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EXHIBIT 20.4
EQUIPMENT LOAN AGREEMENT
(Funding)
THIS EQUIPMENT LOAN AGREEMENT (this "Agreement") is made as of
April 21,2000, by and between FFCA FUNDING CORPORATION, a Delaware
corporation ("FFCA"), whose address is 00000 Xxxxx Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 000000, and UNI-MARTS, a Delaware corporation
("Debtor"), whose address is 000 Xxxx Xxxxxx Xxxxxx, Xxxxx Xxxxxxx,
Xxxxxxxxxxxx 00000-0000.
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 Equipment
Loan to provide long-term financing for the Equipment, and for no
other purpose whatsoever. The Equipment Loan will be evidenced by
the Equipment Note and secured by a first priority security interest
in the Equipment pursuant to an Equipment Security Agreement and UCC-
1 Financing Statements. FFCA has committed to make the Equipment
Loan 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).
"Additional Collateral" means Debtor's leasehold interest and
fee simple title in the parcel of real estate described in Exhibit C
attached hereto, all rights, privileges and appurtenances associated
therewith, and all buildings, fixtures and other improvements now or
hereafter located thereon (whether or not affixed to the real
estate).
"Additional Collateral Lease" means that certain Lease on
Exhibit C attached hereto pursuant to which Debtor, as lessee, leases a portion
of the Additional Collateral.
"Additional Collateral Mortgage" means the Mortgage dated as of
the date of this Agreement to be executed by Debtor for the benefit of FFCA
with respect to the Additional Collateral.
"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 or entity, whether through
ownership of voting securities or otherwise.
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"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.L.
"Closing" shall have the meaning set forth in Section 4.
"Closing Date" shall have the meaning set forth in Section 4.
"Code" means the United States Bankruptcy Code, 11 U.S.C.
Sec.101 et seq., as amended.
"Commitment" means that certain Commitment Letter dated February 4, 2000
(as amended February 18, 2000), between FFCA and Debtor with respect to the
transactions contemplated by this Agreement, and any amendments or supplements
thereto.
"Corporate Fixed Charge Coverage Ratio" has the meaning set
forth in Section 7.L.
"Counsel" means legal counsel to Debtor, licensed in the
state(s) in which (i) the Equipment is located, (ii) Debtor is
incorporated or formed and (iii) Debtor resides or maintains its
chief executive offices, as selected by Debtor, and approved by FFCA.
"Debt" has the meaning set forth in Section 7.L.
"Debtor Entities" means, collectively, Debtor and any Affiliate
of Debtor.
"Depreciation and Amortization" has the meaning set forth in
Section 7.L.
"Disclosures" has the meaning set forth in Section 13.P.
"Early Termination Lease" or "Early Termination Leases" have no
meanings set for in Section 6.M.
"Equipment" means the furniture, equipment, trade fixtures,
appliances and other personal property defined in the Equipment
Security Agreement as the "Collateral."
"Equipment Loan" means the equipment loan to be made by FFCA to
Debtor with respect to the Equipment at the Premises in the Equipment Loan
Amount.
"Equipment Loan Amount" means $9,375,000.00.
"Equipment Note" means the equipment promissory note dated as of the date
of this Agreement in the Equipment Loan Amount to be executed by Debtor in favor
of FFCA, as the same may be amended from time to time.
"Equipment Security Agreement" means the equipment security
agreement dated as of the date of this Agreement to be executed by
Debtor for the benefit of FFCA with respect to the Equipment, as the
same may be amended from time to time.
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"Escrow Agent" means Lawyers Title Insurance Corporation, a Virginia
corporation.
"Event of Default" has the meaning set forth in Section 10.
"Fee" means an underwriting, equipment assessment, valuation,
processing and commitment fee equal to 1% of the sum of the Equipment
Loan Amount, which Fee shall be payable as set forth in Section 3.
"FFCA Entities" means, collectively, FFCA, Franchise Finance and
any Affiliate of FFCA or Franchise Finance.
"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 where the
Equipment is located or any political subdivision thereof.
"Indemnified Parties" has the meaning set forth in Section 12.
"Interest Expense" has the meaning set forth in Section 7.L.
"Lease Estoppel Certificate and Consent" has the meaning set
forth in Section 9.I.
"Loan Documents" means, collectively, this Agreement, the
Equipment Note, the Equipment Security Agreement, the UCC-1 Financing
Statements, the Additional Collateral Mortgage and all other
documents executed in connection therewith or contemplated thereby.
"Loan Pool" means:
(i) in the context of a Securitization, any pool or group of loans
that are a part of such Securitization;
(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.H.
"Master Lease" means the lease dated as of the date of this Agreement
between Debtor, as lessee, and Master Lessor, as lessor, with respect to the
Premises specified therein, as the same may be amended from time to time.
"Master Lessor" means Uni Realty of Luzerne, L.P., a Delaware limited
partnership.
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"Material Adverse Effect" means a material adverse effect on (i) the
business, condition, worth or operations of Debtor, any or all of the Premises
or the Equipment, 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 Equipment, or (ii) Debtor's ability to perform the obligations under the Loan
Documents.
"Mortgage" or "Mortgages" has, as the context may require, the meanings
set forth in the Mortgage Loan Agreement.
"Mortgage Loan Agreement" means the loan agreement dated as of the date of
this Agreement between Master Lessor and FFCA with respect to mortgage loans to
be made by FFCA to Master Lessor, as the same may be amended from time to time.
"Mortgage Loan Documents" means the "Loan Documents" as defined in the
Mortgage Loan Agreement.
"Net Income" has the meaning set forth in Section 7.L.
"Other Agreements" means, collectively, all agreements and
instruments between, among or by (1) any of the Debtor Entities, and,
or for the benefit of, (2) any of the FFCA Entities, including,
without limitation, promissory notes and guaranties; provided,
however, the term "Other Agreements" shall not include the agreements
and instruments defined as the Loan Documents.
"Participation" means one or more grants by FFCA or any of the other FFCA
Entities to a third party of a participating interest in notes evidencing
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.
