WELLS FARGO HSBC TRADE BANK REVOLVING CREDIT LOANS NOTE - 2
Exhibit
99.2
|
XXXXX
FARGO HSBC TRADE BANK |
REVOLVING
CREDIT LOANS NOTE - 2 |
|
$3,000,000 |
San
Francisco, California |
|
___________________________,
2005 |
FOR VALUE
RECEIVED, the undersigned SOUTHWALL TECHNOLOGIES INC., a Delaware
corporation,
("Borrower")
promises to pay to the order of XXXXX FARGO HSBC TRADE BANK, NATIONAL
ASSOCIATION ("Trade Bank") at its office at Xxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxxxxxxx, XX 00000, or at such other place as the holder hereof may
designate, in lawful money of the United States of America and in immediately
available funds, the principal sum of Three
Million Dollars
($3,000,000) or so
much thereof as may be advanced and be outstanding, with interest thereon, to be
computed on each advance from the date of its disbursement at a rate per annum
(computed on the basis of a 360-day
year, actual days elapsed) one-quarter percent
(0.25%) below
the Prime Rate in effect from time to time. The "Prime Rate" is a base rate that
XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Bank") from time to time establishes
and which serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto. Each change in the rate of
interest hereunder shall become effective on the date each Prime Rate change is
announced within Bank.
Borrower
may from time to time during the term of this Note borrow, partially or wholly
repay its outstanding borrowings, and reborrow, subject to all of the
limitations, terms and conditions of this Note and of that certain Credit
Agreement between Borrower and Trade Bank dated as of
___________________________, 2005, as amended from time to time ("Credit
Agreement"); provided that the outstanding principal balance of this Note shall
at no time exceed the principal amount stated above. The unpaid principal
balance of this obligation at any time shall be the total amounts advanced
hereunder by the holder hereof less the amount of principal payments made hereon
by or for any Borrower, which balance may be endorsed hereon from time to time
by the holder.
Interest
accrued on this Note shall be payable on the first day of each month, commencing
May 1, 2005. The outstanding principal balance of this Note shall be due and
payable in full on May 31, 2006. Each payment made on this Note shall be
credited first, to any interest then due and second, to the outstanding
principal balance hereof.
Advances
hereunder, to the total amount of the principal sum stated above, may be made by
the holder at the oral or written request of Xxxxxx X.
Xxxx, Xxxxx Xxxxxx or Xxxxxx
Xxxxxxxx, any one acting alone, who are authorized to request advances and
direct the disposition of any advances until written notice of the revocation of
such authority is received by the holder at the office designated above, or (b)
any person, with respect to advances deposited to the credit of any account of
any Borrower with the holder, which advances, when so deposited, shall be
conclusively presumed to have been made to or for the benefit of each Borrower
regardless of the fact that persons other than those authorized to request
advances may have authority to draw against such account. The holder shall have
no obligation to determine whether any person requesting an advance is or has
been authorized by any Borrower.
Upon the
occurrence of any Event of Default as defined in the Credit Agreement, the
holder of this Note, at the holder's option, may declare all sums of principal
and interest outstanding hereunder to be immediately due and payable without
presentment, demand, protest or notice of dishonor, all of which are expressly
waived by each Borrower, and the obligation, if any, of the holder to extend any
further credit hereunder shall immediately cease and terminate. Each Borrower
shall pay to the holder immediately upon demand the full amount of all payments,
advances, charges, costs and expenses, including reasonable attorneys' fees (to
include outside counsel fees and all allocated costs of the holder's in-house
counsel), incurred by the holder in connection with the enforcement of the
holder's rights and/or the collection of any amounts which become due to the
holder under this Note, and the prosecution or defense of any action in any way
related to this Note, including without limitation, any action for declaratory
relief, and including any of the foregoing incurred in connection with any
bankruptcy proceeding relating to any Borrower.
Should
more than one person or entity sign this Note as a Borrower, the obligations of
each such Borrower shall be joint and several.
