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EXHIBIT 10.58
DATED September 30, 1998
LOAN AGREEMENT
between
▇▇▇ RESEARCH CO., LTD.
as Borrower
THE BANKS AND FINANCIAL INSTITUTIONS NAMED HEREIN
as Lenders
ABN AMRO BANK N.V., TOKYO BRANCH
as Agent
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CONTENTS
Clause Heading Page
1. PURPOSE AND DEFINITIONS...................................................................................1
1.1 Purpose.........................................................................................1
1.2 Definitions.....................................................................................1
1.3 Headings........................................................................................5
1.4 Construction of certain terms...................................................................5
2. THE FACILITY..............................................................................................6
2.1 Amount..........................................................................................6
2.2 Obligations several.............................................................................7
2.3 Interests several...............................................................................7
3. CONDITIONS................................................................................................7
3.1 Documents and evidence..........................................................................7
3.2 Further conditions precedent....................................................................7
3.3 Representations.................................................................................8
3.4 Waiver of conditions precedent..................................................................9
4. DRAWDOWN..................................................................................................9
5. INTEREST RATES AND INTEREST PERIODS.......................................................................9
5.1 Usual interest rate.............................................................................9
5.2 Default interest...............................................................................10
5.3 Margin.........................................................................................11
5.4 Selection of Interest Periods..................................................................13
5.5 Determination of Interest Periods..............................................................13
5.6 Notification of Interest Periods and interest rate.............................................14
5.7 Market disruption; non-availability............................................................14
5.8 Fixed rate option..............................................................................15
6. REPAYMENT, PREPAYMENT AND CANCELLATION...................................................................16
6.1 Repayment......................................................................................16
6.2 Voluntary prepayment...........................................................................17
6.3 Additional voluntary prepayment................................................................17
6.4 Timing, amounts and application of prepayments.................................................17
6.5 Notice and effect of prepayment................................................................17
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7. FEES AND EXPENSES........................................................................................18
7.1 Fees...........................................................................................18
7.2 Expenses.......................................................................................18
7.3 Consumption, etc. tax..........................................................................19
7.4 Stamp and other duties.........................................................................19
8. PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS............................................................19
8.1 No set-off or counterclaim; distribution to the Lenders........................................19
8.2 Payments by the Lenders........................................................................20
8.3 Agent may assume receipt.......................................................................20
8.4 Time of payment................................................................................20
8.5 Non-Banking Days...............................................................................21
8.6 Calculations...................................................................................21
8.7 Certificates conclusive........................................................................21
8.8 Grossing-up for Taxes..........................................................................22
8.9 Lender accounts................................................................................22
8.10 Partial payments...............................................................................23
8.11 Variation of application.......................................................................23
9. REPRESENTATIONS AND WARRANTIES...........................................................................24
9.1 Representations and Warranties.................................................................24
9.2 Repetition.....................................................................................26
10. UNDERTAKINGS.............................................................................................27
10.1 Undertakings...................................................................................27
10.2 Pledges........................................................................................28
11. EVENTS OF DEFAULT........................................................................................29
11.1 Events of Default..............................................................................29
11.2 Acceleration...................................................................................32
11.3 Demand basis...................................................................................33
12. INDEMNITIES..............................................................................................33
12.1 Broken funding and other indemnities...........................................................33
12.2 Currency indemnity.............................................................................34
13. UNLAWFULNESS AND INCREASED COSTS.........................................................................35
13.1 Unlawfulness...................................................................................35
13.2 Increased costs................................................................................35
13.3 Capital requirements...........................................................................36
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13.4 Mitigation.....................................................................................37
14. SET-OFF AND PRO RATA PAYMENTS............................................................................37
14.1 Set-off........................................................................................37
14.2 Pro rata payments..............................................................................38
15. ASSIGNMENT, SUBSTITUTION AND LENDING OFFICES.............................................................39
15.1 Benefit and burden.............................................................................39
15.2 No assignment by Borrower......................................................................39
15.3 Participation..................................................................................39
15.4 Transfer.......................................................................................40
15.5 Reliance on Substitution Certificate...........................................................41
15.6 Authorization of Agent.........................................................................41
15.7 Construction of certain references.............................................................41
15.8 Lending offices................................................................................41
15.9 Disclosure of information......................................................................42
16. ARRANGER, AGENT AND REFERENCE LENDERS....................................................................42
16.1 Appointment of Agent...........................................................................42
16.2 Amendments; Waivers............................................................................42
16.3 Rights of Agent as Lender; No partnership......................................................43
16.4 No liability of Arranger and Agent.............................................................43
16.5 Agent's duty to notify and take action.........................................................44
16.6 Identity of Lenders............................................................................44
16.7 Non-reliance on Arranger or Agent..............................................................45
16.8 No Responsibility on Arranger or Agent for Borrower's performance..............................45
16.9 Other dealings.................................................................................46
16.10 Reimbursement and indemnity by Lenders.........................................................46
16.11 Retirement of Agent............................................................................46
16.12 Variation of Exhibits..........................................................................47
17. NOTICES AND OTHER MATTERS................................................................................47
17.1 Notices........................................................................................47
17.2 Notices through the Agent......................................................................48
17.3 No implied waivers, remedies cumulative........................................................48
17.4 English language...............................................................................48
17.5 Confidentiality................................................................................49
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18. GOVERNING LAW AND JURISDICTION...........................................................................50
18.1 Governing law..................................................................................50
18.2 Jurisdiction...................................................................................50
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Schedules
1 The Parties and the Commitments
2 Documents and evidence required as conditions precedent
3 Additional documents and evidence required after Drawdown Date
Exhibits
1 Form of Guaranty
2 Form of Substitution Certificate
3 Form of Margin Certificate
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THIS LOAN AGREEMENT is made the 30th of September, 1998 BETWEEN:
▇▇▇ RESEARCH CO., LTD., as Borrower;
THE BANKS AND FINANCIAL INSTITUTIONS details of which are set out in
Schedule 1, as Lenders; and
ABN AMRO BANK N.V., acting through its TOKYO BRANCH, as Agent.
IT IS AGREED as follows:
1. PURPOSE AND DEFINITIONS
1.1 Purpose
This Agreement sets out the terms and conditions on and subject to
which the Lenders agree, according to their several obligations, to
make available to the Borrower a loan of up to (Y)1,700,000,000 (one
billion seven hundred million Yen) to be used for the purpose of
refinancing the Borrower's current term debt.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"Advance" means the borrowing of all of the Commitments by the Borrower
or (as the context may require) the principal amount of such borrowing
for the time being outstanding;
"Agent" means ABN AMRO Bank N.V., acting through its Tokyo Branch or
such other person as may be appointed agent for the Lenders pursuant to
Clause 16.11;
"Arranger" means ABN AMRO North America, Inc.;
"Banking Day" means a day (other than Saturday or Sunday) on which
banks are open for business in Tokyo;
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"Borrower" means ▇▇▇ Research Co., Ltd., a Japanese corporation, whose
current address is ▇-▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇ Prefecture,
Japan;
"Borrower's Account" means the account of the Borrower maintained at
ABN AMRO Bank N.V., Tokyo Branch, bearing the number ▇▇-▇▇-▇▇▇, or such
other account as the Borrower from time to time shall designate in a
written notice to the Agent for the deposit of funds borrowed under
this Agreement.
"Capital Adequacy Requirement" has the meaning given to it in Clause
13.3;
"Change of Law" has the meaning given to it in Clause 13.1;
"Commitment" means, in relation to a Lender, the amount set opposite
its name in Schedule 1 or, as the case may be, in any relevant
Substitution Certificate, as reduced by any relevant term of this
Agreement;
"Contribution" means, in relation to a Lender, the principal amount of
the Advance owing to such Lender at any relevant time;
"Default" means any Event of Default or any event or circumstance which
would, on the giving of a notice by the Agent and/or the expiry of the
relevant period and/or the fulfillment of any other condition (in each
case as specified in Clause 11.1), constitute an Event of Default;
"Drawdown" means the payment of the Advance to the Borrower by the
Agent;
"Drawdown Date" mean September 30, 1998 or such other date as may be
agreed upon between the Borrower and the Agent;
"Event of Default" means any of the events or circumstances described
in Clause 11.1;
"Governmental Authority" means any domestic or foreign national, state
or local government, any political subdivision thereof, any department,
agency, authority or bureau of any of the foregoing, or any other
entity exercising
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executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including, without
limitation, any central bank or any comparable authority;
"Governmental Rule" means any law, rule, regulation, ordinance, order,
code interpretation, judgment, decree, directive, guidelines, policy or
similar form of decision of any Governmental Authority;
"Guaranty" means a guaranty in the form of Exhibit 1, to be given by
the Guarantor;
"Guarantor" means ▇▇▇ Research Corporation, a Delaware corporation,
whose current address is at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇.▇.▇.;
"Interest Payment Date" means a date specified for the payment of
interest pursuant to Clause 5.1;
"Interest Period" means the period determined in accordance with Clause
5.4 and Clause 5.5.
"Lenders" means the banks and financial institutions listed in Schedule
1 and includes their successors in title and Substitutes;
"Lien" means any mortgage, charge, pledge, lien, encumbrance or other
security interest with respect to any present or future assets or
revenues of the party referred to in the context in which the term is
used;
"Loan" means the Advance;
"Majority Lenders" means Lenders the aggregate of whose Contributions
at any relevant time equals or exceeds 66 2/3 percent of the Advances
or, if no Advance has been made, the aggregate of whose Commitments
equals or exceeds 66 2/3 percent of the total of the Commitments of all
the Lenders;
"Margin" means a percentage per annum calculated in accordance with
Clause 5.3;
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"Margin Certificate" means a certificate in the form of Exhibit 3;
"Margin Determination Date" means the fifteenth day following the date
by which the Guarantor shall be required to deliver the quarterly
financial statements and information under clauses (i) and (iii) of
Subparagraph 4(a) of the Guaranty;
"Margin Period" means the period commencing on and including December
27, 1999 and ending on but excluding the Margin Determination Date
falling immediately following December 27, 1999, and thereafter each
successive period commencing on and including the last preceding Margin
Determination Date and ending on but excluding the next succeeding
Margin Determination Date;
"Maturity Date" means the third anniversary of the Drawdown Date;
"month" in respect of any Interest Period means a period beginning in
one calendar month and ending in the next calendar month on the day
numerically corresponding to the day of the calendar month on which it
started, provided that (i) if the period started on the last Banking
Day in a calendar month or if there is no such numerically
corresponding day, it shall end on the last Banking Day in the next
calendar month and (ii) if the numerically corresponding day is not a
Banking Day, the period shall end on the next following Banking Day in
the same calendar month but if there is no such Banking Day it shall
end on the preceding Banking Day, and "months" and "monthly" shall be
construed accordingly;
"Principal Payment Date " has the meaning given to it in Clause 6.1;
"Reserve Requirement" shall mean, with respect to any day in an
Interest Period for a Loan, the aggregate of the reserve requirement
rates (expressed as a decimal) in effect on such day. As used herein,
the term "reserve requirement" shall include, without limitation, any
basic, supplemental or emergency reserve requirements imposed on a
Lender by any Governmental Authority;
"Senior Indebtedness Ratio" has the meaning set out in the Guaranty;
"Substitute" has the meaning given to it in Clause 15.5;
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"Substitution Certificate" means a certificate substantially in the
form of Exhibit 2;
"TIBOR" in relation to any period means (i) the average rate at which
deposits in Yen are offered to all banks for that period (or a period
most comparable to that period) calculated in accordance with ▇▇▇▇▇▇
Screen TIBM page or, if that page is no longer published, its successor
or equivalent in respect of a deposit for that period (or a period most
comparable to that period) at or about 11:00 a.m. (Tokyo time) on the
date falling two Banking Days prior to the first day of that period, or
(ii) if no such rate is quoted, the rate which a major Japanese city
bank selected by the Agent in its discretion was offering deposits to
prime banks in the Tokyo Interbank market for that period (or a period
most comparable to that period) at or about 11:00 a.m. (Tokyo time) on
the date falling two Banking Days prior to the first day of that
period;
"U.S. Dollars" or the sign "US$" means the lawful currency for the time
being of the United States of America;
"written" or "in writing" means any method of representing or
reproducing words or characters in permanent visible form; and
"Yen" or the sign "(Y)" means the lawful currency for the time being of
Japan and, in respect of all payments to be made under this Agreement,
means immediately available, freely transferable, cleared funds.
