EXHIBIT 99 (b)(5)
[Pursuant to Rule 306 of Regulation S-T, on behalf of Ferrotec
Corporation, I hereby represent that the following is a fair and accurate
English translation of the loan agreement originally written in Japanese.
FERROTEC CORPORATION
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: President]
[Stamp]
LOAN AGREEMENT
(Principal/interest - General)
November 19, 1999
To: Kitanihon Bank Borrower: Ferrotech, Inc. [COMPANY SEAL]
5-24-8 Higashi-Ueno, Higashi-ku, Tokyo
Xxxxx Xxxxxxxx, Representative Director
Guarantor: [Name]
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[Address]
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Borrower, in acknowledgement of the provisions set forth herein and the
additional terms and conditions contained in the separate Bank Transaction
Agreement, has borrowed and received the proceeds of the loan described herein
from Kitanihon Bank (hereinafter referred to as "Bank").
SECTION I LOAN TERMS
1. Amount (Y)100,000,000
2. Interest Rate 2.375% annually (calculated with one year comprising 365 days)
Interest formula o Variable rate a. Basic interest rate specified in Article 5.1.....1.875% annually
b. Margin...........................................0.5% annually
/ / Fixed rate As prescribed in Article 5.2, will not change in principle.
3. Repayment o Lump sum
/ / Installment disbursement. Additional agreement attached for
installment disbursement First payment of ___________________ was
received on _____________.
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For Bank Use Only
1 Deliver a copy of this Agreement to the Borrower.
2 When there are multiple guarantors, write "As specified in attachment" on
the Guarantor line, and attach a supplemental guarantor form.
3 When the variable interest method is used, attach a separate Agreement
Concerning Variable Interest except when long-term rate is used.
4 Write the amount of the money loaned in Japanese kanji characters. Do not
correct.
5 When installment disbursement option is selected, attach the Special
Disbursement Agreement.
6 When disbursements are released in installments, issue a receipt for the
disbursed funds.
7 Installment disbursements and repayments are treated as exceptions.
8 In the event that attachments are used, all related parties shall place
their seals on all attachments.
10 Mark the item selected with a o mark.
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4. Final Repayment Date November 30, 2004
5. Loan Purpose ---------
6. Account for Deposit Loan will be deposited into the following bank account in Xxxxxxxx's name.
TOKYO BRANCH Current Account No. 0000000
7. Deferment Term / / No deferment.
(Place o in o Repayment of principal will be deferred until May 30, 2000.
appropriate / /)
8. Repayment of Principal and Interest
(a) Repayment of Principal
Every six months
[CORPORATE SEAL] Ten (10) payments of (Y)10,000,000
shall be made on the last day of the
appropriate month beginning on May 31, 2000
and ending on November 30, 2004.
(b) Repayment of Interest
1 The scheduled payment date for loan interest shall be the
31st day of the month every 3 months.
2 The first loan interest payment required by the Agreement
shall be calculated from the loan date to the interest
payment date. The second and all subsequent interest
payments shall consist of prepaid interest calculated from
the day following the interest payment to the subsequent
interest payment date.
(c) Principal and interest shall be repaid by automatically debiting
the following account held in Xxxxxxxx's name. Such debiting does
not include payments of the financial obligation set forth in the
Agreement where such payment must conform with the provisions set
forth in the Bank Transaction Agreement.
TOKYO BRANCH Current Account No. 0000000
9. Penalty When Xxxxxxxx fails to repay principal or interest in a timely
manner, Borrower shall pay a late fee penalty calculated at an annual rate
of 14% (one year calculated as 366 days).
10. Processing Fees
In the event that Borrower desires to reduce the fixed
interest rate selected in subsection 2 above, Borrower shall
pay a processing fee to the Bank.
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SECTION II. STIPULATIONS
ARTICLE 1 BANK TRANSACTION AGREEMENT
Borrower acknowledges that all of the terms in the Bank Transaction
Agreement apply to the terms contained herein this Agreement.
ARTICLE 2 SPECIAL DISBURSEMENT AGREEMENT
1. In the event of changes in the financial market condition or other
similar happening, Borrower acknowledges that the financing term may
be lengthened, or that any future loan disbursement may be aborted or
stopped.
2. When the loan becomes due and payable according to the provisions of
the Bank Transaction Agreement, this Agreement shall be terminated,
and Borrower shall immediately repay the outstanding loan and forfeit
all interest paid on the loan disbursements.
ARTICLE 3 REPAYMENT
The principal and interest due pursuant to this Agreement shall be paid in
accordance with Section 1.8.
ARTICLE 4 DEBITING XXXXXXXX'S ACCOUNT
1. Borrower shall deposit sufficient funds for repayment of principal and
interest as delineated in Section 1.8 in the bank account specified
for repayment prior to each scheduled repayment date (the business day
following the scheduled payment date if such date falls on a bank
holiday).
2. Bank shall withdraw each principal and interest payment from
Xxxxxxxx's savings account on each scheduled date without using any
withdrawal slip, statement passbook, note, or check. In the event that
Xxxxxxxx's account lacks sufficient funds, Bank shall not debit the
Borrower's account and payment shall be deemed untimely.
