Exhibit 4.1
THIRD AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This Amendment, dated as of June 28, 2004, 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. Consolidated Minimum Book Net Worth. Section 6.2(a) is amended to
read in its entirety as follows:
"(a) Consolidated Minimum Book Net Worth. Ramtron on a consolidated
basis will maintain, as of each date described below, their Book Net
Worth (excluding the effects of any non-cash charges resulting from the
amendment of its debenture agreements, including changes in the debt
payment schedule and a reduction in the strike price of warrants held
by Infineon Technologies AG, Xxxxxxxx Capital Corp., and Halifax Fund,
L.P.) at an amount not less than the amount set forth opposite such
date:
Date Minimum Book Net Worth
---------------------- ----------------------
May 31, 2004 $11,800,000
June 30, 2004 $12,000,000
July 31, 2004 $12,000,000
August 31, 2004 $12,300,000
September 30, 2004 $12,500,000
October 31, 2004 $12,700,000
November 30, 2004 $12,900,000
December 31, 2004
and the last day of
each month thereafter $13,000,000"
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3. Consolidated Minimum Net Income. Section 6.2(b) is amended to read in
its entirety as follows:
"(b) Consolidated Minimum Net Income. Ramtron on a consolidated basis
will achieve as of each date set forth below, fiscal year-to-date Net
Income (excluding the effects of any non-cash charges resulting from
the amendment of its debenture agreements, including changes in the
debt payment schedule and a reduction in the strike price of warrants
held by Infineon Technologies AG, Xxxxxxxx Capital Corp., and Halifax
Fund, L.P.) of not less than the amount set forth opposite such date:
Date Minimum YTD Net Income
---------------------- ----------------------
June 30, 2004 $1,000,000
September 30, 2004 $1,500,000
December 31, 2004 $2,000,000"
4. Individual Minimum Book Net Worth. Section 6.2(d) is amended to read
in its entirety as follows:
"(d) Individual Minimum Book Net Worth. Each Borrower (other than EMS)
will maintain, as of the last day of each month, Book Net Worth
(excluding the effects of any non-cash charges resulting from the
amendment of Ramtron's debenture agreements, including changes in
the debt payment schedule and a reduction in the strike price of
warrants held by Infineon Technologies AG, Xxxxxxxx Capital Corp.,
and Halifax Fund, L.P.) in the amount set forth opposite such
Borrower in the table below:
Borrower Minimum Book Net Worth
---------------------- ----------------------
Ramtron $12,000,000
Mushkin $3,600,000"
5. Capital Expenditures. Section 6.2(e) is amended to read in its entirety
as follows:
"(e) Capital Expenditures. Ramtron on a consolidated basis will not
incur or contract to incur Capital Expenditures of more than
$1,000,000 in the aggregate during its fiscal year ending
December 31, 2004."
6. Financial Covenant Reset. Section 6.2(f) is amended to read in its
entirety as follows:
"(f) Financial Covenant Reset. On or before December 31, 2004, the
Borrower and the Lender shall agree on new covenant levels for the
Financial Covenants for periods after that date, but if the
Borrower and the Lender do not agree, the Lender may designate the
required amounts in its reasonable discretion, and failure by
the Borrower to maintain the designated amounts shall constitute
an Event of Default hereunder."
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7. Investments. Section 6.6(f) is amended to read in its entirety as
follows:
"(f) so long as (i) no Default Period then exists or would exist
immediately after giving effect to such loan or contribution or as
a result thereof, (ii) the representations set forth in Section
5.18 are true with respect to Ramtron both before and immediately
after such loan or contribution, (iii) Ramtron has maintained
average daily Available Cash of at least $2,000,000 for the 90
days prior to making such loan or contribution, and (iv) Ramtron
would have Available Cash of at least $2,000,000 after giving
effect to such loan or contribution, Ramtron may make equity
contributions to EMS not to exceed $1,500,000 in the aggregate
during the fiscal year ending December 31, 2004 and loans to EMS
in a principal amount outstanding at any given time not to exceed
the difference of (A) $1,500,000 and (B) the amount of equity
contributions made to EMS by Ramtron during the fiscal year ending
December 31, 2004."
8. 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.
9. Conditions Precedent. This Amendment shall be effective when the Lender
shall have received an executed original hereof, together with such
other matters as the Lender may require.
10. 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.
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(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.
11. No Waiver. 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.
12. 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.
13. 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.
14. 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.
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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 BUSINESS CREDIT, INC.
By: /S/ Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxx X. Xxxxxx
Its: Vice President
---------------------------
RAMTRON INTERNATIONAL CORPORATION
By: /S/ XxXxx X. Xxxxxx
--------------------------
XxXxx X. Xxxxxx
Its: Chief Financial Officer
-------------------------
ENHANCED MEMORY SYSTEMS, INC.
By: /S/ XxXxx X. Xxxxxx
--------------------------
XxXxx X. Xxxxxx
Its: Chief Financial Officer
-------------------------
MUSHKIN INC.
By: /S/ XxXxx X. Xxxxxx
--------------------------
XxXxx X. Xxxxxx
Its: Chief Financial Officer
-------------------------
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