Termination Agreement - BankAmerica Business Credit Inc. and Compression Labs Inc.
[BANKAMERICA BUSINESS CREDIT, INC. LETTERHEAD]
June 4, 1996
Compression Labs, Inc.
2860 Junction Avenue
San Jose, Calif. 95134
Gentlemen:
Compression Labs, Inc. ("CLI") has advised BankAmerica Business Credit,
Inc. ("BABC") that it intends to repay in full a loan evidenced, in part, by a
certain Loan and Security Agreement, dated August 21, 1995 (the Loan and
Security Agreement as amended, modified and supplemented prior to the date
hereof being hereinafter referred to as "Loan Agreement") between BABC, as
lender, and CLI, as borrower. BABC has arranged to be issued, on CLI's behalf,
a certain letter of credit under the terms of the Loan Agreement. The Letter of
Credit, number 228363, has been issued by Bank of America, N.T. & S.A. (the
"Bank") in the face amount of $100,000. In the event the Letter of Credit was
drawn on during the term of the Loan Agreement, BABC would have the right to
charge any amounts paid thereunder to CLI's loan account.
CLI has advised BABC that on or about June 5, 1996 ("Loan Payoff
Date"), it wishes to repay the loan outstanding under the Loan Agreement and
has requested that BABC terminate its rights under the Loan Agreement,
notwithstanding the fact that the Letter of Credit is still outstanding. BABC
is willing to terminate the Loan Agreement and release its security interest in
CLI's assets upon the condition that CLI deposit adequate funds with BABC such
that if charges and fees are owing to the Bank or BABC by CLI or if the Letter
of Credit is drawn upon and BABC is obligated to advance any funds in
connection therewith or if charges and commissions are owing to the Bank or to
BABC in connection with the Letter of Credit, BABC will be in possession of
sufficient funds against which BABC may charge such fees, charges, advances,
and commissions.
Accordingly, please acknowledge and confirm (by signing and dating the
enclosed copy of this letter where indicated below and returning it to me by
facsimile transmission and first class mail) CLI's agreement with the
following:
1. Deposit of Funds. In addition to paying the amount of the
outstanding Loans (as defined in the Loan Agreement) on the Loan Payoff Date,
CLI shall deposit with BABC the sum ("Satisfaction of Letters of Credit
Deposit") of $100,500 (which is equal to the anticipated draws and charges due
on the Letter of Credit. The Satisfaction of Letters of Credit Deposit shall
not be deemed held in escrow and may be commingled with BABC's other funds.
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Compression Labs, Inc.
June 4, 1996
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2. Commissions. CLI shall pay to BABC any and all fees owing to BABC
otherwise payable under the Loan Documents in connection with the Letter of
Credit while the Letter of Credit is outstanding. In particular, CLI shall pay
to BABC commissions and fees equal to one and one-half percent (1.50%) per
annum based on the unpaid amount of the Letter of Credit which commissions and
fees shall be paid in monthly installments on the last day of each month. CLI
shall, on BABC's demand, immediately reimburse BABC for all Bank charges and
other disbursements incurred by BABC in connection with the Letter of Credit.
All commissions and fees owing to BABC and such other charges may be charged to
the Satisfaction of Letters of Credit Deposit at the time such charges,
commissions, and disbursements are due or paid by BABC, as applicable.
3. Indemnity and Defense. CLI shall reimburse, indemnify, and defend
BABC against any and all claims, losses, liabilities, actions, proceedings,
penalties, judgments, causes of action, and expenses (including all attorneys
fees, court costs, and the allocated costs of in-house counsel) which BABC may
incur as a result of or arise out of any payments made under or draws on the
Letter of Credit. These indemnities shall survive termination and/or payment of
the Letter of Credit.
4. Recoupment and Setoff. CLI shall reimburse BABC for all bank
charges and other disbursements incurred by or for BABC in connection with the
Letter of Credit. Service charges and commissions payable by CLI hereunder may
be charged, without notice, to the Satisfaction of the Letter of Credit Deposit
at the time the charge is due, the service is rendered, or the disbursement is
made. All amounts payable by CLI to BABC hereunder, including, but not limited
to, commissions, fees, and charges, shall be due and payable on demand. CLI
agrees to be bound by BABC's regulations and interpretations concerning the
Letter of Credit, although such interpretations may be different from CLI's
own. CLI agrees that BABC shall not be liable for any error, negligence, or
mistake whether of omission or commission, in following CLI's instructions or
those contained in the Letter of Credit.
