EXHIBIT 10.75
SECURITY AGREEMENT
This SECURITY AGREEMENT (this "Agreement") is dated as of November 30,
1998 and entered into by and between SANTA FE COFFEE COMPANY, a Nevada
corporation ("Grantor"), and IBJ XXXXXXXX BANK & TRUST COMPANY, as successor
trustee, for the benefit of the holders of the Bonds (as hereinafter defined)
(the "Holders") (the "Secured Party"), under the Indenture dated as of
December 1, 1988 among Pioneer Finance Corp., a Nevada corporation ("PFC"),
Santa Fe Gaming Corporation, a Nevada corporation and successor-in-interest
to Sahara Casino Partners, L.P. ("SFGC"), and Security Pacific National Bank
as predecessor to the Secured Party, as amended by (i) that certain First
Supplemental Indenture, dated as of December 21, 1990, (ii) that certain
Second Supplemental Indenture, dated as of September 30, 1993, (iii) that
certain Tri-Party Agreement, dated as of December 30, 1994, (iv) that certain
Third Supplemental Indenture, dated as of August 31, 1995, and (v) that
certain Fourth Supplemental Indenture, dated as of November 30, 1998 (the
"Indenture").
PRELIMINARY STATEMENTS
A. PFC issued $120,000,000 principal amount of 13 1/2% First Mortgage
Bonds due December 1, 1998 (the "Bonds"), pursuant to the Indenture, of which
$60,000,000 principal amount remains outstanding as of the date hereof.
Capitalized terms used and not otherwise defined herein shall have the
meanings specified in the Indenture.
B. Pursuant to the Offering Circular and Consent Solicitation
Statement dated October 23, 1998 and Supplement dated November 14, 1998
(together, the "Amended Joint Offering Circular/Consent Solicitation
Statement"), PFC has solicited (the "Solicitation") the consents (the
"Consents") of Holders to the Proposed Consents (as defined in the Amended
Joint Offering Circular/Consent Solicitation Statement).
C. In connection with the Solicitation and the receipt and
acceptance of Consents by PFC, Grantor has agreed to grant security interests
in the Collateral (as defined herein) to secure the payment of the principal
of, premium, if any, and interest on, the Bonds.
NOW, THEREFORE, in consideration of the premises, in accordance with the
Solicitation and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Grantor hereby agrees with Secured
Party as follows:
SECTION 1. GRANT OF SECURITY. Grantor hereby grants to Secured
Party, for the equal and ratable benefit of the Holders, a security interest
in all of Grantor's right, title and interest in and to the following, in
each case whether now or hereafter existing or in which Grantor now has or
hereafter acquires an interest and wherever the same may be located (the
"Collateral"):
(a) all present and future chattels, furniture, furnishings, goods,
equipment (including, without limitation, gaming equipment and devices),
fixtures and all other tangible personal property, of whatever kind and
nature (including, without limitation, any building or structure that is now
or that may hereafter be erected on any premises owned by Grantor, the
"Premises"), including, but not limited to, machinery, materials, goods and
equipment now or hereafter used in any construction or operation relating
thereto and all other tangible personal property, together with all
replacements and substitutions for any and all personal property in which
Grantor has an interest, including without limitation such goods and
equipment as shall from time to time be located, placed, installed or used in
or upon, or procured for use, or to be used or useful in connection with the
operation of the whole, or any part of, the Premises or any facilities on the
Premises and all parts thereof and all accessions thereto (any and all such
equipment, replacements, substitutions, parts and accessions being the
"Equipment");
(b) all present and future inventory and merchandise in all of its
forms (including, but not limited to, (i) all goods held by Grantor for sale
or lease or to be furnished under contracts of service or so leased or
furnished, (ii) all raw materials, (iii) works in process, (iv) all goods in
which Grantor has an interest in mass or a joint or other interest or right
of any kind, (v) all goods that are returned to or repossessed by Grantor,
and (vi) all accessions thereto and products thereof (all such inventory,
accessions and products being the "Inventory");
(c) all present and future right, title and interest of Grantor in
and to all leases, subleases, licenses, concessions, franchises and other use
or occupancy agreements, and any amendments, modifications, extensions or
renewals thereof (collectively, "Leases"), whether or not specifically herein
described, that now or may hereafter pertain to or affect the Premises or any
portion thereof, and all amendments to the same, including, but not limited
to, the following: (i) all payments due and to become due under such Leases,
whether as rent, damages, insurance payments, condemnation awards, or
otherwise; (ii) all claims, rights, powers, privileges and remedies under
such Leases; and (iii) all rights of the Grantor under such Leases to
exercise any election or option, or to give-or receive any notice, consent,
waiver or approval, or to accept any surrender of the premises or any part
thereof, together with full power and authority in the name of the Grantor,
or otherwise, to demand and receive, enforce, collect, and receipt for any or
all of the foregoing, to endorse or execute any checks or any instruments or
orders, to file any claims, and to take any other action that Secured Party
may deem necessary or advisable in connection therewith;
(d) all present and future deposit accounts of Grantor, any demand,
time, savings, passbook or like account maintained by Grantor with any bank,
savings and loan association, credit union or like organization, and all
money, cash and cash equivalents of Grantor, whether or not deposited in any
such deposit account;
(e) all present and future general intangibles (including but not
limited to all governmental permits relating to construction or other activities
