|
EXHIBIT
10.20
(Translation)
JPY6,000,000,000
REVOLVING LINE AGREEMENT
(A)
Spansion Japan
Limited
as Borrower
MIZUHO CORPORATE BANK,
LTD.
as Arranger and
Agent
MIZUHO CORPORATE BANK,
LTD.
SHINKIN CENTRAL
BANK
THE BANK OF YOKOHAMA,
LTD.
THE TOHO BANK,
LTD.
THE NORINCHUKIN
BANK
as Lender
March 25, 2005
| *** |
Confidential treatment has been requested as to certain
portions of this agreement. Such omitted confidential information
has been designated by asterisks and has been filed separately with
the Securities and Exchange Commission pursuant to Rule 25b-2 under
the Securities Exchange Act of 1934, as amended, and the
Commission’s rules and regulations promulgated under the
Freedom of Information Act, pursuant to a request for confidential
treatment.*** |
(Translation)
TABLE OF CONTENTS
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Page
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| 1. |
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Definitions |
|
1 |
| 2. |
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Rights
and Obligations of Lenders A |
|
10 |
| 3. |
|
Use of
Fund |
|
11 |
| 4. |
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Conditions Precedent for Effectiveness of this
Agreement |
|
11 |
| 5. |
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Conditions Precedent for Loan Obligations A |
|
11 |
| 6. |
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Application for Drawdown |
|
13 |
| 7. |
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Making of
Loans A |
|
14 |
| 8. |
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Refusal
to Make Loans A |
|
16 |
| 9. |
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Repayment
of Principal |
|
16 |
| 10. |
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Interest |
|
16 |
| 11. |
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Commitment Fee A |
|
17 |
| 12. |
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Exemption
of Lender A |
|
18 |
| 13. |
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Increased
Costs |
|
19 |
| 14. |
|
Prepayment |
|
20 |
| 15. |
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Default
Interest |
|
22 |
| 16. |
|
Agency
Fee |
|
22 |
| 17. |
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Expenses;
Taxes and Public Charges |
|
22 |
| 18. |
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Performance of Borrower's Obligations |
|
22 |
| 19. |
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Distribution to Lenders A |
|
24 |
| 20. |
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Borrower's Representations and Warranties |
|
26 |
| 21. |
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Borrower's Covenants |
|
28 |
| 22. |
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Restrictions on Collateral |
|
31 |
| 23. |
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Financial
Restrictions |
|
32 |
| 24. |
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Acceleration |
|
33 |
| 25. |
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Set-Off;
Exercise of Floating Security |
|
36 |
| 26. |
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Arrangements Among Lenders A |
|
37 |
| 27. |
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Rights
and Duties of the Agent |
|
39 |
| 28. |
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Resignation and Dismissal of the Agent |
|
40 |
| 29. |
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Decision-Making of the Majority Lenders A |
|
41 |
| 30. |
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Amendment
to this Agreement |
|
42 |
| 31. |
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Assignment of this Agreement |
|
42 |
| 32. |
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Assignment of Loan Receivables A |
|
44 |
| 33. |
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Collection from Third Party |
|
44 |
| 34. |
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Termination of this Agreement |
|
45 |
| 35. |
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Renewal
of Agreement |
|
46 |
| 36. |
|
General
Provisions |
|
46 |
i
(Translation)
REVOLVING LINE AGREEMENT
(A)
Spansion Japan Limited (the
“Borrower”) and the financial institutions set forth as
Lender A under Section 3 of Schedule 1 attached to this Agreement
(respectively referred to as a “Lender A,” and
collectively referred to as “All Lenders A”) enter into
the following agreement (this “Agreement”) as of March
25, 2005 (the “Execution Date”), with MIZUHO CORPORATE
BANK, LTD. (the “Agent”) acting as the
agent.
In this Agreement, the
following terms shall have the meanings set forth below, unless it
is apparent that such terms mean otherwise in the context
hereof.
| 1.1 |
“ Accounts Receivables Trust Agreement ”
means the Accounts Receivables Trust Agreement (as amended or
renewed) attached hereto as Schedule 3, executed on March 25, 2004
by and between the Borrower and MIZUHO TRUST & BANKING CO.,
LTD. |
| 1.2 |
“ Accrued Interest ” has the meaning given
in Clause 14.2. |
| 1.3 |
“ Adjusted Tangible Assets ” means all of
the Borrower’s assets, determined on a consolidated basis
(provided that if the Borrower does not prepare its financial
statements on a consolidated basis, the stand-alone basis financial
statements shall apply) in accordance with generally accepted
accounting standards in Japan, other than (a) deferred assets,
other than prepaid insurance and prepaid taxes, (b) patents,
copyright, trademarks, trade names, franchises, goodwill, and other
similar intangibles and (c) unamortized debt discounts and
expenses. |
| 1.4 |
“ Adjusted Tangible Net Worth ” means, at
any time, the amount calculated as (a) the book value (after
deducting the related depreciation, obsolescence, amortization,
valuation, and other proper reserves as determined in accordance
with generally accepted accounting standards in Japan) of the
Adjusted Tangible Assets shown on the Borrower’s consolidated
balance sheet (or the stand-alone basis balance sheet if the
Borrower does not prepare its balance sheet on a consolidated
basis) as of such time, prepared in accordance with that generally
accepted accounting standards in Japan, less (b) the amount of the
Borrower’s liabilities (including all contingencies and other
potential liabilities required to be shown on such balance sheet)
shown on such consolidated balance sheet (or the stand-alone basis
balance sheet if the Borrower does not prepare its balance sheet on
a consolidated basis). |
| 1.5 |
“ Affiliate ” means any party that, directly
or indirectly, is in control of, is controlled by, or is under
common control with, another party, or who owns, directly or
indirectly, ten percent (10%) or more of the outstanding equity
interest of another party. A party shall be deemed to be in control
of another party if the controlling party possesses, directly or
indirectly, the power to direct the management and policies of the
other party for any reason, whether through the ownership of voting
securities, by contract, or otherwise. |
1
(Translation)
| 1.6 |
“ Agency Fee ” means the fees that the
Borrower shall pay to the Agent in consideration of the Agent
Services, as separately agreed upon between the Borrower and the
Agent. |
| 1.7 |
“ Agent Services ” means collectively, the
Agent Services A and Agent Services B. |
| 1.8 |
“ Agent’ s Account ” means the
checking deposit account (Account No. ****, Account Holder:
SPANSION JAPAN LIMITED Agent Account C) held by the Agent at the
Head Office of MIZUHO CORPORATE BANK, LTD. |
| 1.9 |
“ Agent Services A ” means the services set
forth in the provisions of this Agreement that the Agent is
entrusted by All Lenders A to perform for the benefit of All
Lenders A. |
| 1.10 |
“ Agent Services B ” means the services set
forth in the provisions of the Loan Agreement B that the Agent is
entrusted by All Lenders B to perform for the benefit of All
Lenders B. |
| 1.11 |
“ Aizu Facility ” means the real estate and
the incidental facilities currently held, or to be acquired
hereafter, by the Borrower at its Aizu manufacturing facilities and
incidental facilities located in Aizu-Wakamatsu-shi, Fukushima,
Japan. |
| 1.12 |
“ Applicable Interest Rate A ” means the
interest rate equal to the Base Rate plus the Spread A. |
| 1.13 |
“ Assignable Loan Receivables A ” has
the meaning given in Clause 31.2(ii). |
| 1.14 |
“ Assignee ” means the party that accepts
assignment of the Loan Receivables A in accordance with Clause
32.1. |
| 1.15 |
“ Assigning Lender ” has the meaning given
in Clause 31.2. |
| 1.16 |
“ Assignor ” means the party that assigns
the Loan Receivables A in accordance with Clause 32.1. |
| 1.17 |
“ Base Rate ” means the interest rate for
the relevant Loan Term according to the Japanese Yen TIBOR (page
17,097 of the Telerate) published by the Japanese Bankers
Association at 11 a.m. or at the nearest possible time after 11
a.m. on the second (2nd) Business Day prior to the Drawdown Date.
