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CREDIT AGREEMENT
Dated as of November 30, 2001
among
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
not individually, except as
expressly stated herein,
but solely as the Owner Trustee
under S&F Trust 1998-1
as the Borrower,
The Various Persons
from Time to Time Parties Hereto
as the Lenders, and
FLEET CAPITAL CORPORATION,
as the Agent
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS..................................................................... 1
1.1 Definitions.................................................................. 1
1.2 Interpretation............................................................... 1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................................. 1
2.1 Commitments.................................................................. 1
2.2 Notes........................................................................ 1
2.3 Procedure for Borrowing...................................................... 2
2.4 [not used]................................................................... 2
2.5 [not used]................................................................... 2
2.6 Prepayments and Payments..................................................... 2
2.7 [not used]................................................................... 3
2.8 Interest Rates and Payment Dates............................................. 3
2.9 [not used]................................................................... 3
2.10 Pro Rata Treatment and Payments.............................................. 3
2.11 Notice of Amounts Payable; Mandatory Assignment.............................. 4
SECTION 3. REPRESENTATIONS AND WARRANTIES.................................................. 4
SECTION 4. CONDITIONS PRECEDENT............................................................ 5
4.1 Conditions to Effectiveness.................................................. 5
4.2 Conditions to the Loan....................................................... 5
SECTION 5. COVENANTS....................................................................... 5
5.1 Other Activities............................................................. 5
5.2 Ownership of Properties, Indebtedness........................................ 5
5.3 Disposition of Assets........................................................ 5
5.4 Compliance with Operative Agreements......................................... 5
5.5 Further Assurances........................................................... 6
5.6 Notices...................................................................... 6
5.7 Discharge of Liens........................................................... 6
5.8 Trust Agreement.............................................................. 6
SECTION 6. EVENTS OF DEFAULT............................................................... 6
SECTION 7. THE AGENT....................................................................... 8
7.1 Appointment.................................................................. 8
7.2 Delegation of Duties......................................................... 9
7.3 Exculpatory Provisions....................................................... 9
7.4 Reliance by the Agent........................................................ 9
7.5 Notice of Default............................................................ 10
7.6 Non-Reliance on the Agent and Other Lenders.................................. 10
7.7 Indemnification.............................................................. 11
7.8 The Agent in Its Individual Capacity......................................... 11
i
7.9 Successor Agent.............................................................. 11
7.10 Actions of the Agent on Behalf of Holders.................................... 12
7.11 The Agent's Duty of Care..................................................... 12
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL...................................... 12
8.1 Collection and Allocation of Payments and Other Amounts...................... 12
8.2 Certain Remedial Matters..................................................... 12
8.3 Excepted Payments............................................................ 13
SECTION 9. MISCELLANEOUS................................................................... 13
9.1 Amendments and Waivers....................................................... 13
9.2 Notices...................................................................... 13
9.3 No Waiver; Cumulative Remedies............................................... 13
9.4 Survival of Representations and Warranties................................... 13
9.5 Payment of Expenses and Taxes................................................ 13
9.6 Successors and Assigns....................................................... 14
9.7 Participations............................................................... 14
9.8 Assignments; Pledges to Federal Reserve Banks................................ 14
9.9 The Register; Disclosure..................................................... 15
9.10 Adjustments; Set-off......................................................... 15
9.11 Counterparts................................................................. 16
9.12 Severability................................................................. 16
9.13 Integration.................................................................. 16
9.14 GOVERNING LAW................................................................ 16
9.15 SUBMISSION TO JURISDICTION AND VENUE......................................... 17
9.16 Acknowledgments.............................................................. 17
9.17 WAIVERS OF JURY TRIAL........................................................ 17
9.18 Nonrecourse.................................................................. 17
9.19 USURY SAVINGS PROVISION...................................................... 18
SCHEDULES
Schedule 2.1 Commitments and Addresses of Lenders
Schedule 2.10 Wire Instructions for Lenders
EXHIBITS
Exhibit A-1 Form of A-1 Note
Exhibit A-2 Form of A-2 Note
Exhibit B Form of B Note
ii
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of November 30, 2001 (the "Agreement") is
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among XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not individually, except
as expressly stated herein, but solely as the Owner Trustee under S&F Trust
1998-1 (the "Owner Trustee" or the "Borrower"), the several banks and other
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financial institutions from time to time parties to this Agreement (the
"Lenders"), and FLEET CAPITAL CORPORATION, a Delaware corporation, as the Agent
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for the Lenders (the "Agent").
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The parties agree as follows.
SECTION 1. DEFINITIONS
1.1 Definitions.
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Capitalized terms used and not otherwise defined in this Agreement have the
meanings assigned to them in Appendix A to that certain Participation Agreement
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dated as of November 30, 2001 (the "Participation Agreement") among Smart &
-----------------------
Final Inc., as Lessee, the Guarantors, the Borrower, the Holders, the Lenders,
and Fleet Capital Corporation, as Agent for the Lenders and respecting the
Security Documents, as the Agent for the Lenders and the Holders, to the extent
of their interests.
1.2 Interpretation.
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The rules of usage set forth in Appendix A to the Participation Agreement
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apply to this Agreement.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments.
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(a) Subject to the terms and conditions hereof, each Lender severally
agrees to make its portion of the Loan to the Borrower (to be paid through the
Agent) on the Closing Date in an amount equal to its Commitment as is set forth
in Schedule 2.1 for the purpose of enabling the Borrower to pay the amounts
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described in Section 5.1(a) of the Participation Agreement. Any prepayments of
the Loan, whether mandatory or at the Borrower's election, are not subject to
reborrowing.
(b) [not used]
(c) [not used]
2.2 Notes.
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Each Lender's portion of the Loan shall be evidenced by promissory notes of
the Borrower, substantially in the form of Exhibit A-1 in the case of the A-1
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Notes, Exhibit A-2 in the case of the A-2 Notes and Exhibit B in the case of the
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B Notes, with appropriate insertions as
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to payee, date, interest rate, fees and principal amount, payable to the order
of the Lender and in a principal amount equal to the Lender's Commitment. Each
Lender is authorized to record the date and amount of each payment or prepayment
of principal on the schedule annexed to its Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded,
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but the failure to record or any error in recording any information shall not
affect the Borrower's obligations under this Agreement or any Note. Each Note
shall (i) be dated the Closing Date, (ii) be stated to mature on the Maturity
Date and (iii) provide for the payment of principal and interest in accordance
with the terms of this Agreement and such Note.
