Exhibit 10.27
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of May 17, 1999, by and
between FFCA ACQUISITION CORPORATION, a Delaware corporation ("FFCA"), whose
address is 00000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and PRECISION
AUTO CARE, INC., a Virginia corporation ("Debtor"), whose address is 000 Xxxxxx
Xxxxx, XX, Xxxxxxxx, Xxxxxxxx 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 Loans to provide long-term financing 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 FFCA is 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.
"Commitment" means that certain Commitment Letter dated February 12, 1999
between FFCA and Debtor, and any amendments or supplements thereto.
"Counsel" means legal counsel to Debtor licensed in the state(s) in which
(i) the Premises are located, (ii) Debtor is incorporated or formed and (iii)
Debtor maintains its chief executive office, as selected by Debtor and approved
by FFCA.
"Debt" has the meaning set forth in Section 7.B.
"Debtor Entities" means, collectively, Debtor and any Affiliate of Debtor.
"De Minimis Amounts" means, with respect to any given level of Hazardous
Materials or Regulated Substances, that level or quantity of Hazardous Materials
or Regulated Substances in any form or combination of forms the use, storage or
release of which does not constitute a violation of or require regulation under
any Environmental Laws and is customarily employed in the ordinary course of, or
associated with, similar businesses located in the states in which the Premises
are located.
"Depreciation and Amortization" has the meaning set forth in Section 7.B.
"Disclosures" has the meaning set forth in Section 14.P.
"Environmental Condition" means any condition with respect to soil, surface
waters, groundwaters, land, stream sediments, surface or subsurface strata,
ambient air and any environmental medium comprising or surrounding any of the
Premises, whether or not yet discovered, which could or does result in any
damage, loss, cost, expense, claim, demand, order or liability to or against
Debtor or FFCA by any third party (including, without limitation, any
Governmental Authority), including, without limitation, any condition resulting
from the operation of Debtor'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.
"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, Regulated Substances or USTs and/or the
protection of human health or the environment by reason of a Release or a
Threatened Release of Hazardous Materials or Regulated Substances 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
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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 USTs); 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, Regulated Substances or USTs in connection with
permits or other authorization for lawful activity; relating to nuisance,
trespass or other causes of action related to Hazardous Materials, Regulated
Substances or USTs; 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, Regulated Substances or USTs
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.
"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% of the sum of the Loan Amounts for all of the
Premises, 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.
"FFCA Payments" has the meaning set forth in Section 7.B.
"Fixed Charge Coverage Ratio" has the meaning set forth in Section 7.B.
"Franchise Finance" means Franchise Finance Corporation of America, a
Delaware corporation, and its successors.
"GAAP" means generally accepted accounting principles consistently applied.
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"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.
"Ground Lease" means those ground lease relating to the Leased Premises and
all modifications, amendments and supplements thereto disclosed in the Ground
Lease Estoppel Certificate and Consent delivered with respect thereto, and all
modifications, amendments and supplements consented to by FFCA pursuant to the
terms of the Mortgage corresponding to the Leased Premises.
"Ground Lessor" means the lessor under the Ground Lease.
"Ground Lease Estoppel Certificate and Consent" has the meaning set forth
in Section 9.N.
"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.
"Leased Premises" means the Premises, located in Denver, Colorado (FFCA No.
8000-8815), in which Debtor owns a leasehold interest.
"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.
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"Loan Documents" means, collectively, this Agreement, the Notes, the
Mortgages, the Environmental Indemnity Agreements, the UCC-1 Financing
Statements and all other
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documents, instruments and agreements executed in connection therewith or
contemplated thereby.
"Lost Note" has the meaning set forth in Section 7.C.
"Memorandum" has the meaning set forth in Section 9.O.
"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.
"Nondisturbance Agreements" has the meaning set forth in Section 9.N.
"Note" or "Notes" means, as the context may require, the promissory note
dated as of the date of this Agreement to be executed by Debtor in favor of FFCA
evidencing a Loan with respect to a Premises or the promissory notes dated as of
the date of this Agreement to be executed by Debtor in favor of FFCA evidencing
the Loans with respect to all of the Premises, as the same may be amended,
restated and/or substituted from time to time, including, without limitation, as
a result of the payment of the FCCR Amount or the Modified FCCR Amount pursuant
to Section 10. A Note will be executed for each Premises in the Loan Amount
corresponding to such Premises.
