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EXHIBIT 10.45
THE DAI-ICHI KANGYO BANK, LIMITED
NEW YORK BRANCH
Cable Address PHONE:(000)000-0000
"BANKDAIKAN" XXX XXXXX XXXXX XXXXXX, 00XX XXXXX FAX: (000)000-0000
XXX XXXX, X.X. 00000
Xxxx Technology, Inc.
0000 Xxxxxxx 000 Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: X. Xxxx
Chairman and President
Gentlemen:
This loan agreement (the "Loan Agreement") is made effective as
of the 15th day of November, 1996 by and between Xxxx Technology, Inc., a
Delaware corporation ("Xxxx"), and THE DAI-ICHI KANGYO BANK, LIMITED, NEW YORK
BRANCH, and its successors and assigns (the "Bank"), Xxxx and the Bank hereby
agree as follows:
1. ADVANCES
a. Revolving Facility.
Upon the terms and conditions and relying upon
representations and warranties herein set forth, the Bank agrees to make
multiple advances (each an "Advance") to Xxxx in a maximum aggregate amount of
U.S. $25,000,000.00 (the "Facility Commitment"), with effect from November 15,
1996. Within the limits of the Facility Commitment and subject to the terms
and conditions contained herein, Xxxx may borrow, repay and reborrow until the
Maturity Date (as hereafter defined).
b. Note.
Each Advance made pursuant to the Facility
Commitment shall be evidenced by a separate promissory note (each a "Note",
collectively, the "Notes"), which shall be (i) dated the date of the Advance;
(ii) in the principal amount of the Advance; (iii) in substantially the form
attached to this Loan Agreement as Exhibit A, with the blanks appropriately
filled; (iv) payable to the order of the Bank in one (1) installment of
principal in the amount of the Advance on a date no later than June 30, 1997
(the "Maturity Date") and (v) subject to acceleration upon the occurrence of an
event of default (as set forth therein). Each Note shall bear interest on the
unpaid principal amount thereof from time to time outstanding,
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payable on the date indicated in the Note (but in any event no later than the
Maturity Date), at a rate per annum (calculated based on a year of 360 days)
which shall be equal to the lesser of (i) the Bank's Quoted Rate or (ii) the
highest lawful rate of interest permitted under applicable law. For purposes
of this Loan Agreement, the Bank's Quoted Rate means, as of the particular day
on which an inquiry is made by Xxxx, the rate quoted to Xxxx by a responsible
officer of the Bank in New York, New York for such Advance, in accordance
with the borrowing procedure set forth in paragraph 1.c. below.
c. Borrowing Procedure and Funding.
(1) At any time before the Maturity Date, Xxxx may
request an Advance under the Facility Commitment using the following borrowing
procedure:
(a) Xxxx shall telephone the Bank in New
York and ask a responsible officer of the Bank to provide the Bank's Quoted
Rate for the proposed Advance. Xxxx shall indicate at the time of such request
the amount, the term, the borrowing date (which must be a Business Day). To be
considered, such request must be made on or before 11:00 a.m. (New York time)
on the proposed borrowing date. For the purposes of this Loan Agreement, a
"Business Day" shall mean any day on which the Bank is open for business in
New York, New York.
(b) If Xxxx accepts the Bank's Quoted Rate
for such Advance, Xxxx shall complete a Note with the Bank's Quoted Rate, the
amount of the Advance and the due date of the Advance, shall (x) send by
telecopier to the Bank a completed copy of the Note and (y) send by courier the
original of such note for overnight delivery to the Bank in New York. The
sending of the Note by telecopier shall constitute irrevocable notice by Xxxx
to the Bank that it is requesting the Advance on the basis of the terms
contained in such Note.
(2) Upon due receipt by the Bank of the telecopied
form of the Note on or before noon (New York time) on the proposed borrowing
date, properly completed with the Bank's Quoted Rate for the Advance, the amount
of the Advance and the due date of the Advance as provided above, the Bank shall
pay or deliver the proceeds of the Advance into Xxxx' account with the Bank in
New York, New York. In the event any discrepancy between the terms of the
telecopied form of the Note and the original Note as received by the Bank, the
terms in the telecopied form of the Note shall prevail.