"Paydown Amount" means $125,000.00, plus any prepayment amount payable on
such amount pursuant to the Equipment Note.
"Permitted Exceptions" means those recorded easements,
restrictions, liens and encumbrances set forth as exceptions in the
title insurance policies issued by Lawyers Title Insurance Company to
FFCA and approved by FFCA in connection with the Additional
Collateral Mortgage.
"Permitted Lien(s)" shall mean the right and interest of third party
lessors of certain Equipment incidental to the operation of each Uni Mart
Facility, including by way of example and without limitation, the right and
interest of the lessors of various coffee equipment, video security equipment,
certain gas dispensers and Slushy machines.
"Person" means any individual, corporation, partnership, limited liability
company, trust, unincorporated organization, Governmental Authority or any other
form of entity.
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"Premises" means the parcels of real estate described in Exhibit A
attached hereto, all rights, privileges and appurtenances associated therewith,
and all buildings, fixtures and other improvements 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.
"Premises Lease" and "Premises Leases" means, as the context may require,
the Master Lease or any other lease between Debtor, as lessee, and any Premises
Lessor, as lessor, with respect to a Premises, or the Master Lease and all other
leases between Debtor, as lessee, and Premises Lessors with respect to all of
the Premises, as the same may be amended from time to time.
"Premises Lessor" and "Premises Lessors" means, as the context may
require, a lessor under a Premises Lease, or all of the lessors under all of the
Premises Leases.
"Release Amount" means an amount equal to the lesser of $500,000 or the
fair market value of the Additional Collateral at the time of the release, plus
any prepayment amount payable on such amount pursuant to the Equipment Note.
"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.
"Substitute Documents" has the meaning set forth in Section 13.
"Substitute Equipment" means equipment, trade fixtures,
furniture, furnishings and appliances owned by Debtor, located at a
Substitute Premises and substituted for Equipment in accordance with
the requirements of Section 13.
"Substitute Premises" means one or more parcels of real property
substituted for a Premises in accordance with the requirements of
Section 13 of the Mortgage Loan Agreement, together with all rights,
privileges and appurtenances associated therewith, and all buildings,
fixtures and other improvements located thereon (whether or not
affixed to such real estate). Where two or more parcels of real
property comprise a Substitute Premises, such parcels shall be
aggregated and deemed to constitute such Substitute Premises for all
purposes of this Agreement.
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"Third Party Leases" means any leases of the Premises which are not
inconsistent with the operations of a Uni-Mart Facility on the Premises.
"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.
"Uni-Mart Facility" means a Uni-Mart or Xxxxxxx convenience store with or
without a gasoline station, as noted on Exhibit A, and with such other ancillary
uses permitted by the Third Party Leases that are not inconsistent with the
operations of such facilities.
"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
Equipment.
2. TRANSACTION. On the terms and subject to the conditions set forth
in the Loan Documents, FFCA shall make the Equipment Loan to Debtor to provide
financing for the Equipment. The Equipment Loan will be evidenced by the
Equipment Note and secured by the Equipment Security Agreement and the UCC-1
Financing Statements. Debtor shall repay the outstanding principal amount of
the Equipment Loan together with interest thereon in the manner and in
accordance with the terms and conditions of the Equipment Note and the other
Loan Documents. The Equipment Loan shall be advanced at the Closing in cash or
otherwise immediately available funds subject to any prorations and adjustments
required by this Agreement.
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 paid, returned or credited as appropriate) to reflect a Fee
equal to 1% of the actual Equipment Loan Amount. 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 DATE. (a) The Equipment 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) Debtor and FFCA hereby engage Escrow Agent to act as escrow agent in
connection with the transactions described in this Agreement. Prior to the
Closing Date, the parties hereto shall deposit with Escrow Agent 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, UCC search and litigation search charges, the reasonable attorneys'
fees of Debtor,
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attorneys' fees and expenses of FFCA, FFCA's in-house equipment inspection costs
and fees, stamp taxes, transfer fees, and escrow, filing and recording fees.
All personal property and other applicable taxes and assessments and other
charges relating to the Equipment which are due and payable on or prior to the
Closing Date shall be paid by Debtor at or prior to the Closing. The Closing
documents shall be dated as of the Closing Date.
Escrow Agent 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 Escrow Agent all documents, pay to Escrow Agent all sums
and do or cause to be done all other things necessary or required by this
Agreement to enable Escrow Agent to comply herewith. Escrow Agent 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 Escrow Agent.
Escrow Agent 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 Escrow Agent 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 Escrow Agent of all further liability and
responsibility for such documents and funds. Escrow Agent's receipt of this
Agreement and opening of an escrow pursuant to this Agreement shall be deemed to
constitute conclusive evidence of Escrow Agent's agreement to be bound by the
terms and conditions of this Agreement pertaining to Escrow Agent. Disbursement
of any funds shall be made by wire transfer, as directed by FFCA and Debtor.
Escrow Agent shall be under no obligation to disburse any funds represented by
check or draft, and no check or draft shall be payment to Escrow Agent 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. Escrow Agent 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 Equipment, 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.
5. REPRESENTATIONS AND WARRANTIES OF FFCA. The representations and
warranties of FFCA contained in this Section are being made by FFCA as of the
date of this Agreement and the Closing Date to induce Debtor to enter into this
Agreement and consummate the transactions contemplated herein, and Debtor has
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. FFCA represents and
warrants to Debtor as follows:
A. Organization of FFCA. FFCA has been duly formed, is validly
existing and has taken all necessary action to authorize the execution,
delivery and performance by FFCA of this Agreement.
B. Authority of FFCA. The person who has executed this Agreement
on behalf of FFCA is duly authorized so to do.
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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, 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 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) Debtor 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 tauthorize 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, this Agreement and the other Loan Documents shall
constitute the legal, valid and binding obligations of Debtor,
enforceable against Debtor in accordance with their respective
terms.
D. Litigation. There are no suits, actions, proceedings
or investigations pending or threatened against or involving
Debtor, the Premises or the Equipment before any arbitrator or
Governmental Authority which might reasonably result in any Material
Adverse Effect.
