EXHIBIT 10.23
BUSINESS LOAN AGREEMENT
This Agreement dated as of May 12, 2003, is between Bank of
America, N.A. (the "Bank") and Vans, Inc. (the "Borrower").
1. LINE OF CREDIT AMOUNT AND TERMS
1.1 Line of Credit Amount.
(a) During the availability period described below,
the Bank will provide a line of credit to the Borrower. The amount of
the line of credit (the "Commitment") is equal to the lesser of (i)
Twenty Million Dollars ($20,000,000.00) (the "Credit Limit") or (ii)
the Borrowing Base (as defined below).
(b) This is a revolving line of credit providing for
cash advances and letters of credit. During the availability period,
the Borrower may repay principal amounts and reborrow them.
(c) The Borrower agrees not to permit the outstanding
principal balance of advances under the line of credit plus the
outstanding amounts of any letters of credit, including amounts drawn
on letters of credit and not yet reimbursed, to exceed the Commitment.
1.2 Availability Period. The line of credit is available
between the date of this Agreement and May 1, 2004, or such earlier date as the
availability may terminate as provided in this Agreement (the "Expiration
Date").
1.3 Borrowing Base.
(a) The Borrower's obligations to the Bank will be
secured by Bank of America Certificate(s) of Deposit ("CD Collateral")
having a tenor of approximately one month (or such longer periods as
may be agreed by the Borrower and the Bank) pledged to the Bank
pursuant to the terms of the Security Agreement (Deposit Accounts)
between the Borrower and the Bank.
(b) The "Borrowing Base" means, as of any date of
determination, 100% of the aggregate principal amount of the CD
Collateral held by the Bank.
(c) Upon prior written notice ("Borrowing Base Notice
Request") delivered to the Bank at least three (3) business days prior
to the end of each month, the Borrower may request that the aggregate
amount of the CD Collateral be reset to the amount designated by the
Borrower in the Borrowing Base Notice Request, such request to take
effect on the first business day of the next succeeding month ("Reset
Date"). The Bank shall be under no obligation to approve such request
unless (i) after giving effect to the Borrowing Base Notice Request,
the outstanding principal balance of advances under the line of credit,
plus the outstanding amounts of any letters of credit, including
amounts
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drawn on letters of credit and not yet reimbursed, will not exceed the
Commitment, and (ii) no event of default hereunder has occurred. The
Borrowing Base may be reset only once a month on the Reset Date.
1.4 Interest Rate.
(a) Unless the Borrower elects an optional interest
rate as described below, the interest rate is a rate per year equal to
the Bank's Prime Rate.
(b) The Prime Rate is the rate of interest publicly
announced from time to time by the Bank as its Prime Rate. The Prime
Rate is set by the Bank based on various factors, including the Bank's
costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans. The
Bank may price loans to its customers at, above, or below the Prime
Rate. Any change in the Prime Rate shall take effect at the opening of
business on the day specified in the public announcement of a change in
the Bank's Prime Rate.
1.5 Repayment Terms.
(a) The Borrower will pay accrued interest on May 1,
2003, and then on the first (1st) day of every month thereafter until
payment in full of any principal outstanding under this line of credit.
(b) The Borrower will repay in full all principal and
any unpaid interest or other charges outstanding under this line of
credit no later than the Expiration Date. Any interest period for an
optional interest rate (as described below) shall expire no later than
the Expiration Date.
1.6 Optional Interest Rates. Instead of the interest rate
based on the Bank's Prime Rate, the Borrower may elect the optional interest
rates listed below during interest periods agreed to by the Bank and the
Borrower. The optional interest rates shall be subject to the terms and
conditions described later in this Agreement. Any principal amount bearing
interest at an optional rate under this Agreement is referred to as a "Portion."
The following optional interest rates are available:
(a) the LIBOR Rate (as described below) plus
0.20 percentage point.
1.7 Letters of Credit.
(a) This line of credit may be used for financing:
(i) commercial letters of credit with a
maximum maturity of 120 days but not to extend more than 120
days beyond the Expiration Date; provided that any commercial
letters of credit having a maturity date beyond the Expiration
Date must continue to be fully cash collateralized. Each
commercial letter of credit will require drafts payable at
sight.
