97
EXHIBIT 20.2
LOAN AGREEMENT
(Funding)
THIS LOAN AGREEMENT (this "Agreement") is made as of April 21,
2000, by and between FFCA FUNDING CORPORATION, a Delaware orporation
("FFCA"), whose address is ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, and UNI REALTY OF LUZERNE, L.P., a Delaware limited
partnership ("Debtor"), whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ 168015690.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms
used in this Agreement shall have the meanings set forth in Section
1. Debtor has requested from FFCA, and applied for, the Loans to
provide long-term financing for the Premises, and for no other
purpose whatsoever. Each Loan will be evidenced by a Note and
secured by a first priority security interest in the corresponding
Premises pursuant to a Mortgage. FFCA has committed to make the
Loans pursuant to the terms and conditions of the Commitment, this
Agreement and the other Loan Documents.
AGREEMENT:
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. DEFINITIONS. The following terms shall have the following
meanings for all purposes of this Agreement:
"Action" has the meaning set forth in Section 10.A(4).
"Affiliate" means any Person which directly or indirectly
controls, is under common control with, or is controlled by any other
Person. For purposes of this definition, "controls", "under common
control with" and "controlled by" means the possession, directly or
indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether
through ownership of voting securities or otherwise.
"Business Day" means any day on which FFCA is open for business
other than a Saturday, Sunday or a legal holiday, ending at 5:00 PM
Phoenix, Arizona time.
"Capital Lease" has the meaning set forth in Section 7.B.
"Closing" has the meaning set forth in Section 4.
"Closing Date" has the meaning set forth in Section 4.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec.
101 et seq., as amended.
98
"Commitment" means that certain Commitment Letter dated February
4, 2000 (as amended February 28, 2000), between FFCA and Lessee, and
any amendments or supplements thereto.
"Counsel" means legal counsel to Debtor and Lessee, licensed in
the state(s) in which (i) the Premises are located, (ii) Debtor and
Lessee are incorporated or formed and (iii) Debtor and Lessee reside
or maintain their chief executive offices, as selected by Debtor and
approved by FFCA.
"Debt" has the meaning set forth in Section 7.B.
"Debtor Entities" means, collectively, Debtor and Lessee and any
Affiliate of Debtor and Lessee.
"Default Rate" has the meaning set forth in the Notes.
"Depreciation and Amortization" has the meaning set forth in
Section 7.B.
"Disclosures" has the meaning set forth in Section 14.P.
"Environmental Condition" means any condition with respect to
soil, surface waters, groundwatrs, land, stream sediments, surface or
subsurface strata, ambient air and any environmental medium
comprising or surrounding any of the Premises, whether or not yet
discovered, which could or does result in any damage, loss, cost,
expense, claim, demand, order or liability to or against Debtor,
Lessee or FFCA by any third party (including, without limitation, any
Governmental Authority), including, without limitation, any condition
resulting from the operation of Debtor's or Lessee's business at the
Premises and/or the operation of the business of any other property
owner or operator in the vicinity of the Premises and/or any activity
or operation formerly conducted by any person or entity on or off the
Premises.
"Environmental Indemnity Agreement" or "Environmental Indemnity
Agreements" means, as the context may require, the environmental
indemnity agreement dated as of the date of this Agreement to be
executed by Debtor for the benefit of the Indemnified Parties and
such other parties as are identified in such agreement with respect
to a Premises or the environmental indemnity agreements dated as of
the date of this Agreement to be executed by Debtor for the benefit
of the Indemnified Parties and such other parties as are identified
in such agreement with respect to all of the Premises, as the same
may be amended from time to time. An Environmental Indemnity
Agreement will be executed for each Premises.
"Environmental Insurer" means American International Specialty
Lines Insurance Company or such other environmental insurance company as
FFCA may select.
"Environmental Laws" means any present and future federal, state
and local laws, statutes, ordinances, rules, regulations and the like, as well
as common law, relating to Hazardous Materials, Regulated Substances or USTs
and/or the protection of human health or the environment by reason of a Release
or a Threatened Release of Hazardous Materials or Regulated Substances or
relating to liability for or costs of Remediation or prevention of Releases.
"Environmental Laws" includes, but is not limited to, the following statutes, as
amended, any
2
99
successor thereto, and any regulations, rulings, orders or decrees
promulgated pursuant thereto, and any state or local statutes, ordinances,
rules, regulations and the like addressing similar issues: the Comprehensive
Environmental Response, Compensation and Liability Act;
the Emergency Planning and Community Right-to-Know Act; the Hazardous
Materials Transportation Act; the Resource Conservation and Recovery
Act (including but not limited to Subtitle I relating to USTs); the
Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the
Toxic Substances Control Act; the Safe Drinking Water Act; the
Occupational Safety and Health Act; the Federal Water Pollution
Control Act; the Federal Insecticide, Fungicide and Rodenticide Act;
the Endangered Species Act; the National Environmental Policy Act;
and the River and Harbors Appropriation Act. "Environmental Laws"
also includes, but is not limited to, any present and future federal,
state and local laws, statutes, ordinances, rules, regulations and
the like, as well as common law: conditioning transfer of property
upon a negative declaration or other approval of a Governmental
Authority of the environmental condition of the property; requiring
notification or disclosure of Releases or other environmental
condition of the Premises to any Governmental Authority or other
person or entity, whether or not in connection with transfer of title
to or interest in property; imposing conditions or requirements
relating to Hazardous Materials, Regulated Substances or USTs in
connection with permits or other authorization for lawful activity;
relating to nuisance, trespass or other causes of action related to
Hazardous Materials, Regulated Substances or USTs; and relating to
wrongful death, personal injury, or property or other damage in
connection with the physical condition or use of the Premises by
reason of the presence of Hazardous Materials, Regulated Substances
or USTs in, on, under or above the Premises.
"Environmental Policies" means environmental insurance policies
issued by Environmental Insurer to FFCA with respect to the Premises, which
Environmental Policies shall be in form and substance satisfactory to FFCA in
its sole discretion.
"Equipment Payment Amount" has the meaning set forth in Section
7.B.
"Event of Default" has the meaning set forth in Section 10.
"FCCR Amount" has the meaning set forth in Section 10.A(6).
"Fee" means an underwriting, valuation, processing and
commitment fee equal to 1.0% of the sum of the Loan Amounts for all of the
Premises, which Fee shall be payable as set forth in Section 3.
"FFCA Payments" has the meaning set forth in Section 7.B.
"FFCA Entities" means, collectively, FFCA, Franchise Finance and
any Affiliate of FFCA or Franchise Finance.
"Fixed Charge Coverage Ratio" has the meaning set forth in
Section 7.B.
"Franchise Finance" means Franchise Finance Corporation of
America, a Delaware corporation, and its successors.
"GAAP" means generally accepted accounting principles
consistently applied.
3
100
"Governmental Authority" means any governmental authority,
agency, department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the state(s) where the
Premises are located or any political subdivision thereof.
"Gross Gas Profits" has the meaning set forth in Section 7.B.
"Gross Sales" has the meaning set forth in Section 7.B.
"Hazardous Materials" means (a) any toxic substance or hazardous
waste, substance, solid waste or related material, or any pollutant or
contaminant; (b) radon gas, asbestos in any form which is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
which contains dielectric fluid containing levels of polychlorinated biphenyls
in excess of federal, state or local safety guidelines, whichever are more
stringent, or any petroleum product; (c) any substance, gas, material or
chemical which is or may be defined as or included in the definition of
"hazardous substances," "toxic substances," "hazardous materials," "hazardous
wastes," "regulated substances" or words of similar import under any
Environmental Laws; and (d) any other chemical, material, gas or substance the
exposure to or release of which is or may be prohibited, limited or regulated by
any Governmental Authority that asserts or may assert jurisdiction over the
Premises or the operations or activity at the Premises, or any chemical,
material, gas or substance that does or may pose a hazard to the health and/or
safety of the occupants of the Premises or the owners and/or occupants of
property adjacent to or surrounding the Premises.
"Indemnified Parties" has the meaning set forth in Section 12.
"Interest Expense" has the meaning set forth in Section 7.B.
"Lessee" means Uni-Marts, Inc., a Delaware corporation, and its
successors and permitted assigns.
"Loan" or "Loans" means, as the context may require, the loan
for each Premises, or the loans for all of the Premises, described in Section
2.
"Loan Amount" or "Loan Amounts" means, as the context may
require, the aggregate amount set forth in Section 2 or, with respect to each
Premises, the individual amount set forth in Exhibit A.
"Loan Documents" means, collectively, this Agreement, the Notes,
the Mortgages, the Environmental Indemnity Agreements, the UCC-1
Financing Statements and all other documents, instruments and agreements
executed in connection therewith or contemplated thereby.
"Loan Pool" means:
(i) in the context of a Securitization, any pool or group of
loans that are a part of such Securitization;
4
101
(ii) in the context of a Transfer, all loans which are sold,
transferred or assigned to the same transferee; and
(iii) in the context of a Participation, all loans as to which
participating interests are granted to the same participant.
"Lost Note" has the meaning set forth in Section 7.C.
"Master Lease" means the lease between Debtor, as lessor, and
Lessee, as lessee, with respect to all of the Premises, as the same may be
amended from time to time.
"Material Adverse Effect" means a material adverse effect on (i)
the business, condition, worth or operations of Debtor, Lessee, or any or
all of the Premises, including, without limitation, the operation of any of the
Premises as a Uni-Mart Facility and/or the value of any or all of the Premises,
or (ii) Debtor's ability to perform the obligations under the Loan Documents.
"Memoranda" has the meaning set forth in Section 9.K.
"Modified FCCR Amount" has the meaning set forth in Section
10.A(6).
"Mortgage" or "Mortgages" means, as the context may require, the
deed of trust or mortgage dated as of the date of this Agreement to be
executed by Debtor for the benefit of FFCA with respect to a Premises or the
deeds of trust or mortgages dated as of the date of this Agreement to be
executed by Debtor for the benefit of FFCA with respect to all of the Premises,
as the same may be amended from time to time. A Mortgage will be executed for
each Premises.
"Net Income" has the meaning set forth in Section 7.B.
