Exhibit 10.41
SUBSTITUTION AGREEMENT
THIS SUBSTITUTION AGREEMENT (this "Agreement") is made as of
November 28, 2001 by and among GE CAPITAL FRANCHISE FINANCE CORPORATION, a
Delaware corporation ("FFC"), successor by merger to (i) Franchise Finance
Corporation of America ("Franchise Finance"), as Servicer pursuant to that
certain Amended and Restated Servicing Agreement dated as of February 28, 2000
(the "Servicing Agreement") between Franchise Finance and Wamu (as defined
below), (ii) FFCA Funding Corporation ("FFCA Funding"), and (iii) FFCA
Acquisition Corporation ("FFCA Acquisition"), whose address is 17207 North
Perimeter Drive, Scottsdale, Arizona 85255, WASHINGTON MUTUAL BANK, FA ("Wamu"),
whose address is c/o GE Capital Franchise Finance Corporation, 17207 North
Perimeter Drive, Scottsdale, Arizona 85255, DAPPER PROPERTIES I, LLC, a Delaware
limited liability company ("Dapper I"), whose address is c/o U.S. Realty
Advisors LLC, 1370 Avenue of the Americas, New York, New York 10019, AUTOPAR
REMAINDER I, LLC, a Delaware limited liability company ("Remainderman I"), whose
address is c/o U.S. Realty Advisors LLC, 1370 Avenue of the Americas, New York,
New York 10019, DAPPER PROPERTIES II, LLC, a Delaware limited liability company
("Dapper II"), whose address is c/o U.S. Realty Advisors LLC, 1370 Avenue of the
Americas, New York, New York 10019, AUTOPAR REMAINDER II, LLC, a Delaware
limited liability company ("Remainderman II"), whose address is c/o U.S. Realty
Advisors LLC, 1370 Avenue of the Americas, New York, New York 10019, DAPPER
PROPERTIES III, LLC, a Delaware limited liability company ("Dapper III"), whose
address is c/o U.S. Realty Advisors LLC, 1370 Avenue of the Americas, New York,
New York 10019, AUTOPAR REMAINDER III, LLC, a Delaware limited liability company
("Remainderman III"), whose address is c/o U.S. Realty Advisors LLC, 1370 Avenue
of the Americas, New York, New York 10019, DISCOUNT AUTO PARTS, INC., a Florida
corporation ("Discount"), whose address is 4900 Frontage Road South, Lakeland,
Florida 33815, and ADVANCE STORES COMPANY, INCORPORATED, a Virginia corporation
("Advance"), whose address is 5673 Airport Road, Roanoke, Virginia 24012.
PRELIMINARY STATEMENTS:
Unless otherwise expressly provided herein, all defined terms used in
this Agreement shall have the meanings set forth in Section 1.
Discount and Dapper I entered into the Dapper I Sale-Leaseback
Agreement pursuant to which Dapper I and Remainderman I acquired their
respective interests in the Dapper I Properties, including, without limitation,
the Dapper I Replaced Properties. Dapper I and FFCA Acquisition entered into the
Dapper I Loan Agreement pursuant to which FFCA Acquisition made the Dapper I
Loans to Dapper I. The Dapper I Loans are secured in part by first priority
mortgage liens on the Dapper I Properties, including, without limitation, the
Dapper I Replaced Properties. Dapper I leases the Dapper I Properties,
including, without limitation, the Dapper I Replaced Properties, to Discount
pursuant to the Dapper I Master Lease.
Discount and Dapper II entered into the Dapper II Sale-Leaseback
Agreement pursuant to which Dapper II and Remainderman II acquired their
respective interests in the Dapper II Properties, including, without limitation,
the Dapper II Replaced Properties. Dapper II and FFCA Funding entered into the
Dapper II Loan Agreement pursuant to which FFCA Funding made the Dapper II Loans
to Dapper II. The Dapper II Loans are secured in part by first priority mortgage
liens on the Dapper II Properties, including, without limitation, the Dapper II
Replaced Properties. Dapper II leases the Dapper II Properties, including,
without limitation, the Dapper II Replaced Properties, to Discount pursuant to
the Dapper II Master Lease.
Discount and Dapper III entered into the Dapper III Sale-Leaseback
Agreement pursuant to which Dapper III and Remainderman III acquired their
respective interests in the Dapper III Properties, including, without
limitation, the Dapper III Replaced Properties. Dapper III and FFCA Funding
entered into the Dapper III Loan Agreement pursuant to which FFCA Funding made
the Dapper III Loans to Dapper III. The Dapper III Loans are secured in part by
first priority mortgage liens on the Dapper III Properties, including, without
limitation, the Dapper III Replaced Properties. Dapper III leases the Dapper III
Properties to Discount, including, without limitation, the Dapper III Replaced
Properties, pursuant to the Dapper III Master Lease.
FFC succeeded by merger to the respective right, title and interest of
FFCA Acquisition and FFCA Funding in and to the Dapper I Loans and Dapper II
Loans, as applicable. FFCA Funding has sold, conveyed, transferred and assigned
its right, title and interest in and to the Dapper III Loans to Wamu. FFC (as
successor by merger to Franchise Finance) is the Servicer for Wamu pursuant to
the Servicing Agreement and is authorized to provide certain services related to
the Dapper III Loans, for the benefit of the parties thereto.
Discount has advised Dapper I and FFC that it desires to provide for
the substitution of the Dapper I Replaced Properties with the Dapper I
Substitute Properties under the Dapper I Master Lease, which would require the
substitution of the Dapper I Replaced Properties with the Dapper I Substitute
Properties under the Dapper I Loan Documents. Discount has advised Dapper II and
FFC that it desires to provide for the substitution of the Dapper II Replaced
Properties with the Dapper II Substitute Properties under the Dapper II Master
Lease, which would require the substitution of the Dapper II Replaced Properties
with the Dapper II Substitute Properties under the Dapper II Loan Documents.
Discount has advised Dapper III and FFC that it desires to provide for the
substitution of the Dapper III Replaced Properties with the Dapper III
Substitute Properties under the Dapper III Master Lease, which would require the
substitution of the Dapper III Replaced Properties with the Dapper III
Substitute Properties under the Dapper III Loan Documents. Discount has also
advised Dapper I, Dapper II and Dapper III that, on even date herewith, Discount
is being acquired by the parent corporation of Advance in a transaction pursuant
to which Discount will ultimately become a wholly owned subsidiary of Advance,
as described in Section 2 below.
While the Master Lease and the Loan Documents provide for certain
rights of substitution of the Mortgaged Properties, the Master Lease and the
Loan Documents do not provide for a substitution of Mortgaged Properties as
contemplated by this Agreement. Notwithstanding the foregoing, Discount has
requested that Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III
and Remainderman III enter into this Agreement to provide for the substitution
and simultaneous like-kind exchange of the Replaced Properties with the
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Substitute Properties under the Master Leases as described in the preceding
paragraph, such substitution and simultaneous like-kind exchange to qualify
under Section 1031 of the Internal Revenue Code of 1986, as amended (the "Tax
Code"). Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III and
Remainderman III have agreed to enter into such substitution subject to and in
accordance with the terms and conditions of this Agreement, provided FFC and
Wamu consent to such substitution and enter into this Agreement to provide for
the substitution of the Replaced Properties with the Substitute Properties under
the Loan Documents. FFC and Wamu have consented to such substitution, subject to
and in accordance with the terms and conditions of this Agreement. The parties
hereto have agreed to enter into this Agreement to provide for, inter alia, the
substitution of and simultaneous like-kind exchange of the Replaced Properties
with the Substitute Properties in accordance with the terms and conditions of
this Agreement.
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:
"Acquisition" has the meaning set forth in 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, whether through
ownership of voting securities or otherwise.
"Closing" shall have the meaning set forth in Section 6.
"Closing Date" shall have the meaning set forth in Section 6.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et
seq., as amended.
"Counsel" means legal counsel to Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III, Remainderman III, Discount and Advance, licensed in
the states in which (i) the Substitute Properties are located, and (ii) Dapper
I, Remainderman I, Dapper II, Remainderman II, Dapper III, Remainderman III and
Discount are incorporated or formed.
"Dapper I Acknowledgement" means that certain Acknowledgement of Master
Lease Assignment and Subordination, Nondisturbance and Attornment Agreement
dated as of February 27, 2001 among Dapper I, Remainderman I, FFCA Acquisition
and Discount and recorded in the applicable county records with respect to the
Dapper I Properties, as the same may be amended from time to time.
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"Dapper I Environmental Policies" means the "Environmental Policies" as
defined in the Dapper I Loan Agreement.
"Dapper I Guaranty" means the guaranty of master lease to be executed
by Advance in favor of Dapper I with respect Discount's obligations under the
Dapper I Master Lease.
"Dapper I Loan Agreement" means the Loan Agreement dated as of
February 27, 2001 between Dapper I and FFCA Acquisition, as the same may be
amended from time to time.
"Dapper I Loan Documents" means the "Loan Documents" as defined in the
Dapper I Loan Agreement.
"Dapper I Loans" means the loans evidenced by the Dapper I Notes.
"Dapper I Master Lease" means the master lease dated as of February 27,
2001 between Dapper I, as lessor, and Discount, as lessee, as the same may be
amended from time to time.
"Dapper I Memorandum" means the memorandum of master lease dated as of
February 27, 2001 executed by Dapper I and Discount with respect to the Dapper I
Master Lease and recorded in the applicable county records with respect to the
Dapper I Properties.
"Dapper I Mortgages" means, collectively, the deeds of trust, mortgages
or deeds to secure debt, assignments of rents and leases, security agreements
and fixture filings dated as of February 27, 2001 executed by Dapper I and
Remainderman I for the benefit of FFCA Acquisition encumbering the Dapper I
Properties and granted to secure the Dapper I Notes, as the same may be amended
from time to time.
"Dapper I Notes" means, collectively, the promissory notes dated as of
February 27, 2001, executed by Dapper I in favor of FFCA Acquisition with
respect to the Dapper I Properties, as the same may be amended from time to
time.
"Dapper I Option Agreements" means, collectively, the Option and
Subordination Agreements dated as of February 27, 2001, executed by Dapper I and
Remainderman I with respect to the Dapper I Properties.
"Dapper I Properties" means the properties described on the attached
Exhibit A under the "Dapper I" heading.
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"Dapper I Replaced Properties" means the properties described on the
attached Exhibit B under the "Dapper I" heading.
---------
"Dapper I Sale-Leaseback Agreement" means the sale-leaseback agreement
dated as of February 27, 2001 among Dapper I and Discount, as the same may be
amended from time to time.
"Dapper I Sale-Leaseback Documents" means the Dapper I Sale-Leaseback
Agreement, the Dapper I Master Lease, the Dapper I Memorandum, the Dapper I
Tripartite Agreements, the
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Dapper I Acknowledgement, the Dapper I Option Agreements and all other
documents, instruments and agreements executed by Discount in connection with
such documents.
"Dapper I Substitute Acknowledgements" means, collectively, those
certain acknowledgement of master lease assignment and subordination,
nondisturbance and attornment agreements to be executed by Dapper I,
Remainderman I, FFC and Discount with respect to the Dapper I Substitute
Properties.
"Dapper I Substitute Memorandum" means the memorandum of master lease
to be executed by Dapper I and Discount with respect to the Dapper I Master
Lease and recorded in the applicable county records with respect to the Dapper I
Substitute Properties.
"Dapper I Substitute Mortgages" means those certain deeds of trust,
mortgages or deeds to secure debt, assignments of rents and leases, security
agreements and fixture filings to be executed by Dapper I and Remainderman I for
the benefit of FFC encumbering the Dapper I Substitute Properties.
"Dapper I Substitute Option Agreements" means, collectively, those
certain option and subordination agreements to be executed by Dapper I and
Remainderman I with respect to the Dapper I Substitute Properties.
"Dapper I Substitute Properties" means the properties described on the
attached Exhibit C under the "Dapper I" heading.
"Dapper I Substitute Tripartite Agreements" means, collectively, those
certain tripartite agreements to be executed by Dapper I, Discount and FFC with
respect to the Dapper I Substitute Properties.
"Dapper I Substitute UCC-1 Financing Statements" means such UCC-1
financing statements as FFC shall require to be authorized and delivered by
Dapper I, Remainderman I and/or Discount with respect to the Dapper I Substitute
Properties.
"Dapper I Tripartite Agreements" means, collectively, those certain
Tripartite Agreements dated as of February 27, 2001 among Dapper I, Remainderman
I and Discount, as the same may be amended from time to time.
"Dapper II Acknowledgement" means that certain Acknowledgement of
Master Lease Assignment and Subordination, Nondisturbance and Attornment
Agreement dated as of February 27, 2001 among Dapper II, Remainderman II, FFCA
Funding and Discount and recorded in the applicable county records with respect
to the Dapper II Properties, as the same may be amended from time to time.
"Dapper II Environmental Policies" means the "Environmental Policies"
as defined in the Dapper II Loan Agreement.
"Dapper II Guaranty" means the guaranty of master lease to be executed
by Advance in favor of Dapper II with respect Discount's obligations under the
Dapper II Master Lease.
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"Dapper II Loan Agreement" means the Loan Agreement dated as of
February 27, 2001 between Dapper II and FFCA Funding, as the same may be amended
from time to time.
"Dapper II Loan Documents" means the "Loan Documents" as defined in the
Dapper II Loan Agreement.
"Dapper II Loans" means the loans evidenced by the Dapper II Notes.
"Dapper II Master Lease" means the master lease dated as of February
27, 2001 between Dapper II, as lessor, and Discount, as lessee, as the same may
be amended from time to time.
"Dapper II Memorandum" means the memorandum of master lease dated as of
February 27, 2001 executed by Dapper II and Discount with respect to the Dapper
II Master Lease and recorded in the applicable county records with respect to
the Dapper II Properties.
"Dapper II Mortgages" means, collectively, the deeds of trust,
mortgages or deeds to secure debt, assignments of rents and leases, security
agreements and fixture filings dated as of February 27, 2001 executed by Dapper
II and Remainderman II for the benefit of FFCA Funding encumbering the Dapper II
Properties and granted to secure the Dapper II Notes, as the same may be amended
from time to time.
"Dapper II Notes" means, collectively, the promissory notes dated as of
February 27, 2001, executed by Dapper II in favor of FFCA Funding with respect
to the Dapper II Properties, as the same may be amended from time to time.
"Dapper II Option Agreements" means, collectively, the Option and
Subordination Agreements dated as of February 27, 2001, executed by Dapper II
and Remainderman II with respect to the Dapper II Properties.
"Dapper II Properties" means the properties described on the attached
Exhibit A under the "Dapper II" heading.
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"Dapper II Replaced Properties" means the properties described on the
attached Exhibit B under the "Dapper II" heading.
---------
"Dapper II Sale-Leaseback Agreement" means the sale-leaseback agreement
dated as of February 27, 2001 among Dapper II and Discount, as the same may be
amended from time to time.
"Dapper II Sale-Leaseback Documents" means the Dapper II Sale-Leaseback
Agreement, the Dapper II Master Lease, the Dapper II Memorandum, the Dapper II
Tripartite Agreements, the Dapper II Acknowledgement, the Dapper II Option
Agreements and all other documents, instruments and agreements executed by
Discount in connection with such documents.
"Dapper II Substitute Acknowledgements" means, collectively, those
certain acknowledgement of master lease assignment and subordination,
nondisturbance and attornment agreements to be executed by Dapper II,
Remainderman II, FFC and Discount with respect to the Dapper II Substitute
Properties.
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"Dapper II Substitute Memorandum" means the memorandum of master lease
to be executed by Dapper II and Discount with respect to the Dapper II Master
Lease and recorded in the applicable county records with respect to the Dapper
II Substitute Properties.
"Dapper II Substitute Mortgages" means those certain deeds of trust,
mortgages or deeds to secure debt, assignments of rents and leases, security
agreements and fixture filings to be executed by Dapper II and Remainderman II
for the benefit of FFC encumbering the Dapper II Substitute Properties.
"Dapper II Substitute Option Agreements" means, collectively, those
certain option and subordination agreements to be executed by Dapper II and
Remainderman II with respect to the Dapper II Substitute Properties.
"Dapper II Substitute Properties" means the properties described on the
attached Exhibit C under the "Dapper II" heading.
"Dapper II Substitute Tripartite Agreements" means, collectively, those
certain tripartite agreements to be executed by Dapper II, Discount and FFC with
respect to the Dapper II Substitute Properties.
"Dapper II Substitute UCC-1 Financing Statements" means such UCC-1
financing statements as FFC shall require to be authorized and delivered by
Dapper II, Remainderman II and/or Discount with respect to the Dapper II
Substitute Properties.
"Dapper II Tripartite Agreements" means, collectively, those certain
Tripartite Agreements dated as of February 27, 2001 among Dapper II,
Remainderman II and Discount, as the same may be amended from time to time.
"Dapper III Acknowledgement" means that certain Acknowledgement of
Master Lease Assignment and Subordination, Nondisturbance and Attornment
Agreement dated as of February 27, 2001 among Dapper III, Remainderman III, FFCA
Funding and Discount and recorded in the applicable county records with respect
to the Dapper III Properties, as the same may be amended from time to time.
