Exhibit 10.23
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CREDIT AGREEMENT
by and between
XXXXXX COMMUNICATIONS, INC., a Delaware corporation
and
XXXXX FARGO HSBC TRADE BANK, N.A.
Dated as of
February 9, 2001
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Exhibit A - Addendum to Agreement
Exhibit B - Trade Cycle Finance Facility Supplement
XXXXX FARGO HSBC TRADE BANK CREDIT AGREEMENT
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XXXXXX COMMUNICATIONS, INC., a corporation ("Borrower"), organized under the
laws of the State of Delaware whose chief executive office is located at the
address specified after its signature to this Agreement ("Borrower's Address")
and XXXXX FARGO HSBC TRADE BANK, N.A. ("Trade Bank"), whose address is specified
after its signature to this Agreement, have entered into this CREDIT AGREEMENT
as of February 9, 2001 ("Effective Date"). All references to this "Agreement"
include those covenants included in the Addendum to Agreement ("Addendum")
attached as Exhibit A hereto.
I. CREDIT FACILITY
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1.1 The Facility. Subject to the terms and conditions of this Agreement,
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Trade Bank will make available to Borrower a Trade Cycle Finance Facility
("Facility") for which a Facility Supplement ("Supplement") is attached as
Exhibit B hereto. Additional terms for the Facility (and each subfacility
thereof ("Subfacility")) are set forth in the Supplement. The Facility will be
available from the Closing Date up to and until October 1, 2001 ("Facility
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Termination Date").
1.2 Credit Extension Limit. The aggregate outstanding amount of all Credit
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Extensions may at no time exceed Three Million Dollars ($3,000,000) ("Overall
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Credit Limit"). The aggregate outstanding amount of all Credit Extensions
outstanding at any time under Trade Cycle Finance Facility may not exceed that
amount specified as the "Credit Limit" in the Supplement for the Facility, and
the aggregate outstanding amount of all Credit Extensions outstanding at any
time under each Subfacility (or any subcategory thereof) may not exceed that
amount specified as the "Credit Sublimit" in the Supplement for the Facility. An
amount equal to 100% of each unfunded Credit Extension shall be used in
calculating the outstanding amount of Credit Extensions under this Agreement.
The Subfacility(s) of the Trade Cycle Finance Facility are as follows:
(a) Sight Commercial Letters of Credit
(b) Standby Letters of Credit
1.3 Overadvance. All Credit Extensions made hereunder shall be added to and
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deemed part of the Obligations when made. If, at any time and for any reason,
the aggregate outstanding amount of all Credit Extensions made pursuant to this
Agreement exceeds the dollar limitation in Section 1.2, then Borrower shall
immediately pay to Trade Bank on demand, in cash, the amount of such excess.
1.4 Repayment; Interest and Fees. Each funded Credit Extension shall be
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repaid by Borrower, and shall bear interest from the date of disbursement at
those per annum rates and such interest shall be paid, at the times specified in
the Supplement, Note or Facility Document. Borrower agrees to pay to Trade Bank
the fees specified in the Supplement as well as those fees specified in the
relevant Facility Document(s). Interest and fees will be calculated on the basis
of a 360 day year, actual days elapsed. Any overdue payments of principal (and
interest to the extent permitted by law) shall bear interest at a per annum
floating rate equal to the Prime Rate plus 5.0%.
1.5 Prepayments. Credit Extensions under any Facility may only be prepaid
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in accordance with the terms of the Supplement. At the time of any prepayment
(including, but not limited to, any prepayment which is a result of the
occurrence of an Event of Default and an acceleration of the Obligations)
Borrower will pay to Trade Bank all interest accrued on the amount so prepaid to
the date of such prepayment and all costs, expenses and fees specified in the
Loan Documents.
II. REPRESENTATIONS AND WARRANTIES
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Borrower represents and warrants to Trade Bank that the following
representations and warranties are true and
correct:
2.1 Legal Status. Borrower is duly organized and existing and in good
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standing under the laws of the jurisdiction indicated in this Agreement, and is
qualified or licensed to do business in all jurisdictions in which such
qualification or licensing is required and in which the failure to so qualify or
to be so licensed could have a material adverse affect on Borrower.
2.2 Authorization and Validity. The execution, delivery and performance of
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this Agreement, and all other Loan Documents to which Borrower is a party, have
been duly and validly authorized, executed and delivered by Borrower and
constitute legal, valid and binding agreements of Borrower, and are enforceable
against Borrower in accordance with their respective terms.
2.3 Borrower's Name. The name of Borrower set forth at the end of this
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Agreement is its correct name. If Borrower is conducting business under a
fictitious business name, Borrower is in compliance with all laws relating to
the conduct of such business under such name.
2.4 Financial Condition and Statements. All financial statements of
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Borrower delivered to Trade Bank have been prepared in conformity with GAAP, and
completely and accurately reflect the financial condition of Borrower (and any
consolidated Subsidiaries) at the times and for the periods stated in such
financial statements. Neither Borrower nor any Subsidiary has any material
contingent liability not reflected in the aforesaid financial statement. Since
the date of the financial statements delivered to Trade Bank for the last fiscal
period of Borrower to end before the Effective Date, there has been no material
adverse change in the financial condition, business or prospects of Borrower.
Borrower is solvent.
2.5 Litigation. Except as disclosed in writing to Trade Bank prior to the
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Effective Date, there is no action, claim, suit, litigation, proceeding or
investigation pending or (to best of Borrower's knowledge) threatened by or
against or affecting Borrower or any Subsidiary in any court or before any
governmental authority, administrator or agency which may result in (a) any
material adverse change in the financial condition or business of Borrower's, or
(b) any material impairment of the ability of Borrower to carry on its business
in substantially the same manner as it is now being conducted.
2.6 No Violation. The execution, delivery, and performance by Borrower of
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each of the Loan Documents do not violate any provision of any law or
regulation, or contravene any provision of the Articles of Incorporation or By-
Laws of Borrower, or result in a breach of or constitute a default under any
contract, obligation, indenture, or other instrument to which Borrower is a
party or by which Borrower may be bound.
2.7 Income Tax Returns. Borrower has no knowledge of any pending
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assessments or adjustments of its income tax payable with respect to any year.
2.8 No Subordination. There is no agreement, indenture, contract, or
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instrument to which Borrower is a party or by which Borrower may be bound that
requires the subordination in right of payment of any of Borrower's obligations
subject to this Agreement to any other obligation of Borrower.
