EXHIBIT 10.148
FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("Amendment"), dated as of April 5,
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1995, is entered into by and among AST RESEARCH, INC., a Delaware corporation
(the "Company"), AST CANADA, INC., AST EUROPE LIMITED, AST RESEARCH FRANCE
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S.A.R.L., AST SWEDEN AB (collectively the "Borrowers") and BANK OF AMERICA
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NATIONAL TRUST AND SAVINGS ASSOCIATION (the "Bank").
RECITALS
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A. The Company, the Borrowers and the Bank are parties to a Credit
Agreement dated as of February 9, 1995 (the "Credit Agreement"), pursuant to
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which the Bank has extended certain credit facilities to the Borrowers.
B. The Company and the Borrowers have requested that the Bank agree to
certain amendments of the Credit Agreement.
C. The Bank is willing to amend the Credit Agreement, subject to the terms
and conditions of this Amendment.
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
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herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement.
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(a) The definition of the terms "Credit Limit" set forth in Section 1.1 of
the Credit Agreement shall be amended and restated in its entirety so that, as
amended and restated, it reads as follows:
"Credit Limit means Fifty Million Dollars ($50,000,000) or such lesser
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amount as may be determined pursuant to Section 2.5 hereof."
(b) Section 2.1 of the Credit Agreement shall be amended by inserting the
following subsection (d) at the end thereof:
"(d) The aggregate of all outstanding Advances to any one Borrower may not
exceed, at any one time, such limit as the Bank shall determine in its sole
discretion; provided, however, that the full amount of the Credit limit shall be
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available to the Borrowers on the terms and conditions hereof."
(c) Section 2.8 of the Credit Agreement shall be amended an restated in its
entirety so that, as amended and restated, it reads as follows:
"Fees. The Company shall pay to the Bank such fees and additional
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compensation as are set forth in the letter agreement between the Company
and the Bank dated February 1, 1995, as amended by that certain letter
agreement dated April 5, 1995."
(d) Section 4.2 of the Credit Agreement shall be amended by deleting the
text of such section in its entirety and replacing it with the word "Reserved."
(e) Subsection 4.3(e) of the Credit Agreement shall be amended and restated
in its entirety so that, as amended and restated, it reads as follows:
"(e) Credit Limit Compliance. After giving effect to the proposed
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Advance, the aggregate amount of all credit (including letters of credit)
extended by the Bank under the 1993 Credit Agreement and hereunder shall not
exceed $74,000,000; and"
(f) Article 6 of the Credit Agreement shall be amended by inserting the
following Section 6.12 at the end thereof:
"6.12 Access and Information; Potential Purchase of Accounts. The
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Company and the Borrowers shall afford to the Bank such access, during regular
business hours, to the books, records and personnel, and to such other
information of the Company and the Borrowers, as the Bank may reasonably request
relating to the accounts receivable of the Borrowers. The Company and the
Borrowers shall use their best efforts to enter into definitive agreements, by
the last day of the Availability Period, having terms acceptable to the Bank
pursuant to which the Bank shall purchase such of the outstanding accounts
receivable of such of the Company's Subsidiaries as the Bank may determine in
its sole discretion."
(g) Exhibit A to the Credit Agreement shall be superseded and replaced by
Exhibit A attached to this Agreement.
3. Representation and Warranties. The Company and each Borrower hereby
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represents and warrants to the Bank as follows:
(a) No Default or Event of Default has occurred and is continuing.
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(b) The execution, delivery and performance by the Company and the
Borrowers of this Amendment have been duly authorized by all necessary corporate
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 Credit Agreement as
amended by this Amendment, constitutes the legal, valid and binding obligations
of the Company and the Borrowers, enforceable against such parties in accordance
with its terms, without defense, counterclaim or offset.
(c) The representations and warranties of the Company and the Borrowers
contained in the Credit Agreement are true and correct.
(d) Resolutions of the boards of directors of the Company and each Borrower
authorizing the execution, delivery and performance of this Amendment are in
full force and effect on the date hereof.
(e) The Company and the Borrowers are entering into this Amendment on the
basis of their own investigation and for their own reasons, without reliance
upon the Bank or any other Person.
4. Effective Date. This Amendment will become effective on April 5,
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1995, provided that each of the following conditions precedent is satisfied:
(a) The Bank has received from the Company and each Borrower a duly
executed original of this Amendment.
(b) The Bank has received such other approvals, opinions, documents or
materials as it may reasonably request.
