Exhibit 10.1
UNCOMMITTED REVOLVING CREDIT
FACILITY AGREEMENT
THIS UNCOMMITTED REVOLVING CREDIT
FACILITY AGREEMENT (this “ Agreement ”) dated as
of December 26, 2005 is made by and between Spansion Japan
Limited (the “ Borrower ”) and SHINKIN CENTRAL
BANK (the “ Lender ”).
RECITALS
A. The Borrower has requested the
Lender to make revolving loans to the Borrower in the aggregate
principal amount of up to ¥3,000,000,000.- at any time
outstanding.
B. The Lender is willing to make
such loans to the Borrower upon the terms and subject to the
conditions set forth in this Agreement.
ACCORDINGLY, the parties hereto
hereby agree as follows:
1. DEFINITIONS; INTERPRETATION
1.1 Definitions . Except as
otherwise expressly provided herein, the following terms shall have
the meanings set forth below:
“ Applicable Interest
Rate ” means the interest rate equal to the Base Rate
plus the Spread.
“ Available Amount
” means ¥3,000,000,000.-
“ Base Loan Term
” means the period to be set forth in the Drawdown
Application as the benchmark for setting the Base Rate.
“ Base Rate ”
means the interest rate for the relevant Base Loan Term according
to the Japanese Yen TIBOR (page 17,097 of the Telerate) at
11:00 A.M. or at the nearest possible time after
11:00 A.M. of the second Business Day prior to the Desired
Drawdown Date; provided , however , that in cases
where the Base Loan Term is not less than one month, and such
interest rate is not published for some reason, this rate shall be
the interest rate (indicated as an annual rate) that is reasonably
decided upon by the Lender as the offered rate applicable for a
drawdown in Yen for the relevant Base Loan Term in the Tokyo
Interbank Market as of 11:00 A.M. of the second Business Day
prior to the Desired Drawdown Date or the nearest time prior
thereto. Further, if such Base Loan Term is less than one month,
this rate shall be the interest rate reasonably decided upon by the
Lender.
“ Borrower Account
” means the bank account opened and notified by the Borrower
to the Lender in writing.
“ Break Funding Cost
” means, in cases where the principal is repaid or set off
before the Due Date of the Individual Loan, and where the
Reinvestment Rate falls below the Applicable Interest Rate for such
Individual Loan, the amount calculated as the principal amount with
respect to which such repayment or set-off was made, multiplied by
(i) the difference between the Reinvestment Rate and the Base
Rate, such difference then divided by 365, and (ii) the actual
number of days of the Remaining Period. “ Remaining
Period ” means the period commencing on the day the
repayment or set-off was made and ending on the Due Date, and the
“ Reinvestment Rate ” means the interest rate
reasonably determined by the Lender as the interest rate to be
applied on the assumption that the prepaid or off-set
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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,
inclusive of first day and exclusive of 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.
“ Business Day ”
means any day other than those that are bank holidays in
Japan.
“ Desired Drawdown Date
” means the Business Day (excluding the Expiration Date)
during the Term that the Borrower designates in the Drawdown
Application as the date on which the Borrower desires to drawdown
an Individual Loan.
“ Drawdown Application
” means an application in the form designated by the Lender
that the Borrower shall submit to the Lender in accordance with
Section 5.1 when the Borrower desires to make a drawdown
pursuant to this Agreement.
“ Drawdown Date ”
means the date of the drawdown of an Individual Loan.
“ Due Date ”
means (i) with respect to the principal and interest in
relation to the Individual Loans, the Due Date as determined in
accordance with Section 5.3; and (ii) with respect to
other amounts, the date set forth as the date on which payments
shall be made in accordance with this Agreement
“ Due Time ”
means, if any Due Dates are provided for herein, 2:00 P.M. of
such Due Date.
“ Effective Date
” means the date that all of the conditions under
Section 4 are fulfilled.
“ Expiration Date
” means earlier of: (i) the first anniversary of the
date first above written or (ii) the date of termination of
this Agreement pursuant to Section 21; provided , in
each case, if any such date is not a Business Day, then the
Expiration Date shall be the preceding Business Day;
provided , further , in each case, the Expiration
Date may be extended pursuant to Section 21.3.
“ Increased Costs
” means the increased portion (the amount reasonably
calculated by the Lender) of lending expenses, in cases where the
Lender’s lending expenses under this Agreement are
substantially increased (excluding any increase caused by a change
in tax rates on the taxable income of the Lender) due to
(i) any enactment or amendment of Laws and Ordinances, or any
change in the interpretation or application thereof, or
(ii) establishment or increase in capital reserves.
