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EXHIBIT 10.21
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of January 21, 2000, by
and between FFCA ACQUISITION CORPORATION, a Delaware corporation ("FFCA"), whose
address is 17207 North Perimeter Drive, Scottsdale, Arizona 85255, and MINWOOD
PARTNERS, INC., a Delaware corporation ("Debtor"), whose address is 7657 Anagram
Drive, Eden Prairie, Minnesota 55344.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms used in this
Agreement shall have the meanings set forth in Section 1. Debtor has requested
from FFCA, and applied for, the Loans to provide refinancing for the Premises,
and for no other purpose whatsoever. Each Loan will be evidenced by a Note and
secured by a first priority security interest in the corresponding Premises
pursuant to a Mortgage. FFCA has committed to make the Loans pursuant to the
terms and conditions of the Commitment, this Agreement and the other Loan
Documents.
AGREEMENT:
In consideration of the mutual covenants and provisions of this Agreement,
the parties agree as follows:
1. DEFINITIONS. The following terms shall have the following meanings for
all purposes of this Agreement:
"Action" has the meaning set forth in Section 10.A(4).
"Affiliate" means any Person which directly or indirectly controls, is
under common control with, or is controlled by any other Person. For purposes of
this definition, "controls", "under common control with" and "controlled by"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
ownership of voting securities or otherwise.
"Business Day" means any day on which banks located in Phoenix, Arizona are
open for business other than a Saturday, Sunday or a legal holiday, ending at
5:00 PM Phoenix, Arizona time.
"Capital Lease" has the meaning set forth in Section 7.B.
"Closing" has the meaning set forth in Section 4.
"Closing Date" has the meaning set forth in Section 4.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq.,
as amended.
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"Commitment" means that certain Commitment Letter dated December 2, 1999
between FFCA and Debtor, and any amendments or supplements thereto.
"Counsel" means legal counsel to Debtor and Lessee, licensed in the
state(s) in which (i) the Premises are located, (ii) Debtor and/or Lessee is
incorporated or formed and (iii) Debtor and/or Lessee resides or maintains its
chief executive offices, as selected by Debtor and Lessee, as the case may be,
and approved by FFCA.
"Debt" has the meaning set forth in Section 7.B.
"Debtor Entities" means, collectively, Debtor, Lessee and any Affiliate of
Debtor or Lessee.
"De Minimis Amounts" means, 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 release of which does not constitute a
violation of or require regulation under any Environmental Laws and is
customarily employed in the ordinary course of, or associated with, similar
businesses located in the states in which the Premises are located.
"Depreciation and Amortization" has the meaning set forth in Section 7.B.
"Disclosures" has the meaning set forth in Section 14.P.
"Environmental Condition" means any condition with respect to soil, surface
waters, groundwaters, land, stream sediments, surface or subsurface strata,
ambient air and any environmental medium comprising or surrounding any of the
Premises, whether or not yet discovered, which could or does result in any
damage, loss, cost, expense, claim, demand, order or liability to or against
Debtor, Lessee or FFCA by any third party (including, without limitation, any
Governmental Authority), including, without limitation, any condition resulting
from the operation of Debtor's or Lessee's business at the Premises and/or the
operation of the business of any other property owner or operator in the
vicinity of the Premises and/or any activity or operation formerly conducted by
any person or entity on or off the Premises.
"Environmental Indemnity Agreement" or "Environmental Indemnity Agreements"
means, as the context may require, the environmental indemnity agreement dated
as of the date of this Agreement to be executed by Debtor for the benefit of the
Indemnified Parties and such other parties as are identified in such agreement
with respect to a Premises or the environmental indemnity agreements dated as of
the date of this Agreement to be executed by Debtor for the benefit of the
Indemnified Parties and such other parties as are identified in such agreement
with respect to all of the Premises, as the same may be amended from time to
time. An Environmental Indemnity Agreement will be executed for each Premises.
"Environmental Insurer" means American International Specialty Lines
Insurance Company or such other environmental insurance company as FFCA may
select, in its sole discretion.
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"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 Act; the National Environmental
Policy Act; and the River and Harbors Appropriation Act. "Environmental Laws"
also includes, but is not limited to, any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law: conditioning transfer of property upon a negative declaration or
other approval of a Governmental Authority of the environmental condition of the
property; requiring notification or disclosure of Releases or other
environmental condition of the Premises to any Governmental Authority or other
person or entity, whether or not in connection with transfer of title to or
interest in property; imposing conditions or requirements relating to Hazardous
Materials 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 the Premises by
reason of the presence of Hazardous Materials in, on, under or above the
Premises.
"Environmental Policies" means environmental insurance policies issued by
Environmental Insurer to FFCA with respect to the Premises, which Environmental
Policies shall be in form and substance satisfactory to FFCA in its sole
discretion.
"Equipment Payment Amount" has the meaning set forth in Section 7.B.
"Event of Default" has the meaning set forth in Section 10.
"FCCR Amount" has the meaning set forth in Section 10.A(6).
"Fee" means an underwriting, site assessment, valuation, processing and
commitment fee equal to 1.0% of the sum of the Loan Amount for the Premises,
which Fee shall be payable as set forth in Section 3.
"FFCA Payments" has the meaning set forth in Section 7.B.
"FFCA Entities" means, collectively, FFCA, Franchise Finance and any
Affiliate of FFCA or Franchise Finance.
"Fixed Charge Coverage Ratio" has the meaning set forth in Section 7.B.
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"Franchise Finance" means Franchise Finance Corporation of America, a
Delaware corporation, and its successors.
"GAAP" means generally accepted accounting principles consistently applied.
"Governmental Authority" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the state(s) where the
Premises are located or any political subdivision thereof.
"Gross Sales" has the meaning set forth in Section 7.B.
"Hazardous Materials" means (a) any toxic substance or hazardous waste,
substance, solid waste or related material, or any pollutant or contaminant; (b)
radon gas, asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contains
dielectric fluid containing levels of polychlorinated biphenyls in excess of
federal, state or local safety guidelines, whichever are more stringent, or any
petroleum product; (c) any substance, gas, material or chemical which is or may
be defined as or included in the definition of "hazardous substances," "toxic
substances," "hazardous materials," "hazardous wastes," "regulated substances"
or words of similar import under any Environmental Laws; and (d) any other
chemical, material, gas or substance the exposure to or release of which is or
may be prohibited, limited or regulated by any Governmental Authority that
asserts or may assert jurisdiction over the Premises or the operations or
activity at the Premises, or any chemical, material, gas or substance that does
or may pose a hazard to the health and/or safety of the occupants of the
Premises or the owners and/or occupants of property adjacent to or surrounding
the Premises.
"Indemnified Parties" has the meaning set forth in Section 12.
"Interest Expense" has the meaning set forth in Section 7.B.
"Lease" means the master lease between Debtor, as lessor, and Lessee, as
lessee, with respect to, with respect to all of the Premises, as the same may be
amended from time to time.
"Lessee" means Famous Dave's of America, Inc., a Minnesota corporation, and
its successors.
"Loan" or "Loans" means, as the context may require, the loan for each
Premises, or the loans for all of the Premises, described in Section 2.
"Loan Amount" or "Loan Amounts" means, as the context may require, the
aggregate amount set forth in Section 2 or, with respect to each Premises, the
individual amount set forth in Exhibit A.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Mortgages, the Environmental Indemnity Agreements, the UCC-1 Financing
Statements and all other documents, instruments and agreements executed in
connection therewith or contemplated thereby.
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"Lost Note" has the meaning set forth in Section 7.C.
"Memoranda" has the meaning set forth in Section 9.K.
"Modified FCCR Amount" has the meaning set forth in Section 10.A(6).
"Mortgage" or "Mortgages" means, as the context may require, the deed of
trust or mortgage dated as of the date of this Agreement to be executed by
Debtor for the benefit of FFCA with respect to a Premises or the deeds of trust
or mortgages dated as of the date of this Agreement to be executed by Debtor for
the benefit of FFCA with respect to all of the Premises, as the same may be
amended from time to time. A Mortgage will be executed for each Premises.
"Net Income" has the meaning set forth in Section 7.B.
"Note" or "Notes" means, as the context may require, the promissory note
dated as of the date of this Agreement to be executed by Debtor in favor of FFCA
evidencing a Loan with respect to a Premises or the promissory notes dated as of
the date of this Agreement to be executed by Debtor in favor of FFCA evidencing
the Loans with respect to all of the Premises, as the same may be amended,
restated and/or substituted from time to time, including, without limitation, as
a result of the payment of the FCCR Amount or the Modified FCCR Amount pursuant
to Section 10. A Note will be executed for each Premises in the Loan Amount
corresponding to such Premises.
"Operating Lease Expense" has the meaning set forth in Section 7.B.
"Other Agreements" means, collectively, all agreements and instruments
between, among or by (1) any of the Debtor Entities, and, or for the benefit of,
(2) any of the FFCA Entities, including, without limitation, promissory notes
and guaranties; provided, however, the term "Other Agreements" shall not include
the agreements and instruments defined as the Loan Documents.
"Participation" has the meaning set forth in Section 14.P.
"Permitted Concept" means a Famous Dave's restaurant or other restaurant or
retail concept approved in writing by FFCA in its reasonable discretion.
"Permitted Exceptions" means those recorded easements, restrictions, liens
and encumbrances set forth as exceptions in the title insurance policies issued
by Title Company to FFCA and approved by FFCA in its sole discretion in
connection with the closing of the Loans.
"Person" means any individual, corporation, partnership, limited liability
company, trust, unincorporated organization, Governmental Authority or any other
form of entity.
