EXHIBIT 10.33(c)
XXXXX FARGO BANK CONTINUING COMMERCIAL LETTER OF CREDIT AGREEMENT
To: XXXXX FARGO BANK, NATIONAL ASSOCIATION
In consideration of Xxxxx Fargo Bank, National Association, at the
request and for the account of the undersigned Applicant, and, unless
otherwise specifically provided in any Loan Document, at the option of Xxxxx
Fargo, issuing commercial letters of credit pursuant to applications for
commercial letters of credit and the terms and conditions of this Agreement,
Applicant hereby agrees that the terms and conditions hereinafter set forth
shall apply to each such Application, to the Credit issued by Xxxxx Fargo
pursuant to such Application, to the issuance of each such Credit, and to
transactions under each such Application, each such Credit and this Agreement.
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth after each term: "Acceptance" shall mean
any time draft drawn or made, or purported to be drawn or made, under any
Credit, and accepted for payment by Xxxxx Fargo or by any other bank specified
by Xxxxx Fargo to accept such time draft for payment. "Acceptance Fee" shall
mean the fee, computed at the acceptance fee rate specified by Xxxxx Fargo,
charged by Xxxxx Fargo when each Acceptance is created on the amount of each
Acceptance for the time period each such Acceptance is to be outstanding.
"Agreement" shall mean this Continuing Commercial Letter of Credit Agreement
as it may be revised or amended from time to time pursuant to its terms.
"Applicant" shall mean the person or persons or the entity or entities
signing this Agreement. "Application" shall mean Xxxxx Fargo's printed form
titled "Application for Commercial Letter of Credit" or any other form
acceptable to Xxxxx Fargo on which Applicant applies for the issuance by Xxxxx
Fargo of a Credit and/or an application for amendment of a Credit or any
combination of such applications, as the context may require. "Beneficiary"
shall mean any person or entity named on an Application as the beneficiary or
any person or entity who is the transferee of any such beneficiary.
"Collateral" shall mean the Property, together with the proceeds of such
Property, securing any or all the obligations and liabilities of Applicant to
Xxxxx Fargo at any time existing under or in connection with any Letter of
Credit Document and/or any Loan Document. "Credit" shall mean an instrument
or document titled "Irrevocable Commercial Letter of Credit" or "Irrevocable
Documentary Credit", or any instrument or document whatever it is titled or
whether or not it is titled functioning as a commercial letter of credit,
issued under or pursuant to an Application, and all renewals, extensions and
amendments of such instrument or document. "Deferred Payment Fee" shall mean
the fee, computed at the deferred payment fee rate specified by Xxxxx Fargo,
charged by Xxxxx Fargo on the amount of each Demand presented
under a Credit providing for deferred payment of Demands which are not time
drafts, which fee will be payable when the Demand is determined by Xxxxx
Fargo to comply with such Credit and cover the time period from the date of
such determination to the date such Demand is payable. "Delivery
Authorization" shall mean any agreement, undertaking, guarantee, indemnity,
release, bond, letter, document or authorization given or executed by Xxxxx
Fargo, at its option in each case, at the request of Applicant or Applicant's
agent to or in favor of a carrier or other person or entity in order to
permit delivery to Applicant or Applicant's agent of Property referred to in
or shipped under any Credit. "Demand" shall mean any sight or time draft
(before it is accepted), electronic or telegraphic transmission or other
written demand drawn or made, or purported to be drawn or made, under or in
connection with any Credit. "Document" shall mean any instrument, statement,
certificate or other document, including, but not limited to, shipping
documents, warehouse receipts and policies or certificates of insurance,
referred to in or related to any Credit or required by any Credit to be
presented with any Demand. "Dollars" shall mean the lawful currency at any
time for the payment of public or private debts in the United States of
America. "Event of Default" shall mean any of the events set forth in
Section 14 of this Agreement. "Expiration Date" shall mean the date any
Credit expires. "Guarantor" shall mean any person or entity guaranteeing the
payment and/or performance of any or all the obligations of Applicant to
Xxxxx Fargo under or in connection with any Letter of Credit Document and/or
any Loan Document. "Holding Company" shall mean any company or other entity
controlling Xxxxx Fargo. "Issuance Fee" shall mean the fee, computed at the
issuance fee rate specified by Xxxxx Fargo, charged by Xxxxx Fargo on the
amount of each Credit and on the amount of each increase in a Credit at the
time each Credit is issued and the time the amount of each Credit is
increased. "Letter of Credit Document" shall mean this Agreement, each
Application, each Credit, each Demand and each Acceptance. "Loan Document"
shall mean each and any promissory note, credit agreement, loan agreement,
security agreement, pledge agreement, guarantee or other agreement or writing
signed by Xxxxx Fargo and/or Applicant and/or any Guarantor relating to,
evidencing or guaranteeing any loan or other extension of credit made by
Xxxxx Fargo to Applicant under or in connection with any Letter of Credit
Document. The foregoing includes, without limitation, the Loan Agreement and
Security Agreement of even date. "Negotiation Fee" shall mean the fee,
computed at the negotiation fee rate specified by Xxxxx Fargo, charged by
Xxxxx Fargo on the amount of each Demand paid or accepted by Xxxxx Fargo when
each Demand is paid or accepted. "Payment Office" shall mean such office of
Xxxxx Fargo specified by Xxxxx Fargo as the office where reimbursements and
other payments under or in connection with any Letter of Credit Document
are to be made by Applicant. "Prime Rate" shall mean the rate of interest
most recently announced at Xxxxx Fargo's principal office in San Francisco,
California as its Prime Rate, with the understanding that the Prime Rate is
one of Xxxxx Fargo's base rates and serves as the basis upon which effective
rates of interest are calculated for those loans making reference thereto,
and is evidenced by the recording thereof after its announcement in such
internal publication or publications as Xxxxx Fargo may designate. "Property"
shall mean all forms of property, whether tangible or intangible, real,
personal or mixed. "Rate of Exchange" shall mean Xxxxx Fargo's then current
selling rate of exchange in San Francisco, California for sales of the
currency of payment of any Demand or Acceptance, or of any fees or expenses
or other amounts payable under this Agreement, for cable transfer to the
country of which such currency is the legal tender. "UCP" shall mean the
Uniform Customs and Practice for Documentary Credits, an International Chamber
of Commerce publication, or any substitution therefor or replacement thereof.