1.3 Headings
Clause headings and the table of contents are inserted for convenience
of reference only and shall be ignored in the interpretation of this
Agreement.
1.4 Construction of certain terms
In this Agreement, unless the context otherwise requires: (a)
references to clauses, schedules and exhibits are to be construed as
references to the clauses of, and schedules and exhibits to, this
Agreement and references to this
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Agreement include its schedules which form an integral part of this
Agreement; (b) references to a "regulation" include any present or
future regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law) of any agency, authority,
central bank or government department or any self-regulatory or other
national or supra-national authority; (c) words importing the plural
shall include the singular and vice versa and words importing a gender
shall include every gender; (d) references to any enactment shall be
deemed to include references to such enactment as re-enacted, amended
or extended; (e) references to "law" include, without limitation, any
legislation or decree or any decision of any court or tribunal in any
applicable jurisdiction; (f) references to "consent" include, without
limitation, any license, approval, waiver, filing, registration or
authorization; (g) references to a "party" are to a party to this
Agreement and "parties" shall be construed accordingly; (h) references
to statutes or regulations are to be construed as including all
statutory and regulatory provisions consolidating, amending or
replacing the statute or regulation referred to; (i) references to
agreements and other contractual instruments shall be deemed to include
all subsequent amendments and other modifications thereto, but only to
the extent such amendments and other modifications are not prohibited
by the terms of this Agreement or the Guaranty; (j) the words "hereof,"
"herein," "hereto," "hereunder" and the like mean and refer to this
Agreement as a whole and not merely to the specific Article, Section,
subsection, paragraph or clause in which the respective word appears;
and (k) the words "including," "includes" and "include" shall be deemed
to be followed by the words "without limitation".
2. THE FACILITY
2.1 Amount
The Lenders, relying on each of the representations and warranties in
Clause 9, agree to make available to the Borrower on and subject to the
terms of this Agreement a loan of up to (Y)1,700,000,000 (one billion
seven hundred million Yen). The obligation of each Lender under this
Agreement shall be to contribute that proportion of the Advance which
its Commitment bears to the total of the Commitments of all the
Lenders.
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2.2 Obligations several
The obligations of each Lender under this Agreement are several; the
failure of any Lender to perform its obligations shall not relieve any
other party of any of its respective obligations or liabilities under
this Agreement nor shall any party be responsible for the obligations
of any other party under this Agreement.
2.3 Interests several
The interests of the Agent, the Arranger and the Lenders are several
and the amount due to the Agent (for its own account), to the Arranger
and to each Lender is a separate and independent debt. The Agent, the
Arranger and (acting through the Agent in accordance with the terms of
this Agreement) each Lender shall have the right to protect and enforce
its rights arising out of this Agreement and may do so without joining
any other party to any proceedings taken for that purpose.
3. CONDITIONS
3.1 Documents and evidence
The obligation of each Lender to make its Commitment available is
conditional on the Agent, or its duly authorized representative, having
received the documents and evidence specified in Schedule 2 in form and
substance satisfactory to the Agent by the respective dates specified
in that schedule. The Agent shall notify the Lenders promptly after
receipt by it of the documents and evidence referred to in this Clause
3 in form and substance satisfactory to it.
3.2 Further conditions precedent
The obligation of each Lender to contribute to the Advance is subject
to the further conditions that:
(a) as of the Drawdown Date;
(i) the representations and warranties set out in Clause 9
(and so that the representation and warranty in Clause
9.1(f) shall for this
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purpose refer to the then latest audited financial
statements delivered to the Agent under Clause 10.1)
and in Paragraph 3 of the Guaranty are true and
correct on and as of each such time as if each was
made with respect to the facts and circumstances then
existing; and
(ii) no Default shall have occurred and be continuing or
would result from the making of the Advance;
(iii) all the covenants of the Borrower set forth in this
Agreement and all the covenants of the Guarantor set
forth in the Guaranty then required to have been met
and performed have been fully met and performed as of
the Drawdown Date; and
(iv) all of the conditions of drawdown required to be met
by the Borrower and which have not been waived by the
Agent acting on the instructions of the Majority
Lenders have been met as of the Drawdown Date and all
documents delivered by or on behalf of the Borrower as
conditions precedent continue in full force and
effect.
(b) the Agent shall have received payment of all fees then due in
accordance with the fee letter between the Borrower and the
Arranger dated on or around the date hereof.
Nothing in this Clause 3.2 constitutes a waiver of any right of the
Lenders arising from any Event of Default which shall have occurred and
be outstanding at the time of the drawing of the Advance.
3.3 Representations
The making of the Drawdown hereunder shall be deemed to be a
representation and warranty by the Borrower of the facts stated in
Clause 3.2(a).
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3.4 Waiver of conditions precedent
The conditions specified in this Clause 3 are solely for the benefit of
the Lenders and may be waived on their behalf in whole or in part and
with or without conditions by the Agent acting on the instructions of
the Majority Lenders.
4. DRAWDOWN
(a) Subject to the fulfillment of the conditions precedent set
forth in Clause 3, the Borrower shall borrow the Commitments
in a single drawing on the Drawdown Date. The drawdown shall
be in the total amount of the unterminated Commitments. The
Lenders shall not have any obligation to lend hereunder after
such date.
(b) Upon and subject to the terms and conditions hereof, and
subject to the due satisfaction or waiver by the Agent acting
on the instructions of the Majority Lenders of the conditions
to the obligations of the Lenders hereunder set forth in
Clause 3, each Lender shall, not later than 10:00 a.m. (Tokyo
time) on the Drawdown Date, make available to the Agent at its
Tokyo Branch Yen in immediately available funds in an amount
equal to its Commitment. The Agent shall promptly transfer on
the Drawdown Date all such amounts so made available to the
Borrower's Account upon which the Loan shall have been drawn
down in accordance with this Agreement.
(c) Without prejudice to the Borrower's obligations under Clause
10.1(b), none of the Lenders, the Arranger or the Agent shall
have any responsibility for the application by the Borrower of
the proceeds of the Advance.
5. INTEREST RATES AND INTEREST PERIODS
5.1 Usual interest rate
(a) The Borrower shall pay interest on the Loan in respect of each
Interest Period on the last day of each Interest Period
(provided that if the Borrower selects a duration of six
months for any Interest Period, interest shall be payable on
the date which is three months after the first day of such
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Interest Period in respect of the three-month period then
ending as well as on the last day of such Interest Period in
respect of the remaining three-month period) (each an
"Interest Payment Date") at the rate per annum determined by
the Agent to be the aggregate of (i) the applicable Margin and
(ii) TIBOR during such Interest Period.
(b) Notwithstanding the provisions of Clause 5.1(a), the Borrower
shall pay on October 30, 1998 interest on the Loan in respect
of the period commencing on and including the Drawdown Date
and ending on but excluding October 30, 1998 at the rate per
annum determined by the Agent to be the aggregate of (i) the
applicable Margin and (ii) the rate, expressed as a decimal,
equal to the cost to each Lender (as certified by it, which
certification shall be binding upon the parties hereto in the
absence of manifest error, and expressed as a rate per annum)
of funding its Contribution in Tokyo and in Yen during such
period in the Tokyo interbank market.
5.2 Default interest
During the existence of a Default the Borrower shall pay interest (both
before and after judgment) on (a) the outstanding Loan and (b) on any
amount (other than principal of the outstanding Loan) not paid when due
at a rate determined by the Agent pursuant to this Clause 5.2.
(a) The period beginning on the occurrence of the Default (the
"Default Date") and ending on the date any such Default is
cured or waived in accordance with the terms hereof shall be
divided into successive periods of not more than three months
(each a "default period") as selected by the Agent (after
consultation with the Lenders) each of which (other than the
first, which shall commence on the Default Date) shall
commence on the last day of the preceding default period.
(b) The rate of interest applicable to each default period shall
be the rate per annum determined by adding (i) two percent and
(ii) the applicable Margin then in effect to TIBOR as in
effect for such default period.
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(c) Default interest under this Clause 5.2 shall be due and
payable on the last day of each default period or, if earlier,
on the date on which the sum in respect of which that default
interest is accruing is actually paid.
(d) If the Agent is unable to determine a rate in accordance with
the foregoing provisions of this Clause 5.2, each Lender shall
promptly notify the Agent of the cost of funds to such Lender
and interest on any sum not paid on its due date for payment
shall be calculated for each Lender at a rate determined by
the Agent to be two percent per annum above the aggregate of
the Margin and the cost of funds to such Lender, as determined
by such Lender in its sole discretion.
5.3 Margin
(a) The Margin shall be, in respect of the period from and
including the Drawdown Date to and including December 26,
1999, 0.90 percent per annum.
(b) On or after December 27, 1999, the Margin shall be, in respect
of any Margin Period:
(i) if the Guarantor does not have net profits of greater
than US$1, as determined in accordance with generally
accepted accounting principles and practices in the
United States of America as consistently applied,
during both the fiscal quarter ending on September 26,
1999 and the fiscal quarter ending on December 26,
1999, 0.90 percent per annum;
(ii) if the Guarantor has net profits of greater than US$1,
as determined in accordance with generally accepted
accounting principles and practices in the United
States of America as consistently applied, during both
the fiscal quarter ending on September 26, 1999 and
the fiscal quarter ending on December 26, 1999 and the
Senior Indebtedness Ratio of the Guarantor as set
forth in the quarterly financial statements and
information of the Guarantor for the fiscal
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quarter ending immediately preceding the first day of
the relevant Margin Period is less than 0.10, 0.75
percent per annum;
(iii) if the Guarantor has net profits of greater than
US$1, as determined in accordance with generally
accepted accounting principles and practices in the
United States of America as consistently applied,
during both the fiscal quarter ending on September
26, 1999 and the fiscal quarter ending on December
26, 1999 and the Senior Indebtedness Ratio of the
Guarantor as set forth in the quarterly financial
statements and information of the Guarantor for the
fiscal quarter ending immediately preceding the first
day of the relevant Margin Period is greater than or
equal to 0.10 but less than 0.15, 0.85 percent per
annum; or
(iv) if the Guarantor has net profits of greater than US$1,
as determined in accordance with generally accepted
accounting principles and practices in the United
States of America as consistently applied, during both
the fiscal quarter ending on September 26, 1999 and
the fiscal quarter ending on December 26, 1999 and the
Senior Indebtedness Ratio of the Guarantor as set
forth in the quarterly financial statements and
information of the Guarantor for the fiscal quarter
ending immediately preceding the first day of the
relevant Margin Period is greater than or equal to
0.15, 0.95 percent per annum.
(c) Notwithstanding the provisions of Clause 5.3(b), if the
Guarantor fails to deliver to the Agent the financial
statements and information required under clause (i) and (ii)
of Subparagraphs 4(a) of the Guaranty within the time periods
set forth therein, the Margin shall be, in respect of any
period from and including the fifteenth day following the date
of such failure to and including the fifteenth day following
receipt by the Agent of such financial statements and
information (at which time subclause (b) above shall apply),
0.95 percent per annum.
