EXHIBIT 10.149
WAIVER AND SECOND AMENDMENT TO CREDIT AGREEMENT
THIS WAIVER AND SECOND AMENDMENT TO CREDIT AGREEMENT (the "Agreement"), dated as
of July 21, 1995, is entered into by and among AST CANADA, INC., AST EUROPE
LIMITED, AST RESEARCH FRANCE S.A.R.L. and AST SWEDEN AB (collectively, the
"Borrowers"; individually, a "Borrower"), AST RESEARCH, INC., a Delaware
corporation (the "Company"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, (the "Bank").
RECITALS
A. The Borrowers, the Company and the Bank are parties to a Credit
Agreement dated as of February 9, 1995, as amended by that certain First
Amendment to Credit Agreement dated as of April 5, 1995 (as so amended, the
"Credit Agreement"), pursuant to which the Bank has extended certain credit
facilities to the Borrowers, subject to the terms and conditions thereof.
B. The Company, the Bank, as administrative agent (in such capacity, the
"Administrative Agent"), co-agent and issuing bank, National Westminster Bank
Plc, Shawmut Bank, N.A. and CIBC, Inc., each as co-agent, and the several
financial institutions party thereto (collectively, the "Syndicate Facility
Banks") are parties to a Credit Agreement dated as of September 30, 1993, as
amended by that certain First Amendment to Credit Agreement dated as of March
30, 1994, that certain Second Amendment to Credit Agreement dated as of April
27, 1994, that certain Third Amendment to Credit Agreement dated as of December
23, 1994, and that certain Waiver and Fourth Amendment to Credit Agreement dated
as of July 21, 1995 (as so amended, the "Syndicated Credit Facility"), pursuant
to which the Syndicate Facility Banks have extended certain credit facilities to
the Company, subject to the terms and conditions thereof.
C. The Company and Samsung Electronics Co., Ltd. (the "Purchaser") are
parties to a Stock Purchase Agreement dated as of February 27, 1995, as amended
by that certain Amendment No. 1 to Stock Purchase Agreement dated as of June 1,
1995 (as so amended, the "Stock Purchase Agreement"), pursuant to which the
Purchaser has agreed (i) to acquire from the Company certain shares of the
Company's common stock and (ii) to offer to purchase from shareholders certain
shares of the Company's common stock.
D. The Company and the Borrowers have reported to the Bank that an Event
of Default exists on the date of this Agreement under Section 8.1(c) of the
Credit Agreement as a consequence of a breach of the negative covenant set forth
at Section 7.12 of the Credit Agreement as a result of the net loss incurred by
the Company for the fiscal quarter ended July 1, 1995 (the "Existing Default").
E. The Company and the Borrowers have reported to the Bank that Events of
Default may exist on the date of this Agreement under Section 8.1(c) of the
Credit Agreement as a consequence of the breach of the negative covenants set
forth at Sections 7.10, 7.11 and 7.14 of the Credit Agreement as of the last day
of the fiscal quarter ended July 1, 1995 (collectively, the "Additional
Defaults").
F. The Company and the Borrowers have requested that the Bank extend the
maturity of the Credit Agreement to August 31, 1995 and waive the Existing
Default and the Additional Defaults through August 31, 1995, subject to the
Early Termination Events set forth herein. The Bank is willing to extend the
maturity of the Credit Agreement to August 31, 1995, subject to the terms
hereof, and to waive the Existing Default and the Additional Defaults through
August 31, 1995, subject to the Early Termination Events set forth herein.
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. Waiver.