2.3 Procedure for Borrowing.
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(a) The Borrower shall deliver or cause the Lessee to deliver irrevocable
notice to the Agent at least three Business Days before the Closing Date
specifying the amount to be borrowed (which shall not be in excess of the
Commitments) on the Closing Date, and the Agent shall promptly notify each
Lender of the information contained in such notice. Each Lender shall pay its
portion of the Loan to the Agent for the account of the Borrower prior to 11:30
a.m., Los Angeles, California time, on the Closing Date in immediately available
funds. The Agent will make the Loan available to the Borrower by crediting an
account designated by the Borrower with the aggregate of the Loan and in like
funds as received by the Agent. No amount of principal that the Borrower repays
or prepays may be reborrowed.
(b) [not used]
2.4 [not used]
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2.5 [not used]
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2.6 Prepayments and Payments.
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(a) The Borrower may at any time after the second anniversary of the
Closing Date prepay the Loan, in whole but not in part, without setoff,
deduction or counterclaim, upon at least three Business Days' irrevocable notice
to the Agent, specifying the date and amount of prepayment, which amount must
include the aggregate Loan Property Costs of the Properties, all accrued and
unpaid interest thereon, the Prepayment Fees and any other amounts owing to the
Agent or any Lender. The Agent shall promptly notify each Lender of the content
of any prepayment notice. The amount specified in a prepayment notice shall be
due and payable on the date specified in the notice.
(b) If the Borrower, in its capacity as the Lessor, receives any payment
(i) for any Casualty, Condemnation or Environmental Violation pursuant to
Sections 15.1(a) or 15.1(g) or Article XVI of the Lease (excluding any payments
in respect thereof which are payable to the Lessee in accordance with the
Lease), or (ii) of the Termination Value for any Property in connection with the
delivery of a Termination Notice pursuant to Article XVI of the Lease, or (iii)
of the Termination Value for any Property in connection with the exercise of the
Purchase Option under Article XX of the Lease or the exercise of the option of
the Lessor to transfer the Properties to the Lessee pursuant to Section 20.3 of
the Lease, or (iv) Prepayment Fees or other amounts in connection with such
payments, then in each case, the Borrower shall pay such amounts to the Agent,
and the Agent, whether it receives such amounts from the Borrower or
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directly from the Lessee, shall apply and pay such amounts in accordance with
the provisions of Section 8.7(b)(ii) of the Participation Agreement.
(c) Each prepayment of the Loan pursuant to Section 2.6(a) or (b) shall be
allocated to reduce the Loan Property Cost of the Property or Properties subject
to the respective Casualty, Condemnation, Environmental Violation, termination,
purchase, transfer or other circumstance giving rise to the prepayment.
(d) The outstanding principal balance of the Loan and all other amounts
then owing under this Agreement or otherwise with respect to the Loan shall be
due and payable in full on the Maturity Date.
2.7 [not used]
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2.8 Interest Rates and Payment Dates.
--------------------------------
(a) Each Lender's portion of the outstanding principal of the Loan shall
bear interest at a rate per annum equal to the amount stated on that Lender's
Note, except as expressly provided in this Agreement. Interest is calculated on
the basis of a year of 360 days for the actual days elapsed.
(b) If all or a portion of the principal amount of the Loan, any interest
payable on the Loan or any other amount payable under this Agreement is not paid
when due (whether on the Maturity Date, by acceleration or otherwise), the
overdue amount shall bear interest at the Overdue Rate from the date of the
nonpayment until the amount is paid in full.
(c) Interest shall be payable in arrears on the applicable Payment Date,
except that (i) Overdue Interest shall be payable on demand and (ii) each
prepayment of the Loan shall be accompanied by accrued interest to the date of
such prepayment on the amount prepaid.
2.9 [not used]
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2.10 Pro Rata Treatment and Payments.
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(a) Subject to Section 8.7 of the Participation Agreement and Section
2.11(b) hereof, each payment (including without limitation each prepayment) by
the Borrower of principal of and interest on the Loan shall be made pro rata to
the Lenders according to their respective outstanding principal of the Loan. All
payments (including without limitation prepayments) to be made by the Borrower
under this Agreement or the Notes, whether of principal, interest or otherwise,
shall be made without setoff or counterclaim and shall be made prior to 9:00
a.m., Los Angeles, California time, on the applicable Payment Date to the Agent,
for the account of the Lenders, at the Agent's address for payments, in Dollars
and in immediately available funds. The Agent shall distribute all payments to
the Lenders in accordance with their wire instructions on Schedule 2.10 promptly
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upon receipt in like funds as received. If any Payment Date is not a Business
Day, the payment will be due on the next Business Day, with interest on the
payment at the regular rate from the scheduled Payment Date to the next Business
Day.
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(b) On the Closing Date, the Agent may assume that each Lender is making
the Commitment available to the Agent, and the Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If a Lender
does not make its Commitment available to the Agent by 11:30 a.m., Los Angeles,
California time on the Closing Date, it shall pay to the Agent, on demand, the
amount of its Commitment with interest thereon at a rate equal to the Federal
Funds Effective Rate for the period from the Closing Date to the date it makes
its Commitment available to the Agent. A certificate of the Agent submitted to
any Lender with respect to any amounts owing under this Section 2.10(b) will be
conclusive in the absence of manifest error. If any Lender does not make its
Commitment available to the Agent within three Business Days of the Closing
Date, the Agent may recover the amount of the Lender's Commitment with interest
thereon at the Federal Funds Effective Rate on demand from the Borrower.
