EXHIBIT 4.1
THE LEAP GROUP, INC.
CREDIT AGREEMENT, DATED OCTOBER 7, 1996, BETWEEN
THE LEAP GROUP, INC. AND THE UNION BANK OF SWITZERLAND
I. Purpose of this Agreement.
(a) General. This Agreement sets forth terms and conditions applicable to (i)
any loan (a "Loan") made or to be made to the undersigned (the "Customer") by
Union Bank of Switzerland, Los Angles Branch (the "Bank"), (ii) any letter of
credit (a "Letter of Credit") to be issued by the Bank at the request of the
Customer, whether or not the Customer is identified therin as the account party,
and (iii) any other Obligation (as defined below) of the Customer to the Bank.
Schedule I hereto, as amended from time to time (which is hereby incorporated
herein and made a part of this Agreement), sets forth the amount, if any, of any
line of credit made available to the Customer by the Bank and certain other
terms applicable hereunder. Except as otherwise explicitly stated in such
Schedule, such line of credit shall be uncommitted, and accordingly the Bank may
in its absolute discretion at any time decline to make any Loan to the Customer
or issue any Letter of Credit at the request of the Customer notwithstanding any
other provision or circumstance that may otherwise appear inconsistent with such
absolute discretion. Except as otherwise explicitly stated in such Schedule, any
such line of credit may terminated or reduced by the Bank at any time.
(b) Scope of Agreement. Unless expressly agreed in writing by the Bank to the
contrary, all of the provisions of this Agreement shall apply to each Loan, each
Letter of Credit, and any other Obligation as hereinafter defined, whether or
not referred to on Schedule I hereto. The word "Obligations" herein means any
and all indebtedness, obligations and liabilities of any kind, now or hereafter
existing, of the Customer to the Bank, whether absolute or contingent and
however arising or acquired by the Bank, including without limitation (i) the
obligation to pay the principal, interest and other amounts described herein
respecting any Loan, (ii) the obligation to reimburse the Bank for any drawing
under any Letter of Credit and (iii) any guaranty by the Customer of the
obligations of any other person or entity to the Bank.
II. Relation to other Documents.
(a) Note. Any Loan or Loans made or to be made to the Customer by the Bank
shall be evidenced by a promissory note in substantially the form of Exhibit A
hereto (the "Note"), which shall be dated the date hereof, signed by the
Customer and received by the Bank before any such Loan will be made. The
principal amount of each such Loan and each repayment thereof may be endorsed by
the Bank on the schedule attached thereto, but any failure to make such an
endorsement or any error in doing so shall not affect the obligations of the
Customer hereunder or under the Note, which shall be absolute and unconditional.
(b) Loan Advices. The date and amount of each Loan made hereunder and the
fixed rate or floating rate basis on which interest is to accrue thereon until
maturity as well as the maturity in the case of each Fixed Rate Loan (as defined
in paragraph III(a)), shall be set forth in a written loan advice to be
delivered to the Customer by the Bank (a "Loan Advice"). Each Loan Advice shall
be conclusive and binding upon the Customer, absent manifest error, unless the
Customer otherwise notifies the Bank in writing no later than the close of
business, Los Angeles time, on the business day on which the Loan Advice is
received by the Customer, in the case of an asserted error in the rate of
interest on a Fixed Rate Loan, or on the third business day thereafter in any
other case.
III. Loans.
(a) Types of Loans. The terms "Loans" as used herein means Fixed Rate Loans or
Floating Rate Loans or both, as the context requires. "Fixed Rate Loans" are
Loans made hereunder on which pursuant to the related Loan Advice, interest is
to accrue at a fixed rate for a fixed period. "Floating Rate Loans" are Loans
made hereunder on which, pursuant to the related Loan Advice, interest is to
accrue at floating rates related to the Base Rate, the Prime Rate or the Federal
Funds Rate (as such terms are defined in paragraph V (a)), or any other rate
agreed upon by the parties that may change from time to time.
(b) Manner of Funding. Unless otherwise agreed, all Loans shall be made by
crediting the principal amount thereof to an account maintained by the Customer
with the Bank.
(c) Maturity of Floating Rate Loans. All Floating Rate Loans are payable ON
DEMAND, as to both principal and interest, in the Bank's absolute discretion,
whether or not an Event of Default (as defined in paragraph III(d)) shall have
occurred. This right to demand can be waived by the Bank only in a writing
expressly so stating. Any provision or circumstance that may otherwise appear
inconsistent with this right shall not be interpreted as limiting the right in
the absence of the Bank's express written agreement to the contrary.
