______________________________________________________________________________
______________________________________________________________________________
LETTER OF CREDIT AGREEMENT
BETWEEN
XXXX STORES, INC.
AND
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
DATED SEPTEMBER 15, 1997
______________________________________________________________________________
______________________________________________________________________________
TABLE OF CONTENTS
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 LETTERS OF CREDIT AND SHIPSIDE BONDS.. . . . . . . . . . . . . . . . 2
2.2 AMOUNT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 EXTENSION OF AVAILABILITY. . . . . . . . . . . . . . . . . . . . . . 2
2.4 PRINCIPAL REPAYMENT. . . . . . . . . . . . . . . . . . . . . . . . . 2
2.5 INTEREST.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.6 OTHER TERMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.7 EXPENSES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. DISBURSEMENTS, PAYMENTS AND COSTS . . . . . . . . . . . . . . . . . . . . 3
3.1 REQUESTS FOR CREDIT. . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 DISBURSEMENTS AND PAYMENTS.. . . . . . . . . . . . . . . . . . . . . 3
3.3 DIRECT DEBIT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.4 BANKING DAYS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.5 TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.6 ADDITIONAL COSTS.. . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.7 COMPUTATION OF FEES AND INTEREST.. . . . . . . . . . . . . . . . . . 4
4. CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 CONDITIONS TO INITIAL EXTENSION OF CREDIT . . . . . . . . . . . . . 4
(a) AUTHORIZATIONS. . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) SYNDICATED CREDIT AGREEMENT . . . . . . . . . . . . . . . . . . 5
(c) OTHER ITEMS . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 CONDITIONS TO EACH EXTENSION OF CREDIT. . . . . . . . . . . . . . . 5
(a) CONTINUATION OF REPRESENTATIONS AND WARRANTIES . . . . . . . . 5
(b) NO EXISTING DEFAULT. . . . . . . . . . . . . . . . . . . . . . 5
5. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . . 5
5.1 AUTHORIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.2 ENFORCEABLE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . 5
5.3 NO CONFLICTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.4 NO EVENT OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . 6
6. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.1 FAILURE TO PAY.. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.2 REPRESENTATION OR WARRANTY. . . . . . . . . . . . . . . . . . . . . 6
7.3 ADVERSE CHANGE.. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.4 SYNDICATED CREDIT AGREEMENT. . . . . . . . . . . . . . . . . . . . . 7
7.5 OTHER DEFAULTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. ENFORCING THIS AGREEMENT; MISCELLANEOUS . . . . . . . . . . . . . . . . . 7
8.1 SYNDICATED CREDIT AGREEMENT. . . . . . . . . . . . . . . . . . . . . 7
8.2 SUCCESSORS AND ASSIGNS.. . . . . . . . . . . . . . . . . . . . . . . 8
8.3 SEVERABILITY; WAIVERS. . . . . . . . . . . . . . . . . . . . . . . . 8
8.4 COSTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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8.5 ATTORNEYS' FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.6 ONE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.7 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.8 HEADINGS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.9 COUNTERPARTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.10 GOVERNING LAW AND JURISDICTION. . . . . . . . . . . . . . . . . . . 9
8.11 WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . 9
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LETTER OF CREDIT AGREEMENT
This Agreement dated as of September 15, 1997, is between Bank of
America National Trust and Savings Association (the "Bank") and Xxxx Stores,
Inc. (the "Borrower").
1. DEFINITIONS
The following terms have the following meanings:
"DEFAULT" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"EVENT OF DEFAULT" means any of the events or circumstances specified
in Article 7.
"EXPIRATION DATE" means the fifth anniversary of the date of this
Agreement, but in any event no later than September 1, 2002.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Borrower or the
Borrower and its Subsidiaries taken as a whole or as to any Subsidiary; (b)
a material impairment of the ability of the Borrower to perform under this
Agreement and avoid any Event of Default; or (c) a material adverse effect
upon the legality, validity, binding effect or enforceability of this
Agreement or any agreement required by this Agreement.
"REFERENCE RATE" means the rate of interest publicly announced from
time to time by the Bank in San Francisco, California, as its Reference
Rate. The Reference Rate is set by the Bank based on various factors,
including the Bank's costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some loans.
The Bank may price loans to its customers at, above or below the Reference
Rate. Any change in the Reference Rate will take effect at the opening of
business on the day specified in the public announcement of a change in the
Bank's Reference Rate.
"RESPONSIBLE OFFICER" has the meaning defined in the Syndicated Credit
Agreement.
"SUBSIDIARY" has the meaning defined in the Syndicated Credit
Agreement.
