EXHIBIT 10(h)
AMENDED AND RESTATED LETTER LOAN AGREEMENT
June 2, 1999
Xxxx Incorporated
0000 Xxxxx Xxx. X.
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxx
RE: $4,000,000 Line of Credit and $3,200,000 Advancing Term
Loan
Dear Xx. Xxxxx:
Reference is made to that certain Letter Loan Agreement
dated February 25, 1997 between Xxxx Incorporated, a Minnesota
corporation (the "Borrower") and U.S. Bank National Association
(the "Lender") as amended by a First Amendment to Letter Loan
Agreement, a Second Amendment to Letter Loan Agreement and a
Third Amendment to Letter Loan Agreement (said Agreement with all
amendments, collectively, the "Prior Agreement"). This Amended
and Restated Letter Loan Agreement (the "Agreement") is issued in
replacement and substitution of the Prior Agreement. All amounts
outstanding under the revolving line of credit, if any, under the
Prior Agreement as of the date hereof, shall be deemed Revolving
Advances (as defined below) under this Agreement. The Lender
agrees to make (i) revolving advances ("Revolving Advances") to
the Borrower, in an aggregate amount outstanding from time to
time of up to the lesser of $4,000,000 or the Borrowing Base
(defined below), from now until December 1, 1999 under a
promissory note dated the date of this Agreement (as the same may
hereafter be amended, restated, extended, renewed or otherwise
modified from time to time, the "Revolving Note"), and (ii) an
advancing term loan (the "Advancing Term Loan") available in
multiple term loan advances ("Term Loan Advances") from the date
hereof through January 1, 2000, in an aggregate amount
outstanding not to exceed the lesser of $3,200,000 or 80% of the
appraised value of the "Project" (defined below). The Advancing
Term Loan shall be evidenced by the Advancing Term Note dated the
date of this Agreement (as the same may hereafter be amended,
restated, extended, renewed or otherwise modified from time to
time, the "Advancing Term Note") (the Revolving Note and the
Advancing Term Note herein, with any other Note covered by this
Agreement, collectively called the "Notes"). Revolving Advances
and Term Loan Advances will be made upon the following terms and
conditions:
1. (a) The Term Loan Advances and Revolving Advances. The
Lender does not have to make any Revolving Advances or Term
Loan Advances until the conditions of paragraph 7 have been
satisfied. The proceeds of the Revolving Advances will be
the used by the Borrower for its general business purposes.
The proceeds of the Term Loan Advances will be used to
finance construction of a new building on the Borrower's
property located at the northeast corner of U.S. Highway 169
and Interstate 000, Xxxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxx
Xxxx, Xxxxxxxxx (the "Project").
(b) Revolving Advances. The unpaid principal balance of
Revolving Advances outstanding at any time shall never
exceed the lesser of (a) $4,000,000, or (b) the Borrowing
Base (as defined below). The Lender does not have to make
any Revolving Advance if an Event of Default (as defined
below) has occurred, if the Lender has terminated its
commitment or such commitment has been automatically
terminated under this Agreement pursuant to paragraph 13
below or if any of the representations and warranties in
this Agreement would not be true if made on the date of that
Revolving Advance. The Borrower may prepay all or a portion
of the Revolving Note at any time, without premium or
penalty except as the Revolving Note may otherwise provide.
Amounts prepaid on the Revolving Note may be reborrowed,
within the limitations specified above.
(c) Nonuse fee. The Borrower will pay to the Lender a
nonuse fee equal to one quarter of one percent of the
amounts by which $4,000,000 exceeds the daily outstanding
principal balance of the Revolving Advances from the date
hereof until the maturity date of the Revolving Note. Such
nonuse fee shall be payable on a semi annual basis on June 1
and December 1 of each year and on the maturity date of the
Revolving Note.
(d) Interest. The outstanding principal balance of the
Revolving Note and the Advancing Term Note shall bear
interest at a variable annual rate equal to the Lender's
reference rate minus one-half of one percent per annum. The
reference rate is the rate publicly announced by the Lender
from time to time as its reference rate. The Lender may
lend to its customers at rates that are at, above or below
the reference rate. Any change in the interest rate shall
take effect as and when the reference rate changes.
Interest shall be determined on the basis of actual days
elapsed and a year of 360 days. Interest shall be due and
payable, in arrears, on the first day of each month and at
final maturity of the Note in question.
