Exhibit 10.7
Form of 44 Secured Promissory
Notes by FFP Operating Partners, L.P.
Payable to Franchise Mortgage Acceptance Company
Dated June 30, 1999,
Relating to refinancing of 44 Convenience Stores
[Fixed rate term loan]
Pay to the order of ------------------------------ without recourse.
FRANCHISE MORTGAGE ACCEPTANCE COMPANY, a Delaware corporation
By:---------------------------------------
Name:-------------------------------------
Its:--------------------------------------
Secured Promissory Note
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Principal Amount: $143,000.00 Date: June ---, 1998
Interest Rate: 8.66%
First Payment Date: August 1, 1998 Facility:
Station No. 5101
1890 Del Rio Boulevard
Eagle Pass, Texas 78852
Maturity Date: July 1, 2013
Regular Monthly Payment Amount: $1,421.62
(based on 15-year amortization schedule)
Borrower: Address:
FFP Operating Partners, L.P., a Delaware 2801 Glenda Avenue
limited partnership Fort Worth, Texas 76117-4391
Lender: Address:
Franchise Mortgage Acceptance Company, a Three American Lane
Delaware corporation Greenwich, CT 06831
===============================================================================
FOR VALUE RECEIVED, the Borrower promises to pay to the order of the Lender
the Principal Amount specified above, together with interest, according to the
following terms and conditions:
1. DEFINITIONS. Capitalized terms used but not defined in this Note shall
have the meanings given to them in the Loan Agreement. Capitalized terms in the
box above are defined as they there appear. In addition, the following terms
mean:
"Closed Period": As defined in Section 2.5.
"Default Event": Any Default Event as defined in Section 4 of this Note or in
the Loan Agreement, the Indenture or any other Loan Document.
"Default Rate": An annual interest rate equal to the lesser of: (i) two (2)
percentage points over the Loan Rate; or (ii) the highest interest rate allowed
by applicable law.
"Defeasance Amount": As defined in Section 2.6.1.
"Guarantor": Every Person signing and delivering a Guaranty, together with
any other Person besides the Borrower who is or may subsequently become liable,
directly or indirectly, in respect of any of the Obligations as maker,
guarantor, surety, accommodation party, coindorser or in any similar capacity.
"Guaranty": The Guaranty, if any, dated today's date, made by one or more
Affiliates of the Borrower or other Persons (and if more than one, jointly and
severally) to the Lender, together with any subsequent guaranty, indorsement or
other undertaking by which any Person guarantees or assumes responsibility in
any capacity for the payment or performance of any of the Obligations.
"Lender": Franchise Mortgage Acceptance Company, a Delaware corporation, and
its successors in interest and assigns, including all Persons holding or
acquiring an interest in this Note or the other Loan Documents as participants
or otherwise.
"Loan Agreement": The "Loan and Security Agreement" signed and delivered
concurrently with this Note by the Borrower as debtor to the Lender as secured
party, as may be amended, recast or extended from time to time.
"Loan Documents": This Note, the Loan Agreement, the Indenture and any
Guaranty, each as may be amended, recast or extended from time to time, and all
other documents, assignments, mortgages, guaranties, certificates,
certifications and agreements of any kind relating to the Obligations, whether
signed or delivered concurrently with or subsequent to this Note.
"Loan Rate": An annual interest rate equal to the lesser of: (i) the
"Interest Rate" as specified in the heading of this Note; or (ii) the highest
interest rate allowed by applicable law.
"Make-Whole Premium": As defined in Section 2.5.1.
"Note": This Secured Promissory Note, as may be amended, recast, renewed,
replaced or extended from time to time.
"Obligations": All indebtedness and all liability, responsibility and
obligation of the Borrower, each Guarantor or any of their respective Affiliates
to the Lender or to any of the Lender's Affiliates for payment or performance,
whether accrued or contingent, whether direct or indirect, and whether incurred
in the capacity of maker, co-indorser or obligor or as surety, guarantor or in
any other capacity, under: (i) this Note, (ii) the Loan Agreement, (iii) the
Indenture, (iv) each Guaranty, (v) the other Loan Documents, or (vi) any other
present or future agreement, commitment, undertaking, instrument or obligation
of the Borrower to the Lender or any Affiliate of the Lender with respect to the
Facility, including any future advances (whether or not pursuant to a written
commitment); in each case whether due or to become due or whether now existing
or subsequently incurred or arising. The term "Obligations" specifically
includes but is in no way limited to principal, accrued interest and late
payment processing fees under this Note, all advances made by or on behalf of
the Lender under the Loan Agreement, the Indenture or any other Loan Document,
and all collection and other costs and expenses incurred by or on behalf of the
Lender.
