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BANK OF AMERICA STANDING LOAN AGREEMENT
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This Standing Loan Agreement (the "Agreement"), dated as of May
August 7, 1997, is between OAKLEY, INC., a Washington corporation ("Borrower")
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("Bank").
AGREEMENT
1. LOAN TERMS.
1.1 AMOUNT AND PURPOSE.
Bank will make a loan to Borrower in the principal amount of TWENTY
TWO MILLION SEVEN HUNDRED EIGHTY THOUSAND AND NO/100 DOLLARS ($22,780,000.00)
(the "Loan") to be used to refinance the Property.
The Loan will be evidenced by a promissory note (the "Note") payable
to Bank in the original principal amount of the Loan and will be secured by a
Deed of Trust With Assignment of Rents, Security Agreement and Fixture Filing
(the "Deed of Trust") covering certain improved real property commonly known as
27801 Icon, Foothill Ranch, California and more particularly described on
Exhibit A attached to the Deed of Trust (the "Real Property") (the Real Property
together with all buildings, structures and other improvements now or hereafter
located thereon (the "Improvements"), and the personal property described in the
Deed of Trust and defined therein and herein as "Personalty", being hereinafter
collectively referred to as the "Property").
1.2 ADDITIONAL CREDIT SUPPORT.
(a) The Loan will not be guaranteed and all references to
"Guaranties" and "Guarantors" in this Agreement may be disregarded.
1.3 DOCUMENTATION. At or prior to the closing of this transaction,
Borrower must deliver the following documents and other items, executed and
acknowledged as appropriate, all in form and substance satisfactory to Bank: (a)
this Agreement; (b) the Note; (c) the Deed of Trust; (d) a UCC-1 Financing
Statement perfecting a first-position lien on all personal property collateral
that is perfected by filing; (e) the Guaranties, if any; (f) an ALTA title
insurance policy insuring Bank that the Deed of Trust constitutes a valid and
enforceable lien on the Property subject and subordinate only to such liens or
other matters as Bank has approved in writing; (g) if requested, an ALTA/ASCM
survey of the Real Property and the improvements thereon certified to Bank; (h)
if the Deed of Trust is to be junior to any other lien or deed of trust on the
Property, a Beneficiary's Statement from the holder of such prior lien or deed
of trust; (i) evidence of the casualty and other insurance coverage as required
under this Agreement or otherwise by Bank in writing; (j) if Borrower is
anything other than a natural person, evidence of Borrower's due formation and
good standing, as well as due authorization and execution of the Loan Documents;
(k) if applicable, subordination agreement and estoppel certificate from
tenants leasing space in the Property; (l) if the Property is to be leased to
third parties, Borrower's pro forma lease form; (m) an Environmental
Questionnaire and Disclosure Statement prepared and certified by Borrower, and,
if Bank requires, an environmental survey of the Property prepared by an
environmental consultant satisfactory to Bank; and (n) such other documents,
property information and other assurances as Bank may require.
1.4 LOAN DOCUMENTS. This Agreement, the Note, the Deed of Trust, the
Guaranties, if any, and all other documents evidencing, securing or otherwise
pertaining to the Loan are referred to as the "Loan Documents."
1.5 AUTOMATIC DEDUCTION.
Borrower agrees that monthly interest payments and quarterly
principal payments on the Note will be deducted automatically on the due date
from checking account number 14581-26311 maintained by Borrower at the Bank (the
"Checking Account").
Bank will debit the Checking Account on the dates the payments become
due. If a due date does not fall on a banking day, Bank will debit the Checking
Account on the first banking day following the due date.
Borrower will maintain the Checking Account in good standing with Bank
throughout the term of the Loan, and maintain sufficient funds in the Checking
Account on the dates Bank enters debits authorized by this Agreement. If there
are insufficient funds in the Checking Account on the date Bank enters any debit
authorized by this Agreement, without limiting Bank's other remedies in such an
event, the debit will be reversed.
