EXHIBIT 4.5
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|Revenue |
|Stamp | LOAN AGREEMENT
|Y400,000|
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_______________,199_
To: Sanwa Bank Co., Ltd.
Address:
Debtor: (seal)
Address:
Guarantor: (seal)
I/we have loaned from your Bank, the following amount of money in
accordance with the following terms and conditions, upon approval of the
covenants in this Agreement and Agreement on Banking Transaction, which I/we
have submitted separately.
The Guarantor upon approval of the covenants on the other side of this
certificate and (Agreement on Banking Transaction, Certificate of Submission of
Deposit as Security, Certificate of Submission of Securities for Security
(circle one)) which the Debtor has submitted separately.
TERMS AND CONDITIONS OF THE LOAN
Amount: Y1,500,000,000
Purpose:
Loan Maturity: September 30, 1997
Rate of Interest:
3.25% per annum, provided, however, that it shall be calculated
on a prorated daily basis, supposing that one year consists of
365 days.
Method of Payment of the Principal and Interests:
Principal:
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Category of Payment Date of Payment Amount of Payment
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The First payment October 31, 1997 Y12,500,000
Second Payment to the The last day of every month Y12,500,000
payment before the last from the first payment
payment
The Last Payment September 30, 2007 Y12,500,000
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Interest:
On the date of the commencement of the loan, the interest for the period
starting from such date to October 31, 1997 shall be paid. From then on,
the interest shall be payable on the last day of each month, the amount of
which shall be calculated for the period from the date immediately
following such interest payment date to the next interest payment date.
If the interest payment date shall fall under a bank holiday, the interest
payment date shall be the immediately preceding date.
Default Interest:
If any payment of the principal is delayed, default interest at the rate of
14% per annum for the amount overdue shall be paid (provided, however, that
it shall be calculated on a prorated daily basis, supposing that one year
consists of 365 days).
Account for Payment:
The agreed payment of the principal and interest shall be deducted
automatically from the following account in my/our name.
Name of the Account:___________________
Type of Account: Ordinary Deposit Account
Account Number: 10,552
Notified Seal of the Deposit Account: ( seal )
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Special Agreement on Change of the Rate of Interest:
a) The interest rate of the Loan based on this agreement shall be 3.25% per
annum and shall not be changed until the maturity date of the loan.
b) In this Loan, early payment of whole or part of the loan is not allowed.
However, if your Bank approves that it is unavoidable to do so, early
payment may be permitted at the Bank's discretion. I/we shall be liable
for payment of damages prescribed by your Bank.
c) A financial agency fee for Y15,000,000 shall be payable to your Bank on
September 30, 1997.
COVENANTS
Article 1 Automatic Payment of the Principal
We ask the Bank to withdraw the agreed amount of payment from the deposit
account in the indicated name and appropriate them to payment on each agreed
date of payment of principal and interest. For this payment procedure, the
account records, submission of invoice of refund or issuance of current checks
will not be done. If the account in the deposit does not satisfy the agreed
amount of payment, we shall not raise any objections if such insufficient
payment is deemed as no payment.
Article 2 Advance Payment
1. In the event that we intend to pay out the loan prior to the maturity date,
we will notify your Bank prior to such advance payment.
2. In the event that we make any advance payment for part of the loan, we will
make such payment in accordance with the following, as well as the
preceding paragraph.
Amount which I am permitted to make Advance Payment
The total amount of the agreed amount of payment during the period of
the advance payment.
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Payment Dates after Such Advance Payment:
Payment of the principal shall cease for the period equivalent to the
advance payment. Interest for such period shall be paid on each
payment date of interest.
Article 3 Acceleration of Payment
(1) In case any one of the following events occurs to us, any and all
obligations we owe to your Bank shall immediately become due and payable
without any notice or demand, etc. from your Bank; and we shall pay such
obligations forthwith:
1. When we have become unable to pay debts (SHIHARAI TEISHI) or an
application or petition is submitted for bankruptcy, commencement of
composition of creditors (WAGI), commencement of corporate
reorganization proceedings (KAISHA KOSEI), commencement of company
arrangement (KAISHA SEIRI), or commencement of special liquidation
(TOKUBETSU SEISAN).
2. When the Clearing House of Japan in observance of its rules takes
procedures for suspension of our transactions with banks and similar
institutions.
3. When order or notice of provisional attachment, preservative
attachment or attachment is dispatched in respect of our or the
guarantor's deposits and/or any other credits with your Bank.
4. When our whereabouts become unknown to your Bank due to our failure to
notify your Bank of change of our address or any other causes
attributable to us.
(2) In any of the following cases, upon your Bank's demand, any and all
obligations we owe to your Bank shall immediately become due and payable;
and we shall pay them forthwith:
1. When we fail to pay any of our obligations to your Bank when it is
due.
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2. When property offered to your Bank as security is attached or public
auction procedure is commenced in respect of such property.
3. When we violate the stipulations of any transactions with your Bank.
4. When the guarantor falls under any one of the items of the preceding
Paragraph or this Paragraph.
5. In addition to each of the preceding items, when a reasonable cause
necessitates the preservation of your Bank's rights.
Article 4 Deductions in Accounts
(1) In cases in which we must perform any obligations owed to your Bank because
of maturity, acceleration of payment, occurrence of obligation to
repurchase or because your Bank has acquired the right of claiming
compensation from us or for any other causes, your Bank may set off against
any such obligations at any time any of our deposits and/or any other
credits with your Bank irrespective of the due dates of such deposits
and/or other credits.
(2) In cases in which your Bank is able to effect a set off as mentioned in the
preceding Paragraph, without any prior notice or any other procedures, your
Bank may also obtain withdrawals from our deposits in lieu of our doing so,
and may appropriate any such withdrawals to payments of our obligations.