"Treasury Rate": As determined by the Lender, the yield-to-maturity implied
by the monthly equivalent of the yield for actively traded United States
Treasury Securities having a constant maturity equal to the Weighted Average
Life, as reported on the display at "Page 678" of the Telerate Service (or such
other display as may replace Page 678 on the Telerate Service) as of 10:00 a.m.
New York City time on the business day immediately preceding (i) the date of
this Note, (ii) the acceleration date or (iii) the Make-Whole Premium payment
date, in each case as the context of this Note shall specify (the "Reference
Date"). If such yield-to-maturity information is not available or is not
ascertainable from the Telerate Service as of the business day before the
Reference Date, then the Lender shall select the Treasury Constant Maturity
Series yield for actively traded United States Treasury Securities having a
constant maturity equal to the Weighted Average Life, as quoted in Federal
Reserve Statistical Release H.15 (519) (or a comparable successor publication)
for the latest day for which such yields have been reported as of the business
day immediately preceding the Reference Date. In the event that such quotations
are no longer available, then the Lender shall, in the Lender's sole discretion,
select a reasonable alternative reference index.
"Weighted Average Life": The weighted average life of the Obligation
represented by this Note, which shall be the number of years (rounded to the
nearest one-twelfth (1/12th)) equal to the quotient obtained by dividing:
(i) The Principal Amount as of the date of this Note
into
(ii) The sum of the series of individual products obtained by multiplying (x)
the principal portion (exclusive of interest) of each Regular Monthly Payment
Amount and any final payment amount (derived in each case by using the
amortization schedule specified in the heading of this Note and assuming that
all Regular Monthly Payment Amounts are paid as and when due) by (y) the number
of years (calculated to the nearest one-twelfth (1/12th) between [the first day
of the first calendar month following date of Note or, if Note is dated as of
the first of a calendar month, the Note date] and the scheduled due date of such
Regular Monthly Payment Amount or final payment.
"U.S. Obligations": As defined in Section 2.6.2.
2. PAYMENT TERMS. The Borrower shall pay this Note as follows:
2.1. Loan Rate. Subject to the provisions of Section 2.8, the Principal
Amount of this Note outstanding from time to time shall accrue interest starting
from the date of this Note at the Loan Rate. Interest at the Loan Rate shall be
calculated based on the actual number of days elapsed over a 360-day year
consisting of twelve 30-day months, unless such calculation would result in a
usurious rate of interest, in which case the interest shall be calculated on a
per annum basis of three hundred sixty-five (365) or three hundred sixty-six
(366) days per year, as the case may be.
2.2. Regular Monthly Payments; Today's Payments. The Borrower shall make
fixed monthly payments of principal and interest in the "Regular Monthly Payment
Amount" as specified in the heading of this Note. Payment is due on the first
day of each calendar month, starting on the "First Payment Date" as specified in
the heading of this Note. The Regular Monthly Payment Amount has been calculated
based on the amortization schedule specified in the heading of this Note.
2.2.1. All payments shall be made in United States dollars at whatever
location the Lender designates. Until further notice from the Lender, all
Regular Monthly Payment Amounts shall be paid by automatic direct debit against
the Borrower's designated bank account on each monthly payment date. The
Borrower shall sign and deliver such Automated Clearing House (ACH) debit
instructions, authorizations and other documents as the Lender may require from
time to time in order to implement the direct debit arrangements.
2.2.2. Concurrently with this Note, the Borrower has paid in advance: (i) (if
this Note is dated other than the first day of a calendar month) interest on the
outstanding Principal Amount at the Loan Rate for the period starting on the
date of this Note through the last day of the same calendar month; plus (ii) the
Regular Monthly Payment Amount for the first full calendar month following the
month in which the Loan is made (if this Note is dated on the first day of a
calendar month) or for the second full calendar month following the month in
which the Loan is made (if this Note is dated other than the first day of a
calendar month).