(e) Default Interest. Upon the occurrence and during the
continuance of any Event of Default, the outstanding balance
of the Advancing Term Note and the Revolving Note, shall, at
the option of the Lender, bear interest at the rate
otherwise applicable thereto, plus 2% per annum. Default
interest shall be payable on demand.
2. Borrowing Base. The Borrowing Base shall be equal to 80% of
Eligible Receivables. "Eligible Receivables" means the book
value of the Borrower's accounts receivable, minus the sum
of (1) the book value of all receivables that remain unpaid
90 days or more after the date of the relevant invoice, plus
(2) the book value of all receivables due from officers,
directors, shareholders, partners, or affiliated
corporations, plus (3) the book value of all receivables
owed by debtors outside the United States, plus (4) the book
value of all receivables owed by debtors 10% or more of the
receivables from which are otherwise ineligible, and
excluding all other accounts receivables or types of
accounts receivable the Lender may deem ineligible. Any
limitations on advances or required prepayments relating to
the Borrowing Base shall be based on the latest borrowing
base certificate (described below) the Borrower shall have
delivered to the Lender.
3. Procedure for Advances. The Borrower may request any
Advance to its corporate account by telephone or in writing.
The Borrower agrees to repay each Advance, regardless of
whether the person requesting it was authorized to do so.
Each request for an Advance will be deemed a representation
by the Borrower that at the time of such Advance and after
giving effect thereto, all conditions to Advances will be
satisfied.
4. Other Loans. The provisions of this Agreement shall apply to
other loans the Lender may make to the Borrower from time to
time when the notes evidencing such loans make reference to
this Agreement. This Agreement shall apply to (i) that
certain promissory note from the Borrower to the Lender
dated as of February 3, 1997 in the original principal
amount of $300,000, (ii) that certain promissory note from
the Borrower to the Lender dated as of October 10, 1997 in
the original principal amount of $300,000, and (iii) that
certain promissory note from the Borrower to the Lender
dated as of December 10, 1998 in the original principal
amount of $400,000 (collectively, the "Existing Term
Notes").
5. Repayment. All amounts outstanding under the Revolving Note
shall be due and payable in full on the earlier of December
1, 1999 or the date the Lender terminates its commitment or
such commitment is automatically terminated under this
Agreement pursuant to paragraph 13 below. If the principal
balance of the Revolving Note at any time exceeds the
Borrowing Base, the Borrower shall immediately prepay the
Revolving Note by the amount of that excess. The Advancing
Term Note shall be due and payable in full on January 1,
2000, subject to acceleration as provided in this Agreement.
Each Existing Term Note shall be payable at the dates and in
the amounts specified in such Existing Term Note. Existing
Term Notes may be prepaid only to the extent and upon the
terms, if any, set forth in the Existing Term Notes. The
Revolving Note and the Advancing Term Note may be prepaid in
whole or in part at any time without premium or penalty.
6. Cleanup Period. For a Cleanup Period of 30 consecutive days
during each calendar year the Borrower shall pay in full the
entire principal balance of the Revolving Note and during
such period no Revolving Advances will be made.
7. Conditions. The Lender will not make a Term Loan Advance or
the first Revolving Advance until the following conditions
have been satisfied:
a) The Lender shall have received the Revolving Note
substantially in the form of Exhibit A hereto, and the
Advancing Term Note substantially in the form of
Exhibit B hereto, each duly executed by the Borrower.
b) The Lender shall have received the Security Agreement
substantially in the form of Exhibit C hereto, duly
executed by the Borrower. (The Security Agreement, this
Agreement and the Notes are the "Loan Documents").
c) The Lender shall have received any insurance
certificates, stock certificates, bonds, notes and
other documents required under any of the Loan
Documents, all in form satisfactory to the Lender.
d) The Lender shall have received the initial borrowing
base certificate completed as required (if a Revolving
Advance is requested).
e) The Lender shall have received the following:
A certificate of good standing for Borrower from
the jurisdiction of Borrower's incorporation.
An incumbency certificate for the Borrower's
officers.
A copy of the resolution of the Borrower's Board
of Directors authorizing those Loan Documents
executed by the Borrower and the transactions
contemplated hereby and thereby.