"Dapper III Environmental Policies" means the "Environmental Policies"
as defined in the Dapper III Loan Agreement.
"Dapper III Guaranty" means the guaranty of master lease to be executed
by Advance in favor of Dapper III with respect Discount's obligations under the
Dapper III Master Lease.
"Dapper III Loan Agreement" means the Loan Agreement dated as of
February 27, 2001 between Dapper III and FFCA Funding, as the same may be
amended from time to time.
"Dapper III Loan Documents" means the "Loan Documents" as defined in
the Dapper III Loan Agreement.
"Dapper III Loans" means the loans evidenced by the Dapper III Notes.
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"Dapper III Master Lease" means the master lease dated as of February
27, 2001 between Dapper III, as lessor, and Discount, as lessee, as the same may
be amended from time to time.
"Dapper III Memorandum" means the memorandum of master lease dated as
of February 27, 2001 executed by Dapper III and Discount with respect to the
Dapper III Master Lease and recorded in the applicable county records with
respect to the Dapper III Properties.
"Dapper III Mortgages" means, collectively, the deeds of trust,
mortgages or deeds to secure debt, assignments of rents and leases, security
agreements and fixture filings dated as of February 27, 2001 executed by Dapper
III and Remainderman III for the benefit of FFCA Funding encumbering the Dapper
III Properties and granted to secure the Dapper III Notes, as the same may be
amended from time to time.
"Dapper III Notes" means, collectively, the promissory notes dated as
of February 27, 2001, executed by Dapper III in favor of FFCA Funding with
respect to the Dapper III Properties, as the same may be amended from time to
time.
"Dapper III Option Agreements" means, collectively, the Option and
Subordination Agreements dated as of February 27, 2001, executed by Dapper III
and Remainderman III with respect to the Dapper III Properties.
"Dapper III Properties" means the properties described on the attached
Exhibit A under the "Dapper III" heading.
"Dapper III Replaced Properties" means the properties described on the
attached Exhibit B under the "Dapper III" heading.
"Dapper III Sale-Leaseback Agreement" means the sale-leaseback
agreement dated as of February 27, 2001 among Dapper III and Discount, as the
same may be amended from time to time.
"Dapper III Sale-Leaseback Documents" means the Dapper III
Sale-Leaseback Agreement, the Dapper III Master Lease, the Dapper III
Memorandum, the Dapper III Tripartite Agreements, the Dapper III
Acknowledgement, the Dapper III Option Agreements and all other documents,
instruments and agreements executed by Discount in connection with such
documents.
"Dapper III Substitute Acknowledgements" means, collectively, those
certain acknowledgement of master lease assignment and subordination,
nondisturbance and attornment agreements to be executed by Dapper III,
Remainderman III, FFC and Discount with respect to the Dapper III Substitute
Properties.
"Dapper III Substitute Memorandum" means the memorandum of master lease
to be executed by Dapper III and Discount with respect to the Dapper III Master
Lease and recorded in the applicable county records with respect to the Dapper
III Substitute Properties.
"Dapper III Substitute Mortgages" means those certain deeds of trust,
mortgages or deeds to secure debt, assignments of rents and leases, security
agreements and fixture filings to be
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executed by Dapper III and Remainderman III for the benefit of Wamu encumbering
the Dapper III Substitute Properties.
"Dapper III Substitute Option Agreements" means, collectively, those
certain option and subordination agreements to be executed by Dapper III and
Remainderman III with respect to the Dapper III Substitute Properties.
"Dapper III Substitute Properties" means the properties described on
the attached Exhibit C under the "Dapper III" heading.
"Dapper III Substitute Tripartite Agreements" means, collectively,
those certain tripartite agreements to be executed by Dapper III, Discount and
FFC with respect to the Dapper III Substitute Properties.
"Dapper III Substitute UCC-1 Financing Statements" means such UCC-1
financing statements as FFC shall require to be authorized and delivered by
Dapper III, Remainderman III and/or Discount with respect to the Dapper III
Substitute Properties.
"Dapper III Tripartite Agreements" means, collectively, those certain
Tripartite Agreements dated as of February 27, 2001 among Dapper III,
Remainderman III and Discount, as the same may be amended from time to time.
"De Minimis Amounts" shall mean, with respect to any given level of
Hazardous Materials, that level or quantity of Hazardous Materials in any form
or combination of forms, the use, storage or relase of which does not constitute
a violation of, or require regulation or remediation under, any Environmental
Laws and is customarily employed in the ordinary course of, or associated with,
similar businesses located in the states in which the Substitute Properties are
located.
"Discount Entities" means, collectively, Discount, Advance and all
Affiliates of Discount or Advance.
"Environmental Insurer" has the meaning set forth in the Master Leases.
"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 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,
rulings, orders or decrees promulgated pursuant thereto, and any state or local
statutes, ordinances, rules, regulations and the like addressing similar issues:
the Comprehensive Environmental Response, Compensation and Liability Act; the
Emergency Planning and Community Right-to-Know Act; the Hazardous Materials
Transportation Act; the Resource Conservation and Recovery Act (including but
not limited to Subtitle I relating to 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
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Act; the National Environmental Policy Act; and the River and Harbors
Appropriation Act. "Environmental Laws" also includes, but is not limited to,
any present and future federal, state and local laws, statutes, ordinances,
rules, regulations and the like, as well as common law: conditioning transfer of
property upon a negative declaration or other approval of a Governmental
Authority of the environmental condition of the property; requiring notification
or disclosure of Releases or other environmental condition of any of the
Substitute Properties 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 in
connection with permits or other authorization for lawful activity; relating to
nuisance, trespass or other causes of action related to Hazardous Materials; and
relating to wrongful death, personal injury, or property or other damage in
connection with the physical condition or use of any of the Substitute
Properties by reason of the presence of Hazardous Materials in, on, under or
above any of the Substitute Properties.
"Fixed Charge Coverage Ratio" has the following alternative meanings:
(i) with respect to Substitute Properties that are Dapper I Substitute
Properties, "Fixed Charge Coverage Ratio" has the meaning set forth in the
Dapper I Master Lease;
(ii) with respect to Substitute Properties that are Dapper II
Substitute Properties, "Fixed Charge Coverage Ratio" has the meaning set forth
in the Dapper II Master Lease; and
(iii) with respect to Substitute Properties that are Dapper III
Substitute Properties, "Fixed Charge Coverage Ratio" has the meaning set forth
in the Dapper III Master Lease.
"Governmental Authority" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the states in which the
Substitute Properties are located or any political subdivision thereof.
"Guaranties" means, collectively, the Dapper I Guaranty, the Dapper II
Guaranty and the Dapper III Guaranty.
"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," "hazardous materials," "hazardous wastes," "regulated
substances" 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 any of the Substitute
Properties or the operations or activity at any of the Substitute Properties, or
any chemical, material, gas or substance that does or may pose a hazard to the
health and/or safety of the occupants of any of the Substitute Properties or the
owners and/or occupants of property adjacent to or surrounding any of the
Substitute Properties.
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"Indemnified Parties" has the meaning set forth in Section 17.
"Loan Agreements" means, collectively, the Dapper I Loan Agreement, the
Dapper II Loan Agreement and the Dapper III Loan Agreement.
"Loan Documents" means, collectively, the Dapper I Loan Documents, the
Dapper II Loan Documents and the Dapper III Loan Documents.
"Loans" means, collectively, the Dapper I Loans, the Dapper II Loans
and the Dapper III Loans.
"Master Leases" means, collectively, the Dapper I Master Lease, the
Dapper II Master Lease and the Dapper III Master Lease.
"Mortgaged Properties" means the "Properties" as defined in the Loan
Documents prior to the consummation of the Transaction.
"Obligations" has the meaning set forth in (i) the Dapper I Mortgages
and the Dapper I Substitute Mortgages, (ii) the Dapper II Mortgages and the
Dapper II Substitute Mortgages, and (iii) the Dapper III Mortgages and the
Dapper III Substitute Mortgages.
"Pending Actions" means the legal proceedings described in Discount's
Quarterly Report on Form 10-Q with respect to its fiscal quarter ended August
28, 2001 filed with the United States Securities and Exchange Commission.
"Permitted Exceptions" means those recorded easements, restrictions,
liens and encumbrances set forth as exceptions in the title insurance policies
issued in connection with the Transaction by Title Company to (i) FFC, Dapper I,
Remainderman I, Dapper II and Remainderman II, and which have been accepted by
FFC, Dapper I, Remainderman I, Dapper II and Remainderman II, respectively, in
their sole discretion with respect to the Dapper I Substitute Properties and
Dapper II Substitute Properties, and (ii) Wamu, Dapper III and Remainderman III
and which have been accepted by FFC on behalf of Wamu, and accepted by Dapper
III and Remainderman III, in their sole discretion with respect to the Dapper
III Substitute Properties; provided, however, those recorded easements,
restrictions, liens and encumbrances set forth as exceptions in the title
policies issued by Title Company (x) to FFCA Acquisition in connection with the
Dapper I Loans and to Dapper I and Remainderman I simultaneously with their
acquisition of the Dapper I Replaced Properties, and (y) to FFCA Funding in
connection with the Dapper II Loans and the Dapper III Loans and to Dapper II,
Remainderman II, Dapper III and Remainderman III simultaneously with their
acquisition of the Dapper II Replaced Properties and Dapper III Replaced
Properties, respectively, shall be deemed "Permitted Exceptions" with respect to
the Replaced Properties.
"Permitted Facility" has the meaning set forth in the Master Leases, as
amended.
"Person" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental Authority or
any other form of entity.
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"Questionnaire" means the environmental questionnaires prepared by
Discount or Advance, as applicable, and submitted to Environmental Insurer in
connection with the issuance of (i) an endorsement to the Dapper I Environmental
Policies to include the Dapper I Substitute Properties within the coverage of
such Dapper I Environmental Policies, (ii) an endorsement to the Dapper II
Environmental Policies to include the Dapper II Substitute Properties within the
coverage of such Dapper II Environmental Policies and (iii) an endorsement to
the Dapper III Environmental Policies to include the Dapper III Substitute
Properties within the coverage of such Dapper III Environmental Policies.
"Release" means any release, deposit, discharge, emission, leaking,
spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping,
dumping, or disposing of Hazardous Materials into the environment.
"Remediation" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Material, 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, any of which are required by
Environmental Law or are reasonably required to protect human health and the
environment or to preserve the value of any of the Substitute Properties.
"Rents" has the meaning set forth in the Dapper I Mortgages (excluding
the Dapper I Mortgages relating to the Dapper I Replaced Properties), the Dapper
I Substitute Mortgages, the Dapper II Mortgages (excluding the Dapper II
Mortgages relating to the Dapper II Replaced Properties), the Dapper II
Substitute Mortgages, the Dapper III Mortgages (excluding the Dapper III
Mortgages relating to the Dapper III Replaced Properties) and the Dapper III
Substitute Mortgages.
"Replaced Properties" means, collectively, the Dapper I Replaced
Properties, the Dapper II Replaced Properties and the Dapper III Replaced
Properties.
"Residual Value Insurer" means R.V.I. America Insurance Company or such
other residual value insurance company as Dapper I, Dapper II and Dapper III may
select and FFC may approve.
"Residual Value Policy" means the residual value insurance policy
issued as of February 27, 2001 by Residual Value Insurer with respect to the
Loans. The Residual Value Policy shall be modified by endorsement to remove the
Replaced Properties from the Residual Value Policy and to add the Substitute
Properties to the Residual Value Policy simultaneously with the closing of the
Transaction.
"Sale-Leaseback Agreements" means, collectively, the Dapper I
Sale-Leaseback Agreement, the Dapper II Sale-Leaseback Agreement and the Dapper
III Sale-Leaseback Agreement.
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"Sale-Leaseback Documents" means, collectively, the Dapper I
Sale-Leaseback Documents, the Dapper II Sale-Leaseback Documents and the Dapper
III Sale-Leaseback Documents.
"Securitization" has the meaning set forth in the Master Leases.
"Substitute Acknowledgements" means, collectively, the Dapper I
Substitute Acknowledgement, the Dapper II Substitute Acknowledgement and the
Dapper III Substitute Acknowledgement.
"Substitute Memoranda" means, collectively, the Dapper I Substitute
Memorandum, the Dapper II Substitute Memorandum and the Dapper III Substitute
Memorandum.
"Substitute Mortgages" means, collectively, the Dapper I Substitute
Mortgages, the Dapper II Substitute Mortgages and the Dapper III Substitute
Mortgages.
"Substitute Option Agreements" means, collectively, the Dapper I
Substitute Option Agreements, the Dapper II Substitute Option Agreements and the
Dapper III Substitute Option Agreements.
"Substitute Properties" means, collectively, the Dapper I Substitute
Properties, the Dapper II Substitute Properties and the Dapper III Substitute
Properties.
"Substitute Tripartite Agreements" means, collectively, the Dapper I
Substitute Tripartite Agreements, the Dapper II Substitute Tripartite Agreements
and the Dapper III Substitute Tripartite Agreements.
"Substitute UCC-1 Financing Statements" means, collectively, the Dapper
I Substitute UCC-1 Financing Statements, the Dapper II Substitute UCC-1
Financing Statements and the Dapper III Substitute UCC-1 Financing Statements.
"Termination and Release Documents" means, collectively, (i) the
release of the Dapper I Mortgages, the Dapper I Tripartite Agreements and the
Dapper I Option Agreements encumbering the Dapper I Replaced Properties, the
Dapper II Mortgages, the Dapper II Tripartite Agreements and the Dapper II
Option Agreements encumbering the Dapper II Replaced Properties and the Dapper
III Mortgages, the Dapper III Tripartite Agreements and the Dapper III Option
Agreements encumbering the Dapper III Replaced Properties, (ii) the partial
release of the Dapper I Memorandum and the Dapper I Acknowledgement with respect
to the Dapper I Replaced Properties, the Dapper II Memorandum and the Dapper II
Acknowledgement with respect to the Dapper II Replaced Properties and the Dapper
III Memorandum and the Dapper III Acknowledgement with respect to the Dapper III
Replaced Properties, and (iii) the terminations of the UCC-1 financing
statements filed and/or recorded with respect to the Replaced Properties in
connection with the Master Leases and the Loan Documents, all of which shall be
in form and substance reasonably satisfactory to the parties.
"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,
13
surface or subsurface strata, ambient air or any other environmental medium
comprising or surrounding any of the Substitute Properties which may result from
such Release.
"Title Company" means the title insurance company described in
Section 6.
"Transaction" shall have the meaning set forth in Section 3.
"Transaction Documents" means, collectively, this Agreement, the
Substitute Mortgages, the Substitute UCC-1 Financing Statements, the amendments
to the Master Leases contemplated by Section 5 of this Agreement and all other
documents executed in connection with the Transaction.
2. Purpose of Transaction. Dapper I, Dapper II, Dapper III, FFC and
Wamu have been advised that Discount has entered into that certain Agreement and
Plan of Merger dated as of August 7, 2001 among Advance Holding Corporation, a
Virginia corporation, Advance Auto Parts, Inc., a Delaware corporation, AAP
Acquisition Corporation, a Florida corporation, Discount and Advance, whereby
(i) AAP Acquisition Corporation will merge with and into Discount, at which time
the separate existence of AAP Acquisition Corporation will cease and Discount
shall continue to exist as the surviving corporation and as a wholly owned
subsidiary of Advance Auto Parts, Inc.; and (ii) immediately following such
merger, all of the issued and outstanding capital stock of Discount shall be
contributed to Advance by Advance Auto Parts, Inc. (collectively, the
"Acquisition"), and as a condition to the closing of the Acquisition, the
substitutions contemplated by this Agreement must either be effected or an
agreement must be entered into to effectuate such substitutions subject to the
satisfaction of certain conditions. Discount anticipates that the Acquisition
will enhance the overall financial condition of Discount and its ability to
satisfy its obligations under the Master Leases and the other Sale-Leaseback
Documents. In order to facilitate such divestiture, Discount, Advance, FFC,
Wamu, Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III and
Remainderman III are entering into this Agreement.
