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REVOLVING LOAN AGREEMENT
THIS REVOLVING LOAN AGREEMENT (this "Agreement") is made as of June
30, 1998 by and between FFCA ACQUISITION CORPORATION, a Delaware
corporation ("FFCA"), whose address is 00000 Xxxxx Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, and UNI-MARTS, INC., 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 Loans. The Loans and the
Letter of Credit Amount will be evidenced by the Notes 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 11.A(4).
"Advance" or "Advances" means, as the context may require, any
advance of the proceeds of the Loans, or all Advances made by FFCA
pursuant to the terms of Section 2.
"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.
"Business Day" means a day on which banks located in Phoenix,
Arizona are not required or authorized to remain closed.
"Closing" shall have the meaning set forth in Section 5.
"Closing Date" shall have the meaning set forth in Section 5.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101
et seq., as amended.
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"Commitment" means that certain Commitment Letter dated April 22,
1998 between FFCA and Debtor, and any amendments or supplements thereto.
"Counsel" means legal counsel to Debtor, licensed in the states in
which (i) the Premises are located, (ii) Debtor is incorporated, and
(iii) Debtor maintains its principal place of business, as selected by
Debtor and approved by FFCA.
"Debtor Entities" means, collectively, Debtor and any Affiliate of
Debtor.
"De Minimis Amounts" shall mean, 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 which does not constitute a violation of any Environmental Laws and
is customarily employed in, or associated with, similar businesses
located in the states in which the Premises are located.
"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 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 or FFCA by any third party (including,
without limitation, any Governmental Authority), including, without
limitation, any condition resulting from the operation of Debtor's
business, 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 FFCA 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 FFCA 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 such environmental insurance company
as FFCA may select in its sole discretion.
"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, USTs and/or the protection of human health or the environment
by reason of a Release or a Threatened Release of Hazardous Materials 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 promulgated pursuant thereto, and any state or local
statutes, ordinances, rules, regulations and the like addressing similar
issues: the Comprehensive Environmental Response, Compensation
and Liability Act; the Emergency Planning and Community Right-to-Know
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Act; the Hazardous Materials Transportation Act; the Resource
Conservation and Recovery Act (including but not limited to Subtitle I
relating to underground storage tanks); 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 with respect to Hazardous Materials, Regulated Substances and
USTs; 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 and 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 and 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 and USTs in,
on, under or above the Premises.
"Environmental Policies" means those certain 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.
"Event of Default" has the meaning set forth in Section 11.
"Fee" means a commitment fee equal to $30,000.00, which represents
1.0% of the Maximum Loan Amount, which Fee shall be payable as set forth
in Section 4.
"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.
"Governmental Authority" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the states where the
Premises are located or any political subdivision thereof.
"Hazardous Materials" means (i) any toxic substance or hazardous
waste, substance, solid waste or related material, or any pollutant or
contaminant; (ii) 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; (iii)
any substance, gas, material or chemical which is or may be defined as or
included in the definition of "hazardous substances," "toxic substances,"
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"hazardous materials," hazardous wastes" or words of similar import under
any Environmental Laws; and (iv) 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 13.
"Letters of Credit" means those certain standby letters of credit to
be issued as of the Closing Date by the Letter of Credit Provider
pursuant to the Letter of Credit Documents in the Letter of Credit Amount
for a period of one year.
"Letter of Credit Amount" means the aggregate amount of
$2,700,000.00, which shall be allocated to each Premises in accordance
with its Premises Percentage.
"Letter of Credit Documents" means that certain Application and
Agreement for Standby Letter of Credit dated on or about the date first
above written executed by FFCA and Debtor and delivered to the Letter of
Credit Provider, all other documents executed in connection therewith
or contemplated thereby, and all amendments and modifications to and
renewals of such documents.
"Letter of Credit Fee" means a letter of credit fee equal to 4% of
the Letter of Credit Amount, which Letter of Credit Fee shall be payable
on the Closing Date as contemplated by Section 3.D of this Agreement.
"Letter of Credit Obligations" has the meaning set forth in Section
3 of this Agreement.
"Letter of Credit Provider" means the banking subsidiary of
NationsBank Corporation that issues the Letters of Credit.