"Unpaid and Undrawn Balance" shall mean at any time and from time to time the
entire amount which has not been paid by Xxxxx Fargo under all the Credits
issued for the account of Applicant, including, but not limited to, the amount
of each Demand and Acceptance on which Xxxxx Fargo has not yet effected
payment as well as the amount undrawn under all such Credits. "Xxxxx Fargo"
shall mean Xxxxx Fargo Bank, National Association, a national banking
association.
SECTION 2. HONORING DEMANDS AND DOCUMENTS. Applicant agrees that Xxxxx
Fargo may receive, accept and honor, as complying with the terms of any
Credit, any Demand and any Documents accompanying such Demand; provided,
however, that (a) such Demand and accompanying Documents appear on their face
to comply substantially with the provisions of such Credit, and (b) such
Demand and accompanying Documents are, or appear on their face to be,signed
or issued by (I) a person or entity authorized under such Credit to draw,
sign or issue such Demand and such accompanying Documents, or (ii) an
administrator, executor, trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, liquidator, receiver or other legal
representative or successor in interest by operation of law of any such
person or entity. Notwithstanding the preceding sentence, Applicant agrees
that (x) in consideration for Xxxxx Fargo giving or executing a Delivery
Authorization at its option at any time, Xxxxx Fargo may, in its sole
discretion, receive, accept and honor, as complying with the terms of the
Credit related to such Delivery Authorization, any Demand and any Documents
accompanying such Demand which are presented under such Credit and relate to
any Property covered by such Delivery Authorization even if such Demand or
any such Document does not conform to the requirements of such Credit or is
not otherwise in order or any other term or condition of such Credit has not
been complied with; and (y) in consideration for Xxxxx Fargo issuing a Credit
which, at the request of Applicant and at the option of Xxxxx Fargo, contains
provisions that (I) any Demand made under such Credit will be honored only if
and when Xxxxx Fargo receives written notice that the Property referred to
in the Documents accompanying such Demand has been inspected and passed
and/or released and/or approved by the United States Food and Drug
Administration or by any other state or federal government agency or
regulatory authority or by any other party or entity, and (ii) the Documents
accompanying such Demand are to be released by Xxxxx Fargo to Applicant or
Applicant's agent for the purpose of arranging such inspection against
Applicant or Applicant's agent signing a receipt for such Documents, Xxxxx
Fargo may in its sole discretion honor and accept such Demand and such
Documents as complying with the terms of such Credit without having received
written notice that such Property has been inspected and passed and/or released
and/or approved as aforesaid (1) if such Demand and accompanying Documents
appear on their face to comply substantially with all other terms of such
Credit, or Applicant has waived any failure of such Demand or Documents to
comply with the terms of such Credit, and (11) if Applicant or Applicant's
agent does not promptly (A) sign such a receipt which is in form and substance
acceptable to Xxxxx Fargo and (B) comply with all the terms of such receipt
and (C) arrange such inspection of such Property.
SECTION 3. REIMBURSEMENT FOR PAYMENT OF DEMANDS AND ACCEPTANCES.
Applicant agrees to reimburse Xxxxx Fargo for all amounts paid by Xxxxx Fargo
on each Demand and on each Acceptance, including, but not limited to, all
amounts paid by Xxxxx Fargo on each Demand and on each Acceptance to any
paying, accepting, negotiating or other bank. If in connection with the
issuance of any Credit, Xxxxx Fargo agrees to pay any other bank the amount
of any payment or negotiation made by such other bank under such Credit upon
receipt by Xxxxx Fargo of a cable, telex or other written telecommunication
advising Xxxxx Fargo of such payment or negotiation, or authorizes any other
bank to debit Xxxxx Fargo's account for the amount of such payment or
negotiation, Applicant agrees to reimburse Xxxxx Fargo for all such amounts
paid by Xxxxx Fargo, or debited to Xxxxx Fargo's account with such other bank,
even if any Demand or Document specified in such Credit fails to arrive in
whole or in part or if, upon the arrival of any such Demand or Document, the
terms of such Credit have not been complied with or such Demand or Document
does not conform to the requirements of such Credit or is not otherwise in
order.
SECTION 4. FEES AND EXPENSES. Applicant agrees to pay to Xxxxx Fargo
(a) all Issuance Fees, Negotiation Fees, Acceptance Fees, Deferred Payment
Fees, cable fees, amendment fees, non-usance fees and cancellation fees of,
and all out-of-pocket expenses incurred by, Xxxxx Fargo under or in connection
with any Letter of Credit Document, and (b) all fees and charges of banks
other than Xxxxx Fargo under or in connection with any Letter of Credit
Document if any Application (i) does not indicate who will pay such fees and
charges, (ii) indicates that such fees and charges are to be paid by
Applicant, or (iii) indicates that such fees and charges are to be paid
by the Beneficiary and the Beneficiary does not, for any reason whatsoever,
pay such fees or charges. There shall be no refund of any portion of any
Issuance Fee in the event any Credit is used, reduced, amended, modified or
terminated before its Expiration Date; and there shall be no refund of any
portion of any Acceptance Fee or Deferred Payment Fee if any Acceptance or
deferred payment Demand is reimbursed by Applicant before it matures.
SECTION 5. DEFAULT INTEREST. Unless otherwise specified in any Loan
Document or on an Application and agreed to by Xxxxx Fargo, all amounts to be
reimbursed by Applicant to Xxxxx Fargo pursuant to Section 3 of this Agreement
and all fees and expenses to be paid by Applicant to Xxxxx Fargo pursuant to
Section 4 of this Agreement, and all other amounts due from Applicant to Xxxxx
Fargo under or in connection with the Letter of Credit Documents, will bear
interest (to the extent permitted by law), payable on demand, from the date
Xxxxx Fargo paid the amounts to be reimbursed or the date such fees, expenses
and other amounts were due until such amounts are reimbursed in full or such
fees, expenses and other amounts are paid in full, at that interest rate per
annum, calculated for the actual days elapsed in a year of 360 days, which is
two percent (2%) above the Prime Rate in effect from time to time.