"SYNDICATED CREDIT AGREEMENT" has the meaning defined in Paragraph 8.1
below.
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2. CREDIT FACILITY
2.1 LETTERS OF CREDIT AND SHIPSIDE BONDS. At the request of the
Borrower, between the date of this Agreement and the Expiration Date, the Bank
will issue for the account of the Borrower commercial and standby letters of
credit and shipside bonds. Each letter of credit shall have a maximum term no
longer than one year. The standby letters of credit may include a provision
providing that the maturity date will be automatically extended each year for an
additional year unless the Bank gives written notice to the contrary. In
addition, each letter of credit shall have a maximum maturity not to extend
beyond the Expiration Date. Each commercial letter of credit will require
drafts payable at sight or up to 90 days after sight.
2.2 AMOUNT. The amount of the letters of credit outstanding at any
one time (including the drawn and unreimbursed amounts of the letters of credit)
and shipside bonds may not exceed Thirty Million Dollars ($30,000,000) (the
"Commitment"). The amount of shipside bonds outstanding at any one time may not
exceed Five Hundred Thousand Dollars ($500,000).
2.3 EXTENSION OF AVAILABILITY. The Borrower may request extensions
of the Expiration Date for additional one-year periods, with each request to
be made no earlier than two years, and no later than 90 days, prior to the
then-current Expiration Date. Any such extension will be subject to the
approval of the Bank in its sole discretion.
2.4 PRINCIPAL REPAYMENT. Any amounts drawn under letters of credit
and shipside bonds shall be repaid by the Borrower immediately upon demand,
either from a Loan as permitted under the Syndicated Credit Agreement or
otherwise.
2.5 INTEREST. Any amounts drawn under letters of credit and shipside
bonds shall bear interest, until paid, at the Bank's Reference Rate plus one
(1.0) percentage point, payable on the first day of each calendar month.
2.6 OTHER TERMS. The Borrower agrees:
(a) if the Bank declares an Event of Default under this
Agreement, the Borrower shall, upon demand, prepay and make the Bank whole
for any outstanding letters of credit and shipside bonds.
(b) the issuance of any letter of credit or shipside bond and any
amendment to a letter of credit or shipside bond is subject to the Bank's
written approval and must be in form and content reasonably satisfactory to
the Bank and in favor of a beneficiary reasonably acceptable to the Bank.
(c) to sign the Bank's application, security agreement and other
standard forms for letters of credit and shipside bonds, and to pay any
issuance and/or other fees that the Bank notifies the Borrower will be
charged for
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issuing and processing letters of credit and shipside bonds for
the Borrower; provided, however, that certain fees shall be in the amounts
agreed between the Bank and the Borrower by separate letter agreement.
(d) to pay the Bank a non-refundable fee, in such percentage per
annum as agreed between the Bank and the Borrower by separate letter
agreement, calculated against the outstanding undrawn amount of each
standby letter of credit and shipside bond, payable annually in advance,
calculated on the basis of the face amount outstanding on the day the fee
is calculated.
(e) to pay the Bank a commitment fee, in such percentage per
annum as agreed between the Bank and the Borrower by separate letter
agreement, on the average daily amount of the Commitment, computed on a
quarterly basis in arrears on the last Business Day of each calendar
quarter.
2.7 EXPENSES. The Borrower agrees to reimburse the Bank for any
reasonable expenses it incurs in the preparation of this Agreement and any
agreement or instrument required by this Agreement. Expenses include, but are
not limited to, reasonable attorneys' fees, including any allocated costs of the
Bank's in-house counsel.
3. DISBURSEMENTS, PAYMENTS AND COSTS
3.1 REQUESTS FOR CREDIT. Each request for a letter of credit will be
made in writing in a manner acceptable to the Bank, or by another means
acceptable to the Bank.
3.2 DISBURSEMENTS AND PAYMENTS. Each disbursement by the Bank and
each payment by the Borrower will be:
(a) made at the Bank's San Francisco Regional Commercial Banking
Office, or other location reasonably selected by the Bank from time to time
after not less than 15 days prior written notice to the Borrower;
(b) made for the account of the Bank's branch selected by the
Bank from time to time;
(c) made in immediately available funds;
(d) evidenced by records kept by the Bank, absent manifest error.
3.3 DIRECT DEBIT.
(a) The Borrower agrees that interest and any fees, discounts and
charges will be deducted automatically on the due date from checking
account number 14991-00158.
(b) The Bank will debit the account on the dates the payments
become due. If a due date does not fall on a
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banking day, the Bank will debit the account on the first banking day
following the due date.
