63
EXHIBIT 20.1
LOAN AGREEMENT
(Acquisition)
THIS LOAN AGREEMENT (this "Agreement") is made as of April 21, 2000, by
and between FFCA ACQUISITION CORPORATION, a Delaware corporation ("FFCA"), whose
address is ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and UNI
REALTY OF ▇▇▇▇▇▇-▇▇▇▇▇, ▇.▇., a Delaware limited partnership ("Debtor"), whose
address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
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.
64
"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 is 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, groundwaters, 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
successor thereto, and any regulations, rulings, orders or decrees promulgated
2
65
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 Loan Agreement" means that certain Equipment Loan
Agreement dated as of the date of this Agreement between FFCA and
Lessee, as the same may be amended from time to time.
"Equipment Note" has the meaning set forth in the Equipment Loan
Agreement.
"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.
3
66
"Franchise Finance" means Franchise Finance Corporation of
America, a Delaware corporation, and its successors.
"GAAP" means generally accepted accounting principles
consistently
applied.
"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.
4
67
"Loan Pool" means:
(i) in the context of a Securitization, any pool or group of
loans that are a part of such Securitization;
(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.L.
"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
5
68
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
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, equipment, trade fixtures, appliances and other
personal property now or hereafter located thereon (whether or not
affixed to such real estate). As used herein, the term "Premises"
shall mean either a singular property or all of the properties
collectively, as the context may require.
"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
6
69
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 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 of the
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,
groundwaters, 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.
7
70
"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.
"Uni-Mart Facility" means a Uni-Mart or ▇▇▇▇▇▇▇ convenience store with or
without a gasoline station, as noted on Exhibit A, and such other ancillary uses
permitted by the 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 $6,900,000.00,
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
8
71
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 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 of
such 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:
9
72
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.
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
10
73
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 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 Premises, 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, including 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
11
74
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.
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
wellmaintained, 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
become generally 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 in connection 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
12
75
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 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. Debtor or
Lessee is the owner of all equipment, trade fixtures, appliances
and other personal property located on or at each of the
Premises free and clear of all liens, encumbrances, charges and
security interests of any nature whatsoever. 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
13
76
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 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 and
all personal property and inventory located thereon 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.
14
77
(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.
(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:
15
78
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 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.
16
79
"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 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.
17
80
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 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 and the personal property and
inventory located thereon, 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
18
81
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 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
19
82
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).
(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. Debtor or Lessee shall be the owner of all of the
equipment, trade
20
83
fixtures, appliances and other personal property located on or
at each of the Premises free and clear of all liens,
encumbrances, charges and security interests, except the liens
created by the Mortgages and the UCC-1 Financing Statements and
the interests created by the Master Lease. 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.
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. FFCA shall also have received
evidence reasonably satisfactory to FFCA that Debtor or Lessee
is the owner of all of the equipment, trade fixtures, appliances
and other personal property located on or at each of the
Premises free and clear of all liens, encumbrances, charges and
security interests, except the liens created by the Mortgages
and the UCC-1 Financing Statements.
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
21
84
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.
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. Closing of Equipment Loan Agreement. All of the
transactions described in the Equipment Loan Agreement shall
have closed prior to or concurrently with the Closing of the
transactions described in this Agreement.
L. 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.
M. 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;
22
85
(8) Master Lease and Memoranda;
(9) Certifications (Confession of Judgment); and
(10) Explanations and Waiver 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.
(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
23
86
(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, the Master Lease or the Equipment Loan Agreement or a
breach or default, after the passage of all applicable notice
and cure or grace periods, under any of the Other Agreements.
(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 and Equipment 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 and
Equipment 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
24
87
FFCA shall execute an amendment to each such Note and Equipment
Note in form and substance reasonably acceptable to FFCA
reducing the principal amount payable to FFCA under such Note
and Equipment Note and reamortizing the principal amount of such
Note and Equipment Note in equal monthly payments over the then
remaining term of such Note and Equipment Note at the rate of
interest set forth therein. The FCCR Amount shall be allocated
proportionately between such Note and Equipment Note based on
the percentage that the then outstanding principal balance of
such Note or Equipment Note, as the case may be, bears to the
then outstanding principal balance of such Note and Equipment
Note in the aggregate.
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 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 and Equipment 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 and
Equipment 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 and
Equipment Note in form and substance reasonably acceptable to
FFCA reducing the principal amount payable to FFCA under such
Note and Equipment Note and reamortizing the principal amount of
such Note and Equipment Note in equal monthly payments over the
then remaining term of such Note and Equipment Note at the rate
of interest set forth therein. The Modified FCCR ▇▇▇▇▇▇
▇▇
▇▇
▇▇▇▇▇ ▇▇ allocated proportionately between such Note and
Equipment Note based on the percentage that the then outstanding
principal balance of such Note or Equipment Note, as the case
may be, bears to the then outstanding principal balance of such
Note and Equipment Note in the aggregate.
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 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
26
89
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 the limitation 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, (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 or Lessee is permitted to Substitute a Substitute
Premises for a Premises pursuant to Section 59 of the Master Lease, 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. With respect to
a substitution pursuant to clause (d), above, of this ▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ shall provide FFCA with notice of its intention to
substitute a Substitute Premises within 30 days after Debtor
decides to proceed with such substitution and the closing of
such substitution shall take place within the 60 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 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
27
90
(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 inhouse 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).
(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
28
91
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 1 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.
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:
29
92
If to Debtor: N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Uni Realty of ▇▇▇▇▇▇-▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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.
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.
30
93
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 ofindependent 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
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.
31
94
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 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,
32
95
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 as 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 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
33
96
(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.
Q. Pennsylvania Non-Cross-Collateralization.
Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents, the Loan Documents
corresponding to each Loan secured by Premises located in the
Commonwealth of Pennsylvania shall not secure the obligations of
Debtor and/or the Affiliates contained in any other Loan
Documents or Other Agreements.
IN WITNESS WHEREOF, Debtor and FFCA have entered into this
Agreement as of the date first above written.
FFCA:
FFCA ACQUISITION CORPORATION, a
Delaware corporation
By /S/ ▇▇▇▇ ▇. ▇▇▇▇
Printed Name ▇▇▇▇ ▇. ▇▇▇▇
Its Vice President
DEBTOR:
UNI REALTY OF ▇▇▇▇▇▇-▇▇▇▇▇, ▇.▇., a
Delaware limited partnership
By Uni Realty of ▇▇▇▇▇▇-▇▇▇▇▇, Inc., a
Delaware corporation, its general partner
By /S/ N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
34