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E. Absence of Breaches or Defaults. Debtor is 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 is a party or by which Debtor, the Premises, the Equipment or
any of the property of Debtor 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. Intended Use; Compliance With Laws. Debtor intends to use the
Equipment solely in connection with the operation of a Uni-Mart Facility,
and for no other purposes. Such intended use will not violate any zoning
or other governmental requirement applicable to the Equipment.
The Equipment complies with all applicable statutes, regulations, rules,
ordinances, codes, licenses, permits, orders and approvals of
each Governmental Authority having jurisdiction over the Equipment,
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, except where such noncompliance will not have a
Material Adverse Effect.
G. Licenses and Permits. Debtor has all required
licenses and permits, both governmental and private, to use and
operate the Equipment in the intended manner, except to the extent the
failure to have such licenses and permits will not have a Material Adverse
Effect.
H. Condition of Equipment. The Equipment is of good workmanship
and materials, fully operational and in good condition and repair, except
to the extent failure of the Equipment to be in such condition will
not have a Material Adverse Effect.
I. Title to Equipment; First Priority Lien. Title to the
Equipment is vested in Debtor, free and clear of all liens,
encumbrances, charges and security interests of any nature
whatsoever, except for Permitted Liens. Upon Closing, FFCA
shall have a first priority lien on and security interest in
the Equipment pursuant to the Equipment Security Agreement and
UCC-1 Financing Statements.
J. No Other Agreements and Options. Neither Debtor nor
the Equipment 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 Equipment Loan 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, except for Permitted Liens.
K. 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
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acknowledges that it has not relied upon, nor may it hereafter rely upon,
the analysis undertaken by FFCA in determining the Equipment
Loan Amount, and such analysis will not be made available to
Debtor.
L. 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 Equipment 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 Equipment or any portion thereof, the existence,
nonpayment or filing 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 from and against any and all such
mechanics' lien claims, accounts payable or other commitments
relating to the Equipment.
M. Premises Leases. Debtor has delivered to FFCA a certified true,
correct and complete copy of each of the Premises Leases and the
Additional Collateral Lease. The Premises Leases have not been
modified, amended, supplemented or otherwise revised. Except
for the Premises Leases set forth on Exhibit B, (each, an "Early
Termination Lease" and collectively, the "Early Termination
Leases"), each Premises Lease has a remaining term which will
not expire before the scheduled maturity date of the Equipment
Note. The Premises Leases are the only leases or agreements
between Premises Lessors and Debtor with respect to the
Premises. The Premises Leases and the Additional Collateral
Lease are in full force and effect and constitute the legal,
valid and binding obligations of Debtor, enforceable against
Debtor in accordance with their terms. Debtor has not assigned,
transferred, mortgaged, hypothecated or otherwise encumbered the
Premises Leases, the Additional Collateral Lease or any interest
therein, and Debtor has not received any notice that any of
Premises Lessors or the lessor under the Additional Collateral
Lease have made any assignment, pledge or hypothecation of all
or any part of their interests in the Premises Leases or
Additional Collateral Lease. Debtor has not received any notice
of default from Premises Lessors or the lessor under the
Additional Collateral Lease which has not been cured or given
any notice of default to Premises Lessors or the lessor under
the Additional Collateral Lease which has not been cured. No
event has occurred and no condition exists which, with the
giving of notice or the lapse of time or both, would constitute
a default by Premises Lessors or the lessor under the Additional
Collateral Lease or Debtor under any of the Premises Leases or
the Additional Collateral Lease.
All representations and warranties of Debtor made in this
Agreement shall be and will remain true and complete as of and
subsequent to the Closing Date as if made and restated in full as of
such time and shall survive the Closing.
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7. COVENANTS. Debtor covenants to FFCA from and after the
Closing Date as
follows:
A. Inspections. Debtor shall, at all reasonable times,
(i) provide FFCA and FFCA's officers, employees, agents,
advisors, attorneys, accountants, architects, and engineers with
access to the Premises and the Equipment, all drawings, plans,
and specifications for the Premises and the Equipment in
possession of Debtor, all engineering reports relating to the
Premises and the Equipment in the possession of Debtor, the
files and correspondence relating to the Premises and the
Equipment, and the financial books and records, including lists
of delinquencies, relating to the ownership, operation, and
maintenance of the Premises and the Equipment, and (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.
B. Removal of Equipment. Except for purposes of
replacement with like property of equal or greater value and
repair in the ordinary course of business, Debtor shall not remove or
allow to be removed from the Premises the Equipment, or any part thereof,
without the prior written consent of FFCA. Debtor shall promptly give
written notice to FFCA of any substantial change in the
character of the business conducted on the Premises and of the
cessation of all or any part thereof and of any loss or damage
by fire or other casualty to any substantial part of the
Equipment.
C. No Additional Encumbrances; Perfected Security
Interest. Except as expressly provided in Section 7.B above,
Debtor shall remain the owner of the Equipment (whether acquired
prior to or after the date hereof) free from any lien, security
interest or encumbrance except those in favor of FFCA, and
Debtor shall not execute or permit the filing of any other such
financing statement thereon other than the UCC-1 Financing
Statements. Debtor shall defend the Equipment against all
claims and demands of all persons. Debtor shall not permit any
action to be taken which would adversely affect the value of the
Equipment or which would encumber, dilute or cloud Debtor's
title or interest therein. FFCA at all times shall have a
perfected security interest in the Equipment that shall be prior
to any other interests therein. Debtor shall do all acts and
things, shall execute and file all instruments (including
security agreements, UCC financing statements, continuation
statements, etc.) requested by FFCA to establish, maintain and
continue the perfected security interest of FFCA in the
Equipment, and shall promptly on demand pay all costs and
expenses of (a) filing and recording, including the costs of any
searches deemed necessary by FFCA from time to time to establish
and determine the validity and the continuing priority of the
security interest of FFCA, and (b) all other claims and charges
that in the opinion of FFCA might prejudice, imperil or
otherwise affect the Equipment or security interest therein of
FFCA. Debtor agrees that a carbon, photographic or other
reproduction of a security agreement or financing statement
shall be sufficient as a financing statement. FFCA is hereby
irrevocably appointed Debtor's attorney-in-fact to take any of
the foregoing actions requested of Debtor by FFCA if Debtor
should fail to take such actions, which appointment shall be
deemed coupled with an interest.