(c) The Borrower will maintain sufficient funds in the account on
the dates the Bank enters debits authorized by this Agreement. If there
are insufficient funds in the account on the date the Bank enters any debit
authorized by this Agreement, the debit will be reversed.
3.4 BANKING DAYS. Unless otherwise provided in this Agreement, a
banking day is a day other than a Saturday or a Sunday on which the Bank is open
for business in California. All payments and disbursements which would be due
on a day which is not a banking day will be due on the next banking day. All
payments received on a day which is not a banking day will be applied to the
credit on the next banking day.
3.5 TAXES. The Borrower will not deduct any taxes from any payments
it makes to the Bank. If any government authority imposes any taxes or charges
on any payments made by the Borrower, the Borrower will pay the taxes or
charges. Upon request by the Bank, the Borrower will confirm that it has paid
the taxes by giving the Bank official tax receipts (or notarized copies) within
30 days after the due date. However, the Borrower will not pay the Bank's net
income taxes.
3.6 ADDITIONAL COSTS. The Borrower will pay the Bank, on written
demand, for the Bank's costs or losses arising from any statute or regulation,
or any request or requirement of a regulatory agency which is applicable to all
national banks or a class of all national banks, including the Bank. The
written demand shall set forth in reasonable detail the basis for the demand and
the calculations used by the Bank. The costs and losses will be allocated to
the loan in a manner determined by the Bank, using any reasonable method. The
costs include the following:
(a) any reserve or deposit requirements; and
(b) any capital requirements relating to the Bank's assets and
commitments for credit.
3.7 COMPUTATION OF FEES AND INTEREST. All computations of fees and
interest under this Agreement shall be made on the basis of a 360-day year and
actual days elapsed, which results in more interest being paid than if computed
on the basis of a 365-day year. Interest and fees shall accrue during each
period during which interest or such fees are computed from the first day
thereof to the last day thereof.
4. CONDITIONS
4.1 CONDITIONS TO INITIAL EXTENSION OF CREDIT. The Bank must receive
the following items, in form and content acceptable to the Bank, before it is
required to extend any credit to the Borrower under this Agreement:
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(a) AUTHORIZATIONS. Evidence that the execution, delivery and
performance by the Borrower of this Agreement and any instrument or
agreement required under this Agreement have been duly authorized.
(b) SYNDICATED CREDIT AGREEMENT. The executed Syndicated Credit
Agreement, and evidence that all conditions precedent specified in section
4.01 thereof have been fulfilled or waived.
(c) OTHER ITEMS. Any other items that the Bank reasonably
requires.
4.2 CONDITIONS TO EACH EXTENSION OF CREDIT. The obligation of the
Bank to make each extension of credit under this Agreement is subject to the
satisfaction of the following conditions precedent on the date of the extension
of credit:
(a) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in Article 5 of this Agreement and in
Article V of the Syndicated Credit Agreement shall be true and correct on
and as of such date with the same effect as if made on and as of such date;
and
(b) NO EXISTING DEFAULT. No Default or Event of Default shall
exist or shall result from such extension of credit.
Each request for an extension of credit submitted by the Borrower hereunder
shall constitute a representation and warranty by the Borrower hereunder, as of
the date of each such extension of credit, that the conditions in this paragraph
4.2 are satisfied.
5. REPRESENTATIONS AND WARRANTIES
The Borrower makes the following representations and warranties. Each
request for an extension of credit constitutes a renewed representation that:
5.1 AUTHORIZATION. This Agreement, and any instrument or agreement
required hereunder, are within the Borrower's powers, have been duly authorized,
and do not contravene any of its organizational papers.
5.2 ENFORCEABLE AGREEMENT. This Agreement is a legal, valid and
binding agreement of the Borrower, enforceable against the Borrower in
accordance with its terms, and any instrument or agreement required hereunder,
when executed and delivered, will be similarly legal, valid, binding and
enforceable.
5.3 NO CONFLICTS. This Agreement, and any instrument or agreement
required hereunder, does not violate or result in any breach or contravention
of, or the creation of any lien under, any document evidencing any contractual
obligation to which the Borrower or any Subsidiary is a party or any order,
injunction, writ or decree of any governmental authority to which the Borrower
or any Subsidiary or its property is subject; or
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violate any law (statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a governmental authority, in each case
applicable to or binding upon the Borrower or Subsidiary or any of its
property or to which the Borrower or Subsidiary or any of its property is
subject.
5.4 NO EVENT OF DEFAULT. No event has occurred and is continuing or
would result from the extension of credit under this Agreement which constitutes
or would constitute an Event of Default.
