Exhibit 10.34
INDEMNIFICATION AND REIMBURSEMENT AGREEMENT
INDEMNIFICATION AND REIMBURSEMENT AGREEMENT (this "Agreement"), dated
as of April 10, 2002, is made between SANDISK CORPORATION, a Delaware
corporation (herein, "SanDisk"), and TOSHIBA CORPORATION, a Japanese corporation
(herein, "Toshiba").
W I T N E S S E T H:
WHEREAS, Toshiba and SanDisk hold (directly or indirectly) 50.1% and
49.9%, respectively, of the outstanding limited liability company interests of
FlashVision L.L.C., a Virginia limited liability company ("FVC"); and
WHEREAS, as of the date hereof, FVC is subject to (i) (A) that certain
Master Lease Intended as Security (FlashVision / Toshiba Tranche) dated as of
December 27, 2000, between FVC and ABN AMRO Bank, N.V. ("ABN AMRO"), (B) that
certain Participation Agreement (FlashVision / Toshiba Tranche), dated as of
December 27, 2000, between FVC, ABN AMRO as Lessor, ABN AMRO as agent for the
Participants (as defined therein), the Syndication Agents (as defined therein)
and such Participants, and (C) the Operative Documents (as defined in Appendix A
thereto) (collectively, the "Toshiba Tranche Lease Documents"), and (ii) (A)
that certain Master Lease Intended as Security (FlashVision/ SanDisk Tranche),
dated as of December 27, 2000, between FVC and ABN AMRO, (B) that certain
Participation Agreement (FlashVision / SanDisk Tranche), dated as of December
27, 2000, between FVC, ABN AMRO as Lessor, ABN AMRO as agent for the
Participants (as defined therein), the Syndication Agents (as defined therein),
and such Participants, and (C) the Operative Documents (as defined in Appendix A
thereto) (collectively, the "SanDisk Tranche Lease Documents") (the Toshiba
Tranche Lease Documents and the SanDisk Tranche Lease Documents referred to
collectively herein as the "Lease Documents"); and
WHEREAS, Toshiba and SanDisk have caused FVC to exercise the Early
Termination Option (as such term is defined in the Lease Documents) for the
purchase of all of the Equipment (as such term is defined in the Lease
Documents); and
WHEREAS, (i) Toshiba and Mizuho Corporate Bank, Ltd. (as successor in
interest to The Industrial Bank of Japan, the "Bridge Bank") are parties to that
certain Overdraft Agreement entered into on September 30, 1994 and amended on
December 20, 2001 (together with any documents delivered pursuant thereto, in
each case as from time to time amended, restated, supplemented or otherwise
modified, collectively being the "Toshiba Bridge Loan Documents") and (ii)
Toshiba and FlashVision, Ltd., a limited liability company (yugen kaisha)
organized under the laws of Japan the Units (as such term is defined in the New
Master Agreement) in which are owned or to be owned by SanDisk and Toshiba as
provided in Section 3.03(b)(viii) of the New Master Agreement ("FVC-Japan"),
have entered into that certain Loan Agreement dated as of April 10, 2002
(together with any documents delivered pursuant thereto, in each case as from
time to time amended, restated, supplemented or otherwise modified, collectively
being the "FVC-Japan Bridge Loan Documents"; the FVC-Japan Bridge Loan
Documents, together with the Toshiba Bridge Loan Documents, collectively being
the "Bridge
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
Loan Documents"), for the purpose of providing, on a short-term basis, the
financing necessary to make all payments due under the Lease Documents,
including, without limitation, payment in full for all of the Equipment,
following consummation of the exercise by FVC of the Early Termination Option;
and
WHEREAS, SanDisk and Toshiba have entered into that certain New Master
Agreement dated as of April 10, 2002 (as from time to time amended, restated,
supplemented or otherwise modified, the "New Master Agreement"), providing for
the transfer by FVC to FVC-Japan, pursuant to Section 3.03(b) of the New Master
Agreement, of certain equipment as provided therein, including the Leased
Equipment (as such term is defined in the New Master Agreement); and
WHEREAS, Toshiba and SanDisk shall take such actions as are provided
for in Section 3.03(c)(i) of the New Master Agreement to cause FVC-Japan to
enter into a financing facility with Mizuho Corporate Bank, Ltd. and such other
financial institutions as may be parties to such facility (collectively the
"Refinancing Banks") (the agreements providing for such financing, as from time
to time amended, restated, supplemented or otherwise modified, collectively
being the "Refinancing Documents") for the purpose of providing financing for
the repayment of the obligations under the Bridge Loan Documents and for the
refinancing of the Leased Equipment; and
WHEREAS, as an inducement to the Bridge Bank and the Refinancing Banks
to enter into, and perform their obligations under, the Toshiba Bridge Loan
Documents and the Refinancing Documents, Toshiba will execute and deliver for
the benefit of the Bridge Bank and the Refinancing Banks one or more guaranties
or other documents for the purpose of guarantying the obligations of FVC-Japan
under the Refinancing Documents (as from time to time amended, restated,
supplemented or otherwise modified, together with the Toshiba Bridge Loan
Documents, collectively being the "Toshiba Guaranty"); and
WHEREAS, partially as an inducement to Toshiba to execute and deliver,
and perform its obligations under, the Toshiba Guaranty, SanDisk is entering
into this Agreement with Toshiba; and otherwise to provide for certain
agreements between SanDisk and Toshiba as to their conduct in connection with
the arrangements under the Bridge Loan Documents, the Refinancing Documents and
the Toshiba Guaranty, SanDisk and Toshiba are entering into this Agreement and
undertaking their respective obligations to each other hereunder.