SECTION 6. TIME AND METHOD OF REIMBURSEMENT AND PAYMENT. Unless otherwise
specified in this Section 6, in any Loan Document or on an Application and
agreed to by Xxxxx Fargo, all amounts to be reimbursed by Applicant to Xxxxx
Fargo pursuant to Section 3 of this Agreement, all fees and expenses to be
paid by Applicant to Xxxxx Fargo pursuant to Section 4 of this Agreement, all
interest due to Xxxxx Fargo pursuant to Section 5 of this Agreement, and all
other amounts due to Xxxxx Fargo from Applicant under or in connection with
the Letter of Credit Documents will be reimbursed or paid at the Payment
Office in Dollars in immediately available funds without setoff or
counterclaim on demand or, at Xxxxx Fargo's option, by Xxxxx Fargo debiting
any of Applicant's accounts with Xxxxx Fargo without presentment, protest,
demand for reimbursement or payment, notice of dishonor or any other notice
whatsoever, all of which are hereby expressly waived by Applicant. Such
debit will be made (a) at the time each Demand is paid by Xxxxx Fargo or on
the maturity of each Acceptance or, if earlier, at the time each amount
is paid by Xxxxx Fargo to any paying, accepting, negotiating or other bank,
(b) at the time each fee and expense referenced in Section 4 of this Agreement
is to be paid, (c) at the time interest is due to Xxxxx Fargo pursuant to
Section 5 of this Agreement, and (d) at the time each other amount is due
under or in connection with the Letter of Credit Documents. If any Demand or
Acceptance or any fee, expense, interest or other amount payable under or in
connection with the Letter of Credit Documents is payable in a currency other
than Dollars, Applicant agrees to reimburse Xxxxx Fargo for all amounts paid
by Xxxxx Fargo on such Demand and on such Acceptance, and/or to pay Xxxxx
Fargo all such fees, expenses, interest and other amounts, in one of the
three following ways, as determined by Xxxxx Fargo in its sole discretion in
each case, (i) at such place as Xxxxx Fargo shall direct, in such other
currency, or (ii) at the Payment Office in the Dollar equivalent of
the amount of such other currency calculated at the Rate of Exchange on the
date determined by Xxxxx Fargo in its sole discretion, or (iii) at the
Payment Office in the Dollar equivalent, as determined by Xxxxx Fargo (which
determination shall be deemed correct absent manifest error), of such fees,
expenses, interest or other amounts or of the actual cost to Xxxxx Fargo of
paying such Demand or Acceptance.
SECTION 7. AGREEMENTS OF APPLICANT. Applicant agrees that (a) unless
otherwise specifically provided in any Loan Document, Xxxxx Fargo shall not
be obligated at any time to issue any Credit for the account of Applicant;
(b) unless otherwise specifically provided in any Loan Document, if any Credit
is issued by Xxxxx Fargo for the account of Applicant, Xxxxx Fargo shall
not be obligated to issue any further Credit for the account of Applicant or to
make other extensions of credit to Applicant or in any other manner to extend
any financial consideration to Applicant; (c) Xxxxx Fargo has not given
Applicant any legal or other advice with regard to any Letter of Credit
Document or Loan Document; (d) if Xxxxx Fargo at any time discusses with
Applicant the wording for any Credit, any such discussion will not constitute
legal or other advice by Xxxxx Fargo or any representation or warranty of
Xxxxx Fargo that any wording or Credit will satisfy Applicant's needs; (a)
Applicant Is responsible for the wording of each Credit, including, but not
limited to, any drawing conditions, and will not rely on Xxxxx Fargo in any
way in connection with the wording of any Credit or the structuring of any
transaction related to any Credit; (f) Applicant and not Xxxxx Fargo is
responsible for entering into the contracts relating to the Credits between
Applicant and the Beneficiaries and for causing Credits to be issued; (g)
Xxxxx Fargo may, as Xxxxx Fargo deems appropriate, modify or alter and use in
any Credit the terminology contained on the Application for such Credit; (h)
unless the Application for a Credit specifies whether the Documents to be
presented with a Demand under such Credit must be sent to Xxxxx Fargo in one
parcel or in two parcels or may be sent to Xxxxx Fargo in any number of
parcels, Xxxxx Fargo may, if it so desires, make such determination and
specify in the Credit whether such Documents must be sent in one parcel or
two parcels or may be sent in any number of parcels; (i) Xxxxx Fargo shall
not be deemed the agent of Applicant, any Beneficiary or any other user of
any Credit, and neither Applicant, nor any Beneficiary nor any other user of
any Credit shall be deemed an agent of Xxxxx Fargo; (j) Applicant will
promptly examine all Documents and each Credit if and when they are delivered
to Applicant by Xxxxx Fargo and, in the event of any claim of noncompliance
of any Documents or any Credit with Applicant's instructions or any
Application, or in the event of any other irregularity, will promptly notify
Xxxxx Fargo in writing of such noncompliance or irregularity, Applicant being
conclusively deemed to have waived an such claim of noncompliance or
irregularity unless such notice is promptly given; (k) all directions and
correspondence relating to any Letter of Credit Document are to be sent at
the risk of Applicant; (1) if any Credit has a provision concerning the
automatic extension of the Expiration Date of such Credit, Xxxxx Fargo may,
at its sole option , give notice of nonrenewal of such Credit and if Applicant
does not at any time want such Credit to be renewed Applicant will so notify
Xxxxx Fargo at least fifteen (15) calendar days before Xxxxx Fargo is to
notify the Beneficiary of such Credit or any advising bank of such nonrenewal
pursuant to the terms of such Credit; (m) Applicant will not seek to obtain,
apply for, or acquiesce in any temporary restraining order, restraining order,
preliminary injunction, permanent injunction or any type of pretrial or
permanent injunctive relief or any similar relief, however named, restraining,
prohibiting or enjoining Xxxxx Fargo, any of Xxxxx Fargo's correspondents or
