TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY
SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE
RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
AND ANY OTHER LOAN DOCUMENTS.
Section 9.22 CONSEQUENTIAL DAMAGES. NEITHER BORROWERS, NOR LENDER SHALL HAVE ANY
LIABILITY WITH RESPECT TO, AND EACH SUCH PERSON HEREBY WAIVES, RELEASES AND
AGREES NOT TO SUE EACH OTHER SUCH PERSON FOR, ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES SUFFERED BY SUCH OTHER PERSON IN CONNECTION WITH ANY CLAIM
RELATED TO THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed as of the date first above written.
BORROWERS:
DUXFORD FINANCIAL, INC., a California
Corporation
By:
/s/ Richard Frankel
Name:
Richard Frankel
Title:
Chairman
By:
/s/ Mark A. Carver
Name:
Mark A. Carver
Title:
President
BAYPORT MORTGAGE, L.P., a California Limited
Partnership
By:
Duxford Financial, Inc., a California
Corporation, its general partner
By:
/s/ Richard Frankel
Name:
Richard Frankel
Title:
Chairman
By:
/s/ Mark A. Carver
Name:
Mark A. Carver
Title:
President
LENDER:
GUARANTY BANK
By:
/s/ Jon Larson
Name:
Jon Larson
Title:
Senior Vice President
EXHIBIT A
PROMISSORY NOTE
$10,000,000
Dallas, Texas
August 29, 2003
FOR VALUE RECEIVED, the undersigned, DUXFORD FINANCIAL, INC., a California
corporation ("Duxford") and BAYPORT MORTGAGE, L.P., a California limited
partnership ("Bayport," and together with Duxford, "Borrowers"), jointly and
severally promise to pay to the order of GUARANTY BANK (herein called "Lender"),
the principal sum of Ten Million and No/100 ($10,000,000) or, if less, the
aggregate unpaid principal amount of the Loans made under this Note by Lender to
Borrowers pursuant to the terms of the Credit Agreement (as hereinafter
defined), together with interest on the unpaid principal balance thereof as
hereinafter set forth, both principal and interest payable as herein provided in
lawful money of the United States of America at the offices of the Lender, 8333
Douglas Avenue, Dallas, Texas or at such other place within Dallas County,
Texas, as from time to time may be designated by the holder of this Note.
This Note (a) is issued and delivered under that certain Credit Agreement of
even date herewith between Borrowers and Lender (herein, as from time to time
supplemented, amended or restated, called the "Credit Agreement"),