EXHIBIT 10.58
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of June 1, 1999, by and
between FFCA ACQUISITION CORPORATION, a Delaware corporation ("FFCA"), whose
address is 00000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and M&B
RESTAURANTS, LC, a Texas limited liability company ("Debtor"), whose address is
00000 Xxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000.
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 Loan. The Loan will be evidenced by a Note. FFCA
has committed to make the Loan pursuant to the terms and conditions of this
Agreement and 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 FFCA is open for business other than
a Saturday, Sunday or a legal holiday, ending at 5:00 PM Phoenix 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.
"Commitment" means that certain Commitment Letter dated March 3, 1999,
between FFCA and Debtor, and any amendments or supplements thereto.
"Corporate Fixed Charge Coverage Ratio" has the meaning set forth in
Section 7.B.
"Counsel" means legal counsel to Debtor and Guarantors, licensed in the
state(s) in which (i) Debtor is incorporated or formed and (ii) Debtor and
Guarantors reside or maintain a principal place of business, as applicable, as
selected by Debtor and Guarantors and approved by FFCA.
"Debt" has the meaning set forth in Section 7.B.
"Debtor Entities" means, collectively, Debtor, Guarantors and any Affiliate
of Debtor and Guarantors.
"Depreciation and Amortization" has the meaning set forth in Section 7.B.
"Disclosure" has the meaning set forth in Section 13.P.
"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, processing and commitment fee
equal to 1% of the sum of the Loan Amount, which Fee shall be payable as set
forth in Section 3.
"FFCA Entities" means, collectively, FFCA, Franchise Finance and any
Affiliate of FFCA or Franchise Finance.
"Franchise Finance" means Franchise Finance Corporation of America, a
Delaware corporation, and its successors.
"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.
"Guarantors" means Xxxxxxx X. Xxxxxxx, Xxxxx Xxxxxxx and Xxxx X. Xxxxxx.
"Guaranty" means the unconditional guaranty of payment and performance
dated as of the date of this Agreement to be executed by Guarantors for the
benefit of FFCA with respect to the Loan, as the same may be amended from time
to time.
"Indemnified Parties" has the meaning set forth in Section 12.
"Interest Expense" has the meaning set forth in Section 7.B.
"Loan" means the loan described in Section 2.
"Loan Amount" means $475,000.00.
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"Loan Documents" means, collectively, this Agreement, the Note, and all
other documents executed in connection therewith or contemplated thereby.
"Net Income" has the meaning set forth in Section 7.B.
"Note" means the promissory note dated as of the date of this Agreement to
be executed by Debtor in favor of FFCA, as the same may be amended from time to
time.
"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 but excluding the Loan Documents.
"Participation" has the meaning set forth in Section 13.P.
"Person" means any individual, corporation, partnership, limited liability
company, trust, unincorporated organization, Governmental Authority or any other
form of entity.
"Securitization" means one or more sales, dispositions, transfers or
assignments by FFCA or any of the other FFCA Entities to a special purpose
corporation, trust or other entity identified by FFCA or any of the other FFCA
Entities of notes evidencing obligations to repay secured or unsecured loans
owned by FFCA or any of the other FFCA Entities (and, to the extent applicable,
the subsequent sale, transfer or assignment of such notes to another special
purpose corporation, trust or other entity identified by FFCA or any of the
other FFCA Entities), and the issuance of bonds, certificates, notes or other
instruments evidencing interests in pools of such loans, whether in connection
with a permanent asset securitization or a sale of loans in anticipation of a
permanent asset securitization. Each Securitization shall be undertaken in
accordance with all requirements which may be imposed by the investors or the
rating agencies involved in each such sale, disposition, transfer or assignment
or which may be imposed by applicable securities, tax or other laws or
regulations, including, without limitation, laws relating to FFCA's status as a
real estate investment trust.
"Securitized Loan Pool" means any pool or group of loans that are a part of
any Securitization.
"Transfer" has the meaning set forth in Section 13.P.