any advising, confirming, negotiating, paying, accepting or other bank from
paying or negotiating any Demand or creating or paying any Acceptance or
honoring any other obligation under or in connection with any Credit; and (n)
except for any of Applicant's obligations which are specifically affected by
the actions referred to in subsection (vi) of this Section 7(n), Applicant's
obligations under or in connection with each Letter of Credit Document
and each Loan Document shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of each such Letter
of Credit Document and each such Loan Document under all circumstances
whatsoever, including, but not limited to, the following circumstances and
the circumstances listed in Section 13(b) through (bb) of this Agreement: (i)
any lack of validity or enforceability of any Letter of Credit Document, any
Loan Document, any Document or any agreement relating to any Letter of Credit
Document, any Loan Document or any Document; (ii) any amendment of or waiver
relating to, or any consent to or departure from, any Letter of Credit
Document, any Loan Document or any Document; (iii) any release or substitution
at any time of any Property which may be held as Collateral; (iv) the
existence of any claim, set-off, defense or other right which Applicant may
have at any time against Xxxxx Fargo or any Beneficiary (or any person or
entity for whom any Beneficiary may be acting) or any other person or entity,
whether under or in connection with any Letter of Credit Document, any Loan
Document, any Document or any Property referred to in or related to any
Letter of Credit Document, any Loan Document or any Document or under or in
connection with any unrelated transaction; (v) any breach of contract or
other dispute between or among any two or more of Applicant, Xxxxx Fargo,
any Beneficiary, any transferee of any Beneficiary, any person or entity for
whom any Beneficiary or any transferee of any Beneficiary may be acting, or
any other person or entity; or (vi) any delay, extension of time, renewal,
compromise or other indulgence granted or agreed to by Xxxxx Fargo with or
without notice to, or approval by, Applicant in respect of any of Applicant's
indebtedness or other obligations to Xxxxx Fargo under or in connection with
any Letter of Credit Document or any Loan Document.
SECTION 8. COMPLIANCE WITH LAWS AND REGULATIONS. Applicant represents
and warrants to Xxxxx Fargo that no Application, Credit or transaction under
any Application and/or any Credit will contravene any law or regulation of
the government of the United States or any state thereof. Applicant agrees
(a) to comply with all federal, state and foreign exchange regulations
and other government laws and regulations now or hereafter applicable to any
Letter of Credit Document, to any payments under or in connection with any
Letter of Credit Document, to each transaction under or in connection with
any Letter of Credit Document, or to the import, export, shipping or financing
of the Property referred to in or shipped under or in connection with any
Credit, and (b) to reimburse Xxxxx Fargo for such amounts as Xxxxx Fargo may
be required to expend as a result of such laws or regulations, any change in
such laws or regulations or any change in the interpretation of such laws or
regulations by any court or administrative or government authority charged
with the administration of such laws or regulations.
SECTION 9. TAXES, RESERVES AND CAPITAL ADEQUACY REQUIREMENTS. In addition
to, and notwithstanding, any other provision of any Letter of Credit Document
or any Loan Document, in the event that any law, treaty, rule, regulation,
guideline, request, order, directive or determination (whether or not having
the force of law) of or from any government authority, including, but not
limited to, any court, central bank or government regulatory authority, or any
change therein or in the interpretation or application thereof, (a) does or
shall subject Xxxxx Fargo to any tax of any kind whatsoever with respect to
the Letter of Credit Documents or the Loan Documents, or change the basis of
taxation of payments to Xxxxx Fargo of any amount payable thereunder (except
for changes in the rate of tax on the net income of Xxxxx Fargo); or (b) does
or shall impose, modify or hold applicable any reserve, special deposit,
assessment, compulsory loan, Federal Deposit Insurance Corporation insurance
or similar requirement against assets held by, deposits or other liabilities
in or for the account of, advances or loans by, other credit extended by or
any other acquisition of funds by, any office of Xxxxx Fargo; or (c) does or
shall impose, modify or hold applicable any capital adequacy requirements,
(whether or not having the force of law); or (d) does or shall impose on Xxxxx
Fargo any other condition; and the result of any of the foregoing is (i) to
increase the cost to Xxxxx Fargo of issuing or maintaining any Credit or of
performing any transaction under any Letter of Credit Document or any Loan
Document, or (ii) to reduce any amount receivable by Xxxxx Fargo under any
Letter of Credit Document or any Loan Document, or (iii) to reduce the rate
of return on the capital of Xxxxx Fargo or the Holding Company to a level
below that which Xxxxx Fargo or the Holding Company could have achieved but
for any imposition, modification or application of any capital adequacy
requirement (taking into consideration the policy of Xxxxx Fargo or the
Holding Company, as the case may be, with respect to capital adequacy), and
any such increase or reduction is material (as determined by Xxxxx Fargo
in its sole discretion); then, in any such case, Applicant agrees to pay to
Xxxxx Fargo such amount or amounts as may be necessary to compensate Xxxxx
Fargo or the Holding Company for (1) any such additional cost, (2) any
reduction in the amount received by Xxxxx Fargo under any Letter of Credit
Document or any Loan Document, or (3) to the extent allocable (as determined
by Xxxxx Fargo in its sole discretion) to any Letter of Credit Document or
any Loan Document, any reduction in the rate of return on the capital of Xxxxx
Fargo or the Holding Company.
