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EXHIBIT 10.23
STANDBY LETTER OF CREDIT AGREEMENT
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To: XXXXX FARGO BANK, NATIONAL ASSOCIATION
Applicant hereby requests that you, Xxxxx Fargo Bank, National
Association ("Xxxxx Fargo"), issue in your name one or more standby letters of
credit pursuant to Applications for the issuance of such Credits and the terms
and conditions of this Agreement. Each Credit will be issued at Applicant's
request and for its account, and, unless otherwise specifically provided in any
Loan Document, at your option. Applicant agrees that the terms and conditions in
this Agreement shall apply to each Application and the Credit issued pursuant to
each Application, and to transactions under each Application, each Credit and
this Agreement.
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth after each term: "AGREEMENT" means this
Standby Letter of Credit Agreement as it may be revised or amended from time to
time. "APPLICANT" means collectively each person and/or entity signing this
Agreement as Applicant. "APPLICATION" means your printed form titled
"Application For Standby Letter of Credit" or any other form acceptable to you
on which Applicant applies for the issuance by you of a Credit and/or an
application for amendment of a Credit or any combination of such applications,
as the context may require. "BENEFICIARY" means the person or entity named on an
Application as the beneficiary or any transferee of such beneficiary.
"COLLATERAL" means the Property, together with the proceeds of such Property,
securing any or all of Applicant's obligations and liabilities at any time
existing under or in connection with any L/C Document and/or any Loan Document.
"COMMISSION FEE" means the fee, computed at the commission fee rate specified by
you or specified in any Loan Document, charged by you at the time or times
specified by you on the amount of each Credit and on the amount of each increase
in a Credit for the time period each Credit is outstanding. "CREDIT" means an
instrument or document titled "Irrevocable Standby Letter of Credit" or "Standby
Letter of Credit", or any instrument or document whatever it is titled or
whether or not it is titled functioning as a standby letter of credit, issued
under or pursuant to an Application, and all renewals, extensions and amendments
of such instrument or document. "DEMAND" means any sight draft, electronic or
telegraphic transmission or other written demand drawn or made, or purported to
be drawn or made, under or in connection with any Credit. "DOCUMENT" means any
instrument, statement, certificate or other document referred to in or related
to any Credit or required by any Credit to be presented with any Demand.
"DOLLARS" means the lawful currency at any time for the payment of public or
private debts in the United States of America. "EVENT OF DEFAULT" means any of
the events set forth in Section 13 of this Agreement. "EXPIRATION DATE" means
the date any Credit expires. "GUARANTOR" means any person or entity guaranteeing
the payment and/or performance of any or all of Applicant's obligations under or
in connection with any L/C Document and/or any Loan Document. "HOLDING COMPANY"
means any company or other entity directly or indirectly controlling you. "L/C
DOCUMENT" means this Agreement, each Application, each Credit, and each Demand.
"LOAN DOCUMENT" means each and any promissory note, loan agreement, security
agreement, pledge agreement, guarantee or other agreement or document executed
in connection with, or relating to, any extension of credit under which any
Credit is issued. "MAXIMUM RATE" means the maximum amount of interest (as
defined by applicable laws), if any, permitted to be paid, taken, reserved,
received, collected or charged under applicable laws, as the same may be amended
or modified from time to time. "NEGOTIATION FEE" means the fee, computed at the
negotiation fee rate specified by you or specified in any Loan Document, charged
by you on the amount of each Demand paid by you or any other bank specified by
you when each Demand is paid. "PAYMENT OFFICE" means the office specified by you
or specified in any Loan Document as the office where reimbursements and other
payments under or in connection with any L/C Document are to be made by
Applicant. "PRIME RATE" means the rate of interest most recently announced
within Xxxxx Fargo at its principal office as its Prime Rate, with the
understanding that the Prime Rate is one of Xxxxx Fargo's base rates and serves
as the basis upon which effective rates of interest are calculated for those
loans making reference thereto, and is evidenced by the recording thereof after
its announcement in such internal publication or publications as Xxxxx Fargo may
designate. "PROPERTY" means all forms of property, whether tangible or
intangible, real, personal or mixed. "RATE OF EXCHANGE" means Xxxxx Fargo's then
current selling rate of exchange in San Francisco, California for sales of the
currency of payment of any Demand, or of any fees or expenses or other amounts
payable under this Agreement, for cable transfer to the country of which such
currency is the legal tender. "UCP" means the Uniform Customs and Practice for
Documentary Credits, an International Chamber of Commerce publication, or any
substitution therefor or replacement thereof. "UNPAID AND UNDRAWN BALANCE" means
at any time the entire amount which has not been paid by you under all the
Credits issued for Applicant's account, including, without limitation, the
amount of each Demand on which you have not yet effected payment as well as the
amount undrawn under all such Credits. "XXXXX FARGO & COMPANY" means Xxxxx Fargo
& Company, a Delaware corporation.
SECTION 2. HONORING DEMANDS AND DOCUMENTS. You may receive, accept and
honor, as complying with the terms of any Credit, any Demand and any Documents
accompanying such Demand; provided, however, that such Demand and accompanying
Documents appear on their face to comply substantially with the provisions of
such Credit and are, or appear on their face to be, signed or issued by (a) a
person or entity authorized under such Credit to draw, sign or issue such Demand
and accompanying Documents, or (b) an administrator, executor, trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
liquidator, receiver or other legal representative or successor in interest by
operation of law of any such person or entity.
