exhibit101.htm


    
      

      

    

     

    Exhibit
10.1


    


    PROMISSORY
NOTE

    


    


    $2,500,000.00                                                                                                                                                                                                                                                                                    
May 21, 2008

     

    SonomaWest
Holdings, Inc.

    2064
Highway 116 North

    Sebastopol,
California  95472

    (Hereinafter
referred to as "Borrower")

     

    Wachovia
Bank, National Association

    Shelton,
Connecticut  06484

    (Hereinafter
referred to as “Bank")

     

    Borrower
promises to pay to the order of Bank, in lawful money of the United States of
America by mailing to the address specified hereinafter or wherever else Bank
may specify, the sum of Two Million, Five Hundred Thousand and No/100 Dollars
($2,500,000.00) or such sum as may be advanced and outstanding from time to
time, with interest on the unpaid principal balance at the rate and on the terms
provided in this Promissory Note (including all renewals, extensions or
modifications hereof, this "Note").

     

    USE
OF PROCEEDS.  Borrower shall use the proceeds of the loan(s)
evidenced by this Note for the commercial purposes of Borrower, as follows:
partial financing of tax liability relating to the distribution of MetroPCS
Communications Inc. shares of stock.

     

    SECURITY. 
Borrower has granted or will grant Bank a security interest in the collateral
described in the Loan Documents and such other security instruments as are
executed from time to time, including, but not limited to real and personal
property collateral described in that certain Deed of Trust, Assignment of
Rents, Security Agreement and Fixture Filing (“Deed of Trust”) of even date
herewith, as modified, restated or replaced from time to
time.

     

    INTEREST
RATE.  Interest shall accrue on the unpaid principal balance of
this Note from the date hereof at the LIBOR Market Index Rate plus
2.25%, as that rate may change from day to day in accordance with changes in the
LIBOR Market Index Rate ("Interest Rate"). "LIBOR Market Index Rate", for
any day, means the rate for 1 month U.S. dollar deposits as reported on Telerate
Successor Page 3750 as of 11:00 a.m., London time, on such day, or if such day
is not a London business day, then the immediately preceding London business day
(or if not so reported, then as determined by Bank from another recognized
source or interbank quotation).

     

    DEFAULT
RATE.  In addition to all other rights contained in this Note,
if a Default (as defined herein) occurs and as long as a Default continues, all
outstanding Obligations, other than Obligations under any swap agreements (as
defined in 11 U.S.C. § 101, as in effect from time to time) between Borrower and
Bank or its affiliates, shall bear interest at the Interest Rate plus 3%
("Default Rate").  The Default Rate shall also apply from acceleration
until the Obligations or any judgment thereon is paid in
full.

     

     

    
      
        
           


        

        
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    INTEREST
AND FEE(S) COMPUTATION.  Interest
and fees, if any, shall be computed on the basis of a 360-day year for the
actual number of days in the applicable period ("Actual/360
Computation").  The Actual/360 Computation determines the annual
effective interest yield by taking the stated (nominal) rate for a year's period
and then dividing said rate by 360 to determine the daily periodic rate to be
applied for each day in the applicable period.  Application of the
Actual/360 Computation produces an annualized effective rate exceeding the
nominal rate.

     

    AUTOMATIC
DEBIT OF CHECKING ACCOUNT FOR LOAN PAYMENT.  Borrower
authorizes Bank to debit demand deposit account number 2000038276040 or
any other account designated in writing by Borrower, beginning July 1, 2008 for
any payments due under this Note.  Borrower further certifies that
Borrower holds legitimate ownership of this account and preauthorizes this
periodic debit as part of its right under said ownership and acknowledges and
agrees that this debit is not a set-off.

     

    REPAYMENT
TERMS.  This Note shall be due and payable in consecutive
monthly payments of accrued interest only, commencing on June 1, 2008, and
continuing on the same day of each month thereafter until fully
paid.  In any event, all principal and accrued interest shall be due
and payable on May 1, 2011.

     

    APPLICATION
OF PAYMENTS.  Monies received by Bank from any source for
application toward payment of the Obligations shall be applied first to accrued
interest and then to principal.  If a Default occurs, monies may be
applied to the Obligations in any manner or order deemed appropriate by
Bank.

