|
Exhibit
10.9
STANDBY LETTER OF CREDIT
AGREEMENT
To: WELLS FARGO BANK, NATIONAL
ASSOCIATION
Applicant hereby requests
that you, Wells Fargo Bank, National Association (“Wells
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 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 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. “ 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.
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 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.
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.
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
1 of 7
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 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 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, 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, (a) 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,
(b) 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
(c) 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 of the others of Applicants arising under or in
connection with the transaction to which any Credit
relates.
2 of 7
Further, 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 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 any of the following are
caused by your lack of good faith, gross negligence, willful
misconduct, failure to honor any Demand presented under any Credit
when such Demand and its accompanying Documents appear on
their
|
