EXHIBIT 10.27
RECEIVABLES PURCHASE AGREEMENT
between
LAM RESEARCH CO., LTD.
as Seller
ABN AMRO BANK N.V., TOKYO BRANCH
as Purchaser
and
LAM RESEARCH CO., LTD.
as Collection Agent
CONTENTS
Clause Page No
Part 1
INTERPRETATION
1. Definitions and Interpretation . . . . . . . . . . . . . 1
Part 2
GENERAL PROVISIONS FOR SALE OF RECEIVABLES
2. Terms of Purchase. . . . . . . . . . . . . . . . . . . . 13
Part 3
SALE OF INITIAL RECEIVABLES
3. Sale and Purchase. . . . . . . . . . . . . . . . . . . . 14
4. Consideration. . . . . . . . . . . . . . . . . . . . . . 14
5. Initial Closing. . . . . . . . . . . . . . . . . . . . . 14
Part 4
SALE OF ADDITIONAL RECEIVABLES
6. Offers of Additional Receivables . . . . . . . . . . . . 15
7. Acceptance of Offers . . . . . . . . . . . . . . . . . . 16
8. Consideration. . . . . . . . . . . . . . . . . . . . . . 17
9. Assignment of Accepted Receivables . . . . . . . . . . . 17
Part 5
ADJUSTMENT OF CONSIDERATION
10. Normal Adjustment. . . . . . . . . . . . . . . . . . . . 17
11. Adjustment due to Reduction of Face Value. . . . . . . . 19
Part 6
REPRESENTATIONS, WARRANTIES AND COVENANTS
12. Representations and Warranties . . . . . . . . . . . . . 20
13. Financial Information. . . . . . . . . . . . . . . . . . 20
14. Seller's Covenants . . . . . . . . . . . . . . . . . . . 21
15. Purchaser's Covenants. . . . . . . . . . . . . . . . . . 23
16. Seller's Indemnity . . . . . . . . . . . . . . . . . . . 23
Part 7
REPURCHASE OF RECEIVABLES
17. Repurchase of Receivables. . . . . . . . . . . . . . . . 25
Part 8
INDEMNITY FOR FUNDING LOSSES
18. Indemnity by the Seller for Funding Losses . . . . . . . 27
Part 9
COLLECTION OF RECEIVABLES
19. Appointment of Collection Agent. . . . . . . . . . . . . 29
20. Collection of Receivables. . . . . . . . . . . . . . . . 30
21. Cost, Expenses and Remuneration. . . . . . . . . . . . . 31
22. Removal or Termination of Collection Agent . . . . . . . 31
Part 10
PAYMENTS
23. Currency of Account and Payment. . . . . . . . . . . . . 32
24. Payments by the Seller or the Collection Agent . . . . . 33
25. Payments by the Purchaser. . . . . . . . . . . . . . . . 34
Part 11
TAXES
26. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 34
Part 12
TERMINATION
27. Consequence of a Termination Event . . . . . . . . . . . 35
Part 13
MISCELLANEOUS
28. Default Interest and Indemnity . . . . . . . . . . . . . 36
29. Fees, Costs and Expenses and Stamp Duty. . . . . . . . . 37
30. Benefit of Agreement . . . . . . . . . . . . . . . . . . 37
31. Remedies and Waivers . . . . . . . . . . . . . . . . . . 38
32. Partial Invalidity . . . . . . . . . . . . . . . . . . . 38
33. Counterparts . . . . . . . . . . . . . . . . . . . . . . 38
34. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 38
35. Prior Understandings . . . . . . . . . . . . . . . . . . 39
Part 14
LAW AND JURISDICTION
36. Governing Law. . . . . . . . . . . . . . . . . . . . . . 39
37. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . 39
THE SECOND SCHEDULE
Part 1 : Conditions Precedent to the Initial Closing
Part 2 : Conditions Precedent to Subsequent Closings
THE THIRD SCHEDULE
Part 1 : Form of Assignment of Initial Receivables
Part 2 : Form of Offer
Part 3 : Form of Assignment of Accepted Receivable
Part 4 : Form of Reassignment of Receivables
THE FIFTH SCHEDULE
Termination Events
THE SIXTH SCHEDULE
Part 1 : Representations as to Matters of Law
Part 2 : Representations as to Matters of Fact
Part 3 : Representations relating to Receivables
THE SEVENTH SCHEDULE
Covenants and Undertakings of the Collection Agent
THE EIGHTH SCHEDULE
Form of Guaranty
THE NINTH SCHEDULE
Part 1 : Form of Opinion of Nagashima & Ohno
Part 2 : Form of Opinion of Jan J. Kang
THIS AGREEMENT is made the 22nd day of June, 1995
BETWEEN:
(1) LAM RESEARCH CO., LTD., a company incorporated in Japan and having its
registered office at 1-1-10, Oyama, Sagamihara-shi, Kanagawa (in such capacity
the "Seller");
(2) ABN AMRO BANK N.V. acting through its TOKYO BRANCH, a branch licensed in
Japan and having its registered office at Shiroyama JT Mori Building, 3-1, 4-
chome, Toranomon, Minato-ku, Tokyo (the "Purchaser"); and
(3) LAM RESEARCH CO., LTD., a company incorporated in Japan having its
registered office at 1-1-10, Oyama, Sagamihara-shi, Kanagawa as collection agent
in relation to receivables (in such capacity the "Collection Agent").
WHEREAS:
(A) The Seller and the Purchaser have agreed, on the terms and subject to the
conditions hereof, that the Seller will sell to the Purchaser certain
receivables which have arisen, or will arise, out of the sales by the Seller of
certain equipment.
(B) The Collection Agent has agreed, upon the terms and subject to the
conditions hereof, to act as the agent of the Purchaser in connection with the
collection of receivables from time to time assigned to the Purchaser in
accordance with the terms hereof.
IT IS HEREBY AGREED as follows:-
Part 1
INTERPRETATION
1. Definitions and Interpretation
1.1 In this Agreement and in the Schedules, unless otherwise defined
therein or unless the context otherwise requires, the following terms shall have
the following meanings:-
"Acceptance" means, in relation to Equipment, the acceptance by the Buyer
of such Equipment which, in accordance with the relevant Sales Agreement,
renders the obligation of such Buyer to pay the Face Value of the Purchased
Receivable arising out of the sale of such Equipment unconditional (only subject
to the lapse of the credit period agreed between the Seller and such Buyer);
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"Accepted Receivables" has the meaning set out in Clause 7.2;
"Additional Receivables" means Receivables other than the Initial
Receivables;
"Additional Sales Agreement" means the Sales Agreement relating to the
Additional Receivables;
"Adjustment Amount" means the amount which shall be calculated and payable
in accordance with Clause 10;
"Adjustment Period" applicable to a Purchased Receivable and a Receivables
Payment Date for such Purchased Receivable which has come earlier than the
Tentative Receivables Due Date means the actual number of days elapsed during
the period from, and including, such Receivables Payment Date to, but excluding,
such Tentative Receivables Due Date;
"Assignment" means, in relation to the sale of each Initial Receivables,
an assignment substantially in the form set out in Part 1 of the Third Schedule
or, in relation to sale of each Accepted Receivable, an assignment substantially
in the form of Part 3 of the Third Schedule;
"Available Receivables" has the meaning set out in Clause 6.2(i);
"Buyers" means buyers of the Equipment from the Seller;
"Closing Dates" means the Initial Closing Date and the Subsequent Closing
Dates;
"COF" applicable to a Purchased Receivable means the rate, expressed as
decimal, equal to the cost to the Purchaser (as certified by it, which
certification shall be binding upon the parties hereto in the absence of a
manifest error, and expressed as a rate per annum) of funding the Relevant
Amount in Tokyo in Yen during the Calculation Period;
For purposes of this definition of "COF", the "Calculation Period"
means:
(i) for purposes of determining the COF Based Rate, the
Discount Period applicable to such Purchased Receivable; and
(ii) for purposes of determining the Adjustment COF Based
Rate applicable to a Reset Period or Overdue Reset Period relating to a Paid
Amount, such Reset Period or Overdue Reset Period applicable to such Purchased
Receivable and Paid Amount; and
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the "Relevant Amount" means:
(i) for purposes of determining the COF Based Rate, the
Face Value of such Purchased Receivable; and
(ii) for purposes of determining the Adjustment COF Based
Rate applicable to a Paid Amount, such Paid Amount applicable to such Purchased
Receivable;
"COF Based Rate" and "Adjustment COF Based Rate" applicable to a Purchased
Receivable and (in the case of the Adjustment COF Based Rate) a Paid Amount and
a Reset Period or Overdue Reset Period for such Purchased Receivable means the
rate, expressed as a decimal, equal to the sum of (i) the COF for the respective
purposes applicable to such Purchased Receivable and (in the case of the
Adjustment COF Based Rate) such Paid Amount and Reset Period or Overdue Reset
Period and (ii) the Margin;
"Collection Account" means the account specified in Clause 20.2;
"Collections" means all payments by or on behalf of Buyers received in
respect of the Receivables, whether in the form of cash, electronic money
transfer or any other form of payment (including, but not limited to, the
payment by means of collection of the obligations represented by the P/N) in
accordance with a Sales Agreement in effect from time to time;
"Confirmation to Issue P/N's" means a written confirmation duly executed
by the relevant Buyer and delivered to the Seller of the issuance of the P/N's
in relation to the Receivables which may arise out of the relevant Sales
Agreement, subject to (but promptly upon, only subject to the applicable terms
of the relevant Sales Agreement) the Acceptance or the Partial Acceptance of the
relevant Equipment, such confirmation being in a form and substance reasonably
satisfactory to the Purchaser;
"Debt" of any person means, at any date, without duplication, (i) all
obligations of such person for borrowed money, (ii) all obligations of such
person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such person as lessee which are capitalized in
accordance with the generally accepted accounting principles, (v) all Debt
secured by an encumbrance on any asset of such person, whether or not such Debt
is otherwise an obligation of such person and (vi) all Debt of others guaranteed
by such person;
"Deposit" means, in relation to a Purchased Receivable, the amount, if
any, which has been or will have been as of the relevant Closing Date paid to or
deposited with the Seller by the relevant Buyer by way of deposit or downpayment
(however it is called) for the purchase of the relevant Equipment;
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"Disapplication of Prohibition of Assignment" means a written consent duly
executed by the relevant Buyer to the disapplication of prohibition of the
assignment by the Seller of the Receivables arising out of the relevant Sales
Agreement, such consent being in a form and substance reasonably satisfactory to
the Purchaser;
"Discount" means in relation to a Purchased Receivable the amount in Yen
equal to its Face Value multiplied by the Discount Rate applicable to such
Purchased Receivable;
"Discount Interest Rate" applicable to a Purchased Receivable means either
of (i) the LIBOR Based Rate or (ii) the COF Based Rate, as selected by the
Seller and specified in the Assignment in relation to such Purchased Receivable;
"Discount Period" applicable to a Purchased Receivable means the actual
number of days elapsed during the period from, and including, the Closing Date
to, but excluding, the Tentative Receivables Due Date, both in relation to such
Purchased Receivable;
"Discount Rate" applicable to a Purchased Receivable means a fraction
(expressed as a decimal rounded up to the nearest five decimal places in such
rate) calculated as follows:
D = I x (P/365)
1 + (I x P/365)
Where:
D = the Discount Rate;
I = the Discount Interest Rate (expressed as a decimal) applicable
to such Purchased Receivable; and
P = the Discount Period applicable to such Purchased Receivable;
"Eligible Buyers" has the meaning set out in Part 1 of the Fourth
Schedule;
"Eligible Receivables" has the meaning set out in Part 2 of the Fourth
Schedule;
"Equipment" means semiconductor capital equipment sold by the Seller in
the ordinary course of its business;
"Extended Tentative Date" has the meaning set out in Clause 10.2, and the
first, second, subsequent or final Extended Tentative Date shall be construed
accordingly;
"Face Value" means, in relation to a Purchased Receivable, the amount in
Yen which is to be payable pursuant to the Sales Agreement in respect of such
Purchased Receivable (less the Deposit, if any, in relation to such Purchased
Receivable), which shall be specified in the Assignment relating to such
Purchased Receivables;
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"Guaranty" means a guaranty of the Guarantor substantially in the form of
the Eighth Schedule;
"Guarantor" means Lam Research Corporation, a Delaware corporation;
"Indemnified Amounts" has the meaning set out in Clause 16.1;
"Initial Closing Date" means June 23, 1995 or such later date as the
parties hereto may agree;
"Initial Receivables" means those Receivables, being the Eligible
Receivables, particulars of which are set out in the First Schedule;
"Initial Sales Agreements" means the Sales Agreements relating to the
Initial Receivables;
"Insolvency Event" means, in relation to any party hereto its winding-up
or dissolution or the judgment or declaration of insolvency or bankruptcy or the
appointment of an administrator, trustee, liquidator, sequestrator or similar
official over it or any of its reserves or assets, the filing of a petition in
relation to any of the foregoing or the commencement of any analogous
proceedings in relation thereto, and, in the case of such filing made by any
third party against it, such filing (i) having resulted in a judgment or
declaration of insolvency or bankruptcy or the entry of an order for relief or
the making of an order for its winding-up or dissolution or (ii) having not been
dismissed, discharged, stayed or restrained within ninety (90) days with respect
to the Seller and thirty (30) days with respect to the Guarantor;
"LIBOR" applicable to a Purchased Receivable means the rate for deposits
in Yen for a period selected by the Purchaser as being reasonably close to the
Calculation Period which appears on the Telerate Page 3750 as of 11:00 a.m.,
London time, on the day that is two London Banking Days (which means a day on
which commercial banks are open for business (including dealing in foreign
exchange and foreign currency deposits) in London) preceding the first day of
the Calculation Period, Provided that if such rate does not appear on the
Telerate Page 3750, "LIBOR" shall mean the arithmetic mean of the rates,
expressed as a decimal, quoted to ABN AMRO Bank N.V. at such time on such day by
two or more major banks in the London interbank market selected in good faith by
ABN AMRO Bank N.V. as a rate per annum at which such deposit, for such period
commencing on such first day and in such amount that ABN AMRO Bank N.V.
