AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement (the "Agreement") is
entered into as of December 17, 1996 among AST Research, Inc., a Delaware
corporation (the "Company"), the several financial institutions from time to
time party to this Agreement (collectively, the "Banks"; individually, a
"Bank"), and Bank of America National Trust and Savings Association, as agent
for the Banks (the "Agent").
WHEREAS, the Company, the Banks, and the Agent are parties to a Credit
Agreement dated as of December 20, 1995, as amended by a First Amendment thereto
dated as of February 29, 1996 (as so amended, the "Prior Agreement");
WHEREAS, the parties hereto desire to amend the Prior Agreement as set
forth herein and to restate the Prior Agreement in its entirety to read as set
forth in the Prior Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions; References.
(a) Unless otherwise specifically defined herein, each term used
herein which is defined in the Prior Agreement shall have the meaning assigned
to such term in the Prior Agreement. The term "Notes" defined in the Prior
Agreement shall include from and after the date hereof the Notes delivered under
this Agreement.
(b) Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference and each reference to "this Agreement"
and each other similar reference contained in the Prior Agreement and in the
other Loan Documents to the Prior Agreement shall from and after the date hereof
refer to the Prior Agreement as amended and restated hereby.
2. Amendments to Prior Agreement.
(a) Amendments to Article I of the Prior Agreement.
(1) The definition of "Applicable Margin" is amended in its
entirety to provide as follows:
"Applicable Margin" means:
(i) with respect to Base Rate Loans, 0%; and
(ii) with respect to Offshore Rate Loans .375%.
(2) The following definition of "Effective Date" is
inserted:
"Effective Date" has the meaning specified in
the Amended and Restated Credit Agreement dated as of
December 17, 1996 among the parties hereto.
(3) The definition of "Revolving Termination Date" is
amended in its entirety to provide as follows:
"Revolving Termination Date" means
the earlier of:
(a) December 23, 1997;
(b) 364 days after the Effective Date; and
(c) the date on which the Commitments
otherwise terminate in accordance with the provisions of
this Agreement.
(4) The definitions of "Solvent" and "Tangible Net Worth"
are deleted."
(b) Amendments to Article II of the Prior Agreement.
(1) Section 2.06 is amended by inserting the phrase "on any
Offshore Rate Loans (interest on any other type of loans being payable in
accordance with Section 2.08)" after the word "interest".
(2) Section 2.09 is amended in its entirety to provide as
follows:
2.09 Fees. (a) Arrangement, Agency Fees. The
Company shall pay an arrangement fee to the Arranger for the
Arranger's own account, and shall pay an agency fee to the
Agent for the Agent's own account, as required by the letter
agreement ("Fee Letter") between the Company and the
Arranger and Agent dated December 3, 1996.
(b) Commitment Fees. The Company shall pay to
the Agent for the account of each Bank a commitment fee on the
average daily unused portion of such Bank's Commitment, computed
on a quarterly basis in arrears on the last Business Day of each
calendar quarter based upon the daily utilization for that
quarter as calculated by the Agent, equal to .100 percent per
annum. Such commitment fee shall accrue from the Effective Date
to the Revolving Termination Date and shall be due and payable
quarterly in arrears on the last Business Day of each calendar
quarter commencing on March 31, 1997, to the Revolving
Termination Date, with the final payment to be made on the
Revolving Termination Date; provided that, in connection with any
reduction or termination of Commitments under Section 2.05, the
accrued commitment fee calculated for the period ending on such
date shall also be paid on the date of such reduction or
termination, with the following quarterly payment being
calculated on the basis of the period from such reduction or
termination date to such quarterly payment date.
(c) Amendments to Article V of the Prior Agreement.
(1) In Section 5.12(a), the phrase "5% of
the Company's Tangible Net Worth" is deleted and the phrase
"$25,000,000 or more" is inserted in lieu thereof.
(2) The text in Section 5.15 is deleted and
the phrase "Intentionally Omitted" is inserted in lieu
thereof.
(d) Amendments to Article VIII of the Prior Agreement.
(1) In Section 8.01(f), the phrase "ceases
or fails to be Solvent, or" is deleted.
(2) In Section 8.01(i), the phrase "10% of
Tangible Net Worth" is deleted and the phrase "$25,000,000"
is inserted in lieu thereof.
(e) Amendments to Schedules to the Prior Credit Agreement.
(1) Schedule 2.01 is amended by
deleting said Schedule 2.01 in its entirety and by
replacing same with the form of Schedule 2.01 attached
hereto as Annex 1.
(2) Schedule 10.02 is amended by
deleting said Schedule 10.02 in its entirety and by
replacing same with the form of Schedule 10.02 attached
hereto as Annex 2.