(a) Commencing on the Effective Date, and subject to the terms and
conditions hereof, the Bank hereby waives the Existing Default and the
Additional Defaults through and including August 31, 1995; provided, that the
Existing Default and the Additional Defaults shall immediately and automatically
continue in effect for all purposes on September 1, 1995, and provided further,
that such waiver shall immediately and automatically terminate and the Existing
Default and the Additional Defaults shall continue in effect for all purposes if
any of the following (each, an "Early Termination Event") occurs:
(i) either the Company or the Purchaser terminates the Stock
Purchase Agreement in accordance with its terms, or repudiates, rescinds or
disputes the effectiveness of any term or provision of the Stock Purchase
Agreement, or the Stock Purchase Agreement terminates for any other reason;
or the Stock Purchase Agreement is amended so as to permit the purchase and
sale of the Company's common stock thereunder after August 31, 1995;
(ii) any statute, rule, regulation, order, decree, ruling or
other action is entered, promulgated, enforced or threatened by any
Governmental Authority, which purports to adversely affect, or pertain in
an adverse manner to, the Stock Purchase Agreement or any of the
transactions contemplated thereby; or any action, suit proceeding, claim or
dispute, at law, in equity, in arbitration or before any Governmental
Authority, is commenced or threatened against the Company, which purports
to adversely affect, or pertain in an adverse manner to, the Stock Purchase
Agreement or any of the transactions contemplated thereby, and which
remains undismissed, unsatisfied, unvacated or unstayed seven Business Days
after the commencement or threat thereof; or any injunction, writ,
temporary restraining order or other order of any nature is issued by any
court or other Governmental Authority purporting to prohibit, restrain,
enjoin or restrict the execution, delivery or performance of the Stock
Purchase Agreement or directing that the transactions provided for therein
not be consummated as therein provided, and the enforcement thereof is not
released, vacated or stayed within seven Business Days after the entry
thereof;
(iii) any approval, consent, exemption, authorization or other
action by, or notice to, or filing with, any Governmental Authority
necessary or required in connection with the execution, delivery or
performance by the Company or the Purchaser of the Stock Purchase
Agreement, which has been obtained or made by the Company or the Purchaser
is, in whole or in part, revoked or rescinded, or otherwise ceases to be in
full force and effect;
(iv) the Purchaser shall purchase only the First Issuance Shares
(as defined in the Stock Purchase Agreement), or the cash proceeds received
by the Company in connection with the sale of the First Issuance Shares and
the Second Issuance Shares (as such terms are defined in the Stock Purchase
Agreement), net of reasonable out-of-pocket costs and expenses paid or
incurred by the Company in connection therewith, is less than $200,000,00;
(v) the commitment of the Syndicate Facility Banks to extend
credit under the Syndicate Credit Facility terminates prior to the
consummation of the sale of the First Issuance Shares and the Second
Issuance Shares (as such terms are defined in the Stock Purchase
Agreement); or the Syndicate Facility Banks (or the Administrative Agent on
their behalf) take any action for the purpose of collecting the obligations
owing to them under the Syndicate Credit Facility, or exercise any rights
or remedies available to them with respect to the Syndicate Credit Facility
as
a result of the Existing Default or any of the Additional Defaults;
(vi) the Company or any Borrower shall commence, or have
commenced against it, or undertake, any Insolvency Proceeding;
(vii) any representation or warranty by the Company or any
Borrower made herein is incorrect in any material respect on or as of the
date made, or the Company or any Borrower fails to perform or observe any
term, covenant or agreement contained herein;
(viii) the Company or any Borrower shall repudiate, reached or
dispute the effectiveness of any term or provision, of this Agreement, the
Credit Agreement or any other Loan Documents; or
(ix) there occurs any Event of Default other than the Existing
Default and the Additional Defaults.
Nothing contained herein shall be deemed to imply any obligation on the part of
the Bank to renew or extend the waiver period provided herein; nor shall the
failure of the Company to close the sale of its common stock to the Purchaser
pursuant to the Stock Purchase Agreement by August 31, 1995 imply any obligation
on the part of the Bank to renew or extend the waiver period provided herein.
(b) Subject to the subsection 2(a) hereof, nothing contained herein
shall be deemed a waiver of or otherwise affect the Bank's ability to enforce
its rights and remedies as a result of the Existing Default or any of the
Additional Defaults.
(c) Nothing contained herein shall be deemed a waiver of or otherwise
affect the Bank's ability to enforce its rights and remedies as a result of any
other default or Event of Default, including without limitation (i) any default
or Event of Default as may now or hereafter exist and arise from or otherwise be
related to the Existing Default or any of the Additional Defaults (including
without limitation any cross-default arising under the Credit Agreement by
virtue of any matters resulting from the Existing Default or any of the
Additional Defaults), and (ii) any default or Event of Default arising at any
time after the Effective Date and which is the same as the Existing Default or
any of the Additional Defaults.
3. Amendment to Credit Agreement. The definition of the term
"Availability Period" set forth in Section 1.1 of the Credit Agreement shall be
amended and restated as follows:
"'Availability Period' means the period commencing on the date of this
Agreement and ending on August 31, 1995 (or such earlier date, if any, on
which the Bank's commitment to make advances hereunder terminates)."
4. Effective Date. This Agreement, including the waiver set forth in
Section 2(a) hereof and the amendments to the Credit Agreement set forth in
Section 3 hereof, will become effective as of July 21, 1995 (the "Effective
Date"), provided that each of the following conditions precedent are satisfied:
(a) The Bank has received from the Company and each Borrower a duly
executed original (or, if elected by the Bank, an executed facsimile copy) of
this Agreement.
(b) The Bank has received from the Company a duly executed original
(or, if elected by the Bank, an executed facsimile copy) fee letter agreement in
form and substance satisfactory to the Bank.
(c) All representation and warranties contained herein are true and
correct as of the Effective Date.