"Premises" means the parcel or parcels of real estate corresponding to the
FFCA File Numbers and addresses identified on Exhibit A attached hereto,
together with all rights, privileges and appurtenances associated therewith and
all buildings, fixtures and other improvements, equipment, trade fixtures,
appliances and other personal property now or hereafter located thereon (whether
or not affixed to such real estate). As used herein, the term
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"Premises" shall mean either a singular property or all of the properties
collectively, as the context may require.
"Questionnaires" means the environmental questionnaires completed by Debtor
or Lessee with respect to the Premises and submitted to Environmental Insurer in
connection with the issuance of the Environmental Policies.
"Release" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying,
escaping, dumping, disposing or other movement of Hazardous Materials.
"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.
"Securitization" means one or more sales, dispositions, transfers or
assignments by FFCA or any of the other FFCA Entities to a special purpose
corporation, trust or other entity identified by FFCA or any of the other FFCA
Entities of notes evidencing obligations to repay secured or unsecured loans
owned by FFCA or any of the other FFCA Entities (and, to the extent applicable,
the subsequent sale, transfer or assignment of such notes to another special
purpose corporation, trust or other entity identified by FFCA or any of the
other FFCA Entities), and the issuance of bonds, certificates, notes or other
instruments evidencing interests in pools of such loans, whether in connection
with a permanent asset securitization or a sale of loans in anticipation of a
permanent asset securitization. Each Securitization shall be undertaken in
accordance with all requirements which may be imposed by the investors or the
rating agencies involved in each such sale, disposition, transfer or assignment
or which may be imposed by applicable securities, tax or other laws or
regulations, including, without limitation, laws relating to FFCA's status as a
real estate investment trust.
"Securitized Loan Pool" means any pool or group of loans that are a part of
any Securitization.
"Selected Premises" has the meaning set forth in Section 10.A(6).
"Subject Premises" has the meaning set forth in Section 10.A(6).
"Substitute Documents" has the meaning set forth in Section 13.
"Substitute Premises" means one or more parcels of real property
substituted for a Premises in accordance with the requirements of Section 13,
together with all rights, privileges and appurtenances associated therewith, and
all buildings, fixtures and other improvements, equipment, trade fixtures,
appliances and other personal property located thereon (whether or not affixed
to such real estate). For purposes of clarity, where two or more parcels of real
property
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comprise a Substitute Premises, such parcels or interests shall be aggregated
and deemed to constitute the Substitute Premises for all purposes of this
Agreement.
"Substitute Premises Permitted Exceptions" has the meaning set forth in
Section 13.
"Threatened Release" means a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the soil, surface waters,
groundwaters, land, stream sediments, surface or subsurface strata, ambient air
or any other environmental medium comprising or surrounding the Premises which
may result from such Release.
"Title Company" means the title insurance company described in Section 4.
"Transfer" has the meaning set forth in Section 14.P.
"UCC-1 Financing Statements" means such UCC-1 Financing Statements as FFCA
shall require to be executed and delivered by Debtor with respect to the
transactions contemplated by this Agreement.
2. TRANSACTION. On the terms and subject to the conditions set forth in
the Loan Documents, FFCA shall make the Loans. The Loans will be evidenced by
the Notes and secured by the Mortgages. Debtor shall repay the outstanding
principal amount of the Loans together with interest thereon in the manner and
in accordance with the terms and conditions of the Notes and the other Loan
Documents. The aggregate Loan Amount shall be $3,800,000.00 allocated among the
Premises as set forth on the attached Exhibit A. The Loans shall be advanced at
the Closing in cash or otherwise immediately available funds subject to any
prorations and adjustments required by this Agreement. The Premises shall be
leased to the Lessee pursuant to the Lease and, at Closing, Debtor shall assign
the Lease to FFCA pursuant to the Mortgages.
3. UNDERWRITING, SITE ASSESSMENT, VALUATION, PROCESSING AND COMMITMENT
FEE. Debtor paid FFCA a portion of the Fee pursuant to the Commitment, and such
portion was deemed fully earned when received. The remainder of the Fee shall be
paid at the Closing and shall be deemed nonrefundable and fully earned upon the
Closing. The Fee constitutes FFCA's underwriting, site assessment, valuation,
processing and commitment fee. In the event the transaction set forth in this
Agreement fails to close due to a breach or default by Debtor under this
Agreement, FFCA shall retain the portion of the Fee received by FFCA (without
affecting or limiting FFCA's remedies set forth in this Agreement).
4. CLOSING. (a) Each Loan shall be closed (the "Closing") within 30 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 28, 2000, unless such extension shall be approved by FFCA in its sole
discretion (the date on which the Closing shall occur is referred to herein as
the "Closing Date").
(b) FFCA has ordered a title insurance commitment for each Premises from
Lawyers Title Insurance Corporation ("Title Company"). Prior to the Closing
Date, the parties hereto shall deposit with Title Company all documents and
moneys necessary to comply with their obligations under this Agreement. All
costs of such transaction shall be borne by Debtor,
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including, without limitation, the cost of title insurance and all endorsements
required by FFCA, survey charges, UCC and litigation search charges, the
attorneys' fees of Debtor, attorneys' fees and expenses of FFCA, the cost of the
environmental reports or Environmental Policies to be delivered pursuant to
Section 9.E, FFCA's in-house site inspection costs and fees, stamp taxes,
mortgage taxes, transfer fees, escrow and recording fees and site inspection
fees for the Premises. All real and personal property and other applicable taxes
and assessments and other charges relating to the Premises which are due and
payable on or prior to the Closing Date as well as taxes and assessments due and
payable subsequent to the Closing Date but which Title Company requires to be
paid at Closing as a condition to the issuance of the title insurance policy
described in Section 9.C, shall be paid by Debtor at or prior to the Closing.
The Closing documents shall be dated as of the Closing Date.
Debtor and FFCA hereby employ Title Company to act as escrow agent in
connection with the transaction described in this Agreement. Title Company shall
not cause the transaction to close unless and until it has received written
instructions from FFCA and Debtor to do so. Debtor and FFCA will deliver to
Title Company all documents, pay to Title Company all sums and do or cause to be
done all other things necessary or required by this Agreement, in the reasonable
judgment of Title Company, to enable Title Company to comply herewith and to
enable any title insurance policy provided for herein to be issued. Title
Company is authorized to pay, from any funds held by it for FFCA's or Debtor's
respective credit all amounts necessary to procure the delivery of such
documents and to pay, on behalf of FFCA and Debtor, all charges and obligations
payable by them, respectively. Debtor will pay all charges payable by it to
Title Company. Title Company is authorized, in the event any conflicting demand
is made upon it concerning these instructions or the escrow, at its election, to
hold any documents and/or funds deposited hereunder until an action shall be
brought in a court of competent jurisdiction to determine the rights of Debtor
and FFCA or to interplead such documents and/or funds in an action brought in
any such court. Deposit by Title Company of such documents and funds, after
deducting therefrom its charges and its expenses and attorneys' fees incurred in
connection with any such court action, shall relieve Title Company of all
further liability and responsibility for such documents and funds. Title
Company's receipt of this Agreement and opening of an escrow pursuant to this
Agreement shall be deemed to constitute conclusive evidence of Title Company's
agreement to be bound by the terms and conditions of this Agreement pertaining
to Title Company. Disbursement of any funds shall be made by check, certified
check or wire transfer, as directed by Debtor and FFCA. Title Company shall be
under no obligation to disburse any funds represented by check or draft, and no
check or draft shall be payment to Title Company in compliance with any of the
requirements hereof, until it is advised by the bank in which such check or
draft is deposited that such check or draft has been honored. Title Company is
authorized to act upon any statement furnished by the holder or payee, or a
collection agent for the holder or payee, of any lien on or charge or assessment
in connection with the Premises, concerning the amount of such charge or
assessment or the amount secured by such lien, without liability or
responsibility for the accuracy of such statement. The employment of Title
Company as escrow agent shall not affect any rights of subrogation under the
terms of any title insurance policy issued pursuant to the provisions thereof.
5. REPRESENTATIONS AND WARRANTIES OF FFCA. The representations and
warranties of FFCA contained in this Section are being made by FFCA as of the
date of this Agreement and
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the Closing Date to induce Debtor to enter into this Agreement and consummate
the transactions contemplated herein, and Debtor has relied, and will continue
to rely, upon such representations and warranties from and after the execution
of this Agreement and the Closing. FFCA represents and warrants to Debtor as
follows:
A. Organization of FFCA. FFCA has been duly formed, is validly
existing and has taken all necessary action to authorize the execution,
delivery and performance by FFCA of this Agreement.
B. Authority of FFCA. The person who has executed this Agreement on
behalf of FFCA is duly authorized so to do.
C. Enforceability. Upon execution by FFCA, this Agreement shall
constitute the legal, valid and binding obligation of FFCA, enforceable
against FFCA in accordance with its terms.
All representations and warranties of FFCA made in this Agreement shall
survive the Closing.
6. REPRESENTATIONS AND WARRANTIES OF DEBTOR. The representations and
warranties of Debtor contained in this Section are being made by Debtor as of
the date of this Agreement and the Closing Date to induce FFCA to enter into
this Agreement and consummate the transactions contemplated herein, and FFCA has
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. Debtor represents and
warrants to FFCA as follows:
A. Information and Financial Statements. Debtor has delivered to
FFCA financial statements (either audited financial statements or, if
Debtor does not have audited financial statements, certified financial
statements) and certain other information concerning itself and Lessee,
which financial statements and other information are true, correct and
complete in all material respects; and no material adverse change has
occurred with respect to any such financial statements and other
information provided to FFCA since the date such financial statements and
other information were prepared or delivered to FFCA. Debtor understands
that FFCA is relying upon such financial statements and information and
Debtor represents that such reliance is reasonable. All such financial
statements were prepared in accordance with GAAP and accurately reflect as
of the date of this Agreement and the Closing Date, the financial condition
of each individual or entity to which they pertain.