3. Representations and Warranties. The Company hereby represents
and warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the Company of
this Agreement and the Prior Agreement as amended and restated by this Agreement
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. The Prior Agreement as amended and restated by this
Agreement constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its respective terms, without defense,
counterclaim or offset.
(c) All representations and warranties of the Company contained
in the Prior Agreement are true and correct.
(d) The Company is entering into this Agreement on the basis of
its own investigation and for its own reasons, without reliance upon the Agent
and the Banks or any other Person.
4. Effective Date.
(a) This Agreement will become effective as of December 24, 1996
(the "Effective Date"), provided that each of the following conditions precedent
is satisfied on or before such date:
(1) The Agent has received from the Company and each of the
Banks a duly executed original (or, if elected by the Agent, an executed
facsimile copy) of this Agreement; and, if requested by any Bank, a Note
substantially in the form of Exhibit H to the Prior Agreement.
(2) The Agent has received all fees and expenses accruing
through December 23, 1996 and/or otherwise required to be paid by the Company in
connection with the Agreement, other than such fees and expenses for which the
Company has not received bills from the applicable Person or Persons.
(3) The Agent has received each of the following, in form
and substance satisfactory to it and the Banks:
(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"), each certified as of the Effective Date by the
Secretary or an Assistant Secretary or other duly authorized officer of such
Person;
(ii) a copy of each of the Articles of Incorporation
and the Korean Commercial Registry extracts of the Guarantor certified by a
Representative Director of the Guarantor; and
(iii) a certificate of the Secretary or Assistant
Secretary or other duly authorized officer of each of the Company and the
Guarantor, as appropriate, 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 Agreement, and all other Loan Documents
to be delivered by it, respectively, hereunder, and (B) that the charter
documents of the Company provided to the Banks at the time of the execution and
delivery of the Prior 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 Prior Agreement.
(4) The Agent has received a duly executed copy of the
Consent.
(5) The Agent has received copies of all consents
(including, without limitation, the consent of Hanil Bank) required in
connection with the execution of this Agreement and the Consent.
(6) The Agent has received all other documents it or any
Bank may reasonably request relating to any matters relevant hereto, all in form
and substance satisfactory to the Agent and the Banks.
(b) From and after the Effective Date, the Prior Agreement is
amended as set forth herein and is restated in its entirety to read as set forth
in the Prior Agreement with the amendments specified herein. The Company
represents and warrants that its obligations under the Prior Agreement and under
the other Loan Documents are not subject to any defense, counterclaim, set-off,
right of recoupment, abatement or other claim.
5. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns.
(b) This Agreement shall be governed by and construed in
accordance with the law of the State of California.
(c) This Agreement 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 document (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, the Guarantor or the Company shall bind such
Bank, the Guarantor or the Company, respectively, with 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.
(d) 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; provided, however, that for purposes of determining
satisfaction of the conditions specified in Section 4, each Bank that has
executed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter either sent by
the Agent to such Bank for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Bank.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement 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/ WON X. XXXX
Title: Senior Vice President, Acting Chief
Financial Officer
By: /s/ XXXX XX XXXX
Title: Vice President, Finance and Treasurer
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as Agent
By: /s/ XXXXX XXXXXXX
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Bank
By: /s/ XXXXX XXXXXXX
Title:
ROYAL BANK OF CANADA
By: /s/ X.X. XXXXX
Title:
BANQUE NATIONALE DE PARIS
By: /s/ XXXXXXXX XXXXXXXX
Title:
By: /s/ X. XXXXXXX
Title:
NATIONSBANK OF TEXAS, N.A.
