Exhibit 10(b)
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of October 29, 2002
(the "Closing Date"), by and between GE CAPITAL FRANCHISE FINANCE CORPORATION, a
Delaware corporation ("Lender"), and JAX REAL ESTATE, LLC, a Delaware limited
liability company ("Borrower").
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:
"ADA" means the Americans with Disabilities Act of 1990, as such act
may be amended from time to time.
"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.
"Anti-Money Laundering Laws" means all applicable laws, regulations and
government guidance on the prevention and detection of money laundering,
including 18 U.S.C. ss. ss. 1956 and 1957, and the BSA.
"Applicable Regulations" means 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 ADA 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 Borrower or any of
the Lessee Parties.
"BSA" means the Bank Secrecy Act (31 X.X.X.xx.xx. 5311 et. seq.), and
its implementing regulations, Title 31 Part 103 of the U.S. Code of Federal
Regulations.
"Business Day" means any day on which Lender is open for business other
than a Saturday, Sunday or a legal holiday, ending at 5:00 P.M. Phoenix, Arizona
time.
"Closing" means the disbursement of the Loan Amounts by Title Company
as contemplated by this Agreement.
"Code" means Title 11 of the United States Code, 11 U.S.C. Sec. 101 et
seq., as amended.
"Collateral Assignment" means the Collateral Assignment of License
Agreement dated as of the date of this Agreement executed by Borrower for the
benefit of Lender, as the same may be amended from time to time.
"Default Rate" has the meaning set forth in the Notes.
"Entity" means any entity that is not a natural person.
"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 the Premises,
whether or not yet discovered, which would reasonably be expected to or does
result in any damage, loss, cost, expense, claim, demand, order or liability to
or against Borrower, Lessee Parties or Lender by any third party (including,
without limitation, any Governmental Authority), including, without limitation,
any condition resulting
from the operation of business at any of the Premises and/or any activity or
operation formerly conducted by any person or entity on any of the Premises.
"Environmental Indemnity Agreement" means the environmental indemnity
agreement dated as of the date of this Agreement executed by Borrower for the
benefit of the Indemnified Parties and such other parties as are identified in
such agreement with respect to the Premises, as the same may be amended from
time to time.
"Environmental Insurer" means American International Specialty Lines
Insurance Company, or such other environmental insurance company as Lender may
select, and its successors and assigns.
"Environmental Laws" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations, orders, injunctions and
decrees of Governmental Authorities and common law, relating to Hazardous
Materials 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 USTs or
relating to liability for or costs of Remediation or prevention of Releases.
"Environmental Laws" includes, but is not limited to, the following statutes, as
amended, any successor thereto, and any regulations, rulings, orders or decrees
promulgated pursuant thereto, and any state or local statutes, ordinances,
rules, regulations, orders, injunctions and decrees of Governmental Authorities:
the Comprehensive Environmental Response, Compensation and Liability Act, 42
X.X.X.xx.xx. 9601 et seq.; the Emergency Planning and Community Xxxxx-xx-Xxxx
Xxx, 00 X.X.X.xx. 00000 et seq.; the Hazardous Materials Transportation Act, 49
X.X.X.xx. 5101 et seq.; the Resource Conservation and Recovery Act (including
but not limited to Subtitle I relating to USTs), 42 X.X.X.xx.xx. 6901 et seq.;
the Clean Water Act, 33 X.X.X.xx.xx. 1251 et seq.; the Clean Air Act, 42
X.X.X.xx.xx. 7401 et seq.; the Toxic Substances Control Act, 15 X.X.X.xx. 2601
et seq.; the Safe Drinking Water Act, 42 X.X.X.xx.xx. 7401 et seq.; the
Occupational Safety and Health Act, 29 X.X.X.xx. 651 et seq.; the Federal
Insecticide, Fungicide and Rodenticide Act, 7 X.X.X.xx.xx. 136 et seq.; the
Endangered Species Act, 16 X.X.X.xx.xx. 1531 et seq. and the National
Environmental Policy Act, 42 X.X.X.xx. 4321 et seq. "Environmental Laws" also
includes, but is not limited to, any present and future federal, state and local
laws, statutes, ordinances, rules, regulations, orders, injunctions and decrees
of Governmental Authorities and 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 any 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 or USTs in connection with permits
or other authorizations required by Governmental Authorities; relating to the
handling and disposal of Hazardous Materials; relating to nuisance, trespass or
other causes of action related to Hazardous Materials; and relating to wrongful
death, personal injury, or property or other damage in connection with the
physical condition or use of any of the Premises by reason of the presence of
Hazardous Materials or USTs in, on, under or above any of the Premises.
