EXHIBIT 10.33
CREDIT AGREEMENT
THIS AGREEMENT is entered into as of November 1, 2002, by and between
FAIR, XXXXX AND COMPANY, INCORPORATED, a Delaware corporation ("Borrower"), and
XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Bank").
RECITALS
Borrower has requested that Bank extend or continue credit to Borrower
as described below, and Bank has agreed to provide such credit to Borrower on
the terms and conditions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Bank and Borrower hereby agree as follows:
ARTICLE I
CREDIT TERMS
SECTION 1.1. LINE OF CREDIT.
(a) Line of Credit. Subject to the terms and conditions of this
Agreement, Bank hereby agrees to make advances to Borrower from time to time up
to and including February 1, 2004, not to exceed at any time the aggregate
principal amount of Fifteen Million Dollars ($15,000,000.00) ("Line of Credit"),
the proceeds of which shall be used to finance Borrower's working capital
requirements. Borrower's obligation to repay advances under the Line of Credit
shall be evidenced by a promissory note substantially in the form of EXHIBIT A
attached hereto ("Line of Credit Note"), all terms of which are incorporated
herein by this reference.
(b) Letter of Credit Subfeature. As a subfeature under the Line of
Credit, Bank agrees from time to time during the term thereof to issue or cause
an affiliate to issue commercial and standby letters of credit for the account
of Borrower to finance general purpose (each, a "Letter of Credit" and
collectively, "Letters of Credit"); provided however, that the aggregate undrawn
amount of all outstanding Letters of Credit shall not at any time exceed Five
Million Dollars ($5,000,000.00). The form and substance of each Letter of Credit
shall be subject to approval by Bank, in its sole discretion. Each Letter of
Credit shall be issued for a term not to exceed three hundred sixty-five (365)
days, as designated by Borrower; provided however, that no Letter of Credit
shall have an expiration date subsequent to the maturity date of the Line of
Credit. The undrawn amount of all Letters of Credit shall be reserved under the
Line of Credit and shall not be available for borrowings thereunder. Each Letter
of Credit shall be subject to the additional terms and conditions of the Letter
of Credit agreements, applications and any related documents required by Bank in
connection with the issuance thereof. Each drawing paid under a Letter of Credit
shall be deemed an advance under the Line of Credit and shall be repaid by
Borrower in accordance with the terms and conditions of this Agreement
applicable to such advances; provided however, that if advances under the Line
of Credit are not available, for any reason, at the time any drawing is paid,
then Borrower shall immediately pay to Bank the full amount drawn, together with
interest thereon from the date such drawing is paid to the date such amount is
fully repaid by Borrower, at the rate of interest applicable to advances under
the Line of Credit. In such event Borrower agrees that Bank, in its sole
discretion, may debit any account maintained by Borrower with Bank for the
amount of any such drawing.
(c) Borrowing and Repayment. Borrower may from time to time during
the term of the Line of Credit borrow, partially or wholly repay its outstanding
borrowings, and reborrow, subject to all of the limitations, terms and
conditions contained herein or in the Line of Credit Note; provided however,
that the total outstanding borrowings under the Line of Credit shall not at any
time exceed the maximum principal amount available thereunder, as set forth
above.
SECTION 1.2. FOREIGN EXCHANGE FACILITY.
(a) Foreign Exchange Facility. Subject to the terms and conditions
of this Agreement, Bank hereby agrees to make available to Borrower a facility
(the "Foreign Exchange Facility") under which Bank, from time to time up to and
including February 1, 2004, will enter into foreign exchange contracts for the
account of Borrower for the purchase and/or sale by Borrower in United States
dollars of Euro, Pound, Japanese yen, Australian dollars, Rand, Canadian
dollars, Mexican Peso, Singapore dollars and Brazilian real; provided however,
that the maximum amount of all outstanding foreign exchange contracts shall not
at any time exceed an aggregate of Twenty Million United States Dollars
(US$20,000,000.00). No foreign exchange contract shall be executed for a term
which extends beyond February 1, 2004. Borrower shall have a "Delivery Limit"
under the Foreign Exchange Facility not to exceed at any time the aggregate
principal amount of Four Million United States Dollars (US$4,000,000.00), which
Delivery Limit reflects the maximum principal amount of Borrower's foreign
exchange contracts which may mature during any two (2) day period. All foreign
exchange transactions shall be subject to the additional terms of a Foreign
Exchange Agreement, substantially in the form of EXHIBIT B attached hereto
("Foreign Exchange Agreement"), all terms of which are incorporated herein by
this reference.
(b) Settlement. Each foreign exchange contract under the Foreign
Exchange Facility shall be settled on its maturity date by Bank's debit to any
deposit account maintained by Borrower with Bank.
SECTION 1.3. INTEREST/FEES.
(a) Interest. The outstanding principal balance of the Line of
Credit shall bear interest, and the amount of each drawing paid under any Letter
of Credit shall bear interest from the date such drawing is paid to the date
such amount is fully repaid by Borrower, at the rate of interest set forth in
the Line of Credit Note.
(b) Computation and Payment. Interest shall be computed on the basis
of a 360-day year, actual days elapsed. Interest shall be payable at the times
and place set forth in each promissory note or other instrument or document
required hereby.
(c) Commitment Fee. Borrower shall pay to Bank a non-refundable
commitment fee for the Line of Credit equal to Seven Thousand Five Hundred
Dollars ($7,500.00), which fee shall be due and payable in full upon execution
of this Agreement.
(d) Commercial Letter of Credit Fees. Borrower shall pay to Bank
fees upon the issuance of each Commercial Letter of Credit, upon the payment or
negotiation of each drawing under any Commercial Letter of Credit and upon the
occurrence of any other activity with respect to any Commercial Letter of Credit
(including without limitation, the transfer, amendment or cancellation of any
Commercial Letter of Credit) determined in accordance with Bank's standard fees
and charges then in effect for such activity.
(e) Standby Letter of Credit Fees. Borrower shall pay to Bank (i)
fees upon the issuance of each Standby Letter of Credit equal to one percent
(1%) per annum (computed on the basis of a 360-day year, actual days elapsed) of
the face amount thereof, and (ii) fees upon the payment or negotiation of each
drawing under any Standby Letter of Credit and fees upon the occurrence of any
other activity with respect to any Standby Letter of Credit (including without
limitation, the transfer, amendment or cancellation of any Standby Letter of
Credit) determined in accordance with Bank's standard fees and charges then in
effect for such activity.
SECTION 1.4. COLLECTION OF PAYMENTS. Borrower authorizes Bank to collect
all interest and fees due under the Line of Credit by charging Borrower's
deposit account number 4945-010403 with Bank, or any other deposit account
maintained by Borrower with Bank, for the full amount thereof. Should there be
insufficient funds in any such deposit account to pay all such sums when due,
the full amount of such deficiency shall be immediately due and payable by
Borrower.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties to Bank,
which representations and warranties shall survive the execution of this
Agreement and shall continue in full force and effect until the full and final
payment, and satisfaction and discharge, of all obligations of Borrower to Bank
subject to this Agreement.
SECTION 2.1. LEGAL STATUS. Borrower is a corporation, duly organized and
existing and in good standing under the laws of the State of Delaware, and is
qualified or licensed to do business (and is in good standing as a foreign
corporation, if applicable) in all jurisdictions in which such qualification or
licensing is required or in which the failure to so qualify or to be so licensed
could have a material adverse effect on Borrower.
SECTION 2.2. AUTHORIZATION AND VALIDITY. This Agreement and each
promissory note, contract, instrument and other document required hereby or at
any time hereafter delivered to Bank in connection herewith (collectively, the
"Loan Documents") have been duly authorized, and upon their execution and
delivery in accordance with the provisions hereof will constitute legal, valid
and binding agreements and obligations of Borrower or the party which executes
the same, enforceable in accordance with their respective terms.
SECTION 2.3. NO VIOLATION. The execution, delivery and performance by
Borrower of 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 any breach of or default under any contract,
obligation, indenture or other instrument to which Borrower is a party or by
which Borrower may be bound.