"Loan" or "Loans" means, as the context may require, the revolving
line of credit loan for each Premises, or the revolving line of credit
loans for all of the Premises, as described in Section 2.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Mortgages, the Related Loan Documents, the Environmental Indemnity
Agreements, the UCC-1 Financing Statements and all other documents
executed in connection therewith or contemplated thereby.
"Material Adverse Effect" means a material adverse effect on (i) the
business, condition, worth or operations of Debtor 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.
"Maturity Date" shall have the meaning set forth in the Notes.
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"Maximum Loan Amount" means, on the Closing Date, $3,000,000.00,
which shall be allocated to each Premises in accordance with its Premises
Percentage and subsequent to the Closing Date, $3,000,000 less the Letter
of Credit Obligations.
"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.
"Note" or "Notes" means, as the context may require, the promissory
note dated as of the date of this Agreement in the Premises Loan Amount
to be executed by Debtor in favor of FFCA 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 with respect to all of the Premises,
as the same may be amended from time to time, including, without
limitation, as contemplated by Section 2.C. A Note will be executed for
each Premises in the Premises Loan Amount.
"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 but excluding the Loan
Documents.
"Participation" has the meaning set forth in Section 14.P.
"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.
"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, improvements and fixtures now or
hereafter located thereon. As used herein, the term "Premises" shall
mean either a singular property or all of the properties collectively, as
the context may require.
"Premises Letter of Credit Amount" means the Letter of Credit
Amount, which shall be allocated to each Premises in accordance with its
Premises Percentage.
"Premises Loan Amount" means the sum of the Premises Letter of
Credit Amount and the Premises Revolver Loan Amount, which shall be
allocated to each Premises in accordance with its Premises Percentage.
"Premises Revolver Loan Amount" means the Maximum Loan Amount, which
shall be allocated to each Premises in accordance with its Premises
Percentage.
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"Premises Percentage" means the percentage for each Premises set
forth on Exhibit C, which is determined by comparing the Premises Loan
Amount to the sum of the Letter of Credit Amount and the Maximum Loan
Amount.
"Questionnaires" means the environmental questionnaires completed by
Debtor with respect to the Premises and submitted to Environmental
Insurer in connection with the issuance of the Environmental Policies.
"Related Loan Documents" means the Loan Agreement and Real Property
Loan Agreement of even date herewith by and between Debtor and FFCA and
all other documents executed or to be executed in connection therewith or
contemplated thereby.
"Regulated Substances" means "petroleum" and "petroleum-based
substances" or any similar terms described or defined in any
Environmental Laws and any applicable federal, state, county or local
laws applicable to or regulating USTs.
"Release" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring,
emptying, escaping, dumping, disposing or other movement of Hazardous
Materials, Regulated Substances or USTs.
"Remediation" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or
otherwise remediate any Hazardous Material, Regulated Substances or USTs,
any actions to prevent, cure or mitigate any Release, any action
to comply with any Environmental Laws or with any permits issued pursuant
thereto, any inspection, investigation, study, monitoring, assessment,
audit, sampling and testing, laboratory or other analysis, or any
evaluation relating to any Hazardous Materials, Regulated Substances or
USTs.
"Securitization" has the meaning set forth in Section 14.P.
"Securitized Loan Pool" means any pool or group of loans that are a
part of any Securitization transaction.
"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 5.
"Transfer" has the meaning set forth in Section 14.P.
"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 (i) with respect to those Premises listed
on Exhibit A-1, a Uni-Mart convenience store and gasoline station; (ii)
with respect to those Premises listed on Exhibit A-2, a Uni-Mart
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convenience store; (iii) with respect to those Premises listed on Exhibit
A-3, a Choice Cigarette discount outlet and gasoline station; and (iv)
with respect to those Premises listed on Exhibit A-4, a Choice Cigarette
discount outlet.
"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. LOANS. A. On the terms and subject to the conditions set
forth in the Loan Documents, FFCA shall make the Loans, which Loans will
be in the form of an Advance in the aggregate amount of the Maximum Loan
Amount made as of the Closing Date and, subject to the Maximum Loan
Amount limitation, subsequent Advances made from time to time as provided
in this Agreement. The outstanding aggregate principal amount of the
Loans shall not exceed the Maximum Loan Amount at any time. So long as
no event has occurred and is continuing which is, or with the passage of
time or the giving of notice or both would constitute an Event of Default
under the Loan Documents, Debtor may borrow, prepay and reborrow, from
the Closing Date until the Maturity Date, an amount up to the Maximum
Loan Amount. Debtor shall not request an Advance in an amount less than
$100,000.00 and no more frequently than once in a calendar month.