NOW THEREFORE, for value received, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
Section 1. Definitions and Construction. Capitalized terms used but not
defined in this Agreement shall have the respective meanings assigned to them in
Appendix A, entitled "Definitions, Rules of Construction and Documentary
Conventions", to the New Master Agreement. The following terms shall have the
meanings specified below:
(a) "Business Day" means a day on which banks are open for business
in Tokyo, Japan.
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(b) "Demand Amount" means, with respect to any Reimbursable
Obligation, the sum of (i) the amount of such Reimbursable Obligation plus (ii)
the amount of any Expenses related thereto.
(c) "Demand Notice" means a written notice delivered by Toshiba to
SanDisk demanding payment of a Demand Amount due under this Agreement, which (i)
shall set forth in respect of such Demand Amount the following:
(1) the amount of Reimbursable Obligations and any Expenses
covered by such Demand Notice;
(2) the type (as Fully Reimbursable Obligations, FV Cure
Obligations or Pro-Rata Reimbursement Obligations) of the Reimbursable
Obligations covered by such Demand Notice;
(3) a copy of any notice given to Toshiba under the Toshiba
Guaranty in respect of the FVC-Japan default under the Financing Documents
giving rise to the Obligations payable by Toshiba to generate the Reimbursable
Obligations covered by such Demand Notice;
(4) a description of the facts and circumstances giving rise to
the Obligations payable by Toshiba to generate any Reimbursable Obligation
covered by such Demand Notice;
(5) if such Demand Notice covers Demand Amounts that include
Expenses, a description in reasonable detail of the nature of such Expenses; and
(6) if such Demand Notice covers Demand Amounts that include FV
Cure Obligations, the date on which Toshiba made the payment as provided in
Section 3 hereof giving rise to such FV Cure Obligations and a description of to
whom, and, if other than to FVC-Japan, on account of what FVC-Japan obligations,
such payment was made;
and (ii) shall represent and warrant that the information set forth in such
Demand Notice is true and correct.
(d) "Due Date" has the meaning set forth in Section 2.
(e) "Expenses" means any and all reasonable expenses, including,
without limitation, attorneys' fees and disbursements, which have been actually
incurred by Toshiba or which Toshiba reasonably estimates will be incurred by
it, in either case, in collecting any Demand Amount or enforcing its rights
against SanDisk under this Agreement; provided, however, Expenses shall in no
event include any costs for de-installing, re-installing or relocation of any
equipment or otherwise incurred by Toshiba in owning, operating or disposing of
any equipment following any exercise by Toshiba of the remedy provided for in
Section 9(b)(3) hereof.
(f) "Existing Operating Agreement" means that certain Operating
Agreement dated as of May 9, 2000, between Toshiba and SanDisk.
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(g) "Financing Documents" means the Bridge Loan Documents and the
Refinancing Documents.
(h) "Fully Reimbursable Obligation " means any amount that is (i)
either (A) a payment Obligation that is payable by Toshiba under the Toshiba
Guaranty upon demand duly made under the Toshiba Guaranty or (B) an FVC-Japan
Bridge Default Obligation that is due to Toshiba, in either case on account of a
default by FVC-Japan in the performance of any of its obligations under the
Bridge Loan Documents or Refinancing Documents, to the extent such default arose
as a result of a SanDisk FV Payment Default and (ii) equal in amount to the
lesser of (A) the unpaid obligation of SanDisk giving rise to such SanDisk FV
Payment Default and (B) the amount of such payment Obligation of Toshiba or
FVC-Japan Bridge Default Obligation, as the case may be.
