EXHIBIT 10.35
Annex 3
FIRST AMENDMENT
THIS FIRST AMENDMENT ("Amendment"), dated as of February 29, 1996, is
entered into by and among AST Research, Inc., a Delaware corporation (the
"Company"), the several financial institutions party to this Amendment
(collectively, the "Banks"; individually, a "Bank"), and Bank of America
National Trust and Savings Association, as Agent for the Banks.
RECITALS
A. The Company, the Agent and certain of the Banks are party to a
Credit Agreement dated as of December 20, 1995 (the "Credit Agreement"), which
Credit Agreement became effective on December 27, 1995.
B. The Company has requested that (i) several new financial
institutions become parties to, and be deemed to be "Banks" in connection with,
the Credit Agreement and (ii) the Banks, among other things, agree to amend the
Credit Agreement to increase the aggregate Commitments of the Banks. The Agent
and the Banks are willing to so amend the Credit Agreement subject to the terms
and conditions in this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings, if any, assigned to them in the
Credit Agreement.
2. Amendments.
(a) The term "Banks" in the introductory paragraph of the
Credit Agreement is amended to refer to all Banks executing this Amendment and
all of the duties and obligations of the Borrower and the Guarantor under the
Loan Documents in existence prior to the date hereof (to which they are
respectively parties) shall be deemed to be duties and obligations to the Agent
and all of the Banks executing this Amendment.
(b) Section 1.01 of the Credit Agreement is amended by
deleting the phrase "and each date such Loan is converted into another Type of
Loan" in the definition of "Interest Payment Date."
(c) Section 2.08(b) of the Credit Agreement is amended by
adding in the second sentence the phrase "Offshore Rate" before each occurrence
of the word "Loans" and by adding the phrase "on all Loans" after the phrase
"Event of Default."
(d) Schedule 2.01 to the Credit Agreement is amended by
deleting said Schedule 2.01 in its entirety and by inserting in lieu thereof the
form of Schedule 2.01 attached hereto as Annex 1.
(e) Schedule 10.02 to the Credit Agreement is amended by
deleting said Schedule 10.02 in its entirety and by inserting in lieu thereof
the form of Schedule 10.02 attached hereto as Annex 2.
3. Representations and Warranties. The Company hereby
represents and warrants to the parties hereto as follows:
(a) No Defaults or Events of Default have occurred and are
continuing under the Loan Documents.
(b) The execution, delivery and performance by the Company
of this Amendment have been duly authorized by all necessary corporate and other
action and do not and will not require any registration with, consent or
approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable.
(c) This Amendment and the Loan Documents, as amended by
this Amendment, constitute the legal, valid and binding obligations of the
Company, enforceable against it in accordance with their respective terms,
without defense, counterclaim or offset.
(d) All representations and warranties of the Company
contained in the Loan Documents are true and correct.
(e) The Company is entering into this Amendment on the
basis of its own investigation and for its own reasons, without reliance upon
the Agent, the Banks or any other Person.
4. Effective Date. This Amendment will become effective on the
date ("Effective Date") that each of the following conditions precedent has been
satisfied and that all of the following documents required to be delivered are
in form and substance satisfactory to the Agent and the Banks:
(a) All representations and warranties contained herein are
true and correct as of the Effective Date.
(b) All Loans outstanding under the Credit Agreement shall
bear interest at the Base Rate.
(c) The Agent shall have received for its own account, or
for the account of the applicable Bank, as the case may be, all payments due on
the Effective Date from any Bank in respect of the Loans assigned pursuant to
Section 5 and all fees, costs and expenses due and payable pursuant to Section
2.09(b) of the Credit Agreement, if then invoiced.
(d) The Agent has received all fees and expenses required
to be paid by the Company in connection with the Amendment other than such fees
and expenses for which the Company has not received bills from the applicable
Person or Persons.
(e) The Agent has received from the Company and each of the
Banks a duly executed copy of this Amendment.
(f) The Agent has received from the Company duly executed
copies of the new Notes for all the Banks reflecting the new Commitments of the
Banks.
