EXHIBIT 10.58
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SILICON VALLEY BANK
LIMITED WAIVER AND
AMENDMENT TO LOAN DOCUMENTS
BORROWER: VISEON, INC.
DATE: MARCH 26, 2002
THIS LIMITED WAIVER AND AMENDMENT TO LOAN DOCUMENTS is entered into
between Silicon Valley Bank ("Silicon") and the borrower named above
("Borrower").
The Parties agree to amend the Loan and Security Agreement between
them, dated December 5, 2001 (as otherwise amended, if at all, 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. WAIVER OF DEFAULT. Silicon and Borrower agree that the Borrower's
existing default under the Loan Agreement due to the Borrower's failure to
comply with the Minimum Tangible Net Worth Financial Covenant set forth in
Section 5 of the Schedule to Loan and Security Agreement entitled "5. FINANCIAL
COVENANTS (Section 5.1)" for the reporting period ending January 31, 2002 is
hereby waived. It is understood by the parties hereto, however, that such waiver
does not constitute a waiver of any other provision or term of the Loan
Agreement or any related document, nor an agreement to waive in the future this
covenant or any other provision or term of the Loan Agreement or any related
document.
2. MODIFIED CREDIT LIMIT. That portion of Section 1 of the Schedule to
Loan and Security Agreement that reads as follows:
"1. CREDIT LIMIT
(Section 1.1):
An amount not to exceed the lesser of a total of
$1,500,000 at any one time outstanding (the "Maximum
Credit Limit"), or the sum of (a) and (b) below:
(a) 75% of the amount of Borrower's Eligible
Receivables (as defined in Section 8 above),
plus
(b) an amount not to exceed the lesser of:
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
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(1) 45% of the value of Borrower's
Eligible Inventory (as defined in
Section 8 above), calculated at the
lower of cost or market value and
determined on a first-in, first-out
basis, or
(2) an amount equal to 35% of the
aggregate of Borrower's Eligible
Receivables under this Agreement and
Borrower's Eligible Receivables under
the Exim Agreement (as defined below),
or
(3) $1,000,000;
provided that the total outstanding Obligations under
this Loan Agreement and under the Exim Agreement
shall not at any time exceed $2,500,000 (the "Overall
Credit Limit")."
is hereby amended in its entirety to read as follows:
"1. CREDIT LIMIT
(Section 1.1):
An amount not to exceed the lesser of a total of
$1,500,000 at any one time outstanding (the
"Maximum Credit Limit"), or the sum of (a) and (b)
below:
(a) 75% of the amount of Borrower's Eligible
Receivables (as defined in Section 8 above),
plus
(b) an amount not to exceed the lesser of:
(1) 40% of the value of Borrower's
Eligible Inventory (as defined in
Section 8 above), calculated at the
lower of cost or market value and
determined on a first-in, first-out
basis, or
(2) an amount equal to 35% of the
aggregate of Borrower's Eligible
Receivables under this Agreement and
Borrower's Eligible Receivables under
the Exim Agreement (as defined below),
or
(3) $500,000;
provided that the total outstanding Obligations under
this Loan Agreement and under the Exim Agreement
shall not at any time exceed $2,500,000 (the "Overall
Credit Limit")."
