EXHIBIT 99.2
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement") is dated and
entered into as of June 20, 2000, by and between FARO TECHNOLOGIES, INC., a
Florida corporation ("Lender"), whose current mailing address is 125 Technology
Park, Lake Mary, Florida 32746, and SIEGFRIED KURT BUSS, an individual resident
of the Federal Republic of Germany ("Borrower"), whose current mailing address
is Erich Kaestner Strasse 73, Ditzingen, Hirschlanden 71254.
WHEREAS, on May 15, 1998, Lender acquired CATS computer aided
technologies, Computeranwendungen in der Fertigungssteuerung GmbH, a limited
liability company under the laws of the Federal Republic of Germany ("CATS").
Borrower was a holder of Quotas in CATS.
WHEREAS, pursuant to a Loan Agreement dated August 2, 1999 between
Lender and Borrower (the "Original Loan Agreement"), Lender has agreed to loan
to Borrower an amount equal to his tax obligation to the German tax authority in
connection with the acquisition of CATS. The maximum amount of the loans is
estimated to be approximately $2 million.
WHEREAS, the German tax authority have indicated to Borrower that they
would be willing to issue a preliminary tax assessment for fiscal year 1998
based on a value of U.S. $4.875 per share of Common Stock of Lender (using an
exchange rate of U.S. Dollars to Deutsche Marks ("DM") of 1:1.8403 for May
1999).
WHEREAS, Borrower received 458,334 shares of Lender common stock as
part of the purchase price for the acquisition of CATS. Using a price of $4.875
per share of Lender common stock, the value of the shares of Lender common stock
received by Borrower would equal DM 4,111,926. The tax payable with respect to
such shares based on such value would equal DM 1,159,733.36.
WHEREAS, based on a stock price per share of Lender common stock on May
15, 1998 of U.S. $11.125. the value of the shares of Lender common stock
received by Borrower would equal DM 9,048,634 (using an exchange rate of U.S.
Dollars to DM of 1:1.7746 for May 1998). The tax payable with respect to such
shares based on such value would equal DM 2,552,683.73.
WHEREAS, because the tax assessment received by Borrower is only
preliminary, the German tax authority could at any time revise the tax
assessment based on the price per share of Lender common stock on May 15, 1998.
WHEREAS, the parties wish to amend the Original Loan Agreement to
provide that Lender will loan to Borrower an initial amount of DM 1,159,733.36
resulting from the preliminary tax assessment as provided for in the Original
Loan Agreement, and that Lender will pay an additional amount of DM 1,392,950.37
(DM 2,552,683.73 less DM 1,159,733.36) into an escrow account to cover possible
additional taxes payable because of a higher value of the 458,334 shares of
Lender common stock issued to Borrower in connection with the
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acquisition of CATS. The amount paid into escrow would increase the amount of
the Loan under this Agreement if distributed to pay additional taxes.
WHEREAS, once the German tax authority have issued a final tax
assessment, the amount in the escrow account will be used to pay such amount of
additional tax or, to the extent the amount in the escrow account is not needed
to pay additional taxes, will be repaid to Lender. To the extent the amount in
the escrow account is used to pay additional taxes, such amount would be
evidenced by a new promissory note issued by Borrower to Lender and such note
would be secured by shares of common stock of Lender.
WHEREAS, this Agreement amends and restates the Original Loan
Agreement.
In consideration of the loan described below and the mutual covenants
and agreements contained herein, Borrower and Lender agree as follows:
1. LOANS.
A. INITIAL LOAN.
i. Lender hereby agrees to make a loan to Borrower in the
principal amount of DM 1,159,733.36 (the "Initial Loan").
ii. The amount of the Initial Loan is equal to the tax payable
by Borrower (based on the preliminary tax assessment issued to
Borrower by the German tax authority for fiscal year 1998,
which used a value of U.S. $4.875 per share of Lender common
stock, and based on an exchange rate of U.S. Dollars to DM of
1:1.8403 for May 1999) with respect to Borrower's receipt of
458,334 shares of Lender common stock in connection with
Lender's acquisition of CATS.
iii. To evidence his obligation to repay the Initial Loan, and
to otherwise induce Lender to make the Initial Loan, Borrower
shall execute and deliver to Lender a Promissory Note, Stock
Pledge Agreement, Affidavit and Indemnity Agreement, Stock
Power and UCC-1 Financing Statement in the forms attached
hereto as EXHIBITS A, B, C, D and E, respectively (together,
the "Loan Documents") with respect to the Initial Loan at such
time that the Initial Loan is made.
iv. Lender will be obligated to make the Initial Loan to
Borrower within three (3) business days after Borrower
presents written evidence to Lender that the German tax
authority has requested payment of the tax obligations
described in Section 4 of this Agreement.