B. Simultaneously with the execution and delivery of this
Agreement, Debtor shall execute and deliver to FFCA the Notes. The
obligation of Debtor to pay the outstanding aggregate principal amount of
all Advances plus accrued interest thereon shall be evidenced by the
Notes. All Advances and payments shall be allocated to the Notes
according to the Premises Percentage. All payments shall be allocated to
the Notes according to the Premises Percentage and applied in accordance
with the terms of the Notes. Each Note shall be secured by the related
Mortgage.
C. Debtor irrevocably authorizes FFCA to make or cause to be made,
at or about the time of any Advance or at the time of FFCA's receipt of
any payment of the principal amount of the Loans, an appropriate notation
in FFCA's records reflecting the amount of such Advance or payment, as
applicable, and the allocation of such Advance and allocation of such
payment to each of the Notes, as applicable. The outstanding principal
amount of the Notes plus accrued interest thereon set forth in FFCA's
records maintained with respect to the Notes (which may include computer
records) shall, absent manifest error, be prima facie evidence of the
outstanding principal amount plus accrued interest thereon due and owing
to FFCA, but the failure to record, or any error in so recording, any
such amount on FFCA's records shall not limit or otherwise affect the
obligations of Debtor under the Notes to make payments when due.
Notwithstanding the foregoing, and subject to Section 8.C hereof, Debtor
agrees to execute such amendments to the Notes, amendments and
restatements of the Notes and/or substitute and/or additional promissory
notes in the form of the Notes as FFCA may reasonably request to evidence
Debtor's obligations to FFCA under the Loan Documents.
D. Debtor shall notify FFCA at least five Business Days before the
Business Day on which Debtor desires to receive an Advance; provided,
however, Debtor acknowledges that each Advance shall be made on the first
Business Day of the month immediately following the month in which Debtor
notifies FFCA of its desire to receive such Advance. Each such notice
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shall be in the form of Exhibit B attached hereto (each, a "Notice"), and
shall set forth the requested amount of each Advance and such other
information required by the Notice. Each Notice shall constitute
a certification by Debtor that the representations and warranties of
Debtor set forth in the Loan Documents are true, correct and complete in
all material respects as of the date of such Notice and as of the date of
such requested Advance and that Debtor has satisfied each of the
conditions precedent set forth in this Agreement. FFCA's obligation to
fund each Advance shall be subject to the satisfaction of the following
conditions precedent as of the date of the requested Advance:
(i) no event shall have occurred and be continuing which is,
or with the passage of time or the giving of notice or both would
constitute an Event of Default under the Loan Documents or any of
the Other Agreements;
(ii) Debtor shall be in compliance with each of the covenants
set forth in Section 8 hereof;
(iii) the aggregate outstanding principal balance of the
Loans, together with the amount of the requested Advance, shall not
exceed the Maximum Loan Amount; and
(iv) there shall have been no material adverse change in
Debtor's business, operations, assets or financial condition since
the Closing Date, as determined by FFCA in its reasonable
discretion.
Upon Debtor's satisfaction of the foregoing conditions, FFCA will
disburse the requested Advance in immediately available funds to such
account as Debtor shall have specified in the Notice or as otherwise
directed by Debtor in the Notice.
E. The Loans shall bear interest at a variable rate of interest as
set forth in the Notes and shall be payable in arrears on the first day
of each month based on the then outstanding principal balance of the
Notes. Debtor shall have the right to prepay (without premium or
penalty) the Notes in whole or in part at any time provided that any such
prepayment shall only be made on a regularly scheduled payment date upon
not less than 10 days prior written notice from Debtor to FFCA. All
prepayments shall be allocated to the Notes based on the Premises
Percentage and applied in accordance with the terms of the Notes. Unless
otherwise paid prior to the Maturity Date, Debtor shall pay on the
Maturity Date, and there shall become absolutely due and payable on the
Maturity Date, the outstanding principal amount of the Loans and all
accrued but unpaid interest thereon.