2. Transaction. On the terms and subject to the conditions set forth in the
Loan Documents, FFCA shall make the Loan. The Loan will be evidenced by the
Note. Guarantors will provide further security for the Loan by executing and
delivering the Guaranty. Debtor shall repay the outstanding principal amount of
the Loan together with interest thereon in the manner and in accordance with the
terms and conditions of the Note and the other Loan Documents. The Loan shall be
advanced at the Closing in cash or otherwise immediately available funds subject
to any prorations and adjustments required by this Agreement.
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3. Underwriting, Site Assessment, Valuation, Processing and Commitment
Fee. Debtor paid FFCA and received a credit by FFCA pursuant to the Commitment
for one-half of the Fee pursuant to the Commitment, and such portion was deemed
nonrefundable and fully earned when received. The remainder of the Fee shall be
paid at the Closing and shall be deemed nonrefundable and fully earned upon the
Closing. The Fee constitutes FFCA's underwriting, site assessment, valuation,
processing and commitment fee. In the event the transaction set forth in this
Agreement fails to close due to a breach or default by Debtor under this
Agreement, FFCA shall retain the portion of the Fee received by FFCA (without
affecting or limiting FFCA's remedies set forth in this Agreement).
4. Closing. (a) The 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 June
1, 1999, 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) All costs of the transaction described in this Agreement shall be
borne by Debtor, including, without limitation, the attorneys' fees of Debtor,
attorneys' fees and expenses of FFCA, FFCA's in-house costs and fees, and escrow
fees. The Closing Documents shall be dated as of the Closing Date.
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
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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 Guarantors,
which financial statements and other information are true, correct and
complete in all material respects; and no material adverse change has
occurred with respect to any such financial statements and other
information provided to FFCA since the date such financial statements and
other information were prepared or delivered to FFCA. Debtor understands
that FFCA is relying upon such financial statements and information and
Debtor represents that such reliance is reasonable. All such financial
statements were prepared in accordance with GAAP and accurately reflect as
of the date of this Agreement and the Closing Date, the financial condition
of each individual or entity to which they pertain.
B. Organization and Authority. (1) Debtor is duly organized or
formed, validly existing and in good standing under the laws of its state
of incorporation or formation, and qualified as a foreign corporation,
partnership or limited liability company, as applicable, to do business in
any jurisdiction where such qualification is required. All necessary
corporate, partnership or limited liability company action has been taken
to authorize the execution, delivery and performance of this Agreement and
of the other 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
Guarantors, as applicable, this Agreement and the other Loan Documents
shall constitute the legal, valid and binding obligations of Debtor and
Guarantors, respectively, enforceable against Debtor and Guarantors in
accordance with their respective terms.
D. Litigation. There are no suits, actions, proceedings or
investigations pending or threatened against or involving Debtor,
Guarantors or any property of Debtor or Guarantors 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 or Guarantors.
E. Absence of Breaches or Defaults. Debtor and Guarantors 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 any Guarantor is a party or by which Debtor or any of the property
of Debtor or Guarantors 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, rule or order.
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F. No Other Agreements and Options. Neither Debtor, any Guarantor
nor any property of Debtor or Guarantors is subject to any commitment,
obligation, or agreement, including, without limitation, any right of first
refusal, option to purchase or lease granted to a third party, which could
or would prevent or hinder FFCA in making the Loan or prevent or hinder
Debtor and Guarantors from fulfilling their obligations under this
Agreement or the other Loan Documents.
G. 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 Amount, and such
analysis will not be made available to Debtor.
All representations and warranties of Debtor made in this Agreement shall
be and will remain true and complete 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. Debtor shall, at all reasonable times, (i) provide
FFCA and FFCA's officers, employees, agents, advisors, attorneys,
accountants, architects, and engineers with access to all properties of
Debtor, all drawings, plans, and specifications for all properties of
Debtor in possession of Debtor or Guarantors, all engineering reports
relating to all properties of Debtor in the possession of Debtor or
Guarantors, the files, correspondence and documents relating to all
properties of Debtor, and the financial books and records, including lists
of delinquencies, relating to the ownership, operation, and maintenance of
all properties of Debtor (including, without limitation, any of the
foregoing information stored in any computer files), and (ii) allow such
persons to make such inspections, tests, copies, and verifications as FFCA
considers necessary.