SECTION 3. REIMBURSEMENT FOR PAYMENT OF DEMANDS. Applicant shall
reimburse you for all amounts paid by you on each Demand, including, without
limitation, all such amounts paid by you to any paying, negotiating or other
bank. If in connection with the issuance of any Credit, you agree to pay any
other bank the amount of any payment or negotiation made by such other bank
under such Credit upon your receipt of a cable, telex or other written
telecommunication advising you of such payment or negotiation, or authorizes any
other bank to debit your account for the amount of such payment or negotiation,
Applicant agrees to reimburse you for all such amounts paid by you, or debited
to your account with such other bank, even if any Demand or Document specified
in such Credit fails to arrive in whole or in part or if, upon the arrival of
any such Demand or Document, the terms of such Credit have not been complied
with or such Demand or Document does not conform to the requirements of such
Credit or is not otherwise in order.
SECTION 4. FEES AND EXPENSES. Applicant agrees to pay to you (a) all
Commission Fees, Negotiation Fees, cable fees, amendment fees, non-usance fees,
and cancellation fees of, and all out-of-pocket expenses incurred by, you under
or in connection with any L/C Document, and (b) all fees and charges of banks or
other entities other than you under or in connection with any L/C Document if
any Application (i) does not indicate who will pay such fees and charges, (ii)
indicates that such fees and charges are to be paid by Applicant, or (iii)
indicates that such fees and charges are to be paid by the Beneficiary and the
Beneficiary does not, for any reason whatsoever, pay such fees or charges. There
shall be no refund of any portion of any Commission Fee in the event any Credit
is used, reduced, amended, modified or terminated before its Expiration Date.
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SECTION 5. DEFAULT INTEREST. Unless otherwise specified in any Loan
Document, or on an Application and agreed to by you, all amounts to be
reimbursed by Applicant to you, and all fees and expenses to be paid by
Applicant to you, and all other amounts due from Applicant to you under or in
connection with any L/C Documents, will bear interest (to the extent permitted
by law), payable on demand, from the date you paid the amounts to be reimbursed
or the date such fees, expenses and other amounts were due until such amounts
are paid in full, at a rate per annum (computed on the basis of a 360-day year,
actual days elapsed) which is the lesser of (a) two percent (2%) above the Prime
Rate in effect from time to time, or (b) the Maximum Rate.
SECTION 6. TIME AND METHOD OF REIMBURSEMENT AND PAYMENT. Unless
otherwise specified in this Section, in any Loan Document, or on an Application
and agreed to by you, all amounts to be reimbursed by Applicant to you, all fees
and expenses to be paid by Applicant to you, and all interest and other amounts
due to you from Applicant under or in connection with any L/C Documents will be
reimbursed or paid at the Payment Office in Dollars in immediately available
funds without setoff or counterclaim (i) on demand or, (ii) at your option by
your debiting any of Applicant's accounts with you, with each such debit being
made without presentment, protest, demand for reimbursement or payment, notice
of dishonor or any other notice whatsoever, all of which are hereby expressly
waived by Applicant. Each such debit will be made at the time each Demand is
paid by you or, if earlier, at the time each amount is paid by you to any
paying, negotiating or other bank, or at the time each fee and expense is to be
paid or any interest or other amount is due under or in connection with any L/C
Documents. If any Demand or any fee, expense, interest or other amount payable
under or in connection with any L/C Documents is payable in a currency other
than Dollars, Applicant agrees to reimburse you for all amounts paid by you on
such Demand, and/or to pay you all such fees, expenses, interest and other
amounts, in one of the three following ways, as determined by you in your sole
discretion in each case: (a) at such place as you shall direct, in such other
currency; or (b) at the Payment Office in the Dollar equivalent of the amount of
such other currency calculated at the Rate of Exchange on the date determined by
you in your sole discretion; or (c) at the Payment Office in the Dollar
equivalent, as determined by you (which determination shall be deemed correct
absent manifest error), of such fees, expenses, interest or other amounts or of
the actual cost to you of paying such Demand. Applicant assumes all political,
economic and other risks of disruptions or interruptions in any currency
exchange.
SECTION 7. AGREEMENTS OF APPLICANT. Applicant agrees that (a) unless
otherwise specifically provided in any Loan Document, you shall not be obligated
at any time to issue any Credit for Applicant's account; (b) unless otherwise
specifically provided in any Loan Document, if any Credit is issued by you for
Applicant's account, you shall not be obligated to issue any further Credit for
Applicant's account or to make other extensions of credit to Applicant or in any
other manner to extend any financial consideration to Applicant; (c) you have
not given Applicant any legal or other advice with regard to any L/C Document or
Loan Document; (d) if you at any time discuss with Applicant the wording for any
Credit, any such discussion will not constitute legal or other advice by you or
any representation or warranty by you that any wording or Credit will satisfy
Applicant's needs; (e) Applicant is responsible for the wording of each Credit,
including, without limitation, any drawing conditions, and will not rely on you
in any way in connection with the wording of any Credit or the structuring of
any transaction related to any Credit; (f) Applicant, and not you, is
responsible for entering into the contracts relating to the Credits between
Applicant and the Beneficiaries and for causing Credits to be issued; (g) you
may, as you deem appropriate, modify or alter and use in any Credit the
terminology contained on the Application for such Credit; (h) unless the
Application for a Credit specifies whether the Documents to be presented with a
Demand under such Credit must be sent to you in one parcel or in two parcels or
may be sent to you in any number of parcels, you may, if you so desire, make
such determination and specify in the Credit whether such Documents must be sent
in one parcel or two parcels or may be sent in any number of parcels; (i) you
shall not be deemed Applicant's agent or the agent of any Beneficiary or any
other user of any Credit, and neither Applicant, nor any Beneficiary nor any
other user of any Credit shall be deemed your agent; (j) Applicant will promptly
examine all Documents and each Credit if and when they are delivered to
Applicant and, in the event of any claim of noncompliance of any Documents or
any Credit with Applicant's instructions or any Application, or in the event of