2.11 Notice of Amounts Payable; Mandatory Assignment.
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(a) If any Lender becomes aware that any amounts are or will be owed to it
pursuant to Section 11.2(e) of the Participation Agreement, then it shall
promptly notify the Borrower, the Lessee and the Agent and, as soon as
practicable thereafter, it shall submit to the Borrower (with a copy to the
Agent) a certificate indicating the amount owing to it and the calculation
thereof. The amount set forth in such certificate shall be prima facie evidence
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of the obligations of the Borrower under that section.
(b) If any Lender delivers to the Borrower a certificate in accordance with
Section 2.11(a), then, subject to the Lessee's rights under Section 9.1 of the
Participation Agreement, the Borrower may, at its own expense (provided, such
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amounts shall be reimbursed or paid entirely (as elected by the Borrower) by the
Lessee, as Supplemental Rent) and in its discretion, (i) require such Lender to
transfer or assign, in whole or (with such Lender's consent) in part, without
recourse (in accordance with Section 9.8), all or (with such Lender's consent)
part of its interests, rights (except for rights to be indemnified for actions
taken while a party hereunder) and obligations under this Agreement to another
Person if the Borrower, with the full cooperation of such Lender, can identify a
Person who is ready, willing and able to be such Person and such Person (which
may be another Lender) shall assume such assigned obligations; or (ii) during
such time as no Default or Event of Default has occurred and is continuing,
prepay all outstanding Loan of such Lender; provided, however, that (x) the
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Borrower or such Person, as the case may be, shall have paid to such Lender in
immediately available funds the principal of and interest accrued to the date of
such payment on the portion of its Loan and all other amounts owed to it
hereunder (and, if such Lender is also a Holder, all Holder Advances and Holder
Yield accrued and unpaid thereon); and (y) such assignment and prepayment of the
Loan do not conflict with any law, rule or regulation or order of any court or
Governmental Authority.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and to
make the Loan, each of the Trust Company and the Owner Trustee hereby makes and
affirms the representations and warranties set forth in Section 6.1 of the
Participation Agreement to the same extent as if such representations and
warranties were set forth in this Agreement in their entirety.
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SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness.
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The effectiveness of this Agreement is subject to the satisfaction of all
conditions precedent set forth in Section 5.3 of the Participation Agreement
required to be satisfied by the Closing Date.
4.2 Conditions to the Loan.
----------------------
The obligation of each Lender to make its portion of the Loan is
subject to the satisfaction of all conditions precedent set forth in Section 5.3
of the Participation Agreement required to be satisfied by the Closing Date.
SECTION 5. COVENANTS
So long as any Loan or Note remains outstanding and unpaid or any other
amount is owing to any Lender or the Agent hereunder:
5.1 Other Activities.
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The Borrower will not conduct, transact or otherwise engage in, or commit
to transact, conduct or otherwise engage in, any business or operations other
than the entry into, and exercise of rights and performance of obligations in
respect of, the Operative Agreements and other activities incidental or related
to the foregoing.
5.2 Ownership of Properties, Indebtedness.
-------------------------------------
The Borrower will not own, lease, manage or otherwise operate any
properties or assets other than in connection with the activities described in
Section 5.1, or incur, create, assume or suffer to exist any Indebtedness or
other consensual liabilities or financial obligations other than as may be
incurred, created or assumed or as may exist in connection with the activities
described in Section 5.1 (including without limitation the Loan and other
obligations incurred by the Borrower hereunder).
5.3 Disposition of Assets.
---------------------
The Borrower will not convey, sell, lease, assign, transfer or otherwise
dispose of any of its property, business or assets, whether now owned or
hereafter acquired, except to the extent expressly contemplated by the Operative
Agreements.
5.4 Compliance with Operative Agreements.
------------------------------------
The Borrower will at all times (a) observe and perform all of the
covenants, conditions and obligations required to be performed by it (whether in
its capacity as the Lessor, the Owner Trustee or otherwise) under each Operative
Agreement to which it is a party; and (b) observe and perform, or cause to be
observed and performed, all of the covenants, conditions and obligations
5
of the Lessor under the Lease, even in the event that the Lease is terminated at
stated expiration following a Lease Event of Default or otherwise.
5.5 Further Assurances.
------------------
At any time, upon the written request of the Agent, and at the expense of
the Borrower, the Borrower will promptly and duly execute and deliver such
further instruments and documents and take such further action as the Agent or
the Majority Lenders may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and the other Operative
Agreements and of the rights and powers herein or therein granted.
5.6 Notices.
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If on any date, a Responsible Officer of the Borrower shall obtain actual
knowledge of the occurrence of a Default or Event of Default, the Borrower will
give written notice thereof to the Agent within five Business Days after such
date.
5.7 Discharge of Liens.
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Neither the Borrower nor the Trust Company will create or permit to exist
at any time any Lessor Lien. Each of the Borrower and the Trust Company will, at
its own expense, promptly take any action necessary to discharge, or cause to be
discharged, all Lessor Liens attributable to it unless it is contesting them in
good faith by appropriate, diligently prosecuted proceedings that do not involve
any danger of material impairment of any Lien contemplated by the Security
Documents or of the sale, forfeiture or loss of any Property and do not
materially interfere with the disposition of any Property or title thereto or
any interest therein or the payment of Rent.
5.8 Trust Agreement.
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Without prejudice to any right under the Trust Agreement of the Owner
Trustee to resign, the Owner Trustee will (a) not terminate or revoke the trust
created by the Trust Agreement, except as permitted by Article VIII of the Trust
Agreement, (b) not amend, supplement, terminate, revoke or otherwise modify the
Trust Agreement in a manner that could reasonably be expected to adversely
affect the rights or interests of the Agent or the Lenders under the Operative
Agreements, and (c) will comply with all of the terms of the Trust Agreement.