A certification of the Borrower's Secretary or
Assistant Secretary that the Borrower's Articles
of Incorporation and bylaws have not been amended
or modified since the same were last certified to
the Lender (or if amended, certifying a true,
complete and correct copy of such Articles, bylaws
and all amendments thereto).
Each document listed above shall be certified to the
satisfaction of the Lender.
f) The priority and perfection of the Lender's interest in
any collateral taken under the Loan Documents shall
have been established to the satisfaction of the
Lender.
g) There shall not exist any Event of Default or any event
which, with the passage of time or the giving of
notice, would become an Event of Default.
8) The Lender shall have received the opinion of counsel to the
Borrower covering such matters as the Lender may reasonably
require.
9) The Lender shall have received a commitment fee of $8,000
for the Advancing Term Loan.
8. Representations. The Borrower represents and warrants to
the Lender as follows:
a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Minnesota.
b) The Borrower's execution, delivery and performance of
this Agreement, the Notes and the other Loan Documents
have been properly authorized by all necessary
corporate action, do not require governmental approval
and do not conflict with any agreement binding on the
Borrower or its property.
c) The Loan Documents have been properly executed and
constitute the Borrower's legal, valid and binding
obligations, enforceable against the Borrower in
accordance with their terms.
d) The financial statements that the Borrower has
furnished to the Lender fairly represent the Borrower's
financial condition on the date of those statements and
the results of the Borrower's operations for the
periods referred to in those statements. Those
statements were prepared in accordance with generally
accepted accounting principles. There have been no
material adverse changes in the Borrower's properties
or financial condition since the date of the latest
statements.
e) Except as disclosed on Schedule 8.e) hereto, there are
no actions, suits or proceedings pending or threatened
against or affecting the Borrower or the Borrower's
properties before any court or governmental agency.
f) All federal, state and local tax returns of the
Borrower required to be filed have been filed and the
Borrower has paid or made provision for the payment of
all taxes due and payable pursuant to such returns and
pursuant to any assessments made against it or any of
its property.
g) The Borrower is in compliance with all applicable
requirements of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and all rules and
regulations thereunder.
h) There are no security interests, mortgages,
encumbrances or other liens on any of the Borrower's
property except (i) as previously disclosed to the
Lender in writing, and (ii) in favor of the Lender.
i) The Borrower is not in default under or in violation of
any law, statute, rule or regulation, order, writ,
judgment, injunction, decree, determination or award or
any indenture, loan or credit agreement or other
agreement, lease or instrument in any case in which the
consequences of such default or violation could have a
material adverse effect on the business, operations,
properties, assets or condition (financial or
otherwise) of the Borrower.
10) The Borrower has reviewed and assessed its business
operations and computer systems and applications to address the
"year 2000 problem" (that is, that computer applications and
equipment used by Borrower may be unable to properly perform date-
sensitive functions before, during and after January 1, 2000).
Borrower reasonably believes that the year 2000 problem will not
result in a material adverse change in Borrower's business
condition (financial or otherwise), operations, properties or
prospects or ability to repay Lender. Borrower is in the process
of implementing a plan to remediate year 2000 problems and will
complete implementation of such plan with respect to any material
year 2000 problems and testing thereof, by September 30, 1999.
Borrower agrees that this representation will be true and correct
on and shall be deemed made by Borrower on each date Borrower
requests any Revolving Advance or Term Loan Advance under this
Agreement or delivers any information to Lender. Borrower will
promptly deliver to Lender such information relating to this
representation and covenant as Lender reasonably requests from
time to time.
9. Reporting. The Borrower will not change its fiscal year end
from May 31, and will provide to the Lender the following
reports in a form acceptable to the Lender:
a) The Borrower's annual consolidated financial statements
within 120 days after the end of each fiscal year,
audited by an independent certified public accountant
satisfactory to the Lender.
b) The Borrower's quarterly internally-prepared financial
statements within 45 days after the end of each fiscal
quarter, certified as accurate by an officer of the
Borrower.
c) A compliance certificate in the form attached hereto as
of the end of each month by the thirtieth day of the
following month.
d) Immediate notice of (i) any uninsured litigation
totaling over $50,000 or dealing with the Loan
Documents; (ii) any arbitration or government
investigation or development (including notification
of environmental or pollution law violations) pending
or threatened that does or would materially adversely
affect the Borrower or its ability to perform under
this Agreement; (iii) any Event of Default; or (iv) any
reportable event, prohibited transaction or impositions
of withdrawal liability under ERISA.
