DEFAULT WAIVER AND SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
EXHIBIT 10.38
This DEFAULT WAIVER AND SIXTH AMENDMENT to Loan and Security Agreement (this “Amendment”) is
entered into this 2nd day of April, 2007, by and among Silicon Valley Bank (“Bank”) and
QualMark Corporation, a Colorado corporation, QualMark ACG Corporation, a Colorado corporation, and
QualMark Ling Corporation, a Colorado corporation (jointly and severally, “Borrower”) whose address
is 0000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
Recitals
A. Bank and Borrower have entered into that certain Loan and Security Agreement dated as of
December 8, 2005, as amended by that certain Forbearance and Third Amendment to Loan and Security
Agreement by and between Bank and Borrower dated as of December 8, 2006, that certain Forbearance
and Fourth Amendment to Loan and Security Agreement by and between Bank and Borrower dated as of
January 25, 2007, and that certain Default Waiver and Fifth Amendment to Loan and Security
Agreement by and between Bank and Borrower dated as of March 13, 2007 (as the same may from time to
time be further amended, modified, supplemented or restated, the “Loan Agreement”). Bank has
extended credit to Borrower for the purposes permitted in the Loan Agreement.
B. Borrower is currently in default of the Loan Agreement for failing to comply with the
Minimum Debt Service Coverage Ratio covenant set forth in Section 6.7 of the Loan Agreement for the
month ended February 28, 2007 (the “Existing Default”)
C. Borrower has requested that Bank waive its rights and remedies against Borrower,
limited specifically to the Existing Default. Although Bank is under no obligation to do so, Bank
is willing to not exercise its rights and remedies against Borrower related to the specific
Existing Default on the terms and conditions set forth in this Amendment, so long as Borrower
complies with the terms, covenants and conditions set forth in this Amendment.
D. Borrower has further requested that Bank amend the Loan Agreement to revise the Minimum
Debt Service Coverage Ratio financial covenant. Bank has agreed to so amend certain provisions of
the Loan Agreement, but only to the extent, in accordance with the terms, subject to the conditions
and in reliance upon the representations and warranties set forth below.
Agreement
Now, Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to
be legally bound, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined in this Amendment shall have the
meanings given to them in the Loan Agreement.
2. Waiver of Covenant Default.
Bank hereby waives Borrower’s Existing Defaults. Bank’s waiver of Borrower’s compliance
of these covenants shall apply only to the foregoing periods. Accordingly, hereinafter, Borrower
shall be in compliance with these covenants as amended herein.
Bank’s agreement to waive the above-described default (1) in no way shall be deemed an
agreement by the Bank to waive Borrower’s compliance with the above-described covenants as of all
other dates and (2) shall not limit or impair the Bank’s right to demand strict performance of
these covenants as of all other dates and (3) shall not limit or impair the Bank’s right to demand
strict performance of all other covenants as of any date.
3. Amendment to Loan Agreement.
3.1 Section 6.7 (Financial Covenants). The Minimum Debt Service Coverage Ratio financial
covenant is amended in its entirety and replaced with the following:
Minimum Debt Service Coverage Ratio. A ratio, measured on a rolling three-month
basis, of (a) EBITDA to (b) the required principal payments on the Term Loan plus interest
expense on all Indebtedness of Borrowers owing to Bank, of at least 1.00 to 1.00 for the 3
month periods ending March 31, 2007, April 30, 2007 and May 31, 2007, increasing to at least
2.00 to 1.00 beginning with the 3 month period ending June 30, 2007 and thereafter.
4. Limitation of Amendment.
4.1 The amendment set forth in Section 3, above, is effective for the purposes set forth
herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to any
amendment, waiver or modification of any other term or condition of any Loan Document, or (b)
otherwise prejudice any right or remedy which Bank may now have or may have in the future under or
in connection with any Loan Document.
4.2 This Amendment shall be construed in connection with and as part of the Loan Documents and
all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan
Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full
force and effect.
5. Representations and Warranties. To induce Bank to enter into this Amendment, Borrower
hereby represents and warrants to Bank as follows:
5.1 Immediately after giving effect to this Amendment (a) the representations and warranties
contained in the Loan Documents are true, accurate and complete in all material respects as of the
date hereof (except to the extent such representations and warranties relate to an earlier date, in
which case they are true and correct as of such date), and (b) no Event of Default other than the
Existing Defaults has occurred and is continuing;
5.2 Borrower has the power and authority to execute and deliver this Amendment and to perform
its obligations under the Loan Agreement, as amended by this Amendment;
5.3 The organizational documents of Borrower delivered to Bank on the Effective Date remain
true, accurate and complete and have not been amended, supplemented or restated and are and
continue to be in full force and effect;
5.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower
of its obligations under the Loan Agreement, as amended by this Amendment, have been duly
authorized by all necessary action on the part of Borrower;
5.5 The execution and delivery by Borrower of this Amendment and the performance by Borrower
of its obligations under the Loan Agreement, as amended by this Amendment, do not and will not
contravene (a) any law or regulation binding on or affecting Borrower, (b) any contractual
restriction with a Person binding on Borrower, (c) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (d)
the organizational documents of Borrower;
5.6 The execution and delivery by Borrower of this Amendment and the performance by Borrower
of its obligations under the Loan Agreement, as amended by this Amendment, do not require any
order, consent, approval, license, authorization or validation of, or filing, recording or
registration with, or
exemption by any governmental or public body or authority, or subdivision
thereof, binding on either Borrower, except as already has been obtained or made; and
5.7 This Amendment has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or
other similar laws of general application and equitable principles relating to or affecting
creditors’ rights.