(3) In cases in which your Bank makes any deductions in accounts according to
the provisions of the preceding two Paragraphs, interest on our credits and
damages, etc. shall be calculated up to the date on which the actual
calculation is made by your Bank for the purposes of deductions, and the
rate of interest and tariffs shall be in accordance with those reasonably
fixed by your Bank; and with regard to the foreign exchange rate, the rate
quoted at your Bank at the time when the actual calculation is made by your
Bank shall apply.
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Article 4-2 Deductions in Accounts (Ditto)
(1) We may set off any obligations we owe to your Bank against our deposits
and/or any other credits with our Bank which have become due, even when
such obligations have not yet become due.
(2) With regard to our credits or obligations in foreign currency or in free
yen, we may not, notwithstanding the provisions of the preceding two
Paragraphs, effect a set off until and unless they have become due and
procedures required under foreign exchange laws and regulations have been
completed for them.
(3) In cases in which we effect a set off under the provisions of the preceding
two Paragraphs, a notice of the set off shall be made in writing and we
shall affix our seal impression (or signature) which has previously been
filed with your Bank to the certificate or passbook representing our
deposits and/or other credits with your Bank which we have set off against
our obligations and submit the same to your Bank forthwith.
(4) In cases in which we effect a set off, interest on our credits and
obligations and damages, etc. shall be calculated up to the date on which
our notice of the set off arrives at your Bank, and the rate of interest
and tariffs shall be in accordance with those reasonably fixed by your
Bank; and with regard to the foreign exchange rate, the rate quoted at your
Bank at the time when the actual calculation is made by your Bank for the
purpose of set offs shall apply. If there are any special commission fees
prescribed in relation to early payment, we shall abide by such
prescriptions.
Article 5 Designation of Appropriation
In the event we made payments or your Bank made deductions in accounts as
provided for in Article 4, and if in such cases the amount of such payments made
by us or our deposits and any other credits with your Bank are insufficient to
liquidate all of our obligations, your Bank may appropriate the amount of such
payments or such deposits and other credits to satisfy our
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obligations in such order and in such manner as your Bank deems proper and we
shall raise no objection to such appropriation.
Article 5-2 Designation of Appropriation (Ditto)
(1) In the event we effect a set off in accordance with Article 4-2, and if in
such case our deposits and any other credits with your Bank are
insufficient to liquidate all of our obligations, we may appropriate such
deposits and other credits to satisfy our obligations in such order and in
such manner as we designate.
(2) In the event we fail to designate the order and manner of appropriation
under the preceding Paragraph, your Bank may appropriate our deposits and
other credits with your Bank to satisfy our obligations in such order and
in such manner as your Bank deems proper and we shall raise no objection to
such appropriation.
(3) In the event our designation under Paragraph (1) is likely to interfere
with the preservation of your Bank's rights, your Bank may, upon lodging an
objection thereto without delay, appropriate our deposits and other credits
with your Bank to satisfy our obligations in such order and in such manner
as your Bank designates taking into consideration whether or not the
obligations are secured or guaranteed and if secured or guaranteed, the
extent of coverage of such security or guarantee, the degree of difficulty
of disposition of such security, their due dates, etc.
(4) In case of appropriation by your Bank under the preceding two Paragraphs,
your Bank may designate the order and manner of appropriation on the
assumption that our obligations which are in fact not due have become due.
Article 6 Modification of Interest Rates
[Altered by the Special Agreement on Change of the Interest Rate, SUPRA.]
Article 7 Assumption of Risks, Hold Harmless Clause, etc.
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(1) In cases in which instruments which we have furnished to your Bank are
lost, destroyed, damaged or delayed in arrival due to unavoidable
circumstances such as incidents, calamities, accidents during transit,
etc., we shall pay our obligations as recorded on your Bank's books,
vouchers, etc.; and further, upon your Bank's demand, we shall forthwith
furnish your Bank with substitute Bills and Notes or instruments. We shall
make no claim whatsoever against your Bank with regard to losses and
damages arising in such cases.
(2) In cases in which security which we have furnished to your Bank is lost or
damaged due to unavoidable circumstances, we shall made no claim whatsoever
against your Bank.
(3) In transactions in which your Bank has deemed our seal impression (or
signature) genuine after checking with reasonable care the seal impression
(or signature) on instruments against our seal impression (or specimen
signature) filed with your Bank, we shall bear any losses and damages
arising from forgery, alteration, wrongful use of instruments or seals (or
signatures), and shall be liable in accordance with the terms of such
instruments.
(4) We shall bear the reasonable expenses incurred in exercising or preserving
your Bank's rights against us, or in collecting or disposing of any
security; and we shall also bear any expenses required in the event we
request your Bank to cooperate with us for the preservation of our rights.
Article 8 Changes in Matters Filed
(1) In cases of a change in the matters filed with your Bank such as our seal
(or signature), name, trade name, representative, address, etc., we shall
forthwith notify your Bank thereof in writing.
(2) In case any notice given by your Bank or any documents, etc. dispatched by
your Bank in accordance with the preceding Paragraph, the notice or
documents etc. shall be deemed to have arrived at the time they normally
should have arrived.
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Article 9 Guarantor
1. The Guarantor shall not claim any immunity from obligation even when your
Bank modifies or cancels any security or other guarantee for any reasons at
your Bank's discretion.
2. The Guarantor shall not effect a set off with the deposit or any other
credit we have against your Bank.
3. When the Guarantor performs guarantee obligations, the right acquired by
subrogation shall not be exercised without your Bank's approval while the
transactions are continued between your Bank and us. The Guarantor shall
transfer the rights or its status acquired by the subrogation upon your
Bank's request at no charge.
Article 10 Security
In cases in which a reasonable and probable cause necessitates the
preservation of your Bank's rights, we shall upon demand forthwith furnish to
your Bank such security or additional security, or such guarantors or additional
guarantors, as may be approved by your Bank.
Article 11 Obligation to Prepare Notarial Deed
We and the Guarantor shall, at any time upon your Bank's request, entrust a
notary public to take the necessary procedures to create notarial deeds
including approval of obligation and submission to enforcement based on this
Agreement.
