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EXHIBIT 20.3
EQUIPMENT LOAN AGREEMENT
(Acquisition)
THIS EQUIPMENT LOAN AGREEMENT (this "Agreement") is made as of April 21,
2000, by and between FFCA ACQUISITION CORPORATION, a Delaware corporation
("FFCA"), whose address is 00000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
000000, and UNI-MARTS, INC., a Delaware corporation ("Debtor"), whose address is
000 Xxxx Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxxx 00000-0000.
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 Equipment
Loans to provide long-term financing for the Equipment, and for no
other purpose whatsoever. Each Equipment Loan will be evidenced by
an Equipment Note and secured by a first priority security interest
in the Equipment pursuant to an Equipment Security Agreement and UCC-
1 Financing Statements. FFCA has committed to make the Equipment
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 or entity, 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.
"Closing" shall have the meaning set forth in Section 4.
"Closing Date" shall have the meaning set forth in Section 4.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et
seq., as amended.
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"Commitment" means that certain Commitment Letter dated February 4, 2000
(as amended February 18, 2000), between FFCA and Debtor with respect to the
transactions contemplated by this Agreement, and any amendments or supplements
thereto.
"Counsel" means legal counsel to Debtor, licensed in the
state(s) in which (i) the Equipment is located, (ii) Debtor is
incorporated or formed and (iii) Debtor resides or maintains its
chief executive offices, as selected by Debtor, and approved by FFCA.
"Debtor Entities" means, collectively, Debtor and any Affiliate
of Debtor.
"Disclosures" has the meaning set forth in Section 13.P.
"Equipment" means the furniture, equipment, trade fixtures,
appliances and other personal property defined in the Equipment
Security Agreement as the "Collateral."
"Equipment Loan" or "Equipment Loans" means, as the context may require,
the equipment loan to be made by FFCA to Debtor with respect to the Equipment
for a Premises in the Equipment Loan Amount, or all of the equipment loans to be
made by FFCA to Debtor with respect to the Equipment located at the Premises in
the Equipment Loan Amounts.
"Equipment Loan Amount" or "Equipment Loan Amounts" means, as
the context may require, the aggregate amount set forth in Section 2
or, with respect to each Premises, the individual amounts set forth
on Exhibit A.
"Equipment Note" or "Equipment Notes" means, as the context may require,
the equipment promissory note dated as of the date of this Agreement to be
executed by Debtor in favor of FFCA evidencing an Equipment Loan with respect to
a Premises or the equipment promissory notes dated as of the date of this
Agreement to be executed by Debtor in favor of FFCA evidencing the Equipment
Loans with respect to all of the Premises, as the same may be amended, restated
and/or substituted from time to time. An Equipment Note will be executed for
each Premises in the Equipment Loan Amount corresponding to such Premises.
"Equipment Security Agreement" or "Equipment Security Agreements" means,
as the context may require, the equipment security agreement dated as of the
date of this Agreement to be executed by Debtor for the benefit of FFCA with
respect to the Equipment at each Premises or the equipment security agreements
dated as of the date of this Agreement to be executed by Debtor for the benefit
of FFCA with respect to the Equipment at all of the Premises, as the same may be
amended from time to time. An equipment security agreement will be executed for
each of the Premises.
"Escrow Agent" means Lawyers Title Insurance Corporation, a
Virginia corporation.
"Event of Default" has the meaning set forth in Section 10.
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"Fee" means an underwriting, equipment assessment, valuation,
processing and commitment fee equal to 1% of the sum of the Equipment
Loan Amounts, which Fee shall be payable as set forth in Section 3.
"FFCA Entities" means, collectively, FFCA, Franchise Finance and any
Affiliate of FFCA or Franchise Finance.
"Franchise Finance" means Franchise Finance Corporation of
America, a Delaware corporation, and its successors.
"GAAP" means generally accepted accounting principles consistently
applied.
"Governmental Authority" means any governmental authority,
agency, department, commission, bureau, board, instrumentality, court or quasi-
governmental authority of the United States, the state where the Equipment is
located or any political subdivision thereof.
"Indemnified Parties" has the meaning set forth in Section 12.
"Loan Documents" means, collectively, this Agreement, the
Equipment Notes, the Equipment Security Agreements, the UCC-1
Financing Statements and all other documents executed in connection
therewith or contemplated thereby.
"Loan Pool" means:
(i) in the context of a Securitization, any pool or group of loans
that are a part of such Securitization;
(ii) in the context of a Transfer, all loans which are sold,
transferred or assigned to the same transferee; and
(iii) in the context of a Participation, all loans as to which
participating interests are granted to the same participant.
"Lost Note" has the meaning set forth in Section 7.H.
"Master Lease" means the lease dated as of the date of this
Agreement between Debtor, as lessee, and Master Lessor, as lessor,
with respect to the Premises specified therein, as the same may be
amended from time to time.
"Master Lessor" means Uni Realty of Xxxxxx-Xxxxx, X.X., a
Delaware limited partnership.
