1
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of August 4, 2000, by
and between FFCA FUNDING CORPORATION, a Delaware corporation ("FFCA"), whose
address is 17207 North Perimeter Drive, Scottsdale, Arizona 85255, and FDA
PROPERTIES, 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.
2
"Commitment" means that certain Commitment Letter dated June 16, 2000
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.
"Default Rate" has the meaning set forth in the Notes.
"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.
2
3
"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 Amounts for all of 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.
3
4
"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 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, permitted assigns or any lessee subsequently agreed in
writing by FFCA.
"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.
4
5
"Loan Pool" means:
(i) in the context of a Securitzation, any pool or group of loans that
are a part of such Securitization;
(ii) in the context of a Transfer, all loans which are sold,
transferred or assigned to the same transferee; and
(iii) in the context of a Participation, all loans as to which
participating interests are granted to the same participant.
"Lost Note" has the meaning set forth in Section 7.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" means one or more grants by FFCA or any of the other
FFCA Entities to a third party of a participating interest in notes evidencing
obligations to repay secured or unsecured loans owned by FFCA or any of the
other FFCA Entities or any and all servicing rights with respect thereto.
5
6
"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 "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.
"Selected Premises" has the meaning set forth in Section 10.A(6).
6
7
"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 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" means one or more sales, transfers or assignments by FFCA or
any of the other FFCA Entities to a third party of notes evidencing obligations
to repay secured or unsecured loan owned by FFCA or any of the other FFCA
Entities or any and all servicing rights with respect thereto.
"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 $3,500,000.00 allocated among the
Premises as set forth on the attached Exhibit A. The Loans shall be advanced at
the Closing in cash or otherwise immediately available funds subject to any
prorations and adjustments required by this Agreement. 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).
7
8
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
August 31, 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, 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
8
9
is authorized to act upon any statement furnished by the holder or payee, or a
collection agent for the holder or payee, of any lien on or charge or assessment
in connection with the Premises, concerning the amount of such charge or
assessment or the amount secured by such lien, without liability or
responsibility for the accuracy of such statement. The employment of Title
Company as escrow agent shall not affect any rights of subrogation under the
terms of any title insurance policy issued pursuant to the provisions thereof.
5. REPRESENTATIONS AND WARRANTIES OF FFCA. The representations and
warranties of FFCA contained in this Section are being made by FFCA as of the
date of this Agreement and the Closing Date to induce Debtor to enter into this
Agreement and consummate the transactions contemplated herein, and Debtor has
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. FFCA represents and
warrants to Debtor as follows:
A. Organization of FFCA. FFCA has been duly formed, is validly
existing and has taken all necessary action to authorize the execution,
delivery and performance by FFCA of this Agreement.
B. Authority of FFCA. The person who has executed this
Agreement on behalf of FFCA is duly authorized so to do.
C. Enforceability. Upon execution by FFCA, this Agreement
shall constitute the legal, valid and binding obligation of FFCA,
enforceable against FFCA in accordance with its terms.
All representations and warranties of FFCA made in this Agreement shall
survive the Closing.
6. REPRESENTATIONS AND WARRANTIES OF DEBTOR. The representations and
warranties of Debtor contained in this Section are being made by Debtor as of
the date of this Agreement and the Closing Date to induce FFCA to enter into
this Agreement and consummate the transactions contemplated herein, and FFCA has
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. Debtor represents and
warrants to FFCA as follows:
A. Information and Financial Statements. Debtor has delivered
to FFCA financial statements (either audited financial statements or,
if Debtor does not have audited financial statements, certified
financial statements) and certain other information 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.
9
10
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.
(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.
10
11
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.
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
11
12
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.
FFCA has charged Debtor a fee for the Environmental Policies.
Debtor acknowledges that the Environmental Policies are for the sole
protection of FFCA and will not protect Debtor or provide Debtor with
any charge thereunder.
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
12
13
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.
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
13
14
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 corporate
organizational documents and has observed all necessary, appropriate
and customary formalities.
(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
14
15
(including, without limitation, any of the foregoing information stored
in any computer files), (ii) allow such persons to make such
inspections, tests, copies, and verifications as FFCA considers
necessary, and (iii) if Debtor is in breach of the Fixed Charge
Coverage Ratio requirement set forth in the following Subsection B
beyond applicable notice and cure periods, pay expenses reasonably
incurred by FFCA from time to time in conducting such inspections,
tests, copies and verifications upon demand (such amounts to bear
interest at the Default Rate if not paid upon demand until paid).
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 1.25:1, 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 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.
15
16
"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.
"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 (each such Loan to be endorsed by a Note and by the
Loan Documents corresponding to such Note) into one or more Loan Pools
in connection with one or more Securitizations, Participations or
Transfers. If any Loan Pool does not include all of the Loans, Debtor
shall maintain with respect to the Loans in each Loan Pool an aggregate
Fixed Charge Coverage Ratio, as determined on the date set forth above,
of at least 1.25:1 for all of the Premises corresponding to the Loans
in such 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 1:25:1 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 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
16
17
as applicable to provide for the calculation of the aggregate Fixed
Charge Coverage Ratio for all of the Premises corresponding to such
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.
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.