any other irregularity, Applicant will promptly notify you in writing of such
noncompliance or irregularity, Applicant being conclusively deemed to have
waived any such claim of noncompliance or irregularity unless such notice is
promptly given; (k) all directions and correspondence relating to any L/C
Document are to be sent at Applicant's risk; (l) if any Credit has a provision
concerning the automatic extension of its Expiration Date, you may, at your sole
option, give notice of nonrenewal of such Credit and if Applicant does not at
any time want such Credit to be renewed Applicant will so notify you at least
fifteen (15) calendar days before you are to notify the Beneficiary of such
Credit or any advising bank of such nonrenewal pursuant to the terms of such
Credit; (m) Applicant will not seek to obtain, apply for, or acquiesce in any
temporary or permanent restraining order, preliminary or permanent injunction,
permanent injunction or any other pretrial or permanent injunctive or similar
relief, restraining, prohibiting or enjoining you, any of your correspondents or
any advising, confirming, negotiating, paying or other bank from paying or
negotiating any Demand or honoring any other obligation under or in connection
with any Credit; and (n) except for Applicant's obligations specifically
affected by those actions or failures to act referred to in subsections (ii) and
(vii) of this Section 7(n) which you have performed or approved or accepted,
Applicant's obligations under or in connection with each L/C Document and Loan
Document shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of each such L/C Document and
Loan Document under all circumstances whatsoever, including, without limitation,
the following circumstances, the circumstances listed in Section 12(b) through
(u) of this Agreement, and any other event or circumstance similar to such
circumstances: (i) any lack of validity or enforceability of any L/C Document,
any Loan Document, any Document or any agreement relating to any of the
foregoing; (ii) any amendment of or waiver relating to, or any consent to or
departure from, any L/C Document, any Loan Document or any Document; (iii) any
release or substitution at any time of any Property held as Collateral; (iv)
your failure to deliver to Applicant any Document you have received with a
drawing under a Credit because doing so would, or is likely to, violate any law,
rule or regulation of any government authority; (v) the existence of any claim,
set-off, defense or other right which Applicant may have at any time against you
or any Beneficiary (or any person or entity for whom any Beneficiary may be
acting) or any other person or entity, whether under or in connection with any
L/C Document, any Loan Document, any Document or any Property referred to in or
related to any of the foregoing or under or in connection with any unrelated
transaction; (vi) any breach of contract or other dispute between or among any
two or more of you, Applicant, any Beneficiary, any transferee of any
Beneficiary, any person or entity for whom any Beneficiary or any transferee of
any Beneficiary may be acting, or any other person or entity; or (vii) any
delay, extension of time, renewal, compromise or other indulgence granted or
agreed to by you with or without notice to Applicant, or Applicant's approval,
in respect of any of Applicant's indebtedness or other obligations to you under
or in connection with any L/C Document or any Loan Document.
SECTION 8. COMPLIANCE WITH LAWS AND REGULATIONS. Applicant represents
and warrants to you that no Application, Credit or transaction under any
Application and/or Credit will contravene any law or regulation of the
government of the United States or any state thereof. Applicant agrees (a) to
comply with all federal, state and foreign exchange regulations and other
government laws and regulations now or hereafter applicable to any L/C Document,
to any payments under or in connection with any L/C Document, to each
transaction under or in connection with any L/C Document, or to the import,
export, shipping or financing of the Property referred to in or shipped under or
in connection with any Credit, and (b) to reimburse you for such amounts
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as you may be required to expend as a result of such laws or regulations, or any
change therein or in the interpretation thereof by any court or administrative
or government authority charged with the administration of such laws or
regulations.
SECTION 9. TAXES, RESERVES AND CAPITAL ADEQUACY REQUIREMENTS. In
addition to, and notwithstanding any other provision of any L/C Document or any
Loan Document, in the event that any law, treaty, rule, regulation, guideline,
request, order, directive or determination (whether or not having the force of
law) of or from any government authority, including, without limitation, any
court, central bank or government regulatory authority, or any change therein or
in the interpretation or application thereof, (a) does or shall subject you to
any tax of any kind whatsoever with respect to the L/C Documents, or change the
basis of taxation of payments to you of any amount payable thereunder (except
for changes in the rate of tax on your net income); (b) does or shall impose,
modify or hold applicable any reserve, special deposit, assessment, compulsory
loan, Federal Deposit Insurance Corporation insurance or similar requirement
against assets held by, deposits or other liabilities in or for the account of,
advances or loans by, other credit extended by or any other acquisition of funds
by, any of your offices; (c) does or shall impose, modify or hold applicable any
capital adequacy requirements (whether or not having the force of law); or (d)
does or shall impose on you any other condition; and the result of any of the
foregoing is (i) to increase the cost to you of issuing or maintaining any
Credit or of performing any transaction under any L/C Document, (ii) to reduce
any amount receivable by you under any L/C Document, or (iii) to reduce the rate
of return on your capital or the capital of the Holding Company to a level below
that which you or the Holding Company could have achieved but for any
imposition, modification or application of any capital adequacy requirement
(taking into consideration your policy and the policy of the Holding Company, as
the case may be, with respect to capital adequacy), and any such increase or
reduction is material (as determined by you or the Holding Company, as the case
may be, in your or the Holding Company's sole discretion); then, in any such
case, Applicant agrees to pay to you or the Holding Company, as the case may be,
such amount or amounts as may be necessary to compensate you or the Holding
Company for (A) any such additional cost, (B) any reduction in the amount
received by you under any L/C Document, or (C) to the extent allocable (as
determined by you or the Holding Company, as the case may be, in your or the
Holding Company's sole discretion) to any L/C Document, any reduction in the
rate of return on yourcapital or the capital of the Holding Company.