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(ii) standby letters of credit with a
maximum maturity of 365 days but not to extend more than 365
days beyond the Expiration Date; provided that any standby
letters of credit having a maturity beyond the Expiration Date
must continue to be fully cash collateralized.
(iii) subject to Section 1.1 (c), the amount
of letters of credit outstanding at any one time (including
amounts drawn on the letters of credit and not yet reimbursed)
may not exceed Twenty Million Dollars ($20,000,000.00) for
commercial letters of credit and Seven Million Five Hundred
Thousand Dollars ($7,500,000.00) for standby letters of
credit.
(iv) there are outstanding letters of credit
as set forth on Exhibit A hereto. As of the date of this
Agreement, these letters of credit shall be deemed to be
outstanding under this Agreement, and shall be subject to all
the terms and conditions stated in this Agreement.
(b) The Borrower agrees:
(i) any sum drawn under a letter of credit
may, at the option of the Bank, be added to the principal
amount outstanding under this Agreement. The amount added to
the principal amount outstanding under this Agreement will
bear interest and be due as described elsewhere in this
Agreement.
(ii) if there is a default under this
Agreement, to immediately prepay and make the Bank whole for
any outstanding letters of credit.
(iii) the issuance of any letter of credit
and any amendment to a letter of credit is subject to the
Bank's written approval and must be in form and content
satisfactory to the Bank and in favor of a beneficiary
acceptable to the Bank.
(iv) to sign the Bank's form Application and
Agreement for Commercial Letter of Credit or Application and
Agreement for Standby Letter of Credit, as applicable.
(v) to pay any issuance and/or other fees
that the Bank notifies the Borrower will be charged for
issuing and processing letters of credit for the Borrower.
(vi) to allow the Bank to automatically
charge its checking account for applicable fees, discounts,
and other charges.
(vii) to pay the Bank a non-refundable fee
equal to 1.0% per annum of the outstanding undrawn amount of
each standby letter of credit, payable annually in advance,
calculated on the basis of the face amount outstanding on the
day the fee is calculated.
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2. OPTIONAL INTEREST RATES
2.1 Optional Rates. Each optional interest rate is a rate per
year. Interest will be paid on the last day of each interest period, and, if the
interest period is longer than one month, then on the last day of each month
during the interest period. At the end of any interest period, the interest rate
will revert to the rate based on the Prime Rate, unless the Borrower has
designated another optional interest rate for the Portion. No Portion will be
converted to a different interest rate during the applicable interest period.
Upon the occurrence of an event of default under this Agreement, the Bank may
terminate the availability of optional interest rates for interest periods
commencing after the default occurs.
2.2 LIBOR Rate. The election of LIBOR Rates shall be subject
to the following terms and requirements:
(a) The interest period during which the LIBOR Rate
will be in effect will be one, two, three or six months. The first day
of the interest period must be a day other than a Saturday or a Sunday
on which the Bank is open for business in New York and London and
dealing in offshore dollars (a "LIBOR Banking Day"). The last day of
the interest period and the actual number of days during the interest
period will be determined by the Bank using the practices of the London
inter-bank market.
(b) Each LIBOR Rate Portion will be for an amount not
less than One Million Dollars ($1,000,000).
(c) The "LIBOR Rate" means the interest rate
determined by the following formula, rounded upward to the nearest
1/100 of one percent. (All amounts in the calculation will be
determined by the Bank as of the first day of the interest period.)
LIBOR Rate = London Inter-Bank Offered Rate
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(1.00 - Reserve Percentage)
Where,
(i) "London Inter-Bank Offered Rate" means the average per annum
interest rate at which U.S. dollar deposits would be offered
for the applicable interest period by major banks in the
London inter-bank market, as shown on the Telerate Page 3750
(or any successor page) at approximately 11:00 a.m. London
time two (2) London Banking Days before the commencement of
the interest period. If such rate does not appear on the
Telerate Page 3750 (or any successor page), the rate for that
interest period will be determined by such alternate method as
reasonably selected by the Bank. A "London Banking Day" is a
day on which the Bank's London Banking Center is open for
business and dealing in offshore dollars.
