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Exhibit 10.1
AMENDED AND RESTATED
STANDING LOAN AGREEMENT
This Amended and Restated Standing Loan Agreement, dated as of June 1,
1997, is between XXXXXXXX-SONOMA, INC., a California corporation ("Borrower")
and Bank of America National Trust and Savings Association ("Bank"), amends and
restates in its entirety the Standing Loan Agreement between the parties dated
as of March 9, 1994.
Agreement
I. Loan Terms
1.1 Amount and Purpose
Bank has made a loan to Borrower in the original principal
amount of SEVEN MILLION AND NO/100 DOLLARS ($7,000,000.00) (the "Loan").
The Loan is evidenced by a promissory note (the "Note")
payable to Bank in the original principal amount of the Loan and is secured by
a Deed of Trust, Assignment of Rents and Fixture Filing (the "Deed of Trust")
covering certain real property commonly known as 0000 Xxx Xxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx and more particularly described on Exhibit A attached to
the Deed of Trust (together with all improvements now or hereafter located
thereon, the "Property") and certain personal property and other collateral.
The Loan is not guaranteed.
This Agreement, the Note, the Deed of Trust, and all other documents
evidencing, securing or otherwise pertaining to the Loan will be referred to as
the "Loan Documents."
1.2 Documentation
At the closing of this transaction, Borrower delivered the
following documents, as applicable: (a) this Agreement; (b) the Note; (c) the
Deed of Trust; (d) a UCC-l Financing Statement perfecting a first-position lien
on all personal property collateral; (e) 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
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matters as Bank has approved in writing; (f) 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; (g) evidence of
the casualty and other insurance coverage required under this Agreement; (h)
evidence of Borrower's due formation and good standing, as well as due
authorization and execution of the Loan Documents; (i) if applicable,
Subordination Agreements and Estoppels from tenants leasing space in the
Property; (j) if the Property is to be leased to third parties, Borrower's pro
forma lease form; (k) a loan fee in the amount of $70,000.00; (l) 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 (m) such
other documents, Property information and other assurances as Bank required.
1.3 Automatic Deduction
(a) Borrower agrees that payments on the Note will be
deducted automatically on the due date from checking account number 14999-01347
(the "Checking Account").
(b) 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.
(c) Borrower will 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, the debit will be reversed.
(d) 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 such Account
or 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.
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1.4 Disbursement Procedures
The Loan proceeds have previously been fully disbursed.
II. Covenants of the Borrower
Borrower promises to keep each of the following covenants:
2.1 Compliance with Law
Borrower shall comply in all material respects with all
existing and future laws, regulations, orders, building restrictions and
requirements of, and all agreements with and commitments to, all governmental,
judicial or legal authorities having jurisdiction over the Property and
Borrower's business (all collectively, the "Requirements"), except where such
failure to comply could not reasonably be expected to have a Material Adverse
Effect. For the purposes of this 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 Borrower and its subsidiaries taken as a whole; (b) a material
impairment of the ability of Borrower and its subsidiaries to perform their
obligations to Bank; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against Borrower of any Loan
Document.
2.2 Conditional Sales Contracts
Without Bank's prior written consent, Borrower shall not
purchase any materials, equipment, furnishings or fixtures to be installed on
the Property under any agreement where the seller reserves title or the right
of removal or repossession after such items are installed on the Property;
provided, however, that this restriction shall not apply to the leasing,
purchase or other acquisition of any item which does not become a fixture
attached to the Property.
2.3 Site Visits
Borrower shall allow Bank access to the Property at any
reasonable time for the purposes of performing an appraisal,
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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 shall also allow Bank to
examine, copy and audit its books and records. All such visits and inspections
shall be made at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to Borrower,
and without unduly interfering with the operations of Borrower; provided,
however, when an Event of Default exists Bank may do any of the foregoing at
any time during normal business hours and without advance notice. 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 shall be solely for the
purpose of protecting Bank's security and preserving Bank's rights under the
Loan Documents. 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.