2.3. Application of Payments. Unless the Lender elects otherwise, all
payments on account of this Note shall be applied first to late payment
processing charges, next to accrued and unpaid interest, and only then to reduce
principal. However, if the Lender has advanced any costs or expenses under this
Note, the Loan Agreement, the Indenture or any other Loan Document, the Lender
shall have the option to apply the payment first to reimburse the Lender for
such costs or expenses. If after being so applied the Borrower's payment is less
than the Regular Monthly Payment Amount due in accordance with Section 2.2, the
Borrower shall pay the deficiency to the Lender upon demand.
2.4. Maturity Date. This Note matures on the "Maturity Date", as specified in
the heading of this Note. On the Maturity Date, the entire outstanding principal
balance, together with accrued and unpaid interest and all other amounts owed
pursuant to this Note, the Loan Agreement, the Indenture and the other Loan
Documents, shall be due and payable in full.
2.5. Closure to Prepayment. This Note shall be closed to all prepayment for
a period starting on the date of this Note and ending on the last day of the
eighty-fourth (84th) full calendar month following the date of this Note (the
"Closed Period"). During the Closed Period, the Borrower shall have absolutely
no right to tender, and the Lender shall have absolutely no obligation to
accept, voluntary prepayment of this Note in whole or in part.
2.5.1. In the event of acceleration of this Note during the Closed Period by
reason of the occurrence of a Default Event or otherwise, then in addition to
paying off the outstanding Principal Amount, together with accrued and unpaid
interest (at the Default Rate from and after the Default Event), unpaid late
payment processing fees, unreimbursed costs and expenses of the Lender and all
other amounts required to be paid by the Loan Documents, there shall also be
immediately due and payable, and the Borrower shall be obligated to remit to the
Lender concurrently with such other amounts, a "Make-Whole Premium" calculated
in accordance with Section 2.5.2. The amount of the Make-Whole Premium as so
determined shall accrue interest at the Default Rate from the acceleration date
until the date of payment in full. In no event shall the Make-Whole Premium be
less than five percent (5%) of the then outstanding Principal Amount.
2.5.2. The Lender shall determine the Make-Whole Premium as follows:
(i) The Lender shall discount to present value, from the (i) The Lender shall
discount to present value, from the corresponding scheduled due dates to the
acceleration date, the entire amount (both principal and interest) of every
remaining individual Regular Monthly Payment Amount or final payment which,
absent acceleration, would become due and payable during the period from the
acceleration date through and including the Maturity Date, applying for this
purpose a discount factor equal to the Treasury Rate as of the acceleration date
or as of the date the Make-Whole Premium is actually paid, whichever is lower.
(ii) The Lender shall then subtract (x) the outstanding Principal Amount as
of the acceleration date from (y) the sum of the series of individual discounted
payments obtained pursuant to clause (i). The Make-Whole Premium shall be the
greater of the resulting difference, if a positive amount, or five percent (5%)
of the then outstanding Principal Amount.
2.5.3. Absent material and manifest error, the Lender's determination of the
Make-Whole Premium shall be binding and conclusive on the Borrower and anyone
else having an interest in the determination. In no event shall the amount of
the Make-Whole Premium or the method of calculating the Make-Whole Premium
result in a reduction of the outstanding Principal Amount, accrued and unpaid
interest or other amounts due by reason of the acceleration.
2.6. Prepayment After Closed Period.
2.6.1. Following the Closed Period, this Note shall not be prepaid except in
full upon thirty (30) days' prior written notice, subject to the Borrower's
payment to the Lender on the prepayment date of the sum of (i) all unpaid late
payment processing fees and unreimbursed costs and expenses then outstanding;
plus (ii) all accrued and unpaid interest as of the prepayment date; plus (iii)
the entire outstanding Principal Amount of this Note as of the prepayment date,
plus (iv) an additional amount (the "Defeasance Amount") to be determined by
Lender in accordance with Section 2.6.2 below. Once given, the prepayment notice
may not be rescinded, and prepayment becomes mandatory. No prepayment notice
given by the Borrower shall release the Borrower from the obligation to pay any
Regular Monthly Payment Amount(s) due prior to the prepayment date.