F. If the Loans are paid in full, and Debtor shall have by notice
terminated FFCA's obligation to make any further Advances, and no Event
of Default or event or circumstance which, with the giving of notice,
passage of time or both, would result in an Event of Default, exists,
then FFCA shall release from the lien of the related Mortgages such
Premises as negotiated, in good faith, between FFCA and Debtor such that
the remaining Premises shall fully secure Debtor's obligations under the
Letter of Credit Documents. If Debtor and FFCA are unable to agree on
the Premises to be released, then FFCA's determination as to the Premises
to be released and which of the Premises shall remain to secure the
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Debtor's obligations under the Letter of Credit Documents shall control.
Following such release, the Premises Percentage shall be adjusted to
reflect the ratio of each original Premises Loan Amount to the Letter of
Credit Amount.
3. LETTER OF CREDIT OBLIGATIONS. A. Debtor and FFCA agree to
execute and deliver the Letter of Credit Documents on or before the
Closing Date.
B. Debtor agrees to pay, and reimburse FFCA on demand for, all
charges, fees, costs and expenses, including, without limitation,
reasonable attorneys' and accountants' fees and expenses, and any other
amounts paid by FFCA pursuant to or under the Letter of Credit Documents
or otherwise incurred by FFCA with respect to the Letter of Credit
Documents (the "Letter of Credit Obligations"). All Letter of Credit
Obligations shall be deemed allocated to the Notes based on the Premises
Percentage. The Letter of Credit Obligations are and shall be absolute
and unconditional, and shall be paid or performed strictly in accordance
with this Agreement and the other Loan Documents under all circumstances
irrespective of:
(i) any lack of validity or enforceability of, or any
amendment or other modifications of, or waiver with respect to this
Agreement, any of the other Loan Documents, any of the Letters of
Credit or any of the Letter of Credit Documents;
(ii) any exchange or release of any other obligations
under this Agreement, any of the other Loan Documents, any of the
Letters of Credit or any of the Letter of Credit Documents;
(iii) the existence of any claim, setoff, defense, reduction,
abatement or other right which Debtor may have at any time against
FFCA or any other Person;
(iv) any document presented in connection with this Agreement,
any of the other Loan Documents, the Letters of Credit or any of the
Letter of Credit Documents proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(v) any payment by FFCA under any of the Letter of Credit
Documents as a result of a payment by the Letter of Credit Provider
of any Letter of Credit against presentation of a certificate or
other document which does not strictly comply with the terms of such
documents;
(vi) any breach by Debtor of any representation, warranty or
covenant contained in this Agreement, any other Loan Documents, any
of the Letters of Credit or any of the Letter of Credit Documents;
or
(vii) any other circumstances, other than payment in full,
which might otherwise constitute a defense available to, or
discharge of, Debtor in respect of this Agreement, the other Loan
Documents, the Letters of Credit or any of the Letter of Credit
Documents.
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C. Letter of Credit Obligations shall bear interest from the date
paid by FFCA to the date of actual reimbursement by Debtor, or on behalf
of Debtor, at the lesser of the highest rate for which Debtor may legally
contract, or the rate of 14% per annum, and such interest shall be
included within the Letter of Credit Obligations for which Debtor must
reimburse FFCA as set forth in Section 3.B. Notwithstanding anything to
the contrary contained in any of the Loan Documents, the obligations of
Debtor to FFCA under this subsection are subject to the limitation
that payments of interest to FFCA shall not be required to the extent
that receipt of any such payment by FFCA would be contrary to provisions
of applicable law limiting the maximum rate of interest that may be
charged or collected by FFCA. All payments of the Letter of Credit
Obligations shall be allocated to the Notes in accordance with the
Premises Percentage and applied in accordance with the Notes.
D. Debtor shall pay FFCA a Letter of Credit Fee on the Closing
Date. The Letter of Credit Fee shall be deemed fully earned and
nonrefundable upon FFCA's receipt. The Letter of Credit Fee due and
payable on the Closing Date shall equal 4% of the Letter of Credit Amount
as of the Closing Date.
E. FFCA shall have no obligation to renew, apply for or obtain a
renewal of the Letter of Credit past the one-year term of the Letter of
Credit.
F. If FFCA receives notice of a draw request under the Letter of
Credit, then FFCA shall use good faith efforts to provide Debtor, to the
person set forth in Section 14.A., with telephonic notice of such draw
request.
