EXHIBIT 10.25
- CONFIDENITAL TREATMENT-
BRACKETED MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXHCANGE COMMISSION
The Terminal Marketing Company, Inc.
0 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Discreet Logic USA, Inc.
Xxxxxx, XX 00000
RE: MAXIMUM LIABILITY AGREEMENT
April 17, 1996
Gentlemen:
To induce The Terminal Marketing Company, Inc. ("Terminal") to finance
purchases by customers ("Customers") of Discreet Logic USA, Inc. ("DL") of [*]
of equipment and software from DL or its affiliates (or equipment manufactured
by others, with the prior written consent of DL) (the "Equipment"), whether by
finance lease, note and security agreement, conditional sales contract or other
chattel paper between Terminal and Customer (herein referred to as "Paper") DL
agrees to refer to Terminal all Customers requesting financing and Discreet
Logic, Inc. ("DLI") agrees to guaranty Terminal against loss under Paper up to
maximum cumulative aggregate liability of [*] over the term of this Agreement
(the "Maximum Liability") as determined pursuant to this Agreement according to
the provisions set forth below. Whenever referred to in this Agreement
"Remaining Maximum Liability" shall mean [*] of the outstanding principal amount
of leases financed by Terminal under the terms of this Agreement, subject to the
Maximum Liability and to Section 5 below. The Remaining Maximum Liability shall
be decreased by [*] of all principal payments made by any customer of Terminal
and is further increased or decreased in accordance with the terms of Section 5
below:
1. FINANCING; TERM
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(a) In consideration of Terminal extending financings to Customers, DL
shall refer to Terminal, all Customers requesting financing. Until Terminal has
advanced [*] to Customers, Terminal agrees to consider such financing requests
and to use its best efforts to offer each Customer a commercially reasonable
financing program within twenty-one (21) days of such Customer's application
therefor, but Terminal shall have the right to reject any Customer's application
if in Terminal's sole and absolute discretion the Customer's financial condition
or credit standing does not warrant the extension of credit.
Terminal shall use reasonable commercial credit procedures, as agreed
by Terminal and DL, in evaluating each lease application. DL may refer to any
other provider of
--------------------------
* Certain confidential information has been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for
Confidential Treatment.
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financing any Customer who has not been offered by Terminal a commercially
reasonable financing program within twenty-one (21) days of such Customer's
application therefor. The inclusion of any Customer Paper under this agreement
shall be subject to DL's prior written approval. Before such approval shall be
given, Terminal shall require of such Customer, as one of the conditions of
providing the Customer with financing, that Customer obtain insurance coverage
for the cost of replacing the financed Equipment with an insurer authorized to
do business in the state in which the Customer does business and the Equipment
will be located, covering Terminal against loss from all risks.
(b) If Terminal shall provide any Customer with financing under the program
established by this Agreement (the "Program"), DL shall not ship the applicable
Equipment to such Customer until Terminal has advised DL that Terminal has
satisfactorily filed UCC-1 financing statements against the Customer and taken
all other steps required by Terminal with respect to perfecting its security
interest in the Equipment, including all other documentation, and a written
acknowledgment from DL that such financing is provided to Customer by Terminal
under the Program.
(c) Terminal shall provide DL with copies of the Customer's lease financing
documents and latest financial statements once financing has been approved by
Terminal.
(d) The term of this Agreement shall be one (1) year, renewable
automatically for additional one (1) year periods. Notwithstanding the
foregoing, either DL, DLI or Terminal may terminate the obligations set forth in
Section 1 (a) above on 30 days written notice. Upon the giving of such notice,
no additional Paper shall be added to the program described herein, but all of
the other provisions hereof shall continue as applicable to the Paper then
included in the Program.
2. OBLIGATION TO REPURCHASE PAPER BRING CURRENT THE ACCOUNT
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(a) If a Customer has been in default under an item of Paper for sixty (60)
days, then Terminal may give notice to DL of such default and the nature of the
default and demand that DL purchase the Paper. Within fifteen (I 5) days after
the date such notice was received, DL shall give notice to Terminal advising
that it elects to either (i) repurchase the Paper as demanded by Terminal or
(ii) temporarily defer the purchase by bringing, and keeping the Customer's
account with Terminal current as provided below.