Article 12 Jurisdiction by Agreement
In the event that the institution of a lawsuit in connection with a
transaction covered by this Agreement becomes necessary, we shall agree that the
Court having the jurisdiction in the locale in which the head office or the
branch of your Bank involved is situated shall be the competent Court.
Article 13 Registration in the Personal Credit Information Center
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1. If I am an individual, I agree to having objective facts concerning the
amount of loan, commencement date of the loan, final date of payment etc.,
based on this agreement registered at the Personal Credit Information
Center managed by the bankers' association during the term of the loan and
for five (5) years from complete payment. I also agree to having members
of the Center, members of the other personal credit information
institutions in partnership with the Center use such information for making
decisions for their own transactions.
2. If I am an individual, when the events prescribed in the following items
occur, I agree to having such facts registered and utilized in the same
manner as the preceding paragraph for the term prescribed in each item.
(1) When there was delay in payment and when the amount delayed was paid,
5 years from such delay.
(2) When the Bank received payment from guarantor, surety or any other
third party in connection with this loan, or when the bank collected
payment by exercising its mortgage or by compulsory collection, five
years from occurrence of such fact.
Article 14 Assignment of Obligatory Rights
1. We agree that your Bank may, in the future, assign to other financial
institutions all or part of the obligatory rights based on this agreement.
In this case, your Bank may omit notification of such fact to us. Provided
that, however, even when your Bank's obligatory right is transferred to
another financial institution, we shall be able to make payment for the
entire amount of the loan to your Bank and your Bank shall deliver to the
assignee such payment in accordance with the assigned amount. Also, your
Bank may demand payment for the entire amount of the loan.
2. In connection to the obligatory right your Bank assigned in accordance with
the preceding paragraph, we agree that while the assignee has entrusted
your Bank as agent, your
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Bank may manage and collect obligations based on this loan agreement.
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MEMORANDUM
____________, 199_
TO: The Sanwa Bank, Ltd.
Address:
Debtor: ___________________________
We agree to the following covenants in addition to the covenants indicated
in the Loan Agreement concluded on __________, 199_, concerning our loan of
Y1,500 million from your Bank.
ARTICLE 1 ACCELERATION OF PAYMENT
(1) In case any one of the following events occurs to us, any and all
obligations we owe to your Bank shall immediately become due and payable
without any notice or demand, etc. from your Bank; and we shall pay such
obligations forthwith:
1. When we have become unable to pay debts (SHIHARAI TEISHI) or
application or petition is submitted for bankruptcy, commencement of
composition of creditors (WAGI), commencement of corporate
reorganization proceedings (KAISHA KOSEI), commencement of company
arrangement (KAISHA SEIRI), or commencement of special liquidation
(TOKUBETSU SEISAN).
2. When the Clearing House of Japan in observance of its rules takes
procedures for suspension of our transactions with banks and similar
institutions.
3. When order or notice of provisional attachment, preservative
attachment or attachment is dispatched in respect of our deposits
and/or any other credits with your Bank.
4. When our whereabouts become unknown to your Bank due to our failure to
notify your Bank of change of our address or any other causes
attributable to us.
(2) In any of the following cases, upon your Bank's demand, any and all
obligations we owe to your Bank shall immediately become due and payable;
and we shall pay them forthwith:
1. When we fail to pay any of our obligations to your Bank when it is
due.
2. When property offered to your Bank as security is attached or public
auction procedure is commenced in respect of such property.
3. When we violate the stipulations of any transactions with your Bank.
4. When there is any direct or indirect decrease in XXXX GRAPHIC SYSTEMS
INC.'s holding ratio in us or when there is any such attempt.
5. When the guarantor falls under any one of the items of the preceding
Paragraph or this Paragraph.
6. In addition to each of the preceding items, when a reasonable cause
necessitates the preservation of your Bank's rights.
ARTICLE 2 MAINTENANCE OF CAPITAL, RESTRICTIONS ON DISPOSAL OF PROFITS
We shall obtain your prior approval, if we reduce our paid-in capital or
reserves, or pay dividends or otherwise distribute our profits to parties
outside of our company.
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REVOLVING MORTGAGE AGREEMENT
_________________, 1997
0-0, Xxxxxxxxxx 0-xxxxx,
Xxxx-xx, Xxxxx-xxx
To: The Sanwa Bank
Address:
Mortgagor:
Debtor: (seal)
Address:
Mortgagor: (seal)
ARTICLE 1 ESTABLISHMENT OF REVOLVING MORTGAGE
Upon approval of the covenants of the Agreement on Banking Transactions
submitted separately by the Debtor and the following articles, the Mortgagor
established mortgage on the object owned by the Mortgagor indicated at the end
of this certificate to jointly secure the obligations herein.
1. Maximum amount (KYOKUDO-GAKU): Y
2. Scope of Obligatory Right Secured
1) Any and all obligatory rights arising from Banking Transactions
2) Any and all obligatory rights (against us) arising from notes and
checks your Bank has acquired from third parties.
3. Debtor
Address:
Name:
4. Date of Fixing the Amount of the Secured Credit:
not specified
ARTICLE 2 OBLIGATION OF REGISTER
The Mortgagor shall complete registration procedures for the establishment
of the Revolving Mortgage in the preceding paragraph and submit a certified copy
of the register to your Bank. The same shall be done when any agreement on
modifications or dispositions on the Revolving Mortgage is reached.
ARTICLE 3 MODIFICATION, ETC., OF THE SCOPE OF SECURED OBLIGATORY RIGHTS
When there are request made from your Bank regarding modification of the
scope of secured obligatory rights, increase in the maximum amount, assignment
or partial assignment of the Revolving Mortgage, postponement of the maturity
date, we shall agree without delay. We will not raise any objection when loan
transactions are stopped due to unavoidable reasons for the purpose of
preservation of obligatory rights.