SECTION 6. EVENTS OF DEFAULT
If any of the following specified events (each an "Event of Default")
----------------
occurs:
(a) the Borrower fails to pay when due any principal or interest on the
Loan, and such failure continues for three Business Days; or
(b) the Borrower fails to pay (i) any amount due on the Maturity Date under
any Credit Document or (ii) any principal or interest due on the Loan arising
from Lessee's obligation to pay Termination Value when due or to pay Basic Rent
or Supplemental Rent at such time as any Termination Value is due; or
6
(c) the Borrower fails to pay any other amount owing under any Credit
Document, and such failure continues for three days; or
(d) the Borrower fails to perform or observe (i) any obligation under
Section 5.4, 5.5 or 5.8(c), and the failure continues for 30 days after the
Borrower receives notice from the Agent or the Majority Secured Parties, but if
the failure cannot be remedied within the 30-day period but may be remedied with
further diligence and if the Borrower has diligently pursued and continues to
diligently pursue a remedy, then the Agent shall grant the Borrower additional
time (not to exceed 30 days) needed to pursue the remedy or (ii) any other term,
covenant or agreement contained in any Credit Document to which it is a party;
or
(e) any representation, warranty or statement made by the Borrower in any
Credit Document, or by the Borrower or the Lessee in the Participation Agreement
or any statement or certificate delivered under any Operative Agreement, is
incorrect when made in any material respect; or
(f) (i) any Lease Event of Default has occurred and is continuing; or (ii)
the Owner Trustee fails to perform or observe any term, covenant or agreement
under the Participation Agreement or the Trust Agreement required to be
performed by it to or for the benefit of the Agent or a Lender, and the failure
continues for 30 days after the Borrower receives notice from the Agent or the
Majority Secured Parties, but if the failure cannot be remedied within the
30-day period but may be remedied with further diligence and if the Borrower has
diligently pursued and continues to diligently pursue a remedy, then the Agent
shall grant the Borrower additional time (not to exceed 30 days) needed to
pursue the remedy; or
(g) the Borrower commences a voluntary case concerning itself under the
Bankruptcy Code; or an involuntary case under the Bankruptcy Code is commenced
against the Borrower that is not contravened within 10 days or not dismissed
within 60 days after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of the Borrower; or the Borrower commences any other proceeding
concerning itself, or has a proceeding commenced against it that is not
dismissed within 60 days, under any reorganization, arrangement, adjustment of
debt, relief of debtors, dissolution, insolvency, liquidation or similar law of
any jurisdiction whether now or hereafter in effect; or the Borrower is
adjudicated insolvent or bankrupt, or any order of relief or other order
approving any such case or proceeding is entered; or the Borrower suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue without discharge or stay for a period of 60 days; or the
Borrower makes a general assignment for the benefit of creditors; or any
corporate or partnership action is taken by the Borrower for the purpose of
effecting any of the foregoing; or
(h) any Security Document ceases to be in full force and effect, or ceases
to give the Agent the Liens, rights, powers and privileges intended to be
created thereby (including without limitation a first priority perfected
security interest in and Lien on all of the Properties), in favor of the Agent
on behalf of the Lenders and the Holders, superior to and prior to the rights of
all other Persons and subject to no other Liens (except in each case to the
extent expressly permitted in any Operative Agreement); or
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(i) the Lease ceases to be enforceable against the Lessee; or
(j) one or more judgments or decrees are entered against the Borrower (not
including judgments or decrees that are vacated or discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof) involving an
aggregate liability for the Borrower of $100,000 or more;
then (A) in an Event of Default specified in paragraph (g) above, the Loan (with
accrued interest thereon) and all other amounts owing under this Agreement,
including Prepayment Fees, and the Notes shall immediately become due and
payable, or (B) in any other Event of Default, with the consent of the Majority
Secured Parties, the Agent may, or upon the request of the Majority Secured
Parties, the Agent shall, by notice to the Borrower declare the Loan (with
accrued interest thereon) and all other amounts owing under this Agreement,
including Prepayment Fees, and the Notes to be due and payable, whereupon they
shall immediately become due and payable (any of the occurrences or actions
referred to in clause (A) or (B) above, an "Acceleration"). Except as expressly
------------
provided above in this Section 6, the Borrower waives presentment, demand,
protest and all other notices of any kind.
Upon the occurrence of any Event of Default and so long as any Event of
Default is continuing, upon the Majority Secured Parties' written instructions,
the Agent shall exercise any or all of the rights and powers and pursue any and
all of the remedies available to it hereunder and (subject to the terms thereof)
under the other Credit Documents, the Lease and the other Operative Agreements
and shall have any and all rights and remedies available under the Uniform
Commercial Code or any other applicable provision of law.
Upon the occurrence of any Event of Default and so long as any Event of
Default is continuing, the Agent may, and upon the Majority Secured Parties'
request shall, proceed to protect and enforce this Agreement, the Notes, the
other Credit Documents and the Lease by suit or suits or proceedings in equity,
at law or in bankruptcy, and whether for the specific performance of any
covenant or agreement herein contained or in execution or aid of any power
herein granted, or for foreclosure hereunder, or for the appointment of a
receiver or receivers for the Property or for the recovery of judgment for the
indebtedness secured thereby or for the enforcement of any other proper, legal
or equitable remedy available under applicable laws.
The Borrower shall be liable for any and all accrued and unpaid amounts due
hereunder before, after or during the exercise of any of the foregoing remedies,
including without limitation all reasonable legal fees and other reasonable
costs and expenses incurred by the Agent or any Lender by reason of the
occurrence of any Event of Default or the exercise of remedies with respect
thereto.
SECTION 7. THE AGENT
7.1 Appointment.
-----------
Each Lender irrevocably designates and appoints the Agent as its agent
under this Agreement and the other Operative Agreements and irrevocably
authorizes the Agent to execute the Operative Agreements as its Agent and on its
behalf, to take such action on its behalf under this Agreement and the other
Operative Agreements, and to exercise the powers and perform the
8
duties expressly delegated to the Agent by the terms of this Agreement and other
Operative Agreements, together with any other powers reasonably incidental to
any powers so delegated. Without limiting the generality of the foregoing
sentence, each of the Lenders specifically acknowledges the terms and provisions
of the Participation Agreement and directs the Agent to exercise such powers,
make such decisions and otherwise perform such duties as are delegated to the
Agent thereunder without being required to obtain any specific consent with
respect thereto from any Lender, unless the matter under consideration is a
Unanimous Vote Matter or otherwise requires the consent of the Majority Lenders
or the Majority Secured Parties or both. The Agent has no duties or
responsibilities, except those expressly set forth in this Agreement or the
other Operative Agreements, or any fiduciary relationship with any Lender, and
no covenants, functions, responsibilities, duties, obligations or liabilities
may be implied from this Agreement or any other Operative Agreement or otherwise
exist against the Agent.