2.6.2. The Defeasance Amount shall be the amount which, when added to the
Principal Amount of the Note paid under clause (iii) of Section 2.6.1 is
sufficient to purchase direct, non-callable obligations of the United States of
America (the "U.S. Obligations") that provide for payments prior, but as close
as possible, to the due date for each Regular Monthly Payment Amount or
principal payment through and including the Maturity Date, with each such
payment being equal to or greater than (1) the Regular Monthly Payment Amount
and (2) with respect to the payment due on the Maturity Date, the entire
outstanding Principal Amount of this Note together with any interest accrued as
of such date and all other amounts payable pursuant to the Loan Documents. The
Defeasance Amount shall include an amount sufficient to pay all costs, charges
and expenses incurred or to be incurred in connection with the purchase of the
U.S. Obligations.
2.6.3. The Defeasance Amount shall apply not only in the case of voluntary
prepayment, but also in the event that this Note becomes due and payable in full
in the event of acceleration by reason of the occurrence of a Default Event or
otherwise. In such case, the Defeasance Amount shall be calculated as of the
date of the Default Event or other event or condition triggering acceleration
and again at the time of payment in full of all amounts owed under Section
2.6.1, and until paid in full shall accrue interest at the Default Rate. Whether
prepayment is voluntary or involuntary, in no event shall the amount of the
Defeasance Amount or the method of calculating the Defeasance Amount result in a
reduction of the outstanding Principal Amount, accrued and unpaid interest or
other amounts due as of the date of prepayment.
2.6.4. Absent material and manifest error, the Lender's determination of the
Defeasance Amount shall be binding and conclusive on the Borrower and anyone
else having an interest in the determination.
2.7. Late Payment Processing Fee. If the Lender does not receive any Regular
Monthly Payment Amount or other payment required under this Note or any other
Loan Document in full on the due date, then the Borrower shall pay, together
with the overdue payment, a late payment processing fee equal to five percent
(5%) of the overdue payment. This fee is collected to defray the Lender's
expenses incident to monitoring and processing the delinquent payment, and not
as a penalty. The Lender's acceptance of any overdue or incomplete payment,
whether or not accompanied by a late payment processing fee, shall not
constitute nor be deemed to constitute a waiver of any Default Event or of the
Lender's right to accelerate payment of this Note or otherwise exercise any of
the Lender's rights or remedies. Notwithstanding anything to the contrary set
forth herein, the late payment processing fee shall in no event exceed the
maximum amount allowed by applicable law.
2.8. Default Rate. From and after the acceleration of this Note upon the
occurrence of a Default Event and continuing until all amounts due under this
Note, the Loan Agreement, the Indenture and the other Loan Documents are paid in
full, interest shall accrue on the outstanding Principal Amount of this Note and
all other Obligations at the Default Rate. In addition, whether or not a Default
Event has occurred, any advances made or costs or expenses incurred by the
Lender under the Loan Agreement, the Indenture or any of the other Loan
Documents shall bear interest at the Default Rate from the date when so advanced
or incurred by the Lender until the date repaid or reimbursed by the Borrower in
full.
3. SECURITY.
3.1. Loan Agreement; Indenture. As security for the payment and performance
of this Note and the other Obligations, the Borrower has today signed and
delivered the Loan Agreement and the Indenture (as defined in the Loan
Agreement), granting the Lender a first lien and security interest in the
"Collateral" and the "Trust Property", as defined in the Loan Agreement. All of
the terms of the Loan Agreement and the Indenture are incorporated into this
Note by reference, with the same effect as if they were reprinted here in full.
3.2. Guaranty. This Note may also be secured by one or more Guaranties,
pursuant to which each Guarantor shall have guaranteed, jointly and severally,
the Borrower's payment and performance of the Obligations evidenced by this Note
and the other
Loan Documents.
3.3. Benefits. This Note and any holder of this Note shall be entitled to the
benefits of the Loan Agreement, the Indenture, any Guaranty and the other Loan
Documents, as they may be amended, recast or extended from time to time. The
Borrower understands and acknowledges that the Lender reserves the right to
sell, assign, syndicate or otherwise transfer or dispose of any or all of the
Lender's interest in the Note and the other Loan Documents, together with the
right at any time to pool the loan represented by this Note and the other Loan
Documents with one or more other loans originated by the Lender or any other
Person, and to securitize or offer interests in such pool on whatever terms and
conditions the Lender shall determine. The Lender may sell, pledge, grant a
security interest, collaterally assign, transfer, deliver or otherwise dispose
of this Note and any of the other Loan Documents, in whole or in part, from time
to time, including in connection with any participation or securitization
offering.