ARTICLE 4 MODIFICATION IN THE JOINT REVOLVING MORTGAGE
In case of a change in the scope of the secured obligatory rights, debtor
or the maximum amount, or assignment of Revolving Mortgage or partial assignment
thereof, we will cooperate in concluding the same agreements for all the
Revolving Mortgage(s) and register such mortgage(s).
ARTICLE 5 OBJECT OF REVOLVING MORTGAGE
1) The Mortgagor shall not change the current figure of the object of the
Revolving Mortgage or establish rights on behalf of third parties or assign
the object of the Revolving Mortgage without a prior consent of your Bank.
2) Regardless of the cause, if the object of the Revolving Mortgage is lost,
damaged or its price has decreased or there is a possibility of such loss,
damage or decrease, the Debtor or the Mortgagor shall immediately notify
your Bank of such circumstances.
3) When credits such as compensation, etc. is receivable for expropriation or
any other cause, the Mortgagor shall establish pledge on such credit with
your Bank as the pledgee.
ARTICLE 6 CASUALTY INSURANCE
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1) During the term of the mortgage, the Mortgagor and the Debtor shall
conclude or renew casualty insurance agreement with an insurance company
approved by your Bank and in the amount your Bank has specified in relation to
the object of the Revolving Mortgage, and establish pledge for your Bank on the
right based on such insurance agreement or add special agreement clause to such
insurance agreement.
2) If other insurance agreements are to be concluded in relation to the object
of the Revolving Mortgage, other than the insurance agreement mentioned in the
preceding paragraph, the Mortgagor shall immediately notify your Bank and take
the same procedures as the preceding paragraph.
3) The Mortgagor shall follow the instructions of your Bank for renewal,
novation, modification of the insurance agreement in the preceding two (2)
paragraphs and disposition of insurance money, etc., after the insured object is
damaged.
4) If your Bank concludes the necessary insurance agreement for preservation
of your credit or concludes or renews insurance agreement on behalf of the
Mortgagor and makes payment of premium, the Mortgagor and the Debtor shall pay
damages at 14% per annum for the period from the day of payment for the premium
and any other fees paid by your Bank in addition to the premium and any other
fees paid by your Bank.
5) If your bank receives insurance money based on the insurance agreements
prescribed in the preceding four paragraphs, your bank may appropriate such
money to the payments of the loan, even before maturity, and irrespective of the
appropriation order under statute and we shall not raise any objection.
ARTICLE 7 LEASE
1) When the term of lease for the land on which the mortgaged building stands
matures, Mortgagor shall immediately take necessary procedures to renew the
land lease agreement, and when there is a change in the owner of the land, the
Mortgagor shall notify your bank immediately and send your Bank prior notice
when the contents of the land lease may be changed.
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2) The Mortgagor shall not take any action which might cause termination or
any other extinguishment or modification of the land lease and when there is a
possibility of termination, extinguishment or modification, the Mortgagor shall
take necessary procedures for preservation of the land lease and without your
Bank's approval, when the building is lost, the Mortgagor will not sublease the
land lease or take any other discretionary measures.
3) When the mortgage building is lost due to fire or any other reason and
obligations remain even after payment with insurance money, etc., if the
Mortgagor is not going to build a new building immediately, the Mortgagor shall
follow your Bank's instructions regarding the disposition of the land lease and
your Bank may appropriate the amount of disposition for the payment of the
Obligation.
ARTICLE 8 DISCRETIONARY DISPOSITION
The object of mortgage shall be disposed of by your Bank in the method,
time, price, etc., generally accepted and not necessarily by public auction and
your Bank may appropriate the remaining amount after deducting fees from the
acquired amount, to payment of the Obligation, irrespective of the legal order
and the Mortgagor or the Debtor shall not raise any objection. If there is any
remaining amount of debt, the Debtor shall immediately pay such amount.
ARTICLE 9 INVESTIGATION ON THE OBJECT OF REVOLVING MORTGAGE
Whenever your Bank requests a report concerning the object of the Revolving
Mortgage or to investigate the object of the Revolving Mortgage, the Mortgagor
and the Debtor shall report immediately or cooperate with your Bank's
investigation.
ARTICLE 10 COSTS
The Mortgagor and the Debtor shall be jointly responsible for costs
incurred for preparation of this Agreement and establishment, register of
termination or modification of the Revolving Mortgage, or investigation of the
object of the Revolving Mortgage or disposition thereof. Any amounts paid by
your Bank shall be reimbursed immediately by the Mortgagor and the Debtor.
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ARTICLE 11 OBLIGATION TO PRESERVE THE OBJECT OF THE REVOLVING MORTGAGE
1) The Mortgagor shall not raise any objection when other security or
guarantee is modified or canceled due to reasons of your Bank.
2) Without approval of your Bank, the Mortgagor shall not exercise the rights
acquired from your bank by subrogation of payment, while banking transactions
between your Bank and the Debtor continues. When requested by your Bank, the
Mortgagor shall assign such rights and/or the priority to your bank, free of
charge.
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Indication of the Object of the Priority Owner
Revolving Mortgage
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MEMORANDUM
________________, 199_
To: The Sanwa Bank, Ltd.
Debtor:
Mortgagor:
As security for the loan the Debtor owes to the Mortgagee, the land
indicated in (a) at the end of this memorandum has been mortgaged for security,
based on the Revolving Mortgage Agreement dated September 30, 1997. However,
there are unregistered buildings on the mortgaged land.
The Mortgagor and the Debtor confirm that the buildings mentioned above
belong to the Mortgagor and confirm and promise the following:
1. The aforementioned (Revolving) Mortgage shall cover such unregistered
buildings.
2. When a third party obtains ownership of the property (a) by auction or
discretionary disposition based on your Bank's mortgage, ownership of the
property (b) will be transferred to such third party.
