EXHIBIT 10.150
WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as
of July 21, 1995, is entered into by and among AST RESEARCH INC., a Delaware
corporation (the "Company"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, 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 (in such capacity, collectively, the "Co-
Agents"), and the several financial institutions party to the Credit Agreement
(collectively, the "Banks").
RECITALS
A. The Company, the Banks, the Administrative Agent and the Co-Agents 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, and
that certain Third Amendment to Credit Agreement dated as of December 23, 1994
(as so amended, the "Credit Agreement",) pursuant to which the Banks have
extended certain credit facilities to the Company, subject to terms and
conditions thereof.
B. All Obligations of the Company under the Credit Agreement and the other
Loan Documents are secured in accordance with Collateral Documents.
C. AST Canada, Inc., AST Europe Limited, AST Research France S.A.R.L. and
AST Sweden AB (collectively, the "Bridge Loan Borrowers"), the Company, as
guarantor of the Bridge Loan Borrowers' obligations to BofA, and BofA, 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, and that
certain Waiver and Second Amendment to Credit Agreement dated as of July 21,
1995 (as so amended, the "Bridge Loan Facility"), pursuant to which BofA has
agreed to make revolving advances to the Bridge Loan Borrowers in a maximum
aggregate amount of $50,000,000 through August 31, 1995, subject to the terms
and conditions thereof.
D. 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.
E. The Company has reported to the Administrative Agent, the Co-Agents and
the Banks that an Event of Default exists on the date of this Agreement under
Section 9.1(d) of the Credit Agreement as a consequence of a breach of the
negative covenant set forth at Section 8.11 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").
F. The Company, the Banks, the Administrative Agent and the Co-Agents are
parties to a Waiver to Credit Agreement dated as of July 5, 1995 (the "Limited
Waiver"), pursuant to which the Banks waived the Existing Default solely for the
purpose of permitting the continuation of Committed Borrowing of Offshore
Committed Loans having the following amounts and maturity dates: (i) $25,000,000
due July 5, 1995, (ii) $10,000,000 due July 12, 1995, (iii) $10,000,000 due July
17, 1995 and (v) $18,000,000 due July 19, 1995, in each case for an Interest
Period not to exceed one month.
G. Notwithstanding the Limited Waiver, the Existing Default has not been
waived and continues in effect for all other purposes of the Credit Agreement
and the other Loan Documents, and the Banks may
exercise any or all of their rights and remedies with respect to the Existing
Default at any time, including during the Interest Period of the Committed
Offshore Loans referred to above.
H. The Company has reported to the Administrative Agent, the Co-Agents and
the Banks that Events of Default may exist on the date of this Agreement under
Section 9.1(d) of the Credit Agreement as a consequence of the breach of the
negative covenants set forth at Sections 8.8, 8.10, and 8.13 of the Credit
Agreement as of the last day of the fiscal quarter ended July 1, 1995
(collectively, the "Additional Defaults").
I. The Company has requested that the Banks waive the Existing Default and
the Additional Defaults through August 31, 1995, subject to the Early
Termination Events set forth herein, and to make certain amendments to the
Credit Agreement. The Banks are willing to waive the Existing Default and the
Additional Defaults through August 31, 1995, subject to the Early Termination
Events set forth herein, and to amend the Credit Agreement, subject to the terms
and conditions of this Agreement.
