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PROPERTY LOAN AGREEMENT
THIS PROPERTY LOAN AGREEMENT (this "Agreement") is made as of June
30, 1998, by and between FFCA ACQUISITION CORPORATION, a Delaware
corporation ("FFCA"), whose address is 17207 North Perimeter Drive,
Scottsdale, Arizona 85255, and UNI-MARTS, INC., a Delaware corporation
("Debtor"), whose address is 477 East Beaver Avenue, State College,
Pennsylvania 16801-5690.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms used
in this Agreement shall have the meanings set forth in Section 1. Debtor
has requested from FFCA, and applied for, the Loans to provide long-term
financing for the Premises, and for no other purpose whatsoever. Each
Loan will be evidenced by a Note and secured by a first priority security
interest in the corresponding Premises pursuant to a Mortgage. FFCA has
committed to make the Loans pursuant to the terms and conditions of the
Commitment, this Agreement and the other Loan Documents.
AGREEMENT:
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. DEFINITIONS. The following terms shall have the following
meanings for all purposes of this Agreement:
"Action" has the meaning set forth in Section 10.A(4).
"Affiliate" means any Person which directly or indirectly controls,
is under common control with, or is controlled by any other Person. For
purposes of this definition, "controls", "under common control with" and
"controlled by" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
such Person or entity, whether through ownership of voting securities or
otherwise.
"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 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.
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"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.
"Disclosures" has the meaning set forth in Section 13.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 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
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
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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.
"Event of Default" has the meaning set forth in Section 10.
"Fee" means an underwriting, site assessment, valuation, processing
and commitment fee equal to 1.0% of the sum of the Loan Amounts for all
of the Premises, which Fee shall be payable as set forth in Section 3.
"FFCA 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 (a) any toxic substance or hazardous
waste, substance, solid waste or related material, or any pollutant or
contaminant; (b) radon gas, asbestos in any form which is or could become
friable, urea formaldehyde foam insulation, transformers or other
equipment which contains dielectric fluid containing levels of
polychlorinated biphenyls in excess of federal, state or local safety
guidelines, whichever are more stringent, or any petroleum product; (c)
any substance, gas, material or chemical which is or may be defined as or
included in the definition of "hazardous substances," "toxic substances,"
"hazardous materials," hazardous wastes" or words of similar import under
any Environmental Laws; and (d) any other chemical, material, gas or
substance the exposure to or release of which is or may be prohibited,
limited or regulated by any Governmental Authority that asserts or may
assert jurisdiction over the Premises or the operations or activity at
the Premises, or any chemical, material, gas or substance that does
or may pose a hazard to the health and/or safety of the occupants of the
Premises or the owners and/or occupants of property adjacent to or
surrounding the Premises.
"Indemnified Parties" has the meaning set forth in Section 12.
"Loan" or "Loans" means, as the context may require, the loan for
each Premises, or the loans for all of the Premises, described in Section
2.
"Loan Amount" or "Loan Amounts" means, as the context may require,
the aggregate amount set forth in Section 2 or, with respect to each
Premises, the individual amount set forth in Exhibit A.
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"Loan Documents" means, collectively, this Agreement, the Notes, the
Mortgages, 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 value of any or all of the
Premises, or (ii) Debtor's ability to perform the obligations under the
Loan Documents.
"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 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. A Note will be executed for each Premises in the Loan
Amount corresponding to such Premises.
"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 13.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.
"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.
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"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 13.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 4.
"Transfer" has the meaning set forth in Section 13.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.
"USTs" means any one or combination of tanks and associated piping
systems used in connection with the storage, dispensing and general use
of Regulated Substances.
2. TRANSACTION. On the terms and subject to the conditions set
forth in the Loan Documents, FFCA shall make the Loans. The Loans will
be evidenced by the Notes and secured by the Mortgages. Debtor shall
repay the outstanding principal amount of the Loans together with
interest thereon in the manner and in accordance with the terms and
conditions of the Notes and the other Loan Documents. The aggregate Loan
Amount shall be $2,500,000.00, allocated among the Premises as set forth
on the attached Exhibit A. The Loans shall be advanced at the
Closing in cash or otherwise immediately available funds subject to any
prorations and adjustments required by this Agreement.