"Material Adverse Effect" means a material adverse effect on (i) the
business, condition, worth or operations of Debtor, any or all of the Premises
or any or all of the Equipment, including, without limitation, the operation of
any of the Premises as a Uni-Mart Facility and/or the value of any or all of the
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Premises or Equipment, or (ii) Debtor's ability to perform the obligations under
the Loan Documents.
"Mortgage" or "Mortgages" has, as the context may require, the meanings
set forth in the Mortgage Loan Agreement.
"Mortgage Loan Agreement" means the loan agreement dated as of the date of
this Agreement between Master Lessor and FFCA with respect to mortgage loans to
be made by FFCA to Master Lessor, as the same may be amended from time to time.
"Mortgage Loan Documents" means the "Loan Documents" as defined in the
Mortgage Loan Agreement.
"Mortgage Note" or "Mortgage Notes" means, as the context may
require, the "Note" or "Notes" as defined in the Mortgage Loan
Agreement.
"Other Agreements" means, collectively, all agreements and
instruments between, among or by (1) any of the Debtor Entities, and,
or for the benefit of, (2) any of the FFCA Entities, including,
without limitation, promissory notes and guaranties; provided,
however, the term "Other Agreements" shall not include the agreements
and instruments defined as the Loan Documents.
"Participation" means one or more grants by FFCA or any of the other FFCA
Entities to a third party of a participating interest in notes evidencing
obligations to repay secured or unsecured loans owned by FFCA or any of the
other FFCA Entities or any or all servicing rights with respect thereto.
"Permitted Lien(s)" shall mean the right and interest of third party
lessors of certain Equipment incidental to the operation of each Uni Mart
Facility, including by way of example and without limitation, the right and
interest of the lessors of various coffee equipment, video security equipment,
certain gas dispensers and Slushy machines.
"Person" means any individual, corporation, partnership, limited liability
company, trust, unincorporated organization, Governmental Authority or any other
form of entity.
"Premises" means the parcels of real estate described in Exhibit A
attached hereto, all rights, privileges and appurtenances associated therewith,
and all buildings, fixtures and other improvements 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.
"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
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by FFCA or any of the other FFCA Entities (and, to the extent applicable, the
subsequent sale, transfer or assignment of such notes to another special purpose
corporation, trust or other entity identified by FFCA or any of the other FFCA
Entities), and the issuance of bonds, certificates, notes or other instruments
evidencing interests in pools of such loans, whether in connection with a
permanent asset securitization or a sale of loans in anticipation of a permanent
asset securitization. Each Securitization shall be undertaken in accordance
with all requirements which may be imposed by the investors or the rating
agencies involved in each such sale, disposition, transfer or assignment or
which may be imposed by applicable securities, tax or other laws or regulations,
including, without limitation, laws relating to FFCA's status as a real estate
investment trust.
"Substitute Documents" has the meaning set forth in Section 13.
"Substitute Equipment" means equipment, trade fixtures,
furniture, furnishings and appliances owned by Debtor, located at a
Substitute Premises and substituted for Equipment in accordance with
the requirements of Section 13.
"Substitute Premises" means one or more parcels of real property
substituted for a Premises in accordance with the requirements of Section 13 of
the Mortgage Loan Agreement, together with all rights, privileges and
appurtenances associated therewith, and all buildings, fixtures and other
improvements located thereon (whether or not affixed to such real estate).
Where two or more parcels of real property comprise a Substitute Premises, such
parcels shall be aggregated and deemed to constitute such Substitute
Premises for all purposes of this Agreement.
"Third Party Leases" means any leases of any Premises which are not
inconsistent with the operations of a Uni-Mart Facility on the Premises.
"Transfer" means one or more sales, transfers or assignments by FFCA or
any of the other FFCA Entities to a third party of notes evidencing obligations
to repay secured or unsecured loans owned by FFCA or any of the other FFCA
Entities or any or all servicing rights with respect thereto.
"Uni-Mart Facility" means a Uni-Mart or Xxxxxxx convenience
store with or without gasoline station as noted on Exhibit A, and
with such other ancillary uses permitted by the Third Party Leases
that are not inconsistent with the operations of such facilities.
"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
Equipment.
2. TRANSACTION. On the terms and subject to the conditions
set forth in the Loan Documents, FFCA shall make the Equipment Loans
to Debtor to provide financing for the Equipment. The Equipment Loans will
be evidenced by the Equipment Notes and secured by the Equipment Security
Agreements and the UCC-1 Financing Statements. Debtor shall repay the
outstanding principal amount of the
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Equipment Loans together with interest thereon in the manner and in accordance
with the terms and conditions of the Equipment Notes and the other Loan
Documents. The aggregate Loan Amount shall be $1,100,000 allocated among the
Premises as set forth on Exhibit A. The Equipment Loans shall be advanced at
the Closing in cash or otherwise immediately available funds subject to any
prorations and adjustments required by this Agreement.
3. UNDERWRITING, VALUATION, PROCESSING AND COMMITMENT FEE.
Debtor paid FFCA a portion of the Fee pursuant to the Commitment, and
such portion was deemed fully earned when received. The remainder of the Fee
shall be paid at the Closing and shall be deemed nonrefundable and fully earned
upon the Closing. The Fee constitutes FFCA's underwriting, valuation,
processing and commitment fee. The portion of the Fee paid and the balance due
at Closing shall be adjusted down (and paid, returned or credited as
appropriate) to reflect a Fee equal to 1% of the actual Equipment Loan Amount.
