SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
EXHIBIT
99.1
SECOND
AMENDMENT
TO
THIS SECOND AMENDMENT to Loan and
Security Agreement (this “Amendment”) is entered
into this 10th day of
May 2010 by and between Silicon Valley Bank (“Bank”) and OCZ Technology Group,
Inc., a Delaware corporation (“Borrower”) whose address is 0000 Xxx Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000.
Recitals
A. Bank
and Borrower have entered into that certain Loan and Security Agreement dated as
of July 6, 2009, as amended by that certain Letter Agreement dated as of July 6,
2009 and that certain Amendment to Loan and Security Agreement dated as of
August 14, 2009 (as amended to date, and 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, as herein set forth, and Bank
has agreed to the same, but only to the extent, in accordance with the terms,
subject to the conditions and in reliance upon the representations and
warranties set forth herein.
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 Modified Aggregate Outstanding
Obligations. The sentence in Section 2.1.1(b) of the Loan Agreement
that currently reads as follows:
In the
event Borrower enters into a factoring facility with Faunus Group International,
Inc. or another factor satisfactory to Bank, in Bank’s sole discretion, with
respect to Borrower’s Foreign Accounts (the “Foreign Accounts Facility”), then
the Borrower covenants and agrees that the amount of obligations outstanding
under this Agreement and the Foreign Accounts Facility shall not at any time
exceed $14,000,000 in the aggregate.
is hereby
amended to read as follows:
Borrower
entered into a factoring facility with Faunus Group International, Inc. (“FGI”),
pursuant to that certain Sale of Accounts and Security Agreement dated July 6,
2009 by and between Borrower and FGI, with respect to Borrower’s Foreign
Accounts (the “Foreign Accounts Facility”), and Borrower covenants and agrees
that the amount of obligations outstanding under this Agreement and the Foreign
Accounts Facility shall not at any time exceed $17,500,000 in the
aggregate.
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.
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 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;
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 (a) contravene any material Requirement of Law,
(b) constitute an event of default under any material agreement by which
Borrower is bound, (c) contravene any order, judgment or decree of any
Governmental Authority binding on Borrower, or (d) conflict with 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 Authority binding on 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.
6. Effectiveness. This
Amendment shall be deemed effective upon (a) the due execution and delivery to
Bank of this Amendment by each party hereto and (b) Borrower’s payment of
an amendment fee in an amount equal to $1,000.
In Witness
Whereof, the parties hereto have caused this Amendment to be duly
executed and delivered as of the date first written above.
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BANK
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BORROWER
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Silicon
Valley Bank
By:
/s/
Xxx Xxxxx
Name: Xxx
Xxxxx
Title: Managing
Director
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OCZ
Technology Group, Inc.
By:
/s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title: CFO
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