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D. Maintenance and Repair. Debtor shall at all times
keep and maintain the Equipment in good order, repair and
condition and will promptly replace any part thereof that from
time to time may become obsolete, badly worn or in a state of
disrepair or, if supplies, be consumed in the normal course of
Debtor's business operations. FFCA shall have a lien on and
security interest in all replacements and all replacements shall
be free of any other lien, security interest or encumbrance of
any nature, including any purchase money lien or security
interest. Debtor shall not transfer or permit any transfer of
any part of the Equipment to be made or any interest therein to
be created by way of a sale (except as permitted below), by way
of a grant of a security interest, or by way of a levy or other
judicial process. In addition thereto, Debtor may dispose of
Equipment which becomes obsolete without notice to FFCA provided
such disposition is in the ordinary course of its business and
consistent with its past practices, the fair market value of
such Equipment at the time of disposition does not exceed
$10,000 per Premises and such disposition does not otherwise
operate to diminish the security of FFCA in any material
fashion.
E. Notices. Debtor shall promptly notify FFCA of any
levy, distraint or other seizure by legal process or otherwise
of any part of the Equipment and of any threatened or filed
claims or proceedings that might in any way affect or impair any
of the Equipment.
F. Insurance. Debtor shall obtain and maintain in force
insurance policies, naming FFCA as sole loss payee and as
additional insured, covering losses or damage to the Equipment
due to fire (with extended coverage), theft, physical damage and
other such risks at its full replacement cost from time to time;
provided however, with respect to theft, vandalism and malicious
mischief coverage, Debtor may elect to self-insure such items,
provided that Debtor shall at all times provide the remaining
coverages set forth in this Section 7.F with third party
insurers complying with the provisions of this Section 7.F.
FFCA is hereby irrevocably appointed Debtor's attorney-in-fact
to endorse any check or draft that may be payable to Debtor,
alone or jointly with other payees, so that FFCA may collect the
proceeds payable for any loss under such insurance, which
appointment shall be deemed coupled with an interest. The
proceeds of such insurance, less any costs and expenses incurred
or paid by FFCA in the collection thereof, shall be applied
toward the cost of repair or replacement of the items damaged or
destroyed if an Event of Default does not exist at the time of
such damage or destruction or if an Event of Default does exist
then, at the option of FFCA, on account of any sums secured by
the Equipment Security Agreement, whether or not then due or
payable. As an alternative to maintaining all of the insurance
required under this section with third party insurers, Debtor
may elect to self-insure for a portion of the required coverages
pursuant to a self-insurance program, provided that (i) the
total amount of self-insurance provided by Debtor with respect
to each policy of insurance required to be maintained by Debtor
hereunder shall not exceed $400,000 for each Premises, and (ii)
Debtor maintains a Net Worth (as defined hereafter) equal to at
least $20,000,000.00; provided, that Debtor shall at all times
provide the remaining portion of the coverages set forth in this
section with third party insurers complying with the provisions
of this section. The amount of all deductibles with respect to
such third party policies shall not, however, exceed in the
aggregate, when added to the amount of self-insurance, the
policy limitation on self-insurance provided in the preceding
sentence. For purposes hereof, the term "Net Worth" means the
total equity in Debtor, determined in accordance with GAAP.
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G. Actions by FFCA. (i) Debtor agrees that FFCA may, at
its option, and without any obligation to do so, pay, perform,
and discharge any and all amounts, costs, expenses and
liabilities that are the responsibility of Debtor under the Loan
Documents if Debtor fails to timely pay, perform or discharge
the same and such failure shall continue for 5 days after
Debtor's receipt of written demand from FFCA (unless in the
event of an emergency which may have a Material Adverse Effect),
and all amounts expended by FFCA in so doing or in respect of or
in connection with the Equipment shall become part of the
obligations secured by the Loan Documents and shall be
immediately due and payable by Debtor to FFCA upon demand
therefor and shall bear interest at the Default Rate (as defined
in the Equipment Note).
(ii) Debtor agrees that the Loan Documents shall remain in
full effect, without waiver or surrender of any of FFCA's rights
thereunder, notwithstanding any one or more of the following:
(1) Extension of the time of payment of the whole or
any part of the Equipment Note;
(2) Any change in the terms and conditions of the
Equipment Note;
(3) Substitution of any other evidence of indebtedness
for the Equipment Note;
(4) Acceptance by FFCA of any collateral or security
of any kind for the payment of the Equipment Note;
(5) Surrender, release, exchange or alteration of any
Equipment, collateral or other security, either in whole or
in part; or
(6) Release, settlement, discharge, compromise, change
or amendment, in whole or in part, of any claim of FFCA
against Debtor or of any claim against any guarantor or
other party secondarily or additionally liable for the
payment of the Equipment Note.
H. Lost Note. Debtor shall, if the Equipment Note is mutilated,
destroyed, lost or stolen (a "Lost Note"), promptly deliver to
FFCA, upon receipt of an affidavit from FFCA stipulating that
the Equipment 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.