"Operating Lease Expense" has the meaning set forth in Section 7.B.
"Other Agreements" means, collectively, all agreements and instruments
between, among or by (1) any of the Debtor Entities, and, or for the benefit of,
(2) any of the FFCA Entities, including, without limitation, promissory notes
and guaranties; provided, however, the term "Other Agreements" shall not include
the agreements and instruments defined as the Loan Documents.
"Participation" has the meaning set forth in Section 14.P.
"Permitted 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.
"Permitted Encumbrances" mean liens on (a) certain receivables and
inventory of the Debtor which are unrelated to the Premises, (b) intellectual
property of the Debtor, and (c) leasehold interests in certain equipment located
at the following addresses: (i) 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx
00000, (ii) 0000 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000, and (iii) 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000.
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"Permitted Facility" means, with respect to all of the Premises other than
the Premises located in Stratford, Connecticut (FFCA No. 8000-8823), a Precision
Auto Wash facility, and with respect to the Premises located in Stratford,
Connecticut (FFCA No. 8000-8823), a Precision Tune Auto Care facility.
"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,
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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
with respect to the Premises and submitted to Environmental Insurer in
connection with the issuance of the Environmental Policies.
"Regulated Substances" means "petroleum" and "petroleum-based substances"
or any similar terms described or defined in any Environmental Laws and any
applicable federal, state, county or local laws applicable to or regulating
USTs.
"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, Regulated
Substances or USTs.
"Remediation" means any response, remedial, removal, or corrective action,
any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate
any Hazardous Materials, Regulated Substances or USTs, 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, Regulated
Substances or USTs.
"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
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applicable securities, tax or other laws or regulations, including, without
limitation, laws relating to FFCA's status as a real estate investment trust.
"Securitized Loan Pool" means any pool or group of loans that are a part of
any Securitization.
"Selected Premises" has the meaning set forth in Section 10.A(6).
"Subject Premises" has the meaning set forth in Section 10.A(6).
"Substitute Documents" has the meaning set forth in Section 13.
"Substitute Premises" means one or more parcels of real property
substituted for 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, appliances, trade
fixtures, including, without limitation, the tanks, canopies and pumps, 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" has the meaning set forth in Section 14.P.
"UCC-1 Financing Statements" means such UCC-1 Financing Statements as FFCA
shall require to be executed and delivered by Debtor with respect to the
transactions contemplated by this Agreement.
"USTs" means any one or combination of tanks and associated piping systems
used in connection with the storage, dispensing and general use of Regulated
Substances.
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 $7,204,000.00, allocated among
the Premises as set forth on the attached Exhibit A. The Loans shall be
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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, Valuation, Processing and Commitment Fee. Debtor paid
FFCA and received a credit by FFCA pursuant to the Commitment for a portion 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, valuation, processing and commitment
fee. In the event the transaction set forth in this Agreement fails to close
due to a breach or default by Debtor under this Agreement, FFCA shall retain the
portion of the Fee received by FFCA (without affecting or limiting FFCA's
remedies set forth in this Agreement).
4. Closing. (a) Each Loan shall be closed (the "Closing") within 30 days
following the satisfaction of all of the terms and conditions contained in this
Agreement, but in no event shall the date of the Closing be extended beyond May
14, 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) 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
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
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any such court action, shall relieve Title Company of all further liability and
responsibility for such documents and funds. Title Company's receipt of this
Agreement and opening of an escrow pursuant to this Agreement shall be deemed to
constitute conclusive evidence of Title Company's agreement to be bound by the
terms and conditions of this Agreement pertaining to Title Company. Disbursement
of any funds shall be made by check, certified check or wire transfer, as
directed by Debtor and FFCA. Title Company shall be under no obligation to
disburse any funds represented by check or draft, and no check or draft shall be
payment to Title Company in compliance with any of the requirements hereof,
until it is advised by the bank in which such check or draft is deposited that
such check or draft has been honored. Title Company is authorized to act upon
any statement furnished by the holder or payee, or a collection agent for the
holder or payee, of any lien on or charge or assessment in connection with the
Premises, concerning the amount of such charge or assessment or the amount
secured by such lien, without liability or responsibility for the accuracy of
such statement. The employment of Title Company as escrow agent shall not affect
any rights of subrogation under the terms of any title insurance policy issued
pursuant to the provisions thereof.