NOW, THEREFORE, for the 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 Banks hereby waive 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 $200,000,000;
(v) the commitment of BofA to extend credit under the Bridge
Loan 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 BofA takes any action for the purpose
of collecting the obligations owing to it under the Bridge Loan Facility,
or exercises any rights or remedies available to it with respect to the
Bridge Loan Facility as a result of the Existing Default or any of the
Additional Defaults;
(vi) the Company shall commence, or have commenced against it, or
undertake, any Insolvency Proceeding;
(vii) any representation or warranty by the Company made herein
is incorrect in any material respect on or as of the date made, or the
Company fails to perform or observe any term, covenant or agreement
contained herein;
(viii) the Company shall repudiate, rescind or dispute the
effectiveness of any term or provision of this Agreement, the Credit
Agreement or any other Loan Document; 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 Banks 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 Banks 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 Administrative Agent's, the Co-
Agent's or the Banks' ability to enforce their 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 Administrative Agent's, the Co-Agent's or the Banks' ability to
enforce their 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
(a) The definition of the term "Applicable Margin" set forth in
Section 1.1 of the Credit Agreement shall be amended and restated as follows:
"'Applicable Margin' means, for any day prior to August 1, 1995, with
respect to any Reference Rate Loan, CD Rate Loan or Offshore Committed Loan, the
applicable margin (on a per annum basis) set forth below opposite the
Utilization Amount for such date:
Offshore
Reference CD Rate Committed
Rate Loan Loan Loan
Utilization Applicable Applicable Applicable
Amount Margin Margin Margin
Less than or 0.000% 1.375% 1.250%
equal to
$125,000,000
Greater than 0.000% 1.625% 1.500%
$125,000,000
and for any day on or after August 1, 1995, with respect to any Reference Rate
Loan, CD Rate Loan or Offshore Committed Loan, the applicable margin (on a per
annum basis) set forth below opposite the Utilization Amount for such date.
Offshore
Reference CD Rate Committed
Rate Loan Loan Loan
Utilization Applicable Applicable Applicable
Amount Margin Margin Margin
Less than or 0.500% 1.875% 1.750%
equal to
$125,000,000
Greater than 0.500% 2.125% 2.000%
$125,000,000
The Applicable Margin shall be adjusted automatically as to all Loans then
outstanding as of the effective date of any change in the Utilization Amount and
on August 1, 1995."
(b) Schedule 2.1 to the Credit Agreement shall be superseded and
replaced by Schedule 2.1 attached to this Agreement.
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 is satisfied.
(a) The Administrative Agent has received from the Company and the
Majority Banks a duly executed original (or, if elected by the Administrative
Agent, an executed facsimile copy) of this Agreement.
(b) All representations and warranties contained herein are true and
correct as of the Effective Date.
(c) The Administrative Agent has received from the Company, for the
ratable account of each Bank in accordance with its Commitment Percentage, a
non-refundable fee equal to 0.25% of the Aggregate Commitment as reduced by this
Agreement, which amount the Company hereby covenants to pay to the
Administrative Agent on demand.
5. Representations and Warranties of the Company. As a material
inducement for the Banks to enter into this Agreement, the
Company hereby represents and warrants to the Administrative Agent, the Co-
Agents and the Banks 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 of 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.
(c) The Credit Agreement, as amended by this Agreement, and the other
Loan Documents constitute the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms, without defense, counterclaim or offset, and all Obligations of the
Company under the Credit Agreement and the other Loan Documents are secured in
accordance with the Collateral Documents.
(d) Subject to the Existing Default and the Additional Defaults, all
representations and warranties of the Company 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 is entering into this Agreement on the basis of its
own investigation and for its own reasons, without reliance upon the
Administrative Agent, the Co-Agents, the Banks or any other Person.
6. Covenants of the Company. As a material inducement for the Banks to
enter into this Agreement, the Company hereby covenants and agrees with and in
favor of the Administrative Agent, the Co-Agent and the Banks, promptly to
notify the Administrative Agent 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 acknowledges and agrees that none
of the Administrative Agent's, the Co-Agents' or the Banks' forbearance in
exercising their rights and remedies in connection with the Existing Default and
the Additional Defaults nor the execution and delivery by the Administrative
Agent, the Co-Agents and the Banks of this Agreement or the Limited Waiver,
shall be deemed (a) to create a course of dealing or otherwise obligate the
Administrative Agent, the Co-Agents or the Banks to forbear or execute similar
agreements or waivers under the same or similar circumstances in the future, or
(b) to waive, relinquish or impair any right of the Administrative Agent, the
Co-Agents or the Banks 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. 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 Administrative Agent, an executed original sent
by facsimile transmission to be followed promptly by mailing of a hard copy
original, and that receipt by the Administrative Agent of a facsimile
transmitted document purportedly bearing the signature of a Co-Agent, a Bank or
the Company shall bind such Co-Agent, Bank or the Company, respectively, with
the same force and effect as the delivery of a hard copy original. Any failure
by the Administrative 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 Administrative Agent.
