exv10w31






 




    Exhibit 10.31



 




    Limited
    Waiver Agreement



 



    Borrower:        I-Flow
    Corporation



 


		
	    Address:          	
    20202 Windrow Drive





    Lake Forest, California 92630



 



    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/  James
    R. Talevich


    
President
    or Chief Financial Officer



	
 
	
    By /s/  Robert Anderson


    
Title
    Senior Relationship Manager









    

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