on the Premises), all tax refunds of every kind and nature to which Grantor now
or hereafter may become entitled, however arising, all other refunds, and all
deposits, goodwill, choses in action, rights to payment or performance,
judgments taken on any rights or claims included in the Collateral, trade
secrets,
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computer programs, software, customer lists, business names, trademarks,
trade names and service marks, patents, patent applications, licenses,
copyrights, technology, processes, proprietary information and insurance
proceeds;
(f) all present and future books and records, including, without
limitation, books of account and ledgers of every kind and nature, ledger
cards, computer programs, tapes, disks and other information storage devices,
all related data processing software, and all electronically recorded data
relating to Grantor or its business, all receptacles and containers for such
records, and all files and correspondence;
(g) all present and future maps, plans, specifications, surveys,
studies, reports, data and drawings (including, without limitation,
architectural, structural, mechanical and engineering plans and
specifications, studies, data and drawings) prepared for or relating to the
Premises or the construction, renovation or restoration of any improvements
on the Premises or the extraction of minerals, sand, gravel or other valuable
substances from the Premises, together with all amendments and modifications
thereto;
(h) all present and future licenses, permits, variances, special
permits, franchises, certificates, rulings, certifications, validations,
exemptions, filings, registrations, authorizations, consents, approvals,
waivers, orders, rights and agreements (including options, option rights and
contract rights), other than those that may not be transferred by law, now or
hereafter obtained by Grantor from any governmental authority having or
claiming jurisdiction over the Premises or any other element of the
Collateral or providing access thereto, or the operation of any business on,
at, or from the Premises;
(i) all present and future stocks, bonds, debentures, securities,
investment property, subscription rights, options, warrants, puts, calls,
certificates, partnership interests, joint venture interests, investments,
brokerage accounts and all rights, preferences, privileges, dividends,
distributions, redemption payments and liquidation payments received or
receivable with respect thereto;
(j) all present and future accessions, appurtenances, components,
repairs, repair parts, spare parts, replacements, substitutions, additions,
issue and improvements to or of or with respect to any of the foregoing;
(k) all other fixtures and storage and office facilities, and all
accessions thereto and products thereof and all water stock relating to the
Premises;
(l) all other tangible and intangible personal property of Grantor;
(m) all rights, remedies, powers and privileges of Grantor with
respect to any of the foregoing; and
(n) any and all proceeds, products, rents, income and profits of any
of the foregoing, including, without limitation, all money, accounts, general
intangibles, deposit accounts, documents, instruments, chattel paper, goods,
insurance proceeds (whether or not the Secured
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Party is the loss payee), and any other tangible or intangible property
received upon the sale or disposition of any of the foregoing (it being
agreed, for purposes hereof, that the term "proceeds" includes whatever is
receivable or received when any of the Collateral is sold, collected,
exchanged or otherwise disposed of, whether such disposition is voluntary or
involuntary);
provided, however, that the Collateral shall not include (x) any present or
future accounts or accounts receivable, relating to timeshare operations,
hotel room rentals or casino markers, owing to Grantor or in which Grantor
may have any interest (any and all such property being the "Accounts"), or
(y) any proceeds of Accounts (including, without limitation, all money,
accounts, general intangibles, deposit accounts, securities accounts,
documents, instruments, chattel paper, goods, insurance proceeds and any
other tangible or intangible property (a) received in exchange for Accounts,
(b) received upon payment, collection, settlement or compromise of Accounts,
(c) issued to evidence, replace or otherwise in respect of Accounts or (d)
upon sale or any other disposition whatsoever of Accounts).
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures, and
the Collateral is collateral security for, the prompt payment or performance
in full when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including the payment of
amounts that would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)), of
all obligations and liabilities of every nature of PFC now or hereafter
existing under or arising out of or in connection with the Bonds, Indenture
and Mortgage Documents and all amendments, extensions or renewals thereof,
whether for principal, premium, if any, interest (including without
limitation interest that, but for the filing of a petition in bankruptcy with
respect to PFC, would accrue on such obligations), fees, expenses,
indemnities or otherwise, whether voluntary or involuntary, direct or
indirect, absolute or contingent, liquidated or unliquidated, whether or not
jointly owed with others, and whether or not from time to time decreased or
extinguished and later increased, created or incurred, and all or any portion
of such obligations or liabilities that are paid, to the extent all or any
part of such payment is avoided or recovered directly or indirectly from
Secured Party or any Holder as a preference, fraudulent transfer or otherwise
(all such obligations and liabilities being the "Underlying Debt"), and all
obligations of every nature of Grantor now or hereafter existing under this
Agreement (all such obligations of Grantor, together with the Underlying
Debt, being the "Secured Obligations").