5. Representations and Warranties of FFCA. The representations and
warranties of FFCA contained in this Section are being made by FFCA as of the
date of this Agreement and 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
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itself, which financial statements and other information are true, correct
and complete in all material respects as of the date such financial
statements and other information were prepared or delivered to FFCA; 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
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, this
Agreement and the other Loan Documents shall constitute the legal, valid
and binding obligations of Debtor enforceable against Debtor in accordance
with their respective terms.
D. Litigation. There are no suits, actions, proceedings or
investigations pending or threatened against or involving Debtor 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 or the Premises.
E. Absence of Breaches or Defaults. Debtor is 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 is a party or
by which Debtor, the Premises or any of the property of Debtor 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.
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 intends to
use each of the Premises solely for the operation of a Permitted Facility,
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 Facility does not
constitute a nonconforming use under applicable zoning requirements. The
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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.
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. 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 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. No Hazardous Materials or Regulated
Substances 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 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, Regulated Substances or USTs 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, Regulated Substances or USTs, except in De Minimis Amounts, or
of any facts which would give rise to any such action, nor has Debtor
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(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, Regulated Substances or USTs on or
at the Premises, or the use, handling, manufacturing, generation,
production, storage, treatment, processing, transportation or disposal of
any Hazardous Materials, Regulated Substances or USTs at or on the
Premises; (b) received any notice under the citizen suit provision of any
Environmental Law in connection with the Premises or any facilities,
operations or activities conducted thereon, or any business conducted in
connection therewith; or (c) received any request for inspection, request
for information, notice, demand, administrative inquiry or any formal or
informal complaint or claim with respect to or in connection with the
violation or threatened violation of any Environmental Laws or existence of
Hazardous Materials, Regulated Substances or USTs relating to the Premises
or any facilities, operations or activities conducted thereon or any
business conducted in connection therewith, except in De Minimis Amounts.
The information and disclosures in the Questionnaires is 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 this 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 and, notwithstanding anything to the contrary in this
Agreement or the other Loan Documents, the Permitted Encumbrances, provided
that, with respect to the Leased Premises, Debtor is the holder of a
leasehold interest in the land relating thereto and the holder of a fee
interest in the buildings and improvements relating thereto, as indicated
in the Ground Lease Estoppel Certificate and Consent. 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 the Permitted Exceptions and, notwithstanding anything to the
contrary in this Agreement or the other Loan Documents, the Permitted
Encumbrances. Upon Closing, FFCA shall have a first priority lien upon and
security interest in Debtor's right, title and interest in and to the
Premises pursuant to the Mortgages and the UCC-1 Financing Statements
except the Permitted Exceptions and, notwithstanding anything to the
contrary in this Agreement or the other Loan Documents, the Permitted
Encumbrances.
M. No Other Agreements and Options. Neither Debtor 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
12
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
from fulfilling its obligations under this Agreement or the other Loan
Documents.
N. No Mechanics' Liens. To the best of Debtor's knowledge after due
inquiry, there are no outstanding accounts payable, mechanics' liens, or
rights to claim a mechanics' lien in favor of any materialman, laborer, or
any other person or entity in connection with labor or materials furnished
to or performed on any portion of the Premises. No work has been performed
or is in progress nor have materials been supplied to the Premises or
agreements entered into for work to be performed or materials to be
supplied to the Premises prior to the date hereof, which will not have been
fully paid for on or before the Closing Date, or which might provide the
basis for the filing of such liens against the Premises or any portion
thereof. Debtor shall be responsible for any and all claims for mechanics'
liens and accounts payable that have arisen or may subsequently arise due
to agreements entered into for and/or any work performed on, or materials
supplied to the Premises prior to the Closing Date. Debtor has 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. 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. Ground Lease. Debtor has delivered to FFCA a certified true,
correct and complete copy of the Ground Lease. The Ground Lease has not
been modified, amended, supplemented or otherwise revised. The Ground
Lease is the only lease or agreement between the Ground Lessor and Debtor
with respect to the Leased Premises. The Ground Lease is in full force and
effect and constitutes the legal, valid and binding obligation of Debtor,
enforceable against Debtor in accordance with its terms. Debtor has not
assigned, transferred, mortgaged, hypothecated or otherwise encumbered the
Ground Lease or any interest therein, and Debtor has not received any
notice that the Ground Lessor has made any assignment, pledge or
hypothecation of all or any part of its interest in the Ground Lease.