"Note" or "Notes" means, as the context may require, the
promissory note dated as of the date of this Agreement to be executed by Debtor
in favor of FFCA evidencing a Loan with respect to a Premises or the promissory
notes dated as of the date of this Agreement to be executed by Debtor in favor
of FFCA evidencing the Loans with respect to all of the Premises, as the same
may be amended, restated and/or substituted from time to time,
including, without limitation, as a result of the payment of the FCCR
Amount or the Modified FCCR Amount pursuant to Section 10. A Note
will be executed for each Premises in the Loan Amount corresponding
to such Premises.
"Operating Lease Expense" has the meaning set forth in Section
7.B.
"Other Agreements" means, collectively, all agreements and instruments
between, among or by (1) any of the Debtor Entities, and, or for the benefit of,
(2) any of the FFCA Entities, including, without limitation, promissory notes
and guaranties; provided, however, the term "Other Agreements" shall not include
the agreements and instruments defined as the Loan Documents.
"Participation" means one or more grants by FFCA or any of the other FFCA
Entities to a third party of a participating interest in notes evidencing
5
102
obligations to repay secured or unsecured loans owned by FFCA or any of the
other FFCA Entities or any or all servicing rights with respect thereto.
"Permitted Amounts" means, with respect to any given level of Hazardous
Materials or Regulated Substances, that level or quantity of Hazardous Materials
or Regulated Substances in any form or combination of forms the use, storage or
release of which does not constitute a violation of or require regulation under
any Environmental Laws and is customarily employed in the ordinary course of, or
associated with, similar businesses located in the states in which the Premises
are located.
"Permitted Exceptions" means those recorded easements,
restrictions, liens and encumbrances set forth as exceptions in the
title insurance policies issued by Title Company to FFCA and approved
by FFCA in connection with the Loans and the Third Party Leases.
"Person" means any individual, corporation, partnership, limited liability
company, trust, unincorporated organization, Governmental Authority
or any other form of entity.
"Premises" means the parcel or parcels of real estate corresponding to the
FFCA File Numbers and addresses identified on Exhibit A attached
hereto, together with all rights, privileges and appurtenances
associated therewith and all buildings, fixtures and other
improvements now or hereafter located thereon. As used herein,
the term "Premises" shall mean either a singular property or all
of the properties collectively, as the context may require.
"Premises County" means Luzerne County, Pennsylvania.
"Questionnaires" means the environmental questionnaires completed by
Debtor or Lessee with respect to the Premises and submitted to Environmental
Insurer in connection with the issuance of the Environmental
Policies.
"Regulated Substances" means "petroleum" and "petroleum-based substances"
or any similar terms described or defined in any Environmental Laws and any
applicable federal, state, county or local laws applicable to or regulating
USTs.
"Release" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying,
escaping, dumping, disposing or other movement of Hazardous Materials, Regulated
Substances or USTs.
"Remediation" means any response, remedial, removal, or
corrective action, any activity to cleanup, detoxify, decontaminate,
contain or otherwise remediate any Hazardous Material, Regulated
Substances or USTs, any actions to prevent, cure or mitigate any
Release, any action to comply with any Environmental Laws or with any
permits issued pursuant thereto, any inspection, investigation,
study, monitoring, assessment, audit, sampling and testing,
laboratory or other analysis, or any evaluation relating to any
Hazardous Materials, Regulated Substances or USTs.
"Securitization" means one or more sales, dispositions,
transfers or assignments by FFCA or any of the other FFCA Entities to
a special purpose corporation, trust or other entity identified by
FFCA or any of the other FFCA Entities of notes evidencing
obligations to repay secured or unsecured loans owned
6
103
by FFCA or any of the other FFCA Entities (and, to the extent applicable, the
subsequent sale, transfer or assignment of such notes to another special purpose
corporation, trust or other entity identified by FFCA or any of the other FFCA
Entities), and the issuance of bonds, certificates, notes or other instruments
evidencing interests in pools of such loans, whether in connection with a
permanent asset securitization or a sale of loans in anticipation of a permanent
asset securitization. Each Securitization shall be undertaken in accordance
with all requirements which may be imposed by the investors or the rating
agencies involved in each such sale, disposition, transfer or assignment or
which may be imposed by applicable securities, tax or other laws or regulations,
including, without limitation, laws relating to FFCA's status as a real estate
investment trust.
"Selected Premises" has the meaning set forth in Section
10.A(6).
"Subject Premises" has the meaning set forth in Section 10.A(6).
"Substitute Documents" has the meaning set forth in Section 13.
"Substitute Premises" means one or more parcels of real property
substituted for a Premises in accordance with the requirements of
Section 13, together with all rights, privileges and appurtenances
associated therewith, and all buildings, improvements and fixtures
located thereon. For purposes of clarity, where two or more parcels
of real property comprise a Substitute Premises, such parcels or
interests shall be aggregated and deemed to constitute the Substitute
Premises for all purposes of this Agreement.
"Substitute Premises Permitted Exceptions" has the meaning set
forth in Section 13 .
"Third Party Leases" means the leases for certain Premises set forth on
Exhibit A-1, attached hereto, and any replacement or renewal leases for the
space leased pursuant to the leases listed on Exhibit A-1.
"Threatened Release" means a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the soil, surface waters,
groundwater, land, stream sediments, surface or subsurface strata, ambient air
or any other environmental medium comprising or surrounding the Premises which
may result from such Release.
"Title Company" means the title insurance company described in
Section 4.
"Transfer" means one or more sales, transfers or assignments by FFCA or
any of the other FFCA Entities to a third party of notes evidencing obligations
to repay secured or unsecured loans owned by FFCA or any of the other FFCA
Entities or any or all servicing rights with respect thereto.
"UCC-1 Financing Statements" means such UCC-1 Financing
Statements as FFCA shall require to be executed and delivered by
Debtor with respect to the transactions contemplated by this
Agreement.
7
104
"Uni-Mart Facility" means a Uni-Mart or ▇▇▇▇▇▇▇ convenience
store with or without gasoline station, as noted on Exhibit A, and
such other ancillary uses permitted by Third Party Leases that are
not inconsistent with the operations of such facilities.
"USTs" means any one or combination of tanks and associated
piping systems used in connection with the storage, dispensing and
general use of Regulated Substances.
2. TRANSACTION. On the terms and subject to the conditions set forth
in the Loan Documents, FFCA shall make the Loans. The Loans will be evidenced
by the Notes and secured by the Mortgages. Debtor shall repay the outstanding
principal amount of the Loans together with interest thereon in the manner and
in accordance with the terms and conditions of the Notes and the other Loan
Documents. The aggregate Loan Amount shall be $22,325,000.00, allocated among
the Premises as set forth on the attached Exhibit A. The Loans shall be
advanced at the Closing in cash or otherwise immediately available funds subject
to any prorations and adjustments required by this Agreement. The Premises
shall be leased to the Lessee pursuant to the Master Lease and, at Closing,
Debtor shall assign the Master Lease to FFCA pursuant to the Mortgages.
3. UNDERWRITING, VALUATION, PROCESSING AND COMMITMENT FEE. Debtor paid
FFCA a portion of the Fee pursuant to the Commitment, and such portion was
deemed fully earned when received. The remainder of the Fee shall be paid at
the Closing and shall be deemed nonrefundable and fully earned upon the Closing.
The Fee constitutes FFCA's underwriting, valuation, processing and commitment
fee. The portion of the Fee paid and the balance due at Closing shall be
adjusted down (and returned or credited as appropriate) to reflect a Fee equal
to 1% of the actual Loan Amounts. In the event the transaction set forth in
this Agreement fails to close due to a breach or default by Debtor under this
Agreement, FFCA shall retain the portion of the Fee received by FFCA (without
affecting or limiting FFCA's remedies set forth in this Agreement).
4. CLOSING. (a) Each Loan shall be closed (the "Closing")
contemporaneously with the satisfaction of all of the terms and conditions
contained in this Agreement, but in no event shall the date of the Closing be
extended beyond April 20, 2000, unless such extension shall be approved by FFCA
in its sole discretion (the date on which the Closing shall occur is referred to
herein as the "Closing Date").
b) FFCA has ordered a title insurance commitment for each
Premises from Lawyers Title Insurance Corporation ("Title Company").
Prior to the Closing Date, the parties hereto shall deposit with
Title Company all documents and moneys necessary to comply with their
obligations under this Agreement. All
costs of such transaction shall be borne by Debtor, including,
without limitation, the cost of title insurance and all endorsements
required by FFCA, survey charges, UCC and litigation search charges,
the attorneys' fees of Debtor, attorneys' fees and expenses of FFCA,
the cost of Environmental Policies to be delivered pursuant to
Section 9.E, FFCA's in-house site inspection costs and fees, stamp
taxes, mortgage taxes, transfer fees, escrow and recording fees and
site inspection fees for the Premises. All real and personal
property and other applicable taxes and assessments and other charges
relating to the Premises which are due and payable on or prior to the
Closing Date as well as taxes and assessments due and payable
subsequent to the Closing Date but which Title Company requires to be
paid at
8
105
Closing as a condition to the issuance of the title insurance policy described
in Section 9.C, shall be paid by Debtor at or prior to the Closing. The Closing
documents shall be dated as of the Closing Date.
Debtor and FFCA hereby employ Title Company to act as escrow
agent in connection with the transaction described in this Agreement.
Title Company shall not cause the transaction to close unless and
until it has received written instructions from FFCA and Debtor to do
so. Debtor and FFCA will deliver to Title Company all documents, pay
to Title Company all sums and do or cause to be done all other things
necessary or required by this Agreement, in the reasonable judgment
of Title Company, to enable Title Company to comply herewith and to
enable any title insurance policy provided for herein to be issued. Title
Company is authorized to pay, from any funds held by it for FFCA's or Debtor's
respective credit all amounts necessary to procure the delivery of
such documents and to pay, on behalf of FFCA and Debtor, all charges
and obligations payable by them, respectively. Debtor will pay all
charges payable by it to Title Company. Title Company is authorized,
in the event any conflicting demand is made upon it concerning these
instructions or the escrow, at its election, to hold any documents
and/or funds deposited hereunder until an action shall be brought in
a court of competent jurisdiction to determine the rights of Debtor
and FFCA or to interplead such documents and/or funds in an action
brought in any such court. Deposit by Title Company of such
documents and funds, after deducting therefrom its charges and its
expenses and attorneys' fees incurred in connection with any such
court action, shall relieve Title Company of all further liability
and responsibility for such documents and funds. Title Company's
receipt of this Agreement and opening of an escrow pursuant to this
Agreement shall be deemed to constitute conclusive evidence of Title
Company's agreement to be bound by the terms and conditions of this
Agreement pertaining to Title Company. Disbursement of any funds
shall be made by wire transfer, as directed by FFCA and Debtor.