     

    If any
payment received by Bank under this Note or other Loan Documents is rescinded,
avoided or for any reason returned by Bank because of any adverse claim or
threatened action, the returned payment shall remain payable as an obligation of
all persons liable under this Note or other Loan Documents as though such
payment had not been made.

     

    DEFINITIONS.  Loan
Documents.  The term "Loan Documents", as used in this Note and
the other Loan Documents, refers to the Deed of Trust and all other documents
executed in connection with or related to the loan evidenced by this Note and
any prior notes which evidence all or any portion of the loan evidenced by this
Note, and any letters of credit issued pursuant to any loan agreement to which
this Note is subject, any applications for such letters of credit and any other
documents executed in connection therewith or related thereto, and
may include, without limitation, a commitment letter that survives closing, a
loan agreement, this
Note, guaranty agreements, security agreements, security instruments,
financing statements, mortgage instruments, any renewals or modifications,
whenever any of the foregoing are executed, but does not include swap agreements
(as defined in 11 U.S.C. § 101, as in effect from time to
time).  Obligations.  The
term "Obligations", as used in this Note and the other Loan Documents, refers to
any and all indebtedness and other obligations under this Note, all other
obligations under any other Loan Document(s), and all obligations under any swap
agreements (as defined in 11 U.S.C. § 101, as in effect from time to
time) between Borrower and Bank, or its affiliates, whenever
executed.  Certain
Other Terms.  All terms that are used but not otherwise defined
in any of the Loan Documents shall have the definitions provided in the Uniform
Commercial Code.

     

     

    
      
        
           


        

        
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    LATE
CHARGE.  If any payments are not timely made, Borrower shall
also pay to Bank a late charge equal to 5% of each payment past due for 10 or
more days.  This late charge shall not apply to payments due at
maturity or by acceleration hereof, unless such late payment is in an amount not
greater than the highest periodic payment due hereunder.

     

    Acceptance
by Bank of any late payment without an accompanying late charge shall not be
deemed a waiver of Bank's right to collect such late charge or to collect a late
charge for any subsequent late payment received.

     

    ATTORNEYS'
FEES AND OTHER COLLECTION COSTS.  Borrower shall pay all of
Bank's reasonable third-party expenses actually incurred to enforce or collect
any of the Obligations including, without limitation, reasonable arbitration,
paralegals', attorneys' and experts' fees and expenses, whether incurred without
the commencement of a suit, in any trial, arbitration, or administrative
proceeding, or in any appellate or bankruptcy
proceeding.

     

    USURY.  If
at any time the effective interest rate under this Note would, but for this
paragraph, exceed the maximum lawful rate, the effective interest rate under
this Note shall be reduced to equal the maximum lawful rate, and any amount
received by Bank in excess of such rate shall be applied to principal and then
to fees and expenses, or, if no such amounts are owing, returned to
Borrower.

     

    DEFAULT.  If
any of the following occurs, a default ("Default") under this Note shall
exist:  Nonpayment;
Nonperformance.  The failure of timely payment or performance
of the Obligations under this Note or any other Loan Document for ten (10)
days.  False
Warranty.  A warranty or representation made in the Loan
Documents or furnished Bank in connection with the loan evidenced by this Note
proves materially false, or if of a continuing nature, becomes materially
false.  Cross
Default.  At Bank's option, any failure of timely payment or
performance of any obligation under any other Loan Documents.  Cessation;
Bankruptcy.  The dissolution of, termination of existence of
appointment of a receiver for, assignment for the benefit of creditors of, or
commencement of any bankruptcy or insolvency proceeding by or against Borrower
or any party to the Loan Documents.  Material
Capital Structure or Business Alteration.  Without prior
written consent of Bank, (i) a material alteration in the kind or type of
Borrower's business;  (ii) the sale of substantially all of the
business or assets of Borrower or a material portion (10% or more) of such
business or assets if such a sale is outside the ordinary course of business of
Borrower or more than 25% of the outstanding stock or voting power of or in any
such entity in a single transaction or a series of transactions; (iii) the
acquisition of substantially all of the business or assets or more than 25% of
the outstanding stock or voting power of any other entity; or (iv) should any
Borrower enter into any merger or consolidation.  Material
Adverse Change.  Bank determines in good faith, in its sole
discretion, that the prospects for payment or performance of the Obligations are
materially impaired or there has occurred a material adverse change in the
business or prospects of Borrower, financial or
otherwise.

