EXHIBIT 10.33
November 14, 1995
AST Research, Inc.
00000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
X.X.X.
Dear Sirs:
Samsung Electronics America, Inc. (the "Lender") hereby agrees to make a
loan to AST Research, Inc. (the "Borrower") in the principal amount of
US$50,000,000 (the "Loan") according to the terms of this letter agreement
(hereinafter referred to as the "agreement").
The Loan shall be evidenced by a promissory note of the Borrower
substantially in the form of Exhibit A hereto (as amended, supplemented or
modified from time to time, the "Note"), which shall represent the Borrower's
obligation to pay to the Lender the principal amount of US$50,000,000, with
interest thereon as prescribed below.
The Note shall bear interest at a fluctuating rate per annum equal to the
rate (the "Interest Rate") which is the sum of (i) one and a half of one
percent (1.5%) and (ii) either (a) the rate per annum determined by the Lender
to be the rate equal to the rate quoted on the Telerate Screen Page 3750 (or
equivalent successor to such page) for a period of one (1) month at or about
11:00 p.m. (London time) on the day which is one business day prior to the date
of the borrowing on which dealings in deposits are carried on in the London
interbank market or (b) if no rate appears on such page, such rate per annum
determined by the Lender at its sole discretion as representing the cost of the
Lender of funding the outstanding principal amount of the Loan calculated on the
basis of a 360-day year of twelve 30-day months. Interest shall be calculated
on the basis of a 360 day year for actual days elapsed.
Any principal amount of the Loan that is not paid when due (whether as
stated or otherwise) shall thereafter bear interest at a rate per annum equal to
2% above the Interest Rate until paid in full (both before and after judgment).
The Lender shall be authorized to endorse the date and amount of the Loan
and all payments of principal on the Note on the Schedule attached thereto and
made a part thereof. The Lender's records shall constitute prima facie evidence
of the accuracy of the information so recorded, provided however, that the
failure to make any such endorsement shall not affect the obligation of the
Borrower under the Note. The Note shall be used to record the Loan and all
payments of principal under the Note until the Note is surrendered to the
Borrower by the Lender and the Note shall continue to be used and to be in full
force and effect even though there may be periods prior to surrender when no
amount of principal or interest is owing thereunder.
The Loan is payable in full on the earlier to occur of (a) December 20,
1995, (b) such date as the Borrower shall make a drawing under a line of credit
to be provided or supported by the Lender, (as contemplated by that certain
Letter of Intent dated November 2, 1995, between the Borrower and the Lender) or
(c) such time as the Lender declares the entire amount of the Loan due and
payable in accordance with the provisions of Section 4 of the Note.
The Borrower agrees (a) to pay or reimburse the Lender for all its costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this agreement, the Note and any document or instrument executed
and delivered in connection therewith, including without limitation, fees and
disbursements of counsel to the Lender and (b) to pay, indemnify and hold the
Lender harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this agreement and the Note.
This agreement shall be governed by and construed in accordance with the
laws of the State of California without regard to its conflict-of-laws
principals. The Borrower and the Lender agree that (a) any legal action or
proceeding arising out of or in connection with this Note or the transactions
contemplated hereby shall be brought exclusively in the courts of the State of
California or the Federal Courts of the United States of America sitting in
California, (ii) each irrevocably submits to the jurisdiction of each such
court, and (iii) any summons, pleading, judgment, memorandum of law, or other
paper relevant to any such action or proceeding shall be sufficiently served if
delivered to the recipient thereof by certified or registered mail (with return
receipt) at its address set forth in Section 7 of the Note. Nothing in the
preceding sentence shall affect the right of any party to proceed in any
jurisdiction for the enforcement or execution of any judgment, decree or order
made by a court specified in said sentence.
It is the intent of the Borrower and the Lender in the execution of this
Note and in all transactions related hereto to comply with the usury laws of the
State of California (or the usury laws of any other state that might be
determined by a court of competent jurisdiction to be applicable notwithstanding
such choice of law, hereinafter collectively referred to as "Usury Laws"). In
the event that, for any reason, it should be determined that the Usury Laws
apply to the Loan, the Borrower and the Lender stipulate and agree that none of
the terms and provisions contained herein shall ever be construed to create a
contract for use, forbearance or detention of money requiring payment of
interest at a rate in excess of the maximum interest rate permitted to be
charged by the Usury Laws, all such sums or property deemed to constitute
interest in excess of such maximum rate shall, at the option of the Lender, be
credited to the payment of the principal sum due hereunder.