This Note
shall be governed by and construed in accordance with the laws of the State of
California, except to the extent Trade Bank has greater rights or remedies under
Federal law, whether as a national bank or otherwise, in which case such choice
of California law shall not be deemed to deprive Trade Bank of any such rights
and remedies as may be available under Federal law.
“BORROWER”
SOUTHWALL
TECHNOLOGIES INC.
By:
___________________________
Title:
__________________________
Borrower’s
Address:
0000 Xxxx
Xxxxxxxx Xxxx
Palo
Alto, CA 94303
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ADDENDUM
TO PROMISSORY NOTE
THIS
ADDENDUM is attached to and made a part of that certain promissory note executed
by SOUTHWALL TECHNOLOGIES INC., a Delaware corporation ("Borrower") and payable
to XXXXX FARGO HSBC TRADE BANK, NATIONAL ASSOCIATION, or order, dated as of
___________________________, 2005, in the principal amount of Three Million
Dollars ($3,000,000) (the "Note").
The
following arbitration provision is hereby incorporated into the
Note:
ARBITRATION:
1. Arbitration. The
parties hereto agree, upon demand by any party, to submit to binding arbitration
all claims, disputes and controversies between or among them (and their
respective employees, officers, directors, attorneys, and other agents), whether
in tort, contract or otherwise arising out of or relating to in any way (i) the
loan and related loan and security documents which are the subject of this Note
and its negotiation, execution, collateralization, administration, repayment,
modification, extension, substitution, formation, inducement, enforcement,
default or termination; or (ii) requests for additional credit.
2. Governing
Rules. Any
arbitration proceeding will (i) proceed in a location in California selected by
the American Arbitration Association (“AAA”); (ii) be governed by the Federal
Arbitration Act (Title 9 of the United States Code), notwithstanding any
conflicting choice of law provision in any of the documents between the parties;
and (iii) be conducted by the AAA, or such other administrator as the parties
shall mutually agree upon, in accordance with the AAA’s commercial dispute
resolution procedures, unless the claim or counterclaim is at least
$1,000,000.00 exclusive of claimed interest, arbitration fees and costs in which
case the arbitration shall be conducted in accordance with the AAA’s optional
procedures for large, complex commercial disputes (the commercial dispute
resolution procedures or the optional procedures for large, complex commercial
disputes to be referred to, as applicable, as the “Rules”). If there is any
inconsistency between the terms hereof and the Rules, the terms and procedures
set forth herein shall control. Any party who fails or refuses to submit to
arbitration following a demand by any other party shall bear all costs and
expenses incurred by such other party in compelling arbitration of any dispute.
Nothing contained herein shall be deemed to be a waiver by any party that is a
bank of the protections afforded to it under 12 U.S.C. §91 or any similar
applicable state law.
3. No
Waiver; Provisional Remedies, Self-Help and Foreclosure. The
arbitration requirement does not limit the right of any party to (i) foreclose
against real or personal property collateral; (ii) exercise self-help remedies
relating to collateral or proceeds of collateral such as setoff or repossession;
or (iii) obtain provisional or ancillary remedies such as replevin, injunctive
relief, attachment or the appointment of a receiver, before during or after the
pendency of any arbitration proceeding. This exclusion does not constitute a
waiver of the right or obligation of any party to submit any dispute to
arbitration or reference hereunder, including those arising from the exercise of
the actions detailed in sections (i), (ii) and (iii) of this
paragraph.