Except where item (i) of subclause (b) above shall be applicable, the
Borrower shall notify the Agent of the Senior Indebtedness Ratio of the
Guarantor
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applicable to each Margin Period and shall submit Margin Certificates
(duly completed and signed by a duly authorized officer of the
Guarantor), and supporting evidence in respect thereof on or before the
first day of such Margin Period.
5.4 Selection of Interest Periods
Before the beginning of the initial Interest Period (which shall
commence on the date that is one month after the Drawdown Date) with
respect to the Loan, the Borrower may by notice received by the Agent
not later than 10 a.m. (Tokyo time) on the fifth Banking Day prior to
the first day of the initial Interest Period and subject to Clause 5.5
specify whether that Interest Period shall have a duration of one, two,
three or six months. The Borrower may, subject to Clause 5.5, select
subsequent Interest Periods with respect to the Loan. Before the
beginning of each subsequent Interest Period, the Borrower may by
notice received by the Agent not later than 10 a.m. (Tokyo time) on the
fifth Banking Day prior to the first day of such subsequent Interest
Period and subject to Clause 5.5 specify whether that Interest Period
shall have a duration of one, two, three or six months.
5.5 Determination of Interest Periods
Each Interest Period shall be of the duration specified by the Borrower
pursuant to Clause 5.4 except that:
(a) the initial Interest Period in respect of the Loan will
commence on the Drawdown Date and each subsequent Interest
Period in respect of the Loan will commence on the last day of
the previous Interest Period for the Loan;
(b) any Interest Period that would otherwise overrun the Maturity
Date shall end on the Maturity Date;
(c) the Borrower may choose an Interest Period of less than one
month in order that the Interest Period may end on a Principal
Payment Date;
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(d) the Borrower may not choose an Interest Period if as a result
thereof the Borrower would be unable to make the payment due
on the next Principal Payment Date on a day which is an
Interest Payment Date; and
(e) if the Borrower fails to specify the duration of an Interest
Period in accordance with the provisions of Clause 5.4 and
this Clause 5.5, that Interest Period shall have a duration of
one month or such other period as shall comply with this
Clause 5.5.
5.6 Notification of Interest Periods and interest rate
The Agent shall notify the Borrower and the Lenders promptly of the
duration of each Interest Period or other period for the calculation of
interest (or, as the case may be, default interest) and of each rate of
interest determined by it under this Clause 5.
5.7 Market disruption; non-availability
(a) If and whenever, at any time prior to the making or
continuation of the Advance:
(i) the Agent shall have determined (which determination
shall, in the absence of manifest error, be
conclusive), that adequate and fair means do not
exist for ascertaining TIBOR in respect of any
Interest Period in accordance with this Agreement; or
(ii) the Agent shall have received notification from
Lenders with Contributions aggregating not less than
one-third of the total of the Loan (or, if no Advance
has been made, Commitments aggregating not less than
one third of the Commitments of all the Lenders) that
deposits in Yen are not available to those Lenders in
the relevant interbank market in the ordinary course
of business in sufficient amounts to fund (or
maintain) their Contributions to the Loan or that
their funding costs in respect of the Loan are not
accurately reflected by TIBOR having regard to the
likely interest rate in respect of such Interest
Period,
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the Agent shall immediately give notice (a "Determination
Notice") of that fact to the Borrower and to each of the
Lenders. A Determination Notice shall give particulars of the
relevant circumstances giving rise to its issue.
(b) After the Interest Period in which any Determination Notice
falls, the Loan shall bear interest at the rate per annum
determined by the Agent to be the aggregate of (i) the
applicable Margin and (ii) the rate, expressed as a decimal,
equal to the cost to each Lender (as certified by it, which
certification shall be binding upon the parties hereto in the
absence of manifest error, and expressed as a rate per annum)
of funding its Contribution in Tokyo and in Yen during such
period in the Tokyo interbank market on each day during the
relevant period. The Borrower shall pay such interest on the
Loan on a monthly basis. The provisions of Clause 5.5 shall
apply mutatis mutandis as if the Borrower has chosen a
duration of one month for any Interest Period. If the Agent
deems that the relevant circumstances stated in such
Determination Notice have ceased to exist, the parties hereto
agree to return to the TIBOR based pricing as soon as
reasonably practicable.
5.8 Fixed rate option
On the effective date of the initial assignment by the initial Lender
hereunder of all or any of its rights hereunder to a Substitute
pursuant to Clause 15.4 (the "Conversion Date"), the parties hereto
shall convert the interest rate payable by the Borrower hereunder to a
fixed rate. Not later than five Banking Days prior to the Conversion
Date (which shall be the last day of an Interest Period), the Agent
will provide the Borrower with a quotation of the fixed interest rate
at which the initial Lender and such Substitute are prepared to
continue to maintain the Loan for the remaining term up to the Maturity
Date. If such quotation is acceptable to the Borrower, the Borrower
will notify the Agent of its intention to convert the Loan from a
floating rate loan to a fixed rate loan on or before 10:00 a.m. (Tokyo
time) on the fourth Banking Day prior to the Conversion Date, in which
case the Loan shall, commencing on the Conversion Date, bear interest
at the fixed rate quoted as aforesaid. Interest shall be calculated on
the basis of the actual number of days elapsed and a year of 365 days
and shall be payable on each
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Fixed Rate Payment Date for the Fixed Rate Period then ending. "Fixed
Rate Payment Date" means the date which (save as mentioned below) falls
three months after the last preceding Fixed Rate Payment Date or, in
the case of the first Fixed Rate Payment Date, after the Conversion
Date, provided that (x) on the first and the second Principal Payment
Dates, any interest accrued up to each such date on the amount of the
principal of the Loan due on such date shall be payable and (y) the
last Fixed Rate Payment Date shall be the Maturity Date. If any Fixed
Rate Payment Date falls on a day which is not a Banking Day, any
payment due on such date shall be made on the immediately succeeding
Banking Day (unless such succeeding Banking Day falls in the next
calendar month, in which case (i) such Fixed Rate Payment Date shall be
the immediately preceding Banking Day, and (ii) each subsequent Fixed
Rate Payment Date shall be the last Banking Day of the third month
after the month in which the preceding Fixed Rate Payment Date shall
have fallen). "Fixed Rate Period" means the period commencing on and
including the Conversion Date and ending on and including the first
Fixed Rate Payment Date, and thereafter each successive period
commencing on and including the date immediately following the last
preceding Fixed Rate Payment Date and ending on and including the next
succeeding Fixed Rate Payment Date. During the existence of a Default
the Borrower shall pay interest (both before and after judgment) on (a)
the outstanding Loan and (b) on any amount (other than principal of the
outstanding Loan) not paid when due at a rate per annum equal to the
applicable fixed rate plus two percent. If the fixed rate quotation
provided by the Agent is not acceptable to the Borrower, the Borrower
shall repay the Loan in full on the proposed Conversion Date.
6. REPAYMENT, PREPAYMENT AND CANCELLATION
6.1 Repayment
The Loan shall be repaid in three installments payable on September 30,
1999, September 30, 2000 and the Maturity Date (each such date, a
"Principal Payment Date") as follows:
September 30, 1999 (Y)425,000,000
September 30, 2000 (Y)425,000,000
Maturity Date (Y)850,000,000
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6.2 Voluntary prepayment
The Borrower may voluntarily prepay the Loan subject to the provisions
of this Clause 6 and of Clause 12.1. Any voluntary prepayment of the
Loan when it then bears interest at one of the rates specified in
Clause 5.1 may be in whole or in part, with any partial prepayment to
be in a minimum of (Y)100,000,000 (one hundred million Yen) or a larger
sum which is an integral multiple of (Y)100,000,000 (one hundred
million Yen). Any voluntary prepayment of the Loan when it then bears
interest at a fixed rate pursuant to Clause 5.8 may be in whole only.
6.3 Additional voluntary prepayment
The Borrower may also prepay (in whole but not in part only), without
premium or penalty, but without prejudice to its obligations under
Clause 8.8, Clause 12.1 or Clause 13.2, the Contribution of any Lender
to which the Borrower has become obliged to pay additional amounts
under Clause 8.8 or Clause 13.2. On notice of such a prepayment being
given, the Commitment of the relevant Lender shall be reduced to zero.
6.4 Timing, amounts and application of prepayments
Prepayments made on a date other than an Interest Payment Date will be
subject to, inter alia, the provisions of Clause 12.1(c) and (d).
Prepayments under this Agreement shall be made together with: (a)
accrued interest to the date of prepayment; (b) any additional amount
payable under Clause 8.8 or Clause 13.2; and (c) all other sums payable
by the Borrower to the relevant Lender under this Agreement and any
amounts payable under Clause 12.1.
6.5 Notice and effect of prepayment
No prepayment may be effected under this Clause 6 unless the Borrower
shall have given the Agent at least 10 days' notice of its intention to
make such prepayment. Every notice of prepayment shall be effective
only on actual receipt by the Agent, shall be irrevocable and shall
oblige the Borrower to make such prepayment on the date specified in
the notice. On a prepayment being made,
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the Commitments shall be automatically reduced by an amount equal to
the amount so prepaid and sums prepaid may not be re-borrowed. Any such
prepayment shall be applied to the then outstanding repayment
installments of the principal of the Loan as set out in Clause 6.1 in
the inverse order of their maturity.
7. FEES AND EXPENSES
7.1 Fees
The Borrower shall pay to the Agent whether or not any part of the
Commitments is ever advanced an arrangement fee, in the amount and at
the time agreed between the Borrower and the Arranger in a letter dated
on or around the date hereof.
7.2 Expenses
The Borrower shall pay to the Agent:
(a) as soon as reasonably practicable in accordance with the
Borrower's customary procedures for reviewing and processing
such items, and in any event within 30 days following receipt
of the Agent's invoice therefor, all reasonable expenses
(including legal and out-of-pocket expenses) incurred by the
Agent and the Arranger in connection with the negotiation,
preparation, syndication, execution and delivery of this
Agreement whether or not any part of the Commitments is ever
advanced;
(b) as soon as reasonably practicable in accordance with the
Borrower's customary procedures for reviewing and processing
such items, and in any event within 30 days following receipt
of the Agent's invoice therefor, all reasonable expenses
(including legal and out-of-pocket expenses) incurred by the
Agent and the Arranger in connection with any amendment or
extension of or the granting of any waiver or consent under
this Agreement; and
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(c) on demand, all reasonable expenses (including legal and
out-of-pocket expenses) incurred by the Agent, the Arranger,
the Lenders or any of them in contemplation of, or otherwise
in connection with, the enforcement of, or preservation of any
rights under, this Agreement, or otherwise in respect of the
moneys owing under this Agreement, together with interest at
the rate referred to in Clause 5.2 from the date on which such
expenses were incurred to the date of payment (as well after
as before judgment).
7.3 Consumption, etc. tax
All fees and expenses payable pursuant to this Clause 7 shall be paid
together with an amount equal to any consumption, sales, value added or
similar tax payable by the Agent, the Arranger or any Lender in respect
of those fees and expenses.
7.4 Stamp and other duties
The Borrower shall pay all stamp, documentary, registration or other
like duties or taxes (including any duties or taxes payable by the
Lenders) imposed on or in connection with this Agreement and shall
indemnify the Agent, the Arranger and the Lenders against any liability
arising by reason of any delay or omission by the Borrower to pay such
duties or taxes.
8. PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS
8.1 No set-off or counterclaim; distribution to the Lenders
The Borrower acknowledges that, in performing their obligations under
this Agreement, the Lenders will be incurring liabilities to third
parties in relation to the funding of amounts advanced to the Borrower,
those liabilities matching the liabilities of the Borrower to the
Lenders, and that it is reasonable for the Lenders to be entitled to
receive payments from the Borrower gross on their due date in order
that the Lenders are put in a position to perform their matching
obligations to the relevant third parties. Accordingly all payments to
be made by the Borrower under this Agreement shall be made in full,
without any set-off or counterclaim whatsoever and, subject to Clause
8.8, free and clear of any deductions or withholdings, in Yen (except
for costs, charges or expenses which
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shall be payable in the currency in which they are incurred) on their
due date to the account of the Agent specified in Schedule 1 or such
other bank and/or account as the Agent may from time to time specify
for this purpose. Except where this Agreement specifically provides for
a payment to be made for the account of a particular Lender, the Agent
or the Arranger, payments to be made by the Borrower under this
Agreement shall be for the account of all the Lenders and the Agent
shall forthwith distribute those payments in like funds as are received
by the Agent to the Lenders ratably in accordance with their
Commitments or Contributions, as the case may be.
8.2 Payments by the Lenders
Sums to be advanced by the Lenders to the Borrower under this Agreement
shall be remitted in Yen on the Drawdown Date to the account of the
Agent at such bank as the Agent may have notified to the Lenders and
shall be paid by the Agent on that date in like funds as are received
by the Agent to the Borrower's Account.
8.3 Agent may assume receipt
Where any sum is to be paid under this Agreement to the Agent for the
account of the Borrower or any Lender, the Agent may assume that the
payment will be made when due and may (but shall not be obliged to)
make that sum available to the person so entitled. If that payment is
then not made to the Agent, then the person to whom that sum was made
available shall on request refund that sum to the Agent together with
interest on it sufficient to compensate the Agent for the cost of
making the sum available up to the date of repayment and the person by
whom the sum was payable shall indemnify the Agent for all loss or
expense which the Agent may sustain or incur as a consequence of that
sum not having been paid on its due date.
8.4 Time of payment
Any sum payable by the Borrower to the Agent, the Arranger or to any
Lender under this Agreement shall be paid so as to be received in
immediately available funds in the payee's designated account by 11:00
a.m. (Tokyo time) for that
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account. Any payment received by the Agent from the Borrower for the
account of the Arranger or any Lender or Lenders which is received on
its due date but after the time specified above and too late to be made
available on that due date to the Arranger or the relevant Lender or
Lenders, as appropriate, shall be deemed to be received on the next
Banking Day (though the Agent shall give credit to the Borrower for any
interest earned by the Agent on that sum prior to its distribution). In
holding any such sum, the Agent shall not be acting as agent of or
trustee for the Borrower and may invest, deposit or otherwise deal with
that sum as it may, in its absolute discretion, see fit without any
duty or obligation to the Borrower in respect of that sum other than as
specifically provided for in this Agreement.
8.5 Non-Banking Days
When any payment under this Agreement would otherwise be due on a day
which is not a Banking Day, the due date for payment shall be extended
to the next following Banking Day unless that Banking Day falls in the
next calendar month in which case payment shall be made on the
immediately preceding Banking Day.
8.6 Calculations
Except with respect to interest on the Loan and unless provided
otherwise, all interest and other payments of an annual nature under
this Agreement shall accrue from day to day and be calculated on the
basis of actual days elapsed and a 365 day year. Interest on the Loan
shall accrue from day to day and be calculated on the basis of actual
days elapsed and a 360 day year.
8.7 Certificates conclusive
Any certificate or determination of the Agent or any Lender as to any
rate of interest or any amount payable under this Agreement shall, in
the absence of manifest error and so long as it acts in good faith, be
conclusive and binding on the Borrower and (in the case of a
certificate or determination by the Agent) on the Lenders; provided
that, in the case of expenses required to be paid by the Borrower
pursuant to Clause 7.2, the Agent, the Arranger, or any Lender, as the
case may be, shall provide such invoices, receipts or other documents
evidencing
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or supporting such determination as is reasonably available to it, and
such evidence or support shall be prima facie evidence of the amount
payable by the Borrower pursuant to Clause 7.2.
8.8 Grossing-up for Taxes
If at any time the Borrower is required to make any deduction or
withholding in respect of taxes, duties, assessments or governmental
charges of whatsoever nature ("Taxes") from any payment due under this
Agreement for the account of any Lender, the Arranger or the Agent (or
if the Agent is required to make any such deduction or withholding from
a payment to the Arranger or a Lender), the sum due from the Borrower
in respect of such payment shall be increased to the extent necessary
to ensure that, after the making of such deduction or withholding, each
Lender, the Arranger and the Agent receives on the due date for such
payment (and retains, free from any liability in respect of such
deduction or withholding) a net sum equal to the sum which it would
have received had no such deduction or withholding been required to be
made and the Borrower shall indemnify each Lender, the Arranger and the
Agent against any losses or costs incurred by any of them by reason of
any failure of the Borrower to make any such deduction or withholding
or by reason of any increased payment not being made on the due date
for such payment. The Borrower shall promptly deliver to the Agent any
receipts, certificates or other proof evidencing the amounts (if any)
paid or payable in respect of any deduction or withholding as
aforesaid.
8.9 Lender accounts
Each Lender shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time lent by,
owing to and paid to it under this Agreement. The Agent shall maintain
a control account showing the Loan and other sums owing by the Borrower
under this Agreement and all payments in respect thereof made by the
Borrower from time to time. The control account shall, in the absence
of manifest error, be conclusive as to the amount from time to time
owing by the Borrower under this Agreement.
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8.10 Partial payments
If, on any date on which a payment is due to be made by the Borrower
under this Agreement, the amount received by the Agent from the
Borrower falls short of the total amount of the payment due to be made
by the Borrower on that date then, without prejudice to any rights or
remedies available to the Agent, the Arranger or the Lenders under this
Agreement, the Agent shall apply the amount actually received from the
Borrower in or towards discharge of the obligations of the Borrower
under this Agreement in the following order, notwithstanding any
appropriation made, or purported to be made, by the Borrower:
(a) firstly, in or towards payment of any unpaid fees, costs and
expenses of the Agent under this Agreement;
(b) secondly, in or towards payment to the Arranger of any portion
of the arrangement fee payable under Clause 7.1 which remains
unpaid;
(c) thirdly, in or towards payment of any default interest which
is due but remains unpaid;
(d) fourthly, in or towards payment to the Lenders, on a pro rata
basis, of any accrued interest (other than default interest)
which is due but remains unpaid;
(e) fifthly, in or towards payment to the Lenders, on a pro rata
basis, of any principal which is due but remains unpaid; and
(f) sixthly, in or towards payment of any other sum which is due
but remains unpaid (and, if more than one such sum so remains
unpaid, on a pro rata basis).
8.11 Variation of application
The order of application set out in Clause 8.10(c) - 8.10(f) may be
varied by the Agent only if all the Lenders so direct.
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9. REPRESENTATIONS AND WARRANTIES
9.1 Representations and Warranties
The Borrower represents and warrants to each of the Lenders, the
Arranger and the Agent that:
(a) Due incorporation
the Borrower is duly incorporated and validly existing under
the laws of Japan as a limited liability stock company and has
power to carry on its business as it is now being conducted
and to own its property and other assets;
(b) Corporate power to borrow
the Borrower has power to execute, deliver and perform its
obligations under this Agreement and to borrow the
Commitments; all necessary corporate, shareholder and other
action has been taken to authorize the execution, delivery and
performance of the same and no limitation on the powers of the
Borrower to borrow will be exceeded as a result of borrowings
under this Agreement;
(c) Binding obligations
this Agreement constitutes valid and legally binding
obligations of the Borrower enforceable against the Borrower
in accordance with its terms;
(d) No conflict with other obligations
the execution and delivery of, the performance of its
obligations under, and compliance with the provisions of, this
Agreement by the Borrower will not (i) contravene any existing
material law or license to which the Borrower is subject; (ii)
conflict with, or result in any breach of any of the terms of,
or constitute a default under, any material agreement or other
instrument to which the Borrower is a party or is subject or
by which it or any of its
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property is bound; (iii) contravene or conflict with any
provision of the Borrower's Articles of Incorporation or (iv)
result in the creation or imposition of or oblige the Borrower
to create any Lien on any of the Borrower's undertaking,
assets, rights or revenues;
(e) Consents obtained
No authorization, consent, approval, license, exemption of, or
notarization, filing, recordation, registration or enrollment
in or with, any Governmental Authority, or approval or consent
of any other person, is required for the due execution,
delivery, validity, enforceability or admissibility in
evidence of this Agreement or the performance by the Borrower
of its obligations under this Agreement;
(f) Financial statements correct and complete
the unaudited financial statements of the Borrower in respect
of the financial year ended on June 30, 1998, as delivered to
Agent, have been prepared in accordance with generally
accepted accounting principles and practices in the United
States of America, which have been consistently applied and
present fairly and accurately the financial position of the
Borrower as at such date and the results of the operations of
the Borrower for the year ended on such date and, as at such
date, the Borrower did not have any significant liabilities
(contingent or otherwise) or any unrealized or unanticipated
losses which are not disclosed by, or reserved against or
provided for in, those financial statements;
(g) Ranking of Loan
the payment obligations of the Borrower hereunder will be
ranked by the Borrower at least pari passu in priority of
payment with all other unsecured and unsubordinated
indebtedness of the Borrower;
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(h) Choice of law
the choice by the Borrower of the laws of Japan to govern this
Agreement is valid and binding;
(i) No immunity
neither the Borrower nor any of its assets is entitled to
immunity on the grounds of sovereignty or otherwise from any
legal action or proceeding (which shall include, without
limitation, suit, attachment prior to judgment, execution or
other enforcement); and
(j) No withholding Taxes
provided that each Lender is incorporated in or has its
lending office in Japan, no Taxes (other than consumption and
stamp duties) are imposed by withholding or otherwise on any
payment to be made by the Borrower under this Agreement or are
imposed on or by virtue of the execution or delivery by the
Borrower of this Agreement or any document or instrument to be
executed or delivered under this Agreement.
9.2 Repetition
The representations and warranties in Clause 9.1 (and so that the
representation and warranty in Clause 9.1(f) shall for this purpose
refer to the then latest financial statements delivered to the Agent
under Clause 10.1) shall be deemed to be repeated by the Borrower on
and as of the Drawdown Date, the first day of each Interest Period and
the Conversion Date as if made with reference to the facts and
circumstances existing on each such day.