SECTION 10. COLLATERAL. In addition to, and not in substitution for, any
Property delivered, conveyed, transferred or assigned to you under any Loan
Document as security for any or all of Applicant's obligations and liabilities
to you at any time existing under or in connection with any L/C Document or any
Loan Document, Applicant agrees to deliver, convey, transfer and assign to you
on demand, as security, Property of a value and character satisfactory to you,
(i) if you at any time reasonably feel insecure about Applicant's ability or
willingness to repay any amounts which you have paid or may pay in the future on
any Demand or in honoring any other of your obligations under or in connection
with any Credit, or (ii) without limiting the generality of the foregoing, if
any temporary or permanent restraining order, preliminary or permanent
injunction, or any other pretrial or permanent injunctive or similar relief is
obtained restraining, prohibiting or enjoining you, any of your correspondents,
or any advising, confirming, negotiating, paying or other bank from paying or
negotiating any Demand or honoring any other obligation under or in connection
with any Credit. Applicant agrees that the receipt by you or any of your agents
or correspondents at any time of any kind of security, including, without
limitation, cash, shall not be deemed a waiver of any of your rights or powers
under this Agreement. Applicant agrees to sign and deliver to you on demand, all
such deeds of trust, security agreements, financing statements and other
documents as you shall at any time request which are necessary or desirable (in
your sole opinion) to grant to you an effective and perfected security interest
in and to any or all of the Collateral. Applicant agrees to pay all filing and
recording fees related to the perfection of any security interest granted to you
in accordance with this Section. Applicant hereby agrees that any or all of the
Collateral may be held and disposed of as provided in this Agreement by you.
Upon any transfer, sale, delivery, surrender or endorsement of any Document or
Property which is or was part of the Collateral, Applicant will indemnify and
hold you and your agents and correspondents harmless from and against each and
every claim, demand, action or suit which may arise against you or any of your
agents or correspondents by reason of such transfer, sale, delivery, surrender
or endorsement.
SECTION 11. INDEMNIFICATION. EXCEPT TO THE EXTENT CAUSED BY YOUR LACK OF
GOOD FAITH, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, APPLICANT
AGREES TO REIMBURSE AND INDEMNIFY YOU FOR (a) ALL AMOUNTS PAID BY YOU TO ANY
BENEFICIARY UNDER OR IN CONNECTION WITH ANY GUARANTEE OR SIMILAR UNDERTAKING
ISSUED BY SUCH BENEFICIARY TO A THIRD PARTY AT APPLICANT'S REQUEST, WHETHER SUCH
REQUEST IS COMMUNICATED DIRECTLY BY APPLICANT OR THROUGH YOU TO SUCH
BENEFICIARY; AND (b) ALL DAMAGES, LOSSES, LIABILITIES, ACTIONS, CLAIMS, SUITS,
PENALTIES, JUDGMENTS, OBLIGATIONS, COSTS OR EXPENSES, OF ANY KIND WHATSOEVER AND
HOWSOEVER CAUSED, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND INTEREST,
PAID, SUFFERED OR INCURRED BY, OR IMPOSED UPON, YOU DIRECTLY OR INDIRECTLY
ARISING OUT OF OR IN CONNECTION WITH (i) ANY L/C DOCUMENT, ANY LOAN DOCUMENT,
ANY DOCUMENT OR ANY PROPERTY REFERRED TO IN OR RELATED TO ANY CREDIT; (ii)
APPLICANT'S FAILURE TO COMPLY WITH ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT;
(iii) THE ISSUANCE OF ANY CREDIT; (iv) THE TRANSFER OF ANY CREDIT; (v) ANY
GUARANTEE OR SIMILAR UNDERTAKING, OR ANY TRANSACTIONS THEREUNDER, ISSUED BY ANY
BENEFICIARY TO A THIRD PARTY AT APPLICANT'S REQUEST, WHETHER SUCH REQUEST IS
COMMUNICATED DIRECTLY BY APPLICANT OR THROUGH YOU TO SUCH BENEFICIARY; (vi) ANY
COMMUNICATION MADE BY YOU, ON APPLICANT'S INSTRUCTIONS, TO ANY BENEFICIARY
REQUESTING THAT SUCH BENEFICIARY ISSUE A GUARANTEE OR SIMILAR UNDERTAKING TO A
THIRD PARTY OR THE ISSUANCE OF ANY SUCH GUARANTEE OR SIMILAR UNDERTAKING; (vii)
THE COLLECTION OF ANY AMOUNTS APPLICANT OWES TO YOU UNDER OR IN CONNECTION WITH
ANY L/C DOCUMENT OR ANY LOAN DOCUMENT; (viii) THE FORECLOSURE AGAINST, OR OTHER
ENFORCEMENT OF, ANY COLLATERAL; (ix) THE PROTECTION, EXERCISE OR ENFORCEMENT OF
YOUR RIGHTS AND REMEDIES UNDER OR IN CONNECTION WITH ANY L/C DOCUMENT OR ANY
LOAN DOCUMENT; (x) ANY COURT DECREES OR ORDERS, INCLUDING, WITHOUT LIMITATION,
TEMPORARY OR PERMANENT RESTRAINING ORDERS, PRELIMINARY OR PERMANENT INJUNCTIONS,
OR ANY OTHER PRETRIAL OR PERMANENT INJUNCTIVE OR SIMILAR RELIEF, RESTRAINING,
PROHIBITING OR ENJOINING OR SEEKING TO RESTRAIN, PROHIBIT OR ENJOIN YOU, ANY OF
YOUR CORRESPONDENTS OR ANY ADVISING, CONFIRMING, NEGOTIATING, PAYING OR OTHER
BANK FROM PAYING OR NEGOTIATING ANY DEMAND OR HONORING ANY OTHER OBLIGATION
UNDER OR IN CONNECTION WITH ANY CREDIT; OR (xi) ANY CREDIT BEING GOVERNED BY
LAWS OR RULES OTHER THAN THE UCP IN EFFECT ON THE DATE SUCH CREDIT IS ISSUED.
THE INDEMNITY PROVIDED IN THIS SECTION WILL SURVIVE THE TERMINATION OF THIS
AGREEMENT AND THE EXPIRATION OR CANCELLATION OF ANY OR ALL THE CREDITS.