3. MODIFIED TANGIBLE NET WORTH. The Minimum Tangible Net Worth
financial covenant set forth in Section 5 of the Schedule to Loan and Security
Agreement and entitled "5. FINANCIAL COVENANTS (Section 5.1)" is hereby amended
to read as follows:
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
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"MINIMUM TANGIBLE
NET WORTH: Borrower shall maintain a Tangible Net Worth
of not less than the following:
For the months ending February 28, 2002 and
March 31, 2002: $350,000, plus 75% of the
total consideration received by Borrower
after February 1, 2002, in consideration for
the issuance by Borrower of its equity
securities (exclusive of the exercise of
employee stock options and the Future
Digital Investors Infusion) and subordinated
debt, effective on the date such
consideration is received; and
For the month ending April 30, 2002:
$400,000, plus 75% of the total
consideration received by Borrower after
February 1, 2002, in consideration for the
issuance by Borrower of its equity
securities (exclusive of the exercise of
employee stock options and the Future
Digital Investors Infusion) and subordinated
debt, effective on the date such
consideration is received; and
For the months ending May 31, 2002 and June
30, 2002: $450,000, plus 75% of the total
consideration received by Borrower after
February 1, 2002, in consideration for the
issuance by Borrower of its equity
securities (exclusive of the exercise of
employee stock options and the Future
Digital Investors Infusion) and subordinated
debt, effective on the date such
consideration is received; and
For the months ending July 31, 2002 and
August 31, 2002: $500,000, plus 75% of the
total consideration received by Borrower
after February 1, 2002, in consideration for
the issuance by Borrower of its equity
securities (exclusive of the exercise of
employee stock options and the Future
Digital Investors Infusion) and subordinated
debt, effective on the date such
consideration is received; and
For the months ending September 30, 2002 and
October 31, 2002: $550,000, plus 75% of the
total consideration received by Borrower
after February 1, 2002, in consideration for
the issuance by Borrower of its equity
securities (exclusive of the exercise of
employee stock options and the Future
Digital Investors Infusion) and subordinated
debt, effective on the date such
consideration is received; and
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
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For the month ending November 30, 2002 and
each month ending thereafter: $600,000, plus
75% of the total consideration received by
Borrower after February 1, 2002, in
consideration for the issuance by Borrower
of its equity securities (exclusive of the
exercise of employee stock options and the
Future Digital Investors Infusion) and
subordinated debt, effective on the date
such consideration is received."
4. FEE. In consideration for Silicon entering into this Amendment,
Borrower shall concurrently pay Silicon a fee in the amount of $7,500, which
shall be non-refundable and in addition to all interest and other fees payable
to Silicon under the Loan Documents. Silicon is authorized to charge said fee to
Borrower's loan account.
5. REPRESENTATIONS TRUE. Borrower represents and warrants to Silicon
that all representations and warranties set forth in the Loan Agreement, as
amended hereby, are true and correct.
6. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and Borrower, and the
other written documents and agreements between Silicon and Borrower 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, all of the terms and provisions of
the Loan Agreement, and all other documents and agreements between Silicon and
Borrower shall continue in full force and effect and the same are hereby
ratified and confirmed.
BORROWER: SILICON:
VISEON, INC. SILICON VALLEY BANK
BY BY
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PRESIDENT OR VICE PRESIDENT TITLE
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BY
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SECRETARY OR ASS'T SECRETARY
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SILICON VALLEY BANK
LIMITED WAIVER AND
AMENDMENT TO LOAN DOCUMENTS
(EXIM PROGRAM)
BORROWER: VISEON, INC.
DATE: MARCH 26, 2002
THIS LIMITED WAIVER AND AMENDMENT TO LOAN DOCUMENTS (EXIM PROGRAM) is
entered into between Silicon Valley Bank ("Silicon") and the borrower named
above ("Borrower").
The Parties agree to amend the Loan and Security Agreement (Exim
Program) between them, dated December 5, 2001 (as otherwise amended, if at all,
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. WAIVER OF DEFAULT. Silicon and Borrower agree that the Borrower's
existing default under the Loan Agreement due to the Borrower's failure to
comply with the Minimum Tangible Net Worth Financial Covenant set forth in
Non-Exim Agreement for the reporting period ending January 31, 2002 is hereby
waived. It is understood by the parties hereto, however, that such waiver does
not constitute a waiver of any other provision or term of the Loan Agreement or
any related document, nor an agreement to waive in the future this covenant or
any other provision or term of the Loan Agreement or any related document.
2. REPRESENTATIONS TRUE. Borrower represents and warrants to Silicon
that all representations and warranties set forth in the Loan Agreement, as
amended hereby, are true and correct.
3. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and Borrower, and the
other written documents and agreements between Silicon and Borrower 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, all of the terms and provisions of
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
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the Loan Agreement, and all other documents and agreements between Silicon and
Borrower shall continue in full force and effect and the same are hereby
ratified and confirmed.
BORROWER: SILICON:
VISEON, INC. SILICON VALLEY BANK
BY BY
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PRESIDENT OR VICE PRESIDENT TITLE
-------------------------------
BY
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SECRETARY OR ASS'T SECRETARY
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