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Exhibit 10.48
14,000,000,000
Yen
Revolving Credit Facility
Agreement
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| Borrower |
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: |
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Spansion
Japan Limited |
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| Arranger and Agent |
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: |
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The Bank of
Tokyo-Mitsubishi UFJ, Ltd. |
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| Lenders |
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: |
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The Bank of
Tokyo-Mitsubishi UFJ, Ltd. |
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The
Norinchukin Bank |
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Resona Bank,
Limited |
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The Toho
Bank, Ltd. |
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Dated: December 28,
2007 |
This English translation is prepared
by Shimazaki International Law Office in the belief that such
translation is faithful to its Japanese original version. Please
note, however, that if there is any inconsistency between this
translation and the Japanese version, the Japanese version
prevails.
CONTENTS
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| Article 1 |
|
Definition |
|
3 |
| Article 2 |
|
Rights
and Obligations of Lender |
|
13 |
| Article 3 |
|
Use of
Proceeds |
|
14 |
| Article 4 |
|
Conditions Precedent to Effectiveness of This
Agreement |
|
14 |
| Article 5 |
|
Request
for Disbursement of Advance |
|
15 |
| Article 6 |
|
Conditions Precedent for Commitment |
|
17 |
| Article 7 |
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Disbursement of the Advance |
|
18 |
| Article 8 |
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Non-Disbursement of the Individual Advance |
|
21 |
| Article 9 |
|
Exemption
from Liability of the Lenders |
|
21 |
| Article 10 |
|
Increased
Costs |
|
22 |
| Article 11 |
|
Repayment
of Principal |
|
23 |
| Article 12 |
|
Interest |
|
23 |
| Article 13 |
|
Prepayment |
|
24 |
| Article 14 |
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Default
Interest |
|
26 |
| Article 15 |
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Facility
Fee |
|
26 |
| Article 16 |
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Agent
Fee |
|
28 |
| Article 17 |
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Expenses,
Taxes and Duties and Breakage Costs |
|
29 |
| Article 18 |
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Performance of Obligations by the Borrower |
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29 |
| Article 19 |
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Distribution to the Lenders |
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32 |
| Article 20 |
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Representations and Warranties of the Borrower |
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37 |
| Article 21 |
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Covenants
of the Borrower |
|
39 |
| Article 22 |
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Events of
Default |
|
43 |
| Article 23 |
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Set-Off
and Enforcement of Security |
|
46 |
| Article 24 |
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Adjustment among Lenders and Agent |
|
48 |
| Article 25 |
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Rights
and Duties of the Agent |
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49 |
| Article 26 |
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Resignation and Removal of the Agent |
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52 |
| Article 27 |
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Decision-Making of the Majority Lenders |
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53 |
| Article 28 |
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Amendment
to this Agreement |
|
54 |
| Article 29 |
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Transfer
of Status |
|
54 |
| Article 30 |
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Transfer
of the Individual Loan |
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56 |
| Article 31 |
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Collection from Third Party, etc. |
|
57 |
| Article 32 |
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Termination and Extension of the Commitment |
|
58 |
| Article 33 |
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General
Provisions |
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62 |
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| Schedule 1
(List of Parties) |
|
70 |
| Schedule 2
(List of Distributors) |
|
73 |
| Attachment 1
(Request for Borrowing) |
|
74 |
| Attachment 2
(Confirmation) |
|
76 |
| Attachment 3
(Receipt) |
|
77 |
| Attachment 4
(Report concerning Financial Covenant) |
|
79 |
| Attachment 5
(Notice of Status Assignment to the Agent) |
|
81 |
| Attachment 6
(Notice of Assignment to the Agent) |
|
83 |
| Attachment 7
(Request for Extension of Commitment) |
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86 |
Revolving Facility
Agreement
THIS AGREEMENT (“ this
Agreement ”), dated as of December 28, 2007, is
entered into by and among Spansion Japan Limited, as the borrower
(hereinafter referred to as the “ Borrower ”),
the several financial institutions named in the Schedule I hereto,
as lenders (hereinafter collectively referred to as the “
Lenders ” and individually as a “ Lender
”), and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as the agent
(hereinafter referred to as the “ Agent
”).
Article 1 Definition
| (1) |
The following terms when used herein shall (unless the context
otherwise requires) have the following meanings: |
| 1 |
“ Business Day ” means any day other than
those days on which commercial banks in Japan are authorized or
required by the Laws and Ordinances to remain closed. |
| 2 |
“ Agent Services ” mean such services
provided herein as are entrusted to the Agent by the Lenders in the
interests of the Lenders. |
| 3 |
“ Agent’s Account ” means a current
account held by the Agent opened with The Bank of Tokyo-Mitsubishi
UFJ, Ltd., Tokyo Main Office (Account No.41097; Account Name: The
Bank of Tokyo-Mitsubishi UFJ, Ltd., Syndicate Loan guchi), or such
other account as the Agent may designate and notify the Borrower
and the Lenders from time to time. |
| 4 |
“ Agent Fee ” means such fee payable by the
Borrower to the Agent as separately agreed between the Borrower and
the Agent. |
| 5 |
“ Extension Date ” means December 28
(or the immediately preceding Business Day if such date falls on a
day which is not a Business Day) of each year after the date of
execution hereof and until the Commitments of all Lenders
terminate. |
| 6 |
“ Extended Commitment Termination Date ” has
the meaning as defined in Article 32(3)1 hereof. |
| 7 |
“ Extension Statement ” has the meaning as
defined in Article 32(3)(i) hereof. |
| 8 |
“ Request for Extension ” has the meaning as
defined in Article 32(3)(i) hereof. |
| 9 |
“ Loan Period ” means the period commencing
on (and including) the Disbursement Date and ending on (and
including) the Maturity Date. |
- 3 -
| 10 |
“ Commitment ” means the obligation of each
Lender to make an Individual Advance to the Borrower as provided in
Article 2(1) hereof. |
| 11 |
“ Commitment Amount ” means, with respect to
each Lender, the amount set forth opposite to the name of such
Lender in the Schedule I hereto or such other altered amount if the
original amount changes pursuant to Article 2(5). |
| 12 |
“ Individual Loan ” means the loan
receivables in connection with an Individual Advance. |
| 13 |
“ Disbursement Suspension Period ” means the
period commencing on (and including) the day the Borrower receives
the notice under Article 9(1) and ending on (and including) the day
it receives the notice under Article 9(2). |
| 14 |
“ Disbursement Suspension Event ” means
(i) occurrence of natural calamity or war;
(ii) suspension or disruption of electricity, communication or
various clearing and settlement systems; (iii) any event that
has occurred in the Tokyo interbank market to make it impossible to
carry out the lending and borrowing transactions in Yen funds; and
(iv) any other event that is not attributable to the Lenders
which the Majority Lenders (or, if the decision-making of the
Majority Lenders is infeasible, the Agent) reasonably deem has made
it impossible for a Lender to disburse the Individual
Advances. |
| 15 |
“ Request for Borrowing ” means an
application on the form of Attachment 1 hereto to be delivered to
the Agent in accordance with Article 5(1) when the Borrower desires
to make a borrowing pursuant to this Agreement. |
| 16 |
“ Refinanced Existing Advance ” means an
already disbursed and outstanding Individual Advance the Due Date