3. When the Mortgagor register the property (b), the Mortgagor shall
immediately register the Mortgagee's mortgage over such property. At the
Mortgagee's request, the Mortgagor will immediately take the procedures
mentioned above.
4. The Mortgagor not raise any objections if the Mortgagee deems it necessary
and take the registration procedures in the preceding paragraph in lieu of
the Mortgagor.
5. We will remove the buildings indicated in (b), upon your Bank's request to
do so. We will not raise any objections when your bank removes it instead
of us.
The amount of (Revolving) Mortgage Y___________________
(a) Specification of the Land
(b) Specification of the Unregistered Building
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|Revenue |
|Stamp | LOAN AGREEMENT
| |
| |
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September 30, 1997
To: The Industrial Bank of Japan, Ltd.
Address:
Debtor:
Address:
Joint and Several Guarantor:
ARTICLE 1 THE GIST OF THE LOAN
We, upon acknowledgement of the covenants of the Agreement on Banking
Transactions submitted separately, borrowed money based on the following:
1. Amount: Y1,500,000,000
2. Purpose: Operational Funds
3. Loan Maturity: September 28, 2007
4. Method of Payment:
The first date of payment shall be October 31, 1997 and
installments of Y12.5 million shall be payable on the last day of
every following month, and shall complete payment of the
remaining amount by the maturity date. Therefore, the amount of
last payment may differ from the amount of installments paid in
preceding months.
5. Rate of Interest:
3.25% per annum, provided, however, that it shall be calculated
on a prorated daily basis, supposing that one year consists of
365 days.
6. Term and Method of Payment of Interest:
The first date of payment of interest shall be October 31, 1997
and on the last day of every following month. The interest for
the period from the date immediately following an interest
payment date through the next interest payment date (regarding
the first interest payment, for the period from the drawdown date
to the next interest payment date) shall be payable IN ADVANCE on
each such interest payment date.
7. Default Interest:
In the event of default of payment, default interest of 14% per
annum for the amount overdue shall be paid (provided, however,
that it shall be calculated on a prorated daily basis, supposing
that one year consists of 365 days).
8. Others: Y15 million shall be paid on September 30, 1997 as the financial
agency fee in relation to this agreement.
ARTICLE 2 EARLY PAYMENT
1. If, due to unavoidable reasons, we make payment for all or part of the
obligations under this Agreement before the date of maturity, we shall
obtain your prior approval.
2. In a case set forth in the preceding paragraph, if the agreed rate of
interest is greater than the lower of i) the long-term prime rate of your
Bank at the time of such early payment or ii) the re-investment rate set by
your Bank for the period from such early payment to the maturity date
(hereinafter the "Standard Rate"), we shall immediately pay the difference
between the amount calculated based on the agreed rate of interest for the
period starting from the date of the early payment to the maturity date,
and the amount calculated based on the Standard Rate for the same period,
as commission fee for the early payment.
ARTICLE 3 GUARANTEE
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1. The Guarantor shall be responsible for any and all obligations of the
Debtor owed to your Bank, under this Agreement. For the performance of such
obligations, the Guarantor shall abide by the covenants of the Agreement on
Banking Transactions, as well as this Agreement.
2. The Guarantor shall not claim indemnity in cases where your Bank has
released or modified securities or any other guarantees due to reasons of your
own.
3. The Guarantor shall not set off obligations with the deposit which the
Debtor has in your bank or any other counter credits the Debtor may have.
4. When the Guarantor performs its obligations prescribed in Paragraph 1
herein and acquires your Bank's rights by subrogation, the Guarantor shall not
execute such rights without your Bank's approval while there is still banking
transactions effective between your Bank and the Debtor. Also, if your Bank
demands assignment of such rights or status, the Guarantor shall assigns such
rights or status with no charge.
5. If the Guarantor guarantees regarding other transactions between the Debtor
and your Bank, those guarantees shall not be altered by this Guarantee
Agreement. Also, if there is guarantee with a limit, the amount of this
guarantee shall be added to such maximum amount of guarantee. Any future
guarantee for future transactions between the Debtor and your Bank shall be the
same.
ARTICLE 4 ASSIGNMENT OF CREDIT
1. We consent in advance that your Bank may assign all or part of the loan
credit under this Agreement to another financial institution or other entities.
In such case, a notice to be sent from your Bank to us may be omitted, provided,
however, that even when your Bank's credit against us has been assigned to
another financial institution or other entities, we may still make payments for
the entire amount of the loan in accordance with the method prescribed in
Article 1, "The Gist of the Loan" and your Bank shall hand this amount over to
the assignee. Also, your Bank may demand payment for such amount. We confirm
that the covenants of the Agreement on Banking Transactions which we have
submitted to your Bank will still be in force even after assignment of the
credit.
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2. For the credit you have assigned pursuant to the preceding paragraph, while
receiving delegation from the assignee, we agree that your Bank will conduct
management and collection of the credit as an agent of the assignee pursuant to
this Agreement.
ARTICLE 5 FINANCIAL RESULTS
We shall submit with your Bank business report, balance sheet, and profit
and loss statement, etc. for every settlement term.
ARTICLE 6 COSTS AND EXPENSES
We shall be responsible for the costs and expenses incurred for preparation
of this Agreement, any other costs in relation to this Agreement and costs
incurred to your Bank for preservation of your credit.
ARTICLE 7 NOTARIZED DEED
We and the Guarantor shall, upon your request, assign a notary public at
any time for admittance of the credit under this Agreement and take necessary
measures to prepare notarized deeds in which we shall consent to subject to a
compulsory execution.
ARTICLE 8 CAPITAL STRUCTURE & RESTRICTION ON DISPOSITION OF PROFITS
If we reduce our paid-in capital or reserves, or pay dividends or otherwise
distribute our profits to parties outside of our company, we shall obtain your
Bank's prior approval.
