Attached files

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EXCEL - IDEA: XBRL DOCUMENT - RAMTRON INTERNATIONAL CORPFinancial_Report.xls
10-Q/A - FORM 10-Q AMENDMENT NO. 1 - RAMTRON INTERNATIONAL CORPd227429d10qa.htm
EX-31.1 - SECTION 302 CEO CERTIFICATION - RAMTRON INTERNATIONAL CORPd227429dex311.htm
EX-31.2 - SECTION 302 CFO CERTIFICATION - RAMTRON INTERNATIONAL CORPd227429dex312.htm
EX-32.1 - SECTION 906 CEO CERTIFICATION - RAMTRON INTERNATIONAL CORPd227429dex321.htm
EX-32.2 - SECTION 906 CFO CERTIFICATION - RAMTRON INTERNATIONAL CORPd227429dex322.htm
EX-10.75 - SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT - RAMTRON INTERNATIONAL CORPd227429dex1075.htm
EX-10.76 - FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (EX-IM LOAN FACILITY) - RAMTRON INTERNATIONAL CORPd227429dex1076.htm

Exhibit 10.74

SIXTH AMENDMENT

TO

LOAN AND SECURITY AGREEMENT

This SIXTH AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into this 6th day of September, 2011, by and between SILICON VALLEY BANK (“Bank”) and RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation (“Borrower”), whose address is 1850 Ramtron Drive, Colorado Springs, Colorado 80921.

RECITALS

A. Bank and Borrower have entered into that certain Amended and Restated Loan and Security Agreement dated as of August 18, 2009, as amended by that certain First Amendment to Loan and Security Agreement dated as of February 26, 2010, as amended by that certain Second Amendment to Loan and Security Agreement dated as of June 28, 2010, as amended by that certain Third Amendment to Loan and Security Agreement dated as of October 19, 2010, as amended by that certain Fourth Amendment to Loan and Security Agreement dated as of March 2, 2011, as amended by that certain Waiver and Fifth Amendment to Loan and Security Agreement dated as of June 30, 2011 (as the same may from time to time be amended, modified, supplemented or restated, the “Loan Agreement”). Bank has extended credit to Borrower for the purposes permitted in the Loan Agreement.

B. Borrower has requested that Bank allow Streamline Reporting again pursuant to the Loan Agreement. Bank is willing to allow Streamline Reporting, so long as Borrower complies with the terms, covenants and conditions set forth in this Amendment.

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. Amendments to Loan Agreement.

2.1 Streamline Reporting. In accordance with the terms set forth in the Loan Agreement, Streamline Reporting shall be available for Borrower from and after the date of this Amendment.

2.2 Compliance Certificate. The Compliance Certificate of Borrower is replaced with the Compliance Certificate attached to this Amendment.

3. Limitation of Amendments.

3.1 The amendments set forth in Section 3, above, 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 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 as of such date), and (b) no Event of Default other than the Existing Defaults 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 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;

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 by all necessary action on the part of Borrower;

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. Prior Agreement. Except as expressly provided for in this Amendment, the Loan Documents are hereby ratified and reaffirmed and shall remain in full force and effect. This Amendment is not a novation and the terms and conditions of this Amendment shall be in addition to and supplemental to all terms and conditions set forth in the Loan Documents. In the event of any conflict or inconsistency between this Amendment and the terms of such documents, the terms of this Amendment shall be controlling, but such document shall not otherwise be affected or the rights therein impaired.

6. Integration. This Amendment and the Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of this Amendment and the Loan Documents merge into this Amendment and the Loan Documents.

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.

8. Effectiveness. This Amendment shall be deemed effective upon the due execution and delivery to Bank of this Amendment by each party hereto, delivery of the attached acknowledgements executed by the Guarantor, and payment of all legal expenses of Bank related to this Amendment.

9. Governing Law. This Amendment and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of California. Section 11 of the Loan Agreement applies to this Amendment as if set forth herein.