(b) If DL elects to purchase the Paper, then DL shall tender payment of the
purchase price for the Paper within five (5) days of the end of the said fifteen
(15) day period at which time Terminal shall deliver to DL those items set forth
in Section 2(f).
(c) If DL elects to keep the Customer's account with Terminal current
rather than purchase the Paper, then DL shall (i) pay to Terminal within five
(5) days of the end of said fifteen (15) day period all arrears (including late
charges) then due under the Paper and (ii) thereafter continue to timely pay to
Terminal all payments due from the Customer under the Paper on their respective
due dates until the earlier of (x) an account being more than 120 days late, at
which time DL shall purchase the Paper (except as provided below in this Section
2(c)),
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(y) the expiration of the term of the lease or other financing agreement
between Terminal and the Customer (the "Lease"), provided that all payments
under the Lease have been paid or (z) the liquidation of the Equipment subject
to the Lease. As used in this Agreement "liquidation" of Equipment shall mean
the repossession and sale or other disposition of the Equipment. After DL has
made any such payment to bring, the Customer's account with Terminal current,
then Terminal will forward to DL any payment subsequently made by, on behalf of
or for the account of the Customer in respect of such default. Notwithstanding
the first sentence of this Section 2(c), if the Equipment has been repossessed
by Terminal pursuant to Section 3(b) of this Agreement, but not yet liquidated,
DL shall have three (3) months within which either to remarket (in accordance
with Section 4) and liquidate the Equipment or to purchase the Paper from
Terminal. Terminal shall provide DL on a regular basis, but no less frequently
than monthly, with an aging status of all Customers and their accounts. Subject
to Section 7, any loss to Terminal created by liquidation of the Equipment prior
to purchase of the Paper by DL shall be paid by DL to Terminal in accordance
with Section 5 of this Agreement.
(d) During the term of each Lease or upon expiration thereof, Terminal will
use its best efforts to collect and to forward to DL any outstanding payment
from the Customer to reimburse DL for any payment made by DL to keep the
Customer's account with Terminal current. Any payments made by DL and remaining
unreimbursed by the Customer shall be added to amounts due from the Customer to
DL at the end of the Lease. Terminal shall either collect such amounts from the
Customer or, upon DL's purchase of the Paper, assign the Paper to DL together
with the Equipment and Terminal's perfected first security interest in such
Equipment, as provided in Section 2(f).
(e) The purchase price of any item of Paper purchased by DL hereunder shall
be Terminal's Book Value for such item of Paper on the date of such purchase,
which shall mean the then remaining monthly payments due under the item of Paper
less unearned interest calculated according to the Rule of 78's provided that DL
has kept the Customer's account with Terminal current as provided in Section
2(c). If not, then accrued but unpaid interest will be added to the purchase
price (after deducting from the purchase price all payments from the Customer
and any guarantors or insurers of the Paper or the Equipment) plus Terminal's
Repossession Expenses, if any, as defined below. Notwithstanding any provision
hereof, in no event shall the aggregate purchase price paid by DL for all Paper
purchased by DL under the Program, net of Net Proceeds (as defined in Section
5(d)), exceed the Maximum Liability.
(f) Upon the purchase by DL of any item of Paper from Terminal hereunder,
Terminal shall assign and convey to DL all Terminal's right, title and interest
in the Paper and the applicable Equipment (including all rights to receive
payments from Customers, guarantors, insurers or others) on an "as is, where is"
basis. Terminal shall assign and convey to DL at the time of purchase by DL a
valid and perfected first security interest in such Equipment except that
Terminal shall not be required to convey to DL a valid and perfected first
security interest in such Equipment if DL shipped such Equipment without first
having received the advice from Terminal approving shipment referred to in
Section 1(b). Terminal shall, however transfer such security as it does have to
DL. Terminal shall not be required to convey to DL a valid and perfected first
security interest in such equipment if the first security interest has been
impaired
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by the movement of equipment by a customer without notice to Terminal. Terminal
shall, however, transfer such security as it does have to DL. Terminal shall
have the obligation to refile or amend UCC-1 Financing Statements in the event
it has been advised that the Equipment has been moved to another location. The
lease shall provide that the Customer shall notify, Terminal if the Equipment is
to be or has been moved to another location.
