EX-10 4 term_agrmnt-foothill.txt TERMINATION AGREEMENT, FOOTHILL CAPITAL Exhibit 10 (b)(i) Termination Agreement and Release This Termination Agreement and Release (this "Agreement") is dated as of August 31, 2002, by and between, on the one hand, FOOTHILL CAPITAL CORPORATION, a California corporation ("Foothill"), and, on the other hand, INTERGRAPH CORPORATION, a Delaware corporation ("Borrower"), M&S COMPUTING INVESTMENTS, INC., a Delaware corporation ("M&S") and INTERGRAPH PUBLIC SAFETY, INC., a Delaware corporation ("IPS"; together with M&S, each a "Guarantor" and individually and collectively, jointly and severally, the "Guarantors"; Borrower and the Guarantors, each an "Obligor" and individually and collectively, jointly and severally, the "Obligors"). This Agreement is entered into with reference to the following: A.On or about November 30, 1999, Foothill and Borrower entered into that certain Amended and Restated Loan and Security Agreement (as amended, restated, supplemented, or otherwise modified from time to time, the "Loan Agreement") and other related Loan Documents (as that term is defined in the Loan Agreement, and all other capitalized terms not defined in this Agreement shall have the meanings ascribed to such terms in the Loan Agreement), pursuant to which Foothill extended certain financial accommodations to Borrower, and Borrower granted in favor of Foothill a security interest in and liens on substantially all of Borrower's assets. B.Each Guarantor executed in favor of and delivered to Foothill certain guaranties, guarantor security agreements, and other pledges of collateral in connection with the financial accommodations to Borrower under the Loan Documents. C.The Obligors, in the exercise of their independent business judgment,wish to repay in full in cash all Obligations under the Loan Agreement and to exercise their option to terminate the Loan Agreement prior to the stated maturity date of January 7, 2004, pursuant to the provisions of Section 3.6 of the Loan Agreement subject to and in accordance with the terms and conditions set forth in this Agreement, including the releases contemplated hereby. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the parties hereto acknowledges and agrees as follows. 1. Payoff Amount and Payoff Reserve. On September 5, 2002 (the "Payoff Date"), the Obligors shall pay to Foothill in cash the aggregate amount of $110,000.00 (the "Payoff Amount"), consisting of: (a) $100,000.00 in respect of (and in full satisfaction of) the amount payable for the Early Termination Premium; and (b) $10,000.00 in respect of reasonably anticipated Foothill Expenses to be incurred by Foothill from and after the Payoff Date (the "Payoff Reserve"). Within sixty (60) days of the date of this Agreement, Foothill shall transfer to Borrower the unused portion, if any, of the Payoff Reserve together with an itemized list of the Foothill Expenses deducted from said Payoff Reserve. The Obligors and Foothill agree that the Payoff Amount shall be satisfied by a wire transfer of immediately available funds for receipt on the Payoff Date from Obligors to Foothill as follows: JPMorgan Chase Bank 4 New York Plaza New York, NY 10004 ABA 021000021 Credit: Foothill Capital Corporation Account: 323-266193 Reference: Intergraph Corporation Payoff 2.Termination of Obligations Other Than Indemnity. Foothill, and each Obligor acknowledge and agree that upon Foothill's receipt of (a) a fully executed counterpart of this Agreement signed by Foothill and each Obligor, (b) the Payoff Amount, and (c) a release by Wells Fargo Bank, National Association, a national banking association ("Wells Fargo"), in favor of Foothill, with respect to any and all obligations of Foothill to Wells Fargo on account of the outstanding Letters of Credit, which is in form and substance reasonably satisfactory to Foothill, duly executed by each party thereto (the "Wells Fargo Release"), all of the Obligations under the Loan Documents shall be terminated and satisfied in full and Foothill's Liens in and to the Collateral shall be released and terminated; provided, however, that (A) all Obligations to indemnify each Indemnified Person under Section 11.3 of the Loan Agreement and to reimburse Foothill for Foothill Expenses shall remain in full force and effect, and (B) to the extent that any payments or proceeds (or any portion thereof) received by Foothill shall be subsequently invalidated, declared to be fraudulent or a fraudulent conveyance or preferential, set aside or required to be repaid to a trustee, receiver, debtor-in-possession or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent that the payment or proceeds is rescinded or must otherwise be restored by Foothill, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, the Obligations or part thereof which were intended to be satisfied by any such payment or proceeds shall be revived and continue to be in full force and effect, as if the payment or proceeds had never been received by Foothill, and this Agreement shall in no way impair the claims of Foothill with respect to the revived Obligations. For the avoidance of doubt, it is expressly acknowledged and agreed that the Wells Fargo Release shall be in satisfaction of, and in lieu of, the obligation of Obligors to pay to Foothill 102% of the undrawn amount of the Letters of Credit plus the Foreign Currency Reserve referenced in Section 3.6 of the Loan Agreement. 