(d) Maturity of Fixed Rate Loans; Acceleration in Certain Events. All Fixed
Rate Loans shall mature, and shall be repaid in full, at the end of the term
specified in the relevant Loan Advice. The Bank may, by notice to the Customer,
declare all Fixed Rate Loans to be due and payable at any time at which any of
the following events ("Events of Default") shall have occurred and be
continuing:
(i) the principal of or interest on any Loan or any other amount payable in
respect of any Obligation shall not be paid when due;
(ii) the aggregate Lending Value of the Collateral in which the Bank has a
first priority, perfected security interest is determined by the Bank to
be less than the Required
Lending Value (the foregoing terms being used as defined in Article VI);
(iii) the Customer shall fail to provide promptly such financial and other
information as the Bank may reasonably request from time to time;
(iv) the Customer shall fail to perform any other agreement set forth herein
(including any covenant set forth on Schedule I hereto), or any
representation or other statement of the Customer herein (including in
Schedule I hereto) or in any other document delivered in connection with
any Obligation shall prove to have been incorrect in any material respect
when made or deemed made;
(v) if the Customer is a natural person, the Customer shall die or shall be
declared legally incompetent;
(vi) any indebtedness of the Customer for borrowed money shall not have been
paid when due, or any event or condition shall have caused such
indebtedness to become, or shall have permitted the holder hereof to
declare such indebtedness to be, due and payable prior to its stated
maturity;
(vii) any legal proceeding shall have been instituted or any other event shall
have occurred or condition shall exist that in the Bank's judgment could
have a material adverse effect on the financial condition of the Customer
or on the Customer's ability to perform the Customer's obligations
hereunder, or that calls into question the validity or binding effect of
any agreement of the Customer hereunder or under the Note; or
(viii) the Customer makes an assignment for the benefit of creditors, files a
petition in bankruptcy, is adjudicated insolvent or bankrupt, petitions
or applies to any tribunal for any receiver of or any trustee for the
Customer or any substantial part of the Customer's property, commences
any proceeding relating to the Customer under any reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or
statue of any jurisdiction, whether now or hereafter in effect, or there
is commenced against or with respect to the Customer or any substantial
portion of its property any such proceeding and an order for relief is
issued or such proceeding remains undismissed for a period of 30 days;
provided that, upon the occurrence of any Event of Default described in clause
(v) or (viii) above, all Fixed Rate Loans, Floating Rate Loans and other
Obligations shall automatically become due and payable without any demand or
other action by the Bank or any other person or entity.
(e) "Breakage" on Fixed Rate Loans. The Customer agreed promptly at the Bank's
request to reimburse the Bank for any loss or cost which the Bank notifies the
Customer has been incurred by the Bank as a result of any payment of the
principal of a Fixed Rate Loan before the expiration of the fixed rate period,
or the customer's failure to take any Fixed Rate Loan on the date agreed upon,
including any such payment or failure resulting from the acceleration of the
maturity of the Loan. Any written notice from the Bank as to the amount such
loss or cost shall be conclusive absent manifest error.
IV. Letters of Credit
(a) Application; Commissions. The Customer may request that a Letter of Credit
be issued by completing, executing and delivering to the Bank an application in
such form as the Bank may specify from time to time. In the event of any
inconsistency between this Agreement and any such application, this Agreement
shall be controlling. The Customer agrees to pay to the Bank such commissions
and other charges in respect of Letters of Credit as may be set forth on
Schedule I hereto or otherwise agreed upon by the Bank and the Customer from
time to time.
(b) Reimbursement. The Customer shall reimburse to the Bank immediately upon
demand the amount of any drawing under any Letter of Credit. Such reimbursement
obligation of the Customer in respect of each Letter of Credit shall be
unconditional and absolute notwithstanding, and neither the Bank nor any of its
correspondents shall have any liability by reason of, (i) any draft,
certificate, xxxx of lading or other document presented under or in connection
with such Letter of Credit, including any instrument purporting to transfer or
assign such Letter of Credit or any rights thereunder, proving to be forged,
fraudulent, inaccurate or invalid in any respect (ii) the existence of any
claim, setoff or other rights which the Customer may have at any time against
the beneficiary or any other person or entity, (iii) the failure of any drawing
to conform to the terms of such Letter of Credit (provided that the Bank shall
have acted in good faith and shall not have engaged in willful misconduct in
connection therewith) or the misapplication of the proceeds thereof by the
beneficiary or any other person or entity, (iv) any difference in character
quality, quantity, condition or value of the property purporting to be
represented by bills of lading or other documents of title from that expressed
in such documents, or (v) any other act, omission or circumstance that would,
but for the provisions of this paragraph (b), constitute a legal or equitable
discharge of any obligation of the Customer hereunder.
(c) Covenants Concerning Letters of Credit. The Customer agrees to obtain
promptly any import, export or other license required in connection with
property to which any Letter of Credit directly or indirectly relates, and
agrees to comply with all applicable laws and regulations in regard
to any shipment, warehousing or financing of any such property. The Customer
agrees to protect, indemnify and hold harmless the Bank and its correspondents
from and against all claims, actions, suits and other proceedings, and all
losses, damages and costs (including fees and expenses of counsel) which the
Bank or any of its correspondents may suffer or incur by reason of the issuance
of any Letter of Credit or any act or omission in respect of any Letter of
Credit, except to the extent resulting from the bad faith or willful misconduct
of the party seeking indemnification.
(d) EVENT OF DEFAULT. If an Event of Default occurs and is continuing, the
Customer will, on demand by the Bank, pay to the Bank in cash an amount equal to
the maximum amount that may at any time thereafter be drawn under all Letters of
Credit, to be held by the Bank in such manner as the Bank may determine and
applied to the Customer's reimbursement obligations hereunder (with any excess
to be returned to the Customer, subject to Article VI hereof, upon expiration of
all Letters of Credit and reimbursement in full of all amounts drawn
thereunder).
V. INTEREST AND OTHER PAYMENTS
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(a) INTEREST; DEFAULT INTEREST. The rate at which each Fixed Rate Loan shall
bear interest, and the maturity of such Loan, will be specified in the relevant
Loan Advice. Floating Rate Loans will bear interest on a daily basis as
specified herein (including the related Loan Advices). Any Loan or other
Obligation for which no interest has been stated in the relevant Loan Advice or
other documentation shall, unless otherwise agreed by the parties in writing,
bear interest at the same rates as, and for all purposes of this Agreement and
the Note shall be treated as, a Floating Rate Loan. As used herein and in
Schedule I hereto, (i) the term "Prime Rate" means the rate per annum announced
by Union Bank of Switzerland in New York City as its "prime rate" from time to
time, which rate shall be determined daily, (ii) the term "Federal Funds Rate"
means the average rate per annum quoted to Union Bank of Switzerland at 11:00
a.m. (New York City time) on each day for overnight Federal Funds transactions
arranged by three New York Federal Funds brokers selected by Union Bank of
Switzerland, and (iii) the term "Base Rate" means the higher of the Prime Rate
and a rate per annum 1% in excess of the Federal Funds Rate. All interest shall
be computed on the basis of the number of days elapsed and a 360-day year.