B. ADDITIONAL LOAN.
i. Lender hereby agrees to make an additional loan to Borrower
in the principal amount of up to DM 1,392,950.37 (the
"Additional Loan"), as is
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necessary to enable Borrower to satisfy his tax obligations to
the German tax authority as a result of Borrower's receipt of
458,334 shares of Lender common stock of the Lender that
Borrower received in connection with Lender's acquisition of
CATS. Lender will be obligated to make the Additional Loan
only if the German tax authority issues a final tax assessment
that assesses a greater tax obligation on Borrower than the
preliminary tax assessment issued to Borrower by the German
tax authority for fiscal year 1998 with respect to Borrower's
receipt of 458,334 shares of Lender common stock in connection
with Lender's acquisition of CATS.
ii. The maximum amount of the Additional Loan is equal to (i)
DM 2,552,683.73, which is the tax payable by Borrower (based
on a stock price per share of Lender common stock on May 15,
1998 of U.S. $11.125 and using an exchange rate of U.S.
Dollars to DM of 1:1.7746 for May 1998) with respect to
Borrower's receipt of 458,334 shares of Lender common stock in
connection with Lender's acquisition of CATS, LESS (ii) the
amount of the Initial Loan.
iii. To evidence his obligation to repay the Additional Loan,
and to otherwise induce Lender to make the Additional Loan,
Borrower shall execute and deliver to Lender the Loan
Documents with respect to the Additional Loan at such time as
the Additional Loan is made.
iv. To secure Lender's obligation pursuant to this Agreement
to make the Additional Loan to Borrower, Lender shall deposit
U.S. $679,487.99 (DM 1,392,950.37 divided by 2.05, the
exchange rate of U.S. Dollars to DM on June 9, 2000) in an
escrow account (the "Escrow Account") with Firstar Bank
Milwaukee, N.A. (the "Escrow Agent") pursuant to an Escrow
Agreement dated on or about the date of this Agreement among
Lender, Borrower, and the Escrow Agent, a copy of which is
attached as EXHIBIT F to this Agreement. Any interest on the
funds in the Escrow Account shall be paid to the Lender.
v. All funds shall remain in the Escrow Account until the
earlier of (i) July 1, 2004 or (ii) the date that Borrower
presents written evidence to Lender and the Escrow Agent that
the German tax authority has requested payment of the final
tax assessment with respect to the tax obligations for the
458,334 shares of Lender common stock that Borrower received
in connection with Lender's acquisition of CATS. Lender will
be obligated to make the Additional Loan, and funds from the
Escrow Account shall be paid to Borrower to fund the
Additional Loan, within three (3) business days after Borrower
presents written evidence to Lender that the German tax
authority has requested payment of the tax obligations
described in Section 4 of this Agreement.
vi. The Escrow Agent is obligated to pay to the Borrower funds
from the Escrow Account (without permission of the Lender) as
are necessary to enable Borrower to satisfy his tax
obligations to the German tax authority as described
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in Section 4 of this Agreement upon presentation by Borrower
to the Escrow Agent of (i) copies of the Loan Documents for
the Additional Loan executed by Borrower and delivered to
Lender, and (ii) written evidence to Lender that the German
tax authority has requested payment of the tax obligations
described in Section 4 of this Agreement.
vii. Any funds remaining in the Escrow Account after July 1,
2004 or any funds not needed to pay the final tax assessment
with respect to the tax obligations for the 458,334 shares of
Lender common stock that Borrower received in connection with
Lender's acquisition of CATS shall be returned immediately to
Lender.