(3) Unless an Event of Default (as hereafter
defined) has occurred, the proceeds of the Advance in Xxxx' account with the
Bank shall be available for withdrawal from the account in immediately
available funds upon receipt by the Bank of the telecopied form of the
promissory note, duly completed as aforesaid.
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d. Payments and Prepayments.
(1) Xxxx shall have the right at any time and from time
to time to prepay each Note, in whole or in part, provided that each partial
prepayment shall be in an aggregate principal amount of $1,000,000.00, or
multiples thereof, and if to be applied to a Note, shall be applied to the
principal installments thereof in the inverse order of their due dates.
(2) All payments and prepayments made in accordance with
the provisions of this Loan Agreement or of the Notes in respect of principal or
interest on the Notes under this Loan Agreement shall be made to the Bank at its
office in New York, New York, no later than 2:00 p.m., New York time, in
immediately available funds. All payments (whether of principal, interest,
reimbursements or otherwise) under this Agreement or on the Notes shall be made
by Xxxx without set-off or counterclaim and shall be made free and clear of and
without deduction for any present or future tax, levy, impost or any other
charge, if any, of any nature whatsoever now or hereafter imposed by any taxing
authority.
(3) If any payment shall become due on a Saturday,
Sunday, or public holiday on which the Bank is not open for business, such
payment shall be made on the next preceding day on which the Bank is open for
business.
(4) Xxxx hereby authorizes the Bank, if and to the
extent payment by Xxxx is not made when due hereunder, to charge from time to
time against any balance in Xxxx' account maintained with the Bank any amount so
due.
(5) Xxxx shall pay a default rate on any principal and
interest which is not paid when due in an amount equal to the lesser of (A) the
Bank's Prime Rate, plus two percent (2%) per annum or (B) the highest lawful
rate permitted under applicable law. For the purposes of this provision, the
"Bank's Prime Rate" shall mean the fluctuating rate of interest from time to
time quoted by the Bank in New York as its Prime Rate.
2. CONDITIONS
a. Initial Advance. The obligation of the Bank to make
the initial Advance under the Facility Commitment is subject ot the following
conditions: (1) The representations and warranties contained in this Loan
Agreement shall be true and correct; (2) no Event of Default, or event which
with the passage of time would constitute an Event of Default, shall have
occurred and be continuing; (3) the Bank shall have received the applicable Note
duly executed by Xxxx; (4) the Bank shall have received a Letter of Guaranty
(the "Guaranty") of Fujitsu Limited, a Japanese limited liability company
("Fujitsu") in form acceptable to the Bank; (5) the Bank shall have received
Corporation Resolutions of Xxxx in form acceptable to Bank, and (6) the Bank
shall have received such other documents and certificates relating to the
transactions herein contemplated as the Bank may request. In
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addition, all legal matters incident to the transactions herein contemplated
shall be satisfactory to counsel for the Bank.
b. Subsequent Advances. The obligation of the Bank to
make subsequent Advances hereunder is subject to the following conditions: (1)
The representations and warranties contained in this Loan Agreement shall be
true and correct; (2) no Event of Default, or event which with the passage of
time would constitute an Event of Default, shall have occurred and be
continuing; (3) the Guaranty shall remain in effect; and (4) the Bank shall have
received such other documents and certificates relating to the transactions
herein contemplated as the Bank may request.
3. REPRESENTATIONS AND WARRANTIES.
a. Representations and Warranties of Xxxx.