B. Organization and Authority. (1) Each of Debtor and Lessee is duly
organized or formed, validly existing and in good standing under the laws
of its state of incorporation or formation, and qualified as a foreign
corporation, partnership or limited liability company, as applicable, to do
business in any jurisdiction where such qualification is required. All
necessary corporate, partnership or limited liability company action has
been taken to authorize the execution, delivery and performance of this
Agreement and the other Loan Documents.
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(2) The person(s) who have executed this Agreement on behalf of
Debtor are duly authorized so to do.
C. Enforceability of Documents. Upon execution by Debtor and Lessee
this Agreement and the other Loan Documents shall constitute the legal,
valid and binding obligations of Debtor and Lessee, respectively,
enforceable against Debtor and Lessee in accordance with their respective
terms.
D. Litigation. There are no suits, actions, proceedings or
investigations pending or to the best of Debtor's knowledge, threatened
against or involving Debtor, Lessee or the Premises before any arbitrator
or Governmental Authority which might reasonably result in any material
adverse change in the contemplated business, condition, worth or operations
of Debtor, Lessee or the Premises.
E. Absence of Breaches or Defaults. Debtor and Lessee are not, and
the authorization, execution, delivery and performance of this Agreement
and the other Loan Documents will not result, in any breach or default
under any other document, instrument or agreement to which Debtor and/or
Lessee are a party or by which Debtor, Lessee, the Premises or any of the
property of Debtor or Lessee is subject or bound. The authorization,
execution, delivery and performance of this Agreement and the other Loan
Documents will not violate any applicable law, statute, regulation, rule,
ordinance, code or order.
F. Utilities. The Premises are served by ample public utilities to
permit full utilization of the Premises for their intended purpose and all
utility connection fees and use charges will have been paid in full.
G. Intended Use and Zoning; Compliance With Laws. Debtor and Lessee
intend to use each of the Premises solely for the operation of a Permitted
Concept, and related ingress, egress and parking, and for no other
purposes. Each of the Premises is in compliance with all applicable zoning
requirements and the use of each of the Premises as a Permitted Concept
does not constitute a nonconforming use under applicable zoning
requirements. The Premises comply with all applicable statutes,
regulations, rules, ordinances, codes, licenses, permits, orders and
approvals of each Governmental Authority having jurisdiction over the
Premises, including, without limitation, all health, building, fire, safety
and other codes, ordinances and requirements, all applicable standards of
the National Board of Fire Underwriters and the Americans With Disabilities
Act of 1990 and all policies or rules of common law, in each case, as
amended, and any judicial or administrative interpretation thereof,
including any judicial order, consent, decree or judgment applicable to
Debtor or Lessee.
H. Area Development; Wetlands. No condemnation or eminent domain
proceedings affecting the Premises have been commenced or, to the best of
Debtor's knowledge, are contemplated. To the best of Debtor's knowledge,
the areas where the Premises are located have not been declared blighted by
any Governmental Authority. To the best of Debtor's knowledge, the Premises
and/or the real property bordering the Premises are not designated by any
Governmental Authority as a wetlands.
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I. Licenses and Permits; Access. Debtor or Lessee has all required
licenses and permits, both governmental and private, to use and operate the
Premises in the intended manner. There are adequate rights of access to
public roads and ways available to the Premises for unrestricted ingress
and egress and otherwise to permit full utilization of the Premises for
their intended purposes and all such public roads and ways have been
completed and dedicated to public use.
J. Condition of Premises. The Premises, including the equipment
located thereon, are of good workmanship and materials, fully equipped and
operational, in good condition and repair, free from structural defects,
clean, orderly and sanitary, safe, well-lit, landscaped, decorated,
attractive and well-maintained.
K. Environmental. Debtor is fully familiar with the present use of
the Premises, and, after due inquiry, Debtor has become generally familiar
with the prior uses of the Premises. Debtor has not and to the best of
Debtor's knowledge, no Hazardous Materials have been used, handled,
manufactured, generated, produced, stored, treated, processed, transferred
or disposed of at or on the Premises, except in De Minimis Amounts, and no
Release or Threatened Release has occurred at or on the Premises. The
activities, operations and business undertaken on, at or about the
Premises, including, but not limited to, any past or ongoing alterations or
improvements at the Premises, are and to the best of Debtor's knowledge
have been at all times, in compliance with all Environmental Laws. No
further action is required to remedy any Environmental Condition or
violation of, or to be in full compliance with, any Environmental Laws, and
no lien has been imposed on the Premises by any Governmental Authority in
connection with any Environmental Condition, the violation or threatened
violation of any Environmental Laws or the presence of any Hazardous
Materials on or off the Premises.
There is no pending or threatened litigation or proceeding before any
Governmental Authority in which any person or entity alleges the violation
or threatened violation of any Environmental Laws or the presence, Release,
Threatened Release or placement on or at the Premises of any Hazardous
Materials, or of any facts which would give rise to any such action, nor
has Debtor (a) received any notice (and Debtor has no actual knowledge)
that any Governmental Authority or any employee or agent thereof has
determined, threatens to determine or requires an investigation to
determine that there has been a violation of any Environmental Laws at, on
or in connection with the Premises or that there exists a presence,
Release, Threatened Release or placement of any Hazardous Materials on or
at the Premises, or the use, handling, manufacturing, generation,
production, storage, treatment, processing, transportation or disposal of
any Hazardous Materials at or on the Premises; (b) received any notice
under the citizen suit provision of any Environmental Law in connection
with the Premises or any facilities, operations or activities conducted
thereon, or any business conducted in connection therewith; or (c) received
any request for inspection, request for information, notice, demand,
administrative inquiry or any formal or informal complaint or claim with
respect to or in connection with the violation or threatened violation of
any Environmental Laws or existence of Hazardous Materials relating to the
Premises or any facilities, operations or activities conducted thereon or
any business conducted in connection therewith.
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The information and disclosures in the Questionnaires are true,
correct and complete in all material respects, FFCA and Environmental
Insurer may rely on such information and disclosures, and the person or
persons executing the Questionnaires were duly authorized to do so. Debtor
acknowledges and agrees that Environmental Insurer may rely on the
environmental representations and warranties set forth in the preceding
subsection K, that Environmental Insurer is an intended third-party
beneficiary of such representations and warranties and that Environmental
Insurer shall have all rights and remedies available at law or in equity as
a result of a breach of such representations and warranties, including, to
the extent applicable, the right of subrogation.
L. Title to Premises; First Priority Lien. Fee title to each of the
Premises is vested in Debtor, free and clear of all liens, encumbrances,
charges and security interests of any nature whatsoever, except the
Permitted Exceptions. Debtor is the owner of all equipment, trade fixtures,
appliances and other personal property located on or at each of the
Premises free and clear of all liens, encumbrances, charges and security
interests of any nature whatsoever except for any equipment, trade
fixtures, appliances and other personal property owned by Lessee. Upon
Closing, FFCA shall have a first priority lien upon and security interest
in Debtor's right, title and interest in and to each of the Premises
pursuant to the Mortgages and the UCC-1 Financing Statements.
M. No Other Agreements and Options. Neither Debtor, Lessee nor the
Premises are subject to any commitment, obligation, or agreement,
including, without limitation, any right of first refusal, option to
purchase or lease granted to a third party, which could or would prevent or
hinder FFCA in making the Loans or exercising any of its rights or remedies
under the Loan Documents or prevent or hinder Debtor or Lessee from
fulfilling its obligations under this Agreement or the other Loan
Documents.
N. 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 the
Premises; no work has been performed or is in progress nor have materials
been supplied to the Premises or agreements entered into for work to be
performed or materials to be supplied to the Premises prior to the date
hereof, which will not have been fully paid for on or before the Closing
Date, or which might provide the basis for the filing of such liens against
the Premises or any portion thereof; Debtor shall be responsible for any
and all claims for mechanics' liens and accounts payable that have arisen
or may subsequently arise due to agreements entered into for and/or any
work performed on, or materials supplied to the Premises prior to the
Closing Date; Debtor and Lessee have made no contract or arrangement of any
kind the performance of which by the other party thereto would give rise to
a lien on the Premises; and Debtor shall and does hereby agree to defend,
indemnify and forever hold FFCA and FFCA's designees harmless for, from and
against any and all such mechanics' lien claims, accounts payable or other
commitments relating to the Premises.
O. No Reliance. Debtor acknowledges that FFCA did not prepare or
assist in the preparation of any of the projected financial information
used by Debtor in analyzing the economic viability and feasibility of the
transaction contemplated by this Agreement.
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Furthermore, Debtor acknowledges that it has not relied upon, nor may it
hereafter rely upon, the analysis undertaken by FFCA in determining the
Loan Amounts, and such analysis will not be made available to Debtor.
P. Nonconsolidation. (1) Debtor maintains correct and complete books
and records of account separate from all other Persons. Where necessary or
appropriate, Debtor has disclosed the nature of the transaction
contemplated by the Loan Documents and Debtor's independent status to its
creditors. The Premises represent all of the assets owned or leased by
Debtor as of the date hereof, and Debtor has not commingled its assets and
its liabilities with those of any other Person.
(2) Debtor maintains its own checking account or accounts with
commercial banking institutions separate from other Persons.