(g) The Agent has received:
(i) copies of the resolutions of the board of directors
of (A) the Company authorizing the transactions contemplated hereby and (B) the
Guarantor authorizing the transactions contemplated by the Guarantor
Acknowledgment and Consent executed by the Guarantor in the form attached hereto
as Annex 3 (the "Consent") and the Guaranty, each certified as of the Effective
Date by the Secretary or an Assistant Secretary or other duly authorized officer
of such Person; and
(ii) a certificate of the Secretary or Assistant Secretary
or other duly authorized officer of each of the Company and the Guarantor
certifying (A) the names and true signatures of the officers of the Company
and the Guarantor, respectively, authorized to execute, deliver and
perform, as applicable, this Amendment, and all other Loan Documents to be
delivered by it, respectively, hereunder, and (B) that the respective
charter documents of the Company and the Guarantor provided to the Banks at
the time of the execution and delivery of the Credit Agreement are in full
force and effect and are unchanged from the versions of such documents
provided to the Banks at the time of the execution and delivery of the
Credit Agreement.
(h) The Agent has received:
(i) an opinion of Stradling, Yocca, ▇▇▇▇▇▇▇ & ▇▇▇▇▇,
California counsel to the Company, addressed to the Agent and the Banks;
(ii) an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, California
counsel to the Guarantor, addressed to the Agent and the Banks; and
(iii) an opinion of Shin & ▇▇▇, Korea counsel to the
Guarantor, addressed to the Agent and the Banks.
(i) The Agent has received a duly executed copy of the
Consent.
(j) The Agent has received copies of all consents
(including, without limitation, the consent of Hanil Bank) required in
connection with the execution of this Amendment and the Consent.
5. Certain Effective Date Transitional Matters.
(a) On the Effective Date, each Bank hereby sells and
assigns, without recourse, an amount of Loans equal to the product of (i) the
excess (if any) of its Original Percentage over its Effective Date Percentage
times (ii) the aggregate principal amount of Loans outstanding on such date and
each Bank hereby purchases an amount of Loans equal to the product of (i) the
excess (if any) of its Effective Date Percentage over its Original Percentage
times (ii) the aggregate principal amount of Loans outstanding on such date.
Each Bank selling Loans hereunder shall be deemed to have sold (and each Bank
purchasing Loans shall be deemed to have purchased) a pro rata portion (based on
the aggregate principal amount of Loans then outstanding) of each of such
selling Bank's Loans. Payments by each Bank purchasing Loans hereunder shall be
made to the Agent not later than 9:00 a.m., San Francisco time in immediately
available funds, without setoff, deduction or counterclaim, for the pro rata
account (based upon the outstanding principal amount of Loans being sold) of
each selling Bank in an amount equal to the aggregate principal amount of
outstanding Loans purchased by such Bank.
(b) On and after the Effective Date, each Bank shall be
entitled to receive commitment fees under Section 2.09(b) of the Credit
Agreement and interest on Loans and on any other amount due under any Loan
Document, in each case, (i) accrued and unpaid before the Effective Date in
accordance with its Original Percentage and (ii) accrued on and after the
Effective Date in accordance with its Effective Date Percentage.
(c) On and after the Effective Date, to the extent that any
commitment and the other rights and obligations of any Bank existing at the time
immediately preceding the Effective Date have been assigned or delegated, as
applicable, to any Bank hereunder, such Bank hereby assumes such commitment
and other obligations and shall have the rights and obligations of a Bank
hereunder and under the other Loan Documents and, to the extent that any
commitment and other obligations of any Bank existing at the time immediately
preceding the Effective Date have been delegated by any Bank pursuant to this
Agreement, such Bank shall be released from such commitment and its obligations
thereunder and under the other Loan Documents.
For purposes of this Section 5, (i) "Original Percentage" means,
relative to any Bank, the percentage set forth with respect to such Bank on the
schedule attached hereto as Annex 4 and (ii) "Effective Date Percentage" means,
relative to any Bank, the percentage set forth with respect to such Bank on the
schedule attached hereto as Annex 4.
6. Reservation of Rights. The Company acknowledges and agrees
that the execution and delivery by the parties hereto of this Amendment shall
not be deemed to create a course of dealing or an obligation to execute similar
waivers or amendments under the same or similar circumstances in the future.
7. Miscellaneous.
(a) Except as herein expressly amended, all terms,
covenants and provisions of the Loan Documents are and shall remain in full
force and effect, without defense, offset or counterclaim. All references
therein shall henceforth refer to the Loan Documents as amended by this
Amendment. This Amendment shall be deemed incorporated into, and a part of, the
Loan Documents.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of California; provided that the Agent and
the Banks shall retain all rights arising under federal law.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each of
the parties hereto understands and agrees that this Amendment (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Agent of a facsimile transmitted document purportedly
bearing the signature of a Bank will have the same force and effect as the
delivery of a hard copy original. Any failure by the Agent to receive the hard
copy executed original of such document shall not diminish the binding effect of
receipt of the facsimile transmitted executed original of such document of the
party whose hard copy page was not received by the Agent.