3. Termination of Loan Documents. Each Obligor hereby confirms and agrees that (i) the commitment of Foothill to extend credit under the Loan Agreement and the other Loan Documents is terminated as of the Payoff Date, and, as of the Payoff Date, Foothill has no further obligation to extend credit to any Obligor, and (ii) upon Foothill's receipt of (a) a fully executed counterpart of this Agreement signed by Foothill and each Obligor, (b) the Payoff Amount,and (c) the Wells Fargo Release, duly executed by each party thereto, each of the Loan Agreement and the other Loan Documents is terminated and released except as specifically set forth in this Agreement. 4. Release of Collateral. Upon Foothill's receipt of (A) a fully executed counterpart of this Agreement signed by Foothill and each Obligor, (B) the Payoff Amount, and (C) the Wells Fargo Release, duly executed by each party thereto, Foothill will, as promptly as practicable: (a) Authorize any Uniform Commercial Code ("UCC") termination statements that (i) the Obligors reasonably may request to release,as of record,the financing statements previously filed by Foothill, with respect to the Obligations, and (ii) at Foothill's election, the Obligors prepare, it being expressly understood and agreed that the Obligors may file any such UCC termination statements without the signature of a Foothill representative; (b) Execute and deliver any and all other lien releases and other similar discharge or release documents and if applicable, in recordable form) that (i)the Obligors reasonably may request to release, as of record and without any recourse, representation, or warranty, the security interests and all other notices of security interests and liens previously filed by Foothill with respect to the Obligations, and (ii) at Foothill's election, the Obligors prepare; and (c) Return (without recourse, representation or warranty) to the Obligors (or any one of them that Foothill selects),within 10 Business Days after Foothill's receipt of (A) a fully executed counterpart of this Agreement signed by Foothill and each Obligor, (B) the Payoff Amount, and (C) the Wells Fargo Release, duly executed by each party thereto, any and all pledged stock certificates and related stock powers, pledged notes and related endorsements, and any other pledged instruments and related endorsements previously delivered to Foothill in connection with the Loan Documents. 5. Representations or Warranties. Foothill does not make any representation or warranty with respect to the state of title to any collateral securing the Obligations or any other matter respecting the Loan Documents. Foothill and each Obligor represent and warrant to each other party to this Agreement that it has the power and authority to enter into this Agreement. 6. Additional Documents. Foothill shall execute and deliver to or for the Obligors, at the Obligors' sole expense, such additional documents (that, at Foothill's election, the Obligors prepare) and shall provide additional information as the Obligors may reasonably require to carry out the terms of this Agreement. 7. Acknowledgments of Borrower and Guarantors. Each Obligor (a) acknowledges and agrees that the release in paragraph 11 hereof shall not release any Obligor of the Obligations arising from the indemnity provisions under Section 11.3 of the Loan Agreement and from their obligation to reimburse Foothill for Foothill Expenses under the Loan Agreement, and (b) confirms its agreement to the terms and provisions of this Agreement by returning to Foothill a signed counterpart of this Agreement. 8. Conditions. The obligations of Foothill under this Agreement are subject to the fulfillment, to the satisfaction of Foothill, of the following conditions precedent: (a) Foothill shall have received a counterpart of this Agreement duly executed by each of the parties hereto; (b) Foothill shall have received the Payoff Amount on the Payoff Date, and (c) Foothill shall have received the Wells Fargo Release,duly executed by each party thereto. 9. Released Matters. The claims released pursuant to this Agreement(the "Released Claims") include all claims between Foothill, on the one hand, and any Obligor, on the other hand, including but not limited to principal, interest, charges, fees, together with any and all other claims, demands, obligations, liabilities, indebtedness, responsibilities, disputes, breaches of contract, breaches of duty or any relationship, acts, omissions, misfeasance, malfeasance, cause or causes of action (whether at law or in equity), debts, sums of money, accounts, compensations, contracts, controversies, promises, damages, costs, rights of offset, losses and expenses, of every type, kind, nature, description or character, known and unknown, whensoever arising and occurring at any time up to and through the date hereof, whether known or unknown, suspected or unsuspected, liquidated or unliquidated, matured or unmatured, fixed or contingent, which in any way arise out of, are connected with or relate to the Loan Documents. 10. Release by the Obligors. Each Obligor, and their respective predecessors, successors and assigns,hereby fully,finally,irrevocably, forever and unconditionally release, discharge and acquit Foothill and Foothill's officers, employees and agents, from all Released Claims, except with respect to the rights and obligations under this Agreement. 11. Release by Foothill of the Obligors. Foothill hereby fully, finally,irrevocably, forever and unconditionally release, discharge and acquit each Obligor from all Released Claims, except with respect to the rights and obligations under this Agreement, under the indemnity provisions in Section 11.3 of the Loan Agreement, and under the Loan Agreement to reimburse Foothill for Foothill Expenses. 