7.2 Delegation of Duties.
--------------------
The Agent may execute any of its duties under this Agreement and the other
Operative Agreements by or through agents or attorneys-in-fact and is entitled
to advice of counsel concerning all matters pertaining to its duties. The Agent
is not responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
7.3 Exculpatory Provisions.
----------------------
Neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates will be (a) liable for any action lawfully taken
or omitted to be taken by it or any other Person under or in connection with
this Agreement or any other Operative Agreement (except for its own gross
negligence or willful misconduct), or (b) responsible in any manner to any
Lender for any recitals, statements, representations or warranties made by the
Borrower or the Lessee or any of their officers contained in this Agreement or
any other Operative Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Operative Agreement, or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Operative Agreement, for the perfection,
non-perfection or priority of any Lien or security interest, or for any failure
of the Borrower or the Lessee to perform its obligations under this Agreement or
any other Operative Agreement. The Agent is under no obligation to any Lender to
ascertain or to inquire as to the observance or performance of any agreement in
or condition of this Agreement or any other Operative Agreement, or to inspect
the properties, books or records of the Borrower or the Lessee.
7.4 Reliance by the Agent.
---------------------
The Agent may rely, and will be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, facsimile,
telex or teletype message, statement, order or other document or conversation it
believes to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including without limitation counsel to the Borrower or the Lessee),
independent accountants, and any other expert it selects. The Agent may treat
the payee of any Note as the owner thereof for all purposes unless a written
notice of assignment, negotiation or
9
transfer thereof has been delivered to the Agent. The Agent is fully justified
in failing or refusing to take any action under this Agreement or any other
Operative Agreement unless it has first received any advice or concurrence of
the Majority Lenders, the Majority Secured Parties or all Secured Parties, as
the case may be, as it deems appropriate or it has first been indemnified to its
satisfaction by the Lenders against any and all liability and expense that it
may incur by reason of taking or continuing to take any such action. The Agent
is in all cases fully protected in acting, or in refraining from acting, under
this Agreement or any other Operative Agreement in accordance with a request of
the Majority Lenders, the Majority Secured Parties or all Secured Parties, as
the case may be, and any action taken or failure to act pursuant thereto is
binding upon all the Lenders and all future holders of the Notes (or all Secured
Parties, as the case may be).
7.5 Notice of Default.
-----------------
The Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default (other than a payment default) hereunder
unless the Agent has received written notice from a Lender or the Borrower
referring to this Agreement, describing the Default or Event of Default, and
identified as a default notice. If the Agent receives a notice of default, the
Agent will give notice thereof to the Lenders. The Agent will take such action
with respect to such Default or Event of Default as the Majority Secured Parties
reasonably direct; provided, that unless and until the Agent receives such
--------
direction, the Agent may (but is not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it deems advisable in the best interests of the Secured Parties.
Nothing in this Section 7.5 limits (a) the rights of the Majority Secured
Parties to elect remedies under Section 6 or (b) the rights of the Majority
Secured Parties or all Secured Parties, as the case may be, set forth in the
Participation Agreement.
7.6 Non-Reliance on the Agent and Other Lenders.
-------------------------------------------
Each Lender acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no further act by the Agent,
including without limitation any review of the affairs of the Borrower or the
Lessee, will constitute any representation or warranty by the Agent to any
Lender. Each Lender represents to the Agent that it has, independently and
without reliance upon the Agent or any other Lender, and based on the documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and the Lessee and made its own
decision to make its Commitment and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance on the Agent or any
other Lender, and based on whatever documents and information it deems
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Operative Agreements and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower and the Lessee. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent has no duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
10
creditworthiness of the Borrower or the Lessee that may come into the possession
of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
7.7 Indemnification.
---------------
The Lenders will indemnify the Agent, in its capacity as such (to the
extent it is not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so), ratably according to their Commitment Percentages on
the date on which indemnification is sought (or, if indemnification is sought
after the date on which the Commitments are terminated and the Loan is paid in
full, ratably in accordance with their Commitment Percentages immediately prior
to the termination and payment), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the payment of the Notes) be
imposed on, incurred by or asserted against any of them in any way relating to
or arising out of, the Commitments, this Agreement, any of the other Operative
Agreements or any documents contemplated by or referred to in any Operative
Agreement or the transactions contemplated by the Operative Agreements, or any
action taken or omitted by any of them under or in connection with any of the
foregoing; provided, that no Lender will be liable for the payment of any
--------
portion of any liabilities, obligations, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the gross
negligence or willful misconduct of the Agent. The agreements in this Section
7.7 shall survive the payment of the Notes and all other amounts payable
hereunder.
7.8 The Agent in Its Individual Capacity.
------------------------------------
The Agent and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower or the Lessee as
though the Agent were not the Agent hereunder and under the other Operative
Agreements. With respect to its portion of the Loan and any Note issued to it,
the Agent has the same rights, obligations and powers under this Agreement and
the other Operative Agreements as any Lender and may exercise those rights and
powers as though it were not the Agent, and the terms "Lender" and "Lenders"
include the Agent in its individual capacity.
7.9 Successor Agent.
---------------
The Agent may resign at any time upon 30 days' notice to the Lenders, the
Borrower and, so long as no Lease Event of Default has occurred and is
continuing, the Lessee. If the Agent resigns under this Agreement, the Majority
Secured Parties shall appoint from among the Lenders a successor Agent, subject
to the approval of the Borrower and, so long as no Lease Event of Default has
occurred and is continuing, the Lessee, such approval not to be unreasonably
withheld or delayed. If no successor Agent is appointed prior to the effective
date of the resignation of the resigning Agent, the Agent may appoint, after
consulting with the Lenders and subject to this approval of the Borrower and, so
long as no Lease Event of Default has occurred and is continuing, the Lessee,
such approval not to be unreasonably withheld or delayed, a successor Agent from
among the Lenders (or another Person acceptable to the Majority Lenders). If no
successor Agent has accepted appointment as the Agent by the date which is 30
days following a resigning Agent's notice of resignation, the resigning Agent's
11
notice of resignation will thereupon become effective and the Lenders shall
perform all of the duties of the Agent until such time, if any, as the Majority
Lenders appoint a successor Agent, in the manner provided for above. Upon the
effective date of the Agent's resignation, only a successor Agent may succeed to
all the rights, powers and duties of the resigning Agent, the term "Agent" shall
mean the successor Agent, and the resigning Agent's rights, powers and duties in
its capacity as Agent will be terminated. After any Agent resigns as the Agent,
the provisions of Section 9.5 and this Article VII shall inure to its benefit as
to any actions taken or permitted to be taken by it while it was the Agent under
this Agreement.