"Environmental Lien" has the meaning set forth in Section 5.K(9).
"Environmental Policies" means the environmental insurance policies
issued by Environmental Insurer to Lender with respect to the Premises, which
Environmental Policies shall be in form and substance satisfactory to Lender in
its sole discretion.
"Event of Default" has the meaning set forth in Section 9.
"FCCR Amount" has the meaning set forth in Section 9.A(7).
"Fee" means an underwriting, site assessment, valuation, processing and
commitment fee equal to .50% of the sum of the Loan Amounts for all of the
Premises.
"Fixed Charge Coverage Ratio" has the meaning set forth in Section 6.J.
"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 having jurisdiction or supervisory or regulatory
authority over any of the Premises or Borrower.
"Guaranty" means the unconditional guaranty of payment and performance
dated as of the date of this Agreement executed by X. Xxxxxxxxx'x Corporation, a
Tennessee corporation, for the benefit of Borrower with respect to the Lease, as
the same may be amended from time to time.
"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 containing
dielectric fluid having levels of polychlorinated biphenyls in excess of
applicable standards established by any Governmental Authority, or any petroleum
product or additive; (c) any substance, gas, material or chemical which is now
or hereafter 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 prohibited, limited or regulated by any Governmental Authority that asserts
or may assert jurisdiction over any of the Premises or the operations or
activity at any of the Premises, or any chemical, material, gas or substance
that does or is reasonably likely to pose a hazard to the health and/or safety
of the occupants of any of the Premises.
"Indemnified Parties" means Lender, Environmental Insurer, the trustees
under the Mortgages, if applicable, and any person or entity who is or will have
been involved in the origination of the Loans, any person or entity who is or
will have been involved in the servicing of the Loans, any person or entity in
whose name the encumbrance created by any of the Mortgages is or will have been
recorded, persons and entities who may hold or acquire or will have held a full
or partial interest in the Loans (including, but not limited to, investors or
prospective investors in any Securitization, Participation or Transfer, as well
as custodians, trustees and other fiduciaries who hold or have held a full or
partial interest in any of the Loans for the benefits of third parties), as well
as the respective directors, officers, shareholders, partners, members,
employees, lenders, agents, servants, representatives, contractors,
subcontractors, affiliates, subsidiaries, participants, successors and assigns
of any and all of the foregoing (including, but not limited to, any other person
or entity who holds or acquires or will have held a participation or other full
or partial interest in any of the Loans or any of the Premises, whether during
the term of the Loans or as a part of or following a foreclosure of any of the
Loans and including, but not limited to, any successors by merger, consolidation
or acquisition of all or a substantial portion of Lender's assets and business).
"Indemnity Agreements" means all indemnity agreements executed for the
benefit of Borrower, any of the Lessee Parties or any prior owner, lessee or
occupant of the Premises in connection with Hazardous Materials or USTs,
including, without limitation, the right to receive payments under such
indemnity agreements.
"Lease" means the master lease between Borrower, as lessor, and Lessee,
as lessee, with respect to the Premises, together with all amendments,
modifications and supplements thereto.
"Leased Personal Property" means the Personal Property described on
Exhibit B attached hereto.
"Lender Entities" means, collectively, Lender (including any
predecessor-in-interest to Lender) and any Affiliate of Lender (including any
Affiliate of any predecessor-in-interest to Lender).
"Lessee" means X. Xxxxxxxxx'x Restaurants, Inc., a Tennessee
corporation, and its successors.
"Lessee Parties" means, collectively, Lessee and any guarantors of the
Lease (including, in each case, any predecessors-in-interest).
"License Agreement" means the License Agreement dated as of the date of
this Agreement between Borrower and Lessee, as the same may be amended from time
to time.
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"Loan" or "Loans" means, as the context may require, the loan for each
Premises, or the loans for all of the Premises, described in Section 2.