B. Corporate Fixed Charge Coverage Ratio. Until such time as all
of Debtor's obligations under the Notes and the other Loan Documents are
paid, satisfied and discharged in full, Debtor shall maintain a Corporate
Fixed Charge Coverage Ratio of at least 1.25:1, as determined on the last
day of Debtor's fiscal year. For purposes of this Section, the term
"Corporate 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,
Depreciation and Amortization, Interest Expense and Operating Lease
Expense, minus income taxes or charges equivalent to income taxes allocable
to the period of determination, to (b) the sum of Operating Lease Expense,
scheduled principal payments of long term Debt, scheduled maturities of all
Capital Leases and Interest Expense (excluding non-cash interest expense
and amortization of non-cash financing expenses).
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For purposes of this Section, the following terms shall be defined as set
forth below:
"Capital Lease" shall mean all leases of any property, whether real,
personal or mixed, by Debtor or any of the other Debtor Entities, as applicable,
which lease would, in conformity with GAAP, be required to be accounted for as a
capital lease on the balance sheet of Debtor. The term "Capital Lease" shall not
include any operating lease.
"Debt" shall mean, for 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, recorded 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 the depreciation and
amortization accruing during any period of determination with respect to Debtor,
as determined in accordance with GAAP.
"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
Debtor, as determined in accordance with GAAP.
"Net Income" shall mean with respect to the period of determination, the
net income or net loss of Debtor. In determining the amount of Net Income, (i)
adjustments shall be made for nonrecurring gains and losses or non-cash items
allocable to the period of determination, (ii) deductions shall be made for,
among other things, Depreciation and Amortization, Interest Expense, and
Operating Lease Expense allocable to the period of determination, and a
corporate overhead expense equal to five percent (5%) of Debtor's gross sales
attributable to the period of determination, and (iii) no deductions shall be
made for (X) minority interest expense or (Y) income taxes or charges equivalent
to income taxes allocable to the period of determination, as determined in
accordance with GAAP.
"Operating Lease Expense" shall mean the sum of all payments and expenses
incurred by Debtor, collectively, under any operating leases during the period
of determination, as determined in accordance with GAAP.
C. Lost Note. Debtor shall, if the 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
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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. Reporting Obligations. Debtor shall provide to FFCA the following:
(i) Financial Statements. Complete financial statements of Debtor and
Guarantors including a balance sheet, profit and loss statement, statement
of cash flows and all other related schedules for the fiscal period then
ended: (a) with respect to Debtor, within 45 days after the end of each
fiscal quarter and within 120 days after the end of each fiscal year of
Debtor; and (b) with respect to Guarantors, within 120 days after the end
of each fiscal year and upon request by FFCA, within 45 days after the end
of each fiscal quarter of Guarantors. All such financial statements shall
be prepared in accordance with GAAP and shall be certified to be accurate
and complete by Debtor (or the treasurer or other appropriate officer of
Debtor) and Guarantors, as applicable. Debtor understands that FFCA is
relying upon such financial statements and Debtor represents that such
reliance is reasonable. The financial statements delivered to FFCA need not
be audited, but Debtor and Guarantors shall deliver to FFCA copies of any
audited financial statements of Debtor and Guarantors which may be
prepared, as soon as they are available.
(ii) Event of Default. Promptly, but in any event within five days
after Debtor becomes aware of an Event of Default, written notification to
an officer of FFCA specifying the nature and period of existence thereof
and what action Debtor is taking or proposes to take with respect thereto.
(iii) Litigation. Within ten days after Debtor or Guarantors become
aware of any action, suit or proceeding pending or threatened in writing
against or involving Debtor or any Guarantor or any property of Debtor or
any Guarantor, except for those actions, suits or proceedings (1) for which
damages of less than $250,000 have been sought, threatened or are likely to
be incurred and (2) which Debtor and Guarantors in good faith determine
will be covered by insurance (including worker's compensation claims),
Debtor and Guarantors shall notify FFCA of such action, suit or proceeding
and in such notice specify the nature thereof, whether the alleged
liability therein is covered by insurance then in effect and, if so
covered, the monetary coverage thereof, and what action Debtor and
Guarantors are taking or proposes to take with respect thereto.