7.10 Actions of the Agent on Behalf of Holders.
-----------------------------------------
The Lenders and the Borrower acknowledge and consent to the Agent's acting
on behalf of the Holders as provided in the Participation Agreement, and, in any
such case, the Lenders acknowledge that the Holders are entitled to vote as
"Secured Parties" hereunder to the extent required or permitted by the Operative
Agreements.
7.11 The Agent's Duty of Care.
------------------------
Other than the exercise of reasonable care to assure the safe custody of
the Collateral being held by the Agent under any Operative Agreement, the Agent
shall have no duty or liability to preserve rights pertaining to the Collateral,
it being understood and agreed that the Lessee is responsible for preserving all
rights in the Collateral, and the Agent shall be relieved of all responsibility
for the Collateral upon surrendering it or tendering the surrender of it to the
Lessee. The Agent will have exercised reasonable care in the custody and
preservation of any Collateral in its possession if it accords the Collateral is
accorded treatment substantially equal to that which the Agent accords its own
property, which shall be no less than that employed by a reasonable and prudent
Agent in the industry, it being understood that the Agent is not responsible for
taking any steps to preserve rights in the Collateral against any Person.
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL
8.1 Collection and Allocation of Payments and Other Amounts.
-------------------------------------------------------
The Agent will allocate and distribute payments, including without
limitation the proceeds of Collateral, to the Lenders, the Holders and other
Persons in accordance with the procedures set forth in Section 8.7 of the
Participation Agreement.
8.2 Certain Remedial Matters.
------------------------
(a) The Borrower at all times retains, to the exclusion of all other
parties, all rights to Excepted Payments payable to it and to demand, collect or
commence an action at law to obtain such payments and to enforce any judgment
with respect thereto; and
(b) The Borrower and each Holder at all times, but not to the exclusion of
the Agent, retain (i) all rights with respect to insurance that Article XIV of
the Lease specifically confers upon the "Lessor," (ii) the right to provide any
insurance as the Lessee has failed to maintain or as the Borrower or any Holder
may desire, and (iii) the right to bring an action to enforce
12
compliance by the Lessee with the provisions of Articles VIII, IX, X, XI, XIV
and XVII of the Lease.
8.3 Excepted Payments.
-----------------
Any Excepted Payment received at any time by the Agent shall be distributed
promptly to the Person entitled to receive it.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers.
----------------------
None of the terms of this Agreement may be terminated, amended,
supplemented, waived or modified except in accordance with Section 12.4 of the
Participation Agreement.
9.2 Notices.
-------
All notices required or permitted to be given under this Agreement shall be
given in accordance with Section 12.2 of the Participation Agreement.
9.3 No Waiver; Cumulative Remedies.
------------------------------
No failure to exercise and no delay in exercising, on the part of the Agent
or any Lender, any right, remedy, power or privilege hereunder or under the
other Credit Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or future exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties.
------------------------------------------
All representations and warranties made by the Borrower under the Operative
Agreements shall survive the execution and delivery of this Agreement and the
Notes and the making of the Loan hereunder.
9.5 Payment of Expenses and Taxes.
-----------------------------
The Borrower will (with funds provided by the Lessee as Supplemental Rent):
(a) pay all reasonable out-of-pocket costs and expenses of (i) the Agent whether
or not the transactions herein contemplated are consummated, in connection with
the negotiation, preparation, execution and delivery of the Operative Agreements
and the documents and instruments referred to therein (including without
limitation the reasonable fees and disbursements of Agent's Counsel) and any
amendment, waiver or consent relating thereto (including without limitation the
reasonable fees and disbursements of Agent's Counsel) and (ii) the Agent and
each of the Lenders in connection with the enforcement of the Operative
Agreements and the documents and instruments referred to therein (including
without limitation the reasonable fees and disbursements of Agent's Counsel and
Lenders' Counsel); and (b) pay and hold each of the Lenders harmless from and
against any and all present and future stamp and other similar taxes
13
with respect to the foregoing matters and save each of the Lenders harmless from
and against any all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Lender) to pay such
taxes.
9.6 Successors and Assigns.
----------------------
This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agent, all future holders of the Notes and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
9.7 Participations.
--------------
Each Lender may sell participations to one or more Persons (each, a
"Participant") in all or a portion of its rights or obligations, or both, under
-----------
the Operative Agreements (including all or a portion of its Commitment or its
Loan); provided, however, that (a) such Lender's obligations under the Operative
-------- -------
Agreements shall remain unchanged, (b) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(c) the Participant will be entitled to the benefit of yield protection under
Section 11.2(e) of the Participation Agreement and set-off rights under Section
12.15 of the Participation Agreement, and (d) the Borrower shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Operative Agreements, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to its
Loan and its Notes and to approve any amendment, modification, or waiver of any
provision of the Operative Agreements (other than amendments, modifications, or
waivers decreasing the amount of principal of or the rate at which interest is
payable on such Loan or Notes, extending any scheduled principal payment date or
date fixed for the payment of interest on such Loan or Notes, or extending its
Commitment).
