Oregon | 0-26844 | 93-0945232 |
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
5435 NE Dawson Creek Drive | |
Hillsboro, Oregon | 97124 |
(Address of Principal Executive Offices) | (Zip Code) |
[ ] | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
[ ] | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 204.14a-12) |
[ ] | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d- 2(b)) |
[ ] | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Exhibit Number | Description |
10.1 | Amendment No. 1, dated as of December 22, 2011, to Amended and Restated Loan and Security Agreement, dated November 1, 2011, between Radisys and Silicon Valley Bank. |
RADISYS CORPORATION | ||||
Date: | December 22, 2011 | By: | /s/ Brian Bronson | |
Brian Bronson | ||||
President and Chief Financial Officer |
Exhibit Number | Description |
10.1 | Amendment No. 1, dated as of December 22, 2011, to Amended and Restated Loan and Security Agreement, dated November 1, 2011, between Radisys and Silicon Valley Bank. |
A. | Borrower and Bank have entered into that certain Amended and Restated Loan and Security Agreement dated as of November 1, 2011 (as may be 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 desires (a) Bank's consent under Section 7.9 of the Loan Agreement to permit Borrower to repurchase early up to $11,500,000 of its debt outstanding under the 2013 Indenture at a discount of approximately 3% of the amount of such debt (the “One Time Early Debt Repurchase”) and (b) that Bank amend the Loan Agreement, in each case upon the terms and conditions more fully set forth herein. |
C. | 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 amendment and consent contained herein. |
1. | Amendments to the Loan Agreement. |
1.1 | Section 6.7(b) (Maximum Capital Expenditures). 6.7(b) of the Loan Agreement is amended and restated in its entirety and replaced with the following: |
“(b) | Maximum Capital Expenditures. Capital Expenditures not in excess of $20,000,000 in the aggregate for the period January 1, 2011, to December 31, 2012, and not in excess of $8,000,000 in any other fiscal year. Any Capital Expenditures financed by purchase money security interest financing or financial leases to the extent permitted by Section 7.4 shall not count towards such $20,000,000 or $8,000,000 cap, as applicable.” |
1.2 | Exhibit F (Compliance Certificate). Exhibit F of the Loan Agreement is amended and restated in its entirety and replaced with Exhibit F attached hereto. Exhibit A and Exhibit F are the only attachments to this Amendment. |
2. | Consent to the One Time Early Debt Repurchase. So long as (a) no Event of Default has occurred and is continuing and no Default or Event of Default occurs or will occur on account of the One Time Early Debt Repurchase (other than an Event of Default under Section 7.9) and (b) the One Time Early Debt Repurchase is consummated on or before March 31, 2012, Bank hereby consents to the One Time Early Debt Repurchase. |
3. | Borrower's Representations And Warranties. Borrower represents and warrants that: |
(a) | immediately upon giving effect to this Amendment (i) 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 (ii) no Event of Default has occurred and is continuing; |
(b) | Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment; |
(c) | the certificate of incorporation, bylaws and other 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; |
(d) | 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 by all necessary corporate action on the part of Borrower; |
(e) | this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it 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; and |
(f) | as of the date hereof, it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with such Borrower in connection with this Amendment and in connection with the Loan Documents. |
4. | Limitation. The amendments set forth in Section 1 and the consent set forth in Section 2 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 consent 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. |
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 | Reaffirmation of Guaranty. Continuous Computing shall have duly executed and delivered a Reaffirmation of Guaranty substantially in the form of Exhibit A; 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 Clara County, California. |
Borrower: | RadiSys Corporation |
Bank: | Silicon Valley Bank |
WHEREAS, | Guarantor executed and delivered to SVB an Unconditional Secured Guaranty dated as of August 8, 2011 (the “Guaranty”) with respect to the obligations of RadiSys Corporation, an Oregon corporation (“Borrower”), under that certain Amended and Restated Loan and Security Agreement dated as of November 1, 2011 (the “Loan Agreement”), by and between Borrower and SVB; and |
WHEREAS, | Borrower and SVB are amending the Loan and Security Agreement pursuant to that certain Amended No. 1 to Amended and Restated Loan and Security Agreement and Consent dated as of the date hereof (the “Amendment”). |
1. | Capitalized Terms. Unless otherwise defined in this Reaffirmation of Unconditional Secured Guaranty, all capitalized terms shall have the meaning given to them in the Guaranty or, if not specified there, the Amendment. |
2. | Reaffirmation of Guaranty. Guarantor has reviewed the Amendment. Guarantor hereby ratifies and reaffirms its obligations under the Guaranty and agrees that none of the amendments or modifications to the Loan Agreement or the consent, in each case as set forth in the Amendment, shall impair such Guarantor's obligations under the Guaranty or SVB's rights under the Guaranty. |