6. COVENANTS
The Borrower agrees, so long as credit is available under this
Agreement and until the Bank is repaid in full (unless the Bank waives
compliance in writing), to comply with the affirmative covenants set forth in
Article VI of the Syndicated Credit Agreement and the negative covenants set
forth in Article VII of the Syndicated Credit Agreement.
7. DEFAULT
If any of the following events occurs and is continuing, the Bank may
do one or more of the following: declare the Borrower in default, stop making
any additional credit available to the Borrower, and require the Borrower to
repay its entire debt immediately and without prior notice. If a bankruptcy
petition is filed with respect to the Borrower, the entire debt outstanding
under this Agreement will automatically be due immediately; provided, however,
that in the case of an involuntary bankruptcy proceeding, the entire debt
outstanding under this Agreement will automatically be due at the expiration of
the 60 day period provided for in paragraph 8.01(g)(i) of the Syndicated Credit
Agreement or upon the occurrence of any of the events specified in subparagraphs
(ii) and (iii) of paragraph 8.01(g).
7.1 FAILURE TO PAY. The Borrower fails to pay: (i) within one
calendar day after the same shall become due, any amount of principal due under
this Agreement, or (ii) within 5 days after the same becomes due, any interest,
fee or any other amount payable hereunder or under any other agreement executed
in connection with this Agreement.
7.2 REPRESENTATION OR WARRANTY. Any representation or warranty by
the Borrower or any Subsidiary made or deemed made herein (including any
representation or warranty contained in Article V of the Syndicated Credit
Agreement), or which is contained in any certificate, document or financial or
other statement by the Borrower, any Subsidiary, or any Responsible Officer,
furnished at any time under this Agreement or under the Syndicated Credit
Agreement, is false in any material respect on or as of the date made or deemed
made.
7.3 ADVERSE CHANGE. There occurs a Material Adverse Effect.
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7.4 SYNDICATED CREDIT AGREEMENT. Any Event of Default (as defined
therein) occurs under the Syndicated Credit Agreement; or the Syndicated Credit
Agreement is terminated, or the Bank is no longer a party to the Syndicated
Credit Agreement.
7.5 OTHER DEFAULTS. The Borrower fails to perform or observe any
other term or covenant contained in this Agreement and such default shall
continue unremedied for a period of 20 days after the earlier of (i) the date
upon which a Responsible Officer knew or should have known of such failure or
(ii) the date upon which written notice thereof is given to the Borrower by the
Bank.
8. ENFORCING THIS AGREEMENT; MISCELLANEOUS
8.1 SYNDICATED CREDIT AGREEMENT.
(a) "Syndicated Credit Agreement" means the syndicated Credit
Agreement dated as of September 15, 1997 among the Borrower, the
several financial institutions from time to time party thereto, and Bank of
America National Trust and Savings Association, as agent; as such agreement
may be modified, amended or replaced.
(b) All references to the Syndicated Credit Agreement shall
refer to the most current version of such agreement as then in effect. If
the Syndicated Credit Agreement is at any time terminated and no longer in
effect, or the Bank is no longer a party thereto, and the Bank, in its
discretion, chooses not to declare an Event of Default under this
Agreement, the Bank and the Borrower agree that the references in this
Agreement to the Syndicated Credit Agreement shall be deemed to be to the
version as is in effect as of the termination of the Syndicated Credit
Agreement or as of the time the Bank ceases to be a party thereto.
(c) For purposes of this Agreement, the Bank and the Borrower
agree that in interpreting the terms "Loan Document" and "Event of Default"
in the Syndicated Credit Agreement, those terms shall be deemed to include
this Agreement and any instrument or agreement required by this Agreement
and any Event of Default hereunder.
(d) Notwithstanding the foregoing, the Borrower agrees that the
Bank may, in its reasonable discretion, determine at any time that any
provision of the Syndicated Credit Agreement referenced in this Agreement
shall no longer be applicable to this Agreement. In such event, the Bank
and the Borrower shall memorialize the Bank's determination through an
appropriate amendment to this Agreement. Among the circumstances (without
limiting such circumstances) under which the Bank may reasonably make such
a determination would be the circumstances resulting from the Bank's
decision to no longer remain a party to the Syndicated Credit Agreement or
resulting from the execution
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of an amendment to the Syndicated Credit Agreement to which the Bank
does not consent.