Debtor has not received any notice of default from the Ground Lessor which
has not been cured or given any notice of default to the Ground Lessor
which has not been cured. No event has occurred and no condition exists
which, with the giving of notice or the lapse of time or both, would
constitute a default by the Ground Lessor or Debtor under the Ground Lease.
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.
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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 the Premises, all
drawings, plans, and specifications for the Premises in possession of
Debtor, all engineering reports relating to the Premises in the possession
of Debtor, the files, correspondence and documents relating to the
Premises, and the financial books and records, including lists of
delinquencies, relating to the ownership, operation, and maintenance of the
Premises (including, without limitation, any of the foregoing information
stored in any computer files), and (ii) allow such persons to make such
inspections, tests, copies, and verifications as FFCA considers necessary.
B. Fixed Charge Coverage Ratio. Until such time as all of Debtor's
obligations under the Notes and the other Loan Documents are paid,
satisfied and discharged in full, Debtor shall maintain a Fixed Charge
Coverage Ratio at all of the Premises of at least 1.25:1 in the aggregate,
as determined on the last day 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,
Depreciation and Amortization, Interest Expense and Operating Lease
Expense, less a corporate overhead allocation (in an amount equal to 3% 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 and shall be applied on an aggregate basis with respect to all of
the Premises:
"Capital Lease" shall mean any lease of any property (whether
real, personal or mixed) by Debtor 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 Debtor. 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.
14
"Equipment Payment Amount" shall mean for any period of
determination the sum of all amounts payable during such period of
determination under all (i) leases for equipment located at one or
more of the Premises and (ii) all loans secured by equipment located
at one or more of the Premises.
"FFCA Payments" shall mean with respect to the period of
determination, the sum of all amounts payable under the Notes.
"Gross Sales" shall mean the sales or other income arising from
all business conducted at all of the Premises by Debtor during the
period of determination, less sales tax and any amounts received from
not-for-profit sales of all non-food items approved for use in
connection with promotional campaigns, if any.
"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 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 Debtor
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 Debtor under any operating leases with respect to
one or more of the Premises and the business operations thereon during
the period of determination, including, without limitation, the Ground
Lease, as determined in accordance with GAAP.
Notwithstanding the foregoing, FFCA shall have the right to divide the
Loans (and the corresponding Loan Documents) into one or more Securitized
Loan Pools in connection with one or more Securitizations. If any
Securitized Loan Pool does not include all of the Loans, Debtor shall
maintain with respect to the Loans in each Securitized Loan Pool an
aggregate Fixed Charge Coverage Ratio, as determined on the date set forth
above, of at least 1.25:1 for all of the Premises corresponding to the
Loans in such Securitized Loan Pool, which Fixed Charge Coverage Ratio
requirement shall be in addition to the requirement to maintain an
aggregate Fixed Charge Coverage Ratio of at least 1:25:1 for all of the
Premises not included in any Securitized Loan Pool, and shall apply until
such time as all of the Debtor's obligations under the Notes and the other
Loan Documents
15
corresponding to such Loans are paid, satisfied and discharged in full. To
the extent that an aggregate Fixed Charge Coverage Ratio requirement is
imposed by FFCA with respect to the Loans in any Securitized Loan Pool, for
the purposes of determining whether or not such Fixed Charge Coverage Ratio
requirement has been satisfied, the definitions relating to the Fixed
Charge Coverage Ratio shall be deemed to be modified as applicable to
provide for the calculation of the aggregate Fixed Charge Coverage Ratio
for all of the Premises corresponding to such Securitized Loan Pool and the
aggregate Fixed Charge Coverage Ratio for all of the Premises which are not
included in any Securitized Loan Pool rather than a calculation of the
aggregate Fixed Charge Coverage Ratio for all of the Premises.