Xxxx represents and warrants the following: (1) Xxxx is
a corporation duly incorporated, validly existing, and in good standing under
the laws of the State of Delaware and has the corporate power to own its
properties and to carry on its business as now conducted; (2) Xxxx has the
corporate power and authority to make, execute, deliver and carry out the
transactions contemplated in this Loan Agreement and to perform its obligations
hereunder and all such action has been duly authorized by all necessary
corporate proceedings on its part; (3) the Loan Agreement and the Notes have
been duly and validly executed and delivered by Xxxx and constitute valid and
legally binding agreements of Xxxx: (4) all financial information furnished by
Xxxx to the Bank is true and correct and has been prepared in conformity with
generally accepted accounting principles consistently applied in the United
States throughout the period involved and fully and accurately reflects the
financial condition of Xxxx and the results of its operations as at the dates
and for the periods indicated and as of the date of this Loan Agreement;
(5) there is no action or proceeding pending or, to the knowledge of Xxxx,
threatened against Xxxx or before any court, administrative agency or
arbitrator which might have a material adverse effect on Xxxx or its business,
and there is no outstanding judgment, order or decree affecting Xxxx before
or by any administrative or governmental authority; (6) Xxxx is not in default
under or in violation of the provisions of any instrument evidencing any debt or
of any agreement relating thereto or any judgment, order, writ, injunction or
decree of any court or any order, regulation or demand of any administrative
or governmental instrumentality which default or violation might have a material
adverse effect on Xxxx or its business; and (7) neither the consummation of the
transactions contemplated nor fulfillment of and compliance with the respective
terms, conditions and provisions of any material agreement to which Xxxx is a
party will conflict with or result in a breach of any of the terms, conditions
or provisions of, or constitute a default under, or result in any violation
of the registered charter or bylaws of Xxxx, any law or any regulation of any
administrative or governmental instrumentality, any order, writ, injunction or
decree of any court, or the terms, conditions or provisions of any agreement
or instrument to which Xxxx is a party or by which it is bound or to which it is
subject.
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b. Survival Of Representations And Warranties.
All representations and warranties made by Xxxx under this
Loan Agreement shall survive the delivery of the Notes to the Bank and the
making of the Advances hereunder, and no investigation at any time made by or on
behalf of the Bank shall diminish the Bank's rights to rely thereon. All
statements contained in any certificate or other written instrument delivered by
Xxxx or by any person authorized by Xxxx under or pursuant to this Loan
Agreement or in connection with the transactions contemplated hereby shall
constitute representations and warranties hereunder as of the time made by Xxxx.
4. COVENANTS. Xxxx covenants and agrees that until payment in
full of the Notes and the other liabilities of Xxxx hereunder, Xxxx will:
(a) as soon as available, and in any event on or before the
45th day after the close of each of the first three quarterly periods of each
fiscal year of Xxxx, deliver to the Bank the unaudited consolidated and
consolidating financial statement of Xxxx and its subsidiaries as at the close
of such quarterly period and from the beginning of such fiscal year to the end
of such period, such financial statement to be certified by a responsible
officer of Xxxx as having been prepared in accordance with generally accepted
accounting principals consistently applied and as a fair presentation of the
condition of Xxxx and its subsidiaries, and a compliance certificate stating
that there exists no Event of Default or if any such Event of Default exists,
stating that the nature thereof, the period of existence thereof and what action
Xxxx has taken or proposes to take with respect thereto.
(b) as soon as available, and in any event on or before the
120th day after the close of each fiscal year of Xxxx, deliver to the Bank the
annual audited consolidated and consolidating financial statements of Xxxx and
its subsidiaries, such financial statement to be certified by a responsible
officer of Xxxx as having been prepared in accordance with generally accepted
accounting principals consistently applied and as a fair presentation of the
condition of Xxxx and its subsidiaries and a compliance certificate stating that
there exists no Event of Default or if any such Event of Default exists, stating
the nature thereof, the period of existence thereof and what action Xxxx has
taken or proposes to take with respect thereto.
(c) promptly, and in any case within 10 days, after any officer
of Xxxx obtains knowledge of an Event of Default, deliver to the Bank an
officer's certificate specifying the nature of such Event of Default, the period
of existence thereof, and what action Xxxx has taken and proposes to take with
respect thereto.