reasonably determines is representative for a single transaction in such market
on such day, is offered;
For purposes of this definition of "LIBOR", the "Calculation Period"
means:
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(i) for purposes of determining the LIBOR Based Rate, the
Discount Period applicable to such Purchased Receivable; and
(ii) for purposes of determining the Adjustment LIBOR Based
Rate applicable to a Reset Period or Overdue Reset Period relating to a Paid
Amount, such Reset Period or Overdue Reset Period applicable to such Purchased
Receivable and Paid Amount;
"LIBOR Based Rate" and "Adjustment LIBOR Based Rate" applicable to a
Purchased Receivable (and, in the case of the Adjustment LIBOR Based Rate,
applicable to a Paid Amount and a Reset Period or Overdue Reset Period) means
the rate per annum, expressed as a decimal, equal to the sum of (i) the LIBOR
for the respective purposes applicable to such Purchased Receivable (and, in the
case of the Adjustment LIBOR Based Rate, applicable to such Paid Amount and
Reset Period or Overdue Reset Period) and (ii) the Margin;
"Margin" means, subject to the reduction pursuant to Clause 10.3, nine-
tenths of one percent (0.9%);
"Margin Reduction Amount" has the meaning set out in Clause 10.4;
"Margin Reduction Period" has the meaning set out in Clause 10.3;
"Material Adverse Effect" means in relation to any matter, event or
circumstance concerning the Seller, the Guarantor or the Collection Agent
(insofar as Lam Research Co., Ltd. is the Collection Agent), a likely material
adverse effect on the ability of the person concerned to perform its obligations
under this Agreement, the Guaranty, the Assignment or any of the other
Transaction Documents;
"Non-Eligible Buyers" means the Buyers other than the Eligible Buyers;
"Offer" means any offer made by the Seller to sell and assign Additional
Receivables to the Purchaser in accordance with Clause 6;
"Original Financial Statements of the Seller" means the audited financial
statements of the Seller for the financial year ended June 30, 1994 and the
unaudited interim financial statements of the Seller for the financial quarter
ended March 31, 1995;
"Original Financial Statements of the Guarantor" means the audited
financial statements of the Guarantor for the financial year ended June 30, 1994
and the unaudited interim financial statements of the Guarantor for the
financial quarter ended March 31, 1995;
"Overdue Reset Period" applicable to a Purchased Receivable means a
Partial Adjustment Period for such Purchased Receivable referred to in
Paragraph (i)(b) or (ii)(b)
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of the definition of the Partial Adjustment Period as if (if applicable) it were
not shortened by occurrence of a Receivables Payment Date for such Purchased
Receivable or lapse of sixty (60) days after the Scheduled Receivables Due Date
for such Purchased Receivable, as the case may be;
"Paid Amount" in relation to a Purchased Receivable means the amount which
has been paid to the Purchaser through the Collection Account on account of such
Purchased Receivable pursuant to Clause 20.4 or collected by the Purchaser by
means of collection of the obligations represented by the P/N pursuant to Clause
20.3, as the case may be, or otherwise to the Purchaser in accordance with this
Agreement, in each case in immediately available funds;
"Partial Acceptance" means, in relation to Equipment, such acceptance of
the Buyer of such Equipment as renders the obligation of such Buyer to pay the
Revised Face Value of the Purchased Receivable arising out of the sale of such
Equipment unconditional (only subject to the lapse of credit period agreed
between the Seller and the Buyer);
"Partial Adjustment Amount" has the meaning set out in Clause 10.3;
"Partial Adjustment Period" applicable to a Purchased Receivable and a
Receivables Payment Date means the actual number of days elapsed during each of
the following one or more successive periods, running up to such Receivables
Payment Date or the sixtieth (60th) date after the Scheduled Receivables Due
Date for such Purchased Receivable, whichever comes earlier:
(i) if there is no Extended Tentative Date for such Purchased
Receivable,
(a) the period from, and including, the Tentative
Receivables Due Date for such Purchased Receivable to, but excluding, such
Receivables Payment Date or the Scheduled Receivables Due Date for such
Purchased Receivable, whichever comes earlier; and
(b) if such Receivables Payment Date is later than the
Scheduled Receivables Due Date, successive period(s) of one (1) week each,
starting from, and including, such Scheduled Receivables Due Date and repeating
up to such Receivables Payment Date or the sixtieth (60th) date after such
Scheduled Receivables Due Date, whichever comes earlier (with final such period
being one (1) week or shorter period up to, but excluding, such final date); or
(ii) if there is an Extended Tentative Date(s) for such Purchased
Receivable,
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(a) (x) the period from, and including, the Tentative
Receivables Due Date to, but excluding, the first Extended Tentative Date or
such Receivables Payment Date, whichever comes earlier, (y) (if there is a
following Extended Tentative Date) any subsequent period(s) from, and including,
the immediately preceding Extended Tentative Date to, but excluding, the
immediately following Extended Tentative Date or such Receivables Payment Date,
whichever comes earlier, and (z) (if there is the Scheduled Receivables Due Date
for such Purchased Receivable set after the final Extended Tentative Date) the
period from, and including, the final Extended Tentative Date to, but excluding,
such Receivables Payment Date or such Scheduled Receivables Due Date, whichever
comes earlier; and
(b) if such Receivables Payment Date is later than the
Scheduled Receivables Due Date or (if the final Extended Tentative Date falls
after the Scheduled Receivables Due Date) the final Extended Tentative Date,
successive period(s) of one (1) week each, starting from, and including, such
Scheduled Receivables Due Date or such final Extended Tentative Date, as the
case may be, and repeating up to such Receivables Payment Date or the sixtieth
(60th) date after such Scheduled Receivables Due Date, whichever comes earlier
(with final such period being one (1) week or shorter period up to, but
excluding, such final date);
"Perfection Document" means, in relation to a Purchased Receivable, a
written consent duly executed by the relevant Buyer, or a written notice to the
relevant Buyer duly executed by the Seller, detailing the assignment by the
Seller to the Purchaser of such Purchased Receivable, such consent or notice
being in the form of a document duly date-stamped (kakutei hizuke) by a notary
public or otherwise in any case in accordance with Article 467 (1) and (2) of
the Civil Code (Sho Ho) of Japan (Law No.49 of 1899, as amended) and in a form
and substance reasonably satisfactory to the Purchaser, Provided that the
certificate of delivery (if applicable) issued by the postal service shall be
excluded from the Perfection Document;
"P/N" means, in relation to a Receivable, a promissory note (yakusoku
tegata) duly issued by the relevant Buyer in accordance with the Law on Bills
(Tegata Ho) of Japan (Law No.20 of 1932, as amended) for the payment of such
Receivable, which shall be assignable;
"Potential Termination Event" means any event or circumstances which, if
it continued after the giving of any notice and/or the expiry of any grace
period, would become a Termination Event;
"Purchase Limit" means five billion Yen (5,000,000,000), as may be
cancelled from time to time as a whole or in part pursuant to Clause 2.1;
"Purchase Order" means, in relation to Equipment, the purchase order (or
its equivalent regardless of whether it is titled as such) for such Equipment
duly executed
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and delivered to the Seller by the Buyer of such Equipment, which shall detail
the description and the ordered quantity of, and the payment terms for, such
Equipment;
"Purchase Period" means the period from and including the Initial Closing
Date up to and including a day which is the second (2nd) anniversary of the date
hereof;
"Purchase Price" has the meaning set out in Clause 4.1 or 8.1, as the case
may be;
"Purchased Receivables" means all of those Initial Receivables and
Accepted Receivables which have actually been purchased by the Purchaser in
accordance with Clause 5 or 9, as the case may be, other than Receivables which
have been repurchased by the Seller pursuant to this Agreement;
"Receivables" means all amounts owed by Buyers to the Seller pursuant to
the Sales Agreements;
"Receivables Payment Date" means, in relation to each Purchased
Receivable, the date or each of the dates on which such Purchased Receivable is
paid in full or in any part to the Purchaser through the Collection Account
pursuant to Clause 20.4 or collected in full or in any part by means of
collection of the obligations represented by the P/N pursuant to Clause 20.3, as
the case may be, or otherwise to the Purchaser in accordance with this
Agreement, in each case in immediately available funds;
"Records" means all Sales Agreements, contracts, other documents, books,
records and other information maintained by the Seller (in that capacity and as
Collection Agent) with respect to the Purchased Receivables;
"Reduced Amount" means, in relation to a Purchased Receivable, the amount
(if any) in Yen equal to the Face Value minus the Revised Face Value of such
Purchased Receivable;
"Reduction Adjustment Amount" means, in relation to a Purchased
Receivable, the amount (if any) in Yen equal to (i) (if the Partial Acceptance
of the Equipment relating to such Purchased Receivable occurs prior to the fifth
(5th) business day before the relevant Tentative Receivables Due Date) the
Reduced Amount minus the Reduction Adjustment Discount relating to such
Purchased Receivable, (ii) (if such Partial Acceptance occurs on the fifth (5th)
business day before the relevant Tentative Receivables Due Date) the Reduced
Amount relating to such Purchased Receivable or (iii) (if such Partial
Acceptance occurs after the fifth (5th) business day before the relevant
Tentative Receivables Due Date) the Reduced Amount plus the Reduction Adjustment
Premium relating to such Purchased Receivable;
"Reduction Adjustment Discount" means, in relation to a Purchased
Receivable, the amount in Yen equal to the Reduced Amount relating to such
Purchased Receivable multiplied by the Discount Rate which has been applied to
such Purchased Receivable
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and further by a fraction the numerator of which is the Reduction Adjustment
Discount Period and the denominator of which is the Discount Period, both
applicable to such Purchased Receivable;
"Reduction Adjustment Discount Period" applicable to a Purchased
Receivable means the actual number of days elapsed during the period from, and
including, the date of the Partial Acceptance (if any) of the Equipment relating
to such Purchased Receivable to, but excluding, the date five (5) business days
before the Tentative Receivables Due Date for such Purchased Receivable;
"Reduction Adjustment Premium" means, in relation to a Purchased
Receivable, the amount in Yen which shall be calculated in such manner as is
applicable to the Adjustment Amount payable by the Seller relating to a Paid
Amount on a Receivables Payment Date for such Purchased Receivable as if the
relevant Reduced Amount were such Paid Amount and the date five (5) business
days after the relevant Partial Acceptance were such Receivables Payment Date;
"Related Security" means in relation to any Purchased Receivable (i) all
of the Seller's interest, if any, in the Equipment (including returned
Equipment, if any), the sale of which by the Seller gave rise to such Purchased
Receivables, (ii) all other encumbrance, if any, purporting to secure payment of
such Purchased Receivable, whether pursuant to the Sales Agreement relating to
such Purchased Receivable or otherwise and (iii) all guarantees, insurance or
other agreements or arrangements of any kind from time to time supporting or
securing payment of such Purchased Receivable whether pursuant to the Sales
Agreement relating to such Purchased Receivable or otherwise;
"Repurchase Discount" means in relation to a Purchased Receivable to be
repurchased by the Seller the amount in Yen equal to its Face Value or the
Revised Face Value, as the case may be, multiplied by the Discount Rate which
has been applied to such Purchased Receivable and further by a fraction the
numerator of which is the Repurchase Discount Period and the denominator of
which is the Discount Period, both applicable to such Purchased Receivable;
"Repurchase Discount Period" applicable to a Purchased Receivable to be
repurchased by the Seller means the actual number of days elapsed during the
period from, and including, the date on which such Purchased Receivable is
actually repurchased and paid for by the Seller to, but excluding, the Tentative
Receivables Due Date for such Purchased Receivable;
"Repurchase Premium" means in relation to a Purchased Receivable to be
repurchased by the Seller the amount in Yen which shall be calculated in such
manner as is applicable to the Adjustment Amount payable by the Seller relating
to a Paid Amount on a Receivables Payment Date for such Purchased Receivable as
if the relevant Face
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Value or Revised Face Value were such Paid Amount and the date on which such
Purchased Receivable is actually repurchased were such Receivables Payment Date;
"Reset Date" has the meaning set out in Clause 10.2, and the first, second
or subsequent Reset Date shall be construed accordingly;
"Reset Period" applicable to a Purchased Receivable means a Partial
Adjustment Period for such Purchased Receivable referred to in Paragraph (i)(a)
or (ii)(a) of the definition of the Partial Adjustment Period as if (if
applicable) it were not shortened by occurrence of a Receivables Payment Date
for such Purchased Receivable;
"Revised Face Value" means, in relation to a Purchased Receivable, the
amount in Yen less than the Face Value of such Purchased Receivable which has
been agreed upon between the Seller and the relevant Buyer as an amount payable
as a purchase price of the Equipment relating to such Purchased Receivable (less
the Deposit, if any, in relation to such Purchased Receivable) following the
performance test of such Equipment;
"Sales Agreement" means the agreement (whether in writing or oral) between
the Seller and the Buyer with respect to a sale of Equipment (including the
Purchase Order) governing the terms and conditions of such sale (including all
the agreements, instruments and any other documents relating or ancillary
thereto), as such agreement may be amended or modified from time to time;
"Scheduled Receivables Due Date" means, in relation to each Purchased
Receivable, the date on which the Face Value or the Revised Face Value, as the
case may be, of such Purchased Receivable will be unconditionally due and
payable by such Buyer pursuant to the terms of the relevant Sales Agreement;
"Shipment" means, in relation to an Equipment, the shipment by the Seller
of such Equipment in accordance with the relevant Sales Agreement, the
occurrence and the date of which shall be certified by the Seller to the
reasonable satisfaction of the Purchaser;
"Subsequent Closing Date" means each such date as agreed upon between the
Seller and the Purchaser in accordance with Clause 7 as a date on which an
Accepted Receivable is to be assigned to the Purchaser pursuant to Clause 9,
which must be a business day and must not be a date later than the last day of
the Purchase Period;
"Tentative Acceptance Date" means, in relation to each Purchased
Receivable, the date which is agreed upon between the Seller and the Purchaser
in the relevant Assignment as a date on which the Acceptance of the Equipment
relating to such Purchased Receivable is likely to occur, but shall in no event
be later than the date which is two hundred and seventy (270) days after the
date of Shipment of such Equipment;
"Tentative Acceptance Period" means, in relation to each Purchased
Receivable, a period commencing on the Closing Date and ending on the Tentative
Acceptance Date for such Purchased Receivable;
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"Tentative Credit Period" means, in relation to each Purchased Receivable,
the period which is agreed upon, based on the payment terms provided for in the
Purchase Order for the Equipment relating to such Purchased Receivable, between
the Seller and the Purchaser in the relevant Assignment as a period commencing
on the date immediately following the date of Acceptance of such Equipment at
the end of which such Purchased Receivable is due to be paid by the relevant
Buyer, but shall in no event be longer than two hundred and twenty-five (225)
days;
"Tentative Receivables Due Date" means, in relation to each Purchased
Receivable, the date which is specified in the relevant Assignment as the last
day of the Tentative Receivables Period for such Purchased Receivable;
"Tentative Receivables Period" means, in relation to each Purchased
Receivable, the period which is the sum of the Tentative Acceptance Period and
the Tentative Credit Period for such Purchased Receivable;
"Termination" has the meaning set out in Clause 27.1;
"Termination Event" has the meaning ascribed to it in the Fifth Schedule;
and
"Transaction Documents" means any agreement or document entered into
pursuant to this Agreement or in connection with this Agreement or the
transactions contemplated hereby.
1.2 In this Agreement:
"business day" means any day (other than a Saturday or a Sunday) on which
banks are open for business in Tokyo;
a "Clause", "Part", "Recital" or "Schedule" is, subject to any contrary
indication, a reference to a clause or part hereof or a recital or schedule
hereto;
an "encumbrance" shall be construed as a reference to a mortgage, charge,
pledge, lien or other encumbrance securing any obligation of any person or any
other type of preferential arrangement (including, without limitation, title
transfer and retention arrangements) having a similar effect;
a "person " shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any association
or partnership (whether or not having separate legal personality) or two or more
of the foregoing;
"stamp duty" shall be construed as a reference to any stamp, registration
or to the transaction or documentary tax (including, without limitation any
penalty or interest payable in connection with any failure to pay or any delay
in paying any of the same);
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"tax" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including, without limitation, any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same); and
the "rehabilitation", "bankruptcy", "dissolution", "insolvency",
"liquidation", "receivership" or "winding-up" of any person shall be construed
so as to include any equivalent or analogous proceedings under the laws of the
jurisdiction in which such person is incorporated (or, if not a company or
corporation, domiciled) or any jurisdiction in which such person carries on
business.