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10. UNDERTAKINGS
10.1 Undertakings
The Borrower undertakes with each of the Lenders and the Agent that,
from the date of this Agreement and so long as any moneys are owing
under this Agreement, it will, or will cause to happen on its behalf:
(a) Notice of Default
promptly inform the Agent of any occurrence of which it
becomes aware which is reasonably likely to materially and
adversely affect its ability to perform its obligations under
this Agreement and of any Default immediately on becoming
aware of it and will from time to time, if so requested by the
Agent, confirm to the Agent that, except as otherwise stated
in that confirmation, no Default has occurred and is
continuing;
(b) Use of proceeds
use the Advances exclusively for the purposes specified in
Clause 1.1;
(c) Pari passu
ensure that its obligations under this Agreement shall,
without prejudice to the provisions of Clause 10.2, at all
times rank at least pari passu with all its other present and
future unsecured and unsubordinated indebtedness;
(d) Financial statements
prepare unaudited financial statements in accordance with
generally accepted accounting principles and practices in the
United States of America consistently applied in respect of
each financial year and prepare summary financial statements
(in a form reasonably acceptable to the Agent) in respect of
each quarter in accordance with generally accepted accounting
principles and practices in the United States of America
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consistently applied and deliver sufficient copies of the same
to the Agent for distribution to all the Lenders as soon as
practicable but not later than 100 days (in the case of the
annual financial statements) or 50 days (in the case of
quarterly financial statements) after the end of the financial
period to which they relate;
(e) Delivery of reports, etc.
deliver to the Agent, for distribution to the Lenders,
sufficient copies for all the Lenders of every report,
circular, notice or like document issued by the Borrower to
its creditors generally, at the time of issue thereof, and
provide the Agent with such other information relating to the
Borrower and the Guarantor as any Lender (through the Agent)
may reasonably request from time to time;
(f) Pension schemes
ensure that the levels of contribution to the pension schemes
for the time being operated by the Borrower are and continue
to be sufficient to cover the liabilities of such schemes in
full to the extent contributions to cover such liabilities are
permitted or will not result in taxation on participants
thereof in the year in which contribution is made; and
(g) Additional evidence
not later than October 15, 1998, deliver to the Agent, or its
duly authorized representative, all of the documents and
evidence specified in Schedule 3 in form and substance
satisfactory to the Agent.
10.2 Pledges
The Borrower undertakes with each of the Lenders and the Agent that,
from the date of this Agreement and so long as any moneys are owing
under this Agreement, without the prior written consent of the Agent
acting on the instructions of the Majority Lenders, it will not create,
incur, assume or suffer to exist any Lien upon or with respect to any
of its properties, revenues or assets,
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whether now owned or hereafter acquired, except for Permitted Liens (as
defined in the Guaranty).
11. EVENTS OF DEFAULT
11.1 Events of Default
Each of the events and circumstances set out below is an Event of
Default (whether or not caused by any reason outside the control of the
Borrower or the Guarantor):
(a) Non-payment: the Borrower fails to pay in Yen in the manner
provided in this Agreement (i) on the Maturity Date, any
amount payable by it hereunder on that date; (ii) on the due
date, any principal payable by it hereunder; or (iii) within
five Banking Days after the due date, any other amount payable
by it hereunder; or
(b) Mis-representations: any representation or warranty made or
deemed to be made by the Borrower under this Agreement or by
the Guarantor under the Guaranty or in any certificate,
document or financial or other statement furnished at any time
under or in connection with this Agreement or the Guaranty
proves to have been incorrect or misleading in any material
respect when made or deemed to be made and such incorrectness
or misleadingness shall not be cured within 30 days after
written notice thereof is given by the Agent to the Borrower;
or
(c) Breach of other obligations: the Borrower commits any material
breach of or omits to observe in any material respect any of
the obligations or undertakings expressed to be assumed by it
under this Agreement (other than failure to pay any sum when
due) and, in respect of any such breach or omission which in
the opinion of the Majority Lenders is capable of remedy, such
breach or omission shall continue for 30 or more days after
the occurrence of such default; or the Guarantor commits any
breach of or omits to observe any of the obligations or
undertakings expressed to be assumed by it under the Guaranty
and, in respect of any such breach or omission which in the
opinion of the Majority Lenders is capable of
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remedy, such breach or omission shall continue for 30 or more
days after the occurrence of such default; or
(d) Cross default: the Borrower or the Guarantor (i) defaults in
any payment of principal of or interest on any indebtedness
(other than the Loan), in an aggregate amount of US$10,000,000
(or its equivalent in any other currency) or more beyond the
period of grace, if any, provided in the instrument or
agreement under which such indebtedness was created; or (ii)
defaults in the observance or performance of any other
agreement or condition relating to any such indebtedness or
contained in any instrument or agreement evidencing, securing
or relating thereto, the effect of which is to cause, or to
permit the holder or holders of such indebtedness (or trustee
or agent on behalf of such holder or holders) to cause, with
the giving of notice if required, such indebtedness to become
due prior to its stated maturity and any such default shall
continue for more than the applicable period of grace, if any,
provided in the instrument or agreement under which such
indebtedness was created; or
(e) Insolvency:
(i) the Borrower or the Guarantor commences any case,
proceeding or other action under any existing or
future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or
other relief of debtors, seeking to have an order for
relief entered on its behalf as debtor, or seeking to
adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, winding-up, liquidation,
dissolution, composition, readjustment of debt or
other relief with respect to it or its debts, or
seeking appointment of a receiver, trustee,
custodian, liquidator, conservator, sequestrator or
other similar official for it or for all or any
substantial part of its assets; or
(ii) the Borrower or the Guarantor makes a general
assignment for the benefit of its creditors; or
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(iii) there is commenced against the Borrower or the
Guarantor any case proceeding or other action of a
nature referred to in clause (i) or (ii) which (A)
results in the entry of an order for relief or any
such adjudication or appointment with respect to the
Borrower or the Guarantor or all or any substantial
part of its assets, or (B) remains undismissed,
unstayed, undischarged or unbonded for a period of 60
days; or
(iv) there is commenced against the Borrower or the
Guarantor any case, proceeding or other action seeking
issuance of a warrant of attachment, execution,
distraint or similar process against all or any
substantial part of its assets which results in the
entry of an order for any such relief which shall not
have been vacated, discharged, or stayed or bonded
pending appeal within 60 days after the entry thereof;
or
(v) the Borrower or the Guarantor takes any action in
furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in
items (i), (ii), (iii) or (iv) above; or
(vi) the Borrower or the Guarantor is unable to, or admits
in writing its inability to, pay its debts as they
become due; or
(vii) any clearing house for the settlement of promissory
notes in observance of its rules takes procedures for
suspension of the Borrower's transactions with banks
and similar institutions; or
(f) Judgments: a final judgment for the payment of money in excess
of US$10,000,000 (or its equivalent in any other currency) in
the aggregate is rendered by a court against the Borrower or
the Guarantor and the Borrower or the Guarantor, as the case
may be, shall not discharge the same or provide for its
discharge in accordance with its terms, or procure a stay of
execution thereof within 120 days after the date of entry
thereof and within said period of 120 days, or such longer
period during which execution of such judgment shall have been
stayed, appeal therefrom and cause the execution thereof to be
stayed during such appeal; or
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(g) Guaranty effective: the Guaranty ceases to be (or the
Guarantor claims that the Guaranty has ceased to be) in full
force and effect; or
(h) Change in control: (i) the Guarantor ceases to own 100% of the
total issued shares in the Borrower or (ii) any Change of
Control (as defined in the Guaranty) occurs; or
(i) Material adverse effect: (i) any event or circumstance (other
than those referred to elsewhere in Clause 11.1) occurs that
would have a material adverse effect on the ability of the
Borrower to perform its obligations hereunder or (ii) any
Material Adverse Effect (as defined in the Guaranty) occurs.
11.2 Acceleration
The Agent may, or if so instructed by the Majority Lenders, shall,
without prejudice to any other rights of the Lenders, at any time after
the happening of an Event of Default so long as the same is continuing
by notice to the Borrower declare that:
(a) the obligation of each Lender to make its Commitment available
shall be terminated and the Commitments shall then immediately
be reduced to zero; and/or
(b) the outstanding Loan and all interest accrued and all other
sums payable under this Agreement have become immediately due
and payable or have become due and payable on demand,
whereupon the same shall, immediately or in accordance with
the terms of that notice, become so due and payable;
provided that, upon the occurrence of any Event of Default described in
Clause 11.1(e), the result which would otherwise occur only upon
declaration by the Agent shall occur automatically, without the
necessity of any action by the Agent or the Lenders.
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On or at any time after the making of any such declaration, the Agent
shall be entitled, to the exclusion of the Borrower (and without
prejudice to Clause 5.2), to select the duration of Interest Periods.
11.3 Demand basis
If, pursuant to Clause 11.2(b), the Agent declares the outstanding Loan
to be due and payable on demand then, at any time thereafter, the Agent
may, or, if so instructed by the Majority Lenders, shall, by written
notice to the Borrower (a) call for repayment of the Loan on such date
as may be specified in that notice and the Loan shall become due and
payable on the date so specified together with all interest accrued and
all other sums payable under this Agreement or (b) withdraw that
declaration with effect from the date specified in the notice.
12. INDEMNITIES
12.1 Broken funding and other indemnities
The Borrower shall on demand indemnify each Lender, the Arranger and
the Agent, without prejudice to any of their other respective rights
under this Agreement, against any loss or expense which such Lender,
the Arranger or the Agent shall certify (which certification shall be
provided in writing within six months after such Lender, the Arranger
or the Agent determines that such indemnification is due) as having
been sustained or incurred by it as a consequence of:
(a) any default in payment by the Borrower of any sum under this
Agreement when due;
(b) the occurrence of any other Event of Default or any
acceleration pursuant to Clause 11.2;
(c) any prepayment of the Advance or part thereof when it then
bears interest at one of the rates specified in Clause 5.1
being made under Clause 6.2, Clause 6.3 or Clause 13.1
otherwise than on an Interest Payment Date;
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(d) any prepayment of the Advance when it then bears interest at a
fixed rate pursuant to Clause 5.8 being made under Clause 6.2,
Clause 6.3 or Clause 13.1 at any time (whether on an Interest
Payment Date or otherwise); or
(e) the Advance not being made for any reason (excluding any
default by the Agent, the Arranger or any Lender) on the
Drawdown Date,
including, in any such case, any loss or expense sustained or incurred
by such Lender in maintaining or funding its Contribution or any part
thereof or in liquidating or re-employing deposits from third parties
acquired or contracted for to fund its Contribution or any part thereof
or any other amount owing to such Lender.
12.2 Currency indemnity
If any sum due from the Borrower under this Agreement or any order or
judgment given or made in relation hereto has to be converted from the
currency (the "first currency") in which the same is payable under this
Agreement or under such order or judgment into another currency (the
"second currency") for the purpose of (a) making or filing a claim or
proof against the Borrower, (b) obtaining an order or judgment in any
court or other tribunal or (c) enforcing any order or judgment given or
made in relation to this Agreement, the Borrower shall indemnify and
hold harmless the Agent, the Arranger and each Lender from and against
any loss suffered as a result of any difference between (i) the rate of
exchange used for such purpose to convert the sum in question from the
first currency into the second currency and (ii) the rate or rates of
exchange at which the Agent, the Arranger or such Lender may in the
ordinary course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in whole or
in part, of any such order, judgment, claim or proof. Any amount due
from the Borrower under this Clause 12.2 shall be due as a separate
debt and shall not be affected by judgment being obtained for any other
sums due under or in respect of this Agreement and the term "rate of
exchange" includes any premium and costs of exchange payable in
connection with the purchase of the first currency with the second
currency.
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13. UNLAWFULNESS AND INCREASED COSTS
13.1 Illegality
If, after the date of this Agreement, the adoption of any Governmental
Rule, any change in any Governmental Rule or the application or
requirements thereof (whether such change occurs in accordance with the
terms of such Governmental Rule as enacted, as a result of amendment or
otherwise), any change in the interpretation or administration of any
Governmental Rule by any Governmental Authority, or compliance by any
Lender with any request or directive (whether or not having the force
of law) of any Governmental Authority (a "Change of Law") shall make it
unlawful or impossible for any Lender to make or maintain its
Contribution, such Lender shall immediately notify Agent and Borrower
of such Change of Law and the Borrower shall, not later than the date
specified by such Lender, repay such Lender's Contribution.