SECTION 2.4. LITIGATION. There are no pending, or to the best of
Borrower's knowledge threatened, actions, claims, investigations, suits or
proceedings by or before any governmental authority, arbitrator, court or
administrative agency which could have a material adverse effect on the
financial condition or operation of Borrower other than those disclosed by
Borrower to Bank in writing prior to the date hereof.
SECTION 2.5. CORRECTNESS OF FINANCIAL STATEMENT. The financial statement
of Borrower dated June 30, 2002, a true copy of which has been delivered by
Borrower to Bank prior to the date hereof, (a) is complete and correct and
presents fairly the financial condition of Borrower, (b) discloses all
liabilities of Borrower that are required to be reflected or reserved against
under generally accepted accounting principles, whether liquidated or
unliquidated, fixed or contingent, and (c) has been prepared in accordance with
generally accepted accounting principles consistently applied. Since the date of
such financial statement there has been no material adverse change in the
financial condition of Borrower, nor has Borrower mortgaged, pledged, granted a
security interest in or otherwise encumbered any of its assets or properties
except in favor of Bank or as otherwise permitted by Bank in writing.
SECTION 2.6. INCOME TAX RETURNS. Borrower has no knowledge of any
pending assessments or adjustments of its income tax payable with respect to any
year.
SECTION 2.7. NO SUBORDINATION. There is no agreement, indenture,
contract or 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.
SECTION 2.8. PERMITS, FRANCHISES. Borrower possesses, and will hereafter
possess, all permits, consents, approvals, franchises and licenses required and
rights to all trademarks, trade names, patents, and fictitious names, if any,
necessary to enable it to conduct the business in which it is now engaged in
compliance with applicable law.
SECTION 2.9. ERISA. Borrower is in compliance in all material respects
with all 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 generally accepted accounting principles.
SECTION 2.10. OTHER OBLIGATIONS. Borrower is not in default on any
obligation for borrowed money, any purchase money obligation or any other
material lease, commitment, contract, instrument or obligation.
SECTION 2.11. ENVIRONMENTAL MATTERS. Except as disclosed by Borrower to
Bank in writing prior to the date hereof, Borrower is 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 of Borrower'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, and the Federal Toxic Substances Control Act, as any of the same may be
amended, modified or supplemented from time to time. None of the operations of
Borrower 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.
Borrower has no material contingent liability in connection with any release of
any toxic or hazardous waste or substance into the environment.
ARTICLE III
CONDITIONS
SECTION 3.1. CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation
of Bank to extend any credit contemplated by this Agreement is subject to the
fulfillment to Bank's satisfaction of all of the following conditions:
(a) Approval of Bank Counsel. All legal matters incidental to the
extension of credit by Bank shall be satisfactory to Bank's counsel.
(b) Documentation. Bank shall have received, in form and substance
satisfactory to Bank, each of the following, duly executed:
(i) This Agreement and each promissory note or other
instrument or document required hereby.
(ii) Corporate Resolution: Borrowing.
(iii) Certificate of Incumbency.
(iv) Loan Disbursement Order.
(v) Such other documents as Bank may require under any other
Section of this Agreement.
(c) Financial Condition. There shall have been no material adverse
change, as determined by Bank, in the financial condition or business of
Borrower, nor any material decline, as determined by Bank, in the market value
of any collateral required hereunder or a substantial or material portion of the
assets of Borrower.
(d) Insurance. Borrower shall have delivered to Bank evidence of
insurance coverage on all Borrower's property, in form, substance, amounts,
covering risks and issued by companies satisfactory to Bank, and where required
by Bank, with loss payable endorsements in favor of Bank.
SECTION 3.2. CONDITIONS OF EACH EXTENSION OF CREDIT. The obligation of
Bank to make each extension of credit requested by Borrower hereunder shall be
subject to the fulfillment to Bank's satisfaction of each of the following
conditions:
(a) Compliance. The representations and warranties contained herein
and in each of the other Loan Documents shall be true on and as of the date of
the signing of this Agreement and on the date of each extension of credit by
Bank pursuant hereto, with the same effect as though such representations and
warranties had been made on and as of each such date, and on each such date, no
Event of Default as defined herein, and no condition, event or act which with
the giving of notice or the passage of time or both would constitute such an
Event of Default, shall have occurred and be continuing or shall exist.
(b) Documentation. Bank shall have received all additional documents
which may be required in connection with such extension of credit.
ARTICLE IV
AFFIRMATIVE COVENANTS
Borrower covenants that so long as Bank remains committed to extend
credit to Borrower pursuant hereto, or any liabilities (whether direct or
contingent, liquidated or unliquidated) of Borrower to Bank under any of the
Loan Documents remain outstanding, and until payment in full of all obligations
of Borrower subject hereto, Borrower shall, unless Bank otherwise consents in
writing:
SECTION 4.1. PUNCTUAL PAYMENTS. Punctually pay all principal, interest,
fees or other liabilities due under any of the Loan Documents at the times and
place and in the manner specified therein.
SECTION 4.2. ACCOUNTING RECORDS. Maintain adequate books and records in
accordance with generally accepted accounting principles consistently applied,
and permit any representative of Bank, at any reasonable time, to inspect, audit
and examine such books and records, to make copies of the same, and to inspect
the properties of Borrower.
SECTION 4.3. FINANCIAL STATEMENTS. Provide to Bank all of the following,
in form and detail satisfactory to Bank:
(a) not later than 90 days after and as of the end of each fiscal
year, an audited financial statement of Borrower, prepared by a certified public
accountant acceptable to Bank, to include a balance sheet, income statement and
statement of cash flow together with all supporting footnotes;
(b) not later than 45 days after and as of the end of each fiscal
quarter, a financial statement of Borrower, prepared by Borrower, to include a
balance sheet and income statement;
(c) not later than 30 days before the end of the each preceding
fiscal year, a projection for the forthcoming fiscal year, prepared by Borrower;
(d) from time to time such other information as Bank may reasonably
request.
SECTION 4.4. COMPLIANCE. Preserve and maintain all licenses, permits,
governmental approvals, rights, privileges and franchises necessary for the
conduct of its business; and comply with the provisions of all documents
pursuant to which Borrower is organized and/or which govern Borrower's continued
existence and with the requirements of all laws, rules, regulations and orders
of any governmental authority applicable to Borrower and/or its business.
SECTION 4.5. INSURANCE. Maintain and keep in force insurance of the
types and 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 carried with companies and in amounts satisfactory to Bank, and
deliver to Bank from time to time at Bank's request schedules setting forth all
insurance then in effect.
SECTION 4.6. FACILITIES. Keep all properties useful or necessary to
Borrower's business in good repair and condition, and from time to time make
necessary repairs, renewals
and replacements thereto so that such properties shall be fully and efficiently
preserved and maintained.
SECTION 4.7. TAXES AND OTHER LIABILITIES. Pay and discharge when due any
and all indebtedness, obligations, assessments and taxes, both real or personal,
including without limitation federal and state income taxes and state and local
property taxes and assessments, except such (a) 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 Bank's satisfaction, for eventual payment thereof in the
event Borrower is obligated to make such payment.
SECTION 4.8. LITIGATION. Promptly give notice in writing to Bank of any
litigation pending or threatened against Borrower.
SECTION 4.9. FINANCIAL CONDITION. Maintain Borrower's financial
condition as follows using generally accepted accounting principles consistently
applied and used consistently with prior practices (except to the extent
modified by the definitions herein):
(a) Total Liabilities divided by Tangible Net Worth not at any time
greater than 0.30 to 1.0, with "Total Liabilities" defined as the aggregate of
current liabilities and non-current liabilities less subordinated debt, and with
"Tangible Net Worth" defined as the aggregate of total stockholders' equity plus
subordinated debt less any intangible assets.