of which is the Proposed Disbursement Date of a Refinancing New
Advance. |
| 17 |
“ Refinancing New Advance ” means an
Individual Advance to be disbursed on the Proposed Disbursement
Date which is the Due Date of the Advance that has already been
disbursed and outstanding. |
| 18 |
“ Base Loan Period ” means the period to be
set forth in the Request for Borrowing as the benchmark for setting
the Base Rate applicable to the Individual Advances to be provided
in response to such a Request for Borrowing. |
| 19 |
“
Base Rate ” means, if the relevant Base Loan Period is
an integral number of month, a rate corresponding to such Base Loan
Period among rates of Yen-TIBOR-ZTIBOR (appearing on the Telerate
Page 17097) at 11:00 a.m. (or at the nearest possible time after
11:00 a.m.) on the day that is two (2) Business
Days
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preceding each Proposed
Disbursement Date; provided that (in the event the relevant Base
Loan Period is a period other than an integral number) if such Base
Loan Period is any period of days of more than one week but less
than one month, such rate shall be the one which is the higher of
the rates applicable to one week or one month, or if such Base Loan
Period is any period of days of more than one month but less than
two months, such rate shall be the one which is the higher of the
rates applicable to one month or two months, or if such Base Loan
Period is any period of days of more than two months but less than
three months, such rate shall be the one which is the higher of the
rates applicable to two months or three months, or if such Base
Loan Period is less than one week, such rate shall be the one
applicable to one week. In the event that the relevant Base Loan
Period is an integral number of months and the relevant rate is not
published for any reason, then the Base Rate means the rate that is
reasonably determined by the Agent as an offered rate per annum
applicable for loans in yen for the period concerned in the Tokyo
interbank market, at 11:00 a.m. or at the nearest possible time
prior thereto on the day that is two (2) Business Days
preceding the Proposed Disbursement Date. If such a Base Loan
Period is not an integral number of month and for any reason the
rate determined in accordance with the foregoing rules is not
published, then the Base Rate means the rate as reasonably
determined by the Agent.
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| 20 |
“ Accounting Documents, Etc. ” means the
documents prescribed in any of (a) to (d) below, while
the term “Accounting Documents, Etc.” used in
respective provisions hereof other than this Article 1(1)20 in
relation to the last period for settlement of accounts occurring
before the effective date (May 1, 2006) of the Company Law of Japan
(Law No. 86 of 2005) (the “ Company Law ”)
for the Borrower which is subject to the Company Law (May 1, 2006),
means the documents prescribed in (e) or
(f) below: |
| |
(a) |
(i) Accounting documents (meaning the balance sheet and the
income statement as provided in paragraph 2 of Article 435 of the
Company Law and the statement of change of shareholders’
equity, etc. and the unconsolidated table of notes as provided in
paragraph 1 of Article 91 of the Rules on Company Accounting); and
(ii) a business report; for each financial year, each as
provided for in paragraph 2 of Article 435 of the Companies
Law. |
| |
(b) |
Extraordinary
accounting documents (as provided in paragraph 1 of Article 441 of
the Company Law) actually prepared by the Borrower
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(meaning the balance sheet
as of the date of extraordinary settlement of accounts, as defined
in such paragraph, and the income statement for a period starting
from the first day belonging to the financial year during which
such date of extraordinary settlement of accounts falls and ending
on such date of extraordinary settlement of accounts).
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(c) |
Consolidated accounting documents, as provided for in paragraph
2 of Article 435 of the Companies Law, (meaning the consolidated
balance sheet, the consolidated income statement, the consolidated
statement of change of shareholders’ equity, etc. and the
consolidated statement of table of notes as provided in Article 93
of the Rules on Company Accounting; hereafter the same in this
Article 1(1)20(c)) which may be required to be prepared by the
Borrower pursuant to paragraph 3 of Article 444 of the Company Law
for each financial year, and such other consolidated accounting
documents actually prepared by the Borrower for each financial year
as provided in paragraph 1 of Article 441 of the Company
Law. |
| |
(d) |
The balance sheet, the income statement, the statement of
change of shareholders’ equity, etc. and the notes thereto
actually prepared by the Borrower on the consolidated and
unconsolidated basis. |
| |
(e) |
The balance sheet, the income statement, the business report
and the proposed resolution of appropriation of profit or loss,
each as provided in each Sub-paragraph of paragraph 1 of Article
281 of the Commercial Code of Japan (meaning the Commercial Code in
force before amendment by Law No. 86 of 2005). |
| |
(f) |
The balance sheet and income statement actually prepared on the
consolidated and unconsolidated basis by the Borrower. |
| 21 |
“ Accounting Period ” means the period
commencing on (and including) the first date of each financial year
of the Borrower and ending on (and including) the last date of such
financial year. |
| 22 |
“ Taxes and Duties ” means all taxes and
duties including income tax, corporate income tax and any other
taxes that may be imposed in Japan. |
| 23 |
“ Subsidiary ” and “ Affiliated
Company ” mean a company as so defined under Article 8 of
the Regulation concerning Terminology, Forms and Method of
Preparation of Financial Statements. |
| 24 |
“ Individual Advance ” means each Advance
made by a Lender, respectively, in accordance with the same Request
for Borrowing. |
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| 25 |
“ Individual Advance Money ” means the money
lent (or to be lent) by a Lender to the Borrower as an Individual
Advance, and the “ Individual Advance Amount ”
means the amount of the Individual Advance Money. Individual
Advance Amount is calculated by multiplying the amount of an
Advance related to the relevant Request for Borrowing by the
Commitment Ratio (or Unused Commitment Amount, if the amount of an
Advance related to the relevant Request for Borrowing is equal to
the total of Unused Commitment Amount of the Lenders) of each
related Lender. |
| 26 |
“ Individual Advance Payable ” means the
principal, the interest, default interest, Breakage Costs and any
and all the other monies payable by the Borrower hereunder in
connection with an Individual Advance, and the “
Individual Advance Payable Amount ” means the amount
of such an Individual Advance Payable. |
| 27 |
“ Commitment Commencement Date ” means
January 8, 2008. |
| 28 |
“ Commitment Period ” means the period
commencing on (and including) the Commitment Commencement Date and
ending on (and including) the day when the Commitments of all
Lenders terminate in their entirety; provided, however, that in the
event of the extension of the Commitment owed by respective Lenders
pursuant to Article 32(3) hereof, it means the period ending on the
Commitment Termination Date after such extension in respect of each
Lender, and the same shall also apply in the event of any
subsequent extension of the Commitment. |
| 29 |
“ Commitment Termination Date ” means
December 28, 2009 (or the immediately preceding Business Day,
if such date falls on a day which is not a Business Day); provided,
however, that in the event of the extension of the Commitment owned
by respective Lenders pursuant to Article 32(3) hereof, it means
the last date of such a extended period in respect of each Lender,
and the same shall also apply where the Commitment is further
extended thereafter. |
| 30 |
“ Commitment Ratio ” means the percentage of
the Commitment Amount of each Lender to the Total Commitment
Amount. |
| 31 |
“ Proposed Disbursement Date ” means the
Business Day (excluding the Commitment Termination Date, but
including a Commitment Termination Date in respect of a Lender if
the Commitment owed by such a Lender has been extended pursuant to
Article 32(3) hereof to survive such a Commitment Termination Date)
during the Commitment Period that the Borrower designates in the
Request for Borrowing as the date on which the Borrower desires the
Lender to disburse an Advance. |
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If the Agent submits the
Extension Statement to the Borrower and the Consenting Lender(s)
pursuant to Article 32(3)1 hereof, such Proposed Disbursement Date
may fall on the Business Day within the Commitment Period so
extended, in the event of extension of the Commitment pursuant to
Article 32(3) hereof.