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 DATE. (a) The Equipment Loan shall be closed (the
"Closing") contemporaneously with 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 April 20, 2000 unless such extension shall be
approved by FFCA in its sole discretion (the date on which the Closing shall
occur is referred to herein as the "Closing Date").
(b) Debtor and FFCA hereby engage Escrow Agent to act as escrow agent in
connection with the transactions described in this Agreement. Prior to the
Closing Date, the parties hereto shall deposit with Escrow Agent 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, UCC search and litigation search charges, the reasonable
attorneys' fees of Debtor, attorneys' fees and expenses of FFCA,
FFCA's in-house equipment inspection costs and fees, stamp taxes,
transfer fees, and escrow, filing and recording fees. All personal
property and other applicable taxes and assessments and other charges
relating to the Equipment which are due and payable on or prior to the Closing
Date shall be paid by Debtor at or prior to the Closing. The Closing documents
shall be dated as of the Closing Date.
Escrow Agent 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 Escrow Agent all documents, pay to Escrow Agent all sums
and do or cause to be done all other things necessary or required by this
Agreement to enable Escrow Agent to comply herewith. Escrow Agent 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 Escrow Agent.
Escrow Agent 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
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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 Escrow Agent of such
documents and funds, after deducting therefrom its charges and its expenses and
attorneys' fees incurred in connection with any such court action, shall relieve
Escrow Agent of all further liability and responsibility for such documents and
funds. Escrow Agent's receipt of this Agreement and opening of an escrow
pursuant to this Agreement shall be deemed to constitute conclusive evidence of
Escrow Agent's agreement to be bound by the terms and conditions of this
Agreement pertaining to Escrow Agent. Disbursement of any funds shall be made
by wire transfer, as directed by FFCA and Debtor. Escrow Agent shall be under
no obligation to disburse any funds represented by check or draft, and no check
or draft shall be payment to Escrow Agent 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. Escrow Agent 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 Equipment, 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.
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:
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A. Information and Financial Statements. Debtor has delivered to
FFCA financial statements (either audited financial statements or, if
Debtor does not have audited financial statements, certified financial
statements) and certain other information concerning itself, which
financial statements and other information are true, correct and complete
in all material respects; and no material adverse change has occurred with
respect to any such financial statements and other information provided to
FFCA since the date such financial statements and other information were
prepared or delivered to FFCA. Debtor understands that FFCA is relying upon
such financial statements and information and Debtor represents that
such reliance is reasonable. All such financial statements were
prepared in accordance with GAAP and accurately reflect as of the date of
this Agreement and the Closing Date, the financial condition of each
individual or entity to which they pertain.
B. Organization and Authority. (1) Debtor is duly organized or
formed, validly existing and in good standing under the laws of
its state of incorporation or formation, and qualified as a
foreign corporation, partnership or limited liability company,
as applicable, to do business in any jurisdiction where such
qualification is required. All necessary corporate, partnership
or limited liability company action has been taken to authorize
the execution, delivery and performance of this Agreement and
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, the Premises or the Equipment before any arbitrator or
Governmental Authority which might reasonably result in any
Material Adverse Effect.
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, the Equipment 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. Intended Use; Compliance With Laws. Debtor intends to use the
Equipment solely in connection with the operation of a Uni-Mart
Facility, and for no other purposes. Such intended use will not
violate any zoning or other governmental requirement applicable
to the Equipment. The Equipment complies with all applicable
statutes, regulations, rules, ordinances, codes, licenses,
permits,
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orders and approvals of each Governmental Authority having
jurisdiction over the Equipment, 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, except where such noncompliance
will not have a Material Adverse Effect.
G. Licenses and Permits. Debtor has all required
licenses and permits, both governmental and private, to use and
operate the Equipment in the intended manner, except to the
extent the failure to have such licenses and permits will not
have a Material Adverse Effect.
H. Condition of Equipment. The Equipment is of good
workmanship and materials, fully operational and in good condition and
repair, except to the extent the failure of the Equipment to be
in such condition will not have a Material Adverse Effect.
I. Title to Equipment; First Priority Lien. Title to the
Equipment is vested in Debtor, free and clear of all liens,
encumbrances, charges and security interests of any nature
whatsoever except for Permitted Liens. Upon Closing, FFCA shall
have a first priority lien on and security interest in the
Equipment pursuant to the Equipment Security Agreements and UCC-
1 Financing Statements.
J. No Other Agreements and Options. Neither Debtor nor the
Equipment are subject to any commitment, obligation, or
agreement, including, without limitation, any right of first
refusal, option to purchase or lease granted to a third party,
which could or would prevent or hinder FFCA in making the
Equipment 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 except for Permitted Liens.
K. 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 Equipment Loan Amount, and
such analysis will not be made available to Debtor.