C. DEFINITION OF THE LOANS. The Initial Loan and the
Additional Loan are each referred to as a "Loan" and collectively are referred
to as the "Loans."
2. LENDER'S COMMITMENT. Lender's obligation to extend the Loans to
Borrower is a valid, legal, irrevocable and binding corporate obligation which
shall not be rescinded or withdrawn in the event of a change of Lender's present
management or ownership.
3. TERMS AND CONDITIONS OF LOAN. The Loans shall be governed by the
following terms and conditions in addition to all terms and conditions set forth
in the Loan Documents.
A. PAYMENT.
i. Notwithstanding any contrary provision set forth herein or
in any document related hereto, Borrower shall be obligated to
pay all outstanding principal, together with all then accrued
and unpaid interest under each Loan, on or before the earlier
of (a) the end of the three year period that commences on the
date the Borrower executes and delivers the Loan Documents to
Lender with respect to each Loan, or (b) that date when the
preceding five (5) trading days of the Lender's common stock
yields an average closing price of $11.34 per share (each such
date hereinafter referred to as the "Maturity Date"). On such
Maturity Date as defined in Section 3A(i)(b), it shall be
within Borrower's discretion to repay the Loans either in
cash, or, in lieu thereof, with shares of the common stock of
Lender at an agreed upon price of $11.34 per share. For the
purpose of repaying the Loans with shares of the Lender's
common stock as provided for in this Section 3A(i), Borrower
shall be required to utilize that portion of the Collateral
(as defined in Section 3E below) which is equal in value to
the amount of Loans being repaid.
ii. Notwithstanding the foregoing, in the event a Loan is
still outstanding at end of the three year period that
commences on the date Borrower executes and delivers the Loan
Documents to the Lender with respect to such Loan, Borrower
shall have the option of either: (a) requiring Lender to renew
or
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extend the Loan for an additional term of three (3) years or
(b) canceling the Loan, effective as of the three year
anniversary date, by providing Lender with written notice in
accordance with the provisions of Section 10 below, and in
exchange for such cancellation Borrower shall irrevocably
authorize Lender to dispose of the Collateral in accordance
with the terms and conditions of Section 9 below. The parties
hereby agree that the three year anniversary date shall be the
date which coincides with the end of the three year period
that commences on the date Borrower executes and delivers the
Loan Documents to the Lender with respect to a Loan, and if
Borrower elects to cancel such Loan effective as of such date,
the date shall hereinafter be referred to as the "Anniversary
Cancellation Date." If on the Anniversary Cancellation Date,
the value of the Collateral is less than the sum of: (i) the
outstanding principal balance of the Loan; (ii) any accrued
but unpaid interest on the Loan; (iii) any fees authorized and
due and owing to Lender pursuant to the Promissory Note with
respect to the Loan; and (iv) any costs and expenses
authorized and due and owing to Lender pursuant to the
Promissory Note with respect to the Loan, Borrower shall not
be required to pay to Lender the amount by which the sum of
items (i) through (iv) exceeds the value of the Collateral. On
the other hand, if on the Anniversary Cancellation Date, the
value of the Collateral exceeds the sum of items (i) through
(iv), Lender shall be required to release and return to
Borrower, free and clear of all liens and encumbrances, the
portion of the Collateral which exceeds the sum of items (i)
through (iv). For purposes of determining the value of the
Collateral on the Anniversary Cancellation Date, the parties
shall utilize the closing price of the shares of Lender's
common stock (as traded on the NASDAQ National Market) on that
particular date, or, if that date is not a trading day on the
NASDAQ National Market, the immediately preceding trading day.
iii. All Shares used by Borrower to repay the Loan pursuant to
the provisions of Section 3A(i) above, as well as all Shares
comprising the Collateral used by Borrower to compensate
Lender for the cancellation of the Loan pursuant to the
provisions of Section 3A(ii) above, shall be subject to sale
by Lender on Borrower's behalf in accordance with the terms
and conditions of Section 9 below, and Borrower shall
cooperate with Lender in effecting any such sale.