4. DEFAULT EVENTS. The "Default Events" set forth below are in addition to
and not in lieu of those specified in the Loan Agreement, the Indenture, any
Guaranty and any of the other Loan Documents. Each of the following shall
constitute a "Default Event":
4.1. Failure to Pay. The Borrower (i) fails to pay any Regular Monthly
Payment Amount or any other amount under this Note in full when due, and such
nonpayment continues for ten (10) days after the date that such payment or
amount was due (other than payments covered under clause (ii) of this Section),
or (ii) fails on the Maturity Date of this Note or on any earlier date when
prepayment, whether voluntary or involuntary, is required under this Note, to
pay in full the entire outstanding Principal Amount, all accrued and unpaid
interest, all outstanding late payment processing fees, all costs and expenses
of the Lender and any other charges (including the Make-Whole Premium or
Defeasance Amount, as the case may be) then due.
4.2. Default Under Other Loan Documents. There occurs any "Default Event"
under the Loan Agreement, the Indenture, any Guaranty or any other Loan
Document.
4.3. Cross-Default. There occurs a default beyond any applicable grace or
cure period on the part of the Borrower, any Guarantor or any of their
respective Affiliates under any other note, loan agreement, security instrument
or financial arrangement of any kind, whether now existing or subsequently
entered into, with the Lender or any Affiliate of the Lender.
5. REMEDIES. Upon the occurrence of a Default Event:
5.1. Acceleration. This Note and all of the other Obligations shall at the
option of the Lender become immediately due and payable without further notice
or demand. Acceleration shall be automatic in the case of a Default Event under
Section 10.1.8 of the Loan Agreement.
5.2. Other Remedies. The Lender may, at its option, exercise any and all
other rights and remedies reserved or available to the Lender under the Loan
Agreement, the Indenture and any other Loan Documents, or under applicable law,
in any order and at any time, whether or not specifically referred to in this
Note or the other Loan Documents.
5.3. Freeze or Set-Off. The Lender may, immediately and without notice, hold,
apply, freeze or set-off, on account of any Obligation, (i) funds on deposit
with the Lender or any Affiliate of the Lender paid by or belonging to the
Borrower, any Guarantor or their respective Affiliates in any capacity, (ii) any
funds that the Lender or any Affiliate of the Lender may owe to the Borrower or
any Guarantor or to any of their respective Affiliates, and (iii) any other
funds or property, tangible or intangible, in or en route to the Lender's or any
Affiliate's possession or control belonging or owed to the Borrower, any
Guarantor or any of their respective Affiliates. The Lender shall be deemed to
have exercised its right of set-off immediately upon the occurrence of the
Default Event, even though actual book entries reflecting the set-off may be
made later.
5.4. Increase in Interest Rate. From and after the occurrence of a Default
Event and continuing until all the Obligations have been paid in full, interest
shall accrue on the outstanding Principal Amount of this Note and the other
Obligations at the Default Rate. The Borrower shall pay interest at the Default
Rate on demand made from time to time by the Lender, but in any event no less
frequently than monthly. Notwithstanding the entry of any judgment relating to
the Obligations, interest shall continue to accrue at the Default Rate until the
Obligations are paid and satisfied in full.
5.5. Lender's Remedies Cumulative. The Lender's remedies under the Loan
Documents are cumulative, and by reason of exercising any particular remedy the
Lender shall not be prevented from later exercising any other remedy. The Lender
shall have no obligation to realize or foreclose upon the Collateral or the
Trust Property first, but may proceed directly against the Borrower first, or
concurrently against both the Borrower and the Collateral or the Trust Property,
or neither, with or without proceeding at the same time against any Guarantor,
all as the Lender decides in the Lender's sole and nonreviewable discretion.
Even if the Lender does not immediately require the Borrower to make payment in
full or does not immediately exercise the Lender's other rights and remedies
upon the occurrence of a particular Default Event, the Lender will still have
the right to do so if the Default Event continues or if another Default Event
subsequently occurs.
