AMENDMENT NO. 4 AND LIMITED WAIVER TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 4 AND LIMITED WAIVER TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Amendment No. 4 and Limited Waiver to Amended and Restated Loan and Security Agreement (this “Amendment”) is entered into this 14th day of July, 2011, by and between OCZ Technology Group, 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 and Bank have entered into that certain Amended and Restated Loan and Security Agreement dated as of February 7, 2011 (as amended by the First Amendment and Limited Waiver to Amended and Restated Loan and Security Agreement dated as of March 28, 2011, Second Amendment to Amended and Restated Loan and Security Agreement dated as of April 21, 2011, and Third Amendment and Limited Waiver to Amended and Restated Loan and Security Agreement dated as of June 21, 2011 and as may be further amended, restated, or otherwise modified, the “Loan Agreement”), pursuant to which the Bank has extended and will make available to Borrower certain advances of money.
B. Borrower is currently in default of the Loan Agreement for failing to comply with the May 31, 2011 Minimum EBITDA Financial Covenant and wishes to amend and restate such covenant for future periods.
C. Borrower desires that Bank (a) waive the Existing Default (as defined below) and (b) amend the Loan Agreement upon the terms and conditions more fully set forth herein. 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 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. Event of Default and Limited Waiver. Borrower acknowledges that there exists an Event of Default under Sections 6.10(a) of the Loan Agreement for failing to comply with the May 31, 2011 Minimum EBITDA Financial Covenant (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 6.10(a) (Minimum EBITDA). Section 6.10(a) is amended and restated in its entirety, as follows:
“(a) Minimum EBITDA. For each fiscal quarter, EBITDA of not less than the amount set forth opposite such date in the table below.
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Fiscal Quarter Ending Date
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Minimum EBITDA
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August 31, 2011
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$ | (1,000,000 | ) | |
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November 30, 2011
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$ | 1 | ||
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February 29, 2012
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$ | 1,000,000 | ||
2.2 Exhibit B (Form of Compliance Certificate). Exhibit B to the Loan Agreement is hereby amended in its entirety by deleting it and replacing it with Exhibit A attached to this Amendment.
3. 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.
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 February 7, 2011 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;
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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 or except any filing, recording, or registration required by the Securities Exchange Act of 1934; 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. 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 Variance Fee. Borrower shall have paid Bank a Variance Fee in the amount 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, 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 Xxxxx County, California.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
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Borrower:
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OCZ TECHNOLOGY GROUP, INC.
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a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx, Xx.
Printed Name: Xxxxxx X. Xxxxx, Xx.
Title: CFO
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Bank:
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Silicon Valley Bank
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By: /s/ Xxx Xxxxx
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Printed Name: Xxx Xxxxx
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Title: Managing Director
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[AMENDMENT SIGNATURE PAGE]