| 32 |
“ Disbursement Date ” means the date of the
disbursement of Advance. |
| 33 |
“ Payment Time ” means 10:30 a.m. of the Due
Date. |
| 34 |
“ Syndicate Account ” means the ordinary
account (Account No: 4700417; and Account Name: Spansion Japan
Limited) opened with The Bank of Tokyo-Mitsubishi UFJ Ltd.,
Kawasaki-Ekimae Branch in the name of the Borrower or such other
account opened from time to time with the head office or any branch
of The Bank of Tokyo-Mitsubishi UFJ Ltd. with the approval of the
Agent. |
| 35 |
“ Spread ” means 0.50% per
annum. |
| 36 |
“ Breakage Costs ” mean the amount (to the
extent permitted by any Laws and Ordinances) which is calculated by
applying the difference between the Reinvestment Rate and the
Applicable Rate of Interest, only if the Reinvestment Rate is below
the Applicable Rate of Interest pertaining to the period during
which the date of such repayment or offset occurs, for the actual
number of days in the Remaining Period to the amount of the
principal repaid or offset, where the principal of the Individual
Advance is repaid or offset prior to the Due Date. For the purpose
of this Paragraph, the “ Remaining Period ”
means the period from the day when the repayment or offset occurs
to the Due Date; and the “ Reinvestment Rate ”
means the interest rate that is reasonably determined by the
Lenders on the assumption that the principal so repaid or offset
were to be reinvested in the Tokyo interbank market for the
Remaining Period. The Breakage Costs shall be calculated on the
daily pro-rated basis of 365 days year (including the first day but
excluding the last day) with divisions being made at the end of the
calculation with any fraction of less than one (1) yen being
rounded down. |
| 37 |
“ Total Commitment Amount ” means the total
of the Commitment Amounts of all Lenders. |
| 38 |
“ Total Outstanding Balance ” means the
total principal amount of the Individual Advance Payable Amount
owed to all Lenders. |
| 39 |
“
Increased Costs ” means an increase (reasonably
calculated by the relevant
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Lender) in the lending
costs under this Agreement incurred by the Lenders which results
from the enactment, abolishment or change of any applicable Laws
and Ordinances or the change of interpretation or implementation of
such Laws and Ordinances (excluding, however, any such increase
resulting from the change of the tax rate applicable to the taxable
income of such Lender).
|
| 40 |
“ Lender with Increased Costs ” means the
Lender with respect to which the Increased Costs have
occurred. |
| 41 |
“ Majority Lenders ” means, at the Reference
Time for Decision-Making, one or more Lenders with their Commitment
Ratio in the aggregate of not less than 66.7% (provided, however,
that, after all Lenders’ Commitments are extinguished, in the
case of any outstanding balance in relation to the Advance
hereunder, the percentage shall be calculated based upon the ratio
of the principal amount of the Individual Advance Payable Amount of
respective Lenders to the Total Outstanding Balance as of the
Reference Time for Decision-Making). Notwithstanding the foregoing,
however, in the case of the decision-making of the Majority Lenders
to dispatch the notice stipulated in Article 22(2) in connection
with the acceleration, the percentage shall be not less than 66.7%
of the total principal amount of the Individual Advance Payable
Amount of all consenting Lenders to the Total Outstanding Balance
as of the Reference Time for Decision-Making. For the purpose of
this Sub-paragraph, “ Reference Time for
Decision-Making ” means the time when the Agent receives
the notice stipulated in Article 27(1)(i) in cases where a Lender
determines that an event which requires instructions of the
Majority Lenders has occurred, or the time when the Agent
dispatches the notice stipulated in Article 27(2) in cases where
the Agent determines that the decision-making of the Majority
Lenders is required. |
| 42 |
“
Reimbursable Costs ” means, where the Agent makes a
Reimbursable Payment, the amount calculated by applying the Funding
Rate for the actual number of days in the Reimbursement Period to
the amount of Reimbursable Payments. For the purpose of this
Sub-paragraph, “ Reimbursement Period ” means
the period from the day when the Agent makes a Reimbursable Payment
to the day when the Agent is reimbursed by the relevant Lender or
Lenders or the Borrower for such a Reimbursable Payment; and
Funding Rate ” means the interest rate that is
reasonably determined by the Agent as the interest rate to finance
the amount of Reimbursable Payment for the Reimbursement Period.