B. INTEREST.
i. Except as otherwise provided in Section 5 of the Promissory
Note, interest shall accrue on the outstanding principal
balance of each Loan at a rate that is equal to the sum of (a)
the EURIBOR rate that was in effect at 10:00 A.M. on August 2,
1999 (and which is applicable to loans with a maturity date of
one year); and (b) 1.57%. Interest on the outstanding
principal balance of the Loans shall be paid annually, on the
last business day in December of each year, until the entire
principal is paid.
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ii. Interest shall be calculated on the basis of a 360 day
year based upon the actual number of days elapsed. No interest
shall accrue on a Loan until the Loan is made to Borrower, and
no interest shall accrue after the Maturity Date (as defined
in Section 3A(i) above), the Anniversary Cancellation Date (as
defined in Section 3A(ii) above), or the Cancellation Date (as
defined in Section 8 below).
iii. The total liability of Borrower under the Loans for
payment of interest shall not exceed any limitations imposed
on the payment of interest by applicable usury laws. If any
interest is received or charged in excess of that amount,
Borrower shall be entitled to a refund of the excess.
iv. Upon the occurrence of an Event of Default under a
Promissory Note, interest shall accrue at the Default Rate
thereunder set forth notwithstanding the provisions of this
section.
C. PREPAYMENT. The Borrower shall be entitled to prepay the
Loans in whole or in part at any time without penalty.
D. APPLICATION OF PAYMENTS. All payments under the Promissory
Note shall be applied first to the Lender's costs and expenses, then to fees
authorized thereunder, then to interest and then to principal.
E. GRANT OF SECURITY INTEREST. To secure the due and punctual
payment of the Loans and all of his other liabilities to Lender arising in
connection with the Loans, and all reasonable costs and expenses incurred by
Lender in connection with enforcement or collection of the Loans or any
liability of Borrower in connection therewith (including reasonable legal fees
and expenses incurred in trial, appellate, bankruptcy, and judgment-execution
proceedings) and all reasonable costs and expenses incurred in connection with
realizing on the value of the Collateral (including appraisal fees,
broker-dealer fees, and legal fees incurred in trial, appellate, bankruptcy, and
judgment-execution proceedings), Borrower shall pledge, hypothecate, assign,
convey and grant to Lender a first lien and security interest (collectively, the
"Security Interest") in the following:
i. Such number of shares of Lender common stock (the "Shares")
which is arrived at as a result of dividing (i) the original
principal sum of the Note (stated in U.S. dollars) by (ii) US
$6.375; the denominator of US $6.375 being the closing price
of each share of Lender's common stock (as traded on the
NASDAQ National Market) on March 31, 1999.
ii. All dividends, additional shares or other property or
securities that are receivable or otherwise distributable at
any time and from time to time in respect of, or in exchange
or substitution for, the Shares and all profits therefrom; and
iii. All proceeds of the foregoing.
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As used herein, the term "Collateral" refers to all the property
described in this Section 3E, as well as any portion or any interest in it.
4. PURPOSE OF LOAN. The purpose of the Loan will be to enable Borrower
to timely satisfy his obligation to pay certain taxes in the Federal Republic of
Germany in connection with Borrower's sale on May 15, 1998 of his Quotas in
CATS. As part of the consideration (the "Consideration") paid to Borrower in
connection with his sale on May 15, 1998 of his Quotas in CATS, Borrower
received 458,334 shares of Lender common stock. The purpose of the Loans is to
pay the amount of taxes that Borrower is required to pay to the German tax
authority in connection with and as a result of the 458,334 shares of Lender
common stock received by Borrower on May 15, 1998 in connection with the
acquisition of CATS.
5. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to lender as follows:
A. AUTHORITY AND COMPLIANCE. Borrower has full power and
authority to execute and deliver this Agreement and the Loan Documents and to
incur and perform the obligations provided for therein. No consent or approval
of any public authority or other third party is required as a condition to the
validity of this Agreement or any of the Loan Documents, and Borrower is in
compliance with all laws and regulatory requirements to which they are subject.
B. BINDING AGREEMENT. This Agreement and the Loan Documents
executed by Borrower constitute valid and legally binding obligations of
Borrower, enforceable in accordance with their terms.
