Limited Waiver Agreement
Exhibit 10.31
Borrower: I-Flow
Corporation
| Address: | 00000 Xxxxxxx Xxxxx |
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Dated as of: March 13, 2009
THIS LIMITED WAIVER AGREEMENT is entered into between
Silicon Valley Bank (“Bank”) and the borrower named
above (the “Borrower”).
The Parties agree to modify the Amended and Restated Loan and
Security Agreement between them, having an effective date of
May 8, 2003 (as amended from time to time being referred to
herein as 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. Limited
Waiver.
(a) Borrower has advised Bank that it was not in compliance
with the Adjusted Net Profit financial covenant as set forth in
Section 6.7(b) of the Loan Agreement for the period ending
December 31, 2008 (the “Breach”). Bank hereby
waives the Event of Default arising from the Breach.
(b) It is understood by the parties hereto that such waiver
does not constitute a waiver of any other default under the Loan
Agreement or any related document, nor an agreement by Bank to
waive or forbear from exercising its rights and remedies in the
future regarding defaults arising from any breach of any
financial covenant or any other term or provision of the Loan
Agreement.
2. Fee. In consideration for Bank
entering into this Amendment, Borrower shall concurrently pay
Bank a fee in the amount of $7,500, which shall be
non-refundable and in addition to all interest and other fees
payable to Bank under the Loan Documents.
3. Limitation
of Amendments.
(A) The amendments set forth above are 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.
(B) 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.
4. Representations and Warranties. To
induce Bank to enter into this Amendment, Borrower hereby
represents and warrants to Bank as follows:
(A) 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 has occurred and is continuing,
other than is the subject of the waiver as otherwise set forth
herein;
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(B) 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;
(C) The organizational documents of Borrower that the Bank
obtained with respect to the original execution of the Loan
Agreement remain true, accurate and complete and have not been
amended, supplemented or restated and are and continue to be in
full force and effect, other than for the amendment and
restatement of Borrower’s certificate of incorporation
filed with the Secretary of State of Delaware on May 29,
2002.
(D) 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;
(E) 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;
(F) 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
(G) 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.
7. 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.
8. Effectiveness. This Amendment shall be
deemed effective upon (a) the due execution and delivery to
Bank of this Amendment by each party hereto,
(b) Borrower’s payment of an fee as stated above, and
(c) the delivery of such other agreements and documents by
Borrower and the taking of such other actions Borrower, in each
case as Bank shall determine are necessary or advisable in order
to effectuate the terms and provisions hereof and of the Loan
Agreement.
[Signature
page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
|
Borrower:
|
Bank: | |
|
I-Flow Corporation
|
Silicon Valley Bank | |
|
By
/s/ Xxxxx
X. Xxxxxxxx President
or Chief Financial Officer
|
By /s/ Xxxxxx Xxxxxxxx Title Senior Relationship Manager |
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