Provided, however, that in cases where such interest rate is not
published for some reason, the Base Rate shall be the interest rate
(indicated as an annual rate) that is reasonably decided upon by
the Agent as the offered rate applicable for a drawdown in yen for
the relevant Loan Term in the Tokyo Interbank Market as of 11 a.m.
on the second (2nd) Business Day prior to the commencement date of
the Loan Term or the nearest time prior thereto. |
| 1.18 |
“ Borrower’ s Settlement Account
” means the ordinary deposit account (Account No. ****,
Account Holder: Spansion Japan Limited) held by the Borrower at the
Uchisaiwaicho Corporate Banking Division of MIZUHO CORPORATE BANK,
LTD. |
| 1.19 |
“ Break Funding Cost ” means, in cases where
the principal is repaid or set off on a |
| * |
Confidential treatment has been requested pursuant to the
Confidential Treatment Request dated April 13, 2005. |
2
(Translation)
day other than the Due Date
of the Individual Loan A, and where the Reinvestment Rate in such
case falls below the Applicable Interest Rate A, the amount
calculated as the principal amount with respect to which such
repayment or set-off was made, multiplied by the difference between
the Reinvestment Rate and the Applicable Interest Rate A, and
calculated on a per diem basis in accordance with the actual number
of days of the Remaining Period. “ Remaining Period
” in this item means the period commencing on the day
(inclusive) the repayment or set-off was made and ending on the
Repayment Date (exclusive), and the “ Reinvestment
Rate ” in this item means the interest rate reasonably
determined by the Lenders A as the interest rate to be applied on
the assumption that the prepaid or off-set principal amount will be
reinvested in the Tokyo Interbank Market during the Remaining
Period. The calculation method for such Break Funding Cost shall be
on a per diem basis, assuming that there are 365 days per year,
wherein divisions shall be done at the end of the calculation, and
fractions less than one yen shall be rounded down.
| 1.20 |
“ Business Day ” means any day other than
those that are bank holidays in Japan. |
| 1.21 |
“ Collection Calculation Date ” has the
meaning given in Clause 1 of the Accounts Receivables Trust
Agreement. |
| 1.22 |
“ Commitment Amount A ” means the total of
the amounts set forth as the commitment amounts in Schedule 1, and
the Commitment Amount A with respect to each Lender A means,
respectively, the Commitment Amount A in relation to the amount set
forth for each Lender A in Schedule 1; provided, however, that the
Commitment Amount A with respect to each Lender A is subject to
change in accordance with Clause 31 in the case of partial
assignment of the status of the parties hereunder pursuant to
Clause 31. |
| 1.23 |
“ Commitment Fee A ” means the fees that the
Borrower shall pay to the Lender A pursuant to the provisions of
Clause 11. |
| 1.24 |
“ Commitment Fee A Calculation Period ”
means collectively, each of the periods commencing on the
commencement date (inclusive) of the Commitment Fee A Calculation
Period below and ending on the final date (inclusive) of the
Commitment Fee A Calculation Period below. |
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Commencement Date of
Commitment Fee A
Calculation Period
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Final Date of
Commitment Fee A
Calculation Period
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First
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March 25, 2005 |
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June 24, 2005 |
|
Second
|
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June 25,
2005 |
|
September 24, 2005 |
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Third
|
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September 25, 2005 |
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December
24, 2005 |
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Fourth
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December
25, 2005 |
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March 24,
2006 |
| 1.25 |
“ Commitment Fee A Rate ” means 0.175% per
annum. |
| 1.26 |
“ Commitment Ratio A ” means the percentage
of the Commitment Amount A of each Lender A to the Total Commitment
Amount A. |
| 1.27 |
“ Compulsory Execution ” has the meaning
given in Clause 26.4. |
3
(Translation)
| 1.28 |
“ Costs Increased Lender A ” means a Lender
A that has incurred Increased Costs. |
| 1.29 |
“ Counter-Performed Trust Receivables ” has
the meaning given in Clause 1 of the Accounts Receivables Trust
Agreement. |
| 1.30 |
“ Counter-Performed Trust Receivables Amount
(Goods’ Value Equivalent) ” has the meaning
given in Clause 1 of the Accounts Receivables Trust
Agreement. |
| 1.31 |
“ Creditors’ Agreement ” means
the Creditors’ Agreement (as amended or renewed) attached
hereto as Schedule 4, executed on March 25, 2005 by and among the
Lender A, the Lender B, the Agent and the Borrower. |
| 1.32 |
“ Damages ” has the meaning given in Clause
19.2(a)(i). |
| 1.33 |
“ Defaulted Obligations ” has the meaning
given in Clause 15.1. |
| 1.34 |
“ Defaulting Lender A ” has the meaning
given in Clause 11.2. |
| 1.35 |
“ Desired Drawdown Amount ” has the meaning
given in Clause 6.1. |
| 1.36 |
“ Desired Drawdown Date A ” has the meaning
given in Clause 6.1. |
| 1.37 |
“ Desired Prepayment Date ” has the meaning
given in Clause 14.2. |
| 1.38 |
“ Discovery Date ” has the meanings given in
Clause 7.4 or Clause 14.4, respectively. |
| 1.39 |
“ Distribution ” has the meaning given in
Clause 21.3(v). |
| 1.40 |
“ Drawdown Application ” has the meaning
given in Clause 6.1. |
| 1.41 |
“ Drawdown Application Period ” means the
period commencing on the Execution Date (inclusive) and ending on
the Drawdown Application Period Final Date (inclusive). |
| 1.42 |
“ Drawdown Application Period Final Date ”
means March 18, 2006. |
| 1.43 |
“ Drawdown Date ” means the date of the
drawdown of a Loan A. |
| 1.44 |
“ Drawdown Period ” means the period
commencing on the Execution Date (inclusive) and ending on the
Drawdown Period Termination Date (inclusive). |
| 1.45 |
“ Drawdown Period Termination Date ” means
March 24, 2006. |
| 1.46 |
“ Due Date ” means, with respect to the