SECTION 10. COLLATERAL. In addition to, and not in substitution for, any
Property delivered, conveyed, transferred or assigned to Xxxxx Fargo under
any Loan Document as security for any or all of the obligations and
liabilities of Applicant to Xxxxx Fargo at any time existing under or in
connection with any Letter of Credit Document or any Loan Document', Applicant
grants to Xxxxx Fargo a security interest in and to the following Collateral,
whether or not any such Collateral is in Xxxxx Fargo's possession or control
or in the possession or control of Xxxxx Fargo's agents or correspondents or
in transit to, or set apart for, Xxxxx Fargo or any of Xxxxx Fargo's agents or
correspondents: (a) with respect to each Credit and until such time as all the
obligations and liabilities of Applicant to Xxxxx Fargo at any time existing
under or in connection with each Credit and each Letter of Credit Document
and each Loan Document related to such Credit have been fully paid and
discharged, all as security for such obligations and liabilities, (i) all
Property referred to in each Credit or at any time shipped under or pursuant
to each Credit or in any way related to each Credit or to any Demand made or
Acceptance created under each Credit, whether or not Xxxxx Fargo receives the
Documents covering such Property or releases such Documents to Applicant on
trust or bailee receipt or otherwise, (ii) all Documents accompanying any
Demand made under each Credit, and (iii) all the proceeds of the Property and
the Documents referred to in subsections (i) and (ii) of this Section 10(a);
and (b) with respect to all the Credits and until such time as all the
obligations and liabilities of Applicant to Xxxxx Fargo at any time existing
under or connection with each Letter of Credit Document and each Loan
Document have been fully paid and discharged, all as security for such
obligations and liabilities, (i) all the property, claims, demands, right,
title and interest of Applicant in and to the balance of every deposit account
of Applicant with Xxxxx Fargo now or at any time hereafter existing, and all
evidences of such deposit accounts, (ii) all Property belonging to Applicant
or in which Applicant may have an interest, now or at any time hereafter
delivered, conveyed, assigned, pledged or paid to Xxxxx Fargo or its agents or
correspondents in any manner whatsoever, whether as security or for
safekeeping or otherwise, including, but not limited to, any items received
for collection or transmission, and the proceeds of such items, whether or
not such Property is in whole or in part released to Applicant on trust or
bailee receipt or otherwise, and (iii) where more than one person or entity
is an Applicant, all right, title and interest of each Applicant in and to
all the Property which any Applicant may now or hereafter obtain as security
for the obligations of the other Applicants or Applicant to such Applicant
arising under or in connection with the transaction to which any Credit
relates. Further, in addition to, and not in substitution for, any Property
delivered, conveyed, transferred or assigned to Xxxxx Fargo under any Loan
Document as security for any or all of the obligations and liabilities of
Applicant to Xxxxx Fargo at any time existing under or in connection with any
Letter of Credit Document or any Loan Document, Applicant agrees to deliver,
convey, transfer and assign to Xxxxx Fargo, on demand, as security, Property
of a value and character satisfactory to Xxxxx Fargo (x) if Xxxxx Fargo at
any time feels insecure about Applicant's ability or willingness to repay any
amounts which Xxxxx Fargo has paid or may pay in the future on any Demand or
Acceptance or in honoring any other obligation of Xxxxx Fargo under or in
connection with any Credit, or (y) without limiting the generality of the
foregoing subsection (x), if any temporary restraining order, restraining
order, preliminary injunction, permanent injunction or any type of pretrial
or permanent injunctive relief or any similar relief, however named, is
obtained restraining, prohibiting or enjoining Xxxxx Fargo, any of Xxxxx
Fargo's correspondents or any advising, confirming, negotiating, paying or
other bank from paying or negotiating any Demand or creating or paying any
Acceptance or honoring any other obligation under or in connection with any
Credit. Applicant agrees that the receipt by Xxxxx Fargo's agents or
correspondents at any time of any kind of security, including, but not limited
to, cash, shall not be deemed a waiver of any of Xxxxx Fargo's rights or
powers under this Agreement. Applicant agrees to sign and deliver to Xxxxx
Fargo on demand of Xxxxx Fargo all such deeds of trust, security agreements,
financing statements and other documents as Xxxxx Fargo shall at any time
request which are necessary or desirable (in the sole opinion of Xxxxx Fargo)
to grant to Xxxxx Fargo an effective and perfected security interest in
and to any or all of the Collateral. Applicant agrees to pay all filing and
recording fees related to the perfection of any security interest granted to
Xxxxx Fargo in accordance with this Section 10. Applicant hereby agrees that
any or all of the Collateral may be held and disposed of by Xxxxx Fargo as
provided in this Agreement. Upon any transfer, sale, delivery, surrender or
endorsement of any Document or Property which is or was part of the
Collateral, Applicant will indemnify and hold Xxxxx Fargo and Xxxxx Fargo's
agents and correspondents harmless from and against each and every claim,
demand, action or suit which may arise against Xxxxx Fargo or any such agent
or correspondent by reason of such transfer, sale, delivery, surrender or
endorsement.
SECTION 11. LICENSES AND INSURANCE FOR PROPERTY. Applicant agrees (a) to
procure promptly any necessary import, export or other licenses for the
import, export or shipping of the Property referred to in or shipped under,
pursuant to or in connection with any Credit; (b) to furnish such instruments,
certificates and other documents as Xxxxx Fargo may at any time require with
respect to such import, export or other licenses and with respect to the
compliance by Applicant with all federal, state and foreign government laws,
regulations, guidelines, requests, directives and/or determinations with
regard to the import, export, shipping and financing of the Property referred
to in or shipped under, pursuant to or in connection with any Credit; (c) to
keep such Property adequately covered by insurance in amounts, against risks
and with companies satisfactory to Xxxxx Fargo; (d) to assign the policies
or certificates of insurance to Xxxxx Fargo, or to make the loss or adjustment,
if any, payable to Xxxxx Fargo, at its option; and (e) to furnish to Xxxxx
Fargo, upon demand of Xxxxx Fargo, evidence of such insurance and/or evidence of
acceptance by the insurers of the assignment of such policies or certificates of
insurance. Should the insurance on any Property referred to in or shipped
under, pursuant to or in connection with any Credit for any reason be
unsatisfactory to Xxxxx Fargo, Xxxxx Fargo may, at Applicant's expense,
obtain insurance satisfactory to Xxxxx Fargo.