The Reimbursable Costs shall be calculated on the
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daily pro-rated basis of
365 days year (including the first day but excluding the last day)
with divisions being made at the end of the calculation with any
fraction of less than one (1) yen being rounded
down.
|
| 43 |
“ Reimbursable Payment ” means the act of
payment by the Agent on behalf of the Borrower to the Lenders the
amount equivalent to the amount to be distributed to the Lenders on
the Due Date in accordance with Article 19(1) through 19(5) prior
to the completion of the payment by the Borrower. The Borrower or
the Lenders shall not raise any objection to the Agent making a
Reimbursable Payment. |
| 44. |
“ Provision of Collateral ” means creating
any security interest, or granting an option for any security
interest, upon an asset of the Borrower in favor of any creditor to
secure any obligation owed by the Borrower or any third party;
except where statutory liens, possessory liens and any other
statutory security interests will be granted over the assets of the
Borrower through the operation of any Laws and
Ordinances. |
| 45 |
“ Interim Accounting Period ” means the
period of six months commencing on (and including) the starting
date of the fiscal year of the Borrower. For the purpose of the
calculation of such Interim Accounting Period specified in this
Sub-paragraph, the provision of Article 1(2) shall not be
applicable. |
| 46 |
“ Qualified Assignee ” shall mean a Lender
or Lenders as at the date hereof, or any Qualified Assignee which
is specified in paragraph 1 of Article 10 of the Cabinet Office
Ordinance concerning Article 2 of the Financial Instruments and
Exchange Law and a debt management and collection company as
provided in paragraph 3 of article 2 of the Special Measure Law
concerning Debt Management and Collection Business. |
| 47 |
“ Applicable Rate of Interest ” means an
annual rate obtained by adding the Spread and the Base
Rate. |
| 48 |
“ Consenting Lenders ” has the meaning as
defined in Article 32(3)(i) hereof. |
| 49 |
“ Effective Date ” means December 28,
2007. |
| 50 |
“ Facility Fee ” means the fee payable by
the Borrower to the Lenders. |
| 51 |
“
Facility Fee Calculation Period ” means in respect of
the respective Lenders the period commencing on (and including) a
Facility Fee Calculation Date and ending on (and excluding) the
next Facility Fee Calculation Date or the Commitment Termination
Date (except the original Commitment Termination Date which should
have been effective if the Commitment for the relevant Lender had
not been extended pursuant to Article 32(3) hereof; hereafter
the
|
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same in this
Sub-paragraph; for the avoidance of doubt, if the Commitment owed
by any Lender or Lenders to the Borrower terminates on a date
before the Commitment Termination Date, a Facility Fee Calculation
Period in respect of such a Lender or Lenders shall no longer exist
following the Facility Fee Calculation Period during which the
Commitment of such a Lenders or Lenders terminates.
|
| 52 |
“ Facility Fee Calculation Date ” means the
Commitment Commencement Date and June 28 and December 28
of each year. |
| 53 |
“ Facility Fee Rate ” means 0.15% per
annum. |
| 54 |
“ Due Date ” means the Maturity Date with
respect to the principal and accrued interest on the Advance; the
date set forth in Article 15(1) with respect to the Facility Fee;
and, the date set forth as the date on which payments shall be made
in accordance with this Agreement, with respect to other
monies. |
| 55 |
“ Disclosure Reports, Etc. ” means annual
securities reports, semiannual reports, quarterly reports,
extraordinary reports, revision reports, and the like. |
| 56 |
“ Laws and Ordinances ” means treaties,
laws, enabling legislations, ordinances, regulations, notices,
judgments, decrees, awards, circulars and policies of relevant
authorities. |
| 57 |
“ Trade Receivables ” means the trade
receivables held by the Borrower against the companies as set forth
in Schedule 2 attached hereto (or such other company or companies
as may be changed by the Borrower with prior notice to each Lender
through the Agent not later than one (1) month prior to such
change and with prior consent of the Agent and all Lenders
thereto. |
| 58 |
“ Trade Receivables Receiving Account ”
means the Trade Receivables Receiving Yen Account in relation to
the Trade Receivables in Yen, or the Trade Receivables Receiving
USD Account in relation to the Trade Receivables in US
dollars. |
| 59 |
“ Trade Receivables Receiving Yen Account ”
means the saving accounts (Account No. 4700417; Account Name:
Spansion Japan Limited, and Account No. 1145293; Account Name:
Spansion Japan Limited) opened with The Bank of Tokyo-Mitsubishi
UFJ Ltd., Kawasaki-Ekimae Branch in the name of the Borrower or
such other account opened from time to time with the head office or
any branch of The Bank of Tokyo-Mitsubishi UFJ Ltd. with the
approval of the Agent. |
| 60 |
“
Trade Receivables Receiving USD Account ” means the
saving account (Account No. 1125519; and Account Name:
Spansion Japan Limited) opened
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with The Bank of
Tokyo-Mitsubishi UFJ Ltd., Kawasaki-Ekimae Branch in the name of
the Borrower or such other account opened from time to time with
the head office or any branch of The Bank of Tokyo-Mitsubishi UFJ
Ltd. with the approval of the Agent.