(iv) Auditors' Reports. Promptly upon receipt thereof, a copy of each
report submitted to Debtor or Guarantors, as applicable, by independent
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accountants in connection with any annual, interim or special audit
made of the books of Debtor or Guarantors.
(v) Other Information. Promptly after the receipt of written
request therefor, information concerning Debtor that is required to
satisfy all requirements applicable to FFCA pursuant to the Securities
Exchange Act of 1934 and all other regulatory laws applicable to FFCA
or to which FFCA is subject or bound.
F. Payment of Taxes, Etc. Unless Debtor shall contest the amount or
validity thereof in the manner described below, Debtor shall pay all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the
date on which penalties attach thereto, and all lawful claims which, if
unpaid, might become a lien upon any of its properties. Debtor may, at its
own expense, contest or cause to be contested such taxes, assessments,
governmental charges or levies or other claims (i) in good faith, (ii) by
proper proceedings, and (iii) provided Debtor shall have furnished the
security as may be required by such proceeding.
G. Organization of Debtor. Debtor shall continue to be a limited
liability company duly organized, validly existing and in good standing
under the laws of its jurisdiction and qualified to do business in any
jurisdiction where such qualification is required.
H. Licenses, Permits, Consents and Approvals. Debtor shall maintain
in full force and effect all required licenses, permits, consents and
approvals, both governmental and private, to use and operate its assets and
conduct its business in the intended manner.
I. Disposition of Assets. Debtor shall not, directly or indirectly,
sell, assign, lease, transfer or otherwise dispose of all or substantially
all of its assets. Debtor shall not transfer or dispose of any material
part of its assets except for: (a) full and fair consideration and
reasonably equivalent value; or (b) cash transfers and payments to any
equity holder or other Debtor Entity to the extent that they do not render
Debtor insolvent, impair or impede Debtor's ability to meet all of its
obligations to FFCA as and when they become due, or result in, or with the
passage of time or the giving of notice, would result in, an Event of
Default.
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 Note, and the other Loan Documents is solely that
of creditor and debtor and has been entered into by both parties in reliance
upon the economic and legal bargains contained in the Loan Documents. None of
the agreements contained in the Loan Documents is intended, nor shall the same
be deemed or construed, to create a partnership between Debtor and FFCA, to make
them joint venturers, to make Debtor an agent, legal representative, partner,
subsidiary or employee of FFCA, nor to make FFCA in any way responsible for the
debts, obligations or losses of Debtor.
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9. Conditions of Closing. The obligation of FFCA to consummate the
transaction contemplated by this Agreement is subject to the fulfillment or
waiver of each of the following conditions:
A. 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 and Debtor
pertaining to the subject matter hereof, and no event shall have occurred
or condition shall exist or information shall have been disclosed by Debtor
or any Guarantor or discovered by FFCA which has had or would have a
material adverse effect on Debtor or Guarantors or FFCA's willingness to
consummate the transaction contemplated by this Agreement, as determined by
FFCA in its sole and absolute discretion.
B. Opinion of Counsel to Debtor and Guarantors. Debtor and
Guarantors shall have caused Counsel to prepare and deliver an opinion to
FFCA in form and substance satisfactory to FFCA and its counsel.
C. 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 3(a) hereof, FFCA does not
warrant that it will thereafter have sufficient funds to consummate the
transaction contemplated by this Agreement.
D. Closing Documents. At or prior to the Closing Date, Debtor and
Guarantors, as applicable, shall execute and deliver or cause to be
executed and delivered to 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 Note and Guaranty.
Upon fulfillment or waiver of all of the above conditions, FFCA shall cause the
transaction contemplated herein to 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 any Guarantor set
forth in any of the Loan Documents is false in any material respect, or if
Debtor or any Guarantor renders any false statement or account.
