower and Bank, and NMS Borrower acknowledges, confirms
and agrees that the disclosures and information NMS Borrower provided to Bank
in the Perfection Certificate have not changed, as of the date hereof, except
as provided (i) in the First Modification and (ii) by the
transactions contemplated by that certain Asset Purchase Agreement, dated as of
September 12, 2008, by and between NMS Borrower and Dialogic Corporation
(the “Asset Purchase Agreement”).


 


(b)                                 International
Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms
and disclosures contained in a certain Perfection Certificate dated as of May 6,
2008, between International Borrower and Bank, and International Borrower
acknowledges, confirms and agrees that the disclosures and information
International Borrower provided to Bank in the Perfection Certificate have not
changed, as of the date hereof, except as provided (i) in the First
Modification and (ii) by the transactions contemplated by the Asset
Purchase Agreement.


 


(c)                                  LiveWire
Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms
and disclosures contained in a certain Perfection Certificate dated as of May 6,
2008, between LiveWire Borrower and Bank, and LiveWire Borrower acknowledges,
confirms and agrees that the disclosures and information LiveWire Borrower
provided to Bank in the Perfection Certificate have not changed, as of the date
hereof.


 


(d)                                 Groove
Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms
and disclosures contained in a certain Perfection Certificate dated as of May 6,
2008, between Groove Borrower and Bank, and Groove Borrower acknowledges,
confirms and agrees that the disclosures and information Groove Borrower
provided to Bank in the Perfection Certificate have not changed, as of the date
hereof.


 


7.                                       CONSISTENT
CHANGES.  The Existing Loan Documents
are hereby amended wherever necessary to reflect the changes described above.


 


8.                                       RATIFICATION
OF LOAN DOCUMENTS.  Borrower hereby
ratifies, confirms, and reaffirms all terms and conditions of all security or
other collateral granted to the Bank, and confirms that the indebtedness
secured thereby includes, without limitation, the Obligations.


 

















 


9.                                       NO
DEFENSES OF BORROWER.  Borrower
hereby acknowledges and agrees that Borrower has no offsets, defenses, claims,
or counterclaims against Bank with respect to the Obligations, or otherwise,
and that if Borrower now has, or ever did have, any offsets, defenses, claims,
or counterclaims against Bank, whether known or unknown, at law or in equity,
all of them are hereby expressly WAIVED and Borrower hereby RELEASES Bank from
any liability thereunder.


 


10.                                 CONTINUING
VALIDITY.  Borrower understands and
agrees that in modifying the existing Obligations, Bank is relying upon
Borrower’s representations, warranties, and agreements, as set forth in the Existing
Loan Documents.  Except as expressly
modified pursuant to this Loan Modification Agreement, the terms of the
Existing Loan Documents remain unchanged and in full force and effect.  Bank’s agreement to modifications to the
existing Obligations pursuant to this Loan Modification Agreement in no way
shall obligate Bank to make any future modifications to the Obligations.  Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Obligations.  It is the intention of Bank and Borrower to
retain as liable parties all makers of Existing Loan Documents, unless the
party is expressly released by Bank in writing. 
No maker will be released by virtue of this Loan Modification Agreement.


 


11.                                 COUNTERSIGNATURE.  This Loan Modification Agreement shall become
effective only when it shall have been executed by Borrower and Bank.


 


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intentionally left blank]


 

















 


This Loan Modification
Agreement is executed as a sealed instrument under the laws of the Commonwealth
of Massachusetts as of the date first written above.


 


BORROWER:


 


 


	
  NMS COMMUNICATIONS
  CORPORATION

  
	
   

  
	
  By:

  	
  /s/ Robert P.
  Schechter

  	
   

  
	
  Name:

  	
  Robert P. Schechter

  	
   

  
	
  Title:

  	
  CEO, President

  	
   

  
	
   

  
	
   

  
	
  NMS COMMUNICATIONS
  INTERNATIONAL CORPORATION

  
	
   

  	
   

  
	
  By:

  	
  /s/ Herbert M. Shumway

  	
   

  
	
  Name:

  	
  Herbert M. Shumway

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
  

  
	
   

  
	
   

  
	
  LIVEWIRE MOBILE, INC.

  
	
   

  
	
  By:

  	
  /s/ Joel Hughes

  	
   

  
	
  Name:

  	
  Joel Hughes

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
   

  
	
   

  
	
  GROOVE MOBILE, INC.

  
	
   

  
	
  By:

  	
  /s/ Joel Hughes

  	
   

  
	
  Name:

  	
  Joel Hughes

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
   

  
	
   

  
	
  BANK:

  
	
   

  
	
  SILICON VALLEY BANK

  
	
   

  
	
  By:

  	
  /s/ Mark Sperling

  	
   

  
	
  Name:

  	
  Mark Sperling

  	
   

  
	
  Title:

  	
  V.P.

  	
   

  



 

















 


EXHIBIT A


 


The Collateral
consists of all of Borrower’s right, title and interest in and to the
following:


 


All goods,
equipment, inventory, contract rights or rights to payment of money, leases,
license agreements, franchise agreements, general intangibles (including
payment intangibles) accounts (including health-care receivables), documents,
instruments (including any promissory notes), chattel paper (whether tangible
or electronic), cash, deposit accounts, fixtures, letters of credit rights
(whether or not the letter of credit is evidenced by a writing), commercial
tort claims, securities, and all other investment property, supporting
obligations, and financial assets, whether now owned or hereafter acquired,
wherever located; and any copyright rights, copyright applications, copyright
registrations and like protections in each work of authorship and derivative
work, whether published or unpublished, now owned or later acquired; any
patents, trademarks, service marks and applications therefor; trade styles,
trade names, any trade secret rights, including any rights to unpatented
inventions, know-how, operating manuals, license rights and agreements and
confidential information, now owned or hereafter acquired; or any claims for
damages by way of any past, present and future infringement of any of the
foregoing; and


 


All Borrower’s
books relating to the foregoing and any and all claims, rights and interests in
any of the above and all substitutions for, additions, attachments,
accessories, accessions and improvements to and replacements, products,
proceeds and insurance proceeds of any or all of the foregoing.