L. Mechanics Liens. There are no outstanding accounts
payable which if not paid timely would have a Material Adverse Effect,
nor are there any 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 Equipment and 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
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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 Equipment or any portion thereof, the existence, nonpayment or
filing of which would have a Material Adverse Effect; and Debtor
shall and does hereby agree to defend, indemnify and forever
hold FFCA and FFCA's designees harmless from and against any and
all such mechanics' lien claims, accounts payable or other
commitments relating to the Equipment.
M. Master Lease. Debtor has delivered to FFCA a certified
true, correct and complete copy of the Master Lease. The Master
Lease has not been modified, amended, supplemented or otherwise
revised. The Master Lease is the only lease or agreement between
Master Lessor and Debtor with respect to the Premises. The
Master Lease is in full force and effect and constitutes the
legal, valid and binding obligations of Debtor, enforceable
against Debtor in accordance with its terms. Debtor has not
assigned, transferred, mortgaged, hypothecated or otherwise
encumbered the Master Lease or any interest therein, and Debtor
has not received any notice that Master Lessor has made any
assignment, pledge or hypothecation of all or any part of its
interests in the Master Lease. Debtor has not received a notice
of default from Master Lessor which has not been cured or given
any notice of default to Master 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 Master Lessor or Debtor under the Master Lease.
All representations and warranties of Debtor made in this
Agreement shall be and will remain true and complete as of and
subsequent to the Closing Date as if
made and restated in full as of such time and shall survive the
Closing.
7. COVENANTS. Debtor covenants to FFCA from and after the
Closing Date as
follows:
A. Inspections. Debtor shall, at all reasonable times,
(i) provide FFCA and FFCA's officers, employees, agents,
advisors, attorneys, accountants, architects, and engineers with
access to the Premises and the Equipment, all drawings, plans,
and specifications for the Premises and the Equipment in
possession of Debtor, all engineering reports relating to the
Premises and the Equipment in the possession of Debtor, the
files and correspondence relating to the Premises and the
Equipment, and the financial books and records, including lists
of delinquencies, relating to the ownership, operation, and
maintenance of the Premises and the Equipment, and (ii) allow
such persons to make such inspections, tests, copies, and
verifications as FFCA considers necessary without unreasonably
interrupting Debtor's business (to the extent reasonably
possible) and upon reasonable advance notice.
B. Removal of Equipment. Except for purposes of
replacement with like property of equal or greater value and
repair in the ordinary course of
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business, Debtor shall not remove or allow to be removed from
the Premises the Equipment, or any part thereof, without the
prior written consent of FFCA. Debtor shall promptly give
written notice to FFCA of any substantial change in the
character of the business conducted on any of the Premises and
of the cessation of all or any part thereof and of any loss or
damage by fire or other casualty to any substantial part of the
Equipment.
C. No Additional Encumbrances; Perfected Security
Interest. Except as expressly provided in Section 7.B above,
Debtor shall remain the owner of the Equipment (whether acquired
prior to or after the date hereof) free from any lien, security
interest or encumbrance except those in favor of FFCA, and
Debtor shall not execute or permit the filing of any other such
financing statement thereon other than the UCC-1 Financing
Statements. Debtor shall defend the Equipment against all
claims and demands of all persons. Debtor shall not permit any
action to be taken which would adversely affect the value of the
Equipment or which would encumber, dilute or cloud Debtor's
title or interest therein. FFCA at all times shall have a
perfected security interest in the Equipment that shall be prior
to any other interests therein. Debtor shall do all acts and
things, shall execute and file all instruments (including
security agreements, UCC financing statements, continuation
statements, etc.) requested by FFCA to establish, maintain and
continue the perfected security interest of FFCA in the
Equipment, and shall promptly on demand pay all costs and
expenses of (a) filing and recording, including the costs of any
searches deemed necessary by FFCA from time to time to establish
and determine the validity and the continuing priority of the
security interest of FFCA, and (b) all other claims and charges
that in the opinion of FFCA might prejudice, imperil or
otherwise affect the Equipment or security interest therein of
FFCA. Debtor agrees that a carbon, photographic or other
reproduction of a security agreement or financing statement
shall be sufficient as a financing statement. FFCA is hereby
irrevocably appointed Debtor's attorney-in-fact to take any of
the foregoing actions requested of Debtor by FFCA if Debtor
should fail to take such actions, which appointment shall be
deemed coupled with an interest.
D. Maintenance and Repair. Debtor shall at all times
keep and maintain the Equipment in good order, repair and
condition and will promptly replace any part thereof that from
time to time may become obsolete, badly worn or in a state of
disrepair or, if supplies, be consumed in the normal course of
Debtor's business operations. FFCA shall have a lien on and
security interest in all replacements and all replacements shall
be free of any other lien, security interest or encumbrance of
any nature, including any purchase money lien or security
interest. Debtor shall not transfer or permit any transfer of
any part of the Equipment to be made or any interest therein to
be created by way of a sale (except as permitted below), by way
of a grant of a security interest, or by way of a levy or other
judicial process. In addition thereto, Debtor may dispose of
Equipment which becomes obsolete without notice to FFCA provided
such disposition is in the ordinary course of its business and
consistent with its past practices, the fair market value of
such Equipment at the time of disposition does not exceed
$10,000 per Premises and such disposition does not otherwise
operate to diminish the security of FFCA in any material
fashion.