17
18
(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.
(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 corporate
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
18
19
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.
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,
19
20
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
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)
20
21
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:
(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
21
22
herein, unless and until FFCA shall have given Debtor notice thereof
and a period of 30 days shall have elapsed, during which period Debtor
may correct or cure such failure, upon failure of which an Event of
Default shall be deemed to have occurred hereunder without further
notice or demand of any kind being required. If such failure cannot
reasonably be cured within such 30-day period, as determined by FFCA in
its reasonable discretion, and Debtor is diligently pursuing a cure of
such failure, then Debtor shall have a reasonable period to cure such
failure beyond such 30-day period, which shall not exceed 90 days after
receiving notice of the failure from FFCA. If Debtor shall fail to
correct or cure such failure within such 90-day period, an Event of
Default shall be deemed to have occurred hereunder without further
notice or demand of any kind being required.
(4) If Debtor 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 1.25:1
(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 1.25:1 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
22
23
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 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
Loan Pool (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 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
1.25:1 (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 Loan Pool
of at least 1.25:1 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
23
24
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 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:
24
25
(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;
(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.
25
26
(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) 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.
26
27
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;
(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: FDA Properties, Inc.
7657 Anagram Drive
Eden Prairie, MN 55344
Attention: Chief Financial Officer
Telephone: (612) 294-1305
Telecopy: (612) 294-1323
If to FFCA: Dennis L. Ruben, Esq.
Executive Vice President, General Counsel
and Secretary
FFCA Funding Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (480) 585-4500
Telecopy: (480) 585-2226
27
28
B. Real Estate Commission. FFCA and Debtor represent and
warrant to each other that they have dealt with no real estate or
mortgage broker, agent, finder or other intermediary in connection with
the transactions contemplated by this Agreement. FFCA and Debtor shall
indemnify and hold each other harmless from and against any costs,
claims or expenses, including attorneys' fees, arising out of the
breach of their respective representations and warranties contained
within this Section.
C. Waiver and Amendment. No provisions of this Agreement shall
be deemed waived or amended except by a written instrument
unambiguously setting forth the matter waived or amended and signed by
the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same
or any other matter on any future occasion.
D. Captions. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any manner
in the construction or interpretation hereof.
E. 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.
28
29
I. Attorneys' Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement,
the prevailing party shall be entitled to recover its attorneys' fees
and other costs in addition to any other relief to which it may be
entitled. References in this Agreement to the attorneys' fees and/or
costs of FFCA shall mean both the fees and costs of independent outside
counsel retained by FFCA with respect to this transaction and the fees
and costs of FFCA's in-house counsel incurred in connection with this
transaction.
J. Entire Agreement. This Agreement and the other Loan
Documents, together with any other certificates, instruments or
agreements to be delivered in connection therewith, constitute the
entire agreement between the parties with respect to the subject matter
hereof, and there are no other representations, warranties or
agreements, written or oral, between Debtor, 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,
29
30
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, 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, complete a Transfer, Participation or Securitization with
respect to any Note, Mortgage and/or any of the other Loan Documents or
any or all servicing rights with respect thereto.
(2) Debtor agrees to cooperate in good faith with FFCA in
connection with any such Transfer, Participation and/or Securitization
of any Note, Mortgage and/or any of the other Loan Documents, or any or
all servicing rights with respect thereto, including, without
limitation, (i) providing such documents, financial and other data, and
other information and materials (the "Disclosures") which would
typically be required with respect to Debtor 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
30
31
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 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;
provided, however, subsequent to the first such Transfer,
Participation and/or Securitization, FFCA will pay Debtor's reasonable
attorneys' fees and other out-of-pocket expenses in connection with
such subsequent Transfer, Participation and/or Securitization.
(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, Participation or Transfer shall not
constitute an Event of Default or a breach or default, as
applicable, under any Loan Document or Other Agreement which
relates to a loan which has been the subject of a
Securitization, Participation or Transfer;
(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 Loan Pool shall not constitute an
Event of Default or a breach or default, as applicable, under
any Loan Document or Other Agreement which relates to a loan
which is included in any other Loan Pool;
(c) the Loan Documents corresponding to the Notes in
any Loan Pool shall not secure the obligations of any of the
Debtor Entities contained in any Loan Document or Other
Agreement which does not correspond to a loan in such Loan
Pool; and
(d) the Loan Documents and Other Agreements which do
not correspond to a loan in any Loan Pool shall not secure
the obligations of any of the Debtor Entities contained in
any Loan Document or Other Agreement which does correspond to
a loan in such Loan Pool.
31
32
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: President
-----------------------------------
33
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on July 26, 2000 by
Patrick J. Feltes, Vice President of FFCA Funding Corporation, a Delaware
corporation, on behalf of the corporation.
/s/ Kelly A. Hallford
--------------------------------
Notary Public
My Commission Expires:
7/9/2002
- -------------------------
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on July 25, 2000 by
Martin J. O'Dowd, President of FDA Properties, 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
8001-1612 1631 West Lake Street $1,600,000.00
Addison, IL
8001-1614 2750 Pine Lake Road $1,900,000.00
Lincoln, NE
35
EXHIBIT A-1
LEGAL DESCRIPTION