Borrower hereby grants to Bank a security interest in the Checking
Account, and any other accounts from which Borrower may from time to time
authorize Bank to debit payments due on the Loan, for the purpose of securing
the payment of amounts Bank is authorized to deduct from the Checking Account or
such other accounts. The security interest is granted only to the extent of
such authorized deductions, and does not secure any other obligation owed by
Borrower to Bank, whether under this Agreement or otherwise.
1.6 DISBURSEMENT PROCEDURES. Bank will disburse the Loan Proceeds as
follows:
(a) First, to Bank, the sum of 17,460.96 which represents
disbursements for the following items:
Loan Fee $ 0.00
Documentation Fee $ 1,500.00
Environmental Review Fee $ 700.00
Appraisal Fee $ 8,130.00
UCC Filing Fee $ 30.00
Tax Service Contract Fee (s) $ 2,238.00
Legal Fee (est) $ 4,862.96
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TOTAL $ 17,460.96
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(b) Second, to Fidelity National Title Company, to disburse on
behalf of Borrower the funds to pay for title policy, endorsements and related
fees.
(c) Third, to Bank, the remaining Loan proceeds to pay off in
full existing Bank Loan No. 9675942213-349. In the event the proceeds are not
sufficient to pay the loan in full, Borrower shall pay from its own funds any
remaining amounts required to pay such loan in full.
2. COVENANTS OF THE BORROWER.
Borrower promises to keep each of the following covenants:
2.1 COMPLIANCE WITH LAW. Borrower will comply with all existing and
future laws, regulations, orders, building restrictions and requirements of, and
all permits and approvals from, and agreements with and commitments to, all
governmental, judicial or legal authorities having jurisdiction over the
Property or Borrower's business conducted thereon or therefrom, and with all
restrictive covenants and other title encumbrances encumbering the Property (all
collectively, the "Requirements"), noncompliance of which could reasonably be
expected to cause a material adverse effect upon the Property, business,
operations, assets, condition (financial or otherwise) of Borrower, it being
agreed and understood that an adverse change in general economic conditions
shall not constitute an adverse change in the prospects of Borrower.
2.2 CONDITIONAL SALES CONTRACTS; REMOVAL OF FIXTURES AND EQUIPMENT.
Without Bank's prior written consent, Borrower must not (i) purchase any
fixtures to be installed on the Property under any agreement where the seller
reserves a lien, security interest or title thereto, or the right of removal or
repossession after such items are installed on the Property; and (ii) remove or
permit to be removed from the Real Property or the Improvements any
fixtures used in connection with the management, maintenance, operation or
enjoyment thereof unless replaced by articles of equal suitability and value
owned by Borrower free and clear of any lien or security interest.
2.3 SITE VISITS. Borrower grants Bank, its agents and representatives the
right to enter and visit the Property at any reasonable time for the purposes of
observing, performing appraisals, inspecting the Property, taking soil or
groundwater samples, and conducting tests, among other things, to investigate
for the presence of Hazardous Substances, as defined in Article IV. Borrower
must also allow Bank to examine, copy and audit its books and records. Bank is
under no duty to visit or observe the Property, or to examine any books or
records. Any site visit, observation or examination by Bank is solely for the
purpose of protecting Bank's security and preserving Bank's rights under the
Loan Documents. Neither Borrower nor any other party is entitled to rely on any
site visit, observation or testing by Bank, its agents or representatives. Bank
owes no duty of care to protect Borrower or any other party against, or to
inform Borrower or any other party of, any adverse condition affecting the
Property, including any defects in the design or construction of any
improvements on the Property or the presence of any Hazardous Substances on the
Property. Bank is not obligated to disclose to Borrower or any other party any
report or findings made as a result of, or in connection with, any site visit,
observation or testing by Bank. Prior to entering the Property, Bank must give
Borrower reasonable notice of its intent to enter. Bank must exercise
reasonable efforts to avoid interfering with Borrower's use of the Property in
connection with the activities permitted under this Section.