3. Transaction. On the terms and subject to the conditions set forth in
this Agreement, the parties agree to consummate the following transactions
(collectively, the "Transaction"):
(i) (x) Discount or Advance, as applicable, shall exchange and
convey, pursuant to a simultaneous like-kind exchange qualifying under
Section 1031 of the Tax Code, (A) the improvements located at the
Dapper I Substitute Properties and an estate for years interest in the
Dapper I Substitute Properties to Dapper I and the remainder interest
in the Dapper I Substitute Properties to Remainderman I, (B) the
improvements located at the Dapper II Substitute Properties and an
estate for years interest in the Dapper II Substitute Properties to
Dapper II and the remainder interest in the Dapper II Substitute
Properties to Remainderman II, and (C) the improvements located at the
Dapper III Substitute Properties and an estate for years interest in
the Dapper III Substitute Properties to Dapper III and the remainder
interest in the Dapper III Substitute Properties to Remainderman III;
and
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(y) (A) Dapper I and Remainderman I shall exchange and convey,
pursuant to a simultaneous like-kind exchange qualifying under Section
1031 of the Tax Code, their respective interests in the Dapper I
Replaced Properties to Advance, as directed by Discount or Advance, as
applicable, (B) Dapper II and Remainderman II shall exchange and
convey, pursuant to a simultaneous like-kind exchange qualifying under
Section 1031 of the Tax Code, their respective interests in the Dapper
II Replaced Properties to Advance, as directed by Discount or Advance,
as applicable, and (C) Dapper III and Remainderman III shall exchange
and convey, pursuant to a simultaneous like-kind exchange qualifying
under Section 1031 of the Tax Code, their respective interests in the
Dapper III Replaced Properties to Advance, as directed by Discount or
Advance, as applicable;
(ii) (x) Dapper I and Remainderman I shall execute or
authorize, deliver and record or file the Dapper I Substitute Mortgages
and the Dapper I Substitute UCC-1 Financing Statements to FFC, (y)
Dapper II and Remainderman II shall execute or authorize, deliver and
record or file the Dapper II Substitute Mortgages and the Dapper II
Substitute UCC-1 Financing Statements to FFC, and (z) Dapper III and
Remainderman III shall execute or authorize, deliver and record or file
the Dapper III Substitute Mortgages and the Dapper III Substitute UCC-1
Financing Statements to Wamu;
(iii) (x) FFC will release the lien of the Dapper I Mortgages
and related UCC-1 Financing Statements from the Dapper I Replaced
Properties, (y) FFC will release the lien of the Dapper II Mortgages
and related UCC-1 Financing Statements from the Dapper II Replaced
Properties, and (z) Wamu will release the lien of the Dapper III
Mortgages and related UCC-1 Financing Statements from the Dapper III
Replaced Properties;
(iv) (x) Dapper I and Discount shall amend the Dapper I Master
Lease to remove the Dapper I Replaced Properties from the Dapper I
Master Lease and to add the Dapper I Substitute Properties to the
Dapper I Master Lease and include such other provisions as are
consistent with the terms and conditions set forth herein, (y) Dapper
II and Discount shall amend the Dapper II Master Lease to remove the
Dapper II Replaced Properties from the Dapper II Master Lease and to
add the Dapper II Substitute Properties to the Dapper II Master Lease
and include such other provisions as are consistent with the terms and
conditions set forth herein, and (z) Dapper III and Discount shall
amend the Dapper III Master Lease to remove the Dapper III Replaced
Properties from the Dapper III Master Lease and to add the Dapper III
Substitute Properties to the Dapper III Master Lease and include such
other provisions as are consistent with the terms and conditions set
forth herein; provided, however, such amendment shall not limit any
liability or obligation of Lessee with respect to the Replaced
Properties which has accrued prior to the Closing Date under any
provision of the Master Leases and/or any other Sale-Leaseback
Documents, including, without limitation, any indemnification and/or
hold harmless provisions, and such amendment shall not limit any
liability or obligation of Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III or Remainderman III with respect to the
Replaced Properties which has accrued prior to the Closing Date under
any provision of the Loan Agreements, the other Loan Documents, the
Master Leases and/or the other Sale-Leaseback Documents;
15
(v) (x) Dapper I and Discount shall execute, deliver and
record the Dapper I Substitute Memorandum, (y) Dapper II and Discount
shall execute, deliver and record the Dapper II Substitute Memorandum
and (z) Dapper III and Discount shall execute, deliver and record the
Dapper III Substitute Memorandum;
(vi) (x) Dapper I shall record partial releases of the Dapper
I Memorandum in the counties in which the Dapper I Replaced Properties
are located, (y) Dapper II shall record partial releases of the Dapper
II Memorandum in the counties in which the Dapper II Replaced
Properties are located, and (z) Dapper III shall record partial
releases of the Dapper III Memorandum in the counties in which the
Dapper III Replaced Properties are located;
(vii) (x) Dapper I, Remainderman I, FFC and Discount shall
execute, deliver and record the Dapper I Substitute Acknowledgement,
(y) Dapper II, Remainderman II, FFC and Discount shall execute, deliver
and record the Dapper II Substitute Acknowledgement, and (z) Dapper
III, Remainderman III, FFC and Discount shall execute, deliver and
record the Dapper III Substitute Acknowledgement;
(viii) (x) Dapper I, Remainderman I, FFC and Discount shall
record partial releases of the Dapper I Acknowledgement in the counties
in which the Dapper I Replaced Properties are located, (y) Dapper II,
Remainderman II, FFC and Discount shall record partial releases of the
Dapper II Acknowledgement in the counties in which the Dapper II
Replaced Properties are located, and (z) Dapper III, Remainderman III,
FFC and Discount shall record partial releases of the Dapper III
Acknowledgement in the counties in which the Dapper III Replaced
Properties are located;
(ix) (x) Dapper I, Remainderman I and Discount, as applicable,
shall execute and deliver the Dapper I Substitute Tripartite Agreements
and the Dapper I Substitute Option Agreements, (y) Dapper II,
Remainderman II and Discount, as applicable, shall execute and deliver
the Dapper II Substitute Tripartite Agreements and the Dapper II
Substitute Option Agreements, and (z) Dapper III, Remainderman III and
Discount, as applicable, shall execute and deliver the Dapper III
Substitute Tripartite Agreements and the Dapper III Substitute Option
Agreements; and
(x) Advance will execute and deliver to (x) Dapper I the
Dapper I Guaranty, (y) Dapper II the Dapper II Guaranty, and (z) Dapper
III the Dapper III Guaranty.
4. Consent. Subject to the execution and delivery of this Agreement,
each of the amendments to Master Lease and each of the Guaranties, each of FFC,
Wamu, Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III and
Remainderman III consent to the consummation of the Acquisition. Subject to the
satisfaction of the terms and conditions of this Agreement FFC and Wamu consent
to the consummation of the Transaction, and FFC and Wamu shall evidence such
consent in writing as of the Closing Date upon the request of Dapper I, Dapper
II and/or Dapper III.
5. Amendments. From and after the Closing:
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(i) the Replaced Properties shall no longer be included within
the meaning of the term "Premises" and "Properties" as defined and used
in the Loan Agreements, the other Loan Documents, the Master Leases and
the other Sale-Leaseback Documents, as applicable; provided, however,
such amendment shall not limit any liability or obligation of (x)
Discount which has accrued prior to the Closing Date with respect to
the Replaced Properties under any provision of the Master Leases and/or
the other Sale-Leaseback Documents, including, without limitation, any
indemnification and/or hold harmless provisions; and (y) Dapper I,
Remainderman I, Dapper II, Remainderman II, Dapper III or Remainderman
III which has accrued prior to the Closing Date with respect to the
Replaced Properties under any provision of the Loan Agreements, the
other Loan Documents, the Master Leases and the other Sale-Leaseback
Documents;
(ii) (x) the Dapper I Substitute Properties shall be included
within the meaning of the term "Premises" and "Properties" as defined
and used in the Dapper I Loan Agreement, the other Dapper I Loan
Documents (other than the Dapper I Mortgages), the Dapper I Master
Lease and the other Dapper I Sale-Leaseback Documents, as applicable;
(y) the Dapper II Substitute Properties shall be included within the
meaning of the term "Premises" and "Properties" as defined and used in
the Dapper II Loan Agreement, the other Dapper II Loan Documents (other
than the Dapper II Mortgages), the Dapper II Master Lease and the other
Dapper II Sale-Leaseback Documents, as applicable; and (z) the Dapper
III Substitute Properties shall be included within the meaning of the
term "Premises" and "Properties" as defined and used in the Dapper III
Loan Agreement, the other Dapper III Loan Documents (other than the
Dapper III Mortgages), the Dapper III Master Lease and the other Dapper
III Sale-Leaseback Documents, as applicable;
(iii) (x) the Dapper I Substitute Mortgages shall be included
within the meaning of the term "Mortgages" as defined and used in the
Dapper I Loan Agreement, the other Dapper I Loan Documents (other than
the Dapper I Mortgages), the Dapper I Master Lease and the other Dapper
I Sale-Leaseback Documents, as applicable; (y) the Dapper II Substitute
Mortgages shall be included within the meaning of the term "Mortgages"
as defined and used in the Dapper II Loan Agreement, the other Dapper
II Loan Documents (other than the Dapper II Mortgages), the Dapper II
Master Lease and the other Dapper II Sale-Leaseback Documents, as
applicable; and (z) the Dapper III Substitute Mortgages shall be
included within the meaning of the term "Mortgages" as defined and used
in the Dapper III Loan Agreement, the other Dapper III Loan Documents
(other than the Dapper III Mortgages), the Dapper III Master Lease and
the other Dapper III Sale-Leaseback Documents, as applicable;
(iv) (x) the Dapper I Substitute UCC-1 Financing Statements
shall be included within the meaning of the term "UCC-1 Financing
Statements" as defined and used in the Dapper I Loan Agreement, the
other Dapper I Loan Documents, the Dapper I Master Lease and the other
Dapper I Sale-Leaseback Documents, as applicable; (y) the Dapper II
Substitute UCC-1 Financing Statements shall be included within the
meaning of the term "UCC-1 Financing Statements" as defined and used in
the Dapper II Loan Agreement, the other Dapper II Loan Documents, the
Dapper II Master Lease and the other Dapper II Sale-Leaseback
Documents, as applicable; and (z) the Dapper III Substitute UCC-1
17
Financing Statements shall be included within the meaning of the term
"UCC-1 Financing Statements" as defined and used in the Dapper III
Loan Agreement, the other Dapper III Loan Documents, the Dapper III
Master Lease and the other Dapper III Sale-Leaseback Documents, as
applicable;
(v) (x) the Dapper I Substitute Memorandum shall be included
within the meaning of the term "Memorandum" as defined and used in the
Dapper I Loan Agreement, the other Dapper I Loan Document, the Dapper I
Master Lease and the other Dapper I Sale-Leaseback Documents, as
applicable; (y) the Dapper II Substitute Memorandum shall be included
within the meaning of the term "Memorandum" as defined and used in the
Dapper II Loan Agreement, the other Dapper II Loan Documents, the
Dapper II Master Lease and the other Dapper II Sale-Leaseback
Documents, as applicable; and (z) the Dapper III Substitute Memorandum
shall be included within the meaning of the term "Memorandum" as
defined and used in the Dapper III Loan Agreement, the other Dapper III
Loan Documents, the Dapper III Master Lease and the other Dapper III
Sale-Leaseback Documents, as applicable;
(vi) the Replaced Properties shall no longer be included
within the Aggregate Fixed Charge Coverage Ratio requirement set forth
in the Loan Agreements and the Master Leases;
(vii) (x) the Dapper I Substitute Properties shall be included
within the Aggregate Fixed Charge Coverage Ratio requirement set forth
in the Dapper I Loan Agreement and the Dapper I Master Lease; (y) the
Dapper II Substitute Properties shall be included within the Aggregate
Fixed Charge Coverage Ratio requirement set forth in the Dapper II Loan
Agreement and the Dapper II Master Lease; and (z) the Dapper III
Substitute Properties shall be included within the Aggregate Fixed
Charge Coverage Ratio requirement set forth in the Dapper III Loan
Agreement and the Dapper III Master Lease;
(viii) this Agreement and the Transaction Documents executed
by the applicable parties to this Agreement with respect to the
Substitute Properties shall be included within the meaning of the term
"Loan Documents" and "Sale-Leaseback Documents" as defined and used in
the Loan Agreements, the other Loan Documents and the Master Leases, as
applicable; and
(ix) the substitutions effected pursuant to the Transaction
shall not count against Discount's rights of Uneconomic Substitution
(as defined in the Master Leases) as provided in Section 57.A. of the
Master Leases and thus the number of Properties (as defined in the
Master Leases) for which Discount may do an Uneconomic Substitution as
provided in such section of the Master Leases which may still be
effected thereunder shall not be affected by this Transaction.
6. Closing. A. The Transaction shall be closed (the "Closing") within
60 days following 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 January 31, 2002 unless such
18
extension shall be approved by FFC, Wamu, Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III and Remainderman III, such approval not to be
unreasonably withheld (the date on which the Closing shall occur is referred to
herein as the "Closing Date").
B. Without limiting Discount's obligation to pay all costs and expenses
associated with a substitution as set forth in Section 21.B. of the Master
Leases, all costs of the transactions contemplated by this Agreement shall be
borne by Discount and Advance, including, without limitation, the reasonable
cost of title insurance and endorsements, reasonable survey charges,
environmental insurance charges, the attorneys' fees of Discount and Advance,
the reasonable attorneys' fees and expenses of FFC, Dapper I, Remainderman I,
Dapper II, Remainderman II, Dapper III and Remainderman III, the costs
associated with qualifying Dapper I, Remainderman I, Dapper II, Remainderman II,
Dapper III and Remainderman III in the applicable states, mortgage taxes,
transfer fees and taxes, escrow fees, recording fees and any taxes, including
income taxes and/or capital gains taxes, if any, imposed on Dapper I,
Remainderman I, Dapper II, Remainderman II, Dapper III and Remainderman III with
respect to the Transaction. All real and personal property and other applicable
taxes and assessments and other charges relating to the Replaced Properties and
the Substitute Properties 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 Lawyers Title Insurance Corporation ("Title Company") requires to
be paid at Closing as a condition to the issuance of the title insurance
policies described in Section 12.C, shall be paid by Discount at or prior to the
Closing. In addition to the foregoing, from and after the Closing, Discount
shall pay any and all ongoing fees, taxes, charges, costs and expenses, on an
after tax basis, associated with Dapper I, Dapper II, Dapper III, Remainder I,
Remainder II and Remainder III owning properties in states where such entities
did not previously own property, including, without limitation, state and local
transfer taxes associated with the sale of such properties by Dapper I, Dapper
II, Dapper III, Remainder I, Remainder II and/or Remainder III, costs and
expenses associated with qualifying such entities in such states and continuing
to keep such entities qualified and in good standing in such states, any and all
of such entities franchise taxes, income, excise, sales and/or use taxes, if
any, business and/or business privilege taxes, if any, and any taxes, fees or
charges of a similar nature, provided, however, with respect to the payment by
Discount of the entities' franchise taxes, income, business and/or business
privilege taxes and other taxes of a similar nature, the amount Discount is
required to pay in respect of such taxes shall be reduced by the amount of taxes
in the aggregate the entities would otherwise have been obligated to pay under
the terms and conditions of the Master Leases with respect to the Replaced
Properties had the substitution not occurred. Without limiting any of the
obligations of Discount under the Sale-Leaseback Documents, Discount shall be
responsible for the payment of all obligations accruing under the Master Leases
with respect to the Replaced Properties and the Substitute Properties prior to
the Closing. The Transaction Documents (with the exception of this Agreement)
shall be dated as of the Closing Date.
FFC has ordered a title insurance commitment for each of the Substitute
Properties from Title Company. Discount, Advance, Dapper I, Remainderman I,
Dapper II, Remainderman II, Dapper III, Remainderman III, FFC and Wamu hereby
employ Title Company to act as escrow agent in connection with the Transaction.
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 the parties to do so. The
parties will deliver to
19
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 the
respective credit of any of the parties, all amounts necessary to procure the
delivery of such documents and to pay, on behalf of any of the parties, all
charges and obligations payable by them, respectively. Discount 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 the parties 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 reasonable charges and its
reasonable expenses and reasonable 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 FFC. 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. 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.
7. Representations and Warranties of FFC and Wamu. The representations
and warranties of FFC and Wamu contained in this Section are being made by each
of FFC and Wamu as of the date of this Agreement to induce Dapper I,
Remainderman I, Dapper II, Remainderman II, Dapper III, Remainderman III,
Discount and Advance to enter into this Agreement and consummate the
transactions contemplated herein, and Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III, Remainderman III, Discount and Advance have relied,
and will continue to rely, upon such representations and warranties from and
after the execution of this Agreement. Each of FFC and Wamu represents and
warrants to Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III,
Remainderman III, Discount and Advance as follows:
A. Organization of FFC and Wamu. Each of FFC and Wamu has been
duly formed, is validly existing and has taken all necessary action to
authorize the execution, delivery and performance by FFC and Wamu of
this Agreement.
B. Authority of FFC and Wamu. The person who has executed this
Agreement on behalf of FFC is duly authorized so to do. FFC has the
authority to execute this Agreement on behalf of Wamu in accordance
with the terms and conditions of the Servicing Agreement.
C. Enforceability. Upon execution by FFC and Wamu, this
Agreement shall constitute the legal, valid and binding obligation of
FFC and Wamu, enforceable against
20
FFC and Wamu in accordance with its terms except as such
enforceability may be limited by applicable bankruptcy, insolvency,
liquidation, reorganization, moratorium and other laws affecting the
rights of creditors generally and subject to the exercise of judicial
discretion in accordance with general principles of equity.
D. Absence of Breaches or Defaults. No "Event of Default" has
occurred and is continuing under the Loan Documents.