3. Borrower shall make interest payments as delineated in Article 4.1 and
4.2 during the loan disbursement and deferment periods.
4. In the event that Xxxxxxxx fails to timely deposit sufficient funds
for payment of principal or interest in accordance with Article 4.1,
Bank shall debit the penalty together with the principal or interest
payment amount in the manner specified in Article 4.2.
ARTICLE 5 INTEREST RATE CHANGE
1. In the event that the loan is based on a variable interest rate, the
interest rate shall be determined as follows:
a) The interest rate specified in Section 1.8 shall serve as the loan
interest rate, however when the long term financing interest rate
(hereinafter referred to as "base rate"), which moves in
correlation with the bank short term prime rate, fluctuates, the
loan interest rate shall increase or decrease in accordance with
the base rate fluctuation.
b) In addition, if the base rate or bank short term prime rate is
ever abolished or any other comparable action is taken, the
interest rate shall be determined according to generally
acceptable practices.
c) The new interest rate shall be applied to the loan beginning from
the day immediately following the next scheduled payment.
2. In the event that loan is based on a fixed interest rate, and such
rate is altered, the interest rate shall be determined as follows:
a) The loan interest rate shall be the rate delineated in Section 1.2
when the fixed interest rate option is selected in the same
section. However, in the event that the financial market
conditions change or some similar event occurs, Bank may change
the interest rate in Section 1.2 to similar degree.
b) When Bank makes such change, Borrower shall be provided with prior
notice.
c) The new interest rate shall be applied to the loan beginning from
the day immediately following the next scheduled payment.
ARTICLE 6 TRANSFER OF RIGHTS
1. Borrower shall consent to any future conveyance by Bank of the
financial rights arising under this Agreement to any other financial
organization through any security instrument, and to any reconveyance
of such rights to Bank. Notice of any conveyance is hereby provided to
Borrower.
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2. In the event that such rights are conveyed under Article 6.1, Bank
shall serve as the agent of the conveyee in relation to the rights
transferred.
Borrower shall tender principal and interest payments in accordance with
the method specified herein or by Bank in the future, and Bank shall grant
such rights to conveyee.
ARTICLE 7 PERSONAL CREDIT RECORDING
1. When Borrower is an individual, Borrower acknowledges that objective
facts concerning the loan such as the loan amount, loan date, and
maturity date arising from this Agreement shall be registered with the
Personal Credit Information Center during the loan term and five years
from the date of final satisfaction of this Agreement, and that the
Center, its directors, and members supplying information to the Center
may use such information for their own transactions.
2. When any of the following incidents occur, Xxxxxxxx acknowledges that
facts concerning each incident will be recorded and used in accordance
with the provisions of Article 7.1 for the period prescribed
hereunder:
(a) Five years for late payment or payment of penalties related to
obligations arising under this Agreement.
(b) Five years from the actual incident for payment to Bank from a
third party such as a Guarantor or insurer, or for Bank
instituted compulsory collection proceedings such as offset or
repossession of collateral.
ARTICLE 8 EXPENSES
Borrower shall bear the following expenses.
1. All expenses related to the creation of this Agreement.
2. Expenses concerning any mortgage or the recording of any deletion or
change.
3. Expenses concerning the inspection, collection, or disposition of
collateral.
4. Expenses concerning the exercise or preservation of rights related to
the Borrower or any Guarantor.
ARTICLE 9 BANK ACCOUNT DEBITING FOR EXPENSES
Borrower acknowledges that Bank may debit Borrower's account for guarantee
fees charged by the Trust and Guarantee Association, other guarantee fees,
recording expenses, filing fees, and all other expenses related to this
Agreement in accordance with the provisions set forth in Article 4 in
order to preserve the rights of Bank arising under this Agreement with
Borrower.
ARTICLE 10 JURISDICTION
In the event that litigation necessarily arises from the transaction
encompassed in this Agreement, it is agreed that those courts having
jurisdiction over the Bank's head office or branch related to this
transaction shall be the court of jurisdiction.
GUARANTEE
1. Guarantor shall jointly guarantee and bear all obligations of Borrower in
relation to Bank arising under this Agreement, and shall tender
performance of this Agreement and the terms of the appended Bank
Transaction Agreement.
2. Guarantor shall not offset any deposits in Borrower's bank or any other
obligations.
3. Guarantor shall not assert any claims against Bank if Bank determines to
substitute or release any collateral.
4. In the event that Guarantor performs its guarantee obligations under this
Agreement, or where obligations remain under the Agreement between Bank
and Borrower or any other guarantee agreement between Bank and Guarantor,
Guarantor shall not use any rights obtained from Bank in their
relationship without Bank's consent. Upon the request of Bank, Guarantor
shall transfer such rights or value to Bank without cost.
5. In the event that Guarantor has guaranteed another transaction between
Bank and Borrower, such guarantee shall not be altered by this Agreement.
Also, in the event that Guarantor has guaranteed another sum, the sum
guaranteed under this Agreement shall be added to such sum. Any other
guarantee in the future by Guarantor concerning a transaction between
Borrower and Bank shall be treated in an identical manner.
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