(3) To the extent that Debtor shares the same employees with other
Persons, the salaries of and the expenses related to providing benefits to
such employees have been fairly and nonarbitrarily allocated among such
Persons, with the result that each such Person bears its fair share of the
salary and benefit costs associated with all such common employees.
(4) To the extent that Debtor jointly contracts with other Persons to
do business with vendors or service providers or to share overhead
expenses, the costs incurred in so doing are, and at all times shall be,
fairly and nonarbitrarily allocated among such Persons, with the result
that each such Person bears its fair share of such costs. To the extent
that Debtor contracts or does business with vendors or service providers
where the goods or services provided are or shall be partially for the
benefit of other Persons, the costs incurred in so doing are fairly and
nonarbitrarily allocated to or among such Persons for whose benefit the
goods or services are provided, with the result that each such Person bears
its fair share of such costs.
(5) To the extent that Debtor or other Persons have offices in the
same location, there is a fair, appropriate and nonarbitrary allocation of
overhead among them, with the result that each such Person bears its fair
share of such expenses.
(6) Debtor has not incurred any indebtedness, secured or unsecured,
direct or indirect, absolute or contingent, including, without limitation,
liability for the debts of any other Person (and Debtor has not held itself
out as being liable for the debts of any other Person), other than the
Loans and trade and operational debt incurred in the ordinary course of
business with trade creditors and in amounts as are normal and reasonable
under the circumstances. Debtor is not a guarantor of any obligations.
(7) Debtor is not presently a party to a pledge of its assets for the
benefit of other Persons. Debtor has not made any loans or advances to any
third party (including any Affiliate or constituent party of Debtor).
(8) Debtor has conducted its affairs strictly in accordance with its
organizational documents including Debtor's managing member's
organizational documents and has observed all necessary, appropriate and
customary formalities.
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(9) Debtor does not hold itself out to the public or to any of its
individual creditors as being a unified entity with assets and liabilities
in common with any other Person.
(10) Debtor (i) is solvent, (ii) is able to pay its obligations
as they become due and (iii) is not and shall not be engaged in any
business or transaction for which its remaining capital is or may be
unreasonably small.
(11) Debtor has no actual intent to hinder, delay or defraud
creditors in connection with any of the transactions contemplated herein or
intent to incur (or belief that it is incurring) debts beyond its ability
to pay the same as they mature.
(12) Debtor has not, as to itself or as to other Persons, (a)
commenced any case, proceeding or other action under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to Debtor or other Persons or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to Debtor or its
debts or other Persons or their debts or (b) sought appointment of a
receiver, trustee, custodian or other similar official for Debtor or for
all or any substantial part of its or other Person's assets or made a
general assignment for the benefit of Debtor's creditors.
All representations and warranties of Debtor made in this Agreement shall
be and will remain true and complete in all respects as of and subsequent to the
Closing Date as if made and restated in full as of such time and shall survive
the Closing.
7. COVENANTS. Debtor covenants to FFCA from and after the Closing Date
as follows:
A. Inspections. Upon reasonable advance notice, Debtor shall, at all
reasonable times, (i) provide FFCA and FFCA's officers, employees, agents,
advisors, attorneys, accountants, architects, and engineers with access to
the Premises, all drawings, plans, and specifications for the Premises in
possession of Debtor or Lessee, all engineering reports relating to the
Premises in the possession of Debtor or Lessee, the files, correspondence
and documents relating to the Premises, and the financial books and
records, including lists of delinquencies, relating to the ownership,
operation, and maintenance of the Premises (including, without limitation,
any of the foregoing information stored in any computer files), and (ii)
allow such persons to make such inspections, tests, copies, and
verifications as FFCA considers necessary.
B. Fixed Charge Coverage Ratio. Until such time as all of Debtor's
obligations under the Notes and the other Loan Documents are paid,
satisfied and discharged in full, Debtor shall cause to be maintained an
aggregate Fixed Charge Coverage Ratio at all of the Premises of at least
1.50:1, as determined on the last day of each fiscal year of Debtor. For
purposes of this Section, the term "Fixed Charge Coverage Ratio" shall mean
with respect to the twelve month period of time immediately preceding the
date of determination, the ratio calculated for such period of time, each
as determined in accordance with GAAP, of (a) the
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sum of Net Income (including proceeds from business interruption insurance
payments, if any), Depreciation and Amortization, Interest Expense and
Operating Lease Expense, less a corporate overhead allocation in an amount
equal to 5% of Gross Sales, to (b) the sum of the FFCA Payments, Operating
Lease Expense and the Equipment Payment Amount.
For purposes of this Section, the following terms shall be defined as set
forth below:
"Capital Lease" shall mean any lease of any property (whether
real, personal or mixed) by Lessee with respect to one or more of the
Premises which lease would, in conformity with GAAP, be required to be
accounted for as a capital lease on the balance sheet of Lessee. The
term "Capital Lease" shall not include any operating lease.
"Debt" shall mean as directly related to all of the Premises and
the period of determination (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, indentures, notes or similar
instruments, (iii) obligations to pay the deferred purchase price of
property or services, (iv) obligations under leases which should be,
in accordance with GAAP, accounted for as Capital Leases, and (v)
obligations under direct or indirect guarantees in respect of, and
obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses (i) through (iv) above.
"Depreciation and Amortization" shall mean with respect to all of
the Premises the depreciation and amortization accruing during any
period of determination with respect to Debtor as determined in
accordance with GAAP.
"Equipment Payment Amount" shall mean for any period of
determination the sum of all amounts payable during such period of
determination under all (i) leases for equipment located at one or
more of the Premises and (ii) all loans secured by equipment located
at one or more of the Premises.
"FFCA Payments" shall mean with respect to the period of
determination, the sum of all amounts payable under the Notes.
"Gross Sales" shall mean the sales or other income arising from
all business conducted at all of the Premises by Lessee during the
period of determination, less sales tax, credit card commission and
complimentary sales, as presented in Lessee's publicly disclosed
financial statements, and any amounts received from not-for-profit
sales of all non-food items approved for use in connection with
promotional campaigns, if any, for all of the Premises.
"Interest Expense" shall mean for any period of determination,
the sum of all interest accrued or which should be accrued in respect
of all Debt of Lessee allocable to one or more of the Premises and all
business operations thereon during such period (including interest
attributable to Capital Leases), as determined in accordance with
GAAP.
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"Net Income" shall mean with respect to the period of
determination, the aggregate net income or net loss of Lessee
allocable to all of the Premises. In determining the amount of Net
Income, (i) adjustments shall be made for nonrecurring gains and
losses allocable to the period of determination, (ii) deductions shall
be made for Depreciation and Amortization, Interest Expense and
Operating Lease Expense allocable to the period of determination, and
(iii) no deductions shall be made for (x) income taxes or charges
equivalent to income taxes allocable to the period of determination,
as determined in accordance with GAAP, or (y) corporate overhead
expense allocable to the period of determination.
"Operating Lease Expense" shall mean the sum of all payments and
expenses incurred by Lessee under any operating leases with respect to
one or more of the Premises and the business operations thereon during
the period of determination, as determined in accordance with GAAP.
Notwithstanding the foregoing, FFCA shall have the right to divide the
Loans (and the corresponding Loan Documents) into one or more Securitized
Loan Pools in connection with one or more Securitizations. If any
Securitized Loan Pool does not include all of the Loans, Debtor shall
maintain with respect to the Loans in each Securitized Loan Pool an
aggregate Fixed Charge Coverage Ratio, as determined on the date set forth
above, of at least 1.50:1 for all of the Premises corresponding to the
Loans in such Securitized Loan Pool, which Fixed Charge Coverage Ratio
requirement shall be in addition to the requirement to maintain an
aggregate Fixed Charge Coverage Ratio of at least 1:50:1 for all of the
Premises as set forth above, and shall apply until such time as all of the
Debtor's obligations under the Notes and the other Loan Documents
corresponding to such Loans are paid, satisfied and discharged in full. To
the extent that an aggregate Fixed Charge Coverage Ratio requirement is
imposed by FFCA with respect to the Loans in any Securitized Loan Pool, for
the purposes of determining whether or not such Fixed Charge Coverage Ratio
requirement has been satisfied, the definitions relating to the Fixed
Charge Coverage Ratio shall be deemed to be modified as applicable to
provide for the calculation of the aggregate Fixed Charge Coverage Ratio
for all of the Premises corresponding to such Securitized Loan Pool rather
than a calculation of the aggregate Fixed Charge Coverage Ratio for all of
the Premises.
C. Lost Note. Debtor shall, if any Note is mutilated, destroyed,
lost or stolen (a "Lost Note"), promptly deliver to FFCA, upon receipt of
an affidavit from FFCA stipulating that such Note has been mutilated,
destroyed, lost or stolen, in substitution therefor, a new promissory note
containing the same terms and conditions as such Lost Note with a notation
thereon of the unpaid principal and accrued and unpaid interest. Debtor
shall provide fifteen (15) days' prior notice to FFCA before making any
payments to third parties in connection with a Lost Note.
D. Affiliate Transactions. Unless otherwise approved by FFCA, all
transactions between Debtor and any of its Affiliates shall be on terms
substantially as advantageous to Debtor as those which could be obtained by
Debtor in a comparable arm's length transaction with a non-Affiliate of
Debtor.
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E. Lease Modifications. The Lease shall not be modified, amended,
terminated, cancelled or surrendered without FFCA's prior written consent.