(b) Maintain in the United States of America, domestically,
unencumbered liquid assets (defined as cash, cash equivalents and/or public
traded/quoted marketable securities acceptable to Bank in its sole discretion)
with an aggregate fair market value not at any time les than $50,000,000.00.
(c) Net profit after taxes not less than $1.00 on a quarterly basis,
with one time software development costs expensed as a result of an allowable
acquisition added back to net profit after taxes, determined as of each fiscal
quarter end.
SECTION 4.10. NOTICE TO BANK. Promptly (but in no event more than five
(5) days after the occurrence of each such event or matter) give written notice
to Bank in reasonable detail of: (a) the occurrence of any Event of Default, or
any condition, event or act which with the giving of notice or the passage of
time or both would constitute an Event of Default; (b) any change in the name or
the organizational structure of Borrower; (c) the occurrence and nature of any
Reportable Event or Prohibited Transaction, each as defined in ERISA, or any
funding deficiency with respect to any Plan; or (d) any termination or
cancellation of any insurance policy which Borrower is required to maintain, or
any uninsured or partially uninsured loss through liability or property damage,
or through fire, theft or any other cause affecting Borrower's property.
ARTICLE V
NEGATIVE COVENANTS
Borrower further covenants that so long as Bank remains committed to
extend credit to Borrower pursuant hereto, or any liabilities (whether direct or
contingent, liquidated or unliquidated) of Borrower to Bank under any of the
Loan Documents remain outstanding, and
until payment in full of all obligations of Borrower subject hereto, Borrower
will not without Bank's prior written consent:
SECTION 5.1. USE OF FUNDS. Use any of the proceeds of any credit
extended hereunder except for the purposes stated in Article I hereof.
SECTION 5.2. CAPITAL EXPENDITURES. Make any additional investment in
fixed assets in any fiscal year in excess of an aggregate of $100,000,000.00.
SECTION 5.3. OTHER INDEBTEDNESS. Create, incur, assume or permit to
exist any indebtedness or liabilities resulting from borrowings, loans or
advances, whether secured or unsecured, matured or unmatured, liquidated or
unliquidated, joint or several, except (a) the liabilities of Borrower to Bank,
and (b) any other liabilities of Borrower existing as of, and disclosed to Bank
prior to, the date hereof.
SECTION 5.4. MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into or
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: (i) in the ordinary course of its business, and (ii) any merger
or acquisition that does not require more than 75% of Borrower's cash or (iii)
90% of the consideration paid for any acquisition is with Borrower's stock and
Borrower is the surviving entity of any such acquisition or merger.
SECTION 5.5. GUARANTIES. Guarantee or become liable in any way as
surety, endorser (other than as endorser of negotiable instruments for deposit
or collection in the ordinary course of business), accommodation endorser or
otherwise for, nor pledge or hypothecate any assets of Borrower as security for,
any liabilities or obligations of any other person or entity, except any of the
foregoing in favor of Bank.
SECTION 5.6. LOANS, ADVANCES, INVESTMENTS. Make any loans or advances to
or investments in any person or entity, except any of the foregoing existing as
of, and disclosed to Bank prior to, the date hereof, and additional investments
in treasury stock purchases not to exceed in any fiscal year: (i) shall not
exceed an aggregate of $300,000,000.00.
SECTION 5.7. DIVIDENDS, DISTRIBUTIONS. Declare or pay any dividend or
distribution either in cash, stock or any other property on Borrower's stock now
or hereafter outstanding, nor redeem, retire, repurchase or otherwise acquire
any shares of any class of Borrower's stock now or hereafter outstanding; except
dividends shall be allowed: (i) not to exceed 50% of Borrower's cash, and (ii)
not to exceed the aggregate of $10,000,000.00 in any fiscal year.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. The occurrence of any of the following shall constitute an
"Event of Default" under this Agreement:
(a) Borrower shall fail to pay when due any principal, interest,
fees or other amounts payable under any of the Loan Documents.
(b) Any financial statement or certificate furnished to Bank in
connection with, or any representation or warranty made by Borrower or any other
party under this Agreement or any other Loan Document shall prove to be
incorrect, false or misleading in any material respect when furnished or made.
(c) Any default in the performance of or compliance with any
obligation, agreement or other provision contained herein or in any other Loan
Document (other than those referred to in subsections (a) and (b) above), and
with respect to any such default which by its nature can be cured, such default
shall continue for a period of twenty (20) days from its occurrence.
(d) Any default in the payment or performance of any obligation,
including but not limited to the August/September 2001 convertible subordinated
notes (the 2001 notes), or any defined event of default, under the terms of any
contract or instrument (other than any of the Loan Documents) pursuant to which
Borrower has incurred any debt or other liability to any person or entity,
including Bank.
(e) The filing of a notice of 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.
(f) Borrower shall become insolvent, or shall suffer or consent to
or apply for the appointment of a receiver, trustee, custodian or liquidator of
itself or any of its property, or shall generally fail to pay its debts as they
become due, or shall make a general assignment for the benefit of creditors;
Borrower shall file a voluntary petition in bankruptcy, or seeking
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; or any involuntary petition or proceeding 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, or Borrower shall file an answer admitting the jurisdiction of the
court and the material allegations of any involuntary petition; or Borrower
shall be adjudicated a bankrupt, or an order for relief shall be entered against
Borrower 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.
(g) There shall exist or occur any event or condition which Bank in
good faith believes impairs, or is substantially likely to impair, the prospect
of payment or performance by Borrower of its obligations under any of the Loan
Documents.
(h) The dissolution or liquidation of Borrower; or Borrower, or any
of its directors, stockholders or members, shall take action seeking to effect
the dissolution or liquidation of Borrower.
(i) Any change in ownership during the term of this Agreement of an
aggregate of twenty-five percent (25%) or more of the common stock of Borrower.
SECTION 6.2. REMEDIES. Upon the occurrence of any Event of Default: (a)
all indebtedness of Borrower under each of the Loan Documents, any term thereof
to the contrary
notwithstanding, shall at Bank's option and without notice become immediately
due and payable without presentment, demand, protest or notice of dishonor, all
of which are hereby expressly waived by each Borrower; (b) the obligation, if
any, of Bank to extend any further credit under any of the Loan Documents shall
immediately cease and terminate; and (c) Bank shall have all rights, powers and
remedies available under each of the Loan Documents, or accorded by law,
including without limitation the right to resort to any or all security for any
credit subject hereto and to exercise any or all of the rights of a beneficiary
or secured party pursuant to applicable law. All rights, powers and remedies of
Bank may be exercised at any time by 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.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. NO WAIVER. No delay, failure or discontinuance of Bank in
exercising any right, 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, permit, consent or approval of any
kind by Bank of any breach of or default under any of the Loan Documents must be
in writing and shall be effective only to the extent set forth in such writing.
SECTION 7.2. NOTICES. All notices, requests and demands which any party
is required or may desire to give to any other party under any provision of this
Agreement must be in writing delivered to each party at the following address:
BORROWER: FAIR, XXXXX AND COMPANY, INCORPORATED
0000 Xxxxxxxxxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000
BANK: XXXXX FARGO BANK, NATIONAL ASSOCIATION
Carlsbad LPO
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three (3) days after deposit in
the U.S. mail, first class and postage prepaid; and (c) if sent by telecopy,
upon receipt.
SECTION 7.3. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to
Bank immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of Bank's in-house counsel), expended or
incurred by Bank in connection with (a) the negotiation and preparation of this
Agreement and the other Loan Documents, Bank's continued administration hereof
and thereof, and the preparation of any amendments and waivers hereto and
thereto, (b) the enforcement of Bank's rights and/or the collection of any
amounts which become due to Bank under any of the Loan Documents, and (c) the
prosecution or defense of any action in any way related to any of the Loan
Documents, including without
limitation, any action for declaratory relief, whether incurred at the trial or
appellate level, in an arbitration proceeding or otherwise, and including any of
the foregoing incurred in connection with any bankruptcy proceeding (including
without limitation, any adversary proceeding, contested matter or motion brought
by Bank or any other person) relating to any Borrower or any other person or
entity.