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E. Notices. Debtor shall promptly notify FFCA of any
levy, distraint or other seizure by legal process or otherwise
of any part of the Equipment and of any threatened or filed
claims or proceedings that might in any way affect or impair any
of the Equipment.
F. Insurance. Debtor shall obtain and maintain in force
insurance policies, naming FFCA as sole loss payee and as
additional insured, covering losses or damage to the Equipment
due to fire (with extended coverage), theft, physical damage and
other such risks at its full replacement cost from time to time.
FFCA is hereby irrevocably appointed Debtor's attorney-in-fact
to endorse any check or draft that may be payable to Debtor,
alone or jointly with other payees, so that FFCA may collect the
proceeds payable for any loss under such insurance, which
appointment shall be deemed coupled with an interest. The
proceeds of such insurance, less any costs and expenses incurred
or paid by FFCA in the collection thereof, shall be applied
toward the cost of repair or replacement of the items damaged or
destroyed if an Event of Default does not exist at the time of
such damage or destruction or if an Event of Default does exist,
then, at the option of FFCA, on account of any sums secured by
the Equipment Security Agreement, whether or not then due or
payable. As an alternative to maintaining all of the insurance
required under this section with third party insurers, Debtor
may elect to self-insure for a portion of the required coverages
pursuant to a self-insurance program, provided that (i) the
total amount of self-insurance provided by Debtor with respect
to each policy of insurance required to be maintained by Debtor
hereunder shall not exceed $400,000 for each Premises, and (ii)
Debtor maintains a Net Worth (as defined hereafter) equal to at
least $20,000,000.00; provided, that Debtor shall at all times
provide the remaining portion of the coverages set forth in this
section with third party insurers complying with the provisions
of this section. The amount of all deductibles with respect to
such third party policies shall not, however, exceed in the
aggregate, when added to the amount of selfinsurance, the policy
limitation on self-insurance provided in the preceding sentence.
For purposes hereof, the term "Net Worth" means the total equity
in Debtor, determined in accordance with GAAP.
G. Actions by FFCA. (i) Debtor agrees that FFCA may, at
its option, and without any obligation to do so, pay, perform,
and discharge any and all amounts, costs, expenses and
liabilities that are the responsibility of Debtor under the Loan
Documents if Debtor fails to timely pay, perform or discharge
the same and such failure shall continue for 5 days after
Debtor's receipt of written demand from FFCA (except in the case
of an emergency which may have a Material Adverse Effect), and
all amounts expended by FFCA in so doing or in respect of or in
connection with the Equipment shall become part of the
obligations secured by the Loan Documents and shall be
immediately due and payable by Debtor to FFCA upon demand
therefor and shall bear interest at the Default Rate (as defined
in the Equipment Notes).
(ii) Debtor agrees that the Loan Documents shall remain in
full effect, without waiver or surrender of any of FFCA's rights
thereunder, notwithstanding any one or more of the following:
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(1) Extension of the time of payment of the whole or any
part of any of the Equipment Notes;
(2) Any change in the terms and conditions of any of the
Equipment Notes;
(3) Substitution of any other evidence of indebtedness for
any of the
Equipment Notes;
(4) Acceptance by FFCA of any collateral or security of
any kind for the payment of any of the Equipment Notes;
(5) Surrender, release, exchange or alteration of any
Equipment, collateral or other security, either in whole or in
part; or
(6) Release, settlement, discharge, compromise, change or
amendment, in whole or in part, of any claim of FFCA against
Debtor or of any claim against any guarantor or other party
secondarily or additionally liable for the payment of any of the
Equipment Notes.
H. Lost Note. Debtor shall, if any Equipment Note is mutilated,
destroyed, lost or stolen (a "Lost Note"), promptly deliver to
FFCA, upon receipt of an affidavit from FFCA stipulating that
the Equipment 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. Except as a result of the gross
negligence or intentional misconduct of Debtor, FFCA shall
indemnify Debtor for all reasonable costs, expenses, damages,
claims and liabilities incurred by Debtor as a result of a Lost
Note.
J. Master Lease Modifications. The Master 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
Equipment Notes, the Equipment Security Agreements 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.
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9. CONDITIONS OF CLOSING. The obligation of FFCA to
consummate the transaction contemplated by this Agreement is subject
to the fulfillment or waiver of each of the following conditions:
A. Title. Title to the Equipment shall be vested in
Debtor, free of all liens, encumbrances, restrictions,
encroachments and easements, except the liens created by the
Equipment Security Agreement and the UCC-1 Financing Statements.
Upon Closing, FFCA will obtain a valid and perfected first
priority lien upon and security interest in the Equipment.
B. Condition of Equipment. FFCA shall have inspected and approved
the Equipment, and the Equipment shall be in good condition and repair and
of good workmanship and materials, all as determined by FFCA in
its sole discretion, except where the failure of the Equipment
to be in such condition will not have a Material Adverse Effect.