(d) deliver to the Bank such additional financial or other
information as the Bank may reasonably request from time to time.
(e) permit the Bank to have access to its books of record and
account;
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(f) maintain insurance with financially sound, responsible and
reputable companies in such types and amounts and against such casualties,
risks and contingencies as is customarily carried by owners of similar
businesses and properties;
(g) maintain its corporate existence, comply with all statues
and governmental regulations and pay all taxes, assessments, governmental
charges, claims for labor, supplies, rent and other obligations which if unpaid
might become a lien against the property of Xxxx except liabilities being
contested in good faith;
(h) whenever and as often as the Bank may reasonably request,
promptly execute and deliver all such further instruments and do such other
acts as the Bank may reasonably request to carry out more effectually the
purposes and intent of this Loan Agreement; and
(i) furnish to the Bank, within five business days after any
material report (other than financial statements) or other communication is
sent by Xxxx to its stockholders or filed by Xxxx with the Securities and
Exchange Commission or any successor or analogous governmental authority,
copies of such report or communication and, promptly upon the request of the
Bank, such additional financial or other information concerning the assets,
liabilities, operations, and transactions of Xxxx as the Bank may from time to
time reasonably request.
The Bank acknowledges that Xxxx' financial statements heretofore delivered to
the Bank have been prepared on the basis of Xxxx being a subsidiary of Fujitsu
and not as a stand-alone company and that, accordingly, certain information
necessary for the financial statements of a stand-alone company have not been
and will not be included in Xxxx' financial statements and to that extent
Xxxx' financial statements will not be prepared in accordance with Generally
Accepted Accounting Principles.
5. EVENTS OF DEFAULT; REMEDIES.
a. Events of Default; Remedies.
If any of the following events shall occur (each of which
shall constitute an "Event of Default" under this Loan Agreement):
(1) Xxxx does not pay, repay or prepay any principal of or
interest on any Note when due;
(2) Xxxx does not pay any other obligation or amount
payable under this Loan Agreement or any Note when due;
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(3) Xxxx does not pay principal or interest on any other debt
when due, or the holder of such other debt declares, or may declare, such debt
due prior to its stated maturity because of Xxxx' default thereunder;
(4) any representation or warranty made by Xxxx herein or
otherwise furnished to the Bank in connection with this Loan Agreement shall be
incorrect, false or misleading in any material respect when made;
(5) Xxxx fails to deliver an original Note to the Bank in
accordance with paragraph 1(c) of this Loan Agreement within ten (10) days
following receipt by the Bank of the telecopied form of such Note, or the
original note contains any material variation from the telecopied form of such
Note;
(6) Xxxx violates any convenant, agreement or condition
contained in herein and such violation shall not have been remedied within
thirty (30) days after written notice has been received by Xxxx from the Bank
or the holder of a Note;
(7) Xxxx (i) makes an assignment for the benefit of creditors;
(ii) admits in writing its inability to pay its debts generally as they become
due; (iii) generally fails to pay its debts as they become due; (iv) files a
petition or answer seeking for itself, or consenting to or acquiescing in, any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any applicable law; (v) there is appointed
a receiver, custodian, liquidator, fiscal agent, or trustee of Xxxx or of the
whole or any substantial part of its assets; or (vi) any court enters an order,
judgment or decree approving a petition filed against Xxxx seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any applicable law and either such order,
decree or judgment so filed against it is not dismissed or stayed (unless and
until such stay is no longer in effect) within thirty (30) days of entry
thereof or an order for relief is entered pursuant to any such law;
(8) any order is entered in any proceeding against Xxxx
decreeing the dissolution, liquidation, winding-up or split-up of Xxxx, and
such order remains in effect for thirty (30) days;
(9) Xxxx or any other person claims, or any court finds or
rules, that the Bank does not have a valid claim against Fujitsu under the
Guaranty; or
(10) Fujitsu violates any convenant, agreement or condition
contained in the Guaranty;
THEN, the Bank may declare each Note and all interest accrued and unpaid
thereon, and all other amounts payable under the Notes and this Loan Agreement,
to be forthwith due and payable, whereupon the Notes, all such interest and all
such other amounts, shall become and be forthwith due and payable without
presentment, demand, protest, or further notice of any kind
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(including, without limitation, notice of default, notice of intent to
accelerate and notice of acceleration), all of which are hereby expressly
waived by Xxxx; provided, however, that with respect to any Event of Default
described in subparagraphs (6), (7) or (8) above, the entire unpaid principal
amount of the Notes, all interest accrued and unpaid thereon, and all such
other amounts payable under the Notes and this Loan Agreement, shall
automatically become immediately due and payable, without presentment, demand,
protest, or any notice of any kind (including, without limitation, notice of
default, notice of intent to accelerate and notice of acceleration), all of
which are hereby expressly waived by Xxxx.