All representations and warranties of FFC and Wamu made in this
Agreement are being made as of the date of this Agreement and such
representations and warranties shall survive the Closing.
8. Representations and Warranties of Discount and Advance. The
respective representations and warranties of Discount and Advance contained in
this Section are being made as of the date of this Agreement and the Closing
Date to induce Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III,
Remainderman III, FFC and Wamu to enter into this Agreement and consummate the
transactions contemplated herein, and Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III, Remainderman III, FFC and Wamu have relied, and
will continue to rely, upon such representations and warranties from and after
the execution of this Agreement and the Closing. Each of Discount and Advance
represents and warrants to Dapper I, Remainderman I, Dapper II, Remainderman II,
Dapper III, Remainderman III, FFC and Wamu as follows:
A. Organization and Authority. (i) Each of Discount and
Advance is a duly organized or formed corporation, validly existing and
of active status under the laws of its state of incorporation, and
qualified to do business in (a) each of the respective states in which
the Substitute Properties provided by the respective party are located
and (b) any other state where such qualification is required except
where the failure to be so qualified would not have a material adverse
effect on Discount or Advance, as the case may be. All necessary
corporate 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.
(ii) Neither Discount nor Advance is a "foreign corporation",
"foreign partnership", "foreign trust", "foreign limited liability
company" or "foreign estate" as those terms are defined in the Internal
Revenue Code and the regulations promulgated thereunder.
(iii) The persons who have executed this Agreement on behalf
of Discount and Advance are duly authorized so to do.
B. Enforceability of Documents. Upon execution by Discount and
Advance, this Agreement and the other Transaction Documents shall
constitute the legal, valid and binding obligations of Discount and
Advance, as applicable, enforceable against Discount and Advance, as
applicable, in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
liquidation, reorganization, moratorium and other laws affecting the
rights of creditors generally and
21
subject to the exercise of judicial discretion in accordance with general
principles of equity.
C. Litigation. There are no suits, actions, proceedings or
investigations pending or, to the best of its knowledge, threatened
against or involving Discount, Advance or any of the Substitute
Properties before any Governmental Authority, including, without
limitation, the Pending Actions, which might reasonably result in any
material adverse change in the contemplated business, condition, worth
or operations of Discount, Advance or any of the Substitute Properties.
D. Absence of Breaches or Defaults. Neither Discount nor
Advance is in breach or default under any other document, instrument or
agreement to which Discount or Advance is a party or by which Discount,
Advance, any of the Substitute Properties, any of Discount's property
or any of Advance's property is subject or bound, which breach or
default could reasonably be expected to have a material adverse effect
on Discount, Advance or any of the Substitute Properties. No "Event of
Default" has occurred and is continuing under the Master Leases. The
authorization, execution, delivery and performance of this Agreement
and the other Transaction Documents will not result in any breach or
default under any other document, instrument or agreement to which
Discount or Advance is a party or by which Discount, Advance, any of
the Substitute Properties, any of Discount's property or any of
Advance's property is subject or bound, which breach or default could
reasonably be expected to have a material adverse effect on Discount,
Advance or any of the Substitute Properties. The authorization,
execution, delivery and performance of this Agreement and the other
Transaction Documents will not violate any applicable law, statute,
regulation, rule, ordinance, code, rule or order where the effect of
such violation could reasonably be expected to have a material adverse
effect on Discount, Advance or any of the Substitute Properties.
E. Utilities. Each of the Substitute Properties are served by
adequate public utilities to permit full utilization of each of the
Substitute Properties for their intended purposes and all utility
connection fees and use charges will have been paid in full.
F. Intended Use and Zoning; Compliance With Laws. Discount
intends to use or to cause Advance to use each of the Substitute
Properties solely for the operation of a Permitted Facility in
accordance with the standards of operations then in effect on a
system-wide basis, and related ingress, egress and parking, and for no
other purposes. Each of the Substitute Properties is in material
compliance with all applicable zoning requirements and the current
officers of Discount and Advance have not received any written notice
that the use of any of the Substitute Properties as a Permitted
Facility constitutes a nonconforming use under applicable zoning
requirements. Each of the Substitute Properties complies in all
material respects with all applicable statutes, regulations, rules,
ordinances, codes, licenses, permits, orders and approvals of any
governmental agencies, departments, commissions, bureaus, boards or
instrumentalities of the United States, the states in which the
Substitute Properties are located and all political subdivisions
thereof, including, without limitation, all health, building, fire,
safety and other codes, ordinances and requirements, all applicable
standards of the
22
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 Discount or Advance.
G. Area Development; Wetlands. No condemnation or eminent
domain proceedings affecting any of the Substitute Properties have been
commenced or, to the knowledge of the officers of Discount and Advance,
are contemplated. To the knowledge of the officers of Discount and
Advance, the area where any of the Substitute Properties is located has
not been declared blighted by any Governmental Authority. Except as may
be shown on the surveys for the Substitute Properties delivered by or
on behalf of Discount or Advance to FFC, each of the Substitute
Properties and, to the knowledge of Discount's or Advance's officers,
the real property bordering any of the Substitute Properties is not
designated by any Governmental Authority as wetlands.
H. Licenses and Permits; Access. Prior to the Closing Date,
Discount or Advance, as applicable, shall have all required licenses
and permits, both governmental and private, to use and operate each of
the Substitute Properties in the intended manner. There are adequate
rights of access either directly or through an easement, to public
roads and ways available to each of the Substitute Properties to permit
full utilization of each of the Substitute Properties for its intended
purpose and all such public roads and ways have been completed and
dedicated to public use.
I. Condition of Properties. Each of the Substitute Properties
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, attractive and well maintained.
J. Environmental. Discount or Advance, as applicable, is fully
familiar with the present use of each of the Substitute Properties. To
the knowledge of the officers of Discount and Advance, no Hazardous
Materials have been used, handled, manufactured, generated, produced,
stored, treated, processed, transferred or disposed of at or on any of
the Substitute Properties, except in De Minimis Amounts or in material
compliance with all applicable Environmental Laws, and no Release or
Threatened Release has occurred at or on any of the Substitute
Properties except such as have been remedied in compliance with all
applicable Environmental Laws. To the knowledge of the officers of
Discount and Advance, the activities, operations and business
undertaken on, at or about each of the Substitute Properties,
including, but not limited to, any past or ongoing alterations or
improvements at each of the Substitute Properties, are and have been at
all times, in material compliance with all Environmental Laws. To the
knowledge of the officers of Discount and Advance, no further action is
required to remedy any Environmental Condition directly impacting any
of the Substitute Properties or violation of, or to be in compliance in
all material respects with, any Environmental Laws, and no lien has
been imposed on any of the Substitute Properties 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 on or off any of the Substitute Properties.
23
To the knowledge of the officers of Discount and Advance,
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 on or at
any of the Substitute Properties or the Release, Threatened Release or
placement on or at any of the Substitute Properties of any Hazardous
Materials, or of any facts which would give rise to any such action,
nor has Discount or Advance (a) received any notice (and the officers
of Discount and Advance have 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 any
of the Substitute Properties or that there exists a Release, Threatened
Release or placement of any Hazardous Materials on or at any of the
Substitute Properties, or the use, handling, manufacturing, generation,
production, storage, treatment, processing, transportation or disposal
of any Hazardous Materials at or on any of the Substitute Properties
other than such as are in material compliance with all applicable
Environmental Laws or have been remedied in compliance with all
applicable Environmental Laws; (b) received any notice under the
citizen suit provision of any Environmental Law in connection with any
of the Substitute Properties 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 relating to any of the Substitute
Properties or any facilities, operations or activities conducted
thereon or any business conducted in connection therewith.
To the knowledge of the officers of Discount and Advance, the
information and disclosures in the Questionnaires are true, correct and
complete in all material respects. FFC, Wamu, Dapper I, Remainderman I,
Dapper II, Remainderman II, Dapper III, Remainderman III and
Environmental Insurer may rely on such information and disclosures, and
the person or persons executing the Questionnaires were duly authorized
to do so.
K. Title to Properties. Fee title to each of the Substitute
Properties is vested in either Discount or Advance, free and clear of
all liens, encumbrances, charges and security interests of any nature
whatsoever, except the Permitted Exceptions.
L. No Other Agreements and Options. Except as otherwise
disclosed in the title commitment or commitments with respect to the
Substitute Properties, none of Discount, Advance or, to the knowledge
of the officers of Discount and Advance, any of the Substitute
Properties is 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 Discount or Advance from completing or impair Discount's or
Advance's ability to complete the sale of any of the Substitute
Properties under this Agreement or which would bind FFC, Wamu, Dapper
I, Remainderman I, Dapper II, Remainderman II, Dapper III or
Remainderman III subsequent to consummation of the transaction
contemplated by this Agreement.
24
M. No Mechanics' Liens. There are no outstanding accounts
payable, 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 any of the Substitute Properties that will not have been
fully paid for on or before the Closing Date; no work has been
performed or is in progress nor have materials been supplied to any of
the Substitute Properties or agreements entered into for work to be
performed or materials to be supplied to any of the Substitute
Properties prior to the date hereof, which will not have been fully
paid for before the date the same becomes delinquent; Discount 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
any of the Substitute Properties prior to the Closing Date; Discount
shall and does hereby agree to defend, indemnify and forever hold the
Indemnified Parties harmless for, from and against any and all such
mechanics' lien claims, accounts payable or other commitments relating
to any of the Substitute Properties due to contracts or arrangements
initiated by Discount, Advance or their agents.
N. Restatement of Representations, Warranties and Covenants.
Discount hereby reaffirms and restates in their entirety as of the date
hereof and as of Closing (except for representations and warranties
made with respect to a date certain) hereunder all of the
representations, warranties and covenants of Discount set forth in the
Sale-Leaseback Documents, as modified and amended by this Agreement.
All such representations and warranties shall be and will remain true
and complete as of, and all such covenants shall continue in effect
subsequent to, Closing as if made and restated in full as of such time
and shall survive Closing.
All representations and warranties of Discount and Advance made in this
Section 8 shall survive the Closing. Each of Discount and Advance acknowledges
and agrees that Environmental Insurer may rely on the environmental
representations and warranties set forth in the preceding subsection J, 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.
9. Representations and Warranties of Dapper I. The representations and
warranties of Dapper I contained in this Section are being made by Dapper I as
of the date of this Agreement and the Closing Date to induce FFC, Wamu, Discount
and Advance to enter into this Agreement and consummate the transactions
contemplated herein, and FFC, Wamu, Discount and Advance have relied, and will
continue to rely, upon such representations and warranties from and after the
execution of this Agreement and the Closing. Dapper I represents and warrants to
FFC, Wamu, Discount and Advance as follows:
A. Organization and Authority. (i) Dapper I is duly formed,
validly existing and in good standing under the laws of its state of
formation, and is qualified as a foreign limited liability company to
do business in any jurisdiction where such qualification is required.
All necessary limited liability company action has been taken to
authorize the
25
execution, delivery and performance of this Agreement and the other Transaction
Documents to which it is a party.
(ii) The person who has executed this Agreement on behalf of
Dapper I is duly authorized so to do.
(iii) No "Event of Default" has occurred and is continuing
under the Dapper I Master Lease or the Dapper I Loan Documents.
B. Enforceability of Documents. Upon execution by Dapper I,
this Agreement and the other Transaction Documents to which it is a
party shall constitute the legal, valid and binding obligations of
Dapper I, enforceable against Dapper I in accordance with their
respective terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, liquidation, reorganization,
moratorium and other laws affecting the rights of creditors generally
and subject to the exercise of judicial discretion in accordance with
general principles of equity.
C. Litigation. There are no suits, actions, proceedings or
investigations pending or, to the best of Dapper I's knowledge,
threatened against or involving Dapper before any arbitrator or
Governmental Authority which might reasonably result in any material
adverse change in the contemplated business, condition, worth or
operations of Dapper I.
D. Title to Premises; First Priority Lien. Upon Closing,
Dapper I shall have an estate for years in the land comprising the
Dapper I Substitute Properties and fee title to the improvements on
such land, all free and clear of all liens, encumbrances, charges and
security interests of any nature whatsoever, except the Permitted
Exceptions. Upon Closing, FFC shall have a first priority lien upon and
security interest in each of the Dapper I Substitute Properties
pursuant to the Dapper I Substitute Mortgages and the Dapper I
Substitute UCC-1 Financing Statements. Upon Closing, Advance shall
receive fee title to the Dapper I Replaced Properties, all free and
clear of all liens, encumbrances, charges and security interests of any
nature whatsoever, except the Permitted Exceptions.
E. No Other Agreements and Options. Other than as contained in
the Dapper I Master Lease and the other Sale-Leaseback Documents,
Dapper I is not 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 Dapper I from fulfilling its obligations under this
Agreement or the other Transaction Documents.
All representations and warranties of Dapper I made in this Agreement
shall survive the Closing.
10. Representations and Warranties of Remainderman I. The
representations and warranties of Remainderman I contained in this Section are
being made by Remainderman I as of the date of this Agreement and the Closing
Date to induce FFC, Wamu, Discount and Advance to enter into this Agreement and
consummate the transactions contemplated herein, and FFC, Wamu, Discount and
Advance have relied, and will continue to rely, upon such
26
representations and warranties from and after the execution of this
Agreement and the Closing. Remainderman I represents and warrants to FFC, Wamu,
Discount and Advance as follows:
A. Organization and Authority. (i) Remainderman I is duly
formed, validly existing and in good standing under the laws of its
state of formation, and is qualified as a foreign limited liability
company to do business in any jurisdiction where such qualification is
required. All necessary limited liability company action has been taken
to authorize the execution, delivery and performance of this Agreement
and the other Transaction Documents to which it is a party.
(ii) The person who has executed this Agreement on behalf of
Remainderman I is duly authorized so to do.
B. Enforceability of Documents. Upon execution by Remainderman
I, this Agreement and the other Transaction Documents to which it is a
party shall constitute the legal, valid and binding obligations of
Remainderman I, enforceable against Remainderman I in accordance with
their respective terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, liquidation, reorganization,
moratorium and other laws affecting the rights of creditors generally
and subject to the exercise of judicial discretion in accordance with
general principles of equity.
C. Litigation. There are no suits, actions, proceedings or
investigations pending or, to the best of Remainderman I's knowledge,
threatened against or involving Remainderman I before any arbitrator or
Governmental Authority which might reasonably result in any material
adverse change in the contemplated business, condition, worth or
operations of Remainderman I.
D. Title to Premises; First Priority Lien. Upon Closing,
Remainderman I shall have a remainder interest in the land comprising
the Dapper I Substitute Properties, all free and clear of all liens,
encumbrances, charges and security interests of any nature whatsoever,
except the Permitted Exceptions. Upon Closing, FFC shall have a first
priority lien upon and security interest in each of the Dapper I
Substitute Properties pursuant to the Dapper I Substitute Mortgages and
the Dapper I Substitute UCC-1 Financing Statements. Upon Closing,
Advance shall receive fee title to the Dapper I Replaced Properties,
all free and clear of all liens, encumbrances, charges and security
interests of any nature whatsoever, except the Permitted Exceptions.
E. No Other Agreements and Options. Other than as contained in
the Dapper I Master Lease and the other Sale-Leaseback Documents,
Remainderman I is not 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 Remainderman I from fulfilling its obligations
under this Agreement or the other Transaction Documents.
All representations and warranties of Remainderman I made in this
Agreement shall survive the Closing.
27
11. Representations and Warranties of Dapper II. The representations
and warranties of Dapper II contained in this Section are being made by Dapper
II as of the date of this Agreement and the Closing Date to induce FFC, Wamu,
Discount and Advance to enter into this Agreement and consummate the
transactions contemplated herein, and FFC, Wamu, Discount and Advance have
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. Dapper II represents
and warrants to FFC, Wamu, Discount and Advance as follows:
A. Organization and Authority. (i) Dapper II is duly formed,
validly existing and in good standing under the laws of its state of
formation, and is qualified as a foreign limited liability company to
do business in any jurisdiction where such qualification is required.
All necessary limited liability company action has been taken to
authorize the execution, delivery and performance of this Agreement and
the other Transaction Documents to which it is a party.
(ii) The person who has executed this Agreement on behalf of
Dapper II is duly authorized so to do.
(iii) No "Event of Default" has occurred and is continuing
under the Dapper II Master Lease or the Dapper II Loan Documents.
B. Enforceability of Documents. Upon execution by Dapper II,
this Agreement and the other Transaction Documents to which it is a
party shall constitute the legal, valid and binding obligations of
Dapper II, enforceable against Dapper II in accordance with their
respective terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, liquidation, reorganization,
moratorium and other laws affecting the rights of creditors generally
and subject to the exercise of judicial discretion in accordance with
general principles of equity.
C. Litigation. There are no suits, actions, proceedings or
investigations pending or, to the best of Dapper II's knowledge,
threatened against or involving Dapper II before any arbitrator or
Governmental Authority which might reasonably result in any material
adverse change in the contemplated business, condition, worth or
operations of Dapper II.