J. Premises Lease Modifications and Renewals. (i) None of the
Premises Leases or the Additional Collateral Lease shall be
modified, amended, terminated, cancelled or surrendered without
FFCA's prior written consent. Debtor shall timely extend all
renewal options under all Premises
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Leases and Additional Collateral Lease. Debtor shall fulfill, perform and
observe in all respects, each and every condition and covenant of Debtor
contained in the Premises Leases and Additional Collateral Lease
and give FFCA prompt notice of any claim or event of default
under any of the Premises Leases or Additional Collateral Lease
received by Debtor or given by Debtor to any Premises Lessor. IF
A PREMISES LEASE OR ADDITIONAL COLLATERAL LEASE REQUIRES DEBTOR
TO DELIVER A NOTICE TO THE PREMISES LESSOR OR THE LESSOR UNDER
THE ADDITIONAL COLLATERAL LEASE, AS APPLICABLE, EXTENDING THE
TERM OF SUCH PREMISES LEASE, AND DEBTOR FAILS TO DELIVER SUCH
NOTICE AT LEAST THIRTY DAYS BEFORE THE DATE BY WHICH THE
EXTENSION NOTICE MUST BE DELIVERED, OR IF NO SUCH DATE IS SET
FORTH IN SUCH PREMISES LEASE OR ADDITIONAL COLLATERAL LEASE, IF
DEBTOR FAILS TO DELIVER SUCH NOTICE AT LEAST THIRTY DAYS BEFORE
THE EXPIRATION OF THE THEN CURRENT TERM OF SUCH PREMISES LEASE
OR ADDITIONAL COLLATERAL LEASE, THEN, FFCA SHALL HAVE, AND IS
HEREBY GRANTED, A POWER OF ATTORNEY ON BEHALF OF DEBTOR TO
EXECUTE AND DELIVER SUCH EXTENSION NOTICE, IT BEING STIPULATED
THAT SUCH POWER OF ATTORNEY IS COUPLED WITH AN INTEREST AND
IRREVOCABLE. UPON THE REQUEST OF FFCA, DEBTOR SHALL EXECUTE ANY
DOCUMENTS OR INSTRUMENTS REASONABLY REQUIRED BY FFCA, ANY
PREMISES LESSOR OR THE LESSOR UNDER THE ADDITIONAL COLLATERAL
LEASE, AS APPLICABLE, IN ORDER TO CONFIRM THE EXISTENCE OF THE POWER
OF ATTORNEY SET FORTH IN THIS SUBSECTION (J), INCLUDING, WITHOUT
LIMITATION, SEPARATE POWERS OF ATTORNEY IN RECORDABLE FORM WITH RESPECT
TO THE MATTERS COVERED BY THIS SUBSECTION (J). FFCA SHALL FURTHER HAVE A
POWER OF ATTORNEY, IT BEING STIPULATED THAT SUCH POWER OF ATTORNEY IS
COUPLED WITH AN INTEREST AND IS IRREVOCABLE, TO EXECUTE ANY AND ALL OTHER
DOCUMENTS REQUIRED BY THIS AGREEMENT WITH RESPECT TO ALL PREMISES LEASES
AND TO PERFORM ANY AND ALL ACTS REQUIRED THEREBY, IF DEBTOR SHALL FAIL
TO DO SO WITHIN FIVE (5) DAYS AFTER DEMAND BY FFCA.
(ii) Prior to the expiration or termination date of
each of the Early Termination Leases, (each, an "Expiration
Date"), Debtor shall cause the lease term of each Early
Termination Lease to be extended pursuant to an agreement in
form and substance reasonably satisfactory to FFCA so that the
schedule expiration or termination date of each such Early
Termination Lease is subsequent to the schedule maturity date of
the Equipment Note ("xxx Xxxxxxxxxx"). If Debtor, in the
exercise of good faith efforts, is unable to obtain any of the
Extensions, Debtor shall notify FFCA, at least 60 days prior to
the Expiration Date, that Debtor will pay to FFCA the Paydown
Amount with respect to the Early Termination Lease for which
Debtor has been unable to obtain an Extension. Debtor shall pay
the Paydown Amount to FFCA on or before the scheduled Expiration
Date of the applicable Early Termination Lease. If, prior to an
Expiration Date, Debtor does not obtain the Extension or pay the
Paydown Amount an Event of Default shall be deemed
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to have occurred under this Agreement and the other Loan Documents and FFCA
shall be entitled to exercise all rights and remedies contemplated by this
Agreement and the other Loan Documents. The Paydown Amount
shall be deemed a payment of principal and any required
prepayment amount and shall be applied in accordance with the
terms of the Equipment Note. Upon payment of the Paydown
Amount, FFCA shall release the applicable Equipment to the
Premises subject to the Early Termination Lease from the
security interest created by the Equipment Security Agreement.
K. Financial Statements. Within 45 days after the end of
each fiscal quarter and within 120 days after the end of each
fiscal year of Debtor, Debtor shall deliver to FFCA (i) complete
financial statements of Debtor including a balance sheet, profit
and loss statement, statement of cash flows and all other
related schedules for the fiscal period then ended; (ii) income
statements for the business at the Premises; and (iii) such
other financial information as FFCA may reasonably request in
order to establish the compliance of Debtor with the financial
covenants in the Loan Documents. All such financial statements
shall be prepared in accordance with GAAP and shall be certified
to be accurate and complete by Debtor (or the Treasurer or other
appropriate officer of Debtor). Debtor understands that FFCA is
relying upon such financial statements and Debtor represents
that such reliance is reasonable. In the event that Debtor's
property and business at the Premises is ordinarily consolidated
with other business for financial statement purposes, such
financial statements shall be prepared on a consolidated basis
showing separately the sales, profits and losses, assets and
liabilities pertaining to the Premises with the basis for
allocation of overhead of other charges being clearly set forth.
The financial statements delivered to FFCA need not be audited,
but Debtor shall deliver to FFCA copies of any audited financial
statements of Debtor which may be prepared, as soon as they are
available.
L. Corporate Fixed Charge Coverage Ratio. Until such
time as all of Debtor's obligations under the Note and the other
Loan Documents are paid, satisfied and discharged in full,
Debtor shall maintain a Corporate Fixed Charge Coverage Ratio of
at least 1.15:1, as determined on each the last day of each
fiscal year of Debtor. For purposes of this Section, the term
"Corporate Fixed Charge Coverage Ratio" shall mean with respect
to the twelve month period of time immediately preceding the
date of determination, the ratio calculated for such period of
time, each as determined in accordance with GAAP, of (a) the sum
of Net Income, Depreciation and Amortization, Interest Expense
and Operating Lease Expense, minus income taxes or charges
equivalent to income taxes allocable to the period of
determination, to (b) the sum of Operating Lease Expense,
scheduled principal payments of long term Debt, scheduled
maturities of all Capital Leases and Interest Expense (excluding
non-cash interest expense and amortization of non-cash financing
expenses).