If you agree with the terms of this agreement, please indicate your
agreement by signing below.
SAMSUNG ELECTRONICS AMERICA, INC.
By: /s/Bo Soon Song
Name: Bo Soon Song
Title: Chief Executive Officer
ACCEPTED AND AGREED:
AST RESEARCH, INC.
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Legal and Administration
PROMISSORY NOTE
November 20, 0000
Xxxxxx, Xxxxxxxxxx
$50,000,000
FOR VALUE RECEIVED, AST Research, Inc., a Delaware corporation
("Borrower"), hereby unconditionally promises to pay to Samsung Electronics
America, Inc., a New York corporation ("Lender"), or assigns, at the address set
forth in Section 7 below, or at such other place as the holder hereof may from
time to time notify Borrower in writing, the principal sum of Fifty Million
DOLLARS ($50,000,000), together with interest from the date hereof, on the
outstanding principal amount at the rate set forth herein below, on the Maturity
Date as (defined below). Lender has lent to Borrower the sum of Fifty Million
DOLLARS ($50,000,000) on the date hereof.
1. The outstanding principal amount of this Note shall bear interest at
the rate per annum which is the sum of (i) one and a half of one percent (1.5%)
and (ii) either (a) the rate per annum determined by the Lender to be the rate
equal to the rate quoted on the Telerate Screen Page 3750 (or the equivalent
successor to such page) for a period of one (1) month at or about 11:00 p.m.
(London time) on the day which is one business day prior to the date hereof on
which dealings in deposits are carried on in the London interbank market or (b)
if no rate appears on such page, such rate per annum determined by the Lender at
its sole discretion as representing the cost of the Lender of funding the
outstanding principal amount hereof calculated on the basis of a 360-day year of
twelve 30-day months.
2. The principal sum of this Note, together with all accrued and unpaid
interest hereon and all other amounts due hereunder, shall be due and payable in
full on the earlier to occur of (a) December 20, 1995, (b) such date as Borrower
shall make a drawing under a line of credit to be provided or supported by
Lender, (as contemplated by that certain Letter of Intent dated November 2, 1995
between Borrower and Lender) or (c) such time as Lender declares the entire
amount of this Note due and payable in accordance with the provisions of Section
4 hereof (such earlier date, the "Maturity Date").
3. Principal and interest and all other amounts due hereunder shall be
payable in lawful money of the United States of America. Payments shall be
applied first to interest on past due interest, second to current due interest,
third to accrued interest, fourth to all other amounts (other than principal)
due hereunder , and fifth to principal. The undersigned may prepay all or part
of this Note at any time and from time to time without penalty.
4. An event of default ("Event of Default") hereunder shall occur if:
a. Borrower shall fail to pay any amount hereunder as and when due;
b. There shall be a default under any evidence of indebtedness for
borrowed money of Borrower or any of its subsidiaries having a
principal amount in excess of $2 million (i) resulting from the
failure to pay principal at maturity or (ii) as a result of which the
maturity of such indebtedness has been accelerated prior to its stated
maturity;
c. Borrower shall admit in writing its inability to pay or shall be
unable to pay its debts as they become due, or shall apply for a
receiver, trustee or similar officer with respect to all or a
substantial part of its property or shall institute by petition,
application, answer, consent or otherwise, any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debts, dissolution,
liquidation or similar proceedings relating to Borrower under the laws
of any jurisdiction; or
d. Any creditor of Borrower shall apply for a receiver, trustee or
similar officer with respect to all or a substantial part of
Borrower's property or shall institute by petition, application,
answer, consent or otherwise, any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debts, dissolution,
liquidation or similar proceedings relating to Borrower under the laws
of any jurisdiction, and such petition, bankruptcy, or other
proceeding shall not be stayed, bonded or discharged within sixty (60)
days.