     

     

    
      
        
           


        

        
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    REMEDIES
UPON DEFAULT.  If a Default occurs under this Note or any Loan
Documents, Bank may at any time thereafter, take the following actions: 
Bank
Lien.  Foreclose its security interest as provided in the Deed
of Trust.  Acceleration
Upon Default.  Accelerate the maturity of this Note and, at
Bank’s option, any or all other Obligations, other than Obligations under any
swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time)
between Borrower and Bank, or its affiliates, which shall be due in accordance
with and governed by the provisions of said swap agreements; whereupon this
Note and the accelerated Obligations shall be immediately due and payable;
provided, however, if the Default is based upon a bankruptcy or insolvency
proceeding commenced by or against Borrower or any guarantor or endorser of this
Note, all Obligations (other than Obligations under any swap agreement as
referenced above) shall automatically and immediately be due and
payable.  Cumulative.  Exercise
any rights and remedies as provided under the Note and other Loan Documents, or
as provided by law or equity.

     

    ANNUAL
FINANCIAL STATEMENTS.  Borrower shall deliver to Bank, within
90 days after the close of each fiscal year, audited financial statements
reflecting its operations during such fiscal year, including, without
limitation, a balance sheet, profit and loss statement and statement of cash
flows, with supporting schedules and in reasonable detail, prepared in
conformity with generally accepted accounting principles, applied on a basis
consistent with that of the preceding year.  All such statements shall
be reviewed by an independent certified public accountant reasonably acceptable
to Bank.  The opinion of such independent certified public accountant
shall not be acceptable to Bank if qualified due to any limitations in scope
imposed by Borrower or any other person or entity. Any other qualification of
the opinion by the accountant shall render the acceptability of the financial
statements subject to Bank's approval.

     

    TAX
RETURNS.  Borrower shall deliver to Bank, within 15 days of
filing or on October 15th
of each year, whichever is earlier, complete copies of federal and state tax
returns, as applicable, together with all schedules thereto, each of which shall
be signed and certified by Borrower to be true and complete copies of such
returns.  In the event an extension is filed, Borrower shall deliver a
copy of the extension within 30 days of filing.

     

    PROPERTY
REPORTS.  Borrower shall deliver to Bank, within 30 days after
the close of each fiscal year and, if requested by Bank, within 30 days after
the end of each fiscal quarter, rent roll financial statements relating to the
operation of the Property, including, without limitation, a balance sheet,
income and expense statement and statement of cash flows, with supporting
schedules; and summary of leases, as applicable; all in reasonable detail,
prepared in conformity with generally accepted accounting principles, applied on
a basis consistent with that of the preceding year.

     

    FINANCIAL
AND OTHER INFORMATION.  Borrower shall deliver to Bank such
information as Bank may reasonably request from time to time, including without
limitation, financial statements and information pertaining to Borrower's
financial condition.  Such information shall be true, complete, and
accurate.

     

     

    
      
        
           


        

        
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    WAIVERS
AND AMENDMENTS.  No waivers, amendments or modifications of
this Note and other Loan Documents shall be valid unless in writing and signed
by an officer of Bank.  No waiver by Bank of any Default shall operate
as a waiver of any other Default or the same Default on a future
occasion.  Neither the failure nor any delay on the part of Bank in
exercising any right, power, or remedy under this Note and other Loan Documents
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or remedy.

     

    Except to
the extent otherwise provided by the Loan Documents or prohibited by law, each
Borrower and each other person liable under this Note waives presentment,
protest, notice of dishonor, demand for payment, notice of intention to
accelerate maturity, notice of acceleration of maturity, notice of sale and all
other notices of any kind.  Further, each agrees that Bank may (i)
extend, modify or renew this Note or make a novation of the loan evidenced by
this Note, and/or (ii) grant releases, compromises or indulgences with respect
to any collateral securing this Note, or with respect to any Borrower or other
person liable under this Note or any other Loan Documents, all without notice to
or consent of each Borrower and other such person, and without affecting the
liability of each Borrower and other such person; provided, Bank may not extend,
modify or renew this Note or make a novation of the loan evidenced by this Note
without the consent of the Borrower, or if there is more than one Borrower,
without the consent of at least one Borrower; and further provided, if there is
more than one Borrower, Bank may not enter into a modification of this Note
which increases the burdens of a Borrower without the consent of that
Borrower.