5. Representations and Warranties of the Company. As a material
inducement for the Bank to enter into this Agreement, the Company and each
Borrower hereby represent and warrant to the Bank as follows:
(a) Other than the Existing Default and the Additional Defaults, no
Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Company and each
Borrower of this Agreement have been duly authorized by all necessary corporate
and other action and do not and will not require and 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) The Credit Agreement, as amended by this Agreement, and the other
Loan Documents constitute the legal, valid and binding obligations of the
Company and each Borrower, enforceable against such Person in accordance with
their respective terms, without defense, counterclaim or offset, and all
Obligations of the Borrowers under the Credit Agreement and the other Loan
Documents are guaranteed by the Company in accordance with Section 9.1 of the
Credit Agreement.
(d) Subject to the Existing Default and the Additional Defaults, all
representations and warranties of the Company and to each Borrower contained in
the Credit Agreement and the other Loan Documents are true and correct.
(e) The Stock Purchase Agreement is in full force and effect, and has
not been terminated by either party; and the Company and the Purchaser have
obtained or made all approvals, consents, exemptions, authorizations or other
actions by, or notices to, or filings with, any Governmental Authority necessary
or required in connection with the execution, delivery or performance by the
Company and the Purchaser of the Stock Purchase Agreement, all of which are in
full force and effect.
(f) The Company and each Borrower are entering into this Agreement on
the basis of their own investigation and for their own reasons, without reliance
upon the Bank or any other Person.
6. Covenants of the Company. As a material inducement for the Bank to
enter into this Agreement, the Company and each Borrower hereby covenants and
agrees with and in favor of the Bank, promptly to notify the Bank of the
occurrence of any Early Termination Event, and of the occurrence or existence of
any event or circumstance that foreseeably will become an Early Termination
Event.
7. Reservation of Rights. The Company and each Borrower acknowledge and
agree that none of the Bank's forbearance in exercising its rights and remedies
in connection with the Existing Default and the Additional Defaults, nor the
execution and delivery by the Bank of this Agreement, shall be deemed (a) to
create a course of dealing or otherwise obligate the Bank to forbear or execute
similar agreements on waivers under the same or similar circumstances in the
future, or (b) to waive, relinquish or impair any right of the Bank to receive
any indemnity or similar payment from any Person or entity as a result of any
matter arising from or relating to the Existing Default or any of the Additional
Defaults.
8. Guarantor Consent. The Company, as Guarantor with respect to the
Borrowers' Obligations to the Bank under the Credit Agreement, hereby (a)
acknowledges and consents to the execution, delivery and performance by the
Borrowers of this Agreement, and (b) reaffirms and agrees that the guaranty
provisions contained in the Credit Agreement are in full force and effect,
without defense, offset or counterclaim.
9. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement and the other Loan Documents are and shall
remain in full force and effect and all references therein to
such Credit Agreement shall henceforth refer to the Credit Agreement as amended
by this Agreement. This Agreement shall be deemed incorporated into, and a part
of, the Credit Agreement.
(b) This Agreement 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 Agreement.
(c) This Agreement shall be governed by and construed in accordance
with the law of the State of California.
(d) 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, if elected by the Bank, an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Bank of a facsimile transmitted document purportedly bearing
the signature of a Borrower or the Company shall bind such Person with the same
force and effect as the delivery of a hard copy original. Any failure by the
Bank 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 Bank.
(e) This Agreement, together with the Credit Agreement and the other
Loan Documents, contains the entire and exclusive agreement of the parties
hereto with reference to the matters discussed herein and therein. This
Agreement supersedes all prior drafts and communications with respect thereto.
This Agreement may not be amended except in accordance with the provisions of
Section 9.3 of the Credit Agreement.
(f) If any term or provision of this Agreement shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Agreement, the
Credit Agreement or the other Loan Documents, respectively.
(g) The Company covenants to pay to or reimburse the Bank, upon
demand, for all costs and expenses (including allocated costs of in-house
counsel) incurred in connection with the development, preparation, negotiation,
execution and delivery of this Agreement and the administration of the Existing
Default and the Additional Defaults.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
By: /s/ Xxxxx XxXxxxx
Title: Vice President
AST RESEARCH, INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Senior Vice President, Legal
and Treasury Operations
By: /s/ XXXXX X. XXXXXXX
Title: Executive Vice President and
Chief Financial Officer
AST CANADA, INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
By:
Title:
AST EUROPE LIMITED
By: /s/ Safi U. Qureshey
Title: CEO
By: /s/ Xxxxx X. Xxxxxxx
Title: Executive Vice President
AST RESEARCH FRANCE S.A.R.L.
By: /s/ Xxxxxx X. Xxxxxx
Title:
By: /s/ Xxxxx X. Xxxxxxx
Title:
AST SWEDEN AB
By: /s/ Safi U. Qureshey
Title: Director
By: /s/ Xxxxx X. Xxxxxxx
Title: Director