(e) This Amendment contains the entire and exclusive
agreement of the parties hereto with reference to the matters discussed
herein and therein. This Amendment supersedes all prior drafts and
communications with respect thereto. This Amendment may not be amended except
in accordance with the provisions of Section 10.01 of the Credit Agreement.
(f) If any term or provision of this Amendment shall be
deemed prohibited by or invalid under any applicable law, such provision shall
be invalidated without affecting the remaining provisions of this Amendment or
the Loan Documents, respectively.
(g) The Company covenants to pay to or reimburse the Agent
and the Banks, upon demand, for all reasonable costs and expenses (including
allocated costs of in-house counsel) incurred in connection with the
development, preparation, negotiation, execution and delivery of this Amendment.
(h) Reasonably promptly after the satisfaction of the
conditions set forth in Section 4, the Agent will certify such satisfaction in
writing to the Company
and the Banks.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered in San Francisco, California, by their proper and
duly authorized officers as of the day and year first above written.
AST RESEARCH, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President,
Legal and Administration
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President/Controller
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ROYAL BANK OF CANADA
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Manager
BANQUE NATIONALE DE PARIS
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President & Manager
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
Title: Senior Vice President
COMMERZBANK AKTIENGESELLSCHAFT,
LOS ANGELES BRANCH
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/▇.▇. ▇▇▇▇
Title: Vice President
ABN AMRO BANK N.V.,
LOS ANGELES INTERNATIONAL BRANCH
By: ABN AMRO NORTH AMERICA, INC.,
as agent therefor
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Group Vice President/Director
THE BANK OF NOVA SCOTIA
By: /s/▇▇▇▇▇ ▇. York
Title: Vice President
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
Bank of America National $ 40,000,000 20%
Trust and Savings
Association
Royal Bank of Canada $ 25,000,000 12.5%
Banque of Nacionale de Paris $ 25,000,000 12.5%
Nationsbank of Texas, N.A. $ 25,000,000 12.5%
ABN AMRO Band N.V. $ 25,000,000 12.5%
Los Angeles International Branch
The First National Bank $ 10,000,000 5%
of Chicago
Commerzbank Aktiengesellschaft $ 25,000,000 12.5%
Los Angeles Branch
The Bank of Nova Scotia $ 25,000,000 12.5%
TOTAL $200,000,000 100%
GUARANTOR ACKNOWLEDGMENT AND CONSENT
The undersigned, the guarantor with respect to AST Research, Inc.'s (the
"Company") obligations to the Agent and the Banks under the Credit Agreement,
hereby (a) acknowledges and consents to the execution, delivery and performance
by Company of the First Amendment to Credit Agreement dated as of February 29,
1996, a copy of which is attached hereto (the "Amendment"), (b) reaffirms and
agrees that the Guaranty and all other documents and agreements executed and
delivered by the undersigned to the Agent and the Banks in connection with the
Credit Agreement are in full force and effect, without defense, offset or
counterclaim and, (c) reaffirms and agrees that all of the provisions of the
Guaranty are applicable to, and enforceable by the Agent and all Banks party to
the Amendment against, the undersigned with respect to the increased Commitments
aggregating $200,000,000 under the Credit Agreement.
The undersigned hereby represents and warrants to the Agent and the Banks
on the date hereof and as of the Effective Date as follows:
(i) the execution, delivery and performance by the undersigned of the
Guaranty and this Guarantor Acknowledgment and Consent have been duly authorized
by all necessary corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action by, any Person
(including any Governmental Authority) in order to be effective and enforceable,
except as have been previously obtained and delivered to the Agent and the
Banks;
(ii) the Guaranty and this Guarantor Acknowledgment and Consent constitute
the legal, valid and binding obligations of the undersigned, enforceable against
it, in accordance with their respective terms, without defense, counterclaim or
offset;
(iii) all representations and warranties of the undersigned contained in
the Guaranty are true and correct; and
(iv) the undersigned is entering into this Guarantor Acknowledgment and
Consent on the basis of its own investigations, and for its own reasons, without
reliance upon the Agent, the Banks or any other Person.
Capitalized terms used herein have the meanings specified in the Amendment.
SAMSUNG ELECTRONICS CO., LTD
Dated: March 5, 1996 By: /s/▇▇▇▇▇▇ Soo Hong
Title: Senior Vice President
Sales and Marketing