3. 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
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actual Loan Amounts approved. In the event the transaction set forth in
this Agreement fails to close due to a breach or default by Debtor under
this Agreement, FFCA shall retain the portion of the Fee received by FFCA
(without affecting or limiting FFCA's remedies set forth in this
Agreement).
4. CLOSING. (a) Each Loan shall be closed (the "Closing")
contemporaneously with the satisfaction of all of the terms and
conditions contained in this Agreement, but in no event shall the date of
the Closing be extended beyond 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,
including, without limitation, the cost of title insurance and
endorsements, the attorneys' fees of Debtor, attorneys' fees and expenses
of FFCA, 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 9.C, shall be paid by Debtor at or prior to the Closing. The
Closing documents shall be dated as of the Closing Date.
Debtor and FFCA hereby employ Title Company to act as escrow agent
in connection with 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
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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.
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.
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, 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.
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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.
(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 in the
contemplated business, condition, worth or operations of Debtor or
the Premises.
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. 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.
G. 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. No Hazardous
Materials or Regulated Substances have been used, handled,
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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. 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.
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, (a) received any notice (and Debtor has no actual
knowledge) that any Governmental Authority or any employee or agent
thereof has determined, threatens to determine or requires an
investigation to determine that there has been a violation of any
Environmental Laws at, on or in connection with the Premises or that
there exists a presence, Release, Threatened Release or placement of
any Hazardous Materials, Regulated Substances or USTs on or at the
Premises, or the use, handling, manufacturing, generation,
production, storage, treatment, processing, transportation or
disposal of any Hazardous Materials, Regulated Substances or USTs at
or on the Premises; (b) received any notice under the citizen suit
provision of any Environmental Law in connection with the Premises
or any facilities, operations or activities 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.
H. 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.
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I. 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.
J. 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.
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 acknowledges that it has not relied
upon, nor may it hereafter rely upon, the analysis undertaken by
FFCA in determining the Loan Amounts, and such analysis will not be
made available to Debtor.
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.
7. COVENANTS. Debtor covenants to FFCA from and after the Closing
Date as follows:
A. Inspections. Debtor shall, at all reasonable times, (I)
provide FFCA and FFCA's officers, employees, agents, advisors,
attorneys, accountants, architects, and engineers with access to the
Premises, all drawings, plans, and specifications for the Premises
in possession of Debtor, 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
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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;
(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
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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
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.
8. TRANSACTION CHARACTERIZATION. This Agreement is a contract to
extend a financial accommodation (as such term is used in the Code) for
the benefit of Debtor. It is the intent of the parties hereto that the
business relationship created by this Agreement, the Notes, the Mortgages
and the other Loan Documents is solely that of creditor and debtor and
has been entered into by both parties in reliance upon the economic and
legal bargains contained in the Loan Documents. None of the agreements
contained in the Loan Documents is intended, nor shall the same be deemed
or construed, to create a partnership between Debtor and FFCA, to make
them joint venturers, to make Debtor an agent, legal representative,
partner, subsidiary or employee of FFCA, nor to make FFCA in any way
responsible for the debts, obligations or losses of Debtor.
9. CONDITIONS OF CLOSING. The obligation of FFCA to consummate
the transaction contemplated by this Agreement is subject to the
fulfillment or waiver of each of the following conditions:
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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. 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.
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, 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
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.
E. 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.
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 date established for Closing under Section
4(a) hereof, FFCA does not warrant that it will thereafter have
sufficient funds to consummate the transaction contemplated by this
Agreement.
G. 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:
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(1) Notes;
(2) Mortgages;
(3) Proof of Insurance;
(4) Opinions of Counsel to Debtor;
(5) UCC-1 Financing Statements;
(6) Environmental Indemnity Agreements; and
(7) 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.
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 and such falsity would result in
a Material Adverse Effect in any material respect, 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 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, 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.
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(4) If Debtor becomes insolvent within the meaning of the
Code, files or notifies Mortgagee 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 the Mortgagee 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 Mortgagee 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 Mortgagee 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.