2.9 ERISA. Borrower is in compliance in all material respects with all
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applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended or recodified from time to time ("ERISA"); Borrower has not violated any
provision of any defined employee pension benefit plan (as defined in ERISA)
maintained or contributed to by Borrower (each, a "Plan"); no Reportable Event,
as defined in ERISA, has occurred and is continuing with respect to any Plan
initiated by Borrower; Borrower has met its minimum funding requirements under
ERISA with respect to each Plan; and each Plan will be able to fulfill its
benefit obligations as they come due in accordance with the Plan documents and
under GAAP.
2.10 Other Obligations. Except as disclosed in writing to Trade Bank prior
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to the Effective Date, neither Borrower nor any Subsidiary are in default of any
obligation for borrowed money, any purchase money obligation or any material
lease, commitment, contract, instrument or obligation.
2.11 No Defaults. No Event of Default, and event which with the giving of
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notice or the passage of time or
both would constitute an Event of Default, has occurred and is continuing.
2.12 Information Provided to Trade Bank. The information provided to the
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Trade Bank concerning Borrower's business is true and correct.
2.13 Environmental Matters. Except as disclosed by Borrower to Trade Bank
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in writing prior to the Effective Date, Borrower (as well as any Subsidiary) is
each in compliance in all material respects with all applicable Federal or state
environmental, hazardous waste, health and safety statutes, and any rules or
regulations adopted pursuant thereto, which govern or affect any Borrower's or
any Subsidiary's operations and/or properties, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
the Superfund Amendments and Reauthorization Act of 1986, the Federal Resource
Conservation and Recovery Act of 1976, the Federal Toxic Substances Control Act
and the California Health and Safety Code, as any of the same may be amended,
modified or supplemented from time to time. None of the operations of Borrower
or of any Subsidiary is the subject of any Federal or state investigation
evaluating whether any remedial action involving a material expenditure is
needed to respond to a release of any toxic or hazardous waste or substance into
the environment.
III. CONDITIONS TO EXTENDING FACILITIES
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3.1 Conditions to Initial Credit Extension. The obligation of Trade Bank to
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make the first Credit Extension is subject to the fulfillment to Trade Bank's
satisfaction of the following conditions:
(a) Approval of Trade Bank Counsel. All legal matters relating to
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making the Facility available to Borrower must be satisfactory to
counsel for Trade Bank.
(b) Documentation. Trade Bank must have received, in form and substance
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satisfactory to Trade Bank, the following documents and instruments
duly executed and in full force and effect:
(1) a corporate borrowing resolution and incumbency
certificate if Borrower is a corporation, a partnership
or joint venture borrowing certificate if Borrower is a
partnership or joint venture, and a limited liability
company borrowing certificate if Borrower is a limited
liability company;
(2) the Facility Documents for the Facility, including, but
not limited to, note(s) ("Notes") for any Revolving
Credit or Term Loan Facility, Trade Bank's standard
Continuing Commercial Letter of Credit Agreement or
Continuing Standby Letter of Credit Agreement for any
letter of credit Facility;
(3) those guarantees, security agreements, deeds of trust,
subordination agreements, intercreditor agreements,
factoring agreements, tax service contracts, and other
Collateral Documents required by Trade Bank to evidence
the collateral/credit support specified in the
Supplement;
(4) if an audit or inspection of any books, records or
property is specified in the Supplement for the
Facility, an audit or inspection report from Xxxxx
Fargo or another auditor or inspector acceptable to
Trade Bank reflecting values and property conditions
satisfactory to Trade Bank; and
(5) if insurance is required in the Addendum, the insurance
policies specified in the Addendum (or other
satisfactory proof thereof) from insurers acceptable to
Trade Bank.
3.2 Conditions to Making Each Credit Extension. The obligation of Trade
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Bank to make each Credit Extension is subject to the fulfillment to Trade Bank's
satisfaction of the following conditions:
(a) Representations and Warranties. The representations and
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warranties contained in this Agreement, the Facility
Documents and the Collateral Documents will be true and
correct on
and as of the date of the Credit Extension with the same
effect as though such representations and warranties had
been made on and as of such date;
(b) Documentation. Trade Bank must have received, in form and
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substance satisfactory to Trade Bank, the following
documents and instruments duly executed and in full force
and effect:
(1) if the Credit Extension is the issuance of a Commercial
Letter of Credit, Trade Bank's standard Application For
Commercial Letter of Credit or standard Application and
Agreement For Commercial Letter of Credit;
(2) if the Credit Extension is the issuance of a Standby
Letter of Credit, Trade Bank's standard Application For
Standby Letter of Credit or standard Application and
Agreement For Standby Letter of Credit;
(3) if a Borrowing Base Certificate is required for the
Credit Extension, a Borrowing Base Certificate
demonstrating compliance with the requirements for such
Credit Extension.
(c) Fees. Trade Bank must have received any fees required by
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the Loan Documents to be paid at the time such Credit
Extension is made.
IV. AFFIRMATIVE COVENANTS
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Borrower covenants that so long as Trade Bank remains committed to make
Credit Extensions to Borrower, and until payment of all Obligations and Credit
Extensions, Borrower will comply with each of the following covenants: (For
purposes of this Article IV, and Article V below, reference to "Borrower" may
also extend to Borrower's subsidiaries, if so specified in the Addendum.)
4.1 Punctual Payments. Punctually pay all principal, interest, fees
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and other Obligations due under this Agreement or under any Loan Document at the
time and place and in the manner specified herein or therein.
4.2 Notification to Trade Bank. Promptly, but in no event more than 5
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calendar days after the occurrence of each such event, provide written notice in
reasonable detail of each of the following:
(a) Occurrence of a Default. The occurrence of any Event of
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Default or any event which with the giving of notice or the
passage of time or both would constitute an Event of
Default;
(b) Borrower's Trade Names;Place of Business. Any change of
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Borrower's (or any subsidiary's) name, trade name or place
of business, or chief executive officer;
(c) Litigation. Any action, claim, proceeding, litigation or
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investigation threatened or instituted by or against or
affecting Borrower (or any Subsidiary) in any court or
before any government authority, administrator or agency
which may materially and adversely affect Borrower's (or any
Subsidiary's) financial condition or business or Borrower's
ability to carry on its business in substantially the same
manner as it is now being conducted;
(d) Uninsured or Partially Uninsured Loss. Any uninsured or
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partially uninsured loss through liability or property
damage or through fire, theft or any other cause affecting
Borrower's (or any Subsidiary's) property in excess of the
aggregate amount required hereunder;
(e) Reports Made to Insurance Companies. Copies of all material
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reports made to insurance companies; and
(f) ERISA. The occurrence and nature of any Reportable Event or
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Prohibited Transaction, each as defined in ERISA, or any
funding deficiency with respect to any Plan.