e) A borrowing base certificate in the form attached
hereto. Borrowing base certificates shall (i) be dated
as of the last day of each month during which there are
outstanding Revolving Advances and shall be delivered
to the Lender by the thirtieth day of the next month,
(ii) be dated as of the date the Lender requests such a
certificate and be delivered to the Lender within 10
days of the Lender's request therefor, and (iii) be
dated as of the last day of the most recent month when
requesting a Revolving Advance and no Revolving
Advances are currently outstanding. Each borrowing
base certificate shall state the amount of Eligible
Receivables and the Borrowing Base as of the end of the
previous month or the date of the Lender's request, as
appropriate.
11) On request of the Lender, an accounts receivable aging in
form and substance satisfactory to the Lender. Each aging shall
be with respect to accounts receivable as of the end of the
previous month.
g) From time to time, such other information regarding the
business, operation and financial condition of the
Borrower as the Lender may reasonably request,
including, without limitation, an accounts payable
aging, upon request.
The financial statements described in clauses (a) and (b)
above shall be prepared in accordance with generally
accepted accounting principles, consistently applied.
10. Other Affirmative Covenants. Unless the Lender shall
otherwise consent in writing, the Borrower will:
a) Pay the Borrower's taxes (including payroll and
withholding taxes) when due.
b) Keep adequate and proper financial records, and permit
the Lender to examine those records and inspect the
Borrower's inventory and other property, and discuss
the Borrower's affairs and finances with the Borrower's
officers, at any reasonable time. Without limiting the
generality of the foregoing sentence, the Borrower
shall pay the costs of annual collateral audits by the
Lender or its agents.
c) Keep the Borrower's business adequately insured in such
amounts and against such hazards as is customary in the
case of reputable organizations engaged in the same or
similar business and similarly situated, and maintain
the insurance required under any other Loan Document.
d) Maintain the Borrower's corporate existence in good
standing under the laws of the state of Minnesota.
e) Maintain the Borrower's properties in good condition,
repair and working order.
f) Comply in all material respects with all laws, rules
and regulations to which the Borrower may be subject.
11. Negative Covenants. Unless the Lender shall otherwise
consent in writing, the Borrower will not:
a) Grant any mortgage, security interest or any other lien
on any of the Borrower's assets (including capitalized
leases), or permit any such lien to exist or continue,
except for (i) liens in the Lender's favor, (ii)
deposits or pledges to secure payment of workers'
compensation, unemployment insurance, old age pensions
or other social security obligations and liens of
carriers, warehousemen, mechanics and materialmen for
sums not due, in each case arising in the ordinary
course of business of the Borrower, (iii) liens for
taxes, fees, assessments and governmental charges not
delinquent, (iv) liens incurred or deposits or pledges
made or given in connection with, or to secure payment
of, indemnity, performance or other similar bonds, (v)
encumbrances in the nature of zoning restrictions,
easements and rights or restrictions of record on the
use of real property and landlord's liens under leases
on the premises rented, which do not materially detract
from the value of such property or impair the use
thereof in the business of the Borrower, (vi)
capitalized leases provided that the aggregate annual
payments owed by the Borrower under such capitalized
leases do not exceed $200,000, (vii) purchase money
security interests, provided that, (A) the debt secured
thereby is otherwise permitted by this Agreement and
(B) such security interests are limited to the property
acquired and do not secure debt other than the purchase
price of such property, and (viii) a mortgage on the
Project to secure permanent financing of the Project
and to pay off the Advancing Term Loan.
b) Borrow any money, or sign any promissory note, except
for loans from the Lender and notes to the Lender, and
indebtedness secured by liens permitted under a) above.
c) Guarantee any obligations of unrelated parties, except
the endorsement of checks for collection.
d) Invest in any other person or entity or hold an
investment other than (i) as presently held in the
Borrower's affiliates, if any, and as planned for Xxxx
Energy Systems, Inc., (ii) investments in bank
accounts, bank certificates of deposit or bankers'
acceptances issued by any United States commercial bank
with a combined capital and surplus and credit rating
for unsecured indebtedness satisfactory to the Lender,
(iii) commercial paper with the highest rating by
Xxxxx'x Investors Services of Standard and Poor's or
readily marketable direct obligations of the United
States government (and repurchase agreements relating
to such securities), in each case with a maturity or
one year or less, and (iv) travel advances to the
Borrower's officers and employees in the ordinary
course.