1.3 "_" and "Yen" denote lawful currency of Japan.
1.4 Save where the contrary is indicated, any reference in this
Agreement to:
(i) this Agreement or any other agreement or document shall be
construed as a reference to this Agreement, or, as the case may be, such other
agreement or document as the same may have been, or may from time to time be,
amended, varied, novated or supplemented;
(ii) a statute shall be construed as a reference to such statute
as same may have been, or may from time to time be, amended or re-enacted; and
(iii) a time of day (including opening and closing of business)
shall be construed as a reference to Tokyo time.
1.5 Clause, Part and Schedule headings are for ease of reference only.
Part 2
GENERAL PROVISIONS FOR SALE OF RECEIVABLES
2. Terms of Purchase
2.1 On the terms and conditions hereinafter set forth, the Seller will
sell, and the Purchaser will purchase, the Receivables, which must be the
Eligible Receivables, from time to time during the Purchase Period. Under no
circumstances shall the Purchaser make any purchase of a Receivable if, after
giving effect to such purchase, the aggregate sum of the Purchase Price of the
Purchased Receivables the payment of which has not been received by the
Purchaser would exceed the Purchase Limit. The Seller may cancel the Purchase
Limit, or any part of it which is fifty million yen (_50,000,000) or a whole
multiple of that amount, without premium or penalty at any time before the last
day of the Purchase Period by giving to the Purchaser not less than three (3)
business days' notice of the date and amount of the cancellation.
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2.2 The sale referred to in Parts 3 and 4 does not constitute and is not
intended to result in the creation or assumption by the Purchaser of any
obligation of the Seller or any other person in connection with the Receivables
or the Sales Agreements, or under any other agreement or instrument relating
thereto.
2.3 For purposes of this Agreement, if as of the relevant Closing Date a
Purchased Receivable is, in accordance with the Sales Agreement for the
Equipment in relation to such Purchased Receivable, to be payable by the
relevant Buyer in two or more installments, each amount owed by such Buyer
payable in each such installment shall be deemed and treated as if each such
amount were a separate and single Purchased Receivable.
Part 3
SALE OF INITIAL RECEIVABLES
3. Sale and Purchase
3.1 Subject to the terms and conditions of this Agreement, the Seller
hereby agrees to sell on the Initial Closing Date, and the Purchaser agrees to
purchase on such date, all of the Seller's right, title and interest in, to and
under the Initial Receivables including for the avoidance of doubt:-
(i) the right to receive all Collections in respect thereof; and
(ii) all Related Security with respect to the Initial Receivables
and all proceeds thereof.
3.2 The sale and purchase of each of the Initial Receivables referred to
in Clause 3.1 shall be effected by an assignment substantially in the form set
out in Part 1 of the Third Schedule.
4. Consideration
4.1 Subject to the adjustment as provided for in Clauses 10 and 11, the
consideration payable by the Purchaser for the sale and purchase of each of the
Initial Receivables shall be an amount in Yen equal to the Face Value minus the
Discount in relation to such Initial Receivable (the "Purchase Price"). The
Purchase Price shall be payable in accordance with Clause 5.1.
5. Initial Closing
5.1 Completion of the sale and purchase contemplated by Clause 3.1 shall
take place on the Initial Closing Date (subject to the satisfaction of the
conditions precedent
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set out in Part 1 of the Second Schedule, any of which may be waived in the
Purchaser's sole discretion), whereupon:
(i) the Seller shall assign to the Purchaser each of the Initial
Receivables by the Seller's and the Purchaser's executing and delivering to the
other the Assignment in relation to such Initial Receivables;
(ii) the Seller shall deliver the Initial Sales Agreements to the
Purchaser;
(iii) if the P/N in relation to an Initial Receivable has been
issued by the Buyer in favor of the Seller, the Seller shall make endorsement
without recourse (mutanpo uragaki) on such P/N in favor of the Purchaser and
deliver such P/N to the Purchaser; and
(iv) the Purchaser shall pay the aggregate Purchase Price of the
Initial Receivables to the Seller in accordance with Clause 25.1.
Part 4
SALE OF ADDITIONAL RECEIVABLES
6. Offers of Additional Receivables
6.1 The Seller may invite the Purchaser to take an assignment of
Additional Receivables, which must be Eligible Receivables, at any time during
the Purchase Period by delivering to the Purchaser not less than five (5)
business days before the proposed date of assignment an Offer substantially in
the form set out in Part 2 of the Third Schedule.
6.2 Each Offer delivered by the Seller pursuant to Clause 6.1 shall:
(i) constitute an offer by the Seller to sell and assign on the
proposed date of assignment to the Purchaser (by way of outright sale and not
merely by way of security) all of the Seller's right, title and interest in and
to an Additional Receivable to which such Offer relates (the "Available
Receivable"), including for the avoidance of doubt:
(a) the right to receive all Collections in respect
thereof; and
(b) all Related Security with respect to such Available
Receivable and all proceeds thereof;
(ii) specify in relation to the Available Receivable:
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(a) the name of the Buyer who owes the Available
Receivable;
(b) the Face Value thereof;
(c) description of the Equipment sold in relation to the
Available Receivable;
(d) the date of the Purchase Order relating to the
Available Receivable;
(e) the proposed date of assignment, which must be a
business day and must not be a date later than the last day of the Purchase
Period;
(f) the payment terms as provided for in the Purchase Order
relating to the Available Receivable;
(g) the date of Shipment of the Equipment relating to the
Available Receivable;
(h) the date and the period which the Seller proposes as
the Tentative Acceptance Date and the Tentative Credit Period, respectively, for
the Available Receivable;
(i) a selection (which may be tentative and subject to
change in the sole discretion of the Seller by the second business day prior to
the Subsequent Closing Date for the Available Receivable) of either the LIBOR
Based Rate or the COF Based Rate as the Discount Interest Rate applicable to the
Available Receivable; and
(j) whether a P/N in relation to the Available Receivable
has been or is to be issued by the Buyer; and
(iii) be accompanied by a copy of the Sales Agreement relating to
the Available Receivable.
6.3 The Seller shall disclose to the Purchaser such documents or other
information as the Purchaser may reasonably request to enable it to determine
whether an Available Receivable is an Eligible Receivable.
7. Acceptance of Offers
7.1 The Purchaser shall accept any Offer of the Available Receivable
which is an Eligible Receivable made by the Seller pursuant to Clause 6.
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7.2 If the Purchaser pursuant to Clause 7.1 accepts any Offer made by
the Seller in accordance with Clause 6, it shall notify the Seller in accordance
with Clause 34. Any such acceptance shall be irrevocable and binding upon the
Purchaser. When an Offer is so accepted by the Purchaser, an Available
Receivable to which such Offer relates shall become an "Accepted Receivable".
8. Consideration
8.1 Subject to the adjustment as provided for in Clauses 10 and 11, the
consideration payable by the Purchaser for sale and purchase of an Accepted
Receivable shall be an amount in Yen equal to the Face Value minus the Discount
in relation to such Accepted Receivable (the "Purchase Price"). The Purchase
Price shall be payable in accordance with Clause 9.1.
9. Assignment of Accepted Receivables
9.1 If the Available Receivable has become the Accepted Receivable in
accordance with Clause 7.2, completion of the sale and purchase of an Accepted
Receivable shall take place on the Subsequent Closing Date for such Accepted
Receivable (subject to the satisfaction of the conditions precedent set out in
Part 2 of the Second Schedule, any of which may be waived in the Purchaser's
sole discretion), whereupon:
(i) the Seller shall assign to the Purchaser such Accepted Receivable
by the Seller's and the Purchaser's executing and delivering to the other an
Assignment in relation to such Accepted Receivable;
(ii) the Seller shall deliver to the Purchaser the Additional Sales
Agreement to which such Accepted Receivable relates;
(iii) if the P/N in relation to such Accepted Receivable has been issued
by the Buyer in favor of the Seller, the Seller shall make endorsement without
recourse (mutanpo uragaki) on such P/N in favor of the Purchaser and deliver
such P/N to the Purchaser; and
(iv) the Purchaser shall make a payment of the Purchase Price of such
Accepted Receivable in accordance with Clause 25.1.
Part 5
ADJUSTMENT OF CONSIDERATION
10. Normal Adjustment
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10.1 In relation to each of the Purchased Receivables, an adjustment
amount (the "Adjustment Amount") (if any) calculated in accordance with Clause
10.3 shall be payable on a Receivables Payment Date for such Purchased
Receivable. The Adjustment Amount shall be payable by the Seller to the
Purchaser if a Receivables Payment Date falls on a date which is later than the
Tentative Receivables Due Date for such Purchased Receivable. The Adjustment
Amount shall be payable by the Purchaser to the Seller if a Receivables Payment
Date falls on a date which is earlier than a Tentative Receivables Due Date for
such Purchased Receivable.
10.2 In relation to a Purchased Receivable for which the Scheduled
Receivables Due Date has not been determined as of the date (the first "Reset
Date") three (3) business days before the Tentative Receivables Due Date, the
Seller shall on the first Reset Date notify in writing the Purchaser of (i) the
date (the first "Extended Tentative Date") on or around which the Seller
reasonably expects such Purchased Receivable will be paid by the relevant Buyer
and (ii) its election of either the Adjustment LIBOR Based Rate or the
Adjustment COF Based Rate as a rate applicable to the period up to the Extended
Tentative Date. If the Scheduled Due Date has not been determined as of the
date (the second "Reset Date") three (3) business days before the first Extended
Tentative Date, the Seller shall on the second Reset Date notify in writing the
Purchaser of the second Extended Tentative Date and its election of the
applicable rate in a manner similar to the first Reset Date, which procedures,
if applicable, shall be repeatedly taken. In relation to a Purchased Receivable
for which the Scheduled Receivables Due Date has been determined as of the Reset
Date or any subsequent Reset Date, the Seller shall on such Reset Date notify in
writing the Purchaser of its election of either the Adjustment LIBOR Based Rate
or the Adjustment COF Based Rate as a rate applicable to the period up to such
Scheduled Receivables Due Date.
10.3 "Adjustment Amount" in relation to a Purchased Receivable and a
Receivables Payment Date for such Purchased Receivable shall be the amount in
Yen which shall be calculated in accordance with the formula set forth in
Paragraph (i) below, if it is payable by the Purchaser, or the amount equal to
the sum of each Partial Adjustment Amount to be calculated in accordance with
the formula set forth in Paragraph (ii) below, if it is payable by the Seller.
(i) A = B x C x (D/E)
where:
A = the Adjustment Amount
B = the Paid Amount on such Receivables Payment Date
C = the Discount Rate applicable to such Purchased Receivable
D = the Adjustment Period applicable to such Purchased
Receivable and Receivables Payment Date
E = the Discount Period applicable to such Purchased
Receivable; and
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(ii) A = B x C x (D/365)
where:
A = each Partial Adjustment Amount
B = the Paid Amount on such Receivables Payment Date
C = (x) the Adjustment LIBOR Based Rate or the Adjustment
COF Based Rate, as elected by the Seller, applicable to the Reset Period
relating to the relevant Partial Adjustment Period or (y) the Adjustment LIBOR
Based Rate applicable to the Overdue Reset Period relating to the relevant
Partial Adjustment Period
D = each Partial Adjustment Period applicable to such
Purchased Receivable and Receivables Payment Date
Provided that the Margin applicable to the Adjustment LIBOR Based
Rate or the Adjustment COF Based Rate, as the case may be, shall be reduced to
nine-twentieths of one percent (0.45%) for the days elapsed during a Partial
Adjustment Period which also fall under the Margin Reduction Period in relation
to such Purchased Receivable. The "Margin Reduction Period" in relation to a
Purchased Receivable shall be the period during which (x) the Acceptance or the
Partial Acceptance of the Equipment in relation to such Purchased Receivable has
occurred, (y) the conditions precedent set out in Paragraph 2(a) of Part 1 or
Part 2, as the case may be, of the Second Schedule have been satisfied, or, as
the case may be, the P/N in relation to such Purchased Receivable has been
issued by the relevant Buyer to the Purchaser and (z) the relevant Buyer is
given and maintains a rating in respect of its long-term unsecured and
unsubordinated debt being "A" or higher by any of Standard & Poor's Corporation,
Moody's Investors Service Inc. or Japan Bond Research Institute.
10.4 If, in relation to a Purchased Receivable, there is the Margin
Reduction Period prior to the Tentative Receivables Due Date, the Margin
Reduction Amount shall be payable by the Purchaser to the Seller on such
Tentative Receivables Due Date. The "Margin Reduction Amount" in relation to a
Purchased Receivable shall be the amount in Yen which shall be calculated by
multiplying the Purchase Price of such Purchased Receivable (or, if a Receivable
Payment Date for such Purchased Receivable comes earlier than the Tentative
Receivables Due Date, such portion of such Purchase Price as is corresponding to
a Paid Amount on such Receivables Payment Date) (i) by nine-twentieths of one
percent (0.45%) and (ii) further by a fraction the numerator of which is the
actual number of days elapsed during such Margin Reduction Period up to, but
excluding, such Tentative Receivables Due Date (or, if a Receivables Payment
Date for such Purchased Receivable comes earlier than the Tentative Receivables
Due Date, such Receivables Payment Date) and the denominator of which is 365.
11. Adjustment due to Reduction of Face Value
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11.1 On the fifth (5th) business day after the date on which the Partial
Acceptance (if any) occurs, the Reduction Adjustment Amount (if any) shall be
payable by the Seller to the Purchaser.
Part 6
REPRESENTATIONS, WARRANTIES AND COVENANTS
12. Representations and Warranties
12.1 The Seller (in such capacity and as the Collection Agent)
represents and warrants to the Purchaser that as of (i) the date hereof, (ii)
the Initial Closing Date, (iii) each Subsequent Closing Date, (iv) the date of
each Offer, and (v) (except in relation to the representations and warranties
that the Buyer by whom the relevant Purchased Receivable is owed is the Eligible
Buyer, or that the relevant Purchased Receivable is not overdue, is legally and
beneficially owned by the Seller) each day on which any Purchased Receivable is
outstanding until the Scheduled Receivables Due Date has been determined for all
of the Purchased Receivable and sixty (60) days have passed after the last
Scheduled Receivables Due Date, each of the statements set out in the Sixth
Schedule is true, by reference to the facts and circumstances existing at the
relevant time, Provided that, in connection with Paragraphs (ii), (iii) and (iv)
above, the representations and warranties provided for in Part 3 of the Sixth
Schedule in relation to a Purchased Receivable shall be deemed to be made by the
Seller on the relevant Closing Date and the date of the relevant Offer.
13. Financial Information
13.1 The Seller shall, until the later of the expiry of the Purchase
Period and the date which is sixty (60) days after the last Scheduled
Receivables Due Date following the determination of the Scheduled Receivable Due
Date for all of the Purchased Receivables:
(i) within one hundred (100) days after the end of each of its
financial years, deliver to the Purchaser its financial statements for such
financial year; and
(ii) within fifty-five (55) days after the end of each of its
financial quarters, deliver to the Purchaser its financial statements for such
financial quarter.