ARTICLE 9 ACCELERATION OF PAYMENT
9.1 In case any one of the following events occurs to us, any and all
obligations we owe your Bank shall immediately become due and payable
without any notice or demand, etc. from your Bank; and we shall pay such
obligations forthwith:
1. When we have become unable to pay debts or application or petition is
submitted for bankruptcy, commencement of composition of creditors
(WAGI), commencement of corporate reorganization proceedings (KAISHA
KOSEI),
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commencement of company arrangement (KAISHA SEIRI), or commencement of
special liquidation (TOKUBETSU SEISAN).
2. When the Clearing House of Japan in observance of its rules takes
procedures for suspension of our transactions with banks and similar
institutions.
3. When order or notice of provisional attachment, preservative
attachment or attachment is dispatched in respect of our deposits
and/or any other credits with your Bank.
4. When our whereabouts become unknown to your Bank due to our failure to
notify your Bank of change of our address or any other causes
attributable to us.
(2) In any of the following cases, upon your Bank's demand, any and all
obligations we owe your Bank shall immediately become due and payable; and
we shall pay them forthwith:
1. When we fail to pay any of our obligations to your Bank when it is
due.
2. When property offered to your Bank as security is attached or public
auction procedure is commenced in respect of such property.
3. When we violate the stipulations of any transactions with your Bank.
4. When there is direct or indirect decrease in XXXX GRAPHIC SYSTEMS
INC.'s holding ratio in us or when there is any such attempt.
5. When the guarantor falls under any one of the items of the preceding
Paragraph or this Paragraph.
6. In addition to each of the preceding items, when a reasonable cause
necessitates the preservation of your Bank's rights.
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MORTGAGE AGREEMENT
September 30, 1997
0-0, Xxxxxxxxxx 0-xxxxx
Xxxxxxx-xx, Xxxxx
To: The Industrial Bank of Japan, Ltd.
Address:
Debtor and Mortgagor:
Address:
Mortgagor:
ARTICLE 1 ESTABLISHMENT OF MORTGAGE
1) Upon approval of the covenants of the Agreement on Banking Transactions
submitted separately by the Debtor, the Mortgagor established mortgage on the
object indicated at the end of this certificate in the order indicated at the
end of this certificate to secure any and all obligations for which the Debtor
is responsible for based on the Agreement below (hereinafter the "Obligation").
1. The Name of the Agreement:
Loan Agreement concluded on September 30, 1997
2. Amount: Y1,500 million
3. Rate of Interest:
3.25% per annum. (calculated on a prorated daily basis, supposing that
one year consists of 365 days)
4. Default Interest:
14% per annum. (calculated on a prorated daily basis, supposing that
one year consists of 365 days)
2) The Mortgagor represents and warrants that there are no rights or facts
which might interfere with the execution of this mortgage.
ARTICLE 2 OBLIGATION OF REGISTER
The Mortgagor and the Debtor shall, in compliance with your instructions,
complete registration procedures for the establishment of mortgage in the
preceding paragraph and submit a certified copy of the register to your Bank.
The same shall be done when any agreement on modifications or dispositions on
the mortgage reached.
ARTICLE 3 ADDITION TO THE MORTGAGE OR PROVIDING SUBSTITUTE MORTGAGE
1) When the object of mortgage is altered, damaged, lost or any other
modification occurs or when the value of the mortgage decreased, irrespective of
the reason for such modifications, the Mortgagor and the Debtor shall notify
your Bank immediately.
2) In the case of the preceding paragraph, the Mortgagor and the Debtor shall
submit additional or substitute mortgage upon your request or give surety or
make payment for all or part of this Obligation in accordance with your
instructions.
ARTICLE 4 ASSIGNMENT OR LEASE OF OBJECT OF MORTGAGE OR PROHIBITION OF
PROVIDING MORTGAGE, ETC.
1) Mortgagor will not assign, lease or establish mortgage on the object of
mortgage (includes leasehold of the land on which the mortgaged building stands,
the same shall apply hereafter) without your Bank's approval, and will not do
anything to cause you damage such as modifying the current state, etc.
2) When credits such as compensation, etc. are receivable for expropriation or
any other cause, the Mortgagor and the Debtor shall notify your Bank immediately
without delay and take procedures necessary such as establishing pledge on such
credit to enable your Bank to receive these amounts directly.
3) When your Bank has received compensation, etc. in accordance with the
preceding paragraph, your Bank may appropriate these amounts to payment of the
credit, even before maturity and irrespective of the order of allocation under
any statute.
ARTICLE 5 CASUALTY INSURANCE
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1) During the term of the mortgage, the Mortgagor and the Debtor shall
conclude or renew a casualty insurance agreement with an insurance company
approved by your Bank and in the amount your Bank has specified in relation to
the object of the mortgage, and in accordance with your Bank's instructions,
establish pledge for your Bank on the right based on such insurance agreement or
add special agreement clause to such insurance agreement.
2) If other insurance agreements are to be concluded in relation to the object
of mortgage, other than the insurance agreement mentioned in the preceding
paragraph, the Mortgagor and the Debtor shall, upon obtaining your prior
approval, take the same procedures as the preceding paragraph.
3) The Mortgagor and the Debtor shall follow the instructions of your Bank for
renewal, novation, modification of the insurance agreement in the preceding two
(2) paragraphs and disposition of insurance money, etc., after damage to the
insured object.
4) If your Bank concludes the necessary insurance agreement for preservation
of your credit or concludes or renews insurance agreement on behalf of the
Mortgagor and makes payment of premium, the Mortgagor and the Debtor shall pay
damages at 14% per annum (provided, however, it is calculated on a prorated
daily basis, supposing that one year consists of 365 days) for the period from
the date of payment for the premium and any other fees paid by your Bank.
5) If your bank receives insurance money based on the insurance agreements
prescribed in the preceding four (4) paragraphs, your bank may appropriate such
money to payment of the Obligation, even before maturity, and irrespective of
the statutory order of allocation.