4.3 Books and Records. Maintain at Borrower's address books and
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records in accordance with GAAP, and permit any representative of Trade Bank, at
any reasonable time, to inspect, audit and examine such books and records, to
make copies of them, and to inspect the properties of Borrower.
4.4 Tax Returns and Payments. Timely file all tax returns and reports
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required by foreign, federal, state and local law, and timely pay all foreign,
federal, state and local taxes, assessments, deposits and contributions owed by
Borrower. Borrower may, however, defer payment of any contested taxes, provided
that Borrower (i) in good faith contests Borrower's obligation to pay the taxes
by appropriate proceedings promptly instituted and diligently conducted, (ii)
notifies Trade Bank in writing of the commencement of, and any material
development in, the proceedings, (iii) posts bonds or takes any other steps
required to keep the contested taxes from becoming a lien upon any of the
Collateral, and (iv) makes provision, to Trade Bank's satisfaction, for eventual
payment of such taxes in the event Borrower is obligated to make such payment.
4.5 Compliance with Laws. Comply in all material respects with the
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provisions of all foreign, federal, state and local laws and regulations
relating to Borrower, including, but not limited to, those relating to
Borrower's ownership of real or personal property, the conduct and licensing of
Borrower's business, and health and environmental matters.
4.6 Taxes and Other Liabilities. Pay and discharge when due any and
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all indebtedness, obligations, assessments and taxes, both real and personal,
including without limitation federal and state income taxes and state and local
property taxes and assessments, except (a) such as Borrower may in good faith
contest or as to which a bona fide dispute may arise, and (b) for which Borrower
has made provision, to Trade Bank's satisfaction, for eventual payment thereof
in the event that Borrower is obligated to make such payment.
4.7 Insurance. Maintain and keep in force insurance of the types and
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in amounts customarily carried in lines of business similar to that of Borrower,
including, but not limited to, fire, extended coverage, public liability, flood,
property damage and workers' compensation, with all such insurance to be in
amounts satisfactory to Trade Bank and to be carried with companies approved by
Trade Bank before such companies are retained, and deliver to Trade Bank from
time to time at Trade Bank's request schedules setting forth all insurance then
in effect. All insurance policies shall name Trade Bank as an additional loss
payee, and shall contain a lenders loss payee endorsement in form reasonably
acceptable to Trade Bank. (Upon receipt of the proceeds of any such insurance,
Trade Bank shall apply such proceeds in reduction of the outstanding funded
Credit Extensions and shall hold any remaining proceeds as collateral for the
outstanding unfunded Credit Extensions, as Trade Bank shall determine in its
sole discretion, except that, provided no Event of Default has occurred, Trade
Bank shall release to Borrower insurance proceeds with respect to equipment
totaling less than $100,000, which shall be utilized by Borrower for the
replacement of the equipment with respect to which the insurance proceeds were
paid, if Trade Bank receives reasonable assurance that the insurance proceeds so
released will be so used.) If Borrower fails to provide or pay for any
insurance, Trade Bank may, but is not obligated to, obtain the insurance at
Borrower's expense.
4.8 Further Assurances. At Trade Bank's request and in form and
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substance satisfactory to Trade Bank, execute all documents and take all such
actions at Borrower's expense as Trade Bank may deem reasonably necessary or
useful to perfect and maintain Trade Bank's perfected security interest in the
Collateral and in order to fully consummate all of the transactions contemplated
by the Loan Documents.
V. NEGATIVE COVENANTS
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Borrower covenants that so long as Trade Bank remains committed to make any
Credit Extensions to Borrower and until all Obligations and Credit Extensions
have been paid, Borrower will not:
5.1 Merge or Consolidation, Transfer of Assets. Merge into or
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consolidate with any other entity; make any substantial change in the nature of
Borrower's business as conducted as of the date hereof; acquire all or
substantially all of the assets of any other entity; nor sell, lease, transfer
or otherwise dispose of all or a substantial or material portion of
Borrower's assets except in the ordinary course of its business.
5.2 Use of Proceeds. Borrower will not use the proceeds of any Credit
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Extension except for the purposes, if any, specified for such Credit Extension
in the Supplement covering the Facility under which such Credit Extension is
made.
5.3 Liens. Mortgage, pledge, grant or permit to exist a security interest
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in, or lien upon, all or any portion of Borrower's assets now owned or hereafter
acquired, except any of the foregoing in favor of Trade Bank or which is
existing as of, and disclosed to Trade Bank in writing prior to, the date
hereof.
5.4 Acquisitions of Assets. Borrower will not acquire any assets or enter
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into any other transaction outside the ordinary course of Borrower's business.
5.5 Loans and Investments. Borrower will not make any loans or advances to,
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or investments in, any person or entity except for accounts receivable created
in the ordinary course of Borrower's business.
5.6 Indebtedness For Borrowed Money. Borrower will not incur any
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indebtedness for borrowed money, except to Trade Bank and except for
indebtedness subordinated to the Obligations by an instrument or agreement in
form acceptable to Trade Bank.
5.7 Guarantees. Borrower will not guarantee or otherwise become liable with
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respect to the obligations of any other person or entity, except for endorsement
of instruments for deposit into Borrower's account in the ordinary course of
Borrower's business.
5.8 Dividends and Distributions of Capital of C Corporation. If Borrower is
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a corporation, Borrower will not pay or declare any dividends or make any
distribution of capital on Borrower's stock (except for dividends payable solely
in stock of Borrower), nor redeem, retire, purchase or otherwise acquire,
directly or indirectly, any shares of any class of Borrower's stock now or
hereafter outstanding.
5.9 Investments in, or Acquisitions of, Subsidiaries. Borrower will not
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make any investments in, or form or acquire, any subsidiaries.
5.10 Capital Expenditures. Borrower shall not make any capital expenditures
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in any fiscal year in an aggregate amount in excess of $5,000,000.
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With respect to Sections 5.1, 5.4, 5.6, 5.7, 5.9, and 5.10, if Trade Bank
agrees, in its sole and absolute discretion, to waive compliance with such
covenants IN CONNECTION WITH the closing of any acquisition by Borrower,
Borrower shall deliver to Trade Bank cash collateral, in form and substance
satisfactory to Trade Bank in its sole discretion.
VI. EVENTS OF DEFAULT AND REMEDIES
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6.1 Events of Default. The occurrence of any of the following shall
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constitute an "Event of Default":
(a) Failure to Make Payments When Due. Borrower's failure to pay
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principal, interest, fees or other amounts when due under any
Loan Document.