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(ii) "Reserve Percentage" means the total of the maximum reserve
percentages for determining the reserves to be maintained by
member banks of the Federal Reserve System for Eurocurrency
Liabilities, as defined in Federal Reserve Board Regulation D,
rounded upward to the nearest 1/100 of one percent. The
percentage will be expressed as a decimal, and will include,
but not be limited to, marginal, emergency, supplemental,
special, and other reserve percentages.
(d) The Borrower shall irrevocably request a LIBOR
Rate Portion no later than 12:00 noon California time on the LIBOR
Banking Day preceding the day on which the London Inter-Bank Offered
Rate will be set, as specified above. For example, if there are no
intervening holidays or weekend days in any of the relevant locations,
the request must be made at least three days before the LIBOR Rate
takes effect.
(e) The Bank will have no obligation to accept
an election for a LIBOR Rate Portion if any of the following described
events has occurred and is continuing:
(i) Dollar deposits in the principal
amount, and for periods equal to the interest period, of a
LIBOR Rate Portion are not available in the London inter-bank
market; or
(ii) the LIBOR Rate does not accurately
reflect the cost of a LIBOR Rate Portion.
(f) Each prepayment of a LIBOR Rate Portion,
whether voluntary, by reason of acceleration or otherwise, will be
accompanied by the amount of accrued interest on the amount prepaid and
a prepayment fee as described below. A "prepayment" is a payment of an
amount on a date earlier than the scheduled payment date for such
amount as required by this Agreement.
(g) The prepayment fee shall be in an amount
sufficient to compensate the Bank for any loss, cost or expense
incurred by it as a result of the prepayment, including any loss of
anticipated profits and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such
Portion or from fees payable to terminate the deposits from which such
funds were obtained. The Borrower shall also pay any customary
administrative fees charged by the Bank in connection with the
foregoing. For purposes of this paragraph, the Bank shall be deemed to
have funded each Portion by a matching deposit or other borrowing in
the applicable interbank market, whether or not such Portion was in
fact so funded.
3. EXPENSES
3.1 Reimbursement Costs. The Borrower agrees to reimburse the
Bank for any expenses it incurs in the preparation of this Agreement and any
agreement or instrument required by this Agreement. Expenses include, but are
not limited to, reasonable attorneys' fees, including any allocated costs of the
Bank's in-house counsel.
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4. DISBURSEMENTS, PAYMENTS AND COSTS
4.1 Requests for Credit. Each request for an extension of
credit will be made in writing in a manner acceptable to the Bank, or by another
means reasonably acceptable to the Bank.
4.2 Disbursements and Payments.
(a) Each payment by the Borrower will be made in
immediately available funds by direct debit to a deposit account as
specified below or, for payments not required to be made by direct
debit, by mail to the address shown on the Borrower's statement or at
one of the Bank's banking centers in the United States.
(b) Each disbursement by the Bank and each payment by
the Borrower will be evidenced by records kept by the Bank. In
addition, the Bank may, at its discretion, require the Borrower to sign
one or more promissory notes.
4.3 Telephone and Telefax Authorization.
(a) The Bank may honor telephone or telefax
instructions for advances or repayments or for the designation of
optional interest rates and telefax requests for the issuance of
letters of credit given, or purported to be given, by any one of the
individuals authorized to sign loan agreements on behalf of the
Borrower, or any other individual designated by any one of such
authorized signers.
(b) Advances will be deposited in and repayments will
be withdrawn from Borrower's account number 14564-02400, or such other
of the Borrower's accounts with the Bank as designated in writing by
the Borrower.
(c) The Borrower will indemnify and hold the Bank
harmless from all liability, loss, and costs in connection with any act
resulting from telephone or telefax instructions the Bank reasonably
believes are made by any individual authorized by the Borrower to give
such instructions. This paragraph will survive this Agreement's
termination, and will benefit the Bank and its officers, employees, and
agents.
4.4 Direct Debit.
(a) The Borrower agrees that interest will be
deducted automatically on the due date from Borrower's account number
00000-00000 with the Bank.
(b) The Bank will debit the account on the dates the
payments become due. If a due date does not fall on a banking day, the
Bank will debit the account on the first banking day following the due
date.
