Exhibit 10.1
SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Sixth Amendment to Loan and Security Agreement (this "Amendment") is
entered into as of March 19, 2007, by and between Greater Bay Venture Banking, a
division of Greater Bay Bank N.A. ("Bank") and Focus Enhancements, Inc.
("Borrower").
RECITALS
Borrower and Bank are parties to that certain Loan and Security Agreement dated
as of November 15, 2004, as amended from time to time (the "Agreement").
Borrower and Bank desire to amend certain provisions of the Agreement, all in
accordance with the terms of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1.
AMENDMENTS TO AGREEMENT.
THE AGREEMENT IS HEREBY AMENDED AS
FOLLOWS:
(A)
THE FOLLOWING DEFINED TERMS IN SECTION 1.1 ARE AMENDED TO READ AS
FOLLOWS:
"Bridge Maturity Date" means February 23, 2008.
"Revolving Maturity Date" means February 23, 2008.
(B)
SECTION 6.9 MAXIMUM NET LOSS IS HEREBY AMENDED AS DETAILED IN
EXHIBIT E-1.
2.
CONDITIONS PRECEDENT TO EFFECTIVENESS.
THIS AMENDMENT SHALL
BECOME EFFECTIVE ONLY UPON:
(A)
RECEIPT BY THE BANK OF THE FOLLOWING (EACH OF WHICH SHALL BE IN
FORM AND SUBSTANCE SATISFACTORY TO BANK):
(I)
COUNTERPARTS OF THIS AMENDMENT DULY EXECUTED ON BEHALF OF THE
BORROWER AND THE BANK;
(II)
COPIES OF RESOLUTIONS OF THE BOARD OF DIRECTORS OR OTHER
AUTHORIZING DOCUMENTS OF BORROWER, AUTHORIZING THE EXECUTION AND DELIVERY OF
THIS AGREEMENT;
(III)
AN AFFIRMATION OF GUARANTY AND INTERCREDITOR AGREEMENT BY CARL
BERG;
(iv)
warrant agreement;
(B)
BANK SHALL HAVE RECEIVED A NONREFUNDABLE FEE FOR THE COMMITTED
REVOLVING LINE IN AN AMOUNT EQUAL TO $10,000 AND A NONREFUNDABLE FEE FOR THE
COMMITTED BRIDGE LINE IN AN AMOUNT EQUAL TO $12,500, AND ALL BANK EXPENSES
INCURRED IN CONNECTION WITH THIS AMENDMENT; AND
(C)
COMPLETION OF SUCH OTHER MATTERS AND DELIVERY OF SUCH OTHER
AGREEMENTS, DOCUMENTS AND CERTIFICATES AS BANK MAY REASONABLY REQUEST.
3.
REPRESENTATION AND WARRANTIES.
BORROWER REPRESENTS AND WARRANTS
THAT THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THE AGREEMENT ARE TRUE AND
CORRECT AS OF THE DATE OF THIS AMENDMENT, AND THAT NO EVENT OF DEFAULT HAS
OCCURRED AND IS CONTINUING.
4.
MISCELLANEOUS.
(A)
SUCCESSORS AND ASSIGNS.
THIS AMENDMENT SHALL BE BINDING UPON AND
SHALL INURE TO THE BENEFIT OF BORROWER AND BANK AND THEIR RESPECTIVE SUCCESSORS
AND ASSIGNS; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT AUTHORIZE ANY
ASSIGNMENT BY BORROWER OF ITS RIGHTS OR DUTIES HEREUNDER.
(B)
ENTIRE AGREEMENT.
THIS AMENDMENT AND THE LOAN DOCUMENTS CONTAIN
THE ENTIRE AGREEMENT OF THE PARTIES HERETO AND SUPERSEDE ANY OTHER ORAL OR
WRITTEN AGREEMENTS OR UNDERSTANDINGS.
(C)
COURSE OF DEALING; WAIVERS.
NO COURSE OF DEALING ON THE PART OF
BANK OR ITS OFFICERS, NOR ANY FAILURE OR DELAY IN THE EXERCISE OF ANY RIGHT BY
BANK, SHALL OPERATE AS A WAIVER THEREOF, AND ANY SINGLE OR PARTIAL EXERCISE OF
ANY SUCH RIGHT SHALL NOT PRECLUDE ANY LATER EXERCISE OF ANY SUCH RIGHT.
BANK'S
FAILURE AT ANY TIME TO REQUIRE STRICT PERFORMANCE BY BORROWER OF ANY PROVISION
SHALL NOT AFFECT ANY RIGHT OF BANK THEREAFTER TO DEMAND STRICT COMPLIANCE AND
PERFORMANCE.