9.8 Assignments; Pledges to Federal Reserve Banks.
---------------------------------------------
(a) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under the Operative Agreements (including,
without limitation, all or a portion of its Loan and its Notes) as follows:
(i) excepting the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under the
Operative Agreements, any partial assignment shall be in an
amount at least equal to $5,000,000 or an integral multiple of
$1,000,000 in excess thereof;
(ii) each assignment by a Lender shall be of a constant, and not
varying, percentage of all of its rights and obligations under
the Operative Agreements and the Notes;
(iii) the parties to the assignment shall execute and deliver to the
Agent for its acceptance an assignment agreement, in a form
satisfactory to the Agent, together with any Note subject to the
assignment and a processing fee of $3,500; and
14
(iv) if the Eligible Assignee is not a U.S. Person, it shall certify
to the Borrower and the Agent that it is exempt from
Withholdings.
(b) Upon its satisfactory receipt of the items described in Section
9.8(a)(iii), the Agent shall (i) accept the assignment, (ii) record the
appropriate information in the Register, and (iii) give prompt notice of its
acceptance to the parties thereto. Upon the Agent's acceptance of the
assignment, the Eligible Assignee thereunder will be a party hereto and, to the
extent of the assignment, have the obligations, rights and benefits of a Lender
under the Operative Agreements, and the assigning Lender, to the extent of the
assignment, will have relinquished its rights and will be released from its
obligations under the Operative Agreements. If necessary, the assigning Lender,
the Agent and the Borrower will arrange for new Notes to be issued promptly to
the assigning Lender and the Eligible Assignee.
(c) Each Lender may at any time assign and pledge all or any portion of its
Loan and its Notes to any Federal Reserve Bank as collateral security pursuant
to Regulation A and any Operating Circular issued by the Board. No such
assignment or pledge releases the assigning Lender from its obligations
hereunder.
9.9 The Register; Disclosure.
------------------------
The Agent shall maintain at its address for notices a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loan owing to, each Lender from time to time (the
"Register"). The entries in the Register will be conclusive and binding for all
--------
purposes, absent manifest error, and the Borrower, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender for all
purposes of this Agreement. The Borrower or any Lender may inspect the Register
at any reasonable time upon reasonable prior notice.
9.10 Adjustments; Set-off.
--------------------
(a) Except as otherwise expressly provided in Section 8.1 hereof and
Section 8.7 of the Participation Agreement where, and to the extent, one Lender
is entitled to payments prior to other Lenders, if any Lender (a "Benefitted
----------
Lender") shall at any time receive any payment of all or part of its Loan, or
------
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 6(g), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's portion of the Loan, or interest thereon, such
Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loan, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such Benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
-------- -------
benefits is thereafter recovered from such Benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the event
of such recovery, but without interest.
15
(b) In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each of the Agent and the Lenders is
authorized at any time and from time to time, without presentment, demand,
protest or other notice of any kind to the Borrower or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by the Agent or such Lender (including without limitation
by branches and agencies of the Agent or such Lender wherever located) to or for
the credit or the account of the Borrower against and on account of the
obligations and liabilities of the Borrower to the Agent or such Lender under
this Agreement or under any of the other Operative Agreements, including without
limitation all interests in obligations of the Borrower purchased by any such
Lender pursuant to Section 9.10(a), and all other claims of any nature or
description arising out of or connected with this Agreement or any other
Operative Agreement, irrespective or whether or not the Agent or such Lender
shall have made any demand and although said obligations, liabilities or claims,
or any of them, shall be contingent or unmatured.
9.11 Counterparts.
------------
This Agreement may be executed by the parties in separate counterparts,
each of which taken together will constitute one and the same instrument. The
Borrower and the Agent shall hold a complete set of original counterparts of
this Agreement.
9.12 Severability.
------------
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.13 Integration.
-----------
This Agreement and the other Operative Agreements to which the Borrower,
the Agent, or any Lender is a party represent the entire agreement of the
Borrower, the Agent, and the Lenders with respect to the subject matter hereof
and thereof, and the Agent and the Lenders make no promises, undertakings,
representations or warranties relative to subject matter hereof not expressly
made or referred to herein or in the other Operative Agreements.
9.14 GOVERNING LAW.
-------------
THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA,
WITHOUT REFERENCE TO CONFLICT OF LAWS PRINCIPLES.
16
9.15 SUBMISSION TO JURISDICTION AND VENUE.
------------------------------------
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO
JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS
-------
MUTANDIS.
--------
9.16 Acknowledgments.
---------------
The Borrower acknowledges that
(a) neither the Agent nor any Lender has any fiduciary relationship with or
duty to the Borrower arising out of or in connection with this Agreement or any
other Operative Agreement, and the relationship between the Agent and the
Lenders on the one hand and the Borrower on the other hand, in connection with
this Agreement and the other Operative Agreements is solely that of creditor and
debtor and
(b) no joint venture among the Lenders or among the Borrower and the
Lenders is created by this Agreement or by the other Credit Documents or
otherwise exists by virtue of the transactions contemplated by this Agreement.
9.17 WAIVERS OF JURY TRIAL.
---------------------
THE BORROWER, THE AGENT AND THE LENDERS IRREVOCABLY AND UNCONDITIONALLY
WAIVE, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM IN SUCH ACTION OR PROCEEDING.
9.18 Nonrecourse.
-----------
In addition to and not in limitation of Section 12.9 of the Participation
Agreement, anything to the contrary contained in this Agreement or in any other
Operative Agreement notwithstanding, all Exculpated Persons shall have no
personally liable in any respect for any liability or obligation under any
Operative Agreement, including without limitation the payment of the principal
of, or interest on, the Notes, or for monetary damages for the breach of
performance of any of the covenants contained in this Agreement, the Notes or
any other Operative Agreement. If the Agent or any Lender pursues any remedy
available to it under this Agreement, the Notes or any other Operative
Agreement, it will have no claim against the Borrower or any other Exculpated
Person, for any deficiency, loss or monetary damages, and recourse will be
solely and exclusively against the Trust Estate and the Lessee. The Borrower is
not responsible for the payment of any amounts owing hereunder [excluding
principal and interest (other than Overdue Interest) on the Loan] (such
non-excluded amounts, "Supplemental Amounts") except to the extent that the
--------------------
Lessee pays Supplemental Rent under the Lease for application toward
Supplemental Amounts or the Borrower otherwise receives such amounts. Nothing in
this Agreement or any other Operative Agreement (a) constitutes a waiver,
release or discharge of any obligation evidenced or secured by this Agreement or
any other Credit Document, (b) limits the right of the Agent or any Lender to
name the Borrower as a party defendant in any action or suit for judicial
foreclosure and sale under any Security Document, or
17
(c) affects in any way the validity or enforceability of any guaranty (whether
of payment or performance) given to the Lessor, the Agent or the Lenders, or of
any indemnity given by the Borrower, in connection with the Loan.