Upon the occurrence of any Event of Default, and at such time as any Event
of Default is continuing, (i) if such event is an Event of Default specified in
clause (c) or (d) above, this Note shall automatically and immediately become
due and payable and (ii) if such event is any other Event of Default, the
holder hereof, at its option, may declare all sums due hereunder immediately due
and payable by sending a notice of default to Borrower.
5. No failure or delay on the part of the holder of this Note or the
failure to exercise any power or right under this Note shall operate as a waiver
of such power or right or preclude other or further exercise thereof or the
exercise of any other power or right. No waiver by the holder of this Note will
be effective unless and until it is in writing and signed by such holder. No
waiver of any condition or performance will operate as a waiver of any
subsequent condition or obligation. Except as provided herein, the undersigned
hereby waives diligence, presentment, demand for payment, notice of dishonor or
acceleration, protest and notice of protest, and any and all other notices or
demands in connection with delivery, acceptance, performance, default or
enforcement of this Note.
6. In the event that any action, suit or other proceeding is instituted
concerning or arising out of this Note, the prevailing party shall recover all
of such party's costs, and reasonable attorneys' fees incurred in each and every
such action, suit, or other proceeding, including any and all appeals or
petitions therefrom.
7. Notices required or permitted to be given under this Note to any party
hereto by any other party shall be in writing and shall be deemed to have been
duly delivered and given when personally delivered to the party (including by
express courier service) or sent by facsimile transmission at the address or
number set forth below, or any such other address or number as shall be given in
writing by the respective party to all other parties:
Borrower: AST Research, Inc.
00000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
Fax Number: (000) 000-0000
With a copy to: AST Research, Inc.
00000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Lender: Samsung Electronics America Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx
Xxx Xxxxxx 00000
Attention: Finance Manager
Fax No. (000) 000-0000
With a copy to: Samsung Electronics America Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx
Xxx Xxxxxx 00000
Attention: Un Xxx Xx
Fax No. (000) 000-0000
8. This Note, its validity, construction and effect, shall be governed
by, construed under and enforced in accordance with, the laws of the State of
California without regard to its conflict-of-laws principals. Borrower and
Lender agree that (i) any legal action or proceeding arising out of or in
connection with this Note or the transactions contemplated hereby shall be
brought exclusively in the courts of the State of California or the Federal
Courts of the United States of America sitting in California, (ii) each
irrevocably submits to the jurisdiction of each such court, and (iii) any
summons, pleading, judgment, memorandum of law, or other paper relevant to any
such action or proceeding shall be sufficiently served if delivered to the
recipient thereof by certified or registered mail (with return receipt) at its
address set forth in Section 7 hereof. Nothing in the preceding sentence shall
affect the right of any party to proceed in any jurisdiction for the enforcement
or execution of any judgment, decree or order make by a court specified in said
sentence.
9. It is the intent of Borrower and Lender in the execution of this Note
and in all transactions related hereto to comply with the usury laws of the
State of California (or the usury laws of any other state that might be
determined by a court of competent jurisdiction to be applicable notwithstanding
such choice of law, hereinafter collectively referred to as "Usury Laws"). In
the event that, for any reason, it should be determined that the Usury Laws
apply to the loan evidenced hereby, Borrower and Lender stipulate and agree that
none of the terms and provisions contained herein shall ever be construed to
create a contract for use, forbearance or detention of money requiring payment
of interest at a rate in excess of the maximum interest rate permitted to be
charged by the Usury Laws. In such event, if Lender shall collect monies or
other property which are deemed to constitute interest which would otherwise
increase the effective interest rate on this Note to a rate in excess of the
maximum rate permitted to be charged by the Usury Laws, all such sums or
property deemed to constitute interest in excess of such maximum rate shall, at
the option of Lender, be credited to the payment of the principal sum due
hereunder.
10. This Note shall not be assignable by Borrower. This Note shall be
assignable by Lender and all provisions of this Note shall inure to the benefit
of Lender and all of its successors and assigns.
IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed and delivered as of the day and year first above written.
AST RESEARCH, INC.
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Legal and Administration