(i) "Fully Reimbursable Obligation Default" means any failure by
SanDisk to pay any Demand Amount comprised of Fully Reimbursable Obligations
and/or Expenses related thereto payable under Section 2 hereof on or before the
earlier of (A) 30 days after delivery to SanDisk of a Demand Notice covering
such Demand Amount as provided herein and (B) the Business Day immediately prior
to the date of expiration of a period of time, after the date of delivery to
SanDisk of a Demand Notice covering such Demand Amount as provided herein, which
period of time is equal to the period of grace and/or cure time FVC-Japan had or
would have had pursuant to the Financing Documents to perform the obligations
whose default gave rise to the Reimbursable Obligations included within such
Demand Amount without triggering a right of the Bridge Bank, Toshiba or the
Refinancing Banks to exercise default remedies under the Financing Documents for
non-performance of such obligations.
(j) "FVC-Japan Bridge Default Obligation" means any amount payable by
FVC-Japan to Toshiba that has not been paid when due (after giving effect to all
applicable grace and cure periods) under the FVC-Japan Bridge Loan Documents.
(k) "FV Cure Obligation" has the meaning set forth in Section 3.
(l) "FV Cure Obligation Default" means, with respect to any Demand
Amount comprised of FV Cure Obligations and/or Expenses related thereto payable
under Section 3 hereof, any failure by SanDisk to pay such Demand Amount on or
before the later of (A) 30 days after delivery to SanDisk as provided herein of
a FV Cure Payment Notice in respect of the FV Payment Default giving rise to
such Demand Amount and (B) one Business Day after delivery to SanDisk of the
Demand Notice covering such Demand Amount.
(m) "FV Cure Payment" has the meaning set forth in Section 3.
(n) "FV Cure Payment Notice" has the meaning set forth in Section 3.
(o) "FV Payment Default" means a default by SanDisk in paying or
causing payment of an obligation of SanDisk or any of its subsidiaries to make a
payment to FVC-Japan due pursuant to Article 7 of the New SanDisk Supply
Agreement on account of "lease fee charges" and/or "bridge loan interest
payments" specified as provided in such Article 7 and any applicable provisions
of the New Master Agreement.
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(p) "Lease Payment Due Date" means in the case of any obligation of
SanDisk to make a payment to FVC-Japan pursuant to Article 7 of the New SanDisk
Supply Agreement on account of "lease fee charges" and/or "bridge loan interest
payments" as provided in such Article 7 and any applicable provisions of the New
Master Agreement, the date on which such payment is due.
(q) "Lessee" means FVC or FVC-Japan, as the context may require.
(r) "New Operating Agreement" has the meaning set forth in the New
Master Agreement.
(s) "New SanDisk Supply Agreement" means the Purchase and Supply
Agreement, as such term is defined in the New Master Agreement, to which SanDisk
is party.
(t) "New Toshiba Supply Agreement" means the Purchase and Supply
Agreement, as such term is defined in the New Master Agreement, to which Toshiba
is party.
(u) "Non-Reimbursable Obligation" means any amount that is (i) either
(A) an Obligation that is paid or payable by Toshiba under the Toshiba Guaranty
or (B) an FVC-Japan Bridge Default Obligation that is due to Toshiba, in either
case on account of a default by FVC-Japan in the performance of any of its
obligations under the Bridge Loan Documents or Refinancing Documents, to the
extent such default arose as a result of a Toshiba FV Payment Default and (ii)
equal in amount to the lesser of (A) the unpaid obligation of Toshiba giving
rise to such Toshiba FV Payment Default and (B) the amount of such Obligation of
Toshiba or FVC-Japan Bridge Default Obligation, as the case may be.
(v) "Obligation" means any liability or obligation of FVC-Japan under
the Financing Documents that is guarantied by Toshiba and becomes due and
payable by Toshiba to the Bridge Bank or the Refinancing Banks at any time under
or pursuant to the terms of the Toshiba Guaranty, whether for principal,
interest, premiums, fees, expenses or otherwise.
(w) "Outstanding Financing Amount" means on any date of determination
the aggregate amount on such date of determination of rent payments scheduled to
become due on or after such date from FVC-Japan and the principal amount of all
borrowings by FVC-Japan outstanding, in each case under the Financing Documents,
after giving effect to any borrowings and payments on account of such rent or
principal amount occurring on such date.
(x) "Ownership Percentage" means, with respect to any party on any
date of determination, the percentage of such party's ownership interest in
FVC-Japan, as the same may have been adjusted from time to time as of such date
of determination in accordance with the terms and provisions of the New
Operating Agreement. For the avoidance of doubt, as of the date hereof,
SanDisk's Ownership Percentage is 49.9% and Toshiba's Ownership Percentage is
50.1%.
(y) "Potential Toshiba Guaranty Default" means any event, occurrence
or circumstance that (i) but for the giving of notice would constitute a Toshiba
Guaranty Default or (ii) but for the passage of time would, and is reasonably
expected by Toshiba upon such passage of time to, constitute a Toshiba Guaranty
Default.
