Exhibit 4.1
FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This Amendment, dated as of June 12, 2003, is made by and between Ramtron
International Corporation, a Delaware corporation, Enhanced Memory Systems,
Inc., a Delaware corporation, and Mushkin Inc., a Colorado corporation (the
"Borrowers"), and Xxxxx Fargo Business Credit, Inc., a Minnesota corporation
(the "Lender").
Recitals
The Borrowers and the Lender are parties to a Credit and Security Agreement
dated as of March 31, 2003 (the "Credit Agreement"). Capitalized terms used
in these recitals have the meanings given to them in the Credit Agreement
unless otherwise specified.
The Borrowers have requested that certain amendments be made to the Credit
Agreement, which the Lender is willing to make pursuant to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, it is agreed as follows:
1. Defined Terms. Capitalized terms used in this Amendment which are
defined in the Credit Agreement shall have the same meanings as defined
therein, unless otherwise defined herein.
2. Minimum Interest Charge. Section 2.4(b) of the Credit Agreement is
hereby modified to read in its entirety as follows:
"(b) Minimum Interest Charge. Notwithstanding the interest payable
pursuant to Subsection (a), the Borrowers shall pay to the Lender
interest of not less than $25,000 per calendar quarter (the "Minimum
Interest Charge") during the term of this Agreement, prorated for
periods less than one calendar quarter, and the Borrowers shall pay any
deficiency between the Minimum Interest Charge and the amount of
interest otherwise calculated under Subsection (a) on the first day of
each calendar quarter and on the Termination Date."
3. No Other Changes. Except as explicitly amended by this Amendment, all
of the terms and conditions of the Credit Agreement shall remain in full
force and effect and shall apply to any advance or letter of credit
thereunder.
4. Waiver of Defaults. The Borrowers are in default of Section 6.2(a) of
the Credit Agreement as of April 30, 2003 (the "Existing Default"). Upon
the terms and subject to the conditions set forth in this Amendment, the
Lender hereby waives the Existing Default. This waiver shall be
effective only in this specific instance and for the specific purpose
for which it is given, and this waiver shall not entitle the Borrowers
to any other or further waiver in any similar or other circumstances.
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5. Conditions Precedent. This Amendment, including the waiver set forth in
Paragraph 4 hereof, shall be effective when the Lender shall have
received an executed original hereof, together with such other matters
as the Lender may require.
6. Representations and Warranties. The Borrowers hereby represent and
warrant to the Lender as follows:
(a) Each Borrower has all requisite power and authority to execute this
Amendment and to perform all of its obligations hereunder, and this
Amendment has been duly executed and delivered by such Borrower and
constitutes the legal, valid and binding obligation of such
Borrower, enforceable in accordance with its terms.
(b) The execution, delivery and performance by each Borrower of this
Amendment have been duly authorized by all necessary corporate
action and do not (i) require any authorization, consent or
approval by any governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, (ii) violate any
provision of any law, rule or regulation or of any order, writ,
injunction or decree presently in effect, having applicability to
such Borrower, or the articles of incorporation or by-laws of such
Borrower, or (iii) result in a breach of or constitute a default
under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which such Borrower is a party or
by which it or its properties may be bound or affected.
(c) All of the representations and warranties contained in Article V of
the Credit Agreement are correct on and as of the date hereof as
though made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date.
7. No Other Waiver. Except as set forth in Paragraph 4 hereof, the
execution of this Amendment and acceptance of any documents related
hereto shall not be deemed to be a waiver of any Default or Event of
Default under the Credit Agreement or breach, default or event of
default under any Security Document or other document held by the
Lender, whether or not known to the Lender and whether or not existing
on the date of this Amendment.
8. Release. Each Borrower hereby absolutely and unconditionally releases
and forever discharges the Lender, and any and all participants, parent
corporations, subsidiary corporations, affiliated corporations,
insurers, indemnitors, successors and assigns thereof, together with all
of the present and former directors, officers, agents and employees of
any of the foregoing, from any and all claims, demands or causes of
action of any kind, nature or description, whether arising in law or
equity or upon contract or tort or under any state or federal law or
otherwise, which such Borrower has had, now has or has made claim to
have against any such person for or by reason of any act, omission,
matter, cause or thing whatsoever arising from the beginning of time to
and including the date of this Amendment, whether such claims, demands
and causes of action are matured or unmatured or known or unknown.
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9. Costs and Expenses. Each Borrower hereby reaffirms its agreement under
the Credit Agreement to pay or reimburse the Lender on demand for all
costs and expenses incurred by the Lender in connection with the Loan
Documents, including without limitation all reasonable fees and
disbursements of legal counsel. Without limiting the generality of the
foregoing, each Borrower specifically agrees to pay all fees and
disbursements of counsel to the Lender for the services performed by
such counsel in connection with the preparation of this Amendment and
the documents and instruments incidental hereto. Each Borrower hereby
agrees that the Lender may, at any time or from time to time in its sole
discretion and without further authorization by such Borrower, make a
loan to such Borrower under the Credit Agreement, or apply the proceeds
of any loan, for the purpose of paying any such fees, disbursements,
costs and expenses.
10. Miscellaneous. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be
deemed an original and all of which counterparts, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first written above.
XXXXX FARGO BUSINESS CREDIT, INC.
By: /S/ Xxxxx Xxxxxx
-----------------------------
Xxxxx Xxxxxx
Its: Vice President
RAMTRON INTERNATIONAL CORPORATION
By: /S/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx
Its: Chief Executive Officer
-------------------------
ENHANCED MEMORY SYSTEMS, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx
Its: Chief Executive Officer
MUSHKIN INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx
Its: Chief Executive Officer
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