exv10w1






Exhibit 10.1




Amendment No. 1 to Loan and Security Agreement





			
	Borrower:	 	Mindspeed Technologies, Inc.






			
	Address:	 	4000 MacArthur Blvd., East Tower

Newport Beach, CA 92660





     THIS AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is dated as of March 2, 2009,
by and between SILICON VALLEY BANK, a California corporation (“Bank”) and MINDSPEED TECHNOLOGIES,
INC., a Delaware corporation (“Borrower”).



Recitals




     A. Bank and Borrower have entered into that certain Loan and Security Agreement dated as of
September 30, 2008 (the “Loan Agreement”).



     B. Bank has extended credit to Borrower for the purposes permitted in the Loan Agreement.



     C. Bank and Borrower desire to modify the Loan Agreement as set forth herein, subject, in all
respects, to the terms and conditions hereof.



Agreement




     Now, Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to
be legally bound, the parties hereto agree as follows:



1. Definitions. Capitalized terms used but not defined in this Amendment shall have the meanings
given to them in the Loan Agreement.




2. Modifications to Loan Agreement. Unless otherwise specifically set forth below, the following
modifications to the Loan Agreement shall be deemed effective as of the date hereof.




     2.1 Section 6.8 Compliance Period. The period of ninety days from the Effective Date for
compliance with the covenant set forth in Section 6.8(a) as originally set forth in the Loan
Agreement is hereby extended to March 15, 2009.



     2.2 Revised Section 6.9. Section 6.9 of the Loan Agreement that now reads as follows:




“6.9 Financial Covenants.



 









 






Borrower shall maintain on a consolidated basis with respect to Borrower and
its Subsidiaries, a Tangible Net Worth of at least $12,500,000 (the “Minimum
Tangible Net Worth”), to be tested as of the last day of each fiscal
quarter, commencing with the fiscal quarter ending October 3, 2008, which
Minimum Tangible Net Worth shall increase by:




(i) by 50% of Net Income on a quarterly basis commencing with Net
Income in the quarter ending after October 3, 2008 and continuing with
respect to each fiscal quarter thereafter, and




(ii) by 50% of issuances of equity and 50% of the principal amount of
Subordinated Debt, issued after October 3, 2008, effective on the date of
such issuances, other than for issuances of Subordinated Debt the proceeds
of which are used to refinance outstanding Subordinated Debt substantially
concurrently with the issuance thereof, up to the amount of the original
principal amount the Subordinated Debt being so replaced.”



IS HEREBY AMENDED TO READ AS FOLLOWS:





“6.9 Financial Covenant.




Borrower shall maintain on a consolidated basis with respect to Borrower and
its Subsidiaries, a Tangible Net Worth of at least $7,500,000 (the “Minimum
Tangible Net Worth”), to be tested as of the last day of each fiscal
quarter, commencing with the fiscal quarter ending April 3, 2009, which
Minimum Tangible Net Worth shall increase by:




(i) by 50% of Net Income on a quarterly basis commencing with Net Income in
the quarter ending after April 3, 2009 and continuing with respect to each
fiscal quarter thereafter, and




(ii) by 50% of issuances of equity and 50% of the principal amount of
Subordinated Debt, issued after April 3, 2009, effective on the date of such
issuances, other than for issuances of Subordinated Debt the proceeds of
which are used to refinance outstanding Subordinated Debt substantially
concurrently with the issuance thereof, up to the amount of the original
principal amount of the Subordinated Debt being so replaced.”



     2.3 Revised Section 7.1(f). Section 7.1(f) of the Loan Agreement that now reads as follows:




“(f) Transfers consisting of patents of Borrower that are not material to
the business of Borrower.”



IS HEREBY AMENDED TO READ AS FOLLOWS:





“(f) Transfers consisting of (i) patents of Borrower that are not material
to the business of Borrower and (ii) patents of Borrower that are material
to the business of Borrower as long as, in connection therewith, Borrower



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receives from any and all transferees thereof, irrevocable, perpetual, and
transferable licenses that permit Borrower to continue to use such patents
in the conduct and operation of its business in the ordinary course.”



     2.4 Permitted Location of Certain Collateral. Notwithstanding the terms and provisions of the
Loan Agreement, including, without limitation, the restrictive provisions of Section 7.2(3)(B),
Borrower is hereby permitted to transfer, on a one-time basis only, test equipment of Borrower
having a maximum fair market value of $700,000 from the Jazz Semiconductor facility located in
Newport Beach, California to the ASE facility in the country of Malaysia. The consent of Bank to
such transfer does not otherwise constitute a waiver or modification of any term or provision of
the Loan Agreement other than as specifically set forth herein as to the above-described
transaction and to no other.



     2.5 Revised Section 7.7. Section 7.7 of the Loan Agreement that now reads as follows:




“7.7 Distributions; Investments. (a) Pay any dividends or make any
distribution or payment or redeem, retire or purchase any capital stock
provided that (i) Borrower may pay dividends solely in common stock; and
(ii) Borrower may repurchase the stock of former employees or consultants
pursuant to restricted stock vesting plans or as part of the payment by such
employees or consultants for stock options exercised by them; or (b)
directly or indirectly make any Investment other than Permitted Investments,
or permit any of its Subsidiaries to do so.”