Unpaid interest accrued on each Loan shall be due at maturity and, prior
thereto, monthly on the same day each month as the day of the month on which the
applicable Loan was made, or on such other monthly basis as the Bank may specify
by at least ten days' written notice to the Customer. Each repayment or
prepayment of principal shall be accompanied by all accrued and unpaid interest
thereon. Notwithstanding the preceding sentences of this paragraph, any
principal, interest, fee or other Obligation (including reimbursement of any
drawing under a Letter of Credit) not paid when due shall bear interest, payable
on demand, at a floating rate per annum which is two percentage points above the
Base Rate. Notwithstanding the foregoing, the Customer shall not be required to
pay interest for any period at a rate exceeding the maximum rate permitted by
law. If the amount of interest payable by the Customer for any period is reduced
pursuant to the preceding sentence, the amount of interest payable for each
succeeding period shall be increased to the maximum rate permitted by law until
the amount of such reduction has been received by the Bank.
(b) INCREASED COSTS. In the event that any change in applicable law or
regulation or in the interpretation thereof by any governmental authority
charged with the administration thereof subjects the Bank to any tax or charge
of any kind whatsoever with respect to any Fixed Rate Loan or Letter of Credit,
or changes the basis of taxation of payments to the Bank in respect of any Fixed
Rate Loan or Letter of Credit (except for changes in the rate of tax based
solely on the overall net income of the Bank or Union Bank of Switzerland) or
imposes, modifies or deems applicable any reserve or similar requirement against
assets held by or deposits in or for the account of, or loans made or letters of
credits issued by, the Bank, or imposes on the Bank, directly or indirectly, any
other conditions affecting the cost of deposits obtained by the Bank, and the
result of any of the foregoing is to increase the cost to the Bank of making or
maintaining any Fixed Rate Loan or of issuing or maintaining any Letter of
Credit by an amount which the Bank deems to be material, then the Customer will
pay to the Bank upon its demand the additional amount or amounts necessary to
compensate the Bank for such additional costs. Any written notice from the Bank
as to the amount of compensation due under this paragraph shall be conclusive
absent manifest error.
(c) CAPITAL ADEQUACY. If the adoption or effectiveness after the date hereof of
any applicable law, rule or regulation regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Bank with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on the Bank's capital in
respect of this Agreement or any Loan or Letter of Credit to a level below that
which the Bank could have achieved but for such adoption, effectiveness, change
or compliance by an amount deemed by the Bank to be material, the Customer shall
pay to the Bank, on demand, such additional amount or amounts as will compensate
the Bank for such reduction. Any written notice from the Bank as to such
additional amount or amounts shall be conclusive absent manifest error.
(d) PAYMENTS; OVERDRAFTS; BUSINESS DAYS. All payments required to be made by the
Customer hereunder shall be made in U.S. dollars immediately available to the
Bank at its office
at address 000 Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx. All such payments
will be made to the Bank free and clear of any and all present and future taxes,
levies, impost, duties, deductions, withholding, fees, liabilities and similar
charges other then those imposed on the overall net income of the Bank. If any
such taxes or other charges are required to be withheld or deducted from any
amount payable by the Customer under this Agreement, the amount so payable will
be increased to the amount which, after deduction from such increased amount of
all such taxes and other charges required to be withheld or deducted therefrom,
will yield to the Bank the amount stated to be payable under this Agreement. If
any such taxes or charges are paid by the Bank, the Customer will reimburse the
Bank on demand for such payments, together with all interest and penalties which
may be imposed by any governmental agency. The Bank shall have the right, but
not the obligation, to effect payment of amounts owed by the Customer hereunder
from time to time by debiting the same from any Account (as defined in Article
VI(a)). Unless otherwise specified on Schedule I hereto, any overdraft in any
Account shall be payable immediately and shall bear interest until paid in full
at a floating rate per annum which is two percentage points above the Base Rate.
The Bank may (but shall not be obligated to) transfer funds from any Account to
cover an overdraft in any other Account. The Bank will provide the Customer with
subsequent notice of any such overdraft and transfer. Any payment otherwise due
hereunder on a day which is not a business day shall be paid on the next ensuing
business day, with any interest computed to the day of payment. "Business day"
wherever used herein shall mean any day other than a Saturday, Sunday or other
day on which commercial banks in Los Angeles or New York are authorized to
close.
VI. SECURITY.
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(a) SECURITY AGREEMENT. As security for the payment of all of the Obligations,
the Customer hereby grants to the Bank a security interest in and lien upon the
following (collectively referred to in this Agreement as the "Collateral"):(i)
every deposit, portfolio management or custody account now or hereafter existing
of the Customer with the Bank and the balance thereof and all assets credited
hereto from time to time (collectively, the "Accounts"), including any such
account balance or assets held by a custodian or sub-custodian for the Bank and
any other present or future claim of the Customer with respect to any Account,
(ii) all money, instruments, securities, documents, credits, claims, demands and
any other property, rights or interests of the Customer or in which the Customer
has any interest, of any kind, tangible or intangible, which are ever in any
Account or otherwise in the possession, custody or control of the Bank or anyone
acting for the Bank for any purpose, (iii) any other assets identified as
Collateral on Schedule I hereto or in which the Customer otherwise grants a
security interest to the Bank and (iv) all interest and dividends on and
proceeds, products and accessions of and to, and any property received or
issuable in exchange for, any of the foregoing. The Bank shall be deemed to have
possession of any property in transit to or set apart or held for it or any of
its affiliates, agents, custodians, sub-custodians, associates or
correspondents. Subject to paragraph (b) of this Article VI, the Customer may
make substitutions in Collateral on not less than three business days' prior
written notice to the Bank.