13.2 The Seller shall ensure that:
(i) each set of financial statements delivered by it pursuant to
Clause 13.1 (i) is prepared in accordance with accounting principles generally
accepted in Japan and consistently applied (except for changes disclosed
therein);
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(ii) each set of financial statements delivered by it pursuant to
Clause 13.1 (i) is certified by a duly authorized officer as giving a true and
fair view of its financial condition as at the end of the period to which those
financial statements relate and of the results of its operations during such
period;
(iii) each set of financial statements delivered by it pursuant to
Clause 13.1 (i) has been reviewed by an internationally recognized firm of
independent auditors; and
(iv) each set of quarterly financial statements delivered by it
pursuant to Clause 13.1 (ii) is prepared in accordance with accounting
principles generally accepted in Japan and consistently applied (except for
changes disclosed therein).
14. Seller's Covenants
14.1 The Seller shall, until the later of the expiry of the Purchase
Period and the date which is sixty (60) days after the last Scheduled
Receivables Due Date following the determination of the Scheduled Receivables
Due Date for all of the Purchased Receivables:
(i) obtain, comply in all material respects with the terms of
and do all that is necessary and reasonably practicable to maintain in full
force and effect all authorizations, approvals, licenses and consents required
in or by the laws and regulations of Japan to enable it lawfully to enter into
and perform its obligations under this Agreement and each Assignment from time
to time in respect of any Purchased Receivables or to ensure the legality,
validity, enforceability against the Seller or admissibility in evidence in
Japan of this Agreement or any such Assignment;
(ii) ensure that at all times the claims against it under this
Agreement rank at least pari passu with the claims of all its other unsecured
creditors save those whose claims are preferred by any bankruptcy, insolvency or
other similar laws of general application;
(iii) permit audit and inspection under its guidance of its
Records by or on behalf of the Purchaser during normal working hours upon
reasonable notice and with reasonable frequency;
(iv) maintain sufficient operating procedures to manage the
transactions contemplated herein and to perform its obligations hereunder;
(v) (without prejudice to Clause 16.1) indemnify the Purchaser
from and against all liabilities, losses and fees, costs and expenses in respect
of any breach by the Seller of the representations and warranties made by it
pursuant to the terms of Clause 12;
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(vi) furnish to the Purchaser sufficient copies of such other
information relating to its business as may be reasonably requested in writing
by the Purchaser in order to enable it to carry out its functions hereunder;
(vii) do all things necessary to remain duly organized, validly
existing under the laws of Japan and maintain all requisite authority to conduct
its business in Japan;
(viii) comply in all respects which could be regarded as material
in the context of the transactions contemplated by this Agreement, with all
laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject;
(ix) deliver to the Purchaser the certificate of delivery (if
applicable) of the Perfection Document issued by the postal service as soon as
practicable after it receives the same;
(x) ensure, in relation to a Purchased Receivable to which the
conditions precedent set out in Paragraph 2(b) of Part 1 or Part 2, as the case
may be, of the Second Schedule have been satisfied, that the relevant Buyer
issues the P/N to the Seller promptly upon (but subject to the applicable terms
of the relevant Sales Agreement) the Acceptance or the Partial Acceptance of the
relevant Equipment, and if the P/N is issued (regardless of whether or not such
conditions precedent were applicable) to the Seller, promptly notify the
Purchaser thereof and make endorsement without recourse (mutanpo uragaki) on
such P/N in favor of the Purchaser and deliver, or cause to be delivered, such
P/N to the Purchaser;
(xi) give the Purchaser notice of any material change to its
administrative and operating procedures in relation to the keeping and
maintaining of Records;
(xii) at its expense, in a timely manner fully perform and comply
with all provisions, covenants and other promises required to be observed by it
under the Sales Agreements related to the Purchased Receivables as if interests
in such Purchased Receivables have not been assigned and sold hereunder;
(xiii) promptly after it becomes aware of the occurrence of any of
the Termination Events or the Potential Termination Events, notify the Purchaser
thereof; and
(xiv) cooperate with the Purchaser and execute and deliver to the
Purchaser such other instruments and documents and take such other actions as
may be reasonably requested from time to time in order to carry out, evidence
and confirm the Purchaser's rights and the intended purpose of this Agreement,
including, but not limited
22
to, perfecting, protecting or evidencing the Purchaser's right and interest in
or to the Purchased Receivables.
14.2 The Seller shall not:
(i) sell, assign, convey, transfer, lease or otherwise dispose
of any Purchased Receivables other than pursuant hereto, or attempt, purport or
agree to do any of the foregoing;
(ii) cancel, terminate, amend, modify or waive any material term
or condition of any Sales Agreement relating to Purchased Receivables, except
insofar as the provisions contained in Clauses 11, 16 and 17 are complied with
by the Seller;
(iii) compromise or settle any dispute or claim in respect of any
Purchased Receivable;
(iv) take any action which is reasonably likely to prejudice the
validity or recoverability of any Purchased Receivable;
(v) seek to challenge the validity of any sale of Receivables in
any legal proceedings; or
(vi) do anything which would materially and adversely affect the
interests of the Purchaser hereunder or the maintenance by the Purchaser of any
licenses, exemptions, authorizations or consents necessary in connection with
this Agreement or the transactions contemplated hereby.
15. Purchaser's Covenants
15.1 The Purchaser shall obtain, comply with the terms of and do all
that is necessary to maintain in full force and effect all authorizations,
approvals, licenses and consents required in or by the laws and regulations of
Japan to enable it lawfully to enter into and perform its obligations under this
Agreement or to ensure the legality, validity, enforceability or admissibility
in evidence in Japan of this Agreement or of any Assignment pursuant to the
terms of this Agreement.
16. Seller's Indemnity
16.1 Without limiting any other rights which the Purchaser may have
hereunder or under applicable law, the Seller (in such capacity and as the
Collection Agent) hereby agrees to indemnify the Purchaser and its officers,
directors, agents and employees from and against any and all damages, losses,
claims, liabilities, costs and expenses, including, without limitation
reasonable attorneys' fees and disbursements including any tax thereon (all of
the foregoing being collectively referred to as "Indemnified Amounts") awarded
23
against or incurred by any of them in connection with this Agreement, or the
acquisition of an interest by the Purchaser in the Purchased Receivables, as a
result of any breach by the Seller or the Collection Agent (insofar as the
Seller is the Collection Agent) of any representation, warranty or covenant made
or deemed to be made hereunder or in connection herewith or the transactions
contemplated hereby, excluding, however, (i) Indemnified Amounts to the extent
that a final judgment of a court of competent jurisdiction holds that such
Indemnified Amounts resulted solely from gross negligence or wilful misconduct
on the part of the Purchaser or any of its officers, directors, agents or
employees or (ii) Indemnified Amounts arising out of the failure of any Buyer to
pay amounts lawfully owed in respect of a Purchased Receivable. Without
limiting the generality of the foregoing (and without prejudice to Clause 17),
the Seller shall indemnify, to the extent not indemnified as a result of the
operation of Clause 17.4, the Purchaser for Indemnified Amounts relating to or
resulting from:
(i) the sale and assignment to the Purchaser hereunder of any
Receivable other than an Eligible Receivable;
(ii) reliance on any representation or warranty made by the
Seller (or any officers of the Seller), under or in connection with this
Agreement or any of the Transaction Documents or any other material information
or report delivered by the Seller to the Purchaser which shall have been false,
incorrect or omitting of any material fact at the time made or deemed made;
(iii) the failure by the Seller (or any officer of the Seller) to
comply with any applicable law, rule or regulation with respect to any Purchased
Receivable or the related Sales Agreement or the non-conformity of any Purchased
Receivables or the related Sales Agreement with any such applicable law, rule or
regulation;
(iv) the failure to vest and maintain in the Purchaser the
Purchased Receivables free and clear of any encumbrance;
(v) any dispute, claim, offset or defense (other than the
discharge in bankruptcy of the Buyer) of the Buyer to the payment of a Purchased
Receivable, including, without limitation, a defense based on such Receivable or
the related Sales Agreement not being a legal, valid and binding obligation of
such Buyer enforceable against it in accordance with its terms, any defect of
the Equipment which has been sold under the Sales Agreements or the failure by
the Seller to perform any obligations related to such related Sales Agreement
under any applicable laws, rules or regulations;
(vi) any failure of the Seller to perform its duties or
obligations in accordance with the provisions of this Agreement or the other
Transaction Documents;
24
(vii) any disclosure of information regarding the Buyer by the
Seller to the Purchaser or the supply of any Sales Agreements, Records and all
other related documents to the Purchaser; and
(viii) any claim arising from collection activities conducted by
the Seller.
Part 7
REPURCHASE OF RECEIVABLES
17. Repurchase of Receivables
17.1 No later than the fifth (5th) business day following the date of a
demand in writing from the Purchaser (which demand the Purchaser may in its sole
discretion in accordance with this Clause 17.1, but will in no event be required
to, make) in relation to any Purchased Receivable in respect of which, at the
time of giving such demand:-
(i) (a) the conditions set forth in Paragraph 2(a) of Part 1 or
Part 2, as the case may be, of the Second Schedule have been satisfied (or such
conditions would have been applicable, but have been waived by the Purchaser),
but the obligation of the Buyer to pay the Face Value or (if applicable) the
Revised Face Value of such Purchased Receivable is, or the Buyer claims that
such obligation is, not enforceable in full by the Purchaser in accordance with
the terms of the relevant Sales Agreement for any reason whatsoever, including,
without limitation, any defense, or asserted defense, of the Buyer to such
obligation (but excluding the discharge in accordance with applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally); (b) the condition precedent set
forth in Paragraph 2(b) of Part 1 or Part 2, as the case may be, of the Second
Schedule has been satisfied (or such condition would have been applicable, but
has been waived by the Purchaser), but (1) the P/N is not delivered by the Buyer
to the Seller in accordance with the relevant Sales Agreement following the
Acceptance or the Partial Acceptance or (2) the obligation represented by the
P/N held by the Purchaser is, or the Buyer claims that such obligation is, not
enforceable in full for any reason whatsoever, including, without limitation,
any defense or asserted defense, of the Buyer to such obligation or the
underlying Purchased Receivable (but excluding the discharge in accordance with
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally);
(ii) any representation or warranty set out in Part 3 of the
Sixth Schedule is incorrect when made or deemed to be made pursuant to Clause
12.1;
(iii) the Seller, or the Buyer claims that the Seller, has failed
to comply with any applicable law, rule or regulation, in a manner which is
likely to affect Buyer's
25
obligation to pay the Face Value or (if applicable) the Revised Face Value or to
adversely affect the relevant Related Security (if any);
(iv) the Seller, or the Buyer claims that the Seller, has failed,
or is unable, to perform any of its obligations under the related Sales
Agreement;
(v) (without prejudice to the generality of any of the
foregoing) the Acceptance or the Partial Acceptance of the Equipment relating to
such Purchased Receivable has not occurred on or before two hundred and seventy
(270) days after the Shipment Date for such Purchased Receivable;
(vi) (without prejudice to the generality of any of the
foregoing) the Scheduled Receivables Due Date for such Purchased Receivable has
been determined to be a date which renders the period from the Acceptance or (if
applicable) the Partial Acceptance relating to such Purchased Receivable to such
Scheduled Receivables Due Date longer than the period equal to (a) two hundred
and twenty-five (225) days or (b) the sum of the Tentative Credit Period for
such Purchased Receivable and forty-four (44) days, whichever is shorter; or
(vii) (without prejudice to the generality of any of the
foregoing) it has been determined between the Seller and the relevant Buyer that
the Acceptance or the Partial Acceptance of the Equipment relating to such
Purchased Receivable will not occur, including, but not limited to, the case
where it has been determined that such Equipment is to be replaced in whole,
Provided that the Buyer's claim referred to in Paragraphs (i),
(iii) and (iv) must be, if such claim is presented after the Acceptance or the
Partial Acceptance of the relevant Equipment, presented with such ground as is,
in the reasonable opinion of the Purchaser, reasonable under the circumstances.
the Seller shall repurchase such Purchased Receivable.
17.2 Upon payment by the Seller of the repurchase price (to be
calculated in accordance with Clause 17.3) in respect of a repurchase of any
Receivable pursuant to Clause 17.1 (at the cost of the Seller and without
recourse or warranty, except for the warranty expressly given in the relevant
Assignment, on the part of the Purchaser):
(i) the Purchaser shall re-assign to the Seller or its designee
all its right, title and interest in and to the Receivable(s) concerned,
including for the avoidance of doubt:
(a) the right to receive all Collections in respect
thereof; and
26
(b) all Related Security with respect to such Receivable(s)
and all proceeds thereof, by the Seller's (or its designee's) and the
Purchaser's execution and delivery to the other of an assignment in relation to
each such Receivable substantially in the form of Part 4 of the Third Schedule;
and
(ii) the Purchaser will deliver to the Seller (or its designee)
the relevant Sales Agreement and take all such other steps and comply with all
such other formalities as the Seller may reasonably request to perfect or more
fully to evidence or secure the Seller's (or its designee's) title to such
Receivable, including, where appropriate, by giving notice of such re-assignment
to the relevant Buyer in the form of a document duly date-stamped (kakutei
hizuke) and making endorsement without recourse (mutanpo uragaki) in favor of
the Seller (or its designee) on, and delivering to the Seller (or its designee),
the P/N (if any) which has been assigned to the Purchaser in relation to such
Receivable.
17.3 The repurchase price payable by the Seller to the Purchaser in
accordance with Clause 17.1 shall be:-
(i) if a Purchased Receivable is repurchased prior to its
Tentative Receivables Due Date, an amount in Yen equal to (x) the Face Value or
(if the Reduction Adjustment Amount has been paid in accordance with Clause
11.1) the Revised Face Value minus (y) the Repurchase Discount in relation to
such Purchased Receivable;
(ii) if a Purchased Receivable is repurchased on its Tentative
Receivables Due Date, an amount in Yen equal to the Face Value or (if the
Reduction Adjustment Amount has been paid in accordance with Clause 11.1) the
Revised Face Value of such Purchased Receivable; or
(iii) if a Purchased Receivable is repurchased after its Tentative
Receivables Due Date, an amount in Yen equal to (x) the Face Value or (if the
Reduction Adjustment Amount has been paid in accordance with Clause 11.1) the
Revised Face Value plus (y) the Repurchase Premium in relation to such Purchased
Receivable(s).
17.4 Without prejudice to the generality of Clauses 16.1 and 18.1 to,
but only to, the extent of the repurchase price actually paid to the Purchaser,
the repurchase pursuant to Clause 17.1 of a Purchased Receivable shall be in
satisfaction and discharge of any right or remedies which the Purchaser may
otherwise have had as a result of any breach, anticipatory breach or other
circumstance on the part of or affecting the Seller (in that capacity or in its
capacity as Collection Agent) arising under this Agreement in relation to such
Receivable.