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(z) "Pro-Rata Reimbursable Obligation" means any amount that is the
product of :
(i) SanDisk's Ownership Percentage (at the time any such payment
under the Toshiba Guaranty referred to in clause (ii) below is due or any such
FVC-Japan Bridge Default Obligation referred to in clause (ii) below arises, as
the case may be) multiplied by
(ii) any amount that:
(A) comprises an amount that is either (1) a payment that
has actually been made in cash by Toshiba under the Toshiba Guaranty
in payment of an Obligation upon demand duly made under the Toshiba
Guaranty or (2) an FVC-Japan Bridge Default Obligation that is due to
Toshiba, in either case on account of a default by FVC-Japan in the
performance of any of its obligations under the Bridge Loan Documents
or Refinancing Documents, where (x) such default by FVC Japan did not
arise as a result of any Toshiba Guaranty Default or Potential Toshiba
Guaranty Default, or occur (other than on account of a default by
FVC-Japan in the performance of any of its obligations under the
Bridge Loan Documents or Refinancing Documents, where such default
arose as a result of a SanDisk FV Payment Default) after the
occurrence of any Toshiba Guaranty Default or Potential Toshiba
Guaranty Default and (y) any such Obligations were not incurred (other
than on account of a default by FVC-Japan in the performance of any of
its obligations under the Bridge Loan Documents or Refinancing
Documents, where such default arose as a result of a SanDisk FV
Payment Default) at a time when any Toshiba Guaranty Default or
Potential Toshiba Guaranty Default had occurred; but
(B) does not include any amount to the extent comprised of
any Fully Reimbursable Obligation, FV Cure Obligation or
Non-Reimbursable Obligation.
(aa) "Pro-Rata Reimbursable Obligation Default" means any failure by
SanDisk to pay any Demand Amount comprised of Pro-Rata Reimbursable Obligations
and Expenses related thereto payable under Section 2 hereof on or before the
earlier of (A) 30 days after delivery to SanDisk of a Demand Notice covering
such Demand Amount as provided herein and (B) the Business Day immediately prior
to the date of expiration of a period of time, after the date of delivery to
SanDisk of a Demand Notice covering such Demand Amount as provided herein, which
period of time is equal to the period of grace and/or cure time FVC-Japan had or
would have had pursuant to the Financing Documents to perform the obligations
whose default gave rise to the Reimbursable Obligations included within such
Demand Amount without triggering a right of the Bridge Bank, Toshiba or the
Refinancing Banks to exercise default remedies under the Financing Documents for
non-performance of such obligations.
(bb) "Reimbursable Obligation" means any Fully Reimbursable
Obligation, Pro-Rata Reimbursable Obligation or FV Cure Obligation payable
hereunder.
(cc) "Toshiba FV Payment Default" means a default by Toshiba in paying
an obligation of Toshiba to make a payment to FVC-Japan due pursuant to Article
7 of the New
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Toshiba Supply Agreement on account of "lease fee charges" and/or "bridge loan
interest payments" specified as provided in such Article 7 and any applicable
provisions of the New Master Agreement.
(dd) "Toshiba Guaranty Default" means any default by Toshiba in the
performance of any obligation under or compliance with any covenant under the
Toshiba Guaranty, or any event, occurrence or circumstance that, under the
Toshiba Guaranty, entitles any of the Bridge Bank or Refinancing Banks to demand
payment.
Section 2. Indemnification. SanDisk will reimburse Toshiba, and indemnify
and hold harmless Toshiba from and against, any Demand Amount incurred by
Toshiba and will, not later than the next Business Day immediately after
Toshiba's delivery to SanDisk of a Demand Notice covering such Demand Amount in
accordance with the terms and conditions of this Agreement (such Business Day
being the "Due Date" in respect of such Demand Amount), pay to Toshiba the
Demand Amount set forth therein. Without limiting SanDisk's obligations
hereunder and notwithstanding any purported termination of this Agreement, if
any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation, dissolution, assignment for the benefit of creditors,
or similar event with respect to SanDisk shall occur, and such occurrence shall
result in the return of any payment or performance of any Demand Amount, then
(a) without further notice, demand or other action, the obligations of SanDisk
hereunder shall be reinstated with respect to (i) such payment or performance
returned and (ii) all further obligations arising as a result of such return or
request, and (b) SanDisk shall thereupon be liable therefor, without any
obligation on the part of Toshiba to contest or resist any such return.