|
| 61 |
“ Advance ” means the aggregate of the
Individual Advances provided by the respective Lenders pursuant to
a single Request for Borrowing. |
| 62 |
“ Maturity Date ” means the date specified
in Article 5(3). |
| 63 |
“ Unused Commitment Amount ” means, in
respect of respective Individual Advances, the remaining balance of
the Commitment Amount of a Lender after deduction of the Individual
Advance Payable Amount to such a Lender. |
| 64 |
“ Assignee ” means the person or entity to
whom the Individual Loan is assigned in accordance with Article
30(1). |
| 65 |
“ Assignor ” means the person or entity who
assigns the Individual Loan in accordance with Article
30(1). |
| (2) |
For the purpose hereof, the one (1) month period means
such period commencing on (and including) the starting date of
calculation and ending on (and including) the corresponding date in
the next calendar month, and also any period consisting integral
multiples of month shall be calculated in the same way; provided,
however, that if such corresponding date is not a Business Day, the
following Business Day shall be the last day of the period
concerned; provide, further, that if as a result thereof, such last
day falls in the next calendar month, then such Business Day
immediately preceding such corresponding date shall be the last day
of the period concerned. Notwithstanding the foregoing, if the
starting date of calculation is the last Business Day of a calendar
month, the last day of the period concerned shall be the last
Business Day of the calendar month to which the corresponding date
belongs, and if no corresponding date exists in the calendar month
during which such period is to terminate, then the last Business
Day of such calendar month shall be deemed to be the last day of
the period concerned. |
| (3) |
For the purpose hereof, the one (1) week period means the
period commencing on (and including) the starting date of
calculation and ending on (and including) the same day next week as
such starting date; provided, however, that if such last day is not
a Business Day, the last day of the period concerned shall be the
next Business Day of the same next week, irrespective of whether
such next Business Day belongs to the next calendar
month. |
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Article 2 Rights and Obligations of
Lender
| (1) |
A Lender shall provide an advance to the Borrower up to the
Commitment Amount of such Lender. |
| (2) |
Unless otherwise provided in this Agreement, the obligations of
each Lender under this Agreement are several and independent upon
other Lenders. Therefore, no Lender may be released from its
obligations hereunder on account of other Lenders not performing
such obligations, nor is each Lender liable for the non-performance
of the obligations hereunder of other Lenders. |
| (3) |
If any Lender fails to disburse the Individual Advance on the
Proposed Disbursement Date in breach of its Commitment, such Lender
shall indemnify the Borrower for all the damages, losses, expenses
and others incurred by the Borrower due to such breach of the
Commitment immediately upon the request of the Borrower; provided,
however, that the amount of compensation of the Borrower for such
damages, losses, expenses and others incurred shall not exceed the
total amount of the interest and other expenses that the Borrower
has been required or will be required to pay when the Borrower in
fact relies on another borrowing due to the failure of a Lender to
provide its Individual Advance on the Proposed Disbursement Date
after deduction of the interest and other expenses that the
Borrower would have been required to pay if such failed Individual
Advance had been provided on the Proposed Disbursement
Date. |
| (4) |
Unless otherwise provided in this Agreement, each Lender may
exercise its rights under this Agreement separately and
independently from other Lenders. |
| (5) |
The Borrower
may, during the Commitment Period, upon not less than ten
(10) Business Days’ prior notice to the Agent, terminate
or partially reduce the Total Commitment Amount. In the case of
reduction of the Total Commitment Amount, the amount to be so
reduced shall be one hundred million (100,000,000) yen or any
integral multiples thereof and each Lender’s Commitment
Amount shall be reduced on a pro rata basis according to the
Commitment Ratio of such Lender as of that time. The Agent shall,
upon
|
- 13 -
| |
receipt of such a notice
from the Borrower, forthwith notify each Lender of the particulars
thereof. The Borrower may not rescind such notice. The termination
of or the partial reduction of the Total Commitment Amount shall
take effect on the proposed date as designated in such notice.
Notwithstanding the foregoing, if the principal amount of a
Lender’s Individual Advance Payable comes to exceed such a
Lender’s Commitment Amount as the result of the termination
or the reduction of the Total Commitment Amount, the Borrower shall
pay the principal of such Individual Advance Payable on the
relevant Maturity Date.
|
Article 3 Use of
Proceeds
The Borrower shall use the proceeds of
the funds procured from the Advance only for its working capital
and other general corporate purposes. The Agent and each Lender
shall be obliged to neither monitor nor review the way in which
such proceeds are actually used by the Borrower.
Article 4 Conditions Precedent to
Effectiveness of This Agreement
This Agreement shall take effect on the
Effective Date on the condition that the Borrower submits all of
the following documents to the Agent and the Agent and the Lenders
are satisfied with the contents thereof:
| (a) |
a certificate of seal registration of the representative
(issued within three (3) months prior to the Effective Date)
of the Borrower who signs and affixes his seal to this
Agreement; |
| (b) |
a certified copy of the Commercial Register or a certificate of
all items of current registration or all items of historical
registration of the Borrower (issued within three (3) months
prior to the Effective Date); |
| (c) |
a certified copy of the articles of incorporation of the
Borrower; |
| (d) |
submission of the seal or signature of the Borrower in the form
designated by the Agent; and |
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| (e) |
a certified copy (or extract) of the minutes of the meeting of
the board of directors of the Borrower approving its execution of
this Agreement and borrowings under this Agreement or the written
confirmation in the form of Attachment 2 hereto (a document
attested by an authorized officer showing that the Borrower has
completed all the necessary procedures on the part of the Borrower
under the Laws and Ordinances and its intra-company rules and
regulations in connection with the execution of this Agreement and
borrowings under this Agreement). |
Article 5 Request for Disbursement of
Advance
| (1) |
If the Borrower desires for disbursement of Advance, the
Borrower shall request the disbursement of Advance from the Lenders
by submitting the Request for Borrowing to the Agent not later than
noon on not less than three (3) Business Days prior to the
Proposed Disbursement Date. The submission of the Request for
Borrowing is made through the transmission of Request for Borrowing
via facsimile and the Agent’s confirmation via telephone that
it in fact has received such document. |
| (2) |
The amount of Advance to be specified in the Request for
Borrowing shall be at least one hundred million
(100,000,000) yen or any integral multiple thereof; or the
aggregate of the Unused Commitment Amount of the Lenders, and at
the same time, with respect to the Lenders, the Individual Advance
Amount calculated from the amount of such Advance shall not exceed
the Unused Commitment Amount of any Lender (provided that, if there
is an Individual Advance outstanding the Due Date of which will
arrive by (and including) the Proposed Disbursement Date, the
Unused Commitment Amount shall be calculated on the assumption that
the Borrower’s payment obligation in relation to that
Individual Advance will be performed in full) as of the Proposed
Disbursement Date as stated in the Request for Borrowing;
. |
| (3) |
The Base Loan
Period to be stated in the Request for Borrowing shall be for a
period of one (1) week or more but not more than three
(3) months as determined by the Borrower at its discretion. In
the case where the Base Loan Period is any integral number of
month, the Maturity Date shall be the corresponding date falling
within the calendar month after the number of months
|
- 15 -
| |
of such Base Loan Period;
provided, however, that if such corresponding date is not a
Business Day, the Maturity Date shall be the next following
Business Day unless it falls in the next month, in which case the
Maturity Date shall be the immediately preceding Business Day.