For purposes of this Section, the following terms shall be
defined as set forth below:
"Capital Lease" shall mean all leases of any property,
whether real, personal or mixed, by Debtor or any of the other
Debtor Entities, as applicable, which lease would, in conformity
with GAAP, be required to be accounted for as a capital lease on
the balance sheet of Debtor. The term "Capital Lease" shall not
include any operating lease.
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"Debt" shall mean with respect to Debtor and the other
Debtor Entities, collectively, and for 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, recorded as Capital
Leases, and (v) obligations under direct or indirect guarantees
in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (i) through (iv)
above.
"Depreciation and Amortization" shall mean the depreciation
and amortization accruing during any period of determination
with respect to Debtor and the other Debtor Entities,
collectively, as determined in accordance with GAAP.
"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 Debtor and the other Debtor
Entities, collectively, as determined in accordance with GAAP.
"Net Income" shall mean with respect to the period of
determination, the net income or net loss of Debtor and the
other Debtor Entities, collectively. In determining the amount
of Net Income, (i) adjustments shall be made for nonrecurring
gains and losses or non-cash items allocable to the period of
determination, (ii) deductions shall be made for, among other
things, Depreciation and Amortization, Interest Expense,
Operating Lease Expense and actual corporate overhead expense
allocable to the period of determination, and (iii) no
deductions shall be made for income taxes or charges equivalent
to income taxes allocable to the period of determination, as
determined in accordance with GAAP.
"Operating Lease Expense" shall mean the sum of all
payments and expenses incurred by Debtor and the other Debtor
Entities, collectively, under any operating leases during the
period of determination, including, without limitation, the
Premises Leases, as determined in accordance with GAAP.
M. Net Worth. At all times while the obligations of
Debtor to FFCA pursuant to the Loan Documents are outstanding,
Debtor shall maintain a net worth of at least $20 million, as
determined in accordance with GAAP.
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 Equipment Note, the Equipment
Security Agreement 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.
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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. Title to the Equipment shall be vested in
Debtor, free of all liens, encumbrances, restrictions,
encroachments and easements, except the liens created by the
Equipment Security Agreement and the UCC-1 Financing Statements.
Upon Closing, FFCA will obtain a valid and perfected first
priority lien upon and security interest in the Equipment.
B. Condition of Equipment. FFCA shall have inspected and
approved the Equipment, and the Equipment shall be in good
condition and repair and of good workmanship and materials, all
as determined by FFCA in its sole discretion, except where the
failure of the Equipment to be in such condition will not have a
Material Adverse Effect.
C. Compliance With Representations, Warranties and
Covenants. All obligations of Debtor under this Agreement shall
have been fully performed and complied with, and no event shall
have occurred or condition shall exist which would, upon the
Closing Date, or, upon the giving of notice and/or passage of
time, constitute a breach or default hereunder or under the Loan
Documents or any other agreement between FFCA and Debtor 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, the Equipment, Debtor
or FFCA's willingness to consummate the transaction contemplated
by this Agreement, as determined by FFCA in its sole and
absolute discretion.
D. Proof of Insurance. Debtor shall have delivered to
FFCA 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.
E. Opinion of Counsel to Debtor. Debtor shall have
caused Counsel to prepare and deliver an opinion to FFCA in form
and substance satisfactory to FFCA and its counsel.
F. 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 Closing Date, FFCA does not warrant
that it will thereafter have sufficient funds to consummate the
transaction contemplated by this Agreement.
G. Evidence of Ownership. Debtor shall have provided
FFCA with evidence reasonably satisfactory to FFCA that the
Equipment is owned by Debtor free and clear of all liens and
encumbrances, which evidence shall include, without limitation,
certified UCC financing statement searches, and to the extent
requested by FFCA and obtainable, bills of sale executed and
delivered by the vendors of the Equipment.
H. Leases. Each of the Premises Leases and Additional
Collateral Lease shall be in full force and effect and Debtor
shall be entitled to occupy the Premises and Additional
Collateral corresponding thereto. FFCA shall have approved each
Premises Lease and Additional Collateral Lease in
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its sole discretion and Debtor shall have delivered to FFCA an estoppel
certificate and consent for each Premises Lease other than the
Master Lease from the corresponding Premises Lessor and
Additional Collateral Lease, the form and substance of which
shall be satisfactory to FFCA in its sole discretion (each, a
"Lease Estoppel Certificate and Consent").
I. Title. Fee title to the portion of the Additional
Collateral owned in fee title by Debtor shall be vested in
Debtor and the portion subject to the Additional Collateral
Lease shall be leased by Debtor, in both cases, free of all
liens, encumbrances, restrictions, encroachments and easements,
except the Permitted Exceptions and the liens created by the
Additional Collateral Mortgage. Upon Closing, FFCA will obtain
a valid and perfected first priority lien upon the Additional
Collateral.
J. Condition of Premises. FFCA shall have inspected and
approved the Additional Collateral, the Additional Collateral
shall be in good condition and repair, free from structural
defects, and of good workmanship and materials, and the
Additional Collateral 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 Additional
Collateral to be in such condition will not have a Material
Adverse Effect.
K. Evidence of Title. FFCA shall have received for the
Additional Collateral a preliminary title report and irrevocable
commitment to insure title in the amount approved by FFCA, 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 Lawyers Title Insurance Company showing good and marketable
fee and leasehold title, as applicable, in the Additional
Collateral in Debtor, committing to insure FFCA's first priority
lien upon and security interest in the Additional Collateral
subject only to Permitted Exceptions, and containing such
endorsements as FFCA may require.