5. Reservation of Rights. The Company and the Borrowers acknowledge and
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agree that the execution and delivery by the Bank of this Agreement shall not be
deemed to create a course of dealing or otherwise obligate the Bank to execute
similar amendments under the same or similar circumstances in the future.
6. Miscellaneous.
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(a) Except as herein expressly amended, all terms, covenants and provisions
of the Credit Agreement 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 Amendment. This Amendment shall be deemed
incorporated into, and a part of, the Credit Agreement. The Company and the
Borrowers hereby
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reaffirm and ratify the Credit Agreement as so amended, including, without
limitation, Sections 9.1 and 9.2 thereof.
(b) This Amendment 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 Amendment.
(c) This Amendment shall be governed by and construed in accordance with
the law of the State of California.
(d) This Amendment 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, if elected by the Bank, this document (and any
other document required herein) may be delivered by any party thereto in the
form of 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
such a facsimile transmitted document purportedly bearing the signature of a
party hereto shall bind such party 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 Amendment, together with the Credit Agreement, contains the entire
and exclusive agreement of the parties hereto with reference to the matters
discussed herein and therein. This Amendment supersedes all prior drafts and
communications with respect thereto. This Amendment 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 Amendment shall be deemed prohibited
by or invalid under any applicable law, such provision shall be invalidated
without affecting the remaining provisions of this Amendment or the Credit
Agreement.
(g) The Company and the Borrowers jointly and severally covenant to pay to
or reimburse the Bank, upon demand, for all reasonable costs and expenses,
including attorneys' fees and expenses (including the allocated costs of in-
house counsel), incurred in connection with the development, preparation,
negotiation, execution and delivery of this Amendment.
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EXHIBIT A
NOTICE OF BORROWING
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To: Bank of America National Trust and
Savings Association (the "Bank")
Date: ____________________, 1995
Ladies and Gentlemen:
The undersigned, AST Research, Inc. (the "Company") refers to the Credit
Agreement dated as of February ____, 1995 among the Company, AST Canada, Inc,
AST Europe Limited, AST France S.A.R.L., AST Sweden AB (each a "Borrower" and
together the "Borrowers") and the Bank (as amended, the "Credit Agreement"), and
hereby gives you notice irrevocably on behalf of the Borrower indicated below,
pursuant to Section 2.3 of the Credit Agreement, of the Borrowing specified
herein:
1. The aggregate amount of the proposed
Borrowing is $ ______________.
2. The Business Day of the proposed Borrowing
is __________________, 1995.
3. The Borrowing is to be comprised of
$__________________ of Offshore Rate Advances.
4. The duration of the Interest Period for the
Offshore Rate Advances included in the Borrowing shall
be ____________ months.
5. The Borrower is _____________________.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed Borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties of the Company and the
Borrowers contained in Article 5 of the Credit Agreement and in the
Collateral Documents are true and correct as though made on and as of the
date hereof (except to the extent such representations and warranties
specifically relate to an earlier date, in which case they are true,
accurate and complete in all material respects as of such earlier date);
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(b) no Default or Event of Default has occurred and is continuing, or
would result from the proposed Borrowing;
(c) the unborrowed amount available to the Company under the terms of
the 1993 Credit Agreement does not exceed $1,000,000 (other than solely as
a result of the $5,000,000 minimum borrowing requirement contained in the
1993 Credit Agreement); and
(d) after giving effect to the proposed Borrowing, the aggregate
amount of all credit (including letters of credit) extended by the Bank
under the 1993 Credit Agreement and hereunder does not exceed $74,000,000.
Capitalized terms used herein and not defined shall have the meanings
assigned to them in the Credit Agreement.
AST RESEARCH, INC.
By: _________________________
Title: ______________________
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment 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,
Tax & Treasury Operations
AST CANADA, INC.
By: /s/XXXXXX X. XXXXXX
Title: Senior Vice President, Legal,
Tax & Treasury Operations
AST EUROPE LIMITED
By: /s/SAFI U. QURESHEY
Title: Chief Executive Officer
By: /s/XXXXX X. XXXXXXX
Title: Executive Vice President
and Chief Financial Officer
AST RESEARCH FRANCE S.A.R.L.
By: /s/XXXXXX X. XXXXXX
Title: Senior Vice President, Legal,
Tax & Treasury Operations
By: /s/XXXXX X. XXXXXXX
Title: Executive Vice President
and Chief Financial Officer
AST SWEDEN AB
By: /s/SAFI U. QURESHEY
Title: Director
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By: /s/XXXXX X. XXXXXXX
Title: Director
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /S/XXXXX XXXXXXX
Title: Vice President
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