CONTINUING GUARANTEE
To: The Hongkong and Shanghai
Banking Corporation Limited
Gentlemen:
Within the maximum amount of Japanese Yen Seven Hundred Million Only
(JPY700,000,000), we the undersigned, hereby unconditionally and irrevocably
guarantee as primary obligor (Rentai-Hosho-Nin), and not merely as surety, the
full and punctual performance when due, whether by acceleration or extension, of
any and all obligations concerning Article 1 of the Agreement on Bank
Transactions dated and executed by the borrower as hereinafter defined including
but not limited to the issue of guarantees by you and your acceptance of
guarantees by the borrower as hereinafter defined in favour of third parties
made or extended or to be made or extended by you to Columbia Sportswear Japan,
Inc. (the "borrower") and any guarantee by the borrower in favour of third
parties (the "facilities") together with the interest and commitment fee, if
any, payable thereon as well as all fees, costs and expenses of collection
(including reasonable attorneys' fees) incurred by you in enforcing any and all
liabilities of the borrower assumed by it in connection with the extension of
the facilities.
This guarantee is a continuing guarantee and it will remain in force until such
time as we advise your Bank otherwise in writing; provided, however, that
termination of this undertaking shall not relieve us from any and all
liabilities existing at the time of the date of your receipt of such notice of
termination, whether then due and payable or thereafter to become due and
payable.
You may, at any time and from time to time, without our consent or notice to us
and without impairing or releasing our liabilities hereunder: (1) change the
manner, place or terms of payment of principal and interest on any of the
facilities and/or extend, accelerate, renew or otherwise change or extend the
time of such payment, and renew or alter any liabilities of the borrower, or any
liabilities incurred directly or indirectly in respect thereof, and this
guarantee shall apply to the liabilities of the borrower as so changed,
extended, renewed, or altered; (2) exercise or refrain from exercising any
rights against the borrower or any other person, including ourselves; (3) settle
or compromise any liabilities hereby guaranteed, and subordinate the payment of
all or any part thereof to the payment of any liabilities whether due or not, of
the borrower to its creditors other than you and ourselves; and (4) apply any
sums by whomsoever paid or howsoever realized to any liabilities of the borrower
to you regardless of what liabilities of the borrower remain unpaid.
This guarantee shall be in addition to and shall not affect or be affected by
any other security or rights now or hereafter held or exercisable by you in
conjunction with all or any of the liabilities guaranteed hereunder. We shall
not object to your changing or releasing such other security or rights at your
convenience. If and when we perform any obligations under the guarantee hereby
given, we shall not exercise any rights obtained from you, whether by
subrogation or otherwise, so long as any liabilities of the borrower owed to you
remain
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Payments by us (the Guarantor) shall be made to your Bank without any set-off,
counterclaim, withholding or condition of any kind except that if the Guarantor
is compelled by law to make such withholding, the sum payable by the Guarantor
shall be increased so that the amount actually received by your Bank is the
amount it would have received if there had been no withholding.
If the Guarantor is compelled by law to withhold on any payments, your Bank
shall return to the Guarantor an amount equal to the tax reduction if any that
your Bank shall be entitled to due to the utilisation of any foreign tax credits
related to such withholding.
We hereby waive any right of set off which we may have in connection with any
claim which the borrower may have against your Bank.
This guarantee shall continue and not be affected by the liquidation,
dissolution or incapacity, or any change in the constitution of the borrower,
ourselves or any other person, or in the name or style thereof.
This guarantee shall be valid and enforceable notwithstanding the validity or
enforceability of the liabilities guaranteed.
A notice by you under this guarantee may be served by registered airmail (or
registered mail, if the lender is the Tokyo Branch) and shall be deemed to have
been duly served on the fifth (5th) day following the day of posting if postage
prepaid and addressed to us at the registered office given hereunder.
We covenant that any license, if required, for the issuance of this guarantee in
connection herewith shall be obtained and a copy thereof shall be submitted to
you.
This guarantee and all rights, obligations and liabilities arising hereunder
shall be construed and determined and may be enforced in accordance with the
laws of Japan. We hereby agree that the Tokyo District Court shall have non
exclusive jurisdiction over all disputes arising under this guarantee.
This guarantee is entered into in the English language text only, and the
English language text hereof shall control for all purposes and in all respects.