2.4 INSURANCE. Borrower must maintain the following insurance:
(a) All risk property damage insurance in nonreporting form on
the Property, with a policy limit in an amount not less than the full insurable
value of the Property on a replacement cost basis, including tenant
improvements, if any. The policy shall include a business interruption (or rent
loss, if more appropriate) endorsement, a lender's loss payable endorsement (438
BFU) in favor of Bank, and any other endorsements required by Bank.
(b) Commercial General Liability coverage with such limits as
Bank may reasonably require. This policy must name Bank as an additional
insured. Coverage must be written on an occurrence basis, not claims made.
(c) Such other insurance as Bank may reasonably require, which
may include (i) earthquake insurance, if such insurance is expressly required as
a condition to disbursement of the Loan proceeds or if at any time the Property
is situated in a delineated earthquake fault zone as shown on an earthquake
fault zone map adopted under California's Xxxxxxx-Xxxxxx Earthquake Fault Zoning
Act, or any successor thereto, and (ii) flood insurance, if the Property is
situated in an area designated as "flood prone," "within a flood plain" or
similar designation under federal or state law.
All policies of insurance required by Bank must be issued by companies approved
by Bank and otherwise be acceptable to Bank as to amounts, forms, risk coverages
and deductibles. In addition, each policy (except workers' compensation) must
provide Bank at least thirty (30) days' prior notice of cancellation,
non-renewal or modification. If Borrower fails to keep any such coverage in
effect while the Loan is outstanding, Bank may procure the coverage at
Borrower's expense. Borrower must reimburse Bank, on demand, for all premiums
advanced by Bank, which advances are considered to be additional loans to
Borrower secured by the Deed of Trust and bearing interest at the Default Rate
provided in the Note.
2.5 PRESERVATION OF RIGHTS. Borrower must obtain, preserve and maintain
in good standing, as applicable, all rights, privileges and franchises necessary
or desirable for the operation of the Property and the conduct of Borrower's
business thereon and therefrom.
2.6 MAINTENANCE AND REPAIR. Borrower must (i) maintain the Property,
including the parking and landscaping portions thereof, in good condition and
repair, (ii) promptly make, or cause tenants to make all necessary structural
and non-structural repairs to the Property, and (iii) not demolish, alter,
remove or add to any Improvements, excepting the installation or construction
of tenant improvements in connection with any leases approved in accordance
with this Agreement. Borrower shall pay when due all claims for labor performed
and materials furnished therefor in connection with any improvements or
construction activities commissioned by Borrower, provided that for any claim
not exceeding $100,000.00 or more, Borrower shall have the right to contest in
good faith any claim or lien, provided that Borrower does so promptly and
diligently.
2.7 PAYMENT OF EXPENSES. Borrower must pay all costs and expenses
incurred by Bank in connection with the making, disbursement and administration
of the Loan, as well as any revisions, extensions, renewals or "workouts" of the
Loan, and in the exercise of any of Bank's rights or remedies under this
Agreement. Such costs and expenses include title insurance, recording and
escrow charges, fees for appraisal, environmental services, legal fees and
expenses of Bank's counsel and any other reasonable fees and costs for services,
regardless of whether such services are furnished by Bank's employees or by
independent contractors. Borrower acknowledges that the Loan Fee does not
include amounts payable by Borrower under this section. All such sums incurred
by Bank and not immediately reimbursed by Borrower are considered additional
loans to Borrower secured by the Deed of Trust and bearing interest at the
Default Rate provided in the Note.
2.8 FINANCIAL AND OTHER INFORMATION.
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(a) Borrower must provide Bank, without prior request or demand,
within one hundred twenty (120) days of the close of Borrower's fiscal year-end,
its annual financial statements, including a year-end balance sheet and annual
profit and loss statement.
(b) On request, Borrower must promptly provide Bank with any
other financial or other information concerning its affairs and properties as
Bank may request.