SECTION 12. INDEMNIFICATION. Except to the extent caused by Xxxxx Fargo's
lack of good faith, and notwithstanding any other provision of this Agreement,
Applicant agrees to reimburse and indemnify Xxxxx Fargo for (a) all amounts
paid by Xxxxx Fargo to any person or entity under or in connection with any
Delivery Authorization, and (b) all damages, losses, liabilities, actions,
claims, suits, penalties, judgments, obligations, costs or expenses, of any
kind whatsoever and howsoever caused, including, but not limited to,
attorneys' fees and interest, paid, suffered or incurred by, or imposed upon,
Xxxxx Fargo directly or indirectly arising out of or in connection with (i)
any Letter of Credit Document, any Loan Document, any Document or any
Property referred to in or related to any Credit; (ii) the issuance of any
Credit; (iii) the transfer of any Credit; (iv) any Delivery Authorization;
(v) the collection of any amounts owed to Xxxxx Fargo by Applicant under or
in connection with any Letter of Credit Document or any Loan Document;
(vi) the foreclosure against, or other enforcement of, any Collateral; (vii) the
protection, exercise or enforcement of Xxxxx Fargo's rights and remedies
under or in connection with any Letter of Credit Document or any Loan
Document; (viii) any court decrees or orders, including, but not limited to,
temporary restraining orders, restraining orders, preliminary injunctions,
permanent injunctions or any type of pretrial or permanent injunctive relief
or any similar relief, however named, restraining, prohibiting or enjoining
or seeking to restrain, prohibit or enjoin Xxxxx Fargo, any of Xxxxx Fargo's
correspondents or any advising, confirming, negotiating, paying, accepting
or other bank from paying or negotiating any Demand or creating or paying any
Acceptance or honoring any other obligation under or in connection with any
Credit; or (ix) any Credit being governed by laws or rules other than the UCP
in effect on the date such Credit is issued. The indemnity provided in this
Section 12 will survive the termination of this Agreement and the expiration
or cancellation of any or all the Credits.
SECTION 13. LIMITATION OF LIABILITY. Notwithstanding any other provision
of this Agreement, neither Xxxxx Fargo nor any of its agents or correspondents
will have any liability to Applicant for any action, neglect or omission, if
done in good faith, under or in connection with any Letter of Credit Document,
Loan Document or Credit, including, but not limited to, any issuance or
amendment of any Credit, the failure to issue or amend any Credit, or the
honoring or dishonoring of any Demand under any Credit, and such good faith
action, neglect or omission will bind the Applicant. Notwithstanding any
other provision of any Letter of Credit Document, in no event shall Xxxxx
Fargo, its officers or directors be liable or responsible, regardless of
whether any claim is based on contract or tort, for (a) any special,
consequential, indirect or incidental damages, including, but not limited to,
lost profits, arising out of or in connection with the issuance of any Credit
or any action taken or not taken by Xxxxx Fargo in connection with any Letter
of Credit Document, any Loan Document or any Document or Property referred to
in or related to any Credit; (b) the honoring of any Demand or Acceptance in
accordance with any order or directive of any court or government or
regulatory body or entity requiring such honor despite any temporary
restraining order, restraining order, preliminary injunction, permanent
injunction or any type of pretrial or permanent injunctive relief or any
similar relief, however named, restraining, prohibiting or enjoining such
honor; (c) the use which may be made of any Credit; (d) the validity of any
purported transfer of any Credit or the identity of any purported transferee
of any Beneficiary; (e) any acts or omissions of any Beneficiary or any other
user of any Credit; (f) the existence, character, quality, quantity, condition,
packing, value or delivery of the Property referred to in or related to any
Credit or purporting to be represented by any Document; (g) any difference in
the character, quality, quantity, condition or value of the Property referred
to in or related to any Credit or purporting to be represented by any
Document from that expressed in any Credit or any Document; (h) the time,
place, manner or order in which shipment is made of, or the failure or
omission to ship, or the partial or incomplete shipment of, any or all of the
Property referred to in or related to any Credit or any Document; (i) the
form, validity, sufficiency, correctness, genuineness or legal effect of any
Demand or any Document, or of any signatures or endorsements on any Demand or
Document, even if any Demand or any Document should in fact prove to be in
any or all respects invalid, insufficient, fraudulent or forged; (j) any
deviation from instructions, delay, default or fraud by the shipper or anyone
else in connection with any Document or any Property referred to in or related
to any Credit or the shipping of any such Property; (k) any delay in giving
or failure to give any notice, including, but not limited to, notice of
arrival of any Property referred to in or related to any Credit or any
Document; (l) any delay in arrival or failure to arrive of any Property
referred to in or related to any Credit or any Document; (m) any breach of
contract between the shippers or vendors and the consignees or buyers; (n)
the character, adequacy, validity or genuineness of any insurance or the
solvency or responsibility of any insurer of any risk; (o) the solvency of
any person or entity issuing any Document or the responsibility of any such
person or entity for, or the relationship of any such person or entity to,
any Property referred to in or related to any Document; (p) payment or
acceptance by Xxxxx Fargo of any Demand when the Demand and any Documents
which accompany such Demand appear on their face to comply substantially with
the terms of the Credit to which they relate or dishonor by Xxxxx Fargo of any
Demand when the Demand and any Documents which accompany such Demand do not
strictly comply on their face with the terms of the Credit to which they
relate; (q) the failure of any Demand or Document to bear any reference or
adequate reference to the Credit to which it relates; (r) the failure of any
Document to accompany any Demand; (s) the failure of any person or entity
to note the amount of any Demand on the Credit to which it relates or on any
Document; (t) the failure of any person or entity to surrender or take up any
Credit; (u) the failure of any Beneficiary to comply with the terms of any
Credit or to meet the obligations of such Beneficiary to Applicant; (v) the
failure of any person or entity to send or forward Documents if and as
required by the terms of any Credit; (w) any errors, inaccuracies, omissions,
interruptions or delays in transmission or delivery of any messages,
directions or correspondence by mail, cable, telegraph, wireless or otherwise,
whether or not they are in cipher; (x) any notice of nonrenewal of a Credit
sent by Xxxxx Fargo not being received on time or at any time by the
Beneficiary of such Credit; (y) any inaccuracies in the translation of any
messages, directions or correspondence; (z) any Beneficiary's use of the
proceeds of any Demand or Acceptance; (aa) any Beneficiary's failure to repay
to Xxxxx Fargo or Applicant the proceeds of any Demand or Acceptance if the
terms of any Credit require such repayment; (bb) any act, error, neglect,
default, negligence, gross negligence, omission, willful misconduct, lack of
good faith, insolvency or failure in business of any of Xxxxx Fargo's
agents or correspondents or of any advising, confirming, negotiating, paying,
accepting or other bank. The occurrence of any one or more of the
contingencies referred to in the preceding sentence shall not affect, impair
or prevent the vesting of any of Xxxxx Fargo's rights or powers under this
Agreement or any Loan Document or Applicant's obligation to make reimbursement
or payment to Xxxxx Fargo under this Agreement or any Loan Document. The
provisions of this Section 13 will survive the termination of this Agreement
and any Loan Documents and the expiration or cancellation of any or all the
Credits.