SECTION 12. LIMITATION OF LIABILITY. Notwithstanding any other provision
of this Agreement, neither you nor any of your agents or correspondents will
have any liability to Applicant for any action, neglect or omission, if done in
good faith, under or in connection with any L/C Document, Loan Document or
Credit, including, without limitation, the issuance or any amendment of any
Credit, the failure to issue or amend any Credit, or the honoring or dishonoring
of any Demand under any Credit, and such good faith action, neglect or omission
will bind Applicant. Notwithstanding any other provision of any L/C Document, in
no event shall you or your officers or directors be liable or responsible,
regardless of whether any claim is based on contract or tort, for (a) any
special, consequential, indirect or incidental damages, including, without
limitation, lost profits, arising out of or in connection with the issuance of
any Credit or any action taken or not taken by you in connection with any L/C
Document, any Loan Document, or any Document or Property referred to in or
related to any Credit; (b) the honoring of any Demand in accordance with any
order or directive of any court or government or regulatory body or entity
requiring such honor despite any temporary restraining order, restraining order,
preliminary injunction, permanent injunction or any type of pretrial or
permanent injunctive relief or any
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similar relief, however named, restraining, prohibiting or enjoining such honor;
(c) the dishonoring of any Demand in accordance with any legal or other
restriction in force at the time and in the place of presentment or payment; (d)
verifying the existence or reasonableness of any act or condition referenced, or
any statement made, in connection with any drawing or presentment under any
Credit; (e) the use which may be made of any Credit; (f) the validity of any
purported transfer of any Credit or the identity of any purported transferee of
any Beneficiary; (g) any acts or omissions of any Beneficiary or any other user
of any Credit; (h) the form, validity, sufficiency, correctness, genuineness or
legal effect of any Demand or any Document, or of any signatures or endorsements
on any Demand or Document, even if any Demand or any Document should in fact
prove to be in any or all respects invalid, insufficient, fraudulent or forged;
(i) payment by you of any Demand when the Demand and any accompanying Documents
appear on their face to comply substantially with the terms of the Credit to
which they relate or dishonor by you of any Demand when the Demand and any
accompanying Documents do not strictly comply on their face with the terms of
the Credit to which they relate; (j) the failure of any Demand or Document to
bear any reference or adequate reference to the Credit to which it relates; (k)
the failure of any Document to accompany any Demand; (l) the failure of any
person or entity to note the amount of any Demand on the Credit to which it
relates or on any Document; (m) the failure of any person or entity to surrender
or take up any Credit; (n) the failure of any Beneficiary to comply with the
terms of any Credit or to meet the obligations of such Beneficiary to Applicant;
(o) the failure of any person or entity to send or forward Documents if and as
required by the terms of any Credit; (p) any errors, inaccuracies, omissions,
interruptions or delays in transmission or delivery of any messages, directions
or correspondence by mail, cable, telegraph, wireless or otherwise, whether or
not they are in cipher; (q) any notice of nonrenewal of a Credit sent by you not
being received on time or at any time by the Beneficiary of such Credit; (r) any
inaccuracies in the translation of any messages, directions or correspondence;
(s) any Beneficiary's use of the proceeds of any Demand; (t) any Beneficiary's
failure to repay to you or Applicant the proceeds of any Demand if the terms of
any Credit require such repayment; or (u) any act, error, neglect, default,
negligence, gross negligence, omission, willful misconduct, lack of good faith,
insolvency or failure in business of any of your agents or correspondents or of
any advising, confirming, negotiating, paying or other bank. The occurrence of
any one or more of the contingencies referred to in the preceding sentence shall
not affect, impair or prevent the vesting of your rights or powers under this
Agreement or any Loan Document or Applicant's obligation to make reimbursement
or payment to you under this Agreement or any Loan Document. The provisions of
this Section will survive the termination of this Agreement and any Loan
Documents and the expiration or cancellation of any or all the Credits.
SECTION 13. EVENTS OF DEFAULT. Each of the following shall constitute an
Event of Default under this Agreement: (a) Applicant's or any Guarantor's
failure to pay any principal, interest, fee or other amount when due under or in
connection with any L/C Document or any Loan Document; (b) Applicant's failure
to deliver to you Property of a value and character satisfactory to you at any
time you have demanded security from Applicant pursuant to Section 10 of this
Agreement; (c) the occurrence and continuance of any default or defined event of
default under any Loan Document or any other agreement, document or instrument
signed or made by Applicant or any Guarantor in your favor; (d) Applicant's or
any Guarantor's failure to perform or observe any term, covenant or agreement
contained in this Agreement or any Loan Document (other than those referred to
in subsections (a), (b) and (c) of this Section, or the breach of any other
obligation owed by Applicant or any Guarantor to you, and any such failure or
breach shall be impossible to remedy or shall remain unremedied for thirty (30)
calendar days after such failure or breach occurs; (e) any representation,
warranty or certification made or furnished by Applicant or any Guarantor under
or in connection with any L/C Document, any Loan Document or any Collateral, or
as an inducement to you to enter into any L/C Document or Loan Document or to
accept any Collateral, shall be materially false, incorrect or incomplete when
made; (f) any material provision of this Agreement or any Loan Document shall at
any time for any reason cease to be valid and binding on Applicant or any
Guarantor or shall be declared to be null and void, or the validity or
enforceability thereof shall be contested by Applicant, any Guarantor or any
government agency or authority, or Applicant or any Guarantor shall deny that it
has any or further liability or obligation under this Agreement or any Loan
Document; (g) Applicant's or any Guarantor's failure to pay or perform when due
any indebtedness or other obligation Applicant or such Guarantor has to any
person or entity other than you if such failure gives the payee of such
indebtedness or the beneficiary of the performance of such obligation the right
to accelerate the time of payment of such indebtedness or the performance of
such obligation; (h) any guarantee of, or any security covering, any of
Applicant's indebtedness to you arising under or in connection with any L/C
Document or any Loan Document fails to be in full force and effect at any time;
(i) any material adverse change in Applicant's or any Guarantor's financial
condition; (j) Applicant or any Guarantor suspends the transaction of its usual
business or is expelled or suspended from any exchange; (k) Applicant or any
Guarantor dies or is incapacitated; (l) Applicant or any Guarantor dissolves or
liquidates; (m) Applicant or any Guarantor is not generally paying its debts as
they become due; (n) Applicant or any Guarantor becomes insolvent, however such
insolvency may be evidenced, or Applicant or any Guarantor makes any general
assignment for the benefit of creditors; (o) a petition is filed by or against
Applicant or any Guarantor seeking Applicant's or such Guarantor's 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 Applicant or any Guarantor under any federal, state or foreign
law; (p) a proceeding is instituted by or against Applicant or any Guarantor 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; (q) a custodian or a receiver is appointed for, or a
writ or order of attachment, execution or garnishment is issued, levied or made
against, any of Applicant's or any Guarantor's Property or assets; (r) an
application is made by any of Applicant's or any Guarantor's judgment creditors
for an order directing you to pay over money or to deliver other of Applicant's
or such Guarantor's Property; or (s) any government authority or any court takes
possession of any substantial part of Applicant's or any Guarantor's Property or
assets or assumes control over Applicant's or any Guarantor's affairs.