C. Lost Note. Debtor shall, if any Note is mutilated, destroyed,
lost or stolen (a "Lost Note"), promptly deliver to FFCA, upon receipt of
an affidavit from FFCA stipulating that such Note has been mutilated,
destroyed, lost or stolen, in substitution therefor, a new promissory note
containing the same terms and conditions as such Lost Note with a notation
thereon of the unpaid principal and accrued and unpaid interest. Debtor
shall provide fifteen (15) days' prior notice to FFCA before making any
payments to third parties in connection with a Lost Note.
D. Affiliate Transactions. Unless otherwise approved by FFCA, all
transactions between Debtor and any of its Affiliates shall be on terms
substantially as advantageous to Debtor as those which could be obtained by
Debtor in a comparable arm's length transaction with a non-Affiliate of
Debtor.
E. Lease Modifications. The Ground Lease shall not be modified,
amended, terminated, cancelled or surrendered without FFCA's prior written
consent.
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 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.
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, provided that, with respect
to the Leased Premises, Debtor shall be the holder of a leasehold interest
in the land relating thereto and the holder of a fee interest in the
buildings and
16
improvements relating thereto, as indicated in the Ground Lease Estoppel
Certificate and Consent. 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, the Premises and the equipment located thereon shall be in good
condition and repair, free from structural defects, and of good workmanship
and materials, and the Premises shall be fully equipped and operational,
clean, orderly, sanitary, safe, well-lit, landscaped, decorated, attractive
and with a suitable layout, physical plant, traffic pattern and location,
all as determined by FFCA in its sole discretion.
C. Evidence of Title. FFCA shall have received for each of the
Premises a preliminary title report and irrevocable commitment to insure
title in the amount of the Loan relating to such Premises, by means of a
mortgagee's, ALTA extended coverage policy of title insurance (or its
equivalent, in the event such form is not issued in the jurisdiction where
the Premises is located) issued by Title Company showing good and
marketable fee title in such Premises in Debtor, committing to insure
FFCA's first priority lien upon and security interest in such Premises
subject only to Permitted Exceptions, and containing such endorsements as
FFCA may require. FFCA shall also have received evidence reasonably
satisfactory to FFCA that Debtor is the owner of all of the equipment,
trade fixtures, appliances and other personal property located on or at
each of the Premises free and clear of all liens, encumbrances, charges and
security interests, except the liens created by the Mortgages and the UCC-1
Financing Statements.
D. Survey. FFCA shall have received a current ALTA survey of each of
the Premises, the form and substance of which shall be satisfactory to FFCA
in its sole discretion. Debtor shall have provided FFCA with evidence
satisfactory to FFCA that the location of each of the Premises is not
within the 100-year flood plain or identified as a special flood hazard
area as defined by the Federal Insurance Administration, or if any Premises
is in such a flood plain or special flood hazard area, Debtor shall provide
FFCA with evidence of flood insurance maintained on such Premises in
amounts and on terms and conditions satisfactory to FFCA.
E. Environmental. FFCA shall have received an Environmental Policy
with respect to each of the Premises.
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 Facility 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
17
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 or 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 discovered by FFCA which
has had or would have a material adverse effect on the Premises, Debtor 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. Debtor shall have caused Counsel to
prepare and deliver an opinion to FFCA in form and substance satisfactory
to FFCA and its counsel.
J. Availability of Funds. FFCA presently has sufficient funds to
discharge its obligations under this Agreement. In the event that the
transaction contemplated by this Agreement does not close on or before the
date established for Closing under Section 4(a) hereof, FFCA does not
warrant that it will thereafter have sufficient funds to consummate the
transaction contemplated by this Agreement.
K. Compliance with First Union Covenants. Debtor shall have provide
FFCA with a true, correct and complete copy of that certain Amended and
Restated Loan and Security Agreement (the "First Union Agreement")
currently in effect between Debtor and First Union National Bank ("First
Union"). Debtor shall have demonstrated to FFCA's satisfaction that Debtor
is in compliance with the First Union Agreement, and that upon the Closing
Debtor will continue to be in compliance with the First Union Agreement.