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(c) The Borrower will maintain sufficient funds in
the account on the dates the Bank enters debits authorized by this
Agreement. If there are insufficient funds on the account on the date
the Bank enters any debit authorized by this Agreement, the debit will
be reversed.
4.5 Banking Days. Unless otherwise provided in this Agreement,
a banking day is a day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close, or are in fact closed, in the state
where the Bank's lending office is located, and, if such day relates to amounts
bearing interest at an offshore rate (if any), means any such day on which
dealings in dollar deposits are conducted among banks in the offshore dollar
interbank market. All payments and disbursements which would be due on a day
which is not a banking day will be due on the next banking day. All payments
received on a day which is not a banking day will be applied to the credit on
the next banking day.
4.6 Interest Calculation. Except as otherwise stated in this
Agreement, all interest and fees, if any, will be computed on the basis of a
360-day year and the actual number of days elapsed. This results in more
interest or a higher fee than if a 365-day year is used. Installments of
principal which are not paid when due under this Agreement shall continue to
bear interest until paid.
4.7 Default Rate. Upon the occurrence and during the
continuation of any default under this Agreement, principal amounts outstanding
under this Agreement will at the option of the Bank bear interest at a rate
which is 4.0 percentage point(s) higher than the rate of interest otherwise
provided under this Agreement. This may result in compounding of interest. This
will not constitute a waiver of any default.
5. CONDITIONS
The Bank must receive the following items, in form and content
reasonably acceptable to the Bank, before it is required to extend any credit to
the Borrower under this Agreement:
5.1 Authorizations. Evidence that the execution, delivery and
performance by the Borrower of this Agreement and any instrument or agreement
required under this Agreement have been duly authorized.
5.2 Governing Documents. If required by the Bank, a copy of
the Borrower's organizational documents.
5.3 Security Agreement. Signed Security Agreement (Deposit
Accounts) covering the CD Collateral.
5.4 Payment of Fees. Payment of all accrued and unpaid
expenses incurred by the Bank as required by the paragraph entitled
"Reimbursement Costs."
5.5 Other Items. Any other items that the Bank reasonably
requires.
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6. REPRESENTATIONS AND WARRANTIES
When the Borrower signs this Agreement, and until the Bank is
repaid in full, the Borrower makes the following representations and warranties.
Each request for an extension of credit constitutes a renewal of these
representations and warranties as of the date of the request:
6.1 Organization of Borrower. The Borrower is a corporation
duly formed and existing under the laws of the state where organized.
6.2 Authorization. This Agreement, and any instrument or
agreement required hereunder, are within the Borrower's powers, have been duly
authorized, and do not conflict with any of its organizational papers.
6.3 Enforceable Agreement. This Agreement is a legal, valid
and binding agreement of the Borrower, enforceable against the Borrower in
accordance with its terms, and any instrument or agreement required hereunder,
when executed and delivered, will be similarly legal, valid, binding and
enforceable, except as such enforceability may be limited by applicable
bankruptcy laws, reorganization or insolvency laws or equitable principles
affecting creditors' rights generally.
6.4 Good Standing. In each state in which the Borrower does
business, it is properly licensed, in good standing, and, where required, in
compliance with fictitious name statutes, except where the failure to so comply
will not have a material adverse effect on the Borrower.
6.5 No Conflicts. This Agreement does not conflict with any
law, agreement, or obligation by which the Borrower is bound.
6.6 Financial Information. All financial and other information
that has been or will be supplied to the Bank is sufficiently complete to give
the Bank accurate knowledge of the Borrower's financial condition, including all
material contingent liabilities. Since the date of the most recent financial
statement provided to the Bank, there has been no material adverse change in the
business condition (financial or otherwise), operations, properties or prospects
of the Borrower.
6.7 Lawsuits. There is no lawsuit, tax claim or other dispute
pending or, to the knowledge of Borrower, threatened against the Borrower which,
if lost, would materially impair the Borrower's financial condition or ability
to repay the loan, except as have been disclosed in writing to the Bank.
6.8 Collateral. All collateral required in this Agreement is
owned by the grantor of the security interest free of any title defects or any
liens or interests of others, except those which have been approved by the Bank
in writing.