(6) If there is a breach of the CFCCR requirements.
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.
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11. ASSIGNMENTS. A. FFCA may assign in whole or in part its rights
under this Agreement, including, without limitation, in connection with
any Transfer, Participation and/or Securitization. Upon any
unconditional assignment of FFCA's entire right and interest hereunder,
FFCA shall automatically be relieved, from and after the date of such
assignment, of liability for the performance of any obligation of FFCA
contained herein.
B. Debtor shall not, without the prior written consent of FFCA,
sell, assign, transfer, mortgage, convey, encumber or grant any easements
or other rights or interests of any kind in the Premises, 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.
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"), 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.
13. 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. Kirk Gallaher
Executive Vice President
and Chief Financial Officer
Uni-Marts, Inc.
477 East Beaver Avenue
State College, PA 16801-5690
Telephone: 814-234-6000
Telecopy: 814-234-3277
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If to FFCA: Dennis L. Ruben, Esq.
Executive Vice President and General Counsel
FFCA Acquisition Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
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.
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
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which it may be entitled. References in this Agreement to the
attorneys' fees and/or costs of FFCA shall mean both the fees
and costs of independent outside counsel retained by FFCA with
respect to this transaction and the fees and costs of FFCA's
in-house counsel incurred in connection with this transaction.
J. Entire Agreement. This Agreement and the other Loan
Documents, together with any other certificates, instruments or
agreements to be delivered in connection therewith, constitute the
entire agreement between the parties with respect to the subject
matter hereof, and there are no other representations, warranties or
agreements, written or oral, between Debtor and FFCA with respect to
the subject matter of this Agreement. Notwithstanding anything in
this Agreement to the contrary, upon the execution and delivery of
this Agreement by Debtor and FFCA, the Commitment shall be deemed
null and void and of no further force and effect and the terms and
conditions of this Agreement shall control notwithstanding that such
terms may be inconsistent with or vary from those set forth in the
Commitment.
K. Forum Selection; Jurisdiction; Venue; Choice of Law.
Debtor acknowledges that this Agreement was substantially negotiated
in the State of Arizona, the Agreement was signed by FFCA in the
State of Arizona and 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
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United States trustee, any debtor in possession or any trustee
appointed from a private panel.
N. Survival. Except for the conditions of Closing set forth
in Section 9, which shall be satisfied or waived as of the Closing
Date, all representations, warranties, agreements, obligations and
indemnities of Debtor and FFCA set forth in this Agreement shall
survive the Closing.
O. Waiver of Jury Trial and Punitive, Consequential, Special
and Indirect Damages. DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THIS WAIVER BY THE
PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS
BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
FURTHERMORE, DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO SEEK PUNITIVE,
CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE OTHER WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT 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 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 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, 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
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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 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 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.
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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/ MARK E. WOOD
----------------------------------
Mark E. Wood
Vice President
DEBTOR:
UNI-MARTS, INC., a Delaware corporation
By /S/ J. KIRK GALLAHER
----------------------------------
J. Kirk Gallaher
Executive Vice President and
Chief Financial Officer
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 29, 1998 by
Mark E. Wood, Vice President of FFCA Acquisition Corporation, a Delaware
corporation, on behalf of the corporation.
/S/ DEBBIE L. SUMAN
--------------------------------------
Notary Public
OFFICIAL SEAL
My Commission Expires: DEBBIE L. SUMAN
5-5-2002 Notary Public State of Arizona
- ---------------------------- MARICOPA COUNTY
My Comm. Expires May 5, 2002
STATE OF ARIZONA ]
] SS.
COUNTY OF Maricoppa ]
The foregoing instrument was acknowledged before me on June 29, 1998 by
J. Kirk Gallaher, Executive Vice President and Chief Financial Officer,
of Uni-Marts, Inc., a Delaware corporation, on behalf of the
corporation.
/S/ DEBBIE L. SUMAN
--------------------------------------
Notary Public
OFFICIAL SEAL
My Commission Expires: DEBBIE L. SUMAN
5-5-2002 Notary Public State of Arizona
- ------------------------------ MARICOPA COUNTY
My Comm. Expires May 5, 2002
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