SECTION 14. REMEDIES. Upon the occurrence and continuance of any Event
of Default all amounts paid by you on any Demand which have not previously been
repaid to you, together with all interest on such amounts, and the Unpaid and
Undrawn Balance, if any, shall automatically be owing by Applicant to you and
shall be due and payable by Applicant on demand without presentment or any other
notice of any kind, including, without limitation, notice of nonperformance,
notice of protest, protest, notice of dishonor, notice of intention to
accelerate, or notice of acceleration, all of which are expressly waived by
Applicant. Upon payment of the Unpaid and Undrawn Balance to you Applicant shall
have no further legal or equitable interest therein, and you will not be
required to segregate on your books or records the Unpaid and Undrawn Balance
paid by Applicant. After you receive the Unpaid and Undrawn Balance, you agree
to pay to Applicant, upon termination of all of your liability under all the
Credits and Demands, a sum equal to the amount which has not been drawn under
all the Credits less all amounts due and owing to you from Applicant under or in
connection with the L/C Documents and the Loan Documents. Further, upon the
occurrence and continuance of any Event of Default, you may sell immediately,
without demand for payment, advertisement or notice to Applicant, all of which
are hereby expressly waived, any and all Collateral, received or to be received,
at private sale or public auction or at brokers' board or upon any exchange or
otherwise, at your option, in such parcel or parcels, at such times and places,
for such prices and upon such terms and conditions as you may deem proper, and
you may apply the net proceeds of each sale, together with any sums due from you
to Applicant, to the payment of any and all obligations and liabilities due from
Applicant to you under or in connection with the
5
L/C Documents and the Loan Documents, all without prejudice to your rights
against Applicant with respect to any and all such obligations and liabilities
which may be or remain unpaid. If any such sale be at brokers' board or at
public auction or upon any exchange, you may yourself be a purchaser at such
sale free from any right of redemption, which Applicant hereby expressly waive
and release. All your rights and remedies existing under the L/C Documents and
the Loan Documents are in addition to, and not exclusive of, any rights or
remedies otherwise available to you under applicable law. In addition to any
rights now or hereafter granted under applicable law, and not by way of
limitation of any such rights, upon the occurrence and continuance of any Event
of Default, Applicant hereby authorizes you at any time or from time to time,
without notice to Applicant or to any other person (any such notice being hereby
expressly waived by Applicant) and to the extent permitted by law, to
appropriate and to apply any and all Applicant's deposits (general or special,
including, without limitation, indebtedness evidenced by certificates of
deposit) with you or elsewhere, whether matured or unmatured, and any other
indebtedness at any time held or owing by you to or for Applicant's credit or
its account, against and on account of Applicant's obligations and liabilities
to you under or in connection with any of the L/C Documents or the Loan
Documents, irrespective of whether or not you shall have made any demand for
payment of any or all such obligations and liabilities or declared any or all
such obligations and liabilities to be due and payable, and although any or all
such obligations and liabilities shall be contingent or unmatured.
SECTION 15. WAIVERS. No delay, extension of time, renewal, compromise or
other indulgence which may occur or be granted by you under any L/C Document or
any Loan Document shall impair your rights or powers under this Agreement or any
Application. You shall not be deemed to have waived any of your rights under
this Agreement or any Application unless such waiver is in writing signed by
your authorized representative. No such waiver, unless expressly provided
therein, shall be effective as to any transactions which occur subsequent to the
date of such waiver or as to the continuance of any Event of Default after such
waiver. No amendment or modification of this Agreement shall be effective unless
it is in writing signed by Applicant's and your authorized representative(s).
SECTION 16. AMENDMENTS AND MODIFICATIONS TO CREDITS. At Applicant's
verbal or written request, or with Applicant's verbal or written consent, and
without extinguishing or otherwise affecting Applicant's obligations under this
Agreement or any Loan Document, you may with respect to any Credit, in writing
or by any other action, but you will not be obligated to, (a) increase the
amount of such Credit, (b) extend the time for, and amend or modify the terms
and conditions governing, the making and honoring of any Demand or Document or
any other terms and conditions of such Credit, or (c) waive the failure of any
Demand or Document to comply with the terms of such Credit, and any Collateral
pledged or granted to you in connection with such Credit will secure Applicant's
obligations to you with respect to such Credit as amended, modified or waived.
