exv10w22






Exhibit 10.22




AMENDMENT NO. 7

AND LIMITED WAIVER TO LOAN AND SECURITY AGREEMENT




     This Amendment No. 7 and Limited Waiver to Loan and Security Agreement (this
“Amendment”) is entered into this
17th day of November, 2009, by and among Rae Systems Inc.,
a Delaware corporation (“Borrower”), and Silicon Valley Bank (“Bank”). Capitalized
terms used herein without definition shall have the same meanings given them in the Loan Agreement
(as defined below).



Recitals




     A. Borrower (a) is in default under Section 6.8(c) of the Loan Agreement for failing to
maintain a trailing 2-quarter EBITDA of at least $(2,250,000) for the period from April 1, 2009
through September 30, 2009 (the “Existing Default”), and (b) desires that Bank (i) provide the
limited waiver of the Existing Default, and (ii) amend the Loan Agreement upon the terms and
conditions more fully set forth herein.



     B. Subject to the representations and warranties of Borrower herein and upon the terms and
conditions set forth in this Amendment, Bank is willing to provide the conditional limited waiver
contained herein and so amend the Loan Agreement.



AGREEMENT




     NOW, THEREFORE, in consideration of the foregoing Recitals and intending to be legally bound,
the parties hereto agree as follows:



     1. Events of Default and Limited Waiver. Borrower acknowledges that there exists
the Event of Default under Section 6.8(c) of the Loan Agreement due to the Existing
Default. Bank hereby agrees, subject to the terms of Section 5 hereof, to waive
the Existing Default.



     2. Amendments to Loan Agreement.



          2.1 Section 6.8 of the Loan Agreement. Section 6.8 of the Loan Agreement is amended and
restated in its entirety and replaced with the following:




          6.8 Financial Covenants.




          Borrower shall maintain at all times, unless otherwise noted, on a consolidated basis with
respect to Borrower and its Subsidiaries:




          (a) Quick Ratio. Tested as of the last day of each fiscal quarter, a ratio of Quick
Assets to Current Liabilities of at least 1.0 to 1.0. Furthermore, Borrower shall maintain at all
times, at least $2,000,000 of total cash in deposit accounts maintained in the name of Borrower in
the United States with Bank.




          (b) Trailing 2-Quarter minimum EBITDA. Maintain, measured as of the end of each
fiscal quarter during the following periods, EBITDA of at least the following:




 









 








	 	 	 	 	 
	Period	 	Minimum EBITDA	 
	July 1, 2009 through December 31, 2009
	 	$	(2,000,000	)
	October 1, 2009 through March 31, 2010
	 	$	(1,500,000	)
	January 1, 2010 through June 30, 2010
	 	$	(1,000,000	)






          2.2 Section 8.11 of the Loan Agreement is amended and restated in its entirety and replaced
with the following:




          8.11 Compliance. Borrower or any of its Subsidiaries (a) violates or fails to comply with the
Foreign Corrupt Practices Act and/or any related statutes and regulations and such violation or
failure results in either (i) the imposition of potential monetary penalties in excess of
$3,500,000 in the aggregate or material criminal sanctions, or (ii) debarment from doing business
resulting in a loss of $1,000,000 of revenue in the aggregate or (b) uses any Credit Extension for
the settlement or proposed settlement with respect to clause (a) above.




          2.3 Section 13 (Definitions). The following term and its definition is amended to read in
their entirety as follows:




          “EBITDA” shall mean (a) Net Income, plus to the extent deducted in the calculation of Net
Income, (b) interest expense, plus (c) depreciation expense and amortization expense, plus (d)
income tax expense, plus (e) non-cash stock compensation expense.




          2.4 Exhibit D, “Compliance Certificate” of the Loan Agreement is hereby amended by deleting it
in its entirety and replacing it with Exhibit A attached hereto.




     3. Borrower’s Representations And Warranties. Borrower represents and warrants that:



          (a) immediately upon giving effect to this Amendment, (i) 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 (ii) no Event of Default has occurred
and is continuing;



          (b) Borrower has the corporate 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 certificate of incorporation, bylaws and other organizational documents of Borrower
delivered to Bank on the Effective Date remain true, accurate and complete and have not been
amended, supplemented or restated and are and continue to be in full force and effect;



          (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 by all necessary corporate action on the part of Borrower;



2









 





          (e) this Amendment has been duly executed and delivered by the Borrower and is the binding
obligation of Borrower, enforceable against it 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; and



          (f) as of the date hereof, it has no defenses against the obligations to pay any amounts under
the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a
commercially reasonable manner its relationships with such Borrower in connection with this
Amendment and in connection with the Loan Documents.