Title Company shall be under no obligation to disburse any funds
represented by check or draft, and no check or draft shall be payment
to Title Company in compliance with any of the requirements hereof,
until it is advised by the bank in which such check or draft is
deposited that such check or draft has been honored. Title Company
is authorized to act upon any statement furnished by the holder or
payee, or a collection agent for the holder or payee, of any lien on
or charge or assessment in connection with the Premises, concerning
the amount of such charge or assessment or the amount secured by such
lien, without liability or responsibility for the accuracy ofsuch
statement. The employment of Title Company as escrow agent shall not
affect any rights of subrogation under the terms of any title
insurance policy issued pursuant to the provisions thereof.
5. REPRESENTATIONS AND WARRANTIES OF FFCA. The representations and
warranties of FFCA contained in this Section are being made by FFCA as of the
date of this Agreement and the Closing Date to induce Debtor to enter into this
Agreement and consummate the transactions contemplated herein, and Debtor has
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. FFCA represents and
warrants to Debtor as follows:
A. Organization of FFCA. FFCA has been duly formed, is validly
existing and has taken all necessary action to authorize the execution,
delivery and performance by FFCA of this Agreement.
9
106
B. Authority of FFCA. The person who has executed this Agreement
on behalf of FFCA is duly authorized so to do.
C. Enforceability. Upon execution by FFCA, this Agreement shall
constitute the legal, valid and binding obligation of FFCA, enforceable
against FFCA in accordance with its terms.
All representations and warranties of FFCA made in this Agreement shall
survive the Closing.
6. REPRESENTATIONS AND WARRANTIES OF DEBTOR. The representations and
warranties of Debtor contained in this Section are being made by Debtor as of
the date of this Agreement and the Closing Date to induce FFCA to enter into
this Agreement and consummate the transactions contemplated herein, and FFCA has
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. Debtor represents
and warrants to FFCA as follows:
A. Information and Financial Statements. Debtor has delivered to
FFCA financial statements (either audited financial statements or, if
Debtor does not have audited financial statements, certified Financial
statements) and certain other information concerning itself and
Lessee, which financial statements and other information are true,
correct and complete in all material respects; and no material adverse
change has occurred with respect to any such financial
statements and other information provided to FFCA since the date
such financial statements and other information were prepared
or delivered to FFCA. Debtor understands that FFCA is relying
upon such financial statements and information and Debtor
represents that such reliance is reasonable. All such financial
statements were prepared in accordance with GAAP and accurately
reflect as of the date of this Agreement and the Closing Date,
the financial condition of each individual or entity to which
they pertain.
B. Organization and Authority. (1) Each of Debtor and
Lessee is duly organized or formed, validly existing and in good
standing under the laws of its state of incorporation or
formation, and qualified as a foreign corporation, partnership
or limited liability company, as applicable, to do business in
any jurisdiction where such qualification is required. All
necessary corporate, partnership or limited liability company
action has been taken to authorize the execution, delivery and
performance of this Agreement and the other Loan Documents.
(2) The person(s) who have executed this Agreement on behalf of
Debtor are duly authorized so to do.
C. Enforceability of Documents. Upon execution by Debtor
and Lessee this Agreement and the other Loan Documents shall
constitute the legal, valid and binding obligations of Debtor
and Lessee, respectively, enforceable against Debtor and Lessee in
accordance with their respective terms.
D. Litigation. There are no suits, actions, proceedings or
investigations pending or threatened against or involving Debtor, Lessee or
10
107
the Premises before any arbitrator or Governmental Authority which might
reasonably result in any Material Adverse Effect.
E. Absence of Breaches or Defaults. Debtor and Lessee are not,
and the authorization, execution, delivery and performance of
this Agreement and the other Loan Documents will not result, in
any breach or default under any other document, instrument or
agreement to which Debtor or Lessee is a party or by which
Debtor, Lessee, the Premises or any of the
property of Debtor or Lessee is subject or bound. The
authorization, execution, delivery and performance of this
Agreement and the other Loan Documents will not violate any
applicable law, statute, regulation, rule, ordinance, code, rule
or order.
F. Utilities. The Premises are served by ample public
utilities to permit full utilization of the Premises for their
intended purpose and all utility connection fees and use charges will
have been paid in full.
G. Intended Use and Zoning; Compliance With Laws. Debtor
intends to use each of the Premises solely for the operation of
a Uni-Mart Facility, and related ingress, egress and parking,
and for no other purposes. Except as disclosed on Exhibit B,
attached hereto, each of the Premises is in compliance with all
applicable zoning requirements and the use of each of the
Premises as a Uni-Mart Facility does not constitute a
nonconforming use under applicable zoning requirements, except
where such noncompliance will not have a Material Adverse
Effect. Except as disclosed on Exhibit B, attached hereto, the
Premises comply with all applicable statutes, regulations,
rules, ordinances, codes, licenses, permits, orders and
approvals of each Governmental Authority having jurisdiction
over the remises, including, without limitation, all health,
building, fire, safety and other codes, ordinances and
requirements, all applicable standards of the National Board of
Fire Underwriters and the Americans With Disabilities Act of
1990 and all policies or rules of common law, in each case, as
amended, and any judicial or administrative interpretation
thereof, ncluding any judicial order, consent, decree or
judgment applicable to Debtor or Lessee, except where such
noncompliance will not have a Material Adverse Effect.
H. Area Development; Wetlands. No condemnation or eminent
domain proceedings affecting the Premises have been commenced or, to
the best of Debtor's knowledge, are contemplated. To the best
of Debtor's knowledge, the areas where the Premises are located
have not been declared blighted by any Governmental Authority.
The Premises and/or the real property bordering the Premises are
not designated by any Governmental Authority as a wetlands.
I. Licenses and Permits; Access. Debtor or Lessee has all
Required licenses and permits, both governmental and private, to
use and operate each Premises as a Uni-Mart Facility, except to
the extent the failure to have such licenses or permits will not
have a Material Adverse Effect. There are adequate rights of
access to public roads and ways available to the Premises for
unrestricted ingress and egress and otherwise to permit full
utilization of the Premises for their intended purposes and all
such public roads and ways have been completed and dedicated to
public use.
11
108
J. Condition of Premises. The Premises, including the equipment
located thereon, are of good workmanship and materials, fully equipped and
operational, in good condition and repair, free from structural defects,
clean, orderly and sanitary, safe, well-lit, landscaped, decorated,
attractive and well-maintained, except where the failure of the Premises
or equipment to be in such condition will not have a Material
Adverse Effect.
K. Environmental. Debtor is fully familiar with the
present use of the Premises, and, after due inquiry, Debtor has
becomegenerally familiar with the prior uses of the Premises. Except
as disclosed in the Questionnaires, no Hazardous Materials or Regulated
Substances have been used, handled, manufactured, generated, produced,
stored, treated, processed, transferred or disposed of at or on the
Premises, except in Permitted Amounts and in compliance with
Environmental Laws, except to the extent such Hazardous Materials or
Regulated Substances would not have a Material Adverse Effect, and
no Release or Threatened Release has occurred
at or on the Premises which would have a Material Adverse
Effect. Except as disclosed in the Questionnaires, the
activities, operations and business undertaken on, at or about
the Premises, including, but not limited to,
any past or ongoing alterations or improvements at the
Premises, are and have been at all times, in compliance with all
Environmental Laws except where such noncompliance would not
have a Material Adverse Effect. No further action is required
to remedy any Environmental Condition or violation of, or to be
in full compliance with, any Environmental Laws, and no lien has
been imposed on the Premises by any Governmental Authority in
connection with any Environmental Condition, the violation or
threatened violation of any Environmental Laws or the presence
of any Hazardous Materials, Regulated Substances or USTs on or
off the Premises.
Except as disclosed in the Questionnaires, there is no pending
or threatened litigation or proceeding before any Governmental
Authority in which any person or entity alleges the violation or
threatened violation of any Environmental Laws or the presence,
Release, Threatened Release or placement on or at the Premises
of any Hazardous Materials, Regulated Substances or USTs, or of
any facts which would give rise to any such action, nor has
Debtor except as disclosed in the Questionnaires (a) received
any notice (and Debtor has no actual knowledge) that any
Governmental Authority or any employee or agent thereof has
determined, threatens to determine or requires an investigation
to determine that there has been a violation of any
Environmental Laws at, on or inconnection with the Premises or
that there exists a presence, Release, Threatened Release or
placement of any Hazardous Materials, Regulated Substances or
USTs on or at the Premises, or the use, handling, manufacturing,
generation, production, storage, treatment, processing,
transportation or disposal of any Hazardous Materials, Regulated
Substances or USTs at or on the Premises; (b) received any
notice under the citizen suit provision of any Environmental Law
in connection with the Premises or any facilities, operations or
activities conducted thereon, or any business conducted in
connection therewith; or (c) received any request for
inspection, request for information, notice, demand,
administrative inquiry or any formal or informal complaint or
claim with respect to or in connection with the violation or
threatened violation of any Environmental Laws or existence of
Hazardous Materials, Regulated Substances or USTs relating to
the Premises or any facilities, operations or
12
109
activities conducted thereon or any business conducted in
connection therewith.
FFCA has charged Debtor a fee for the Environmental Policies.
Debtor acknowledges that the Environmental Policies are for the sole
protection of FFCA and will not protect Debtor or provide Debtor with any
coverage thereunder.
To the best of Debtor's knowledge, the information and
disclosures in the Questionnaires is true, correct and complete
in all material respects, FFCA and Environmental Insurer may
rely on such information and disclosures, and the person or
persons executing the Questionnaires were duly authorized to do
so. Debtor acknowledges and agrees that Environmental Insurer
may rely on the environmental representations and warranties set
forth in the preceding subsection K, that Environmental Insurer
is an intended third-party beneficiary of such representations
and warranties and that Environmental Insurer shall have all
rights and remedies available at law or in equity as a result of
a breach of such representations and warranties, including, to
the extent applicable, the right of subrogation.