(b) Failure to Perform Obligations. Any failure by Borrower to comply
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with any covenant or obligation in this Agreement or in any Loan
Document (other than those referred to in subsection (a)above),
and such default shall continue for a period of twenty calendar
days from the earlier of (i) Borrower's failure to notify Trade
Bank of such Event of Default pursuant to Section 4.2(a) above,
or (ii) Trade Bank's notice to Borrower of such Event of Default.
(c) Untrue or Misleading Warranty or Statement. Any warranty,
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representation, financial
statement, report or certificate made or delivered by Borrower
under any Loan Document is untrue or misleading in any material
respect when made or delivered.
(d) Defaults Under Other Loan Documents. Any "Event of Default"
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occurs under any other Loan Document; any Guaranty is no longer
in full force and effect (or any claim thereof made by Guarantor)
or any failure of a Guarantor to comply with the provisions
thereof; or any breach of the provisions of any Subordination
Agreement or Intercreditor Agreement by any party other than the
Trade Bank.
(e) Defaults Under Other Agreements or Instruments. Any default in
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the payment or performance of any obligation, or the occurrence
of any event of default, under the terms of any other agreement
or instrument pursuant to which Borrower, any Subsidiary or any
Guarantor or general partner of Borrower has incurred any debt or
other material liability to any person or entity.
(f) Concealing or Transferring Property. Borrower conceals, removes
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or transfers any part of its property with intent to hinder,
delay or defraud its creditors, or makes or suffers any transfer
of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance or similar law.
(g) Judgments and Levies Against Borrower. The filing of a notice of
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judgment lien against Borrower, or the recording of any abstract
of judgment against Borrower, in any county in which Borrower has
an interest in real property, or the service of a notice of levy
and/or of a writ of attachment or execution, or other like
process, against the assets of Borrower, or the entry of a
judgment against Borrower.
(h) Event or Condition Impairing Payment or Performance. Any event
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occurs or condition arises which Trade Bank in good faith
believes impairs or is substantially likely to impair the
prospect of payment or performance by Borrower of the
Obligations, including, but not limited to any material adverse
change in Borrower's financial condition, business or prospects.
(i) Voluntary Insolvency. Borrower, any Subsidiary or any Guarantor
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(i) becomes insolvent, (ii) suffers or consents to or applies for
the appointment of a receiver, trustee, custodian or liquidator
of itself or any of its property, (iii) generally fails to pay
its debts as they become due, (iv) makes a general assignment for
the benefit of creditors, or (v) files a voluntary petition in
bankruptcy, or seeks reorganization, in order to effect a plan or
other arrangement with creditors or any other relief under the
Bankruptcy Reform Act, Title 11 of the United States Code, as
amended or recodified from time to time ("Bankruptcy Code"), or
under any state or Federal law granting relief to debtors,
whether now or hereafter in effect.
(j) Involuntary Insolvency. Any involuntary petition or proceeding
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pursuant to the Bankruptcy Code or any other applicable state or
federal law relating to bankruptcy, reorganization or other
relief for debtors is filed or commenced against Borrower, any
Subsidiary or Guarantor, or an order for relief is entered
against it by any court of competent jurisdiction under the
Bankruptcy Code or any other applicable state or federal law
relating to bankruptcy, reorganization or other relief for
debtors.
(k) Change in Ownership. Any change in the ownership of Borrower, any
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general partner of Borrower or any Guarantor which the Trade Bank
determines, in its sole discretion, may adversely affect the
creditworthiness of Borrower or credit support for the
Obligations.
6.2 Remedies. Upon the occurrence of any Event of Default, or at any time
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thereafter, Trade Bank, at its option, and without notice or demand of any kind
(all of which are hereby expressly waived by Borrower), may do any one or more
of the following: (a) terminate Trade Bank's obligation to make Credit
Extensions or to make available to Borrower the Facility or other financial
accommodations; (b) accelerate and declare all or any part of the Obligations to
be immediately due, payable, and performable, notwithstanding any deferred or
installment payments allowed by any
instrument evidencing or relating to any Credit Extension; and/or (c) exercise
all its rights, powers and remedies available under the Loan Documents, or
accorded by law, including, but not limited to, the right to resort to any or
all Collateral or other security for any of the Obligations and to exercise any
or all of the rights of a beneficiary or secured party pursuant to applicable
law. Notwithstanding the provisions in the foregoing sentence, if any Event of
Default set out in subsections (i) and (j) of Section 6.1 above shall occur,
then all the remedies specified in the preceding sentence shall automatically
take effect without notice or demand of any kind (all of which are hereby
expressly waived by Borrower) with respect to any and all Obligations. All
rights, powers and remedies of Trade Bank may be exercised at any time by Trade
Bank and from time to time after the occurrence of an Event of Default, are
cumulative and not exclusive, and shall be in addition to any other rights,
powers or remedies provided by law or equity.
VII. GENERAL PROVISIONS
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7.1 Notices. All notices to be given under this Agreement shall be in
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writing and shall be given personally or by regular first-class mail, by
certified mail return receipt requested, by a private delivery service which
obtains a signed receipt, or by facsimile transmission addressed to Trade Bank
or Borrower at the address indicated after their signature to this Agreement, or
at any other address designated in writing by one party to the other party.
Trade Bank is hereby authorized by Borrower to act on such instructions or
notices sent by facsimile transmission or telecommunications device which Trade
Bank believes come from Borrower. All notices shall be deemed to have been given
upon delivery, in the case of notices personally delivered or delivered by
private delivery service, upon the expiration of 3 calendar days following the
deposit of the notices in the United States mail, in the case of notices
deposited in the United States mail with postage prepaid, or upon receipt, in
the case of notices sent by facsimile transmission.
7.2 Waivers. No delay or failure of Trade Bank in exercising any right,
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power or remedy under any of the Loan Documents shall affect or operate as a
waiver of such right, power or remedy; nor shall any single or partial exercise
of any such right, power or remedy preclude, waive or otherwise affect any other
or further exercise thereof or the exercise of any other right, power or remedy.
Any waiver, consent or approval by Trade Bank under any of the Loan Documents
must be in writing and shall be effective only to the extent set out in such
writing.