2.4 Insurance
Borrower shall 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 and a lender's loss payable
endorsement (438 BFU or its equivalent) in favor of Bank, and any other
endorsements required by Bank.
(b) Comprehensive General Liability coverage with such
limits as Bank may require. This policy shall name Bank as an additional
insured. Coverage shall be written on an occurrence basis, not claims made.
(c) Such other insurance as Bank may require, which may
include earthquake and flood.
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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 shall reimburse Bank, on demand, for all
premiums advanced by Bank, which advances shall be considered to be additional
loans to Borrower secured by the Deed of Trust and bearing interest at the
Default Rate provided in the Note from the date of demand until paid.
2.5 Payment of Expenses
Borrower shall 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 shall be considered an additional loan to
Borrower secured by the Deed of Trust and bearing interest at the Default Rate
provided in the Note from the date billed to Borrower until paid.
2.6 Financial and Other Information
(a) Borrower shall provide Bank, as soon as available,
but not later than 120 days after the end of each fiscal year, Borrower's
annual financial statements. The financial statements shall include at least
Borrower's balance sheet, statement of income and retained earnings and
statement of cash flow. These financial statements must be audited with an
opinion of Deloitte & Touche LLP or another nationally-recognized independent
public accounting firm ("Independent Auditor") which report shall state that
such consolidated financial statements present fairly the
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financial position for the periods indicated in conformity with GAAP applied on
a basis consistent with prior years. Suchopinion shall not be qualified or
limited because of a restricted or limited examination by the Independent
Auditor of any material portion of Borrower's or any subsidiary's records. The
opinion shall include a certificate of the Independent Auditor stating that in
making the examination necessary therefor no knowledge was obtained of any Event
of Default, except as specified in such certificate. The statements shall be
prepared on a consolidated basis and shall be accompanied by unaudited operating
statements reflecting the profitability of each of Borrower's and its
subsidiaries' business divisions, substantially in the form previously supplied
by Borrower to Bank (the "Operating Statements"). The statements shall be
accompanied by a copy of Borrower's Form 10-K as filed with the Securities and
Exchange Commission, and a compliance certificate in a form acceptable to Bank,
executed by a responsible officer, substantially in the form attached as Exhibit
A to this Agreement.
(b) Borrower shall provide Bank, within 60 days after the
end of each fiscal quarter of Borrower, except the fourth quarter:
(i) Copies of Borrower's consolidated financial
statements, including its Form 10-Q Quarterly Report; and
(ii) A compliance certificate in a form acceptable to
Bank, executed by a responsible officer, substantially in the form
attached as Exhibit A to this Agreement.
(c) Borrower shall provide Bank, promptly, copies of all
financial statements and reports that Borrower sends to its shareholders, and
copies of all financial statements and regular, periodical or special reports
that Borrower or any subsidiary may make to, or file with, the SEC.
(d) On request, Borrower shall promptly provide Bank with
any other financial or other information concerning its affairs and properties
as Bank may reasonably request.
2.7 Notices
Borrower shall promptly notify Bank in writing of:
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(a) any litigation affecting Borrower, the Property,
or any subsidiary, where the amount claimed is over Five Million Dollars
($5,000,000);
(b) any notice that the Property or Borrower's business
fails in any respect to comply with any applicable law, regulation or court
order, where such failure may reasonably be expected to result in a Material
Adverse Effect; and
(c) any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect.
2.8 Indemnity
Borrower agrees to indemnify, defend with counsel acceptable
to Bank, and hold harmless Bank and its officers, directors, employees,
counsel, agents and attorneys-in-fact (each, an "Indemnified Person") 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; provided, however, that Borrower shall have no obligation hereunder
to indemnify any Indemnified Person for the Indemnified Person's gross
negligence or willful misconduct. Notwithstanding anything to the contrary in
any other Loan Document, the provisions of this Section 2.8 shall not be
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.