(g) Paper shall be substantially in the form attached hereto or as
otherwise approved by DL.
3. REPOSSESSION
------------
(a) If DL elects to purchase the Paper pursuant to Section 2(b), then
Terminal shall use its best efforts to obtain legal title to the Equipment and
make the Equipment legally available for physical repossession by DL, all at
Terminal's cost and expense. Upon obtaining legal title to any Equipment, and
making the Equipment legally available for physical repossession by DL, Terminal
shall promptly provide notice thereof to DL. Thereupon DL, as Terminal's agent
and at Terminal's cost and expense, shall take physical possession of the
Equipment, and remove, insure and transport the Equipment to DL's facility.
Thereafter DL shall undertake its remarketing obligations set forth in Section 4
below.
(b) If DL elects to keep the Customer's account with Terminal current
pursuant to Section 2(c), then until such time as DL has purchased the Paper,
Terminal shall use its best efforts to collect payments due from the Customer
and to obtain legal title to the Equipment and make the Equipment legally
available for physical repossession by DL, and notify DL thereof, all as set
forth in Section 3(a) above. Such efforts by Terminal shall include normal
collection practices, including service of demands and other communication upon
the Customer. Terminal's obligation to use its best efforts to repossess the
Equipment is qualified to the extent that Terminal shall not be required to
incur expenses with respect to such repossession if the equipment is destroyed
or missing or if Terminal reasonably determines that upon liquidation, the
proceeds of liquidation will not exceed the cost of repossession and
liquidation. In such event, Terminal shall advise DL of its decision and if DL
agrees, Terminal need take no further steps with respect to repossession and DL
shall continue to be obliged to repurchase the Paper at the end of the 120 day
period referred to in Section 2(c) above. In addition, if DL disagrees with
Terminal's determination not to take further steps towards repossession of the
Equipment, DL may repurchase the Paper. If the Equipment is destroyed, missing
or rendered unsaleable by any cause covered by the relevant insurance policy
Terminal shall make a claim under such policy. Any monies received in respect
of such claims shall be paid to DL up to an amount equal to the total of all
payments made by DL to Terminal under this Agreement relating to the destroyed,
missing or damaged Equipment; all such monies in excess of such amount shall be
divided equally between Terminal and DL.
As used herein, "Terminal's Repossession Expenses" shall mean (i)
reasonable attorney fees incurred by Terminal in obtaining legal title to any
Equipment and making the Equipment legally available for physical repossession
by DL under the Paper as a result of the Customer's default, and (ii) expenses
reasonably incurred by DL in taking physical possession of
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the Equipment and removing, insuring and transporting the Equipment to DL's
facility. After delivery of the Equipment to DL's facility, DL shall undertake
its remarketing obligation set forth in Section 4 below. Terminal shall notify
DL of the commencement of any action to enforce its rights under any Paper and
the legal counsel selected to prosecute such action. If DL objects to any such
counsel, it shall have the right to purchase the applicable Paper.
4. REMARKETING.
-----------
After Terminal obtains possession or the legal right to possession of the
Equipment subject to any defaulted or expired Lease, DL shall forthwith, at its
cost and expense, store, insure, repaid, refurbish (but not improve or upgrade
beyond its original condition) and liquidate the Equipment at public or private
sale on an "as is, where is" basis at the best bona fide price and terms
available, which shall be subject to the prior approval of Terminal, which
approval Terminal shall not unreasonably withhold or delay. DL shall not be
required to incur any such expenses with respect to remarketing if DL reasonably
determines that upon liquidation, the proceeds of liquidation will not exceed
the cost of remarketing and liquidation. If the liquidation occurs prior to DL
purchasing the Paper, then DL shall act as Terminal's agent in effecting such
liquidation but only after Terminal has given proper notice of liquidation to
the Customer and otherwise complied with the provisions of the Uniform
Commercial Code. At Terminal's option, Terminal may participate in the conduct
of such liquidation (prior to DL's purchase) to ensure legal compliance.