7.3 Benefit of Agreement. The provisions of the Loan Documents shall be
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binding upon and inure to the benefit of the respective successors, assigns,
heirs, executors, administrators, beneficiaries and legal representatives of
Borrower and Trade Bank; provided, however, that Borrower may not assign or
transfer any of its rights under any Loan Document without the prior written
consent of Trade Bank, and any prohibited assignment shall be void. No consent
by Trade Bank to any assignment shall release Borrower from its liability for
the Obligations unless such release is specifically given by Trade Bank to
Borrower in writing. Trade Bank reserves the right to sell, assign, transfer,
negotiate or grant participations in all or any part of, or any interest in,
Trade Bank's rights and benefits under each of the Loan Documents. In connection
therewith, Trade Bank may disclose any information relating to the Facility,
Borrower or its business, or any Guarantor or its business.
7.4 Joint and Several Liability. If Borrower consists of more than one
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person or entity, the liability of each of them shall be joint and several, and
the compromise of any claim with, or the release of, any one such Borrower shall
not constitute a compromise with, or a release of, any other such Borrower.
7.5 No Third Party Beneficiaries. This Agreement is made and entered into
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for the sole protection and benefit of Borrower and Trade Bank and their
respective permitted successors and assigns, and no other person or entity shall
be a third party beneficiary of, or have any direct or indirect cause of action
or claim in connection with, any of the Loan Documents to which it is not a
party.
7.6 Governing Law and Jurisdiction. This Agreement shall, unless provided
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differently in any Loan Document, be governed by, and be construed in accordance
with, the internal laws of the State of California, except to the extent Trade
Bank has greater rights or remedies under federal law whether as a national bank
or otherwise. Borrower and Trade Bank (a) agree that all actions and proceedings
relating directly or indirectly to this Agreement shall be litigated in courts
located within California; (b) consent to the jurisdiction of any such court and
consent to service of process in any such action or proceeding by personal
delivery or any other method permitted by law; and (c) waive any and all rights
Borrower may have to object to the jurisdiction of any such court or to transfer
or change the venue of any such action or
proceeding.
7.7 Mutual Waiver of Jury Trial. Borrower and Trade Bank each hereby waive
---------------------------
the right to trial by jury in any action or proceeding based upon, arising out
of, or in any way relating to, (a) any Loan Document, (b) any other present or
future agreement, instrument or document between Trade Bank and Borrower, or (c)
any conduct, act or omission of Trade Bank or Borrower or any of their
directors, officers, employees, agents, attorneys or any other persons or
entities affiliated with Trade Bank or Borrower, which waiver will apply in all
of the mentioned cases whether the case is a contract or tort case or any other
case. Borrower represents and warrants that no officer, representative or agent
of Trade Bank has represented, expressly or otherwise, that Trade Bank would not
seek to enforce this waiver of jury trial.
7.8 Severability. Should any provision of any Loan Document be prohibited
------------
by, or invalid under applicable law, or held by any court of competent
jurisdiction to be void or unenforceable, such defect shall not affect, the
validity of the other provisions of the Loan Documents.
7.9 Entire Agreement; Amendments. This Agreement and the other Loan
----------------------------
Documents are the final, entire and complete agreement between Borrower and
Trade Bank concerning the Credit Extensions and the Facility; supersede all
prior and contemporaneous negotiations and oral representations and agreements.
There are no oral understandings, representations or agreements between the
parties concerning the Credit Extensions or the Facility which are not set forth
in the Loan Documents. This Agreement and the Supplement may not be waived,
amended or superseded except in a writing executed by Borrower and Trade Bank.
7.10 Collection of Payments. Unless otherwise specified in any Loan
----------------------
Document, other than this Agreement or any Note, all principal, interest and any
fees due to Trade Bank by Borrower under this Agreement, the Addendum, any
Supplement, any Facility Document, any Collateral Document or any Note, will be
paid by Trade Bank having Xxxxx Fargo debit any of Borrower's accounts with
Xxxxx Fargo and forwarding such amount debited to Trade Bank, without
presentment, protest, demand for reimbursement or payment, notice of dishonor or
any other notice whatsoever, all of which are hereby expressly waived by
Borrower. Such debit will be made at the time principal, interest or any fee is
due to Trade Bank pursuant to this Agreement, the Addendum, any Supplement, any
Facility Document, any Collateral Document or any Note.
7.11 Costs, Expenses and Attorneys' Fees. Borrower will reimburse Trade
-----------------------------------
Bank for all costs and expenses, including, but not limited to, reasonable
attorneys' fees and expenses (which counsel may be Trade Bank or Xxxxx Fargo
employees), expended or incurred by Trade Bank in the preparation and
negotiation of this Agreement, the Notes, the Collateral Documents, the
Addendum, and the Facility Documents, in amending this Agreement, the Collateral
Documents, the Notes, the Addendum, or the Facility Documents, in collecting any
sum which becomes due Trade Bank on the Notes, under this Agreement, the
Collateral Documents, the Addendum, the Supplement, or any of the Facility
Documents, in the protection, perfection, preservation and enforcement of any
and all rights of Trade Bank in connection with this Agreement, the Notes, any
of the Collateral Documents, the Supplement, any of the Addendum, or any of the
Facility Documents, including, without limitation, the fees and costs incurred
in any out-of-court work out or a bankruptcy or reorganization proceeding.
VIII. DEFINITIONS
-----------
8.1 "Accounts Receivable" means all presently existing and hereafter
-------------------
arising "Rights to Payment" (as that term is defined in the "Continuing Security
Agreement - Rights to Payment and Inventory" executed by Borrower in favor of
Trade Bank) which arise from the sale, lease or other disposition of Inventory,
or from performance of contracts for service, manufacture, construction or
repair, together with all goods returned by Borrower's customers in connection
with any of the foregoing.
8.2 "Agreement" means this Agreement and the Addendum attached hereto, as
---------
corrected or modified from time to time by Trade Bank and Borrower.
8.3 "Banking Day" means each day except Saturday, Sunday and a day
-----------
specified as a holiday by federal or California statute.
8.4 "Closing Date" means the date on which the first Credit Extension is
------------
made.
8.5 "Collateral" means all property securing the Obligations.
----------
8.6 "Collateral Documents" means those security agreement(s), deed(s) of
--------------------
trust, guarantee(s), subordination agreement(s), intercreditor agreement(s), and
other credit support documents and instruments required by the Trade Bank to
effect the collateral and credit support requirements set forth in the
Supplement with respect to the Facility.