principal and interest in relation to the Loans A, the Repayment
Date; and with respect to other amounts, the date set forth as the
date on which payments shall be made in accordance with this
Agreement. |
| 1.47 |
“ Due Time ” means, if any Due Dates are
provided for herein, 11 a.m. on such Due Date. |
4
(Translation)
| 1.48 |
“ Enhanced Covenant Period ” means any
period during which the Borrower fails to maintain a minimum cash
balance of 1 billion yen. |
| 1.49 |
“ Exemption Event ” means (i) the
occurrence of a natural disaster or war, (ii) an interruption in or
damage to electrical, communications or any settlement systems,
(iii) any event that occurs within the Tokyo Interbank Market that
disables loans in yen, and (iv) any other event not attributable to
the Lenders A that results in the Majority Lenders A (if it is
difficult for the Majority Lenders A to make a decision, the Agent)
determining that it is impossible to make the Loan A. |
| 1.50 |
“ Exemption Period ” means the period during
which any Exemption Event has occurred and continues. |
| 1.51 |
“ Exercise of Floating Security ” has the
meaning given in Clause 25.3. |
| 1.52 |
“ Extraordinary Collection Calculation Date
” has the meaning given in Clause 1 of the Accounts
Receivables Trust Agreement. |
| 1.53 |
“ Fixed Trust Property Value ” has the
meaning given in Clause 1 of the Accounts Receivables Trust
Agreement. |
| 1.54 |
“ Fixed Trust Receivables ” has the meaning
given in Clause 1 of the Accounts Receivables Trust
Agreement. |
| 1.55 |
“ Fixed Trust Receivables Amount (Goods’
Value Equivalent) ” has the meaning given in Clause 1
of the Accounts Receivables Trust Agreement. |
| 1.56 |
“ Floating Pledge Agreement ” means the
Floating Pledge Agreement (as amended or renewed) attached hereto
as Schedule 5, executed on March 25, 2005 by and among the Lender
A, the Lender B and the Borrower. |
| 1.57 |
“ FMH ” means Fujitsu Microelectronics
Holding, Inc. |
| 1.58 |
“ Increased Costs ” means the increased
portion (the amount reasonably calculated by such Lender A) of
lending expenses, in cases where the Lender A’s lending
expenses under this Agreement are substantially increased
(excluding any increase caused by a change in tax rates on taxable
incomes of such Lender A) due to, among other things, (i) any
enactment or amendment of Laws and Ordinances, or any change in the
interpretation or application thereof, or (ii) any establishment or
increase in capital reserves. |
| 1.59 |
“ Individual Loan A ” means a loan made by a
Lender A respectively pursuant to the same Drawdown
Application. |
| 1.60 |
“ Individual Loan A Money ” means the money
lent (or to be lent) by a Lender A to the Borrower as an Individual
Loan A, and the “ Individual Loan A Amount ”
means the amount of the Individual Loan Money A (the amount
calculated by multiplying the aggregate amount of Loan A in
relation to the relevant Drawdown Application by the Commitment
Ratio A of that Lender A). |
5
(Translation)
| 1.61 |
“ Intended Distribution Amount A ” has the
meaning given in Clause 26.1(i). |
| 1.62 |
“ Interim Interest Payment Date ” has the
meaning given in Clause 10.1. |
| 1.63 |
“ Inventory ” means all kinds, nature and
description of inventory, goods and merchandise, returned goods,
raw materials, and other materials and supplies, regardless of
location, to be furnished under any agreement of service or held
for assignment or lease, that are currently owned or acquired
hereafter by the Borrower (limited to those to be consumed in the
Borrower’s business or used in connection with the packing,
shipping, advertising, selling or processing of such goods,
merchandise and such other articles), and all documents of title or
other documents representing title thereto. |
| 1.64 |
“ Investment ” means any acquisition of
property in exchange for cash or other assets, whether in the form
of an acquisition of stock, liabilities, or other obligations, or
the purchase or acquisition of any other property, or a Loan A,
capital contribution, subscription or otherwise. |
| 1.65 |
“ Item Not Fully Covered ” has the meaning
given in Clause 18.4. |
| 1.66 |
“ Laws and Ordinances ” means any treaties,
laws, cabinet orders, ministerial ordinances, rules, announcements,
judgments, decisions, arbitral awards, directives, and policies of
relevant authorities that apply to this Agreement, the transactions
pursuant hereto or the parties hereto. |
| 1.67 |
“ Lease ” means the lease of assets
reflected as a lease on the Borrower’s consolidated balance
sheet in accordance with generally accepted accounting standards in
Japan. |
| 1.68 |
“ Lender ” means collectively, the Lender A
and the Lender B. |
| 1.69 |
“ Lender B ” means MIZUHO CORPORATE BANK,
LTD., Shinkin Central Bank, The Bank of Yokohama, Ltd. and The
Norinchukin Bank (including its successors). |
| 1.70 |
“ Lending Obligation A ” means a Lender
A’s obligation to make Individual Loans A to the Borrower
upon the condition that the requirements set forth under each item
of Clause 5 are satisfied. |
| 1.71 |
“ Loan Agreement B ” means the Revolving
Line Agreement (B) (as amended or renewed) executed on March 25,
2005 by and between the Lender B and the Borrower, with MIZUHO
CORPORATE BANK, LTD. acting as the agent. |
| 1.72 |
“ Loan Receivables A ” means loan claims in
relation to each Individual Loan A. |
| 1.73 |
“ Loan Term ” means, with respect to each
Individual Loan A, the period commencing on the Drawdown Date
(inclusive) and ending on the Repayment Date (exclusive) in
relation to such Individual Loan A. |
| 1.74 |
“ Loan(s) A ” means the aggregate of the
Individual Loans A made pursuant to this Agreement. |
6
(Translation)
| 1.75 |
“ Majority Lenders A ” means more than one
Lender A whose Commitment Ratio(s) A amount to 51% or more in total
as of the Decision-Making Time (provided, however, that, for the
period after All Lenders A’s Lending Obligations A are
extinguished, and where the repayment of all obligations pursuant
to this Agreement in relation to the Loan A have not been
completed, the percentage shall be that of the total principal
amount of the Outstanding Individual Loan A Money per each Lender A
to the Total Outstanding Balance A as of the Decision-Making Time).