SECTION 7.4. SUCCESSORS, ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties; provided however, that
Borrower may not assign or transfer its interest hereunder without Bank's prior
written consent. Bank reserves the right to sell, assign, transfer, negotiate or
grant participations in all or any part of, or any interest in, Bank's rights
and benefits under each of the Loan Documents. In connection therewith, Bank may
disclose all documents and information which Bank now has or may hereafter
acquire relating to any credit subject hereto, Borrower or its business, or any
collateral required hereunder.
SECTION 7.5. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other
Loan Documents constitute the entire agreement between Borrower and Bank with
respect to each credit subject hereto and supersede all prior negotiations,
communications, discussions and correspondence concerning the subject matter
hereof. This Agreement may be amended or modified only in writing signed by each
party hereto.
SECTION 7.6. NO THIRD PARTY BENEFICIARIES. This Agreement is made and
entered into for the sole protection and benefit of the parties hereto 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, this Agreement or any other of the Loan Documents
to which it is not a party.
SECTION 7.7. TIME. Time is of the essence of each and every provision of
this Agreement and each other of the Loan Documents.
SECTION 7.8. SEVERABILITY OF PROVISIONS. If any provision of this
Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or any remaining provisions
of this Agreement.
SECTION 7.9. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which when executed and delivered shall be deemed to be
an original, and all of which when taken together shall constitute one and the
same Agreement.
SECTION 7.10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
SECTION 7.11. ARBITRATION.
(a) Arbitration. The parties hereto agree, upon demand by any party,
to submit to binding arbitration all claims, disputes and controversies between
or among them (and their respective employees, officers, directors, attorneys,
and other agents), whether in tort, contract or otherwise arising out of or
relating to in any way (i) the loan and related Loan Documents which are the
subject of this Agreement and its negotiation, execution, collateralization,
administration, repayment, modification, extension, substitution, formation,
inducement, enforcement, default or termination; or (ii) requests for additional
credit.
(b) Governing Rules. Any arbitration proceeding will (i) proceed in
a location in California selected by the American Arbitration Association
("AAA"); (ii) be governed by the Federal Arbitration Act (Title 9 of the United
States Code), notwithstanding any conflicting choice of law provision in any of
the documents between the parties; and (iii) be conducted by the AAA, or such
other administrator as the parties shall mutually agree upon, in accordance with
the AAA's commercial dispute resolution procedures, unless the claim or
counterclaim is at least $1,000,000.00 exclusive of claimed interest,
arbitration fees and costs in which case the arbitration shall be conducted in
accordance with the AAA's optional procedures for large, complex commercial
disputes (the commercial dispute resolution procedures or the optional
procedures for large, complex commercial disputes to be referred to, as
applicable, as the "Rules"). If there is any inconsistency between the terms
hereof and the Rules, the terms and procedures set forth herein shall control.
Any party who fails or refuses to submit to arbitration following a demand by
any other party shall bear all costs and expenses incurred by such other party
in compelling arbitration of any dispute. 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. Section 91 or any similar applicable state law.
(c) No Waiver of Provisional Remedies, Self-Help and Foreclosure.
The arbitration requirement does not limit the right of any party to (i)
foreclose against real or personal property collateral; (ii) exercise self-help
remedies relating to collateral or proceeds of collateral such as setoff or
repossession; or (iii) obtain provisional or ancillary remedies such as
replevin, injunctive relief, attachment or the appointment of a receiver, before
during or after the pendency of any arbitration proceeding. This exclusion does
not constitute a waiver of the right or obligation of any party to submit any
dispute to arbitration or reference hereunder, including those arising from the
exercise of the actions detailed in sections (i), (ii) and (iii) of this
paragraph.
(d) Arbitrator Qualifications and Powers. Any arbitration proceeding
in which the amount in controversy is $5,000,000.00 or less will be decided by a
single arbitrator selected according to the Rules, and who shall not render an
award of greater than $5,000,000.00. Any dispute in which the amount in
controversy exceeds $5,000,000.00 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. The arbitrator will be a neutral
attorney licensed in the State of California or a neutral retired judge of the
state or federal judiciary of California, in either case with a minimum of ten
years experience in the substantive law applicable to the subject matter of the
dispute to be arbitrated. The arbitrator will determine whether or not an issue
is arbitratable and will give effect to the statutes of limitation in
determining any claim. In any arbitration proceeding the arbitrator will decide
(by documents only or with a hearing at the arbitrator's discretion) any
pre-hearing motions which are similar to motions to dismiss for failure to state
a claim or motions for summary adjudication. The arbitrator shall resolve all
disputes in accordance with the substantive law of California and may grant any
remedy or relief that a court of such state could order or grant within the
scope hereof and such ancillary relief as is necessary to make effective any
award. The arbitrator shall also have the power to award recovery of all costs
and fees, to impose sanctions and to take such other action as the arbitrator
deems 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. Judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction. The institution and maintenance of an action for
judicial relief or pursuit of a provisional or ancillary remedy shall not
constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if any other party contests such
action for judicial relief.
(e) Discovery. In any arbitration proceeding discovery will be
permitted in accordance with the Rules. All discovery shall be expressly limited
to matters directly relevant to the dispute being arbitrated and must be
completed no later than 20 days before the hearing date and within 180 days of
the filing of the dispute with the AAA. Any requests for an extension of the
discovery periods, or any discovery disputes, will be subject to final
determination by the arbitrator upon a showing that the request for discovery is
essential for the party's presentation and that no alternative means for
obtaining information is available.
(f) Class Proceedings and Consolidations. The resolution of any
dispute arising pursuant to the terms of this Agreement shall be determined by a
separate arbitration proceeding and such dispute shall not be consolidated with
other disputes or included in any class proceeding.
(g) Payment Of Arbitration Costs And Fees. The arbitrator shall
award all costs and expenses of the arbitration proceeding.
(h) 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.
(i) 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 or by applicable law or
regulation. 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 or any relationship between the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
FAIR, XXXXX AND COMPANY, XXXXX FARGO BANK,
INCORPORATED NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXXXX By: /s/ XXXX XXXX
-------------------------------- --------------------------------
Xxxx Xxxx
Title: Chief Financial Officer Vice President
------------------------------
By:
--------------------------------
Title:
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Exhibit A
REVOLVING LINE OF CREDIT NOTE
$15,000,000.00 Carlsbad, California
November 1, 2002
FOR VALUE RECEIVED, the undersigned FAIR, XXXXX AND COMPANY,
INCORPORATED ("Borrower") promises to pay to the order of XXXXX FARGO BANK,
NATIONAL ASSOCIATION ("Bank") at its office at Carlsbad LPO, 0000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx, or at such other place as the holder hereof may
designate, in lawful money of the United States of America and in immediately
available funds, the principal sum of Fifteen Million Dollars ($15,000,000.00),
or so much thereof as may be advanced and be outstanding, with interest thereon,
to be computed on each advance from the date of its disbursement as set forth
herein.
DEFINITIONS:
As used herein, the following terms shall have the meanings set forth
after each, and any other term defined in this Note shall have the meaning set
forth at the place defined:
(a) "Business Day" means any day except a Saturday, Sunday or any other
day on which commercial banks in California are authorized or required by law to
close.
(b) "Fixed Rate Term" means a period commencing on a Business Day and
continuing for one (1), two (2), three (3) or six (6) months, as designated by
Borrower, during which all or a portion of the outstanding principal balance of
this Note bears interest determined in relation to LIBOR; provided however, that
no Fixed Rate Term may be selected for a principal amount less than Two Hundred
Fifty Thousand Dollars ($250,000.00); and provided further, that no Fixed Rate
Term shall extend beyond the scheduled maturity date hereof. If any Fixed Rate
Term would end on a day which is not a Business Day, then such Fixed Rate Term
shall be extended to the next succeeding Business Day.