Signed by us this 19th day of Jan, 1999
Very truly yours,
WITNESS
BY: CARL DAVIS BY: TIMOTHY BOYLE
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Address: Columbia Sportswear Company
6600 N. Baltimore
Portland, Oregon 97203 USA
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AGREEMENT ON BANK TRANSACTIONS
To: The Hongkong and Shanghai
Banking Corporation Limited
We do hereby agree to the terms and conditions set forth in the following
Articles in regard to our transactions with your Bank:
Article I (Scope of Application)
(1) We shall abide by this Agreement pertaining to the performance of our
obligations in Japan arising from loans against Bills of Exchange
(hereinafter referred to as "Bills") and Promissory Notes (hereinafter
referred to as "Notes"), discounts of Bills and Notes, loans by deed,
overdrafts, acceptances and guarantees, foreign exchanges, and any and
all other transactions.
(2) Even in cases in which your Bank has, through your Bank's transactions
with any third party, acquired Bills and Notes drawn, endorsed,
accepted, accepted by intervention, or guaranteed by us, we shall also
abide by this Agreement pertaining to the performance of our
obligations evidenced by such Bills and Notes.
(3) This Agreement shall apply only to transactions between your Bank and
Columbia Sportswear Japan. It is not meant to apply to any other
transactions, if any, between your Bank and Columbia Sportswear
Company or any of its other subsidiaries or branches and shall not
have any effect on such transactions.
Article 2 (Obligations in Bills and Notes and Money Borrowed)
In cases in which Loans accompanied by Bills and Notes have been
granted, your Bank may demand from us the payment of our obligations by
exercising your Bank's rights either on the Bills and Notes or on the
loans, at your Bank's option.
Article 3 (Interest, Damages, etc.)
(1) In regard to the stipulations concerning the rates of interest,
discount charges, guarantee fees, handling commissions and rebates of
any thereof, and also concerning the time and method of payment
thereof, we shall agree, in the event of changes in the financial
situation or any other reasonable and probable causes arising, to the
revision of the stipulations to the level of those prevailing
generally in Japan.
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(2) In case we fail to perform any obligations which we owe to your Bank,
we shall pay your Bank damages at the rate of 15 percent per annum for
the amount payable.
Article 4 (Security)
(1) In cases in which there exists a reasonable and probable cause which
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.
(2) Any and all security which has been furnished or which will be
furnished in the future to your Bank for specific obligations shall
constitute security that covers and secures not only such obligations,
but also any and all other obligations which we at present or in the
future may owe your Bank.
(3) Your Bank may collect or dispose of security in the manner, at the
time, and for the price, etc. generally deemed proper, and also may
deduct expenses from the proceeds and appropriate the remainder to the
payment of our obligations regardless of the priority prescribed by
law; and in the event any obligations still remain outstanding, we
shall pay them forthwith.
(4) In cases in which we fail to perform any obligations which we owe your
Bank, your Bank may collect or dispose of our movables, Bills and
Notes, and other instruments and securities in your Bank's possession;
and in such cases, we shall agree to your Bank's handling the matter
mutatis mutandis in the manner set forth in the preceding paragraph.
Article 5 (Acceleration of Payment)
(1) In cases in which any one of the events set forth in the following
items occurs to us, any and all obligations we owe your Bank shall
immediately become due and payable even in the absence of notice or
demand, etc. from your Bank; and we shall pay such obligations
forthwith:
1. When we suspend payment of our debts due to financial inability
or when an application or petition is submitted for bankruptcy,
commencement of composition of creditors, commencement of
corporate reorganization proceedings, commencement of company
reorganization proceedings, commencement of special liquidation.
2. When we are subjected by the Clearing House to the procedures for
suspension of business transactions with banks and similar
institutions.
3. When an order or notice is dispatched for provisional attachment,
provisional attachment for the purpose of assuring collection of
taxes or
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public imposts or attachment of any of our or the Guarantor's
deposits of other credits with your Bank.
4. When location becomes unknown to your Bank due to our failure to
notify your Bank of a change in our address or other causes
ascribable to us.
(2) In any of the following cases, upon your Bank's demand, any and all
obligations we owe your Bank in Japan shall immediately become due and
payable; and we shall pay them forthwith:
1. When we fail to pay any part of our obligations to your Bank when
it is due.
2. When attachment or commencement of the procedures for public
auction is made with respect to any of the collateral which we
have furnished to your Bank.
3. When we violate any stipulations of agreement relating to any
transactions with your Bank.
4, When any of our Guarantors falls under any one of the items of
the preceding paragraph or this paragraph.
5. Other than the events set forth in the foregoing items, when
there arises a reasonable and probable cause which necessitates
the preservation of your Bank's rights.
