EXHIBIT 10.89
AMENDED LOAN AND SECURITY AGREEMENT
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This Agreement ("Amended Agreement"), effective January 2, 1997, ("Effective
Date") is by and between NS Electronics Bangkok (1993) Ltd. ("NSEB") and
Microelectronic Packaging, Inc., a U.S. Corporation having offices at 0000 Xxxxx
Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("MPI").
WHEREAS, NSEB has previously loaned funds to MPI under a Loan and Security
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Agreement ("First Loan") which was evidenced by a Secured Promissory Note
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("First Note"), both dated May 30, 1995;
WHEREAS, NSEB and MPI have mutually agreed to re-negotiate the terms and
conditions of the aforementioned First Loan and First Note;
WHEREAS, MPI agrees to pay interest on the loan, to permit some of MPI's trade
receivables and equipment to stand as security for the loan and to permit NSEB
to record its security interest and to pay back the loan principal and the
interest according to a mutually agreeable schedule.
THEREFORE, this Amended Loan and Security Agreement and related Second
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Secured Promissory Note of even date hereof, shall supersede the aforementioned
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Agreement and Note dated May 30, 1995, in their entirety.
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties
and conditions set forth below, the parties agree as follows:
1. OBLIGATION OF NSEB
In consideration of the obligation of MPI set forth below, NSEB will accept
a Second Secured Promissory Note dated January 2, 1997, in exchange for the
cancellation of the First Note dated May 30, 1995. NSEB hereby expressly
waives any breach of the covenants, terms and conditions of the First Loan
and the First Note (which may include, but is not limited to, the failure
to make principal and interest payments when due and the sale of
substantially all of the assets of one of the Borrower's affiliates).
The amount of the Second Secured Promissory Note will be US$1,250,000
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(representing the unpaid principal balance of the First Note dated May 30,
1995), and will be subject to interest, repayment terms and other
conditions as set forth below.
NSEB hereby expressly waives any breach of the covenants, terms and
conditions of the original Loan and Security Agreement and the Secured
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Promissory Note (which may include, but is not limited to, the failure to
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make principal and interest payments when due and the sale of substantially
all of the assets of one of the Borrower's affiliates).
2. DETAILS OF THE LOAN
The loaned mount shall be set forth in a promissory note to be executed by
MPI and NSEB which promissory note shall be subject to the terms and
conditions hereof. MPI shall pay interest of 18% on the loaned amount such
interest to be calculated and payable on a
quarterly basis beginning on March 31, 1997. The principal of the loan
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shall be paid back in sixteen (16) equal quarterly installments of
US$78,125, commencing on March 31, 1998. MPI shall remit funds for payment
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of interest and principal of loan to NSEB on the date and for the amount
stated in the Quarterly Payment Schedule (Attachment A).
MPI shall execute any papers necessary for NSEB to register, perfect under
U. S. law and assert its lien on and security interest in the
aforementioned collateral. MPI shall execute the Second Secured Promissory
Note coincident with the execution of this Amended Agreement in the form
attached.
3. OBLIGATION OF MPI
MPI agrees to repay the principal of the loan and interest thereon as set
forth above.
As security for the payment and performance of the above obligation, MPI
hereby grants to NSEB a first priority security interest in all of
Borrower's domestic equipment not subject to an existing lien (assets
subject to preexisting liens consist of one (1) FEK Delvotec Rotary Head
Bonder, Model 6319, one (1) MYDATA Automation, Inc. TP9-2U Pick and Place
Machine, one (1) K & S Wire Bonder and one (1) Mega II Cleaner), as well as
a security interest in all of the Company's domestic trade accounts
receivable.
4. DEFAULT
If MPI breaches this Amended Agreement by failing to perform any duty or
obligation set forth in Sections 1, 2 or 3, and if the breach is not cured
to the satisfaction of NSEB within ninety (90) days after the receipt of
written notice from NSEB of the occurrence of an event of default;
a) The Second Secured Promissory Note shall then become due and the due
date for the payment of unpaid principal and interest shall accelerate
to the date which is ninety (90) days after such notice; and/or
b) NSEB shall have the right to assert its lien in and to the collateral,
including the rights to peacefully enter MPI's premises during normal
working hours for the purpose of removal of such equipment and to
subsequently productively use (or have used) such equipment for its
benefit or to sell such equipment, any difference between the proceeds
of such sale and amounts owed to NSEB by MPI to remain a continuing
obligation of MPI.
5. APPLICABLE LAW
This agreement shall be interpreted according to the law of the republic of
Thailand, the courts of which shall have jurisdiction over disputes
involving this Agreement. If the law of the republic of Thailand prohibits
loan interest in the amount set forth in Section 2, the amount shall be
amended to be the maximum allowed by such law.
6. MISCELLANEOUS
a) This is the entire Amended Agreement between the parties on the
subject matter hereof. No oral, written or other agreements or
understanding shall have any effect or shall amend or modify this
Amended Agreement. Only a writing executed by the parties to be
changed after the execution of this Amended Agreement shall be capable
of amending this Amended Agreement.
b) Written notice permitted or required by this Amended Agreement shall
be sent to the persons listed below and shall be effective (i) when
delivered, if delivered by hand or (ii) three (3) days after mailing,
if mailed first class, postage prepaid.
ON BEHALF OF NSEB ON BEHALF OF MPI
Thakol Nunthirapakorn, Ph.D. Xxxxx X. Xxxxxxxxxx
N S Electronics Bangkok (1993) ltd. Microelectronic Packaging, Inc.
40/10 Sukhumvit 105 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000 Xxx Xxxxx, XX 00000
Thailand U. S. A.
c) both parties warrant that they are authorized to enter into this
Amended Agreement and to perform the acts required hereby.
d) MPI shall not assign its rights or delegate its duties hereunder
without the express written permission of NSEB, such permission to be
executed by the same person executing this Amended Agreement on behalf
of NSEB or that person's successor.
e) Any waiver, express or implied, by NSEB of any breach by MPI of any
vision of this Amended Agreement shall not operate as a waiver of a
later breach of same or another provision.
f) The parties warrant that they will conform to all applicable laws and
governmental provisions in performing this Amended Agreement,
including the applicable rules and regulations of the United States
Department of Commerce regarding exports.
g) Should the value of the collateral as security for this loan to MPI
become degraded or lessened, additional, mutually agreeable security
shall be advanced by MPI and shall be subject to the same terms and
conditions as set forth in Sections 2 and 4.
WHEREFORE, the parties have executed this Amended Agreement as set forth
below.
NS ELECTRONICS BANGKOK (1993), LTD. MICROELECTRONIC PACKAGING, INC.
By /s/ Thakol Nunthirapakorn, Ph.D. By /s/ Xxxxx X. Xxxxxxxxxx
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Thakol Nunthirapakorn, Ph.D. Xxxxx X. Xxxxxxxxxx
Chief Financial Officer Chief Financial Officer
By /s/ Chavalit Prachyaporn By
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Chavalit Prachyaporn
Director
Date March 31, 1997 Date March 26, 1997
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