L. Survey. FFCA shall have received a current ALTA
survey of the Additional Collateral, 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 the Additional Collateral is not
within the 100-year flood plain or identified as a special flood
hazard area as defined by the Federal Emergency Management
Agency, or if the Additional Collateral is in such a flood plain
or special flood hazard area, Debtor shall provide FFCA with
evidence of flood insurance maintained on the Additional
Collateral in amounts and on terms and conditions satisfactory
to FFCA.
M. Environmental. At Debtor's expense, FFCA shall have
received an Environmental Policy with respect to the Additional
Collateral, as required by FFCA in its sole discretion.
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N. Zoning. Debtor shall have provided FFCA with evidence
satisfactory to FFCA that the Additional Collateral is properly
zoned for use as a Uni-Mart Facility and that such use
constitutes a legal, conforming use under applicable zoning
requirements.
O. 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 Escrow Agent 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) Equipment Note;
(2) Equipment Security Agreement;
(3) Proof of Insurance;
(4) Opinion of Counsel to Debtor;
(5) Lease Estoppel Certificates and Consents;
(6) UCC-1 Financing Statements;
(7) Certification (Confession of Judgment);
(8) Explanation and Waiver of Rights Regarding Confession of
Judgment; and
(9) Additional Collateral Mortgage.
Upon fulfillment or waiver of all of the above conditions, FFCA shall deposit
funds necessary to close this transaction with the Escrow Agent 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 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
renders any false statement or account in any material respect.
(2) If any principal, interest or other monetary sum due
under the Equipment Note, the Equipment Security Agreement 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,
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 property 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
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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 30-day 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 becomes insolvent within the meaning of the
Code, files or notifies FFCA that it intends to file a petition
under the Code, initiates a proceeding under any similar law or
statute relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts (collectively, an "Action"),
becomes the subject of either a petition under the Code or an
Action, or is not generally paying its debts as the same become
due or if Debtor 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" or a breach or
default, after the passage of all applicable notice and cure or
grace periods, under any other Loan Document, the Master Lease
or any of the Other Agreements.
(6) If there is a breach of the Corporate Fixed Charge
Coverage Ratio requirement.
(7) If there is a breach or default, after the passage of
any applicable notice and grace period, under any of the
Premises Leases or if any of the Premises Leases terminates or
expires prior to the scheduled maturity date of the Equipment
Note and, for any of the Early Termination Leases, Debtor has
not timely paid the Paydown Amount.
B. Upon the occurrence 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 Equipment Note, 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, and Debtor hereby waives
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notice of intent to accelerate the obligations secured by the Equipment Security
Agreement and Additional Collateral Mortgage 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 Equipment Note,
the Equipment Security Agreement, Additional Collateral Mortgage 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, 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. Except as expressly provided herein, 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 Equipment, except for Permitted Liens, 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
a breach of any of the representations, warranties, covenants, agreements or
obligations of Debtor set forth in this Agreement or any other Loan Document.
Without limiting the generality of the foregoing, such indemnity shall include,
without limitation, any engineering, governmental inspection and reasonable
attorneys' fees and expenses that the Indemnified Parties may incur by reason of
any representation set forth in this Agreement being false, or by reason of any
investigation or claim of any governmental agency in connection therewith.
13. SUBSTITUTION. If Master Lessor exercises its right to substitute a
Substitute Premises for a Premises pursuant to Section 13 of the Mortgage Loan
Agreement and the Equipment Loan is still outstanding, Debtor shall substitute
Substitute Equipment located at such Substitute Premises for the Equipment
located at the Premises, such substitution to occur simultaneously with the
closing of the substitution of such Substitute Premises and be otherwise on the
following conditions:
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(i) The proposed Substitute Equipment must:
(1) be suitable for use in a Uni-Mart Facility and in
good condition and repair, ordinary wear and tear excepted;
(2) be owned by and vested in Debtor, free and clear
of all liens and encumbrances; and
(3) have a fair market value no less than the greater
of the then fair market value of the Equipment to be
replaced or the fair market value of such Equipment as of
the Closing, all as reasonably determined by FFCA's in-
house inspectors and underwriters;
(ii) FFCA shall have inspected and approved the Substitute
Equipment utilizing FFCA customary 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 thirdparty
and/or in-house site inspectors' costs and expenses with respect
to the proposed Substitute Equipment. Debtor shall be solely
responsible for the payment of all costs and expenses resulting
from such proposed substitution, including, without limitation,
filing charges and expenses, the cost of stamp taxes and the
attorneys' fees and expenses of counsel to Debtor and FFCA;
(iii) FFCA shall have received UCC search results indicating that
the proposed Substitute Equipment is free and clear of all liens,
security Interests and encumbrances;
(iv) Debtor shall deliver, or cause to be delivered, with
respect to Debtor and the Substitute Equipment, opinions of
Counsel in form and substance comparable to those received at
Closing (but also addressing such matters unique to the
Substitute Equipment as may be reasonably required by FFCA);
(v) no Event of Default, and no event, action or inaction
that, with the passage of time or the giving of notice, or both,
would constitute an Event of Default, shall have occurred and be
continuing under any Loan Document or any Other Agreement;
(vi) Debtor shall have executed such documents as are
comparable to the security documents executed and delivered at
Closing (but with such revisions as may be reasonably required
by FFCA to address matters unique to the Substitute Equipment)
or amendments to such documents, including, without limitation,
an Equipment Security Agreement and UCC-1 Financing Statements
(the "Substitute Documents"), to provide FFCA with a first
priority lien on and security interests in the proposed
Substitute Equipment and all other rights, remedies and benefits
with respect to the proposed Substitute Equipment which FFCA
holds in the Equipment to be replaced, all of which documents
shall be in form and substance reasonably satisfactory to FFCA;
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(vii) the representations and warranties set forth in
the Substitute Documents and Section 6 of this Agreement
applicable to the proposed Substitute Equipment 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; and
(viii) Debtor shall have delivered to FFCA certificates of insurance
showing that insurance required by the Substitute Documents is in
full force and effect.