SECTION 3. GRANTOR REMAINS LIABLE. Anything contained herein to
the contrary notwithstanding, (a) Grantor shall remain liable under any
contracts and agreements included in the Collateral, to the extent set forth
therein, to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by
Secured Party of any of its rights hereunder shall not release Grantor from
any of its duties or obligations under the contracts and agreements included
in the Collateral, and (c) Secured Party shall not have any obligation or
liability under any contracts and agreements included in the Collateral by
reason of this Agreement or otherwise, nor shall Secured Party be obligated
to perform any of the obligations or duties of Grantor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
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SECTION 4. REPRESENTATIONS AND WARRANTIES. Grantor represents and
warrants as follows:
(a) OWNERSHIP OF COLLATERAL. Except for the security interest
created by this Agreement, Grantor owns the Collateral free and clear of any
Lien. Except such as may have been filed in favor of Secured Party relating
to this Agreement, no effective financing statement or other instrument
similar in effect covering all or any part of the Collateral is on file in
any filing or recording office.
(b) OFFICE LOCATIONS: OTHER NAMES. The chief place of business,
the chief executive office and the office where Grantor keeps its records
regarding the Accounts and all originals of all chattel paper that evidence
Accounts is, and has been for the four month period preceding the date
hereof, located at 0000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000. Grantor
has not in the past done, and does not now do, business under any other name
(including any trade-name or fictitious business name) except Santa Fe Coffee
Company.
(c) GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or
other action by, and no notice to or filing with, any governmental authority
or regulatory body is required for either (i) the grant by Grantor of the
security interest granted hereby, (ii) the execution, delivery or performance
of this Agreement by Grantor, or (iii) the perfection of or the exercise by
Secured Party of its rights and remedies hereunder (except (i) the filing of
Uniform Commercial Code financing statements with the office of the Secretary
of State of the State of Nevada and (ii) as has been previously taken by or
at the direction of Grantor).
(d) PERFECTION. This Agreement, together with the filing of a UCC-l
financing statement describing the Collateral with the Secretary of State of
Nevada with the Xxxxx County Recorder creates a valid, perfected, enforceable
and first priority security interest in the Collateral, securing the payment
of the Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly made
or taken.
(e) OTHER INFORMATION. All information heretofore, herein or
hereafter supplied to Secured Party by or on behalf of Grantor with respect
to the Collateral is accurate and complete in all material respects.
SECTION 5. FURTHER ASSURANCES.
(a) Grantor agrees that from time to time, at the expense of Grantor,
Grantor will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable,
or that Secured Party reasonably may request, in order to perfect and protect
any security interest granted or purported to be granted hereby or to enable
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to any Collateral. Without limiting the generality of the foregoing,
Grantor will: (i) at the request of Secured Party, deliver and pledge to
Secured Party hereunder all promissory notes and other instruments (including
checks) and all original counterparts of chattel paper constituting
Collateral, duly endorsed and accompanied by duly executed instruments of
transfer or assignment, all in form, and substance satisfactory to Secured
Party, (ii) execute and file such
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financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as Secured Party
may reasonably request, in order to perfect and preserve the security
interests granted or purported to be granted hereby, (iii) at any reasonable
time, upon request by Secured Party, exhibit the Collateral to and allow
inspection of the Collateral by Secured Party, or persons designated by
Secured Party, and (iv) at Secured Party's reasonable request, appear in and
defend any action or proceeding that may affect Grantor's title to or Secured
Party's security interest in all or any significant part of the Collateral.
(b) Grantor hereby authorizes Secured Party to file one or more
financing or continuation statements, and amendments thereto, relative to all
or any part of the Collateral without the signature of Grantor. Grantor
agrees that a carbon, photographic or other reproduction of this Agreement or
of a financing statement signed by Grantor shall be sufficient as a financing
statement and may be filed as a financing statement in any and all
jurisdictions.
(c) Grantor will furnish to Secured Party from time to time
statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as Secured Party may
reasonably request, all in reasonable detail.
