TENTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT AND NOTICE OF DEFAULTS
Exhibit 10.40
TENTH AMENDMENT
TO
AND NOTICE OF DEFAULTS
This Tenth Amendment to Credit and Security Agreement and Notice of Defaults (this “Amendment”), dated as of January 2, 2008, is made by and between CORSAIR MEMORY, INC., a California corporation (the “Borrower”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION (the “Lender”), acting through its Xxxxx Fargo Business Credit operating division.
Recitals
The Borrower and Xxxxx Fargo Business Credit, Inc. (“WFBCI”) are parties to a Credit and Security Agreement, dated as of June 10, 2003, as amended by that certain First Amendment to Credit and Security Agreement, dated as of August 13, 2003, that certain Second Amendment to Credit and Security Agreement, dated as of November 10, 2003, that certain Third Amendment to Credit and Security Agreement, dated as of April 1, 2004, that certain Fourth Amendment to Credit and Security Agreement, dated as of July 31, 2004, that certain Fifth Amendment to Credit and Security Agreement, dated as of December 9, 2004, that certain Sixth Amendment to Credit and Security Agreement, dated as of March 21, 2005, that certain Seventh Amendment to Credit and Security Agreement, dated as of May 27, 2005, that certain Eighth Amendment to Credit and Security Agreement, dated as of March 13, 2006, and that certain Ninth Amendment to Credit and Security Agreement and Waiver of Defaults, dated as of October 16, 2006 (as so amended, the “Credit Agreement”).
WFBCI has merged with and into the Lender and the Lender is the surviving corporation.
On November 28, 2007, the Lender notified the Borrower in writing of certain Events of Default that had occurred and were continuing on such date (the “Existing Defaults”), and that pursuant to Section 2.12(d) of the Credit Agreement, the principal of the Advances outstanding from time to time shall bear interest at 2/3 of the Default Rate (that is, an annual interest rate equal to two percent (2.0%) over the Floating Rate, which interest rate shall change when and as the Floating Rate changes), effective as of July 1, 2007.
In addition to the Existing Defaults, the Borrower is now also in default of the following provision of the Credit Agreement (the “Additional Default”):
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Section/Covenant
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Required Performance
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Actual Performance
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| Section 6.2(d) – Maximum |
The Borrower will not incur or contract to incur unfinanced Capital Expenditures of more than $1,500,000 in the aggregate during any fiscal year. | $1,672,000 as of November 30, 2007 during the fiscal year ending December 31, 2007 |
The Existing Defaults and the Additional Default are sometimes collectively referred to herein as the “Subject Defaults”.
The Borrower and the Lender desire to make further amendments to the Credit Agreement in accordance with the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained, it is agreed as follows:
1. Defined Terms.
(a) 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.
(b) In addition, Section 1.1 of the Credit Agreement is amended by amending the following definition as follows:
“Foreign Accounts Eligibility Period” means the period ending June 30, 2008.
2. No Other Changes. All of the terms and conditions of the Credit Agreement and the Loan Documents as amended by this Amendment shall remain in full force and effect.
3. Notice of Defaults. The Borrower hereby acknowledges the existence of the Subject Defaults and that each Subject Default constitutes a separate Event of Default under the Credit Agreement. The Lender does not hereby waive the Subject Defaults. Pursuant to Section 2.12(d) of the Credit Agreement, the principal of the Advances outstanding from time to time shall continue to bear interest at 2/3 of the Default Rate (that is, an annual interest rate equal to two percent (2.0%) over the Floating Rate, which interest rate shall change when and as the Floating Rate changes). Although the Lender is not presently exercising all of its rights and remedies available upon an Event of Default, it reserves the right to do so at any time in its sole discretion, including its right to charge interest at the full Default Rate from the beginning of the Default Period.
4. Conditions Precedent. This Amendment shall be effective when the Lender shall have received an executed original hereof, together with each of the following, each in substance and form acceptable to the Lender in its sole discretion:
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(a) The Acknowledgement and Agreement of Guarantor attached to this Amendment, duly executed by the Guarantor.
(b) The Acknowledgment and Agreement of the Subordinated Creditors attached to this Amendment, duly executed by each Subordinated Creditor.
(c) Such other matters as the Lender may require.
5. Representations and Warranties. The Borrower hereby represents and warrants to the Lender as follows:
(a) The 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 the Borrower and constitute the legal, valid and binding obligations of the Borrower, enforceable in accordance with its terms.
(b) The execution, delivery and performance by the 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 the Borrower, or the articles of incorporation or by-laws of the 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 the 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.
6. References. All references in the Credit Agreement to “this Agreement” shall be deemed to refer to the Credit Agreement as amended hereby; and any and all references in the Security Documents to the Credit Agreement shall be deemed to refer to the Credit Agreement as amended hereby.
