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Exhibit 10.08
SILICON VALLEY BANK
AMENDMENT TO LOAN AGREEMENT
BORROWER: INTERPORE INTERNATIONAL, INC. (SUCCESSOR BY MERGER TO
INTERPORE INTERNATIONAL)
ADDRESS: 000 XXXXXXXXXX XX.
XXXXXX, XXXXXXXXXX 00000
BORROWER: INTERPORE ORTHOPAEDICS, INC.
ADDRESS: 000 XXXXXXXXXX XX.
XXXXXX, XXXXXXXXXX 00000
BORROWER: CROSS MEDICAL PRODUCTS, INC.
ADDRESS: 000 XXXXXXXXXX XX.
XXXXXX, XXXXXXXXXX 00000
DATED: AUGUST 11, 1998
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrowers named above (jointly and severally, the
"Borrower"). Interpore International, Inc., a Delaware corporation, is the
surviving entity of the merger of Interpore International, the prior borrower
under the Loan Agreement (as defined below), with and into Interpore
International, Inc., a Delaware corporation. Further, Cross Medical Products,
Inc. was added as a borrower pursuant to an assumption agreement executed by
such entity in favor of Silicon Valley Bank.
The Parties agree to amend the Loan and Security Agreement between
them, dated October 24, 1990 (as amended from time to time, the "Loan
Agreement"), as follows. (Capitalized terms used but not defined in this
Amendment, shall have the meanings set forth in the Loan Agreement.)
1 MODIFIED SECTION 3.7. Section 3.7 of the Loan Agreement is hereby
amended in its entirety to read as follows:
"3.7 Financial Condition and Statements. All financial statements now
or in the future delivered to Silicon have been, and will be, prepared
in conformity with generally accepted accounting principles and now and
in the future will completely and accurately reflect the financial
condition of the Borrower, at the times and for the periods therein
stated. Since the last date covered by any such statement, there has
been no material adverse change in the financial condition or business
of the Borrower. The Borrower is now and will continue to be solvent.
The Borrower will provide Silicon: (i) within 10
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SILICON VALLEY BANK AMENDED SCHEDULE TO LOAN AND SECURITY AGREEMENT
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days after the earlier of the date the report 10-Q is filed or is
required to be filed with the Securities and Exchange Commission, such
10-Q report, a quarterly financial statement prepared by the Borrower,
and, for each quarter in which any Loans have been outstanding, a
Compliance Certificate signed by the Chief Financial Officer of the
Borrower, certifying that throughout such period the Borrower was in
full compliance with all of the terms and conditions of this Agreement,
and setting forth calculations showing compliance with the financial
covenants set forth on the Schedule and such other information as
Silicon shall reasonably request; (ii) within 10 days after the earlier
of the date the report 10-K is filed or is required to be filed with
the Securities and Exchange Commission, such 10-K report, and, if any
Loans have been outstanding during the quarter period then ending, a
Compliance Certificate for such period, signed by the Chief Financial
Officer of the Borrower, certifying that throughout such period the
Borrower was in full compliance with all of the terms and conditions of
this Agreement, and setting forth calculations showing compliance with
the financial covenants set forth on the Schedule and such other
information as Silicon shall reasonably request; and (iii) within 90
days following the end of the Borrower's fiscal year, complete annual
financial statements, certified by independent certified public
accountants acceptable to Silicon."
2. ASSUMPTION. Interpore International, Inc., a Delaware corporation,
as successor by merger to Interpore International, a California corporation,
hereby assumes and agrees to pay and perform when due all present and future
indebtedness, liabilities and obligations arising out of the Loan Agreement, the
Cross-Corporate Continuing Guaranty dated October 24, 1990 (the "Guaranty"), and
any and all documents, instruments and agreements relating thereto and, without
limitation of the foregoing, Interpore International, Inc. hereby grants to
Silicon a security interest in all now and existing and hereafter arising
Collateral to secure all Obligations. Further Cross Medical Products, Inc. is
hereby added as a borrower entity under the Guaranty and as a guarantor
thereunder, and agrees to and hereby undertakes the performance of all of the
waivers, consents and other provisions applicable to a guarantor thereunder as
set forth in the Guaranty; Cross Medical Products, Inc. hereby acknowledges that
it has received a copy of the Guaranty and has agreed to and reviewed all of the
provisions thereof.
3. CONDITIONS PRECEDENT TO LINE UTILIZATION. Without limitation of the
terms and conditions of the Loan Agreement regarding the making of Loans, the
following represent specific and additional conditions that are to be satisfied
prior to the making of any Loans hereunder or the issuance of any letters of
credit: (I) Each of Interpore International, Inc. and Cross Medical Products,
Inc. shall (A) execute and deliver to Silicon UCC-1 financing statements, UCC
amendment documentation and other agreements and documentation in order to
perfect the security interest of Silicon in the Collateral in light of the
assumption of the Loan Agreement obligations by each of such entity, (B) cause
to be delivered to Silicon UCC searches and such other lien and encumbrance
searches as Silicon determines are reasonably necessary or desirable in
connection with the foregoing UCC filings, which searches Silicon shall deem
acceptable, and (C) execute and deliver to Silicon such additional documentation
and agreements and take such additional actions as Silicon determines are
necessary or desirable in order to effectuate the purposes of the Loan Agreement
(the types of documentation referred to in (A), (B) and (C) above are
collectively referred to herein as the "Additional Collateral and Loan
Documentation"); and (II) Borrower agrees to cause any and all of its
subsidiaries and affiliates, now existing and hereafter arising (including,
without limitation, Interpore Cross International, Inc.), to execute and deliver
to Silicon such assumption agreements and other amending documentation to add
such entities as borrowers under the Loan Agreement and to cause such entities
to execute and deliver such Additional Collateral and Loan Documentation as
Silicon determines is necessary or desirable in connection therewith.
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SILICON VALLEY BANK AMENDED SCHEDULE TO LOAN AND SECURITY AGREEMENT
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4. FEE. Borrower shall pay to Silicon a facility fee in the amount of
0.5% of the amount of each Loan made under the Loan Agreement on or after the
date of this Amendment, until Borrower has paid Silicon an aggregate of $25,000
pursuant to the terms of this paragraph prior to July 5, 1999. Such fee shall be
due and payable at the time that Silicon makes any such Loan, with the
understanding that payment of such fee shall be a condition to the making of any
such Loan. Further, such fee shall be in addition to all interest and all other
fees payable to Silicon and shall be non-refundable.
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, and any
prior written amendments to the Loan Agreement signed by Silicon and the
Borrower, and the other written documents and between Silicon and the 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 the Borrower shall continue in full force and effect and the same
are hereby ratified and confirmed.
BORROWER : SILICON:
INTERPORE INTERNATIONAL, 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
INTERPORE ORTHOPAEDICS, INC.
By
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PRESIDENT OR VICE PRESIDENT
By
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SECRETARY OR ASS'T SECRETARY
CROSS MEDICAL PRODUCTS, INC.
By
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PRESIDENT OR VICE PRESIDENT
By
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SECRETARY OR ASS'T SECRETARY
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