C. Compliance With Representations, Warranties and Covenants. All
obligations of Debtor under this Agreement shall have been fully
performed and complied with, and no event shall have occurred or
condition shall exist which would, upon the Closing Date, or, upon
the giving of notice and/or passage of time, constitute a breach or
default hereunder or under the Loan Documents or any other agreement
between FFCA and Debtor pertaining to the subject matter hereof, and
no event shall have occurred or condition shall exist or information
shall have been disclosed by Debtor or discovered by FFCA which has
had or would have a Material Adverse Effect on the Premises, the
Equipment, Debtor or FFCA's willingness to consummate the transaction
contemplated by this Agreement, as determined by FFCA in its sole and
absolute discretion.
D. Proof of Insurance. Debtor shall have delivered to
FFCA 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.
E. 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.
F. 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 Closing Date, FFCA does not warrant that
it will thereafter have sufficient funds to consummate the
transaction contemplated by this Agreement.
G. Evidence of Ownership. Debtor shall have provided FFCA with
Evidence reasonably satisfactory to FFCA that the Equipment is owned by
Debtor free and clear of all liens and encumbrances, which
evidence shall include, without limitation, certified UCC
financing statement searches, and to the extent requested by
FFCA and obtainable, bills of sale executed and delivered by the
vendors of the Equipment.
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G. Master Lease. The Master Lease shall be in full force and
effect and Debtor shall be entitled to occupy the Premises corresponding
thereto. FFCA shall have approved the Master Lease in its sole discretion.
I. 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 Escrow Agent 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) Equipment Notes;
(2) Equipment Security Agreements;
(3) Proof of Insurance;
(4) Opinion of Counsel to Debtor;
(5) UCC-1 Financing Statements;
(6) Certifications (Confession of Judgment); and
(7) Explanations and Waiver of Rights Regarding Confession of
Judgment.
Upon fulfillment or waiver of all of the above conditions, FFCA shall deposit
funds necessary to close this transaction with the Escrow Agent 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 respect and such
falsity would result in a Material Adverse Effect, or if Debtor
renders any false statement or account in any material respect.
(2) If any principal, interest or other monetary sum due
under the Equipment Note, the Equipment Security Agreement 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,
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 property of FFCA in
immediate jeopardy, and is within the reasonable power of Debtor to
promptly cure after receipt of notice thereof, all as determined
by FFCA in its reasonable discretion, then such failure shall
not constitute an Event of Default hereunder, unless otherwise
expressly provided herein, unless and
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until FFCA shall have given Debtor notice thereof and a period
of 30 days shall have elapsed, during which period Debtor may
correct or cure such failure, upon failure of which an Event of
Default shall be deemed to have occurred hereunder without
further notice or demand of any kind being required. If such
failure cannot reasonably be cured within such 30-day period, as
determined by FFCA in its reasonable discretion, and Debtor is
diligently pursuing a cure of such failure, then Debtor shall
have a reasonable period to cure such failure beyond such 30-day
period, which shall not exceed 90 days after receiving notice of
the failure from FFCA. If Debtor shall fail to correct or cure
such failure within such 90-day period, an Event of Default
shall be deemed to have occurred hereunder without further
notice or demand of any kind being required.
(4) If Debtor 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 or if Debtor becomes the subject of an involuntary petition
under the Code or other similar involuntary Action (in which
case Debtor shall be required to provide FFCA with immediate
notice of the commencement or filing of such involuntary
petition or Action), and any of the following shall have
occurred: (i) the involuntary petition or involuntary Action
shall not have been dismissed within 60 days of the date on
which it was filed or otherwise commenced, (ii) an order for
relief under the Code (or similar order) shall have been entered
by the court in the involuntary proceeding or involuntary
Action, or (iii) the court having jurisdiction over such
involuntary proceeding or involuntary Action (upon motion or
other request for relief by the party against whom the
involuntary petition or involuntary Action was filed or
otherwise commenced) shall not have granted FFCA full and final
relief from the automatic stay of Section 362 of the Code and
from any stay issued under Section 105 of the Code (or any
similar stays or injunctions) within 30 days of the filing or
commencement of such involuntary petition or involuntary Action
so that FFCA is thereafter free to exercise any and all of its
rights and remedies under the Loan Documents.
(5) If there is an "Event of Default" or a breach or
default, after the passage of all applicable notice and cure or
grace periods, under any other Loan Document, any Mortgage Loan
Document or any of the Other Agreements.
(6) If there is a breach or default, after the passage of
any applicable notice and grace period, under the Master Lease
or if the Master Lease terminates or expires prior to the
scheduled maturity date of the Equipment Note.
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 Equipment Note, this Agreement and
any other Loan Document to be due and payable, and the same shall thereupon
become due and payable without any presentment, demand, protest or notice of
any kind, and Debtor hereby waives
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notice of intent to accelerate the obligations secured by the Equipment Security
Agreement 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 Equipment Notes, the Equipment Security Agreements
or any other Loan Document. Neither the acceptance of this Agreement nor its
enforcement shall prejudice or in any manner affect FFCA's right to realize upon
or enforce any other security now or hereafter held by FFCA, it being agreed
that FFCA shall be entitled to enforce this Agreement and any other security now
or hereafter held by FFCA in such order and manner as it may in its absolute
discretion determine. No remedy herein conferred upon or reserved to FFCA is
intended to be exclusive of any other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. Every power or remedy given by any
of the Loan Documents to FFCA, or to which FFCA may be otherwise entitled, may
be exercised, concurrently or independently, from time to time and as often as
may be deemed expedient by FFCA.