The Bank shall have with respect to the Collateral, in addition to any rights
referred to herein, all the rights of a secured party under the Uniform
Commercial Code of California. The Bank shall have the right (but not the
obligation) (i) to hold any Collateral in its name, in the name of any custodian
or subcustodian for the Bank or in the name of any nominee of any of such
entities, and to require the Customer to transfer Collateral into any such name,
(ii) in its name or the name of the Customer to demand, xxx for, collect and
receive any money or property at any time due or payable on account of or in
exchange for any Collateral, compromise or settle, extend the time of payment or
alter the terms of payment of, any Collateral, and take any other action which
the Bank deems necessary or appropriate in connection with any Collateral or its
custody or preservation, all without notice to the Customer and without
discharging any Obligation on incurring any liability to the Customer. Upon the
occurrence of an Event of Default, the Bank may apply the Collateral to the
Obligations in such order and in such manner as it may choose. The Bank shall
have no obligations with respect to Collateral except to use reasonable care in
the custody and preservation thereof to the extent required by law. With respect
to any Collateral held by a custodian or sub-custodian for the Bank, the Bank's
duty under the preceding sentence shall be limited to the use of reasonable care
in the selection of such custodian or sub-custodian. The Customer, and not the
Bank, shall be obligated to give any notice or take any other steps necessary to
preserve rights against any other or prior party to any instrument. To the
extent permitted by law, any requirement of reasonable notice imposed by law
shall be deemed met if such notice is in writing and is mailed, transmitted by
facsimile or hand delivered to the Customer at least three business days prior
to the sale, disposition or other event giving rise to such notice requirement;
provided that the Bank shall not be required to give any prior notice to the
Customer in connection with the sale or other intended disposition of Collateral
that is of a type customarily sold on a recognized market or threatens to
decline speedily in value. Notwithstanding the realization by the Bank upon all
of the Collateral, unless the Bank has proposed that it retain the Collateral in
satisfaction of the Obligations and no written objection has been made thereto
within the time specified in any applicable section of the California Uniform
Commercial Code, the Customer shall continue to be liable for any balance of the
Obligations (including interest to the date of payment) which shall thereafter
remain unpaid. For purposes of this Article VI, (i) the term "Bank" shall be
deemed to refer to all offices of Union Bank of Switzerland and (ii) references
to "Obligations" shall be deemed to include all obligations of the types
described in the definition thereof owed to any office of Union Bank of
Switzerland.
(b) LENDING VALUE OF COLLATERAL. The Customer understands and agrees that the
Customer must maintain Collateral in which the Bank has a first priority,
perfected security interest having a Lending Value, as defined below, equal to
not less than 100% of the principal of; interest on and all other amounts
payable in respect of the Obligations outstanding from time to time (including
without limitation Obligations which have not yet matured or are contingent)
(the "Required Lending Value"). "Lending Value" shall mean the percentage set
forth on Schedule I hereto of the fair market value, as determined by the Bank
from time to time, of the relevant class of Collateral (any item not listed to
have such Lending Value, if any, as the Bank may fix from time to time),
subject, in the case of any security which, under the circumstances, is covered
by Regulation U or Regulation X of the Federal Reserve Board, to any maximum
margin percentage imposed by such Regulations; provided that, notwithstanding
Schedule I, the Bank may change or eliminate the percentage applicable to any
class of Collateral at any time without prior notice to the Customer. The
Customer agrees immediately to deliver additional Collateral to the Bank to the
extent that, at any time, the aggregate Lending Value of the Collateral is less
than the Required Lending Value.
(c) AGREEMENTS AND REPRESENTATIONS RELATING TO COLLATERAL. The Customer
represents and agrees that the Customer owns and will at all times own the
Collateral free and clear of any lien or other encumbrance other than the
security interest created hereby and that the Collateral will not at any time
include (i) securities the ownership of which is required to be reported under
Rule 13d-1 under the Securities Exchange Act of 1934 or (ii) "restricted
securities" as defined in Rule 144 under the Securities Act of 1933 or any other
security or other property that is subject to any restriction on the sale,
pledge or other disposition thereof under applicable law or under any agreement
or instrument to which the Customer is subject. If any portion of the Collateral
is held in an account managed on a discretionary basis by the Bank or any
affiliate of the Bank, the Customer (i) acknowledges that the dual role of
Union Bank of Switzerland and/or such affiliate as creditor and discretionary
manager could give rise to a potential conflict of interest and (ii) consents to
the performance by Union Bank of Switzerland and/or such affiliate of that dual
role. The Customer will, at the Customer's expense and in such form as the Bank
may require, execute, deliver, file and record any financing statement, specific
assignment or other paper and take any other action that may be necessary or
desirable, or that the Bank may request, in order to create, preserve, perfect
or validate the security interest created hereby or to enable the Bank to
exercise and enforce its rights hereunder or under applicable law with respect
to any of the Collateral.
(d) MARGIN STOCK REPRESENTATION. Each borrowing by the Customer will be deemed
to be a representation by the Customer that none of the proceeds will be used,
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any "margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, except to
the extent that the Borrower shall have expressly notified the Bank in writing
before such borrowing and the Bank shall have expressly consented thereto.