Subject to Section 5, there shall be no fee or commission for liquidating
the Equipment. DL shall use its best efforts to sell the Equipment, such
efforts to be substantially similar to the promotional and sales efforts given
by it to the sale of its other used equipment available for sale. In the event
that DL does not liquidate any item of Equipment within three (3) months of the
commencement of its remarketing efforts with respect thereto, then DL shall,
upon Terminal's request, deliver such Equipment to Terminal, and Terminal shall
thereafter use its best efforts as DL's agent to liquidate the Equipment.
5. COMPUTATION OF LOSS, ADJUSTMENT OF REMAINING MAXIMUM LIABILITY AND REFUND
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(a) DL's remaining Maximum Liability on the date hereof is Zero. DL's
remaining Maximum Liability shall be increased by [*] of the principal amount
(invoiced cost of Equipment) financed in connection with any Paper created by
Terminal pursuant to this agreement after the date hereof, including financings
of [*] provided that DL's Remaining Maximum Liability is reduced pursuant to
Sections 5(b), (c), (d), (e) and (f).
(b) As used herein, "Principal Payments" shall mean that portion of the
payments made by Customer, DL, DLI, or other person to Terminal under an item of
Paper, which is applied in reduction of principal under the Paper after
application to accrued interest (calculated according to the Rule of 78s), late
charges or other sums owing under the Paper. All Principal Payments
--------------------------
* Certain confidential information has been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for
Confidential Treatment.
-6-
received by Terminal with respect to any Paper which is not in default shall
reduce DL's Remaining Maximum Liability by [*] of such payment. If any Paper
shall be in default, DL shall not receive any credit against the Remaining
Maximum Liability for payments with respect to such Paper until the liquidation
of the Equipment covered by such Paper.
(c) Upon the completion of the liquidation of the Equipment covered by any
item of Paper, DL's Remaining Maximum Liability shall be reduced by the amount
of all payments made by DL to bring and keep current such Paper. This reduction
for payments made by DL, if any, shall be in addition to credits applicable
under Sections (d) or (e) below.
(d) If Equipment is liquidated after purchase of the applicable Paper by
DL, then the amount of DL's Remaining Maximum Liability shall be reduced by the
excess, if any, of the purchase price paid by DL to Terminal for such Paper
above the net proceeds (net of DL's remarketing expenses incurred with respect
to such liquidation, up to a maximum of [*] of the proceeds of any such
liquidation) (the "Net Proceeds") obtained by DL or Terminal, as applicable,
upon liquidation of the Equipment. If, on the other hand, the Net Proceeds
exceed the purchase price paid by DL, then such excess, less only any surplus
the Customer may be entitled to as a matter of law shall be divided equally and
one-half shall be paid to each of Terminal and DL.
(e) If Equipment is liquidated without DL having purchased the applicable
Paper, then Terminal's loss shall be the amount of the excess if any, of (i) the
sum of Terminal's then Book Value plus Terminal's Repossession Expenses for such
Equipment over (ii) the Net Proceeds received by Terminal from DL's liquidation
of the Equipment. Subject to Section 7, DL shall pay to Terminal the amount of
Terminal's said loss up to the amount of the Remaining Maximum Liability within
five (5) days after the liquidation along with the liquidation proceeds, and
Terminal shall assign and convey to DL all Terminal's right, title and interest
in the Paper and the applicable Equipment (including all rights to receive
payments from Customers, guarantors, insurers or others) on an "as is, where is"
basis. Upon payment thereof, the Remaining Maximum Liability shall be reduced
by the amount of Terminal's loss paid by DL to Terminal. If, on the other hand,
the Net Proceeds received by Terminal from the liquidation of such Equipment
exceed the sum of Terminal's Book Value plus Terminal's Repossession Expenses
for such Equipment, then such excess, less only any surplus the Customer may be
entitled to as a matter of law, shall be divided equally and one-half shall be
paid to each of Terminal and DL.
