f10q3312010ex10-65.htm


    
      

    


    Exhibit
10.65

    


    FIRST
AMENDMENT

    TO

    LOAN
AND SECURITY AGREEMENT

    


    THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
(this “Amendment”)
is entered into this 26th day of February, 2010, 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 Loan and Security Agreement dated as of
August 18, 2009 (as the same may from time to time be further amended, modified,
supplemented or restated, the “Loan Agreement”).

     

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

     

    C.  Borrower has
requested that Bank amend the Loan Agreement to (i) amend the definition of
Eligible Accounts, (ii) amend the definition of Borrowing Base, and (iii) make
certain other revisions to the Loan Agreement as more fully set forth
herein.

     

    D.  Bank has agreed
to so amend certain provisions of the Loan Agreement, but only to the extent, in
accordance with the terms, subject to the conditions and in reliance upon the
representations and warranties set forth below.

     

    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  Section 6.14
(Foreign Accounts Credit
Insurance).  A new Section 6.14 is hereby added to the Loan
Agreement as follows:

     

    6.14  Foreign Accounts
Credit Insurance.  Borrower shall cause a foreign accounts
credit insurance policy covering Borrower’s foreign Accounts to be in effect
with an insurer with an S&P rating of at least “A” (or
equivalent).  In the event such insurer’s rating drops below such
rating, Borrower shall have sixty (60) days to replace such
insurer.  Bank shall be named as a loss payee on all such foreign
accounts credit insurance policies and Borrower shall notify Bank immediately of
any changes to the terms and conditions of such foreign accounts credit
insurance policy (and the insurer shall provide written confirmation to Bank of
its agreement to provide notice of such changes directly to
Bank).  Borrower shall deliver to Bank evidence of payment of all
premiums on all foreign accounts credit insurance policies at least thirty (30)
days prior to the due date for such premiums, and if Bank has not received
evidence of payment by such date, Bank shall have the right to make such payment
on behalf of Borrower (and such amounts shall become part of the
Obligations).


    
      
         


      

      
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    2.2  Event of Default
(Collateral Audit).  It shall be an Event of Default under the
Loan Agreement if a Collateral audit is not completed to the Bank’s satisfaction
within sixty (60) days of the date of this Amendment.

     

    2.3  Section 13
(Definitions).  The
following terms and their respective definitions set forth in Section 13.1 are amended in
their entirety and replaced with the following:

     

    “Borrowing Base” is (a) eighty
percent (80%) of Eligible Accounts plus (b) eighty-five percent (85%) of
Eligible Foreign Accounts up to a maximum amount of $3,400,000, as determined by
Bank from Borrower’s most recent Transaction Report; provided, however, that
Bank may decrease the foregoing amount and percentages in its good faith
business judgment based on events, conditions, contingencies, or risks which, as
determined by Bank, may adversely affect Collateral.

     

    “Eligible Accounts” means
Accounts which arise in the ordinary course of Borrower’s business that meet all
Borrower’s representations and warranties in Section 5.3.  Bank
reserves the right at any time after the Effective Date to adjust any of the
criteria set forth below and to establish new criteria in its good faith
business judgment.  Eligible Accounts shall not include:

     

    (a)  Accounts
that the Account Debtor has not paid within ninety (90) days of invoice date
regardless of invoice payment period terms;

     

    (b)  Accounts
owing from an Account Debtor, fifty percent (50%) or more of whose Accounts have
not been paid within ninety (90) days of invoice date;

     

    (c)  Accounts
billed in the United States and owing from an Account Debtor which does not have
its principal place of business in the United States or Canada unless such
Accounts are otherwise Eligible Accounts and (i) supported by letter(s) of
credit acceptable to Bank, (ii) supported by a guaranty from the Export-Import
Bank of the United States, or (iii) that Bank otherwise approves of in writing;
provided, that Accounts from Future Electronics will not be ineligible due to
this subsection;

     

    (d)  Accounts
billed and payable outside of the United States unless the Bank has a first
priority, perfected security interest or other enforceable Lien in such
Accounts;

     

    (e)  Accounts
owing from an Account Debtor to the extent that Borrower is indebted or
obligated in any manner to the Account Debtor (as creditor, lessor, supplier or
otherwise - sometimes called “contra” accounts, accounts payable, customer
deposits or credit accounts), with the exception of customary credits,
adjustments and/or discounts given to an Account Debtor by Borrower in the
ordinary course of its business;

     

    (f)  Accounts
for which the Account Debtor is Borrower’s Affiliate, officer, employee, or
agent;

     

    (g)  Accounts
with credit balances over ninety (90) days from invoice date;

     

    (h)  Accounts
owing from an Account Debtor, including Affiliates, whose total obligations to
Borrower exceed twenty-five (25%) of all Accounts, for the amounts that exceed
that percentage, unless Bank approves in writing;

     

    (i)  Accounts
owing from an Account Debtor which is a United States government entity or any
department, agency, or instrumentality thereof unless Borrower has assigned its
payment rights to Bank and the assignment has been acknowledged under the
Federal Assignment of Claims Act of 1940, as amended;

     

    (j)  Accounts
for demonstration or promotional equipment, or in which goods are consigned, or
sold on a “sale guaranteed”, “sale or return”, “sale on approval”, or other
terms if Account Debtor’s payment may be conditional;

     


    
      
         


      