Part 8
27
INDEMNITY FOR FUNDING LOSSES
18. Indemnity by the Seller for Funding Losses
18.1 The Seller shall reimburse the Purchaser on demand for any
resulting loss or expense incurred by it, including (without limitation) any
loss incurred in obtaining, liquidating or redeploying deposits from third
parties, Provided that in the case of Paragraphs (i) and (ii) below in this
Clause 18.1 the amount of such loss or expense (which shall not be less than
zero) shall be determined in good faith by the Purchaser based on the formula
set out in each such Paragraph, Provided further that the Purchaser shall have
delivered to the Seller a certificate as to the amount of such loss or expense
setting out in reasonable detail the calculations resulting in such amount,
which certificate shall be conclusive in the absence of manifest error, if:-
(i) any amount in relation to a Purchased Receivable (including,
but not limited to, a Paid Amount, a repurchase price pursuant to Clause 17.3
and a Reduction Adjustment Amount) other than amounts payable pursuant to Clause
29 is received by the Purchaser prior to the Tentative Receivables Due Date for
such Purchased Receivable,
in which event the following formula shall apply:
Loss = A x (B - C) x (D/365)
where:
A = the amount (or the relevant portion thereof)
required of Purchaser to fund the purchase of such Purchased Receivable
B = the LIBOR or the COF, as the case may be,
applicable to the Discount Interest Rate for such Purchased Receivable
C = the rate per annum, expressed as a decimal, of
interest which the Purchaser is reasonably able to obtain by placing an amount
equal to such amount so received on deposit in the Tokyo yen money market as of
the date of receipt of such amount for the period from, and including, the date
of such receipt of payment and to, but excluding, such Tentative Receivables Due
Date
D = the actual number of days elapsed during the
period referred to in "C" above;
(ii) any amount in relation to a Purchased Receivable (including,
but not limited to, a Paid Amount, a repurchase price pursuant to Clause 17.3
and a Reduction Adjustment Amount) other than amounts payable pursuant to Clause
29 is received by the Purchaser after the relevant Tentative Receivables Due
Date but prior to the end of any Reset Period or Overdue Reset Period for such
Purchased Receivable,
in which event the following formula shall apply:
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Loss = A x (B - C) x (D/365)
where:
A = the amount (or the relevant portion thereof)
required of the Purchaser to continue (by means of refinance or otherwise) the
funding for the purchase of such Purchased Receivable
B = the LIBOR or the COF, as the case may be,
applicable to such Reset Period or Overdue Reset Period
C = the rate per annum, expressed as a decimal, of
interest which the Purchaser is reasonably able to obtain by placing an amount
equal to such amount so received on deposit in the Tokyo yen money market as of
the date of receipt of such amount for the period from, and including, the date
of such receipt of payment and to, but excluding, the last day of such Reset
Period or Overdue Reset Period
D = the actual number of days elapsed during the
period referred to in "C" above; or
(iii) the assignment of any of the Initial Receivables or an
Accepted Receivable does not occur on the Initial Closing Date or the relevant
Subsequent Closing Date in accordance with Clause 5.1 or 9.1 (as the case may
be) by reason of non-fulfillment of any of the conditions set out in the Second
Schedule.
Part 9
COLLECTION OF RECEIVABLES
19. Appointment of Collection Agent
19.1 Lam Research Co., Ltd. is hereby appointed by the Purchaser as its
agent to service, collect and administer all Purchased Receivables, to perform
all related functions and to enforce the Purchaser's rights and interests in and
under the Purchased Receivables, and Lam Research Co., Ltd. hereby accepts such
appointment as Collection Agent on the terms and subject to the conditions of
this Agreement.
19.2 The Purchaser may at any time after the occurrence of a Termination
Event in the circumstances described in Clause 22, remove Lam Research Co., Ltd.
as Collection Agent.
19.3 Upon Lam Research Co., Ltd. being removed as Collection Agent
pursuant to Clause 22 the Purchaser may appoint a successor to act as Collection
Agent and shall forthwith notify the other parties hereto thereof, whereupon the
parties hereto and such successor shall, upon such successor confirming in
writing to the Purchaser that it agrees so to act, thereafter have the same
rights and obligations among them as would
29
have been the case had they then entered into an agreement in the form mutatis
mutandis of this Agreement.
19.4 For the avoidance of doubt, it is hereby agreed that the Collection
Agent is not authorized to enter into any commitment on behalf of the Purchaser.
19.5 The Collection Agent hereby covenants and undertakes with the
Purchaser as set out in the Seventh Schedule.
19.6 The Collection Agent agrees to indemnify the Purchaser, including
its officers, directors and employees from and against any liability, loss,
expense, action, proceeding or claim which may be brought against, or suffered
or sustained, by the Purchaser, and/or such directors, officers and employees by
reason of any wrongful or negligent acts or omissions of the Collection Agent or
any of its directors, officers, employees or agents in the performance of its
duties hereunder.
19.7 The Collection Agent shall have no liability for any obligation of
a Buyer under any Purchased Receivable and nothing herein shall constitute a
guarantee, or similar obligation, by the Collection Agent of any Purchased
Receivable or any Buyer.
20. Collection of Receivables
20.1 Save as otherwise provided herein, the proceeds of each Purchased
Receivable will, when paid, be collected by the Collection Agent.
20.2 The Collection Agent has opened a collection account (account no.
13-23-016) (the "Collection Account") in its own name maintained at ABN AMRO
Bank N.V., Tokyo Branch and if at any time the Collection Agent ceases to be the
agent of the Purchaser for the purposes hereof, then its successor shall open in
its name such a Collection Account (maintained at such bank as the Purchaser
shall have approved) and the retiring Collection Agent shall transfer to the
credit thereof any amount standing to the credit of the Collection Account
opened by it together with accrued interest thereon.
20.3 The Collection Agent shall cause the Buyers to make payment in
respect of the Purchased Receivables into the Collection Account, Provided that
if the P/N has been issued in relation to a Purchased Receivable in favor of the
Seller and delivered to the Purchaser in accordance herewith, the Purchaser
shall collect on its behalf the amount represented by such P/N.
20.4 The Collection Agent shall pay any Collection collected in the
Collection Account with respect to a Purchased Receivable over to the Purchaser
in accordance with Clause 24 as soon as practicably possible (but in no event
later than the fifth (5th) business day after such collection) by giving a
standing debit and transfer authorization to ABN AMRO Bank N.V., Tokyo Branch in
a form reasonably satisfactory to the Purchaser and maintaining such
authorization. To secure the obligations of the
30
Collection Agent under this Clause 20.4, the Collection Agent hereby agrees to
take such reasonable measures as may be requested by the Purchaser so as to
create, a pledge in favor of the Purchaser over all its rights and interests in
and to the Collection Account and any moneys and balances from time to time
deposited therein or standing to the credit thereto or any proceeds thereof and
has submitted a deposit certificate for the Collection Account to the Purchaser.
If the Collection Agent fails to perform its obligations under the first
sentence of this Clause 20.4, (i) the Collection Agent hereby consents to the
Purchaser's immediate enforcement of such rights and interests as pledgee
directly against ABN AMRO Bank N.V., Tokyo Branch without any notice or proof,
and (ii) the Purchaser, as a bank with whom the Collection Account is held,
shall be immediately entitled to set off any of its obligation owed to the
Collection Agent in relation to the Collection Account against any of such
obligations of the Collection Agent. The Collection Agent will procure a
consent in writing to creation of the pledge from ABN AMRO Bank N.V., Tokyo
Branch, such consent being in the form of a document duly date-stamped (kakutei
hizuke) by a notary public in accordance with Article 467 (1) and (2) of the
Civil Code of Japan and in a form and substance reasonably satisfactory to the
Purchaser.
20.5 If, at any time the Collection Agent receives any Collections in
respect of any Purchased Receivables and the authority of the Collection Agent
to collect such Receivables has been terminated in accordance with this
Agreement then the Collection Agent shall pay such amount to the credit of such
account in Tokyo as the Purchaser shall have notified in writing for this
purpose in each case for value the same day.
20.6 Any amounts in respect of the collection proceeds of any Purchased
Receivable received by the Collection Agent (whether or not the appointment of
the Collection Agent has been terminated hereunder) shall be held for the
Purchaser.
21. Cost, Expenses and Remuneration
21.1 The Purchaser authorizes the Collection Agent on its behalf, and
the Collection Agent undertakes to incur reasonable cost, expenses and charges
in connection with the enforcement of any Purchased Receivable and/or the
Purchaser's rights and remedies in relation thereto and it is agreed that
notwithstanding any provisions under the applicable laws (including, but not
limited to, Articles 649 and 650 of the Civil Code of Japan), the Collection
Agent shall have no recourse or claim for indemnification or payment against the
Purchaser in respect of such reasonable costs, expenses and charges. Without
prejudice to the generality of the foregoing, the Purchaser, at the request of
the Collection Agent, shall provide it with reasonable assistance in connection
with such enforcement.
21.2 The Collection Agent is not entitled to any remuneration or
indemnity in respect of the performance of its duties under this Agreement.
22. Removal or Termination of Collection Agent
31
22.1 If a Termination Event occurs, the Purchaser may at any time,
without prejudice to the Purchaser's other rights:
(i) by notice in writing to the Collection Agent terminate the
appointment of the Collection Agent under this Agreement and designate as a
successor collection agent any person to succeed the Collection Agent; and/or
(ii) notify the relevant Buyers that all payments in respect of
Purchased Receivables shall be made to the Purchaser or a successor collection
agent.
22.2 On and after termination of the appointment of the Collection Agent
under this Agreement pursuant to Clause 22.1, all rights, obligations (other
than liability for breaches of this Agreement by the Collection Agent or
liability in tort or for breach of trust (or other fiduciary duty) on the part
of the Collection Agent prior to such termination and the Collection Agent's
obligations under Clause 22.3 with respect to the performance of its duties
hereunder), authority and power of the Collection Agent under this Agreement
shall be terminated and of no further effect and the Collection Agent shall not
hold itself out in any way as the agent of the Purchaser.
22.3 Upon termination of the appointment of the Collection Agent under
this Agreement pursuant to Clause 22.1, the Collection Agent shall forthwith
deliver to the Purchaser or as it shall direct the Records in its possession or
under its control relating to the affairs of or belonging to the Purchaser and
the Purchased Receivables and any other security therefor and any moneys then
held by the Collection Agent on behalf of the Purchaser and shall take such
action as the Purchaser may reasonably direct.
22.4 The appointment of the Collection Agent under this Agreement shall
terminate (but without affecting any accrued rights and liabilities hereunder)
at such time as (i) the Purchaser has no further interest in any of the
Purchased Receivables and (ii) the Collection Agent is notified by the Purchaser
in accordance with Clause 34 that such is the case.
22.5 If there is any change in the identity of the Collection Agent in
accordance with this Agreement, the new collection agent and the Purchaser shall
execute such documents and take such actions as such collection agent and the
Purchaser may require for the purpose of vesting in such new collection agent
the rights and obligations of the Collection Agent under this Agreement and
releasing the retiring Collection Agent from its future obligations under this
Agreement.
Part 10
PAYMENTS
32
23. Currency of Account and Payment
23.1 Yen is the currency of account and payment for each and every sum
at any time due from any person hereunder Provided that:
(i) each payment in respect of costs and expenses shall be made
in the currency in which the same were incurred; and
(ii) each payment which is expressed herein to be payable in
another currency shall be made in that other currency.
23.2 If any sum due from a person (a "relevant person") under this
Agreement or any order or judgment given or made in relation hereto has to be
converted from the currency (the "first currency") in which the same is payable
hereunder or under such order or judgment into another currency (the "second
currency") for the purpose of (i) making or filing a claim or proof against the
relevant person, (ii) obtaining an order or judgment in any court or other
tribunal or (iii) enforcing any order or judgment given or made in relation
hereto, the relevant person shall indemnify and hold harmless the other person
to whom such sum is due from and against any loss suffered as a result of any
discrepancy between (a) the rate of exchange used for such purpose to convert
the sum in question from the first currency into the second currency and (b) the
best rate or rates of exchange at which such other person is reasonably able to
purchase the first currency with the second currency upon receipt of a sum paid
to it in satisfaction, in whole or in part, of any such order, judgment, claim
or proof. To the extent that the person to whom such payment is due receives an
amount in excess of the amount due to it under this Agreement, such person shall
forthwith pay an amount equal to any such excess to the relevant person.
23.3 All payments made by any person hereunder shall be made free and
clear of and without any deduction for or on account of any set-off or
counterclaim.
24. Payments by the Seller or the Collection Agent
24.1 On each date upon which this Agreement requires an amount to be
paid by the Seller or the Collection Agent to the Purchaser hereunder, the
Seller or the Collection Agent (as the case may be) shall, save as expressly
provided otherwise herein, make the same available to the Purchaser:
(i) where such amount is denominated in Yen, by payment in Yen
and in immediately available funds to such account and bank in Tokyo as the
Purchaser shall have specified in writing for this purpose at least two business
days prior to such amount becoming payable; or
(ii) where such amount is denominated in a currency other than
Yen, by payment in such currency and in immediately available, freely
transferable,
33
cleared funds to such account with such bank in the principal financial centre
of the country of such currency as the Purchaser shall have specified in writing
for this purpose at least five business days prior to such amount becoming
available.
25. Payments by the Purchaser
25.1 On each date upon which this Agreement requires an amount to be
paid to the Seller hereunder by the Purchaser, the Purchaser shall, save as
otherwise provided herein, make the same available to the Seller:
(i) where such amount is denominated in Yen, by payment in Yen
and in immediately available funds to the Seller at such account and bank as the
Seller shall have specified in writing for this purpose at least two business
days prior to such amount becoming payable; or
(ii) where such amount is denominated in a currency other than
Yen, by payment in such currency and in immediately available, freely
transferable, cleared funds to such account with such bank in the principal
financial centre of the country of such currency as the Seller shall have
specified in writing for this purpose at least five business days prior to such
amount becoming payable.
Part 11
TAXES
26. Taxes
26.1 All payments to be made by or on behalf of the Seller or the
Collection Agent to the Purchaser under or pursuant to any of the provisions of
this Agreement shall be made free and clear of and without deduction for or on
account of tax unless the Seller or the Collection Agent (as the case may be) is
required by any applicable law to make such payment subject to the deduction or
withholding of tax in which case the sum payable by the Seller or the Collection
Agent (as the case may be) in respect of which such deduction or withholding is
required to be made shall be increased to the extent necessary to ensure that,
after the making of such deduction or withholding (including any additional
deduction or withholding on such increased amount), the Purchaser receives and
retains (free from any liability in respect of any such deduction or
withholding) a net sum equal to the sum which it would have received and so
retained had no such deduction or withholding been made or required to be made.
26.2 If the Seller or the Collection Agent makes any payment to the
Purchaser under or pursuant to this Agreement in respect of which it is required
to make any such deduction or withholding, the Seller or the Collection Agent
(as the case may be) shall deliver to the Purchaser as soon as practicable a
certificate of deduction of tax and/or a
34
receipt or other evidence issued by the relevant taxation or other authority
demonstrating the payment to such authority of all amounts so required to be
deducted or withheld.
26.3 If an event occurs which would result in the Seller or the
Collection Agent becoming obliged to make any payment pursuant to this Clause 26
then each of the parties hereto shall in good faith use reasonable endeavors to
take such reasonable steps as may be open to it to mitigate or avoid the effects
of such event provided that nothing in this Clause 26.3 shall:
(i) oblige any party hereto to incur any costs or expenses or to
take or refrain from taking any action where in the reasonable opinion of such
party to take or refrain from taking any action would be prejudicial to its
interests; or
(ii) oblige any party hereto to disclose any confidential
information relating to the organization of its affairs; or
(iii) interfere with the right of any party hereto to arrange its
internal affairs in whatever manner it thinks fit.