“ Individual Loan
” means a loan made by the Lender pursuant to a Drawdown
Application.
“ Individual Loan Money
” means the money lent (or to be lent) by the Lender to the
Borrower as an Individual Loan, and the “ Individual Loan
Amount ” means the amount of the Individual Loan
Money.
“ Laws and Ordinances
” means the 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.
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“ Lender Account
” means the bank account held with the Lender and notified to
the Borrower by the Lender in writing.
“ Loan ” means
the aggregate of the Individual Loans made pursuant to the Drawdown
Applications.
“ Loan Term ”
means the period commencing on the Drawdown Date (inclusive) and
ending on the Maturity Date (inclusive).
“ Maturity Date ”
means the Due Date of the principal in relation to any
Loan.
“ Outstanding Individual
Loan Money ” means the principal, the interest, default
interest, Break Funding Costs and any other payment obligation that
the Borrower owes pursuant to this Agreement with respect to the
Loan, and the “ Outstanding Individual Loan Amount
” means the amount of such Outstanding Individual Loan
Money.
“ Refinanced Loan
” means an Individual Loan that has already been made and the
Due Date of which shall be the Desired Drawdown Date of a
Refinancing Loan.
“ Refinancing Loan
” means an Individual Loan, the Desired Drawdown Date of
which shall be the Due Date of an Individual Loan already
made.
“ Reports ” means
reports such as annual securities reports, semiannual reports,
quarterly reports, extraordinary reports, revision reports, and
group reports and accounts.
“ Spread ” means
0.50% per annum.
“ Subsidiary ”
and “ Affiliate ” shall be as defined under
Article 8 of the Regulation concerning Terminology, Forms and
Method of Preparation of Financial Statements, etc.
“ Taxes and Public
Charges ” means all public taxes or public charges
including income taxes, corporate taxes and other taxes, which are
applicable in Japan.
“ Term ” means
the period commencing on the Effective Date (inclusive) and ending
on the day (inclusive) that this Agreement terminates due to the
occurrence of any of the events set forth in
Section 21.
“ Unused Available
Amount ” means the amount calculated as the Available
Amount less the total principal amount of the Loan
outstanding.
“ Yen ” or
“ ¥ ” means the lawful currency of
Japan.
1.2 Interpretation . Except
as otherwise expressly provided herein: (a) any reference to
Section, Schedule or Exhibit is a reference to a section hereof, or
a schedule or an exhibit hereto, respectively; (b) the words
“hereof,” “herein,” “hereto,”
“hereunder” and the like mean and refer to this
Agreement as a whole and not merely to the specific Section,
subsection or clause in which the respective word appears;
(c) the meaning of defined terms shall be equally applicable
to both the singular and plural forms of the terms defined;
(d) the words “including,” “includes”
and “include” shall be deemed to be followed by the
words “without limitation;” (e) references to
agreements and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications thereto;
(f) references to any Law and Ordinance are to be construed as
including all Laws and Ordinances
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consolidating, amending, supplementing,
interpreting, or replacing the Law and Ordinance referred to; and
(g) Section headings and captions are for convenience of
reference only and shall not affect the construction of this
Agreement.
2. RIGHTS AND OBLIGATIONS OF
LENDER
The Lender may, upon request from
the Borrower, in the Lender’s sole and absolute discretion
upon the terms herein, make one or more Individual Loans to the
Borrower from time to time during the period from the date of this
Agreement up to and the Expiration Date.
3. USE OF PROCEEDS
The Borrower shall use the money
raised by the Loan for working capital purposes.
4. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF
THIS AGREEMENT
This Agreement (other than the
provisions of this Section 4 and Sections 1, 21 and 22,
which shall be effective at the time this Agreement is executed and
delivered by the Borrower and the Lender) shall take effect at such
time as the Borrower shall have submitted all of the following
documents to the Lender, and the Lender is satisfied with the
details thereof:
4.1 the certificate of seal
registration of the representative of the Borrower who signs and
affixes his seal to this Agreement;
4.2 a certified copy of the
certificate of corporate registration; and
4.3 provision of the seal or
signature in the form designated by the Lender.
5. APPLICATION FOR DRAWDOWN
5.1 Timing . If the Borrower
desires to drawdown an Individual Loan pursuant to this Agreement,
the Borrower shall indicate to the Lender its intention to apply
for a drawdown by submitting the Drawdown Application to the Lender
by 11:00 A.M. of the second Business Day prior to the Desired
Drawdown Date.