Notwithstanding the foregoing, in the event the Proposed
Disbursement Date is the last Business Day of a calendar month or
the day corresponding to the Proposed Disbursement Date does not
exist in the calendar month concerned, the Maturity Date shall be
the last Business Day of the calendar month after the number of
months in the Base Loan Period from the month to which the Proposed
Disbursement Date belong. If the Base Loan Period is a period other
than any integral number of months, the Maturity Date shall be the
last day of the period reckoned by day count from the Proposed
Disbursement Date (inclusive); provided, however, that the Borrower
may not designate such a Base Loan Period ending on a day that is
not a Business Day. The Borrower may not designate the Maturity
Date beyond the Commitment Termination Date; provided, however,
that if the Maturity Date of an Advance for a one (1) week
period goes beyond the Commitment Termination Date effective at the
time of the Request for Borrowing in respect of all Lenders whose
Commitments are valid as of the Proposed Disbursement Date, the
Borrower may apply for an Advance or Advances with Base Loan
Periods that are less than one (1) week such that the Maturity
Date will be the same date as the Commitment Termination Date (in
this case, the Base Loan Period on the Request for Borrowing will
be described as a period of less than one
(1) week).
|
| (4) |
The number of Advances which may be made on the same Proposed
Disbursement Date shall not be more than two (2). |
| (5) |
The indication of intention to apply for a disbursement
pursuant to Article 5(1) shall be effective with respect to the
Lenders upon the Agent’s receiving the Request for Borrowing
pursuant to Article 5(1). After the Agent receives the Request for
Borrowing, the Borrower may not, for any reason, rescind or change
the Request for Borrowing once submitted under Article 5(1) with
respect to any of such Lenders. When the Agent receives a Request
for Borrowing from the Borrower, the Agent shall forward such a
Request for Borrowing so submitted via facsimile to the Lenders on
at least three (3) Business Days prior to the Proposed
Disbursement Date. |
- 16 -
| (6) |
If a Request for Borrowing that the Agent receives pursuant to
this Article 5 is an application for a Refinancing New Advance, the
Agent shall promptly make the offset set forth in the proviso of
Article 7(1), and shall notify all Lenders of the result thereof in
writing when sending a copy of the Request for Borrowing to the
Lenders pursuant to Article 5(5). |
Article 6 Conditions Precedent for
Commitment
During the Commitment Period, each
Lender shall owe its Commitment, subject to satisfaction of all the
following conditions (irrespective of whether or not the notice
pursuant to Article 8(1) has been made) as of such Proposed
Disbursement Date. The satisfaction of the conditions precedent
shall be determined in respect of each Lender and neither the Agent
nor any other Lenders shall be liable for the determination by and
non-disbursement of Individual Advances which should have been
provided by any Lender.
| |
(i) |
The request for disbursement of Advance satisfies the
requirements set forth under Article 5(1) through Article 5(4);
provided that in the event the number of Advances which may be made
on the same Proposed Disbursement Date is plural, the aggregate
amount of Individual Advance Amount calculated from the aggregate
amount of all Advances stated in respective Requests for Borrowing
shall not exceed the Unused Commitment Amount of the Lenders
(provided, further, that if there is an Individual Advance
outstanding whose Due Date will arrive by (and including) the
Proposed Disbursement Date, the Unused Commitment Amount shall be
calculated on the assumption that the Borrower’s payment
obligation in relation to that Individual Advance will be performed
in full) as of such Proposed Disbursement Date. |
| |
(ii) |
The Commitments of all Lenders have not been released pursuant
to Article 9(3). |
| |
(iii) |
All the matters stated in Article 20 are true and
correct. |
- 17 -
| |
(iv) |
The Borrower has not breached any of provisions of this
Agreement, and there is no likelihood that such breach may occur on
or after such Proposed Disbursement Date. |
| |
(v) |
The Commitment of such Lender has not terminated pursuant to
the provisions of this Agreement (including, but not limited to,
Article 10(2) and Article 32 hereof). |
| |
(vi) |
The amount of the Advance stated in the Request for Borrowing
(provided that in the case of multiple Requests for Borrowing on a
single Proposed Disbursement Date the amounts of all such Advances
stated in respective Requests for Borrowing shall be aggregated)
and the aggregated amount of all Advances already provided and
outstanding as of the Proposed Disbursement Date as stated in such
Request for Borrowing (provided that if any Individual Advance is
outstanding whose Due Date arrives by such Proposed Disbursement
Date, the Borrower’s payment obligation with respect to such
an Individual Advance shall be assumed to have been performed in
full) is less than the total amount of the Trade Receivables stated
in the most recent statement at the time of such a Request for
Borrowing (or in respect of the Trade Receivables in US dollars,
the amount denominated in yen at the telegraphic transfer middle
rates of yen against a US dollar published by the Agent on the last
day of the month (or the immediately preceding Business Day, if
such last day is not a Business Day) covered by such a statement of
the Trade Receivables), which has been submitted to the Agent and
the Lenders pursuant to Article 21(1)8 or 21(1)9. |
Article 7 Disbursement of the
Advance
| (1) |
Subject to
the Lenders receiving the request for the Advance in accordance
with Article 5, not making a notice pursuant to Article 8(1) and
the full satisfaction of each provision in Article 6 as of each
Proposed Disbursement Date, each Lender shall remit the Individual
Advance Amount to the Syndicate Account on such Proposed
Disbursement Date (each Lender shall complete such remittance to
the Syndicate Account not later than 11 a.m. on such a
Proposed
|
- 18 -
| |
Disbursement Date). Upon
the Individual Advance Amount being credited to the Syndicate
Account by each Lender, such an Individual Advance shall be deemed
duly provided. In the case of multiple Advances on a single
Proposed Disbursement Date and if notwithstanding that all
conditions precedent set forth in Article 6(i) through
(vi) were satisfied on the Proposed Disbursement Date, the
amount credited to the Syndicate Account on the Proposed
Disbursement Date falls short of the aggregate amount of the
Individual Advance Amounts which should have been provided by a
Lender, the Agent shall determine in its reasonable discretion
which of such Advances has been duly provided. In such a case, as
for the Individual Advances that were not deemed provided, the
Agent shall give a notice immediately to the Lenders and the
Borrower to that effect. Notwithstanding the foregoing, with
respect to the provision of an Individual Advance in the form of a
Refinancing New Advance, the Lender shall offset (a) the
principal amount of the Individual Advance Payable constituting the
Refinanced Existing Advance as of the Proposed Disbursement Date by
(b) the Individual Advance Amount constituting the Refinancing
New Advance, and depending on the results thereof, the following
arrangement shall be made:
|
| |
(i) |
If the Individual Advance Amount constituting the Refinancing
New Advance exceeds the principal of the Individual Advance Payable
constituting the Refinanced Existing Advance: |
If a Lender receives an
application for an Advance in accordance with Article 5 and does
not give a notice pursuant to Article 8(1), and all conditions
precedent set forth in each Sub-paragraph of Article 6 are
satisfied at the time of the Individual Advance, such a Lender
shall credit to the Syndicate Account the full amount of the
difference between the Individual Advance Amount constituting the
Refinancing New Advance and the principal of the Individual Advance
Payable constituting the Refinanced Existing Advance (for this
purpose, each Lender is required to complete the remittance to the
Syndicate Account not later than 11:00 a.m.) on the Proposed
Disbursement Date, and the Individual Advance constituting the
Refinancing New Advance shall be deemed duly provided in full upon
such a remittance; provided, however, that even if the Lender
remits to the Syndicate Account the difference between
the
- 19 -
Individual Advance Amount and
the principal of the Individual Advance Payable, if the interest
accrued to the Refinanced Existing Advance and any such sum other
than the principal of Refinanced Existing Advance which shall be
due and payable to each Lender on such Proposed Disbursement Date
is not paid by the Payment Time, the full Individual Advance Amount
constituting the Refinancing New Advance shall be deemed not yet
provided. The Borrower shall return to the Agent forthwith the
amount remitted to the Syndicate Account on such a Proposed
Disbursement Date.