5. Security Interest in Deposit. For purposes of securing CLI's
obligations hereunder, CLI grants to BABC a security interest in and a lien on
the Satisfaction of Letters of Credit Deposit.
6. Termination of Letters of Credit. BABC intends to give the
beneficiary under the Letter of Credit, namely, The International Tendering
Company of China/National Instruments Import & Export Corporation, notice of
its intention not to renew and to terminate the Letter of Credit at least
thirty (30) days prior to the Letter of Credit's current expiration date.
7. Release of Deposit. BABC shall promptly (but in no event earlier
than five (5) business days after the following) release to CLI, in accordance
with CLI's written instructions, the Satisfaction of Letters of Credit Deposit
or the portion thereof remaining after payment of any charges thereto in
accordance with paragraphs 2, 3, and 4 above upon the latter to occur of (a)
expiration, cancellation, or withdrawal of the Letter of Credit without any
drawing thereunder or (b) the date on which all Letter of Credit obligations
are paid in full after any drawing thereunder.
8. Merger of Prior Agreements. This constitutes the entire agreement
between the parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements, representations, and understandings of
the parties relating to the subject matter hereof.
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Compression Labs, Inc.
June 4, 1996
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9. Amendments Counterparts. No supplement, modification, or
amendment of terms of this letter shall be binding unless executed in writing
by all the parties. This letter may be executed in counterparts, all of which
shall constitute but one original.
10. Waiver. No waiver of any of the provisions of this agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.
Thank you for your prompt attention to this matter.
Very truly yours,
/s/ Francesca M. Gastil
Francesca M. Gastil
Senior Account Executive
CLI has read and understands the foregoing letter and agrees to be
bound by its terms and conditions as of the date hereof.
Compression Labs, Inc.
By:
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Name:
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Title:
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TERMINATION AGREEMENT AND MUTUAL GENERAL RELEASE
This Termination Agreement and Mutual General Release ("Release") dated
June 5, 1996, is entered into by and between Compression Labs, Incorporated, a
Delaware corporation (the "Borrower"), and BankAmerica Business Credit Inc., a
Delaware corporation (the "Lender").
WHEREAS, the Lender has been advised by the Borrower that Greyrock
Business Credit, a division of Nations Credit Commercial Corporation as Agent
("Greyrock"), will pay to the Lender sufficient funds with which to repay the
total indebtedness of the Borrower to the Lender under and in connection with a
certain Loan and Security Agreement, dated as of August 21, 1995 (the Loan and
Security Agreement as amended, modified, and supplemented prior to the date
hereof and all documents executed in connection therewith and evidencing the
security therefore being hereinafter referred to as "Loan Agreements"), will be
repaid, except for the Borrower's reimbursement obligation with regard to
letters of credit issued by the Lender in connection with the Loan Agreements.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the parties agree as
follows:
1. Payment of Pay-Out Amount and Deposit. Upon payment to the Lender
of (a) the amount specified in Schedule 1 attached hereto ("Pay-Out Amount")
and (b) $100,500 (the "Satisfaction of the Letter of Credit Deposit"), all of
the obligations and liabilities of the Borrower to the Lender evidenced by the
Loan Agreements shall be terminated and satisfied in full, except for those
obligations of the Borrower under the Loan Agreements which by the express
terms thereof survive such termination. The Lender hereby confirms to the
Borrower that payment to the Lender of the Pay-Out Amount and the Satisfaction
of the Letter of Credit Deposit will not cause any prepayment penalty or other
charge under any of the Loan Agreements except as specified in Schedule 1. The
Borrower authorizes and directs Greyrock, the financial institution providing
the Pay-Out Amount to the Borrower, to disburse to the Lender additional funds
in an amount equal to the Satisfaction of the Letter of Credit Deposit.