      
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    (k)  Accounts
owing from an Account Debtor that has not been invoiced or where goods or
services have not yet been rendered to the Account Debtor (sometimes called memo
billings or pre-billings);

     

    (l)  Accounts
subject to contractual arrangements between Borrower and an Account Debtor where
payments shall be scheduled or due according to completion or fulfillment
requirements where the Account Debtor has a right of offset for damages suffered
as a result of Borrower’s failure to perform in accordance with the contract
(sometimes called contracts accounts receivable, progress billings, milestone
billings, or fulfillment contracts);

     

    (m)  Accounts
owing from an Account Debtor the amount of which may be subject to withholding
based on the Account Debtor’s satisfaction of Borrower’s complete performance
(but only to the extent of the amount withheld; sometimes called retainage
billings);

     

    (n)  Accounts
subject to trust provisions, subrogation rights of a bonding company, or a
statutory trust;

     

    (o)  Accounts
owing from an Account Debtor that has been invoiced for goods that have not been
shipped to the Account Debtor unless Bank, Borrower, and the Account Debtor have
entered into an agreement acceptable to Bank in its sole discretion wherein the
Account Debtor acknowledges that (i) it has title to and has ownership of the
goods wherever located, (ii) a bona fide sale of the goods has occurred, and
(iii) it owes payment for such goods in accordance with invoices from Borrower
(sometimes called “bill and hold” accounts);

     

    (p)  Accounts
owing from an Account Debtor with respect to which Borrower has received
Deferred Revenue (but only to the extent of such Deferred Revenue);

     

    (q)  Accounts
for which the Account Debtor has not been invoiced;

     

    (r)  Accounts
that represent non-trade receivables or that are derived by means other than in
the ordinary course of Borrower’s business;

     

    (s)  Accounts
for which Borrower has permitted Account Debtor’s payment to extend beyond 90
days;

     

    (t)  Accounts
subject to chargebacks or others payment deductions taken by an Account Debtor
(but only to the extent the chargeback is determined invalid and subsequently
collected by Borrower);

     

    (u)  Accounts
in which the Account Debtor disputes liability or makes any claim (but only up
to the disputed or claimed amount), or if the Account Debtor is subject to an
Insolvency Proceeding, or becomes insolvent, or goes out of business;
and

     

    (v)  Accounts
for which Bank in its good faith business judgment determines collection to be
doubtful.

     


    
      
         


      

      
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    “Eligible Foreign Accounts”
means Accounts that meet (a) all of the requirements of Eligible Accounts except
under subsection (c) of the definition of Eligible Accounts, (b) that are
covered by foreign credit insurance by an insurer with an S&P rating of at
least “A”, and (c) all of the requirements of Section
6.14.  Notwithstanding the foregoing, Eligible Foreign Accounts shall
not include any
Accounts (i) where the debtor is from a country that has a waiting period under
the foreign accounts credit insurance policy of greater than 120 days, or (ii)
that are in excess of the country limits, buyer limits, discretion credit limits
or any other limits or limitations placed upon such accounts or such buyers by
the insurer under the foreign accounts credit insurance policy (not taking into
account any modifications or waivers to such policy not approved by Bank in
writing).  Bank reserves the right at any time after the Effective
Date to adjust any of the criteria set forth above and to establish new criteria
in its good faith business judgment.  In no event shall any Account be
both an Eligible Account and an Eligible Foreign Account.

     

    “First Amendment” is that
certain First Amendment to Loan and Security Agreement between Borrower and Bank
dated as of February 26, 2010.

    


    “Transaction Report” is that
certain report of transactions and schedule of collections in the form attached
to the First Amendment as Exhibit A, which
shall include a list of all foreign account debtors, the country of all foreign
account debtors, the credit limit assigned to all foreign account debtors under
any foreign credit insurance, and the amount currently outstanding from such
foreign account debtors and the currency in which such accounts are
billed.

    


    3.  Limitation
of Amendments.

    


    3.1  The amendments
set forth in Section 2,
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 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;

     


    
      
         


      

      
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    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.

     

    5.  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.

     

    6.  Effectiveness.  This
Amendment shall be deemed effective upon (a) the due execution and delivery to
Bank of this Amendment by each party hereto, (b) Bank’s receipt of the
Acknowledgment of Amendment and Reaffirmation of Guaranty substantially in the
form attached hereto as Schedule 1, duly executed and delivered by each
Guarantor, (d) Bank’s receipt of the Acknowledgment of Amendment and
Reaffirmation of Security Agreement substantially in the form attached hereto as
Schedule 2, duly executed and delivered by each Pledgor.

     

    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

               

              By:  /s/ Kimberly A.
      Stover

              Name:  Kimberly
      A. Stover

              Title:  Relationship
      Manager

            	
               

              Ramtron
      International Corporation

               

              By:  /s/ Eric A.
      Balzer

              Name:  Eric
      A. Balzer

              Title:  Chief
      Financial Officer

            


    

    



    
      
         


      

      
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    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 First 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 February 26, 2010

     

    GUARANTOR

    


    Ramtron
Canada Inc.

    


    


    By:  /s/ Eric A.
Balzer

    Name:  Eric
A. Balzer

    Title:  Secretary


    
      
         


      

      
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    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 First 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 February 26, 2010

     

    PLEDGOR

    


    Ramtron
Canada Inc.

    


    


    By:  /s/ Eric A.
Balzer

    Name:  Eric
A. Balzer

    Title:  Secretary


    
      
         


      

      
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