2.9 Preservation of Rights; Maintenance of Properties
Borrower shall obtain and preserve all rights, privileges and
franchises necessary or desirable for the operation of the Property and the
conduct of Borrower's business, and shall maintain all its properties in good
condition; except, in each instance, where such failure cannot reasonably be
expected to result in a Material Adverse Effect.
2.10 Negative Covenants
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Without Bank's prior written consent:
(a) Borrower shall not, and shall not suffer or permit
any subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by Borrower and its
subsidiaries on the date hereof;
(b) Borrower shall not lease or dispose of all or a
substantial part of the Borrower's business or the Borrower's assets except in
the ordinary course of the Borrower's business and an additional aggregate
amount not exceeding One Million Dollars ($1,000,000) per fiscal year;
(c) Borrower shall not sell or otherwise dispose of any
assets for less than fair market value or enter into any sale and leaseback
agreement covering any of its fixed or capital assets; provided, however, that
Borrower may enter into sale and leaseback transactions with an aggregate
consideration not exceeding One Million Dollars ($1,000,000) per fiscal year;
or
(d) Borrower shall not enter into any consolidation,
merger, joint venture, or partnership, except:
(i) any subsidiary may merge with Borrower, provided
that Borrower shall be the continuing or surviving corporation; and
(ii) Borrower may enter into joint ventures or other
entities for the purpose of conducting business in Japan, provided
such business is either (i) consistent in magnitude and scope with the
business as currently conducted and the business plans of Borrower and
its subsidiaries as previously provided to Bank; or (ii) is in
accordance with revised business plans of Borrower and its
subsidiaries, which plans have been discussed with Bank.
2.11 Performance of Acts
Upon request by Bank, Borrower shall perform all acts which
may be necessary or advisable to perfect any lien or security interest provided
for in the Loan Documents.
III. Use of the Property
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Borrower shall occupy the Property for the conduct of its regular business.
Borrower shall not change its intended use of the Property without Bank's prior
written approval.
IV. Hazardous Substances
Notwithstanding any provision in the Deed of Trust or any other Loan
Document, the provisions of this Article IV shall not 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, defend with counsel acceptable
to Bank, and hold Bank, its parent and affiliated companies, and their
respective officers, directors, employees and agents, harmless from and against
all actual or threatened liabilities, claims, actions, damages (including
foreseeable and unforeseeable consequential damages), penalties, costs,
expenses (including attorney's fees) and losses directly or indirectly arising
out of or resulting from the presence of any Hazardous Substance in or around
any part of the Property or in the soil or groundwater under the Property,
including (1) any expenses incurred in connection with any investigation of
site conditions or any clean-up, remedial, removal or restoration work, and (2)
any resulting damages or injuries to the person or property of any third
parties or to any natural resources (all of the foregoing being "Indemnified
Costs"). In addition, Borrower shall 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
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portion of or interest in it. This indemnity shall apply only to Indemnified
Costs directly or indirectly arising out of or resulting from any Hazardous
Substances that were present or released in, on or around any part of the
Property or in the soil or groundwater under the Property at any time before or
while Borrower held title to or was in possession or control of the Property
("Borrower's Responsibility"); provided, however, that, unless the same is or
should be obvious upon reasonable investigation, any Indemnified Costs shall
be presumed to be Borrower's Responsibility, unless shown by a preponderance of
the evidence to the contrary. If any such showing by a preponderance of the
evidence is made, Borrower shall be entitled to be repaid any Indemnified Costs
previously paid by Borrower which have been shown not to be Borrower's
Responsibility.
4.3 Representation and Warranty
Before signing the original Agreement dated March 9, 1994,
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 shall 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. Borrower shall
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.
V. Representations and Warranties
Borrower promises that each representation and warranty set forth
below is true, accurate and correct.
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5.1 Formation; Authority
Borrower has complied with all laws and regulations concerning
its organization, existence and its authority to transact its business, and is
qualified as a foreign corporation and in good standing in each state where its
ownership, lease or operation of property or the conduct of its business
requires it to be so qualified and in good standing. Borrower is in good
standing under the laws of its jurisdiction of incorporation. Borrower is
authorized to execute, deliver and perform its obligations under each of the
Loan Documents.