b. Other Remedies.
In addition to and cumulative of any rights or remedies
expressly provided for in this Loan Agreement, if any one or more Events of
Default shall have occurred, the Bank may proceed to protect and enforce its
rights hereunder by any appropriate proceedings. The Bank may also proceed
either by the specific performance of any covenant or agreement contained in
this Loan Agreement, the Notes, the Guaranty, or by enforcing the payment of the
Notes or by enforcing any other legal or equitable right provided under this
Loan Agreement or such other documents or otherwise existing under any law in
favor of the holder of the Notes. The Bank shall not, however, be under any
obligation to xxxxxxxx any assets in favor of Xxxx or any other person.
c. Cumulative Rights.
No remedy, right or power conferred upon the Bank is
intended to be exclusive of any other remedy, right or power given hereunder or
now or hereafter existing at law, in equity, or otherwise, and all such
remedies, rights and powers shall be cumulative.
6. OTHER PROVISIONS.
a. No Waiver: Modifications.
No failure or delay on the part of the Bank in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No course of dealing between Xxxx and the Bank shall operate as
a waiver of any right of the Bank. No modification or waiver of any provision of
this Loan Agreement, any Note or the Guaranty nor consent to any departure by
Xxxx therefrom shall in any event be effective unless the same shall be in
writing, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on Xxxx in
any case shall entitle Xxxx to any other or further notice or demand in similar
or other circumstances.
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b. Notices.
All notices and other communications provided for herein
shall be in writing (including telex, facsimile, or cable communication) and
shall be mailed, telecopied, telexed, cabled or delivered addressed to a party
at the address set forth on the first page of this Loan Agreement, or to such
other address as shall be designated by such party in a written notice to the
other party. All such notices and communications shall, when mailed, telecopied,
telexed, transmitted, or cabled, become effective when deposited in the mail,
confirmed by telex answerback, transmitted to the telecopier, or delivered to
the cable company, except that notices and communications to the Bank shall
not be effective until actually received by the Bank.
c. Reimbursement of Expenses.
Any provision hereof to the contrary notwithstanding,
Xxxx agrees to reimburse the Bank for its funding losses and any breakage costs
in connection with Advances made hereunder, as well as the Bank's reasonable
out-of-pocket expenses, including the reasonable fees and expenses of counsel
to the Bank, in connection with transactions contemplated by this Loan Agree-
ment, including its preparation and its enforcement. Xxxx agrees to pay any and
all stamp and other taxes related to this Loan Agreement and the transactions
contemplated hereby, and to save the Bank harmless from any and all liabilities
with respect to or resulting from any delay or omission to pay any such taxes
which may be payable or determined to be payable in connection with the
execution and delivery of this Loan Agreement or any of the Notes. The
obligations of Xxxx under this paragraph shall survive the termination of this
Loan Agreement and the payment of the Notes.
d. Set-Off.