(e) SETOFF. In addition to the Bank's security interest, it shall at all times
have a right to set off against the Obligations at or after the time at which
they become due, whether at stated maturity, by acceleration, upon demand or
otherwise, all collected funds at any time in any account maintained with the
Bank by or for the benefit of the Customer or other party obligated for the
Obligations, unless such account is clearly denominated in the Bank's records as
not being the Customer's or such other party's property, in which case such
right of setoff shall apply only to so much thereof as belongs to the Customer
or such other party. This right is in addition to, and not in limitation of,
any right the Bank may have at law or otherwise. If any Obligations are secured
by California real property, any application of the Collateral to the
Obligations shall conclusively by deemed to be an exercise of the Bank's rights
under the Uniform Commercial Code of California, rather than an exercise of any
right of set-off.
VII. GENERAL PROVISIONS.
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(a) REPRESENTATIONS AND WARRANTIES. The Customer represents and warrants to the
Bank that: (i) if it is purportedly a corporation, a limited partnership or a
general partnership, it is duly organized, validly existing and in good standing
as such under the laws of the jurisdiction of its organization, and has all
requisite power and authority to conduct its business as now conducted and to
own its properties, (ii) the Customer has full power and authority to enter into
this Agreement and the Note and to incur its obligations provided for herein and
therein, all of which have been duly authorized by all proper and necessary
action on the part of the Customer and (iii) this Agreement has been duly
executed and delivered by the Customer and constitutes, and (upon execution and
delivery thereof) the Note will constitute, a valid and legally binding
obligation of the Customer, enforceable against the Customer in accordance with
its terms, except as enforceability may be affected by bankruptcy, insolvency
and other laws relating to or affecting creditors' rights generally and by
general principles of equity. The Customer will be deemed to have made a
representation and warranty, on each date on which a Loan is made or a Letter
of Credit is issued, that the foregoing representations are true and correct on
and as of such date.
(b) EXPENSES; INDEMNITY. The Customer shall be liable to the Bank, and shall
promptly reimburse it on demand, for all expenses incurred by the Bank as a
result of any default or Event of Default hereunder, including reasonable fees
and disbursements of counsel and all expenses incurred in collection and in the
protection of its rights in respect of the
Obligations (including all expenses incurred in connection with any workout or
any bankruptcy or similar proceedings relating to the Customer). The Customer
shall also reimburse the Bank from time to time at the Bank's request for any
out-of-pocket expenses incurred by the Bank in connection with the Collateral
and the Bank's security interest therein. The Customer will indemnify the Bank
and hold the Bank harmless from and against all liabilities, losses, damages,
costs and expenses (including settlement costs and fees and disbursements of
counsel) which may be incurred by the Bank in connection with any investigative,
administrative or judicial proceeding relating to or arising out of this
Agreement, any Loan, Letter of Credit or other Obligation or any actual or
proposed use of the proceeds of any Loan or other Obligation, except to the
extent resulting from the Bank's own bad faith or willful misconduct.
(c) GOVERNING LAW; SUITS; JURY TRIAL. UNLESS OTHERWISE AGREED BY THE PARTIES IN
WRITING, ALL THE RIGHTS AND OBLIGATIONS OF THE BANK AND THE CUSTOMER WITH
RESPECT HERETO OR UNDER THE NOTE OR ANY OTHER DOCUMENT, AND WITH RESPECT TO ANY
OBLIGATION OR OTHER TRANSACTION OR RELATIONSHIP (ALL SUCH DOCUMENTS,
OBLIGATIONS, TRANSACTIONS AND RELATIONSHIPS BEING REFERRED TO HEREIN
COLLECTIVELY AS THE "RELATIONSHIP") SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW, AND SHALL BE BINDING UPON AND SHALL
INURE TO THE BENEFIT OF THE CUSTOMER, THE BANK AND THEIR RESPECTIVE HEIRS,
SUCCESSORS AND ASSIGNS. The Customer hereby submits to the nonexclusive IN
PERSONAM jurisdiction of, and agrees that any action or proceeding related in
any way to the Relationship shall, if the Bank so chooses, be brought and
enforced in, any State or Federal court located in the County of Los Angeles,
State of California, and hereby waives any objection to jurisdiction or venue in
any such proceeding commenced in said courts. The Customer hereby waives
personal service of any summons, complaint or other process and agrees that any
process required to be served on the Customer for purposes of any such
proceeding may be served on the Customer, with the same effect as personal
service within the State of California, by certified mail or by courier service
providing evidence of delivery addressed to the Customer at the Customer's
address for notices as provided in paragraph VII(d) and shall be deemed to have
been served when received or delivered at such address. THE CUSTOMER AND THE
BANK EACH HEREBY WAIVES TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH
RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THE RELATIONSHIP, OR ANY OTHER
CLAIM OR DISPUTE WITH RESPECT HERETO OR THERETO HOWSOEVER ARISING, TO WHICH THE
CUSTOMER AND THE BANK ARE PARTIES. If any provision hereof is invalid or
unenforceable under applicable law, the other provisions hereof shall remain in
full force and effect. All rights and remedies granted to the Bank hereunder,
under any other document and under applicable law shall be cumulative and may be
exercised by the Bank from time to time.
