Exhibit 10.23
TBCC
Amendment and Waiver Agreement
Borrower: VidaMed, Inc.,
a Delaware corporation
Address: 00000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Date: October 26, 1999
THIS AMENDMENT AND WAIVER AGREEMENT (this "Amendment") is entered into as of
the above date, between the above borrower (the "Borrower"), having its chief
executive office and principal place of business at the address shown above, and
TRANSAMERICA BUSINESS CREDIT CORPORATION, a Delaware corporation ("TBCC"),
having its principal office at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxx 00000 and having an office at 00000 Xxxxxxx Xxxx., Xxxxx 0000, Xxxxxxx
Xxxx, Xxxxxxxxxx 00000.
TBCC and Borrower agree to amend and supplement the Loan and Security Agreement
between them, dated October 20, 1998 (the "Loan Agreement"), as follows. (This
Amendment, the Loan Agreement, any prior written amendments to the Loan
Agreement signed by TBCC and Borrower, and all other written documents and
agreements between TBCC and Borrower, are referred to herein collectively as the
"Loan Documents." Capitalized terms used but not defined in this Amendment
shall have the meanings set forth in the Loan Agreement.)
1. Amendments. Effective upon the date hereof, (i) the Maturity Date set
forth at Section 4 of the Schedule to Loan and Security Agreement shall be
amended as follows: the date "December 31, 1999" shall be deleted and the date
"January 31, 2000" shall be inserted in its place, and (ii) the last sentence of
Section 4.10 of the Loan Agreement shall be amended and restated as follows:
"Borrower has no Subsidiaries, except for its Subsidiary in the United Kingdom,
VidaMed International, Ltd."
2. Waiver. Effective the Closing Date (as defined below), TBCC waives
(i) the Event of Default existing under Section 7.1(k) of the Loan Agreement
which resulted from the delivery of a Qualified opinion by Borrower's Auditors
in respect of Borrower's Financial Statements for the fiscal year ended December
31, 1998, and (ii) the Event of Default existing under Section 5.8(a) of the
Loan Agreement which resulted from Borrower's failure to give TBCC notice of the
Event of Default under Section 7.1(k) of the Loan Agreement within two Business
Days after becoming aware thereof.
Conditions Precedent. The effectiveness of the foregoing waiver under the
preceding Section 2 shall be subject to the conditions precedent
63
that TBCC shall have received (i) a fee of $10,000, which shall be payable on
the execution hereof by Borrower, and (ii) warrants to purchase 20,000 shares of
common stock of Borrower at a price of $0.89 per share. The date of satisfaction
of the foregoing conditions precedent is the "Closing Date."
Representations True. To induce TBCC to enter into this Amendment, Borrower
hereby confirms and restates, as of the date hereof (after giving effect to the
waiver contemplated in Section 2 above), the representations and warranties made
by it in Section 4 of the Loan Agreement. For the purposes of this Section 4
each reference in Section 4 of the Loan Agreement to "this Agreement," and the
words "hereof," "herein," "hereunder," or words of like import in such Section,
shall mean and be a reference to the Loan Agreement as amended by this
Amendment.
GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, WHETHER SOUNDING IN
CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF ILLINOIS.
General Provisions. TBCC's execution and delivery of, or acceptance of, this
Amendment and any other documents and instruments in connection herewith shall
not be deemed to create a course of dealing or otherwise create any express or
implied duty by it to provide any other or further amendments, consents or
waivers in the future. This Amendment, the Loan Agreement, and the other 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. Except as herein expressly amended and
supplemented, all of the terms and provisions of the Loan Agreement and the
other Loan Documents shall continue in full force and effect and the same are
hereby ratified and confirmed. This Amendment forms part of the Loan Agreement
and the terms of the Loan Agreement are incorporated herein by reference.
Borrower: TBCC:
VIDAMED, INC. TRANSAMERICA BUSINESS CREDIT CORPORATION
By /s/ By /s/
-------------------------------- -------------------------------------
Xxxx X. Xxxx,
Vice President and CFO
Title
----------------------------------
64