“ Decision-Making Time ” means, in cases where
the Lender A determines that any event requiring instructions by
the Majority Lenders A has occurred, the point in time when the
Agent receives notice under Clause 29.1(i), and in cases where the
Agent determines that the decision of the Majority Lenders A is
necessary, the point in time when the Agent gives notice under
Clause 29.2. |
| 1.76 |
“ Non-Drawdown Lender A ” has the meaning
given in Clause 8.1. |
| 1.77 |
“ Outstanding Individual Loan A Money ”
means the principal, the interest, default interest, Break Funding
Costs and any other payment obligation in relation to an Individual
Loan A that the Borrower owes pursuant to this Agreement with
respect to the Individual Loan A, and the “ Outstanding
Individual Loan A Amount ” means the amount of such
Outstanding Individual Loan A Money. |
| 1.78 |
“ Pre-assignment Commitment Amount A ” has
the meaning given in Clause 31.2(ii). |
| 1.79 |
“ Pre-assignment Loan Receivables A ” has
the meaning given in Clause 31.2(ii). |
| 1.80 |
“ Prepayment ” has the meaning given in
Clause 14.1. |
| 1.81 |
“ Purchase and Sale Agreement ” means the
“PURCHASE AND SALE AGREEMENT” dated February 23,
2004(as amended or renewed) between the Borrower and FUJITSU
LIMITED. |
| 1.82 |
“ Purchase and Sale Related Agreements ”
means the Purchase and Sale Agreement and each of the individual
agreements pursuant thereto. |
| 1.83 |
“ Reduced Amount ” has the meaning given in
Clause 31.2(ii). |
| 1.84 |
“ Reduced Drawdown ” has the meaning given
in Clause 7.4. |
| 1.85 |
“ Reduced Drawdown Amount ” has the meaning
given in Clause 7.4. |
| 1.86 |
“ Reduced Drawdown Break Funding Cost ”
means, in cases where a Reduced Drawdown is made and the
Reinvestment Rate in such case falls below the Applicable Interest
Rate A, the amount calculated as the difference between the Desired
Drawdown Amount and the Reduced Drawdown Amount, multiplied by the
difference between the Reinvestment Rate and the Applicable
Interest Rate A, and calculated on a per diem basis in accordance
with the actual number of days of the Remaining Period. “
Remaining Period ” in this item means the period
commencing on the Drawdown Date (inclusive) and ending on the
Repayment Date (exclusive), and the |
7
(Translation)
“ Reinvestment
Rate ” in this item means the interest rate reasonably
determined by the Lenders A as the interest rate to be applied on
the assumption that the difference between the Desired Drawdown
Amount and the Reduced Drawdown Amount will be reinvested in the
Tokyo Interbank Market during the Remaining Period. The calculation
method for such Reduced Drawdown Break Funding Cost shall be on a
per diem basis, assuming that there are 365 days per year, wherein
divisions shall be done at the end of the calculation, and
fractions less than one yen shall be rounded down.
| 1.87 |
“ Reduced Ratio ” has the meaning given in
Clause 31.2(ii). |
| 1.88 |
“ Refinanced Loan A ” means a Loan A that
has already been made and the Due Date of which shall be the
Desired Drawdown Date A of a Refinancing Loan A. |
| 1.89 |
“ Refinancing Loan A ” means a Loan A with
the Desired Drawdown Date A being the Due Date of a Loan A already
made. |
| 1.90 |
“ Regular Collection Calculation Date ” has
the meaning given in Clause 1 of the Accounts Receivables Trust
Agreement. |
| 1.91 |
“ Relevant Agreements ” means this
Agreement, the Loan Agreement B, the Accounts Receivables Trust
Agreement, the Floating Pledge Agreement, the Creditors’
Agreement and the documents related thereto. |
| 1.92 |
“ Relevant Lender A ” has the meaning given
in Clause 14.1. |
| 1.93 |
“ Remaining Individual Loan A ” has the
meaning given in Clause 26.1(i). |
| 1.94 |
“ Remaining Lender A ” has the meaning given
in Clause 26.1(i). |
| 1.95 |
“ Repayment Date ” has the meaning given in
Clause 6.1(iii). |
| 1.96 |
“ Reports ” means (i) the audited annual
report ( eigyou houkokusyo ) prepared by the Borrower on a
stand-alone basis (including the balance sheet, profit and loss
statement, statement of cash flow, and other documents incidental
thereto; and if any consolidated Subsidiary or Affiliate of the
Borrower has been established, including the consolidated annual
report ( eigyou houkokusyo )) within ninety (90) days from
the end of the fiscal year, (ii) the unaudited annual report (
eigyou houkokusyo ) prepared by the Borrower on a
stand-alone basis (including the balance sheet, profit and loss
statement, statement of cash flow, and other documents incidental
thereto; and if any consolidated Subsidiary or Affiliate of the
Borrower has been established, including the consolidated annual
report ( eigyou houkokusyo )) within forty-five (45) days
from the end of a fiscal quarter, (iii) the audited financial
statements prepared by Spansion LLC on a consolidated basis
(including the balance sheet, profit and loss statement, statement
of cash flow, and other documents incidental thereto) within ninety
(90) days from the end of the fiscal year, and (iv) the unaudited
financial statements prepared by Spansion LLC on a consolidated
basis (including the balance sheet, profit and loss statement,
statement of cash flow, and other documents incidental thereto)
within forty-five (45) days from the end of a fiscal
quarter. |
| 1.97 |
“ Set-off Initiating Lender A ” has the
meaning given in Clause 26.1. |
8
(Translation)
| 1.98 |
“ Set-off Receiving Lender A ” has the
meaning given in Clause 26.2. |
| 1.99 |
“ Settlor’ s Extraordinary Report
” has the meaning given in Clause 1 of the Accounts
Receivables Trust Agreement. |
| 1.100 |
“ Settlor’ s Regular Report ”
has the meaning given in Clause 1 of the Accounts Receivables Trust
Agreement. |
| 1.101 |
“ Settlor’ s Regular Report Deadline
” has the meaning given in Clause 1 of the Accounts
Receivables Trust Agreement. |
| 1.102 |
“ Spread A ” means 0.550% per
annum. |
| 1.103 |
“ Status of the Establishment of the Collateral
” described in Schedule 2 means the specifics of the assets
offered as security under the Security Assignment Agreement (
Joto Tanpo Settei Keiyaku ) executed on June 30, 2003 by and
between the Borrower and FUJITSU LIMITED, and the specifics of the
assets offered as a first-priority mortgage under the Mortgage
Agreement and the Letter Concerning the Establishment of Security
Interests ( Tanpo Sashiire Sho ) executed on June 30, 2003
by and between the Borrower and FUJITSU LIMITED. |
| 1.104 |
“ Subsidiary ” means any corporation,
association, partnership, joint venture or other business entity of
which more than fifty percent (50%) of the voting stock or other
equity interest (in the case of parties other than corporations) is
owned or controlled directly or indirectly by a party, one or more
of its Subsidiaries, or a combination thereof. |
| 1.105 |
“ Successive Lender ” has the meaning given
in Clause 31.2. |
| 1.106 |
“ Taxes and Public Charges ” means all
public taxes or public charges including income taxes, corporate
taxes and other taxes, which are applicable in Japan. |
| 1.107 |
“ Temporary Advancement ” means, with
respect to the Borrower’s repayment on a Due Date, a payment
made by the Agent to the Lenders A before the completion of the
Borrower’s repayment of an amount equivalent to the amount to
be distributed to the Lenders A in accordance with Clause 19; or
with respect to the Individual Loans A made by the Lenders A on the
Drawdown Date, a payment made by the Agent to the Borrower before
the Lender A’s making the Individual Loan A of an amount
equivalent to the amount of the Individual Loan A to be made to the
Borrower. |
| 1.108 |
“ Temporary Advancement Costs ” means, in
cases where the Agent makes a Temporary Advancement, the amount
calculated as the amount of Temporary Advancement, multiplied by
(i) the Funding Rate, and (ii) the actual number of days of the
Temporary Advancement Period. “ Temporary Advancement
Period ” means the period commencing on the date
(exclusive) that a Temporary Advancement is made and ending on the
date (inclusive) that such Temporary Advancement is cleared, and
the “ Funding Rate ” means the interest
rate that the Agent reasonably determines as the interest rate to
fund the amount of Temporary Advancement throughout the |
9
(Translation)
Temporary Advancement Period.