Section 3. Cure of FV Payment Defaults. In the event of any FV Payment
Default, Toshiba shall have the right to make such payment to FVC-Japan in lieu
of SanDisk under the New SanDisk Supply Agreement or otherwise to make such
payment under the Financing Documents as in either case is necessary to preclude
such FV Payment Default from resulting in what would otherwise be a default by
FVC-Japan under the Bridge Loan Documents or Refinancing Documents (any such
payment by Toshiba being a "FV Cure Payment"); provided, however, that Toshiba
shall have such right only (i) after it shall have given to SanDisk, as provided
herein, notice of Toshiba's intention to exercise such right (a "FV Cure Payment
Notice") not less than 30 days prior to exercising such right or such lesser
period (as specified in such FV Cure Payment Notice) prior to such exercise of
such right as is necessary to enable such exercise to be effective to preclude
such FV Payment Default from resulting in a default by FVC-Japan under the
Bridge Loan Documents or Refinancing Documents and (ii) if during such notice
period SanDisk shall have failed to cure such FV Payment Default in a manner
effective to preclude such FV Payment Default from resulting in a default by
FVC-Japan under the Bridge Loan Documents or Refinancing Documents. The amount
of any FV Cure Payment, together with interest thereon accrued, at a per annum
rate of [***], from the date of payment thereof by Toshiba until the date of
reimbursement thereof and payment of such interest hereunder shall comprise "FV
Cure Obligations" hereunder.
Section 4. Dispute Resolution. Upon payment of any amount demanded by
Toshiba as Demand Amount payable hereunder, SanDisk shall have the right to
contest whether such amount was properly payable hereunder, and seek recovery
thereof, in the manner set forth in
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[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Section 19 hereof. Any payment by SanDisk to Toshiba of an amount demanded by
Toshiba as a Demand Amount payable hereunder shall not be deemed to constitute
an admission by SanDisk, nor create a presumption, of SanDisk's liability for
such amount.
Section 5. Fees.
(a) During the term of this Agreement, SanDisk shall pay a guarantee
fee (the "Fee") to Toshiba. The Fee shall accrue, on the daily amount of
SanDisk's Ownership Percentage of the daily Outstanding Financing Amount, at the
rate of [***] per annum, and such Fee shall be payable on a quarterly basis in
arrears, on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the date hereof, and on the
date of termination of this Agreement.
(b) Toshiba shall be responsible for any other fees, costs and
expenses, other than legal fees for SanDisk's counsel, incurred in connection
with Financing Documents, the Toshiba Guaranty and the transactions contemplated
thereby, including, without limitation, any rearrangement fees assessed by Bank
and any breakage fees assessed in connection with the Lease Documents.
Section 6. Nature of Agreement. Notwithstanding anything herein otherwise
to the contrary:
(a) The obligations and liability of SanDisk under this Agreement
shall be independent, absolute, primary and direct, irrevocable and
unconditional, regardless of (i) any untrue or incorrect information in a Demand
Notice, whose untruth or incorrectness was not known by Toshiba at the time of
delivery of such Demand Notice (ii) any nonperfection of any collateral security
for the Obligations; (iii) any lack of validity or enforceability of the Toshiba
Guaranty, the Financing Documents, or any of the Obligations; (iv) the voluntary
or involuntary liquidation, dissolution, sale or other disposition of all, or
substantially all of the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition with creditors or readjustment of, or
other similar proceedings affecting either Lessee, Toshiba, SanDisk or any
co-guarantor or endorser of, any or all of the Obligations or any of the assets
of any of them, or any contest of the validity of this Agreement in any such
proceeding; or (v) any law, regulation or decree now or hereafter in effect in
any jurisdiction which might in any manner affect any of such terms or
provisions or any of the rights of Toshiba with respect thereto or which might
cause or permit either Lessee or any co-guarantor of the Obligations to invoke
any defense to, or any alteration in the time, amount or manner of payment of
any or all of the Obligations or performance of this Agreement.
(b) For the avoidance of doubt, neither anything contained in, nor
any performance or default (including, without limitation, any Toshiba Guaranty
Default or Potential Toshiba Guaranty Default) under, the Toshiba Guaranty or
any modification thereof or any other agreement, document or arrangement entered
into by Toshiba or any of its affiliates with or for the benefit of the Bridge
Bank or the Refinancing Banks in any case shall result in SanDisk having any
liability or obligation under this Agreement, other than obligations and
liabilities of
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SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
SanDisk provided for under the terms contained in this Agreement (construed
under applicable principles of contract construction to give effect to the
intent of the parties).
Section 7. Rights and Remedies. No remedy herein conferred upon or
reserved to Toshiba is intended to be exclusive of any other remedies or remedy
available to Toshiba, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given to Toshiba under this Agreement
or now or hereafter existing at law or in equity. No failure or delay on the
part of Toshiba in exercising any power or right under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power preclude any other or further exercise thereof or the
exercise of any other right or power under this Agreement. Without limiting the
foregoing, nothing contained herein is intended to limit Toshiba to delivering a
single Demand Notice relating to a particular circumstance or set of
circumstances, it being understood that any Demand Notice delivered hereunder
shall cover only Reimbursable Obligations and/or Expenses payable under Section
2 hereof and shall not cover Reimbursable Obligations and/or Expenses covered by
any other Demand Notice.