Upon satisfaction of the foregoing conditions with respect to the
release of the Equipment located at the Premises to be replaced:
(a) the proposed Substitute Equipment shall be deemed
substituted for the Equipment to be replaced, and the proposed
Substitute Premises shall be deemed substituted for the Premises
to be replaced;
(b) the Substitute Equipment shall be referred to as
"Equipment" and included within the definition of "Equipment,"
and the Substitute Premises shall be referred to as "Premises"
and included within the definition of "Premises";
(d) the Substitute Documents shall be dated as of the date
of the substitution and shall secure the same Obligations (as
defined in the Equipment Security Agreement) as were secured by
the Equipment; and
(e) FFCA will release, or cause to be released, the lien and security
interests of the Equipment Security Agreement, UCC-1 Financing
Statements and any other Loan Documents encumbering the replaced
Equipment.
14. MISCELLANEOUS PROVISIONS.
A. Notices. All notices, consents, approvals or other
instruments required or permitted to be given by either party
pursuant to this Agreement shall be in writing and given by (i)
hand delivery, (ii) facsimile, (iii) express overnight delivery
service or (iv) certified or registered mail, return receipt
requested, and shall be deemed to have been delivered upon (a)
receipt, if hand delivered, (b) transmission, if delivered by
facsimile, (c) the next business day, if delivered by express
overnight delivery service, or (d) the third business day
following the day of deposit of such notice with the United
States Postal Service, if sent by certified or registered mail,
return receipt requested. Notices shall be provided to the
parties and addresses (or facsimile numbers, as applicable)
specified below:
If to Debtor: N. Xxxxxxx Xxxxxxx
Senior Vice President
Uni-Marts, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Telecopy: 000-000-0000
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If to FFCA: Xxxxxx X. Xxxxx, Esq.
Executive Vice President, General Counseland
Secretary
FFCA Funding Corporation
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
B. Brokerage Commission. FFCA and Debtor represent and
warrant to each other that they have dealt with no 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.
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.
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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
reasonable attorneys' fees and other costs in addition to any
other relief to which it may be entitled. References in this
Agreement to the attorneys' fees and/or costs of FFCA shall mean
both the fees and costs of independent outside counsel retained
by FFCA with respect to this transaction and the fees and costs
of FFCA's in-house counsel incurred in connection with this
transaction.
J. Entire Agreement. This Agreement and
the other Loan Documents, together with any other certificates,
instruments or agreements to be delivered in connection
therewith, constitute the entire agreement between the parties
with respect to the subject matter hereof, and there are no
other representations, warranties or agreements, written or
oral, between Debtor and FFCA with respect to the subject matter
of this Agreement. Notwithstanding anything in this Agreement
to the contrary, upon the execution and delivery of this
Agreement by Debtor and FFCA, the Commitment shall be null and
void and of no further force and effect and the terms and
conditions of this Agreement shall control notwithstanding that
such terms and conditions 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 Equipment
Note 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 state where the Equipment
is 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 state
in which the Equipment is located to the extent FFCA deems such
proceeding necessary or advisable to exercise remedies available
under this Agreement or the other Loan Documents.
L. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of Debtor and FFCA and their respective
successors and permitted assigns, including, without limitation,
any United States trustee, any debtor in possession or any
trustee appointed from a private panel.
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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 the Equipment
Note, the Equipment Security Agreement 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 the Equipment Note, the Equipment Security
Agreement 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 by a
purchaser, transferee, assignee, servicer, participant, investor
or rating agency involved with respect to such Transfer,
Participation and/or Securitization, as
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applicable; provided, however, Debtor 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 and/or Securitization, so long
as such amendments would not have a material adverse effect upon
Debtor 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, the Equipment or
the financial condition of Debtor to each purchaser, transferee,
assignee, servicer, participant, investor or rating agency
involved with respect to each 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, the other Loan Documents or any Other
Agreements:
(a) a breach or default, after the passage of all
applicable notice and cure or grace periods, under any Loan
Document 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 or Other Agreement
which relates to a loan which has been the subject of a
ecuritization, Participation or Transfer;
(b) a breach or default, after the passage of all
applicable notice and cure or grace periods, under any Loan
Document 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 or Other Agreement which relates to a loan
which is included in any other Loan Pool;
(c) the Loan Documents corresponding to the Equipment
Note in any Loan Pool shall not secure the obligations of
any of the Debtor Entities contained in any Loan Document
or Other Agreement which does not correspond to a loan in
such Loan Pool; and (d) the Loan Documents and Other
Agreements which do not correspond to a loan in any Loan
Pool shall not secure the obligations of any of the Debtor
Entities contained in any Loan Document or Other Agreement
which does correspond to a loan in such Loan Pool.
Q. Release of Additional Collateral. Debtor upon: (i)
providing FFCA with at least 30 days prior written notice, and
(ii) payment of the Release Amount on a regularly scheduled
payment date under the Equipment
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Note, shall be entitled to obtain a release of the Additional
Collateral from the Additional Collateral Mortgage.
IN WITNESS WHEREOF, Debtor and FFCA have entered into this
Agreement as of the date first above written.
FFCA:
FFCA FUNDING CORPORATION, a
Delaware corporation
By /S/ XXXX X. XXXX
Printed Name Xxxx X. Xxxx
Its Vice President
DEBTOR:
UNI-MARTS, a Delaware corporation
By /S/ N. XXXXXXX XXXXXXX
N. Xxxxxxx Xxxxxxx
Senior Vice President
POWER OF ATTORNEY
FFCA may act as attorney-in-fact or otherwise on behalf of
Debtor pursuant to Section 7.J of this Agreement. This power of
attorney is coupled with an interest, is durable and is not affected
by subsequent disability or incapacity of the principal or lapse of
time.
/S/ XXXXX X. XXXXXX /S/ N. XXXXXXX XXXXXXX
------------------------- --------------------------
Witness Debtor
WITNESS
In accordance with the requirements of Arizona Revised Statutes
Section 14-5506 and other applicable law, the undersigned has executed this
Agreement for the purpose of witnessing the grant of the powers of attorney by
Debtor to FFCA.
/S/ XXXXXX X. XXXXXXXXX
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