Part 12
TERMINATION
27. Consequence of a Termination Event
27.1 If a Termination Event shall occur and be continuing, the Purchaser
may, by notice to the Seller, declare that the Termination has occurred, at
which time Termination shall be deemed to have occurred, provided, however, that
if a Termination Event is the occurrence of an Insolvency Event in relation to
the Seller or the Guarantor, Termination shall be deemed to have occurred
automatically, without notice by the Purchaser, as of the time immediately
preceding the institution of the relevant proceeding or the filing of the
relevant petition.
27.2 Immediately upon Termination:
(i) the Purchase Period shall be deemed to have expired; and
(ii) all of the Purchased Receivables, except for those as to
which (x) the conditions precedent set out in Paragraph 2(a) of Part 1 or Part
2, as the case may be, of the Second Schedule have been satisfied and the
Scheduled Receivables Due Date has been determined or (y) the condition
precedent set out in Paragraph 2(b) of Part 1 or Part 2, as the case may be, of
the Second Schedule has been satisfied and the relevant P/N has been assigned to
the Purchaser in accordance with this Agreement, shall be immediately
35
repurchased by the Seller or its designee, in which event the provisions
contained in Clauses 17.2 to 17.4 shall be applied mutatis mutandis.
27.3 If the Termination Event shall have occurred as a result of the
Guarantor's breach of any of its obligations set out in sub-paragraphs (f), (g)
and (h) of paragraph 4 of the Guaranty, the Seller shall cause cash in the
amount equal to thirty percent (30%) of the total amount of the Face Value or
(if the Reduction Adjustment Amount has been paid) the Revised Face Value of all
of Purchased Receivables as described in Paragraph(ii) of Clause 27.2 shall be
provided to the Purchaser by way of security for the Seller's obligations
hereunder and the Guarantor's obligations under the Guaranty in relation to such
Purchased Receivables in a manner reasonably satisfactory to the Purchaser
within five (5) business days after the date on which the Termination Event
occurred and such cash by way of security shall be lawfully maintained. If and
insofar as (i) the Seller's such obligation detailed in the first sentence of
this Clause 27.3 shall be complied with and (ii) no other Termination Event or
Potential Termination Event shall have been occurred, notwithstanding Paragraph
(ii) of Clause 27.2, such Purchased Receivables shall not be required to be
repurchased by the Seller. The Purchaser shall hold any funds delivered to it
pursuant to the first sentence of this Clause 27.3 in an interest bearing
account in the name of the Seller or its designee.
Part 13
MISCELLANEOUS
28. Default Interest and Indemnity
28.1 If any sum due and payable by or on behalf of a party hereto (the
"Payer") to the other party (the "Payee") hereunder is not paid on the due date
therefor in accordance with the provisions hereof or if any sum due and payable
by the Payer under any judgment of any court in connection herewith is not paid
on the date of such judgment (the balance of such sum for the time being unpaid
being herein referred to as an "unpaid sum"), an unpaid sum shall bear interest
at the rate per annum which is the sum of two percent (2%) and the short-term
prime lending rate quoted by ABN AMRO Bank N.V., Tokyo Branch from time to time
prevailing in Japan for the period beginning on, and including, such due date
or, as the case may be, the date of such judgment and ending on, but excluding,
the date upon which the obligation of the Payer to pay such sum is discharged
(calculated on a basis of a year of 365 days). Such default interest shall be
payable upon demand of the Payee.
28.2 Each of the Seller and the Collection Agent undertakes to indemnify
the Purchaser against any loss or expense, including legal fees reasonably
incurred, which the Purchaser may sustain or incur as a consequence of any
default by the Seller or the
36
Collection Agent (as the case may be) in the performance of any of the
obligations expressed to be assumed by it in this Agreement.
29. Fees, Costs and Expenses and Stamp Duty
29.1 The Seller shall pay to ABN AMRO Bank N.V., San Francisco
International Branch, acting as arranger, an arrangement fee in the amount of
one-tenth of one percent (0.1%) of the Purchase Limit on the date hereof.
29.2 The Seller shall pay a commitment fee at the rate of one-fourth of
one percent (0.25%) per annum on the amount equal to the Purchase Limit minus
the aggregate sum of the Purchase Price of the Purchased Receivables the payment
of which has not been received by the Purchaser from day to day during the
period beginning on the date of this Agreement and ending on the last day of the
Purchase Period. Such fee shall be payable in arrears quarterly from the date
of this Agreement and on the last day of the Purchase Period.
29.3 The Seller shall, from time to time upon demand of the Purchaser
reimburse the Purchaser for all costs and expenses (including reasonable legal
fees) incurred by it in or in connection with the negotiation, preparation and
execution of this Agreement, any Assignment or any Transaction Document or
amendment thereto or any waiver thereof.
29.4 The Seller or the Collection Agent will upon demand pay to the
Purchaser and any permitted assignee in accordance with this Agreement, the
amount of any and all reasonable expenses, including all court costs, attorneys'
fees and expenses, which they may incur in connection with the exercise or
enforcement against it of any of their respective rights or interests under this
Agreement, any Assignment or any other Transaction Document or amendment thereto
or any waiver thereof.
29.5 The Seller shall be responsible for all stamp, registration and
other taxes to which this Agreement, any Assignment, any other Transaction
Document, any transaction contemplated hereby or thereby or any order or
judgment given in connection herewith or therewith are or at any time may be
subject in Japan, except, for the avoidance of doubt, for taxes payable by the
Purchaser based on its entire taxable net income.
30. Benefit of Agreement
30.1 This Agreement shall be binding upon and enure to the benefit of
each party hereto and its successors and permitted assigns.
30.2 The Seller and the Collection Agent shall not be entitled to assign
or transfer all or any of their rights, benefits and obligations hereunder.
37
30.3 The Purchaser shall be entitled to assign or transfer all or any of
its rights, benefits and obligations hereunder with the consent of the Seller,
which consent shall not be unreasonably withheld or delayed.
31. Remedies and Waivers
31.1 No failure to exercise, nor any delay in exercising, on the part of
any party hereto, any right or remedy hereunder shall operate as a waiver
hereof, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise thereof or the exercise of any other right or
remedy.
31.2 The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
32. Partial Invalidity
Without prejudice to any other provision hereof, if one or more provisions
hereof is or becomes invalid, illegal or unenforceable in any respect in any
jurisdiction or with respect to such party or parties, it shall not, to the
fullest extent permitted by applicable law, render invalid, illegal or
unenforceable other provisions hereof or such provision or provisions in any
other jurisdiction or with respect to any other party or parties hereto.
33. Counterparts
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same Agreement.
34. Notices
34.1 Unless otherwise stated herein, each communication to be made
hereunder shall be made in writing and may be made by telex, telefax or letter.
34.2 Any communication or document to be made or delivered by any one
person to another pursuant to this Agreement shall (unless that other person has
by fifteen days' written notice to the other parties hereto specified another
address) be made or delivered to that other person at the address or the number
identified with its signature below and shall be deemed to have been made or
delivered when received by that other person Provided that each communication
made by one party hereto to another shall be made to that other person at such
other address or number as notified to such party by that other person from time
to time.
34.3 Unless specifically waived by the Purchaser, each communication and
document made or delivered by one person to another person pursuant hereto shall
be in
38
the English language or in Japanese accompanied by a translation thereof into
English certified (by an officer of the person making or delivering the same) as
being a true and accurate translation thereof.
35. Prior Understandings
35.1 This Agreement and the Transaction Documents set forth the entire
understanding of the parties relating to the subject matter hereof, and
supersedes all prior understandings and agreements, whether written or oral.
Part 14
LAW AND JURISDICTION
36. Governing Law
This Agreement shall be governed by, and construed in accordance with, the
laws of Japan.
37. Jurisdiction
37.1 Each of the parties hereto irrevocably agrees that the Tokyo
District Court shall have jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in connection
with this Agreement and, for such purposes, irrevocably submits to the
jurisdiction of such court.
37.2 Each of the parties hereto irrevocably waives any objection which
it might now or hereafter have to the court referred to in Clause 37.1 being
nominated as the forum to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with this
Agreement and agrees not to claim that such court is not a convenient or
appropriate forum.
37.3 The submission to the jurisdiction of the court referred to in
Clause 37.1 shall not (and shall not be construed so as to) limit the right of
any party hereto to take proceedings against the other party in any other court
of competent jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction
(whether concurrently or not) if and to the extent permitted by applicable law.
37.4 Each of the parties hereto hereby consents generally in respect of
any legal action or proceeding arising out of or in connection with this
Agreement to the giving of any relief or the issue of any process in connection
with such action or proceeding including, without limitation, the making,
enforcement or execution against any property
39
whatsoever (irrespective of its use or intended use) of any order or judgment
which may be made or given in such action or proceeding.
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first before written.
The Seller and the Collection Agent
LAM RESEARCH CO., LTD.
By:
Address: 1-1-10, Oyama, Sagamihara-shi, Kanagawa 229
Attention: Mr. Yasushi Matsunaga
Manager of Finance Accounting Department
Telefax: 81-427-70-0347
Telephone: 81-427-70-0820
The Purchaser
ABN AMRO BANK N.V., TOKYO BRANCH
By:
By:
Address: 13F, Shiroyama JT Mori Builiding
4-3-1, Toranomon, Minato-ku
Tokyo 105
Attention: Structured Finance
41
Telefax: 81-3-5401-6361/6363
Telephone: 81-3-5401-6314
42
THE SECOND SCHEDULE
Part 1 : Conditions Precedent to the Initial Closing
1. The receipt by the Purchaser on or prior to the Initial Closing Date, each
in form and substance reasonably satisfactory to the Purchaser, of:
(a) a copy, certified as of the Initial Closing Date as a true copy by
a duly authorized officer of the Seller, of the resolutions of the Seller's
board of directors approving:
(i) the outright transfer of all the Seller's right, title and
interest in and to the Initial Receivables; and
(ii) the execution and delivery on behalf of the Seller (in such
capacity and as the Collection Agent) of the Receivables Purchase Agreement, the
Assignment and all other Transaction Documents to which the Seller is to be a
signatory;
(b) a copy, certified as of the Initial Closing Date as a true copy by
a duly authorized officer of the Seller, of the Articles of Incorporation of the
Seller;
(c) a certified copy, as of the date which is as close as practicably
possible to the Initial Closing Date, of a commercial registry of the Seller;
(d) an incumbency certificate, certified as of the Initial Closing Date
by a duly authorized officer of the Seller, setting forth the name(s), title(s)
and specimen signature(s) of individual(s) authorized to execute and deliver on
behalf of the Seller (in such capacity and as the Collection Agent) the
Receivables Purchase Agreement, the Assignment and all other Transaction
Documents to which the Seller is to be a signatory;
(e) the Guaranty, duly executed by the Guarantor;
(f) a copy, certified as of the Initial Closing Date as a true copy by
a duly authorized officer of the Guarantor, of the resolution of the Guarantor's
board of directors approving the execution and delivery on behalf of the
Guarantor of the Guaranty and all other Transaction Documents to which the
Guarantor is to be a signatory;
(g) a copy, certified as of the Initial Closing Date as a true copy by
a duly authorized officer of the Guarantor, of the Certificate of Incorporation
and the Bylaws of the Guarantor;
(h) a good standing certificate from California and Delaware, as of the
date which is as close as practicably possible to the Initial Closing Date, of
the Guarantor;
(i) an incumbency certificate, certified as of the Initial Closing Date
by a duly authorized officer of the Guarantor, setting forth the names(s),
title(s) and specimen
43
signature(s) of individual(s) authorized to execute and deliver on behalf of the
Guarantor the Guaranty and all other Transaction Documents to which the
Guarantor is to be a signatory;
(j) a copy, certified as of the Initial Closing Date as a true copy by
a duly authorized officer of the Seller, of the general terms and conditions of
the Sales Agreements applicable to the Buyers relating to the Initial
Receivables, or (if such written agreement does not exist) a certificate of a
duly authorized officer of the Seller describing the agreed terms and conditions
applicable to a particular Buyer(s);
(k) such evidence as the Purchaser may request to establish that the
Initial Receivables are the Eligible Receivables;
(l) such financial statements and other financial information for the
Seller and the Guarantor as the Purchaser may reasonably request;
(m) opinions, dated the Initial Closing Date and addressed to the
Purchaser from (i) Nishimura & Sanada, a counsel to the Purchaser, in a form and
substance reasonably satisfactory to the Purchaser, (ii) Nagashima & Ohno, a
counsel to the Seller and the Guarantor, substantially in the form of Part 1 of
the Ninth Schedule and (iii) Jan J. Kang, a counsel to the Guarantor,
substantially in the form of Part 2 of the Ninth Schedule; and
(n) such other instruments, agreements, certificates, opinions and
other documents as the Purchaser may reasonably request.
2. The receipt by the Purchaser on or prior to the Initial Closing Date, each
in form and substance reasonably satisfactory to the Purchaser, of either of
following (a) or (b), as chosen by the Seller:
(a) (i) Disapplication of Prohibition of Assignment from a Buyer who
owes an Initial Receivable, if it is required pursuant to the terms and
conditions of the relevant Sales Agreement; and
(ii) Perfection Document in relation to the assignment of each
of the Initial Receivables; or
(b) Confirmation to Issue P/N from a Buyer who owes an Initial
Receivable.
3. The representations and warranties contained in the Sixth Schedule (with
respect to those provided for in Part 3 thereof, to the extent such
representations and warranties relate to the Initial Receivables) being correct
on and as of the Initial Closing Date by reference to the facts and
circumstances then existing.
44
4. The Seller having paid to ABN AMRO Bank N.V., San Francisco International
Branch the arrangement fees pursuant to Clause 29.1 of the Receivables Purchase
Agreement.
5. Neither a Termination Event nor a Potential Termination Event having
occurred and remaining unremedied on the Initial Closing Date.
6. No event having occurred and no condition existing which could have a
Material Adverse Effect on the Seller, the Guarantor or the Collection Agent.
Part 2 : Conditions Precedent to Subsequent Closings
1. The receipt by the Purchaser on or prior to the relevant Subsequent
Closing Date, each in form and substance reasonably satisfactory to the
Purchaser, of:
(a) such evidence as the Purchaser may reasonably request to establish
that the relevant Accepted Receivable is the Eligible Receivable;
(b) unless the same has been theretofore submitted to the Purchaser, a
copy, certified as of the relevant Subsequent Closing Date as a true copy by a
duly authorized officer of the Seller, of the general terms and conditions of
the Sales Agreement applicable to the Buyer relating to the relevant Accepted
Receivable, or (if such written agreement does not exist) a certificate of a
duly authorized officer of the Seller describing the agreed terms and conditions
applicable to such Buyer; and
(c) such other instruments, agreements, certificates, opinions and
other documents as the Purchaser may reasonably request.
2. The receipt by the Purchaser on or prior to the relevantSubsequent Closing
Date, each in form and substancereasonably satisfactory to the Purchaser, of
either offollowing (a) or (b), as chosen by the Seller:
(a) (i) unless the same has been theretofore submitted to the
Purchaser, Disapplication of Prohibition ofAssignment from the Buyer who owes
the relevantAccepted Receivable, if it is required pursuant to the terms and
conditions of the relevant SalesAgreement; and
(ii) Perfection Document in relation to the assignment of
the relevant Accepted Receivable; or
(b) unless the same has been theretofore submitted to the Purchaser,
Confirmation to Issue P/N from the Buyer who owes the relevant Accepted
Receivable.