F. Nonconsolidation. (1) Debtor shall at all times maintain correct
and complete books and records of account separate from all other Persons. Where
necessary or appropriate, Debtor shall disclose the nature of the transaction
contemplated by the Loan Documents and Debtor's independent status to its
creditors. Debtor shall not own or lease any assets other than the Premises, nor
engage in any business other than owning and leasing the Premises, including
financing the Premises with FFCA. Debtor shall not commingle its assets and its
liabilities with those of any other Person.
(2) Debtor shall maintain its own checking account or accounts with
commercial banking institutions separate from other Persons.
(3) To the extent that Debtor shares the same employees with other
Persons, the salaries of and the expenses related to providing benefits to such
employees, at all times shall be, fairly and nonarbitrarily allocated among such
Persons, with the result that each such Person shall bear its fair share of the
salary and benefit costs associated with all such common employees.
(4) To the extent that Debtor jointly contracts with other Persons to
do business with vendors or service providers or to share overhead expenses, the
costs incurred in so doing at all times shall be, fairly and nonarbitrarily
allocated among such Persons, with the result that each such Person shall bear
its fair share of such costs. To the extent that Debtor contracts or does
business with vendors or service providers where the goods or services provided
are or shall be partially for the benefit of other Persons, the costs incurred
in so doing at all times shall be, fairly and nonarbitrarily allocated to or
among such Persons for whose benefit the goods or services are provided, with
the result that each such Person shall bear its fair share of such costs. All
transactions between Debtor and other Persons shall be only on an arm's-length
basis.
(5) To the extent that Debtor or other Persons have offices in the
same location, there shall be a fair, appropriate and nonarbitrary allocation of
overhead among them, with the result that each such Person shall bear its fair
share of such expenses.
(6) Debtor shall not incur any indebtedness, secured or unsecured,
direct or indirect, absolute or contingent (including guaranteeing any
obligation or assuming liability for the debts of any other Person and Debtor
will not hold itself out as being liable for the debts of any other Person),
other than the Loans and trade and operational debt incurred in the ordinary
course of business with trade creditors and in amounts as are normal and
reasonable under the circumstances. No indebtedness other than the Loans may be
secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Debtor shall not enter into any contract or agreement with any
Affiliate of Debtor, any constituent party of Debtor or any Affiliate of any
constituent party of Debtor except upon terms and conditions that are
intrinsically fair and substantially similar to those that would be available on
an arms-length basis with third parties other than any such party.
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(8) Except as contemplated by the Loan Documents, Debtor shall not
pledge, grant any security interest in, hypothecate or otherwise encumber its
assets for the benefit of any other Persons.
(9) Debtor shall issue separate financial statements prepared not
less frequently than annually and prepared according to GAAP.
(10) Debtor shall maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character in light of its
contemplated business operations.
(11) Debtor shall conduct its affairs strictly in accordance with its
organizational documents, including Debtor's managing member's organizational
documents and shall observe all necessary, appropriate and customary
formalities. The books, records and accounts of Debtor shall at all times be
maintained in a manner permitting the assets and liabilities of Debtor to be
easily separated and readily ascertained from those of any other Person and
Debtor shall file its own tax returns.
(12) Debtor shall not hold itself out to the public or to any of its
individual creditors as being a unified entity with assets and liabilities in
common with any other Person. Debtor shall maintain and utilize separate
stationery, invoices and checks.
(13) Debtor shall not make any loans or advances to any third party
(including any Affiliate of Debtor or constituent party of Debtor).
(14) Debtor shall not, as to itself or as to other Persons, (i)
commence any case, proceeding or other action under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to Debtor or other Persons or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to Debtor or its debts or other Persons or their debts or (ii) seek
appointment of a receiver, trustee, custodian or other similar official for
Debtor or for all or any substantial part of its or other Person's assets or
make a general assignment for the benefit of Debtor's creditors. Debtor shall
not take any action in furtherance of, or indicating its consents to, approval
of or acquiescence in, any of the acts set forth above. Debtor shall not be
unable to, or admit in writing its inability to, pay its debts.
8. TRANSACTION CHARACTERIZATION. This Agreement is a contract to extend a
financial accommodation (as such term is used in the Code) for the benefit of
Debtor. It is the intent of the parties hereto that the business relationship
created by this Agreement, the Notes, the Mortgages and the other Loan Documents
is solely that of creditor and debtor and has been entered into by both parties
in reliance upon the economic and legal bargains contained in the Loan
Documents. None of the agreements contained in the Loan Documents is intended,
nor shall the same be deemed or construed, to create a partnership (either de
jure or de facto) between Debtor, Lessee and FFCA, to make them joint venturers,
to make Debtor or Lessee an agent, legal representative, partner, subsidiary or
employee of FFCA, nor to make FFCA in any way responsible for the debts,
obligations or losses of Debtor or Lessee.
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9. CONDITIONS OF CLOSING. The obligation of FFCA to consummate the
transaction contemplated by this Agreement is subject to the fulfillment or
waiver of each of the following conditions:
A. Title. Fee title to each of the Premises shall be vested in Debtor,
free of all liens, encumbrances, restrictions, encroachments and easements,
except the Permitted Exceptions and the liens created by the Mortgages and
the UCC-1 Financing Statements. Debtor shall be the owner of all of the
equipment, trade fixtures, appliances and other personal property located
on or at each of the Premises free and clear of all liens, encumbrances,
charges and security interests, except the liens created by the Mortgages
and the UCC-1 Financing Statements. Upon Closing, FFCA will obtain a valid
and perfected first priority lien upon and security interest in Debtor's
right, title and interest in and to each of the Premises.
B. Condition of Premises. FFCA shall have inspected and approved the
Premises and the equipment located thereon shall be in good condition and
repair, free from structural defects, and of good workmanship and
materials, and the Premises shall be fully equipped and operational, clean,
orderly, sanitary, safe, well-lit, landscaped, decorated, attractive and
with a suitable layout, physical plant, traffic pattern and location, all
as determined by FFCA in its sole discretion.
C. Evidence of Title. FFCA shall have received for each of the
Premises a preliminary title report and irrevocable commitment to insure
title in the amount of the Loan relating to such Premises, by means of a
mortgagee's, ALTA extended coverage policy of title insurance (or its
equivalent, in the event such form is not issued in the jurisdiction where
the Premises is located) issued by Title Company showing good and
marketable fee title, in such Premises in Debtor, committing to insure
FFCA's first priority lien upon and security interest in such Premises
subject only to Permitted Exceptions, and containing such endorsements as
FFCA may require. FFCA shall also have received evidence reasonably
satisfactory to FFCA that Debtor is the owner of all of the equipment,
trade fixtures, appliances and other personal property located on or at
each of the Premises free and clear of all liens, encumbrances, charges and
security interests, except the liens created by the Mortgages and the UCC-1
Financing Statements.
D. Survey. FFCA shall have received a current ALTA survey of each of
the Premises, the form and substance of which shall be satisfactory to FFCA
in its sole discretion. Debtor shall have provided FFCA with evidence
satisfactory to FFCA that the location of each of the Premises is not
within the 100-year flood plain or identified as a special flood hazard
area as defined by the Federal Insurance Administration, or if any Premises
is in such a flood plain or special flood hazard area, Debtor shall provide
FFCA with evidence of flood insurance maintained on such Premises in
amounts and on terms and conditions satisfactory to FFCA.
E. Environmental. FFCA shall have received (i) a Phase I environmental
report (and a Phase II environmental report, if necessary, as determined by
FFCA in its sole discretion) for each of the Premises, the form, substance
and conclusions of which shall be
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satisfactory to FFCA in its sole discretion, and/or (ii) an Environmental
Policy with respect to each of the Premises, as determined by FFCA in its
sole discretion.
F. Zoning. Debtor shall have provided FFCA with evidence satisfactory
to FFCA that each of the Premises is properly zoned for use as a Permitted
Concept and that such use constitutes a legal, conforming use under
applicable zoning requirements.
G. Compliance With Representations, Warranties and Covenants. All
obligations of Debtor under this Agreement shall have been fully performed
and complied with, and no event shall have occurred or condition shall
exist which would, upon the Closing Date, or, upon the giving of notice
and/or passage of time, constitute a breach or default hereunder or under
the Loan Documents or any other agreement between or among FFCA, Debtor or
Lessee pertaining to the subject matter hereof, and no event shall have
occurred or condition shall exist or information shall have been disclosed
by Debtor or discovered by FFCA which has had or would have a material
adverse effect on the Premises, Debtor, Lessee or FFCA's willingness to
consummate the transaction contemplated by this Agreement, as determined by
FFCA in its sole and absolute discretion.
H. Proof of Insurance. Debtor shall have delivered to FFCA
certificates of insurance and copies of insurance policies showing that all
insurance required by the Loan Documents and providing coverage and limits
satisfactory to FFCA are in full force and effect.
I. Opinion of Counsel to Debtor and Lessee. Debtor and Lessee shall
have caused Counsel to prepare and deliver an opinion to FFCA in form and
substance satisfactory to FFCA and its counsel.
J. Availability of Funds. FFCA presently has sufficient funds to
discharge its obligations under this Agreement. In the event that the
transaction contemplated by this Agreement does not close on or before the
date established for Closing under Section 4(a) hereof, FFCA does not
warrant that it will thereafter have sufficient funds to consummate the
transaction contemplated by this Agreement.
K. Lease; Memoranda. Debtor and Lessee shall have executed and
delivered the Lease, and provided FFCA with a copy of a recorded memorandum
of lease (collectively, the "Memoranda") for each of the Premises.