5.6. Cross-Default. If the Lender or any Affiliate of the Lender and the
Borrower, any Guarantor or their respective Affiliates are or subsequently
become parties to any other note, loan agreement, security instrument or
financial arrangement of any kind, all such other notes, loan agreements,
security instruments and financial arrangements are hereby amended to provide
that a Default Event under this Note shall be an event of default under all such
other notes, loan agreements, security instruments and financial arrangements,
entitling the Lender or other holder of the obligation to accelerate and
exercise all other contractual and legal or equitable remedies.
6. COLLECTION COSTS AND EXPENSES. Whether or not a Default Event exists or
has been declared, the Borrower agrees to pay on demand all costs and expenses,
including reasonable attorneys' and other professional fees, incurred by or on
behalf of the Lender in effecting collection of all amounts due under this Note
or in enforcing or exercising any of the Lender's rights or remedies under the
Loan Agreement, the Indenture and the other Loan Documents. All such costs and
expenses, together with any amounts that may be advanced or incurred by the
Lender for real estate taxes, insurance, repairs or otherwise pursuant to the
terms of the Loan Agreement, the Indenture or any other Loan Document, shall
bear interest at the Default Rate from the date when so advanced or incurred
until paid in full.
7. WAIVERS, ACKNOWLEDGMENTS AND CONSENTS.
7.1. No Waiver by Lender. The Lender shall not be deemed to have waived any
Default Event or any of its rights or remedies under this Note, the Loan
Agreement, the Indenture or any other Loan Documents by:
7.1.1. Forbearing, failing or delaying in the exercise of any rights or
remedies;
7.1.2. Forbearing, failing or delaying in insisting upon the strict
performance by the Borrower or any Guarantor of any term or condition of this
Note, the Loan Agreement, the Indenture, any Guaranty or any other Loan
Documents;
7.1.3. Accepting any late payment or partial payment made by or on behalf of
the Borrower;
7.1.4. Granting any extension, modification or waiver of any term or
condition of this Note, the Loan Agreement, the Indenture or any other Loan
Document, except and then only to the extent that the extension, modification or
waiver, which must be in writing, shall expressly so state; or
7.1.5. Any other act, omission, forbearance or delay by the Lender, its
managers, officers, agents, members, employees or representatives.
7.2. No Marshalling. The Lender shall be under absolutely no duty or
obligation whatsoever to:
7.2.1. Preserve, protect or marshall the Collateral or the Trust Property;
7.2.2. Preserve or protect the rights of the Borrower against any Person
claiming an interest in the Collateral or the Trust Property adverse to that of
the Borrower;
7.2.3. Realize upon the Collateral or the Trust Property, or in any
particular order or manner, or seek repayment of any Obligation from any
particular source, or proceed or not proceed against any Guarantor pursuant to
any Guaranty or against the Borrower under this Note, with or without also
realizing on the Collateral or the Trust Property; or
7.2.4. Permit any substitution or exchange of all or any part of the
Collateral or the Trust Property or release any part of the Collateral from the
Loan Agreement or any of the Trust Property from the Indenture, whether or not
such substitution or release would leave the Lender adequately secured.
7.3. Borrower's Waivers. The Borrower under all circumstances waives:
7.3.1. Any right to require or receive presentment, demand, notice of
non-payment, protest, notice of protest, notice of dishonor and all other
notices or demands in connection with the delivery, acceptance, payment,
performance or enforcement of this Note, the Loan Agreement, the Indenture or
any other Loan Documents.
7.3.2. Any right of set-off and any claim (as defined in 11 U.S.C. Section
101), including any claim of subrogation, reimbursement, contribution or
indemnification, that the Borrower may now or may subsequently have against the
Lender or any Affiliate of the Lender by reason of any payments or transfers
made by the Borrower or any payment or transfer which the Borrower is obligated
to make.
7.3.3. Any defense afforded by the laws (including anti-deficiency laws) of
any jurisdiction by reason of a non-judicial sale of any of the Collateral or
the Trust Property or any other act or omission of the Lender, the Lender's
Affiliates or their respective agents or representatives, to the fullest extent
permitted by applicable law.
7.3.4. Any right to prior notice or hearing under Chapter 903a of the
Connecticut General Statutes or under any other state or federal law with
respect to any prejudgment remedy which the lender may elect to invoke.