D. Title to Premises; First Priority Lien. Upon Closing,
Dapper II shall have an estate for years in the land comprising the
Dapper II Substitute Properties and fee title to the improvements on
such land, all free and clear of all liens, encumbrances, charges and
security interests of any nature whatsoever, except the Permitted
Exceptions. Upon Closing, FFC shall have a first priority lien upon and
security interest in each of the Dapper II Substitute Properties
pursuant to the Dapper II Substitute Mortgages and the Dapper II
Substitute UCC-1 Financing Statements. Upon Closing, Advance shall
receive fee title to the Dapper II Replaced Properties, all free and
clear of all liens, encumbrances, charges and security interests of any
nature whatsoever, except the Permitted Exceptions.
E. No Other Agreements and Options. Other than as contained in
the Dapper II Master Lease and the other Sale-Leaseback Documents,
Dapper II is not subject to any commitment, obligation, or agreement,
including, without limitation, any right of first
28
refusal, option to purchase or lease granted to a third party,
which could or would prevent or hinder Dapper II from fulfilling its
obligations under this Agreement or the other Transaction Documents.
All representations and warranties of Dapper II made in this Agreement
shall survive the Closing.
12. Representations and Warranties of Remainderman II. The
representations and warranties of Remainderman II contained in this Section are
being made by Remainderman II as of the date of this Agreement and the Closing
Date to induce FFC, Wamu, Discount and Advance to enter into this Agreement and
consummate the transactions contemplated herein, and FFC, Wamu, Discount and
Advance have relied, and will continue to rely, upon such representations and
warranties from and after the execution of this Agreement and the Closing.
Remainderman II represents and warrants to FFC, Wamu, Discount and Advance as
follows:
A. Organization and Authority. (i) Remainderman II is duly
formed, validly existing and in good standing under the laws of its
state of formation, and is qualified as a foreign limited liability
company to do business in any jurisdiction where such qualification is
required. All necessary limited liability company action has been taken
to authorize the execution, delivery and performance of this Agreement
and the other Transaction Documents to which it is a party.
(ii) The person who has executed this Agreement on behalf of
Remainderman II is duly authorized so to do.
B. Enforceability of Documents. Upon execution by Remainderman
II, this Agreement and the other Transaction Documents to which it is a
party shall constitute the legal, valid and binding obligations of
Remainderman II, enforceable against Remainderman II in accordance with
their respective terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, liquidation, reorganization,
moratorium and other laws affecting the rights of creditors generally
and subject to the exercise of judicial discretion in accordance with
general principles of equity.
C. Litigation. There are no suits, actions, proceedings or
investigations pending or, to the best of Remainderman II's knowledge,
threatened against or involving Remainderman II before any arbitrator
or Governmental Authority which might reasonably result in any material
adverse change in the contemplated business, condition, worth or
operations of Remainderman II.
D. Title to Premises; First Priority Lien. Upon Closing,
Remainderman II shall have a remainder interest in the land comprising
the Dapper II Substitute Properties, all free and clear of all liens,
encumbrances, charges and security interests of any nature whatsoever,
except the Permitted Exceptions. Upon Closing, FFC shall have a first
priority lien upon and security interest in each of the Dapper II
Substitute Properties pursuant to the Dapper II Substitute Mortgages
and the Dapper II Substitute UCC-1 Financing Statements. Upon Closing,
Advance shall receive fee title to the Dapper II Replaced Properties,
all free and
29
clear of all liens, encumbrances, charges and security interests of
any nature whatsoever, except the Permitted Exceptions.
E. No Other Agreements and Options. Other than as contained in
the Dapper II Master Lease and the other Sale-Leaseback Documents,
Remainderman II is not 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 Remainderman II from fulfilling its obligations
under this Agreement or the other Transaction Documents.
All representations and warranties of Remainderman II made in this
Agreement shall survive the Closing.
13. Representations and Warranties of Dapper III. The representations
and warranties of Dapper III contained in this Section are being made by Dapper
III as of the date of this Agreement and the Closing Date to induce FFC, Wamu,
Discount and Advance to enter into this Agreement and consummate the
transactions contemplated herein, and FFC, Wamu, Discount and Advance have
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. Dapper III represents
and warrants to FFC, Wamu, Discount and Advance as follows:
A. Organization and Authority. (i) Dapper III is duly formed,
validly existing and in good standing under the laws of its state of
formation, and is qualified as a foreign limited liability company to
do business in any jurisdiction where such qualification is required.
All necessary limited liability company action has been taken to
authorize the execution, delivery and performance of this Agreement and
the other Transaction Documents to which it is a party.
(ii) The person who has executed this Agreement on behalf of
Dapper III is duly authorized so to do.
(iii) No "Event of Default" has occurred and is continuing
under the Dapper III Master Lease or the Dapper III Loan Documents.
B. Enforceability of Documents. Upon execution by Dapper III,
this Agreement and the other Transaction Documents to which it is a
party shall constitute the legal, valid and binding obligations of
Dapper III, enforceable against Dapper III in accordance with their
respective terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, liquidation, reorganization,
moratorium and other laws affecting the rights of creditors generally
and subject to the exercise of judicial discretion in accordance with
general principles of equity.
C. Litigation. There are no suits, actions, proceedings or
investigations pending or, to the best of Dapper III's knowledge,
threatened against or involving Dapper III before any arbitrator or
Governmental Authority which might reasonably result in any material
adverse change in the contemplated business, condition, worth or
operations of Dapper III.
30
D. Title to Premises; First Priority Lien. Upon Closing,
Dapper III shall have an estate for years in the land comprising the
Dapper III Substitute Properties and fee title to the improvements on
such land, all free and clear of all liens, encumbrances, charges and
security interests of any nature whatsoever, except the Permitted
Exceptions. Upon Closing, Wamu shall have a first priority lien upon
and security interest in each of the Dapper III Substitute Properties
pursuant to the Dapper III Substitute Mortgages and the Dapper III
Substitute UCC-1 Financing Statements. Upon Closing, Advance shall
receive fee title to the Dapper III Replaced Properties, all free and
clear of all liens, encumbrances, charges and security interests of any
nature whatsoever, except the Permitted Exceptions.
E. No Other Agreements and Options. Other than as contained in
the Dapper III Master Lease and the other Sale-Leaseback Documents,
Dapper III is not 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 Dapper III from fulfilling its obligations under this
Agreement or the other Transaction Documents.
All representations and warranties of Dapper III made in this Agreement
shall survive the Closing.
14. Representations and Warranties of Remainderman III. The
representations and warranties of Remainderman III contained in this Section are
being made by Remainderman III as of the date of this Agreement and the Closing
Date to induce FFC, Wamu, Discount and Advance to enter into this Agreement and
consummate the transactions contemplated herein, and FFC, Wamu, Discount and
Advance have relied, and will continue to rely, upon such representations and
warranties from and after the execution of this Agreement and the Closing.
Remainderman III represents and warrants to FFC, Wamu, Discount and Advance as
follows:
A. Organization and Authority. (i) Remainderman III is duly
formed, validly existing and in good standing under the laws of its
state of formation, and is qualified as a foreign limited liability
company to do business in any jurisdiction where such qualification is
required. All necessary limited liability company action has been taken
to authorize the execution, delivery and performance of this Agreement
and the other Transaction Documents to which it is a party.
(ii) The person who has executed this Agreement on behalf of
Remainderman III is duly authorized so to do.
B. Enforceability of Documents. Upon execution by Remainderman
III, this Agreement and the other Transaction Documents to which it is
a party shall constitute the legal, valid and binding obligations of
Remainderman III, enforceable against Remainderman III in accordance
with their respective terms except as such enforceability may be
limited by applicable bankruptcy, insolvency, liquidation,
reorganization, moratorium and other laws affecting the rights of
creditors generally and subject to the exercise of judicial discretion
in accordance with general principles of equity.
31
C. Litigation. There are no suits, actions, proceedings or
investigations pending or, to the best of Remainderman III's knowledge,
threatened against or involving Remainderman III before any arbitrator
or Governmental Authority which might reasonably result in any material
adverse change in the contemplated business, condition, worth or
operations of Remainderman III.
D. Title to Premises; First Priority Lien. Upon Closing,
Remainderman III shall have a remainder interest in the land comprising
the Dapper III Substitute Properties, all free and clear of all liens,
encumbrances, charges and security interests of any nature whatsoever,
except the Permitted Exceptions. Upon Closing, Wamu shall have a first
priority lien upon and security interest in each of the Dapper III
Substitute Properties pursuant to the Dapper III Substitute Mortgages
and the Dapper III Substitute UCC-1 Financing Statements. Upon Closing,
Advance shall receive fee title to the Dapper III Replaced Properties,
all free and clear of all liens, encumbrances, charges and security
interests of any nature whatsoever, except the Permitted Exceptions.
E. No Other Agreements and Options. Other than as contained in
the Dapper III Master Lease and the other Sale-Leaseback Documents,
Remainderman III is not 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 Remainderman III from fulfilling its
obligations under this Agreement or the other Transaction Documents.
All representations and warranties of Remainderman III made in this
Agreement shall survive the Closing.
15. Conditions of Closing. The obligation of Dapper I, Remainderman I,
Dapper II, Remainderman II, Dapper III and Remainderman III to consummate the
Transaction, and the obligation of FFC and Wamu to consent to and/or consummate
the Transaction, as applicable, is subject to the fulfillment or waiver of each
of the following conditions:
A. Title. (i) A remainder interest in the land comprising the
Dapper I Substitute Properties shall be vested in Remainderman I and
Dapper I shall have an estate for years therein and fee title to the
improvements on the Dapper I Substitute Properties, all free of all
liens, encumbrances, restrictions, encroachments and easements, except
the Permitted Exceptions and the liens created by the Dapper I
Substitute Mortgages and the Dapper I Substitute UCC-1 Financing
Statements; (ii) a remainder interest in the land comprising the Dapper
II Substitute Properties shall be vested in Remainderman II and Dapper
II shall have an estate for years therein and fee title to the
improvements on the Dapper II Substitute Properties, all free of all
liens, encumbrances, restrictions, encroachments and easements, except
the Permitted Exceptions and the liens created by the Dapper II
Substitute Mortgages and the Dapper II Substitute UCC-1 Financing
Statements; and (iii) a remainder interest in the land comprising the
Dapper III Substitute Properties shall be vested in Remainderman III
and Dapper III shall have an estate for years therein and fee title to
the improvements on the Dapper III Substitute Properties, all free of
all liens, encumbrances, restrictions, encroachments and easements,
except the Permitted Exceptions and the liens created by the Dapper III
Substitute Mortgages and the Dapper III Substitute
32
UCC-1 Financing Statements. Upon Closing, FFC will obtain a valid and
perfected first priority lien upon and security interest in the Dapper
I Substitute Properties and the Dapper II Substitute Properties and
Wamu shall obtain a valid and perfected first priority lien upon and
security interest in the Dapper III Substitute Properties.
B. Condition of Properties. The Substitute Properties shall be
in good condition and repair and FFC, Dapper I, Remainderman I, Dapper
II, Remainderman II, Dapper III and Remainderman III shall have
inspected and approved the Substitute Properties.
C. Evidence of Title. (i) FFC shall have received for each of
the Dapper I Substitute Properties a preliminary title report and
irrevocable commitment to insure title in the original principal amount
of the corresponding Dapper I Notes 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 any jurisdiction where the Dapper I
Substitute Properties are located) issued by Title Company showing a
good and marketable remainder interest in the land comprising the
Dapper I Substitute Properties in Remainderman I and an estate for
years therein and fee title in the improvements on the Dapper I
Substitute Properties in Dapper I, committing to insure FFC's first
priority lien upon and security interest in the Dapper I Substitute
Properties subject only to Permitted Exceptions, and containing such
endorsements as FFC may reasonably require. Dapper I and Remainderman I
shall have received for each of the Dapper I Substitute Properties a
preliminary title report and irrevocable commitment to insure title in
the amounts set forth on the title commitments for the corresponding
Dapper I Replaced Properties by means of an owner's ALTA extended
coverage policy of title insurance (or its equivalent, in the event
such form is not issued in any jurisdiction where any of the Dapper I
Substitute Properties are located) issued by Title Company showing a
good and marketable remainder interest in the land comprising the
Dapper I Substitute Properties in Remainderman I and an estate for
years therein and fee title in the improvements on the Dapper I
Substitute Properties in Dapper I, committing to insure such interests
in the Dapper I Substitute Properties subject only to Permitted
Exceptions, and containing such endorsements as Dapper I and
Remainderman I may reasonably require.
(ii) FFC shall have received for each of the Dapper II
Substitute Properties a preliminary title report and irrevocable
commitment to insure title in the original principal amount of the
corresponding Dapper II Notes 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 any jurisdiction where the Dapper II
Substitute Properties are located) issued by Title Company showing a
good and marketable remainder interest in the land comprising the
Dapper II Substitute Properties in Remainderman II and an estate for
years therein and fee title in the improvements on the Dapper II
Substitute Properties in Dapper II, committing to insure FFC's first
priority lien upon and security interest in the Dapper II Substitute
Properties subject only to Permitted Exceptions, and containing such
endorsements as FFC may reasonably require. Dapper II and Remainderman
II shall have received for each of the Dapper II Substitute Properties
a preliminary title report and irrevocable commitment to insure title
in the amounts set forth on the title commitments for the corresponding
Dapper II Replaced Properties by means of an owner's ALTA extended
coverage policy of title
33
insurance (or its equivalent, in the event such form is not
issued in any jurisdiction where any of the Dapper II Substitute
Properties are located) issued by Title Company showing a good and
marketable remainder interest in the land comprising the Dapper II
Substitute Properties in Remainderman II and an estate for years
therein and fee title in the improvements on the Dapper II Substitute
Properties in Dapper II, committing to insure such interests in the
Dapper II Substitute Properties subject only to Permitted Exceptions,
and containing such endorsements as Dapper II and Remainderman II may
reasonably require.
(iii) Wamu shall have received for each of the Dapper III
Substitute Properties a preliminary title report and irrevocable
commitment to insure title in the original principal amount of the
corresponding Dapper III Notes 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 any jurisdiction where the Dapper III
Substitute Properties are located) issued by Title Company showing a
good and marketable remainder interest in the land comprising the
Dapper III Substitute Properties in Remainderman III and an estate for
years therein and fee title in the improvements on the Dapper III
Substitute Properties in Dapper III, committing to insure Wamu's first
priority lien upon and security interest in the Dapper III Substitute
Properties subject only to Permitted Exceptions, and containing such
endorsements as Wamu may reasonably require. Dapper III and
Remainderman III shall have received for each of the Dapper III
Substitute Properties a preliminary title report and irrevocable
commitment to insure title in the amounts set forth on the title
commitments for the corresponding Dapper III Replaced Properties by
means of an owner's ALTA extended coverage policy of title insurance
(or its equivalent, in the event such form is not issued in any
jurisdiction where any of the Dapper III Substitute Properties are
located) issued by Title Company showing a good and marketable
remainder interest in the land comprising the Dapper III Substitute
Properties in Remainderman III and an estate for years therein and fee
title in the improvements on the Dapper III Substitute Properties in
Dapper III, committing to insure such interests in the Dapper III
Substitute Properties subject only to Permitted Exceptions, and
containing such endorsements as Dapper III and Remainderman III may
reasonably require.
D. Environmental. FFC, Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III and Remainderman III shall have received an
endorsement to the Dapper I Environmental Policies including the Dapper
I Substitute Properties within the coverage of such Dapper I
Environmental Policies, and an endorsement to the Dapper II
Environmental Policies including the Dapper II Substitute Properties
within the coverage of such Dapper II Environmental Policies. Wamu,
Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III and
Remainderman III shall have received an endorsement to the Dapper III
Environmental Policies including the Dapper III Substitute Properties
within the coverage of such Dapper III Environmental Policies.
E. Residual Value Policy. FFC shall have received the consent
of Residual Value Insurer to the substitution of the Substitute
Properties for the Replaced Properties.
F. Compliance With Obligations. All obligations of Dapper I,
Remainderman I, Dapper II, Remainderman II, Dapper III, Remainderman
III, Discount and Advance under
34
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 Transaction Documents, the Loan Documents or
the Sale-Leaseback Documents and no event shall have occurred or condition shall
exist or information shall have been disclosed by Dapper I, Remainderman I,
Dapper II, Remainderman II, Dapper III, Remainderman III, Discount and Advance
or discovered by FFC which has had or would have a material adverse effect on
any of the Substitute Properties, Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III, Remainderman III, Discount and Advance or the
willingness of FFC to consummate the transaction contemplated by this Agreement,
as determined by FFC in its reasonable discretion.
G. Proof of Insurance. Dapper I, Dapper II and Dapper III shall have
delivered or shall have caused lessee to deliver to FFC certificates of
insurance and copies of insurance policies showing that all insurance required
by the Transaction Documents and providing coverage and limits reasonably
satisfactory to FFC are in full force and effect.