The calculation method for such Temporary Advancement Costs shall
be on a per diem basis in accordance with the actual number of days
of the Temporary Advancement Period, assuming that there are 365
days per year, wherein divisions shall be done at the end of the
calculation, and fractions less than one yen shall be rounded
down.
| 1.109 |
“ Total Commitment Amount A ” means the
total of the Commitment Amounts A of All Lenders A. |
| 1.110 |
“ Total Outstanding Balance A ” means the
total principal amount of the Outstanding Individual Loan A Money
owed to All Lenders A. |
| 1.111 |
“ Trust Property Maintenance Standards ” has
the meaning given in Clause 1 of the Accounts Receivables Trust
Agreement. |
| 1.112 |
“ Trust Receivables ” has the meaning given
in Clause 1 of the Accounts Receivables Trust
Agreement. |
| 1.113 |
“ Trustee ” means MIZUHO TRUST & BANKING
CO., LTD. (including its successor trustee), as the trustee
pursuant to the Accounts Receivables Trust Agreement. |
| 1.114 |
“ Trustee’s Extraordinary Report ” has
the meaning given in Clause 1 of the Accounts Receivables Trust
Agreement. |
| 1.115 |
“ Trustee’s Regular Report ” has the
meaning given in Clause 1 of the Accounts Receivables Trust
Agreement. |
| 1.116 |
“ Unused Commitment Amount A ” means the
amount calculated as the Commitment Amount A less the total
principal amount of the Outstanding Individual Loan A Money, and
the Unused Commitment Amount A in relation to each Lender A shall
mean the amount calculated as the Commitment Amount A in relation
to such Lender A less the total principal amount of the Outstanding
Individual Loan A Money in relation to such Lender A. |
| 2. |
RIGHTS AND OBLIGATIONS OF LENDERS A |
| 2.1 |
The Lenders A shall owe the Lending Obligations A. |
| 2.2 |
Unless otherwise provided for in this Agreement, the
obligations of each Lender A under this Agreement shall be
independent, and a Lender A shall not be released from its
obligations under this Agreement due to any other Lenders A failing
to perform their obligations. A Lender A shall not be responsible
for any failure of other Lenders A to perform their obligations
under this Agreement. |
| 2.3 |
If a Lender A, in breach of its Lending Obligation A, fails to
make an Individual Loan A on the Desired Drawdown Date A, such
Lender A shall, upon request by the Borrower, immediately
compensate the Borrower for all damages, losses and expenses
incurred by the Borrower as a result of such breach; provided,
however, that the maximum amount of such compensation to the
Borrower for the damages, losses and |
10
(Translation)
expenses incurred shall be
the difference between (i) the interest and other expenses that is
required or would be required to be paid if the Borrower separately
made a drawdown as a result of such Lender A’s failure to
make the Individual Loan A on the Desired Drawdown Date A, and (ii)
the interest and other expenses that would have been required to be
paid if the Individual Loan A were made on the Desired Drawdown
Date A.
| 2.4 |
Unless otherwise provided for in this Agreement, each Lender A
may exercise its rights under this Agreement separately and
independently. |
The Borrower shall use the
money raised by the Loan A as working capital.
| 4. |
CONDITIONS PRECEDENT FOR EFFECTIVENESS OF THIS
AGREEMENT |
This Agreement shall take
effect upon the condition that the Borrower submit all of the
following documents to the Agent and All Lenders A, and the Agent
and All Lenders A are satisfied with the details
thereof:
| |
(i) |
the certificate of seal registration of the representative of
the Borrower who signs and affixes his seal to this Agreement dated
on or after December 25, 2004; |
| |
(ii) |
a certified copy of the certificate of corporate registration
(certificate of complete company resume or the certificate of
complete present company resume) of the Borrower dated on or after
December 25, 2004; |
| |
(iii) |
a copy of the Articles of Incorporation of the Borrower with
certification (dated on or after December 25, 2004) attached
thereto certifying that it is a copy of the original;
and |
| |
(iv) |
a written confirmation prepared by the Borrower’s
Representative Director certifying that all internal procedures
necessary for the execution of this Agreement and the drawdown
pursuant to this Agreement have been completed. |
| 5. |
CONDITIONS PRECEDENT FOR LENDING OBLIGATIONS
A |
| 5.1 |
The Lender A shall owe the Lending Obligations A upon the
condition (irrespective of whether or not notice under Clause 8.1
was given) that all of the conditions set forth in each of the
following items are satisfied at the time of making the Individual
Loan A. The satisfaction of such conditions shall be determined
individually by each Lender A, and no other Lender A or the Agent
shall be responsible for a Lender A’s determination or
refusal to make a Loan A. |
| |
(i) |
The application for a drawdown satisfies the requirements set
forth under Clause 6.1. |
11
(Translation)
| |
(ii) |
The Lending Obligations A of All Lenders A have not been
exempted pursuant to Clause 12.1. |
| |
(iii) |
The Accounts Receivables Trust Agreement, the Floating Pledge
Agreement and the Creditors’ Agreement have all been entered
into and are validly existing. |
| |
(iv) |
All the matters described in each item of Clause 20 hereof,
Clause 7.1 of the Accounts Receivables Trust Agreement and Clause
4.1 of the Floating Pledge Agreement are true and
correct. |
| |
(v) |
The Borrower has not breached any provision of this Agreement,
the Accounts Receivables Trust Agreement or the Floating Pledge
Agreement, and there is no threat that such breach may occur on or
after the relevant Desired Drawdown Date A. |
| |
(vi) |
No consultation pursuant to the provisions of Clause 34.2 has
been held. |
| |
(vii) |
The Borrower has obtained approval from FUJITSU LIMITED with
respect to the assignment of Trust Receivables pursuant to the
Accounts Receivables Trust Agreement, in the form of a document
bearing a certified date ( kakutei-hizuke ), as provided for
in Clause 10.1 of the Accounts Receivables Trust Agreement.
(Further, the original of such written approval has been delivered
to the Trustee, and the Trustee has delivered a copy thereof to the
Agent, attaching thereto a certification certifying that such copy
is a true and accurate copy of the original and that the original
is retained by the Trustee.) |
| |
(viii) |
The Borrower has obtained the Trustee’s approval without
objection with respect to the creation of the floating pledge
pursuant to the Floating Pledge Agreement, in the form of a
document bearing a certified date ( kakutei-hizuke ), as
provided for in Clauses 3.2 and 3.3 of the Floating Pledge
Agreement. (Further, the original of such written approval has been
delivered to the Agent.) |
| |
(ix) |
An account in the name of the Trustee has been established at
the Uchisaiwaicho Corporate Banking Division of MIZUHO CORPORATE
BANK, LTD. as the account for receiving transfer of the amount of
Trust Receivables collections with respect to the Fixed Trust
Receivables. |
| |
(x) |
The Fixed Trust Property Value on the Trustee’s Regular
Report or the Trustee’s Extraordinary Report, whichever is
the most recent as of 10 a.m. on the third (3rd) Business Day prior
to the Desired Drawdown Date A set forth in the Drawdown
Application, is maintained at an amount that is no less than the
Total Outstanding Balance A after making such Loan A. |
| |
(xi) |
The Fixed Trust Property Value on the most recent
Trustee’s Regular Report or the Trustee’s Extraordinary
Report, whichever is the most recent as of 11 a.m. on the Business
Day immediately preceding the Desired Drawdown Date A set forth in
the Drawdown Application, is maintained at an amount that is no
less than the Total Outstanding Balance A after making such Loan
A. |
12
(Translation)
| 5.2 |
Even if the condition provided for under Clause 5.1(xi) is not
satisfied, if all of the other conditions provided for under each
of the other items of Clause 5.1 are satisfied, the Lender A shall,
in accordance with the provisions of Clause 7.4, owe the Lending
Obligations A with respect to amounts that are no less than 100
million yen and in increments of 100 million yen, to the extent
that the Fixed Trust Property Value is maintained at an amount that
is no less than the Total Outstanding Balance A. |
| 6. |
APPLICATION FOR DRAWDOWN |
| 6.1 |
The Borrower may apply for a drawdown pursuant to the terms of
this Agreement during the Drawdown Application Period. If the
Borrower desires to drawdown a Loan A pursuant to this Agreement,
the Borrower shall submit to the Agent a document specifying the
matters set forth under each of the following items, indicating its
intention to apply for a drawdown (the “Drawdown
Application”), by 10 a.m. on the third (3rd) Business Day
prior to the Desired Drawdown Date A. In this case, the matters set
forth under each of the following items shall satisfy the
conditions provided for in the respective items. |
| |
(i) |
The amount of Individual Loan A that the Borrower desires to
drawdown (the “Desired Drawdown Amount”): |
The Desired Drawdown Amount
shall be no less than 100 million yen and in increments of 100
million yen, and, at the same time, an amount where the Lending
Obligation A of each Lender A does not exceed the Unused Commitment
Amount A in relation to the relevant Lender A as of the Desired
Drawdown Date A.