SECTION 6. CERTAIN COVENANTS OF GRANTOR. Grantor shall:
(a) not use or permit any Collateral to be used unlawfully or in
violation of any provision of this Agreement or any applicable statute,
regulation or ordinance or any policy of insurance covering the Collateral;
(b) notify Secured Party of any change in Grantor's name or identity
within 15 days of such change;
(c) give Secured Party 30 days prior written notice of any change in
Grantor's chief place of business, chief executive office or residence;
(d) if Secured Party gives value to enable Grantor to acquire rights
in or the use of any Collateral, use such value for such purposes; and
(e) pay promptly when due all property and other taxes, assessments
and governmental charges or levies imposed upon, and all claims (including
claims for labor, materials and supplies) against, the Collateral, except to
the extent the validity thereof is being contested in good faith and for
which adequate reserves have been established; provided that Grantor shall in
any event pay such taxes, assessments, charges, levies or claims not later
than five days prior to the date of any proposed sale under any judgment,
writ or warrant of attachment entered or filed against Grantor or any of the
Collateral as a result of the failure to make such payment.
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SECTION 7. SPECIAL COVENANTS WITH RESPECT TO EQUIPMENT AND INVENTORY.
Grantor shall:
(a) keep the Equipment and Inventory at the Premises or, upon 30 days
prior written notice to Secured Party, at such other places in jurisdictions
where all action that may be necessary or desirable, or that Secured Party
may reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby, or to enable Secured Party to
exercise and enforce its rights and remedies hereunder, with respect to such
Equipment and Inventory shall have been taken;
(b) cause the Equipment to be maintained and preserved in the same
condition, repair and working order as when new, ordinary wear and tear
excepted, and shall forthwith make or cause to be made all repairs,
replacements and other improvements in connection therewith that are
necessary or desirable to such end. Grantor shall promptly furnish to Secured
Party a statement respecting any material loss or damage to any of the
Equipment; and
(c) perform all acts that are necessary or desirable to cause all
licenses, permits, variances, special permits, franchises, certificates,
rulings, certifications, validations, exemptions, filings, registrations,
authorizations, consents, approvals. waivers, orders, rights, and agreements
in which a security interest has been conveyed to Secured Party pursuant to
subsection 1(h) to remain in full force and effect.
SECTION 8. INSURANCE. Grantor shall, at its own expense, maintain
insurance with respect to the Equipment and Inventory, if any.
SECTION 9. LICENSE OF PATENTS, TRADEMARKS, COPYRIGHTS, ETC. Grantor
hereby assigns, transfers and conveys to Secured Party, effective upon the
occurrence of any Event of Default, the non-exclusive right and license to
use all trademarks, tradenames, copyrights, customers lists, patents or
technical processes owned or used by Grantor that relate to the Collateral
and any other collateral granted by Grantor as security for the Secured
Obligations, together with any goodwill associated therewith, all to the
extent necessary to enable Secured Party to use, possess and realize on the
Collateral and to enable any successor or assign to enjoy the benefits of the
Collateral. This right and license shall inure to the benefit of all
successors, assigns and transferees of Secured Party and its successors,
assigns and transferees, whether by voluntary conveyance, operation of law,
assignment, transfer, foreclosure, deed in lieu of foreclosure or otherwise.
Such right and license is granted free of charge, without requirement that
any monetary payment whatsoever be made to Grantor.
SECTION 10. OTHER LIENS. Grantor shall not, except for the security
interest created by this Agreement and as otherwise contemplated by the
Indenture, the Solicitation and the Mortgage Documents, create or suffer to
exist any Lien upon or with respect to any of the Collateral to secure the
indebtedness or other obligations of any Person.
SECTION 11. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Grantor hereby
irrevocably appoints Secured Party as Grantor's attorney-in-fact, with full
authority in the place and stead of Grantor and in the name of Grantor, Secured
Party or otherwise, from time to time in Secured
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Party's discretion to take any action and to execute any instrument that
Secured Party may deem necessary or advisable to accomplish the purposes of
this Agreement, including without limitation:
(a) to ask for, demand, collect, xxx for, recover, compound, receive
and give acquittance and receipts for moneys due and to become due under or
in respect of any of the Collateral;
(b) to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clause (a) above;
(c) to file any claims or take any action or institute any
proceedings (including, without limitation, any proceeding before any Nevada
Gaming Authority) that Secured Party may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of
Secured Party with respect to any of the Collateral;
(d) to pay or discharge taxes or Liens (other than Liens permitted
under this Agreement) levied or placed upon or threatened against the
Collateral, the legality or validity thereof and the amounts necessary to
discharge the same to be determined by Secured Party in its sole discretion,
any such payments made by Secured Party to become obligations of Grantor to
Secured Party, due and payable immediately without demand; and
(e) upon the occurrence and during the continuation of an Event of
Default, generally to sell, transfer, pledge, make any agreement with respect
to or otherwise deal with any of the Collateral as fully and completely as
though Secured Party were the absolute owner thereof for all purposes, and to
do, at Secured Party's option and Grantor's expense, at any time or from time
to time, all acts and things that Secured Party deems necessary to protect,
preserve or realize upon the Collateral and Secured Party's security interest
therein in order to effect the intent of this Agreement, all as fully and
effectively as Grantor might do.