e) Sell any of the Borrower's assets other than inventory
in the ordinary course of business.
f) Consolidate or merge with any other business, acquire
the assets of any other business or liquidate, wind up
or dissolve itself (or suffer any liquidation or
dissolution).
g) Engage in any line of business substantially different
from the Borrower's current business.
h) Permit the Borrower's net after tax earnings for any
fiscal year to be less than $500,000.
i) Permit the ratio of liabilities (including subordinated
indebtedness) to tangible net worth to be more than 1.0
to 1 at any time.
j) Pay any dividends or otherwise make any distributions
on, or redemptions of, any of its outstanding stock.
"Tangible net worth" means net worth computed in accordance
with generally accepted accounting principles less the book
value of all intangible items such as goodwill, trademarks,
trade names, service marks, copyrights, patents, licenses,
unamortized debt discount and expenses and the excess of the
purchase price of the assets of any business acquired by the
Borrower over the book value of such assets and less any
receivables due from officers, managers, directors,
shareholders, partners, members or affiliated corporations
or other entities, the cost or value of any leasehold
improvements, or any organizational costs. "Subordinated
indebtedness" shall be any indebtedness of the Borrower that
is subordinated to the Borrower's obligations to the Lender
on terms and conditions that have been reviewed by and are
satisfactory to the Lender. The other accounting terms used
above and elsewhere in this Agreement shall be computed or
interpreted in accordance with generally accepted accounting
principles consistently applied.
12. Right to Charge Checking Account. The Borrower authorizes
the Lender to charge the Borrower's checking account with
the Lender for any amounts due under the Notes.
13. Events of Default. Each of the following shall be an Event
of Default:
a) The Borrower shall fail to pay when due (whether by
acceleration or otherwise) any amount owing on any of
the Notes or any other indebtedness to the Lender that
the Borrower owes or has guaranteed and such failure
shall continue for more than the period of grace, if
any applicable thereto.
b) The Borrower shall breach any of the Borrower's other
obligations under this Agreement and such breach shall
continue for five days after the Lender gives the
Borrower notice thereof.
c) Any default shall occur under any security agreement,
mortgage or other document securing any of the Notes
and such default shall continue for more than the
period of grace, if any applicable thereto.
d) Any representation or warranty that the Borrower has
made under this Agreement or any other Loan Document
shall prove to have been untrue when made.
e) The Borrower shall (i) become insolvent or unable to
pay its debts generally as they mature; (ii) make a
general assignment for the benefit of creditors; (iii)
admit in writing its inability to pay its debts
generally as they mature; (iv) consent to the
appointment of a trustee or receiver for the Borrower
or for a substantial part of the property thereof; (v)
have an order, judgment or decree entered appointing,
without its consent, a trustee or receiver for the
Borrower or for a substantial part of the property
thereof; (vi) file a petition under the United States
Bankruptcy Code or any other state or federal law
relating to insolvency, reorganization, receivership or
relief of debtors; or (viii) take any action for the
purpose of effecting or consent to any of the
foregoing.
If (i) any Event of Default described in paragraph 13 e)
shall occur with respect to
the Borrower, the Lender's
commitment to make Revolving
Advances under this Agreement
and to make additional Term
Loan Advances shall
automatically terminate and
the Notes and all other
obligations of the Borrower to
the Lender under this
Agreement shall automatically
become immediately due and
payable, or (ii) upon
occurrence of any other Event
of Default, the Lender may,
without giving the Borrower
notice, declare the Lender's
commitment to make Revolving
Advances and additional Term
Loan Advances under this
Agreement terminated and/or
declare the principal balance
of the Notes and all accrued
interest to be immediately
due, and, upon the occurrence
of the events described in
either clause (i) or (ii) of
this sentence, the Lender may
exercise any other rights and
remedies available to the
Lender by law or agreement.
The Borrower hereby
irrevocably authorizes the
Lender to set off all sums
owing by the Borrower to the
Lender against all deposits
and credits the Borrower may
have with, and any claims the
Borrower may have against, the
Lender at any time after an
Event of Default occurs.