| |
(ii) |
The date that the Borrower desires the drawdown (the
“Desired Drawdown Date A”): |
The Desired Drawdown Date A
shall be a Business Day during the Drawdown Period.
| |
(iii) |
The repayment time of the principal and interest of the
Individual Loan A in relation to such Drawdown Application (the
“Repayment Date”): |
The Repayment Date shall be a
day corresponding to one (1) month, two (2) months, three (3)
months, six (6) months, or twelve (12) months after the Desired
Drawdown Date A (provided, however, that if such corresponding day
falls on a day other than a Business Day, the following Business
Day shall be the Repayment Date, and if such following Business Day
occurs in the following month, the immediately preceding Business
Day shall be the Repayment Date), but may not be after April 24,
2006.
| 6.2 |
The indication of intention to apply for a drawdown pursuant to
Clause 6.1 shall be effective with respect to All Lenders A upon
the Agent receiving the Drawdown Application. When the Agent
receives a Drawdown Application from the Borrower, the Agent shall
notify All Lenders A of the Borrower’s application for a
drawdown and |
13
(Translation)
the details thereof, by
sending a copy of the Drawdown Application to All Lenders A during
the third (3rd) Business Day prior to the Desired Drawdown Date A.
The Agent shall retain the original of the Drawdown Application on
behalf of All Lenders A until the Outstanding Individual Loan A
Money advanced in response to such application is fully
repaid.
| 7.1 |
If a Lender A receives an application for a drawdown in
accordance with Clause 6 and does not give notice pursuant to
Clause 8.1, and all conditions set forth in Clause 5 are satisfied
at the time of the drawdown of the Individual Loan A, the Lender A
shall remit the Individual Loan A Amount to the Agent’s
Account by 11 a.m. on the Desired Drawdown Date A. The Individual
Loan A shall be deemed to have been made by that Lender A as of the
time that the Agent remits such money to the Borrower’s
Settlement Account from the Agent’s Account. Provided,
however, that with respect to the drawdown of the Individual Loan A
in relation to a Refinancing Loan A, the Lender A shall offset (a)
the principal amount of the Outstanding Individual Loan A Money in
relation to the Refinanced Loan A as of the Desired Drawdown Date
A, and (b) the Individual Loan A Amount in relation to the
Refinancing Loan A, and according to the result thereof, shall
treat the drawdown of such Individual Loan A as
follows. |
| |
(i) |
If the Individual Loan A Amount in relation to the Refinancing
Loan A exceeds the amount equivalent to the principal of the
Outstanding Individual Loan A Money in relation to the Refinanced
Loan A: |
If the Lender A receives an
application for a drawdown in accordance with Clause 6 and does not
give notice pursuant to Clause 8.1, and all conditions set forth in
each item of Clause 5 are satisfied at the time of making the
Individual Loan A, the Lender A shall remit to the Agent’s
Account the amount of the difference between the Individual Loan A
Amount in relation to the Refinancing Loan A and the amount
equivalent to the principal of the Outstanding Individual Loan A
Money in relation to the Refinanced Loan A by 11 a.m. on the
Desired Drawdown Date A. The Individual Loan A in relation to the
Refinancing Loan A shall be deemed to have been made in the full
Individual Loan A Amount in relation to the Refinancing Loan A as
of the time that the Agent transfers such money to the
Borrower’s Settlement Account after withdrawing it from the
Agent’s Account. Provided, however, that even if the Lender A
remits the amount of the difference between the Individual Loan A
Amount and the amount equivalent to the principal of the
Outstanding Individual Loan A Money to the Borrower’s
Settlement Account, if the interest on the Refinanced Loan A is not
paid by the Due Time, the Individual Loan A in relation to the
Refinancing Loan A shall be deemed not to have been
made.
| |
(ii) |
If the Individual Loan A Amount in relation to the Refinancing
Loan A is less than or equal to the amount equivalent to the
principal of the Outstanding Individual Loan A Money in relation to
the Refinanced Loan A: |
If the Lender A receives an
application for a drawdown in accordance with Clause 6 and does not
give notice pursuant to Clause 8.1, and all conditions
14
(Translation)
set forth in each item of
Clause 5 are satisfied, the Individual Loan A in relation to the
Refinancing Loan A shall be deemed to have been made in the full
Individual Loan A Amount in relation to the Refinancing Loan A as
of the Due Time of the Refinanced Loan A. Provided, however, that
if the Borrower does not pay the full amount of the difference
between the Outstanding Individual Loan A Amount in relation to the
Refinanced Loan A and the Individual Loan A Amount and the interest
accrued on the Refinanced Loan A by the Due Time, the Individual
Loan A in relation to the Refinancing Loan A shall be deemed not to
have been made.