No amendment to, or modification of, the terms of any Credit will become
effective if the Beneficiary of such Credit or any confirming bank objects to
such amendment or modification. If any Credit is amended or modified in
accordance with this Section, Applicant shall be bound by, and obligated under,
the provisions of this Agreement with respect to such Credit as so amended or
modified, and any action taken by you or any advising, confirming, negotiating,
paying or other bank in accordance with such amendment or modification.
SECTION 17. SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement and each Application shall bind Applicant's heirs, executors,
administrators, successors and assigns, and all rights, benefits and privileges
conferred on you under or in connection with each L/C Document and each Loan
Document shall be and hereby are extended to, conferred upon and may be enforced
by your successors and assigns. Applicant will not assign this Agreement or
Applicant's obligations or liabilities to you under or in connection with any
L/C Document or Loan Document to any person or entity without your prior written
approval.
SECTION 18. GOVERNING LAW. This Agreement and each Application, and
Applicant's and your performance under this Agreement and each Application,
shall be governed by and be construed in accordance with the laws of the State
of California. Unless you otherwise specifically agree in writing, each Credit,
the opening of each Credit, the performance by you under each Credit, and the
performance by the Beneficiary and any advising, confirming, negotiating, paying
or other bank under each Credit, shall be governed by and be construed in
accordance with the UCP in force on the date of the issuance of each Credit.
SECTION 19. JURISDICTION AND SERVICE OF PROCESS. Any suit, action or
proceeding against Applicant under or with respect to any L/C Document may, at
your sole option, be brought in (a) the courts of the State of California, (b)
the United States District Courts in California, (c) the courts of Applicant's
jurisdiction of incorporation or principal office, or (d) the courts of the
jurisdiction where any Beneficiary, any advising, confirming, negotiating,
paying or other bank, or any other person or entity has brought any suit, action
or proceeding against you with respect to any Credit or any Demand, and
Applicant hereby submits to the nonexclusive jurisdiction of such courts for the
purpose of any such suit, action, proceeding or judgment and waives any other
preferential jurisdiction by reason of domicile. Applicant will accept joinder
in any suit, action or proceeding brought in any court or jurisdiction against
you by any Beneficiary, any advising, confirming, negotiating, paying or other
bank or any other person or entity with respect to any Credit or any Demand.
Applicant irrevocably waives trial by jury and any objection, including, without
limitation, any objection of the laying of venue or any objection based on the
grounds of FORUM NON CONVENIENS, which Applicant may now or hereafter have to
the bringing of any such action or proceeding. Applicant further waives any
right to transfer or change the venue of any suit, action or proceeding brought
against Applicant by you under or in connection with any L/C Document. Applicant
irrevocably consents to the service of process in any action or proceeding in
any court by the mailing of copies thereof by registered or certified mail,
postage prepaid, to Applicant at its address specified next to its signature on
this Agreement or at such other address as Applicant shall have notified to you
in writing, such service to be effective ten (10) days after such mailing.
SECTION 20. JOINT APPLICANTS. If this Agreement is signed by more than
one person and/or entity as an Applicant, this Agreement and the Applications
shall be the joint and several agreement of all such persons and/or entities and
that all references to "Applicant" or "Applicant's" in this Agreement and the
Applications shall refer to all such persons and/or entities jointly and
severally.
SECTION 21. SEVERABILITY. Any provision of any L/C Document which is
prohibited or unenforceable in any jurisdiction shall be, only as to such
jurisdiction, ineffective to the extent of such prohibition or unenforceability,
but all the remaining provisions of such L/C Document and all the other L/C
Documents shall remain valid.
SECTION 22. HEADINGS. The headings used in this Agreement are for
convenience of reference only and shall not define or limit the provisions of
this Agreement.
SECTION 23. COMPLETE AGREEMENT. The entire agreement with respect to
each Credit will consist of this Agreement and the Application for such Credit,
together with any written document or instrument signed by Applicant and you, or
signed by Applicant and approved by you, which specifically references such
Credit, the Application for such Credit, or this Agreement. Except as
specifically provided in this Agreement, in any Application or in any written
document or instrument referred
6
to in the preceding sentence, no statements or representations not contained in
this Agreement, such Application or such written document or instrument shall
have any force or effect on this Agreement, such Application or such written
document or instrument.
ADDITIONAL PROVISIONS APPLICABLE IF THE APPLICANT IS LOCATED IN OREGON
Section Oregon 1. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND
COMMITMENTS MADE BY A LENDER AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER
CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES OR
SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS
CONSIDERATION, AND BE SIGNED BY THE LENDER TO BE ENFORCEABLE.
ADDITIONAL PROVISIONS APPLICABLE IF THE APPLICANT IS LOCATED IN WASHINGTON
Section Washington 1. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE
UNDER WASHINGTON LAW.
ADDITIONAL PROVISIONS APPLICABLE IF THE APPLICANT IS LOCATED IN NEBRASKA
Section Nebraska 1. ENFORCEABILITY OF WRITTEN TERMS ONLY. A CREDIT
AGREEMENT MUST BE IN WRITING TO BE ENFORCEABLE UNDER NEBRASKA LAW. TO PROTECT
THE PARTIES FROM ANY MISUNDERSTANDINGS OR DISAPPOINTMENTS, ANY CONTRACT,
PROMISE, UNDERTAKING OR OFFER TO FOREBEAR REPAYMENT OF MONEY OR TO MAKE ANY
OTHER FINANCIAL ACCOMMODATION IN CONNECTION WITH THIS LOAN OF MONEY OR GRANT OR
EXTENSION OF CREDIT, OR ANY AMENDMENT OF, CANCELLATION OF, WAIVER OF, OR
SUBSTITUTION FOR ANY OR ALL OF THE TERMS OR PROVISIONS OF ANY INSTRUMENT OR
DOCUMENT EXECUTED IN CONNECTION WITH THIS LOAN OF MONEY OR GRANT OR EXTENSION OF
CREDIT, MUST BE IN WRITING TO BE EFFECTIVE.