(d) WAIVER; MODIFICATION; NOTICES; DEMANDS. No delay on the part of the Bank in
exercising any of its options, powers or rights, and no partial or single
exercise thereof, shall constitute a waiver thereof. No waiver of any rights
hereunder, or under any other document or applicable law and no amendment or
modification hereof or thereof, shall be effective unless the same shall be in
writing, duly signed on behalf of the party against whom such waiver,
modification or amendment is asserted, and each such waiver, if any, shall
apply only with respect to the specific instance involved, and unless otherwise
expressly agreed to in writing, shall in no way impair the rights or obligations
of any party in any other respect at any other time. Any notice or demand or
request shall be in writing and shall be deemed to have been received and shall
be effective on the day on which delivered if (a) personally delivered, (b)
transmitted by telex, telecopier or telegram, or (c) mailed by certified mail or
sent by courier service providing evidence of delivery (in which case such
notice shall be deemed to be delivered on the date shown on any receipt or other
evidence of delivery or refusal), and notices transmitted as provided in clauses
(b) or (c) (i) in the case of the Bank, shall be addressed to the Bank at 000
Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, or at any other address
designated by the Bank for such purpose in a notice given to the notifying party
in the manner herein provided and (ii) in the case of the Customer, shall be
addressed to the Customer at the Customer's address set forth below (or if none
is set forth, at the Customer's address in the records of the Bank), or at any
other address designated by the Customer for such purpose in a notice given to
the Bank in the manner hereinabove provided. The Customer agrees that the Bank
may act in connection with any Loan, Letter of Credit or other Obligation upon
instructions (whether written or oral, and whether delivered by telephone,
electronically or by other means) which the Bank in good faith believes to be
from the Customer or a person authorized by the Customer.
(e) ADDITIONAL OBLIGORS. If this Agreement, the Note or any other document
pertaining to any Obligation is signed by more than one person, all signatories
shall be jointly and severally liable, and the word "Customer" herein shall be
deemed to refer to all such signatories, jointly, and to each individually, as
the context may require. If one or more other persons or entities (each a
"Guarantor") shall have guaranteed any Obligation, shall have provided
collateral security therefore or shall otherwise have incurred any fixed or
contingent, direct or indirect liability in respect thereof (or shall be
required to do any of the foregoing in accordance with Schedule I hereto or
otherwise), then for purposes of paragraphs III(d) and VII(a) hereof (i) the
word "Customer" shall be deemed to refer
to the Customer named herein and each Guarantor, jointly, and to each
individually, as the context may require, and (ii) as applied to each Guarantor,
references to this Agreement and the Note shall be deemed to refer to such
guarantee, security agreement or other document or instrument as such Guarantor
shall have entered into with or for the benefit of the Bank.
(f) Successors and Assigns. This Agreement shall inure to the benefit of, and
shall be enforceable by, the parties hereto and their respective successors and
assigns; provided that the Customer shall not assign any of its obligations
hereunder without the prior, written consent of the Bank. The Bank may assign
any of its rights hereunder or under the Note to any other office or affiliate
of Union Bank of Switzerland or to any Federal Reserve Bank.
(g) Cooperation; Additional Documentation. The Customer will execute all such
other documents, including without limitation any government from under margin
regulations, as the Bank may deem necessary or appropriate in connection with
any Obligation, and will cooperate with and assist the Bank in protecting and
realizing upon the Bank's rights and interests. The Customer will not utilize
any credit facility provided by the Bank unless the Customer shall have
supplied to the Bank appropriately completed account documents and such other
documentation as the Bank may request from time to time.
(h) Power of Attorney. The Customer hereby irrevocably appoints the Bank, and
any officer of the Bank designated by the Bank from time to time, with full
power of substitution, the Customer's attorney-in-fact with full power and
authority in the Customer's name and on the Customer's behalf, in such
attorney-in-fact's sole discretion, to exercise all rights and powers of the
Customer with respect to the Collateral and any Account and take any action to
preserve or realize upon the Bank's security interest, and otherwise to perform
any act which the Customer is obligated to perform hereunder.
(i) Other Relationships. This Agreement is intended to supersede any
inconsistent provision of any custody agreement, investment management
agreement, and other agreements between the Customer and the Bank which do not
directly relate to a credit transaction as herein contemplated.
--------------------------------------------------------------------------------
THE CUSTOMER HEREBY CONFIRMS THAT HE, SHE OR IT HAS READ THE FOREGOING
PROVISIONS (INCLUDING THE WAIVER OF JURY TRIAL CONTAINED IN PARAGRAPH VII(c))
AND THE CUSTOMER AND THE BANK HEREBY AGREE TO BE BOUND BY SUCH PROVISIONS.
Name of Customer: The Leap Group, Inc.
-----------------------------
Signature: /s/ Xxxxx Xxxxxx
-----------------------------
[Officer Name: Xxxxx Xxxxxx
-----------------------------
Title: CFO
-----------------------------]
Name of Customer: The Leap Group, Inc.
-----------------------------
Signature: /s/ R. Xxxxxx Xxxxxxxxxx
-----------------------------
[Officer Name: R. Xxxxxx Xxxxxxxxxx
-----------------------------
Title: CEO/Chairman
-----------------------------]
Union Bank of Switzerland
Los Angeles Branch
By: /s/ Xxxxx Xxxxxx
-----------------------------
Xxxxx Xxxxxx
Title: Managing Director & Branch
-----------------------------
Manager
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Xxxxxx Xxxxxxxxx
Title: Vice President-Investment
-----------------------------
Services
Date: 10/7/96
-----------------------------
[LOGO OF UNION BANK OF SWITZERLAND]
Exhibit A
PROMISSORY NOTE
---------------
Date: October 7, 1996
--
The undersigned (the "Customer"), for value received, hereby promises to pay to
the order of UNION BANK OF SWITZERLAND, Los Angeles Branch (the "Bank"), at its
office at 000 Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, in lawful money of
the United States, the aggregate unpaid principal amount of all loans ("Loans")
made by the Bank to the Customer as contemplated by the General Terms and
Conditions of Credit Arrangements dated October 7, 1996, as amended from time to
time (the "Agreement"), between the Customer and the Bank. Such principal
amount shall be payable on demand or, subject to acceleration by the Bank in
certain circumstances, on one or more fixed maturity dates, all as specified in
or pursuant to the Agreement. Each Loan evidenced by this Note shall bear
interest at the rate or rates, and such interest shall be payable on the date or
dates, specified in or pursuant to the Agreement.