By: /s/ XXXXXXXXX XXXXXX
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
LOS ANGELES BRANCH
By: /s/ XXXXXX XXXXXX
Title:
By: /s/ XXXXXX XXXXXXX
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ X.X. XXXX
Title:
ABN AMRO BANK N.V.,
LOS ANGELES INTERNATIONAL
BRANCH
By: ABN AMRO NORTH AMERICA, INC., as agent
therefor
By: /s/ XXXXXXX XXXXXX
Title:
By: /s/ XXXXXXX XXXXXXX
Title:
THE BANK OF NOVA SCOTIA
By: /s/ XXXXXX XXXXXXXXX
Title:
BANCA COMMERCIALE ITALIANA,
LOS ANGELES FOREIGN BRANCH
By: /s/ XXXXXXX XXXXXXXX
Title:
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
Bank of America National
Trust and Savings
Association $ 40,000,000 20.000%
Royal Bank of Canada $ 25,000,000 12.500%
Banque Nationale de Paris $ 25,000,000 12.500%
NationsBank of Texas, N.A. $ 25,000,000 12.500%
ABN AMRO Bank N.V.,
Los Angeles International Branch $ 25,000,000 12.500%
The First National Bank
of Chicago $ 10,000,000 5.000%
Commerzbank Aktiengesellschaft,
Los Angeles Branch $ 25,000,000 12.500%
Banca Commerciale Italiana,
Los Angeles Foreign Branch $ 10,000,000 5.000%
The Bank of Nova Scotia $ 15,000,000 7.500%
TOTAL $200,000,000 100.000%
SCHEDULE 10.02
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
ADDRESS FOR NOTICES:
Bank of America National Trust
and Savings Association
Agency Administration Services #5596
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Assistant Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AGENT'S PAYMENT OFFICE:
Bank of America National Trust
and Savings Association
Agency Management Services #5596
Attention: Agency Management Services #5596
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
For credit to account: No. 12339-15104
Ref: AST Research
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
ADDRESS FOR NOTICES (OTHER THAN BORROWING NOTICES
AND NOTICES OF CONVERSION/CONTINUATION):
Bank of America NT&SA
000 Xxxxxxxxxx Xxxxxx, 41st Floor
Corporate Banking, High Technology
Attention: Xxxxx XxXxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/2514
ADDRESS FOR BORROWING NOTICES AND NOTICES OF CONVERSION/CONTINUATION):
Bank of America National Trust
and Savings Association
0000 Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
BANQUE NATIONALE DE PARIS
ADDRESS FOR NOTICES:
Banque Nationale de Paris
000 Xxxxx Xxxxxxxx Xxxxxx, Xxx. 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PAYMENT OFFICE:
Banque Nationale de Paris/Treasury
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ROYAL BANK OF CANADA
ADDRESS FOR NOTICES:
Royal Bank of Canada
000 Xxxxxxxx Xxxx., Xxx. 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PAYMENT OFFICE:
Royal Bank of Canada
1 Financial Square, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATIONSBANK, N.A.
ADDRESS FOR NOTICES:
NationsBank, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PAYMENT OFFICE:
NationsBank, N.A.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ABN AMRO BANK N.V., LOS ANGELES INTERNATIONAL BRANCH
ADDRESS FOR NOTICES (OTHER THAN BORROWING NOTICES AND NOTICES OF
CONTINUATION/CONVERSION):
ABN AMRO Bank N.V., Los Angeles International Branch
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx/Xxxx X. Xxxxxx
Telephone: (000) 000-0000/2072
Facsimile: (000) 000-0000
PAYMENT OFFICE AND ADDRESS FOR BORROWING NOTICES AND NOTICES OF
CONTINUATION/CONVERSION:
ABN AMRO Bank N.V., Los Angeles International Branch
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/2061
COMMERZBANK AKTIENGESELLSCHAFT, LOS ANGELES BRANCH
ADDRESS FOR NOTICES:
Commerzbank Aktiengesellschaft, Los Angeles Branch
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Commerzbank Aktiengesellschaft, New York Branch
2 World Financial Center
New York, New York 10281-1050
Attention: Andreas Schwung
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PAYMENT OFFICE:
Commerzbank Aktiengesellschaft, Los Angeles Branch
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Commerzbank Aktiengesellschaft, New York Branch
2 World Financial Center
New York, New York 10281-1050
Attention: Andreas Schwung
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO
ADDRESS FOR NOTICES;
The First National Bank of Chicago
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X.X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PAYMENT OFFICE:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE BANK OF NOVA SCOTIA
ADDRESS FOR NOTICES:
The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PAYMENT OFFICE:
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANCA COMMERCIALE ITALIANA:
ADDRESS FOR NOTICES:
Banca Commerciale Italiana,
Los Angeles Foreign Branch
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PAYMENT OFFICE:
Banca Commerciale Italiana,
Los Angeles Foreign Branch
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Annex 3
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
dated as of December 20, 1995 (as amended prior to the date hereof, the "Prior
Agreement"), hereby (a) acknowledges and consents to the execution, delivery and
performance by Company of the Amended and Restated Credit Agreement dated as of
December 17, 1996, a copy of which is attached hereto (the "Agreement"), (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 Prior Agreement and the 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 Agreement against, the undersigned.
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 or, 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.
(v) it has requested that the Agent and the Banks enter into the Agreement
notwithstanding that the Company may be deemed to be insolvent under applicable
law and that such insolvency may adversely affect its liability under the
Guaranty.
Capitalized terms used herein have the meanings specified in the Agreement.
SAMSUNG ELECTRONICS CO., LTD
Dated: , 1996 By: /s/ XXXXX XX XXX
Title: Vice Chairman