Section 8. Payments. All payments by SanDisk hereunder to Toshiba shall be
made in immediately available funds and in Japanese Yen to Toshiba at its office
or at such other location as Toshiba shall specify by notice to SanDisk. All
payments by SanDisk under this Agreement shall be made by SanDisk solely from
SanDisk's own funds and not from any funds of either Lessee.
Section 9. Events of Default; Remedies.
(a) The occurrenc e of any of the following events shall constitute
an "Event of Default" under this Agreement (whether any such event shall be
voluntary or involuntary or come about or be effected by operation of law or
pursuant to or in compliance with any judgment, decree or order of any court or
any order, rule or regulation of any governmental authority):
(1) Both of the following (A) and (B) shall occur:
(A) either a FV Cure Obligation Default or a Fully
Reimbursable Obligation Default shall occur at a time when there shall not have
been any earlier occurrence of either any Fully Reimbursable Obligation Default
or any FV Cure Obligation Default and
(B) thereafter, and on or prior to the later of (x) the
Lease Payment Due Date next succeeding such FV Cure Obligation Default or Fully
Reimbursable Obligation Default, as the case may be, and (y) the date that is
three months after the FV Payment Default giving rise to such FV Cure Obligation
Default or Fully Reimbursable Obligation Default, as the case may be, either (i)
SanDisk shall fail to pay the Demand Amount, specified in a Demand Notice duly
delivered hereunder, that includes the FV Cure Obligations or Fully Reimbursable
Obligations, as the case may be, giving rise to such FV Cure Obligation Default
or Fully Reimbursable Obligation Default, as the case may be, (together, solely
in the case of any such Demand Amount that includes Fully Reimbursable
Obligations, with interest on such Fully Reimbursable Obligations accrued, at a
per annum rate of [***], from the Due Date for payment by SanDisk under Section
2 hereof of such Fully Reimbursable Obligations) or (ii) there shall
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SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
occur any other FV Payment Default after the FV Payment Default that gave rise
to such FV Cure Obligation Default or Fully Reimbursable Obligation Default, as
the case may be;
(2) At any time when there shall have been any earlier
occurrence of either any Fully Reimbursable Obligation Default or any FV Cure
Obligation Default, there shall be any additional occurrence of either any FV
Cure Obligation Default or any Fully Reimbursable Obligation Default;
(3) A Pro-Rata Reimbursable Obligation Default;
(4) SanDisk shall fail (other than any failure described in
paragraph (1), (2) or (3)) to observe or perform any covenant, condition or
agreement of SanDisk contained in this Agreement, and such failure remains
uncured for 30 days after notice thereof from Toshiba to SanDisk; or
(5) a Bankruptcy Event of SanDisk.
(b) Upon the occurrence of any Event of Default, Toshiba may, at its
option, declare a default by written notice to SanDisk, and at any time
thereafter, Toshiba may, at its option, take one or more of the following
actions:
(1) acquire SanDisk's interest in each Lessee in the manner
applicable under the New Operating Agreement (in respect of FVC-Japan) and
Existing Operating Agreement (in respect of FVC, if it has not by then been
dissolved) to an exercise by Toshiba of the remedy provided for in Section
10.05(a) of the New Operating Agreement and Section 10.05(a) of the Existing
Operating Agreement, respectively; provided that the amount payable to SanDisk
in any such acquisition shall be reduced by the amount of any Demand Amounts
unpaid and due hereunder at the time of such acquisition, unless such
acquisition of SanDisk's interest in each Lessee is effected by Toshiba
hereunder following or in conjunction with any exercise of the remedy provided
for in Section 9(b)(3) below (in which case the amount payable in such
acquisition shall not be so reduced); and/or
(2) upon termination of the New Master Agreement under the terms
thereof, exercise the rights to a royalty-free license from SanDisk provided for
in Section 8.01(g)(ii) of the New Master Agreement; and/or
(3) in the event that (i) the Outstanding Financing Amount has
become accelerated and payable in full as a result of a default by FVC-Japan
giving rise to the Reimbursable Obligation payable hereunder that gave rise to
such Event of Default and (ii) Toshiba pursuant to the Toshiba Guaranty has paid
in full the Outstanding Financing Amount as so accelerated following such Event
of Default, be entitled to assume full ownership rights to such interest as
either Lessee has in the Leased Equipment upon such payment in full of such
Outstanding Financing Amount as so accelerated; and/or
(4) exercise any other right or remedy that may be available
under applicable law or proceed by appropriate court action to enforce the terms
hereof or to recover damages for the breach hereof.