The principal amount of each Loan and all repayments thereof may be endorsed by
the Bank upon the schedule attached hereto; provided that the failure of the
Bank to make any such endorsements (or any error in doing so) shall not affect
the obligations of the Borrower hereunder or under the Agreement, which are
absolute and unconditional.
Name of Customer
The Leap Group, Inc.
Signature: /s/ R. Xxxxxx Xxxxxxxxxx
------------------------
Title: CEO/Chairman
Signature: /s/ Xxxxx Xxxxxx
------------------------
Title: CFO
[LOGO OF UNION BANK OF SWITZERLAND]
Schedule I
----------
Additional Terms and Conditions
of Credit Arrangements
----------------------
Capitalized terms not otherwise defined in this Schedule shall have the meanings
set forth in the General Terms and Conditions of Credit Arrangements dated
October 7, 1996, between Union Bank of Switzerland, Los Angeles Branch, and The
Leap Group, Inc. (the "General Terms"). All terms set forth below are subject to
such limitations and changes as may be set forth in or contemplated by the
General Terms.
Amount of Uncommitted Line of
Credit, if any, Available for Loans: US$24,000,000.00
Interest Rate and Maturities - UBS LIBOR + 0.500% per annum, for terms of from one
Fixed Rate Loans: to twelve months (as selected by the Customer). Each
borrowing must be in a principal amount of at least
$100,000.00. Interest to be paid quarterly in arrears and
at maturity.
Interest Rates - UBS PRIME Rate per annum. Each borrowing must be
Floating Rate Loans: in a principal amount of at least $25,000.00. Interest to
be paid in arrears on the last day of each calendar
quarter and at maturity.
Lending Value of Collateral: Collateral cash balances and UBS money
market instruments in US$ 95%
UBS's Certificates of Deposit 95%
U.S. Treasury Securities 90%
U.S. Corporate and Municipal Bonds
(Minimum AA rated) 80%
U.S. Corporate and Municipal Bonds
(Minimum A rated) 70%
U.S. Government Agency Securities
(GNMA, FNMA, etc.) 70%
U.S. Commercial Paper (Minimum A1, P1 rated) 70%
U.S. Equities (minimum market price of
$10.00 per share) listed on the:
New York Stock Exchange 70%
American Stock Exchange 60%
NASDAQ National Market 50%
U.S. Equities and Convertibles for
Regulation U Loans 50%
Foreign Bonds, Eurobonds (Minimum AA rated) 80%
Foreign Bonds, Eurobonds (Minimum A rated) 70%
Foreign Equities acceptable to UBS
(all major foreign exchanges) 50%
All the above values are subject to change without notice.
Page 1
Schedule I
----------
Additional Terms and Conditions
of Credit Arrangements
----------------------
Additional Documentation (1) Copy of the Customer's Articles of Incorporation and
Required: State of Delaware Corporate Filing.
(2) Officers' Certificate of Corporate Resolutions
Covering General Banking Powers and Custody
Services executed by Customer.
Other Modifications to General
Terms: Article VII (h) is hereby deleted.
The Leap Group, Inc.
Signature: /s/ R. XXXXXX XXXXXXXXXX
----------------------------------
Name: R. Xxxxxx Xxxxxxxxxx
Title: CEO/Chairman
Signature: /s/ XXXXX XXXXXX
----------------------------------
Name: Xxxxx Xxxxxx
Title: CFO
Page 2
[LOGO OF UNION BANK OF SWITZERLAND]
CUSTODY CASH ACCOUNT AGREEMENT
TO: Union Bank of Switzerland,
Los Angeles Branch
You are hereby requested to open a Custody Cash Account to hold securities and
assets of the undersigned (hereafter "Owner"), in connection with which you will
furnish your regular custodian service, as hereafter provided.
1. Custody of Securities - You hereby agree to hold and keep as custodian
hereunder all securities and assets from time to time delivered to or collected
by you for the account of Owner. Such securities or other assets may be held by
you in the custody of one or more banks or other depositories within or without
the United States.
It is expressly agreed that you do not assume any obligation to evaluate,
advise or recommend to Owner the purchase, retention, sale, exchange or deposit
in reorganization or otherwise of any securities and other assets at any time
held in the Custody Cash Account unless provided for by a separate written
agreement between the parties. You will endeavor to forward to Owner any
proxies, financial statements and redemption, conversion, record date or other
notices or literature received by you in connection with or relating to
securities so held by you, unless otherwise agreed, but you shall be under no
obligation to forward such proxies, financial statements, redemption,
conversion, record date or other notices or literature and shall have no
liability for failure to do so.
2. Collection of Income - You shall collect and receive the interest and
other income from securities and other assets held by you under the terms of
this agreement, including dividends on stock standing in your name, the name of
your nominee or the nominee name of any of your depositories, and shall credit
to this account any amounts so collected as received. Charges, if any, will be
charged to the account of Owner under advice. You are authorized to sign on
behalf and in the name of Owner and Owner's nominees or other representatives
any declarations, certificates of ownership or other documents which are now or
may hereafter be required with respect to all coupons, registered interest,
dividends or other income on securities or other assets now or hereafter held or
received for the account of Owner, and Owner agrees to reimburse, indemnify and
hold you harmless of and from any liability, loss, claim, damage or expense
which may arise or to which you may be subjected by reason of the execution of
any such documents.
3. Transactions in Principal - Upon the request or instructions of Owner
you undertake to place for Owner's risk and account orders for (a) the purchase
of securities or other assets, provided that funds of Owner are on hand or
available for such purchase, and (b) the sale of securities or other assets held
for the account of Owner in deliverable form. You shall advise Owner of the
details of all such purchases and sales upon completion. You may refer each
such order to any bank, broker or sub-agent of your choice, unless otherwise
specified. You shall have no liability or responsibility whatsoever for any
error, neglect or default of any such bank, broker or sub-agent or for
mutilations, interruptions, omissions, errors or delays occurring in the mails,
or on the part of any telegraph, cable or wireless company, or any employee of
such company, or by reason of any cause beyond your control.
