Exhibit 10 (b)(i)
Termination Agreement and Release
This Termination Agreement and Release (this "Agreement")
is dated as of August 31, 2002, by and between, on the one hand,
FOOTHILL CAPITAL CORPORATION, a California corporation
("Foothill"), and, on the other hand, INTERGRAPH CORPORATION, a
Delaware corporation ("Borrower"), M&S COMPUTING INVESTMENTS,
INC., a Delaware corporation ("M&S") and INTERGRAPH PUBLIC
SAFETY, INC., a Delaware corporation ("IPS"; together with M&S,
each a "Guarantor" and individually and collectively, jointly
and severally, the "Guarantors"; Borrower and the Guarantors,
each an "Obligor" and individually and collectively, jointly and
severally, the "Obligors").
This Agreement is entered into with reference to the
following:
A.On or about November 30, 1999, Foothill and Borrower
entered into that certain Amended and Restated Loan and Security
Agreement (as amended, restated, supplemented, or otherwise
modified from time to time, the "Loan Agreement") and other
related Loan Documents (as that term is defined in the Loan
Agreement, and all other capitalized terms not defined in this
Agreement shall have the meanings ascribed to such terms in the
Loan Agreement), pursuant to which Foothill extended certain
financial accommodations to Borrower, and Borrower granted in
favor of Foothill a security interest in and liens on
substantially all of Borrower's assets.
B.Each Guarantor executed in favor of and delivered to
Foothill certain guaranties, guarantor security agreements, and
other pledges of collateral in connection with the financial
accommodations to Borrower under the Loan Documents.
C.The Obligors, in the exercise of their independent business
judgment,wish to repay in full in cash all Obligations under the
Loan Agreement and to exercise their option to terminate the
Loan Agreement prior to the stated maturity date of January 7,
2004, pursuant to the provisions of Section 3.6 of the Loan
Agreement subject to and in accordance with the terms and
conditions set forth in this Agreement, including the releases
contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the
parties hereto acknowledges and agrees as follows.
1. Payoff Amount and Payoff Reserve. On September 5, 2002
(the "Payoff Date"), the Obligors shall pay to Foothill in cash
the aggregate amount of $110,000.00 (the "Payoff Amount"),
consisting of:
(a) $100,000.00 in respect of (and in full satisfaction of) the
amount payable for the Early Termination Premium; and
(b) $10,000.00 in respect of reasonably anticipated Foothill
Expenses to be incurred by Foothill from and after the Payoff
Date (the "Payoff Reserve").
Within sixty (60) days of the date of this Agreement, Foothill
shall transfer to Borrower the unused portion, if any, of the
Payoff Reserve together with an itemized list of the Foothill
Expenses deducted from said Payoff Reserve. The Obligors and
Foothill agree that the Payoff Amount shall be satisfied by a
wire transfer of immediately available funds for receipt on the
Payoff Date from Obligors to Foothill as follows:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
ABA 000000000
Credit: Foothill Capital Corporation
Account: 323-266193
Reference: Intergraph Corporation Payoff
2.Termination of Obligations Other Than Indemnity. Foothill,
and each Obligor acknowledge and agree that upon Foothill's
receipt of (a) a fully executed counterpart of this Agreement
signed by Foothill and each Obligor, (b) the Payoff Amount, and
(c) a release by Xxxxx Fargo Bank, National Association, a
national banking association ("Xxxxx Fargo"), in favor of
Foothill, with respect to any and all obligations of Foothill to
Xxxxx Fargo on account of the outstanding Letters of Credit,
which is in form and substance reasonably satisfactory to
Foothill, duly executed by each party thereto (the "Xxxxx Fargo
Release"), all of the Obligations under the Loan Documents shall
be terminated and satisfied in full and Foothill's Liens in and
to the Collateral shall be released and terminated; provided,
however, that (A) all Obligations to indemnify each Indemnified
Person under Section 11.3 of the Loan Agreement and to reimburse
Foothill for Foothill Expenses shall remain in full force and
effect, and (B) to the extent that any payments or proceeds (or
any portion thereof) received by Foothill shall be subsequently
invalidated, declared to be fraudulent or a fraudulent
conveyance or preferential, set aside or required to be repaid
to a trustee, receiver, debtor-in-possession or any other party
under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent that the payment or proceeds
is rescinded or must otherwise be restored by Foothill, whether
as a result of any proceedings in bankruptcy or reorganization
or otherwise, the Obligations or part thereof which were
intended to be satisfied by any such payment or proceeds shall
be revived and continue to be in full force and effect, as if
the payment or proceeds had never been received by Foothill, and
this Agreement shall in no way impair the claims of Foothill
with respect to the revived Obligations. For the avoidance of
doubt, it is expressly acknowledged and agreed that the Xxxxx
Fargo Release shall be in satisfaction of, and in lieu of, the
obligation of Obligors to pay to Foothill 102% of the undrawn
amount of the Letters of Credit plus the Foreign Currency
Reserve referenced in Section 3.6 of the Loan Agreement.