L. Closing Documents. At or prior to the Closing Date, FFCA and/or
Debtor, as may be appropriate, shall execute and deliver or cause to be
executed and delivered to Title Company or FFCA, as may be appropriate, all
documents required to be delivered by this Agreement, and such other
documents, payments, instruments and certificates, as FFCA may require in
form acceptable to FFCA, including, without limitation, the following:
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(1) Notes;
(2) Mortgages;
(3) Proof of Insurance;
(4) Opinion of Counsel to Debtor and Lessee;
(5) Evidence of satisfactory zoning;
(6) UCC-1 Financing Statements;
(7) Environmental Indemnity Agreements; and
(8) Lease and Memoranda.
Upon fulfillment or waiver of all of the above conditions, FFCA shall deposit
funds necessary to close this transaction with the Title Company and this
transaction shall close in accordance with the terms and conditions of this
Agreement.
10. DEFAULT AND REMEDIES. A. Each of the following shall be deemed an
event of default by Debtor (each, an "Event of Default"):
(1) If any representation or warranty of Debtor or Lessee set forth in
any of the Loan Documents is false in any material respect, or if Debtor or
Lessee renders any false statement or account.
(2) If any principal, interest or other monetary sum due under the
Notes, the Mortgages or any other Loan Document is not paid within five
days after the date when due; provided, however, notwithstanding the
occurrence of such an Event of Default, FFCA shall not be entitled to
exercise its rights and remedies set forth below unless and until FFCA
shall have given Debtor notice thereof and a period of five days from the
delivery of such notice shall have elapsed without such Event of Default
being cured.
(3) If Debtor fails to observe or perform any of the other covenants
(except with respect to a breach of the Fixed Charge Coverage Ratio, which
breach is addressed in subitem (6) below), conditions, or obligations of
this Agreement; provided, however, if any such failure does not involve the
payment of any monetary sum, is not willful or intentional, does not place
any rights or interest in collateral of FFCA in immediate jeopardy, and is
within the reasonable power of Debtor to promptly cure after receipt of
notice thereof, all as determined by FFCA in its reasonable discretion,
then such failure shall not constitute an Event of Default hereunder,
unless otherwise expressly provided herein, unless and until FFCA shall
have given Debtor notice thereof and a period of 30 days shall have
elapsed, during which period Debtor may correct or cure such failure, upon
failure of which an Event of Default shall be deemed to have occurred
hereunder without further notice or demand of any kind being required. If
such failure cannot reasonably be cured within such 30-day period, as
determined by FFCA in its reasonable discretion, and Debtor is diligently
pursuing a cure of such failure, then Debtor shall have a reasonable period
to cure such failure beyond such 30-day period, which shall not exceed 90
days after receiving notice of the failure from FFCA. If Debtor shall fail
to correct or cure such failure within such 90-day period, an Event of
Default shall be deemed to have occurred hereunder without further notice
or demand of any kind being required.
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(4) If Debtor or Lessee becomes insolvent within the meaning of the
Code, files or notifies FFCA that it intends to file a petition under the
Code, initiates a proceeding under any similar law or statute relating to
bankruptcy, insolvency, reorganization, winding up or adjustment of debts
(collectively, an "Action"), becomes the subject of either a petition under
the Code or an Action, or is not generally paying its debts as the same
become due.
(5) If there is an "Event of Default" under any other Loan Document,
the Lease or a breach or default, after the passage of all applicable
notice and cure or grace periods, under any of the Other Agreements.
(6) If there is a breach of the Fixed Charge Coverage Ratio
requirement and FFCA shall have given Debtor notice thereof and Debtor
shall have failed within a period of 30 days from the delivery of such
notice to either (i) pay to FFCA the FCCR Amount (without premium or
penalty) with respect to such of the Premises (starting with the Premises
with the lowest Fixed Charge Coverage Ratio and proceeding in ascending
order to the Premises with the next lowest Fixed Charge Coverage Ratio) as
is necessary to cure the breach of the Fixed Charge Coverage Ratio
requirement and for which the then Fixed Charge Coverage Ratio (with the
definitions in Section 7.B being deemed to be modified as applicable to
provide for the calculation of the Fixed Charge Coverage Ratio for each
such Premises on an individual basis rather than on an aggregate basis with
the other Premises) is below 1.50:1 (each, a "Subject Premises"), (ii)
prepay the Note or Notes corresponding to the Subject Premises in whole but
not in part (without premium or penalty), or (iii) notify FFCA of Debtor's
election to substitute a Substitute Premises for each Subject Premises in
accordance with the terms of Section 13 (the failure of Debtor to complete
such substitution within 60 days after FFCA shall have given the notice
discussed above shall be deemed to be an Event of Default without further
notice or demand of any kind being required). For purposes of the preceding
sentence, "FCCR Amount" means that sum of money which, when subtracted from
the outstanding principal amount of the Note corresponding to a Subject
Premises, and assuming the resulting principal balance is reamortized in
equal monthly payments over the remaining term of such Note at the rate of
interest set forth therein, will result in an adjusted aggregate Fixed
Charge Coverage Ratio for all of the Premises of at least 1.50:1 based on
the prior year's operations. Promptly after Debtor's payment of the FCCR
Amount, Debtor and FFCA shall execute an amendment to each such Note in
form and substance reasonably acceptable to FFCA reducing the principal
amount payable to FFCA under such Note and reamortizing the principal
amount of such Note in equal monthly payments over the then remaining term
of such Note at the rate of interest set forth therein.
Notwithstanding the foregoing, to the extent that, in accordance with
the provisions of Section 7.B, FFCA shall have imposed an aggregate Fixed
Charge Coverage Ratio requirement with respect to all of the Premises
corresponding to the Loans in any Securitized Loan Pool, then, in order to
prevent an Event of Default from occurring by reason of a breach of such
aggregate Fixed Charge Coverage Ratio requirement, Debtor must either (i)
pay to FFCA the Modified FCCR Amount (without premium or penalty) within
the aforesaid 30 day period with respect to such of the Premises
corresponding to the Loans in such Securitized Loan Pool (starting with the
Premises with the lowest Fixed Charge Coverage Ratio and proceeding in
ascending order to the Premises with the next
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lowest Fixed Charge Coverage Ratio) as is necessary to cure the breach of
such aggregate Fixed Charge Coverage Ratio requirement and for which the
then Fixed Charge Coverage Ratio (with the definitions relating to the
Fixed Charge Coverage Ratio being deemed to be modified as applicable to
provide for the calculation of the Fixed Charge Coverage Ratio for each
such Premises on an individual basis rather than on an aggregate basis with
the other Premises corresponding to the Loans in such Securitized Loan
Pool) is below 1.50:1 (each a "Selected Premises"), (ii) prepay the Note or
Notes corresponding to the Selected Premises in whole but not in part
(without premium or penalty) within the aforesaid 30 day period, or (iii)
notify FFCA of Debtor's election to substitute a Substitute Premises for
each Selected Premises in accordance with the terms of Section 13 (the
failure of Debtor to complete such substitution within 60 days after FFCA
shall have given Debtor the notice discussed above shall be deemed to be an
Event of Default without further notice or demand of any kind being
required). For purposes of the preceding sentence, "Modified FCCR Amount"
means that sum of money which, when subtracted from the outstanding
principal amount of the Note corresponding to a Selected Premises, and
assuming the resulting principal balance is reamortized in equal monthly
payments over the remaining term of such Note at the rate of interest set
forth therein, will result in an adjusted aggregate Fixed Charge Coverage
Ratio for all of the Premises corresponding to the Loans in such
Securitized Loan Pool of at least 1.50:1 based on the prior year's
operations. Promptly after Debtor's payment of the Modified FCCR Amount,
Debtor and FFCA shall execute an amendment to each such Note in form and
substance reasonably acceptable to FFCA reducing the principal amount
payable to FFCA under such Note and reamortizing the principal amount of
such Note in equal monthly payments over the then remaining term of such
Note at the rate of interest set forth therein.
B. Upon the occurrence of an Event of Default, subject to the limitations
set forth in subsection A, FFCA may declare all or any part of the obligations
of Debtor under the Notes, this Agreement and any other Loan Document to be due
and payable, and the same shall thereupon become due and payable without any
presentment, demand, protest or notice of any kind except as otherwise expressly
provided herein, and Debtor hereby waives notice of intent to accelerate the
obligations secured by the Mortgages and notice of acceleration. Thereafter,
FFCA may exercise, at its option, concurrently, successively or in any
combination, all remedies available at law or in equity, including without
limitation any one or more of the remedies available under the Notes, the
Mortgages or any other Loan Document. Neither the acceptance of this Agreement
nor its enforcement shall prejudice or in any manner affect FFCA's right to
realize upon or enforce any other security now or hereafter held by FFCA, it
being agreed that FFCA shall be entitled to enforce this Agreement and any other
security now or hereafter held by FFCA in such order and manner as it may in its
absolute discretion determine. No remedy herein conferred upon or reserved to
FFCA is intended to be exclusive of any other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. Every power or remedy
given by any of the Loan Documents to FFCA, or to which FFCA may be otherwise
entitled, may be exercised, concurrently or independently, from time to time and
as often as may be deemed expedient by FFCA.
11. ASSIGNMENTS. A. FFCA may assign in whole or in part its rights under
this Agreement, including, without limitation, in connection with any Transfer,
Participation and/or
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Securitization. Upon any unconditional assignment of FFCA's entire right and
interest hereunder, FFCA shall automatically be relieved, from and after the
date of such assignment, of liability for the performance of any obligation of
FFCA contained herein.
B. Debtor shall not, without the prior written consent of FFCA, sell,
assign, transfer, mortgage, convey, encumber or grant any easements or other
rights or interests of any kind in the Premises, any of Debtor's rights under
this Agreement or any interest in Debtor, whether voluntarily, involuntarily or
by operation of law or otherwise, including, without limitation, by merger,
consolidation, dissolution or otherwise, except, subsequent to the Closing, as
expressly permitted by the Mortgages.