4. UNDERWRITING, SITE ASSESSMENT, 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 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 Maximum 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).
5. 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 June 30, 1998, 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. Title Company shall not cause the transaction to
close unless and until it has received written instructions from FFCA and
Debtor to do so. All costs of such transaction shall be borne by Debtor,
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including, without limitation, the cost of title insurance and
endorsements, survey charges, the attorneys' fees of Debtor, attorneys'
fees and expenses of FFCA, the cost of the environmental reports and the
Environmental Policies to be delivered pursuant to Section 10.E, FFCA's
in-house site inspection costs and fees, stamp taxes, mortgage
taxes, transfer fees, escrow and recording fees and site inspection fees
for the Premises. All real and personal property and other applicable
taxes and assessments and other charges relating to the Premises which
are due and payable on or prior to the Closing Date as well as taxes and
assessments due and payable subsequent to the Closing Date but which
Title Company requires to be paid at Closing as a condition to the
issuance of the title insurance policy described in Section
10.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 this transaction. 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 check, certified check or wire transfer, as directed by FFCA.
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.
6. REPRESENTATIONS AND WARRANTIES OF FFCA. The representations
and warranties of FFCA contained in this Section are being made by FFCA
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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.
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.
7. 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, 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 generally accepted accounting principles consistently
applied 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 to authorize the execution, delivery and performance of
this Agreement and of the other documents, instruments and agreements
provided for herein.
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(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 documents, instruments and agreements
to be executed in connection with this Agreement, 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 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 is not, and the
authorization, execution, delivery and performance of this Agreement
and the documents, instruments and agreements provided for herein
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 or any of the property of Debtor is subject or
bound. The authorization, execution, delivery and performance of
this Agreement and the documents, instruments and agreements
provided for herein 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 the Premises solely for the operation of Uni-Mart
Facilities, and related ingress, egress and parking, and for no
other purposes. 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. 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.
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.
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I. Licenses and Permits; Access. Debtor has all required
licenses and permits, both governmental and private, to use and
operate the Premises as a Uni-Mart Facility. There are adequate
rights of access to public roads and ways available to the Premises
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 are of good
workmanship and materials, fully equipped and operational, in good
condition and repair, free from structural defects, clean, orderly
and sanitary, safe, well-lit, landscaped, decorated, attractive and
well-maintained.
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 De Minimis Amounts and
in compliance with all applicable 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)
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received any notice under the citizen suit provision of any
Environmental Law in connection with the Premises or any facilities,
operations or activities conducted thereon, or any business
conducted in connection therewith; or (c) received any request for
inspection, request for information, notice, demand, administrative
inquiry or any formal or informal complaint or claim with respect
to or in connection with the violation or threatened violation of
any Environmental Laws or existence of Hazardous Materials,
Regulated Substances or USTs relating to the Premises or any
facilities, operations or activities conducted thereon or any
business conducted in connection therewith.
L. Environmental Questionnaires. The information and
disclosures in the Questionnaires are 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.
M. Title to Premises; First Priority Lien. Fee title to each
of the Premises is vested in Debtor, free and clear of all liens,
encumbrances, charges and security interests of any nature
whatsoever, except the Permitted Exceptions. Upon Closing, FFCA
shall have a first priority lien upon and security interest in each
of the Premises pursuant to the Mortgages and the UCC-1 Financing
Statements.
N. No Other Agreements and Options. Neither Debtor 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 prevent or hinder
Debtor from fulfilling its obligations under this Agreement or the
other Loan Documents.
O. No Mechanics' Liens. There are no outstanding accounts
payable which if not paid timely would have a Material Adverse
Effect, 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; 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 from and against any and all such mechanics' lien claims,
accounts payable or other commitments relating to the Premises.
P. 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
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FFCA in determining the Maximum Loan Amount, and such analysis will
not be made available to Debtor.
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. 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.
8. COVENANTS. Debtor covenants to FFCA from and after the Closing
Date as follows:
A. Inspections. Debtor shall, at all reasonable times, (i)
provide FFCA and FFCA's officers, employees, agents, advisors,
attorneys, accountants, architects, and engineers with access to the
Premises, all drawings, plans, and specifications for the Premises
in the possession of Debtor, all engineering reports relating to the
Premises in the possession of Debtor, the files and correspondence
relating to the Premises, and the financial books and records,
including lists of delinquencies, relating to the ownership,
operation, and maintenance of the Premises, and (ii) allow such
persons to make such inspections, tests, copies, and verifications
as FFCA considers necessary.