Article 6 (Repurchase of Discounted Bills and Notes)
(1) In cases in which we have had Bills and Notes discounted by your Bank
and any one of the events set forth in the items of Paragraph 1 of the
preceding Article occurs, then pertaining to all such Bills and Notes,
or in cases in which the principal obligors of our discounted Bills
and Notes fail to pay them on due date thereof or any one of the
events set forth in the items of Paragraph 1 of preceding Article
occurs to the principal obligors of our discounted Bills and Notes,
then pertaining to the Bills and Notes on which such persons are the
Principal obligors, we shall assume the obligations to repurchase such
discounted Bills and Notes at their face value even in the absence of
notice or demand etc. from your Bank; and we shall repurchase them
forthwith.
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(2) In cases other than those provided for in the preceding paragraph, in
which there arises a reasonable and probable cause which necessitates
the preservation of your Bank's rights pertaining to the Bills and
Notes which your Bank has discounted, we shall assume, upon your
Bank's demand, the obligations to repurchase such discounted Bills and
Notes at their face value; and we shall repurchase them forthwith.
(3) As long as we do not perform any of the obligations set forth in the
preceding two paragraphs, your Bank may exercise any and all rights as
holder of the Bills and Notes.
Article 7 (Deductions in Accounts)
(1) In cases in which we must perform any obligations owed to your Bank
due to the maturity, acceleration of payment, creation of the
obligations to repurchase our discounted Bills and Notes, creation of
the obligations to indemnify your Bank, or other causes, your Bank may
set off against any such obligations at any time any of our deposits
and any other of our credits with your Bank irrespective of their due
dates thereof.
(2) In cases in which your Bank has the right to effect a setoff in
accordance with the preceding paragraph, 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,
omitting any advance notice.
(3) In cases in which your Bank makes any deductions in accounts as a
result of set off and/or withdrawal and appropriation according to the
provisions of the preceding two paragraphs, the period of computation
of interest on our credits and obligations, discount charges and
damages, etc. shall be up to and including the date such deduction is
made, and the rate of interest and other rates shall be in accordance
with those fixed by your Bank; and the foreign exchange rate
applicable thereto shall be the rate quoted by your Bank as of the
time such deduction is made.
Article 7-2 (Same as above)
(1) We may set off against any of our obligations owed to your Bank any of
our deposits and any other of our credits with your Bank that are due,
even prior to the due dates of payment of such obligations.
(2) In cases in which we effect a setoff pursuant to the preceding
paragraph pertaining to our Bills and Notes discounted by your Bank
prior to the due dates thereof, we shall assume the obligations to
repurchase our discounted Bills and Notes at their face value;
provided, however, that we may not effect a setoff pertaining to our
Bills and Notes which your Bank has transferred to a third party.
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(3) Notwithstanding the provisions of the preceding two paragraphs, we may
not effect a setoff pertaining to our credits or obligations in
foreign currency or free yen unless they are due and the procedures
prescribed by foreign exchange laws and regulations have been
completed.
(4) In cases in which we effect a setoff pursuant to the preceding three
paragraphs, we shall give your Bank a written notice of such setoff
and shall submit to your Bank an instrument or book of the deposits or
other credits offset upon affixing thereon our seal impression or
signature, a specimen of which has been filed with your Bank.
(5) In cases in which we effect a setoff, the period of computation of
interest on our credits and obligations, discount charges, damages,
etc. shall be up to the date when a notice of setoff reaches your
Bank, and the rate of interest and other rates shall be in accordance
with those fixed by your Bank; and the foreign exchange rate
applicable thereto shall be the rate quoted by your Bank as of the
time the computation is effected; provided, that in cases in which a
special charge for repayment prior to maturity is fixed by your Bank,
such charge shall apply.
Article 8 (Presentment and Delivery of Bills and Notes)
(1) In cases in which there exist Bills and Notes pertaining to our
obligations, and your Bank makes deductions in accounts as set forth
in Article 7 without exercising your Bank's rights on the Bills and
Notes, your Bank need not simultaneously return to us any such Bills
and Notes.
(2) In cases in which there exist Bills and Notes to be returned by your
Bank following deductions in accounts as set forth in the preceding
two Articles, we shall without delay appear at your Bank to receive
such Bills and Notes; provided, however, that such Bills and Notes
which have not reached their maturity may be collected as such by your
Bank.
(3) In cases in which your Bank makes deductions in accounts as set forth
in Article 7 by exercising your Bank's rights on the Bills and Notes,
your Bank need not present nor deliver any such Bills and Notes to us
in the cases enumerated below; and as for our receiving such Bills and
Notes, the provisions of the preceding paragraph shall apply mutatis
mutandis:
1. When your Bank does not know our location.
2. When we have designated your Bank as the place at which Bills and
Notes are made payable.
