1
Exhibit 10.3
________________________________________________________________________________
________________________________________________________________________________
LETTER OF CREDIT AGREEMENT
BETWEEN
XXXXXXXX-SONOMA, INC.
AND
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
DATED JUNE 1, 1997
________________________________________________________________________________
________________________________________________________________________________
2
TABLE OF CONTENTS
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. LETTER OF CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 Interest Calculation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 Conditions to Initial Extension of Credit . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Syndicated Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(c) Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) 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
5.4 No Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.1 Failure to Pay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1
3
7.2 Representation or Warranty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.3 Adverse Change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.4 Guarantor Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.5 Syndicated Credit Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.6 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
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2
4
LETTER OF CREDIT AGREEMENT
This Agreement dated as of June 1, 1997, is between Bank of
America National Trust and Savings Association (the "Bank") and
Xxxxxxxx-Sonoma, 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 earlier of (a) 364 days after the
date of this Agreement, or (b) May 29, 1998.
"Guarantor" has the meaning defined in the Syndicated Credit
Agreement.
"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 and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of the Borrower and its Subsidiaries to
perform the obligations under this Agreement; or (c) a material
adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower or any Subsidiary of this
Agreement or any agreement required by this Agreement.
"Material Subsidiary" has the meaning defined in the Syndicated
Credit 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
1
5
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.
2. LETTER OF CREDIT FACILITY
1 Letters of Credit. 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. Each letter
of credit shall have a maximum term no longer than one year. In addition, each
letter of credit shall have a maximum maturity not to extend beyond one year
after the Expiration Date. Each commercial letter of credit will require
drafts payable at sight. All letters of credit outstanding under the existing
credit agreement between the Borrower and the Bank dated March 29, 1996, shall
be deemed to be outstanding under this Agreement as of the effective date of
this Agreement.
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) may not exceed Thirty-Five Million Dollars ($35,000,000). The amount
of standby letters of credit outstanding at any one time (including the drawn
and unreimbursed amounts of the standby letters of credit) may not exceed Five
Million Dollars ($5,000,000).
3 Extension of Availability. The Borrower may request an
extension of the Expiration Date for a single period of 364 days. The request
shall be made no sooner than 60 days prior to the Expiration Date and no later
than 30 days prior to the Expiration Date. Any such extension will be subject
to the approval of the Bank in its sole discretion.
4 Principal Repayment. Any amounts drawn under letters of
credit shall be repaid by the Borrower immediately upon
2
6
demand, either from a Loan as permitted under the Syndicated Credit Agreement
or otherwise.
5 Interest. Any amounts drawn under letters of credit 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.
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.
(b) the issuance of any letter of credit and any
amendment to a letter of credit 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 to pay
any issuance and/or other fees that the Bank notifies the Borrower
will be charged for issuing and processing letters of credit 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, payable annually in advance,
calculated on the basis of the face amount outstanding on the day the
fee is calculated.
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
7
3. DISBURSEMENTS, PAYMENTS AND COSTS
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.
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 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 14999-01347.
(b) The Bank will debit the account on the dates the
payments become due. If a due date does not fall on a 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.
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.
4
8
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.
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.
7 Interest Calculation. Except as otherwise stated in this
Agreement, all interest and fees, if any, will be computed on the basis of a
360-day year and the actual number of days elapsed. This results in more
interest or a higher fee than if a 365-day year is used.
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:
(a) Authorizations. Evidence that the execution,
delivery and performance by the Borrower and each Guarantor or
subordinating creditor of this Agreement and any instrument or
agreement required under this Agreement have been duly authorized.
5
9
(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) Guaranties. Guaranties signed by all Guarantors,
each in the amount of Thirty Five Million Dollars ($35,000,000).
(d) 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:
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; and the
guaranties are within each Guarantor's powers, have been duly authorized, and
do not contravene any of their respective organizational papers.
6
10
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.
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 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.
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
7
11
of the 60 day period provided for in paragraph 8.01(g)(i) of the Syndicated
Credit Agreement.
1 Failure to Pay. The Borrower fails to pay: (i) when and as
required to be paid herein, 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.
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.
3 Adverse Change. There occurs a Material Adverse Effect.
4 Guarantor Defaults. Any Guarantor fails in any material
respect to perform or observe any term, covenant or agreement in its guaranty;
or such guaranty is for any reason partially (including with respect to future
extensions of credit) or wholly revoked or invalidated, or otherwise ceases to
be in full force and effect, or any Guarantor or any other person contests in
any manner the validity or enforceability thereof or denies that it has any
further liability or obligation thereunder.
5 Syndicated Credit Agreement. Any Event of Default (as
defined therein) occurs under the Syndicated Credit Agreement; or the
Syndicated Credit Agreement is terminated.
6 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 30 days after the earlier of (i) the date
upon which a Responsible Officer knew or reasonably should have known of such
failure or (ii) the date upon which written notice thereof is given to the
Borrower by the Bank.
8
12
8. ENFORCING THIS AGREEMENT; MISCELLANEOUS
1 Syndicated Credit Agreement.
(a) "Syndicated Credit Agreement" means the
syndicated Credit Agreement dated as of June 1, 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, 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 of an amendment to the
Syndicated Credit Agreement to which the Bank does not consent.
9
13
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. If a participation is sold or the loan is assigned and the Bank
shall have provided Borrower with written notice thereof and the identity of
the purchaser, the purchaser will have the right of set-off against the
Borrower. The Bank acknowledges and agrees that it will nevertheless remain
liable to issue letters of credit hereunder notwithstanding any
participation/assignment of its interest hereunder.
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.
4 Costs. If the Bank incurs any expenses in connection with
administering or enforcing this Agreement, or if the Bank takes collection
action under this Agreement, it is entitled to costs and reasonable attorneys'
fees, including any allocated costs of in-house counsel.
5 Attorneys' Fees. 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.
6 One Agreement. This Agreement and any related security or
other agreements required by this Agreement, collectively:
10
14
(a) represent the sum of the understandings and
agreements between the Bank and the Borrower concerning this
credit;
(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.
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 Headings. Article and paragraph headings are for reference
only and shall not affect the interpretation or meaning of any provisions of
this Agreement.
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.
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
11
15
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.
12
16
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 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 Xxxxxxxx-Sonoma, Inc.
Trust and Savings Association
By /s/ Xxxxx X. Xxxxxxxxxxx By /s/ X. Xxxxxx Xxxxxx
------------------------ --------------------
Xxxxx X. Xxxxxxxxxxx W. Xxxxxx Xxxxxx
Vice President Chairman and Chief Executive
Officer
Address where notices to Address where notices to
the Bank are to be sent: the Borrower are to be sent:
San Francisco Commercial 0000 Xxx Xxxx Xxxxxx
Xxxxxxx #0000 Xxx Xxxxxxxxx, XX 00000
000 Xxxxxxxxxx Xxxxxx Attn: Chief Financial Officer
Xxx Xxxxxxxxx, XX 00000 Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxxxxx
Fax: (000) 000-0000
13
