EXHIBIT 10.37
Silicon Valley Bank
Amendment to Loan Documents
Borrower: APPLIED IMAGING CORP.
Address: 0000 Xxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Date: September 28, 2001
THIS AMENDMENT TO LOAN DOCUMENTS is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"), with reference
to the various loan and security agreements and other documents, instruments and
agreements between them, including but not limited to that certain Loan and
Security Agreement dated September 9, 1999 (as amended, if at all, the "Existing
Loan Agreement"; the Existing Loan Agreement and all related documents,
instruments and agreements may be referred to collectively herein as the
"Existing Loan Documents").
The Parties agree to amend the Existing Loan Documents, as follows:
1. Present Loan Balance. Borrower acknowledges that the present
unpaid principal balance of the Borrower's indebtedness, liabilities and
obligations to Silicon under the Existing Loan Documents, including interest
accrued through 9/28/01 is $1,174,720.78 (the "Present Loan Balance"), and that
said sum is due and owing without any defense, offset, or counterclaim of any
kind.
2. Amendment to Existing Loan Documents. The Existing Loan Agreement
is hereby amended and restated in its entirety (and accordingly superceded) by,
and to read as set forth in, that certain Loan and Security Agreement dated as
of even date herewith (the "New Loan Agreement"). The New Loan Agreement and all
related documents, instruments, and agreements are referred to collectively
herein as the "New Loan Documents". The Borrower acknowledges that the Present
Loan Balance shall be the opening balance of the Loans pursuant to the New Loan
Documents as of the date hereof, and shall, for all purposes, be deemed to be
Loans made by Silicon to the Borrower pursuant to the New Loan Agreement.
Notwithstanding the execution of the New Loan Documents, the following Existing
Loan Documents (other than the Existing Loan Agreement) shall continue in full
force and effect (except to the extent that any provisions in such Existing Loan
Documents are in actual conflict with any provisions relative to the subject
matter thereof set forth in the New Loan Documents, in which case such New Loan
Documents provisions shall control and such conflicting Existing Loan Documents
provisions shall no longer be of any force or effect; it being expressly
acknowledged and agreed that the negative pledge agreement dated September 9,
1999 by Borrower in favor of Silicon is expressly superceded by the negative
covenants (with applicable exceptions, provisos, and carve-outs) set
-1-
forth in the New Loan Agreement and corresponding new intellectual property
security agreement constituting a New Loan Document) and shall continue to
secure all present and future indebtedness, liabilities, guarantees and other
Obligations (as defined in the New Loan Documents): All standard documents of
Silicon entered into by the Borrower in connection with Letters of Credit and/or
Foreign Exchange Contracts; all security agreements, collateral assignments and
mortgages, including but not limited to those relating to patents, trademarks,
copyrights and other intellectual property; all lockbox agreements and/or
blocked account agreements; and all UCC-1 financing statements and other
documents filed with governmental offices which perfect liens or security
interests in favor of Silicon. In addition, solely in the event the Borrower has
previously issued any stock options, stock purchase warrants or securities to
Silicon, the same and all documents and agreements relating thereto shall also
continue in full force and effect.
3. Limited Waivers. Silicon hereby waives the following Events of
Default in existence under the Existing Loan Documents immediately prior to the
execution and delivery of the New Loan Agreement (collectively, the "Designated
Existing Defaults"):
(a) any non-compliance with any financial covenant set forth in
Section 6.7 of the Existing Loan Agreement; and
(b) any Event of Default arising solely from the granting by
Borrower of "Permitted Exclusive Assay Provider Licenses" (as such term is
defined in the New Loan Agreement), to the extent the same is in violation of
the applicable provisions of the Existing Loan Documents.
It is understood by the parties hereto, however, that such waivers do not
constitute a waiver of any Event of Default thereunder other than the Designated
Existing Defaults, nor a waiver of any other provision or term of the Existing
Loan Agreement or any other Existing Loan Document.
[remainder of page intentionally left blank; signature page follows]
-2-
4. General Provisions. This Amendment and the New Loan Documents 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.
Borrower: Silicon:
APPLIED IMAGING CORP. SILICON VALLEY BANK
By /s/ Xxxx Xxxx By /s/ Xxxxxx Xxxxxxxxxxxxxxx
------------------------------- ---------------------------
President or Vice President Title Account Manager
-------------------------
By /s/ Xxxxx Xxxxxxxxx
-------------------------------
Secretary or Ass't Secretary
-3-