2.9 NOTICES. Borrower must promptly notify Bank in writing of:
(a) any litigation affecting Borrower, or the Property, and, if
Borrower is other than a natural person or trust, any general partner or
controlling shareholder or managing member of Borrower where the amount claimed
is One Million and No/100 Dollars ($1,000,000.00) or more; and
(b) any notice that the Property or Borrower's business fails in
any material respect to comply with any applicable law, regulation or court
order; and
(c) any material adverse change in the physical condition of the
Property or Borrower's financial condition or operations or other circumstance
that materially adversely affects Borrower's intended use of the Property or
Borrower's ability to repay the Loan;
(d) any notice of an alleged default on Borrower's part under
that certain Second Completely Amended and Restated Declaration of Covenants,
Conditions and Restrictions ("CC&Rs") recorded in the Official Records of Orange
County, California (the "Official Records") on April 30, 1992, as Instrument No.
92-283832; and
(e) any notice of the following under that certain Declaration
of Special Land Use Restriction Agreement (the "Use Restriction") recorded in
the Official Records on April 3, 1995, as Instrument No. 00-0000000: (i) an
alleged default on Borrower's part under the Use Restriction; (ii) the intent of
Foothill Ranch Company, or its successors or assigns ("FRC"), to exercise its
exclusive option to purchase the Land (as defined in the Use Restriction)
pursuant to Section 3.5 of the Use Restriction; (iii) Borrower's notice to FRC
of Borrower's intent to sell all or any part of the Land or any interest therein
pursuant to Section 3.6 of the Use Restriction; and (iv) any agreement between
Borrower and FRC to amend, modify or revise the Use Restriction; and
(f) Borrower's compliance with Section 2.3(a) of the Use
Restriction.
2.10 INDEMNITY. Borrower agrees to indemnify, defend with counsel
acceptable to Bank, and hold Bank harmless from and against all liabilities,
claims, actions, damages, costs and expenses (including all legal fees and
expenses of Bank's counsel) arising out of or resulting from the ownership,
operation, or use of the Property, whether such claims are based on theories of
derivative liability, comparative negligence or otherwise. Notwithstanding
anything to the contrary in any other Loan Document, the provisions of this
Section 2.10 are not secured by the Deed of Trust, and shall survive the
termination of this Agreement, repayment of the Loan and foreclosure of the Deed
of Trust or similar proceedings.
2.11 PERFORMANCE OF ACTS. Upon request by Bank, Borrower must perform all
acts which may be necessary or advisable to perfect any lien or security
interest provided for in the Loan Documents or to carry out the intent of the
Loan Documents.
2.12 NOTICE OF CHANGE. Borrower must give Bank prior written notice of any
change in:
(a) the location of its place of business or its chief executive
office if it has more than one place of business; and
(b) Borrower's name or business structure. Unless otherwise
approved by Bank in writing, Borrower agrees that all Property that consists of
Personalty (as defined in Section 3.1 of the Deed of Trust), (other than the
books and records) will be located at the Real Property and that all books and
records will be located at Borrower's place of business or chief executive
office if Borrower has more than one place of business.
2.13 NEGATIVE COVENANTS. Without Bank's prior written consent, Borrower
must not:
(a) engage in any business activities substantially different
from Borrower's present business;
(b) liquidate or dissolve Borrower's business;
(c) lease or dispose of all or a substantial part of Borrower's
business or Borrower's assets;
(d) sell any assets for less than fair market price; or
(e) enter into any consolidation, merger, pool, joint venture,
syndicate or other combination, notwithstanding the foregoing, Borrower may
enter into any consolidation, merger, pool, joint venture, syndicate or other
combination permitted in Sections 7.3 (xi) and 7.7 of the Amended and Restated
Credit Agreement dated as of August 15, 1995 among Borrower, the Lenders listed
therein and Bank of America as Agent as amended through the date hereof.