     

    MISCELLANEOUS
PROVISIONS.  Assignment.  This Note and the other
Loan Documents shall inure to the benefit of and be binding upon the parties and
their respective heirs, legal representatives, successors and
assigns.  Bank's interests in and rights under this Note and the other
Loan Documents are freely assignable, in whole or in part, by
Bank.  In addition, nothing in this Note or any of the other Loan
Documents shall prohibit Bank from pledging or assigning this Note or any of the
other Loan Documents or any interest therein to any Federal Reserve
Bank.  Borrower shall not assign its rights and interest hereunder
without the prior written consent of Bank, and any attempt by Borrower to assign
without Bank's prior written consent is null and void.  Any assignment
shall not release Borrower from the Obligations.  Organization;
Powers.  Borrower represents that Borrower (i) is a corporation
duly organized, validly existing and in good standing under the laws of its
state of organization, and is authorized to do business in each other
jurisdiction wherein its ownership of property or conduct of business legally
requires such organization; (ii) has the power and authority to own its
properties and assets and to carry on its business as now being conducted and as
now contemplated; and (iii) has the power and authority to execute, deliver and
perform, and by all necessary action has authorized the execution, delivery and
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    obligations under this
Note and any other Loan Document to which it is a party. Compliance
with Laws.  Borrower represents that Borrower is in compliance
in all material respects with all federal, state and local laws, rules and
regulations applicable to its properties, operations, business, and finances,
including, without limitation, any federal or state laws relating to liquor
(including 18 U.S.C. § 3617, et seq.) or narcotics (including 21 U.S.C. § 801,
et seq.) and/or any commercial crimes; all applicable federal, state and local
laws and regulations intended to protect the environment; and the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), if
applicable.  None of Borrower, or any subsidiary or affiliate of
Borrower is a Sanctioned Person or has any of its assets in a Sanctioned Country
or does business in or with, or derives any of its operating income from
investments in or transactions with, Sanctioned Persons or Sanctioned Countries
in violation of economic sanctions administered by OFAC.  The proceeds
from the Loan will not be used to fund any operations in, finance any
investments or activities in, or make any payments to, a Sanctioned Person or a
Sanctioned Country. “OFAC” means the U.S. Department of the Treasury’s Office of
Foreign Assets Control. “Sanctioned Country” means a country subject to a
sanctions program identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml, or as
otherwise published from time to time. “Sanctioned Person” means (i) a person
named on the list of Specially Designated Nationals or Blocked Persons
maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/sdn/index.shtml, or as otherwise
published from time to time, or (ii) (A) an agency of the government of a
Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or
(C) a person resident in a Sanctioned Country, to the extent subject to a
sanctions program administered by OFAC. Applicable
Law; Conflict
Between Documents. This Note and, unless otherwise provided in any
other Loan Document, the other Loan Documents shall be governed by and
interpreted in accordance with the laws of the State of
California.  If the terms of this Note should conflict with the terms
of any loan agreement or any commitment letter that survives closing, the terms
of this Note shall control.  Swap
Agreements.  All swap agreements (as defined in 11 U.S.C. §
101, as in effect from time to time), if any, between Borrower and Bank or its
affiliates are independent agreements governed by the written provisions of said
swap agreements, which will remain in full force and effect, unaffected by any
repayment, prepayment, acceleration, reduction, increase or change in the terms
of this Note, except as otherwise expressly provided in said written swap
agreements, and any payoff statement from Bank relating to this Note shall not
apply to said swap agreements except as otherwise expressly provided in such
payoff statement.  Jurisdiction.  Borrower
irrevocably agrees to non-exclusive personal jurisdiction in the state named in
the Bank’s address on the first page hereof.  Severability.  If
any provision of this Note or of the other Loan Documents shall be prohibited or
invalid under applicable law, such provision shall be ineffective but only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Note or other such
document.  Payments.  All
payments shall be mailed to Bank at Commercial Payment Processing Center, Linden
Center, 100 N. Main Street, Winston Salem, NC 27101, NC6885; or other such
address as provided by Bank in writing.  Notices.  Any
notices to Borrower shall be sufficiently given, if in writing and mailed or
delivered to the Borrower's address shown above or such other address as
provided hereunder, and to Bank, if in writing and mailed or delivered to
Wachovia Bank, National Association, 5 Research Drive, Shelton, Connecticut
06484 or such other address as Bank may specify in writing from time to
time.  In the event that Borrower changes Borrower's address at any
time prior to the date the Obligations are paid in full, Borrower agrees to
promptly give written notice of said change of address by registered or
certified mail, return receipt requested, all charges prepaid.  Plural;
Captions.  All references in the Loan Documents to Borrower,
guarantor, person, document or other nouns of reference mean both the singular
and plural form, as the case may be, and the term "person" shall mean any
individual, person or entity.  The captions contained in the Loan
Documents are inserted for convenience only and shall not affect the meaning or
interpretation of the Loan Documents.  Advances.  Bank
may, in its sole discretion, make other advances which shall be deemed to be
advances under this Note, even though the stated principal amount of this
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    Posting
of Payments.  All payments received during normal banking hours
after 2:00 p.m. local time at the address for payments set forth above
shall be deemed received at the opening of the next banking
day.  Joint
and Several Obligations. If there is more than one Borrower, each is
jointly and severally obligated together with all other parties obligated for
the Obligations.  Fees
and Taxes.  Borrower shall promptly pay all documentary,
intangible recordation and/or similar taxes on this transaction whether assessed
at closing or arising from time to time.  LIMITATION
ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO,
INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR
ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT
MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN
DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE
OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE
A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY
DAMAGES.   EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT
OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN
THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER
THE SAME IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR
OTHERWISE.  Patriot
Act Notice.  To help fight the funding of terrorism and money
laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that identifies
each person who opens an account.  For purposes of this section,
account shall be understood to include loan
accounts.  Final
Agreement.  This Note and the other Loan Documents represent
the final agreement between the parties with respect to the subject matter
thereof and may not be contradicted by evidence of prior, contemporaneous or
subsequent agreements of the parties.  There are no unwritten
agreements between the parties.