SECTION 14. EVENTS OF DEFAULT. Applicant agrees that each of the
following shall constitute an Event of Default under this Agreement: (a)
Applicant's or any Guarantor's failure to pay any principal, interest, fee or
other amount when due under or in connection with any Letter of Credit
Document; (b) the occurrence and continuance of any default or defined event
of default under any Loan Document or any other agreement, document or
instrument signed or made by Applicant or any Guarantor in favor of Xxxxx
Fargo; (c) Applicant's or any Guarantor's failure to perform or observe any
term, covenant or agreement contained in this Agreement (other than those
referred to in subsections (a), (b) and (c) of this Section 14); (d) any
representation, warranty or certification made or furnished by Applicant or
any Guarantor under or in connection with any Letter of Credit Document, or as
an inducement to Xxxxx Fargo to enter into any Letter of Credit Document,
shall be materially false, incorrect or incomplete when made; (e) any
guarantee of, or any security covering, any indebtedness of Applicant to
Xxxxx Fargo arising under or in connection with any Letter of Credit Document
or any Loan Document fails to be in full force and effect at any time;
SECTION 15. REMEDIES. Upon the occurrence and continuance of any Event of
Default, Xxxxx Fargo may, as it may at any time during the term of this
Agreement, exercise its rights under Section 7 of this Agreement and refuse
to issue any Credit or Credits for the account of Applicant, and all amounts
paid by Xxxxx Fargo on any Demand or Acceptance which have not previously
been repaid to Xxxxx Fargo, together with all interest on such amounts, and
the Unpaid and Undrawn Balance, if any, shall automatically be owing by
Applicant to Xxxxx Fargo and shall be due and payable by Applicant on demand.
Applicant agrees that upon payment of the Unpaid and Undrawn Balance to Xxxxx
Fargo Applicant shall have no further legal or equitable interest therein,
and that Xxxxx Fargo will not be required to segregate on its books or records
the Unpaid and Undrawn Balance paid by Applicant. After Xxxxx Fargo receives
the Unpaid and Undrawn Balance, Xxxxx Fargo agrees to pay to Applicant, upon
termination of all of Xxxxx Fargo's liability under all the Credits, Demands
and Acceptances, a sum equal to the amount which has not been drawn under all
the Credits less all amounts due and owing to Xxxxx Fargo from Applicant under
or in connection with the Letter of Credit Documents and the Loan Documents.
Further, upon the occurrence and continuance of any Event of Default, Xxxxx
Fargo may sell immediately, without demand for payment, advertisement or
notice to Applicant, all of which are hereby expressly waived, any and all
Collateral, received or to be received, at private sale or public auction or at
brokers' board or upon any exchange or otherwise, at Xxxxx Fargo's option, in
such parcel or parcels, at such time or times, at such place or places, for
such price or prices and upon such terms and conditions as Xxxxx Fargo may
deem proper, and Xxxxx Fargo may apply the net proceeds of such sale or sales,
together with any deposit balances and any sums credited by or due from Xxxxx
Fargo to Applicant in a general account or otherwise, to the payment of any and
all obligations and liabilities due to Xxxxx Fargo by Applicant under or in
connection with the Letter of Credit Documents and the Loan Documents, all
without prejudice to the rights of Xxxxx Fargo against Applicant with respect
to any and all such obligations and liabilities which may be or remain unpaid.
If any sale pursuant to the preceding sentence be at brokers' board or at
public auction or upon any exchange, Xxxxx Fargo may itself be a purchaser at
such sale free from any right of redemption, which Applicant hereby expressly
waives and releases. All rights and remedies of Xxxxx Fargo existing under
the Letter of Credit Documents and the Loan Documents are in addition to, and
not exclusive of, any rights or remedies otherwise available to Xxxxx Fargo
under applicable law.
SECTION 16. SETOFF. In addition to any rights now or hereafter granted
under applicable law, and not by way of limitation of any such rights, upon
the occurrence and continuance of any Event of Default, Xxxxx Fargo is hereby
authorized by Applicant at any time or from time to time, without notice to
Applicant or to any other person (any such notice being hereby expressly waived
by Applicant) to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit), whether matured or unmatured, and any other
indebtedness at any time held or owing by Xxxxx Fargo to or for the credit or
the account of Applicant, against and on account of the obligations and
liabilities of Applicant to Xxxxx Fargo under or in connection with any of the
Letter of Credit Documents or the Loan Documents, irrespective of whether or
not Xxxxx Fargo shall have made any demand for payment of any or all such
obligations and liabilities or declared any or all such obligations and
liabilities to be due and payable, and although any or all such obligations
and liabilities shall be contingent or unmatured.
SECTION 17. WAIVERS. Applicant agrees that no delay, extension of time,
renewal, compromise or other indulgence which may occur or be granted by Xxxxx
Fargo under any Letter of Credit Document or any Loan Document from time to
time shall impair Xxxxx Fargo's rights or powers under this Agreement or any
Application. Xxxxx Fargo shall not be deemed to have waived any of its rights
under this Agreement or any Application unless such waiver is in writing
signed by an authorized representative of Xxxxx Fargo. No such waiver, unless
expressly provided in such waiver, shall be effective as to any transactions
which occur subsequent to the date of such waiver, or as to any continuance of
any Event of Default after such waiver. No amendment or modification of this
Agreement shall be effective unless such amendment or modification is in
writing signed by authorized representatives of Xxxxx Fargo and Applicant.
