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Exhibit
10.10
COMMERCIAL LETTER OF
CREDIT AGREEMENT
To: WELLS FARGO BANK, NATIONAL
ASSOCIATION
Applicant hereby requests
that you, Wells Fargo Bank, National Association (“Wells
Fargo”) issue yourself in your name, or at your option
through Wells Fargo HSBC Trade Bank, National Association
(“Trade Bank”) as your agent in the Trade Bank’s
name, one or more commercial 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. Applicant further
agrees that you may in your sole discretion, but without obligation
to do so, use, and Applicant hereby authorizes you to use, the
Trade Bank as your agent to issue any Credit or to perform any of
your obligations or exercise any of your rights under any L/C
Document or Loan Document, and if you do so (1) such agent
will be your agent having obligations only to you and not to
Applicant, (2) the Credits issued through such agent will be
considered Credits issued by you pursuant to this Agreement,
(3) any of your obligations performed or any of your rights
exercised pursuant to, or in connection with, the L/C Documents or
Loan Documents by such agent in your name or in such agent’s
name shall be deemed obligations performed or rights exercised by
you yourself pursuant to, or in connection with, the L/C Documents
or Loan Documents, and (4) any collateral heretofore, now or
at any time hereafter granted or pledged to you as security for any
credit extended to Applicant will also secure all Applicant’s
obligations to you under this Agreement and the other L/C
Documents.
SECTION 1.
DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth after each term: “
Acceptance ” means any time draft drawn or made,
or purported to be drawn or made, under any Credit, and accepted
for payment by you or by any other bank you specify to accept such
time draft for payment. “ Acceptance Fee
” means the fee, computed at the acceptance fee rate
specified by you or specified in any Loan Document, charged by you
when each Acceptance is created on the amount of such Acceptance
for the time period such Acceptance is to be outstanding.
“ Agreement ” means this Commercial
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 Commercial 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. “ Credit ” means an
instrument or document titled “Irrevocable Commercial Letter
of Credit”, “Irrevocable Documentary Credit”,
“Commercial Letter of Credit”, or “Documentary
Letter of Credit”, or any instrument or document whatever it
is titled or whether or not it is titled functioning as a
commercial letter of credit, issued under or pursuant to an
Application, and all renewals, extensions and amendments of such
instrument or document. “ Deferred Payment Fee
” means the fee, computed at the deferred payment fee
rate specified by you or specified in any Loan Document, charged by
you on the amount of each Demand presented under a Credit providing
for deferred payment of Demands which are not time drafts, which
fee will be payable when the Demand is determined by you to comply
with such Credit and cover the time period from the date of such
determination to the date such Demand is payable. “
Delivery Authorization ” means any agreement,
undertaking, guarantee, indemnity, release, bond, letter, document
or authorization given or executed by you, at your option in each
case, at Applicant’s or its agent’s request to or in
favor of a carrier or other person or entity to permit delivery to
Applicant or its agent of Property referred to in or shipped under
any Credit. “ Demand ” means any sight or
time draft (before it is accepted), 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, including, without
limitation, shipping documents, warehouse receipts and policies or
certificates of insurance, 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 14 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. “
Issuance Fee ” means the fee, computed at the
issuance fee rate specified by you or specified in any Loan
Document, charged by you on the amount of each Credit and on the
amount of each increase in a Credit at the time each Credit is
issued or increased. “ L/C Document ”
means this Agreement, each Application, each Credit, each Demand,
and each Acceptance. “ 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 or
accepted by you or any other bank specified by you when each Demand
is paid or accepted. “ 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 Wells Fargo at its principal office
as its Prime Rate, with the understanding that the Prime Rate is
one of Wells 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 Wells Fargo may designate. “ Property
” means all forms of property, whether tangible or
intangible, real, personal or mixed. “ Rate of
Exchange ” means Wells Fargo’s then current
selling rate of exchange in San Francisco, California for sales of
the currency of payment of any Demand or Acceptance, 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 and
Acceptance on which you have not yet effected payment as well as
the amount undrawn under all such Credits. “ Wells
Fargo & Company ” means Wells
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. Notwithstanding the preceding sentence,
(i) in consideration for you giving or executing a Delivery
Authorization at your option at any time, you may, in your sole
discretion, receive, accept and honor, as complying with the terms
of the Credit related to the Delivery Authorization, any Demand and
any accompanying Documents which are presented under such Credit
and relate to any Property covered by such Delivery Authorization
even if such Demand or Document does not conform to the
requirements of such Credit, is not otherwise in order, or any
other term or condition of such Credit has not been complied with,
and (ii) in consideration for you issuing a Credit which, at
Applicant’s request and at your option, contains provisions
that (A) any Demand made under such Credit will be honored
only if and when you receive written notice that the Property
referred to in the Documents accompanying such Demand has been
inspected and passed and/or released and/or approved by the United
States Food and Drug Administration or by any other state or
federal government agency or regulatory authority or by any other
party or entity, and (B) the accompanying Documents are to be
released by you to Applicant or its agent for the purpose of
arranging such inspection against Applicant’s or its
agent’s signing a receipt for such Documents, you may in your
sole discretion honor and accept such Demand and Documents as
complying with the terms of such Credit without having received
written notice that such Property has been inspected and passed
and/or released and/or approved as aforesaid (1) if such
Demand and accompanying Documents appear on their face to comply
substantially with all other terms of such Credit, or Applicant has
waived any failure of such Demand or Documents to comply with the
terms of such Credit, and (2) if neither Applicant nor its
agent promptly signs such a receipt in form and substance
acceptable to you, complies with all the terms of such receipt, and
arranges such inspection of such Property.