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6.9 Permits, Franchises. The Borrower possesses all permits,
memberships, franchises, contracts and licenses required and all trademark
rights, trade name rights, patent rights and fictitious name rights necessary to
enable it to conduct the business in which it is now engaged.
6.10 Other Obligations. The Borrower is not in default on any
material obligation for borrowed money, any material purchase money obligation
or any other material lease, commitment, contract, instrument or obligation,
except as have been disclosed in writing to the Bank.
6.11 Tax Matters. The Borrower has no knowledge of any pending
assessments or adjustments of its income tax for any year and all taxes due have
been paid, except as have been disclosed in writing to the Bank.
6.12 No Event of Default. There is no event which is, or with
notice or lapse of time or both would be, a default under this Agreement.
6.13 Insurance. The Borrower has obtained, and maintained in
effect, the insurance coverage required in the "Covenants" section of this
Agreement.
6.14 Location of Borrower. The Borrower's place of business
(or, if the Borrower has more than one place of business, its chief executive
office) is located at the address listed under the Borrower's signature on this
Agreement.
7. COVENANTS
The Borrower agrees, so long as credit is available under this
Agreement and until the Bank is repaid in full:
7.1 Use of Proceeds. To use the proceeds of the credit only
for general corporate purposes and for the issuance of letters of credit.
7.2 Financial Information. To provide the following financial
information and statements and such reasonable additional information as
requested by the Bank from time to time:
(a) Within 90 days of the Borrower's fiscal year end,
the Borrower's annual financial statement. These financial statements
must be audited (with an unqualified opinion) by a Certified Public
Accountant acceptable to the Bank. The statements shall be prepared on
a consolidated basis. Instead of its annual financial statement, the
Borrower may deliver to the Bank its Form 10-K Annual Report.
(b) Within 45 days of the period's end, the
Borrower's quarterly financial statements. The financial statements may
be Borrower prepared. The statements shall be prepared on a
consolidated basis. Instead of its quarterly financial statements, the
Borrower may deliver to the Bank its Form 10-Q Quarterly Reports.
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(c) Copies of the Borrower's Annual Report within 120
days after fiscal year end.
(d) Copies of such additional financial statements
and information as the Bank may reasonably require.
7.3 Notices to Bank. To promptly notify the Bank in writing
of:
(a) any event of default under this Agreement, or any
event which, with notice or lapse of time or both, would constitute an
event of default.
(b) any material adverse change in the Borrower's
financial condition, operations, properties or prospects which could
materially impair the Borrower's ability to repay the credit from
sources other than the certificate of deposit pledged as collateral for
the obligations of Borrower under this Agreement.
(c) any change in the Borrower's name, legal
structure, place of business, or chief executive office if the Borrower
has more than one place of business.
7.4 Books and Records. To maintain adequate books and
records.
7.5 Audits. To allow the Bank and its agents to inspect the
Borrower's properties and examine, audit and make copies of books of account and
financial records at any reasonable time during normal business hours. If any of
the Borrower's properties, books of account or financial records are in the
possession of a third party, the Borrower authorizes that third party to permit
the Bank or its agent to have access to perform inspections or audits and to
respond to the Bank's request for information concerning such properties, books
and records.
7.6 Compliance with Laws. To comply with the laws (including
any fictitious name statute), regulations, and orders of any government body
with authority over the Borrower's business.
7.7 Preservation of Rights. To maintain and preserve all
material rights, privileges, and franchises the Borrower now has, except as they
may be modified in the ordinary course of the Borrower's business.
7.8 Cooperation. To take any action reasonably requested by
the Bank to carry out the intent of this Agreement.
7.9 Insurance. To maintain insurance as is usual for the
business it is in.
7.10 Additional Negative Covenants. Not to, without the Bank's
written consent, which shall not be unreasonably withheld, conditioned or
delayed:
(a) liquidate or dissolve the Borrower's business.
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(b) enter into any consolidation, merger or other
combination, unless the Borrower is the surviving entity.
(c) voluntarily suspend its business for more than
seven (7) days in any thirty (30) day period.
