EXHIBIT 10(ah)
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WAIVER AGREEMENT
This Waiver Agreement (this "Waiver Agreement") is entered into on August
13, 2009, by and between SILICON VALLEY BANK, a California corporation, with its
principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000
and with a loan production office located at One Newton Executive Park, Suite
200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Bank") and SPIRE
CORPORATION, a Massachusetts corporation, SPIRE SOLAR, INC., a Massachusetts
corporation, SPIRE BIOMEDICAL, INC., a Massachusetts corporation, each with
offices located at Xxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and SPIRE
SEMICONDUCTOR, LLC, a Delaware limited liability company (formerly known as
Bandwidth Semiconductor, LLC), with offices at 00 Xxxxxxxx Xxxx Xxxx, Xxxxxx, XX
00000 (jointly and severally, individually and collectively, the "Borrower").
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 22, 2009,
evidenced by, among other documents, (i) a certain AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT dated as of June 22, 2009, with an effective date as of May
31, 2009, between Borrower and Bank, (as amended, the "Domestic Loan Agreement")
and (ii) a certain EXPORT-IMPORT BANK LOAN AND SECURITY AGREEMENT (as amended,
the "EXIM Agreement") entered into as of June 22, 2009, with an effective date
of May 31, 2009. Capitalized terms used but not otherwise defined herein shall
have the same meaning as in the Domestic Loan Agreement.
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the
Collateral as described in the Domestic Loan Agreement and the EXIM Agreement.
Hereinafter, the Domestic Loan Agreement and the EXIM Agreement, together with
all other documents executed in connection therewith evidencing, securing or
otherwise relating to the Obligations shall be referred to as the "Existing Loan
Documents".
3. WAIVER. Bank hereby waives Borrower's (i) failure to comply with the minimum
Tangible Net Worth requirement set forth in Section 6.9(a) of the Domestic Loan
Agreement for the compliance period ended June 30, 2009 and (ii) Event of
Default (as such term is defined in the EXIM Agreement) pursuant to Section 8.4
(DOMESTIC DEFAULT) caused by virtue of Borrower's Tangible Net Worth violation
under the Domestic Loan Agreement described above (collectively, the events of
default described in clause (i) and (ii) above are referred to herein as the
"Existing Defaults"). The Bank's waiver of Borrower's compliance with said
foregoing Existing Defaults shall apply only to the foregoing specific period
and shall not constitute a continuing waiver.
4. FEES. Borrower shall pay to Bank a waiver fee equal to $5,000.00, 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 by Bank in connection with the Existing Loan Documents and this Waiver
Agreement.
5. RATIFICATION OF PERFECTION CERTIFICATE. Borrower hereby ratifies, confirms
and reaffirms, all and singular, the terms and disclosures contained in those
certain Perfection Certificates dated as of June 22, 2009 delivered to Bank, and
acknowledges, confirms and agrees the disclosures and information Borrower
provided to Bank in the Perfection Certificates has not changed, as of the date
hereof.
6. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
7. 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.
8. 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.
9. 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 Waiver Agreement, the terms of the
Existing Loan Documents remain unchanged and in full force and effect. Bank's
agreement to waive the Existing Defaults pursuant to this Waiver Agreement in no
way shall obligate Bank to make any future waivers or any other modifications to
the Obligations. Nothing in this Waiver 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 Waiver Agreement.
10. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
properties, unconditionally, the exclusive jurisdiction of any state or federal
court of competent jurisdiction in the Commonwealth of Massachusetts in any
action, suit, or proceeding of any kind against it which arises out of or by
reason of this Waiver Agreement. NOTWITHSTANDING THE FOREGOING, THE BANK SHALL
HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH THE BANK DEEMS NECESSARY
OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE THE
BANK'S RIGHTS AGAINST THE BORROWER OR ITS PROPERTY.
11. COUNTERSIGNATURE. This Waiver Agreement shall become effective only when it
shall have been executed by Borrower and Bank.
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This Waiver Agreement is executed as a sealed instrument under the laws of
the Commonwealth of Massachusetts as of the date first written above.
BORROWER:
SPIRE CORPORATION
By /s/ Xxxxx X. Xxxxxx By /s/ Xxxxxxxxx Xxxxxxxx
------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxxxx Xxxxxxxx, Ph.D.
Title: Chief Executive Officer Title: Chief Financial Officer & Treasurer
SPIRE SOLAR, INC.
By /s/ Xxxxx X. Xxxxxx By /s/ Xxxxxxxxx Xxxxxxxx
------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxxxx Xxxxxxxx, Ph.D.
Title: Chief Executive Officer Title: Chief Financial Officer & Treasurer
SPIRE BIOMEDICAL, INC.
By /s/ Xxxxx X. Xxxxxx By /s/ Xxxxxxxxx Xxxxxxxx
------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxxxx Xxxxxxxx, Ph.D.
Title: Chief Executive Officer Title: Chief Financial Officer & Treasurer
SPIRE SEMICONDUCTOR, LLC f/k/a BANDWITH
SEMICONDUCTOR, LLC
By: Spire Corporation, a Massachusetts corporation,
its sole Member and Manager
By /s/ Xxxxx X. Xxxxxx By /s/ Xxxxxxxxx Xxxxxxxx
------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxxxx Xxxxxxxx, Ph.D.
Title: Chief Executive Officer Title: Chief Financial Officer & Treasurer
BANK:
SILICON VALLEY BANK
By /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Vice President
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