N. Ground Lease. The Ground Lease shall be in full force and effect
and Debtor shall be entitled to occupy the Leased Premises. FFCA shall
have approved the Ground Lease in its sole discretion and Debtor shall have
delivered to FFCA an estoppel certificate and consent from Ground Lessor,
the form and substance of which shall be satisfactory to FFCA in its sole
discretion (the "Ground Lease Estoppel Certificate and Consent"). If any
mortgages or deeds of trust (or other similar security agreements) encumber
fee simple title to the Leased Premises, the holders of such instruments
shall have delivered nondisturbance agreements to Debtor and FFCA with
respect to the Ground Lease in form and substance acceptable to FFCA in its
reasonable discretion (the "Nondisturbance Agreements").
O. Memoranda. Debtor shall have provided FFCA with a copy of a
recorded memorandum of lease (the "Memorandum") for the Leased Premises;
provided, however, if a Memorandum has not been recorded for the Leased
Premises, Debtor shall execute and deliver, and cause the Ground Lessor to
execute and deliver, a Memorandum in recordable form for the Ground Lease.
18
P. 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;
(5) Evidence of satisfactory zoning;
(6) UCC-1 Financing Statements;
(7) Environmental Indemnity Agreements;
(8) Ground Lease Estoppel Certificate and Consent;
(9) Nondisturbance Agreements, as applicable;
(10) Memorandum.
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 set forth in any of
the Loan Documents is false in any material respect, or if Debtor renders
any false statement or account.
(2) If any principal, interest or other monetary sum due under the
Notes, the Mortgages or any other Loan Document is not paid within five
days after the date when due; provided, however, notwithstanding the
occurrence of such an Event of Default, FFCA shall not be entitled to
exercise its rights and remedies set forth below unless and until FFCA
shall have given Debtor notice thereof and a period of five days from the
delivery of such notice shall have elapsed without such Event of Default
being cured.
(3) If Debtor fails to observe or perform any of the other covenants
(except with respect to a breach of the Fixed Charge Coverage Ratio, which
breach is addressed in subitem (6) below), conditions, or obligations of
this Agreement; provided, however, if any such failure does not involve the
payment of any monetary sum, is not willful or intentional, does not place
any rights or interest in collateral of FFCA in immediate jeopardy, and is
within the reasonable power of Debtor to promptly cure after receipt of
notice thereof, all as determined by FFCA in its reasonable discretion,
then such failure shall not constitute an Event of Default hereunder,
unless otherwise expressly provided herein, unless and until FFCA shall
have given Debtor notice thereof and a period of 30 days shall have
elapsed, during which period Debtor may correct or cure such failure, upon
failure of which an Event of Default shall be deemed to have occurred
hereunder without further notice or demand of any kind being required. If
such failure cannot
19
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 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 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 equal monthly payments over the then
remaining term of such Note at the rate of interest set forth therein.
20
Notwithstanding the foregoing, to the extent that, in accordance with
the provisions of Section 7.B, FFCA shall have imposed an aggregate Fixed
Charge Coverage Ratio requirement with respect to all of the Premises
corresponding to the Loans in any Securitized Loan Pool, then, in order to
prevent an Event of Default from occurring by reason of a breach of such
aggregate Fixed Charge Coverage Ratio requirement, Debtor must either (i)
pay to FFCA the Modified FCCR Amount (without premium or penalty) within
the aforesaid 30 day period with respect to such of the Premises
corresponding to the Loans in such Securitized Loan Pool (starting with the
Premises with the lowest Fixed Charge Coverage Ratio and proceeding in
ascending order to the Premises with the next 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 Securitized 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.
(7) If there is a breach or default, after the passage of any
applicable notice and grace period, under the Ground Lease or if the Ground
Lease terminates or expires prior to the scheduled maturity date of the
Note corresponding to the Leased Premises.