8.7 "Credit Extension" means each extension of credit under the Facility
----------------
(whether funded or unfunded), including, but not limited to, (a) the issuance of
sight or usance commercial letters of credit or commercial letters of credit
supported by back-up letters of credit, (b) the issuance of standby letters of
credit, (c) the issuance of shipping guarantees, (d) the making of revolving
credit working capital loans, (e) the making of loans against imports for
letters of credit, (f) the making of clean import loans outside letters of
credit, (g) the making of advances against export orders, (h) the making of
advances against export letters of credit, (i) the making of advances against
outgoing collections, (j) the making of term loans, and (k) the entry into
foreign exchange contracts.
8.8 "Credit Limit" means, with respect to the any Facility, the amount
------------
specified under the column labeled "Credit Limit" in the Supplement for that
related Facility.
8.9 "Credit Sublimit" means, with respect to any Subfacility, the amount
---------------
specified after the name of that Subfacility under the column labeled "Credit
Sublimit" in the Supplement for the related Facility.
8.10 "Dollars" and "$" means United States dollars.
------- -
8.11 "Facility Documents" means, with respect to the Facility, those
------------------
documents specified in the Supplement for the Facility, and any other documents
customarily required by Trade Bank for said Facility.
8.12 "GAAP" means generally accepted accounting principles, which are
----
applicable to the circumstances, as of the date of determination, set out in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession.
8.13 "Inventory" has the meaning assigned to such term in the "Continuing
---------
Security Agreement - Rights to Payment and Inventory" executed by Borrower in
favor of Trade Bank.
8.14 "Loan Documents" means this Agreement, the Addendum, the Supplement,
--------------
the Facility Documents and the Collateral Documents.
8.15 "Note" has the meaning specified in Section 3.1(b)(2) above.
----
8.16 "Obligations" means (a) the obligation of Borrower to pay principal,
-----------
interest and fees on all funded Credit Extensions and fees on all unfunded
Credit Extensions, and (b) the obligation of Borrower to pay and perform when
due all other indebtedness, liabilities, obligations and covenants required
under the Loan Documents.
8.17 "Person" means and includes natural persons, corporations, limited
------
partnerships, general partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
8.18 "Prime Rate" means the rate most recently announced by Xxxxx Fargo at
----------
its 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. Any change in an interest rate resulting from a change in the Prime
Rate shall become effective as of 12:01 a.m. of the Banking Day on which each
change in the Prime Rate is announced by Xxxxx Fargo.
8.19 "Subsidiary" means (i) any corporation at least the majority of whose
----------
securities having ordinary voting power for the election of directors (other
than securities having such power only by reason of the happening of a
contingency) are at the time owned by Borrower and/or one or more Subsidiaries,
and (ii) any joint venture or partnership in which Borrower and/or one or more
Subsidiaries has a majority interest.
8.20 "Xxxxx Fargo" means Xxxxx Fargo Bank, N.A.
-----------
IX. ARBITRATION
9.1 Arbitration. Upon the demand of any party, any dispute shall be
-----------
resolved by binding arbitration in accordance with the terms of this Agreement.
A "Dispute" shall mean any action, dispute, claim or controversy of any kind,
whether in contract or tort, statutory or common law, legal or equitable, now
existing or hereafter arising under or in connection with, or in any way
pertaining to, any of the Loan Documents or the Notes, or any past, present or
future extensions of credit and other activities, transactions or obligations of
any kind related directly or indirectly to any of the Loan Documents or the
Notes, including without limitation, any of the foregoing arising in connection
with the exercise of any self-help, ancillary or other remedies pursuant to any
of the Loan Documents or the Notes. Any party may by summary proceedings bring
an action in court to compel arbitration of a Dispute. Any party who fails or
refuses to submit to arbitration following a lawful demand by any other party
shall bear all costs and expenses incurred by any such other party in compelling
arbitration of any Dispute.
9.2 Governing Rules. Arbitration proceedings shall be administered by the
---------------
American Arbitration Association ("AAA") or such other administrator as the
parties shall mutually agree upon in accordance with the AAA Commercial
Arbitration Rules. All Disputes submitted to arbitration shall be resolved in
accordance with the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the Loan
Documents. The arbitration shall be conducted at a location in California
selected by the AAA or other administrator. If there is any inconsistency
between the terms hereof and any such rules, the terms and procedures set forth
herein shall control. All statutes of limitation applicable to any Dispute shall
apply to any arbitration proceeding. All discover activities shall be expressly
limited to matters directly relevant to the Dispute being arbitrated. Judgment
upon any award rendered in an arbitration may be entered in any court having
jurisdiction; provided however, that nothing contained herein shall be deemed to
be a waiver by any party that is a bank of the protections afforded to it under
12 U.S.C.(S)91 or any similar applicable state law.
9.3 No Waiver; Provisional Remedies, Self-Help and Foreclosure. No
----------------------------------------------------------
provision hereof shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or personal
property collateral or security, or to obtain provisional or ancillary remedies,
including without limitation, injunctive relief, sequestration, attachment,
garnishment or the appointment of a receiver, from a court of competent
jurisdiction before, after or during the pendency of any arbitration or other
proceeding. The exercise of any such remedy shall not waive the right of any
party to compel arbitration or reference hereunder.
9.4 Arbitrator Qualifications and Powers; Awards. Arbitrators must be
--------------------------------------------
active members of the California State Bar or retired judges of the state or
federal judiciary of California, with expertise in the substantive laws
applicable to the subject matter of the Dispute. Arbitrators are empowered to
resolve Disputes by summary rulings in response to motions filed prior to the
final arbitration hearing. Arbitrators (i) shall resolve all Disputes in
accordance with the substantive law of the state of California, (ii) may grant
any remedy or relief that a court of the state of California could order or
grant within the scope hereof and such ancillary relief as is necessary to make
effective any award, and (iii) shall have the power to award recovery of all
costs and fees, to impose sanctions and to take such other actions as they deem
necessary to the same extent a judge could pursuant to the Federal Rules of
Civil Procedure, the California Rules of Civil Procedure or other
applicable law. Any Dispute in which the amount in controversy is $5,000,000 or
less shall be decided by a single arbitrator who shall not render an award of
greater than $5,000,000 (including damages, costs, fees and expenses). By
submission to a single arbitrator, each party expressly waives any right or
claim to recover more than $5,000,000. Any Dispute in which the amount in
controversy exceeds $5,000,000 shall be decided by majority vote of a panel of
three arbitrators; provided however, that all three arbitrators must actively
participate in all hearings and deliberations.