3. When it is deemed commercially unfeasible to dispatch the Bills
and Notes to us.
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4. When it is deemed unavoidable to dispense with presentment or
delivery of the Bills and Notes for such reasons as use for
collection, etc.
(4) In cases in which any of our obligations that are due for immediate
performance still exist after a deduction in accounts has been
effected as provided for in the preceding two Articles, and there also
exist obligors on the Bills and Notes besides us, your Bank may retain
such Bills and Notes, and after collecting or disposing of them, your
Bank may appropriate the proceeds to the payment of our obligations.
Article 9 (Designation of Appropriation)
In the event payments made by us or deductions in accounts made by your Bank as
provided for in Article 7, are insufficient to satisfy all of our obligations,
your Bank may appropriate such payments or such deductions to the payment of our
obligations in such order and in such manner as your Bank deems proper; and we
shall raise no objection thereto.
Article 9-2 (Same as above)
(1) In the event our deposits and/or any other credits with your Bank to
be offset pursuant to Article 7-2 is insufficient to satisfy all of
our obligations, your Bank may appropriate such deposits and/or other
credits to the payment of our obligations in such order and in such
manner as designated by us.
(2) In cases in which we do not make such designation as provided for in
the preceding paragraph, your Bank may appropriate such deposits
and/or other credits to the payment of our obligations in such order
and in such manner as your Bank deems proper; and we shall raise no
objection thereto.
(3) In cases in which the designation as provided for in Paragraph 1 is
likely to interfere with the preservation of your Bank's rights, your
Bank may forthwith raise objection thereto and effect appropriation in
such order and in such manner as Your Bank designates after
considering the existence, value and difficulty of disposition of the
security or guarantee, length of maturity, and prospect for settlement
of our discounted Bills and Notes, etc.
(4) In cases in which your Bank effects appropriation pursuant to the
preceding two paragraphs, your Bank may designate the order and manner
thereof regarding any of our obligations that are not yet due as due,
us as having assumed the obligations to repurchase our Bills and Notes
discounted by your Bank that are not yet due, or us as having assumed
the obligations of advance indemnification as to acceptances and
guarantees.
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Article 10 (Assumption and Risks, Hold Harmless Clause, etc.)
(1) In cases in which Bills and Notes which we have drawn, endorsed,
accepted, accepted by intervention or guaranteed, or 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 as set forth in the
preceding paragraph, we shall make no claim whatsoever against your
Bank.
(3) Even if your Bank's rights on Bills and Notes are ineffective due to
lack of legal requirements in the Bills and Notes, or due to
invalidating entries thereon, or if your Bank's rights on the Bills
and Notes are extinguished due to inadequacy in the procedures for
preservation of your Bank's rights, we shall remain liable for the
face value of such Bills and Notes.
(4) 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 Bills and Notes or instruments against our
specimen seal impression or specimen signature filed with your Bank,
we shall bear any losses and damages arising from forgery, alteration,
wrongful use, etc. of Bills and Notes, instruments and seals or
signatures, and shall be liable in accordance with the terms of any
such Bills and Notes or instruments.
(5) We shall bear the 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 11 (Changes in Matters Field)
(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 are delayed or fail to reach us because of our
failure to notify your Bank in accordance with the preceding
paragraph, it shall be regarded that the notice of documents, etc.
arrived at the time they normally should have arrived.
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Article 12 (Report and Investigation)
(1) Upon your Bank's demand, we shall forthwith submit to your Bank
reports pertaining to our assets and liabilities, management or the
state of business; and we shall also furnish assistance necessary for
the investigation thereof.
(2) In cases in which a material adverse change has occurred or is likely
to occur pertaining to our assets and liabilities, management or the
state of business, we shall forthwith submit to your bank reports
thereof even in the absence of your Bank's demand.
Article 13 (Applicable Offices)
We agree that all of the terms and conditions of this Agreement shall apply
equally to all of our transactions with your Bank's branch offices in
Japan.
Article 14 (Jurisdiction by Agreement)
In the event 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 Tokyo office of your
Bank is situated shall be the competent Court.
Article 15 (Governing Law)
This Agreement shall be governed by and consumed in accordance with the
laws of Japan.
This Agreement is entered into in the English language text only, and the
English language text hereof shall control for all purposes and in all respects.
Dated this 28th day of January Nineteen
Hundred and Ninety Nine
The Principal: Signature: KINICHI SATO
Full Name: Kinichi Sato
Address:
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