          Borrower understands and acknowledges that Bank is entering into this Amendment in reliance
upon, and in partial consideration for, the above representations and warranties, and agrees that
such reliance is reasonable and appropriate.




     4. Limitation. The limited waiver and amendments set forth in this Amendment shall
be limited precisely as written and shall not be deemed (a) to be a forbearance, waiver or
modification of any other term or condition of the Loan Agreement or of any other instrument or
agreement referred to therein or to prejudice any right or remedy which Bank may now have or may
have in the future under or in connection with the Loan Agreement or any instrument or agreement
referred to therein; (b) to be a consent to any future amendment or modification, forbearance or
waiver to any instrument or agreement the execution and delivery of which is consented to hereby,
or to any waiver of any of the provisions thereof; or (c) to limit or impair Bank’s right to demand
strict performance of all terms and covenants as of any date. Except as expressly amended hereby,
the Loan Agreement shall continue in full force and effect.



     5. Effectiveness. This Amendment shall become effective upon the satisfaction of all
the following conditions precedent:



          5.1 Amendment. Borrower and Bank shall have duly executed and delivered this Amendment to
Bank;




          5.2 Payment of Loan Fee. Borrower shall have paid Bank a commitment fee of $5,000; and




          5.3 Payment of Bank Expenses. Borrower shall have paid all Bank Expenses (including all
reasonable attorneys’ fees and reasonable expenses) incurred through the date of this Amendment.




     6. Counterparts. This Amendment may be signed in any number of counterparts, and by
different parties hereto in separate counterparts, with the same effect as if the signatures to
each such counterpart were upon a single instrument. All counterparts shall be deemed an original
of this Amendment.



     7. Integration. This Amendment and any documents executed in connection herewith or
pursuant hereto contain the entire agreement between the parties with respect to the subject matter
hereof and supersede all prior agreements, understandings, offers and negotiations, oral or
written, with respect thereto and no extrinsic evidence whatsoever may be introduced in any
judicial or arbitration proceeding,



3









 




if any, involving this Amendment; except that any financing
statements or other agreements or instruments filed by Bank with respect to Borrower shall remain
in full force and effect.




     8. Governing Law; Venue. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. Borrower and Bank each submit to the exclusive jurisdiction of the State
and Federal courts in Santa Clara County, California.



     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date first written above.




	 	 	 	 	 	 	 	 	 	 	 
	Borrower:	 	 	 	Rae Systems Inc.

a Delaware corporation
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Randall K. Gausman
	 	 	 	 	 	 	 
	 	 	 	 	 	 	Printed Name: Randall K. Gausman
	 

	 	 	 	 	 	Title:	 	Chief Financial Officer
	 
	 	 	 	 	 	 	 	 	 	 
	Bank:	 	 	 	Silicon Valley Bank
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Tom Smith
	 	 	 	 	 	 	 
	 	 	 	 	 	 	Printed
Name: Tom Smith
	 

	 	 	 	 	 	Title:	 	Managing Director






4








 





EXHIBIT A




EXHIBIT D




COMPLIANCE CERTIFICATE




			
	 	 	 
	TO: SILICON VALLEY BANK
	 	Date:                                       
	FROM: RAE SYSTEMS INC.	 	 





The undersigned authorized officer of RAE Systems Inc. (“Borrower”) certifies that under the terms
and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1)
Borrower is in complete compliance for the period ending ______________with all required
covenants except as noted below, (2) there are no Events of Default, (3) all representations and
warranties in the Agreement are true and correct in all material respects on this date except as
noted below; provided, however, that such materiality qualifier shall not be applicable to any
representations and warranties that already are qualified or modified by materiality in the text
thereof; and provided, further that those representations and warranties expressly referring to a
specific date shall be true, accurate and complete in all material respects as of such date, (4)
Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and
Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and
contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9
of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its
Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously
provided written notification to Bank. Attached are the required documents supporting the
certification. The undersigned certifies that these are prepared in accordance with generally GAAP
consistently applied from one period to the next except as explained in an accompanying letter or
footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of
determination that Borrower is not in compliance with any of the terms of the Agreement, and that
compliance is determined not just at the date this certificate is delivered. Capitalized terms
used but not otherwise defined herein shall have the meanings given them in the Agreement.



Please indicate compliance status by circling Yes/No under “Complies” column.