2.14 KEEPING GUARANTOR INFORMED. Borrower must keep each Guarantor, and
any third party executing the Deed of Trust or any other security instrument
securing the Loan, informed of Borrower's financial condition and business
operations and all other circumstances which may affect Borrower's ability to
pay or perform its obligations under the Loan Documents. In addition, Borrower
must deliver to each such person all of the financial information required to be
furnished to Bank hereunder.
3. USE OR LEASING OF THE PROPERTY.
3.1 USE OF THE PROPERTY.
(a) Borrower must occupy the Property for the conduct of its
regular business. Borrower must not change its intended use of the Property
without Bank's prior written approval.
4. HAZARDOUS SUBSTANCES.
Notwithstanding any provision in the Deed of Trust or any other Loan
Document, the provisions of this Article IV are not to be secured by the Deed of
Trust and shall survive termination of this Agreement, repayment of the Loan,
and foreclosure of the Deed of Trust or similar proceedings.
4.1 DEFINITION OF HAZARDOUS SUBSTANCE. For purposes of this Agreement, a
"Hazardous Substance" is defined to mean any substance, material or waste,
including asbestos and petroleum (including crude oil or any fraction thereof),
which is or becomes designated, classified or regulated as "toxic," "hazardous,"
a "pollutant" or similar designation under any federal, state or local law,
regulation or ordinance.
4.2 INDEMNITY REGARDING HAZARDOUS SUBSTANCES. Borrower agrees to
indemnify and hold Bank harmless from and against all liabilities, claims,
actions, loss, damages, including, without limitation,
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foreseeable and unforeseeable consequential damages, costs and expenses
(including sums paid in settlement of claims and all consultant, expert and
legal fees and expenses of Bank's counsel) directly or indirectly arising out of
or resulting from any Hazardous Substance being present at any time in or around
any part of the Property, or in the soil, groundwater or soil vapor on or under
the Property, including those incurred in connection with any investigation of
site conditions or any clean-up, remedial, removal or restoration work, or any
resulting damages or injuries to the person or property of any third parties or
to any natural resources. In addition, Borrower must similarly indemnify,
defend and hold harmless any persons purchasing the Property through a
foreclosure sale or following a foreclosure sale, and any persons purchasing the
Loan or any portion of or interest in it. Upon demand by Bank, Borrower must
defend any investigation, action or proceeding alleging the presence of any
Hazardous Substance in any such location, which affects the Property or which is
brought or commenced against Bank, whether alone or together with Borrower or
any other person, all at Borrower's own cost and by counsel to be approved by
Bank in the exercise of its reasonable judgment. In the alternative, Bank may
elect to conduct its own defense at the expense of Borrower.
4.3 REPRESENTATION AND WARRANTY. Before signing this Agreement, Borrower
researched and inquired into the previous, current and contemplated uses and
ownership of the Property. Based on that due diligence, Borrower represents and
warrants that, to the best of its knowledge, no Hazardous Substance has been or
will be disposed of, released onto or otherwise exists in, on, or under the
Property, except as Borrower has disclosed to Bank in writing.
4.4 COMPLIANCE WITH LAW; NOTICES. Borrower has complied, and must comply
and cause all occupants of the Property to comply, with all laws, regulations
and ordinances governing or applicable to Hazardous Substances as well as the
recommendations of any qualified environmental engineer or other expert, to the
extent compliance with such experts' recommendations are necessary to comply
with Hazardous Substances laws, regulations and ordinances. Borrower must
promptly notify Bank if it knows or suspects there may be any Hazardous
Substance in or around the Property, or in the soil or groundwater under the
Property, or if any action or investigation by any governmental agency or third
party pertaining to Hazardous Substances is pending or threatened.
5. REPRESENTATIONS AND WARRANTIES.
Borrower promises that each representation and warranty set forth
below is true, accurate and correct.