(2) If any principal, interest or other monetary sum due under the
Note 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
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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,
conditions, or obligations of this Agreement or the other Loan Documents
(except with respect to a breach of the Corporate Fixed Charge Coverage
Ratio, which is addressed in subitem [6] below); provided, however, if any
such failure does not involve the payment of any monetary sum, is not
willful or intentional, does not place any rights or property of FFCA in
immediate jeopardy, and is within the reasonable power of Debtor to
promptly cure after receipt of notice thereof, all as determined by FFCA in
its reasonable discretion, then such failure shall not constitute an Event
of Default hereunder, unless otherwise expressly provided herein, unless
and until FFCA shall have given Debtor notice thereof and a period of 30
days shall have elapsed, during which period Debtor may correct or cure
such failure, upon failure of which an Event of Default shall be deemed to
have occurred hereunder without further notice or demand of any kind being
required. If such failure cannot reasonably be cured within such 30-day
period, as determined by FFCA in its reasonable discretion, and Debtor is
diligently pursuing a cure of such failure, then Debtor shall have a
reasonable period to cure such failure beyond such 30-day period, which
shall not exceed 90 days after receiving notice of the failure from FFCA.
If Debtor shall fail to correct or cure such failure within such 90-day
period, an Event of Default shall be deemed to have occurred hereunder
without further notice or demand of any kind being required.
(4) If Debtor or any Guarantor 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
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 Corporate 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) as is necessary to cure the breach of the Corporate Fixed Charge
Coverage Ratio requirement or (ii) prepay the Note in whole but not in part
(without premium or penalty). For purposes of the preceding sentence, "FCCR
Amount" means that sum of money which, when subtracted from the outstanding
principal amount of the Note, and assuming the resulting principal balance
is reamortized in equal monthly payments over the remaining term of the
Note at the rate of interest set forth therein, will result in an adjusted
Corporate Fixed Charge Coverage Ratio of at least 1.25:1 based on the prior
year's operations. Promptly after Debtor's payment of the
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XXXX Xxxxxx, Xxxxxx and FFCA shall execute an amendment to the Note in form
and substance reasonably acceptable to FFCA reducing the principal amount
payable to FFCA under the Note and reamortizing the principal amount of the
Note in equal monthly payments over the then remaining term of the 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 Note, 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 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 Note or any other Loan Document. Neither the
acceptance of this Agreement nor its enforcement shall prejudice or in any
manner affect FFCA's right to realize upon or enforce any other security now or
hereafter held by FFCA, it being agreed that FFCA shall be entitled to enforce
this Agreement and any other security now or hereafter held by FFCA in such
order and manner as it may in its absolute discretion determine. No remedy
herein conferred upon or reserved to FFCA is intended to be exclusive of any
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute. Every power or remedy given by any of the Loan Documents to FFCA, or
to which FFCA may be otherwise entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
FFCA.
11. Assignments. A. FFCA may assign in whole or in part its rights under
this Agreement, including, without limitation, in connection with any Transfer,
Participation and/or 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 rights or interests of
any kind in any of Debtor's rights under this Agreement, any of the other Loan
Documents or any interest in Debtor, whether voluntarily, involuntarily or by
operation of law or otherwise, including, without limitation, by merger,
consolidation, dissolution or otherwise.
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 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
12
forth in this Agreement or any other Loan Document being false, or by reason of
any investigation or claim of any Governmental Authority in connection
therewith.
13. Miscellaneous Provisions.
A. Notices. All notices, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this
Agreement shall be in writing and given by (i) had delivery, (ii)
facsimile, (iii) express overnight delivery service or (iv) certified or
registered mail, return receipt requested, and shall be deemed to have been
delivered upon (a) receipt, if hand delivered, (b) transmission, if
delivered by facsimile, (c) the next Business Day, if delivered by express
overnight delivery service, or (d) the third Business Day following the day
of deposit of such notice with the United States Postal Service, if sent by
certified or registered mail, return receipt requested. Notices shall be
provided to the parties and addresses (or facsimile numbers, as applicable)
specified below:
If to Debtor: Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
M&B Restaurants, LC
00000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to FFCA: Xxxxxx X. Xxxxx, Esq.
Executive Vice President and General Counsel
FFCA Acquisition Corporation
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
B. Commission. FFCA and Debtor represent and warrant to each other
that they have dealt with no 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.
13
D. Captions. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any manner in
the construction or interpretation hereof.
