Exhibit
10.37
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AND
SECURITY AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND
RESTATED CREDIT AND SECURITY AGREEMENT (the “
Amendment ”), dated April 13, 2009, is entered
into by and between RF MONOLITHICS, INC., a Delaware corporation
(the “ Borrower ”), and WELLS FARGO BANK,
NATIONAL ASSOCIATION (the “ Lender ”), acting
through its Wells Fargo Business Credit operating
division.
RECITALS
A. The Borrower and the Lender are
parties to a Credit and Security Agreement dated as of
August 29, 2007 (as amended from time to time, the “
Credit Agreement ”). Capitalized terms used in these
recitals have the meanings given to them in the Credit Agreement
unless otherwise specified.
B. The Borrower desires to refinance
the Real Estate and has requested that the Lender release, or
assign, its Lien on the Real Estate in connection with such
refinancing and amend certain provisions of the Credit Agreement to
acknowledge such refinancing, which the Lender is willing to do
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 .
(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) Section 1.1 of the Credit
Agreement is amended by adding, in appropriate alphabetical order,
the following definitions:
“ Real Estate ”
is defined in Section 5 of the First Amendment to this
Agreement.
“ Viewpoint Lien
” means Viewpoint Bank’s Lien on the Real Estate
evidenced by a Deed of Trust, dated April 13, 2009, or similar
instrument that does not extend to the Lender’s other
Collateral.
“ Viewpoint Loan
” means the $900,000 loan made by Viewpoint Bank to the
Borrower evidenced by a Promissory Note (Commercial Single
Advance), dated and funded on April 13, 2009, with the
principal to be paid in 59 consecutive monthly installments based
on a 180-month amortization and one final installment of the then
unpaid principal and interest.
2. Amendments .
(a) Section 6.3(a) of the Credit Agreement is amended
(i) by deleting the word “and” at the end of
clause (vii), (ii) by deleting the period at the end of clause
(viii) and inserting in lieu thereof “; and” and
(iii) by adding a new clause after clause (viii) reading
as follows:
“(ix) the Viewpoint
Lien.”
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(b) Section 6.4 of the Credit
Agreement is amended by (i) deleting the word,
“and” at the end of clause (f), (ii) by deleting
the period at the end of clause (g) and inserting in lieu
thereof “; and”, and (iii) by adding a new clause
after clause (g) reading as follows:
“(h) the Viewpoint
Loan.”
3. 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.
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:
(a) Receipt by the Lender of the
proceeds of the Viewpoint Loan, net of customary title insurance,
loan closing and related expenses, for application to the Term Note
and then to other Indebtedness in such order and manner as the
Lender elects.
(b) Such other matters as the Lender
may in its reasonable discretion 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 any other
agreements or instruments required hereunder and to perform all of
its obligations hereunder, and this Amendment and all such other
agreements and instruments has been duly executed and delivered by
the Borrower and constitute the legal, valid and binding obligation
of the Borrower, enforceable in accordance with its
terms.
(b) The execution, delivery and
performance by the Borrower of this Amendment and any other
agreements or instruments required hereunder 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 certificate of incorporation or bylaws 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 material agreement, lease or instrument to which the 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 s