5.2 No Violation
Neither Borrower nor the Property is in violation of, nor do
the terms of this Agreement violate, any regulation or ordinance, any order of
any court or governmental entity, or any covenant or agreement affecting
Borrower or the Property, where any such violation could reasonably be expected
to have a Material Adverse Effect. There are no 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)
which could reasonably be expected to have a Material Adverse Effect.
5.3 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, or other principals, and the
Property, does and will fairly and accurately represent the financial condition
being reported on, in accordance with generally accepted accounting principles.
All such information was and will be prepared in accordance with generally
accepted accounting principles consistently applied, unless otherwise noted,
and except for year end adjustments as to interim statements.
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5.4 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.
VI. 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, or fails to make any payment demanded by Bank under any Loan Document,
within fifteen (15) days after the date due or demanded; or
(b) Borrower fails to 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; or
(c) Borrower 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 or liquidates; or
(e) Any representation or warranty made or given in any
of the Loan Documents proves to be false or misleading in any material respect;
or
(f) An event of default occurs under any of the Loan
Documents; or
(g) The Deed of Trust ceases to be an enforceable first
lien; or
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(h) One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against
Borrower involving in the aggregate a liability (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage) as to any single or related series of transactions, incidents or
conditions, of $5,000,000 or more, and the same shall remain unsatisfied,
unvacated and unstayed pending appeal for a period of 10 days after the entry
thereof; or
(i) Any non-monetary judgment, order or decree is entered
against Borrower which does or could reasonably be expected to have a Material
Adverse Effect, and there shall be any period of 10 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(j) 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
(k) Borrower (i) fails to make any payment in respect of any
indebtedness or contingent obligation (other than in respect of swap
contracts), when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) where the total amount of all such
indebtedness and contingent obligations (included any unfunded commitments) is
Five Million Dollars ($5,000,000) or more, and such failure continues after the
applicable grace or notice period, if any, specified in the relevant document
on the date of such failure; or (ii) fails to perform or observe any other
condition or covenant, or any other event shall occur or condition exist, under
any agreement or instrument relating to any such indebtedness or contingent
obligation (where the total amount of such indebtedness or contingent
obligation is Five Million Dollars ($5,000,000) or more), and such failure
continues after the applicable grace or notice period, if any, specified in the
relevant document on the date of such failure, if the effect of such failure,
event or condition is to cause, or to permit the holder or holders of such
indebtedness or beneficiary or beneficiaries of such indebtedness (or a trustee
or agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause such indebtedness to be declared to be due and payable
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prior to its stated maturity, or such contingent obligation to become payable
or cash collateral in respect thereof to be demanded; or
(l) There occurs a Material Adverse Effect; or
(e) There occurs a material adverse change in the
physical condition of the Property.
6.2 Remedies
If an Event of Default occurs under this Agreement,
(a) 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. 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.
(b) Bank shall have the right in its sole discretion to
enter the Property and take possession of it, whether in person, by agent or by
court-appointed receiver, collect rents and otherwise protect its collateral
and rights under the Loan Documents. If Bank exercises any of the rights or
remedies provided in this clause (b), that exercise shall not make Bank a
partner or joint venturer of Borrower. All sums which are expended by Bank in
preserving its collateral shall be considered an additional loan to Borrower
secured by the Deed of Trust and bearing interest at the default rate provided
in the Note.
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VII. Reference and Arbitration
7.1 Judicial Reference
In any judicial action between or among the parties, including
but not limited to any action or cause of action arising out of or relating to
this Agreement or the Loan Documents or based on or arising from an alleged
tort, all decisions of fact and law shall at the request of any party be
referred to a referee in accordance with California Code of Civil Procedure
Sections 638 et seq. The parties shall designate to the court a referee or
referees selected under the auspices of the American Arbitration Association
("AAA") in the same manner as arbitrators are selected in AAA-sponsored
proceedings. The presiding referee of the panel, or the referee if there is a
single referee, shall be an active attorney or retired judge. Judgment upon the
award rendered by such referee or referees shall be entered in the court in
which such proceeding was commenced in accordance with California Code of Civil
Procedure Sections 644 and 645.