10
Section 10. Modifications and Waivers. No modification or waiver of
any provision of this Agreement nor consent to any departure therefrom shall, in
any event, be effective unless the same is in writing signed by Toshiba and
SanDisk and any such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on any
party, in any case, shall entitle such party to any other or further notice or
demand in similar or other circumstances.
Section 11. Waiver. Except as provided herein, SanDisk hereby waives
promptness, diligence, presentment, notice of acceptance and any other notice
with respect to any Demand Amount.
Section 12. No Setoff by SanDisk. No setoff, counterclaim, deduction,
reduction, or diminution of any obligation, or any defense of any kind or nature
which SanDisk has or may have against either Lessee or Toshiba shall be
available hereunder to SanDisk.
Section 13. Representations and Warranties.
(a) Each of SanDisk and Toshiba hereby represents and
warrants, solely in respect of itself, as follows:
(1) Such party is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has full right, power and authority to enter into, and perform
this Agreement.
(2) The execution, delivery and performance by such
party of this Agreement (i) have been duly authorized by all necessary actions,
and (ii) do not and will not contravene any law or any contract binding on, or
affecting such party except to the extent that any such contravention would not
have a materially adverse effect on such party's ability to perform its
obligations under this Agreement.
(3) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
(other than any that has been obtained, taken or made or whose failure to be
obtained, taken or made would not have a materially adverse effect on such
party's ability to perform its obligations under the Agreement ) is required for
the due execution, delivery and performance by such party of this Agreement.
(4) This Agreement is a legal, valid and binding
obligation of such party, enforceable against such party in accordance with its
terms.
(b) SanDisk hereby represents and warrants as follows:
(1) There are no actions, claims investigations or
proceedings pending, or to SanDisk's knowledge threatened, by or before any
governmental authority that, if adversely determined, would have a material
adverse effect on SanDisk, on the conduct of the business of FVC-Japan following
the Closing as contemplated by the Operative Documents or on SanDisk's ability
to perform any of its material obligations under this Agreement.
11
(2) Except as set forth in Schedule I attached hereto,
there are no lawsuits, arbitrations or other legal proceedings pending, or to
SanDisk's knowledge threatened, by or against or affecting SanDisk or any of its
Affiliates or any of their respective properties that (i) are reasonably likely,
based on information known to SanDisk as of the date hereof, to have a material
adverse effect on the conduct of the business of FVC-Japan following the Closing
as contemplated by the Operative Documents or (ii) relate to any of the
transactions contemplated by the Operative Documents in a manner which is
material to the ability of it to carry out the transactions contemplated hereby
or which could have a material adverse effect on the conduct of the business of
FVC-Japan following the Closing as contemplated in the Operative Documents.
(3) SanDisk is solvent and has assets having a present
fair saleable value at least equal to the amount of its liabilities.
Section 14. Covenants.
(a) SanDisk covenants and agrees that, during the term of
this Agreement, it shall:
(1) maintain its corporate existence and shall not
dissolve or otherwise dispose of all, or substantially all of its assets;
provided, that this clause (1) shall not limit SanDisk's ability to consummate a
Change of Control so long as the person surviving in such Change of Control (if
not SanDisk), or that shall have acquired all or substantially all of the assets
of SanDisk in connection with such Change of Control, shall expressly assume in
writing all of the duties and obligations of SanDisk under this Agreement;
(2) except as otherwise expressly permitted by the New
Operating Agreement, not Transfer or permit any of its affiliates to Transfer
all or any portion of its Units in FVC-Japan (or all or any portion of SanDisk's
interest in any subsidiary through which SanDisk beneficially owns such Units),
to any person without the consent of Toshiba.
(b) Toshiba covenants and agrees that, during the term of
this Agreement, it shall deliver a true and correct copy of the Toshiba Guaranty
or a modification thereof, as soon as practicable after the execution and
delivery thereof, to SanDisk in accordance with the procedures established for
the giving of notice in Section 16 hereof; provided, however, that (i) prior to
such delivery, Toshiba may redact from such copy any information which Toshiba
deems to be confidential or proprietary to either Toshiba or the Bridge Bank or
Refinancing Banks and (ii) no such document or delivery of a copy of it
hereunder shall limit the effect of Section 6(b) hereof
(c) [***].