(f) In the event that legal possession of the Equipment cannot be made by
Terminal and DL is required to purchase the Paper, then DL's Remaining Maximum
Liability will be reduced by the amount paid by DL to repurchase the Paper.
--------------------------
* Certain confidential information has been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for
Confidential Treatment.
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6. GUARANTEE.
---------
Upon the purchase of any items of Paper by DL or upon DL's payment of
Terminal's loss computed pursuant to Section 5(e), Terminal shall assign to DL
all of Terminal's right under guarantees, insurance policies and other documents
related to such Paper. All amounts received by DL from guarantors of Paper
purchased by DL shall be added to the Remaining Maximum Liability upon the
liquidation of such Paper, whether such amounts were received prior to or after
DL's purchase of the Paper.
7. EXHAUSTION OF REMAINING LIABILITY.
---------------------------------
(a) Notwithstanding any other provision of this Agreement, it is expressly
agreed and acknowledged by Terminal and DL that DL shall have no liability or
obligation to make any further payment to Terminal after such time as the
cumulative aggregate of all payment made by DL to Terminal under the Program or
in accordance with this Agreement (for purchase of Paper, payment of Terminal's
loss, payment of expenses or otherwise) shall be equal to the Maximum Liability.
If, upon the completion of any Equipment liquidation, the then
Remaining Maximum Liability is exhausted by the credits resulting from the
computation upon such liquidation, then Terminal shall promptly refund to DL the
amounts which, had the Remaining Maximum Liability not be exhausted, would have
been applied as an additional reduction in the Remaining Maximum Liability
pursuant to Section 5 with respect to the Paper whose Equipment was liquidated.
Terminal shall provide DL with quarterly statements of Remaining Maximum
Liability for the term of this Agreement.
(b) If at the time of the exhaustion of the Remaining Maximum Liability
there is an item of defaulted Paper which has not been liquidated and which DL
has not purchased (and was not required to purchase), then until a new Remaining
Maximum Liability is created, DL shall have no further obligation to keep such
Paper current and all payments made by DL with respect to such Paper shall be
promptly reimbursed by Terminal to DL upon liquidation of the applicable
Equipment (provided there continues to be no Remaining Maximum Liability at the
time of such liquidation).
(c) Upon the exhaustion of the Remaining Maximum Liability, DL shall have
no further obligation with respect to any item of Paper then in default or which
thereafter goes into default under this Agreement until a new Remaining Maximum
Liability is created, except that if at the time the Remaining Maximum Liability
is exhausted there are one or more items of defaulted Paper which DL has
previously purchased from Terminal for which the Equipment has not been
liquidated, then DL shall continue to be responsible for the liquidation of same
and upon such liquidation (provided there continues to be no Remaining Maximum
Liability at the time of such liquidation), the amounts which DL would otherwise
be entitled to as reduction in the Remaining Maximum Liability pursuant to
Section 5 shall be paid to DL by Terminal promptly after such computation.
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(d) It is recognized that the references above in subsections 7(b) and (c)
to a "new" Remaining Maximum Liability are not intended to increase DL's Maximum
Liability above [*] or to increase the Remaining Maximum Liability above the
amount to which it is reduced pursuant to Sections 5(b), (c), (d), (e) and (f)
as a result of payments received by Terminal from any source including DL.
8. PERIODIC REVIEW.
---------------
Terminal agrees to review annually the performance of Customers under the
Paper and, in its sole discretion, to decrease the amount of the then Remaining
Maximum Liability or increase the amount of financing Terminal is prepared to
give to Customers.
9. EXTENSIONS.
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Terminal or its assigns shall not, without DL's prior written consent,
grant any Customer extensions of time for payment, moratoria or other
indulgences under the Paper. If DL does not approve, DL has the option to
purchase the Paper.
10. INFORMATION.
-----------
DL and Terminal shall each keep the other fully informed regarding the
status of any repossession or remarketing for which it is responsible, provided
however, that in no event shall any failure by either party to keep the other
party informed, relieve such other party of any liability hereunder.
