Exhibit 10.45
THIRD AMENDMENT
TO
LOAN AND SECURITY
AGREEMENT
T HIS T HIRD A MENDMENT TO L OAN AND S ECURITY A GREEMENT (this “ Amendment ”)
is entered into this of February,
2009, by and among R ADI S YS C ORPORATION , an Oregon corporation (“
Borrower ”), and S
ILICON V ALLEY B ANK (“ Bank ”).
Capitalized terms used herein without definition shall have the
same meanings given them in the Loan Agreement (as defined
below).
R ECITALS
A. Borrower and Bank have entered into that certain
Loan and Security Agreement dated as of August 7, 2008 (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 that Bank amend the Loan
Agreement 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 contained
herein.
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing Recitals and intending to be legally bound, the
parties hereto agree as follows:
1. A MENDMENT TO S ECTION 2.1.3 OF THE L OAN A GREEMENT . Subject to the terms of Section 6 below,
Section 2.1.3 of the Loan Agreement is amended and restated in
its entirety and replaced with the following:
2.1.3 Foreign Exchange
Sublimit . As part of the
Revolving Line, Borrower or any of its Subsidiaries may enter into
foreign exchange contracts with Bank under which Borrower or any of
its Subsidiaries commits to purchase from or sell to Bank a
specific amount of Foreign Currency (each, a “ FX Forward
Contract ”) on a specified date (the “
Settlement Date ”). FX Forward Contracts shall have a
Settlement Date of at least one (1) FX Business Day after the
contract date and shall be subject to a reserve of ten percent
(10%) of each outstanding FX Forward Contract (the “
FX Reserve ”), the FX Reserve to be in a maximum
aggregate amount equal to the Sublimit Amount. The aggregate amount
of FX Forward Contracts at any one time may not exceed ten
(10) times the amount of the FX Reserve. The obligations of
Borrower and its Subsidiaries relating to this section may not
exceed the Availability Amount.
2. A MENDMENT TO S ECTION 8.9 OF THE L OAN A GREEMENT . Subject to the terms of Section 6 below,
Section 8.9 of the Loan Agreement is amended and restated in
its entirety and replaced with the following:
8.9 Other Debt
. A default or breach occurs under
(a) any agreement between Borrower and any creditor of
Borrower that signed a subordination, intercreditor, or other
similar agreement with Bank, or any creditor that has signed such
an agreement with Bank breaches any terms of such agreement,
(b) the 2013 Indenture or the 2023 Indenture or (c) any
foreign exchange contract between any of Borrower’s
Subsidiaries and the Bank; or
3. A MENDMENT TO D EFINITION OF “FX B USINESS D AY ”, “L OAN D OCUMENTS ” AND “O BLIGATIONS ” IN S ECTION 13.1 OF THE L OAN A GREEMENT . Subject to the terms of Section 5 below,
the definitions of “FX Business Day”, “Loan
Documents” and “Obligations” in Section 13.1
of the Loan Agreement are amended and restated in their entirety
and replaced with the following:
“ FX Business Day
” is any day when (a) Bank’s Foreign Exchange
Department is conducting its normal business and (b) the
Foreign Currency being purchased or sold by Borrower or any of its
Subsidiaries is available to Bank from the entity from which Bank
shall buy or sell such Foreign Currency.
“ Loan Documents
” are, collectively, this Agreement, the Disclosure Schedule,
the Perfection Certificate(s), any note, or notes or guaranties
executed by Borrower or any Guarantor, any foreign exchange
contracts entered into by Borrower’s Subsidiaries with Bank,
and any other present or future agreement between Borrower any
Guarantor (or Borrower’s Subsidiaries with respect to any
foreign exchange contracts) and/or for the benefit of Bank in
connection with this Agreement, all as amended, restated, or
otherwise modified.
“ Obligations ”
are Borrower’s and/or Guarantors’ (or Borrower’s
Subsidiaries with respect to any foreign exchange contracts with
Bank) obligation to pay when due any debts, principal, interest,
Bank Expenses and other amounts Borrower and/or Guarantors (or
Borrower’s Subsidiaries with respect to any foreign exchange
contracts with Bank) owe Bank now or later, whether under this
Agreement, the Loan Documents, or otherwise, including, without
limitation, all obligations relating to letters of credit, cash
management services, and foreign exchange contracts, if any, and
including interest accruing after Insolvency Proceedings begin and
debts, liabilities, or obligations of Borrower and/or Guarantor (or
Borrower’s Subsidiaries with respect to any foreign exchange
contracts with Bank) assigned to Bank, and the performance of
Borrower’s and/or Guarantors&r