2. Lender's Representations and Agreements. In consideration of the
payment in full of the Pay-Out Amount to the Lender and the Satisfaction of the
Letter of Credit Deposit as set forth above, the Lender hereby (a) represents
that the Lender has no other credit agreements with, loans outstanding to,
guaranties by, or interests or liens against the Borrower's real or personal
property, except as set forth in the Loan Agreements, and a letter agreement
dated June 4, 1996 (the "Letter Agreement"), a copy of which is attached,
relating to a certain letter of credit which was issued by the Lender at the
request of the Borrower, and (b) agrees that upon payment to the Lender of the
Pay-Out Amount and the Satisfaction of the Letter of Credit Deposit all
security interests and liens which the Borrower may have granted to the Lender,
other than the liens and security interests created under the Letter
Agreement, are released and terminated, (c) agrees that upon payment to the
Lender of the Pay-Out Amount and the Satisfaction of the Letter of Credit
Deposit all rights of the Lender under that certain Collection Account
Agreement, dated August 21, 1995, among the Lender, the Borrower and Bank of
America NT & SA ("The Bank") and that certain Lock Box Mail Collection Service
Operating Agreement, dated as of August 21, 1995, among the Borrower, the
Lender and The Bank shall be terminated, and (d) acknowledges and agrees that
upon payment of the Pay-Out Amount and the Satisfaction of the Letter of
Credit Deposit, the Borrower has no
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further liability or obligation under or in connection with the Loan
Agreements, except for those obligations of the Borrower under the Loan
Agreements which by the express terms thereof survive such termination, and
that payment to the Lender of the Pay-Out Amount and the Satisfaction of the
Letter of Credit Deposit will satisfy in full all of the Borrower's obligations
to the Lender, except for the Borrower's obligations under the Letter Agreement
and those obligations of the Borrower under the Loan Agreements which by the
express terms of the Loan Agreements survive termination thereof.
3. Delivery of Lien Releases. Upon delivery to the Lender of the
Pay-Out Amount and the Satisfaction of the Letter of Credit Deposit, the Lender
will deliver to the Borrower UCC termination statements and any other
appropriate collateral releases (except for the Satisfaction of the Letter of
Credit Deposit). The Lender further agrees that upon payment to the Lender of
Pay-Out Amount and the Satisfaction of the Letter of Credit Deposit, the Lender
will deliver to the Borrower such other releases, termination statements, and
other agreements, in form and substance, reasonably satisfactory to the
Borrower, as the Borrower may reasonably request in connection with the
Lender's release of its security interests and liens described above.
4. Release of All Claims. Upon payment to the Lender of the Pay-Out
Amount and the Satisfaction of the Letter of Credit Deposit, the parties hereby
mutually release and forever discharge one another, and their respective
successors, representatives, assigns, officers, directors, agents, employees,
and attorneys, and each of them, of and from any and all claims, demands,
debts, liabilities, actions, and causes of action of every kind and character
based upon or arising out of the Loan Agreements (except as hereinafter
specifically set forth and those existing under the Letter Agreement). The
parties hereby specifically waive as against one another any rights they, or
any of them, may have under Section 1542 of the California Civil Code, which
provides:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor."
5. No Assignment of Claims: Advice of Counsel. The parties hereby
warrant and represent that they have not assigned or in any other way conveyed,
transferred, or encumbered all or any portion of the claims or rights covered
by this Release. The parties, and each of them, execute this Release
voluntarily, after consultation with counsel, and with full knowledge of its
significance.
6. Indemnity for Dishonored Items. The Release is conditioned upon
payment to the Lender of the Pay-Out Amount and the Satisfaction of the Letter
of Credit Deposit. The Pay-Out Amount is calculated on the premise that all
checks and other instruments delivered by the Borrower to the Lender have been
or will be honored and paid in full. The Borrower agrees to repay the Lender,
on demand, the amount of any such check or other instrument that may be
returned for nonpayment.
7. Indemnity for Payroll Payments. The Borrower further agrees to
indemnify the Lender against any and all claims, debts, liabilities,
obligations, actions, proceedings, penalties, judgments, causes of action,
costs, and expenses (including, without limitation attorneys' fees, court
costs, and the allocated costs of in-house counsel) of every kind, which the
Lender may sustain or incur as a result of the Borrower's failure to pay any
payroll or other taxes of the Borrower or as a result of any other acts,
omission, or occurrence relating to the Borrower.
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8. Sole Agreement: Amendments. This Release, the Loan Agreements, the
Letter Agreement, and the other written documents and instruments between the
parties set forth in full all of the representations and agreements of the
parties, and this Release may not be modified or amended, nor may any rights
hereunder be waived, except in a writing signed by the parties hereto.
"BORROWER"
Compression Labs, Inc.
a Delaware corporation
By:
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Name:
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Title:
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"LENDER"
BankAmerica Business Credit, Inc.,
a Delaware corporation
By: /s/ Francesca M. Gastil
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Name: Francesca M. Gastil
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Title: Senior Account Executive
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