L. Title to Premises; First Priority Lien. Fee title to each of
the Premises is vested in Debtor, free and clear of all liens,
encumbrances, charges and security interests of any nature
whatsoever, except the Permitted Exceptions. Upon Closing, FFCA
shall have a first priority lien upon and security interest in
each of the Premises pursuant to the Mortgages and the UCC-1
Financing Statements.
M. No Other Agreements and Options. Neither Debtor, Lessee nor the
Premises are subject to any commitment, obligation, or agreement,
including, without limitation, any right of first refusal, option to
purchase or lease granted to a third party, which could or would prevent or
hinder FFCA in making the Loans or exercising any of its rights or
remedies under the Loan Documents or prevent or hinder Debtor
from fulfilling its obligations under this Agreement or the
other Loan Documents.
N. No Mechanics' Liens. There are no outstanding accounts
payable which if not paid timely would have a Material Adverse Effect,
nor are there any mechanics' liens, or rights to claim a
mechanics' lien in favor of any materialman, laborer, or any other person
or entity in connection with labor or materials furnished to or performed
on any portion of the Premises and no work has been performed or is
in progress nor have materials been supplied to the Premises or
agreements entered into for work to be performed or materials to
be supplied to the Premises prior to the date hereof, which will
not have been fully paid for on or before the Closing Date, or
which might provide the basis for the filing of such liens
against the Premises or any portion thereof, the existence,
nonpayment or filing of which would have a Material Adverse
Effect; Debtor shall be responsible for any and all claims for
mechanics' liens and accounts payable that have arisen or may
subsequently arise due to agreements entered into for and/or any
work performed on, or materials supplied to the Premises prior
to the Closing Date; Debtor has made no contract or arrangement
of any kind the performance of which by the other party thereto
would give rise to a lien on the Premises, the nonpayment of
which would have a Material Adverse Effect; and Debtor shall and
does hereby agree to defend, indemnify and forever hold
13
110
FFCA and FFCA's designees harmless for, from and against any and all such
mechanics' lien claims, accounts payable or other commitments
relating to the Premises.
O. No Reliance. Debtor acknowledges that FFCA did not prepare or
assist in the preparation of any of the projected financial information
used by Debtor in analyzing the economic viability and feasibility of
the transaction contemplated by this Agreement. Furthermore,
Debtor acknowledges that it has not relied upon, nor may it
hereafter rely upon, the analysis undertaken by FFCA in
determining the Loan Amounts, and such analysis will not be made
available to Debtor.
P. Nonconsolidation. (1) Debtor maintains correct and
complete books and records of account separate from all other
Persons. Where necessary or appropriate, Debtor has disclosed
the nature of the transaction contemplated by the Loan Documents
and Debtor's independent status to its creditors. The Premises
represent all of the assets owned or leased by Debtor as of the
date hereof, and Debtor has not commingled its assets and its
liabilities with those of any other Person.
(2) Debtor maintains its own checking account or accounts
with commercial banking institutions separate from other
Persons.
(3) To the extent that Debtor shares the same employees
with other Persons, the salaries of and the expenses related to
providing benefits to such employees have been fairly and
nonarbitrarily allocated among such Persons, with the result
that each such Person bears its fair share of the salary and
benefit costs associated with all such common employees.
(4) To the extent that Debtor jointly contracts with other
Persons to do business with vendors or service providers or to
share overhead expenses, the costs incurred in so doing are, and
at all times shall be, fairly and nonarbitrarily allocated among
such Persons, with the result that each such
Person bears its fair share of such costs. To the extent that
Debtor contracts or does business with vendors or service
providers where the goods or services provided are or shall be
partially for the benefit of other Persons, the costs incurred
in so doing are fairly and nonarbitrarily allocated to or among
such Persons for whose benefit the goods or services are
provided, with the result that each such Person bears its fair
share of such costs.
(5) To the extent that Debtor or other Persons have
offices in the same location, there is a fair, appropriate and
nonarbitrary allocation of overhead among them, with the result
that each such Person bears its fair share of such expenses.
(6) Debtor has not incurred any indebtedness, secured or
unsecured, direct or indirect, absolute or contingent,
including, without limitation, liability for the debts of any
other Person (and Debtor has not held itself out as being liable
for the debts of any other Person), other than the Loans and
trade and operational debt incurred in the ordinary course of
business with trade creditors and in amounts as are normal and
reasonable under the circumstances. Debtor is not a guarantor
of any obligations.
14
111
(7) Debtor is not presently a party to a pledge of its
assets for the benefit of other Persons. Debtor has not made
any loans or advances to any third party (including any
Affiliate or constituent party of Debtor).
(8) Debtor has conducted its affairs strictly in
accordance with its organizational documents including Debtor's
corporate general partner's organizational documents and has observed all
necessary, appropriate and customary formalities.
(9) Debtor does not hold itself out to the public or to
any of its individual creditors as being a unified entity with
assets and liabilities in common with any other Person.
(10) Debtor (i) is solvent, (ii) is able to pay its
obligations as they become due and (iii) is not and shall not be
engaged in any business or
transaction for which its remaining capital is or may be
unreasonably small.
(11) Debtor has no actual intent to hinder, delay or
defraud creditors in connection with any of the transactions
contemplated herein or intent to incur (or belief that it is
incurring) debts beyond its ability to pay the same as they
mature.
(12) Debtor has not, as to itself or as to other Persons,
(a) commenced any case, proceeding or other action under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with
respect to Debtor or other Persons or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to Debtor or its debts
or other Persons or their debts or (b) sought appointment of a
receiver, trustee, custodian or other similar official for
Debtor or for all or any substantial part of its or other
Person's assets or made a general assignment for the benefit of
Debtor's creditors.
All representations and warranties of Debtor made in this
Agreement shall be and will remain true and complete in all respects
as of and subsequent to the Closing Date as if made and restated in
full as of such time and shall survive the Closing.
7. Covenants. Debtor covenants to FFCA from and after the
Closing Date
as follows:
A. Inspections. Debtor shall, at all reasonable times, (i) provide
FFCA and FFCA's officers, employees, agents, advisors,
attorneys, accountants, architects, and engineers with access to
the Premises, all drawings, plans, and specifications for the
Premises in possession of Debtor or Lessee, all engineering
reports relating to the Premises in the possession of Debtor or
Lessee, the files, correspondence and documents relating to the
Premises, and the financial books and records, including lists
of delinquencies, relating to the ownership, operation, and
maintenance of the Premises (including, without limitation, any
of the foregoing information stored in any computer files), (ii)
allow such persons to make such inspections, tests, copies, and
verifications as FFCA considers necessary without unreasonably
interrupting Debtor's business (to the extent reasonably
possible) and upon reasonable advance notice, and (iii) if
Debtor
15
112
is in breach of the Fixed Charge Coverage Ratio requirement set forth in
the following Subsection B, pay expenses reasonably incurred by FFCA from
time to time in conducting such inspections, tests, copies and
verifications upon demand (such amounts to bear interest at the Default
Rate if not paid upon demand until paid).
B. Fixed Charge Coverage Ratio. Until such time as all of Debtor's
obligations under the Notes and the other Loan Documents are
paid, satisfied and discharged in full, Debtor shall cause to be
maintained an aggregate Fixed Charge Coverage Ratio at all of
the Premises of at least 1.25:1, as determined on the last day
of each fiscal year of Debtor (the "Date of Determination").
For purposes of this Section, the term "Fixed Charge Coverage
Ratio" shall mean with respect to the twelve month period of
time immediately preceding the Date of Determination (a "Period
of Determination"), the ratio calculated for such period of
time, determined in accordance with GAAP, of (a) the sum of Net
Income, Depreciation and Amortization, Interest Expense and
Operating Lease Expense, less a corporate overhead allocation
(which shall equal the sum of 3% of Gross Sales and 3% of Gross
Gas Profits), to (b) the sum of the FFCA Payments, Operating
Lease Expense and the Equipment Payment Amount. For purposes of
this Section, the following terms shall be defined as set forth
below:
"Capital Lease" shall mean any lease of any property (whether
real, personal or mixed) by Lessee with respect to one or more of
the Premises which lease would, in conformity with GAAP, be
required to be accounted for as a capital lease on the
balance sheet of Lessee. The term "Capital Lease" shall not include
any operating lease.
"Debt" shall mean as directly related to all of the Premises
and the Period of Determination (i) indebtedness for borrowed money,
(ii) obligations evidenced by bonds, indentures, notes or similar
instruments, (iii) obligations to pay the deferred purchase price of
property or services, (iv) obligations under leases which should be,
in accordance with GAAP, accounted for as Capital Leases, and (v)
obligations under direct or indirect guarantees in respect of, and
obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds referred
to in clauses (i) through (iv) above.
"Depreciation and Amortization" shall mean with respect to all
of the Premises the depreciation and amortization accruing during
any Period of Determination with respect to Debtor as determined in
accordance with GAAP.
"Equipment Payment Amount" shall mean for any Period of
Determination the sum of all amounts payable during such Period of
Determination under all (i) leases for equipment located at one or
more of the Premises and (ii) all loans secured by equipment located
at one or more of the Premises.
"FFCA Payments" shall mean with respect to the Period of
Determination, the sum of all amounts payable under the Notes
16
113
excluding payment of any FCCR Amount or Modified FCCR Amount and any
other non-scheduled payment required or permitted hereunder.
"Gross Gas Profits" shall mean the difference between
(i) motor vehicle fuel sales or other income arising from
the sale of motor vehicle fuel at all of the Premises
during the Period of Determination, minus (ii) the sum of
sales tax and the actual costs paid by Debtor for the motor
vehicle fuel sold.
"Gross Sales" shall mean the difference between (i)
sales or other income arising from all business conducted
at all of the Premises (other than motor vehicle fuel sales
or other income arising from the sale of motor vehicle
fuel) by Lessee during the Period of Determination, minus
(ii) the sum of sales tax and any amounts received from not-
for-profit sales of all non-food items approved for use in
connection with promotional campaigns, if any, for all of
the Premises.
"Interest Expense" shall mean for any Period of
Determination, the sum of all interest accrued or which
should be accrued in respect of all Debt of Lessee
allocable to one or more of the Premises and all business
operations thereon during such period (including interest
attributable to Capital Leases), as determined in
accordance with GAAP.