If one or more Events of Default shall occur, the Bank
shall have the right, in addition to all other rights and remedies available to
it, to set off against the unpaid balance of any Note any debt owing to Xxxx by
the Bank, including, without limitation, any funds in any deposit account,
whether general or special in nature, maintained by Xxxx with the Bank, and
nothing in this Loan Agreement shall be deemed a waiver or prohibition of the
Bank's right of banker's lien or set-off.
e. Indemnification.
Xxxx agrees to indemnify, defend, and save harmless the
Bank and its officers, directors, employees, agents, and attorneys, and each of
then (the "Indemnified Parties"), from and against all claims, actions, suits,
and other legal proceedings, damages, costs, interest, charges, taxes (other
than income taxes of the Bank), counsel fees, and other expenses and penalties
which any of the Indemnified Parties may sustain or incur by reason of or
arising out of (i) the making of the Advances hereunder, the execution and
delivery of this Loan Agreement and the Notes and the consummation of the
transactions contemplated thereby
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and the exercise of any of the Bank's right under this Loan Agreement and any
Note; provided, that no Indemnified Party shall be entitled to the benefits of
this paragraph to the extent its own gross negligence or willful misconduct
contributed to its loss; and provided, further, that it is the intention of
Xxxx to indemnify the Indemnified Parties against the consequences of their own
negligence. This Loan Agreement is intended to protect and indemnify the
Indemnified Parties against all risks hereby assumed by Xxxx. The obligations
of Xxxx under this paragraph shall be notwithstanding any other provision of
this Loan Agreement to the contrary and shall survive the repayment of the
Notes and any termination of this Loan Agreement.
f. Interest.
All agreements between Xxxx and the Bank, whether now
existing or hereafter arising and whether written or oral, are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
demand being made on any note or otherwise, shall the amount paid, or agreed to
be paid, to the Bank for the use, forbearance, or detention of the money to be
loaned under this Loan Agreement or otherwise or for the payment or performance
of any covenant or obligation contained herein or in the Notes exceed the
highest lawful rate permitted under applicable law. If, as a result of any
circumstances whatsoever, fulfillment of any provision hereof or of any of such
documents, at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by applicable usury law, then,
ipso facto, the obligation to be fulfilled shall be reduced to the limit of such
validity, and if, from any such circumstance, the Bank shall ever receive
interest or anything which might be deemed interest under applicable law which
would exceed the highest lawful rate of interest permitted under applicable law,
such amount which would be excessive interest shall be applied to the reduction
of the principal amount owing on account of the Notes or the amounts owing on
other obligations of Xxxx to the Bank under any Loan Document and not to the
payment of interest, or if such excessive interest exceeds the unpaid principal
balance of the Notes and the amounts owing on other obligations of Xxxx to the
Bank under any Loan document, as the case may be, such excess shall be refunded
to Xxxx. All sums paid or agreed to be paid to the Bank for the use,
forbearance, or detention of the indebtedness of Xxxx to the Bank shall, to the
extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full term of such indebtedness until payment in full of
the principle thereof (including the period of any renewal or extension
thereof) so that the interest on account of such indebtedness shall not exceed
the highest lawful rate of interest permitted under applicable law. The
terms and provisions of this paragraph shall control and supersede every
other provision of all agreement between Xxxx and the Bank.
g. Governing Law; Jurisdiction; Process Agent.
THIS LOAN AGREEMENT AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE UNITED STATES OF
AMERICA. XXXX HEREBY EXPRESSLY SUBMITS TO THE COMPETENT JURISDICTION OF THE
COURTS OF THE STATE OF NEW
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YORK OR OF THE UNITED STATES DISTRICT COURTS LOCATED IN NEW YORK, NEW YORK, AS
THE BANK MAY ELECT. XXXX IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL
PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH
PROCESS TO XXXX AT ITS ADDRESS SET FORTH IN THIS AGREEMENT. XXXX AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. XXXX FURTHER WAIVES ANY OBJECTION TO VENUE IN SUCH STATE AND
ANY OBJECTION TO ANY ACTION OR PROCEEDING IN SUCH STATE ON THE BASIS OF FORUM
NON CONVENIENS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE BANK TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF THE
BANK TO BRING ANY ACTION OR PROCEEDING AGAINST XXXX OR ITS PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTIONS.
h. Counterparts.