13.2 Increased costs
If, after the date of this Agreement, any Change of Law:
(a) Shall subject any Lender to any tax, duty or
other charge with respect to its Contribution or shall change
the basis of taxation of payments by the Borrower to any
Lender on its Contribution or in respect to such Contribution
under this Agreement (except for changes in the rate of
taxation on the overall net income of any Lender imposed by
its jurisdiction of incorporation or the jurisdiction in which
its principal executive office is located); or
(ii) Shall impose, modify or hold applicable any
reserve (excluding any Reserve Requirement or other reserve to
the extent included in the calculation of TIBOR for the Loan),
special deposit or similar requirement against assets held by,
deposits or other liabilities in or for the account of,
advances or loans by, or any other acquisition of funds by any
Lender for its Contribution; or
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(iii) Shall impose on any Lender any other condition
related to its Contribution, the Loan or such Lender's
Commitment;
And the effect of any of the foregoing is to increase the cost to such
Lender of making, renewing, or maintaining its Contribution, the Loan
or its Commitment or to reduce any amount receivable by such Lender
hereunder; then the Borrower shall from time to time, within five (5)
days after demand by such Lender, pay to such Lender additional amounts
sufficient to reimburse such Lender for such increased costs or to
compensate such Lender for such reduced amounts. A certificate as to
the amount of such increased costs or reduced amounts, submitted by
such Lender to the Borrower shall, in the absence of manifest error, be
conclusive and binding on the Borrower for all purposes. The
obligations of the Borrower under this Clause 13.2 shall survive the
payment and performance of the Borrower's obligations under this
Agreement and the termination of this Agreement; provided, however,
that any Lender must submit a demand for payment pursuant to this
provision within six (6) months after such Lender has first
conclusively determined that such reimbursement or compensation is due
such Lender under this and similar agreements.
13.3 Capital requirements
If, after the date of this Agreement, any Lender determines that (i)
any Change of Law affects the amount of capital required or expected to
be maintained by such Lender or any party controlling such Lender (a
"Capital Adequacy Requirement") and (ii) the amount of capital
maintained by such Lender or such party which is attributable to or
based upon such Lender's Contribution, the Loan or such Lender's
Commitments or this Agreement must be increased as a result of such
Capital Adequacy Requirement (taking into account such Lender's or such
party's policies with respect to capital adequacy), the Borrower shall
pay to such Lender or such party, within five (5) days after demand of
such Lender, such amounts as such Lender or such party shall determine
are necessary to compensate such Lender or such party for the increased
costs to such Lender or such party of such increased capital. A
certificate of any Lender setting forth in reasonable detail the
computation of any such increased costs, delivered by such Lender to
the Borrower shall, in the absence of manifest error, be conclusive and
binding on the Borrower for all purposes. The
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obligations of the Borrower under this Clause 13.3 shall survive the
payment and performance of the Borrower's obligations under this
Agreement and the termination of this Agreement; provided, however,
that any Lender must submit a demand for payment pursuant to this
provision within six (6) months after such Lender has first
conclusively determined that such reimbursement or compensation is due
such Lender under this and similar agreements.
13.4 Mitigation
Any Lender which becomes aware of (i) any Change of Law which will make
it unlawful or impossible for such Lender to make or maintain its
Contribution or (ii) any Change of Law or other event or condition
which will obligate Borrower to pay any amount pursuant to Clause 13.2
or Clause 13.3 shall notify the Borrower and the Agent thereof as
promptly as practical. If any Lender that has given notice of any such
Change of Law or other event or condition thereafter becomes aware that
such Change of Law or other event or condition has ceased to exist,
such Lender shall notify the Borrower and the Agent thereof as promptly
as practical. Each Lender affected by any Change of Law which makes it
unlawful or impossible for such Lender to make or maintain its
Contribution or to which the Borrower is obligated to pay any amount
pursuant to Clause 13.2 or Clause 13.3 shall use reasonable commercial
efforts (including changing the jurisdiction of its lending office) to
avoid the effect of such Change of Law or to avoid or materially reduce
any amounts which Borrower is obligated to pay pursuant to Clause 13.2
or Clause 13.3 if, in the reasonable opinion of such Lender, such
efforts would not be disadvantageous to such Lender or contrary to such
Lender's normal banking practices.
14. SET-OFF AND PRO RATA PAYMENTS
14.1 Set-off
The Borrower authorizes each Lender to apply any credit balance to
which the Borrower is then entitled on any account of the Borrower with
the Lender at any of its branches in or towards satisfaction of any sum
then due and payable from the Borrower to the Lender under this
Agreement. For this purpose each Lender
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is authorized to purchase with the moneys standing to the credit of any
such account such other currencies as may be necessary to effect that
application. None of the Lenders shall be obliged to exercise any right
given to it by this Clause 14.1. Each Lender shall notify the Agent and
the Borrower immediately on the exercise or purported exercise of any
right of set-off, giving full details in relation thereto and the Agent
shall inform the other Lenders.
14.2 Pro rata payments
(a) If at any time any Lender (the "Recovering Lender") receives
or recovers any amount owing to it by the Borrower under this
Agreement by direct payment, set-off or in any manner other
than by payment through the Agent pursuant to Clause 8.1 or
Clause 8.10, the Recovering Lender shall, within two Banking
Days of such receipt or recovery (a "Direct Receipt") notify
the Agent of the amount of the Direct Receipt. If the Direct
Receipt exceeds the amount which the Recovering Lender would
have received if the Direct Receipt had been received by the
Agent and distributed pursuant to Clause 8.1 or Clause 8.10
(as the case may be) then:
(i) within two Banking Days of demand by the Agent, the
Recovering Lender shall pay to the Agent an amount
equal (or equivalent) to the excess;
(ii) the Agent shall treat the excess amount so paid by the
Recovering Lender as if it were a payment made by the
Borrower and shall distribute the same to the Lenders
(other than the Recovering Lender) in accordance with
Clause 8.1 or Clause 8.10, as appropriate; and
(iii) as between the Borrower and the Recovering Lender the
excess amount so re-distributed shall be treated as
not having been paid but the obligations of the
Borrower to the other Lenders shall, to the extent of
the amount so re-distributed to them, be treated as
discharged.
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(b) If any part of the Direct Receipt subsequently has to be
wholly or partly refunded by the Recovering Lender each Lender
to which any part of such Direct Receipt was so re-distributed
shall on request from the Recovering Lender repay to the
Recovering Lender its pro rata share of the amount which has
to be refunded by the Recovering Lender.
(c) Each Lender shall on request supply to the Agent such
information as the Agent may from time to time request for the
purpose of this Clause 14.2.
(d) Any amount received or recovered by a Lender under a transfer,
assignment, sub-participation (or the like) shall be ignored
for the purpose of this Clause 14.2.
15. ASSIGNMENT, SUBSTITUTION AND LENDING OFFICES
15.1 Benefit and burden
This Agreement shall be binding upon, and enure for the benefit of, the
Lenders, the Agent and the Borrower and their respective successors and
Substitutes. This Agreement shall also enure for the benefit of the
Arranger.
15.2 No assignment by Borrower
The Borrower may not assign, transfer or otherwise dispose of any of
its rights or obligations under this Agreement without the prior
written consent of the Agent and each Lender.
15.3 Participation
Any Lender may, in its absolute discretion and without any requirement
to obtain the consent of or to give notice or any information to any
other party, grant one or more participating interests in its
proportion of the Loan to any third party (a "Participant"). The
granting of such a participating interest shall not affect the relevant
Lender's rights and obligations under this Agreement nor shall the
Participant acquire any rights or assume any obligations under this
Agreement other than with the agreement of the Borrower and the Agent.
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15.4 Transfer
Otherwise than in accordance with this Clause 15.4, each Lender may not
assign all or any of its rights hereunder. Each Lender (a "Transferring
Lender") may, in its absolute discretion and without any requirement to
obtain the consent of any other party (other than the consent of the
Agent and (if no Default shall have occurred or be continuing) the
Borrower, which consent shall not be unreasonably withheld or delayed),
transfer all or any part of its rights, benefits and/or obligations
under this Agreement to another person (a "Substitute"), provided that
the amount to be transferred shall not be less than (Y)500,000,000. Any
such transfer shall be effected on five Banking Days' prior notice by
delivery to the Agent of a duly completed Substitution Certificate duly
executed by the Transferring Lender and the Substitute (which the Agent
shall promptly execute for itself, the Borrower and the other Lenders
(the "other parties")). Subject to the execution of that Substitution
Certificate by all parties to it, on the effective date specified in a
Substitution Certificate, to the extent that they are expressed in that
Substitution Certificate to be the subject of the transfer effected
pursuant to this Clause 15.4:
(a) the other parties and the Transferring Lender shall be
released from their respective obligations towards one another
under this Agreement (the "discharged obligations") and their
respective rights against one another under this Agreement
(the "discharged rights") shall be cancelled;
(b) the relevant Substitute and the other parties shall assume
obligations towards each other which differ from the
discharged obligations only insofar as they are owed to or
assumed by that Substitute instead of to or by the
Transferring Lender; and
(c) the relevant Substitute and the other parties shall acquire
rights against each other which differ from the discharged
rights only insofar as they are exercisable by or against such
Substitute instead of by or against the Transferring Lender.
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The Agent shall promptly notify the other parties of the receipt by it
of any Substitution Certificate and shall promptly deliver a copy of
that Substitution Certificate to the Borrower.
15.5 Reliance on Substitution Certificate
The Agent and the Borrower may rely on any Substitution Certificate
delivered to the Agent in accordance with the foregoing provisions of
this Clause 15 which is complete and regular on its face as regards its
contents and purportedly signed on behalf of the Transferring Lender
and the Substitute and neither the Agent nor the Borrower shall have
any liability or responsibility to any party as a consequence of
placing reliance on and acting in accordance with any such Substitution
Certificate if it proves to be the case that the same was not authentic
or duly authorized.
15.6 Authorization of Agent
The Borrower and each Lender irrevocably authorizes the Agent to
counter-sign each Substitution Certificate on its behalf without any
further consent of, or consultation with, the Borrower or such Lender.
15.7 Construction of certain references
If any Lender transfers any of its rights, benefits and obligations as
provided in Clause 15.4 all relevant references in this Agreement to
such Lender shall thereafter be construed as a reference to that Lender
and/or its Substitute (as the case may be) to the extent of their
respective interests.
15.8 Lending offices
Each Lender shall lend through its office at the address specified in
Schedule 1 or, as the case may be, in any relevant Substitution
Certificate or through any other office of that Lender selected from
time to time by that Lender through which such Lender wishes to lend
for the purposes of this Agreement. If the office through which a
Lender is lending is changed pursuant to this Clause 15.8, the Lender
shall notify the Agent promptly of that change. Before a Lender changes
its lending office pursuant to this Clause 15.8, such Lender shall
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consider whether such change will increase the amounts payable by the
Borrower to such Lender under this Agreement.
15.9 Disclosure of information
Any Lender may disclose to a prospective transferee or Substitute or to
any other Person who may propose entering into contractual relations
with that Lender in relation to this Agreement such information about
the Borrower as the Lender shall consider appropriate, subject to
Clause 17.5.
16. ARRANGER, AGENT AND REFERENCE LENDERS
16.1 Appointment of Agent
Each Lender irrevocably appoints the Agent as its agent for the
purposes of this Agreement and the Guaranty and authorizes the Agent
(whether or not by or through employees or agents) to take such action
on such Lender's behalf and to exercise such rights, remedies, powers
and discretions as are specifically delegated to the Agent by this
Agreement, together with such powers and discretions as are reasonably
incidental thereto. Neither the Agent nor the Arranger shall, however,
have any duties, obligations or liabilities to the Lenders beyond those
expressly stated in this Agreement.