"Net Income" shall mean with respect to the Period of
Determination, the aggregate net income or net loss of Lessee
allocable to all of the Premises. In determining the amount of
Net Income, (i) adjustments shall be made for nonrecurring gains
and losses allocable to the Period of Determination, (ii) deductions
shall be made for Depreciation and Amortization, Interest
Expense and Operating Lease Expense allocable to the Period
of Determination, and (iii) no deductions shall be made for
(x) income taxes or charges equivalent to income taxes
allocable to the Period of Determination, as determined in
accordance with GAAP, or (y) corporate overhead expense
allocable to the Period of Determination.
"Operating Lease Expense" shall mean the sum of all payments
and expenses incurred by Lessee under any operating leases with
respect to one or more of the Premises and the business operations
thereon during the Period of Determination, as determined in
accordance with GAAP.
Notwithstanding the foregoing, FFCA shall have the right to divide the
Loans (and the corresponding Loan Documents) into no more than three
(3) Loan Pools in connection with no more than three (3)
Securitizations, Participations or Transfers. If any Loan Pool
does not include all of the Loans, Debtor shall, upon notice
from FFCA, maintain with respect to the Loans in each Loan Pool
for which such notice is given an aggregate Fixed Charge
Coverage Ratio, as determined on the date set forth above, of at
least 1.25:1 for all of the Premises corresponding to the Loans
in such Loan Pool, which Fixed Charge Coverage Ratio requirement
shall be in addition to the requirement to maintain an aggregate
Fixed Charge Coverage Ratio of at least 1:25:1 for all of the
Premises as set forth above, and shall apply until such time as
all of the Debtor's obligations under the Notes and the other
Loan Documents corresponding to such Loans are paid, satisfied and
17
114
discharged in full. To the extent that an aggregate Fixed Charge
Coverage Ratio requirement is imposed by FFCA with respect to
the Loans in any Loan Pool, for the purposes of determining
whether or not such Fixed Charge Coverage Ratio requirement has
been satisfied, the definitions relating to the Fixed Charge
Coverage Ratio shall be deemed to be modified as applicable to
provide for the calculation of the aggregate Fixed Charge
Coverage Ratio for all of the Premises corresponding to such
Loan Pool rather than a calculation of the aggregate Fixed
Charge Coverage Ratio for all of the Premises.
C. Lost Note. Debtor shall, if any Note is mutilated,
destroyed, lost or stolen (a "Lost Note"), promptly deliver to
FFCA, upon receipt of an affidavit from FFCA stipulating that
such Note has been mutilated, destroyed, lost or stolen, in
substitution therefor, a new promissory note containing the same
terms and conditions as such Lost Note with a notation thereon
of the unpaid principal and accrued and unpaid interest. Debtor
shall provide fifteen (15) days' prior notice to FFCA before
making any payments to third parties in connection with a Lost
Note. Except as a result of the gross negligence or intentional
misconduct of Debtor, FFCA shall indemnify Debtor for all
reasonable costs, expenses, damages, claims and liabilities
incurred by Debtor as a result of a Lost Note.
D. Lease Modification. The Master Lease shall not be
modified, amended, terminated, cancelled or surrendered without
FFCA's prior written consent.
E. Nonconsolidation. (1) Debtor shall at all times
maintain correct and complete books and records of account
separate from all other Persons. Where necessary or
appropriate, Debtor shall disclose the nature of the transaction
contemplated by the Loan Documents and Debtor's independent
status to its creditors. Debtor shall not own or lease any
assets other than the Premises, nor engage in any business other
than owning and leasing the Premises, including financing the
Premises with FFCA. Debtor shall not commingle its assets and
its liabilities with those of any other Person.
(2) Debtor shall maintain its own checking account or
accounts with commercial banking institutions separate from
other Persons.
(3) To the extent that Debtor shares the same employees
with other Persons, the salaries of and the expenses related to
providing benefits to such employees, at all times shall be,
fairly and nonarbitrarily allocated among such Persons, with the
result that each such Person shall bear its fair share of the
salary and benefit costs associated with all such common
employees.
(4) To the extent that Debtor jointly contracts with other
Persons to do business with vendors or service providers or to
share overhead expenses, the costs incurred in so doing at all
times shall be, fairly and nonarbitrarily allocated among such
Persons, with the result that each such Person shall bear its
fair share of such costs. To the extent that Debtor contracts
or does business with vendors or service providers where the
goods or services provided are or shall be partially for the
benefit of other Persons, the costs incurred in so doing at all
times shall be, fairly and
18
115
nonarbitrarily allocated to or among such Persons for whose
benefit the goods or services are provided, with the result that
each such Person shall bear its fair share of such costs. All
transactions between Debtor and other Persons shall be only on
an arm's-length basis.
(5) To the extent that Debtor or other Persons have
offices in the same location, there shall be a fair, appropriate
and nonarbitrary allocation of overhead among them, with the
result that each such Person shall bear its fair share of such
expenses.
(6) Debtor shall not incur any indebtedness, secured or
unsecured, direct or indirect, absolute or contingent (including
guaranteeing any obligation or assuming liability for the debts
of any other Person and Debtor will not hold itself out as being
liable for the debts of any other Person), other than the Loans
and trade and operational debt incurred in the ordinary course
of business with trade creditors and in amounts as are normal
and reasonable under the circumstances. No indebtedness other
than the Loans may be secured (subordinate or pari passu) by the
Premises or any portion thereof.
(7) Debtor shall not enter into any contract or agreement
with any Affiliate of Debtor, any constituent party of Debtor or
any Affiliate of any constituent party of Debtor except upon
terms and conditions that are intrinsically fair and
substantially similar to those that would be available on an
armslength basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Debtor
shall not pledge, grant any security interest in, hypothecate or
otherwise encumber its assets for the benefit of any other
Persons.
(9) Debtor shall issue separate financial statements
prepared not less frequently than annually and prepared
according to GAAP.
(10) Debtor shall maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character
in light of its contemplated business operations.
(11) Debtor shall conduct its affairs strictly in accordance
with its organizational documents, including Debtor's corporate
general partner's organizational documents and shall observe all necessary,
appropriate and customary formalities. The books, records and accounts of
Debtor shall at all times be maintained in a manner permitting
the assets and liabilities of Debtor to be easily separated and
readily ascertained from those of any other Person and Debtor
shall file its own tax returns.
(12) Debtor shall not hold itself out to the public or to
any of its individual creditors as being a unified entity with
assets and liabilities in common with any other Person. Debtor
shall maintain and utilize separate stationery, invoices and
checks.
(13) Debtor shall not make any loans or advances to any
third party (including any Affiliate of Debtor or constituent
party of Debtor).
19
116
(14) Debtor shall not, as to itself or as to other Persons,
(i) commence any case, proceeding or other action under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with
respect to Debtor or other Persons or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to Debtor or its debts
or other Persons or their debts or (ii) seek appointment of a
receiver, trustee, custodian or other similar official for
Debtor or for all or any substantial part of its or other
Person's assets or make a general assignment for the benefit of
Debtor's creditors. Debtor shall not take any action in
furtherance of, or indicating its consents to, approval of or
acquiescence in, any of the acts set forth above. Debtor shall not be
unable to, or admit in writing its inability to, pay its debts.
F. Compliance with Third Party Leases. Debtor shall
comply with all terms, covenants and conditions set forth in
each of the Third Party Leases, timely. Debtor shall provide
FFCA with copies of all notices and demands delivered to Debtor
under any Third Party Leases that relate to the compliance of
Debtor with the Third Party Leases.
8. TRANSACTION CHARACTERIZATION. This Agreement is a contract to
extend a financial accommodation (as such term is used in the Code) for the
benefit of Debtor. It is the intent of the parties hereto that the business
relationship created by this Agreement, the Notes, the Mortgages and the other
Loan Documents is solely that of creditor and debtor and has been entered into
by both parties in reliance upon the economic and legal bargains contained in
the Loan Documents. None of the agreements contained in the Loan Documents is
intended, nor shall the same be deemed or construed, to create a partnership
(either de jure or de facto) between Debtor and FFCA, to make them joint
venturers, to make Debtor an agent, legal representative, partner, subsidiary or
employee of FFCA, nor to make FFCA in any way responsible for the debts,
obligations or losses of Debtor.
9. CONDITIONS OF CLOSING. The obligation of FFCA to
consummate the transaction contemplated by this Agreement is subject
to the fulfillment or waiver of each of the following conditions:
A. Title. Fee title to each of the Premises shall be
vested in Debtor, free of all liens, encumbrances, restrictions,
encroachments and easements, except the Permitted Exceptions and
the liens created by the Mortgages and the UCC-1 Financing
Statements. Upon Closing, FFCA will obtain a valid and perfected
first priority lien upon and security interest in each of the
Premises.
B. Condition of Premises. FFCA shall have inspected and
approved the Premises, the Premises shall be in good condition
and repair, free from structural defects, and of good workmanship and
materials, and the Premises shall be fully equipped and operational, clean,
orderly, sanitary, safe, well- lit, landscaped, decorated, attractive and
with a suitable layout, physical plant, traffic pattern and
location, all as determined by FFCA in its sole discretion,
except where the failure of the Premises to be in such condition
will not have a Material Adverse Effect.
20
117
C. Evidence of Title. FFCA shall have received for each
of the Premises a preliminary title report and irrevocable
commitment to insure title in the amount of the Loan relating to
such Premises, by means of a mortgagee's, ALTA extended coverage
policy of title insurance (or its equivalent, in the event such
form is not issued in the jurisdiction where the Premises is
located) issued by Title Company showing good and marketable fee
title in such Premises in Debtor, committing to insure FFCA's
first priority lien upon and security interest in such Premises
subject only to Permitted Exceptions, and containing such
endorsements as FFCA may require.
D. Survey. FFCA shall have received a current ALTA
survey of each of the Premises, the form and substance of which
shall be satisfactory to FFCA in its sole discretion. Debtor
shall have provided FFCA with evidence satisfactory to FFCA that
the location of each of the Premises is not within the 100year
flood plain or identified as a special flood hazard area as
defined by the Federal Emergency Management Agency, or if any
Premises is in such a flood plain or special flood hazard area,
Debtor shall provide FFCA with evidence of flood insurance
maintained on such Premises in amounts and on terms and
conditions satisfactory to FFCA.