SECTION 3. REIMBURSEMENT
FOR PAYMENT OF DEMANDS AND ACCEPTANCES. Applicant shall
reimburse you for all amounts paid by you on each Demand and on
each Acceptance, including, without limitation, all such amounts
paid by you to any paying, accepting, 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 authorize 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.
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SECTION 4. FEES AND
EXPENSES. Applicant agrees to pay to you (a) all Issuance
Fees, Negotiation Fees, Acceptance Fees, Deferred Payment 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. If you give or execute a
Delivery Authorization, Applicant agrees to pay your Delivery
Authorization charges. There shall be no refund of any portion of
any Issuance Fee in the event any Credit is used, reduced, amended,
modified or terminated before its Expiration Date or of any portion
of any Acceptance Fee or Deferred Payment Fee if any Acceptance or
deferred payment Demand is reimbursed by Applicant before it
matures.
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 on the maturity of each Acceptance or, if earlier, at the time
each amount is paid by you to any paying, accepting, 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 Acceptance 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 on such Acceptance, 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 or Acceptance. 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,
accepting or other bank from paying or negotiating any Demand or
creating or paying any Acceptance 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 13(b) through (dd) 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 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
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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 your capital 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
grants to you a security interest in and to the following
Collateral, whether or not any such Collateral is in your
possession or control or the possession or control of your agents
or correspondents or in transit to, or set apart for, you or your
agents or correspondents: (a) with respect to each Credit and
until such time as all Applicant’s obligations and
liabilities to you at any time existing under or in connection with
each Credit and the L/C Documents and Loan Documents related to
such Credit have been fully paid and discharged, all as security
for such obligations and liabilities, (i) all Property
referred to in, or at any time shipped under or pursuant to, or in
any way related to, each Credit or to any Demand made or Acceptance
created under each Credit, whether or not you receive the Documents
covering such Property or release such Documents to Applicant on
trust or bailee receipt or otherwise, (ii) all Documents
accompanying any Demand made under each Credit, and (iii) all
the proceeds of the Property and the Documents referred to in
subsections (i) and (ii) of this Section 10(a), and
(b) with respect to all the Credits and until such time as all
Applicant’s obligations and liabilities to you at any time
existing under or in connection with each L/C Document and each
Loan Document have been fully paid and discharged, all as security
for such obligations and liabilities, (i) all
Applicant’s property, claims, demands, right, title and
interest in and to the balance of each of Applicant’s deposit
accounts with you now or at any time hereafter existing, and all
evidences of such deposit accounts, (ii) all Property
belonging to Applicant or in which it may have an interest, now or
at any time hereafter delivered, conveyed, transferred, assigned,
pledged or paid to you or your agents or correspondents in any
manner whatsoever, whether as security or for safekeeping or
otherwise, including, without limitation, any items received for
collection or transmission, and the proceeds of such items, whether
or not such Property is in whole or in part released to Applicant
on trust or bailee receipt or otherwise, and (iii) where
Applicant is more than one person or entity, all right, title and
interest of each of Applicants in and to all the Property which any
of Applicants may now or hereafter obtain as security for the
obligations of any one or more of Applicants to one or more
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