EXHIBIT 10.31
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement is entered into as of September 9, 1999,
by and between Applied Imaging Corp. and Applied Imaging International Limited
(collectively, the "Borrower") and Silicon Valley Bank ("Bank").
1. DESCRIPTION OF EXISTING INDEBTEDNESS: Among other indebtedness which may
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be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among
other documents, a Loan and Security Agreement, dated September 9, 1999, as may
be amended from time to time, (the "Loan Agreement"). The Loan Agreement
provided for, among other things, a Term Loan in the original principal amount
of Two Million Dollars ($2,000,000). Defined terms used but not otherwise
defined herein shall have the same meanings as in the Loan Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness."
2. DESCRIPTION OF COLLATERAL AND GUARANTIES. Repayment of the Indebtedness is
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secured by the Collateral as described in the Loan Agreement.
Hereinafter, the above-described security documents and guaranties, together
with all other documents securing repayment of the Indebtedness shall be
referred to as the "Security Documents". Hereinafter, the Security Documents,
together with all other documents evidencing or securing the Indebtedness shall
be referred to as the "Existing Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
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A. Modification(s) to Loan Agreement
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1. Section 10 of the Loan Agreement is hereby replaced with the
following:
Notices.
Unless otherwise provided in this Agreement, all notices or
demands by any party relating to this Agreement or any other
agreement entered into in connection herewith shall be in writing
and (except for financial statements and other informational
documents which may be sent by first-class mail, postage prepaid)
shall be personally delivered or sent by a recognized overnight
delivery service, certified mail, postage prepaid, return receipt
requested, or by telefacsimile to Borrower or to Bank, as the
case may be, at its addresses set forth below:
If to Borrower:
Applied Imaging Corp.
0000 Xxxxx Xxxxxx, Xxxx
Xxxxx Xxxxx, XX 00000
Attn: ____________________
FAX: __________
and to Applied Imaging International Limited
______________________________
______________________________
Attn: ____________________
FAX: __________
If to Bank:
Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxx
FAX: 000-000-0000
Subrogation and Similar Rights.
Notwithstanding any other provision of this Agreement or any
other Loan Document, until payment to Bank in full and
performance of all Obligations, each Borrower irrevocably waives
all rights that it may have at law or in equity (including,
without limitation, any law subrogating the Borrower to the
rights of Bank under the Loan Documents) to seek contribution,
indemnification, or any other form of reimbursement from any
other Borrower, or any other Person now or hereafter primarily or
secondarily liable for any of the Obligations, for any payment
made by the Borrower with respect to the Obligations in
connection with the Loan Documents or otherwise and all rights
that it might have to benefit from, or to participate in, any
security for the Obligations as a result of any payment made by
the Borrower with respect to the Obligations in connection with
the Loan Documents or otherwise. Any agreement providing for
indemnification, reimbursement or any other arrangement
prohibited under this Section 10 shall be null and void. If any
payment is made to a Borrower in contravention of this Section
10, such Borrower shall hold such payment in trust for Bank and
such payment shall be promptly delivered to Bank for application
to the Obligations, whether matured or unmatured.
Waivers of Notice.
Each Borrower waives notice of acceptance hereof; notice of the
existence, creation or acquisition of any of the Obligations;
notice of an Event of Default; notice of the amount of the
Obligations outstanding at any time; notice of intent to
accelerate; notice of acceleration; notice of any adverse change
in the financial condition of any other Borrower or of any other
fact that might increase the Borrower's risk; presentment for
payment; demand; protest and notice thereof as to any instrument;
default; and all other notices and demands to which the Borrower
would otherwise be entitled. Each Borrower waives any defense
arising from any defense of any other Borrower, or by reason of
the cessation from any cause whatsoever of the liability of any
other Borrower. Bank's failure at any time to require strict
performance by any Borrower of any provision of the Loan
Documents shall not waive, alter or diminish any right of Bank
thereafter to demand strict compliance and performance therewith.
Nothing contained herein shall prevent Bank from foreclosing on
the Lien of any deed of trust, mortgage or other security
instrument, or exercising any rights available thereunder, and
the exercise of any such rights shall not constitute a legal or
equitable discharge of any Borrower. Each Borrower also waives
any defense arising from any act or omission of Bank that changes
the scope of the Borrower's risks hereunder. Each Borrower
hereby waives any right to assert against Bank any defense (legal
or equitable), setoff, counterclaim, or claims that such Borrower
individually may now or hereafter have against another Borrower
or any other Person liable to
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Borrower with respect to the Obligations in any manner or
whatsoever until the Obligations are paid in full to Bank.
Subrogation Defenses.
Until payment to Bank in full and performance of all Obligations,
each Borrower hereby waives any defense based on impairment or
destruction of its subrogation or other rights against any other
Borrower and waives all benefits which might otherwise be
available to it under California Civil Code Sections 2809, 2810,
2819, 2839, 2845, 2848, 2850, 2899 and 3433 and California Code
of Civil Procedure Sections 580a, 580b, 580d and 726, as those
statutory provisions are now in effect and hereafter amended, and
under any other similar statutes now and hereafter in effect.
Right to Settle, Release.
(a) The liability of Borrower hereunder shall not be diminished
by (i) any agreement, understanding or representation that
any of the Obligations is or was to be guaranteed by another
Person or secured by other property, or (ii) any release or
unenforceability, whether partial or total, or rights, if
any, which Borrower may now or hereafter have against any
other Person, including another Borrower, or property with
respect to any of the Obligations.
(b) Without notice to any Borrower and without affecting the
liability of any Borrower hereunder, Bank may (i)
compromise, settle, renew, extend the time for payment,
change the manner or terms of payment, discharge the
performance of, decline to enforce, or release all or any of
the Obligations with respect to a Borrower, (ii) grant other
indulgences to a Borrower in respect of the Obligations,
(iii) modify in any manner any documents, relating to the
Obligations with respect to a Borrower, (iv) release,
surrender or exchange any deposits or other property
securing the Obligations, whether pledged by a Borrower or
any other Person, or (v) compromise, settle renew, or extend
the time for payment, discharge the performance of, decline
to enforce, or release all or any obligations of any
guarantor, endorser or other Person who is now or may
hereafter be liable with respect to any of the Obligations.
4. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended
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wherever necessary to reflect the changes described above.
5. NO DEFENSES OF BORROWER. Borrower (and each guarantor and pledgor signing
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below) agrees that, as of the date hereof, it has no defenses against the
obligations to pay any amounts under the Indebtedness.
6. CONTINUING VALIDITY. Borrower (and each guarantor and pledgor signing
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below) understands and agrees that in modifying the existing Indebtedness, 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 Indebtedness pursuant to this Loan Modification
Agreement in no way shall obligate Bank to make any future modifications to the
Indebtedness. Nothing in this Loan Modification Agreement shall constitute a
satisfaction of the Indebtedness. It is the intention of Bank and Borrower to
retain as liable parties all makers and endorsers of
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Existing Loan Documents, unless the party is expressly released by Bank in
writing. No maker, endorser, or guarantor will be released by virtue of this
Loan Modification Agreement. The terms of this paragraph apply not only to this
Loan Modification Agreement, but also to all subsequent loan modification
agreements.
This Loan Modification Agreement is executed as of the date first written
above.
BORROWER: BANK:
APPLIED IMAGING CORP. SILICON VALLEY BANK
By: By:
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Name: Name:
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Title: Title:
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APPLIED IMAGING INTERNATIONAL LIMITED
By:
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Name:
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Title:
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