B. Corporate 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
maintain a corporate fixed charge coverage ratio ("CFCCR") of at
least 1.25:1, as determined on the last day of each fiscal quarter
of Debtor (the "Date of Determination"). For purposes of this
Section, the term "CFCCR" shall mean with respect to the three month
period of time immediately preceding the Date of Determination (a
"Period of Determination"), the ratio calculated for such period of
time of (a) the sum of Net Income, Depreciation and Amortization,
Interest Expense and Operating Lease Expense, to (b) the sum of
Operating Lease Expense, current maturities of Debt, current
maturities of all Capital Leases and Interest Expense.
For purpose 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, which, in conformity with GAAP, would be
required to be accounted for on Debtor's balance sheet as a capital lease
and which is applicable to one or more of Debtor's properties.
"Debt" shall mean, for the Period of Determination:
(A) indebtedness for borrowed money;
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(B) obligations evidenced by bonds, indentures, notes or
similar instruments;
(C) obligations to pay the deferred purchase price of
property or services;
(D) obligations under leases which should be, in
accordance with GAAP, recorded as Capital Leases; and
(E) 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 (A) through (D)
above,
allocable to Debtor; provided, however, Debt shall not include
Debtor's obligations to the Letter of Credit Provider with respect
to the Letters of Credit.
"Depreciation and Amortization" shall mean, for the Period of
Determination, depreciation and amortization as determined in
accordance with GAAP allocable to Debtor.
"Equipment Payment Amount" shall mean for the Period of
Determination the sum of all amounts payable under all loans secured
by equipment at the Premises.
"GAAP" means generally accepted accounting principles
consistently applied.
"Interest Expense" shall mean, for the Period of Determination,
the sum of all interest accrued or which should be accrued in
respect of all Debt, including interest attributable to Capital
Leases, as determined in accordance with GAAP, allocable to Debtor.
"Net Income" shall mean, for the Period of Determination, the
net income or net loss of Debtor allocable to Debtor. In
determining the amount of Net Income, (1) adjustments shall be made
for nonrecurring gains and losses allocable to the Period of
Determination, (2) deductions shall be made for, among other things,
Depreciation and Amortization, Interest Expense and Operating Lease
Expense allocable to the Period of Determination, (3) 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, and (4) a deduction shall be made for actual
corporate overhead expense allocable to the Period of Determination.
"Operating Lease Expense" shall mean, for the Period of
Determination, the expenses incurred under any operating lease, as
determined in accordance with GAAP, allocable to Debtor.
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
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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 the result of a Lost
Note.
D. Net Worth. At all times while the obligations of Debtor
to FFCA pursuant to this Agreement are outstanding, Debtor shall
maintain a net worth of at least $20,000,000.00, as determined in
accordance with generally accepted accounting principles
consistently applied.
E. Reporting Obligations. Debtor will provide FFCA with each
of the following:
(i) Event of Default. Promptly, but in any event within
two Business Days, after Debtor becomes aware of an Event of
Default, written notification to an officer of FFCA specifying
the nature and period of existence thereof and what action
Debtor is taking or proposes to take with respect thereto.
(ii) Certificates. At the time of each Advance, a
certificate of an officer of Debtor substantially in the form
attached hereto as Exhibit B.
(iii) Auditors' Reports. Promptly upon receipt thereof, a
copy of each report submitted to Debtor by its independent
accountants in connection with any annual, interim or special
audit made by it of the books of Debtor.
(iv) Other Information. Promptly after the receipt of
written request therefor from FFCA, information concerning
Debtor reasonably requested by FFCA that is required to satisfy
all requirements applicable to FFCA pursuant to the Securities
Exchange Act of 1934 and all other regulatory laws applicable
to FFCA or to which FFCA is subject or bound.
F. Use of Proceeds. Debtor shall only use the proceeds of
the Loans to finance the Premises and for working capital purposes.