14. Fees and Expenses; Indemnity. The Borrower agrees to pay
all of the reasonable costs and expenses incurred by the
Lender in connection with the negotiation, preparation,
execution, perfection, administration, amendment, or
enforcement of this Agreement and the other Loan Documents,
including attorney's fees and expenses and internal time
charges reasonably determined by the Lender for lawyers
employed by the Lender. The Borrower agrees to indemnify
the Lender, its employees, agents and independent
contractors from all actions, losses, damages and expenses
(including attorneys' fees) arising out of or relating to
transactions under the Loan Documents except for actions,
losses, damages and expenses arising from the wrongful
intentional actions or gross negligence of the Lender, its
employees, agents and independent contractors, which
obligation survives the termination of this Agreement and
includes expenses and costs associated with environmental
and pollution laws of any kind.
15. Miscellaneous.
a) If the Lender does not exercise some right the Lender
has against the Borrower, or if the Lender delays in
exercising a right, that does not mean that the Lender
gives up that right.
b) No Loan Document can be changed unless the Lender signs
a written amendment.
c) If any part of the Loan Documents is unenforceable, the
rest of their provisions will still be enforceable.
d) The Lender may assign its rights or obligations under
the Loan Documents or grant participations therein at
any time and share information about the Borrower in
connection therewith, without the Borrower's consent.
e) Except when telephonic notice is expressly authorized
by this Agreement, any notice or other communication to
any party in connection with this Agreement shall be in
writing and shall be sent by manual delivery, telegram,
telex, facsimile transmission, overnight courier or
United States mail (postage prepaid) addressed to the
Borrower at the address above and to the Lender at the
address on the signature page hereof, or at such other
address as such party shall have specified to the other
party hereto in writing. All periods of notice shall
be measured from the date of delivery thereof if
manually delivered, from the date of sending thereof if
sent by telegram, telex or facsimile transmission, from
the first business day after the date of sending if
sent by overnight courier, or from four days after the
date of mailing if mailed; provided, however, that any
notice to the Lender regarding Advances or rates of
interest shall be deemed to have been given only when
received by the Lender.
f) This Agreement and the other Loan Documents constitute
the entire agreement between the Lender and the
Borrower with respect to the subject matter hereof and
thereof. This Agreement takes the place of any
conversations, oral agreements and commitment letters
or other letters between the Lender and the Borrower.
This Agreement amends, restates, supersedes and
replaces the Prior Agreement. The security agreement
between the Borrower and the Lender dated February 25,
1997 remains in full force and effect and secures all
amounts and obligations under this Agreement,
notwithstanding the execution and delivery of the
Security Agreement attached hereto as security for the
Advancing Term Note.
g) This Agreement shall be binding upon the Borrower, its
successors and assigns (except that the Borrower may
not assign its rights or delegate its obligations
hereunder or under the other Loan Documents without the
prior written consent of the Lender) and upon the
Lender and its successors and assigns and shall inure
to the benefit of, and be enforceable by, the Lender
and its successors, transferees and assigns and also by
any person or entity to whom all or any part may be
sold or transferred; provided, however, that in the
event such sale or transfer covers only part of the
Lender's interest, the Lender shall have the right to
enforce this Agreement as to the remainder retained and
owned by the Lender.
16. Governing Law and Construction. THE VALIDITY, CONSTRUCTION
AND ENFORCEABILITY OF THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA,
WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES
THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED
STATES APPLICABLE TO NATIONAL BANKS.
17. Jurisdiction. AT THE OPTION OF THE LENDER, THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS MAY BE ENFORCED IN ANY FEDERAL
COURT OR MINNESOTA STATE COURT SITTING IN HENNEPIN OR XXXXXX
COUNTY, MINNESOTA; AND THE BORROWER CONSENTS TO THE
JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY
ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN
THE EVENT THE BORROWER COMMENCES ANY ACTION IN ANOTHER
JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY
ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED
BY THIS AGREEMENT, THE LENDER AT ITS OPTION SHALL BE
ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE
JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH
TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO
HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.
18. Waiver of Jury Trial. EACH OF THE BORROWER AND THE LENDER
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Please indicate the Borrower's acceptance of this Agreement
by signing the enclosed copy of this letter and returning it to
the undersigned.
Very truly yours,
U.S. BANK NATIONAL ASSOCIATION
By
Its _______________
Address:
000 Xxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Fax: (000) 000-0000
Accepted this ____ day of
______________ , 199 ____ .
BORROWER:
Xxxx Incorporated
By ____________________
Its