ADDITIONAL PROVISIONS APPLICABLE IF THE APPLICANT IS LOCATED IN IOWA
Section Iowa 1. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS
AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN
CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT
ONLY BY ANOTHER WRITTEN AGREEMENT.
Section Iowa 2. By signing this Agreement, Applicant acknowledges
receipt of a copy of this Agreement.
This Agreement is signed by Applicant's duly authorized representative
or representatives on the date specified below.
Handspring, Inc. Handspring, Inc.
------------------------------------ -------------------------------------
[APPLICANT'S NAME] [APPLICANT'S NAME]
BY: /s/ Xxxxxxx Xxxxxxx BY: /s/ Xxxxx Xxxx
------------------------------ ------------------------------
TITLE: CFO TITLE: VP, General Counsel
----------------------- -----------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
[ADDRESS] [ADDRESS]
DATE: DATE:
------------------------------ ------------------------------
7
ANNEX A
XXXXX FARGO BANK, N.A.
TRADE SERVICES DIVISION, NORTHERN CALIFORNIA
000 XXXXXX XXXXXX, 00XX XXXXX
XXX XXXXXXXXX, XXXXXXXXXX 00000
IRREVOCABLE STANDBY LETTER OF CREDIT
Bank of America, N.A. Letter of Credit No. _________
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx Date: ___________ __, 2001
Xxx Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxxx
Ladies and Gentlemen:
At the request and for the account of Handspring, Inc., 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx Xxxx, XX 00000, we hereby establish our Irrevocable Standby
Letter of Credit in your favor in the amount of Nine Xxxxxxx Xxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars (US$9,284,000.00) available with us at our
above office by payment of your draft(s) drawn on us at sight accompanied by a
signed and dated statement worded as follows with the instruction in brackets
therein complied with:
"The undersigned, an authorized representative of [INSERT
BENEFICIARY NAME] hereby states that the amount drawn under Xxxxx
Fargo Bank, N.A. Letter of Credit No. _________ is being drawn
pursuant to the terms of the work letter attached to that certain
lease dated February 14, 2001 between Handspring, Inc., as tenant
and M-F Downtown Sunnyvale, LLC, as landlord."
Each draft must also be accompanied by the original of this Letter of
Credit for our endorsement on this Letter of Credit of our payment of such
draft.
Partial and multiple drawings are permitted under this Letter of Credit.
Each draft must be marked "Drawn under Xxxxx Fargo Bank, N.A. Letter of
Credit No. ______."
If any instructions accompanying a drawing under this Letter of Credit
request that payment is to be made by transfer to an account with us or at
another bank, we and/or such other bank may rely on an account number specified
in such instructions even if the number identifies a person or entity different
from the intended payee.
This Letter of Credit expires at our above office on February __, 2002
but shall be automatically extended, without written amendment, first to
February __, 2003 and then to, but not beyond January 30, 2004 unless we have
sent written notice to you at your address above by registered mail or express
courier and also to M-F Downtown Sunnyvale, LLC c/o The Mozart Development
Company, 0000 Xxxx Xxxxxx Xxxxxx, Xxxx Xxxx, XX 00000, Attention: Xxxx Xxxxxx by
registered mail or express courier that we elect
8
not to renew this Letter of Credit beyond the date specified in such notice
which date will be February __, 2002 or February __, 2003 and be at least 30
calendar days after the date we send both of you such notice.
This Letter of Credit is transferable. Transfer may be affected only
through ourselves and only upon payment of our usual transfer fee of .25% of the
amount transferred, with a minimum of $250.00 and a maximum of $5,000.00 and
upon presentation to us at our above-specified office of a duly executed
instrument of transfer in the form attached to this Letter of Credit as Exhibit
A together with the original of this Letter of Credit.
This Letter of Credit is subject to the Uniform Customs and Practice For
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, and engages us in accordance therewith.
Very truly yours
XXXXX FARGO BANK, N.A.
BY: _____________________________
(AUTHORIZED SIGNATURE)
9
EXHIBIT A
XXXXX FARGO BANK, N.A.
LETTER OF CREDIT NO. _____
================================================================================
Date: _______________
Xxxxx Fargo Bank, N.A.
Trade Services Division, Northern California
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Subject: Your Letter of Credit No. _________
Ladies and Gentlemen:
For value received, we hereby irrevocably assign and transfer all our
rights under the above-captioned Letter of Credit, as heretofore and hereafter
amended, extended or increased, to:
-------------------------
[INSERT NAME OF TRANSFEREE]
-------------------------
-------------------------
[INSERT ADDRESS]
By this transfer, all of our rights in the Letter of Credit are
transferred to the transferee, and the transferee shall have sole rights as
beneficiary under the Letter of Credit, including sole rights relating to any
amendments, whether increases or extensions or other amendments, and whether now
existing or hereafter made. You are hereby irrevocably instructed to advise
future amendment(s) of the Letter of Credit to the transferee without our
consent or notice to us.
Enclosed are the original Letter of Credit and the original of all
amendments to this date. Also enclosed is $_______________ in payment of your
transfer commission (1/4% of the amount transferred, minimum $250.00 and maximum
$5,000.00). Please notify the transferee of this transfer and of the terms and
conditions of the Letter of Credit as transferred. this transfer will not become
effective until the transferee is so notified.
Very truly yours,
[INSERT NAME OF TRANSFEROR]
By: ______________________________
Name: __________________________
Title: __________________________
Signature of Transferor Guaranteed
[INSERT NAME OF BANK]
By: ______________________________
Name: __________________________
10
Title: __________________________
================================================================================
AGREED TO AND ACCEPTED BY:
-------------------------
APPLICANT
-------------------------
AUTHORIZED SIGNATURE