SECTION 18. AMENDMENTS AND MODIFICATIONS TO CREDITS. At the request or
with the consent of Applicant, and without affecting the obligations of
Applicant under this Agreement, Xxxxx Fargo may, but will not be obligated to,
(a) increase the amount of any Credit, (b) extend the time for, and amend or
modify the terms and conditions governing, the making and honoring of any
Demand, Acceptance or Document or any other terms and conditions of any
Credit, or (c) waive the failure of any Demand or Document to comply with the
terms of the Credit to which it relates. No amendment to, or modification of,
the terms of any Credit will become effective if the Beneficiary of such
Credit or any confirming bank objects to such amendment or modification. If
any Credit is amended or modified in accordance with this Section 18,
Applicant shall be bound by, and obligated under, the provisions of this
Agreement with respect to such Credit as so amended or modified and any action
taken by Xxxxx Fargo or any advising, confirming, negotiating, paying,
accepting or other bank in accordance with such amendment or modification.
SECTION 19. SUCCESSORS AND ASSIGNS. Applicant agrees that the terms and
conditions of this Agreement and each Application shall bind the heirs,
executors, administrators, successors and assigns of Applicant, and that all
rights, benefits and privileges conferred on Xxxxx Fargo under or in
connection with each Letter of Credit Document and each Loan Document shall
be and hereby are extended to, conferred upon and may be enforced by the
successors and assigns of Xxxxx Fargo. Applicant will not assign this
Agreement or Applicant's obligations or liabilities under or in connection
with any Letter of Credit Document or any Loan Document to any person or
entity without the prior written approval of Xxxxx Fargo.
SECTION 20. GOVERNING LAW. This Agreement and each Application, and the
performance by Applicant and Xxxxx Fargo under this Agreement and each
Application, shall be governed by and be construed in accordance with the
laws of the State of California. Unless Xxxxx Fargo otherwise specifically
agrees in writing, each Credit, the opening of each Credit, the performance by
Xxxxx Fargo under each Credit, and the performance by the Beneficiary and any
advising, confirming, negotiating, paying, accepting or other bank under each
Credit, shall be governed by and be construed in accordance with the UCP in
force on the date of the issuance of each Credit.
SECTION 21. JURISDICTION AND SERVICE OF PROCESS. Any suit, action or
proceeding against Applicant under or with respect to any Letter of Credit
Document may, at Xxxxx Fargo's sole option, be brought in (a) the courts of
the State of California, (b) the United States District Courts in California,
(c) the courts of the jurisdiction of Applicant's incorporation or principal
office, or (d) the courts of the jurisdiction where any Beneficiary, any
advising, confirming, negotiating, paying, accepting or other bank, or any
other person or entity has brought any suit, action or proceeding against
Xxxxx Fargo with respect to any Credit, any Demand or any Acceptance, and
Applicant hereby submits to the nonexclusive jurisdiction of such courts for
the purpose of any such suit, action, proceeding or judgment and waives any
other preferential jurisdiction by reason of domicile. Applicant further
agrees that it will accept joinder in any suit, action or proceeding brought
in any court or jurisdiction against Xxxxx Fargo by any Beneficiary, any
advising, confirming, negotiating, paying, accepting or other bank or any
other person or entity with respect to any Credit, any Demand or any
Acceptance. Applicant irrevocably waives trial by jury and any objection,
including, but not limited to, any objection of the laying of venue or any
objection based on the grounds of forum non conveniens, which Applicant may
now or hereafter have to the bringing of any such action or proceeding,
Applicant further waives any right to transfer or change the venue of any
suit, action or proceeding brought against Applicant by Xxxxx Fargo under or
in connection with any Letter of Credit Document. Applicant irrevocably
consents to the service of process in any action or proceeding in any court
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to Applicant at its address specified next to its signature on this
Agreement or at such other address as Applicant shall have notified to Xxxxx
Fargo in writing, such service to be effective ten (10) days after such
mailing.
SECTION 22. JOINT APPLICANTS. If this Agreement is signed by more than
one person or entity, each Applicant agrees that this Agreement and the
Applications shall be the joint and several agreement of all such Applicants
and that all references to Applicant in this Agreement and the Applications
shall refer to all such Applicants jointly and severally.
SECTION 23. SEVERABILITY. Any provision of any Letter of Credit Document
which is prohibited or unenforceable in any jurisdiction shall be, only as to
such jurisdiction, ineffective to the extent of such prohibition or
unenforceability, but all the remaining provisions of such Letter of Credit
Document and all the other Letter of Credit Documents shall remain valid.
SECTION 24. HEADINGS. The headings used in this Agreement are for
convenience of reference only and shall not define or limit the provisions of
this Agreement.
SECTION 25. COMPLETE AGREEMENT. This Agreement and the Application for
each Credit contain the entire agreement of Xxxxx Fargo and Applicant with
respect to such Credit; provided, however, that such entire agreement will
also include any written document or instrument signed by Xxxxx Fargo and/or
Applicant, and approved by Xxxxx Fargo, which specifically references this
Agreement, any Application or any Credit. Except as specifically provided in
this Agreement, in any Application or in any written document or instrument
referred to in the preceding sentence, no statements or representations not
contained in this Agreement, such Application or such written document or
instrument shall have any force or effect on this Agreement, such Application or
such written document or instrument.
This Agreement is signed by Applicant's duly authorized representative or
representatives on the date specified below,
0000 Xxxx Xxxxxx Xxx
Xxx, Xxxx 00000
ADDRESS
Date: July 5, 1995
IOMEGA CORPORATION
APPLICANT
By:/s/Xxxxxxx X. Xxxxxx
Chief Financial Officer
TITLE