E. Environmental. At Debtor's expense, FFCA shall have
received an Environmental Policy with respect to each of the
Premises, as required by FFCA in its sole discretion.
F. Zoning. Debtor shall have provided FFCA with evidence
satisfactory to FFCA that each of the Premises is properly zoned
for use as a UniMart Facility and that such use constitutes a
legal, conforming use under applicable zoning requirements.
G. Compliance With Representations, Warranties and
Covenants. All obligations of Debtor under this Agreement shall
have been fully performed and complied with, and no event shall
have occurred or condition shall exist which would, upon the
Closing Date, or, upon the giving of notice and/or passage of
time, constitute a breach or default hereunder or under the Loan
Documents or any other agreement between or among FFCA, Debtor or, Lessee
pertaining to the subject matter hereof, and no event shall have
occurred or condition shall exist or information shall have been
disclosed by Debtor or discovered by FFCA which has had or would
have a material adverse effect on the Premises, Debtor, Lessee
or FFCA's willingness to consummate the transaction contemplated
by this Agreement, as determined by FFCA in its sole and
absolute discretion.
H. Proof of Insurance. Debtor shall have delivered to FFCA
certificates of insurance or copies of insurance policies
showing that all insurance required by the Loan Documents and
providing coverage and limits satisfactory to FFCA are in full
force and effect.
I. Opinion of Counsel to Debtor and Lessee. Debtor and Lessee
shall have caused Counsel to prepare and deliver an opinion to
FFCA in form and substance satisfactory to FFCA and its counsel.
21
118
J. Availability of Funds. FFCA presently has sufficient funds to
Discharge its obligations under this Agreement. In the event
that the transaction contemplated by this Agreement does not
close on or before the date established for Closing under
Section 4(a) hereof, FFCA does not warrant that it will
thereafter have sufficient funds to consummate the transaction
contemplated by this Agreement.
K. Master Lease; Memoranda. Debtor and Lessee shall have executed
And delivered the Master Lease for all of the Premises and a
recordable memorandum of lease (collectively, the "Memoranda")
for each of the Premises.
L. Closing Documents. At or prior to the Closing Date, FFCA and/or
Debtor, as may be appropriate, shall execute and deliver or
cause to be executed and delivered to Title Company or FFCA, as
may be appropriate, all documents required to be delivered by
this Agreement, and such other documents, payments, instruments
and certificates, as FFCA may require in form acceptable to
FFCA, including, without limitation, the following:
(1) Notes;
(2) Mortgages;
(3) Proof of Insurance;
(4) Opinion of Counsel to Debtor and Lessee;
(5) Evidence of satisfactory zoning;
(6) UCC-1 Financing Statements;
(7) Environmental Indemnity Agreements;
(8) Master Lease and Memoranda;
(9) Certifications (Confession of Judgment); and
(10) Explanations and Waivers of Rights Regarding Confession of
Judgment.
Upon fulfillment or waiver of all of the above conditions, FFCA shall deposit
funds necessary to close this transaction with the Title Company and this
transaction shall close in accordance with the terms and conditions of this
Agreement.
10. DEFAULT AND REMEDIES. A. Each of the following shall be
deemed an event of default by Debtor (each, an "Event of Default"):
(1) If any representation or warranty of Debtor or Lessee
set forth in any of the Loan Documents is false in any respect
and such falsity would result in a Material Adverse Effect, or
if Debtor or Lessee renders any false statement or account in
any material respect.
(2) If any principal, interest or other monetary sum due
under the Notes, the Mortgages or any other Loan Document is not
paid within five days after the date when due; provided,
however, notwithstanding the occurrence of such an Event of
Default, FFCA shall not be entitled to exercise its rights and
remedies set forth below unless and until FFCA shall have given
Debtor notice thereof and a period of five days from the
delivery of such notice shall have elapsed without such Event of
Default being cured.
22
119
(3) If Debtor fails to observe or perform any of the other
covenants (except with respect to a breach of the Fixed Charge
Coverage Ratio, which breach is addressed in subitem (6) below),
conditions, or obligations of this Agreement; provided, however,
if any such failure does not involve the payment of any monetary
sum, is not willful or intentional, does not place any rights or
interest in collateral of FFCA in immediate jeopardy, and is
within the reasonable power of Debtor to promptly cure after
receipt of notice thereof, all as determined by FFCA in its
reasonable discretion, then such failure shall not constitute an
Event of Default hereunder, unless otherwise expressly provided
herein, unless and until FFCA shall have given Debtor notice
thereof and a period of 30 days shall have elapsed, during which
period Debtor may correct or cure such failure, upon failure of
which an Event of Default shall be deemed to have occurred
hereunder without further notice or demand of any kind being
required. If such failure cannot reasonably be cured within
such 30day period, as determined by FFCA in its reasonable
discretion, and Debtor is diligently pursuing a cure of such
failure, then Debtor shall have a reasonable period to cure such
failure beyond such 30-day period, which shall not exceed 90
days after receiving notice of the failure from FFCA. If Debtor
shall fail to correct or cure such failure within such 90-day
period, an Event of Default shall be deemed to have occurred
hereunder without further notice or demand of any kind being
required.
(4) If Debtor or Lessee becomes insolvent within the
meaning of the Code, files or notifies FFCA that it intends to
file a petition under the Code, initiates a proceeding under any
similar law or statute relating to bankruptcy, insolvency,
reorganization, winding up or adjustment of debts (collectively,
an "Action"), becomes the subject of either a petition under the
Code or an Action, or is not generally paying its debts as the
same become due or if Debtor or Lessee becomes the subject of an
involuntary petition under the Code or other similar involuntary
Action (in which case Debtor shall be required to provide FFCA
with immediate notice of the commencement or filing of such
involuntary petition or Action), and any of the following shall
have occurred: (i) the involuntary petition or involuntary
Action shall not have been dismissed within 60 days of the date
on which it was filed or otherwise commenced, (ii) an order for
relief under the Code (or similar order) shall have been entered
by the court in the involuntary proceeding or involuntary
Action, or (iii) the court having jurisdiction over such
involuntary proceeding or involuntary Action (upon motion or other
request for relief by the party against whom the involuntary
petition or involuntary Action was filed or otherwise commenced)
shall not have granted FFCA full and final relief from the
automatic stay of Section 362 of the Code and from any stay
issued under Section 105 of the Code (or any similar stays or
injunctions) within 30 days of the filing or commencement of
such involuntary petition or involuntary Action so that FFCA is
thereafter free to exercise any and all of its rights and
remedies under the Loan Documents.
(5) If there is an "Event of Default" under any other Loan
Document or the Master Lease or a breach or default, after the
passage of all applicable notice and cure or grace periods,
under any of the Other Agreements.
23
120
(6) If there is a breach of the Fixed Charge Coverage Ratio
requirement and FFCA shall have given Debtor notice thereof and
Debtor shall have failed within a period of 30 days from the
delivery of such notice (the "Cure Period") to either (i) pay to
FFCA the FCCR Amount (without premium or penalty) with respect
to such of the Premises (starting with the Premises with the
lowest Fixed Charge Coverage Ratio and proceeding in ascending
order to the Premises with the next lowest Fixed Charge Coverage
Ratio) as is necessary to cure the breach of the Fixed Charge
Coverage Ratio requirement and for which the then Fixed Charge
Coverage Ratio (with the definitions in Section 7.B being deemed
to be modified as applicable to provide for the calculation of
the Fixed Charge Coverage Ratio for each such Premises on an
individual basis rather than on an aggregate basis with the
other Premises) is below 1.25:1 (each, a "Subject Premises"), or (ii)
prepay the Note or Notes corresponding to the Subject Premises
in whole but not in part (without premium or penalty), or (iii)
notify FFCA of Debtor's election to substitute a Substitute
Premises for each Subject Premises in accordance with the terms
of Section 13 (the failure of Debtor to complete such
substitution within 60 days after FFCA shall have given the
notice discussed above shall be deemed to be an Event of Default
without further notice or demand of any kind being required).
For purposes of the preceding sentence, "FCCR Amount" means that
sum of money which, when subtracted from the outstanding
principal amount of the Note corresponding to a Subject Premises
(to the extent applicable), and assuming the resulting principal
balance is reamortized in equal monthly payments over the
remaining term of such Note at the rate of interest set forth
therein, will result in an adjusted aggregate Fixed Charge
Coverage Ratio for all of the Premises of at least 1.25:1 based
on the prior year's operations. Promptly after Debtor's payment
of the FCCR Amount, Debtor and FFCA shall execute an amendment
to each such Note in form and substance reasonably acceptable to
FFCA reducing the principal amount payable to FFCA under such
Note and reamortizing the principal amount of such Note in equal
monthly payments over the then remaining term of such Note at
the rate of interest set forth therein.
Notwithstanding the foregoing, to the extent that, in
accordance with the provisions of Section 7.B, FFCA shall have
imposed an aggregate Fixed Charge Coverage Ratio requirement
with respect to all of the Premises corresponding to the Loans
in any Loan Pool, then, in order to prevent an Event of Default
from occurring by reason of a breach of such aggregate Fixed
Charge Coverage Ratio requirement, Debtor, within the Cure
Period must either (i) pay to FFCA the Modified FCCR Amount
(without premium or penalty) within the aforesaid 30 day period
with respect to such of the Premises corresponding to the Loans
in such Loan Pool (starting with the Premises with the lowest
Fixed Charge Coverage Ratio and proceeding in ascending order to
the Premises with the next lowest Fixed Charge Coverage Ratio)
as is necessary to cure the breach of such aggregate Fixed
Charge Coverage Ratio requirement and for which the then Fixed
Charge Coverage Ratio (with the definitions relating to the
Fixed Charge Coverage Ratio being deemed to be modified as
applicable to provide for the calculation of the Fixed Charge
Coverage Ratio for each such Premises on an individual basis
rather than on an aggregate basis with the other Premises
corresponding to the Loans in such Loan Pool) is below 1.25:1
(each a "Selected Premises"), or (ii) prepay the Note or Notes
corresponding to the Selected Premises in whole but not in part
(without premium or penalty) within the Cure Period, or (iii)
notify FFCA of Debtor's election to substitute a Substitute
Premises for each
24
121
Selected Premises in accordance with the terms of Section 13 (the failure
of Debtor to complete such substitution within 60 days after FFCA
shall have given Debtor the notice discussed above shall be
deemed to be an Event of Default without further notice or
demand of any kind being required). For purposes of the
preceding sentence, "Modified FCCR Amount" means that sum of
money which, when subtracted from the outstanding principal
amount of the Note corresponding to a Selected Premises (to the
extent applicable), and assuming the resulting principal balance
is reamortized in equal monthly payments over the remaining term
of such Note at the rate of interest set forth therein, will
result in an adjusted aggregate Fixed Charge Coverage Ratio for
all of the Premises corresponding to the Loans in such Loan Pool
of at least 1.25:1 based on the prior year's operations.