8. DEFAULT
If any of the following events occurs, the Bank may do one or
more of the following: declare the Borrower in default, stop making any
additional credit available to the Borrower, and require the Borrower to repay
its entire debt immediately and without prior notice. If an event of default
occurs under the paragraph entitled "Bankruptcy," below, with respect to the
Borrower, then the entire debt outstanding under this Agreement will
automatically be due immediately.
8.1 Failure to Pay. The Borrower fails to make a payment under
this Agreement when due.
8.2 False Information. The Borrower has given the Bank false
or misleading information or representations.
8.3 Bankruptcy. The Borrower files a bankruptcy petition, a
bankruptcy petition is filed against the Borrower or the Borrower makes a
general assignment for the benefit of creditors. The default will be deemed
cured if any bankruptcy petition filed against the Borrower is dismissed within
a period of 60 days after the filing; provided, however, that the Bank will not
be obligated to extend any additional credit to the Borrower during that period.
8.4 Receivers. A receiver or similar official is appointed for
a substantial portion of the Borrower's business, or the business is terminated.
8.5 Government Action. Any government authority takes
enforcement action that the Bank reasonably believes materially adversely
affects the Borrower's financial condition or ability to repay.
8.6 Cross-default. Any default occurs under any agreement in
connection with any credit the Borrower has obtained from anyone else or which
the Borrower has guaranteed in an amount greater than Five Million Dollars
($5,000,000), if the default consists of failing to make a payment when due or
gives the other lender the right to accelerate the obligation, which default is
not cured within thirty (30) days.
8.7 Default under Related Documents. Any default occurs under
any guaranty, subordination agreement, security agreement, deed of trust,
mortgage, or other document required by this Agreement or any such document is
no longer in effect, or any guarantor purports to revoke or disavow the
guaranty.
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8.8 Other Breach Under Agreement. The Borrower fails to meet
the conditions of, or fails to perform any obligation under, any term of this
Agreement not specifically referred to in this Article.
8.9 Other Bank Agreements. The Borrower fails to meet the
conditions of, or fails to perform any obligation under any other agreement the
Borrower has with the Bank or any affiliate of the Bank which failure is not
cured within thirty (30) days.
9. ENFORCING THIS AGREEMENT; MISCELLANEOUS
9.1 GAAP. Except as otherwise stated in this Agreement, all
financial information provided to the Bank and all financial covenants will be
made under generally accepted accounting principles, consistently applied.
9.2 California Law. This Agreement is governed by California
law.
9.3 Successors and Assigns. This Agreement is binding on the
Borrower's and the Bank's successors and assignees. The Borrower agrees that it
may not assign this Agreement without the Bank's prior consent. With the
Borrower's prior written consent, the Bank may sell participations in or assign
this loan, and may exchange financial information about the Borrower with actual
or potential participants or assignees; provided that such actual or potential
participants or assignees shall agree to treat all financial information
exchanged as confidential. If a participation is sold or the loan is assigned,
the purchaser will have the right of set-off against the Borrower, provided the
purchaser specifically waives its rights in this paragraph to any personal
property of the Borrower now or hereafter held in any safe deposit box owned or
operated by purchaser.
9.4 Arbitration.
(a) This paragraph concerns the resolution of any
controversies or claims between the Borrower and the Bank, whether
arising in contract, tort or by statute, including but not limited to
controversies or claims that arise out of or relate to: (i) this
Agreement (including any renewals, extensions or modifications); or
(ii) any document related to this Agreement (collectively a "Claim").
(b) At the request of the Borrower or the Bank, any
Claim shall be resolved by binding arbitration in accordance with the
Federal Arbitration Act (Title 9, U. S. Code) (the "Act"). The Act will
apply even though this Agreement provides that it is governed by the
law of a specified state.
(c) Arbitration proceedings will be determined in
accordance with the Act, the applicable rules and procedures for the
arbitration of disputes of JAMS or any successor thereof ("JAMS"), and
the terms of this paragraph. In the event of any inconsistency, the
terms of this paragraph shall control.