16.2 Amendments; Waivers
(a) Subject to Clause 16.2(b), the Agent may, with the consent of
the Majority Lenders (or if and to the extent expressly
authorized by the other provisions of this Agreement), (i)
agree to amendments or modifications to this Agreement with
the Borrower and/or (ii) vary or waive breaches of, or
defaults under, or otherwise excuse performance of, any
provision of this Agreement by the Borrower. Any such action
so authorized and effected by the Agent shall be documented in
such manner as the Agent shall (with the approval of the
Majority Lenders) determine, shall be promptly notified to the
Lenders by the Agent and shall be binding on all the Lenders.
(b) Except with the prior written consent of all the Lenders, the
Agent shall not have authority on behalf of the Lenders to
agree with the Borrower to
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any amendment or modification to this Agreement or to grant
waivers in respect of breaches or defaults or to vary or
excuse performance of or under this Agreement by the Borrower,
if the effect of such amendment, modification, waiver,
variation or excuse would be to (i) reduce any applicable
Margin, (ii) postpone the due date or reduce the amount of any
payment of principal, interest or other amount payable by the
Borrower under this Agreement, (iii) change the currency in
which any amount is payable by the Borrower under this
Agreement, (iv) increase any Lender's Commitment, (v) change
the definition of "Majority Lenders" in Clause 1.2, (vi)
change any provision of this Agreement which expressly or
impliedly requires the approval or consent of all the Lenders
such that the relevant approval or consent may be given
otherwise than with the sanction of all the Lenders, (vii)
change the order of distribution under Clause 8.10, (viii)
change Clause 14.2 or (ix) change this Clause 16.2.
16.3 Rights of Agent as Lender; No partnership
With respect to its own Commitment and Contribution (if any) the Agent
shall have the same rights and powers under this Agreement and the
Guaranty as any other Lender and may exercise the same as though it
were not performing the duties and functions delegated to it under this
Agreement and the term "Lenders" shall, unless the context clearly
otherwise indicates, include the Agent in its individual capacity as a
Lender. This Agreement shall not and shall not be construed so as to
constitute a partnership between the parties or any of them.
16.4 No liability of Arranger and Agent
Neither the Arranger nor the Agent shall:
(a) be obliged to request any certificate under Clause 10.1 or to
make any enquiry as to the use of the proceeds of the Loan
unless (in the case of the Agent) so required in writing by
any Lender, in which case the Agent shall promptly make the
appropriate request of the Borrower, or be obliged to make any
enquiry as to any default by the Borrower in the performance
or observance of any of the provisions of this Agreement or as
to the existence of a Default unless (in the case of the
Agent) the Agent has actual
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knowledge thereof or has been notified in writing thereof by a
Lender, in which case the Agent shall promptly notify the
Lenders of the relevant event or circumstance; or
(b) be liable to any Lender for any action taken or omitted under
or in connection with this Agreement unless caused by its
gross negligence or willful misconduct.
For the purposes of this Clause 16 the Agent shall not be treated as
having actual knowledge of any matter of which the corporate finance or
any other division outside the agency or loan administration department
of the person for the time being acting as the Agent may become aware
in the context of corporate finance, advisory or lending activities
from time to time undertaken by the Agent for the Borrower or any of
its subsidiaries or associated companies or any other person which may
be a trade competitor of the Borrower or may otherwise have commercial
interests similar to those of the Borrower.
16.5 Agent's duty to notify and take action
The Agent shall:
(a) promptly notify each Lender of the contents of each notice,
certificate or other document received by the Agent from the
Borrower under or pursuant to Clauses 10.1(a) or 10.1(e); and
(b) (subject to its being indemnified to its satisfaction) take
such action or, as the case may be, refrain from taking such
action with respect to any Default of which the Agent has
actual knowledge as the Majority Lenders may reasonably
direct.
16.6 Identity of Lenders
The Agent may deem and treat (a) each Lender as the person entitled to
the benefit of the Contribution of such Lender for all purposes of this
Agreement unless and until a Substitution Certificate shall have been
filed with the Agent, and (b) the office set opposite the name of each
Lender in Schedule 1 or, as the
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case may be, in any relevant Substitution Certificate as such Lender's
lending office unless and until a written notice of change of lending
office shall have been received by the Agent; and the Agent may act
upon any such notice unless and until the same is superseded by a
further such notice.
16.7 Non-reliance on Arranger or Agent
Each Lender acknowledges that it has not relied on any statement,
opinion, forecast or other representation made by the Arranger or the
Agent to induce it to enter into this Agreement and that it has made
and will continue to make, without reliance on the Agent or the
Arranger and based on such documents as it considers appropriate, its
own appraisal of the creditworthiness of the Borrower and its own
independent investigation of the financial condition and affairs of the
Borrower in connection with the making and continuation of the Loan
under this Agreement. Neither the Arranger nor the Agent shall have any
duty or responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with respect to
the Borrower whether coming into its possession before the making of
any Advance or at any time or times thereafter, other than (in the case
of the Agent) as provided in Clause 16.5(a).
16.8 No Responsibility on Arranger or Agent for Borrower's performance
Neither the Arranger nor the Agent shall have any responsibility to any
Lender on account of the failure of the Borrower or the Guarantor to
perform its obligations under this Agreement or the Guaranty or for the
financial condition of the Borrower or the Guarantor or for the
completeness or accuracy of any statements, representations or
warranties in this Agreement or the Guaranty or any document delivered
under this Agreement or for the execution, effectiveness, adequacy,
genuineness, validity, enforceability or admissibility in evidence of
this Agreement or of any certificate, report or other document executed
or delivered under this Agreement or its negotiation or for acting (or,
as the case may be, refraining from acting) in accordance with the
instructions of the Majority Lenders. The Arranger and the Agent shall
be entitled to rely on any communication, instrument or document
believed by it to be genuine and correct and to have been signed or
sent by the proper person and shall be entitled to rely
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as to legal or other professional matters on opinions and statements of
any legal or other professional advisers selected or approved by it.
16.9 Other dealings
The Arranger and the Agent may, without any liability to account to the
Lenders, accept deposits from, lend money to, and generally engage in
any kind of banking or trust business with, the Borrower or any of its
subsidiaries or associated companies or any of the Lenders as if it
were not the Arranger or the Agent as the case may be.
16.10 Reimbursement and indemnity by Lenders
Each Lender shall reimburse the Arranger and the Agent (ratably in
accordance with such Lender's Commitment or Contribution), to the
extent that the Arranger or the Agent is not reimbursed by the Borrower
or the Guarantor, for the charges and expenses incurred by the Arranger
and the Agent in connection with the contemplation of, or otherwise in
connection with, the enforcement of, or the preservation of any rights
under, or in carrying out its duties under, this Agreement including
(in each case) the fees and expenses of legal or other professional
advisers. Each Lender shall indemnify the Agent (ratably in accordance
with its Commitment or Contribution) against all liabilities, damages,
costs and claims whatsoever incurred by the Agent in connection with
this Agreement or the performance of its duties under this Agreement or
any action taken or omitted by the Agent under this Agreement, unless
such liabilities, damages, costs or claims arise from the Agent's own
gross negligence or willful misconduct.
16.11 Retirement of Agent
(a) The Agent may retire from its appointment as Agent under this
Agreement having given to the Borrower and each of the Lenders
not less than 30 days' notice of its intention to do so,
provided that no such retirement shall take effect unless
there has been appointed by the Agent as a successor agent:
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(i) a Lender nominated by the Majority Lenders or,
failing such a nomination,
(ii) any reputable and experienced bank or financial
institution with offices in Tokyo and nominated by the
Agent,
which shall have consented to such appointment.
(b) On any such successor being appointed, the retiring Agent
shall be discharged from any further obligation under this
Agreement and its successor and each of the other parties to
this Agreement shall have the same rights and obligations
among themselves as they would have had if such successor had
been a party to this Agreement in place of the retiring Agent.
16.12 Variation of Exhibits
The Agent may require such changes to any of the Exhibits as are
reasonable, in the opinion of the Agent after consultation with the
Lenders, to protect the interests of the Lenders under this Agreement.
17. NOTICES AND OTHER MATTERS
17.1 Notices
Every notice, request, demand or other communication under this
Agreement shall:
(a) be in writing delivered personally or by prepaid letter
(airmail if the addressee is abroad), telex or telefax;
(b) be deemed to have been received, subject as otherwise provided
in this Agreement, in the case of a letter when delivered
personally or two business days after it has been put into the
post (seven business days if delivered through international
airmail), in the case of a telex, at the time of dispatch with
confirmed answerback of the addressee appearing at the
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beginning and end of the transmission and, in the case of a
telefax, when a complete and legible copy is received by the
addressee (provided that if the date of receipt of a letter is
not a business day in the country of the addressee or if the
time of receipt of any telex or telefax is after the close of
business in the country of the addressee it shall be deemed to
have been received at the opening of business on the next such
business day); and
(c) be sent to the addressee at the relevant address telex number
or telefax number stated in Schedule 1 or to such other
address, telex number or telefax number as has been notified
by the addressee to the other parties.
17.2 Notices through the Agent
Every communication under this Agreement to be given by the Borrower to
any other party shall be given to the Agent for onward transmission as
appropriate and to be given to the Borrower shall (except as otherwise
provided in this Agreement) be given by the Agent.
17.3 No implied waivers, remedies cumulative
No failure or delay on the part of the Agent, the Arranger, the Lenders
or any of them to exercise any power, right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise by the Agent, the Arranger, the Lenders or any of them
of any power, right or remedy preclude any other or further exercise
thereof or the exercise of any other power, right or remedy. The
remedies provided in this Agreement are cumulative and are not
exclusive of any remedies provided by law.
17.4 English language
This Agreement is made in and shall be construed in the English
language; all certificates, instruments and other documents to be
delivered under or supplied in connection with this Agreement shall be
in the English language or (if prepared in any other language) shall be
accompanied by an English translation.
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17.5 Confidentiality
Agent and each Lender agree to take and to cause its affiliates to take
normal and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" or
"secret" by the Borrower or the Guarantor and provided to it by the
Borrower, the Guarantor or any subsidiary, or by Agent on the
Borrower's, the Guarantor's or such subsidiary's behalf, under this
Agreement, and neither it nor any of its affiliates shall use any such
information other than in connection with or in enforcement of this
Agreement or in connection with other business now or hereafter
existing or contemplated with the Borrower, the Guarantor or any
subsidiary, except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure
by the Agent or such Lender, or (ii) was or becomes available on a
non-confidential basis from a source other than the Borrower, provided
that such source is not bound by a confidentiality agreement with the
Borrower known to the Agent or such Lender; provided, however, that the
Agent or any Lender may disclose such information (A) at the request or
pursuant to any requirement of any Governmental Authority to which the
Agent or such Lender is subject or in connection with an examination of
the Agent or such Lender by any such authority; (B) pursuant to
subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Governmental Rule or
Governmental Authority; (D) to the extent reasonably required in
connection with any litigation or proceeding to which the Agent, any
Lender or their respective affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy
hereunder; (F) to the Agent or such Lender's independent auditors and
other professional advisors; (G) to any Participant or Substitute,
actual or potential, provided that such party agrees in writing to keep
such information confidential to the same extent required of the
Lenders hereunder; (H) as to the Agent, any Lender or and of their
respective affiliates, as expressly permitted under the terms of any
other document or agreement regarding confidentiality to which the
Borrower, the Guarantor or any subsidiary is party or is deemed party
with the Agent, such Lender or such affiliate; and (I) to its
affiliates.
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18. GOVERNING LAW AND JURISDICTION
18.1 Governing law
This Agreement shall be governed by, and construed in accordance with,
the laws of Japan.