Promptly after Debtor's payment of the Modified FCCR Amount,
Debtor and FFCA shall execute an amendment to each such Note in
form and substance reasonably acceptable to FFCA reducing the
principal amount payable to FFCA under such Note and
reamortizing the principal amount of such Note in equal monthly
payments over the then remaining term of such Note at the rate
of interest set forth therein.
B. Upon and during the continuance of an Event of Default, subject to the
limitations set forth in subsection A, FFCA may declare all or any part of the
obligations of Debtor under the Notes, this Agreement and any other Loan
Document to be due and payable, and the same shall thereupon become due and
payable without any presentment, demand, protest or notice of any kind except as
otherwise expressly provided herein, and, except as otherwise provided herein or
prohibited by applicable law, Debtor hereby waives notice of intent to
accelerate the obligations secured by the Mortgages and notice of acceleration.
Thereafter, FFCA may exercise, at its option, concurrently, successively or in
any combination, all remedies available at law or in equity, including without
limitation any one or more of the remedies available under the Notes, the
Mortgages or any other Loan Document. Neither the acceptance of this Agreement
nor its enforcement shall prejudice or in any manner affect FFCA's right to
realize upon or enforce any other security now or hereafter held by FFCA, it
being agreed that FFCA shall be entitled to enforce this Agreement and any other
security now or hereafter held by FFCA in such order and manner as it may in its
absolute discretion determine. No remedy herein conferred upon or reserved to
FFCA is intended to be exclusive of any other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. Every power or remedy
given by any of the Loan Documents to FFCA, or to which FFCA may be otherwise
entitled, may be exercised, concurrently or independently, from time to time and
as often as may be deemed expedient by FFCA.
11. ASSIGNMENTS. A. FFCA may assign in whole or in part its rights under
this Agreement, including, without limitation, in connection with any Transfer,
Participation and/or Securitization. Upon any unconditional assignment of
FFCA's entire right and interest hereunder, FFCA shall automatically be
relieved, from and after the date of such assignment, of liability for the
performance of any obligation of FFCA contained herein.
B. Debtor shall not, without the prior written consent of
FFCA, sell, assign, transfer, mortgage, convey, encumber or grant any
easements or other rights or interests of any kind in the Premises,
except for Third Party Leases, any of Debtor's rights under this
Agreement or any interest in Debtor, whether voluntarily, involuntarily or by
operation of law or otherwise, including, without
25
122
limitation, by merger, consolidation, dissolution or otherwise, except,
subsequent to the Closing, as expressly permitted by the Mortgages.
12. INDEMNITY. Debtor agrees to indemnify, hold harmless and
defend FFCA and its directors, officers, shareholders, employees, successors,
assigns, agents, contractors, subcontractors, experts, licensees, affiliates,
lessees, lenders, mortgagees, trustees and invitees, as applicable
(collectively, the "Indemnified Parties"), for, from and against any and all
losses, costs, claims, liabilities, damages and expenses, including,
without limitation, reasonable attorneys' fees
and court costs, arising as the result of an Environmental Condition
and/or a breach of any of the representations, warranties, covenants,
agreements or obligations of Debtor set forth in this Agreement or any other
Loan Document. Without limiting the generality of the foregoing, such indemnity
shall include, without limitation, any engineering, governmental inspection and
reasonable attorneys' fees and expenses that the Indemnified Parties may incur
by reason of any representation set forth in this Agreement being false, or by
reason of any investigation or claim of any Governmental Authority in connection
therewith.
13. SUBSTITUTION. Debtor shall have the right to obtain a release of a
Premises by substituting a Substitute Premises for such Premises if (a)
permitted by the terms of Section 10.A(6), (b) subject to thelimitation set
forth in subitem (xii) of this Section 13, Debtor concludes, in Debtor's
reasonable judgment, that it would be in Debtor's best interest to cease
business operations at such Premises based upon unacceptable and substandard
operating performance of such Premises, or (c) subject to the limitation set
forth in subitem (xii) of this Section 13, such Premises is damaged or destroyed
and Debtor concludes, in Debtor's reasonable judgment, that it would be in its
best interest not to repair or restore such Premises based upon unacceptable
performance of such Premises, in all cases subject to fulfillment of the
following conditions:
(i) With respect to a substitution permitted by the terms of
Section 10.A(6), Debtor shall provide FFCA with notice of its
intention to substitute a Substitute Premises within the
applicable time period contemplated by such section and the
closing of the substitution shall take place within the period
contemplated by such section. With respect to a substitution
pursuant to clauses (b) and (c), above, of this ▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ shall provide FFCA with notice of its intention to
substitute a Substitute Premises within 10 days after Debtor
decides to proceed with such substitution and the closing of
such substitution shall take place within the 30 day period
immediately following delivery of such notice.
(ii) Debtor must provide for the substitution of a
Substitute Premises, and the proposed Substitute Premises must:
(1) be a Uni-Mart Facility, in good
condition and repair, ordinary wear and tear excepted;
(2) have for the twelve month period
preceding the date of the closing of such substitution a Fixed
Charge Coverage Ratio (with the definitions of Section 7.B being
deemed to be modified if necessary and as applicable to provide
for a calculation of the Fixed Charge Coverage Ratio for each of
the Premises on an individual basis rather than on an aggregate
basis with the other Premises) at least equal to
26
123
the Fixed Charge Coverage Ratio for the Premises being replaced and the
substitution must not cause a breach of any Fixed Charge Coverage Ratio
requirement otherwise set forth in this Agreement;
(3) be owned by and vested in Debtor, free
and clear of all liens and encumbrances, except such matters as
are acceptable to FFCA (the "Substitute Premises Permitted
Exceptions"); and
(4) have a fair market value no less than
the greater of the then fair market value of the Premises to be
replaced or the fair market value of such Premises as of the
Closing, all as reasonably determined by FFCA's in-house
inspectors and underwriters.
(iii) FFCA shall have inspected and approved the
Substitute Premises utilizing FFCA customary site inspection and
underwriting approval criteria. Debtor shall have reimbursed
FFCA for all of its costs and expenses incurred with respect to
such proposed substitution, including, without limitation,
FFCA's third-party and/or in-house site inspectors' costs and
expenses with respect to the proposed Substitute Premises.
Debtor shall be solely responsible for the payment of all costs
and expenses resulting from such proposed substitution,
including, without limitation, the cost of title insurance and
endorsements, survey charges, stamp taxes, mortgage taxes,
transfer fees, escrow and recording fees, the cost of
environmental reports and/or environmental insurance and the
attorneys' fees and expenses of counsel to Debtor and FFCA.
(iv) FFCA shall have received a preliminary title report and
irrevocable commitment to insure title by means of a mortgagee's
ALTA extended coverage policy of title insurance (or its
equivalent, in the event such form is not issued in the
jurisdiction where the proposed Substitute Premises is located)
for such proposed Substitute Premises issued by Title Company
showing good and marketable title in Debtor and committing to
insure FFCA's first priority lien upon and security interest in
the proposed Substitute Premises, subject only to the Substitute
Premises Permitted Exceptions and containing endorsements
substantially comparable to those required by FFCA at the
Closing
(v) FFCA shall have received a current ALTA survey of such
proposed Substitute Premises, the form of which shall be
comparable to those received by FFCA at the Closing and
sufficient to cause the standard survey exceptions set forth in
the title policy referred to in the preceding subsection to be
deleted.
(vi) FFCA shall have received an Environmental Policy with
respect to the Substitute Premises as is acceptable to FFCA in
its sole discretion.
(vii) Debtor shall deliver, or cause to be delivered,
with respect to Debtor and the Substitute Premises, opinions of
Counsel in form and substance comparable to those received at
Closing (but also addressing such matters unique to the
Substitute Premises as may be reasonably required by FFCA).
27
124
(viii) No Event of Default (other than the breach of the
Fixed Charge Coverage Ratio covenant set forth in Section 7.B in
the case of a substitution pursuant to clause (a) above, of this
Section 13) shall have occurred under any of the Loan
Documents.
(ix) Debtor shall have executed such documents as are comparable
to the security documents executed and delivered at Closing, as
applicable (but with such revisions as may be reasonably
required by FFCA to address matters unique to the Substitute
Premises) or amendments to such documents, including, without
limitation, a Mortgage, amendment to the Master Lease,
Memorandum and UCC-1 Financing Statements (the "Substitute
Documents"), to provide FFCA with a first priority lien on the
proposed Substitute Premises, subject only to the Substitute
Premises Permitted Exceptions, and all other rights, remedies
and benefits with respect to the proposed Substitute Premises
which FFCA holds in the Premises to be replaced, all of which
documents shall be in form and substance reasonably satisfactory
to FFCA.
(x) The representations and warranties set forth in the
Substitute Documents and Section 6 of this Agreement applicable
to the proposed Substitute Premises shall be true and correct in
all material respects as of the date of substitution, and Debtor
shall have delivered to FFCA an officer's certificate certifying
to that effect.
(xi) Debtor shall have delivered to FFCA certificates of
insurance showing that insurance required by the Substitute
Documents is in full force and effect.
(xii) Debtor may not substitute Substitute Premises for more
than 5 Premises, in the aggregate, as a result of the exercise
by Debtor of its rights under clauses (b) and (c) above of this
Section 13.
Upon satisfaction of the foregoing conditions with respect to the
release of a
Premises:
(a) the proposed Substitute Premises shall be deemed
substituted for the Premises to be replaced;
(b) the Loan Amount for the Substitute Premises shall be
the same as for the replaced Premises;
(c) the Substitute Premises shall be referred to herein as
a "Premises" and included within the definition of "Premises"
and shall secure the same Obligations (as defined in the
Mortgages) as were secured by the Premises that were replaced;
(d) the Substitute Documents shall be dated as of the date
of the substitution; and
(e) FFCA will release, or cause to be released, the lien of
the Mortgage, UCC-1 Financing Statements and any other Loan
Documents encumbering the replaced Premises.
