Exhibit 10.35
AMENDMENT TO INDEMNIFICATION AND REIMBURSEMENT AGREEMENT
This AMENDMENT TO INDEMNIFICATION AND REIMBURSEMENT AGREEMENT (this
"Amendment"), dated as of May 29, 2002, is made between SANDISK CORPORATION, a
Delaware corporation ("SanDisk"), and TOSHIBA CORPORATION, a Japanese
corporation ("Toshiba").
WITNESSETH:
WHEREAS, SanDisk and Toshiba are parties to that certain
Indemnification and Reimbursement Agreement dated as of April 10, 2002 (as from
time to time amended, restated, supplemented or otherwise modified, the
"Indemnification Agreement"); and
WHEREAS SanDisk and Toshiba desire to amend the Indemnification
Agreement to make certain amendments as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants herein and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, SanDisk and Toshiba have agreed as follows:
Section 1. Amendments to the Indemnification Agreement.
(a) The definition of "Toshiba Guaranty Default" in the
Indemnification Agreement is amended in its entirety to read in full as follows:
"Toshiba Guaranty Default" means: (i) any default by Toshiba in the
performance of any obligation under or compliance with any covenant
under the Toshiba Guaranty, or (ii) any event, occurrence or
circumstance that, under the Toshiba Guaranty, entitles any of the
Bridge Bank or Refinancing Banks to demand payment, excluding from
this clause (ii) any default by FVC-Japan under the Refinancing
Documents that is not a result of any Guarantor-Triggered
Refinancing Document Default.
(b) Section 1 of the Indemnification Agreement is hereby
amended by adding thereto in the correct alphabetical order the following
definitions:
"Guarantor-Triggered Refinancing Document Default" means any event,
occurrence or circumstance affecting or effected by Toshiba or any
act or omission by Toshiba (including, without limitation,
difficulty in performing any obligation under the Toshiba Guaranty)
in any case the occurrence or existence of which constitutes an
event described under Article 26, Paragraphs 1(5), 1(6), 1(7),
1(8), or 1(11) of the Refinancing Lease Agreement.
"Refinancing Lease Agreement" means that certain Lease Agreement
dated May 29, 2002 made and entered into by and between
Incandescent Leasing Yugen
Kaisha and FVC-Japan (as from time to time amended, restated,
supplemented or otherwise modified).
Section 2. Effectiveness; Counterparts. Section 1 of this Amendment
shall be effective upon the execution hereof by each of SanDisk and Toshiba.
This Amendment may be executed in any number of counterparts
Section 3. Governing Law. This Amendment 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 4. No Other Amendments. Except for the amendments expressly
set forth and referred to in Section 1 above, the Indemnification Agreement
shall remain unchanged and in full force and effect.
Section 5. Entire Agreement. The Indemnification Agreement as
amended by this Amendment embodies the entire agreement between the parties
hereto relating to the subject matter hereof and supercedes all prior
agreements, representations and understandings, if any, relating to the subject
matter hereof.
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IN WITNESS WHEREOF, for good and valuable consideration and
intending to be legally bound hereby, this Amendment has been executed and
delivered by SanDisk and Toshiba as of the date hereof.
SANDISK CORPORATION
By: /s/ Xxx Xxxxxx
-------------------------------
Name: Xxx Xxxxxx
Title: President & Chief Executive
Officer
TOSHIBA CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Corporate Senior Vice President
President & CEO
Semiconductor Company