Section 15. Additional Provisions relating to Expenses. In the event
that Toshiba should incur Expenses relating to Reimbursable Obligations and such
Expenses were not incurred in time to be included in any Demand Notice covering
such Reimbursable Obligations delivered hereunder, Toshiba shall nevertheless be
entitled to reimbursement of such Expenses upon request to SanDisk advising
SanDisk of such Expenses and the facts and circumstances of their incurrence. In
the event that any estimate of Expenses included in any Demand Notice
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[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
should prove to be in excess of the amount of such Expenses actually incurred by
Toshiba, upon determination that such excess exists Toshiba shall reimburse
SanDisk for any payment made by SanDisk of such excess.
Section 16. Addresses for Notices. All notices and other
communications to be given to any party under this Agreement shall be in writing
and any notice shall be deemed received when delivered by hand, courier or
overnight delivery service, or by facsimile or email (if such facsimile or email
is confirmed within two Business Days by delivery of a copy by hand, courier or
overnight delivery service), with appropriate postage prepaid and shall be
directed to the address of such party specified below (or at such other address
as such party shall designate by like notice):
(a) If to SanDisk:
SanDisk Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President and CEO
With a copy to:
SanDisk Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President and General Counsel
(b) If to Toshiba:
Toshiba Corporation
Semiconductor Company
1-1 ▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Facsimile: 011 81 3 5444 9339
Attention: Vice President
13
With a copy to:
Toshiba Corporation
Semiconductor Company
Legal Affairs and Contracts Division
1-1 ▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
Facsimile: 011-81-3-5444-9342
Attention: General Manager
Section 17. Term; Assignment. This Agreement shall (i) remain in full
force and effect until the earlier of (x) payment in full of all obligations
under the Bridge Loan Documents and the Refinancing Documents (after payment of
any Reimbursable Obligation and/or Expenses then due hereunder) and (y)
termination of the New Master Agreement pursuant to Section 8.01(a) thereof,
whereupon this Agreement (except as provided below) shall terminate, (ii) be
binding upon each of SanDisk and Toshiba and their respective personal
representatives, heirs, successors and assigns and (iii) inure to the benefit
of, and be enforceable by each of Toshiba and SanDisk and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), Toshiba may assign or otherwise transfer its obligations
under the Toshiba Guaranty to any other person or entity without any requirement
that SanDisk give its consent to such assignment or transfer (provided, that
this provision shall not affect any consent rights of SanDisk under the New
Master Agreement or New Operating Agreement or otherwise as a participant in
either Lessee), and such other person or entity shall thereupon become vested
with all the rights in respect thereof granted to Toshiba herein or otherwise;
provided, further, that SanDisk may assign or otherwise transfer its obligations
under this Agreement to any other person or entity in connection with a merger,
consolidation or sale of all or substantially all of the assets or the
outstanding securities of SanDisk (so long as such merger, consolidation or sale
shall be in compliance with Section 14(a)(1)) without the consent of Toshiba or
its successors or assigns; provided, further, that Sections 4, 5(b), 6, 7, 8,
10, 12, 13, 14(c), 15, 16, 17, 18, 19, 20, 21 and 22 shall survive any
termination of this Agreement.
Section 18. Entire Agreement. This Agreement constitutes the entire
agreement with respect to, and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to, the
subject matter hereof.
Section 19. Severability. If any provision of this Agreement or the
application of any such provision is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement (except as may be expressly provided in
this Agreement) or invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties waive
any provision of law that renders any provision of this Agreement invalid,
illegal or unenforceable in any respect. The parties shall, to the extent lawful
and practicable, use their reasonable efforts to enter into arrangements to
reinstate the intended benefits, net of the intended burdens, of any such
provision held invalid, illegal or unenforceable. If the intent of the parties
in entering into
14
this Agreement cannot be preserved, this Agreement shall either be renegotiated
or terminated, by mutual agreement of the parties.
Section 20. Governing Law. This Agreement shall be deemed to be a
contract under the laws of the State of California and for all purposes shall be
governed by and construed in accordance with such laws.
Section 21. No Presumption Against Either Party. This Agreement was
negotiated and drafted jointly by both of the parties hereto, and there shall be
no presumption in the construction of this Agreement that the Agreement or any
provision thereof shall be construed against either party on account of such
party being the drafter hereof.
Section 22. Arbitration. Any dispute arising under this Agreement
will be settled by binding arbitration in San Francisco, California. Such
dispute shall be heard by a panel of three arbitrators pursuant to the rules of
the International Chamber of Commerce. The awards of such arbitration shall be
final and binding upon the parties thereto. The non-prevailing party will bear
all fees and expenses of both parties associated with the arbitration.
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15
IN WITNESS WHEREOF, for good and valuable consideration and
intending to be legally bound hereby, this Agreement has been executed and
delivered by SanDisk and Toshiba as of the date hereof.
SANDISK CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: President & Chief Executive Officer
TOSHIBA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Corporate Senior Vice President
President & CEO
Semiconductor Company