H. Opinion of Counsel to Dapper I, Remainderman I, Dapper II, Remainderman
II, Dapper III, Remainderman III, Discount and Advance. Dapper I, Remainderman
I, Dapper II, Remainderman II, Dapper III, Remainderman III, Discount and
Advance shall have caused their respective Counsel to prepare and deliver
opinions to FFC and Wamu in form and substance satisfactory to FFC and Wamu and
their counsel.
I. Rating Agency Approval. To the extent required, FFC shall have received
the confirmation of the rating agencies issuing ratings in connection with any
Securitization of the Loans that the consummation of the Transaction will not
result in a downgrade, modification or withdrawal of any of such ratings.
J. Representations and Warranties under the Loan Documents. All
representations, warranties and covenants of Dapper I, Remainderman I, Dapper
II, Remainderman II, Dapper III and Remainderman III under the Loan Documents
shall be true and correct as of the Closing Date.
K. Representations and Warranties under the Sale-Leaseback Documents. All
representations, warranties and covenants of Dapper I, Remainderman I, Dapper
II, Remainderman II, Dapper III, Remainderman III and Discount under the
Sale-Leaseback Documents shall be true and correct as of the Closing Date.
L. Representations and Warranties under this Agreement. All
representations, warranties and covenants of FFC, Wamu, Dapper I, Remainderman
I, Dapper II, Remainderman II, Dapper III, Remainderman III, Discount and
Advance under this Agreement shall be true and correct as of the Closing Date,
and such parties shall have delivered a certificate certifying to that effect.
M. Guaranties. Advance shall have executed and delivered to Dapper I,
Dapper II and Dapper III their respective Guaranties.
35
N. Fair Market Value; Fixed Charge Coverage Ratio. The fair
market value of each Substitute Property shall be at least equal to the
fair market value of the Replaced Property being replaced by such
Substitute Property (which fair market value shall be determined in
accordance with Section 57.B(3) of the Master Lease). The Fixed Charge
Coverage Ratio for each Substitute Property for the annualized eight
months immediately preceding September 8, 2001 shall be equal to or
greater than the Fixed Charge Coverage Ratio for the Replaced Property
being replaced by such Substitute Property for the twelve calendar
months immediately preceding May 31, 2001, and Discount or Advance, as
applicable, shall represent that it has no reason to believe that the
Fixed Charge Coverage Ratio for each Substitute Property on a going
forward basis will differ from the such Substitute Property's
historical Fixed Charge Coverage Ratio.
O. Transaction Documents. At or prior to the Closing Date,
the parties, as may be appropriate, shall execute and deliver or
cause to be executed and delivered to Title Company and FFC, as may be
appropriate, all documents required to be delivered by this Agreement,
and such other documents, payments, instruments and certificates, as
FFC may require in form acceptable to FFC, including, without
limitation, the following:
(1) Substitute Mortgages;
(2) Substitute Memoranda;
(3) Substitute Acknowledgements;
(4) Substitute Option Agreements;
(5) Substitute Tripartite Agreements;
(6) Substitute UCC-1 Financing Statements;
(7) Proof of Insurance;
(8) Guaranties; and
(9) Opinions of Counsel to Dapper I, Remainderman I,
Dapper II, Remainderman II, Dapper III, Remainderman III,
Discount and Advance.
In addition, FFC, Wamu, Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III, Remainderman III, Discount and Advance shall
execute such additional documents and/or amendments to the Sale-Leaseback
Documents and the Loan Documents as may be reasonably required by FFC to
evidence the Transaction, including, without limitation, to the extent
applicable, deeds and amendments to the Master Leases (all substantially in the
form of such documents executed and delivered as of February 27, 2001 in
connection with the closing of the Loans and the execution of the Master
Leases). Upon fulfillment or waiver of all of the above conditions, FFC, Wamu,
Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III, Remainderman
III, Discount and Advance, as applicable, shall deposit executed copies of the
Termination and Release Documents with the Title Company with instructions to
record or file
36
such documents in the applicable recording and filing offices and the
Transaction shall close in accordance with the terms and conditions of this
Agreement.
16. Default and Remedies. A. Each of the following shall be deemed an
event of default by Dapper I and Remainderman I (each, a "Dapper I Event of
Default"):
(i) If any representation or warranty of Dapper I or
Remainderman I set forth in this Agreement or any of the Transaction
Documents is false in any material respect when made, or if Dapper I or
Remainderman I knowingly renders any statement or account which is
false in any material respect as and when made; or
(ii) If Dapper I or Remainderman I fails to observe or perform
any of the covenants or obligations of this Agreement to be observed or
performed by Dapper I or Remainderman I.
Upon the occurrence of a Dapper I Event of Default, FFC may exercise, at its
option, concurrently, successively or in any combination, all remedies available
at law or in equity. If the Closing occurs, a Dapper I Event of Default under
Section 16.A.(i) above shall be a default under each of the Dapper I Loan
Documents.
B. Each of the following shall be deemed an event of default by Dapper II
and Remainderman II (each, a "Dapper II Event of Default"):
(i) If any representation or warranty of Dapper II or
Remainderman II set forth in this Agreement or any of the Transaction
Documents is false in any material respect when made, or if Dapper II
or Remainderman II knowingly renders any statement or account which is
false in any material respect as and when made; or
(ii) If Dapper II or Remainderman II fails to observe or
perform any of the covenants or obligations of this Agreement to be
observed or performed by Dapper II or Remainderman II.
Upon the occurrence of a Dapper II Event of Default, FFC may exercise, at its
option, concurrently, successively or in any combination, all remedies available
at law or in equity. If the Closing occurs, a Dapper II Event of Default under
Section 16.B.(i) above shall be a default under each of the Dapper II Loan
Documents.
C. Each of the following shall be deemed an event of default by Dapper
III and Remainderman III (each, a "Dapper III Event of Default"):
(i) If any representation or warranty of Dapper III or
Remainderman III set forth in this Agreement or any of the Transaction
Documents is false in any material respect when made, or if Dapper III
or Remainderman III knowingly renders any statement or account which is
false in any material respect as and when made; or
(ii) If Dapper III or Remainderman III fails to observe or
perform any of the covenants or obligations of this Agreement to be
observed or performed by Dapper III or Remainderman III.
37
Upon the occurrence of a Dapper III Event of Default, Wamu may exercise, at its
option, concurrently, successively or in any combination, all remedies available
at law or in equity. If the Closing occurs, a Dapper III Event of Default under
Section 16.C.(i) above shall be a default under each of the Dapper III Loan
Documents.
D. Each of the following shall be deemed an event of default by
Discount and/or Advance (each, a "Discount Event of Default"):
(i) If any representation or warranty of Discount or Advance
set forth in this Agreement or any of the Transaction Documents is
false in any material respect, when made or as of the Closing Date, or
if Discount or Advance knowingly renders any statement or account which
is false in any material respect; or
(ii) If Discount or Advance fails to observe or perform any of
the covenants or obligations of this Agreement to be observed or
performed by Discount or Advance.
Upon the occurrence of a Discount Event of Default, each of FFC, Wamu, Dapper I,
Remainderman I, Dapper II, Remainderman II, Dapper III and Remainderman III may
exercise, at its option, concurrently, successively or in any combination, all
remedies available at law or in equity (other than seeking punitive,
consequential, indirect or special damages). If the Closing occurs, a Discount
Event of Default shall be a default under each of the Sale-Leaseback Documents.
If the Closing does not occur, the failure of Discount or Advance to pay the
costs and expenses contemplated by Sections 6.B and 17 of this Agreement shall
be a default under each of the Sale-Leaseback Documents.
17. Indemnity. Discount and Advance jointly and severally agree to
indemnify, hold harmless and defend FFC, Wamu, Dapper I, Remainderman I, Dapper
II, Remainderman II, Dapper III and Remainderman III and their respective
directors, officers, shareholders, employees, successors, assigns, agents,
contractors, subcontractors, experts, licensees, affiliates, lessees, servicers,
mortgagees, trustees and invitees, as applicable (collectively, the "Indemnified
Parties"), from and against any and all losses, costs, claims, liabilities,
damages and expenses (collectively, "Losses") (including, without limitation,
reasonable attorneys' fees but excluding any Losses suffered by an Indemnified
Party arising out of such Indemnified Party's gross negligence or willful
misconduct; provided, however, that the term "gross negligence" shall not
include gross negligence imputed as a matter of law to any of the Indemnified
Parties solely by reason of (i) Wamu's or FFC's security interests in the
Replaced Properties and the Substitute Properties, as applicable, (ii) Wamu's or
FFC's failure to act in respect of matters which are or were the obligation of
Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III or Remainderman
III, as applicable, under any of the Loan Documents, or (iii) the failure of
Dapper I, Dapper II or Dapper III to act in respect of matters which are or were
the obligation of Discount and/or Advance under any of the Sale-Leaseback
Documents), arising as a result of a breach of any of the representations,
warranties, covenants, agreements or conditions of Discount and/or Advance set
forth in this Agreement.
18. Miscellaneous Provisions.
38
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 Dapper I or
Remainderman I: Dapper Properties I, LLC
or Autopar Remainder I, LLC
c/o U.S. Realty Advisors, LLC
1370 Avenue of the Americas
New York, New York 10019
Attention: Mr. David M. Ledy
Executive Vice President
Telephone: (212) 581-4540
Telecopy: (212) 581-4950
With a copy to: Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Attention: Kenneth S. Hilton, Esq.
Telephone: (212) 969-3000
Facsimile: (212) 969-2900
If to Dapper II or
Remainderman II: Dapper Properties II, LLC
or Autopar Remainder II, LLC
c/o U.S. Realty Advisors, LLC
1370 Avenue of the Americas
New York, New York 10019
Attention: Mr. David M. Ledy
Executive Vice President
Telephone: (212) 581-4540
Telecopy: (212) 581-4950
With a copy to: Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Attention: Kenneth S. Hilton, Esq.
Telephone: (212) 969-3000
Facsimile: (212) 969-2900
39
If to Dapper III or
Remainderman III: Dapper Properties III, LLC
or Autopar Remainder III, LLC
c/o U.S. Realty Advisors, LLC
1370 Avenue of the Americas
New York, New York 10019
Attention: Mr. David M. Ledy
Executive Vice President
Telephone: (212) 581-4540
Telecopy: (212) 581-4950
With a copy to: Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Attention: Kenneth S. Hilton, Esq.
Telephone: (212) 969-3000
Facsimile: (212) 969-2900
If to Discount: Discount Auto Parts, Inc.
4900 Frontage Road South
Lakeland, FL 33815
Attention: C. Michael Moore
Executive Vice President-Finance
Telephone: (863) 284-2140
Facsimile: (863) 284-2063
With a copy to: Trenam Kemker
2700 Bank of America Plaza
Tampa, FL 33602
Attention: Gary I. Teblum, Esq.
Telephone: (813) 223-7474
Facsimile: (813) 229-6553
40
If to Advance: Advance Stores Company, Incorporated
5673 Airport Road
Roanoke, VA 24012
Attention: General Counsel
Telephone: (540) 561-3325
Telecopy: (540) 561-1448
If to FFC or Wamu: Dennis L. Ruben, Esq.
Executive Vice President, General Counsel
and Secretary
GE Capital Franchise Finance Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (480) 585-4500
Telecopy: (480) 585-2226
B. Real Estate Commission. Each of the parties 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. Each of the parties shall defend, 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 subsection.
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. Liability of FFC and Wamu. Notwithstanding anything to the contrary
provided in this Agreement, it is specifically understood and agreed, such
agreement being a primary consideration for the execution of this Agreement by
FFC and Wamu, that (i) there shall be absolutely no personal liability on the
part of any shareholder, director, officer, employee or agent of FFC, Wamu,
their successors or assigns and the trustees, members, partners, shareholders,
officers, directors, employees and agents of FFC, Wamu and their successors and
assigns, with respect to any of the terms, covenants and conditions of this
Agreement or the other Transaction Documents, as applicable, (ii) each of
Discount, Advance, Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper
III and Remainderman III waives all claims, demands and causes of action against
the shareholders, officers, directors, employees and agents of FFC, Wamu and
their successors and assigns in the event of any breach by FFC or Wamu of any of
the terms, covenants and conditions of this Agreement or the other Transaction
Documents, as applicable, to be performed by FFC or Wamu, (iii) Discount,
Advance, Dapper I, Remainderman I, Dapper II, Remainderman II,
41
Dapper III and Remainderman III shall look solely to the assets of FFC and Wamu
for the satisfaction of each and every remedy of Discount, Advance, Dapper I,
Remainderman I, Dapper II, Remainderman II, Dapper III and Remainderman III in
the event of any breach by FFC or Wamu of any of the terms, covenants and
conditions of this Agreement or the other Transaction Documents to be performed
by FFC or Wamu, such exculpation of liability to be absolute and without any
exception whatsoever, and (iv) in the event (x) any of, or all of, Discount,
Advance, Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III or
Remainderman III are unable or unwilling to satisfy their respective obligations
under this Agreement and/or any conditions to Closing to be satisfied by them,
or (y) any conditions to Closing to be satisfied by any third parties are not
satisfied, each of Discount, Advance, Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III and Remainderman III waives all claims, demands and
causes of action against FFC and Wamu with respect to this Agreement.
F. Liability of Dapper I, Remainderman I, Dapper II, Remainderman II,
Dapper III and Remainderman III. Notwithstanding anything to the contrary
provided in this Agreement, it is specifically understood and agreed, such
agreement being a primary consideration for the execution of this Agreement by
Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III and
Remainderman III, that (i) there shall be absolutely no personal liability on
the part of Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III and
Remainderman III, their successors or assigns and the trustees, members,
partners, shareholders, officers, directors, employees and agents of Dapper I,
Remainderman I, Dapper II, Remainderman II, Dapper III and Remainderman III and
their successors and assigns, with respect to any of the terms, covenants and
conditions of this Agreement or the other Transaction Documents, as applicable,
(ii) each of Discount and Advance waives all claims, demands and causes of
action against the trustees, members, partners, shareholders, officers,
directors, employees and agents of Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III and Remainderman III and their successors or assigns
in the event of any breach by Dapper I, Remainderman I, Dapper II, Remainderman
II, Dapper III or Remainderman III of any of the terms, covenants and conditions
of this Agreement or the other Transaction Documents, as applicable, to be
performed by Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III or
Remainderman III, (iii) each of Discount and Advance shall look solely to the
Mortgaged Properties and the Substitute Properties for the satisfaction of each
and every remedy of Discount or Advance in the event of any breach by Dapper I,
Remainderman I, Dapper II, Remainderman II, Dapper III or Remainderman III of
any of the terms, covenants and conditions of this Agreement or the other
Transaction Documents, as applicable, to be performed by Dapper I, Remainderman
I, Dapper II, Remainderman II, Dapper III or Remainderman III, or any other
matter in connection with this Agreement, the other Transaction Documents or any
of the Mortgaged Properties or Substitute Properties, such exculpation of
liability to be absolute and without any exception whatsoever, provided that,
with respect to (x) affirmative acts of Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III or Remainderman III which constitute gross
negligence or intentional misconduct (it being understood and agreed that the
acts of Discount, Advance and their respective shareholders, officers,
directors, employees and agents shall not be imputed to Dapper I, Remainderman
I, Dapper II, Remainderman II, Dapper III or Remainderman III) and (y) any
amounts
42
which Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III or
Remainderman III may be responsible for under Section 15.J, Discount and Advance
shall have the right to look to other assets of Dapper I, Remainderman I, Dapper
II, Remainderman II, Dapper III and Remainderman III, but in no event the assets
of the trustees, members, partners, shareholders, officers, directors, employees
and agents of Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III
and Remainderman III, and (iv) in the event (x) Discount, Advance, FFC and/or
Wamu are unable or unwilling to satisfy their respective obligations under this
Agreement and/or any conditions to Closing to be satisfied by them, or (y) any
conditions to Closing to be satisfied by third parties are not satisfied, each
of Discount, Advance, FFC and Wamu waives all claims, demands and causes of
action against Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III
or Remainderman III with respect to this Agreement.
G. 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.
H. Construction Generally. This is an agreement among parties who are
experienced in sophisticated and complex matters similar to the transaction
contemplated by this Agreement and is entered into by each of the 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. Each of the parties was
represented by legal counsel competent in advising them of their obligations and
liabilities hereunder.
I. Other Documents. Each of the parties agrees to sign such other and
further documents as may be reasonably necessary to carry out the intentions
expressed in this Agreement.
J. Attorneys' Fees. In the event of any judicial or other adversarial
proceeding among any of the parties concerning this Agreement, the prevailing
party shall be entitled to recover all of its reasonable attorneys' fees and
other reasonable costs in addition to any other relief to which it may be
entitled.
K. Entire Agreement. This Agreement and the other Transaction Documents,
together with any other certificates, instruments or agreements to be delivered
in connection therewith, constitute the entire agreement among the parties with
respect to the subject matter hereof, and there are no other representations,
warranties or agreements, written or oral, between or among the parties with
respect to the subject matter of this Agreement.