18.2 Jurisdiction
(a) Each party irrevocably agrees that the Tokyo District Court
shall have jurisdiction to hear and determine any suit, action
or proceedings, and to settle any disputes, which may arise
out of or in connection with this Agreement and, for those
purposes, irrevocably submits to the jurisdiction of that
court.
(b) Each party irrevocably waives any objection which it might now
or hereafter have to the court referred to in Clause 18.2(a)
being nominated as the forum to hear and determine any suit,
action or proceedings, and to settle any disputes, which may
arise out of or in connection with this Agreement and agrees
not to claim that court is not a convenient or appropriate
forum.
(c) The submission to the jurisdiction of the court referred to in
Clause 18.2(a) shall not (and shall not be construed so as to)
limit any right of any party to take proceedings against any
other party in any other court of competent jurisdiction nor
shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction if and to the extent permitted by applicable law.
(d) Each party consents generally in respect of any legal action
or proceedings arising out of or in connection with this
Agreement to the giving of any relief or the issue of any
process in connection with such action or proceedings
including the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use)
of any order or judgment which may be made or given in such
action or proceeding.
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IN WITNESS WHEREOF the parties have caused this Agreement to be duly
executed on the date first above written.
Borrower: ▇▇▇ RESEARCH CO., LTD.
By____________________________________
Name:
Title:
Agent and Lender: ABN AMRO BANK N.V., Tokyo Branch
By____________________________________
Name:
Title:
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58
Schedule 1
The Parties and the Commitments
A. The Borrower
(1) Name: ▇▇▇ Research Co., Ltd.
(2) Incorporated in: Japan
(3) Principal Office: ▇-▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇
(4) Fax: ▇▇-▇▇▇-▇▇-▇▇▇▇
(5) Notices to: (a) ▇▇▇ Research Co., Ltd.
same as stated in (3) above
(b) with a copy to
▇▇▇ Research Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ U.S.A.
Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇
(6) Notices for the attention of:
(a) ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Controller, Finance & Accounting Department
(b) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director of Finance
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B. The Lenders and their Commitments
-------------------------------------- --------------------------------------- ---------------------------------
Name Address, telex and Commitment
Telefax number (Y)
-------------------------------------- --------------------------------------- ---------------------------------
(1) ABN AMRO Bank N.V. Lending Office: (Y)1,700,000,000
Tokyo Branch
▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇-▇-▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
Attn: Structured Finance
Tel: ▇▇-▇-▇▇▇▇-▇▇▇▇
Fax: ▇▇-▇-▇▇▇▇-▇▇▇▇/6902
Notices to:
Same as above.
-------------------------------------- --------------------------------------- ---------------------------------
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60
C. The Agent
(1) Name: ABN AMRO BANK N.V., Tokyo Branch
(2) Incorporated in:
(3) Principal Office: ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇-▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
(4) Telex:
(5) Fax: ▇▇-▇-▇▇▇▇-▇▇▇▇/6902
(6) Notices to: Same as above
(7) Notices for the attention of: Structured Finance
(8) Payment Account
Bank: The Sakura Bank, Limited
Branch: Tokyo Main Office (Tokyo eigyo-bu)
Address: ▇-▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇
A/c No: 1008000
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Schedule 2
Documents and evidence required as conditions precedent
A. Borrower
(a) A copy, certified as then true and complete and up-to-date as of the
Drawdown Date by a duly authorized officer of the Borrower, of the
Articles of Incorporation of the Borrower.
(b) A copy, certified as a true copy by a duly authorized officer of the
Borrower, of resolutions of the Board of Directors of the Borrower
effective as of the Drawdown Date evidencing approval of this Agreement
and authorizing its appropriate officers or attorney (as applicable) to
execute and deliver this Agreement and to give all notices and take all
other action required by the Borrower under this Agreement.
(c) Specimen signatures, authenticated by a duly authorized officer of the
Borrower, of the persons authorized in the resolutions of the Board of
Directors referred to in paragraph (b) above together with the executed
Power of Attorney empowering that person to execute and deliver this
Agreement and to give all notices and take all other action required by
the Borrower under this Agreement (if applicable).
B. The Guarantor
(a) The Guaranty, executed by the Guarantor.
(b) Copies of the resolutions of the board of directors of the Guarantor
and other necessary corporate action authorizing the Guarantor to enter
into the Guaranty and the transactions contemplated thereby, certified
as of the Drawdown Date or a recent date prior thereto by the Secretary
or Assistant Secretary of the Guarantor.
(c) A certificate of the Secretary or Assistant Secretary of the Guarantor
certifying as of the Drawdown Date or a recent date prior thereto the
names and true signatures of the officers of the Guarantor authorized
to execute, deliver and
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perform, as applicable, the Guaranty, and all other documents to be
delivered by it thereunder.
(d) The certificate or articles of incorporation and the bylaws of the
Guarantor as in effect on the Drawdown Date or a recent date prior
thereto, certified by the Secretary or Assistant Secretary of the
Guarantor as of such date, together with a good standing certificate
from the Secretary of State of its jurisdiction of incorporation, dated
the Drawdown Date or a recent date prior thereto.
(e) An opinion dated the Drawdown Date or a recent date prior thereto of
California counsel to the Guarantor and addressed to the Agent and the
Lenders, in a form satisfactory to and previously approved by the
Agent.
(f) A certificate signed by a duly authorized officer of the Guarantor,
dated the Drawdown Date or a recent date prior thereto, stating that:
i. The representations and warranties contained in Paragraph 3 of
the Guaranty are true and correct on and as of such date, as
though made on and as of such date;
ii. no Default or Event of Default has occurred and is continuing
as of the date hereof or will occur on the date hereof as a
result of the execution of the Guaranty;
iii. no event or circumstance has occurred since June 30, 1998
which has had or is reasonably likely to have a Material
Adverse Effect (as defined in the Guaranty); and
iv. each of the documents previously delivered pursuant to this
Schedule 2, Part B remains true, complete and accurate.
(g) Evidence that as of the Drawdown Date all approvals or consent of any
other person (including, if any, any necessary shareholder consents),
required in connection with the execution, delivery and performance of
the Guaranty and any other document to be executed and delivered by the
Guarantor shall have been obtained.
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C. General
Such other documents, confirmations, information or opinions as the
Agent may have previously reasonably requested in writing.
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Schedule 3
Additional documents and evidence required after the Drawdown Date
(a) An opinion of legal advisers to the Borrower on Japanese law, dated the
Drawdown Date, in a form satisfactory to and previously approved by the
Agent.
(b) An opinion of Nishimura & Partners, special legal advisers in Japan to
the Agent and the Lenders, dated the Drawdown Date, in a form
satisfactory to and previously approved by the Agent.
(c) A certified copy of the commercial registry and a certificate of seal
impression (each as of the date as close as possible to the Drawdown
Date) of a representative director of the Borrower executing this
Agreement or the Power of Attorney referred to in item (c) of Part A.
of Schedule 2 hereto (as the case may be).
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65
Exhibit 1
Form of Guaranty
See Attachment
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Exhibit 2
Form of Substitution Certificate
To: [Name and address of Agent]
Date: ___________________
Attention:
Substitution Certificate
This Substitution Certificate relates to a Loan Agreement (the
"Agreement") dated September 30, 1998 between ▇▇▇ Research Co., Ltd. as Borrower
(1), the banks and financial institutions whose respective names and addresses
are set out in schedule 1 thereto as Lenders (2) and ABN AMRO Bank N.V., Tokyo
Branch as Agent (3) and the Guaranty as defined in the Agreement. Terms defined
in the Agreement shall have the same meaning in this Substitution Certificate.
1 [Existing Lender] (the "Existing Lender") (a) confirms the accuracy of
the summary of its participation in the Loan set out in the schedule
hereto; and (b) requests [Substitute Lender] (the "Substitute") to
accept by way of transfer the portion of that participation specified
in the schedule hereto by counter-signing and delivering this
Substitution Certificate to the Agent at its address for the service of
notices specified in the Agreement.
2 The Substitute hereby requests the Agent (on behalf of itself, the
Borrower and the Lenders) to accept this Substitution Certificate as
being delivered to the Agent pursuant to and for the purposes of Clause
15.4 of the Agreement and Subparagraph 8(e) of the Guaranty, so as to
take effect in accordance with the respective terms thereof on [date of
transfer] (the "Effective Date") or on such later date as may be
determined in accordance with the terms thereof.
▇-▇-▇
▇▇
▇ The Agent (for itself, the Borrower and the other Lenders and the
Guarantor) confirms the transfer effected by this Substitution
Certificate pursuant to and for the purposes of Clause 15.4 of the
Agreement and Subparagraph 8(e) of the Guaranty so as to take effect in
accordance with the terms thereof.
4 The Substitute confirms:
(a) that it has received a copy of the Agreement and the Guaranty
and all other documentation and information required by it in
connection with the transactions contemplated by this
Substitution Certificate;
(b) that it has made and will continue to make its own assessment
of the validity, enforceability and sufficiency of the
Agreement the Guaranty and this Substitution Certificate and
has not relied and will not rely on the Existing Lender, the
Arranger or the Agent or any statements made by any of them in
that respect;
(c) that it has made and will continue to make its own credit
assessment of the Borrower and has not relied and will not
rely on the Existing Lender, the Arranger or the Agent or any
statements made by either of them in that respect; and
(d) accordingly, none of the Existing Lender, the Arranger nor the
Agent shall have any liability or responsibility to the
Substitute in respect of any of the foregoing matters.
5 Execution of this Substitution Certificate by the Substitute
constitutes its representation to the Existing Lender and all other
parties to the Agreement that it has power to become party to the
Agreement as a Lender on the terms herein and therein set out and has
taken all necessary steps to authorize execution and delivery of this
Substitution Certificate.
6 The Existing Lender makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Agreement the Guaranty or any
document relating thereto and assumes no responsibility for the
financial condition of the Borrower or any
E-2-3
68
other party to the Agreement or the Guaranty or for the performance and
observance by the Borrower or any other such party of any of its
obligations under the Agreement or any document relating thereto and
any and all such conditions and warranties, whether express or implied
by law or otherwise, are hereby excluded.
7 The Substitute hereby undertakes to the Existing Lender, the Borrower
and Agent that it will perform in accordance with their terms all those
obligations which by the respective terms of the Agreement will be
assumed by it after acceptance of this Substitution Certificate by the
Agent.
8 This Substitution Certificate and the rights and obligations of the
parties hereunder shall be governed by and construed in accordance with
the laws of Japan.
Note: This Substitution Certificate is not a security, bond, note, debenture,
investment or similar instrument.
Executed by the authorized signatories of the parties on the date appearing
below.
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The Schedule
----------------------------- ---------------------------
Amount of Contribution Portion transferred
(Y) (Y)
----------------------------- ---------------------------
----------------------------- ---------------------------
Administrative Details of Substitute
Lending office:
Account for payments:
Telephone:
Telefax:
Telex:
Attention:
[Existing Lender] [Substitute]
By: By:
Title: Title:
Date: Date:
The Agent
(for itself and on behalf of the Borrower and the Lenders and the Guarantor./)
By:
Title:
Date:
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Exhibit 3
Form of Margin Certificate
To: [Name and address of Agent]
Attention: [Date]
Loan Agreement dated September 30, 1998
We refer to the above Agreement (terms used in this letter having the
meanings given to them in that Agreement) and notify you that the Senior
Indebtedness Ratio of the Guarantor as set forth in the quarterly financial
statements and information of the Guarantor for the fiscal quarter ending on
[ ] is [ ].
for and on behalf of
▇▇▇ Research Corporation
By_________________________________
Name:
Title:
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