4. Arbitrator
Qualifications and Powers. Any
arbitration proceeding in which the amount in controversy is $5,000,000.00 or
less will be decided by a single arbitrator selected according to the Rules, and
who shall not render an award of greater than $5,000,000.00. Any dispute in
which the amount in controversy exceeds $5,000,000.00 shall be decided by
majority vote of a panel of three arbitrators; provided however, that all three
arbitrators must actively participate in all hearings and deliberations. The
arbitrator will be a neutral attorney licensed in the State of California or a
neutral retired judge of the state or federal judiciary of California, in either
case with a minimum of ten years experience in the substantive law applicable to
the subject matter of the dispute to be arbitrated. The arbitrator will
determine whether or not an issue is arbitratable and will give effect to the
statutes of limitation in determining any claim. In any arbitration proceeding
the arbitrator will decide (by documents only or with a hearing at the
arbitrator's discretion) any pre-hearing motions which are similar to motions to
dismiss for failure to state a claim or motions for summary adjudication. The
arbitrator shall resolve all disputes in accordance with the substantive law of
California and may grant any remedy or relief that a court of such state could
order or grant within the scope hereof and such ancillary relief as is necessary
to make effective any award. The arbitrator shall also have the power to award
recovery of all costs and fees, to impose sanctions and to take such other
action as the arbitrator deems necessary to the same extent a judge could
pursuant to the Federal Rules of Civil Procedure, the California Rules of Civil
Procedure or other applicable law. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction. The institution and
maintenance of an action for judicial relief or pursuit of a provisional or
ancillary remedy shall not constitute a waiver of the right of any party,
including the plaintiff, to submit the controversy or claim to arbitration if
any other party contests such action for judicial relief.
5. Discovery. In any
arbitration proceeding discovery will be permitted in accordance with the Rules.
All discovery shall be expressly limited to matters directly relevant to the
dispute being arbitrated and must be completed no later than 20 days before the
hearing date and within 180 days of the filing of the dispute with the AAA. Any
requests for an extension of the discovery periods, or any discovery disputes,
will be subject to final determination by the arbitrator upon a showing that the
request for discovery is essential for the party's presentation and that no
alternative means for obtaining information is available.
6. Class
Proceedings and Consolidations. The
resolution of any dispute arising pursuant to the terms of this Note shall be
determined by a separate arbitration proceeding and such dispute shall not be
consolidated with other disputes or included in any class
proceeding.
7. Payment
Of Arbitration Costs And Fees. The
arbitrator shall award all costs and expenses of the arbitration
proceeding.
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8. Real
Property Collateral; Judicial Reference.
Notwithstanding anything herein to the contrary, no dispute shall be submitted
to arbitration if the dispute concerns indebtedness secured directly or
indirectly, in whole or in part, by any real property unless (i) the holder of
the mortgage, lien or security interest specifically elects in writing to
proceed with the arbitration, or (ii) all parties to the arbitration waive any
rights or benefits that might accrue to them by virtue of the single action rule
statute of California, thereby agreeing that all indebtedness and obligations of
the parties, and all mortgages, liens and security interests securing such
indebtedness and obligations, shall remain fully valid and enforceable. If any
such dispute is not submitted to arbitration, the dispute shall be referred to a
referee in accordance with California Code of Civil Procedure Section 638 et
seq., and this general reference agreement is intended to be specifically
enforceable in accordance with said Section 638. A referee with the
qualifications required herein for arbitrators shall be selected pursuant to the
AAA’s selection procedures. Judgment upon the decision rendered by a referee
shall be entered in the court in which such proceeding was commenced in
accordance with California Code of Civil Procedure Sections 644 and
645.
9. Miscellaneous. To the
maximum extent practicable, the AAA, the arbitrators and the parties shall take
all action required to conclude any arbitration proceeding within 180 days of
the filing of the dispute with the AAA. No arbitrator or other party to an
arbitration proceeding may disclose the existence, content or results thereof,
except for disclosures of information by a party required in the ordinary course
of its business or by applicable law or regulation. If more than one agreement
for arbitration by or between the parties potentially applies to a dispute, the
arbitration provision most directly related to the documents between the parties
or the subject matter of the dispute shall control. This Note may be amended or
modified only in writing signed by each party hereto. If any provision of this
Note shall be held to be prohibited by or invalid under applicable law such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or any
remaining provisions of this Note. This arbitration provision shall survive
termination, amendment or expiration of any of the documents or any relationship
between the parties.
IN
WITNESS WHEREOF, this Xxxxxxxx has been executed as of the same date as the
Note.
“BORROWER”
SOUTHWALL
TECHNOLOGIES INC.
By:
___________________________
Title:
__________________________
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