5.2 Minimum Amount . The
amount of the Individual Loan to be specified in the Drawdown
Application shall be no less than ¥50,000,000 and in
increments of ¥50,000,000 (or if the Unused Available Amount
is less than such amount, then the Unused Available Amount), and at
the same time, the Individual Loan Amount calculated from the total
amount of that Loan shall be an amount that does not exceed the
Unused Available Amount as of the Desired Drawdown Date specified
in the Drawdown Application; provided , however ,
that, if an Individual Loan is outstanding whose Due Date arrives
by the Desired Drawdown Date, the Unused Available Amount shall be
calculated on the assumption that the Borrower’s repayment
obligation in relation to that Individual Loan will be performed in
full
5.3 Base Loan Term . The Base
Loan Term to be specified in the Drawdown Application shall be a
period of one (1), two (2) or three (3) month(s) (or
such other shorter period as may be agreed by the Lender);
provided , however , that only during the period
commencing on the day (inclusive) following the day one month
before the Expiration Date and ending on the Expiration Date
(inclusive), the Base Loan Term may be a period less than one
month, with the Expiration Date set as the Due Date of the
applicable Individual Loan.
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Further, the Due Date shall correspond to the
day after the Base Loan Term ( provided that the initial
date to be calculated into the Base Loan Term shall be the Desired
Drawdown Date), and if such corresponding day falls on a day other
than a Business Day, the following Business Day shall be the Due
Date. If such following Business Day occurs in the next month, the
immediately preceding Business Day shall be the Due Date. If the
Desired Drawdown Date is the last Business Day of the month, or if
the corresponding day of the Desired Drawdown Date does not exist
in the last month of the Base Loan Term, the Due Date shall be the
last Business Day of that month. The Borrower may not designate a
Base Loan Term beyond the Expiration Date.
5.4 Effectiveness of
Application . The indication of intention to apply for a
drawdown pursuant to Section 5.1 shall be effective upon the
Lender’s receiving the Drawdown Application. After the Lender
receives the Drawdown Application, the Borrower may not, for any
reason, cancel or change the application for a drawdown under
Section 5.1.
5.5 Refinancing Loan . If the
Drawdown Application that the Lender receives in accordance with
the procedures provided for under this Section 5 is related to
an application for a Refinancing Loan, the Lender shall promptly
make the offset set forth in Section 6.2.
6. MAKING OF LOANS
6.1 Remittance . If the
Lender receives a Drawdown Application in accordance with
Section 5 and does not give notice pursuant to
Section 7.1, the Lender shall remit the Individual Loan Amount
to the Borrower Account on the Desired Drawdown Date. The
Individual Loan shall be deemed to have been made by that Lender as
of the time of the remittance to the Borrower Account.
6.2 Refinancing .
Notwithstanding the provisions of Section 6.1, if (i) the
Lender receives a Drawdown Application in accordance with
Section 5 for an Individual Loan that will be a Refinancing
Loan and (ii) the Lender does not give a notice pursuant to
Section 7.1, then the Lender shall offset (1) the
principal amount of the Outstanding Individual Loan Money of the
Refinanced Loan as of the Desired Drawdown Date, and (2) the
Individual Loan Amount of the Refinancing Loan, and according to
the results thereof, the drawdown of such Individual Loan shall be
treated as follows:
(a) if the Individual Loan Amount of
the Refinancing Loan exceeds the amount equivalent to the principal
and accrued interests of the Outstanding Individual Loan Money of
the Refinanced Loan, the Lender shall remit the full amount of the
difference between the Individual Loan Amount of the Refinancing
Loan and the amount equivalent to the principal and accrued
interests of the Outstanding Individual Loan Money of the
Refinanced Loan to the Borrower Account on the Desired Drawdown
Date, and the Individual Loan of the Refinancing Loan shall be
deemed to have been made in the full Individual Loan Amount, as of
the actual time of such remittance.
(b) if the Individual Loan Amount of
the Refinancing Loan is less than or equal to the amount equivalent
to the principal and accrued interests of the Outstanding
Individual Loan Money of the Refinanced Loan, the Borrower shall
remit the full amount of the difference between the Individual Loan
Amount of the Refinancing Loan and the amount equivalent to the
principal and accrued interests of the Outstanding Individual Loan
Money of the Refinanced Loan to the Lender on the Desired Drawdown
Date, and the Individual Loan of the Refinancing Loan shall be
deemed to have been made in the full Individual Loan Amount, as of
the actual time of such remittance.