This Agreement may be executed in several counterparts,
and by parties hereto on separate counterparts, and each counterpart, when so
executed and delivered, shall constitute an original instrument, and all such
separate counterparts shall constitute one and the same instrument.
i. Final Agreement.
THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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Please sign both originals of this letter indicating your
agreement and return one original to us.
Very truly yours,
THE DAI-ICHI KANGYO BANK, LIMITED,
NEW YORK BRANCH
By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
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Title: Senior Vice President
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AGREED AND ACKNOWLEDGED:
XXXX TECHNOLOGY, INC.
By: /s/Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chairman
Attest: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
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$ New York, New York,
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................after date for value received, the undersigned promises to pay
to the order of THE DAI-ICHI KANGYO BANK, LIMITED, NEW YORK BRANCH, Xxx Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 _____________ Dollars in
current funds of the United States of America, with interest from the date
hereof at the rate of________per cent per annum.
The makers, endorsers and guarantors of this note hereby waive
presentment for payment, demand, notice of non-payment and dishonor, protest,
and notice of protest, waive trial by jury in any action or proceeding arising
on, out of, under or by reason of this note; consent to any renewals,
extensions and partial pre-payments of this note, or the indebtedness for which
it is given, without notice to them and consent that no such renewals,
extensions or partial payments shall discharge any party
hereto_______liability herein in whole or in part.
In the event of happening of any one or more of the following, to-wit:
(a) the non-payment of any of the Obligations; (b) the death, failure in
business, dissolution or termination of existence of the undersigned; (c) any
petition in bankruptcy, or under any Acts of Congress relating to the relief of
debtors, being commenced for the relief or readjustment of any indebtedness of
the undersigned or any endorser or guarantor of this note, either through
reorganization, composition, extension, or otherwise; (d) the making by the
undersigned or any endorser or guarantor of this note of an assignment for the
benefit of creditors or the taking advantage by any of the same of any
insolvency law; (e) the appointment of a receiver of any property of the
undersigned or any endorser or guarantor of this note; (f) the attachment or
distraint of any funds or other property of the undersigned which may be in, or
come into, the possession of or control of the Bank, or of any third party
acting for the Bank, or of the same becoming subject at any time to any
mandatory order of court or other legal process; (g) any government authority or
any court at the insistence of any government authority shall take possession of
any substantial part of the property of the undersigned or shall assume control
over the affairs or operations of the undersigned or a receiver shall be
appointed or if a writ or order of attachment or garnishment, or order of
execution shall be issued or made against any of the property or assets of the
undersigned or any endorser or guarantor of this note -- then, or at any time
after the happening of any such event, this note and/or any material or other
Obligations which may be taken in renewal or extension of all or any part of the
indebtedness evidenced thereby, shall become due and payable at the option of
the holder, without demand or notice, and, likewise upon the happening of any
such event or at any time thereafter, any or all other Obligations then existing
shall, at the option of the Bank, become due and payable forthwith, without
demand upon or notice to the undersigned. If this note be not paid when due and
if it be placed with an attorney for collection, the makers, endorsers and
guarantors agree to pay all costs of collection, including an attorney's fee of
15% of the amount of this note, which is hereby agreed to be just and reasonable
and which shall be added to the amount under this note and recoverable with the
amount due under this note. The undersigned further agrees that this note shall
be deemed to have been made under and shall be governed by the laws of the State
of New York in all respects, including matters of construction, validity and
performance, and
14
that none of its terms or provisions may be waived, altered, modified or
amended, except if the Bank may consent thereto in writing duly for and
on its behalf. The undersigned, if more than one, shall be jointly and severally
liable hereunder.
PAYABLE AT XXXX TECHNOLOGY
Due on /s/
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By:
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Name:
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Title:
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