11. ASSIGNMENTS. A. FFCA may assign in whole or in part its
rights under this Agreement, including, without limitation, 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. Except as expressly permitted herein, 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 Equipment, except for Permitted Liens, 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 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 agency in
connection therewith.
13. SUBSTITUTION. If Master Lessor exercises its right to
substitute a Substitute Premises for the Premises pursuant to Section 13 of the
Mortgage Loan Agreement and the Equipment Loan for such Premises is
still outstanding, Debtor shall substitute Substitute Equipment
located at such Substitute Premises for the
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Equipment located at the Premises, such substitution to occur simultaneously
with the closing of the substitution of such Substitute Premises and be
otherwise on the following conditions:
(i) The proposed Substitute Equipment must:
(1) be suitable for use in a Uni-Mart Facility and in
good condition and repair, ordinary wear and tear excepted;
(2) be owned by and vested in Debtor, free and clear
of all liens and encumbrances; and
(3) have a fair market value no less than the greater
of the then fair market value of the Equipment to be
replaced or the fair market value of such Equipment as of
the Closing, all as reasonably determined by FFCA's in-
house inspectors and underwriters;
(ii) FFCA shall have inspected and approved the Substitute
Equipment utilizing FFCA customary 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 thirdparty
and/or in-house site inspectors' costs and expenses with respect
to the proposed Substitute Equipment. Debtor shall be solely
responsible for the payment of all costs and expenses resulting
from such proposed substitution, including, without limitation,
filing charges and expenses, the cost of stamp taxes and the
attorneys' fees and expenses of counsel to Debtor and FFCA;
(iii) FFCA shall have received UCC search results
indicating that the proposed Substitute Equipment is free and
clear of all liens, security interests and encumbrances;
(iv) Debtor shall deliver, or cause to be delivered, with
respect to Debtor and the Substitute Equipment, opinions of
Counsel in form and substance comparable to those received at
Closing (but also addressing such matters unique to the
Substitute Equipment as may be reasonably required by FFCA);
(v) no Event of Default, and no event, action or inaction
that, with the passage of time or the giving of notice, or both,
would constitute an Event of Default, shall have occurred and be
continuing under any Loan Document or any Other Agreement;
(vi) Debtor shall have executed such documents as are
comparable to the security documents executed and delivered at
Closing (but with such revisions as may be reasonably required
by FFCA to address matters unique to the Substitute Equipment)
or amendments to such documents, including, without limitation,
an Equipment Security Agreement and UCC-1 Financing Statements
(the "Substitute Documents"), to provide FFCA with a first
priority lien on and security interests in the proposed
Substitute Equipment and all other rights, remedies and benefits
with respect to the proposed
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Substitute Equipment which FFCA holds in the Equipment to be
replaced, all of which documents shall be in form and substance
reasonably satisfactory to FFCA;
(vii) the representations and warranties set forth in the
Substitute Documents and Section 6 of this Agreement applicable
to the proposed Substitute Equipment shall be true and correct
in all material respects as of the date of substitution, and
Debtor shall have delivered to FFCA an officer's certificate
certifying to that effect; and
(viii) Debtor shall have delivered to FFCA certificates of
insurance 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 the Equipment located at the Premises to be replaced:
(a) the proposed Substitute Equipment shall be deemed
substituted for the Equipment to be replaced, and the proposed
Substitute Premises shall be deemed substituted for the Premises
to be replaced;
(b) the Substitute Equipment shall be referred to as
"Equipment" and included within the definition of "Equipment,"
and the Substitute Premises shall be referred to as "Premises"
and included within the definition of "Premises";
(d) the Substitute Documents shall be dated as of the date
of the substitution and shall secure the same Obligations (as
defined in the Equipment Security Agreement) as were secured by
the Equipment; and
(e) FFCA will release, or cause to be released, the lien
and security interests of the Equipment Security Agreement, UCC-
1 Financing Statements and any other Loan Documents encumbering
the replaced Equipment.
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) ransmission, 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:
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If to Debtor: N. Xxxxxxx Xxxxxxx
Senior Vice President Uni-Marts, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000-0000 Telephone:
(000) 000-0000
Telecopy: (000) 000-0000
If to FFCA: Xxxxxx X. Xxxxx, Esq.
Executive Vice President, General
Counsel and Secretary
FFCA Acquisition Corporation 00000
Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
B. Brokerage Commission. FFCA and Debtor represent and
warrant to each other that they have dealt with no broker,
agent, finder or other intermediary in connection with the
transactions contemplated by this Agreement. FFCA and Debtor
shall indemnify and hold each other harmless from and against
any costs, claims or expenses, including attorneys' fees,
arising out of the breach of their respective representations
and warranties contained within this Section.