(c) "LIBOR" means the rate per annum (rounded upward, if necessary, to
the nearest whole 1/8 of 1%) and determined pursuant to the following formula:
LIBOR = Base LIBOR
--------------------------------------
100% - LIBOR Reserve Percentage
(i) "Base LIBOR" means the rate per annum for United States
dollar deposits quoted by Bank as the Inter-Bank Market Offered Rate, with the
understanding that such rate is quoted by Bank for the purpose of calculating
effective rates of interest for loans making reference thereto, on the first day
of a Fixed Rate Term for delivery of funds on said date for a period of time
approximately equal to the number of days in such Fixed Rate Term and in an
amount approximately equal to the principal amount to which such Fixed Rate Term
applies. Borrower understands and agrees that Bank may base its quotation of the
Inter-Bank Market Offered Rate upon such offers or other market indicators of
the Inter-Bank Market as Bank in its discretion deems appropriate including, but
not limited to, the rate offered for U.S. dollar deposits on the London
Inter-Bank Market.
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(ii) "LIBOR Reserve Percentage" means the reserve percentage
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for "Eurocurrency Liabilities" (as defined in Regulation D of the
Federal Reserve Board, as amended), adjusted by Bank for expected changes in
such reserve percentage during the applicable Fixed Rate Term.
(d) "Prime Rate" means at any time the rate of interest most recently
announced within Bank at its principal office as its Prime Rate, with the
understanding that the Prime Rate is one of Bank'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 Bank may designate.
INTEREST:
(a) Interest. The outstanding principal balance of this Note shall bear
interest (computed on the basis of a 360-day year, actual days elapsed) either
(i) at a fluctuating rate per annum equal to the Prime Rate in effect from time
to time, or (ii) at a fixed rate per annum determined by Bank to be one and one
quarter percent (1.25%) above LIBOR in effect on the first day of the applicable
Fixed Rate Term. When interest is determined in relation to the Prime Rate, each
change in the rate of interest hereunder shall become effective on the date each
Prime Rate change is announced within Bank. With respect to each LIBOR selection
hereunder, Bank is hereby authorized to note the date, principal amount,
interest rate and Fixed Rate Term applicable thereto and any payments made
thereon on Bank's books and records (either manually or by electronic entry)
and/or on any schedule attached to this Note, which notations shall be prima
facie evidence of the accuracy of the information noted.
(b) Selection of Interest Rate Options. At any time any portion of this
Note bears interest determined in relation to LIBOR, it may be continued by
Borrower at the end of the Fixed Rate Term applicable thereto so that all or a
portion thereof bears interest determined in relation to the Prime Rate or to
LIBOR for a new Fixed Rate Term designated by Borrower. At any time any portion
of this Note bears interest determined in relation to the Prime Rate, Borrower
may convert all or a portion thereof so that it bears interest determined in
relation to LIBOR for a Fixed Rate Term designated by Borrower. At such time as
Borrower requests an advance hereunder or wishes to select a LIBOR option for
all or a portion of the outstanding principal balance hereof, and at the end of
each Fixed Rate Term, Borrower shall give Bank notice specifying: (i) the
interest rate option selected by Borrower; (ii) the principal amount subject
thereto; and (iii) for each LIBOR selection, the length of the applicable Fixed
Rate Term. Any such notice may be given by telephone (or such other electronic
method as Bank may permit) so long as, with respect to each LIBOR selection, (A)
if requested by Bank, Borrower provides to Bank written confirmation thereof not
later than three (3) Business Days after such notice is given, and (B) such
notice is given to Bank prior to 10:00 a.m. on the first day of the Fixed Rate
Term, or at a later time during any Business Day if Bank, at it's sole option
but without obligation to do so, accepts Borrower's notice and quotes a fixed
rate to Borrower. If Borrower does not immediately accept a fixed rate when
quoted by Bank, the quoted rate shall expire and any subsequent LIBOR request
from Borrower shall be subject to a redetermination by Bank of the applicable
fixed rate. If no specific designation of interest is made at the time any
advance is requested hereunder or at the end of any Fixed Rate Term, Borrower
shall be deemed to have made a Prime Rate interest selection for such advance or
the principal amount to which such Fixed Rate Term applied.
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(c) Taxes and Regulatory Costs. Borrower shall pay to Bank immediately
upon demand, in addition to any other amounts due or to become due hereunder,
any and all (i) withholdings, interest equalization taxes, stamp taxes or other
taxes (except income and franchise taxes) imposed by any domestic or foreign
governmental authority and related in any manner to LIBOR, and (ii) future,
supplemental, emergency or other changes in the LIBOR Reserve Percentage,
assessment rates imposed by the Federal Deposit Insurance Corporation, or
similar requirements or costs imposed by any domestic or foreign governmental
authority or resulting from compliance by Bank with any request or directive
(whether or not having the force of law) from any central bank or other
governmental authority and related in any manner to LIBOR to the extent they are
not included in the calculation of LIBOR. In determining which of the foregoing
are attributable to any LIBOR option available to Borrower hereunder, any
reasonable allocation made by Bank among its operations shall be conclusive and
binding upon Borrower.
(d) Payment of Interest. Interest accrued on this Note shall be payable
on the last day of each month, commencing November 30, 2002.
(e) Default Interest. From and after the maturity date of this Note, or
such earlier date as all principal owing hereunder becomes due and payable by
acceleration or otherwise, the outstanding principal balance of this Note shall
bear interest until paid in full at an increased rate per annum (computed on the
basis of a 360-day year, actual days elapsed) equal to four percent (4%) above
the rate of interest from time to time applicable to this Note.
BORROWING AND REPAYMENT:
(a) Borrowing and Repayment. Borrower may from time to time during the
term of this Note borrow, partially or wholly repay its outstanding borrowings,
and reborrow, subject to all of the limitations, terms and conditions of this
Note and of any document executed in connection with or governing this Note;
provided however, that the total outstanding borrowings under this Note shall
not at any time exceed the principal amount stated above. The unpaid principal
balance of this obligation at any time shall be the total amounts advanced
hereunder by the holder hereof less the amount of principal payments made hereon
by or for any Borrower, which balance may be endorsed hereon from time to time
by the holder. The outstanding principal balance of this Note shall be due and
payable in full on February 1, 2004.
(b) Advances. Advances hereunder, to the total amount of the principal
sum stated above, may be made by the holder at the oral or written request of
(i) _____________________ or ________________________, any one acting alone, who
are authorized to request advances and direct the disposition of any advances
until written notice of the revocation of such authority is received by the
holder at the office designated above, or (ii) any person, with respect to
advances deposited to the credit of any deposit account of any Borrower, which
advances, when so deposited, shall be conclusively presumed to have been made to
or for the benefit of each Borrower regardless of the fact that persons other
than those authorized to request advances may have authority to draw against
such account. The holder shall have no obligation to determine whether any
person requesting an advance is or has been authorized by any Borrower.
(c) Application of Payments. Each payment made on this Note shall be
credited first, to any interest then due and second, to the outstanding
principal balance hereof. All payments credited to principal shall be applied
first, to the outstanding principal balance of this Note which bears interest
determined in relation to the Prime Rate, if any, and second, to the
-3-
outstanding principal balance of this Note which bears interest determined in
relation to LIBOR, with such payments applied to the oldest Fixed Rate Term
first.
PREPAYMENT:
(a) Prime Rate. Borrower may prepay principal on any portion of this
Note which bears interest determined in relation to the Prime Rate at any time,
in any amount and without penalty.
(b) LIBOR. Borrower may prepay principal on any portion of this Note
which bears interest determined in relation to LIBOR at any time and in the
minimum amount of Two Hundred Fifty Thousand Dollars ($250,000.00); provided
however, that if the outstanding principal balance of such portion of this Note
is less than said amount, the minimum prepayment amount shall be the entire
outstanding principal balance thereof. In consideration of Bank providing this
prepayment option to Borrower, or if any such portion of this Note shall become
due and payable at any time prior to the last day of the Fixed Rate Term
applicable thereto by acceleration or otherwise, Borrower shall pay to Bank
immediately upon demand a fee which is the sum of the discounted monthly
differences for each month from the month of prepayment through the month in
which such Fixed Rate Term matures, calculated as follows for each such month:
(i) Determine the amount of interest which would have accrued each
month on the amount prepaid at the interest rate applicable to
such amount had it remained outstanding until the last day of the
Fixed Rate Term applicable thereto.