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
21
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 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 (x) a Premises by substituting a
Substitute Premises for such Premises, if permitted by the terms of Section
10.A(6) (each a "FCCR Substitution"), and (y) up to three of the Premises by
substituting Substitute Premises for such Premises (each, a "General
Substitution"), subject to fulfillment of the following conditions:
(i) Debtor shall provide FFCA with notice of its intention to
substitute a Substitute Premises (X) with respect to each FCCR
Substitution, within the applicable 30 day period contemplated by Section
10.A(6) and the closing of such substitution shall take place within the
applicable 60 day period contemplated by such subsection, and (Y) with
respect to each General Substitution, at least 60 days prior to the
proposed date of
22
substitution and the closing of such substitution shall take place within the 60
day period following the delivery of such notice to FFCA;
(ii) Debtor must provide for the substitution of a Substitute
Premises, and the proposed Substitute Premises must:
(1) be a Permitted Facility, 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 the Premises on an individual basis rather than on
an aggregate basis with the other Premises) at least equal the greater
of (A) the Fixed Charge Coverage Ratio for the Premises being
replaced, (B) the Fixed Charge Coverage Ratio as of the Closing Date
for the Premises being replaced and (C) 1.25:1, and the substitution
must not cause a breach of any Fixed Charge Coverage Ratio requirement
otherwise set forth in this Agreement;
(3) be owned by and vested in Debtor, free and clear of all
liens and encumbrances, except such matters as are acceptable to FFCA
(the "Substitute Premises Permitted Exceptions");
(4) have a fair market value at least equal to the greater of
(A) the then fair market value of the Premises to be replaced or (B)
the fair market value as of the Closing Date of the Premises to be
replaced, 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 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 by means of a mortagee'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
23
Premises, subject only to the Substitute Premises Permitted Exceptions and
containing endorsements substantially comparable to those required by FFCA
at the Closing.
(v) FFCA shall have received a current ALTA survey of such proposed
Substitute Premises, the form of which shall be comparable to those
received by FFCA at the Closing and sufficient to cause the standard survey
exceptions set forth in the title policy referred to in the preceding
subsection to be deleted, and disclosing no matters other than the
Substitute Premises Permitted Exceptions.
(vi) FFCA shall have received an environmental insurance policy with
respect to such proposed Substitute Premises, which 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 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 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, the Mortgage and UCC Financing Statements
(the "Substitute Documents"), to provide FFCA with a first priority lien on
the proposed Substitute Premises (or with respect to proposed Substitute
Premises subject to ground leases, a first priority lien on the
improvements located at such proposed Substitute Premises and Debtor's
leasehold interest in the land thereunder), subject only to the Substitute
Premises Permitted Exceptions, and all other rights, remedies and benefits
with respect to the proposed Substitute Premises which FFCA holds in the
Premises to be replaced, all of which documents shall be in form and
substance reasonably satisfactory to FFCA.
(x) the representations and warranties set forth in the Substitute
Documents and Section 6 of this Agreement applicable to the proposed
Substitute Premises shall be true and correct in all material respects as
of the date of substitution (with appropriate modifications consistent with
the foregoing provisions of this Section to reflect proposed Substitute
Premises subject to ground leases), and Debtor shall have delivered to FFCA
an officer's certificate certifying to that effect.
(xi) Debtor shall have delivered to FFCA certificates of insurance
and insurance policies showing that insurance required by the Substitute
Documents is in full force and effect.
Upon satisfaction of the foregoing conditions with respect to the
release of Premises:
24
(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 Mortgage) 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
Mortgage, UCC 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, (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: Xx. Xxxxxxx X. Xxxxxx
Chief Executive Officer and President
Precision Auto Care, Inc.
000 Xxxxxx Xxxxx, XX
Xxxxxxxx, XX 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. 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
25
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.
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
26
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 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 Notes
will be delivered in the State of Arizona and there are substantial
contacts between the parties and the transactions contemplated herein and
the State of Arizona. For purposes of any action or proceeding arising out
of this Agreement, the parties hereto hereby expressly submit to the
jurisdiction of all federal and state courts located in the State of
Arizona and Debtor consents that it may be served with any process or paper
by registered mail or by personal service within or without the State of
Arizona in accordance with applicable law. Furthermore, Debtor waives and
agrees not to assert in any such action, suit or proceeding that it is not
personally subject to the jurisdiction of such courts, that the action,
suit or proceeding is brought in an inconvenient forum or that venue of the
action, suit or proceeding is improper. It is the intent of the parties
hereto that all provisions of this Agreement shall be governed by and
construed under the laws of the State of Arizona, without giving effect to
its principles of conflicts of law. To the extent that a court of
competent jurisdiction finds Arizona law inapplicable with respect to any
provisions hereof, then, as to those provisions only, the laws of the
states where the Premises are located shall be deemed to apply. Nothing in
this Section shall limit or restrict the right of FFCA to commence any
proceeding in the federal or state courts located in the states in which
the Premises are located to the extent FFCA deems such proceeding necessary
or advisable to exercise remedies available under this Agreement or the
other Loan Documents.
L. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of Debtor and FFCA and their respective successors and
permitted assigns, including, without limitation, any United States
trustee, any debtor in possession or any trustee appointed from a private
panel.
27
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,
sell, transfer or assign any Note, Mortgage and/or any of the other Loan
Documents, and any or all servicing rights with respect thereto (each, a
"Transfer"), or grant participations in any Note, Mortgage and/or any of
the other Loan Documents (each, a "Participation"), or complete a
Securitization with respect to any Note, Mortgage and/or any of the other
Loan Documents.
(2) Debtor agrees to cooperate in good faith with FFCA in connection
with any such Transfer, Participation and/or Securitization of any Note,
Mortgage and/or any of the other Loan Documents, including, without
limitation, (i) providing such documents, financial and other data, and
other information and materials (the "Disclosures") which would typically
be required with respect to Debtor 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 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
28
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 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 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 the Ground Lease, 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 the Ground Lease, 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.
29
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_____________________________________________
Printed Name___________________________________
Its____________________________________________
DEBTOR:
PRECISION AUTO CARE, INC., a Virginia
corporation
By_____________________________________________
Printed Name___________________________________
Its____________________________________________
30
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on , 1999
by , of FFCA Acquisition Corporation, a Delaware
corporation, on behalf of the corporation.
_______________________________________________
Notary Public
My Commission Expires:
__________________________
STATE OF )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me on , 1999
by , of Precision Auto Care, Inc. a Virginia
corporation, on behalf of the corporation.
_______________________________________________
Notary Public
__________________________
My Commission Expires:
31
EXHIBIT A
DESCRIPTION OF PREMISES; ALLOCATED LOAN AMOUNT
Premises FFCA No. Loan Amount
----------------------------------------------- --------- -----------
0000 00xx Xxxxxx, Xxxxxx, XX 0000-0000 $450,000.00
0000 Xxxxx Xxxxxxx Xxxx, Xxxxxx, XX 0000-0000 $600,000.00
00000 Xxxx Xxxxxxxxx, Xxxxxx, XX 0000-0000 $400,000.00
0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxxx, XX 0000-0000 $170,000.00
0000 Xxxxxxxxx Xxxx, Xxxxxxxxxxxx, XX 0000-0000 $772,000.00
0000 Xxxxx Xxxxxx, Xxxxxx, XX 0000-0000 $550,000.00
0000 Xxxx Xxxxxxxxxx, Xxxxxxxx, XX 0000-0000 $205,000.00
0000 Xxxxxxxxx Xxxxx, Xxxxxx, XX 0000-0000 $425,000.00
000 Xxxxx Xxxxxx, Xxxxxxxxxxx, XX 0000-0000 $500,000.00
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 0000-0000 $564,000.00
0000 Xxxxx Xxxxxxxx, Xxxxxx, XX 0000-0000 $341,000.00
000 Xxxx 0xx Xxxxxx, Xxxxxxxx, XX 0000-0000 $425,000.00
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxxx, XX 0000-0000 $125,000.00
0000 Xxxxx Xxxx, Xxxxxxxx, XX 0000-0000 $217,000.00
0000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 0000-0000 $450,000.00
0000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxx, XX 0000-0000 $282,000.00
0000 Xxxxx Xxxx Xxxxxx Xxxx, Xxxxxxxxxxxx, XX 0000-0000 $233,000.00
0000 Xxxxx Xxxxxxx, Xxxxxxxxxxxx, XX 0000-0000 $420,000.00
0000 Xxxxxxxx, Xxxxxx, XX 0000-0000 $ 75,000.00