11. ASSIGNMENT.
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Terminal shall have the right to assign Paper issued pursuant to this
Agreement and rights with respect to such Paper under this Agreement in whole or
in part, which rights shall inure to the benefit of such assignee and any
subsequent assignees, provided that any assignee which is a subsidiary or
affiliate of Terminal shall expressly assume in writing Terminal's obligations
under this Agreement. In the event of any such assignment, the references to
"Terminal", "Terminal's Book Value" and the like shall be deemed to refer to
such assignee, its book value and the like. DLI agrees that its acknowledgment
to Terminal that a particular item of Paper constitutes Paper under this
Agreement may be relied upon by an assignee to whom such Paper is ultimately
assigned and such assignee shall have whatever rights and remedies (but, unless
such assignee is a subsidiary or affiliate of Terminal, none of the obligations,
which shall remain with Terminal) that Terminal may have hereunder with respect
to such Paper. DL and DLI shall not assign this Agreement except upon the prior
consent of Terminal; a merger, consolidation or other corporate combination
shall not constitute an assignment by DL provided the assignee or surviving
entity has a credit worthiness equal to or greater DL's and DLI's.
--------------------------
* Certain confidential information has been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for
Confidential Treatment.
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12. THIRD PARTY CHATTEL PAPER.
-------------------------
It is recognized that Terminal may from time to time with the prior written
consent of DL, purchase or refinance chattel paper between third persons and
customers by which such third persons have purchased or financed DL Equipment
from DL. Such third party chattel paper, when purchased by Terminal, shall
constitute Paper under this Agreement for all purposes with the same effect as
if such chattel paper was directly between Terminal and Customers and shall be
included within the [*] worth of financing by Terminal described in the
Agreement.
13. FINANCIAL STATEMENTS.
--------------------
Each party shall furnish the other unaudited semi-annual financial
statements within (60) days after the end of the first six months of each fiscal
year and a certified annual Financial Statement within ninety (90) days after
the close of its fiscal year, all of which shall be prepared in accordance with
generally accepted accounting principles. All such financial information shall
be confidential information and will not be disclosed to others by either party
without the consent of the other.
14. MISCELLANEOUS.
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(a) This Agreement constitutes the entire understanding between the parties
and supersedes any prior oral or written representation or agreement. This
Agreement cannot be changed, modified or discharged orally, but only if
consented to in writing signed by the parties hereto.
If any provision of the Agreement, of the application thereof to any
circumstance, shall, for any reason and to any extent, be invalid or
unenforceable, then the remainder of this Agreement and the application of such
provision to other circumstances shall not be affected thereby, but rather,
shall be enforced to the greatest extent permitted by law. All headings of the
Sections of this Agreement have been inserted for convenience of references
only, are not to be considered a part of this agreement and shall in no way
effect the interpretation of any of the provisions of this Agreement.
(b) Failure to insist upon strict compliance with any of the terms,
covenants, or conditions hereof shall not be deemed a waiver of such terms,
covenant or conditions, nor shall any waiver or relinquishment of any right or
power hereunder at any one time or more time be deemed a waiver or
relinquishment of such rights or power at any other time or times.
(c) All notices provided for herein shall be in writing and delivered
personally or by certified mail return receipt requested to the parties at their
addresses set forth above or such other addresses as may be designated by
similar notice. Notice shall be deemed given upon such
--------------------------
* Certain confidential information has been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for
Confidential Treatment.
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personal delivery or upon deposit with the United States Postal Service properly
addressed with the proper postage affixed.
(d) This Agreement shall be interpreted under and governed by the laws of
the State of New York.
Very truly yours,
DISCREET LOGIC USA, INC.
By: /s/ Xxxxxxxx Xxxxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxxxx
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Title: Corporate Controller
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Date: April 17, 1996
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DISCREET LOGIC, INC.
By: /s/ Xxxxxxxx Xxxxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxxxx
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Title: Corporate Controller
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Date: April 17, 1996
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AGREED: THE TERMINAL MARKETING COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxxxx
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Title: President
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Date: April 30, 1996
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