9.19 USURY SAVINGS PROVISION.
-----------------------
THE PARTIES INTEND TO CONFORM TO AND CONTRACT IN STRICT COMPLIANCE WITH
APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. TO THE EXTENT ANY COURT OF
COMPETENT JURISDICTION CHARACTERIZES ANY PAYMENTS UNDER THIS AGREEMENT AS THE
REPAYMENT OF PRINCIPAL AND INTEREST THEREON, THE PROVISIONS OF THIS SECTION
SHALL APPLY. ANY PAYMENTS CHARACTERIZED AS INTEREST ARE REFERRED TO IN THIS
SECTION AS "INTEREST." THIS SECTION LIMITS, OVERRIDES AND CONTROLS ALL
AGREEMENTS AMONG THE PARTIES, WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER WRITTEN OR ORAL. UNDER NO CIRCUMSTANCES (INCLUDING WITHOUT LIMITATION
PREPAYMENT OR ACCELERATION OF THE MATURITY OF ANY OBLIGATION), SHALL ANY
INTEREST TAKEN, RESERVED, CONTRACTED FOR, CHARGED, OR RECEIVED UNDER THIS
AGREEMENT OR OTHERWISE, EXCEED THE MAXIMUM AMOUNT PERMISSIBLE UNDER APPLICABLE
LAW. IF ANY CONSTRUCTION OF AN OPERATIVE AGREEMENT OR OTHER APPLICABLE DOCUMENT
RESULTS IN INTEREST BEING PAYABLE IN EXCESS OF THE MAXIMUM LAWFUL AMOUNT, THE
INTEREST PAYABLE SHALL BE AUTOMATICALLY REDUCED TO THE MAXIMUM LAWFUL AMOUNT
PERMITTED UNDER APPLICABLE LAW AND UNDER THAT CONSTRUCTION, WITHOUT THE
NECESSITY OF EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR AGREEMENT. IF THE
AGENT OR ANY LENDER RECEIVES A PAYMENT OF INTEREST UNDER THIS AGREEMENT OR
APPLICABLE LAW THAT WOULD, APART FROM THIS PROVISION, EXCEED THE MAXIMUM LAWFUL
AMOUNT, AN AMOUNT EQUAL TO THE EXCESS WILL BE APPLIED, WITHOUT PENALTY, TO
REDUCE THE PRINCIPAL ON THE LOAN AND NOT TO THE PAYMENT OF INTEREST, BUT TO THE
EXTENT THE EXCESS AMOUNT IS GREATER THAN THE PRINCIPAL THEN DUE, IT WILL BE
REFUNDED TO THE BORROWER OR OTHER PAYOR THEREOF. ALL INTEREST PAID OR AGREED TO
BE PAID TO THE AGENT OR ANY LENDER SHALL, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, BE AMORTIZED, PRORATED, ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED
TERM (INCLUDING WITHOUT LIMITATION ANY RENEWAL OR EXTENSION) OF THIS AGREEMENT
SO THAT THE AMOUNT OF INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED THE
MAXIMUM LAWFUL AMOUNT.
[signature pages follow]
18
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, not
individually, except as expressly provided
herein, but solely as the Owner Trustee
under S&F Trust 1998-1, as the Borrower
By: /s/ C. Xxxxx Xxxxxxx
---------------------------------
Name: C. Xxxxx Xxxxxxx
Title: Vice President
[Credit Agreement]
FLEET CAPITAL CORPORATION,
as the Agent and a Lender
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
[Credit Agreement]
GMAC BUSINESS CREDIT, LLC,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
[Credit Agreement]
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.
"RABOBANK NEDERLAND", NEW
YORK BRANCH, as a Lender
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxx
------------------------------------------
Title: Executive Director
------------------------------------------
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------------------
Title: Managing Director - Senior Credit Officer
-----------------------------------------
[Credit Agreement]
NATEXIS BANQUES POPULAIRES,
as a Lender
By: /s/ Xxxxxx X. van Tulder
--------------------------------
Name: Xxxxxx X. van Tulder
------------------------------
Title: Vice President & Manager
------------------------------
Multinational Group
-------------------
By: /s/ Xxxxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
[Credit Agreement]
TRANSAMERICA EQUIPMENT FINANCIAL SERVICES CORPORATION, as a Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
------------------------------
Title: Vice President
------------------------------
[Credit Agreement]
CASINO USA, INC., as a Lender
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
------------------------------
Title: President
------------------------------
[Credit Agreement]
BNP PARIBAS, as a Lender
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
------------------------------
Title: Managing Director
------------------------------
By: /s/ X. Xxxxxxx
-------------------------------
Name: X. Xxxxxxx
------------------------------
Title: Managing Director
------------------------------
[Credit Agreement]
Name and Address of Lenders Amount/Percentage
---------------------------- -----------------
BNP Paribas $ 3,500,000.00 4.21%
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Casino USA, Inc. $16,100,000.00 19.37%
000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Fleet Capital Corporation $13,155,737.70 15.83%
Xxx Xxxxxxxxx Xxxxx, 0/xx/ Xxxxx
Mail Code: REDE030702C
Xxxxxxxxxx, XX 00000
Attention: Senior Credit Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
GMAC Business Credit, LLC $21,926,229.51 26.39%
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Natexis Banques Populaires $5,262,295.08 6.33%
0000 Xxxxxx xx xxx Xxxxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Rabobank International $13,155,737.71 15.83%
Four Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Transamerica Equipment Financial Services Corporation $10,000,000.00 12.03%
0000 Xxxxxxxx Xxxxx, Xxxxx 0000X
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TOTAL: $83,100,000.00 100%
B-27