L. Forum Selection; Jurisdiction; Venue; Choice of Law. Discount, Advance,
Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III and
Remainderman III acknowledge that this Agreement was substantially negotiated in
the State of Arizona, the Agreement was signed by FFC in the State of Arizona
and delivered by Discount, Advance,
43
Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III and
Remainderman III in the State of Arizona, all payments under the Loan Documents
and the Master Leases 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. Except for purposes of any action or proceeding
concerning the rights and remedies of FFC, Wamu, Dapper I, Remainderman I,
Dapper II, Remainderman II, Dapper III and Remainderman III with respect to the
Replaced Properties and the Substitute Properties (which actions or proceedings
shall be conducted in the state where the affected Replaced Property or
Substitute Property is located), 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
Discount, Advance, Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper
III and Remainderman III consent that they 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, Discount, Advance,
Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III and
Remainderman III waive and agree not to assert in any such action, suit or
proceeding that they are not personally subject to the jurisdiction of such
courts, that the action, suit or proceeding is brought in an inconvenient forum
or that venue of the action, suit or proceeding is improper. It is the intent of
the parties hereto that all provisions of this Agreement shall be governed by
and construed under the laws of the State of Arizona, without giving effect to
its principles of conflicts of law. To the extent that a court of competent
jurisdiction finds Arizona law inapplicable with respect to any provisions
hereof, then, as to those provisions only, the laws of the states where the
Replaced Properties and the Substitute Properties are located, as applicable,
shall be deemed to apply. Nothing in this Section shall limit or restrict the
right of FFC to commence any proceeding in the federal or state courts located
in the states in which the Replaced Properties and the Substitute Properties are
located, as applicable, to the extent FFC deems such proceeding necessary or
advisable to exercise remedies available under this Agreement or the other
Transaction Documents, and if such is the case, counterclaims can be prosecuted
in such proceeding.
M. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
N. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of each of the parties 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.
O. Survival. Except for the conditions of Closing set forth in Section 15,
which shall be satisfied or waived as of the Closing Date, all representations,
warranties, agreements, obligations and indemnities of the parties set forth in
this Agreement shall survive the Closing.
P. Waiver of Jury Trial and Punitive, Consequential, Special and Indirect
Damages. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES THE RIGHT THEY MAY HAVE TO A TRIAL
44
BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY ANY OF THE PARTIES HERETO AGAINST ANY OF THE
OTHER PARTIES OR THEIR 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 THEY MAY HAVE TO A TRIAL
BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
FURTHERMORE, EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES THE RIGHT THEY MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES FROM ANY OF THE OTHER PARTIES OR THEIR AFFILIATES, OFFICERS,
DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL
ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ANY
OF THE PARTIES AGAINST ANY OF THE OTHER PARTIES OR ANY OF THEIR AFFILIATES,
OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT
CONTEMPLATED HEREIN OR RELATED HERETO, EXCEPT THAT SUCH WAIVER ON THE PART OF
THE PARTIES SHALL NOT BE DEEMED TO LIMIT, REDUCE OR PRECLUDE IN ANY WAY THEIR
RESPECTIVE REMEDIES PURSUANT TO SECTION 23 OF THE MASTER LEASES. THE WAIVER BY
THE PARTIES 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.
Q. Ratification. Except as otherwise specifically set forth in this
Agreement and the other Transaction Documents, the Loan Documents and the
Sale-Leaseback Documents are unmodified and in full force and effect.
19. Exculpation. A. Notwithstanding anything to the contrary contained in
this Agreement or any other Loan Documents, except as otherwise provided in this
Section 19, neither Wamu nor FFC shall enforce the liability and obligation of
Dapper I, Dapper II or Dapper III to pay the indebtedness evidenced by any
Dapper I Notes, Dapper II Notes or Dapper III Notes, as applicable, nor shall
Wamu or FFC enforce the obligation of Dapper I, Remainderman I, Dapper II,
Remainderman II, Dapper III or Remainderman III to pay any other sums owing or
to perform and observe the obligations contained in this Agreement, any Dapper I
Mortgage, any Dapper I Substitute Mortgage, any Dapper I Note, any other Dapper
I Loan Documents, any Dapper II Mortgage, any Dapper II Substitute Mortgage, any
Dapper II Note, any other Dapper II Loan Documents, any Dapper III Mortgage, any
Dapper III Substitute Mortgage, any Dapper III Note or any other Dapper III Loan
Documents, as applicable, by any action or proceeding wherein a money judgment
or personal liability shall be sought against Dapper I, Remainderman I, Dapper
II, Remainderman II, Dapper III or Remainderman III, any beneficiaries, members,
partners, shareholders, officers, directors or employees of Dapper I,
Remainderman I, Dapper II, Remainderman II, Dapper III or Remainderman III or
any partners,
45
beneficiaries, officers, shareholders, members, directors, employees of any
thereof (collectively, the "Released Parties"), and FFC, by accepting the Dapper
I Substitute Mortgages, any other Dapper I Loan Documents, the Dapper II
Substitute Mortgages and any other Dapper II Loan Documents, and Wamu, by
accepting the Dapper III Substitute Mortgages and any other Dapper III Loan
Documents, agree that they shall not, except as otherwise provided in this
Section 19, sue for, seek or demand any deficiency judgment against any of the
Released Parties in any action or proceeding under, or by reason of, or in
connection with any of the Loan Documents; provided that FFC and Wamu, as
applicable, may sell any Mortgaged Property or Substitute Property pursuant to
the power of sale conferred in the Dapper I Mortgages, the Dapper I Substitute
Mortgages, the Dapper II Mortgages, the Dapper II Substitute Mortgages, the
Dapper III Mortgages or the Dapper III Substitute Mortgages, and FFC or Wamu, as
applicable, may bring a foreclosure action, action for specific performance or
other appropriate action or proceeding to enable FFC or Wamu, as applicable, to
enforce and realize upon any Dapper I Note, any Dapper I Mortgage, any Dapper I
Substitute Mortgage, the other Dapper I Loan Documents, any Dapper II Note, any
Dapper II Mortgage, any Dapper II Substitute Mortgage, the other Dapper II Loan
Documents, any Dapper III Note, any Dapper III Mortgage, any Dapper III
Substitute Mortgage or the Dapper III Loan Documents, and the Mortgaged
Properties, the Substitute Properties, the Rents and any other collateral given
to FFC or Wamu, as applicable, pursuant to the Loan Documents; provided,
however, that any judgment in any action or proceeding shall be enforceable
against Dapper I, Remainderman I, Dapper II, Remainderman II, Dapper III and
Remainderman III only to the extent of Dapper I's, Remainderman I's, Dapper
II's, Remainderman II's, Dapper III's or Remainderman III's respective interests
in the Mortgaged Properties and the Substitute Properties, the Rents and any
other collateral given to FFC or Wamu, as applicable. In no event shall cash
flow or excess proceeds distributed to Dapper I, Dapper II or Dapper III, as
applicable, by FFC or Wamu pursuant to the Dapper I Mortgages, the Dapper I
Substitute Mortgages, the Dapper II Mortgages, the Dapper II Substitute
Mortgages, the Dapper III Mortgages and the Dapper III Substitute Mortgages
constitute Rents subsequent to such distribution.
B. The provisions of Section 19.A shall not (i) constitute a waiver,
release or impairment of the Obligations; (ii) impair the right of FFC or Wamu,
as applicable, to name Dapper I, Remainderman I, Dapper II, Remainderman II,
Dapper III or Remainderman III as a party defendant in any action or suit for
judicial or non-judicial foreclosure and sale under any Dapper I Mortgage,
Dapper I Substitute Mortgage, Dapper II Mortgage, Dapper II Substitute Mortgage,
Dapper III Mortgage or Dapper III Substitute Mortgage, as long as no deficiency
judgment is sought against any of the Released Parties; (iii) affect the
validity or enforceability of any indemnity, guaranty, lease or similar
instrument made in connection with any Dapper I Note, any Dapper I Mortgage, any
Dapper I Substitute Mortgage, the other Dapper I Loan Documents, any Dapper II
Note, any Dapper II Mortgage, any Dapper II Substitute Mortgage, any other
Dapper II Loan Documents, any Dapper III Note, any Dapper III Mortgage, any
Dapper III Substitute Mortgage or any other Dapper III Loan Documents; (iv)
impair the right of FFC or Wamu, as applicable, to obtain the appointment of a
receiver; or (v) impair the enforcement of the assignment of leases and rents
set forth in any Dapper I Mortgage, Dapper I Substitute Mortgage, Dapper II
Mortgage, Dapper II Substitute Mortgage, Dapper III Mortgage or Dapper III
Substitute Mortgage.
46
C. Notwithstanding the provisions of this Section to the contrary,
Dapper I, Dapper II and Dapper III shall be personally liable to FFC and Wamu,
as applicable, for any losses incurred by FFC or Wamu, as applicable, as a
result of (i) fraud or intentional misrepresentation by Dapper I, Dapper II or
Dapper III, or any partners, beneficiaries, officers, shareholders, members,
directors or employees of any thereof (collectively, the "Dapper Released
Parties") in connection with the execution and delivery of any Dapper I Note,
any Dapper I Mortgage, any Dapper I Substitute Mortgage, the other Dapper I Loan
Documents, any Dapper II Note, any Dapper II Mortgage, any Dapper II Substitute
Mortgage, any other Dapper II Loan Documents, any Dapper III Note, any Dapper
III Mortgage, any Dapper III Substitute Mortgage or any other Dapper III Loan
Documents; (ii) the misapplication or misappropriation by any of the Dapper
Released Parties of Rents actually received by any of the Dapper Released
Parties after the occurrence of an Event of Default; (iii) the misappropriation
by any of the Dapper Released Parties of tenant security deposits or Rents
collected in advance and actually received by any of the Dapper Released
Parties; (iv) the misappropriation by any of the Dapper Released Parties of
insurance proceeds or condemnation awards actually received by any of the Dapper
Released Parties; (v) any affirmative act of actual waste, willful damage or
arson by any of the Dapper Released Parties; or (vi) the collateral described in
the granting clauses of the Dapper I Mortgages, the Dapper I Substitute
Mortgages, the Dapper II Mortgages, the Dapper II Substitute Mortgages, the
Dapper III Mortgages or the Dapper III Substitute Mortgages or any portion
thereof or interest therein becoming an asset in (A) a voluntary bankruptcy or
insolvency proceeding commenced by or on behalf of any of the Dapper Released
Parties or (B) an involuntary bankruptcy or insolvency proceeding commenced by
any of the Dapper Released Parties.
D. Notwithstanding the provisions of this Section to the contrary,
Remainderman I, Remainderman II and Remainderman III shall be personally liable
to FFC and Wamu, as applicable, for any losses incurred by FFC or Wamu, as
applicable, as a result of (i) fraud or intentional misrepresentation by
Remainderman I, Remainderman II or Remainderman III, or any partners,
beneficiaries, officers, shareholders, members, directors or employees of any
thereof (collectively, the "Remainderman Released Parties") in connection with
the execution and delivery of any Dapper I Note, any Dapper I Mortgage, any
Dapper I Substitute Mortgage, the other Dapper I Loan Documents, any Dapper II
Note, any Dapper II Mortgage, any Dapper II Substitute Mortgage, any other
Dapper II Loan Documents, any Dapper III Note, any Dapper III Mortgage, any
Dapper III Substitute Mortgage or any other Dapper III Loan Documents; (ii) the
misapplication or misappropriation by any of the Remainderman Released Parties
of Rents actually received by any of the Remainderman Released Parties after the
occurrence of an Event of Default; (iii) the misappropriation by any of the
Remainderman Released Parties of tenant security deposits or Rents collected in
advance and actually received by any of the Remainderman Released Parties; (iv)
the misappropriation by any of the Remainderman Released Parties of insurance
proceeds or condemnation awards actually received by any of the Remainderman
Released Parties; (v) any affirmative act of actual waste, willful damage or
arson by any of the Remainderman Released Parties; or (vi) the collateral
described in the granting clauses of the Dapper I Mortgages, the Dapper I
Substitute Mortgages, the Dapper II Mortgages, the Dapper II Substitute
Mortgages, the Dapper III Mortgages or the Dapper III Substitute Mortgages or
any portion thereof or interest therein becoming an asset in (A) a voluntary
bankruptcy or insolvency proceeding commenced by or on behalf of any of the
Remainderman
47
Released Parties or (B) an involuntary bankruptcy or insolvency proceeding
commenced by any of the Remainderman Released Parties.
E. Nothing herein shall be deemed to be a waiver of any right which FFC
or Wamu, as applicable, may have under Sections 506(a), 506(b), 1111(b) or any
other provisions of the Code to file a claim for the full amount of the
Obligations secured by a Dapper I Mortgage, a Dapper II Mortgage or a Dapper III
Mortgage or to require that all collateral shall continue to secure all of the
Obligations owing to FFC or Wamu, as applicable, in accordance with this
Agreement, any Dapper I Note, any Dapper I Mortgage, any Dapper I Substitute
Mortgage, any other Dapper I Loan Documents, any Dapper II Note, any Dapper II
Mortgage, any Dapper II Substitute Mortgage, any other Dapper II Loan Documents,
any Dapper III Note, any Dapper III Mortgage, any Dapper III Substitute Mortgage
or any other Dapper III Loan Documents.
20. Opinion. Within two days after the date of this Agreement, and
without limiting the terms and conditions of Section 15 of this Agreement,
Advance agrees to cause Counsel to deliver to FFC, Wamu, Dapper I, Dapper II,
Dapper III, Remainder I, Remainderman II and Remainderman III opinions in form
and substance reasonably acceptable to such addressees with respect to (i) the
corporate formation and existence of Advance and Advance Auto Parts, Inc.
("Advance Auto"); (ii) the authority of Advance to enter into, deliver and
perform the Guaranties and Advance Auto to enter into, deliver and perform the
acknowledgements of the terms of Section 7 of such documents (the "Subject
Transfer Acknowledgements"); and (iii) such other matters as the addressees may
reasonably request. Without limiting the terms and conditions of Section 15 of
this Agreement, Advance will endeavor to promptly obtain an opinion of Counsel
with respect to the enforceability of the Guaranties and the Subject Transfer
Acknowledgements.
48
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first above written.
GE CAPITAL FRANCHISE FINANCE CORPORATION, a Delaware
corporation, successor by merger to (i) Franchise Finance
Corporation of America, as Servicer pursuant to that certain
Amended and Restated Servicing Agreement dated as of
February 28, 2000 between Franchise Finance Corporation of
America and Washington Mutual Bank, FA, (ii) FFCA Funding
Corporation, and (iii) FFCA Acquisition Corporation
By /s/ Gary Naquin
------------------------------------------------------
Printed Name GARY NAQUIN
--------------------------------------------
Its VICE PRESIDENT
-----------------------------------------------------
WASHINGTON MUTUAL BANK, FA
By: GE Capital Franchise Finance Corporation, a Delaware
corporation, successor by merger to Franchise Finance
Corporation of America, as Servicer pursuant to that
certain Amended and Restated Servicing Agreement
dated as of February 28, 2000 between Franchise
Finance Corporation of America and Washington Mutual
Bank, FA
By /s/ Gary Naquin
------------------------------------------------------
Printed Name GARY NAQUIN
--------------------------------------------
Its VICE PRESIDENT
-----------------------------------------------------
DAPPER PROPERTIES I, LLC, a Delaware limited
liability company
By: Dapper Equity I, LLC, a Delaware limited
liability company, its member manager
By /s/ Jamie Grossman
------------------------------------------------------
Printed Name JAMIE GROSSMAN
--------------------------------------------
Its Vice President
-----------------------------------------------------
AUTOPAR REMAINDER I, LLC, a Delaware limited
liability company
By: Autopar Remeq I, LLC, a Delaware limited
liability company, its member manager
By /s/ Jamie Grossman
------------------------------------------------------
Printed Name JAMIE GROSSMAN
--------------------------------------------
Its Vice President
-----------------------------------------------------
DAPPER PROPERTIES II, LLC, a Delaware limited
liability company
By: Dapper Equity II, LLC, a Delaware limited
liability company, its member manager
By /s/ Jamie Grossman
------------------------------------------------------
Printed Name JAMIE GROSSMAN
--------------------------------------------
Its Vice President
-----------------------------------------------------
AUTOPAR REMAINDER II, LLC, a Delaware limited liability company
By: Autopar Remeq II, LLC, a Delaware limited
liability company, its member manager
By /s/ Jamie Grossman
------------------------------------------------------
Printed Name JAMIE GROSSMAN
--------------------------------------------
Its Vice President
-----------------------------------------------------
DAPPER PROPERTIES III, LLC, a Delaware limited
liability company
By: Dapper Equity III, LLC, a Delaware limited
liability company, its member manager
By /s/ Jamie Grossman
---------------------------------------------
Printed Name JAMIE GROSSMAN
-----------------------------------
Its Vice President
--------------------------------------------
AUTOPAR REMAINDER III, LLC, a Delaware limited
liability company
By: Autopar Remeq III, LLC, a Delaware limited
liability company, its member manager
By /s/ Jamie Grossman
---------------------------------------------
Printed Name JAMIE GROSSMAN
-----------------------------------
Its Vice President
--------------------------------------------
DISCOUNT AUTO PARTS, INC., a Florida
corporation
By /s/ Peter J. Fontaine
-----------------------------------------------
Printed Name PETER J. FONTAINE
-------------------------------------
Its CEO
----------------------------------------------
ADVANCE STORES COMPANY, INCORPORATED, a Virginia
corporation
By /s/ Eric M. Margolin
-----------------------------------------------
Printed Name ERIC M. MARGOLIN
-------------------------------------
Its
----------------------------------------------
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on Nov. 27, 2001 by
Gary J. Naquin, VP of GE Capital Franchise Finance Corporation, a Delaware
corporation, on behalf of the corporation, successor by merger to (i) Franchise
Finance Corporation of America, as Servicer pursuant to that certain Amended and
Restated Servicing Agreement dated as of February 28, 2000 between Franchise
Finance Corporation of America and Washington Mutual Bank, FA, (ii) FFCA Funding
Corporation, and (iii) FFCA Acquisition Corporation.