C. LITIGATION. There is no proceeding involving Borrower
pending or, to the knowledge of Borrower, threatened before any court or
governmental authority, agency or arbitration authority, except as disclosed to
Lender in writing and acknowledged by Lender prior to the date of this
Agreement.
D. NO CONFLICTING AGREEMENTS. There is no charter, bylaw,
stock provision, partnership agreement or other document pertaining to the power
or authority of Borrower and no provision of any existing agreement, mortgage,
indenture or contract binding on Borrower or affecting his property, which would
conflict with or in any way prevent the execution, delivery or carrying out of
the terms of this Agreement and the Loan Documents.
E. OWNERSHIP OF COLLATERAL. Borrower has good title to the
collateral that will secure the Loans, and the collateral is, and will be kept,
free and clear of liens, except those to be granted to Lender pursuant to the
Stock Pledge Agreement attached hereto in the form of EXHIBIT B.
6. DEFAULT. Borrower shall be in default under this Agreement and under
each of the Loan Documents if he shall default in the payment of any amounts due
and owing to Lender pursuant to the Loan Documents or should he fail to timely
and properly observe, keep
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or perform any term, covenant, agreement or condition in any Loan Document or in
any other loan agreement, promissory note, security agreement, deed of trust,
deed to secure debt, mortgage, assignment or other contract securing or
evidencing payment of any indebtedness of Borrower to Lender or any affiliate or
subsidiary of Lender.
7. REMEDIES UPON DEFAULT. If an event of default shall occur, Lender
shall have all rights, powers and remedies available under each of the Loan
Documents as well as all rights and remedies available at law or in equity.
8. BORROWER'S OPTION TO CANCEL LOAN. Notwithstanding anything to the
contrary in any document or agreement between Borrower and Lender, Borrower
shall have the option, in his sole discretion, at anytime, to cancel the Loans,
and in exchange for such cancellation Borrower shall irrevocably authorize
Lender to dispose of the Collateral in accordance with the terms and conditions
of Section 9 below. For purposes of this Section 8, the "Date of Cancellation"
shall be the date on which Lender receives a written notice from Borrower to
cancel a Loan. The written notice shall be furnished in accordance with the
notice provisions of Section 10 below. PROVIDED, HOWEVER, that if on the Date of
Cancellation, the value of the Collateral is less than the sum of (i) the
outstanding principal balance of such Loan; (ii) any accrued but unpaid interest
on such Loan; (iii) any fees authorized and due and owing to Lender pursuant to
the Promissory Note; and (iv) any costs and expenses authorized and due and
owing to Lender pursuant to the Promissory Note, Borrower shall be required to
pay to Lender the amount by which the sum of items (i) through (iv) listed in
this Section 8 exceeds the value of the Collateral. Borrower shall have the
option of making the payment herein provided for to Lender in either additional
cash or additional shares of Lender's issued and outstanding common stock. If on
the Date of Cancellation, the value of the Collateral exceeds the sum of items
(i) through (iv) listed in this Section 8, Lender shall be required to release
and return to Borrower, free and clear of all liens and encumbrances, the
portion of the Collateral which exceeds the sum of items (i) through (iv) of
this Section 8. For purposes of determining the value of the Collateral and
additional shares on the Date of Cancellation, the parties shall utilize the
closing price of the shares of Lender's common stock (as traded on the NASDAQ
National Market) on the Date of Cancellation. Any Shares used by Borrower to
compensate Lender in consideration for the cancellation of the Loan pursuant to
the provisions of this Section 8 shall be subject to sale by Lender on
Borrower's behalf pursuant to the terms and conditions of Section 9 below, and
Borrower shall cooperate with Lender in effecting any such sale.