28
125
If a Substitute Premises is not located in Premises County, the Loan Documents
corresponding to the Loan secured by such Substitute Premises shall not secure
the obligations of Debtor Entities contained in any other Loan Documents or
Other Agreements.
14. MISCELLANEOUS PROVISIONS.
A. Notices. All notices, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this Agreement
shall be in writing and given by (i) hand delivery, (ii) facsimile, (iii)
express overnight delivery service or (iv) certified or registered mail, return
receipt requested, and shall be deemed to have been delivered upon (a) receipt,
if hand delivered, (b) transmission, if delivered by facsimile, (c) the next
Business Day, if delivered by express overnight delivery service, or (d) the
third Business Day following the day of deposit of such notice with the United
States Postal Service, if sent by certified or registered mail, return receipt
requested. Notices shall be provided to the parties and addresses (or facsimile
numbers, as applicable) specified below:
If to Debtor: N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Uni Realty of Luzerne, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to FFCA: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Executive Vice President and General Counsel
FFCA Acquisition Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
B. Brokerage Commission. FFCA and Debtor represent and warrant to
each other that they have dealt with no real estate or mortgage
broker, agent, finder or other intermediary in connection with the
transactions contemplated by this Agreement. FFCA and Debtor shall
indemnify and hold each other harmless from and against any costs, claims or
expenses, including attorneys' fees, arising out of the breach of their
respective representations and warranties contained within this Section.
C. Waiver and Amendment. No provisions of this Agreement shall be
Deemed waived or amended except by a written instrument unambiguously
setting forth the matter waived or amended and signed by the party
against which enforcement of such waiver or amendment is sought.
Waiver of any matter shall not be deemed a waiver of the same or any
other matter on any future occasion.
29
126
D. Captions. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any
manner in the construction or interpretation hereof.
E. Intentionally Omitted.
F. Severability. The provisions of this Agreement shall be deemed
severable. If any part of this Agreement shall be held unenforceable,
the remainder shall remain in full force and effect, and such
unenforceable provision shall be reformed by such court so as to give
maximum legal effect to the intention of the parties as expressed
therein.
G. Construction Generally. This is an agreement between parties
who are experienced in sophisticated and complex matters similar to
the transaction contemplated by this Agreement and is entered into by
both parties in reliance upon the economic and legal bargains
contained herein and shall be interpreted and construed in a fair and
impartial manner without regard to such factors as the party which
prepared the instrument, the relative bargaining powers of the
parties or the domicile of any party. Debtor and FFCA were each
represented by legal counsel competent in advising them of their
obligations and liabilities hereunder.
H. Other Documents. Each of the parties agrees to sign such other
And further documents as may be appropriate to carry out the intentions
expressed in this Agreement.
I. Attorneys' Fees. In the event of any judicial or other adversarial
proceeding between the parties concerning this Agreement, the prevailing party
shall be entitled to recover its attorneys' fees and other costs in addition to
any other relief to which it may be entitled. References in this Agreement to
the attorneys' fees and/or costs of FFCA shall mean both the fees and costs of
independent outside counsel retained by FFCA with respect to this transaction
and the fees and costs of FFCA's in-house counsel incurred in connection with
this transaction.
J. Entire Agreement. This Agreement and the other Loan Documents,
together with any other certificates, instruments or agreements to be delivered
in connection therewith, constitute the entire agreement between the
parties with respect to the subject matter hereof, and there are no other
representations, warranties or agreements, written or oral, between Debtor
and FFCA with respect to the subject matter of this Agreement. Notwithstanding
anything in this Agreement to the contrary, upon the execution and delivery of
this Agreement by Debtor and FFCA, the Commitment shall be deemed null and void
and of no further force and effect and the terms and conditions of this
Agreement shall control notwithstanding that such terms may be inconsistent with
or vary from those set forth in the Commitment.
K. Forum Selection; Jurisdiction; Venue; Choice of Law.
Debtor acknowledges that this Agreement was substantially negotiated
in the State of Arizona, the Agreement was signed by FFCA in the
State of Arizona and executed and delivered by Debtor in the State of
Arizona, all payments under the Notes will be delivered in the State of Arizona
and there are substantial contacts between the parties and the transactions
contemplated herein and the State of Arizona. For purposes of any action
or proceeding arising out of this Agreement, the parties hereto hereby
expressly submit to the jurisdiction of all federal and state courts located
in the State of Arizona and Debtor consents that it may be served with any
process or paper by registered mail or by personal service within or without the
30
127
State of Arizona in accordance with applicable law. Furthermore, Debtor waives
and agrees not to assert in any such action, suit or proceeding that it is not
personally subject to the jurisdiction of such courts, that the action, suit or
proceeding is brought in an inconvenient forum or that venue of the action, suit
or proceeding is improper. It is the intent of the parties hereto that all
provisions of this Agreement shall be governed by and construed under the laws
of the State of Arizona, without giving effect to its principles of conflicts of
law. To the extent that a court of competent jurisdiction finds Arizona law
inapplicable with respect to any provisions hereof, then, as to those provisions
only, the laws of the states where the Premises are located shall be deemed to
apply. Nothing in this Section shall limit or restrict the right of FFCA to
commence any proceeding in the federal or state courts located in the states in
which the Premises are located to the extent FFCA deems such proceeding
necessary or advisable to exercise remedies available under this Agreement or
the other Loan Documents.
L. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of Debtor and FFCA and their respective successors and permitted
assigns, including, without limitation, any United States trustee, any debtor in
possession or any trustee appointed from a private panel.
N. Survival. Except for the conditions of Closing set forth in
Section 9, which shall be satisfied or waived as of the Closing Date, all
representations, warranties, agreements, obligations and indemnities of Debtor
and FFCA set forth in this Agreement shall survive the Closing.
O. Waiver of Jury Trial and Punitive, Consequential, Special and Indirect
Damages. DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES
PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF
THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT
CONTEMPLATED HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL
ASPECT OF THEIR BARGAIN. FURTHERMORE, DEBTOR AND FFCA HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO SEEK PUNITIVE,
CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE OTHER AND ANY OF THE
OTHER'S AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY IT AGAINST THE OTHER OR ANY OF THE OTHER'S AFFILIATES,
OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT
CONTEMPLATED HEREIN OR RELATED
31
128
HERETO. THE WAIVER BY DEBTOR AND FFCA OF ANY RIGHT THEY MAY HAVE TO SEEK
PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE
PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
P. Transfers, Participations and Securitizations. (1) A
material inducement to FFCA's willingness to complete the
transactions contemplated by the Loan Documents is Debtor's agreement
that FFCA may, at any time, complete a Transfer, Participation or
Securitization with respect to any Note, Mortgage and/or any of the
other Loan Documents or any or all servicing rights with respect
thereto.
(2) Debtor agrees to cooperate in good faith with FFCA in
connection with any such Transfer, Participation and/or
Securitization of any Note, Mortgage and/or any of the other Loan
Documents, or any or all servicing rights with respect thereto,
including, without limitation, (i) providing such documents,
financial and other data, and other information and materials (the
"Disclosures") which would typically be required with respect to
Debtor and Lessee by a purchaser, transferee, assignee, servicer,
participant, investor or rating agency involved with respect to such
Transfer, Participation and/or Securitization, as applicable; provided,
however, Debtor and Lessee shall not be required to make Disclosures of
any confidential information or any information which has not
previously been made public unless required by applicable federal or state
securities laws; and (ii) amending the terms of the transactions evidenced by
the Loan Documents to the extent necessary so as to satisfy the requirements of
purchasers, transferees, assignees, servicers, participants, investors or
selected rating agencies involved in any such Transfer, Participation
or Securitization, so long as such amendments would not have a material adverse
effect upon Debtor, Lessee or the transactions contemplated hereunder.
(3) Debtor consents to FFCA providing the Disclosures, as well s any other
information which FFCA may now have or hereafter acquire with respect to the
Premises or the financial condition of Debtor and Lessee to each purchaser,
transferee, assignee, servicer, participant, investor or rating agency involved
with respect to such Transfer, Participation and/or Securitization, as
applicable. FFCA and Debtor (and their respective Affiliates) shall each pay
their own attorneys fees and other out-of-pocket expenses incurred in connection
with the performance of their respective obligations under this Section.
(4) Notwithstanding anything to the contrary contained in this Agreement
or the other Loan Documents from and after the closing of a Securitization,
Participation or Transfer with respect to some or all of the Loans or any loan
evidenced by any Other Agreement:
(a) a breach or default, after the passage of all
applicable notice and cure or grace periods, under any Loan
Document, Master Lease or Other Agreement which relates to a
loan or sale/leaseback transaction which has not been the
subject of a Securitization, Participation or Transfer shall not
constitute an Event of Default or a breach or default, as
applicable, under any Loan Document, Master Lease, or Other
Agreement which relates to a loan which has been the subject of
a Securitization, Participation or Transfer;
(b) a breach or default, after the passage of all
applicable notice and cure or grace periods, under any Loan
Document, Master Lease or Other Agreement which relates to a
loan which is included in any Loan Pool shall
32
129
not constitute an Event of Default or a breach or default, as
applicable, under any Loan Document, Master Lease, or Other
Agreement which relates to a loan which is included in any other
Loan Pool;
(c) the Loan Documents corresponding to the Notes in any
Loan Pool shall not secure the obligations of any of the Debtor
Entities contained in any Loan Document or Other Agreement which
does not correspond to a loan in such Loan Pool; and
(d) the Loan Documents and Other Agreements which do not
correspond to a loan in any Loan Pool shall not secure the
obligations of any of the Debtor Entities contained in any Loan
Document or Other Agreement which does correspond to a loan in
such Loan Pool.
IN WITNESS WHEREOF, Debtor and FFCA have entered into this
Agreement as of the date first above written.
FFCA:
FFCA FUNDING CORPORATION, a Delaware
corporation
By /S/ ▇▇▇▇ ▇. ▇▇▇▇
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President
DEBTOR:
UNI REALTY OF LUZERNE, L.P.,
a Delaware limited partnership
By: Uni Realty of Luzerne, Inc., a
Delaware corporation, its
general partner
By /S/ N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
33