3. Termination of Loan Documents. Each Obligor hereby confirms
and agrees that (i) the commitment of Foothill to extend credit
under the Loan Agreement and the other Loan Documents is terminated
as of the Payoff Date, and, as of the Payoff Date, Foothill has no
further obligation to extend credit to any Obligor, and (ii) upon
Foothill's receipt of (a) a fully executed counterpart of this
Agreement signed by Foothill and each Obligor, (b) the Payoff
Amount,and (c) the Xxxxx Fargo Release, duly executed by each party
thereto, each of the Loan Agreement and the other Loan Documents is
terminated and released except as specifically set forth in this
Agreement.
4. Release of Collateral. Upon Foothill's receipt of (A) a
fully executed counterpart of this Agreement signed by Foothill
and each Obligor, (B) the Payoff Amount, and (C) the Xxxxx Fargo
Release, duly executed by each party thereto, Foothill will, as
promptly as practicable:
(a) Authorize any Uniform Commercial Code ("UCC") termination
statements that (i) the Obligors reasonably may request to
release,as of record,the financing statements previously filed
by Foothill, with respect to the Obligations, and (ii) at
Foothill's election, the Obligors prepare, it being expressly
understood and agreed that the Obligors may file any such UCC
termination statements without the signature of a Foothill
representative;
(b) Execute and deliver any and all other lien releases and
other similar discharge or release documents and if applicable,
in recordable form) that (i)the Obligors reasonably may request
to release, as of record and without any recourse,
representation, or warranty, the security interests and all
other notices of security interests and liens previously filed
by Foothill with respect to the Obligations, and (ii) at
Foothill's election, the Obligors prepare; and
(c) Return (without recourse, representation or warranty) to
the Obligors (or any one of them that Foothill selects),within
10 Business Days after Foothill's receipt of (A) a fully
executed counterpart of this Agreement signed by Foothill and
each Obligor, (B) the Payoff Amount, and (C) the Xxxxx Fargo
Release, duly executed by each party thereto, any and all
pledged stock certificates and related stock powers, pledged
notes and related endorsements, and any other pledged
instruments and related endorsements previously delivered to
Foothill in connection with the Loan Documents.
5. Representations or Warranties. Foothill does not make any
representation or warranty with respect to the state of title to
any collateral securing the Obligations or any other matter
respecting the Loan Documents. Foothill and each Obligor
represent and warrant to each other party to this Agreement that
it has the power and authority to enter into this Agreement.
6. Additional Documents. Foothill shall execute and deliver to
or for the Obligors, at the Obligors' sole expense, such additional
documents (that, at Foothill's election, the Obligors prepare) and
shall provide additional information as the Obligors may reasonably
require to carry out the terms of this Agreement.