8.2 SUCCESSORS AND ASSIGNS. This Agreement is binding on the
Borrower's and the Bank's successors and assignees. The Borrower agrees that it
may not assign this Agreement without the Bank's prior consent. The Bank may
sell participations in or assign this loan, and may exchange financial
information about the Borrower with actual or potential participants or
assignees provided such actual or potential participants or assignees shall
agree in writing to treat all non-public financial information exchanged as
confidential. Any assignment by the Bank shall require the prior consent of the
Borrower, which consent shall not unreasonably be withheld. If a participation
is sold or the loan is assigned, the purchaser will have the right of set-off
against the Borrower.
8.3 SEVERABILITY; WAIVERS. If any part of this Agreement is not
enforceable, the rest of the Agreement may be enforced. The Bank retains all
rights, even if it makes a loan after an Event of Default. If the Bank waives
an Event of Default, it may enforce a later Event of Default. Any consent or
waiver under this Agreement must be in writing.
8.4 COSTS. The Borrower shall pay the Bank for all reasonable costs
incurred by the Bank in connection with administering this Agreement.
8.5 ATTORNEYS' FEES. The Borrower shall reimburse the Bank for any
reasonable costs and attorneys' fees incurred by the Bank in connection with the
enforcement or preservation of any rights or remedies under this Agreement and
any other documents executed in connection with this Agreement, and in
connection with any amendment, waiver, "workout" or restructuring under this
Agreement. In the event of a lawsuit or arbitration proceeding, the prevailing
party is entitled to recover costs and reasonable attorneys' fees incurred in
connection with the lawsuit or arbitration proceeding, as determined by the
court or arbitrator. In the event that any case is commenced by or against the
Borrower under the Bankruptcy Code (Title 11, United States Code) or any similar
or successor statute, the Bank is entitled to recover costs and reasonable
attorneys' fees incurred by the Bank related to the preservation, protection, or
enforcement of any rights of the Bank in such a case. As used in this
paragraph, "attorneys' fees" includes the allocated costs of the Bank's in-house
counsel.
8.6 ONE AGREEMENT. This Agreement and any related security or other
agreements required by this Agreement, collectively:
(a) represent the sum of the understandings and agreements
between the Bank and the Borrower concerning this credit;
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(b) replace any prior oral or written agreements between the Bank
and the Borrower concerning this credit; and
(c) are intended by the Bank and the Borrower as the final,
complete and exclusive statement of the terms agreed to by them.
In the event of any conflict between this Agreement and any other agreements
required by this Agreement, this Agreement will prevail.
8.7 NOTICES. All notices required under this Agreement shall be
personally delivered, faxed or sent by first class mail, postage prepaid, to the
addresses on the signature page of this Agreement, or to such other addresses as
the Bank and the Borrower may specify from time to time in writing. Notice
shall be effective upon receipt if personally delivered or faxed, or three (3)
banking days after deposited in first class mail, postage prepaid.
8.8 HEADINGS. Article and paragraph headings are for reference only
and shall not affect the interpretation or meaning of any provisions of this
Agreement.
8.9 COUNTERPARTS. This Agreement may be executed in as many
counterparts as necessary or convenient, and by the different parties on
separate counterparts each of which, when so executed, shall be deemed an
original but all such counterparts shall constitute but one and the same
agreement.
8.10 GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA; PROVIDED THAT EACH PARTY TO THIS AGREEMENT SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER DOCUMENT EXECUTED IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
THE BORROWER AND THE BANK CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE BORROWER AND THE
BANK IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE BORROWER AND
THE BANK EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
8.11 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK EACH WAIVES THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER DOCUMENTS EXECUTED IN
CONNECTION WITH THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
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THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY PARTICIPANT OR ASSIGNEE,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE
BORROWER AND THE BANK EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
This Agreement is executed as of the date stated at the top of the first page.
Bank of America National Xxxx Stores, Inc.
Trust and Savings Association
By /s/ Xxxxx X. Xxxxxxxxxxx By /s/ X. Xxxx
------------------------ ------------------------
Xxxxx X. Xxxxxxxxxxx
Vice President Title Sr. Vice President & CFO
------------------------
Address where notices to Address where notices to
the Bank are to be sent: the Borrower are to be sent:
San Francisco Commercial 0000 Xxxxxxx Xxxxxx
Xxxxxxx #0000 Xxxxxx, XX 00000-3433
000 Xxxxxxxxxx Xxxxxx Attn: Xxxx X. Xxxx
Xxx Xxxxxxxxx, XX 00000 Chief Financial Officer
Attn: Xxxxx X. Xxxxxxxxxxx Fax: (000) 000-0000
Fax: (000) 000-0000 Tel: (000) 000-0000
Tel: (000) 000-0000
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