(ii) Subtract from the amount determined in (i) above the amount of
interest which would have accrued for the same month on the
amount prepaid for the remaining term of such Fixed Rate Term at
LIBOR in effect on the date of prepayment for new loans made for
such term and in a principal amount equal to the amount prepaid.
(iii) If the result obtained in (ii) for any month is greater than
zero, discount that difference by LIBOR used in (ii) above.
Each Borrower acknowledges that prepayment of such amount may result in Bank
incurring additional costs, expenses and/or liabilities, and that it is
difficult to ascertain the full extent of such costs, expenses and/or
liabilities. Each Borrower, therefore, agrees to pay the above-described
prepayment fee and agrees that said amount represents a reasonable estimate of
the prepayment costs, expenses and/or liabilities of Bank. If Borrower fails to
pay any prepayment fee when due, the amount of such prepayment fee shall
thereafter bear interest until paid at a rate per annum two percent (2%) above
the Prime Rate in effect from time to time (computed on the basis of a 360-day
year, actual days elapsed). Each change in the rate of interest on any such past
due prepayment fee shall become effective on the date each Prime Rate change is
announced within Bank.
EVENTS OF DEFAULT:
This Note is made pursuant to and is subject to the terms and conditions
of that certain Credit Agreement between Borrower and Bank dated as of November
1, 2002, as amended from time to time (the "Credit Agreement"). Any default in
the payment or performance of any
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obligation under this Note, or any defined event of default under the Credit
Agreement, shall constitute an "Event of Default" under this Note.
MISCELLANEOUS:
(a) Remedies. Upon the occurrence of any Event of Default, the holder of
this Note, at the holder's option, may declare all sums of principal and
interest outstanding hereunder to be immediately due and payable without
presentment, demand, notice of nonperformance, notice of protest, protest or
notice of dishonor, all of which are expressly waived by each Borrower, and the
obligation, if any, of the holder to extend any further credit hereunder shall
immediately cease and terminate. Each Borrower shall pay to the holder
immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of the holder's in-house counsel), expended
or incurred by the holder in connection with the enforcement of the holder's
rights and/or the collection of any amounts which become due to the holder under
this Note, and the prosecution or defense of any action in any way related to
this Note, including without limitation, any action for declaratory relief,
whether incurred at the trial or appellate level, in an arbitration proceeding
or otherwise, and including any of the foregoing incurred in connection with any
bankruptcy proceeding (including without limitation, any adversary proceeding,
contested matter or motion brought by Bank or any other person) relating to any
Borrower or any other person or entity.
(b) Obligations Joint and Several. Should more than one person or entity
sign this Note as a Borrower, the obligations of each such Borrower shall be
joint and several.
(c) Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
date first written above.
FAIR, XXXXX AND COMPANY, INCORPORATED
By: _____________________________
Title: __________________________
By: _____________________________
Title: __________________________
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Exhibit B
November 1, 2002
Fair, Xxxxx and Company, Incorporated
0000 Xxxxxxxxxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000
RE: Foreign Exchange Agreement
Ladies and Gentlemen:
You, the customer to whom this letter agreement (the "Agreement") is
addressed, may from time to time request that we, XXXXX FARGO BANK, NATIONAL
ASSOCIATION, or, if we are not Xxxxx Fargo Bank, National Association ("Xxxxx
Fargo"), Xxxxx Fargo acting as our agent, enter into foreign exchange contracts
with you (each, a "Contract" and collectively, "Contracts") for spot or forward
delivery of foreign currencies that you want to purchase or sell. Upon receipt
of each such request, we, or Xxxxx Fargo acting as our agent, will decide
whether to enter into a Contract with you. This Agreement sets forth the terms
and conditions governing the Contracts and the transactions contemplated thereby
(each a "Transaction"). You understand and agree that if we are not Xxxxx Fargo,
we may, but are not obligated to, use Xxxxx Fargo as our agent to enter into
Contracts with you in our name or in Xxxxx Fargo's name. You authorize us to use
Xxxxx Fargo as our agent to enter into Contracts with you and to perform any of
our obligations or exercise any of our rights under this Agreement or any
Contract. If we use Xxxxx Fargo as our agent, (a) Xxxxx Fargo will be our agent
having obligations only to us and not to you, (b) the Contracts you enter into
through Xxxxx Fargo will be considered Contracts entered into by us pursuant to
this Agreement, unless any such Contract clearly indicates otherwise, (c) any of
our obligations performed or any of our rights exercised pursuant to, or in
connection with, this Agreement or any Contract by Xxxxx Fargo in our name or in
Xxxxx Fargo's name shall be deemed obligations performed or rights exercised by
us pursuant to, or in connection with, this Agreement or such Contract, and (d)
any collateral heretofore, now or at any time hereafter granted or pledged by
you to us as security for any credit extended to you will also secure all your
obligations to us under or in connection with this Agreement and the Contracts.
1. REQUESTS TO ENTER INTO, AMEND OR CANCEL CONTRACTS. All requests to us
to enter into, amend or cancel Contracts must be made by telephone, facsimile
transmission ("Fax"), or electronic mail ("E-Mail"). We have no obligation to,
and we will determine in our sole discretion whether or not to, enter into,
amend or cancel any Contract. If we do enter into, amend or cancel any Contract
at your request, we will not be obligated to enter into, amend or cancel any
other Contract. Requests to enter into Contracts must specify (a) whether the
request is to purchase or sell foreign currency, (b) the type of foreign
currency, (c) the amount of foreign currency, and (d) the value date for the
Contract (the "Settlement Date").
Fair, Xxxxx and Company, Incorporated
November 1, 2002
Page 2
Requests to amend or cancel Contracts must identify the number of the Contract
to be amended or cancelled. In addition to the requirements above, each Fax
request to enter into, amend or cancel a Contract must clearly indicate the name
of the sender and be signed and dated, and each E-Mail request to enter into,
amend or cancel a Contract must clearly indicate the name of the sender and be
dated. Each request for a Contract for spot delivery of foreign currency also
must specify where and how the currency is to be delivered. With respect to each
request for a Contract for forward delivery of foreign currency, you must also
send us settlement instructions by telephone, Fax or E-Mail no later than two
Business Days (with the term "Business Day" meaning a day, other than a
Saturday, Sunday or public holiday, on which we and you are open to conduct
Transactions) before the Settlement Date informing us where and how the currency
is to be delivered. Any settlement instructions sent by Fax must clearly
indicate the name of the sender and be signed and dated, and any settlement
instructions sent by E-Mail must clearly indicate the name of the sender and be
dated. Each request to enter into, amend or cancel a Contract and all settlement
instructions must be directed to your primary foreign exchange advisor with us
or an alternate advisor designated by us. You authorize us to rely on all
information and directions contained in each such request and settlement
instruction. If a settlement instruction for a Contract describes (i) by account
name and number the account to which currency is to be delivered by us upon
settlement and the account name and number do not match, you understand that we
will make payment on the basis of the account number even if it is not the
account number of the person or entity named by you in the settlement
instructions, or (ii) by name and identification number or code a financial
institution to which such currency is to be delivered and the name and
identification number or code do not match, you understand that we may make
payment on the basis of such identification number or code even if such number
or code is not the identification number or code of the financial institution
named by you in the settlement instructions. You understand and agree that if
settlement of a Contract is to be made by "payment against delivery" (A) if you
are to pay United States dollars to us under the Contract, this payment must be
made by you one or two days (as notified to you) before the Settlement Date, and
we will not deliver the foreign currency to you on the Settlement Date if you do
not comply with this requirement, and (B) if you are to deliver foreign currency
to us and we are to pay United States dollars to you under the Contract, we will
pay you such dollars on the Settlement Date only if the bank to which you are to
pay the foreign currency confirms to us that it has received the full amount of
such foreign currency.