12. Transitional Wires. It is acknowledged that, generally, pursuant to the terms of the Loan Agreement, each Business Day wires of Borrower's collected funds have been sent from Bank One (Account No. 5932203) and Wells Fargo Bank Minnesota (Account Nos. 6355042493, 6355065679, 6355065628, and 6355065791) (collectively, the "Enumerated Accounts") to the Foothill Account and that Borrower typically requests that Foothill, in turn, wire to Borrower's Designated Account the corresponding amount which Foothill has received from the Enumerated Accounts. The parties hereto acknowledge and agree that following the Payoff Date and before the appropriate modifications of the Enumerated Accounts can be processed by Bank One and Wells Fargo Bank Minnesota, Foothill will continue to accommodate Borrower by implementing the appropriate wire transfer of funds into Borrower's Designated Account, provided, that Borrower shall reimburse Foothill promptly upon request for any fees, expenses or other charges reasonably incurred by Foothill in connection therewith, and shall work diligently,after the Payoff Date, to effect the modifications to the Enumerated Accounts which are required to terminate the transfer of funds from such Enumerated Accounts to the Foothill Account, which transfers shall terminate in any event no later than thirty (30) days after the Payoff Date. 13. Waiver of Statutory Benefits. The parties intend that the foregoing releases shall be effective as a full and final accord and satisfaction of Released Claims, and each of the parties hereby agrees, represents and warrants that the matters released herein are not limited to matters which are known or disclosed. In this connection, each of the parties hereby agrees, represents and warrants that it realizes and acknowledges that (a) factual matters now existing and unknown to it may have given or may hereafter give rise to Released Claims which are presently unknown, unsuspected, unliquidated, unmatured and/or contingent, (b) such Released Claims may be unknown, unsuspected, unliquidated, unmatured and/or contingent due to ignorance,oversight, error, negligence or otherwise, and (c) if such Released Claims had been known, suspected, liquidated, matured and/or unconditional, such party's decision to enter into this release may have been materially affected. Each party further agrees, represents and warrants that this release has been negotiated and agreed upon in view of these realizations.Nevertheless,each party granting a release hereby intends to release, discharge, and acquit the parties receiving a release of and from any such unknown, unsuspected, unliquidated, unmatured and/or contingent Released Claims which are in any way set forth in or related to the matters identified hereinabove. EACH PARTY HEREBY EXPLICITLY WAIVES ALL RIGHTS UNDER AND ANY BENEFITS OF ANY COMMON LAW OR STATUTORY RULE OR PRINCIPLE WITH RESPECT TO THE RELEASE OF SUCH CLAIMS, INCLUDING, WITHOUT LIMITATION, SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A 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. EACH PARTY AGREES THAT NO SUCH COMMON LAW OR STATUTORY RULE OR PRINCIPLE, INCLUDING SECTION 1542 OF THE CALIFORNIA CIVIL CODE, SHALL AFFECT THE VALIDITY OR SCOPE OR ANY OTHER ASPECT OF THIS RELEASE. 14. No Assignment. Each of the parties hereto agrees, represents, and warrants that such party has not voluntarily, by operation of law or otherwise, assigned, conveyed, transferred or encumbered, either directly or indirectly, in whole or in part, any right to or interest in any of the Released Claims. 15. Choice of Law; Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of California as applied to agreements among parties resident therein. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 16. Advice of Counsel. Each party has had advice of independent counsel of its own choosing in negotiations for and the preparation of this Agreement, has read this Agreement in full and final form, and has had this Agreement fully explained to it to its satisfaction. 17. No Third Party Beneficiaries. This Agreement is executed for the parties hereto, and no other person, corporation, partnership, individual or other entity not a party to this Agreement shall have any rights herein as a third party beneficiary or otherwise, except to the extent expressly and specifically provided herein. 18. Counterparts. This Agreement may be executed in duplicates and counterparts, which,taken together, will be deemed and serve as an original. In addition, the parties agree that their authorized representatives may bind them to the terms of this Agreement with signatures exchanged by fax, and each duplicate faxed signature copy shall be deemed to be an original of this Agreement. 19. Entire Agreement. This is the entire Agreement between the parties with respect to this matter. There are no other agreements or understandings, written or oral, express or implied. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their duly authorized representatives as of the date first written above. FOOTHILL CAPITAL CORPORATION, a California corporation By: /s/ Robert Bernier -------------------------- Name: ROBERT BERNIER -------------------------- Its: VP -------------------------- INTERGRAPH CORPORATION, a Delaware corporation By: /s/ Larry J. Laster -------------------------- Name: LARRY J. LASTER -------------------------- Its: E.V.P. & CFO -------------------------- M&S COMPUTING INVESTMENTS, INC., a Delaware corporation By: /s/ Eugene H. Wrobel -------------------------- Name: EUGENE H. WROBEL -------------------------- Its: SECRETARY -------------------------- INTERGRAPH PUBLIC SAFETY, INC., a Delaware corporation By: /s/ Larry J. Laster -------------------------- Name: LARRY J. LASTER -------------------------- Its: V.P. & CFO --------------------------