SECTION 12. SECURED PARTY MAY PERFORM. If Grantor fails to perform
any agreement contained herein, Secured Party may itself perform, or cause
performance of, such agreement, and the expenses of Secured Party incurred in
connection therewith shall be payable by Grantor under Section 16.
SECTION 13. STANDARD OF CARE. The powers conferred on Secured Party
hereunder are solely to protect its and the Holders' interest in the
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the exercise of reasonable care in the custody of any Collateral
in its possession and the accounting for moneys actually received by it
hereunder, Secured Party shall have no duty as to any Collateral or as to the
taking of any necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral, it being understood that Secured
Party shall have no responsibility for (a) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to any Collateral, whether or not Secured Party has or is
deemed to have knowledge of such matters, (b) taking any necessary steps
(other than steps taken in accordance with the standard of care set forth
above to maintain possession of the Collateral) to preserve rights against
any parties with
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respect to any Collateral, (c) taking any necessary steps to collect or
realize upon the Secured Obligations or any guarantee therefor, or any part
thereof, or any of the Collateral, or (d) initiating any action to protect
the Collateral against the possibility of a decline in market value. Secured
Party shall be deemed to have exercised reasonable care in the custody and
preservation of Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which Secured Party accords its own
property.
SECTION 14. REMEDIES.
If any Event of Default shall have occurred and be continuing, Secured
Party may exercise in respect of the Collateral, in addition to all other
rights and remedies provided for herein or otherwise available to it, all the
rights and remedies of a secured party on default under the Uniform
Commercial Code as in effect in any relevant jurisdiction (the "Code")
(whether or not the Code applies to the affected Collateral), and also may
(i) require Grantor to, and Grantor hereby agrees that it will at its expense
and upon request of Secured Party forthwith, assemble all or part of the
Collateral as directed by Secured Party and make it available to Secured
Party at a place to be designated by Secured Party that is reasonably
convenient to both parties, (ii) enter onto the property where any Collateral
is located and take possession thereof with or without judicial process,
(iii) prior to the disposition of the Collateral, store, process, repair or
recondition the Collateral or otherwise prepare the Collateral for
disposition in any manner to the extent Secured Party deems appropriate, (iv)
take possession of Grantor's premises or place custodians in exclusive
control thereof, remain on such premises and use the same and any of
Grantor's equipment for the purpose of completing any work in process, taking
any actions described in the preceding clause, (v) collect any Secured
Obligation, and (vi) without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private
sale, at any of Secured Party's offices or elsewhere, for cash, on credit or
for future delivery, at such time or times and at such price or prices and
upon such other terms as Secured Party may deem commercially reasonable.
Secured Party may be the purchaser of any or all of the Collateral at any
such sale and Secured Party shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of
the Collateral sold at any such public sale, to use andapply any of the
Secured Obligations as a credit on account of the purchase price for any
Collateral payable by Secured Party at such sale. Each purchaser at any such
sale shall hold the property sold absolutely free from any claim or right on
the part of Grantor, and Grantor hereby waives (to the extent permitted by
applicable law) all rights of redemption, stay and/or appraisal which it now
has or may at any time in the future have under any rule of law or statute
now existing or hereafter enacted. Grantor agrees that, to the extent notice
of sale shall be required by law, at least ten days notice to Grantor of the
time and place of any public sale or the time after which any private sale is
to be made shall constitute reasonable notification. Secured Party shall not
be obligated to make any sale of Collateral regardless of notice of sale
having been given. Secured Party may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it
was so adjourned. Grantor hereby waives any claims against Secured Party
arising by reason of the fact that the price at which any Collateral may have
been sold at such a private sale was less than the price which might have
been obtained at a public sale, even if Secured Party accepts the first offer
received and does not offer such
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Collateral to more than one offeree. If the proceeds of any sale or other
disposition of the Collateral are insufficient to pay all the Secured
Obligations, Grantor shall be liable for the deficiency and the fees of any
attorneys employed by Secured Party to collect such deficiency.