9.5 Real Property Collateral; Judicial Reference. Notwithstanding
--------------------------------------------
anything herein to the contrary, no Dispute shall be submitted to arbitration if
the Dispute concerns indebtedness secured directly or indirectly, in whole or in
part, by any real property unless (i) the holder of the mortgage, lien or
security interest specifically elects in writing to proceed with the
arbitration, or (ii) all parties to the arbitration waive any rights or benefits
that might accrue to them by virtue of the single action rule statute of
California, thereby agreeing that all indebtedness and obligations of the
parties, and all mortgages, liens and security interests securing such
indebtedness and obligations, shall remain fully valid and enforceable. If any
such Dispute is not submitted to arbitration, the Dispute shall be referred to a
referee in accordance with California Code of Civil Procedure Section 638 et
seq., and this general reference agreement is intended to be specifically
enforceable in accordance with said Section 638. A referee with the
qualifications required herein for arbitrators shall be selected pursuant to the
AAA's selection procedures. Judgment upon the decision rendered by a referee
shall be entered in the court in which such proceeding was commenced in
accordance with California Code of Civil Procedure Sections 644 and 645.
9.6 Miscellaneous. To the maximum extent practicable, the AAA, the
-------------
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the Dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a Dispute, the arbitration provision most
directly related to the Loan Documents or the subject matter of the Dispute
shall control. This arbitration provision shall survive termination, amendment
or expiration of any of the Loan Documents, the Notes or any relationship
between the parties.
Borrower and Trade Bank have caused this Agreement to be executed by their duly
authorized officers or representatives on the date first written above.
"BORROWER"
XXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxx
------------------------------
Title: CFO
---------------------------
Borrower's Address:
-------------------
0000 Xxxxxxxxx Xxx.
Xxxxx Xxxxxxx, XX 00000
"LENDER"
XXXXX FARGO HSBC TRADE BANK,
NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
Title: Relationship Manager
Lender's Address:
-----------------
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
EXHIBIT A
XXXXX FARGO HSBC TRADE BANK ADDENDUM TO CREDIT AGREEMENT
--------------------------------------------------------------------------------
THIS ADDENDUM IS ATTACHED TO THE CREDIT AGREEMENT ("CREDIT AGREEMENT") BETWEEN
XXXXX FARGO HSBC TRADE BANK AND THE FOLLOWING BORROWER:
NAME OF BORROWER: Xxxxxx Communications, Inc.
ADDITIONAL AFFIRMATIVE COVENANTS
--------------------------------
REPORTS. Borrower will furnish the following information or deliver the
following reports to Trade Bank at the times indicated below:
. Annual Financial Statements. Not later than one hundred twenty (120)
------------------------
calendar days after and as of the end of each of Borrower's fiscal years,
an annual unqualified audited financial statement of Borrower prepared by a
certified public accountant acceptable to Trade Bank and prepared in
accordance with GAAP, to include balance sheet, income statement, statement
of cash flow, and source and application of funds statement.
. Quarterly Financial Statements. Not later than forty-five (45) calendar
---------------
days after and as of the end of each of Borrower's fiscal quarters, a
financial statement of Borrower prepared by Borrower, to include balance
sheet and income statement.
Certificate of Accuracy and No Event of Default. At the time each
financial statement of Borrower required above is delivered to Trade
Bank, a certificate of the president or chief financial officer of
Borrower that said financial statements are accurate and that there
exists no Event of Default under the Agreement nor any condition, act
or event which with the giving of notice or the passage of time or
both would constitute an Event of Default.
FINANCIAL COVENANTS. Borrower will maintain the following (if Borrower has
any Subsidiaries which must be consolidated under GAAP, the following
applies to borrower and the consolidated Subsidiaries):
. Tangible Net Worth. Not at any time less than $75,000,000. ("Tangible Net
-----------
Worth" means the aggregate of total shareholders' equity determined in
accordance with GAAP plus indebtedness which is subordinated to the
----
Obligations to Trade Bank under a subordination agreement in form and
substance acceptable to Trade Bank or by subordination language acceptable
to Trade Bank in the instrument evidencing such indebtedness less (i) all
----
assets which would be classified as intangible assets under GAAP,
including, but not limited to, goodwill, licenses, patents, trademarks,
trade names, copyrights, capitalized software and organizational costs,
licenses and franchises, and (ii) assets which Trade Bank determines in its
business judgment would not be available or would be of relatively small
value in a liquidation of Borrower's business, including, but not limited
to, deferred tax assets, prepaid expenses, loans to officers or affiliates
and other items).
. Total Liabilities divided by Tangible Net Worth. Not at any time greater
than .50 to 1.0. ("Tangible Net Worth" has the meaning given to it above,
-----------
and "Total Liabilities" excludes indebtedness which is subordinated to the
Obligations to Trade Bank under a subordination agreement in form and
substance acceptable to Trade Bank or by subordination language acceptable
to Trade Bank in the instrument evidencing such indebtedness.)
. Quick Asset Ratio. Not at any time less than 1.0 to 1.0. ("Quick Asset
Ratio" means "Quick Assets" divided by total current liabilities, and
"Quick Assets" means cash on hand or on deposit in banks, readily
marketable securities issued by the United States, readily marketable
commercial paper rated "A-1" by Standard & Poor's Corporation [or a similar
rating by a similar rating organization], certificates of deposit and
banker's acceptances, and accounts receivable [net of allowance for
doubtful accounts].)
. Pre-Tax Profit. Not less than $1 on a quarterly basis (determined as of
each fiscal quarter-end) based on the sum of the results of four
consecutive quarters consisting of the present quarter and the three
preceding quarters.
BY SIGNING HERE BORROWER AGREES TO THE DESIGNATED PROVISIONS IN THIS ADDENDUM:
/s/ Xxxx X. Xxxx
-------------------------------
(SIGNATURE)
EXHIBIT B
XXXXX FARGO HSBC TRADE BANK TRADE CYCLE FINANCE FACILITY SUPPLEMENT
--------------------------------------------------------------------------------
THIS SUPPLEMENT IS AN INTEGRAL PART OF THE CREDIT AGREEMENT BETWEEN XXXXX FARGO
HSBC TRADE BANK AND THE FOLLOWING BORROWER:
NAME OF BORROWER: Xxxxxx Communications, Inc.
----------------
FACILITY TERMINATION DATE: October 1, 2001
-------------------------
CREDIT LIMIT FOR THIS TRADE CYCLE FINANCE LOAN FACILITY AND SUBLIMITS: Credit
---------------------------------------------------------------------
Limit: $3,000,000 (subject to dollar limitations in Section 1.2 of Agreement)
CREDIT SUBLIMITS: Subject to the Trade Cycle Finance Facility Credit Limit, the
----------------
Credit Sublimit for each Subfacility specified below refers to the aggregate
amount which may be outstanding at any one time under each such Subfacility.