C. Waiver and Amendment. No provisions of this Agreement
shall be deemed waived or amended except by a written instrument
unambiguously setting forth the matter waived or amended and
signed by the party against which enforcement of such waiver or
amendment is sought. Waiver of any matter shall not be deemed a
waiver of the same or any other matter on any future occasion.
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. Intentionally Omitted.
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
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without regard to such factors as the party which prepared the
instrument, the relative bargaining powers of the parties or the
domicile of any party. Debtor and FFCA were each represented by
legal counsel competent in advising them of their obligations
and liabilities hereunder.
H. Other Documents. Each of the parties agrees to sign
such other and further documents as may be appropriate to carry
out the intentions expressed in this Agreement.
I. Attorneys' Fees. In the event of any judicial or
other adversarial proceeding between the parties concerning this
Agreement, the prevailing party shall be entitled to recover its
reasonable 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 null and void and of no further force
and effect and the terms and conditions of this Agreement shall
control notwithstanding that such terms and conditions may be
inconsistent with or vary from those set forth in the
Commitment.
K. Forum Selection; Jurisdiction; Venue; Choice of Law.
Debtor acknowledges that this Agreement was substantially
negotiated in the State of Arizona, the Agreement was signed by
FFCA in the State of Arizona and executed and delivered by
Debtor in the State of Arizona, all payments under the Equipment
Note will be delivered in the State of Arizona and there are
substantial contacts between the parties and the transactions
contemplated herein and the State of Arizona. For purposes of
any action or proceeding arising out of this Agreement, the
parties hereto hereby expressly submit 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
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hereof, then, as to those provisions only, the laws of the state where the
Equipment is 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
state in which the Equipment is located to the extent FFCA deems
such proceeding necessary or advisable to exercise remedies
available under this Agreement or the other Loan Documents.
L. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an
original.
M. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of Debtor and FFCA and their respective
successors and permitted assigns, including, without limitation,
any United States trustee, any debtor in possession or any
trustee appointed from a private panel.
N. Survival. Except for the conditions of Closing set
forth in Section 9, which shall be satisfied or waived as of the
Closing Date, all representations, warranties, agreements,
obligations and indemnities of Debtor and FFCA set forth in this
Agreement shall survive the Closing.
O. Waiver of Jury Trial and Punitive, Consequential,
Special and Indirect Damages. DEBTOR AND FFCA HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO
A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN
ANY ACTION, 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 AND FFCA HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT
DAMAGES FROM THE OTHER AND ANY OF THE OTHER'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 IT AGAINST THE
OTHER OR ANY OF THE OTHER'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 AND FFCA OF ANY RIGHT THEY 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.
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P. Transfers, Participations and Securitizations. (1) A
material inducement to FFCA's willingness to complete the
transactions contemplated by the Loan Documents is Debtor's
agreement that FFCA may, at any time, complete a Transfer,
Participation or Securitization with respect to any Equipment
Note, any Equipment Security Agreement and/or any of the other
Loan Documents, or any or all servicing rights with respect
thereto.
(2) Debtor agrees to cooperate in good faith with FFCA in
connection with any such Transfer, Participation and/or
Securitization of any Equipment Note, any Equipment Security
Agreement and/or any of the other Loan Documents, or any or all
servicing rights with respect thereto, including, without
limitation (i) providing such documents, financial and other
data, and other information and materials (the "Disclosures")
which would typically be required with respect to Debtor 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 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 and/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, the Equipment or
the financial condition of Debtor to each purchaser, transferee,
assignee, servicer, participant, investor or rating agency
involved with respect to each 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, the other Loan Documents or any Other
Agreements:
(a) a breach or default, after the passage of all
applicable notice and cure or grace periods, under any Loan
Document or Other Agreement which relates to a loan or
sale/leaseback transaction which has not been the subject
of a Securitization, Participation or Transfer shall not
constitute an Event of Default or a breach or default, as
applicable, under any Loan Document or Other Agreement
which relates to a loan which has been the subject of a
Securitization, Participation or Transfer;
(b) a breach or default, after the passage of all
applicable notice and cure or grace periods, under any Loan
Document or Other Agreement which relates to a loan which
is included in any Loan Pool shall not constitute an Event
of Default or a breach or default, as
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153
applicable, under any Loan Document or Other Agreement
which relates to a loan which is included in any other Loan
Pool;
(c) the Loan Documents corresponding to the Equipment
Note in any Loan Pool shall not secure the obligations of
any of the Debtor Entities contained in any Loan Document
or Other Agreement which does not correspond to a loan in
such Loan Pool; and
(d) the Loan Documents and Other Agreements which do
not correspond to a loan in any Loan Pool shall not secure
the obligations of any of the Debtor Entities contained in
any Loan Document or Other Agreement which does correspond
to a loan in such Loan Pool.
IN WITNESS WHEREOF, Debtor and FFCA have entered into this
Agreement as of the date first above written.
FFCA:
FFCA ACQUISITION CORPORATION, a
Delaware corporation
By /S/ XXXX X. XXXX
Printed Name Xxxx X. Xxxx
Its Vice President
DEBTOR:
UNI-MARTS, INC., a Delaware corporation
By /S/ N. XXXXXXX XXXXXXX
N. Xxxxxxx Xxxxxxx
Senior Vice President
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