SECTION 15. APPLICATION OF PROCEEDS. Except as expressly provided
elsewhere in this Agreement, all proceeds received by Secured Party in
respect of any sale of, collection from, or other realization upon all or any
part of the Collateral may, in the discretion of Secured Party, be held by
Secured Party as Collateral for, and/or then, or at any other time
thereafter, applied in full or in part by Secured Party against, the Secured
Obligations in the following order of priority:
FIRST: To the payment of all costs and expenses of such sale,
collection or other realization, including costs and expenses of Secured
Party and its agents and counsel, and all other expenses, liabilities and
advances made or incurred by Secured Party in connection therewith, and all
amounts for which Secured Party is entitled to indemnification hereunder and
all advances made by Secured Party hereunder for the account of Grantor, and
to the payment of all costs and expenses paid or incurred by Secured Party in
connection with the exercise of any right or remedy hereunder, all in
accordance with Section 17;
SECOND: To the payment of all other Secured Obligations (for the
ratable benefit of the holders thereof) in such order as Secured Party shall
elect; and
THIRD: To the payment to or upon the order of Grantor, or to whomsoever
may be lawfully entitled to receive the same or as a court of competent
jurisdiction may direct, of any surplus then remaining from such proceeds.
SECTION 16. INDEMNITY AND EXPENSES.
(a) Grantor agrees to indemnify Secured Party and the Holders, and
any agent, attorney, employee, officer, or director thereof (collectively,
"Indemnified Persons"), from and against any and all claims, losses and
liabilities in any way relating to, growing out of or resulting from this
Agreement and the transactions contemplated hereby (including, without
limitation, enforcement of this Agreement), except to the extent such claims,
losses or liabilities result solely from such Indemnified Person's gross
negligence or willful misconduct as finally determined by a court of
competent jurisdiction.
(b) Grantor shall pay to Secured Party upon demand the amount of any
and all costs and expenses, including the reasonable fees and expenses of its
counsel and of any experts and agents, that Secured Party may reasonably
incur in connection with (i) the administration of this Agreement, (ii) the
custody, preservation, use or operation of, or the sale of, collection from,
or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of Secured Party hereunder, or (iv) the
failure by Grantor to perform or observe any of the provisions hereof.
SECTION 17. CONTINUING SECURITY INTEREST. This Agreement shall create a
continuing security interest in the Collateral and shall (a) remain in full
force and effect until the
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indefeasible payment in full, in cash, of the Secured Obligations, (b) be
binding upon Grantor, its successors and assigns, and (c) inure, together
with the rights and remedies of Secured Party hereunder, to the benefit of
Secured Party and its successors, transferees and assigns. Upon the
indefeasible payment in full, in cash, of all Secured Obligations, the
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to Grantor. Upon any such termination Secured Party
will, at Grantor's expense, execute and deliver to Grantor such documents as
Grantor shall reasonably request to evidence such termination.
SECTION 18. AMENDMENTS; ETC. No amendment or waiver of any
provision of this Agreement, or consent to any departure by Grantor herefrom,
shall in any event be effective unless the same shall be approved by the
Holders of a majority of the Outstanding Bonds, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given.
SECTION 19. NOTICES. Any notice or other communication herein
required or permitted to be given shall be in writing and may be personally
served, telexed or sent by facsimile or United States mail or courier service
and shall be deemed to have been given when delivered in person or by courier
service, upon receipt of facsimile or telex, or four business days after
depositing it in the United States mail with postage prepaid and properly
addressed. For the purposes hereof, the address of each party hereto shall
be as set forth below, or, as to either party, such other address as shall be
designated by such party in a written notice delivered to the other party
hereto.
To Secured Party:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Reorganization Operations Department
To Grantor:
Santa Fe Coffee Company
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
SECTION 20. FAILURE OR INDULGENCE NOT WAIVER: REMEDIES CUMULATIVE. No
failure or delay on the part of Secured Party in the exercise of any power,
right or privilege hereunder shall impair such power, right or privilege or
be construed to be a waiver of any default or acquiescence therein, nor shall
any single or partial exercise of any such power, right or privilege preclude
any other or further exercise thereof or of any other power, right or
privilege. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
SECTION 21. SEVERABILITY. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and
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enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 22. HEADINGS. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
SECTION 23. GOVERNING LAW: TERMS. THIS AGREEMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEVADA, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES, EXCEPT TO THE EXTENT THAT THE UNIFORM COMMERCIAL CODE PROVIDES
THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY
THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEVADA.
SECTION 24. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST GRANTOR ARISING OUT OF OR RELATING TO
THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEVADA, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT GRANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS AGREEMENT. Grantor hereby agrees that service of all
process in any such proceeding in any such court may be made by registered or
certified mail, return receipt requested, to Grantor at its address provided
in Section 20, such service being hereby acknowledged by Grantor to be
sufficient for personal jurisdiction in any action against Grantor in any
such court and to be otherwise effective and binding service in every
respect. Nothing herein shall affect the right to serve process in any other
manner permitted by law.