3. The provisions contained in the second sentence of Clause 2.1 being
complied with after giving effect to the assignment of the relevant Accepted
Receivable.
45
4. The representations and warranties contained in the Sixth Schedule (with
respect to those provided for in Part 3 thereof, to the extent such
representations and warranties relate to the relevant Accepted Receivable) being
correct on and as of the relevant Subsequent Closing Date by reference to the
facts and circumstances then existing.
5. The Seller having performed its obligations (including, but not limited
to, the payment of fees) in compliance with the Receivables Purchase Agreement.
6. Neither a Termination Event nor a Potential Termination Event having
occurred and remaining unremedied on the relevant Subsequent Closing Date.
7. No event having occurred and no condition existing which could have a
Material Adverse Effect on the Seller, the Collection Agent or the Guarantor.
46
THE THIRD SCHEDULE
Part 1 - Form of Assignment of Initial Receivables
THIS ASSIGNMENT made on [the Initial Closing Date]
BY:
(1) Lam Research Co., Ltd. (the "Seller")
IN FAVOR OF:
(2) ABN AMRO Bank N.V., Tokyo Branch (the "Purchaser")
WITNESSES as follows:
1. Interpretation
1.1 In this Assignment "Purchase Agreement" means the receivables purchase
agreement dated , 1995 between the Seller, in its capacity as Seller
(1), the Purchaser (2) and the Seller, in its capacity as Collection Agent (3).
1.2 Terms defined in the Purchase Agreement have the same meaning in this
Assignment.
1.3 Headings in this Assignment are for ease of reference only.
2. Transfer
2.1 Subject to, and in accordance with, the terms and conditions of the
Purchase Agreement, the Seller hereby sells and assigns to the Purchaser (by way
of outright assignment and not merely by way of security) all of the Seller's
right, title and interest in and to an Initial Receivable (the "Assigned
Receivable") specified in the Exhibit hereto, to all Collections thereof and to
the Related Security relating thereto and all proceeds thereof.
2.2 The Tentative Acceptance Date, the Tentative Credit Period, the Tentative
Receivables Due Date, the Discount Interest Rate and the Discount Rate
applicable to the Assigned Receivable shall be as follows:-
(a) Tentative Acceptance Date
[ ]
(b) Tentative Credit Period
47
[ ]
(c) Tentative Receivables Due Date
[ ]
(d) Discount Interest Rate
[LIBOR Based Rate] [COF Based rate], which is percent ( %) per
annum
(e) Discount Rate
percent ( %) per annum
In accordance with Clause 4.1 of the Purchase Agreement, the Purchase
Price of the Assigned Receivable shall be
3. Representations and Warranties
The Seller hereby represents and warrants to the Purchaser as of the date
hereof in the terms set out in Clause 12 of the Purchase Agreement by reference
to the fact and circumstances currently existing.
4. Governing Law and Jurisdiction
4.1 This Assignment is governed by, and shall be construed in accordance with,
the laws of Japan.
4.2 Both of the parties hereto agree that the Tokyo District Court shall have
jurisdiction to hear and determine any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection with this
Assignment and, for such purpose, irrevocably submits to the jurisdiction of
such court.
4.3 Both of the parties hereto irrevocably waive any objection which they
might now or hereafter have to the court referred to in Clause 4.2 being
nominated as the forum to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with this
Assignment and agree not to claim that such court is not a convenient or
appropriate forum.
4.4 The submission to the jurisdiction of the court referred to in Clause 4.2
shall not (and shall not be construed so as to) limit the right of either of the
Seller or the Purchaser to take proceedings against the other in any other court
of competent jurisdiction nor shall the taking of
48
proceedings in any one or more jurisdictions preclude the taking of proceedings
in any other jurisdiction (whether concurrently or not) if and to the extent
permitted by applicable law.
4.5 Each of the Seller and the Purchaser hereby consents generally in respect
of any legal action or proceeding arising out of or in connection with this
Assignment to the giving of any relief or the issue of any process in connection
with such action or proceeding including, without limitation, the making,
enforcement or execution against any property whatsoever (irrespective of its
use or intended use) of any order or judgement which may be made or given in
such action or proceeding.
AS WITNESS the hands of the duly authorized representatives of the parties
hereto the day and year first before written.
Lam Research Co., Ltd.
By:
ABN AMRO Bank N.V., Tokyo Branch
By:
49
Exhibit to the Assignment
Description of Assigned Receivable
(1) Face Value
(2) Name of Buyer
(3) Description of Equipment Sold
(4) Date of Purchase Order
(5) Date of Shipment
(6) Payment Terms Including Whether Promissory Note Has Been or Is to
be Issued
50
Part 2 - Form of Offer
To: ABN AMRO Bank N.V., Tokyo Branch
From: Lam Research Co., Ltd., as Seller
Dated: [ ]
Dear Sirs,
1. We refer to the Receivables Purchase Agreement dated
, 1995 (the "Purchase Agreement") between ourselves as Seller (1),
yourselves as Purchaser (2) and ourselves as Collection Agent (3).
2. Terms defined in the Purchase Agreement shall have the same meaning
herein.
3. We hereby offer for purchase by you on [the proposed date of assignment]
an Additional Receivable, details of which are set out in the Exhibit hereto.
4. We hereby represent and warrant to you as of the date hereof in the terms
set out in Clause 12 of the Purchase Agreement by reference to the facts and
circumstances currently existing.
Subject to the terms of the Purchase Agreement, this Offer constitutes an
irrevocable offer by us binding us to assign and sell to you on the proposed
date of assignment as specified above an ownership interest in the Receivable
referred to in this Offer.
Yours faithfully,
for and on behalf of
Lam Research Co., Ltd.
51
Exhibit to the Offer
1. Description of Offered Receivable
(1) Face Value
(2) Name of Buyer
(3) Description of Equipment Sold
(4) Date of Purchase Order
(5) Payment terms as provided for in the Purchase Order
(6) Date of Shipment
(7) Whether Promissory Note Has Been or Is to be Issued
2. Proposed Tentative Acceptance Date
[ ]
3. Proposed Tentative Credit Period
[ ]
4. Selected Discount Interest Rate
[LIBOR Based Rate] [COF Based Rate], subject to further change by the
Seller in accordance with the terms of the Purchase Agreement
52
Part 3 - Form of Assignment of Accepted Receivable
THIS ASSIGNMENT made on [the relevant Subsequent Closing Date]
By:
(1) Lam Research Co., Ltd. (the "Seller")
IN FAVOR OF:
(2) ABN AMRO Bank N.V., Tokyo Branch (the "Purchaser")
WITNESSES as follows:
1. Interpretation
1.1 In this Assignment "Purchase Agreement" means the receivables purchase
agreement dated , 1995 between the Seller, in its capacity as Seller
(1), the Purchaser (2) and the Seller, in its capacity as Collection Agent (3).
1.2 Terms defined in the Purchase Agreement have the same meaning in this
Assignment.
1.3 Headings in this Assignment are for ease of reference only.
2. Transfer
2.1 Subject to, and in accordance with, the terms and conditions of the
Purchase Agreement, the Seller hereby sells and assigns to the Purchaser (by way
of outright assignment and not merely by way of security) all of Seller's right,
title and interest in and to an Accepted Receivable (the "Assigned Receivable")
specified in the Exhibit hereto, to all Collections thereof and to the Related
Security relating thereto and all proceeds thereof.
2.2 The Tentative Acceptance Date, the Tentative Credit Period, the Tentative
Receivables Due Date, the Discount Interest Rate and the Discount Rate
applicable to the Assigned Receivable shall be as follows:-
(a) Tentative Acceptance Date
[ ]
(b) Tentative Credit Period
[ ]
53
(c) Tentative Receivables Due Date
[ ]
(d) Discount Interest Rate
[LIBOR Based Rate] [COF Based Rate], which is percent ( %) per
annum
(e) Discount Rate
percent ( %) per annum
In accordance with Clause 8.1 of the Purchase Agreement, the Purchase
Price of the Assigned Receivable shall be
3. Representations and Warranties
The Seller hereby represents and warrants to the Purchaser as of the date
hereof in the terms set out in Clause 12 of the Purchase Agreement by reference
to the fact and circumstances currently existing.
4. Governing Law and Jurisdiction
4.1 This Assignment is governed by, and shall be construed in accordance with,
the laws of Japan.
4.2 Both of the parties hereto agree that the Tokyo District Court shall have
jurisdiction to hear and determine any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection with this
Assignment and, for such purpose, irrevocably submits to the jurisdiction of
such court.
4.3 Both of the parties hereto irrevocably waive any objection which they
might now or hereafter have to the court referred to in Clause 4.2 being
nominated as the forum to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with this
Assignment and agree not to claim that such court is not a convenient or
appropriate forum.
4.4 The submission to the jurisdiction of the court referred to in Clause 4.2
shall not (and shall not be construed so as to) limit the right of either of the
Seller or the Purchaser to take proceedings against the other in any other court
of competent jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction
(whether concurrently or not) if and to the extent permitted by applicable law.
54
4.5 Each of the Seller and the Purchaser hereby consents generally in respect
of any legal action or proceeding arising out of or in connection with this
Assignment to the giving of any relief or the issue of any process in connection
with such action or proceeding including, without limitation, the making,
enforcement or execution against any property whatsoever (irrespective of its
use or intended use) of any order or judgment which may be made or given in such
action or proceeding.
AS WITNESS the hands of the duly authorized representatives of the parties
hereto the day and year first before written.
Lam Research Co., Ltd.
By:
ABN AMRO Bank N.V., Tokyo Branch
By:
55
Exhibit to the Assignment
Description of Assigned Receivable
(1) Face Value
(2) Name of Buyer
(3) Description of Equipment Sold
(4) Date of Purchase Order
(5) Date of Shipment
(6) Payment Terms Including Whether Promissory Note Has Been or Is to
be Issued
56
Part 4 - Form of Reassignment of Receivables
THIS ASSIGNMENT made on [date]
By:
(1) ABN AMRO Bank N.V., Tokyo Branch ("ABN AMRO")
IN FAVOR OF:
(2) Lam Research Co., Ltd. ("LRC")
WITNESSES as follows:
1. Interpretation
1.1 In this Assignment "Purchase Agreement" means the receivables purchase
agreement dated , 1995 between LRC, in its capacity as Seller (1), ABN
AMRO (2) and LRC, in its capacity as Collection Agent (3).
1.2 Terms defined in the Purchase Agreement have the same meaning in this
Agreement.
1.3 Headings in this Assignment are for ease of reference only.
2. Transfer
2.1 Subject to, and in accordance with, the terms and conditions of the
Purchase Agreement, ABN AMRO hereby sells and assigns to LRC (by way of outright
assignment and not merely by way of security, and without any representation or
warranty on the part of ABN AMRO except for the representation set out in Clause
2.2) all of ABN AMRO's right, title and interest in and to a Receivable (the
"Assigned Receivable") specified in the Exhibit hereto, to all Collections
thereof and to the Related Security relating thereto and all proceeds thereof.
2.2 ABN AMRO hereby represents and warrants to LRC that as of the date hereof
ABN AMRO has not sold, transferred, assigned, created security interest over or
otherwise disposed of the Assigned Receivable.
3. Governing Law and Jurisdiction
3.1 This Assignment is governed by, and shall be construed in accordance with,
the laws of Japan.
57
3.2 Both of the parties hereto agree that the Tokyo District Court shall have
jurisdiction to hear and determine any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection with this
Assignment and, for such purpose, irrevocably submits to the jurisdiction of
such court.
3.3 Both of the parties hereto irrevocably waive any objection which they
might now or hereafter have to the court referred to in Clause 3.2 being
nominated as the forum to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with this
Assignment and agree not to claim that such court is not a convenient or
appropriate forum.
3.4 The submission to the jurisdiction of the court referred to in Clause 3.2
shall not (and shall not be construed so as to) limit the right of either of ABN
AMRO or LRC to take proceedings against the other in any other court of
competent jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction
(whether concurrently or not) if and to the extent permitted by applicable law.
AS WITNESS the hands of the duly authorized representatives of the parties
hereto the day and year first before written.
ABN AMRO Bank N.V., Tokyo Branch
By:
Lam Research Co., Ltd.
By:
58
Exhibit to the Assignment
Description of Assigned Receivable
(1) Face Value or Revised Face Value
(2) Name of Buyer
(3) Description of Equipment Sold
(4) Date of Purchase Order
(5) Date of Shipment
59
THE FIFTH SCHEDULE
Termination Events
1. The Seller (in that capacity or in its capacity as the Collection Agent)
or the Guarantor is in breach of any of its obligations under this Agreement,
the Guaranty or any of the Transaction Documents and such breach is not
remedied, if it is capable of being remedied, within five (5) business days (in
the case of the obligation to pay monies) or twenty (20) business days (in the
case of other obligations).
2. Either of the Seller or the Guarantor goes into the Insolvency Event or
becomes unable to pay its debts or fails or admits in writing its inability
generally to pay its debts as they become due or ceases to carry on its
business.
3. Any representation or warranty referred to in Part 1 or Part 2 of the
Sixth Schedule or in paragraph 3 of the Guaranty is incorrect when made.
4. If, after the date of this Agreement, the adoption of any applicable law,
rule or regulation, or any change therein, or any change in the interpretation
or administration thereof by any governmental authority charged with the
interpretation or administration thereof makes it unlawful or impossible for any
party hereto or the Guarantor to perform its obligation under this Agreement,
the Guaranty or any of the Transaction Documents.
5. The Seller or the Guarantor fails to pay any Debt in the aggregate amount
in excess of ten million dollars (U.S.$10,000,000)(or its equivalent in any
other currency) when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure continues after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt, or any other default under any agreement or instrument
relating to any such Debt or any other event occurs and continues after the
applicable grace period, if any, specified in such agreement or instrument if
the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Debt, or any such Debt shall be declared
to be due and payable or required to be prepaid (other than by a regularly
scheduled required prepayment) prior to the stated maturity thereof.
6. A material adverse change occurs in the financial condition of the Seller
or the Guarantor in relation to the Original Financial Statements of the Seller
or the Guarantor, as the case may be, which has had or can reasonably be
expected to have a Material Adverse Effect.
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THE SIXTH SCHEDULE
Part 1 : Representations as to Matters of Law
1. The Seller (in such capacity or, as the case may be, as the Collection
Agent, in such status being referred to in Part 1 and 2 of this Sixth Schedule
merely as the "Seller") is a corporation duly organized and is validly existing
under the laws of Japan with power to enter into this Agreement and each
assignment to be entered into by it in respect of any Receivables assigned or
scheduled to be assigned pursuant hereto and to exercise its rights and perform
its obligations hereunder and thereunder and all corporate and other action
required to authorize its execution of this Agreement and each such assignment
and its performance of its obligations hereunder and thereunder has been duly
taken. All of the issued and outstanding shares of the Seller is legally and
beneficially owned by the Guarantor directly.
2. The Seller has corporate power and all governmental licenses,
authorizations, consents and approvals to carry on its business in Japan.
3. The execution, delivery and performance of this Agreement and the
transactions contemplated hereby by the Seller require no action by or in
respect of, or filing, recording or enrolling with, any governmental body,
agency, court official or other authority, and do not contravene, or constitute
a default under, any provision of applicable law or regulation or its Articles
of Incorporation or other internal regulations or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Seller or any of
its assets.