(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 11.1 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 Administrative
Agent, 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.
AST RESEARCH, INC.
By: /s/XXXXX X. XXXXXXX
Title: Executive Vice President and
Chief Financial Officer
By: /s/XXXXXX X. XXXXXX
Title: Senior Vice President, Legal and
Treasury Operations
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent and Co-Agent
By: /s/XXXXX X. XXXXX
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank and
Issuing Bank
By: /s/XXXXX XXXXXXX
Title: Vice President
NATIONAL WESTMINSTER BANK PLC, as Co-
Agent and a Bank
By: /s/XXXXXX X. XXXXXXXXXX
Title: Vice President
SHAWMUT BANK, N.A., as Co-Agent
and a Bank
By: /s/XXXXX X. XXXXXX III
Title: Director
CIBC INC., as Co-Agent and a Bank
By: /s/XXXXX X. XXXXXXXX
Title: Managing Director
BANQUE NATIONAL DE PARIS
By: /s/XXXXX XXXXXXX
Title: Senior Vice President and
Manager
By: /s/XXXXXXXX XXXXXXXX
Title: Vice President
SANWA BANK CALIFORNIA
By:
Title:
CITICORP USA, Inc.
By: /s/XXXXX X. XXXXXXXX
Title: Vice President
COMMONWEALTH BANK OF AUSTRALIA
By: /s/XXX XX XXXXX
Title: Executive Vice President and
General Manager
The INDUSTRIAL BANK OF JAPAN,
Ltd, Los Angeles Agency
By: /s/XXXX-XXXX XXXXXXXXX
Title: Vice President
The LONG-TERM CREDIT BANK OF JAPAN,
Ltd., Los Angeles Agency
By: /s/XXXXXXXX XXXXXXX
Title: Deputy General Manager
ROYAL BANK OF CANADA
By: /s/XXXXXXX X. XXXX
Title: Manager
ABN AMRO BANK N.V., LOS
ANGELES INTERNATIONAL BRANCH
By: /s/XXXXX X. XXXXXXX
Title: Assistant Vice President
By: /s/XXXX X. XXXXXX
Title: Vice President
THE NIPPON CREDIT BANK, LTD., LOS
ANGELES AGENCY
By: /s/XXXXXXXX XXXX
Title: Deputy General Manager
YASUDA TRUST AND BANKING COMPANY,
LIMITED
By: /s/XXXXXXXXX XXXXXXX
Title: General Manager
SCHEDULE 2.1
COMMITMENTS
Commitment Commitment
Banks Amount Percentage
Bank of America National Trust $ 27,750,000.00 15.000000000%
and Savings Association
CIBC, Inc. $ 24,666,666.67 13.333333333%
National Westminster Bank Plc $ 21,583,333.33 11.666666666%
Shawmut Bank, N.A. $ 16,444,444.45 8.888888888%
Banque Nationale De Paris $ 12,333,333.33 6.666666666%
Sanwa Bank California $ 12,333,333.33 6.666666666%
Citicorp USA, Inc. $ 12,333,333.33 6.666666666%
Commonwealth Bank of Australia $ 9,250,000.00 5.000000000%
The Industrial Bank of Japan, Ltd., $ 9,250,000.00 5.000000000%
Los Angeles Agency
The Long-Term Credit Bank $ 9,250,000.00 5.000000000%
of Japan, Ltd., Los Angeles Agency
Yasuda Trust and Banking Company, $ 8,222,222.22 4.000000000%
Limited
Royal Bank of Canada $ 7,708,333.33 4.000000000%
ABN AMRO Bank N.V., Los Angeles $ 7,708,333.33 4.166666666%
Branch
The Nippon Credit Bank Ltd., $ 6,166,666.67 3.333333333%
Los Angeles Agency
TOTAL $185,000,000.00 100.000000000%