9. 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 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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10. CONDITIONS OF CLOSING. The obligation of FFCA to consummate
the transaction contemplated by this Agreement is subject to the
fulfillment or waiver of each of the following conditions:
A. Title. Fee title to each of the Premises shall be vested
in Debtor, free of all liens, encumbrances, restrictions,
encroachments and easements, except the Permitted Exceptions and the
liens created by the Mortgages and the UCC-1 Financing Statements.
Upon Closing, FFCA will obtain a valid and perfected first priority
lien upon and security interest in each of the Premises.
B. Condition of Premises. FFCA shall have inspected and
approved the Premises, the Premises shall be in good condition and
repair 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.
C. Evidence of Title. FFCA shall have received for each of
the Premises 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 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
liens, encumbrances, restrictions and easements approved by FFCA,
and containing such endorsements as FFCA may require.
D. Survey. FFCA shall have received a current ALTA survey of
each of the Premises, the form and substance of which shall be
satisfactory to FFCA in its sole discretion. Debtor shall have
provided FFCA with evidence satisfactory to FFCA that the
location of each of the Premises is not within the 100-year flood
plain or identified as a special flood hazard area as defined by the
Federal Insurance Administration, 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 Uni-Mart Facility and that such use constitutes a legal,
conforming use under applicable zoning requirements.
G. Compliance With Representations, Warranties and Covenants.
All obligations of Debtor under this Agreement shall have been fully
performed and complied with, and no event shall have occurred or
condition shall exist which would, upon the Closing Date, or, upon
the giving of notice and/or passage of time, constitute a breach or
default hereunder or under the Loan Documents or any other agreement
between FFCA and Debtor pertaining to the subject matter hereof, and
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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
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. Opinions of Counsel to Debtor. Debtor shall have caused
Counsel to prepare and deliver one or more opinions to FFCA in form
and substance satisfactory to FFCA and its counsel.
J. Letters of Credit. The Letter of Credit Provider shall
have issued the Letters of Credit.
K. 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) Opinions of Counsel to Debtor;
(5) Evidence of satisfactory zoning;
(6) UCC-1 Financing Statements;
(7) Environmental Indemnity Agreements; and
(8) Certifications (Confessions of Judgment), as
appropriate.
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.
11. 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 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
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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 CFCCR requirements
or any of the covenants in Sections 8.F, 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 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, hereinafter, an "Action"),
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" under any other Loan
Document or a breach or default, after the passage of all applicable
notice and cure or grace periods, under any of the Other Agreements.
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(6) If Debtor fails to observe or perform any of the covenants
in Sections 8.F of this Agreement.
(7) If there is a breach of the CFCCR requirement.
(8) If Debtor fails to perform any of its obligations under
any of the Letter of Credit Documents or if Debtor is otherwise in
breach or default under any of the Letter of Credit Documents, or if
Debtor fails to reimburse FFCA for any of the Letter of Credit
Obligations as contemplated by Section 3 of this Agreement.
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.
12. 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 assignment of
FFCA's right and interest hereunder, FFCA shall remain liable 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 or any of them,
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 Mortgage.
13. 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
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invitees, as applicable (collectively, the "Indemnified Parties"), from
and against any and all losses, costs, claims, liabilities, damages and
expenses, including, without limitation, reasonable attorneys' fees,
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. Without
limiting the generality of the foregoing, such indemnity shall include,
without limitation, any engineering, governmental inspection and
reasonable attorneys' fees and expenses that the Indemnified Parties may
incur by reason of any representation set forth in this Agreement being
false, or by reason of any investigation or claim of any Governmental
Authority in connection therewith.
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: J. Xxxx Xxxxxxxx
Executive Vice President and
Chief Financial Officer
Uni-Marts, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to FFCA: Xxxxxx X. Xxxxx, Esq.
Executive Vice President and General Counsel
FFCA Acquisition Corporation
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
B. Real Estate 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.
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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.
I. Attorneys' Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement, the
prevailing party shall be entitled to recover its attorneys' fees and
other costs in addition to any other relief to which it may be entitled.
References in this Agreement to the attorneys' fees and/or costs of FFCA
shall mean both the fees and costs of independent outside counsel
retained by FFCA with respect to this transaction and the fees and costs
of FFCA's in-house counsel incurred in connection with this transaction.