4. Under the laws of Japan in force as at the date of making this
representation, the claim of the Purchaser against the Seller under this
Agreement will rank at least pari passu with the claims of all its other
unsecured creditors save those whose claims are preferred solely by any
bankruptcy, insolvency or other similar laws of general application.
5. In any proceedings taken in Japan in relation to this Agreement or any
Assignment, the Seller will not be entitled to claim for itself or any of its
assets immunity from suit, execution, attachment or other legal process.
6. In any proceedings taken in Japan in relation to this Agreement or any
Assignment, the choice of Japanese law by the Seller as the governing law of
this Agreement or, as the case may be, such Assignment will be recognized and
enforced subject to bankruptcy, insolvency, moratorium or other similar laws
affecting creditor's rights generally and to principles of equity.
7. All acts, conditions and things required to be done, fulfilled and
performed by the Seller in order (a) to enable the Seller lawfully to enter
into, exercise its rights under and perform and comply with the obligations
expressed to be assumed by it in this Agreement
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or in any Assignment, (b) to ensure that the obligations expressed to be assumed
by the Seller in this Agreement or in any Assignment are legal, valid and
binding on it and (c) to make this Agreement and each Assignment admissible in
evidence in Japan have been done, fulfilled and performed.
8. Under the laws of Japan in force as at the date of making this
representation, it is not necessary that this Agreement or any Assignment be
filed, recorded or enrolled with any court or other authority in Japan or that
any stamp, registration or similar tax be paid on or in relation to this
Agreement or such Assignment, save for the payment of stamp duty on this
Agreement or any Assignment under any applicable law.
9. The obligations expressed to be assumed by the Seller in this Agreement
and in each Assignment are legal and valid obligations binding on it and
enforceable in accordance with their respective terms.
Part 2 : Representations as to Matters of Fact
1. The Seller has not taken any corporate action nor have legal proceedings
been started or threatened (to the best of its knowledge and belief) against the
Seller for its winding-up, dissolution, rehabilitation or re-organization or for
the appointment of a receiver, administrator, administrative receiver, trustee,
liquidator, sequestrator or similar office of it or of any or all of its assets
or revenues.
2. No action or administrative proceeding of or before any court or agency
has been started or threatened against the Seller which might, if it were
adversely determined, reasonably be expected to have a Material Adverse Effect.
3. The Original Financial Statements of the Seller were prepared in
accordance with accounting principles generally accepted in Japan and
consistently applied and give (in conjunction with the notes thereto) a true and
fair view of its financial condition at the date as of which they were prepared
and the results of its operations during the financial year then ended.
4. Since publication of the Original Financial Statements of the Seller,
there has been no change in its financial condition or operations of the Seller
so as to have a Material Adverse Effect.
Part 3 : Representations relating to Receivables
1. Each Purchased Receivable is an Eligible Receivable owed by an Eligible
Buyer with the Face Value specified in the relevant Assignment or (if
applicable) the Revised Face Value, subject to the applicable statute of
limitation.
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2. The assignment of each Purchased Receivable in the manner herein
contemplated will be effective to pass to the Purchaser full and unencumbered
title thereto and the benefit thereof and no further act, condition or thing
will be required to be done in connection therewith to enable the Purchaser to
require payment of any such Purchased Receivable or the enforcement of any such
right in the courts of Japan.
3. In all material respects the Seller has performed and is in compliance
with the terms of the Sales Agreement relating to each Purchased Receivable.
4. The governing law of the Sales Agreement relating to each Purchased
Receivable is Japanese law.
5. The Buyer owing each of the Purchased Receivables has, where required by
the general terms and conditions of the relevant Sales Agreement, validly given
the Disapplication of Prohibition of Assignment, except for the Purchased
Receivables for which the conditions precedent set out in Paragraph 2(b) of Part
1 or Part 2, as the case may be, of the Second Schedule have been chosen or the
conditions precedent set out in Paragraph 2 of Part 1 or Part 2, as the case may
be, have been waived by the Purchaser.
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THE SEVENTH SCHEDULE
Covenants and Undertakings of the Collection Agent
The Collection Agent hereby covenants with the Purchaser that it shall at all
times:
(i) give such time and attention and exercise the same degree of care,
responsibility, diligence, prudent and skill with respect to the servicing,
collection and administration of the Purchased Receivables and all related
functions as if it were performing such functions on its own behalf;
(ii) take all reasonable action as to ensure that all Purchased
Receivables are paid promptly into the Collection Account in accordance with the
terms of this Agreement and the related Sales Agreement;
(iii) not take any steps which have the effect of in any manner
disposing of any right or interest to or in, or transferring or withdrawing any
amount from, the Collection Account otherwise than in accordance with this
Agreement;
(iv) keep proper, complete, accurate and up to date Records in a manner
reasonably acceptable to the Purchaser;
(v) keep and maintain Records, on a Receivable-by-Receivable basis,
for the purposes of identifying, in particular, at any time, any amount paid by
and to each Buyer, any amount due by or to a Buyer and the source of receipts
which are paid into the Collection Account;
(vi) permit audit and inspection under its guidance of its Records by
or on behalf of the Purchaser during normal working hours upon reasonable notice
and with reasonable frequency;
(vii) notify the Purchaser of material developments in the Seller's
performance of its obligations under the Sales Agreements, including, but not
limited to, the Shipment, the Acceptance and the Partial Acceptance of the
Equipment and the refusal thereof by the Buyers;
(viii) notify the Purchaser of the Scheduled Receivables Due Date and (if
applicable) the Revised Face Value promptly after it is confirmed between the
Seller and the relevant Buyer and, if the payment by the Buyer of the relevant
Purchased Receivable is known to be made on the date which is not the Scheduled
Receivables Due Date, notify the Purchaser of such date of payment at least two
business days prior to the Scheduled Receivables Due Date or such date of
payment, whichever comes earlier;
(ix) use its best endeavors to maintain records of all correspondence
with the Buyer in respect of the Purchased Receivables;
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(x) promptly obtain, comply in all material respects with the terms of
and do all that is necessary and within its control to maintain in full force
and effect all authorizations, approvals, licenses and consents required in or
by the laws and regulations of Japan to enable it lawfully to enter into and
perform its obligations under this Agreement or to ensure the legality,
validity, enforceability or admissibility in evidence of this Agreement;
(xi) do all things necessary to remain duly organized, validly existing
under the laws of Japan and maintain all requisite authority to conduct its
business in Japan;
(xii) comply in all respects which could be regarded as material in the
context of the transactions contemplated by this Agreement, with all laws,
rules, regulations, orders, writs, judgements, injunctions decrees or awards to
which it may be subject;
(xiii) maintain sufficient operating procedures, employees and other
resources to perform its obligations as Collection Agent hereunder; and
(xiv) submit to Purchaser a monthly report relating to the Purchased
Receivables and the Buyer owing them in such a form as is reasonably requested
by the Purchaser.
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THE EIGHTH SCHEDULE
Form of Guaranty
66
THE NINTH SCHEDULE
Part 1: Form of Opinion of Nagashima & Ohno
, 1995
ABN AMRO Bank
Tokyo Branch
Shiroyama JT Mori Building
3-1, 4-chome, Toranomon
Minato-ku, Tokyo
(the "Purchaser")
Dear Sirs:
We have acted as Japanese counsel to Lam Research Co., Ltd., a Japanese
corporation (the "Seller"), in connection with the preparation, execution and
delivery of the Receivables Purchase Agreement dated as of , 1995 (the
"Agreement") , among the seller, the Purchaser, and Lam Research Co., Ltd. as
Collection Agent. Capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to such terms in the Agreement. In this
opinion, Lam Research Co., Ltd. in the capacity as the Seller and as the
Collection Agent is referred to merely as "Lam".
In rendering the opinions expressed herein, we have examined a photostatic
copy of the executed original of the Agreement, a certificate from the
representative director of Lam, and such corporate records and other documents,
and have made such investigations of law as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. As to factual
matters, however, we have solely relied upon the above-described certificate,
and have not conducted any independent examination or investigation with respect
to any factual matters, including those contained in said certificate.
For the purposes of rendering this opinion, we have assumed without
independently verifying:
(A) the genuineness of all seal impressions and signatures on documents that
we have examined, and the authenticity and completeness of all documents
submitted to us as originals or copies of originals;
(B) the exact conformity to complete original documents of all documents
submitted to us as copies;
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(C) the Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the kingdom of Netherlands, and the Tokyo branch
of the Purchaser has full and complete corporate power and authority to execute
and deliver, and to perform its obligations under the Agreement;
(D) the execution and delivery of the Agreement by the Purchaser, and the
performance by the Purchaser of its obligations under the Agreement, have been
duly authorized by all necessary corporate action; and
(E) the Agreement and all other documents submitted to us have been duly
executed and delivered by or on behalf of all persons and entities that are
signatories thereto (other than Lam).
Based upon and subject to the foregoing, and further subject to the
qualifications hereinafter set forth, we are of the opinion that:
1. Lam is a corporation validly existing under the laws of Japan with
corporate power to enter into the Agreement and each Assignment and to exercise
its rights and perform its obligations under the Agreement and each Assignment,
and all corporate action required to authorize its execution of the Agreement
and each Assignment and its performance of its obligations thereunder has been
duly taken.
2. Lam has corporate power and all governmental license, authorizations,
consents and approvals necessary to carry on its business currently conducted in
Japan.
3. There is no consent, approval, order or authorization of, or registration,
filing, recordation or enrollment with, or giving of prior notice to, any
Japanese governmental body or agency or any Japanese court required with respect
to the execution, delivery and performance of the Agreement by Lam. The
execution, delivery and performance of the Agreement by Lam do not contravene
any provision of applicable laws of Japan or Lam's Articles of Incorporation or
other internal regulations.
4. The claims of the Purchaser against Lam under the Agreement will rank at
least pari passu with the claims of all of Lam's other unsecured creditors.
5. In any legal proceedings taken in Japan in relation to the Agreement or
any Assignment, Lam will not be entitled to claim for itself or any of its
assets sovereign immunity from suit, execution, attachment or other legal
process.
6. The choice of Japanese law to govern the Agreement is a valid choice of
law, and the submission by Lam to the jurisdiction of the Tokyo District Court
is a valid submission to the jurisdiction of such court as a court of first
instance, except in cases where other courts in Japan have exclusive
jurisdiction.
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7. Save for Japanese stamp duties, no similar taxes are payable in respect of
the execution and delivery of the Agreement or any Assignment.
8. The Agreement has been duly executed and delivered by Lam, and the
obligations expressed to be assumed by Lam in the Agreement are legal and valid
obligations binding on Lam and enforceable against Lam in accordance with their
respective terms.
Our opinions set forth herein are subject to the following qualifications
and limitations:
(a) we express no opinion as to:
(i) except as set forth in paragraph 7, compliance with or the effect
of any tax law; or
(ii) the availability of specific performance, injunctive relief, or any
other similar remedy;
(b) the opinions expressed above are subject to limitation by statute of
limitation, appropriate court procedures and the full discretion of the court,
which must consider the public order and good morals doctrine and the abuse of
rights doctrine;
(c) the legality, validity, binding nature and enforceability of the Agreement
may be limited by the application of:
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance and
other similar laws affecting the rights, powers, privileges, remedies and/or
interests of creditors generally; or
(ii) the Interest Rate Restriction Law, Risoku Seigen Ho (the "Interest
Rate Law"). Under the Interest Rate Law, the maximum rate of interest per annum
recoverable by action in the courts of Japan is as set forth below:
Principal Amount Interest Rate (%)
Less than _100,000 20
_100,000 or more but 18
less than 1,000,000
_1,000,000 or more 15
The Interest Rate Law further provides that if any stipulated
default interest amount sought to be recoverable by action in the courts of
Japan exceeds double
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the amount calculated in accordance with the interest rate set forth above, the
right of the party seeking recovery to recover an amount in excess of double the
amount as calculated above shall be unenforceable;
(d) we express no opinion on any provision in the Agreement requiring written
amendments and waivers of the Agreement insofar as it suggests that oral or
other modifications, amendments or waivers could not be effectively agreed upon
or granted between or by the parties or by a duly authorized agent; and
(e) the court may not give full effect to an indemnity for legal costs.
We are members of the bar of Japan and, with your permission, our opinion
is limited to the laws of Japan.
This opinion is given as of the date hereof and only for the benefit of
the addressees and on the basis that it will be relied upon only by such
addressees and will not be disclosed to any third party other than such
addressees' professional advisers.
Very truly yours,
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Part 2: Form of Opinion of Jan J. Kang
, 1995
ABN AMRO Bank
Tokyo Branch
Shiroyama JT Mori Building
3-1, 4-chome, Toranomon
Minato-ku, Tokyo
(the "Purchaser")
Dear Sirs:
I am senior counsel for Lam Research Corporation, a Delaware corporation
(the "Guarantor"), in connection with its preparation, execution and delivery of
the Guaranty (the "Guaranty") dated as of , 1995 in relation to the
Receivables Purchase Agreement, dated as of , 1995 (the "Agreement") among
the Purchaser and Lam Research Co., Ltd., a Japanese corporation, as Seller and
Collection Agent. Capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to such terms in the Guaranty or the
Agreement.
Based on my examination of such corporate records, certificates and other
documents and questions of law as I have considered necessary or appropriate, it
is my opinion that:
1. The Guarantor is a corporation duly organized and is validly existing and
in good standing under the laws of the state of Delaware with power to enter
into the Guaranty and to exercise its rights and perform its obligations
thereunder and all corporate and other action required to authorize its
execution of the Guaranty and its performance of its obligations thereunder has
been duly taken.
2. The execution, delivery and performance of the Guaranty and the
transactions contemplated thereby by the Guarantor require no action by or in
respect of, or filing, recording or enrolling with, any governmental body,
agency, court official or other authority, and do not contravene, or constitute
a default under, any provision of applicable law or regulation or its
constitutive documents or other internal regulations or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Guarantor or any of its assets.
3. The claim of the Purchaser against the Guarantor under the Guaranty will
rank at least pari passu with the claims of all its other unsecured creditors.
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4. In any proceedings taken in the United States in relation to the Guaranty,
the choice of California law by the Guarantor as the governing law of, and the
submission to jurisdiction under, the Guaranty will be recognized and enforced.
5. The obligations expressed to be assumed by the Guarantor in the Guaranty
are legal and valid obligations binding on it and enforceable in accordance with
its terms.
6. No deduction or withholding (whether on account of tax or otherwise) will
be required from any payment by the Guarantor arising out of or under the
Guaranty.
For purposes of this opinion, I have assumed:
(i) the authenticity and completeness of all documents submitted to us
as copies;
(ii) the authenticity of all signatures and seals of parties; and
(iii) the conformity to complete original documents of all
documents submitted to us as copies or facsimiles.
This opinion must be read subject to the following qualifications:
(a) I neither express nor imply any opinion as to laws other than the
laws of the United States, the laws of the State of California and the General
Corporation Law of the State of Delaware as at the date of this opinion.
(b) Enforcement may be limited by any laws from time to time in effect
relating to bankruptcy, insolvency, liquidation, receivership, reconstruction,
reorganization, moratorium or other similar laws affecting creditors' rights
generally.
This opinion is given solely for your benefit, and except with my prior
written consent is not to be disclosed to or relied on by any other person.
This opinion is limited to the matters stated herein and is not to be construed
as extending by implication to any other matter.
Very truly yours,
72