5.1 FORMATION; AUTHORITY. If Borrower is anything other than a natural
person, it has complied with all laws and regulations concerning its
organization, existence and the transaction of its business, and is in good
standing in each state in which it conducts its business. Borrower is
authorized to execute, deliver and perform its obligations under each of the
Loan Documents.
5.2 COMPLIANCE WITH LAW. The Property and the actual use thereof by
Borrower complies in all material respects with all Requirements. Borrower has
received no material notices of violations of any Requirements. There are no
material claims, actions, proceedings or investigations pending or threatened
against Borrower or affecting the Property except for those previously disclosed
by Borrower to Bank in writing.
5.3 NO VIOLATION. The execution and delivery of this Agreement and the
other Loan Documents and the performance by Borrower of its obligations
hereunder and thereunder will not result in a default under any other material
agreement to which Borrower is a party, or violate any Requirements.
5.4 FINANCIAL INFORMATION. All financial information which has been and
will be delivered to Bank, including all information relating to the financial
condition of Borrower, any of its partners, shareholders, members, or other
principals, and the Property, does and will fairly and accurately represent the
financial condition being reported on. All such information was and will be
prepared in accordance with generally accepted accounting principles
consistently applied, unless otherwise noted. As of the date hereof, there has
been no material adverse change in any financial condition of Borrower except as
previously disclosed to Bank.
5.5 BORROWER NOT A "FOREIGN PERSON". Borrower is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986,
as amended from time to time.
5.6 DISCLOSURE TO GUARANTOR AND/OR THIRD PARTIES. Before each Guarantor,
and, if applicable, each third party executing the Deed of Trust or other
instrument securing the Loan, became obligated in connection with the Loan,
Borrower made full disclosure to that person regarding Borrower's financial
condition and business operations and all other circumstances bearing upon
Borrower's ability to pay and perform its obligations under the Loan Documents.
5.7 OWNERSHIP OF PROPERTY. Borrower owns directly, and not through any
affiliated entity, all of the personal property and fixtures necessary for the
operation and management of the Property for the uses presently being conducted
thereon.
6. DEFAULT AND REMEDIES.
6.1 EVENTS OF DEFAULT. Borrower will be in default under this Agreement
upon the occurrence of any one or more of the following events ("Event of
Default"):
(a) Borrower fails to make any payment due under the Note,
within ten (10) days after the date due, or Borrower fails to make any payment
demanded by Bank under any other Loan Document, within ten (10) days after
written demand by Bank; or
(b) Borrower fails to timely observe, perform and comply with
any covenant contained in this Agreement other than those referred to in clause
(a), and does not either cure that failure within thirty (30) days after written
notice from Bank, or, if the default cannot be cured in thirty (30) days, within
a reasonable time but not to exceed ninety (90) days after written notice; or
(c) Borrower or Borrower's managing general partner, if it is a
partnership, or its majority shareholder if Borrower is a corporation, or its
managing member if Borrower is a limited liability company, becomes insolvent or
the subject of any bankruptcy or other voluntary or involuntary proceeding, in
or out of court, for the adjustment of debtor-creditor relationships; or
(d) Borrower dissolves, terminates, or liquidates, or any of
these events happens to Borrower's managing general partner if it is a
partnership or to its majority shareholder if it is a corporation, or its
managing member if Borrower is a limited liability company, or if Borrower is a
trust, the trust is revoked or materially modified or there is a change or
substitution of the trustee; or
(e) Any representation or warranty made or given by Borrower in
this Agreement or any other Loan Document proves to be false or misleading in
any material respect on the date as of which made, provided, with respect to any
representation or warranty which proved to be misleading, Borrower has not cured
or remedied the same within thirty (30) days after written notice from Bank; or
(f) An Event of Default is declared or occurs under any of the
other Loan Documents (and, if a cure period is provided with
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respect to said default, said default is not fully cured within the period
provided in said Loan Document for cure of said default); or
(g) Bank fails to have an enforceable first lien on or security
interest in any property given as security for the Loan (except for prior liens
approved by Bank in writing); or