/s/ Ann Halpern
----------------------------------------
Notary Public
My Commission Expires: --------------------------------------
ANN HALPERN
8/2/05 Notary Public-Arizona
- ----------------------- SEAL Maricopa County
My Comm. Expires Aug. 2, 2005
--------------------------------------
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on Nov. 27, 2001 by
Gary J. Naquin, VP of GE Capital Franchise Finance Corporation, a Delaware
corporation, on behalf of the corporation, successor by merger to Franchise
Finance Corporation of America, as Servicer pursuant to that certain Amended and
Restated Servicing Agreement dated as of February 28, 2000 between Franchise
Finance Corporation of America and Washington Mutual Bank, FA, on behalf of
Washington Mutual Bank, FA.
/s/ Ann Halpern
----------------------------------------
Notary Public
My Commission Expires:
8/2/05 --------------------------------------
- ----------------------- ANN HALPERN
Notary Public-Arizona
SEAL Maricopa County
My Comm. Expires Aug. 2, 2005
--------------------------------------
STATE OF NEW YORK )
-----------------
) SS.
COUNTY OF NEW YORK )
-----------------
The foregoing instrument was acknowledged before me on Nov. 26, 2001 by
Jamie Grossman, Vice President of Dapper Equity I, LLC, a Delaware limited
liability company, member manager of Dapper Properties I, LLC, a Delaware
limited liability company, on behalf of the limited liability company.
/s/ Michael Martinez
----------------------------------------
Notary Public
----------------------------------------
My Commission Expires: MICHAEL MARTINEZ
Oct. 15, 2005 Notary Public, State of New York
- --------------------- No. 01MA4987374
Qualified in Queens County
Commission Expires October 15, 2005
----------------------------------------
STATE OF NEW YORK )
-----------------
) SS.
COUNTY OF NEW YORK )
-----------------
The foregoing instrument was acknowledged before me on Nov. 26, 2001 by
Jamie Grossman, Vice President of Autopar Remeq I, LLC, a Delaware limited
liability company, member manager of Autopar Remainder I, LLC, a Delaware
limited liability company, on behalf of the limited liability company.
/s/ Michael Martinez
----------------------------------------
Notary Public
----------------------------------------
My Commission Expires: MICHAEL MARTINEZ
Oct. 15, 2005 Notary Public, State of New York
- --------------------- No. 01MA4987374
Qualified in Queens County
Commission Expires October 15, 2005
----------------------------------------
STATE OF NEW YORK )
---------------
) SS.
COUNTY OF NEW YORK )
--------------
The foregoing instrument was acknowledged before me on Nov. 26, 2001 by
Jamie Grossman, Vice President of Dapper Equity II, LLC, a Delaware limited
liability company, member manager of Dapper Properties II, LLC, a Delaware
limited liability company, on behalf of the limited liability company.
/s/ Michael Martinez
----------------------------------------
Notary Public
My Commission Expires: MICHAEL MARTINEZ
Notary Public, State of New York
Oct. 15, 2005 No. 01MA4987374
- ----------------------- Qualified in Queens County
Commission Expires October 15, 2005
STATE OF NEW YORK )
---------------
) SS.
COUNTY OF NEW YORK )
--------------
The foregoing instrument was acknowledged before me on Nov. 26, 2001 by
Jamie Grossman, Vice President of Autopar Remeq II, LLC, a Delaware limited
liability company, member manager of Autopar Remainder II, LLC, a Delaware
limited liability company, on behalf of the limited liability company.
/s/ Michael Martinez
----------------------------------------
Notary Public
My Commission Expires: MICHAEL MARTINEZ
Notary Public, State of New York
Oct. 15, 2005 No. 01MA4987374
- ---------------------- Qualified in Queens County
Commission Expires October 15, 2005
STATE OF NEW YORK )
----------------
) SS.
COUNTY OF NEW YORK )
----------------
The foregoing instrument was acknowledged before me Nov. 26, 2001
by Jamie Grossman, Vice President of Dapper Equity III, LLC, a Delaware limited
liability company, member manager of Dapper Properties III, LLC, a Delaware
limited liability company, on behalf of the limited liability company.
/s/ Michael Martinez
-------------------------------
Notary Public
My Commission Expires:
OCT. 15, 2005
STATE OF NEW YORK )
------------------
) SS.
COUNTY OF NEW YORK )
-----------------
The foregoing instrument was acknowledged before me on Nov. 26, 2001 by
Jamie Grossman, Vice President of Autopar Remeq III, LLC, a Delaware limited
liability company, member manager of Autopar Remainder III, LLC, a Delaware
limited liability company, on behalf of the limited liability company.
/s/ Michael Martinez
--------------------------------
Notary Public
My Commission Expires:
OCT. 15, 2005
STATE OF NC )
---------------
) SS.
COUNTY OF [ILLEGIBLE] )
---------------
The foregoing instrument was acknowledged before me on 11-24, 2001, by
Peter Fontaine, of Discount Auto Parts, Inc., a Florida corporation, on behalf
of the corporation.
[ILLEGIBLE]
Notary Public
My Commission Expires:
January 21, 2006
STATE OF ____________________ )
) SS.
COUNTY OF __________________ )
The foregoing instrument was acknowledged before me on ____________,
2001, by _____________________, _______________ of Advance Stores Company,
Incorporated, a Virginia corporation, on behalf of the corporation.
________________________
Notary Public
My Commission Expires:
_________________________
EXHIBIT A
MORTGAGED PROPERTIES
Dapper I
- ----------------------------------------------------------------------------------------------------------------
FFC Cont Unit
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
File # # # Street CITY STATE
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2235 7324 351 1104 Highway 84 Byp N Andalusia AL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2236 7325 355 1800 Highway 98 Daphne AL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2238 7327 358 3635 Saint Stephens Rd Prichard AL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2244 7333 226 99256 Overseas Hwy Key Largo FL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2245 7334 228 2 NE 6th St Fort Meade FL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2250 7339 515 605 SE 20th St Fort Lauderdale FL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2251 7340 528 26859 S Dixie Hwy Naranja FL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2256 7345 579 1665 Providence Blvd Deltona FL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2257 7346 599 2440 Highway 29 S Cantonment FL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2263 7352 303 2105 Memorial Dr Waycross GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2268 7357 309 706 E 1st St Vidalia GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2269 7358 310 1725 1st Ave SE Moultrie GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2274 7363 320 212 W 4th St Adel GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2275 7364 321 401 Oak St Eastman GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2280 7369 330 1416 Radium Springs Rd Albany GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2281 7370 331 513 N Houston Rd Warner Robins GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2286 7375 342 520 S Davis St Nashville GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2287 7376 344 512 E Screven St Quitman GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2292 7381 406 714 N Church S Thomaston GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2293 7382 418 295 Glynn St Fayetteville GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2298 7387 429 2588 Powder Springs Rd Marietta GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2299 7388 492 104 S Oak St Eatonton GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2304 7393 705 14036 W Main St Cut Off LA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2305 7394 707 4122 Plank Rd Baton Rouge LA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2310 7399 653 3005 W US Highway 90 Gautier MS
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2311 7400 654 1118 Bienville Blvd Ocean Springs MS
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2313 7402 659 10301 D'iberville Rd D'iberville MS
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2316 7405 664 28085 Highway 28 Hazelhurst MS
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2317 7406 668 325 US Highway 51 Ridgeland MS
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2323 7412 677 3404 Halls Ferry Rd Vicksburg MS
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2328 7417 683 311 S Archusa Ave Quitman MS
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2329 7418 686 1601 5th St Meridian MS
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2334 7423 378 4481 Jefferson Davis Hwy Augusta SC
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2335 7424 379 1501 S Ribaut Rd Port Royal SC
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2336 7425 380 1060 Edgefield Rd North Augusta SC
- ----------------------------------------------------------------------------------------------------------------
Dapper II
- --------------------------------------------------------------------------------------------------------------------
FFC Cont Unit
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
File # # # Street CITY STATE
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2239 7328 359 969 N Daleville Ave Daleville AL
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2241 7330 364 7640 Moffat Rd Mobile AL
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2242 7331 368 3003 Dauphin Island Pkwy Mobile AL
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2247 7336 270 3787 Tampa Rd Oldsmar FL
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2253 7342 550 34951 Indrio Road Ft. Pierce FL
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2254 7343 559 820 Cheney Hwy Titusville FL
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2259 7348 612 7576 Lake Underhill Rd Orlando FL
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2260 7349 571 4289 Kathleen Road Kathleen FL
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2262 7351 302 1406 E Jackson St Thomasville GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2265 7354 305 1504 S Peterson Douglas GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2266 7355 307 561 W Oglethorpe Hwy Hinesville GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2271 7360 315 3220 Mercer University Dr Macon GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2272 7361 316 1386 Rocky Creek Rd Macon GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2277 7366 324 2541 Bemiss Rd Valdosta GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2278 7367 325 502 E Franklin St Sylvester GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2283 7372 336 6451 Veterans Pkwy Columbus GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2284 7373 339 701 N Slappey Blvd Albany GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2289 7378 349 749 E 3rd St Jackson GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2290 7379 401 5498 New Jessup Hwy Brunswick GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2295 7384 421 201 W Vineyard Rd Griffin GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2296 7385 426 2148 Fairburn Rd Douglasville GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2301 7390 497 501 N Duval St Claxton GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2302 7391 498 239 Ware St Blackshear GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2307 7396 726 12518 Highway 44 Gonzalez LA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2308 7397 728 400 E Judge Perez Dr Chalmette LA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2306 7395 725 2406 Airline Hwy Kenner LA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2314 7403 661 106 Presley Blvd McComb MS
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2319 7408 670 629 Grants Ferry Rd Flowood MS
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2320 7409 671 205 W Northside Dr Jackson MS
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2322 7411 676 1145 US Highway 90 W Bay Saint Louis MS
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2325 7414 680 302 W Monticello St Brookhaven MS
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2326 7415 681 132 N 16th Ave Laurel MS
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2331 7420 375 1500 Elm St W Hampton SC
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2332 7421 376 205 Chasteen Dr Walterboro SC
- --------------------------------------------------------------------------------------------------------------------
Dapper III
- -------------------------------------------------------------------------------------------------------------------
FFC Cont Unit
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
File # # # Street CITY STATE
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2237 7326 357 1603 S Main St Atmore AL
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2240 7329 362 5605 E Rite Rd Theodore AL
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2243 7332 72 8300 NW 103rd St Hialeah FL
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2246 7335 241 615 N Dixie Fwy New Smyrna Beach FL
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2249 7338 506 7522 Southgate Blvd Margate FL
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2252 7341 537 5121 Powerline Rd Fort Lauderdale FL
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2255 7344 567 3012 W Hillsborough Ave Tampa FL
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2258 7347 609 10824 S US Highway 41 Gibsonton FL
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2261 7350 301 1503 E Shotwell St Bainbridge GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2264 7353 304 3024 Cypress Mill Rd Brunswick GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2267 7356 308 705 Lamar St Americus GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2270 7359 314 311 E Oakland Ave Camilla GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2273 7362 317 2815 Montgomery St Savannah GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2276 7365 323 1501 Manchester Expy Columbus GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2279 7368 327 203 W 6th St Waynesboro GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2282 7371 335 402 Columbia St Blakeley GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2285 7374 341 2196 US Highway 17 Richmond Hill GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2288 7377 346 3602 Peach Orchard Rd Augusta GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2291 7380 402 760 E King Avenue Kingsland GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2294 7383 420 310 W Taylor St Griffin GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2297 7386 427 5621 Riverdale Dr College Park GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2300 7389 494 1496 US Highway 19 Leesburg GA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2303 7392 703 950 E Boston St Convington LA
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2309 7398 652 4217 Maine St Moss Point MS
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2312 7401 657 11422 US Highway 49 N Gulfport MS
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2315 7404 662 5060 Hardy St Hattiesburg MS
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2318 7407 669 300 US Highway 80 W Clinton MS
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2321 7410 675 1259 Ellis Ave Jackson MS
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2324 7413 679 179 Sgt Prentiss Dr Natchez MS
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2327 7416 682 198 Northside Dr Newton MS
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2330 7419 704 614 Central Ave W Wiggins MS
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
8001-2333 7422 377 550 E Baruch St Denmark SC
- -------------------------------------------------------------------------------------------------------------------
EXHIBIT B
DESCRIPTION OF REPLACED PROPERTIES
Dapper I
- ----------------------------------------------------------------------------------------------------------------
FFC Cont Unit
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
File # # # Street CITY STATE
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2238 7327 358 3635 Saint Stephens Rd Prichard AL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2281 7370 331 513 N Houston Rd Warner Robins GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2287 7376 344 512 E Screven St Quitman GA
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2310 7399 653 3005 W US Highway 90 Gautier MS
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
8001-2317 7406 668 325 US Highway 51 Ridgeland MS
- ----------------------------------------------------------------------------------------------------------------
Dapper II
- --------------------------------------------------------------------------------------------------------------------
FFC Cont Unit
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
File # # # Street CITY STATE
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2239 7328 359 969 N Daleville Ave Daleville AL
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2241 7330 364 7640 Moffat Rd Mobile AL
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2262 7351 302 1406 E Jackson St Thomasville GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2271 7360 315 3220 Mercer University Dr Macon GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2272 7361 316 1386 Rocky Creek Rd Macon GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2277 7366 324 2541 Bemiss Rd Valdosta GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2284 7373 339 701 N Slappey Blvd Albany GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2296 7385 426 2148 Fairburn Rd Douglasville GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2320 7409 671 205 W Northside Dr Jackson MS
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2332 7421 376 205 Chasteen Dr Walterboro SC
- --------------------------------------------------------------------------------------------------------------------
Dapper III
- --------------------------------------------------------------------------------------------------------------------
FFC Cont Unit
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
File # # # Street CITY STATE
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2261 7350 301 1503 E Shotwell St Bainbridge GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2264 7353 304 3024 Cypress Mill Rd Brunswick GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2267 7356 308 705 Lamar St Americus GA
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2309 7398 652 4217 Maine St Moss Point MS
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
8001-2312 7401 657 11422 US Highway 49 N Gulfport MS
- --------------------------------------------------------------------------------------------------------------------
EXHIBIT C
DESCRIPTION OF SUBSTITUTE PROPERTIES
Dapper I
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
FFC File # Unit # Street City State Corresponding Replaced
Property
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3477 D105082 1939 NW Topeka Blvd. Topeka KS 8001-2238
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3483 D101346 162 Elm Street Milford NH 8001-2317
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3476 D102289 2202 East Kansas Avenue Garden City KS 8001-2281
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3495 D101882 1145 West North Street Lima OH 8001-2287
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3496 D106848 1406 Kenneth Road York PA 8001-2310
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
Dapper II
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
FFC File # Unit # Street City State Corresponding Replaced
Property
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3478 D101995 9782 St. Charles Rock Road Breckenridge MO 8001-2239
Hills
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3479 D103049 999 E Gannon Drive Festus MO 8001-2272
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3480 D105135 500 SE State Route 291 Lee Summit MO 8001-2262
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3481 D101996 9846 W. Florissant Ave St. Louis MO 8001-2320
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3485 D101334 23373 US Hwy 23 S Circleville OH 8001-2271
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3486 D101668 3969 Salem Ave Dayton OH 8001-2332
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3488 D107141 2720 Curtice Road Northwood OH 8001-2296
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3490 D101836 12955 Frankstown Road Penn Hills PA 8001-2241
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3491 D108859 1488 W. Mason Street Green Bay WI 8001-2284
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3494 D101965 1260 Jennings Station Road St. Louis MO 8001-2277
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
Dapper III
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
FFC File # Unit # Street City State Corresponding Replaced
Property
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3474 D104997 3317 Agency Street Burlington IA 8001-2267
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3475 D101945 2602 Washington Avenue Alton IL 8001-2309
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3482 D102158 3510 Gravois Ave St. Louis MO 8001-2312
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3487 D101490 2636 S. Smithville Road Dayton OH 8001-2261
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------
8001-3489 D101360 3210 Library Road Castle Shannon PA 8001-2264
- ---------------- ------------ ---------------------------------- ------------------ --------- -------------------------