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EXHIBIT 10.42
THE DAI-ICHI KANGYO BANK, LIMITED
New York Branch
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
April 24, 1997
Xxxx Technology, Inc.
0000 Xxxxxxx 000 Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Gentlemen:
This Amended and Restated Loan Agreement (the "Loan Agreement") is
dated April 24, 1997 (the "Execution Date") and made effective as of the 21st
day of February, 1997 (the "Effective Date") by and between XXXX Technology,
Inc., a Delaware corporation ("XXXX"), and THE DAI-ICHI KANGYO BANK, Ltd., NEW
YORK BRANCH, and its successors and assigns (the "Bank"). This Loan Agreement is
the First Amendment and Restatement of that certain Letter Loan Agreement made
as of the 15th day of November 1996 between XXXX and the Bank (the "Original
Loan Agreement"). This Loan Agreement is made as an Amendment, Restatement,
Substitution and full replacement of the original Loan Agreement. From and after
the date hereof, this Loan Agreement shall evidence all of the indebtedness
evidenced by the original Loan Agreement and the original Loan Agreement shall
be cancelled and of no further force. XXXX and the Bank hereby agree as follows:
1. ADVANCES.
a. Revolving Facility A
(i) Upon the terms and conditions and relying upon the
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 A Commitment"), with effect from November 15,
1996. Within the limits of the Facility A Commitment and subject to the terms
and conditions contained herein, XXXX may borrow, repay and reborrow until the
Maturity Date (as hereafter defined).
(ii) Upon the terms and conditions and relying upon the
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 B Commitment"), with effect from February 21,
1997. Within the limits of the Facility B Commitment and subject to the terms
and conditions contained herein. XXXX may borrow and reborrow until the Maturity
Date (as hereinafter defined).
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(iii) Subject to the terms and conditions of this Loan
Agreement, the aggregate principal sum which XXXX shall be entitled to borrow
and which the Bank is committed to advance hereunder is US $50,000,000.
b. Note.
Each Advance made pursuant to the Facility
A Commitment and the Facility B 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 hereinafter defined). Each Note shall
bear interest on the unpaid principal amount thereof from time to time
outstanding, 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 A Commitment or the Facility B
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) and whether such
proposed Advance is to be made under the Facility A Commitment or the Facility B
Commitment. 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, and 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.
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In the event that the provisions of any Note shall conflict with the provisions
of this Loan Agreement or if any blanks in the form of note executed by XXXX
shall for any reason be left incompleted, the provisions of this Loan Agreement
(including, without limitation, Sec. 6 (c) of this Loan Agreement) shall be
controlling and resolution of any such conflict or incomplete blank shall be
made by reference to this Loan Agreement.
(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 of 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. In the event the
applicable rate of interest is not completed on the Note, the Quoted Rate given
in connection with such Advance shall for all purposes be the rate of interest
for such Note. A certificate of such Quoted Rate, submitted by the Bank to XXXX,
xxxx be conclusive as to the amount thereof.
(3) Unless an Event of Default (as hereafter defined)
has occurred and is continuing, 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.
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.
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(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.
(6) After any such prepayment, XXXX may request and
subject to the other terms and conditions of this Loan Agreement and provided no
Event of Default shall have occurred and be continuing, the Bank shall permit
XXXX to provide a Substitute Note for the Note upon which such prepayment was
made, which Substitute Note shall reflect the then current principal balance,
whereupon Bank shall return the Original Note to XXXX upon written request from
XXXX. XXXX hereby agrees that the execution and delivery of such Substitute Note
in the manner hereinabove provided shall not be construed, interpreted or
asserted by XXXX to constitute a novation or accord and satisfaction of the
indebtedness evidenced by the Original Note or subject to any other legal or
equitable theory or remedy pursuant to which the entire unpaid balance of
principal and interest on the Original Note might be deemed paid or satisfied
and XXXX agrees that any such legal or equitable claim or assertion shall be
void and unenforceable ab initio.
(e) Increased Costs.
(1) If any change in any applicable law, regulation or treaty or in the
interpretation thereof by any governmental or other authority or entity charged
with the administration thereof: (A) imposes, modifies or deems applicable any
reserve, special deposit or similar requirements against assets held by, or
deposits in or for the account of, or loans by, or any other acquisition of
funds for loans by Bank; or (B) imposes on Bank any other condition regarding
this Loan Agreement or the loans to be made pursuant hereto; or (C) changes the
basis of taxation of payments due to Bank hereunder or under any of the Notes,
this Loan Agreement or any other agreement or instrument provided by XXXX,
Fujitsu or any other person in connection herewith or as security herefor
(otherwise than by a change in taxation of the overall net income of Bank); and
if, in the sole determination of Bank, the result of any of the foregoing is to
increase the cost to Bank of making or maintaining the loans to be made pursuant
hereto or to reduce the amount
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of principal or interest received by Bank, then, upon demand made by Bank to
XXXX, XXXX will pay to Bank from time to time additional amounts specified by
Bank to compensate Bank for such increased cost or reduced amount. Bank will
promptly notify XXXX of any event which will entitle Bank to claim additional
amounts pursuant to this subsection. A certificate as to the increased cost or
expense incurred by Bank as a result of any event mentioned in this subsection,
submitted by Bank to XXXX, xxxx be conclusive as to the amount thereof except in
the case of a manifest error.
(2) In addition to the interest payable at the Default Rate, XXXX will indemnify
Bank and hold Bank harmless against any loss or expense incurred by Bank
(including, without limitation, any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by Bank to fund
or maintain the loans to be made pursuant hereto) as a result of the failure to
pay the outstanding principal amount of such loans at maturity. Bank will
certify to XXXX the amount of, and the basis of determination of, the loss or
expense so incurred (which certification will be conclusive in the absence of
arithmetical error).