3. | Continuing Effect and Absence of Defenses. Guarantor acknowledges that the Guaranty is still in full force and effect and that Guarantor has no defenses, other than actual payment of the guaranteed obligations, to enforcement of the Guaranty. Guarantor waives any and all defenses to enforcement of the Guaranty that might otherwise be available as a result of the consent or the amendment of the Loan Agreement. |
CONTINUOUS COMPUTING CORPORATION, a Delaware corporation By: Name: Title: |
Please indicate compliance status by circling Yes/No under “Complies” column. | |||||||||
Reporting Covenant | Required | Complies | |||||||
Quarterly consolidating financial statements | Quarterly within 45 days | Yes No | |||||||
Annual financial statement | FYE unaudited and audited within 90 days | Yes No | |||||||
10‑Q, 10‑K and 8-K + CC | Within 5 days after filing with SEC, but, (i) in case of 10-Qs, no later than within 45 days of the last day of the first three fiscal quarter ends of each fiscal year, and (2) in case of 10-Ks, no later than within 90 days of the last day of each fiscal year | Yes No | |||||||
Borrowing Base Certificate A/R & A/P Agings + Deferred Revenue report | If Advances exceed (or, if on a Funding Date Advances will exceed) the Threshold Amount, monthly within 30 days and within five (5) days prior to each Funding Date | Yes No | |||||||
Material Litigation | Prompt | Yes* No | |||||||
Annual board approved financial projections | Annually within 60 days of fiscal year end | Yes No | |||||||
*If yes, attached is a summary of the Material Litigation not previously disclosed by Borrower or any of its Subsidiaries. | |||||||||
Financial Covenant | Required | Actual | Complies | ||||||
Maintain as indicated: | |||||||||
Minimum Two Quarters' EBITDA (as of the last day of each fiscal quarter, two rolling quarters) | Quarter Ending Minimum EBITDA (two quarters then ending) | $_______ | Yes No | ||||||
December 31, 2011 | $ | (8,500,000 | ) | ||||||
March 31, 2012 | $ | (2,100,000 | ) | ||||||
June 30, 2012 | $ | (500,000 | ) | ||||||
September 30, 2012 | $ | 2,000,000 | |||||||
December 31, 2012 and thereafter | $ | 3,000,000 | |||||||
Minimum Quarterly EBITDA | For fiscal quarter ending September 30, 2011: (8,300,000) | $_______ | Yes No | ||||||
Maximum Capital Expenditures | Not in excess of $20,000,000 in the aggregate for the period January 1, 2011, to December 31, 2012, and not in excess of $8,000,000 in any other fiscal year. ** | $_______ | Yes** No | ||||||
Liquidity (at all times, tested quarterly) | Not less than 1.25:1.00 | ____: 1.00 | Yes No |
Test | Actual | Required | |
BBC Required (Section 6.2(b)) | Obligations > $20,000,000 | $________ | Yes No |
RADISYS CORPORATION By: Name: Title: | BANK USE ONLY Received by: _____________________ authorized signer Date: _________________________ Verified: ________________________ authorized signer Date: _________________________ Compliance Status:Yes No |
Required: | For the quarter ending September 30, 2011, EBITDA greater than $(8,300,000) and for each two-quarter period set forth below, the minimum EBITDA set forth below opposite each such period. |
Two Quarters Ending | Minimum EBITDA (two quarters then ending) | ||
December 31, 2011 | $ | (8,500,000 | ) |
March 31, 2012 | $ | (2,100,000 | ) |
June 30, 2012 | $ | (500,000 | ) |
September 30, 2012 | $ | 2,000,000 | |
December 31, 2012 and thereafter | $ | 3,000,000 |
A. | Net Income | $ |
B. | To the extent included in the determination of Net Income | |
1.Interest Expense | $ | |
2.Income tax expense | $ | |
3.Depreciation expense | $ | |
4.Amortization expense | $ | |
5.Non-cash stock based compensation expenses | $ | |
6.Non-cash restructuring and integration expenses related to the acquisition of Continuous Computing | $ | |
7.Non-cash impairment charges on goodwill as required by FAS 142 fair value testing related to intangible assets acquired through the acquisition of Continuous Computing | $ | |
8.The sum of lines B.1 through B.7 | $ | |
C. | EBITDA (line A plus line B.8) | $ |
Required: | Not in excess of $20,000,000 in the aggregate for the period January 1, 2011, to December 31, 2012, and not in excess of $8,000,000 in any other fiscal year. Any Capital Expenditures financed by purchase money security interest financing or financial leases to the extent permitted by Section 7.4 shall not count towards such $20,000,000 or $8,000,000 cap, as applicable. |
A. | Aggregate amount of Capital Expenditures | $ |
B. | Amount of Capital Expenditures financed by purchase money security interest financing or financial leases to the extent permitted by Section 7.4 of the Loan Agreement | $ |
C. | Line A minus line B | $ |
Required: | At all times when there are outstanding Obligations on account of Advances or Letters of Credit, Liquidity not less than 1.25:1.00. |
A. | Borrower's unrestricted cash, unrestricted Cash Equivalents, and unrestricted short term marketable securities held with Financial Institutions in the United States of America | $ |
B. | Borrower's Foreign Subsidiaries' unrestricted cash and unrestricted Cash Equivalents held with Financial Institutions (up to a maximum of $10,000,000) | $ |
C. | Eligible Accounts | $ |
D. | Sum of lines A through C | $ |
E. | Sum of all outstanding Obligations on account of Advances or Letters of Credit | $ |
F. | Line D divided by line E |