ARTICLE 6 LEASEHOLD OF LAND
1) When the term of lease for the land which the mortgaged building is built
on matures, Mortgagor shall take the necessary procedures to renew the land
lease agreement, except for cases of Article 22, Article 23 and Article 24 of
the Law on Lease of Land and Buildings. When there is any change in the owner
of the land, the Mortgagor shall notify your bank immediately. The Mortgagor
- 3 -
shall provide the Bank with a prior notice when the type or contents of the land
lease is changed.
2) The Mortgagor shall not take any action which might cause termination or
any other extinguishment or modification of the land lease and when there is a
possibility of termination, extinguishment or modification, the Mortgagor shall
take necessary procedures for preservation of the land lease. Even if the
building is demolished, unless your Bank approves, the Mortgagor will not
sublease the land leasehold or take any other discretionary measures.
3) When the mortgaged building is lost due to fire or any other reason, and a
new building is to be built, the Mortgagor shall immediately put up a notice
prescribed in Article 10, Paragraph 2 of the Law on Lease of Land and Buildings
and obtain approval of the land owner without delay to build a building and
establish the same mortgage with the same order as this mortgage. If the
building is not built immediately, and obligations remain even after payment
with insurance money, etc., the Mortgagor shall follow your Bank's instructions
regarding the disposition of the land lease and your Bank may appropriate the
amount of disposition for the payment of the Obligation.
ARTICLE 7 DISCRETIONARY DISPOSITION
The object of the mortgage shall be disposed of by your Bank in the method,
time, price, etc., generally accepted and not necessarily by a public auction
and remaining amount after deducting fees from the acquired amount, irrespective
of the legal order, your Bank may appropriate such money to payment of the
Obligation. If there is remaining Obligation, the debtor shall immediately pay
such amount.
ARTICLE 8 INVESTIGATION IN THE OBJECT OF THE MORTGAGE
Whenever your Bank requests investigation in the object of the mortgage or
submission of a report concerning the object of the mortgage, the Mortgagor and
the Debtor shall accept such request and cooperate with your Bank's
investigation.
ARTICLE 9 FEES
The Mortgagor and the Debtor shall be jointly responsible for fees incurred
for preparation of this Agreement and establishment, release and register of
modification or investigation of the
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mortgage or disposition thereof and any other fees necessary for preservation of
the rights based on this Agreement and any amounts paid by your Bank shall be
immediately paid by the Mortgagor and the Debtor.
ARTICLE 10 OBLIGATION TO PRESERVE SECURITY
1) The Mortgagor will not claim indemnification when other security or
guarantee is modified or canceled due to reasons of your Bank.
2) Without approval of your Bank, the Mortgagor shall not exercise the rights
acquired from your bank by subrogation of payment, while banking transactions
between your Bank and the Debtor is in effect. When requested by your Bank, the
Mortgagor shall assign such rights and order to your bank, free of charge.
MEMORANDUM
September 30, 1997
To: The Industrial Bank of Japan, Ltd.
Address:
Debtor:
Address:
Surety:
Address:
Surety:
We promise that we will take procedures to make the order of all of the
mortgage below established on the object indicated in Article 1 of the Mortgage
Agreement dated September 30, 1997 to be the same.
We submit this memorandum signed with the joint and several guarantor for
confirmation.
MORTGAGEE AGREEMENT ON MAXIMUM AMOUNT OR
ESTABLISHMENT OF AMOUNT OF CREDIT
MORTGAGE
The Sanwa Bank, Ltd. Revolving Mortgage Y1,500,000,000
Agreement
The Industrial Bank Revolving Mortgage Y1,500,000,000
of Japan, Ltd. Agreement
MEMORANDUM ON MERGER
To: The Industrial Bank of Japan, Ltd.
September 30, 1997
Xxxx:
REVOLVING MORTGAGE AGREEMENT
September 30, 1997
0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx
To: The Industrial Bank of Japan, Ltd.
Address:
Mortgagor:
Debtor: (seal)
Address:
Mortgagor: (seal)
ARTICLE 1 ESTABLISHMENT OF REVOLVING MORTGAGE
1. Upon approval of the covenants of the Agreement on Banking Transactions
submitted separately by the Debtor, the Mortgagor established mortgage on
the object owned by the Mortgagor indicated at the end of this certificate
to jointly secure the obligations herein.
2. The Mortgagor guarantees that there are no rights or facts which may
interfere with the exercise of this Revolving Mortgage on the object of
Revolving Mortgage.
(1) Maximum amount (KYOKUDO-GAKU): Y1,500,000,000
(2) Scope of Obligatory Right Secured
1 Any and all obligatory rights arising from Banking Transactions
2 Any and all obligatory rights (against us) arising from notes and
checks your Bank has acquired from third parties.
(3) Debtor: As indicated above.
(5) Date of Fixing the Amount of the Secured Credit:
not specified
ARTICLE 2 OBLIGATION OF REGISTER
In accordance to your Bank's instructions, the Mortgagor and the Debtor
shall complete registration procedures for the establishment of Revolving
Mortgage in the preceding paragraph and submit a certified copy of the register
to your Bank. The same shall be done when any agreement on modifications or
dispositions on Revolving Mortgage is reached.
ARTICLE 3 MODIFICATION, ETC., OF THE SCOPE OF SECURED OBLIGATORY RIGHTS
When there are request made from your Bank regarding modification of the
scope of secured obligatory rights, increase in the maximum amount, assignment
or partial assignment of Revolving Mortgage, postponement of the maturity date,
we shall agree without delay.
ARTICLE 4 ADDITION TO THE MORTGAGE OR PROVIDING SUBSTITUTE MORTGAGE
1) When the object of Revolving Mortgage is altered, damaged, lost or any
other modification occurs or when the value of the mortgage decreased,
irrespective of the reason for such modifications, the Mortgagor and the Debtor
shall notify your Bank immediately.
2) In the case of the preceding paragraph, the Mortgagor and the Debtor shall
submit additional or substitute mortgage upon your request or give surety or
make payment for all or part of this Obligation in accordance with your
instructions.
