Exhibit 10.50
THIRD Amendment to AMENDED AND RESTATED Loan and Security Agreement
THIS THIRD AMENDMENT to the Amended and Restated Loan and Security Agreement
(this "Amendment") is entered into this 29th day of December 2006, by and
between Silicon Valley Bank ("Bank") and Ramtron International Corporation, a
Delaware corporation ("Borrower") whose address is 0000 Xxxxxxx Xxxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000.
Recitals
A. Bank and Borrower have entered into that certain Amended and Restated
Loan and Security Agreement dated as of September 14, 2005, as amended by
that certain Loan Modification Agreement by and between Bank and Borrower
dated as of December 30, 2005, and further amended by that certain Second
Amendment to Loan and Security Agreement by and between Bank and Borrower
dated as of May 15, 2006 (as the same may from time to time be further
amended, modified, supplemented or restated the "Loan Agreement").
B. Bank has extended credit to Borrower for the purposes permitted in the
Loan Agreement.
C. Borrower has requested that Bank amend the Loan Agreement to (i) remove
the Maximum Capital Expenditure allowance of $1,300,000 for the trailing
twelve (12) month basis, (ii) remove the covenant that limits investments in
Goal Semiconductor Inc., and (iii) modify or clarify the Debt Service
Coverage Covenant.
D. Bank has agreed to so amend certain provisions of the Loan Agreement, but
only to the extent, in accordance with the terms, subject to the conditions
and in reliance upon the representations and warranties set forth below.
Agreement
Now, Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meanings given to them in the Loan Agreement.
2. Amendments to Loan Agreement.
2.1 Section 7.10 (Capital Expenditures). Section 7.10 of the Amended
and Restated Loan and Security Agreement is deleted in its entirety.
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2.2 Section 13.1 (Definitions). Section 13.1 of the Amended and
Restated Loan and Security Agreement is amended by deleting in its
entirety, the definition of "EBITDA" and replacing it with the
following definition:
"EBITDA" is, with respect to the Borrower and its Subsidiaries for
the trailing twelve months period ending on the date of computation,
thereof, the sum of, without duplication 1) net income (exclusive of
any extraordinary gains or losses or any non cash gains or losses
including the expensing of stock options), 2) interest expense, 3)
taxes on income, 4) amortization, and 5) depreciation, all
determined on a consolidated basis in accordance with GAAP.
2.3 Section 3.1 (Definitions). Section 3.1 of the Loan Modification
Agreement is amended by deleting in its entirety, the definition of
"Debt Service" and replacing it with the following definition:
"Debt Service" means, as of the last day of each fiscal quarter of
Borrower and its Subsidiaries on a consolidated basis, principal due
within twelve (12) months after such day, and interest on
Indebtedness for the current fiscal quarter calculated on an
annualized basis.
2.4 Section 3.3(d) (Debt Service Coverage Ratio). The definition of
Debt Service Coverage Ratio as defined Section 3.3(d) of the Loan
Modification Agreement is amended as follows, provided that the
following definition shall be effective only from and after
November 30, 2006:
"Debt Service Coverage Ratio" means EBITDA divided by (/) Debt
Service, as these terms are defined in Sections 2.2 and 2.3 of this
Amendment.
2.5 Section 4 (Investments in Goal Semiconductor Inc.). Section 4 of
the Loan Modification Agreement is deleted in its entirety, along
with the proviso regarding Goal Semiconductor Inc. contained in
Section 7.6 of Amended and Restated Loan and Security Agreement.
3. Limitation of Amendments.
3.1 The amendments set forth in Section 2 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.
3.2 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.
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4. Representations and Warranties. To induce Bank to enter into this
Amendment, Borrower hereby represents and warrants to Bank as follows:
4.1 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;
4.2 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;
4.3 The organizational documents of Borrower delivered to Bank on
September 14, 2005 remain true, accurate and complete and have not
been amended, supplemented or restated and are and continue to be in
full force and effect;
4.4 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;
4.5 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;
4.6 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
4.7 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.
5. 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.
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6. 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 amendment fee in an amount equal to $5,000.00,
and (c) Bank's receipt of the Guaranty of Ramtron Canada, substantially in
the form submitted with this Amendment, duly executed and delivered by the
Guarantor.
In Witness Whereof, the parties hereto have caused this Amendment to be duly
executed and delivered as of the date first written above.
BANK BORROWER
Silicon Valley Bank Ramtron International Corporation
/s/ Xxxxx Xxxxxx /s/ Xxxx X. Xxxxxx
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Xxxxx Xxxxxx Xxxx X. Xxxxxx
Title: Relationship Manager Title: CFO
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