E. FFCA's Liability. Notwithstanding anything to the contrary
provided in this Agreement, it is specifically understood and agreed, such
agreement being a primary consideration for the execution of this Agreement
by FFCA, that (i) there shall be absolutely no personal liability on the
part of any shareholder, director, officer or employee of FFCA, with
respect to any of the terms, covenants and conditions of this Agreement or
the other Loan Documents, (ii) Debtor waives all claims, demands and causes
of action against FFCA's officers, directors, employees and agents in the
event of any breach by FFCA of any of the terms, covenants and conditions
of this Agreement or the other Loan Documents to be performed by FFCA and
(iii) Debtor shall look solely to the assets of FFCA for the satisfaction
of each and every remedy of Debtor in the event of any breach by FFCA of
any of the terms, covenants and conditions of this Agreement or the other
Loan Documents to be performed by FFCA, such exculpation of liability to be
absolute and without any exception whatsoever.
F. Severability. The provisions of this Agreement shall be deemed
severable. If any part of this Agreement shall be held unenforceable, the
remainder shall remain in full force and effect, and such unenforceable
provision shall be reformed by such court so as to give maximum legal
effect to the intention of the parties as expressed therein.
G. Construction Generally. This is an agreement between parties who
are experienced in sophisticated and complex matters similar to the
transaction contemplated by this Agreement and is entered into by both
parties in reliance upon the economic and legal bargains contained herein
and shall be interpreted and construed in a fair and impartial manner
without regard to such factors as the party which prepared the instrument,
the relative bargaining powers of the parties or the domicile of any party.
Debtor and FFCA were each represented by legal counsel competent in
advising them of their obligations and liabilities hereunder.
H. Other Documents. Each of the parties agrees to sign such other
and further documents as may be appropriate to carry out the intentions
expressed in this Agreement.
I. Attorneys' Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement, the
prevailing party shall be entitled to recover its attorneys' fees and other
costs in addition to any other relief to which it may be entitled.
References in this Agreement to the attorneys' fees and/or costs of FFCA
shall mean both the fees and costs of independent outside counsel retained
by FFCA with respect to this transaction and the fees and costs of FFCA's
in-house counsel incurred in connection with this transaction.
J. Entire Agreement. This Agreement and the other Loan Documents,
together with any other certificates, instruments or agreements to be
delivered in connection therewith, constitute the entire agreement between
the parties with respect to the subject
14
matter hereof, and there are no other representations, warranties or agreements,
written or oral, between Debtor and FFCA with respect to the subject matter of
this Agreement. Notwithstanding anything in this Agreement to the contrary, upon
the execution and delivery of this Agreement by Debtor and FFCA, the Commitment
shall be deemed null and void and of no further force and effect and the terms
and conditions of this Agreement shall control notwithstanding that such terms
may be inconsistent with or vary from those set forth in the Commitment.
K. Forum Selection; Jurisdiction; Venue; Choice of Law. Debtor
acknowledges that this Agreement was substantially negotiated in the State of
Arizona, the Agreement was signed by FFCA in the State of Arizona and delivered
by Debtor in the State of Arizona, all payments under the Note 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 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. Nothing in this Section shall limit or restrict the right of FFCA to
commence any proceeding in federal or state courts located outside of Arizona to
the extent FFCA deems such proceeding necessary or advisable to exercise
remedies available under this Agreement or the other Loan Documents.
L. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of Debtor and FFCA and their respective successors and permitted
assigns, including, without limitation, any United States trustee, any debtor in
possession or any trustee appointed from a private panel.
N. Survival. Except for the conditions of Closing set forth in Section 9,
which shall be satisfied or waived as of the Closing Date, all representations,
warranties, agreements, obligations and indemnities of Debtor and FFCA set
forth in this Agreement shall survive the Closing.
O. Waiver of Jury Trial and Punitive, Consequential, Special and Indirect
Damages. DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES
PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF
THE
15
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. Transfer, Participations and Securitization. (1) A material
inducement to FFCA's willingness to complete the transactions contemplated
by the Loan Documents is Debtor's agreement that FFCA may, at any time,
sell, transfer or assign the Note and/or any of the other Loan Documents,
and any or all servicing rights with respect thereto (each, a "Transfer"),
or grant participations in the Note and/or any of the other Loan Documents
(each, a "Participation"), or complete a Securitization with respect to the
Note and/or any of the other Loan Documents.