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6.3 Receipt . When the Loan
is made pursuant to Section 6.1 or 6.2, the Borrower shall
send to the Lender a written receipt describing the amount of the
Loan and the specifics of the Individual Loan.
7. REFUSAL TO MAKE LOANS
7.1 Lender’s Decision and
Notice . The Lender shall have a right to refuse to make the
Individual Loan (including the Refinancing Loan) for any reason in
its sole and absolute discretion during the Term of this Agreement.
In the event that the Lender decides not to make the Individual
Loan, the Lender shall notify the Borrower of the decision with the
reason affixed thereto by 11:00 A.M on the first Business Day prior
to the Desired Drawdown Date.
7.2 Refinancing Loan Not Made
. If the Individual Loan that the Lender decided not to make
pursuant to Section 7.1 was to be a Refinancing Loan, the
Borrower shall pay in accordance with the provision of
Section 14 the amount equivalent to the principal of the
applicable Refinanced Loan owed to the Lender.
7.3 Borrower’s
Liability . The Borrower shall be responsible for any damages,
losses or expenses incurred by the Lender as a result of the
failure to make the Individual Loan by the Lender.
8. INCREASED COSTS
8.1 Lender’s Notice of
Request . In the event the Lender experiences Increased Costs,
the Lender may, by giving the Borrower notice in writing at least
five (5) Business Days prior to the next succeeding Loan Term
of any Individual Loan, request the Borrower to elect either to
bear such Increased Costs in any succeeding Loan Term or to
terminate this Agreement. The Borrower shall respond to such
request by giving written notice to the Lender. If a Drawdown
Application pursuant to Section 5 is made within the period
from the day (inclusive) such notice of request reaches the
Borrower and ending on the day (inclusive) the response notice
reaches the Lender, the Lender shall deem such Drawdown Application
as a response by the Borrower that it elects to bear the Increased
Costs, and the Borrower consents without objection to the same.
Notwithstanding anything to the contrary herein, in no event shall
any Increased Costs be applicable to any Individual Loan during the
then applicable Loan Term, but shall only apply to any succeeding
Loan Term.
8.2 Payment . If the Borrower
elects to bear the Increased Costs in response to the
Lender’s request under Section 8.1, the Borrower shall
pay, in accordance with the provision of Section 14, the
Lender the amount of such costs.
8.3 Termination . If the
Borrower elects to terminate this Agreement in response to the
request under Section 8.1, the Borrower shall notify the
Lender in writing at least two (2) 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, and (b) the Desired
Termination Date.
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8.4 Notice of Break Funding
Costs . If there remains an Individual Loan with a Due Date
that falls after the Desired Termination Date, the Lender shall
notify the Borrower of the Break Funding Cost associated therewith
no later than one (1) Business Day prior to the Desired
Termination Date.
8.5 Effect of Termination
Notice . In the event that notice under Section 8.3 is
given, and thereupon this Agreement shall terminate. In such case,
the Borrower shall pay to the Lender on the Desired Termination
Date, in accordance with the provision of Section 14, all
obligations it owes to the Lender pursuant to this Agreement. Until
the Borrower completes the performance of all obligations it owes
to the Lender under this Agreement, the relevant provisions of this
Agreement regarding the performance of such obligations shall
remain in full force and effect.
9. REPAYMENT OF PRINCIPAL
The Borrower shall pay the principal
of each Individual Loan in a lump sum on its Due Date in accordance
with the provision of Section 14.
10. INTEREST
10.1 Calculation and Payment
. Interest shall be payable in arrears. The Borrower shall pay
interest on each Individual Loan to the Lender on the Due Date, in
accordance with the provision of Section 14, in an amount
equal to the principal amount of such Individual Loan of the
Lender, multiplied by (i) the Applicable Interest Rate and
(ii) the actual number of days of the Loan Term, and then
divided by 365.
10.2 Method . The calculation
method for interest under Section 10.1 shall be on a per diem
basis, inclusive of first day and exclusive of 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. PREPAYMENT
11.1 General Rule . The
Borrower may not prepay all or any part of the principal of the
Loan before its Due Date (a “ Prepayment ”);
provided , however , that this shall not apply if
(a) the Prepayment is made pursuant to Section 8 or
Section 21, or (b) if the Borrower, in accordance with
the procedures set forth below, obtains the prior written approval
of the Lender.
11.2 Prepayment Request . If
the Borrower desires to make a Prepa