7. No Waiver. The execution of this Amendment and the acceptance of all other agreements and instruments related hereto shall not be deemed to be a waiver of any Default or Event of Default under the Credit Agreement or a waiver of any 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. The Borrower, the Guarantor by signing the Acknowledgment and Agreement of Guarantor set forth below, and the Subordinated Creditors by signing the Acknowledgment and Agreement of Subordinated Creditors set forth below, 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
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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 the Borrower, the Guarantor or each Subordinated Creditor 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. It is the intention of the Borrower, the Guarantor and each Subordinated Creditor in providing this release that the same shall be effective as a bar to each and every claim, demand and cause of action specified, and in furtherance of this intention it waives and relinquishes all rights and benefits under Section 1542 of the Civil Code of the State of California, which provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MIGHT HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
9. Costs and Expenses. The 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, the 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. The Borrower hereby agrees that the Lender may, at any time or from time to time in its sole discretion and without further authorization by the Borrower, make a loan to the 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, the Acknowledgement and Agreement of Guarantor, and the Acknowledgment and Agreement of Subordinated Creditors 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first written above.
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, acting through its XXXXX FARGO BUSINESS CREDIT operating division | ||
| By | /s/ Edit Kondorosi | |
| Name: | Edit Kondorosi | |
| Title: | Vice President | |
| CORSAIR MEMORY, INC. | ||
| By | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | President and Chief Executive Officer | |
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Tenth Amendment To Credit And Security Agreement
And Notice Of Defaults
ACKNOWLEDGMENT AND AGREEMENT OF GUARANTOR
The undersigned, a guarantor of the indebtedness of Corsair Memory, Inc. (the “Borrower”) to Xxxxx Fargo Bank, National Association (the “Lender”), acting through its Xxxxx Fargo Business Credit operating division, successor-by-merger to Xxxxx Fargo Business Credit, Inc., pursuant to a Guaranty, dated as of June 10, 2003 (as amended from time to time, the “Guaranty”), hereby (i) acknowledges receipt of the foregoing Tenth Amendment to Credit and Security Agreement and Notice of Defaults, dated as of January 2, 2008 (the “Amendment”); (ii) consents to the terms (including without limitation the release set forth in Paragraph 8 of the Amendment) and execution thereof; (iii) reaffirms his obligations to the Lender pursuant to the terms of his Guaranty; and (iv) acknowledges that the Lender may amend, restate, extend, renew or otherwise modify the Credit Agreement and any indebtedness or agreement of the Borrower, or enter into any agreement or extend additional or other credit accommodations, without notifying or obtaining the consent of the undersigned and without impairing the liability of the undersigned under his Guaranty for all of the Borrower’s present and future indebtedness to the Lender.
Dated as of January 2, 2008
| /s/ Xxxxxx X. Xxxx |
| Xxxxxx X. Xxxx, an individual |
Acknowledgement and Agreement of Guarantor
Tenth Amendment To Credit And Security Agreement
And Notice Of Defaults
ACKNOWLEDGMENT AND AGREEMENT OF SUBORDINATED CREDITORS
The undersigned, each a subordinated creditor of Corsair Memory, Inc. (the “Borrower”) to Xxxxx Fargo Bank, National Association (the “Lender”), acting through its Xxxxx Fargo Business Credit operating division, successor-by-merger to Xxxxx Fargo Business Credit, Inc., pursuant to a Subordination Agreement, dated as of June 10, 2003 (each, a “Subordination Agreement”), hereby (i) acknowledges receipt of the foregoing Tenth Amendment to Credit and Security Agreement and Notice of Defaults, dated as of January 2, 2008 (the “Amendment”); (ii) consents to the terms (including without limitation the release set forth in Paragraph 8 of the Amendment) and execution thereof; (iii) reaffirms his obligations to the Lender pursuant to the terms of his Subordination Agreement; and (iv) acknowledges that the Lender may amend, restate, extend, renew or otherwise modify the Loan Documents and any indebtedness or agreement of the Borrower, or enter into any agreement or extend additional or other credit accommodations, without notifying or obtaining the consent of the undersigned and without impairing the obligations of the undersigned under his Subordination Agreement.
Dated as of January 2, 2008
| /s/ Xxxxxx X. Xxxx |
| Xxxxxx X. Xxxx, an individual |
| /s/ Xxxx X. Xxxxxxx |
| Xxxx X. Xxxxxxx, an individual |
| /s/ Xxx Xxxxxxxxx |
| Xxx Xxxxxxxxx, an individual |
Acknowledgement and Agreement of Subordinated Creditors
Tenth Amendment To Credit And Security Agreement
And Notice Of Defaults