7.3.5. Any rights to appraisal of any security or collateral.
7.3.6. Any surety defenses of any kind, including those relating to
impairment of recourse, release or modification of underlying obligation,
extension of time, impairment of collateral or nondisclosure.
7.4. Borrower's Consents. The Borrower consents to, and shall not be
relieved of liability for any of the Obligations by reason of:
7.4.1. Any extension, postponement of time for payment, recasting or other
modification of this Note, the Loan Agreement, the Indenture or any other Loan
Document;
7.4.2. Any substitution, exchange, release or nonjudicial sale of any of the
Collateral or the Trust Property; and
7.4.3. The complete or partial release of any Guarantor or any other Person
primarily or secondarily liable for any Obligation.
7.5. Waiver of Jury Trial and Appraisal. In any litigation relating to or
arising out of the Obligations, this Note, the Loan Agreement, the Indenture or
any of the other Loan Documents or the administration, performance or
enforcement of any of them, the Borrower and the Lender each hereby irrevocably
waive all rights to trial by jury and any right to request or demand a jury
trial. The Borrower covenants and agrees not to seek to consolidate any such
litigation or proceeding in which a jury trial has been waived with any other
action in which a jury trial cannot or has not been waived. The Borrower further
waives, to the full extent permitted by law, any right to an appraisal of the
Trust Property, the Collateral or any other security for the Obligations.
7.6. Borrower's Acknowledgments. The Borrower acknowledges that the Borrower:
(i) has been advised by the Lender to consult with counsel of its choice prior
to signing and delivering this Note and the other Loan Documents; (ii) has had
ample opportunity to consult with counsel and with the Borrower's financial
advisors prior to signing and delivering this Note and the other Loan Documents;
(iii) understands the provisions of this Note and the other Loan Documents and
the effect of those provisions, including the effect of waiving trial by jury
and all other waivers made in this Note and the other Loan Documents; and
(iv) signs and delivers this Note and the other Loan Documents freely and
voluntarily, without duress or coercion.
7.7. Incorporation by Reference. All waivers, consents and acknowledgments
made by the Borrower in the other Loan Documents are incorporated by reference
and deemed a part of this Note, as if reprinted here in full, and all waivers,
consents and acknowledgments made by the Borrower in this Note shall be deemed
to constitute part of each of the other Loan Documents, as if reprinted there in
full.
8. INTEREST LIMITS.
8.1. Legal Limit Never to be Exceeded. Notwithstanding anything to the
contrary contained in this Note or any of the other Loan Documents, in no event
shall the amount or rate of interest (including interest at the Default Rate
and, to the extent they are deemed, notwithstanding their characterization in
the Loan Documents, to constitute interest, any Make-Whole Premium, Defeasance
Amount, late payment processing fees and any other fees or charges) payable,
contracted for, charged or received under or in connection with this Note or the
loan transaction represented by this Note ever exceed the maximum rate or
amount, if any, specified by applicable law.
8.2. Automatic Reduction; Credit to Borrower. If at the time any payment
becomes due, enforcing this Note or any other Loan Document as written is
prohibited by or would result in violation of any applicable law limiting the
rate or amount of interest or other charges which the Lender may collect, then
the interest or other charges shall automatically be reduced to the maximum
amount then permitted by applicable law. If the Lender ever collects from the
Borrower interest or other charges that would exceed the highest applicable
lawful amount, then the excess amount so received shall immediately be deemed
credited for the Borrower's account and will be returned to the Borrower, either
by being applied to reduce the then outstanding Principal Amount of this Note or
by way of direct refund to the Borrower, as the Lender shall elect or as
otherwise required by applicable law.
9. MISCELLANEOUS.
9.1. No Oral Modifications. No extension, modification, amendment or waiver
of any term or condition of this Note, the Loan Agreement, the Indenture or any
other Loan Document shall be valid or binding upon the Lender, unless in writing
and signed by an officer of the Lender having the authority to consent to the
extension, modification or waiver.
9.2. Notices. Notices pursuant to this Note shall be given in the manner and
shall be deemed effective as provided in the Loan Agreement.