12. INDEMNITY. Debtor agrees to indemnify, hold harmless and defend FFCA
and its directors, officers, shareholders, employees, successors, assigns,
agents, contractors, subcontractors, experts, licensees, affiliates, lessees,
lenders, mortgagees, trustees and invitees, as applicable (collectively, the
"Indemnified Parties"), for, from and against any and all losses, costs, claims,
liabilities, damages and expenses, including, without limitation, reasonable
attorneys' fees and court costs, arising as the result of an Environmental
Condition and/or a breach of any of the representations, warranties, covenants,
agreements or obligations of Debtor set forth in this Agreement or any other
Loan Document. Without limiting the generality of the foregoing, such indemnity
shall include, without limitation, any engineering, governmental inspection and
reasonable attorneys' fees and expenses that the Indemnified Parties may incur
by reason of any representation set forth in this Agreement being false, or by
reason of any investigation or claim of any Governmental Authority in connection
therewith.
13. SUBSTITUTION. Debtor shall have the right to obtain a release of all
liens granted in favor of FFCA with respect to a Premises by substituting a
Substitute Premises for such Premises if permitted by the terms of Section
10.A(6), subject to fulfillment of the following conditions:
(i) Debtor shall provide FFCA with notice of its intention to
substitute a Substitute Premises within the applicable 30 day period
contemplated by Section 10.A(6) and the closing of the substitution shall
take place within the applicable 60 day period contemplated by such
subsection.
(ii) Debtor must provide for the substitution of a Substitute
Premises, and the proposed Substitute Premises must:
(1) be a Permitted Concept, in good condition and repair,
ordinary wear and tear excepted;
(2) have for the twelve month period preceding the date of the
closing of such substitution a Fixed Charge Coverage Ratio (with the
definitions of Section 7.B being deemed to be modified if necessary
and as applicable to provide for a calculation of the Fixed Charge
Coverage Ratio for each of the Premises on an individual basis rather
than on an aggregate basis with the other Premises) at least equal to
the Fixed Charge Coverage Ratio for the Premises being replaced and
the substitution must not cause a breach of any Fixed Charge Coverage
Ratio requirement otherwise set forth in this Agreement;
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(3) be owned in fee simple by Debtor;
(4) Debtor's right, title and interest in and to each proposed
Substitute Premises shall be free and clear of all liens,
restrictions, easements and encumbrances, except such matters as are
acceptable to FFCA (the "Substitute Premises Permitted Exceptions");
and
(5) have a fair market value no less than the greater of the
then fair market value of the Premises to be replaced or the fair
market value of such Premises as of the Closing, all as reasonably
determined by FFCA's in-house inspectors and underwriters.
(iii) FFCA shall have inspected and approved the Substitute Premises
utilizing FFCA customary site inspection and underwriting approval
criteria. Debtor shall have reimbursed FFCA for all of its actual
out-of-pocket costs and expenses incurred with respect to such proposed
substitution, including, without limitation, FFCA's third-party and/or
in-house site inspectors' costs and expenses with respect to the proposed
Substitute Premises. Debtor shall be solely responsible for the payment of
all costs and expenses resulting from such proposed substitution,
including, without limitation, the cost of title insurance and
endorsements, survey charges, stamp taxes, mortgage taxes, transfer fees,
escrow and recording fees, the cost of environmental reports and/or
environmental insurance and the attorneys' fees and expenses of counsel to
Debtor and FFCA.
(iv) FFCA shall have received a preliminary title report and
irrevocable commitment to insure title in the amount of the then
outstanding principal balance of the Loan relating to the Premises to be
replaced by means of a mortgagee's ALTA extended coverage policy of title
insurance (or its equivalent, in the event such form is not issued in the
jurisdiction where the proposed Substitute Premises is located) for such
proposed Substitute Premises issued by Title Company showing good and
marketable title in Debtor and committing to insure FFCA's first priority
lien upon and security interest in the proposed Substitute Premises,
subject only to the Substitute Premises Permitted Exceptions and containing
endorsements substantially comparable to those required by FFCA at the
Closing.
(v) FFCA shall have received a current ALTA survey of such proposed
Substitute Premises, the form of which shall be comparable to those
received by FFCA at the Closing and sufficient to cause the standard survey
exceptions set forth in the title policy referred to in the preceding
subsection to be deleted, and disclosing no matters other than the
Substitute Premises Permitted Exceptions.
(vi) FFCA shall have received a Phase I environmental report (and a
Phase II environmental report, if necessary, as determined by FFCA in its
sole discretion) and/or an environmental insurance policy with respect to
such proposed Substitute Premises, which (A) environmental report(s) shall
conform in scope to the then customary standards for lenders making loans
secured by commercial real estate, which shall conclude that there is no
Environmental Condition affecting the proposed Substitute Premises, and (B)
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environmental insurance policy shall be in form and substance and issued by
such environmental insurance company as is acceptable to FFCA in its sole
discretion.
(vii) Debtor shall deliver, or cause to be delivered, with respect to
Debtor, Lessee and the Substitute Premises, opinions of Counsel in form and
substance comparable to those received at Closing (but also addressing such
matters unique to the Substitute Premises as may be reasonably required by
FFCA).
(viii) no Event of Default shall have occurred under any of the Loan
Documents.
(ix) Debtor and Lessee shall have executed such documents as are
comparable to the security documents executed and delivered at Closing, as
applicable (but with such revisions as may be reasonably required by FFCA
to address matters unique to the Substitute Premises) or amendments to such
documents, including, without limitation, a Mortgage; Lease and UCC-1
Financing Statements (the "Substitute Documents"), to provide FFCA with a
first priority lien on the proposed Substitute Premises (or with respect to
proposed Substitute Premises subject to ground leases, a first priority
lien on the improvements located at such proposed Substitute Premises and
Debtor's leasehold interest in the land thereunder), subject only to the
Substitute Premises Permitted Exceptions, and all other rights, remedies
and benefits with respect to the proposed Substitute Premises which FFCA
holds in the Premises to be replaced, all of which documents shall be in
form and substance reasonably satisfactory to FFCA.
(x) the representations and warranties set forth in the Substitute
Documents and Section 6 of this Agreement applicable to the proposed
Substitute Premises shall be true and correct in all material respects as
of the date of substitution (with appropriate modifications consistent with
the foregoing provisions of this Section to reflect proposed Substitute
Premises subject to ground leases), and Debtor shall have delivered to FFCA
an officer's certificate certifying to that effect.
(xi) Debtor shall have delivered to FFCA certificates of insurance
and insurance policies showing that insurance required by the Substitute
Documents is in full force and effect.
Upon satisfaction of the foregoing conditions with respect to the release of a
Premises:
(a) the proposed Substitute Premises shall be deemed substituted
for the Premises to be replaced;
(b) the Loan Amount for the Substitute Premises shall be the same
as for the replaced Premises;
(c) the Substitute Premises shall be referred to herein as a
"Premises" and included within the definition of "Premises" and shall
secure the same Obligations (as defined in the Mortgages) as were secured
by the Premises that were replaced;
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(d) the Substitute Documents shall be dated as of the date of the
substitution; and
(e) FFCA will release, or cause to be released, the lien of the
applicable Mortgage, UCC-1 Financing Statements and any other Loan
Documents encumbering the replaced Premises.
14. MISCELLANEOUS PROVISIONS.
A. Notices. All notices, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this Agreement
shall be in writing and given by (i) hand delivery, (ii) facsimile (with a copy
by overnight delivery service), (iii) express overnight delivery service or (iv)
certified or registered mail, return receipt requested, and shall be deemed to
have been delivered upon (a) receipt, if hand delivered, (b) transmission, if
delivered by facsimile, (c) the next Business Day, if delivered by express
overnight delivery service, or (d) the third Business Day following the day of
deposit of such notice with the United States Postal Service, if sent by
certified or registered mail, return receipt requested. Notices shall be
provided to the parties and addresses (or facsimile numbers, as applicable)
specified below:
If to Debtor: MinWood Partners, Inc.
7657 Anagram Drive
Eden Prairie, MN 55344
Attention: John Doll
Telephone: (612) 294-1305
Telecopy: (612) 294-1323
If to FFCA: Dennis L. Ruben, Esq.
Executive Vice President and General Counsel
FFCA Acquisition Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (480) 585-4500
Telecopy: (480) 585-2226
B. Real Estate Commission. FFCA and Debtor represent and warrant
to each other that they have dealt with no real estate or mortgage broker,
agent, finder or other intermediary in connection with the transactions
contemplated by this Agreement. FFCA and Debtor shall indemnify and hold
each other harmless from and against any costs, claims or expenses,
including attorneys' fees, arising out of the breach of their respective
representations and warranties contained within this Section.
C. Waiver and Amendment. No provisions of this Agreement shall be
deemed waived or amended except by a written instrument unambiguously
setting forth the matter waived or amended and signed by the party against
which enforcement of such waiver or amendment is sought. Waiver of any
matter shall not be deemed a waiver of the same or any other matter on any
future occasion.
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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. FFCA's Liability. 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 FFCA, that (i) there shall be absolutely no personal liability on the
part of any shareholder, director, officer or employee of FFCA, with
respect to any of the terms, covenants and conditions of this Agreement or
the other Loan Documents, (ii) Debtor waives all claims, demands and causes
of action against FFCA's officers, directors, employees and agents in the
event of any breach by FFCA of any of the terms, covenants and conditions
of this Agreement or the other Loan Documents to be performed by FFCA and
(iii) Debtor shall look solely to the assets of FFCA for the satisfaction
of each and every remedy of Debtor in the event of any breach by FFCA of
any of the terms, covenants and conditions of this Agreement or the other
Loan Documents to be performed by FFCA, such exculpation of liability to be
absolute and without any exception whatsoever.