(2) Debtor agrees to cooperate in good faith with FFCA in connection
with any such Transfer, Participation and/or Securitization of the Note
and/or any of the other Loan Documents, including, without limitation, (i)
providing such documents, financial and other data, and other information
and materials (the "Disclosures") which would typically be required with
respect to Debtor and Guarantors 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 Guarantors shall not be required to make
Disclosures of any confidential information or any information which has
not previously been made public unless required by applicable federal or
state securities laws; and (ii) amending the terms of the transactions
evidenced by the Loan Documents to the extent necessary so as to satisfy
the requirements of purchasers, transferees, assignees, servicers,
participants, investors or selected rating agencies involved in any such
Transfer, Participation or Securitization, so long as such amendments would
not have a material adverse effect upon Debtor, Guarantors or the
transactions contemplated hereunder.
16
(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 financial condition of Debtor and Guarantors or any property
of Debtor or Guarantors to each purchaser, transferee, assignee, servicer,
participant, investor or rating agency involved with respect to such
Transfer, Participation and/or Securitization, as applicable. FFCA and
Debtor (and their respective Affiliates) shall each pay their own attorneys
fees and other out-of-pocket expenses incurred in connection with the
performance of their respective obligations under this Section.
(4) Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents:
(a) a breach or default, after the passage of all applicable
notice and cure or grace periods, under any Loan Document or Other
Agreement which relates to a loan or sale/leaseback transaction which
has not been the subject of a Securitization shall not constitute an
Event of Default or a breach or default, as applicable, under any Loan
Document or Other Agreement which relates to a loan which has been the
subject of a Securitization;
(b) a breach or default, after the passage of all
applicable notice and cure or grace periods, under any Loan Document
or Other Agreement which relates to a loan which is included in any
Securitized Loan Pool shall not constitute an Event of Default or a
breach or default, as applicable, under any Loan Document or Other
Agreement which relates to a loan which is included in any other
Securitized Loan Pool;
(c) the Loan Documents corresponding to the Notes in any
Securitized Loan Pool shall not secure the obligations of any of the
Debtor Entities contained in any Loan Document or Other Agreement
which does not correspond to a loan in such Securitized Loan Pool;
and
(d) the Loan Documents and Other Agreements which do not
correspond to a loan in any Securitized Loan Pool shall not secure the
obligations of any of the Debtor Entities contained in any Loan
Document or Other Agreement which does correspond to a loan in such
Securitized Loan Pool.
Q. Confidentiality. Debtor and FFCA shall not make any public
announcements concerning the Loan without the prior written consent of the
other, except as may be required by law or judicial action.
17
IN WITNESS WHEREOF, Debtor and FFCA have entered into this Agreement as of
the date first above written.
FFCA:
FFCA ACQUISITION CORPORATION, a
Delaware corporation
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Printed Name Xxxxxxx X. Xxxxxxx
-----------------------------
Its Senior Vice President
--------------------------------------
DEBTOR:
M&B RESTAURANTS, LC, a Texas limited
liability company
By Xxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
STATE OF ARIZONA )
)SS.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on June 7, 1999 by
Xxxxxxx X. Xxxxxxx, Senior V.P. of FFCA Acquisition Corporation, a Delaware
corporation, on behalf of the corporation.
/s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Notary Public
My Commission Expires: ---------------------------------------------
OFFICIAL SEAL
6/21/2000 XXXXXXXX X. XXXXXX
------------------------ [SEAL] Notary Public - State of Arizona
MARICOPA COUNTY
My Comm. Expires June 21, 2000
---------------------------------------------
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STATE OF California )
-----------------
)SS.
COUNTY OF Ventura )
----------------
The foregoing instrument was acknowledged before me on May 28, 1999 by
Xxxxxxx X. Xxxxxxx, president and chief executive officer of M&B Restaurants,
LC, a Texas limited liability company, on behalf of the limited liability
company.
Xxxx Xxxxx Xxxxxx, Notary Public
------------------------------------
Notary Public
/s/ Xxxx Xxxxx Xxxxxx
My Commission Expires:
April 5, 2003
---------------------
--------------------------------------
XXXX XXXXX XXXXXX
Commission # 1215168
[SEAL] Notary Public - California
Ventura County
My Comm. Expires Apr 5, 2003
--------------------------------------
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