	 	 	 	 	 
	Reporting Covenant	 	Required	 	Complies
	Quarterly financial statements (along with Borrower 

prepared consolidating financial statements) with 

Compliance Certificate

	 	Quarterly within earlier of 5 days of filing 10Q or 50 days of quarter end
	 	Yes     No
	Annual financial statement (CPA Audited) + CC

	 	within earlier of 5 days of
filing 10K or 90 days of FYE
	 	Yes     No
	8-K

	 	Within 5 days after filing
with SEC
	 	Yes     No
	Borrowing Base Certificate A/R & A/P Agings and
deferred revenue report

	 	within 30 days of each month
	 	Yes     No
	Projections

	 	Within 45 days of FYE
	 	Yes     No
	Cash balance report

	 	Within 30 days of end of month
	 	Yes     No






	 	 	 	 	 	 	 
	Financial Covenant	 	Required	 	Actual	 	Complies
	Maintain at all times:
	 	 	 	 	 	 
	Tested as of the last day of each fiscal
quarter, a Minimum Quick Ratio
Furthermore, Borrower shall maintain
at all times, at least $2,000,000 of total
cash in deposit accounts maintained in
the name of Borrower in the United States
with Bank.

	 	1.0:1.0
	 	______:1.0
	 	Yes     No
	Tested as of the end of each fiscal

	 	7/1/09-12/31/09 ($2,000,000)
	 	$________
	 	Yes     No
	quarter during the following

	 	10/1/09-3/31/10 ($1,500,000)	 	 	 	 
	periods, a trailing 2-quarter minimum 

EBITDA

	 	1/1/10-6/30/10 ($1,000,000)	 	 	 	 





 









 







     The following financial covenant analys[is][es] and information set forth in Schedule 1
attached hereto are true and accurate as of the date of this Certificate.



     The following are the exceptions with respect to the certification above: (If no exceptions
exist, state “No exceptions to note.”)



 





 





 







	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RAE SYSTEMS INC.	 	 	BANK USE ONLY
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	Received by:	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	AUTHORIZED SIGNER	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	Date:	 	 	 	 	 	 	 	 	 
	 

	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 	 	Verified:	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	AUTHORIZED SIGNER	 	 	 	 	 	 
	Title:

	 	 	 	Date:	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	Compliance Status:          Yes     No




















2









 






Schedule 1 to Compliance Certificate




Financial Covenants of Borrower




Dated: ____________________




I. Quick Ratio (Section 6.8(a))



Required: 1.00:1.00; Furthermore, Borrower shall maintain at all times, at least $2,000,000 of
total cash in deposit accounts maintained in the name of Borrower in the United States with Bank.




Actual:




	 	 	 	 	 
	A.

	 	Aggregate value of Borrower’s consolidated unrestricted cash and cash equivalents
	 	$                    
	 
	 	 	 	 
	B.

	 	Aggregate value of Borrower’s consolidated net billed accounts receivable
	 	$                    
	 
	 	 	 	 
	C.

	 	Aggregate value of Borrower’s consolidated short and long term investments
	 	$                    
	 
	 	 	 	 
	D.

	 	Quick Assets (the sum of lines A through C)
	 	$                    
	 
	 	 	 	 
	E.

	 	Aggregate value of Obligations to Bank
	 	$                    
	 
	 	 	 	 
	F.

	 	Aggregate value of Total Liabilities that mature within one year
	 	$                    
	 
	 	 	 	 
	G.

	 	Current Liabilities (the sum of lines E and F)
	 	$                    
	 
	 	 	 	 
	H.

	 	Quick Ratio (line D divided by line G)
	 	                
    






Is line H equal to or greater than 1.00:1:00?




           
                   
No, not in compliance                
                   
       Yes, in compliance



II. Trailing 2-Quarter Minimum EBITDA (Section 6.8(b))



Required: See chart below




	 	 	 	 	 
	Period	 	Minimum EBITDA
	July 1, 2009 through December 31, 2009
	 	$	(2,000,000	)
	October 1, 2009 through March 31, 2010
	 	$	(1,500,000	)
	January 1, 2010 through June 30, 2010
	 	$	(1,000,000	)






Actual:




	 	 	 	 	 
	A.
	 	Net Income	 	$                    
	 
	 	 	 	 
	B.
	 	To the extent included in the determination of Net Income	 	 






 









 






	 	 	 	 	 
	 

	 	1. The provision for income taxes
	 	$                    
	 
	 	 	 	 
	 

	 	2. Depreciation expense
	 	$                    
	 
	 	 	 	 
	 

	 	3. Amortization expense
	 	$                    
	 
	 	 	 	 
	 

	 	4. Net interest expense
	 	$                    
	 
	 	 	 	 
	 

	 	5. non-cash stock compensation expense.
	 	$                    
	 
	 	 	 	 
	 

	 	6. The sum of lines 1 through 5
	 	$                    






C. EBITDA (line A plus line B.6)




Is line C equal to or greater than the amounts referenced above?




                              
No, not in compliance                                          
Yes, in compliance





2