ARBITRATION AND NOTICE OF FINAL AGREEMENTArbitration or Mediation Agreement |
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EXHIBIT 10.11
(LOGO)
ARBITRATION AND NOTICE OF FINAL AGREEMENT
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To: |
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Craftmade
International, Inc., a Delaware corporation |
As of the effective date of
this Notice, Borrower and THE FROST NATIONAL BANK, a national banking
association (“Lender”) have consummated a transaction
pursuant to which Lender has agreed to renew and extend an existing loan to
Borrower, in an aggregate amount up to $23,000,000.00 minus the outstanding
principal balance of a $2,000,000.00 Revolving Promissory Note, dated June 14,
2004, executed by Design Trends, LLC, a Delaware limited liability company
(collectively, whether one or more, the “Loan”).
ARBITRATION
Upon written request of
either Lender or Borrower, any controversy or claim between or among the
parties hereto including but not limited to those arising out of or relating to
the Loan, any of the loan documents or any related agreements or instruments
executed in connection with the Loan (the “Loan Documents”),
including any claim based on or arising from an alleged tort, shall be
determined by binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the Commercial Arbitration
Rules of the American Arbitration Association, and the “Special
Rules” set forth below unless both Lender and Borrower, in their
respective sole discretion, agree in writing to mediate the dispute prior to
submitting to binding arbitration. In the event of any inconsistency, the
Special Rules shall control. Judgment upon any arbitration award may be entered
in any court having jurisdiction. Any party to this Agreement may bring an
action, including a summary or expedited proceeding, to compel arbitration of
any controversy or claim to which this agreement applies in any court having
jurisdiction over such action. The party that requests arbitration has the
burden to initiate the arbitration proceedings pursuant to and by complying
with the Commercial Arbitration Rules of the American Arbitration Association
and shall pay all associated administrative and filing fees.
The arbitration shall be
conducted in the City of Fort Worth, Tarrant County, Texas and administered by
the American Arbitration Association. All arbitration hearings will be
commenced within sixty (60) days of the written request for arbitration,
and if the arbitration hearing is not commenced within the sixty
(60) days, the party that requested arbitration shall have waived its
election to arbitrate. Nothing in this Agreement shall be deemed to
(i) limit the applicability of any otherwise applicable statutes of
limitation or repose and any waivers contained in this Agreement; or
(ii) be a waiver by Lender of the protection afforded to it by 12 U.S.C.
Sec. 91 or any substantially equivalent state law; or (iii) limit the
right of Lender hereto (A) to exercise self help remedies such as (but not
limited to) setoff, or (B) to foreclose against any real or personal
property collateral in accordance with applicable law, or (C) to obtain
from a court provisional or ancillary remedies such as (but not limited to)
injunctive relief or the appointment of a receiver in accordance with
applicable law. Lender may exercise such self help remedies, foreclose upon
such property, or obtain such provisional or
ancillary remedies before,
during or after the pendency of any arbitration proceeding brought pursuant to
this Agreement or any other Loan Document. At Lender’s option,
foreclosure under a deed of trust or mortgage may be accomplished by any of the
following: the exercise of a power of sale under the deed of trust or mortgage,
or by judicial sale under the deed of trust or mortgage, or by judicial
foreclosure. Neither this exercise of self help remedies nor the institution or
maintenance of an action for foreclosure or provisional or ancillary remedies
shall constitute a waiver of the right of any party, including the claimant in
any such action, to arbitrate the merits of the controversy or claim
occasioning resort to such remedies.
FACSIMILE DOCUMENTS AND SIGNATURES
For purposes of negotiating
and finalizing the Written Loan Agreement (as hereinafter defined), if this
document or any document executed in connection with the Loan is transmitted by
facsimile machine (“fax”), it shall be treated for all
purposes as an original document. Additionally, the signature of any party on
this document transmitted by way of a facsimile machine shall be considered for
all purposes as an original signature. Any such faxed document shall be
considered to have the same binding legal effect as an original document. At
the request of any party, any faxed document shall be re-executed by each
signatory party in an original form.
WAIVER OF RIGHT TO TRIAL BY JURY
THE PARTIES TO THIS AGREEMENT
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER OF THE PARTIES HERETO AGAINST THE OTHER TO ENFORCE THIS AGREEMENT, TO
COLLECT DAMAGES FOR THE BREACH OF THIS AGREEMENT, OR WHICH IN ANY OTHER WAY
ARISE OUT OF, ARE CONNECTED TO OR ARE RELATED TO THIS AGREEMENT OR THE SUBJECT
MATTER OF THIS AGREEMENT. ANY SUCH ACTION SHALL BE TRIED BY THE JUDGE WITHOUT A
JURY.
NOTICE OF FINAL AGREEMENT
In connection with the Loan,
Borrower and Lender and the undersigned guarantors and other obligors, if any
(collectively, whether one or more, “Other Obligors”) have
executed and delivered and may hereafter execute and deliver certain
agreements, instruments and documents (collectively hereinafter referred to as
the “Written Loan Agreement”).
It is the intention of
Borrower, Lender and Other Obligors that this Notice be incorporated by
reference into each of the written agreements, instruments and documents
comprising the Written Loan Agreement. Borrower, Lender and Other Obligors each
warrants and represents that the entire agreement made and existing by or among
Borrower, Lender and Other Obligors with respect to the Loan is and shall be
contained within the Written Loan Agreement, as amended and supplemented
hereby, and that no agreements or promises exist or shall exist by or among,
Borrower, Lender and Other Obligors that are not reflected in the Written Loan
Agreement.
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THE WRITTEN LOAN AGREEMENT
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
Executed effective as of
May 31, 2005.
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BORROWER |
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LENDER: |
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CRAFTMADE INTERNATIONAL,
INC., |
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THE FROST NATIONAL BANK, |
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a Delaware corporation |
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a national banking
association |
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By: |
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/s/ James R. Ridings |
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By: |
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D. Michael Randall |
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James R. Ridings, President
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D. Michael Randall, Senior
Vice President |
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