(h) Any money judgments, writs or warrants of attachment or
similar process involving, in the aggregate at any time, an amount in excess of
$1,000,000.00 (not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Borrower or its assets and shall remain undischarged, unvacated,
unbonded or unstayed for a period of 60 days (or in any event later than ten
days prior to the date of any proposed sale thereunder); or any government
authority takes action that materially adversely affects Borrower's intended use
of the Property or Borrower's ability to repay the Loan; or
(i) Borrower, or any subsidiary of Borrower, defaults in
connection with any credit (with an aggregate principal amount of $1,000,000.00
or more) which Borrower has, or any subsidiary of Borrower, with any lender,
including the Bank or any affiliate of Bank, if the default consists of the
failure to make a payment when due or gives the other lender the right to
accelerate the obligation; or
(j) There is a material adverse change in Borrower's financial
condition, or event or condition that materially impairs Borrower's intended use
of the Property or Borrower's ability to repay the Loan;
(k) A default is declared under the CC&Rs or the Use Restriction
(and, if a cure period is provided with respect to the default, the default is
not cured fully within the period provided in the CC&Rs or the Use Restriction,
as the case may be).
6.2 REMEDIES. If an Event of Default occurs under this Agreement, Bank
may exercise any right or remedy which it has under any of the Loan Documents,
or which is otherwise available at law or in equity or by statute, and all of
Bank's rights and remedies shall be cumulative. Upon the occurrence of an Event
of Default all of Borrower's obligations under the Loan Documents shall become
immediately due and payable without notice of default, presentment or demand for
payment, protest or notice of nonpayment or dishonor, or other notices or
demands of any kind or character, all at Bank's option, exercisable in its sole
discretion.
7. WAIVER OF JURY TRIAL. Borrower hereby waives its 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 Loan Documents, or the transactions contemplated
hereby or thereby, in any action, proceeding or other litigation of any type
whether with respect to contract claims, tort claims, or otherwise. Borrower and
Bank agree that any such claim or cause of action shall be tried by a court
trial without a jury. This waiver shall apply to any subsequent amendments,
renewals, supplements or modifications to this Agreement and the other Loan
Documents.
8. MISCELLANEOUS PROVISIONS.
8.1 NO WAIVER; CONSENTS. No alleged waiver by Bank is effective unless in
writing, and no waiver may be construed as a continuing waiver. No waiver is
implied from any delay or failure by Bank to take action on account of any
default of Borrower. Consent by Bank to any act or omission by Borrower may not
be construed as a consent to any other or subsequent act or omission.
8.2 NO THIRD PARTIES BENEFITED. This Agreement is made and entered into
for the sole protection and benefit of Bank and Borrower and their successors
and assigns. No trust fund is created by this Agreement and no other persons or
entities have any right of action under this Agreement or any right to the Loan
funds.
8.3 NOTICES. All notices given under this Agreement must be in writing
and are effectively served upon delivery, or if mailed, upon the first to occur
of receipt or the expiration of forty-eight (48) hours after deposit in
first-class or certified United States mail, postage prepaid, sent to the party
at its address appearing below its signature. Those addresses may be changed by
either party by notice to the other party.
8.4 ATTORNEYS' FEES. If any lawsuit, reference or arbitration is
commenced which arises out of, or which relates to this Agreement, the Loan
Documents or the Loan, including any alleged tort action, regardless of which
party commences the action, the prevailing party is entitled to recover from
each other party such sums as the court, referee or arbitrator may adjudge to be
reasonable attorneys' fees in the action or proceeding, in addition to costs and
expenses otherwise allowed by law. Any such attorneys' fees incurred by either
party in enforcing a judgment in its favor under this Agreement are recoverable
separately from and in addition to any other amount included in such judgment,
and such attorneys' fees obligations are intended to be severable from the other
provisions of this Agreement and to survive and not be merged into any such
judgment. In all other situations, including any bankruptcy or other voluntary
or involuntary proceeding, in or out of court, for the adjustment of
debtor-creditor relationships, Borrower agrees to pay all of Bank's costs and
expenses, including attorneys' fees, which may be incurred in any effort to
collect or enforce the Loan or any part of it or any term of any Loan Document.