7.2 Mandatory Arbitration
After the Deed of Trust has been released, fully reconveyed,
or extinguished, any controversy or claim between or among the parties,
including those arising out of or relating to this Agreement or the Loan
Documents and any claim based on or arising from an alleged tort, shall at the
request of any party be determined by arbitration. The arbitration shall be
conducted in accordance with the United States Arbitration Act (Title 9, U.S.
Code), notwithstanding any choice of law provision in this Agreement, and under
the Commercial Rules of the AAA. The arbitrator(s) shall give effect to
statutes of limitation in determining any claim. Any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrator(s).
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief
or pursuit of a provisional or ancillary remedy shall not constitute a waiver
of the right of any party, including the plaintiff, to submit the controversy
or claim to arbitration if any other party contests such action for judicial
relief.
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7.3 Real Property Collateral
Notwithstanding the provisions of Section 7.2, no controversy
or claim shall be submitted to arbitration without the consent of all parties
if, at the time of the proposed submission, such controversy or claim arises
from or relates to an obligation to Bank which is secured by real property
collateral. If all parties do not consent to submission of such a controversy
or claim to arbitration, the controversy or claim shall be determined as
provided in Section 7.1.
7.4 Provisional Remedies, Self-Help and Foreclosure
No provision of this Article VII shall limit the right of any
party to this Agreement to exercise self-help remedies such as setoff,
foreclosure against or sale of any real or personal property collateral or
security, or obtaining provisional or ancillary remedies from a court of
competent jurisdiction before, after, or during the pendency of any arbitration
or other proceeding. The exercise of a remedy does not waive the right of
either party to resort to arbitration or reference. At Bank's option,
foreclosure under a deed of trust or mortgage may be accomplished either by
exercise of power of sale under the deed of trust or mortgage or by judicial
foreclosure.
VIII. Miscellaneous Provisions
8.1 No Waiver; Consents
No alleged waiver by Bank shall be effective unless in
writing, and no waiver shall be construed as a continuing waiver. No waiver
shall be 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
shall 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
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other persons or entities shall have any right of action under this Agreement
or any right to the Loan funds.
8.3 Notices
All notices given under this Agreement shall be in writing and
shall be 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 shall be 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 shall be
recoverable separately from and in addition to any other amount included in
such judgment, and such attorneys fees obligation is 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 shall 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
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Agreement without the prior written consent of Bank. Bank shall have the right
to transfer the Loan to any other persons or entities without the consent of or
notice to Borrower. Without the consent of or notice to Borrower, 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 shall 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 shall in no way affect any other
provision. If Borrower consists of more than one person or entity, each shall
be 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
shall be governed by California law. This Agreement may be executed in one or
more counterparts, each of which shall, for all purposes be deemed an original
and all such counterparts taken together, shall 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 prior
writings concerning the subject matter of the Loan Documents, including any
loan commitment issued to Borrower.
8.9 Actions
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Bank shall have 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 shall 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 shall Bank be 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.
IN WITNESS WHEREOF, Borrower and Bank have executed this Agreement as of
the date first above written.
Borrower: Bank:
XXXXXXXX-SONOMA, INC., BANK OF AMERICA NATIONAL TRUST
a California corporation AND SAVINGS ASSOCIATION
By: /s/ W. Xxxxxx Xxxxxx By: /s/ Xxxxx X.Xxxxxxxxxxx
----------------------- ---------------------------
W. Xxxxxx Xxxxxx Xxxxx X.Xxxxxxxxxxx
Chief Executive Officer Vice President
Address: Address:
0000 Xxx Xxxx Xxxxxx 00000 Xxxxxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 9410 Xxxxxxx, XX 00000
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