IS HEREBY AMENDED TO READ AS FOLLOWS:





“7.7 Distributions; Investments. (a) Pay any dividends or make any
distribution or payment or redeem, retire or purchase any capital stock
provided that (i) Borrower may pay dividends solely in common stock; (ii)
Borrower may repurchase the stock of former employees or consultants
pursuant to restricted stock vesting plans or as part of the payment by such
employees or consultants for stock options exercised by them; and (iii)
Borrower may permit executive officers to tender vested shares of restricted
stock in an aggregate amount of fair market value (measured by the closing
price of such shares on the date of vesting) not to exceed $250,000 in any
fiscal year in connection with the satisfaction of withholding tax liability
of such officers relating thereto; or (b) directly or indirectly make any
Investment other than Permitted Investments, or permit any of its
Subsidiaries to do so.”



3. Limitation of Amendments.




     3.1 The consents and amendments set forth in this Amendment are effective for the purposes set
forth herein and shall be limited precisely as written and shall not be deemed to (a) be a consent
to any amendment, waiver or modification of any other term or condition of any



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Loan Document, or (b) otherwise prejudice any right or remedy which Bank may now have or may
have in the future under or in connection with any Loan Document.



     3.2 This Amendment shall be construed in connection with and as part of the Loan Documents and
all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan
Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full
force and effect.


4. Representations and Warranties. To induce Bank to enter into this Amendment, Borrower hereby
represents and warrants to Bank as follows:




     4.1 Immediately after giving effect to this Amendment (a) 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 in all material respects as of such date), and (b) no Event of
Default has occurred and is continuing;



     4.2 Borrower has the power and authority to execute and deliver this Amendment and to perform
its obligations under the Loan Agreement, as amended by this Amendment;



     4.3 The organizational documents of Borrower previously delivered to Bank remain true,
accurate and complete and have not been amended, supplemented or restated and are and continue to
be in full force and effect;



     4.4 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;



     4.5 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, do not and will not
contravene (a) any law or regulation binding on or affecting Borrower, (b) any contractual
restriction with a Person binding on Borrower, (c) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding on Borrower, or
(d) the organizational documents of Borrower;



     4.6 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, do not require any
order, consent, approval, license, authorization or validation of, or filing, recording or
registration with, or exemption by any governmental or public body or authority, or subdivision
thereof, binding on either Borrower, except as already has been obtained or made; and



     4.7 This Amendment has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower 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.



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5. Fee. Borrower shall pay to Bank a fully earned, non-refundable amendment fee of $7,500 in
connection herewith which is payable concurrently herewith. Such fee is in addition to interest
and all other fees, expenses, costs and other amounts payable under the Loan Agreement or other
Loan Documents, and is not refundable.



6. Bank Expenses. Borrower agrees to reimburse Bank for all its reasonable costs and expenses
(including reasonable attorneys’ fees) incurred in connection with this Amendment. Bank is
authorized to charge said fees, costs and expenses to Borrower’s loan account or any of Borrower’s
deposit accounts maintained with Bank.



7. Counterparts. This Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same instrument.



[Remainder of Page Blank; Signature Page Follows]




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     In Witness Whereof, the parties hereto have caused this Amendment to be duly executed
and delivered as of the date first written above.



	 	 	 	 	 	 	 	 	 
	BANK	 	 	 	BORROWER
	 
	 	 	 	 	 	 	 	 
	SILICON VALLEY BANK	 	 	 	MINDSPEED TECHNOLOGIES, INC.
	 
	 	 	 	 	 	 	 	 
	By:  

	 	/s/ Kurt Miklinski
	 	 	 	By: 
	 	 /s/ Bret W. Johnsen
	 

	 	 
	 	 	 	 	 	 
	Name:  

	 	Kurt Miklinski
	 	 	 	Name:  
	 	Bret W. Johnsen
	Title:  

	 	Vice President
	 	 	 	Title:
	 	Senior Vice President, Chief Financial 

Officer and Treasurer






[Signature Page to Amendment to Loan and Security Agreement dated as of March 2, 2009]





 









 








Consent by Guarantors




     Each of the undersigned parties is a guarantor under a Continuing Guaranty in favor of Silicon
Valley Bank with respect to the indebtedness and obligations of MINDSPEED TECHNOLOGIES, INC. and
hereby consents to the terms and conditions set forth in the foregoing Amendment and further hereby
expressly acknowledges and agrees that the Guaranty and each of the other loan documents to which
it is a party remain in full force and effect.



	 	 	 	 	 	 	 
	 	 	Guarantor Signature:	 	 
	 
	 	 	 	 	 	 
	 	 	Maker Communications, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ Bret W. Johnsen
 

Bret W. Johnsen
	 	 
	 

	 	Title:
	 	President & Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	Guarantor Signature:	 	 
	 
	 	 	 	 	 	 
	 	 	Mindspeed Development Sub, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ Bret W. Johnsen
 

Bret W. Johnsen
	 	 
	 

	 	Title:
	 	Treasurer and Assistant Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	Guarantor Signature:	 	 
	 
	 	 	 	 	 	 
	 	 	Mindspeed Technologies, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By

Name:
	 	/s/ Bret W. Johnsen
 

Bret W. Johnsen
	 	 
	 

	 	Title:
	 	Manager