| |
(ii) |
If the Individual Advance Amount constituting the Refinancing
New Advance is less than or equal to the principal of the
Individual Advance Payable constituting the Refinanced Existing
Advance: |
If a Lender receives an
application for an Advance in accordance with Article 5 and does
not give notice pursuant to Article 8(1), and all conditions
precedent set forth in each Sub-paragraph of Article 6 are
satisfied on the Proposed Disbursement Date, the Individual Advance
in relation to the Refinancing New Advance shall be deemed duly
provided in full upon such remittance; provided, however, that if
the Borrower does not pay the remaining balance of the principal of
Refinanced Existing Advance after deduction of the principal of
Refinancing New Advance, and the interest accrued on the Refinanced
Existing Advance and any amount, excluding the principal of
Refinanced Existing Advance, due and payable to each Lender on the
Proposed Disbursement Date, the full Individual Advance
constituting the Refinancing New Advance shall be deemed not
provided.
| (2) |
Upon disbursement of the Advance pursuant to the preceding
Paragraph (1), the Borrower shall without delay deliver to the
Agent a receipt in the form attached hereto as Attachment 3 quoting
the amount of the Advance and the description of the Individual
Advances or a receipt in other forms as the Agent may designate.
The Agent, upon receipt of such a receipt, shall forthwith forward
copies of such a receipt to each Lender who has provided its
Individual Advance. The Agent shall retain the original of such a
receipt for the account of each such Lender until the entire amount
of the Individual Advance Payable shall be paid off. |
- 20 -
Article 8 Non-Disbursement of the
Individual Advance
| (1) |
If any Lender (the “ Non-Disbursing Lender
”) determines that it will not disburse an Individual Advance
for the reason that all or part of the conditions precedent set
forth in Article 6 has not been satisfied, it shall notify the
Agent, the Borrower and all of the other Lenders thereof together
with the reasons therefor, not later than 5 p.m. on one Business
Day prior to the Proposed Disbursement Date for such an Individual
Advance; provided, however, that if notwithstanding the fulfillment
of all the conditions precedent set forth in Article 6, a
Non-Disbursing Lender failed to provide the Individual Advance by
issuing such notice, such Non-Disbursing Lender shall not be
relieved from its liabilities for the breach of its
Commitment. |
| (2) |
If the Non-Disbursing Lender decided not to disburse pursuant
to Article 8(1) the Individual Advance that otherwise should have
been a Refinancing New Advance, the Borrower shall pay off the
principal of the Individual Advance Payable constituting the
Refinanced Existing Advance, which is owed to the Non-Disbursing
Lender, in accordance with Article 18 (except the proviso thereof),
. |
| (3) |
If any Non-Disbursing Lender or the Agent incurs damages,
losses, expenses and others as a result of such Non-Disbursing
Lender being unable to provide the Individual Advance (including
the case where (i) the Agent submits the Extension Statement
to the Borrower and the Consenting Lender(s) pursuant to Article
32(3)1 hereof, (ii) the Borrower designates a Proposed
Disbursement Date which is a Business Day during the Commitment
Period so extended and (iii) the Commitment is not extended),
the Borrower shall indemnify such Non-Disbursing Lender or the
Agent for such damages, losses, expenses and others; provided,
however, that the preceding sentence shall not apply if the failure
of such Non-Disbursing Lender to provide its Individual Advance
constitutes a breach of such Non-Disbursing Lender’s
Commitment. |
Article 9 Exemption from Liability of
the Lenders
| (1) |
If any Disbursement Suspension Event has occurred on any
Lender, the Agent shall forthwith notify the Borrower, the Agent
and the rest of the Lenders thereof. |
- 21 -
| (2) |
If after such a notification as mentioned in the preceding
Paragraph (1) the Majority Lenders (or the Agent, if the
decision-making of the Majority Lenders is infeasible) determine
that such event has ceased to exist, the Agent shall immediately
notify the Borrower and the Lenders thereof. |
| (3) |
During the Disbursement Suspension Period in respect of any
Lender, the Commitments of all Lenders shall be
released. |
Article 10 Increased
Costs
| (1) |
Any Lender
with Increased Costs may request the Borrower to choose either to
bear the Increased Costs or to terminate the Commitment of such
Lender with Increased Costs without bearing the Increased Costs.
The Borrower shall reply to such a request by giving a notice to
the Agent and all Lenders via the Agent within ten
(10) Business Days of the receipt of such a request. If the
Borrower fails to reply to such a request by the end of such reply
period, the Borrower shall be deemed to have chosen to pay the
Increased Costs. If the Borrower chooses or is deemed to choose to
pay the Increased Costs with respect to a Lender with Increased
Costs, the Borrower shall pay the Increased Costs to such Lender
with Increased Costs within five (5) Business Days of the date
on which such a notice was made or within five (5) Business
Days after the grace period of ten (10) Business Days elapsed,
as the case may be. If the Borrower chooses to terminate the
Commitment of such a Lender with Increased Costs, the Borrower may
terminate the Commitment of such Lender with Increased Costs as of
the date as determined and specified by the Borrower in the notice
without paying the Increased Costs; provided that the termination
date of such a Lender with Increased Costs shall be a day not less
than ten (10) Business Days after the notice is delivered to
the Agent and all Lenders via the Agent (hereinafter in this
Article referred to as the “ Termination Date
“). Notwithstanding the foregoing, if an application for
another Advance pursuant to Article 5 is made during the period
from the date (inclusive) of receipt of such a request from such a
Lender with Increased Costs through the delivery date (inclusive)
of the notice to terminate the Commitment of such a Lender with
Increased Costs, the Borrower may not terminate the Commitment of
such a Lender with Increased Costs until
|
- 22 -
| |
the Proposed Disbursement
Date for such an application for the Advance. If the Borrower
terminates the Commitment of such Lender with Increased Costs
pursuant to this Paragraph (1), the Borrower shall be released from
its obligation to pay any Increased Costs that have already accrued
and shall not be obligated to pay such Increased Costs to such
Lender with Increased Costs.