F. Severability. The provisions of this Agreement shall be deemed
severable. If any part of this Agreement shall be held unenforceable, the
remainder shall remain in full force and effect, and such unenforceable
provision shall be reformed by such court so as to give maximum legal
effect to the intention of the parties as expressed therein.
G. Construction Generally. This is an agreement between parties
who are experienced in sophisticated and complex matters similar to the
transaction contemplated by this Agreement and is entered into by both
parties in reliance upon the economic and legal bargains contained herein
and shall be interpreted and construed in a fair and impartial manner
without regard to such factors as the party which prepared the instrument,
the relative bargaining powers of the parties or the domicile of any party.
Debtor and FFCA were each represented by legal counsel competent in
advising them of their obligations and liabilities hereunder.
H. Other Documents. Each of the parties agrees to sign such other
and further documents as may be appropriate to carry out the intentions
expressed in this Agreement.
I. Attorneys' Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement, the
prevailing party shall be entitled to recover its attorneys' fees and other
costs in addition to any other relief to which it may be entitled.
References in this Agreement to the attorneys' fees and/or costs of FFCA
shall mean both the fees and costs of independent outside counsel retained
by FFCA with respect to this transaction and the fees and costs of FFCA's
in-house counsel incurred in connection with this transaction.
J. Entire Agreement. This Agreement and the other Loan Documents,
together with any other certificates, instruments or agreements to be
delivered in connection therewith, constitute the entire agreement between
the parties with respect to the subject matter hereof, and there are no
other representations, warranties or agreements, written or
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oral, between Debtor, Lessee and FFCA with respect to the subject matter of
this Agreement. Notwithstanding anything in this Agreement to the contrary,
upon the execution and delivery of this Agreement by Debtor and FFCA, the
Commitment shall be deemed null and void and of no further force and effect
and the terms and conditions of this Agreement shall control
notwithstanding that such terms and conditions may be inconsistent with or
vary from those set forth in the Commitment.
K. Forum Selection; Jurisdiction; Venue; Choice of Law. Debtor
acknowledges that this Agreement was substantially negotiated in the State
of Arizona, the Agreement was signed by FFCA in the State of Arizona and
delivered by Debtor in the State of Arizona, all payments under the Notes
will be delivered in the State of Arizona and there are substantial
contacts between the parties and the transactions contemplated herein and
the State of Arizona. For purposes of any action or proceeding arising out
of this Agreement, the parties hereto hereby expressly submit to the
jurisdiction of all federal and state courts located in the State of
Arizona and Debtor consents that it may be served with any process or paper
by registered mail or by personal service within or without the State of
Arizona in accordance with applicable law. Furthermore, Debtor waives and
agrees not to assert in any such action, suit or proceeding that it is not
personally subject to the jurisdiction of such courts, that the action,
suit or proceeding is brought in an inconvenient forum or that venue of the
action, suit or proceeding is improper. It is the intent of the parties
hereto that all provisions of this Agreement shall be governed by and
construed under the laws of the State of Arizona, without giving effect to
its principles of conflicts of law. To the extent that a court of competent
jurisdiction finds Arizona law inapplicable with respect to any provisions
hereof, then, as to those provisions only, the laws of the states where the
Premises are located shall be deemed to apply. Nothing in this Section
shall limit or restrict the right of FFCA to commence any proceeding in the
federal or state courts located in the states in which the Premises are
located to the extent FFCA deems such proceeding necessary or advisable to
exercise remedies available under this Agreement or the other Loan
Documents.
L. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of Debtor and FFCA and their respective successors and
permitted assigns, including, without limitation, any United States
trustee, any debtor in possession or any trustee appointed from a private
panel.
N. Survival. Except for the conditions of Closing set forth in
Section 9, which shall be satisfied or waived as of the Closing Date, all
representations, warranties, agreements, obligations and indemnities of
Debtor and FFCA set forth in this Agreement shall survive the Closing.
O. Waiver of Jury Trial and Punitive, Consequential, Special and
Indirect Damages. DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
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PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN
OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER
MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT
OF THEIR BARGAIN. FURTHERMORE, DEBTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL,
SPECIAL AND INDIRECT DAMAGES FROM FFCA AND ANY OF FFCA'S AFFILIATES,
OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO
ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY DEBTOR AGAINST FFCA OR ANY OF FFCA'S AFFILIATES,
OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO
ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY DEBTOR OF ANY
RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT
DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL
ASPECT OF THEIR BARGAIN.
P. Transfers, Participations and Securitization. (1) A material
inducement to FFCA's willingness to complete the transactions contemplated
by the Loan Documents is Debtor's agreement that FFCA may, at any time,
sell, transfer or assign any Note, Mortgage and/or any of the other Loan
Documents, and any or all servicing rights with respect thereto (each, a
"Transfer"), or grant participations in any Note, Mortgage and/or any of
the other Loan Documents (each, a "Participation"), or complete a
Securitization with respect to any Note, Mortgage and/or any of the other
Loan Documents.
(2) Debtor agrees to cooperate in good faith with FFCA in
connection with any such Transfer, Participation and/or Securitization of
any Note, Mortgage and/or any of the other Loan Documents, including,
without limitation, (i) providing such documents, financial and other data,
and other information and materials (the "Disclosures") which would
typically be required with respect to Debtor and Lessee by a purchaser,
transferee, assignee, servicer, participant, investor or rating agency
involved with respect to such Transfer, Participation and/or
Securitization, as applicable; provided, however, Debtor and Lessee shall
not be required to make Disclosures of any confidential information or any
information which has not previously been made public unless required by
applicable federal or state securities laws; and (ii) amending the terms of
the transactions evidenced by the Loan Documents to the extent necessary so
as to satisfy the requirements of purchasers, transferees, assignees,
servicers, participants, investors or selected rating agencies involved in
any such Transfer, Participation or Securitization, so long as such
amendments would not have a material adverse effect (financial or
otherwise) upon Debtor and Lessee or the transactions contemplated
hereunder.
(3) Debtor consents to FFCA providing the Disclosures, as well as
any other information which FFCA may now have or hereafter acquire with
respect to the Premises or
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the financial condition of Debtor and Lessee to each purchaser, transferee,
assignee, servicer, participant, investor or rating agency involved with
respect to such Transfer, Participation and/or Securitization, as
applicable. FFCA and Debtor (and their respective Affiliates) shall each
pay their own attorneys fees and other out-of-pocket expenses incurred in
connection with the performance of their respective obligations under this
Section.
(4) Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents:
(a) a breach or default, after the passage of all applicable
notice and cure or grace periods, under any Loan Document, Lease or
Other Agreement which relates to a loan or sale/leaseback transaction
which has not been the subject of a Securitization shall not
constitute an Event of Default or a breach or default, as applicable,
under any Loan Document or Other Agreement which relates to a loan
which has been the subject of a Securitization;
(b) a breach or default, after the passage of all applicable
notice and cure or grace periods, under any Loan Document, Lease or
Other Agreement which relates to a loan which is included in any
Securitized Loan Pool shall not constitute an Event of Default or a
breach or default, as applicable, under any Loan Document or Other
Agreement which relates to a loan which is included in any other
Securitized Loan Pool;
(c) the Loan Documents corresponding to the Notes in any
Securitized Loan Pool shall not secure the obligations of any of the
Debtor Entities contained in any Loan Document or Other Agreement
which does not correspond to a loan in such Securitized Loan Pool; and
(d) the Loan Documents and Other Agreements which do not
correspond to a loan in any Securitized Loan Pool shall not secure the
obligations of any of the Debtor Entities contained in any Loan
Document or Other Agreement which does correspond to a loan in such
Securitized Loan Pool.
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IN WITNESS WHEREOF, Debtor and FFCA have entered into this Agreement as of
the date first above written.
FFCA ACQUISITION CORPORATION,
a Delaware corporation
By: /s/ Patrick J. Feltes
----------------------------------
Printed Name: Patrick J. Feltes
------------------------
Title: VP
-------------------------------
DEBTOR:
MINWOOD PARTNERS, INC.,
a Delaware corporation
By: /s/ Martin J. O'Dowd
----------------------------------
Printed Name: Martin J. O'Dowd
------------------------
Title: Director
-------------------------------
33
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on January 18, 2000 by
Patrick J. Feltes, VP of FFCA Acquisition Corporation, a Delaware corporation,
on behalf of the corporation.
/s/ Kristi A. Lyons
-------------------------------------
Notary Public
My Commission Expires:
2/20/02
- ----------------------------
STATE OF Minnesota
-------------------)
COUNTY OF Hennepin )SS.
-------------------)
The foregoing instrument was acknowledged before me on January 17, 2000 by
Martin J. O'Dowd, Director of MinWood Partners, Inc., a Delaware corporation, on
behalf of the corporation.
/s/ Rita A. Witting
-------------------------------------
Notary Public
My Commission Expires:
1/31/05
- ----------------------------
34
EXHIBIT A
DESCRIPTION OF PREMISES; ALLOCATED LOAN AMOUNT
FFCA NO. ADDRESS AMOUNT
- -------- ------- ------
8001-0988 14601 Highway 7 $2,000,000.00
Minnetonka, MN
8001-0990 1940 Donegal Drive $1,800,000.00
Woodbury, MN