Exhibit 10.24
SILICON VALLEY BANK LIMITED WAIVER AND AMENDMENT TO LOAN DOCUMENTS
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SILICON VALLEY BANK
LIMITED WAIVER AND
AMENDMENT TO LOAN DOCUMENTS
BORROWER: XXXXXXX INC. (FKA XXXXXXX INSTRUMENT COMPANY)
DATE: FEBRUARY 15, 2002
THIS LIMITED WAIVER AND AMENDMENT TO LOAN DOCUMENTS is entered into
between SILICON VALLEY BANK ("Silicon") and the borrower named above
("Borrower").
The Parties agree to amend the Loan and Security Agreement between
them, dated June 5, 1998, as amended, if at all (the "Loan Agreement"), as
follows, effective as of the date hereof. (Capitalized terms used but not
defined in this Amendment shall have the meanings set forth in the Loan
Agreement.)
1. WAIVER OF DEFAULT. Silicon and Borrower agree that the Borrower's
existing default under the Loan Agreement due to the Borrower's failure to
comply with the Minimum Tangible Net-Worth Financial Covenant set forth in
Section 5 of the Schedule to Loan and Security Agreement entitled "5. FINANCIAL
COVENANTS (Section 5.l)," for the reporting period ending December 31, 2001 is
hereby waived. It is understood by the parties hereto, however, that such waiver
does not constitute a waiver of any other provision or term of the Loan
Agreement or any related document nor an agreement to waive in the future this
covenant or any other provision or term of the Loan Agreement or any related
document.
2. MODIFIED FINANCIAL COVENANT. Section 5 of the Schedule to Loan and
Security Agreement is hereby amended and restated in its entirety to read as
follows:
"5. FINANCIAL COVENANT
(Section 5.l): Borrower shall comply with the following
covenant. Compliance shall be determined
as of the end of each month:
MINIMUM TANGIBLE
NET WORTH: Borrower shall maintain a
Tangible Net Worth of not
less than ($1,000,000)
plus 75% of
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the total consideration received by
Borrower after December 31, 2001 in
consideration for the issuance by
Borrower of its equity securities,
effective on the date such
consideration is received.
DEFINITIONS. For purposes of the foregoing financial
covenants, the following term shall
have the following meaning:
"()" shall mean a negative figure or
loss, as applicable.
"Liabilities" shall have the meaning
ascribed thereto by generally accepted
accounting principles.
"Tangible Net Worth" shall mean the
excess of total assets over total
liabilities, determined in accordance
with generally accepted accounting
principles, with the following
adjustments;
(A) there shall be excluded
from assets: (i) notes, accounts
receivable and other obligations owing
to the Borrower from its officers or
other Affiliates, and (ii) all assets
which would be classified as intangible
assets under generally accepted
accounting principles, including
without limitation goodwill, licenses,
patents, trademarks, trade names,
copyrights, capitalized software and
organizational costs, licenses and
franchises
(B) there shall be excluded
from liabilities: all indebtedness
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SILICON VALLEY BANK LIMITED WAIVER AND AMENDMENT TO LOAN DOCUMENTS
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which is subordinated to the
Obligations under a subordination
agreement in form specified by Silicon
or by language in the instrument
evidencing the indebtedness which is
acceptable to Silicon in its discretion
and current liabilities associated with
warrants held by Silicon, equal to the
fair market value of the stock to be
issued upon the exercise of such
warrants."
3. SCHEDULE OF DEFERRED REVENUE ACCOUNTS. Borrower hereby covenants and
agrees to provide Silicon, within thirty days after the end of each month, a
schedule listing, by Account Debtor, of Xxxxxxxx's deferred revenue accounts.
4. FEE. In consideration for Silicon entering into this Amendment,
Borrower shall concurrently pay Silicon a fee in the amount of $10,000, which
shall be non-refundable and in addition to all interest and other fees payable
to Silicon under the Loan Documents. Silicon is authorized to charge said fee to
Xxxxxxxx's loan account.
5. REPRESENTATIONS TRUE. Borrower represents and warrants to Silicon
that all representations and warranties set forth in the Loan Agreement, as
amended hereby, are true and correct.
6. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and Borrower, and the
other written documents and agreements between Silicon and Borrower set forth in
full all of the representations and agreements of the parties with respect to
the subject matter hereof and supersede all prior discussions, representations,
agreements and understandings between the parties with respect to the subject
hereof. Except as herein expressly amended, all of the terms and provisions of
the Loan Agreement, and all other documents and agreements between Silicon and
Borrower shall continue in full force and effect and the same are hereby
ratified and confirmed.
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BORROWER: SILICON:
XXXXXXX INC. (FKA XXXXXXX SILICON VALLEY BANK
INSTRUMENT COMPANY)
By /s/ Xxxx X. Xxxxxx By /s/ Silicon Valley Bank
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President or Vice President Title Vice President
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By /s/ Xxxx X. Xxxxxx
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Secretary or Ass't Secretary
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CONSENT
The undersigned acknowledge that their consent to the foregoing
Agreement is not required, but the undersigned nevertheless do hereby consent to
the foregoing Agreement and to the documents and agreements referred to therein
and to all future modifications and amendments thereto, and any termination
thereof, and to any and all other present and future documents and agreements
between or among the foregoing parties. Nothing herein shall in any way limit
any of the terms or provisions of the Continuing Guaranties of the undersigned,
all of which are hereby ratified and affirmed.
QIC HOLDING CORP.
By: /s/ Xxxx X. Xxxxxx
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Title: Secretary
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