FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AGREEMENT is dated as of the 30th day of
April, 1999 (this "Amendment") by and between RAMTRON INTERNATIONAL
CORPORATION, a Delaware corporation ("Borrower"), and the NATIONAL
ELECTRICAL BENEFIT FUND (the "Lender").
WITNESETH
WHEREAS, the Borrower and the Lender are parties to that certain Loan
Agreement dated as of August 31, 1995, as amended by (1) that First Amendment
to Loan Agreement and other Loan Documents dated as of June 1, 1998, (ii) that
Second Amendment to Loan Agreement and other Loan Documents dated as of
September 29, 1998, (iii) the Third Amendment to Loan Agreement dated as
of December 14, 1998, (iv) the Fourth Amendment to Loan Agreement dated as of
February 26, 1999 (as so amended, the "Loan Agreement"); and
WHEREAS, the Borrower has requested the Lender to amend certain terms and
provisions of the Loan Agreement to provide for the extension of the scheduled
maturity date of the loans made thereunder and otherwise provide for the
modifications set forth herein; and
WHEREAS, the Lender has agreed to such amendments to the Loan Agreement,
subject to the terms and conditions hereof.
NOW THEREFORE, in consideration of the premises hereof and for other good and
valuable consideration the receipt and sufficiency of which are hereby
established, the Borrower and the Lender hereby agree as follows:
SECTION 1. Extension of Scheduled Maturity Date. The Loan Agreement shall be
deemed amended hereby by deeming the Scheduled Maturity Date thereunder to be
June 30, 1999.
SECTION 2. Representations and Warranties of Borrower. In order to induce
the Lender to enter into this Amendment, the Borrower hereby (i) reaffirms and
restates all those representations and warranties contained in the Loan
Agreement as fully as if set forth in full herein, and (ii) makes such
additional representations and warranties as follows:
2.1 Enforceability. This Amendment has been duly executed and delivered by
Borrower and all necessary corporate action has been taken by Borrower to duly
authorize the execution and delivery of this Amendment and the consummation of
the transactions contemplated hereby, and this Amendment, the Loan Agreement
(as amended hereby) and each other Loan Document constitutes the valid and
binding obligation of Borrower enforceable against Borrower in accordance with
its respective terms.
2.2 Authority. This Amendment, the execution and delivery hereof by Borrower
and the consummation of the transactions contemplated hereby, does not and
will not, subject to a change in applicable Requirements of Law, contravene
any provision of any Requirement of Law applicable to or binding upon
Borrower; the execution of this Amendment and the consummation of the
transactions contemplated hereby will not result in a breach of or institute a
default under any credit agreement, lease, indenture, mortgage, deed of trust,
purchase agreement, guaranty or other contractual obligation or instrument to
which borrower is currently a party or by which Borrower or any of its
representative assets is bound or affected.
2.3 Default. No Potential Default or Event of Default has occurred and is
continuing under the Loan Agreement or any of the other Loan Documents.
It is acknowledged and agreed that if any of the foregoing representations
shall prove to be incorrect in any material and adverse way, an Event of
Default shall be deemed to have occurred under the Loan Agreement and each of
the other Loan Documents.
SECTION 3. Conditions to Effectiveness. This Amendment shall be effective as
of the date this Amendment shall have been duly executed and delivered by the
Borrower and the Lender.
SECTION 4. Counterparts. This Amendment may be executed in any number of
separate counterparts with the same effect as if the parties hereto had signed
the same document and all such counterparts shall constitute but one and the
same instrument.
SECTION 5. Governing Law. This Amendment shall be governed by and construed
and enforceable in accordance with, the State of Colorado.
SECTION 6. Severability. If any of the terms and provisions specified herein
is held by a court of law to be in violation of any applicable state or
federal ordinance, statute, law, regulation, administrative or judicial
decision, or public policy, and if a governmental authority should declare
such term or provision to be illegal, invalid, unlawful, void, voidable, or
unenforceable as written, then such provision shall be given full force and
effect to the fullest possible extent that it is legal, valid and enforceable,
and the remainder of the terms and provisions herein shall be construed as if
such illegal, invalid, unlawful, void, voidable or enforceable term or
provision was not contained herein, and the rights, obligations, and interest
of the Borrower and the Lender under the remainder of this Amendment
Agreement shall continue in full force and effect.
SECTION 7. Negotiated Document. Borrower and Lender acknowledge that the
provisions and the language of this Amendment have been negotiated by
commercially sophisticated parties, and agree that no provision of this
Amendment shall be construed against Borrower or Lender by reason of any such
party having drafted such provisions or this Amendment.
SECTION 8. Prevailing Party. In the event of a judicial or administrative
proceeding or action by one party against the other party with respect to the
interpretation or enforcement of this Amendment, the prevailing party shall be
entitled to recover reasonable costs and expenses including, with limitation,
reasonable attorneys' fees and expenses, whether at the investigative,
pretrial, trial or appellate level.
SECTION 9. Amendments, Modifications, Etc. Neither this Amendment nor any of
the terms or conditions hereof may be amended, supplemented, or otherwise
modified except by a written instrument signed by the Borrower and Lender
expressly referencing the terms and conditions to be amended or modified.
SECTION 10. Continuing Effect; Loan Document. Other than as expressly
modified hereby, each of the Loan Documents shall continue in full force and
effect in accordance with their respective terms. From and after the date
hereof, this Amendment shall be deemed a "Loan Document" for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first above written.
RAMTRON INTERNATIONAL CORPORATION
By: /S/ L. Xxxxx Xxxxx
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Title: Chairman and CEO
NATIONAL ELECTRICAL BENEFIT FUND
By: /S/ Xxxxx X. Xxxx
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Trustee