Attorneys' fees include the allocated costs for services of in-house counsel.
8.5 HEIRS, SUCCESSORS AND ASSIGNS. The terms of this Agreement shall bind
and benefit the heirs, legal representatives, successors and assigns of the
parties; provided, however, that Borrower may not assign this Agreement without
the prior written consent of Bank. Bank may transfer the Loan to any other
persons or entities with the consent of Borrower (which consent shall not be
unreasonably withheld). Bank may disclose to any prospective purchaser of any
securities issued by Bank, and to any prospective or actual purchaser of any
interest in the Loan or any other loans made by Bank to Borrower, any financial
or other information relating to Borrower, the Loan or the Property.
8.6 INTERPRETATION. The language of this Agreement must be construed as a
whole according to its fair meaning, and not strictly for or against any party.
The word "include(s)" means "include(s), without limitation," and the word
"including" means "including, but not limited to."
8.7 MISCELLANEOUS. This Agreement may not be modified or amended except
by a written agreement signed by the parties. The invalidity or
unenforceability of any one or more provisions of this Agreement in no way
affects any other provision. If Borrower consists of more than one person or
entity, each is jointly and severally liable to Bank for the faithful
performance of this Agreement and the other Loan Documents. Time is of the
essence in the performance of this Agreement and the other Loan Documents. This
Agreement is governed by California law. This Agreement may be executed in one
or more counterparts, each of which is, for all purposes deemed an original and
all such counterparts taken together, constitute one and the same instrument.
8.8 INTEGRATION AND RELATION TO LOAN COMMITMENT. The Loan Documents fully
state all of the terms and conditions of the parties' agreement regarding the
matters mentioned in or incidental to this Agreement. The Loan Documents
supersede all oral negotiations and
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prior writings concerning the subject matter of the Loan Documents, including
any loan commitment issued to Borrower.
8.9 ACTIONS. Bank has the right, but not the obligation, to commence,
appear in, and defend any action or proceeding which might affect its security
or its rights, duties or liabilities relating to the Loan, the Property, or any
of the Loan Documents. Borrower must pay promptly on demand all of Bank's
reasonable out-of-pocket costs, expenses, and legal fees and expenses of Bank's
counsel incurred in those actions or proceedings.
8.10 RELATIONSHIPS WITH OTHER BANK CUSTOMERS. From time to time, Bank may
have business relationships with Borrower's customers, suppliers, contractors,
tenants, partners, shareholders, officers or directors, with businesses offering
products or services similar to those of Borrower, or with persons seeking to
invest in, borrow from or lend to Borrower. Borrower agrees that in no event is
Bank obligated to disclose to Borrower any information concerning any other Bank
customer. Borrower further agrees that Bank may extend credit to those parties
and may take any action it may deem necessary to collect any such credit,
regardless of any effect the extension or collection of such credit may have on
Borrower's financial condition or operations.
8.11 LOAN COMMISSION. Bank is not obligated to pay any brokerage
commission or fee in connection with or arising out of the Loan. Borrower must
pay any and all brokerage commissions or fees arising out of or in connection
with the Loan.
IN WITNESS WHEREOF, Borrower and Bank have executed this Agreement as
of the date first above written.
Borrower:
OAKLEY, INC.,
a Washington corporation
By:
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Name:
------------------------------------
Its:
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By:
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Name:
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Its:
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Address:
27801 Icon
Xxxxxxxx Xxxxx, XX 00000-0000
Bank:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
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Name:
------------------------------------
Title:
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Address:
X.X. Xxx 0000
Xxx Xxxxxxx, XX 00000-0000
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