2. CONFIRMATIONS OF CONTRACTS AND AMENDMENTS TO CONTRACTS. Promptly
after we accept a request to enter into or amend a Contract, we will confirm the
Contract or amendment by telephone (which confirmations sometimes will be
re-confirmed by mail, Fax or E-Mail), mail, Fax or E-Mail. We will not be bound
by any Contract or amendment that is not so confirmed by us. Promptly after you
receive our confirmation of a Contract or amendment you will review it
carefully. If such confirmation accurately reflects the terms of the Contract or
amendment you requested and we and you agreed upon, (a) if it is sent by mail or
Fax, sign it and return it to us by mail, Fax, or attached to an E-Mail, or (b)
if it is sent by telephone, promptly sign any written re-confirmation you
receive and return it to us by mail, Fax, or attached to an E-Mail, or (c) if it
is sent by E-Mail, promptly print the E-Mail, sign it, and return it to us by
mail, Fax, or attached to an E-Mail. If such confirmation does not accurately
reflect the terms of the Contract or amendment we and you agreed upon or you
intended, notify us by telephone of such inaccuracy. Each confirmation you sign
and return to us should be sent to us at the address or Fax number indicated on
such confirmation. Each notification of errors in a confirmation must be sent to
us at the telephone number indicated on such confirmation. Until we receive a
notification that a confirmation does not accurately reflect the terms of a
Contract or amendment we and you agreed upon (and our records confirm that this
is true), (i) the first or
Fair, Xxxxx and Company, Incorporated
November 1, 2002
Page 3
only confirmation of a Contract or amendment will be deemed to contain the
definitive terms of such Contract or amendment, and (ii) we will be authorized
to act on the Contract or amendment as reflected in such confirmation, and
unless we receive such notification from you before we act on or comply with the
terms of such Contract or amendment, you will, except as provided otherwise in
the Limitation of Liability and Indemnity section of this Agreement, indemnify
and reimburse us for, and hold us harmless from and against, all of our Losses
which arise directly or indirectly as a result of, or which are in any way
connected with, our acting on or complying with the terms of the Contract or
amendment as reflected in such confirmation. The term "Losses" as used in this
Agreement will mean all losses, liabilities, claims, damages, obligations,
penalties, actions, judgments, suits, costs and expenses, of any kind
whatsoever, including, without limitation, attorneys' fees and other legal costs
and expenses (which attorneys' fees will include outside counsel fees and all
allocated costs of in-house counsel), paid, suffered or incurred by, or imposed
upon, you or us as the context indicates.
3. VERIFYING CONFIRMATIONS, REQUESTS TO ENTER INTO, AMEND OR CANCEL
CONTRACTS, AND SETTLEMENT INSTRUCTIONS. We will verify each request to enter
into or amend or cancel a Contract, each instruction for the settlement of a
Contract, and each confirmation you return to us by determining if the name used
by the person requesting the Contract or amendment or cancellation of a
Contract, giving us settlement instructions, or signing the confirmation is the
name of one of the persons you designate to us in writing as being authorized by
you to make such requests and instructions and to sign such confirmations. Other
than as provided in the preceding sentence, we have no obligation to confirm in
any way the identity of any person making a request to enter into or amend or
cancel a Contract, giving an instruction for the settlement of a Contract, or
signing a confirmation of a Contract or an amendment. We will not be required to
verify that (a) the entries on a document sent to us in any way are authentic
entries, (b) the signatures on any such document are authentic signatures, or
(c) the persons actually signing such document are duly authorized to contract
for you in connection with the purposes of the document. The information,
directions or instructions we receive in documents which indicate that they have
been sent from you or which are on your letterhead, other than requests to enter
into or amend or cancel Contracts or settlement instructions for Contracts or
confirmations of Contracts, will be binding on you even if such documents are
not signed or are not properly authorized by you. You agree to be bound by each
request to enter into, amend or cancel a Contract, each instruction for the
settlement of a Contract, and each confirmation of a Contract or amendment if
such request, instruction or confirmation was authorized or transmitted by you,
or made in your name and accepted by us in good faith and in compliance with the
procedures in this Section, even if such request, instruction or confirmation
was not properly authorized by you. Except as provided otherwise in the
Limitation of Liability and Indemnity section of this Agreement, we shall have
no liability for any of your Losses, and you will indemnify us for all our
Losses, which arise directly or indirectly as a result of, or are in any way
connected with, (i) any request to enter into or amend or cancel a Contract, any
instruction for the settlement of a Contract, and any confirmation of a Contract
or amendment being made by Fax or E-Mail, or (ii) any breach of your security
procedures in connection with any request to enter into or amend or cancel a
Contract, any instruction for the settlement of a Contract, and the signing of
any confirmation of a Contract or amendment. Any actions we take to detect
erroneous requests to enter into or amend or cancel Contracts or erroneous
instructions for the settlement of Contracts, or any actions we take beyond
those described above in an attempt to detect unauthorized requests or
instructions or confirmations, will be taken at our sole discretion. No matter
how many times we take such actions they will not become part of our standard
procedures for attempting to detect erroneous or unauthorized
Fair, Xxxxx and Company, Incorporated
November 1, 2002
Page 4
requests or instructions or confirmations, and we will not in any situation be
liable for failing to take or to correctly perform such actions.
4. REPRESENTATIONS AND WARRANTIES. We make no express or implied
representations or warranties with respect to the services we are to provide to
you under this Agreement or any Contract, other than those representations or
warranties expressly stated in this Agreement. Each request by you that we enter
into or amend a Contract shall be deemed a representation and warranty by you
that the terms of the Contract or such amendment do not, and your compliance
with such terms will not, violate any laws and regulations applicable to you,
including, without limitation, those affecting your purchase or sale of the
foreign currency covered by the Contract, and that no Event of Default (as
defined in the Events of Default and Remedies section of this Agreement) has
occurred and is continuing.
5. NO INVESTMENT ADVICE; RISK OF MARKET FLUCTUATIONS. You understand
that we are not an investment advisor. We do not give, and we hereby disclaim,
all investment advice with respect to any Contract or any amendment of a
Contract. You bear the sole risk of any and all market fluctuations in any
currency traded pursuant to the terms of this Agreement or any Contract.
6. EVENTS OF DEFAULT AND REMEDIES. We may cancel any Contract and
liquidate our position in the currency of such Contract if performance of the
Contract by you or us becomes unlawful as a result of the adoption of, or any
change in, any applicable law after the date on which the Contract is entered
into, or as a result of the promulgation of or any change in, or in the
interpretation by any court or tribunal or regulatory authority with competent
jurisdiction of, any applicable law after such date. Upon the occurrence and at
any time during the continuance of any of the following events (each, an "Event
of Default"), we may also cancel any or all the outstanding Contracts and
liquidate our position in the currency of such Contracts and setoff against any
of your cash, deposit accounts, securities, securities accounts or other
property we hold or any obligation we have to you to recover any amounts you owe
to us as a result of, or in connection with, such cancellation or liquidation:
(a) you fail to give us settlement instructions as provided in this Agreement;
(b) you fail for any other reason to settle a Contract on its Settlement Date;
(c) you fail to perform any of your agreements or obligations under this
Agreement or any Contract; (d) any representation or warranty made by you to us
under this Agreement or any Contract is incorrect or misleading in any material
respect when made or repeated or deemed to have been made or repeated; (e) a
default, event of default or other similar condition or event (however
described) occurs under one or more agreements or instruments relating to any of
your obligations (whether present or future, contingent or otherwise, as
principal or surety or otherwise) in respect of borrowed money ("Indebtedness")
which has resulted in such Indebtedness becoming, or becoming capable at such
time of being declared, due and payable under such agreements or instruments,
before it would otherwise have been due and payable; (f) you (i) dissolve or
liquidate, (ii) are not generally paying your debts as they become due, (iii)
become insolvent, however such insolvency may be evidenced, or (iv) make any
general assignment for the benefit of creditors; (g) a petition is filed by or
against you seeking your liquidation or reorganization under the Bankruptcy
Reform Act, Title 11 of the United States Code, as amended or recodified from
time to time, or a similar action is brought by or against you under any
federal, state or foreign law; (h) a proceeding is instituted by or against you
for any relief under any bankruptcy, insolvency or other law relating to the
relief of debtors, reorganization, readjustment or extension of indebtedness or
composition with creditors; (i) a custodian or a receiver is appointed for, or a
writ or order of attachment, execution or garnishment
Fair, Xxxxx and Company, Incorporated
November 1, 2002
Page 5
is issued, levied or made against, any of your property or assets; (j) an
application is made by any of your judgment creditors for an order directing us
to pay over money that we hold from you or to deliver other of your property;
(k) any government authority or any court takes possession of any substantial
part of your property or assets or assumes control over your affairs, or (l) we
in our sole discretion make a commercially reasonable determination that such
cancellation is necessary to protect us.