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(d) The arbitration shall be administered by JAMS and
conducted in any U. S. state where real or tangible personal property
collateral for this credit is located or if there is no such
collateral, in the County of Los Angeles, State of California. All
Claims shall be determined by one arbitrator; however, if Claims exceed
Five Million Dollars ($5,000,000), upon the request of any party, the
Claims shall be decided by three arbitrators. All arbitration hearings
shall commence within ninety (90) days of the demand for arbitration
and close within ninety (90) days of commencement and the award of the
arbitrator(s) shall be issued within thirty (30) days of the close of
the hearing. However, the arbitrator(s), upon a showing of good cause,
may extend the commencement of the hearing for up to an additional
sixty (60) days. The arbitrator(s) shall provide a concise written
statement of reasons for the award. The arbitration award may be
submitted to any court having jurisdiction to be confirmed and
enforced.
(e) The arbitrator(s) will have the authority to
decide whether any Claim is barred by the statute of limitations and,
if so, to dismiss the arbitration on that basis. For purposes of the
application of the statute of limitations, the service on JAMS under
applicable JAMS rules of a notice of Claim is the equivalent of the
filing of a lawsuit. Any dispute concerning this arbitration provision
or whether a Claim is arbitrable shall be determined by the
arbitrator(s). The arbitrator(s) shall have the power to award legal
fees pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of the
Borrower or the Bank to: (i) exercise self-help remedies, such as but
not limited to, setoff; (ii) initiate judicial or nonjudicial
foreclosure against any real or personal property collateral; (iii)
exercise any judicial or power of sale rights, or (iv) act in a court
of law to obtain an interim remedy, such as but not limited to,
injunctive relief, writ of possession or appointment of a receiver, or
additional or supplementary remedies.
(g) The procedure described above will not apply if
the Claim, at the time of the proposed submission to arbitration,
arises from or relates to an obligation to the Bank secured by real
property. In this case, both the Borrower and the Bank must consent to
submission of the Claim to arbitration. If both parties do not consent
to arbitration, the Claim will be resolved as follows: The Borrower and
the Bank will designate a referee (or a panel of referees) selected
under the auspices of JAMS in the same manner as arbitrators are
selected in JAMS administered proceedings. The designated referee(s)
will be appointed by a court as provided in California Code of Civil
Procedure Section 638 and the following related sections. The referee
(or the presiding referee of the panel) will be an active attorney or a
retired judge. The award that results from the decision of the
referee(s) will be entered as a judgment in the court that appointed
the referee, in accordance with the provisions of California Code of
Civil Procedure Sections 644 and 645.
(h) The filing of a court action is not intended to
constitute a waiver of the right of the Borrower or the Bank, including
the suing party, thereafter to require submittal of the Claim to
arbitration.
13
9.5 Severability; Waivers. If any part of this Agreement is
not enforceable, the rest of the Agreement may be enforced. The Bank retains all
rights, even if it makes a loan after default. If the Bank waives a default, it
may enforce a later default. Any consent or waiver under this Agreement must be
in writing.
9.6 Attorneys' Fees. The Borrower shall reimburse the Bank for
any reasonable costs and attorneys' fees incurred by the Bank in connection with
the enforcement or preservation of any rights or remedies under this Agreement
and any other documents executed in connection with this Agreement, and in
connection with any "workout" or restructuring under this Agreement. In the
event of a lawsuit or arbitration proceeding, the prevailing party is entitled
to recover costs and reasonable attorneys' fees incurred in connection with the
lawsuit or arbitration proceeding, as determined by the court or arbitrator. In
the event that any case is commenced by or against the Borrower under the
Bankruptcy Code (Title 11, United States Code) or any similar or successor
statute, the Bank is entitled to recover costs and reasonable attorneys' fees
incurred by the Bank related to the preservation, protection, or enforcement of
any rights of the Bank in such a case. As used in this paragraph, "attorneys'
fees" includes the allocated costs of the Bank's in-house counsel.
9.7 One Agreement. This Agreement and any related security or
other agreements required by this Agreement, collectively:
(a) represent the sum of the understandings and
agreements between the Bank and the Borrower concerning this credit;
(b) replace any prior oral or written agreements
between the Bank and the Borrower concerning this credit; and
(c) are intended by the Bank and the Borrower as the
final, complete and exclusive statement of the terms agreed to by them.
In the event of any conflict between this Agreement and any other agreements
required by this Agreement, this Agreement will prevail.