SECTION 25. WAIVER OF JURY TRIAL. GRANTOR AND SECURED PARTY HEREBY AGREE
TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction, including
without limitation contract claims, tort claims, breach of duty claims, and all
other common law and statutory claims. Grantor and Secured Party each
acknowledge that this waiver is a material inducement for Grantor and Secured
Party to enter into a business relationship, that Grantor and Secured Party have
already relied on this waiver in entering into this Agreement and that each will
continue to rely on this waiver in their related future dealings. Grantor and
Secured Party further warrant and represent that each has reviewed this waiver
with its legal counsel, and that each knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY
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SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
SECTION 26. WAIVERS.
26.1 Grantor absolutely, unconditionally, knowingly, and expressly
waives:
(a) (i) notice of acceptance hereof; (ii) notice of any loans or
other financial accommodations made or extended under the Bonds, Indenture or
Mortgage Documents or the creation or existence of any Secured Obligations;
(iii) notice of the amount of the Secured Obligations, subject, however, to
Grantor's right to make inquiry of Secured Party to ascertain the amount of
the Secured Obligations at any reasonable time; (iv) notice of any adverse
change in the financial condition of PFC or of any other fact that might
increase Grantor's risk hereunder; (v) notice of presentment for payment,
demand, protest, and notice thereof as to any instruments among the Bonds,
Indenture or Mortgage Documents; (vi) notice of any Event of Default under
the Bonds, Indenture or Mortgage Documents ; and (vii) all other notices
(except if such notice is specifically required to be given to Grantor
hereunder or under the Bonds, Indenture or Mortgage Documents) and demands to
which Grantor might otherwise be entitled.
(b) its right, under Nevada Revised Statutes Section 40.430, or
otherwise, to require Secured Party to institute suit against, or to exhaust
any rights and remedies which Secured Party has or may have against, PFC or
any third party, or against any collateral for the Secured Obligations
provided by PFC or any third party. In this regard, Grantor agrees that
Grantor is bound to the payment of all Secured Obligations, whether now
existing or hereafter accruing, as fully as if such Secured Obligations were
directly owing to Secured Party by Grantor. Grantor further waives any
defense arising by reason of any disability or other defense (other than the
defense that the Secured Obligations shall have been fully and finally
performed and indefeasibly paid) of PFC or by reason of the cessation from
any cause whatsoever of the liability of PFC in respect thereof.
(c) (i) any rights to assert against Secured Party any defense (legal
or equitable), set-off, counterclaim, or claim which Grantor may now or at
any time hereafter have against PFC or any other party liable to Secured
Party, (ii) any defense, set-off, counterclaim, or claim, of any kind or
nature, arising directly or indirectly from the present or future lack of
perfection, sufficiency, validity, or enforceability of the Secured
Obligations or any security therefor; (iii) any defense Grantor has to
performance hereunder, and any right Grantor has to be exonerated, arising by
reason of: the impairment or suspension of Secured Party's rights or
remedies against PFC; the alteration by Secured Party of the Secured
Obligations; any discharge of PFC's obligations to Secured Party by operation
of law as a result of Secured Party's intervention or omission; or the
acceptance by Secured Party of anything in partial satisfaction of the
Secured Obligations; (iv) the benefit of any statute of limitations affecting
Grantor's liability hereunder or the enforcement thereof, and any act which
shall defer or delay the operation of any statute of limitations applicable
to the Secured Obligations shall similarly operate to defer or delay the
operation of such statute of limitations applicable to Grantor's liability
hereunder.
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26.2. Grantor absolutely, unconditionally, knowingly, and expressly
waives any defense arising by reason of or deriving from (i) any claim or
defense based upon an election of remedies by Secured Party; or (ii) any
election by Secured Party under Bankruptcy Code Section 1111(b) to limit the
amount of, or any collateral securing, its claim against PFC.
Grantor waives all rights and defenses arising out of an election of
remedies by the creditor, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed obligation,
has destroyed Grantor's rights of subrogation and reimbursement against PFC.
Grantor waives all rights and defenses that Grantor may have because the
Underlying Debt is secured by real property. This means, among other things:
(1) Secured Party may collect from Grantor without first
foreclosing on any real or personal property collateral pledged by PFC.
(2) If Secured Party forecloses on any real property
collateral pledged by PFC:
(i) The amount of the Secured Obligations may be reduced only
by the price for which that collateral is sold at the foreclosure sale, even
if the collateral is worth more than the sale price.
(ii) Secured Party may collect from Grantor even if Secured
Party, by foreclosing on the real property collateral, has destroyed any
right Grantor may have to collect from PFC.
This is an unconditional and irrevocable waiver of any rights and
defenses Grantor may have because the Underlying Debt is secured by real
property.
If any of the Secured Obligations at any time are secured by a mortgage or
deed of trust upon real property, Secured Party may elect, in its sole
discretion, upon a default with respect to the Secured Obligations, to
foreclose such mortgage or deed of trust judicially or nonjudicially in any
manner permitted by law, before or after enforcing the Bonds, Indenture or
Mortgage Documents, without diminishing or affecting the liability of Grantor
hereunder except to the extent the Secured Obligations are repaid with the
proceeds of such foreclosure.