7. LOSSES RESULTING FROM CANCELLATIONS OR EXTENSIONS OF CONTRACTS. If
you request that we cancel a Contract or amend a Contract by extending its term
and we, in our sole discretion, agree to such request, or if we cancel a
Contract as provided in this Agreement (a) you will, except as provided
otherwise in the Limitation of Liability and Indemnity section of this
Agreement, indemnify and reimburse us for, and hold us harmless from and
against, all our Losses which arise directly or indirectly as a result of, or
are in any way connected with, such cancellation or extension, including,
without limitation, the liquidation of our position in the currency of the
Contract, and (b) we may setoff and apply against your liability to us any of
your cash, deposit accounts, securities, securities accounts or other property
we hold or any other obligations we have to you, without regard to the nature or
due date of such deposits or obligations and notwithstanding that such setoff
may give rise to penalties for early withdrawal of funds.
8. LIMITATION OF LIABILITY AND INDEMNITY. Except to the extent your
Losses or our Losses are caused directly by our gross negligence or willful
misconduct, and subject to the remaining provisions of this section, we shall
not be liable for any of your Losses, and you shall be liable for our Losses, to
the extent your or our Losses arise directly or indirectly as a result of, or
are in any way connected with, (a) the enactment or imposition after the date of
this Agreement of, or the change after the date of this Agreement in, any laws,
regulations, guidelines or other directives of any government or government
entity affecting the Contracts or Transactions; provided, however, that your
liability for our Losses and the limitation of our liability for your Losses
will not apply to the extent we knew about such enactment, imposition, or change
before it became effective and could have refused to enter into such Contracts
or Transactions without causing any Losses to us and without violating the terms
of this Agreement or any Contract, (b) the errors, acts or omissions of others,
such as communications carriers or correspondents through which we may perform,
or receive or transmit information in performing, our obligations under this
Agreement or any Contract, (c) any event or circumstance beyond our control, or
(d) any actions performed by us, or any actions not performed by us, in
compliance with the terms of this Agreement or any Contract. With respect to
your Losses and our Losses which arise directly or indirectly as a result of, or
which are in any way connected with, your or our performance or failure to
perform obligations under this Agreement or any Contract, we and you will
negotiate in good faith in an effort to reach a mutually satisfactory allocation
of such Losses. It is understood, however, that in such circumstances and unless
otherwise agreed by you and us in such negotiations, we will not be responsible
to you for any of your Losses, and you will indemnify us for any of our Losses,
arising from claims by third parties who through their connection with you are
affected by the Contracts or Transactions, if such Losses result from any cause
other than our breach of this Agreement or any Contract or our negligence, gross
negligence, or willful misconduct. To the extent the Losses referred to in the
preceding sentence are caused by our breach of this Agreement or any Contract or
by our negligence, you understand that (i) if our breach or negligence is the
late payment of any amount due from us to you under any Contract, including, but
not limited to, any late payment caused by our having to re-execute for any
reason a Transaction covered by a Contract, our liability for your Losses in
Fair, Xxxxx and Company, Incorporated
November 1, 2002
Page 6
such circumstances shall be limited to the interest on the amount due for the
time period such amount remains due and unpaid calculated at that interest rate
which is standard for late payments in the foreign exchange market, and your
indemnification obligations shall extend to only that amount of our Losses which
exceed such interest, and (ii) in all other cases, our liability for your Losses
will be limited to those money damages arising directly as a result of such
breach or negligence, and your indemnification obligations shall extend to only
that amount of our Losses which exceed such direct money damages. You also agree
to indemnify us for our Losses which arise directly or indirectly as a result
of, or which are in any way connected with, the enforcement or protection of our
rights under this Agreement and the Contracts. IN NO EVENT WILL WE BE LIABLE FOR
ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, WHETHER
ANY CLAIM IS BASED ON CONTRACT OR TORT, WHETHER THE LIKELIHOOD OF SUCH DAMAGES
WAS KNOWN TO US, AND REGARDLESS OF THE FORM OF THE CLAIM OR ACTION. Any action
against us under or related to this Agreement or any Contract must be brought
within twelve (12) months after the cause of action arises.
9. NETTING. If on any date each party to this Agreement is to pay the
other party the same aggregate amount in the same currency, then, on such date,
unless both parties specifically agree otherwise, each party's obligation to
make payment of such amount will be automatically satisfied and discharged
without any payment being made. If on any date the parties are to pay each other
differing aggregate amounts in the same currency, each party's payment
obligation will be replaced by an obligation of only the party having to pay the
larger aggregate amount to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.
10. TERMINATION. Either of us may terminate this Agreement at any time
with or without cause upon notice in writing to the other party. Upon such
termination your obligations to us and our obligations to you under this
Agreement will also terminate, except for (a) any obligations in connection with
any Contract which is in existence at such time and cannot be canceled under the
provisions of Section 6 of this Agreement, and (b) any obligations which, by the
terms of this Agreement, survive such termination. All the obligations of the
parties under this Agreement will survive the termination of any or all the
Contracts, and the obligations of the parties under Sections 4, 6, 7, 8, 9 and
10 of this Agreement will survive the termination of this Agreement.
11. MODIFICATIONS, AMENDMENTS, AND WAIVERS. This Agreement may not be
modified or amended, nor may any provision of this Agreement be waived, except
in a writing signed by you and us.
12. NOTICES. Notices from one party to this Agreement to the other party
shall be in writing, or be made by a telecommunications device capable of
creating a written record, shall be delivered to the addressee at its address
specified above, or to any other address a party may designate by written notice
to the other party, and shall be effective upon receipt.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of each of your and our respective heirs, legal
representatives, successors and assigns; provided however, that you may not
assign or otherwise transfer any of your rights
Fair, Xxxxx and Company, Incorporated
November 1, 2002
Page 7
or obligations under this Agreement or any Contract without our prior written
consent, which consent will not be unreasonably withheld.
14. GOVERNING LAW. This Agreement and all Contracts shall be governed by
and be construed in accordance with the laws of the State of California.
15. SEVERABILITY. If any provision of this Agreement shall be prohibited
or invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity without invalidating the remainder of
such provision or any remaining provisions of this Agreement.
16. ENTIRE AGREEMENT. This Agreement, together with each Contract and
any writing referring specifically to this Agreement or any Contract or
referring in general to agreements or contracts which would include this
Agreement or any Contract, contains the entire and only agreement between you
and us with respect to your purchase from us or sale to us of foreign currencies
and the terms of all Contracts for any such purchase or sale.
Please indicate your acceptance of the terms and conditions of this
Agreement by signing, dating and returning a copy of this Agreement to us at our
address specified above.
Very truly yours,
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: _______________________
Xxxx Xxxx
Vice President
Agreed to and accepted as of ______________:
FAIR, XXXXX AND COMPANY, INCORPORATED
By: _________________________
Title: ______________________
By: _________________________
Title: ______________________