6. Prior Agreement. Except as expressly provided for in this Amendment, the Loan Documents
are hereby ratified and reaffirmed and shall remain in full force and effect. This Amendment is
not a novation and the terms and conditions of this Amendment shall be in addition to and
supplemental to all terms and conditions set forth in the Loan Documents. In the event of any
conflict or inconsistency between this Amendment and the terms of such documents, the terms of this
Amendment shall be controlling, but such document shall not otherwise be affected or the rights
therein impaired.
7. Release by Borrower.
7.1 FOR GOOD AND VALUABLE CONSIDERATION, Borrower hereby forever relieves, releases, and
discharges Bank and its present or former employees, officers, directors, agents, representatives,
attorneys, and each of them, from any and all claims, debts, liabilities, demands, obligations,
promises, acts, agreements, costs and expenses, actions and causes of action, of every type, kind,
nature, description or character whatsoever, whether known or unknown, suspected or unsuspected,
absolute or contingent, arising out of or in any manner whatsoever connected with or related to
facts, circumstances, issues, controversies or claims existing or arising from the beginning of
time through and including the date of execution of this Amendment (collectively “Released
Claims”). Without limiting the foregoing, the Released Claims shall include any and all
liabilities or claims arising out of or in any manner whatsoever connected with or related to the
Loan Documents, the Recitals hereto, any instruments,
agreements or documents executed in connection with any of the foregoing or the origination,
negotiation, administration, servicing and/or enforcement of any of the foregoing.
7.2 Intentionally Omitted.
7.3 By entering into this release, Borrower recognizes that no facts or representations are
ever absolutely certain and it may hereafter discover facts in addition to or different from those
which it presently knows or believes to be true, but that it is the intention of Borrower hereby to
fully, finally and forever settle and release all matters, disputes and differences, known or
unknown, suspected or unsuspected; accordingly, if Borrower should subsequently discover that any
fact that it relied upon in entering into this release was untrue, or that any understanding of the
facts was incorrect, Borrower shall not be entitled to set aside this release by reason thereof,
regardless of any claim of mistake of fact or law or any other circumstances whatsoever. Borrower
acknowledges that it is not relying upon and has not relied upon any representation or statement
made by Bank with respect to the facts underlying this release or with regard to any of such
party’s rights or asserted rights.
7.4 This release may be pleaded as a full and complete defense and/or as a cross-complaint or
counterclaim against any action, suit, or other proceeding that may be instituted, prosecuted or
attempted in breach of this release. Borrower acknowledges that the release contained herein
constitutes a material inducement to Bank to enter into this Amendment, and that Bank would not
have done so but for Bank’s expectation that such release is valid and enforceable in all events.
7.5 Borrower hereby represents and warrants to Bank, and Bank is relying thereon, as follows:
(a) Except as expressly stated in this Amendment, neither Bank nor any agent, employee or
representative of Bank has made any statement or representation to Borrower regarding any fact
relied upon by Borrower in entering into this Amendment.
(b) Borrower has made such investigation of the facts pertaining to this Amendment and all of
the matters appertaining thereto, as it deems necessary.
(c) The terms of this Amendment are contractual and not a mere recital.
(d) This Amendment has been carefully read by Borrower, the contents hereof are known and
understood by Borrower, and this Amendment is signed freely, and without duress, by Borrower.
(e) Borrower represents and warrants that it is the sole and lawful owner of all right, title
and interest in and to every claim and every other matter which it releases herein, and that it has
not heretofore assigned or transferred, or purported to assign or transfer, to any person, firm or
entity any claims or other matters herein released. Borrower shall indemnify Bank, defend and hold
it harmless from and against all claims based upon or arising in connection with prior assignments
or purported assignments or transfers of any claims or matters released herein.
8. Integration. This Amendment and the Loan Documents represent the entire agreement about
this subject matter and supersede prior negotiations or agreements. All prior agreements,
understandings, representations, warranties, and negotiations between the parties about the subject
matter of this Amendment and the Loan Documents merge into this Amendment and the Loan Documents.
9. Counterparts. This Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same instrument.
10. Effectiveness. This Amendment shall be deemed effective upon (a) the due execution and
delivery to Bank of this Amendment by each party hereto, and (b) Borrower’s payment of an amendment
fee in an amount equal to $1,750.
11. Governing Law. This Amendment and the rights and obligations of the parties hereto shall
be governed by and construed in accordance with the laws of the State of Colorado.
[Signature page follows.]
In Witness Whereof, the parties hereto have caused this Amendment to be duly executed
and delivered as of the date first written above.
| BANK | BORROWER | |||||||||
| Silicon Valley Bank | QualMark Corporation | |||||||||
By:
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By: | |||||||||
Name:
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Name: | |||||||||
Title:
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Title: | |||||||||
| QualMark ACG Corporation | ||||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
| QualMark Ling Corporation | ||||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