| 7.2 |
When the Loan A is made pursuant to Clause 7.1, the Borrower
shall immediately send to the Agent a written receipt describing
the amount of the Loan A and the specifics of the Individual Loan
A. The Agent shall, upon receiving such receipt, promptly provide a
copy thereof to the Lender A who made the Individual Loan A. The
Agent shall retain the original receipt on behalf of that Lender A
until the Outstanding Individual Loan A Money in relation to such
Individual Loan A is repaid in full. |
| 7.3 |
If notice under Clause 8.1 is not given, the Agent may make the
Individual Loan A on behalf of a Lender A through Temporary
Advancement (provided, however, that the Agent shall be under no
obligation to make such Temporary Advancement). After such
Temporary Advancement, the relevant Lender A shall remit the full
equivalent amount of the Individual Loan A Money to the
Agent’s Account by 11 a.m. on the Desired Drawdown Date A,
and if such remittance is not completed by that time, the Lender A
shall, promptly upon the Agent’s request, pay to the Agent
the Temporary Advancement Costs required in making such Temporary
Advancement. |
| 7.4 |
If it is found, on or after 10 a.m. on the third (3rd) Business
Day prior to the Desired Drawdown Date A, and before 11 a.m. on the
Business Day immediately preceding the same Desired Drawdown Date
A, that the Fixed Trust Property Value on the most recent
Trustee’s Regular Report or Trustee’s Extraordinary
Report made by 11 a.m. on the Business Day immediately preceding
that Desired Drawdown Date A cannot be maintained at an amount that
is not less than the Total Outstanding Balance A after making such
Loan A (the date on which such fact is found shall hereinafter be
referred to as the “Discovery Date”), the Individual
Loan A shall be made in the maximum amount (the “Reduced
Drawdown Amount”) to the extent that such Fixed Trust
Property Value can be maintained at an amount that is not less than
the Total Outstanding Balance A after making such Loan A, provided
that such amount is not less than 100 million yen and in increments
of 100 million yen, and the loan amount in relation to the Lending
Obligation A of each Lender A in this case shall be the amount
calculated as the Reduced Drawdown Amount multiplied by the
Commitment Ratio A of each Lender A (making such loan in the amount
less than the Desired Drawdown Amount shall hereinafter be referred
to as the “Reduced Drawdown”). The Borrower shall be
responsible for any damages, losses or expenses incurred by the
Lender A or the Agent as a result of the Reduced
Drawdown. |
| 7.5 |
The procedures in relation to a Reduced Drawdown shall be as
follows. |
| |
(i) |
The Agent shall, during the Discovery Date, notify the Borrower
and the Lender A (a) that a Reduced Drawdown is required to be
made, (b) the loan amount in relation to the Lending Obligation A
of each Lender A, and (c) that |
15
(Translation)
the Lender A is required to
notify the Agent, by 12 p.m. on the second (2nd) Business Day after
the Discovery Date of the amount of the Reduced Drawdown Break
Funding Cost together with the calculation basis
thereof.
| |
(ii) |
Each Lender A shall, by 12 p.m. on the second (2nd) Business
Day after the Discovery Date, notify the Agent of the amount of the
Reduced Drawdown Break Funding Cost in relation to such Lender A
together with the calculation basis thereof. |
| |
(iii) |
The Borrower shall, during the Business Day immediately
preceding the Desired Drawdown Date A, submit to the Agent a
written confirmation stating its approval of the Reduced Drawdown.
If such written confirmation is not submitted during the Business
Day immediately preceding the Desired Drawdown Date A, the Lender A
may elect not to make the Reduced Drawdown. |
| |
(iv) |
The Borrower shall pay the Reduced Drawdown Break Funding Cost
in accordance with the provisions of Clause 18 on the third (3rd)
Business Day after the Discovery Date. |
| 8. |
REFUSAL TO MAKE LOANS A |
| 8.1 |
A Lender A who decides not to make the Individual Loan A for
the reason that all or part of the conditions under Clause 5 are
not satisfied (the “Non-Drawdown Lender A”) may notify
the Agent, the Borrower and all other Lenders A of the decision
with the reason affixed thereto by 3 p.m. on one (1) Business Day
prior to the Desired Drawdown Date A. Provided, however, that if,
notwithstanding the satisfaction of all the conditions under Clause
5, such notice is given and the Individual Loan A is not made, the
Non-Drawdown Lender A shall not be released from liabilities
arising from a breach of its Lending Obligations A. |
| 8.2 |
The Borrower shall be responsible for any damages, losses or
expenses incurred by the Non-Drawdown Lender A or the Agent as a
result of Non-Drawdown Lender A not being able to make the
Individual Loan A. Provided, however, that the foregoing shall not
apply if the failure to make the Individual Loan A constitutes a
breach of such Non-Drawdown Lender A’s Lending Obligations
A. |
| 9. |
REPAYMENT OF PRINCIPAL |
The Borrower shall pay the
principal amount of each Individual Loan A on the Repayment Date in
accordance with the provisions of Clause 18.
| 10.1 |
The Borrower shall, (a) with respect to those Individual Loans
A for which the Loan Term is one (1) month, two (2) months, three
(3) months or six (6) months, pay on the Repayment Date of such
Individual Loan A, in accordance with the provisions of Clause 18,
the amount of interest on such Individual Loan A calculated by
multiplying the principal amount in relation to the Individual Loan
A by the Applicable Interest Rate A, calculated on a per diem basis
in accordance with the actual number of days of |
16
(Translation)
the Loan Term, and (b) with
respect to those Individual Loans A for which the Loan Term is
twelve (12) months, pay on the corresponding day (or the following
Business Day if such date is not a Business Day; the “Interim
Interest Payment Date”) six (6) months after the Drawdown
Date of such Individual Loan A, in accordance with the provisions
of Clause 18, the amount of interest accrued on such Individual
Loan A up to the Interim Interest Payment Date, calculated by
multiplying the principal amount in relation to the Individual Loan
A by the Applicable Interest Rate A, calculated on a per diem basis
in accordance with the actual number of days from such Drawdown
Date to the Interim Interest Payment Date, and, on the Repayment
Date in relation to such Individual Loan A, pay in accordance with
provisions of Clause 18, the amount of interest accrued on such
Individual Loan A on and after the Interim Interest Payment Date,
calculated by multiplying the principal amount in relation to the
Individual Loan A by the Applicable Interest Rate A, calculated on
a per diem basis in accordance with the actual number of days from
the Interim Interest Payment Date to the Repayment Date.