J. Entire Agreement. This Agreement and the other Loan Documents,
together with any other certificates, instruments or agreements to be
delivered in connection therewith, constitute the entire agreement
between the parties with respect to the subject matter hereof, and
there are no other representations, warranties or agreements, written or
oral, between Debtor and FFCA with respect to the subject matter of this
Agreement. Notwithstanding anything in this Agreement to the contrary,
upon the execution and delivery of this Agreement by Debtor and
FFCA, the Commitment shall be deemed null and void and of no further
force and effect and the terms and conditions of this Agreement shall
control notwithstanding that such terms may be inconsistent with or vary
from those set forth in the Commitment.
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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 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. To the extent that a court of
competent jurisdiction finds Arizona law inapplicable with respect to any
provisions hereof, then, as to those provisions only, the laws of
the states where the Premises are located shall be deemed to apply.
Nothing in this Section shall limit or restrict the right of FFCA to
commence any proceeding in the federal or state courts
located in the states in which the Premises are located to the extent
FFCA deems such proceeding necessary or advisable to exercise remedies
available under this Agreement or the other Loan Documents.
L. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of Debtor and FFCA and their respective successors and
permitted assigns, including, without limitation, any United States
trustee, any debtor in possession or any trustee appointed from a
private panel.
N. Survival. Except for the conditions of Closing set forth in
Section 10, 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 WITH RESPECT TO ANY AND ALL ISSUES
PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT
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BY IT 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. THE WAIVER BY
DEBTOR 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 Securitization. (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, sell, transfer or assign any Note, any Mortgage and any of
the other Loan Documents, and any or all servicing rights with respect
thereto (each, a "Transfer"), or grant participations therein (each, a
"Participation"), or complete an asset securitization vehicle selected by
FFCA, in accordance with all requirements which may be imposed by the
investors or the rating agencies involved in such securitized financing
transaction, as selected by FFCA, 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 (each, a "Securitization").
(2) Debtor agrees to cooperate in good faith with FFCA in
connection with any Transfer, Participation and/or Securitization,
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 the
Securitization, as 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 Transfers, Participations 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 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 or the other Loan Documents, from and after the Closing of a
Securitization 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 or Other
Agreement which relates to a loan or sale/leaseback transaction
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which has not been the subject of a Securitization shall not
constitute an Event of Default under any Loan Document or Other
Agreement which relates to a loan which has been the subject of a
Securitization;
(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 has been the subject of a
Securitization transaction shall not constitute an Event of
Default under any Loan Document or Other Agreement which relates to
a loan which has been the subject of a different Securitization
transaction;
(c) the Loan Documents corresponding to the Loans in any
Securitized Loan Pool shall not secure the obligations of Debtor
and/or its Affiliates contained in any Loan Document or Other
Agreement which does not correspond to a loan in such Securitized
Loan Pool; and
(d) the Loan Documents and Other Agreements which do not
correspond to a loan in any Securitized Loan Pool shall not secure
the obligations of Debtor and/or its Affiliates contained in any
Loan Document or Other Agreement which does correspond to a loan in
such Securitized 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 one
or more of the 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/ XXXX X. XXXX
----------------------------------
Xxxx X. Xxxx
Vice President
DEBTOR:
UNI-MARTS, INC.,
a Delaware corporation
By /S/ J. XXXX XXXXXXXX
---------------------------------
J. Xxxx Xxxxxxxx
Executive Vice President and
Chief Financial Officer
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STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 29, 1998 by
Xxxx X. Xxxx, Vice President of FFCA Acquisition Corporation, a Delaware
corporation, on behalf of the corporation.
/S/ XXXXXX X. XXXXX
--------------------------------------
Notary Public
OFFICIAL SEAL
My Commission Expires: XXXXXX X. XXXXX
5-5-2002 Notary Public State of Arizona
------------------------------ MARICOPA COUNTY
My Comm. Expires May 5, 2002
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 29, 1998 by
J. Xxxx Xxxxxxxx, Executive Vice President and Chief Financial Officer of
Uni-Marts, Inc., a Delaware corporation, on behalf of the corporation.
/S/ XXXXXX X. XXXXX
--------------------------------------
Notary Public
OFFICIAL SEAL
My Commission Expires: XXXXXX X. XXXXX
5-5-2002 Notary Public State of Arizona
------------------------------ MARICOPA COUNTY
My Comm. Expires May 5, 2002
28
