Exhibit 10.4
4th AMENDMENT
AND LIMITED WAIVER
TO
LOAN AND SECURITY
AGREEMENT
T HIS 4 TH A MENDMENT AND L IMITED W AIVER TO L OAN AND S ECURITY A GREEMENT (this “ Amendment ”)
is entered into this 27th of April, 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 is in default of the minimum EBITDA
covenant set forth in Section 6.7(b) for the period ending
March 31, 2009 (the “ Existing Default
”);
C. Borrower desires that Bank waive the Existing
Default and amend the Loan Agreement upon the terms and conditions
more fully set forth herein.
D. 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 limited waiver and
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. W AIVER . Subject to the terms of Section 5 below,
Bank hereby waives the Existing Default.
2. A MENDMENT . Subject to the terms of Section 5 below,
the definition of “EBITDA” in Section 13.1 of the
Loan Agreement is amended and restated in its entirety and replaced
with the following:
“ EBITDA ” shall
mean, for any period, (a) Net Income plus (b) to the
extent deducted in the calculation of Net Income, (i) Interest
Expense, (ii) income tax expense, and (iii) depreciation
and amortization plus (c) non-cash stock based compensation to
the extent reflected as a charge in the statement of Net Income for
such period; provided however, to the extent that the Borrower took
(1) an impairment charge on the goodwill as required by FAS
142 fair value testing for the fiscal quarter ending
December 31, 2008, such charge shall be added back to EBITDA
in an amount not to exceed $67,256,000 and (2) a FAS 109
Deferred Tax Asset write down for the fiscal quarter ending
March 31, 2009, such write down shall be added back to EBITDA
for such quarter in an amount not to exceed $39,172,475.
3. B ORROWER ’ S R EPRESENTATIONS A ND W ARRANTIES . 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 bindin