[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     Ramtron International Corporation
By:  

/s/ Chris Ennis

    By:  

/s/ Mark R. Kent

Name:  

Chris Ennis

    Name:  

Mark R. Kent

Title:  

Relationship Manager

    Title:  

Chief Financial Officer


EXHIBIT B - COMPLIANCE CERTIFICATE

 

TO:   SILICON VALLEY BANK    Date:                             
FROM:   RAMTRON INTERNATIONAL CORPORATION   

The undersigned authorized officer of Ramtron International Corporation (“Borrower”) certifies that under the terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for the period ending                      with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement.

Please indicate compliance status by circling Yes/No under “Complies” column.

 

Reporting Covenant

  

Required

  

Complies

Monthly financial statements with Compliance Certificate

  

Monthly within 30 days

   Yes  No

Annual financial statement (CPA Audited) + CC

  

FYE within 150 days

   Yes  No

10-Q, 10-K and 8-K

  

Within 5 days after filing with SEC

   Yes  No

A/R & A/P Agings

  

Monthly within 20 days

   Yes  No

Budgets/Projections

  

Within 30 days after FYE

   Yes  No

Ten Percent of Eligible A/R Invoices

  

Quarterly within 20 days

  

Is Borrower on Streamline Reporting Yes/No

The following Intellectual Property was registered (or a registration application submitted) after the Effective Date (if no registrations, state “None”)

 

Financial Covenant

   Required    Actual    Complies

Maintain on a Monthly Basis:

        

Liquidity Ratio:

        

Minimum EBITDA:

        


The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate.

The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”)

 

 

 

 

 

 

 

 

RAMTRON INTERNATIONAL CORPORATION

By:

 

 

Name:  

 

Title:

 

 

BANK USE ONLY
Received by:  

 

  AUTHORIZED SIGNER
Date:  

 

Verified:  

 

  AUTHORIZED SIGNER
Date:  

 

Compliance Status:        Yes    No
 


Schedule 1

ACKNOWLEDGMENT OF AMENDMENT

AND REAFFIRMATION OF GUARANTY

Section 1. Guarantor hereby acknowledges and confirms that it has reviewed and approved the terms and conditions of the Sixth Amendment to Loan and Security Agreement dated as of even date herewith (the “Amendment”).

Section 2. Guarantor hereby consents to the Amendment and agrees that the Guaranty relating to the Obligations of Borrower under the Loan Agreement shall continue in full force and effect, shall be valid and enforceable and shall not be impaired or otherwise affected by the execution of the Amendment or any other document or instrument delivered in connection herewith.

Section 3. Guarantor represents and warrants that, after giving effect to the Amendment, all representations and warranties contained in the Guaranty are true, accurate and complete as if made the date hereof.

Dated as of September 6, 2011

 

GUARANTOR     Ramtron Canada Inc.
    By:  

/s/ Eric A. Balzer

    Name:  

Eric A. Balzer

    Title:  

CEO


Schedule 2

ACKNOWLEDGMENT OF AMENDMENT

AND REAFFIRMATION OF SECURITY AGREEMENT

Section 1. Pledgor hereby acknowledges and confirms that it has reviewed and approved the terms and conditions of the Sixth Amendment to Loan and Security Agreement dated as of even date herewith (the “Amendment”).

Section 2. Pledgor hereby consents to the Amendment and agrees that the Security Agreement securing the Obligations of Borrower under the Loan Agreement shall continue in full force and effect, shall be valid and enforceable and shall not be impaired or otherwise affected by the execution of the Amendment or any other document or instrument delivered in connection herewith.

Section 3. Pledgor represents and warrants that, after giving effect to the Amendment, all representations and warranties contained in the Security Agreement are true, accurate and complete as if made the date hereof.

Dated as of September 6, 2011

 

PLEDGOR     Ramtron Canada Inc.
    By:  

/s/ Eric A. Balzer

    Name:  

Eric A. Balzer

    Title:  

CEO