ARTICLE 5 MODIFICATION IN THE JOINT REVOLVING MORTGAGE
In case of a change in the scope of the secured obligatory rights, debtor
or the maximum amount, or assignment of Revolving Mortgage or partial assignment
thereof, the Mortgagor will cooperate in concluding the same agreements for all
Revolving Mortgage(s) and register such mortgage(s).
- 3 -
ARTICLE 6 ASSIGNMENT OR LEASE OF OBJECT OF MORTGAGE OR PROHIBITION OF
PROVIDING MORTGAGE, ETC.
1) Mortgagor will not assign, lease or establish mortgage on the object of
Revolving Mortgage (includes leasehold of the land on which the mortgaged
building stands, the same shall apply hereafter) without your Bank's approval,
and will not do anything to cause you damage such as modifying the current
state, etc.
2) When credits such as compensation, etc. are receivable for expropriation or
any other cause, the Mortgagor and the Debtor shall notify your Bank immediately
without delay and take procedures necessary such as establishing pledge on such
credit to enable your Bank to receive these amounts directly.
3) When your Bank has received compensation, etc. in accordance with the
preceding paragraph, your Bank may appropriate these amounts to payment of the
credit, even before maturity and irrespective of the order of allocation under
any statute.
ARTICLE 7 CASUALTY INSURANCE
1) During the term of the mortgage, the Mortgagor and the Debtor shall
conclude or renew casualty insurance agreement with an insurance company
approved by your Bank and in the amount your Bank has specified in relation to
the object of Revolving Mortgage, and, in accordance with your instructions,
establish pledge for your Bank on the right based on such insurance agreement or
add special agreement clause to such insurance agreement.
2) If other insurance agreements are to be concluded in relation to the object
of Revolving Mortgage, other than the insurance agreement mentioned in the
preceding paragraph, the Mortgagor and the Debtor shall obtain prior approval
from your Bank and take the same procedures as the preceding paragraph.
3) The Mortgagor shall follow the instructions of your Bank for renewal,
novation, modification of the insurance agreement in the preceding two (2)
paragraphs and disposition of insurance money, etc., after the insured object is
damaged.
- 4 -
4) If your Bank concludes the necessary insurance agreement for preservation
of your credit or concludes or renews insurance agreement on behalf of the
Mortgagor and makes payment of premium, the Mortgagor and the Debtor shall pay
damages at 14% per annum (supposing that one year consists of 365 days) from the
day of payment of the premium and any other fees paid by your Bank in addition
to the premium and any other fees paid by your Bank.
5) If your bank receives insurance money based on the insurance agreements
prescribed in the preceding four paragraphs, your bank may appropriate such
money to the payments of the loan, even before maturity, and irrespective of the
appropriation order under statute.
ARTICLE 8 LEASE
1) When the term of lease for the land which the mortgaged building is built
on matures, Mortgagor shall take the necessary procedures to renew the land
lease agreement, except for cases of Article 22, Article 23 and Article 24 of
the Law on Lease of Land and Buildings. When there is any change in the owner
of the land, the Mortgagor shall notify your bank immediately. The Mortgagor
shall provide the Bank with a prior notice when the type or contents of the land
lease is changed.
2) The Mortgagor shall not take any action which might cause termination or
any other extinguishment or modification of the land lease and when there is a
possibility of termination, extinguishment or modification, the Mortgagor shall
take necessary procedures for preservation of the land lease and without your
Bank's approval, when the building is lost, the Mortgagor will not sublease the
land lease or take any other discretionary measures.
3) When the mortgaged building is lost due to fire or any other reason, and a
new building is to be built, the Mortgagor shall immediately put up a notice
prescribed in Article 10, Paragraph 2 of the Law on Lease of Land and Buildings
and obtain approval of the land owner without delay to build a building and
establish the same Revolving Mortgage with the same order as this Revolving
Mortgage. If the building is not built immediately, and obligations remain even
after payment with insurance money, etc., the Mortgagor shall follow your Bank's
instructions regarding the
- 5 -
disposition of the land lease and your Bank may appropriate the amount of
disposition for the payment of the Obligation.
ARTICLE 9 DISCRETIONARY DISPOSITION
The object of Revolving Mortgage shall be disposed of by your Bank in the
method, time, price, etc., generally accepted and not necessarily by public
auction and your Bank may appropriate the remaining amount after deducting fees
from the acquired amount, to payment of the Obligation, irrespective of the
legal order and the Mortgagor or the Debtor shall not raise any objection. If
there is any remaining amount of debt, the Debtor shall immediately pay such
amount.
ARTICLE 10 INVESTIGATION ON THE OBJECT OF REVOLVING MORTGAGE
Whenever your Bank requests investigation in the object of Revolving
Mortgage or submission of a report concerning the object of Revolving Mortgage,
the Mortgagor and the Debtor shall accept such request and cooperate with your
Bank's investigation.
ARTICLE 11 COSTS
The Mortgagor and the Debtor shall be jointly responsible for costs
incurred for preparation of this Agreement and establishment, register of
termination or modification of Revolving Mortgage, or investigation of the
object of Revolving Mortgage or disposition thereof. Any amounts paid by your
Bank shall be reimbursed immediately by the Mortgagor and the Debtor.
ARTICLE 12 OBLIGATION TO PRESERVE THE OBJECT OF REVOLVING MORTGAGE
1) The Mortgagor shall not raise any objection when other security or
guarantee is modified or canceled due to reasons of your Bank.
2) Without approval of your Bank, the Mortgagor shall not exercise the rights
acquired from your bank by subrogation of payment, while banking transactions
between your Bank and the
- 6 -
Debtor continues. When requested by your Bank, the Mortgagor shall assign such
rights and/or the priority to your bank, free of charge.
(Description of Mortgaged Properties)
[translation omitted.]
- 7 -