7. Acknowledgments of Borrower and Guarantors. Each Obligor
(a) acknowledges and agrees that the release in paragraph 11 hereof
shall not release any Obligor of the Obligations arising from the
indemnity provisions under Section 11.3 of the Loan Agreement and
from their obligation to reimburse Foothill for Foothill Expenses
under the Loan Agreement, and (b) confirms its agreement to the
terms and provisions of this Agreement by returning to Foothill a
signed counterpart of this Agreement.
8. Conditions. The obligations of Foothill under this
Agreement are subject to the fulfillment, to the satisfaction of
Foothill, of the following conditions precedent: (a) Foothill
shall have received a counterpart of this Agreement duly executed
by each of the parties hereto; (b) Foothill shall have received
the Payoff Amount on the Payoff Date, and (c) Foothill shall have
received the Xxxxx Fargo Release,duly executed by each party thereto.
9. Released Matters. The claims released pursuant to this
Agreement(the "Released Claims") include all claims between Foothill,
on the one hand, and any Obligor, on the other hand, including but
not limited to principal, interest, charges, fees, together with any
and all other claims, demands, obligations, liabilities, indebtedness,
responsibilities, disputes, breaches of contract, breaches of duty or
any relationship, acts, omissions, misfeasance, malfeasance, cause or
causes of action (whether at law or in equity), debts, sums of money,
accounts, compensations, contracts, controversies, promises, damages,
costs, rights of offset, losses and expenses, of every type, kind,
nature, description or character, known and unknown, whensoever
arising and occurring at any time up to and through the date hereof,
whether known or unknown, suspected or unsuspected, liquidated or
unliquidated, matured or unmatured, fixed or contingent, which in any
way arise out of, are connected with or relate to the Loan Documents.
10. Release by the Obligors. Each Obligor, and their respective
predecessors, successors and assigns,hereby fully,finally,irrevocably,
forever and unconditionally release, discharge and acquit Foothill and
Foothill's officers, employees and agents, from all Released Claims,
except with respect to the rights and obligations under this Agreement.
11. Release by Foothill of the Obligors. Foothill hereby fully,
finally,irrevocably, forever and unconditionally release, discharge and
acquit each Obligor from all Released Claims, except with respect to
the rights and obligations under this Agreement, under the indemnity
provisions in Section 11.3 of the Loan Agreement, and under the Loan
Agreement to reimburse Foothill for Foothill Expenses.
12. Transitional Wires. It is acknowledged that, generally,
pursuant to the terms of the Loan Agreement, each Business Day wires of
Borrower's collected funds have been sent from Bank One (Account No.
0000000) and Xxxxx Fargo Bank Minnesota (Account Nos. 0000000000,
0000000000, 0000000000, and 0000000000) (collectively, the "Enumerated
Accounts") to the Foothill Account and that Borrower typically requests
that Foothill, in turn, wire to Borrower's Designated Account the
corresponding amount which Foothill has received from the Enumerated
Accounts. The parties hereto acknowledge and agree that following the
Payoff Date and before the appropriate modifications of the Enumerated
Accounts can be processed by Bank One and Xxxxx Fargo Bank Minnesota,
Foothill will continue to accommodate Borrower by implementing the
appropriate wire transfer of funds into Borrower's Designated Account,
provided, that Borrower shall reimburse Foothill promptly upon request
for any fees, expenses or other charges reasonably incurred by Foothill
in connection therewith, and shall work diligently,after the Payoff Date,
to effect the modifications to the Enumerated Accounts which are
required to terminate the transfer of funds from such Enumerated Accounts
to the Foothill Account, which transfers shall terminate in any event no
later than thirty (30) days after the Payoff Date.