9. MECHANISM FOR SALE OF SHARES. The Shares to be pledged by Borrower
to Lender pursuant to the Stock Pledge Agreement will, in part, consist of a
portion of the 343,750 shares of Lender common stock registered with the United
States Securities and Exchange Commission (the "SEC") pursuant to that certain
S-1 Registration Statement dated and filed with the SEC on June 22, 1998 (the
"Registered Shares"). The balance of the Shares to be pledged to Lender by
Borrower pursuant to the Stock Pledge Agreement shall consist of shares of
Lender's common stock that have not been registered with the SEC (the
"Non-registered Shares"). It is also contemplated that if Borrower is required
to utilize additional shares to compensate Lender pursuant to the provisions of
Section 8 above or under any of the
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Loan Documents, Borrower will utilize Registered Shares and/or Non-registered
Shares. If, in order to satisfy any of Borrower's obligations or commitments
pursuant to any Loan Document, a sale must be made of any or all of the
Registered Shares or Non-registered Shares pledged or otherwise delivered by
Borrower to Lender, Borrower shall authorize Lender to make such sale as an
agent of Borrower and on Borrower's behalf. Any sale of Registered Shares as
provided for in this Section 9 shall be made pursuant to the S-1 Registration
Statement, and shall be deemed to be a sale by Borrower through his duly
appointed and authorized agent. Any sale of Non-Registered Shares as provided
for in this Section 9 shall be made pursuant to and in satisfaction of the
requirements of Rule 144 promulgated by the SEC under the Securities Act of
1933, as amended, and shall be deemed to be a sale by Borrower through his duly
appointed and authorized agent. Lender shall have the right to keep and maintain
custody of any and all proceeds of any sale of Registered Shares or
Non-registered Shares in satisfaction of any sum due and owing to Lender
pursuant to the Loan transaction. Borrower's appointment of Lender as his agent
for purposes of this Section 9, and the authorization to be granted to Lender to
sell Registered Shares and/or Non-registered Shares on behalf of Borrower, shall
be set forth in the Promissory Note, Stock Pledge Agreement and Stock Power
delivered to Lender along with the pledged Shares (and in the Stock Power alone,
in the case of any additional shares delivered to Borrower). Further, Borrower
shall covenant and agree to make all such reasonable arrangements, do and
perform all such reasonable acts and things, execute and deliver all such
certificates, documents and other instruments, and to take such further
reasonable actions as Lender may deem necessary or advisable to effect the sale
of Registered Shares pursuant to the S-1 Registration Statement, or
Non-registered Shares in compliance with the requirements of Rule 144, as the
case may be, as Borrower's agent and on Borrower's behalf.
10. NOTICES. All notices, requests or demands which any party is
required or may desire to give to any other party under any provision of this
Agreement must be in writing, and may be by means of facsimile transmission,
delivered to the other party at the following address:
If to Lender:
FARO Technologies, Inc.
125 Technology Park
Lake Mary, Florida 32746
Telecopy: (407) 333-4181
Attention: Gregory A. Fraser
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With a copy to:
Foley & Lardner
100 North Tampa St., Suite 2700
Tampa, Florida 33602
Telecopy: (813) 221-4210
Attention: Martin A. Traber
If to Borrower:
Siegfried Kurt Buss
Erich Kaestner Strasse 73,
Ditzingen, Hirschlanden 71254
Telecopy: 011-49-711-2222-444
With a copy to:
Hasche Eschenlohr Peltzer Riesenkampff Fischotter
Neidenau 68
60325 Frankfurt/Main
Germany
Telecopy: 011-49-69-71-701-230
Attention: Thomas Link
or to such other address as any party may designate by written notice to the
other party. Each such notice, request and demand shall be deemed given or made
as follows: (i) if sent by mail, upon the earlier of the date of receipt or five
(5) days after deposit in the U.S. Mail, first class postage prepaid; (ii) if
electronically transmitted, the next business day after transmission (and the
sender shall bear the burden of proof of delivery), or (iii) if sent by any
other means, upon delivery.
11. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to Lender
immediately upon demand the full amount of all costs and expenses, including
reasonable attorneys' fees (to include outside counsel fees) incurred by Lender
in connection with Lender's enforcement of its rights hereunder or under the
Loan Documents.
12. MISCELLANEOUS. Borrower and Lender further covenant and agree as
follows, without limiting any requirement of any of the Loan Documents:
A. CUMULATIVE RIGHTS AND NO WAIVER. Each and every right
granted to Lender under any Loan Document, or allowed it by law or equity shall
be cumulative of each other and may be exercised in addition to any and all
other rights of Lender, and no delay in exercising any right shall operate as a
waiver thereof, nor shall any single or partial exercise
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by Lender of any right preclude any other or future exercise thereof or the
exercise of any other right. Borrower expressly waives any presentment, demand,
protest or other notice of any kind, including but not limited to notice of
intent to accelerate and notice of acceleration. No notice to or demand on
Borrower in any case shall, of itself, entitle Borrower to any other or future
notice or demand in similar or other circumstances.