| 10.2 |
The calculation method of interest under Clause 10.1 shall be
on a per diem basis, inclusive of the first day and exclusive of
the last day, assuming that there are 365 days per year, wherein
divisions shall be done at the end of the calculation, and
fractions less than one yen shall be rounded down. |
| 11.1 |
The Borrower shall pay on the fifth (5th) Business Day after
the final date of each Commitment Fee A Calculation Period, in
accordance with the provisions of Clause 18, a Commitment Fee A in
the amount (fractions less than one yen shall be rounded down)
calculated as the total amount of the Unused Commitment Amount A
with respect to each Lender A on each day during each Commitment
Fee A Calculation Period (provided that the Unused Commitment
Amount A on the Drawdown Date shall be the Unused Commitment Amount
A after making the Individual Loan A on that Drawdown Date),
multiplied by the Commitment Fee A Rate, and divided by
365. |
| 11.2 |
The Borrower shall not be required to make payments with
respect to the Commitment Fee A in relation to the Default Period
to any Lender A who fails to perform its Lending Obligations A (the
“Defaulting Lender A”). The Commitment Fee A in
relation to the Default Period shall be the amount (fractions less
than one yen shall be rounded down) calculated as the total amount
of the Unused Commitment Amount A with respect to such Defaulting
Lender A on each day during such Default Period, multiplied by the
Commitment Fee A Rate, and divided by 365. In this Clause 11.2, the
“Default Period” shall mean the period commencing on
the day (inclusive) on which an event of default occurs, and ending
on the day (inclusive) before the day on which the default is
remedied, and the day on which a default is remedied shall be
determined as follows: |
| |
(i) |
if the Defaulting Lender A offers to the Borrower via the Agent
to make the Individual Loan A at a later date pursuant to the
application for a drawdown in respect of which the Defaulting
Lender A has failed to perform its Lending Obligation A, and the
Borrower accepts such offer and such Individual Loan A is made, the
date the Individual Loan A is made; |
17
(Translation)
| |
(ii) |
if the Borrower refuses the offer in the preceding item, the
date that the offer is refused; if the Agent does not receive
notice from the Borrower of its acceptance or refusal of the offer
within two (2) Business Days after the offer is made under the
preceding item, the offer shall be deemed to have been refused by
the Borrower; and |
| |
(iii) |
for those cases other than the cases of the preceding two
items, the date determined by the Borrower, the Defaulting Lender A
and the Agent upon consultation. |
| 11.3 |
If an Exemption Event occurs, the Borrower shall not be
required to make payments to All Lenders A, with respect to the
Commitment Fee A in relation to the Exemption Period. The
Commitment Fee A in relation to the Exemption Period shall be the
amount (fractions less than one yen shall be rounded down)
calculated as the total amount of the Unused Commitment Amount A
with respect to each Lender A on each day during such Exemption
Period, multiplied by the Commitment Fee A Rate, and divided by
365. |
| 11.4 |
If the Costs Increased Lender A ceases to owe its Lending
Obligations A pursuant to the provisions of Clause 13.5, the
Borrower shall not be required to pay to such Costs Increased
Lender A, with respect to the Commitment Fee A in relation to the
period after the termination of this Agreement with respect to that
Costs Increased Lender A, the amount (fractions less than one yen
shall be rounded down) calculated as the total amount of the Unused
Commitment Amount A with respect to such Costs Increased Lender A
on each day during the period commencing on the day (inclusive) on
which the Costs Increased Lender A ceases to owe its Lending
Obligations A and ending on the Drawdown Application Period Final
Date (inclusive), multiplied by the Commitment Fee A Rate, and
divided by 365. |
| 11.5 |
If this Agreement is terminated with respect to any Lender A or
All Lenders A pursuant to the provisions of Clause 34, the Borrower
shall not be required to pay to that Lender A, with respect to the
Commitment Fee A in relation to the period after the termination of
this Agreement with respect to that Lender A, the amount (fractions
less than one yen shall be rounded down) calculated as the total
amount of the Unused Commitment Amount A with respect to each
Lender A on each day during the period from the day (inclusive) of
termination of this Agreement with respect to that Lender A and
ending on the Drawdown Period Termination Date (inclusive)
(provided that the related provisions of this Agreement shall
remain effective with respect to the Lender A after the termination
of this Agreement to the extent necessary in calculating the
Commitment Fee A that is not required to be paid pursuant to this
Clause 11.5; provided further, that with respect to the day
repayment is made in relation to an Individual Loan A, the Unused
Commitment Amount A after such repayment shall be used as the basis
for such calculation), multiplied by the Commitment Fee A Rate, and
divided by 365. |
| 11.6 |
In calculating the Commitment Fee A pursuant to Clause 11.1,
divisions shall be done at the end of the calculation, and
fractions less than one yen shall be rounded down. |
| 12. |
EXEMPTION OF LENDER A |
18
(Translation)
| 12.1 |
The Lender A shall not owe the Lending Obligations A during the
Exemption Period. |
| 12.2 |
If the Agent becomes aware that an Exemption Event has
occurred, the Agent shall immediately notify the Borrower and All
Lenders A of such event in writing. |
| 12.3 |
After notice under Clause 12.2 is given, when the Majority
Lenders A determine that the Exemption Event in relation to such
notice has been resolved, the Agent shall immediately notify the
Borrower and All Lenders A thereof. |
| 13.1 |
A Costs Increased Lender A may, by notifying the Borrower in
writing via the Agent, request the Borrower to elect either to bear
the Increased Costs or to terminate this Agreement with respect to
the Costs Increased Lender A. The Borrower shall respond to such
request by giving written notice to the Costs Increased Lender A
via the Agent. |
| 13.2 |
If the Borrower elects to bear the Increased Costs in response
to the Costs Increased Lender A’s request under Clause 13.1,
the Borrower shall pay, in accordance with the provisions of Clause
18, the Costs Increased Lender A the money equivalent to such
Increased Costs. |
| 13.3 |
If the Borrower elects to terminate this Agreement with respect
to the Costs Increased Lender A in response to the request under
Clause 13.1, the Borrower shall notify the Agent and All Lenders A
in writing by ten (10) Business Days prior to the date the Borrower
desires this Agreement to be terminated (the “Desired
Termination Date”), of (a) the desire to terminate this
Agreement with respect to the Costs Increased Lender A, and (b) the
Desired Termination Date. |
| 13.4 |
If there remains an Individual Loan A with a Repayment Date or
Interim Interest Payment Date that arrives on or after the day
following the Desired Termination Date, the Costs Increased Lender
A shall notify the Agent of the Break Funding Cost by two (2)
Business Days prior to the Desired Termination Date. After
receiving such notice, the Agent shall notify the Borrower of the
same by one (1) Business Day prior to the Desired Termination
Date. |
| 13.5 |
In the event that notice under Clause 13.3 is given, the Costs
Increased Lender A’s Lending Obligation A shall be
extinguished, and thereupon this Agreement shall terminate only
with respect to the Costs Increased Lender A. In this case, the
Borrower shall pay to the Costs Increased Lender A on the Desired
Termination Date, in accordance with the provisions of Clause 18,
all obligations it owes to the Costs Increased Lender A pursuant to
this Agreement. Until the Borrower completes the performance of all
obligations it owes to the Costs Increased Lender A under this
Agreement, the relevant provisions of this Agreement regarding the
performance of such obligations shall remain in full force and
effect with respect to the Costs Increased Lender A. Further, in
this case, the Commitment Ratio A of the Lenders A other than the
Costs Increased Lender A shall be modified as follows: |
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(i) |
The Total Commitment Amount A will be modified to an amount
calculated as the Total Commitment Amount A before modification
less the Commitment Amount A of such Costs Increased Lender
A. |
19
(Translation)
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(ii) |
The Commitment Ratio A of the Lenders A other than the Costs
Increased Lender A shall be modified to the ratio of the loan
amount of each Lender A to the Total Commitment Amount A after the
modification under the immediately preceding Item (i). |
| 14.1 |
The Borrower may not prepay all or any part of the principal of
the Loan A before its Due Date (a “Prepayment”).
Provided, however, that this shall not apply if the Prepayment is
made pursuant to Clause 13 or Clause 34, or if the Borrower, in
accordance with the procedures set forth below, obtains the prior
written approval of all of the Lenders A who made the Individual
Loan A in respect of which the Borrower gives notice of its desire
to make a Prepayment (the “Relevant Prepayment Lenders
A”), and the Agent. |
| 14.2 |
If the Borrower desires to make a Prepayment, the Borrower
shall give a written notice to the Agent no later than ten (10)
Business Days prior to the date the Borrower desires to make the
Prepayment (the “Desired Prepayment Date”), stating (a)
the Drawdown Date, the Repayment Date and the principal amount of
the Individual Loan A for which the Borrower desires to make a
Prepayment, (b) the principal amount for which the Borrower desires
to make a Prepayment (not less than 100 million yen, and in
increments of 100 million yen), (c) that the Borrower will pay in
full on the Desired Prepayment Date, the interest on the principal
amount for which the Borrower desires to make |
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