9.8 Indemnification. Except for any loss, liability, damages,
judgments and costs ("Claims") caused directly or indirectly by the Bank, the
Borrower will indemnify and hold the Bank harmless from any Claims of any kind
brought by any third party relating to or arising directly or indirectly out of
(a) this Agreement or any document required hereunder, (b) any credit extended
or committed by the Bank to the Borrower hereunder, and (c) any litigation or
proceeding related to or arising out of this Agreement, any such document, or
any such credit. This indemnity includes but is not limited to reasonable
attorneys' fees (including the allocated cost of in-house counsel). This
indemnity extends to the Bank, its parent, subsidiaries and all of their
directors, officers, employees, agents, successors, attorneys, and assigns. This
indemnity will survive repayment of the Borrower's obligations to the Bank. All
sums due to the Bank hereunder shall be obligations of the Borrower, due and
payable immediately following receipt by the Borrower of notice from the Bank
specifying in detail all such sums due.
14
9.9 Notices. Unless otherwise provided in this Agreement or in
another agreement between the Bank and the Borrower, all notices required under
this Agreement shall be personally delivered or sent by certified first class
mail, postage prepaid, or by overnight courier, to the addresses on the
signature page of this Agreement, or to such other addresses as the Bank and the
Borrower may specify from time to time in writing. Notices and other
communications sent by (a) first class mail shall be deemed delivered on the
earlier of actual receipt or on the fourth business day after deposit in the
U.S. mail, postage prepaid, and (b) overnight courier shall be deemed delivered
on the next business day.
9.10 Headings. Article and paragraph headings are for
reference only and shall not affect the interpretation or meaning of any
provisions of this Agreement.
9.11 Counterparts. This Agreement may be executed in as many
counterparts as necessary or convenient, and by the different parties on
separate counterparts each of which, when so executed, shall be deemed an
original but all such counterparts shall constitute but one and the same
agreement.
This Agreement is executed as of the date stated at the top of the first page.
Bank of America, N.A. Vans, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
------------------------- ------------------------
Typed Name: Xxxxxxx X. Xxxxxxxxxx Typed Name: Xxxxx X. Xxxxxxxx
Title: Vice President Title: Senior Vice President
and General Counsel
By: ________________________________
Typed Name:_________________________
Title:______________________________
Address where notices to Address where notices to
the Bank are to be sent: the Borrower are to be sent:
000 Xxxxx Xxxxxxxxx, 0xx Xxxxx 00000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000 Xxxxx Xx Xxxxxxx, XX 00000
15
EXHIBIT A
OUTSTANDING LETTERS OF CREDIT
LC #: AMOUNT: EXP/MAT:
---------------------------------------------------
00000001123774 18,960.91 04/21/03
---------------------------------------------------
00000001123808 265,238.28 04/21/03
---------------------------------------------------
00000001129397 18,388.15 05/21/03
---------------------------------------------------
00000001129487 148,620.35 06/21/03
---------------------------------------------------
00000001130373 174,453.20 04/21/03
---------------------------------------------------
00000001130374 89,868.60 07/21/03
---------------------------------------------------
00000001130404 7,086.00 05/21/03
---------------------------------------------------
00000001130412 1,405,541.98 05/21/03
---------------------------------------------------
00000001130413 18,340.88 05/21/03
---------------------------------------------------
00000001130416 1,141.44 04/30/03
---------------------------------------------------
00000001130417 913,567.98 06/20/03
---------------------------------------------------
00000001130418 3,244,942.44 06/20/03
---------------------------------------------------
00000001130419 164,816.28 06/20/03
---------------------------------------------------
00000001130557 1,258,568.42 06/20/03
---------------------------------------------------
00000001130558 439.80 04/30/03
---------------------------------------------------
00000001130559 434,843.12 06/20/03
---------------------------------------------------
00000001130576 23,089.00 06/21/03
---------------------------------------------------
00000001130577 17,144.50 06/21/03
---------------------------------------------------
00000001130578 150,726.00 06/21/03
---------------------------------------------------
00000001131844 705,056.00 06/20/03
---------------------------------------------------
00000001133202 30,964.50 05/05/03
---------------------------------------------------
00000003050227 295,000.00 07/16/03
---------------------------------------------------
16
