Exhibit 10
FIRST AMENDMENT TO LOAN AGREEMENT
BETWEEN XXXXXX CORPORATION
AND FUJITSU LIMITED
DATE JANUARY 27,1994
THIS AMENDMENT (the "First Amendment") is made as of January 27, 1997.
BETWEEN
(1) XXXXXX CORPORATION, a U.S. corporation incorporated under
the laws of the state of Delaware, with its principal office
at 1250 East Arques Avenue, P.O. Box 3470, Sunnyvale,
California, 94088-3470, U.S.A. ("the Borrower" under the
Agreement); and
(2) FUJITSU LIMITED, a Japanese company, with its principal office at 0-0
Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx 000, Xxxxx ("the Lender" under
the Agreement).
WHEREAS
(A) The Borrower and the Lender entered into an agreement dated January 27,
1994 whereby the Lender agreed to made advances to the Borrower up to
US$100,000,000 (the "Agreement");
(B) The amount advanced under the Agreement and outstanding as of the date
of this First Amendment is US$80,000,000 (the "Loan" under the
Agreement), and the repayment date of the Loan is January 28, 1997 (the
"Repayment Date" under the Agreement); and
(C) The Borrower and the Lender have agreed to extend the Repayment Date of
the Loan to January 28, 1998, on substantially the same terms and
conditions of the Agreement.
NOW IT IS HEREBY AGREED as follows:
1. The Repayment Date in Clause 1.1 of the Agreement is changed to
read as January 28, 1998.
2. The definition of the Commitment Period in Clause 1.1 shall be changed
to the period beginning on the Closing Date and ending on January 27,
1997. The undrawn part of the Loan Facility shall be canceled as of
January 27, 1997, and no second and subsequent tranches shall be
available under the Clause 7.2.2 of the Agreement.
3. The words "each fiscal month of each year of the Commitment Period" in
Clause 6.1 of the Agreement shall be replaced by "each fiscal month of
each year until the Borrower pays full amount of the Loan and all
interest thereon,".
4. The Borrower hereby repeats the representations and warranties
contained in Clause 15 of the Agreement; provided, that for the purpose
of the representations and warranties given under this First Amendment,
the date of the unaudited consolidated financial statements of the
Borrower and its Subsidiaries as set forth in Clause 15.11 of the
Agreement shall be December 27, 1996.
5. The Borrower also represents and warrants that no Senior Loan Documents
were executed prior to the date of this First Amendment.
6. The effectiveness of this First Amendment and the Borrower's
right to extend the Repayment Period of the Loan to January
28, 1998 are subject to (i) the satisfaction as of January
27, 1997 of the conditions specified in Clauses 5.2.2, and
5.3.1 of the Agreement and the condition that the Lender
shall have received the certificate specified in Clause
5.3.3 of the Agreement. In this regard, the reference to
"Drawdown Date" in Clause 5.3.3 shall be modified to read as
January 27, 1997. The effectiveness of this First Amendment
shall also be subject to the issuance of a foreign exchange
clearance document by the Minister of Finance of Japan for
the extension of the Loan as contemplated in this First
Amendment.
7. Notwithstanding the foregoing, the Loan plus all accrued interest
thereon shall be due and payable on February 20, 1997 unless prior
thereto the Borrower has delivered to the Lender the document specified
in Clause 5.3.2 of the Agreement. In this regard, references to
"Agreement" in Clause 5.3.2 shall mean this First Amendment. .
8. After the date of this First Amendment, the Borrower shall not be
allowed to make any prepayment of the Loan in accordance with the
Clause 12 of the Agreement.
9. The Borrower shall reimburse the Lender all reasonable
expenses (and any value added or similar taxes thereon)
incurred by the Lender in connection with the negotiation,
preparation, execution and completion of this First
Amendment, as well as the enforcement and preservation of
any of its rights under this First Amendment. The Borrower
shall also pay all present and future stamp, registration
and similar taxes or charges which may be payable or
determined to be payable in connection with the execution,
delivery, performance or enforcement of this First
Amendment.
10. Capitalized terms in this First Amendment not defined herein shall have
the meanings ascribed to them in the Agreement. Except as expressly
modified herein, all other terms and conditions of the Agreement shall
continue unchanged and remain in full force and effect.
The Borrower
Signed by /s/ Xxxx X. Xxxxx Xxxx X. Xxxxx
Chairman and
Chief Executive Officer
for and on behalf of
XXXXXX CORPORATION
The Lender
Signed by /s/ Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx
President and
Representative Director
for and on behalf of
FUJITSU LIMITED