. Sight Commercial Letters of Credit $3,000,000
. Standby Letters of Credit $3,000,000
FACILITY DESCRIPTION: Trade Bank will make the Trade Cycle Finance Facility
--------------------
available to Borrower for the specific purposes set forth below.
FEES:
----
. Non-Utilization Fee: Borrower will pay the following Non-Utilization Fee
payable in arrears on a quarterly basis, computed at a rate per annum of one-
quarter of one percent (.25%) on the average daily amount of the unused
portion of the Overall Credit Limit for each such quarter.
. Sight Commercial Credits:
Issuance Fees/Fees For Increasing Credit Amounts or Extending Expiration
------------------------------------------------------------------------
Dates: (Minimum $125) 1/8 of 1% per annum of the amount of each Sight
----- ---------
Commercial Credit and of any increase in such amount. Payable: At the time
-------
each Sight Commercial Credit is issued or increased and at the time the
expiration date of any Sight Commercial Credit is extended.
Amendment Fees: (Minimum $90)
--------------
$90 for each amendment, unless the amendment is an increase in the Sight
---
Commercial Credit amount or an extension of the expiration date, in which
case the Issuance Fee above will substitute for any Amendment Fee. Payable:
-------
At the time each amendment is issued.
Negotiation/Payment/Examination Fees: (Minimum $110)
------------------------------------
1/8 of 1% of the face amount of each drawing under each Sight Commercial
---------
Credit. Payable: At the time any draft or other documents are negotiated,
-------
paid or examined.
. Standby Credits:
Commission Fees/Fees For Increasing Credit Amounts or Extending Expiration
--------------------------------------------------------------------------
Dates: (Minimum $375) 1.5% of the amount of each Standby Credit and of any
----
increase in such amount. Payable: At the time each Standby Credit is issued
-------
or increased and at the time the expiration date of any Standby Credit is
extended.
Amendment Fees: (Minimum $130)
--------------
$130 for each amendment, unless the amendment is an increase in the Standby
----
Credit amount or an extension of the expiration date, in which case the
Commission Fee above will substitute for any Amendment Fee.
Payable: At the time each amendment is issued.
-------
Negotiation/Payment/Examination Fees: (Minimum $250)
------------------------------------
1/8 of 1% of the face amount of each drawing under each Standby Credit.
---------
Payable: At the time any draft or other documents are negotiated, paid or
-------
examined.
SUBFACILITIES DESCRIPTION, PURPOSE, DOCUMENTS, TERM, AND PREPAYMENTS:
--------------------------------------------------------------------
. Sight Commercial Credits:
Description And Purpose: Trade Bank will issue sight commercial letters of
-----------------------
credit (each a "Sight Commercial Credit") for the account of Borrower for
the purpose or purposes stated below. Subject to the credit sublimits
specified above, these Sight Commercial Credits will be transferable or not
transferable and have the goods related to them consigned to or not
consigned to, or controlled by or not controlled by, Trade Bank. The Sight
Commercial Credit Sublimit specified above refers to the aggregate undrawn
amount of all Sight Commercial Credits which may be at any one time
outstanding under this Facility together with the aggregate amount of all
drafts drawn under such Sight Commercial Credits which have not been
reimbursed as provided below at such time.
This Subfacility may only be used for the following purpose: Issuance of
Sight Commercial Credits to facilitate the purchase of telecommunications
equipment.
Documents:
---------
Before the first Sight Commercial Credit is issued:
Trade Bank's standard form Continuing Commercial Letter of Credit
Agreement;
Trade Bank On-Line Internet Agreement
Before each Sight Commercial Credit is issued:
Trade Bank's standard form Application For Commercial Letter of
Credit;
Before each Sight Commercial Credit is amended:
Trade Bank's standard form Application For Amendment To Letter of
Credit;
Term: No Sight Commercial Credit may expire more than one hundred eighty (180)
---- ------------------------
calendar days after the date it is issued.
. Standby Credits:
Description And Purpose: Trade Bank will issue standby letters of credit
-----------------------
(each a "Standby Credit") for the account of Borrower the purpose or
purposes stated below. Subject to the credit sublimits specified above,
these Standby Credits will be issued to support Borrower's open account
trade terms, bid and performance bonds, industrial revenue bonds, worker's
compensation obligations and or the moving of Borrower as a new customer
from another bank to Trade Bank. The Standby Credit Sublimit specified
above refers to the aggregate undrawn amount of all Standby Credits which
may be at any one time outstanding under this Subfacility together with the
aggregate amount of all drafts drawn under such Standby Credits which have
not been reimbursed as provided below at such time.
This Subfacility may only be used for the following purpose: Issuance of
Standby Credits in support of open account trade items in connection with
the purchase of telecommunications equipment and/or support lease
obligations of Borrower to landlord(s).
Documents:
---------
Before the first Standby Credit is issued:
Trade Bank's standard form Continuing Standby Letter of Credit
Agreement.
Trade Bank On-Line Internet Agreement
Before each Standby Credit is issued:
Trade Bank's standard form Application For Standby Letter of Credit.
Before each Standby Credit is amended:
Trade Bank's standard form Application For Amendment To Letter of
Credit.
Term: No Standby Credit will expire more than one hundred eighty (180) calendar
----
days after the date it is issued. Standby Credits will be available by sight
drafts only.
REIMBURSEMENTS FOR SIGHT COMMERCIAL CREDITS AND STANDBY CREDITS:
---------------------------------------------------------------
The amount of each drawing paid by Trade Bank under a Sight Commercial
Credit or Standby Credit will be reimbursed to Trade Bank as follows:
by Trade Bank having Xxxxx Fargo Bank debit any of Borrower's accounts
with Xxxxx Fargo Bank and forwarding such amount debited to Trade Bank;
or
immediately on demand of Trade Bank.
DEFAULT INTEREST RATE ON UNREIMBURSED SIGHT COMMERCIAL CREDITS AND STANDBY
--------------------------------------------------------------------------
CREDITS:
-------
Default interest will accrue at a per annum rate equal to the Prime Rate
plus five percent (5.0%) ("Default Interest Rate") and be paid at least
once each month as follows:
All drawings (i) under Sight Commercial Credits and (ii) under
Standby Credits, not reimbursed on the day they are paid by Trade
Bank, will bear interest at the Default Interest Rate from the date
they are paid to the date such payment is fully reimbursed.
BY INITIALING HERE BORROWER AGREES TO ALL THE TERMS OF THIS SUPPLEMENT: /s/ GO
---------