You will tender against payment or receipt, as the case may be, those
securities which may be called, redeemed or exchanged. You will not be
responsible for taking any alternative actions such as conversion of securities
in connection with any such calls, redemptions or exchanges. Any such actions
shall be the responsibility of Owner. You are hereby advised that all
directions with respect to this account will be given in writing by Owner unless
there is filed with you a power of attorney, in form satisfactory to you, giving
to some other person, or persons, the authority to give directions. It is
understood, however, that you, in your discretion, may accept and act upon
orders from Owner, or such attorney, or any person acting in Owner's behalf,
whether given orally, by telephone or otherwise, which you believe to be
genuine. You will not be held liable for executing, failing to execute, or for
any mistakes in the execution of any such order, excepting in the case of your
willful default.
4. Foreign Currency - Unless otherwise directed, all funds received into
this account other than in U.S. Dollars shall be converted at the risk and for
the account of the Owner into U.S. Dollars, to the extent practicable, and all
funds paid out of or debited to this account other than in U.S. Dollars shall be
converted into foreign currencies as necessary at the risk and for the account
of the Owner, to the extent practicable. In effecting such conversions, you may
use such methods or agencies as you may see fit, including your own facilities
at customary rates.
5. Stock Dividends, Rights to Subscribe, Etc. - You shall be under no
obligation to take any action with regard to Stock Dividends, Warrants, Rights
to Subscribe, Plans of Reorganization or Recapitalization, or Plans for the
Exchanges of Securities, or the Conversion of Convertible Securities whether or
not called for Redemption.
6. Withdrawal of Securities, Etc. - Any and all securities and other
assets may be withdrawn by Owner from this account at any time upon a written
order or receipt signed by Owner.
7. Amendment or Termination of Agreement - This Agreement may be altered
at any time by letter or other written instrument in such manner as may be
mutually agreed upon by you and Owner, and may be terminated at any time either
by Owner or by you, whereupon all securities and other assets of every kind and
nature held in custody for the account of Owner shall be paid over, delivered or
surrendered upon a written order or receipt signed by Owner, in form acceptable
to you.
8. Joint Accounts - If this account is a joint account, any one of the
joint owners whose signatures are on file with you has independent an individual
power over the account unless this Agreement specifically provides otherwise.
You shall honor instructions of either joint owner without any duty of inquiry,
including instructions pursuant to any Investment Advisory Agreement or
Investment Management Agreement between you and the joint owners, instructions
to close the account or instructions directing a transfer to an account in a
joint owner's individual name. You may require the signature of all joint owners
before carrying out any instructions if one joint owner has asked you in writing
not to honor instructions of the other joint owner(s).
Each of the joint owners agrees that they intend to create a joint tenancy
with right of survivorship in the account. This means that in the event of the
death of any joint owner, the ownership of any balance in the account passes
absolutely to the survivor(s). It is understood that upon the death of any joint
owner the balance of the account may not be withdrawn until after any necessary
tax waivers or other required legal papers are obtained and delivered to you.
Each of the joint owners agrees that he or she is jointly and severally liable
for any obligation to you under this Agreement and understands that you may use
all of the assets in the account to pay the debt of another joint owner.
9. In General - You shall give to the securities and other assets in your
custody the same degree of care and protection with respect to their physical
custody which you give to your own Assets, and Owner agrees that you shall not
be liable for loss or damage caused directly or indirectly by invasion,
insurrection, riot, civil war or commotion, or military or usurped power, or by
order of any civil authority, or other causes beyond your control.
You shall furnish Owner with a complete statement of the account every
month, unless otherwise requested by Owner.
Owner shall pay to you compensation for your services hereunder in
accordance with your fee schedule as in effect from time to time.
Owner agrees that if securities and other assets in the account are held in
the custody of one or more banks or other depositories, within or without the
United States, you shall not be responsible for any loss in respect thereof
unless you were grossly negligent in the selection of such bank or other
depository.
This Agreement shall be governed by and construed in accordance with the
laws of the State of California. The undersigned irrevocably agrees that
jurisdiction and venue for any legal action or proceeding arising out of or
relating to this Agreement shall be proper in the courts of the State of
California located in the County of Los Angeles or of the United States of
America for the Central District of California, and in no other court, and the
undersigned hereby expressly submits to the exclusive jurisdiction of such
courts in any such action or proceeding. The undersigned irrevocably waives, to
the full extent permitted by law, any objection it may now or hereafter have
based upon improper venue or forum non conveniens with respect to any such legal
action or proceeding.
Very truly yours,
Place: Los Angeles /s/ XXXXX XXXXXX
------------------------------- -----------------------------------
Customer signature
Dated: 10/7/96 /s/ R. XXXXXX XXXXXXXXXX
------------------------------- -----------------------------------
Customer signature
FULL ADDRESS: TITLE OF ACCOUNT:
22 X. Xxxxxxx The Leap Group, Inc.
Xxxxxxx, Xxxxxxxx 00000
Agrees and accepted:
UNION BANK OF SWITZERLAND
Los Angeles Branch
/s/ XXXXX XXXXXX
--------------------------------------
Xxxxx Xxxxxx,
Managing Director & Branch Manager
/s/ XXXXXX XXXXXXXXX
--------------------------------------
Xxxxxx Xxxxxxxxx,
Vice President-Investment Services
Dated: Los Angeles 10/7/96
-------------------------------
