Exhibit 10.5
ACCOUNT RECEIVABLE AGREEMENT
THIS ACCOUNT RECEIVABLE AGREEMENT (the "Agreement") is executed this 26th day
of July 2005, by and between RAMTRON INTERNATIONAL CORPORATION, a Delaware
Corporation ("Ramtron") and MUSHKIN, INC., a Colorado Corporation
("Mushkin").
RECITALS
A. Ramtron and D. Xxxxxx Xxxxxxxxx ("Xxxxxxxxx") have entered into a Stock
Purchase Agreement of event date (the "SPA") concerning Ramtron's sale
of Mushkin Shares (as defined in the SPA) to Xxxxxxxxx.
B. Ramtron and Mushkin jointly maintain the Mushkin Operating Account
#494505412 at the Xxxxx Fargo Bank, N.A., Denver, Colorado (the
"Account") for the mutual benefit of Ramtron and Mushkin.
C. Ramtron, Mushkin and Xxxxxxxxx, in order to facilitate the payments due
Ramtron pursuant to the SPA, desire to enter into this Agreement.
NOW, THEREFORE, Ramtron, Xxxxxxxxx, and Mushkin in consideration of the
promises set forth herein and other good and valuable consideration the
sufficiency of which is acknowledged, agree as follows:
ARTICLE I
1.1 Assignment and Authorization to Transfer Funds: Upon execution of this
Agreement, Mushkin hereby assigns to Ramtron effective beginning July 16,
2005 and continuing during the period in which any Account Receivable Amount
remains due to Ramtron, all of Mushkin's right, title and interest to any and
all monies or funds deposited or retained in the Account by the Company
received by the Company from customers and deposited in payment of an account
receivable, (excluding, however, any monies deposited in the Account pursuant
to credit card and/or wire transfer transactions or any capital
contributions). Mushkin further authorizes Ramtron to access the Account,
and transfer funds deposited into the Account by customers as payment of the
Account Receivable Amount. Ramtron, however, may not transfer amounts
deposited into the Account from credit card or wire payments. Ramtron may
transfer as set forth herein for its own benefit and without Mushkin's
approval in amounts determined by Ramtron up to a total amount of the Account
Receivable Amount referenced in the SPA. During the period within which any
Account Receivable Amount remains outstanding to Ramtron, Mushkin shall not
pledge or otherwise assign any interest in the Account Receivable Amount
which is held in the Account.
1.2 Maintenance of Account: While any Account Receivable Amount remains
outstanding to Ramtron, Mushkin shall maintain the Account and deposit into
the Account all income, receivables or any other amounts due Mushkin until
payment in full of the Account Receivable Amount to Ramtron. Pending payment
in full of the Account Receivable Amount due Ramtron, Mushkin shall not open
or deposit into any other account any income, receivable or any other amount
due Mushkin.
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ARTICLE II
MISCELLANEOUS
2.1 Attorney's Fees. In the event of any action between the parties to this
Agreement seeking enforcement of any of the terms and conditions of this
Agreement, the prevailing party in such action, whether by fixed judgment or
settlement, shall be entitled to recover, in addition to damages, injunctive
or other relief, its actual costs and expenses, including, but not limited
to, actual attorneys' fees, court costs and expert witness fees. Such costs
shall include attorneys' fees, costs and expenses incurred in (a)
post-judgment motions, (b) contempt proceedings, (c) garnishment, levy and
debtor and third-party examination, (d) discovery, and (e) bankruptcy
litigation.
2.2 Counterparts. This Agreement may be signed by the parties in different
counterparts and the signature pages combined to create a document binding on
all parties.
2.3 Governing Law. This Assignment shall be governed by and construed in
accordance with the laws of the State of Colorado.
2.4 Definitions. Any defined terms within this Agreement not expressly defined
herein shall have the meanings set forth in the SPA.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the day
and year first above written.
Ramtron International Corporation, a Delaware Corporation
/s/ Xxxx X. Xxxxx
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By: Xxxx X. Xxxxx
Title: President - Technical Group
Mushkin, Inc., a Colorado Corporation
/s/ D. Xxxxxx Xxxxxxxxx
-------------------------
By: D. Xxxxxx Xxxxxxxxx
Title: President / Treasurer
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STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 26th day of July,
2005, by D. Xxxxxx Xxxxxxxxx as an individual.
Witness my hand and official seal.
My commission
expires: 10-18-05 /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Notary Public
0000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
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Address
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