26.3. Grantor hereby absolutely, unconditionally, knowingly, and
expressly waives: (1) any right of subrogation Grantor has or may have as
against PFC with respect to the Secured Obligations; (2) any right to proceed
against PFC or any other person or entity, now or hereafter, for
contribution, indemnity, reimbursement, or any other suretyship rights and
claims, whether direct or indirect, liquidated or contingent, whether arising
under express or implied contract or by operation of law, which Grantor may
now have or hereafter have as against PFC with respect to the Secured
Obligations; and (3) any right to proceed or seek recourse against or with
respect to any property or asset of PFC.
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SECTION 27. RELEASES. Grantor consents and agrees that, without notice
to or by Grantor, and without affecting or impairing the obligations of
Grantor hereunder, Secured Party may, by action or inaction:
(a) compromise, settle, extend the duration or the time for the
payment of, or discharge the performance of, or may refuse to or otherwise
not enforce this Agreement, the Bonds, Indenture or Mortgage Documents, or
any part thereof, with respect to PFC or any other person;
(b) release PFC or any other person or grant other indulgences to PFC
or any other person in respect thereof;
(c) amend or modify in any manner and at any time (or from time to
time) any of the Bonds, Indenture or Mortgage Documents; or
(d) release or substitute any other guarantor, if any, of the Secured
Obligations, or enforce, exchange, release, or waive any security for the
Secured Obligations or any other guaranty of the Secured Obligations, or any
portion thereof.
SECTION 28. NO ELECTION. Secured Party shall have all of the rights to
seek recourse against Grantor to the fullest extent provided for herein, and
no election by Secured Party to proceed in one form of action or proceeding,
or against any party, or on any obligation, shall constitute a waiver of
Secured Party's right to proceed in any other form of action or proceeding or
against other parties unless Secured Party has expressly waived such right in
writing. Specifically, but without limiting the generality of the foregoing,
no action or proceeding by Secured Party under any document or instrument
evidencing the Secured Obligations shall serve to diminish the liability of
Grantor under this Agreement except to the extent that Secured Party finally
and unconditionally shall have realized indefeasible payment by such action
or proceeding.
SECTION 29. INDEFEASIBLE PAYMENT. The Secured Obligations shall not be
considered indefeasibly paid for purposes of this Agreement unless and until all
payments to Secured Party are no longer subject to any right on the part of any
person, including PFC, PFC as a debtor in possession, or any trustee (whether
appointed under the Bankruptcy Code or otherwise) of any of PFC's assets, to
invalidate or set aside such payments or to seek to recoup the amount of such
payments or any portion thereof, or to declare the same to be fraudulent or
preferential. Upon such full and final performance and indefeasible payment of
the Secured Obligations, whether by PFC pursuant to the Bonds, Indenture or
Mortgage Documents or by any other person, Secured Party shall have no
obligation whatsoever to transfer or assign its interests the Bonds, Indenture
or Mortgage Documents to Grantor, except as otherwise required by applicable
law. In the event that, for any reason, any portion of such payments to Secured
Party is set aside or restored, whether voluntarily or involuntarily, after the
making thereof, then the obligation intended to be satisfied thereby shall be
revived and continued in full force and effect as if said payment or payments
had not been made, and Grantor shall be liable for the full amount Secured Party
is required to repay plus any and all costs and expenses (including attorneys'
fees and expenses and
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attorneys' fees and expenses incurred pursuant to proceedings arising under
the Bankruptcy Code) paid by Secured Party in connection therewith.
SECTION 30. FINANCIAL CONDITION OF THE PFC. Grantor represents and
warrants to Secured Party that Grantor is currently informed of the financial
condition of PFC and of all other circumstances which a diligent inquiry
would reveal and which bear upon the risk of nonpayment of the Secured
Obligations. Grantor further represents and warrants to Secured Party that
Grantor has read and understands the terms and conditions of in the Bonds,
Indenture or Mortgage Documents. Grantor hereby covenants that Grantor will
continue to keep informed of PFC's financial condition, the financial
condition of other guarantors, if any, and of all other circumstances which
bear upon the risk of nonpayment or nonperformance of the Secured Obligations.
SECTION 31. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
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IN WITNESS WHEREOF, Grantor and Secured Party have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
SANTA FE COFFEE COMPANY,
as Grantor
By: /s/
-----------------------------
Name: Xxxxxx X. Land
--------------------------
Title: Senior Vice President, Chief Financial Officer
----------------------------------------------
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Secured Party
By: /s/
-----------------------------
Name: Xxxxxxx XxXxxxxxx
---------------------------
Title: Vice President
--------------------------
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