B. LEGAL MATTERS. The validity, construction, enforcement, and
interpretation of this Agreement shall be governed by the laws of the State of
Florida and the United States of America, without regard to principles of
conflict of laws. Each party to this Agreement (a) consents to the personal
jurisdiction of the state and federal courts having jurisdiction in Seminole
County, Florida, (b) stipulates that the proper, exclusive, and convenient venue
for any legal proceeding arising out of this Agreement is Seminole County,
Florida, for state court proceedings, and the Middle District of Florida,
Orlando Division, for federal district court proceedings, and (c) waives any
defense, whether asserted by a motion or pleading, that Seminole County,
Florida, or the Middle District of Florida, Orlando Division, is an improper or
inconvenient venue. In any mediation, arbitration, or legal proceeding arising
out of this Agreement, the losing party shall reimburse the prevailing party, on
demand, for all costs incurred by the prevailing party in enforcing, defending,
or prosecuting any claim arising out of this Agreement, including all fees,
costs, and expenses of experts, attorneys, witnesses, collection agents, and
supersedeas bonds, whether incurred before or after demand or commencement of
legal proceedings, and whether incurred pursuant to trial, appellate, mediation,
arbitration, bankruptcy, administrative, or judgment-execution proceedings.
C. LOAN TO BE DEEMED REPAID. A Loan shall be deemed to have
been repaid effective as of the earliest of: (i) the date on which Borrower
prepays such Loan (as allowed under Section 3C above); (ii) the Maturity Date
(as defined in Section 3A(i) above); (iii) the Anniversary Cancellation Date (as
defined in Section 3A(ii) above); or (iv) the Cancellation Date (as defined in
Section 8 above), so long as by the particular date Lender has received from
Borrower any combination of cash and/or shares of Lender's stock sufficient to
cover the then outstanding Loan obligations in accordance with the provisions of
this Agreement. From and after the repayment date, Borrower shall have no
obligations to Lender with respect to a Loan pursuant to or under this Agreement
or the Loan Documents, except for Borrower's obligation to cooperate with lender
in disposing of the Collateral Shares (and any additional shares delivered to
Lender) pursuant to the provisions of Section 9 above.
D. AMENDMENT. No modification, consent, amendment or waiver of
any provision of this Agreement, nor consent to any departure by Borrower
therefrom, shall be effective unless the same shall be in writing and signed by
an officer of Lender, and then shall be effective only in the specified instance
and for the purpose for which given. This Agreement is binding upon Borrower,
his heirs, successors and assigns, and inures to the benefit of Lender, its
successors and assigns; however, no assignment or other transfer of Borrower's
rights or obligations hereunder shall be made or be effective without Lender's
prior written consent, nor shall it relieve Borrower of any obligations
hereunder. There is no third party beneficiary of this Agreement.
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E. PARTIAL INVALIDITY. The unenforceability or invalidity of
any provision of this Agreement shall not affect the enforceability or validity
of any other provision herein and the invalidity or unenforceability of any
provision of any Loan Document to any person or circumstance shall not affect
the enforceability or validity of such provision as it may apply to other
persons or circumstances.
F. This Agreement amends and restates the Original Loan
Agreement in its entirety, and the Original Loan Agreement is no longer in
effect.
13. NO ORAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
To the extent permitted by law, the Borrower agrees to and does hereby
waive trial by jury in any action, proceeding, or counterclaim brought by either
the Borrower or the Lender on any matters whatsoever arising out of or in any
way connected with this Agreement or any claim of damage resulting from any act
or omission of the Borrower or Lender or either of them in any way connected
with this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal by their duly authorized representatives as of the date
first above written.
LENDER
FARO Technologies, Inc.
By:________________________________________________
Name:______________________________________________
Title:_____________________________________________
BORROWER
___________________________________________________
Siegfried Kurt Buss
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