     

    ARBITRATION.  Upon demand of any party
hereto, whether made before or after institution of any judicial proceeding, any
claim or controversy arising out of or relating to the Loan Documents between
parties hereto (a “Dispute”) shall be resolved by binding arbitration conducted
under and governed by the Commercial Financial Disputes Arbitration Rules (the
“Arbitration Rules”) of the American Arbitration Association (the “AAA”) and the
Federal Arbitration Act.  Disputes may include, without limitation,
tort claims, counterclaims, a dispute as to whether a matter is subject to
arbitration, or claims arising from documents executed in the future, but shall
specifically exclude claims brought as or converted to class
actions.  A judgment upon the award may be entered in any court having
jurisdiction.  Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to swap agreements.   Special
Rules.  All arbitration hearings shall be conducted in the city
named in the address of Bank first stated above.  A hearing shall
begin within 90 days of demand for arbitration and all hearings shall conclude
within 120 days of demand for arbitration.  These time limitations may
not be extended unless a party shows cause for extension and then for no more
than a total of 60 days.  The expedited procedures set forth in Rule
51 et
seq. of the Arbitration Rules shall be applicable to claims of less than
$1,000,000.00.  Arbitrators shall be licensed attorneys selected from
the Commercial Financial Dispute Arbitration Panel of the AAA.  The
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      substantive law except as
provided herein.  Preservation
and Limitation of Remedies. Notwithstanding
the preceding binding arbitration provisions, the parties agree to preserve,
without diminution, certain remedies that any party may exercise before or after
an arbitration proceeding is brought.  The parties shall have the
right to proceed in any court of proper jurisdiction or by self-help to exercise
or prosecute the following remedies, as applicable: (i) all rights to foreclose
against any real or personal property or other security by exercising a power of
sale or under applicable law by judicial foreclosure including a proceeding to
confirm the sale; (ii) all rights of self-help including peaceful occupation of
real property and collection of rents, set-off, and peaceful possession of
personal property; (iii) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of
receiver and filing an involuntary bankruptcy proceeding; and (iv) when
applicable, a judgment by confession of judgment.  Any claim or
controversy with regard to any party’s entitlement to such remedies is a
Dispute.  Waiver
of Jury Trial.THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING
ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL
WITH REGARD TO A DISPUTE AS TO WHICH BINDING ARBITRATION HAS BEEN
DEMANDED.

    

     

     

    IN
WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be duly executed under seal.

     

    SonomaWest
Holdings, Inc.

     

     

    By:   /s/ Walker R.
Stapleton                                                                                              

          
Walker R. Stapleton

    Its:
Chief Executive Officer