9.3. Binding Effect. This Note is binding upon the Borrower and the
Borrower's successors in interest and assigns, and shall inure to the benefit of
the Lender and the Lender's successors in interest and assigns, including all
Persons holding interests in the Note and other Loan Documents as participants
with the Lender or otherwise. Nothing contained in this Section 9.3 shall be
deemed to permit the Borrower to assign or delegate this Note or any of the
other Loan Documents to anyone else, or to engage in any "Change in Ownership"
or "Change in Control" (as those terms are defined in the Loan Agreement) which
is otherwise prohibited by the Loan Agreement or the Indenture.
9.4. Interpretation; Construction.
9.4.1. The terms of this Note have been fully reviewed and negotiated by the
Borrower and the Lender in consultation with counsel, and the wording of this
Note reflects their mutual discussions. No provision of this Note shall be
construed against a particular party or in favor of another party merely because
of which party (or its representative) drafted or supplied the wording for such
provision.
9.4.2. Except as may be otherwise noted in context, all references to
"Sections" shall be deemed to refer to the sections or subsections, as
appropriate, of this Note.
9.4.3. Where the context requires: (i) use of the singular or plural
incorporates the other, and (ii) pronouns and modifiers in the masculine,
feminine or neuter gender shall be deemed to refer to or include the other
genders.
9.4.4. As used in this Note, the terms "include[s]" and "including" mean
"including but not limited to"; that is, in each case the example or enumeration
which follows the use of either term is illustrative, but not exclusive or
exhaustive.
9.4.5. Section headings appearing in this Note are inserted solely as
reference aids for the ease and convenience of the reader; they shall not be
deemed to modify, limit or define the scope or substance of the provisions they
introduce, nor shall they be used in construing the intent or effect of such
provisions.
9.5. Time of the Essence. Time is of the essence with respect to the payment
and performance by the Borrower of the Borrower's obligations under this Note.
9.6. Entire Agreement. This Note and the other Loan Documents represent the
entire understanding between the Lender and the Borrower with respect to the
transactions evidenced by the Loan Documents. The Loan Documents supersede any
prior or contemporaneous negotiations and all prior, contemporaneous and
subsequent oral agreements. The Borrower understands and agrees that oral
agreements and oral commitments to loan money, extend or renew credit or waive
or forbear from enforcing repayment of a debt or any particular loan covenant or
requirement are not enforceable. The Borrower acknowledges and agrees that there
are no oral agreements between the Borrower and the Lender, and that there are
no agreements or understandings whatsoever between the Borrower and the Lender
except as set forth in writing in the Loan Documents.
9.7. Severability. If any provision of this Note is for any reason held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, the provision shall only be enforced to the extent, if any,
reasonable under the facts and circumstances, and otherwise shall be deemed
deleted from this Note. The remaining provisions of this Note shall not be
affected, and shall continue in full force and effect.
9.8. Governing Law. This Note shall, to the extent permitted by applicable
law, be governed by and interpreted according to Connecticut law, but without
giving effect to any Connecticut choice of law provisions which might otherwise
make the laws of a different jurisdiction govern or apply; provided, however,
that the laws of the jurisdiction where the Real Estate (as that term is defined
in the Indenture) is located shall govern the perfection and enforcement of the
Lender's lien and security interests in the Trust Property and the Collateral,
including the exercise of foreclosure and sale remedies.
9.9. Joint and Several Liability. If Borrower comprises more than one person
or entity, all such persons and entities shall be jointly and severally liable
for the payment and performance of Borrower's obligations hereunder.
This Note contains waivers of various rights and defenses, including waivers
of the right to trial by jury and to appraisal. This Note is executed under seal
and is intended to take effect as a sealed instrument.
FFP OPERATING PARTNERS, L.P., a Delaware limited partnership
By: FFP OPERATING LLC, a Delaware limited liability company,
its sole general partner
By:
Steven B. Hawkins, Vice President
ADDENDUM TO SECURED PROMISSORY NOTE
This Addendum to Secured Promissory Note (this "Addendum") supplements and is
made part of the Secured Promissory Note to which it is attached. If any
provision of this Addendum conflicts with or is inconsistent with anything in
the Secured Promissory Note, this Addendum will govern. The entire Secured
Promissory Note and this Addendum are referred to collectively as this "Note".
Notwithstanding anything to the contrary contained in the Secured Promissory
Note:
10 Section 2.5 is deleted in its entirety.
20 "Following the Closed Period" is deleted from the first sentence of
Section 2.6.1.