13. Waiver of Statutory Benefits. The parties intend that the
foregoing releases shall be effective as a full and final accord and
satisfaction of Released Claims, and each of the parties hereby agrees,
represents and warrants that the matters released herein are not limited
to matters which are known or disclosed. In this connection, each of the
parties hereby agrees, represents and warrants that it realizes and
acknowledges that (a) factual matters now existing and unknown to it may
have given or may hereafter give rise to Released Claims which are
presently unknown, unsuspected, unliquidated, unmatured and/or contingent,
(b) such Released Claims may be unknown, unsuspected, unliquidated,
unmatured and/or contingent due to ignorance,oversight, error, negligence
or otherwise, and (c) if such Released Claims had been known, suspected,
liquidated, matured and/or unconditional, such party's decision to enter
into this release may have been materially affected. Each party further
agrees, represents and warrants that this release has been negotiated and
agreed upon in view of these realizations.Nevertheless,each party granting
a release hereby intends to release, discharge, and acquit the parties
receiving a release of and from any such unknown, unsuspected, unliquidated,
unmatured and/or contingent Released Claims which are in any way set forth
in or related to the matters identified hereinabove. EACH PARTY HEREBY
EXPLICITLY WAIVES ALL RIGHTS UNDER AND ANY BENEFITS OF ANY COMMON LAW OR
STATUTORY RULE OR PRINCIPLE WITH RESPECT TO THE RELEASE OF SUCH CLAIMS,
INCLUDING, WITHOUT LIMITATION, SECTION 1542 OF THE CALIFORNIA CIVIL CODE,
WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH A CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM, MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR.
EACH PARTY AGREES THAT NO SUCH COMMON LAW OR STATUTORY RULE OR PRINCIPLE,
INCLUDING SECTION 1542 OF THE CALIFORNIA CIVIL CODE, SHALL AFFECT THE
VALIDITY OR SCOPE OR ANY OTHER ASPECT OF THIS RELEASE.
14. No Assignment. Each of the parties hereto agrees, represents,
and warrants that such party has not voluntarily, by operation of law or
otherwise, assigned, conveyed, transferred or encumbered, either directly
or indirectly, in whole or in part, any right to or interest in any of
the Released Claims.
15. Choice of Law; Severability. This Agreement shall be governed by
and construed in accordance with the laws of the State of California as
applied to agreements among parties resident therein. Whenever possible,
each provision of this Agreement shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this
Agreement shall 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 the
remaining provisions of this Agreement.
16. Advice of Counsel. Each party has had advice of independent
counsel of its own choosing in negotiations for and the preparation of this
Agreement, has read this Agreement in full and final form, and has had this
Agreement fully explained to it to its satisfaction.
17. No Third Party Beneficiaries. This Agreement is executed for the
parties hereto, and no other person, corporation, partnership, individual
or other entity not a party to this Agreement shall have any rights
herein as a third party beneficiary or otherwise, except to the extent
expressly and specifically provided herein.
18. Counterparts. This Agreement may be executed in duplicates and
counterparts, which,taken together, will be deemed and serve as an original.
In addition, the parties agree that their authorized representatives may
bind them to the terms of this Agreement with signatures exchanged by fax,
and each duplicate faxed signature copy shall be deemed to be an original of
this Agreement.
19. Entire Agreement. This is the entire Agreement between the
parties with respect to this matter. There are no other agreements or
understandings, written or oral, express or implied.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized representatives as of
the date first written above.
FOOTHILL CAPITAL CORPORATION, a
California corporation
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: XXXXXX XXXXXXX
--------------------------
Its: VP
--------------------------
INTERGRAPH CORPORATION, a
Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: XXXXX X. XXXXXX
--------------------------
Its: E.V.P. & CFO
--------------------------
M&S COMPUTING INVESTMENTS, INC., a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: XXXXXX X. XXXXXX
--------------------------
Its: SECRETARY
--------------------------
INTERGRAPH PUBLIC SAFETY, INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: XXXXX X. XXXXXX
--------------------------
Its: V.P. & CFO
--------------------------