|
| (2) |
If the Borrower chooses to terminate the Commitment of a Lender
with Increased Costs and sends the notices of such termination to
the Agent and the Lenders, the Commitment of such Lender with
Increased Costs shall terminate as of the Termination Date. In this
case, the Borrower shall pay to such Lender with Increased Costs
all of its obligations (including the total amount of principal of
any Individual Advance with its Due Date falling after the fifth
(5th) Business Day of the Termination Date (hereinafter in
this Paragraph (2) referred to as the “ Termination
Prepayment Date ”), accrued interest on such principal
and the Breakage Costs, but excluding the Increased Costs requested
to pay; hereafter in this Paragraph (2) the same applies) on
the relevant Termination Prepayment Date (or the relevant Due Date
for any such obligations the Due Date of which arrive before such
Termination Prepayment Date) in accordance with Article 18. In
connection with any obligations owed by the Borrower to a Lender
with Increased Costs hereunder, the provisions related to such
obligations shall survive the termination of the Commitment of such
Lender with Increased Costs, unless and until the Borrower fulfills
in full all of its obligations owed to such Lender with Increased
Costs hereunder. |
Article 11 Repayment of
Principal
The Borrower shall repay the principal
amount of the Advance in lump sum on the Maturity Date.
Article 12 Interest
| (1) |
The Borrower shall pay the aggregate amount of interest,
calculated by applying the Applicable Rate of Interest pertaining
to each Loan Period for the actual number of days of such Loan
Period to the outstanding principal amount of the Advance during
such Loan Period, on the Maturity Date in accordance with Article
18. |
- 23 -
| (2) |
As for the calculations of the interest provided in the
preceding Paragraph (1), they shall be made on the daily pro-rated
basis of 365 days year (including the first day but excluding the
last day) with divisions being made at the end of the calculation
with any fraction of less than one (1) yen being rounded
down. |
Article 13 Prepayment
| (1) |
The Borrower may not repay in whole or part the principal of
the Advance prior to the Maturity Date (the “
Prepayment ”); provided, however, that the preceding
sentence shall not apply if the Prepayment is made pursuant to
Article 10, Article 13(4) or Article 32, or if the Borrower,
pursuant to Paragraph 2 and 3 hereof, obtains prior written
approvals of all Lenders who has provided the Advance in respect of
which the Borrower gave notice of its desire to prepay (hereinafter
referred to as the “ Relevant Prepayment Lenders
”) and of the Agent, respectively. |
| (2) |
If the
Borrower wishes to make a Prepayment, it shall give a written
notice to the Agent not later than fifteen (15) Business Days
prior to the date on which it wishes to make such Prepayment (the
“ Proposed Prepayment Date ”) specifying
(a) the Disbursement Date, the Due Date and the principal
amount of the Advance to be prepaid, (b) the principal amount
of the Advance to be prepaid (such amount being the entire
outstanding principal of the Advance or one hundred million
(100,000,000) or any integral multiples thereof. Any part of
Prepayments made by the Borrower hereunder shall be distributed
pro rata among the Relevant Prepayment Lenders in the same
proportion as respective outstanding principal amounts owed to them
to the total outstanding principal amount as of such Due Date.),
(c) that it shall pay off the interest which will accrue on
such prepaid principal through (and including) such Proposed
Prepayment Date (the “ Accrued Interest ”) on
the same day, and (d) the Proposed Prepayment Date. The Agent
shall notify the Relevant Prepayment Lenders of the contents of
such a notice for the Sub-paragraphs (a) through
(d) above in this Paragraph (2) forthwith upon receipt
thereof from the Borrower, and thereafter the respective Relevant
Prepayment Lenders shall notify the Agent by ten (10) Business
Days prior to the Proposed Prepayment Date of whether or not they
approve such Prepayment. If such a notice by any Relevant
Prepayment
|
- 24 -
| |
Lender does not reach the
Agent by ten (10) Business Days prior to the Proposed
Prepayment Date, it shall be deemed that such a Relevant Prepayment
Lender does not approve such a Prepayment. The Agent shall judge
the acceptability of the Prepayment by eight (8) Business Days
prior to the Proposed Prepayment Date and notify the result to the
Borrower and the Relevant Prepayment Lenders.
|
| (3) |
If a Prepayment is approved in accordance with the preceding
Paragraph (2), the respective Relevant Prepayment Lenders shall
notify the Borrower and the Agent of the amount of the Breakage
Costs not later than two (2) Business Days prior to the
Proposed Prepayment Date. The Borrower shall pay the sum of the
principal of the Advance to be prepaid, the Accrued Interest and
the Breakage Costs on the Proposed Prepayment Date in accordance
with Article 18. |
| (4) |
If the amount of the Trade Receivables described on the most
recent statement (or in respect of the Trade Receivables in US
dollars, the amount denominated in yen at the telegraphic transfer
middle rates of yen against a US dollar published by the Agent as
at the last day of the month (or the immediately preceding Business
Day, if such last day falls on a day which is not a Business Day)
covered by such a statement of the Trade Receivables), which has
been submitted to the Agent and the Lenders pursuant to Article
21(1)9, is less than the amount of the Advance disbursed and then
outstanding, the Borrower shall repay the principal of the Advance
equal to or more than the difference in lump sum within ten
(10) Business Days after the date of such Reports (the “
Mandatory Prepayment Date ”) (at least one hundred
million (100,000,000) yen or any integral multiples thereof;
with any fraction of less than one hundred million
(100,000,000) yen being rounded up). The Borrower shall pay
the sum of the principal of the Advance to be prepaid, the Accrued
Interest and the Breakage Costs on the Mandatory Prepayment Date in
accordance with the provisions of Article 18. Any part of
Prepayments made by the Borrower hereunder shall be distributed
pro rata among the Relevant Prepayment Lenders in the same
proportion as respective outstanding principal amounts owed to them
to the total outstanding principal amount as of such Mandatory
Prepayment Date. |
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Article 14 Default
Interest
| (1) |
If the Borrower fails to make payment with respect to its
obligations towards the Lenders or the Agent under this Agreement
on the Due Date, the Borrower shall, at the request of the Agent,
forthwith pay the default interest calculated by multiplying the
amount of the indebtedness not having been paid when due (the
“ Defaulted Indebtedness ” in this Article 14)
at the lawful rate on which all Lenders reasonably agree through
discussions via the Agent and which shall not be more than
14.0% p |
|