(3) If, after the date hereof, any law, regulation or treaty or any change
therein or in the interpretation thereof by any authority or agency charged with
the administration thereof or by any court will make it, in the sole opinion of
Bank, unlawful for Bank to maintain the loans to be made pursuant hereto or to
give effect to its obligations as contemplated hereby, Bank will so notify XXXX,
and the aggregate outstanding principal amount of such loans, together with the
interest accrued thereon and any other amounts payable to Bank under the Notes,
this Loan Agreement or any other agreement or instrument provided by XXXX,
Fujitsu or any other person in connection herewith or as security herefor will
be paid or prepaid as provided in such notice.
(4) XXXX shall indemnify the Bank against and hold the Bank harmless from any
funding loss or breakage costs with respect to (a) XXXX' payment of principal of
loans on a
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day other than the last day of the applicable period for which the Quoted Rate
was given; (b) XXXX' failure to borrow the proceeds of any Advance requested by
XXXX on the date specified by XXXX; (c) XXXX' failure to make any prepayment on
the date specified by XXXX; or (d) any cessation of the Eurodollar interbank
rate relied upon by Bank in issuing the Quoted Rate to apply to any Advance or
any part thereof pursuant to Sections 1(e)(1), (2) and (3) hereof, in each case
whether voluntary or involuntary, any loss, expense, penalty, premium or
liability incurred by Bank (including but not limited to any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by Bank to fund or maintain a loan). This agreement shall survive
the payment of the Notes. A certificate as to any additional amounts payable
pursuant to this subsection as a result of any event mentioned in this
subsection, submitted by Bank to XXXX, xxxx be conclusive as to the amount
thereof except in the case of a manifest error.
2. CONDITIONS
a. Advances. The obligation of the Bank to make additional
Advances under the Facility A Commitment and the Facility B Commitment 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 Bank shall have received
a Note duly executed by XXXX in connection with each Advance under the Facility
A Commitment and the Facility B Commitment; (4) the Bank shall have received in
connection with the Facility A Commitment a Letter of Guaranty (the "Facility A
Guaranty") of Fujitsu Limited, a Japanese limited liability company ("Fujitsu")
in form acceptable to the Bank; (5) the Bank shall have received in connection
with the Facility B Commitment a Letter of Guaranty (the "Facility B Guaranty")
of Fujitsu in form acceptable to Bank; (6) the Bank shall have received from
Fujitsu a letter of Ratification and Acknowledgment pursuant to which Fujitsu
ratifies and acknowledges its obligations under the Facility A Guaranty and the
Facility B Guaranty and that its guaranty of such facilities is in the aggregate
amount of U.S. $50,000,000.00; (7) the Bank shall have received a Certificate of
Corporation Resolutions of XXXX in form acceptable to Bank; and (8) the Bank
shall have received such other documents and certificates relating to the
transactions herein contemplated as the Bank may request. In addition, all legal
matters incident to the transactions herein contemplated shall be satisfactory
to counsel for the Bank. As of the Execution Date, the aggregate amount of
Advances under the Facility A Commitment and the Facility B Commitment is US
$43,500,000.00.
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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 Facility A Guaranty and the Facility B Guaranty shall each 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 is reasonably likely to 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 is
reasonably likely to 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 statutes
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; and
(j) furnish to the Bank written notice of the occurrence of
any Event of Default and the occurrence of any cure of such Event of Default, if
applicable
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 except as provided below 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. At such time as any change occurs
which renders the foregoing qualification inapplicable, such financial
statements shall be delivered in the manner otherwise required herein.
5. EVENTS OF DEFAULT; REMEDIES.
a. Events of Default; Remedies.
If any of the following events shall occur and be
continuing (each of which shall constitute an "Event of Default" under this Loan
Agreement):
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(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;
(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 covenant, 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
Facility A Guaranty or the Facility B Guaranty; or
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(10) Fujitsu violates any covenant, agreement or
condition contained in the Facility A Guaranty or the Facility B 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 (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 Facility A Guaranty or the Facility B
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, Conflicts.
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
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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 Facility A Guaranty or the Facility B 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. Notwithstanding
anything to the contrary contained herein or in a Note, in the event that the
provisions of any Note shall conflict with the provisions of this Loan Agreement
or if any blanks in the form of note executed by XXXX shall for any reason be
left incompleted, the provisions of this Loan Agreement (including, without
limitation, 6(c) of this Loan Agreement) shall be controlling and resolution of
any such conflict or incomplete blank shall be made by reference to this Loan
Agreement.
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 reasonable out-of-pocket expenses,
including the reasonable fees and expenses of counsel to the Bank, in connection
with transactions contemplated by this Loan Agreement, 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 and be
continuing, 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
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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
them (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 and the exercise of any of the Bank's rights
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
14
spread throughout the full term of such indebtedness until payment in full of
the principal 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 agreements 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 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
TO 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 the 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 but 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.
15
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
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
AGREED AND ACKNOWLEDGED:
XXXX TECHNOLOGY, INC.
By: /s/ XXXXXX XXXXXX
Name: Xxxxxx Xxxxxx
Title: Chief Accounting Officer
16
Exhibit "A"
New York, New York, February 21, 1997
........................... 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
25,000,000.00 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 from 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
17
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 that none of its terms or
provisions may be waived, altered, modified or amended, except if the Bank may
consent thereto in writing duly signed for and on its behalf. The undersigned,
if more than one, shall be jointly and severally liable hereunder.
PAYABLE AT XXXX TECHNOLOGY, INC.
Due on 6-30-97 By: /s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Chief Accounting Officer