"Loan Amount" or "Loan Amounts" means, as the context may require, the
aggregate amount set forth in Section 2 or, with respect to each Premises, the
individual amount set forth in Exhibit A.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Mortgages, the Environmental Indemnity Agreement, the Collateral Assignment, the
UCC-1 Financing Statements, any guaranties of the Loans, and all other
documents, instruments and agreements executed in connection therewith or
contemplated thereby, as the same may be amended from time to time.
"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.
"Material Adverse Effect" means a material adverse effect on (i) any of
the Premises, including, without limitation, the operation of any of the
Premises as a Permitted Concept, or (ii) Borrower's ability to perform its
obligations under the Loan Documents.
"Member" means JAX RE Holdings, LLC, a Delaware limited liability
company and the sole member of Borrower.
"Mortgage" or "Mortgages" means, as the context may require, the deed
of trust or mortgage dated as of the date of this Agreement executed by Borrower
for the benefit of Lender with respect to a Premises or the deeds of trust or
mortgages dated as of the date of this Agreement executed by Borrower for the
benefit of Lender with respect to all of the Premises, as the same may be
amended from time to time. A Mortgage has been executed for each Premises.
"Note" or "Notes" means, as the context may require, the promissory
note dated as of the date of this Agreement executed by Borrower in favor of
Lender evidencing a Loan with respect to a Premises or the promissory notes
dated as of the date of this Agreement executed by Borrower in favor of Lender
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 pursuant to Section 9.
A Note has been executed for each Premises in the Loan Amount corresponding to
such Premises.
"Obligations" has the meaning set forth in the Mortgages.
"OFAC Laws and Regulations" means Executive Order 13224 issued by the
President of the United States of America, the Terrorism Sanctions Regulations
(Title 31 Part 595 of the U.S. Code of Federal Regulations), the Terrorism List
Governments Sanctions Regulations (Title 31 Part 596 of the U.S. Code of Federal
Regulations), the Foreign Terrorist Organizations Sanctions Regulations (Title
31 Part 597 of the U.S. Code of Federal Regulations), and the Cuban Assets
Control Regulations (Title 31 Part 515 of the U.S. Code of Federal Regulations),
and all other present and future federal, state and local laws, ordinances,
regulations, policies, lists (including, without limitation, the Specially
Designated Nationals and Blocked Persons List) and any other requirements of any
Governmental Authority (including, without limitation, the United States
Department of the Treasury Office of Foreign Assets Control) addressing,
relating to, or attempting to eliminate, terrorist acts and acts of war, each as
hereafter supplemented, amended or modified from time to time, and the present
and future rules, regulations and guidance documents promulgated under any of
the foregoing, or under similar laws, ordinances, regulations, policies or
requirements of other states or localities.
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"Other Agreements" means, collectively, all agreements and instruments
between, among or by (1) Borrower and/or any Affiliate of Borrower (including
any Affiliate of any predecessor-in-interest to Borrower), and, or for the
benefit of, (2) any of the Lender 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.
"Parent" means X. Xxxxxxxxx'x Corporation, a Tennessee corporation and
the sole member of Member.
"Participation" means one or more grants by Lender or any of the other
Lender Entities to a third party of a participating interest in notes evidencing
obligations to repay secured or unsecured loans owned by Lender or any of the
other Lender Entities or any or all servicing rights with respect thereto.
"Permitted Amounts" means, with respect to any given level of Hazardous
Materials, that level or quantity of Hazardous Materials in any form or
combination of forms the presence, use, storage, release or handling of which
does not constitute a violation of 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.
"Permitted Concept" means a X. Xxxxxxxxx'x restaurant.
"Permitted Exceptions" means those recorded easements, restrictions,
liens and encumbrances set forth as exceptions in the title insurance policies
issued by Title Company to Lender and approved by Lender in its sole discretion
in connection with the closing of the Loans.
"Person" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental Authority or
any other form of entity.
"Personal Property" means all tangible personal property now or at any
time hereafter located on or at any of the Premises or used in connection
therewith, including, without limitation, all trade fixtures, machinery,
appliances, furniture, equipment and inventory; provided, however, the term
"Personal Property" shall not include the HVAC, supply fans, exhaust fans, air
ducts, hoods, vents, built-in sinks, built-in countertops, plumbing and
electrical fixtures, sign poles and lighting poles, all of which items are
intended to be fixtures as such term is used within the definition of
"Premises".
"Premises" means the parcel or parcels of real estate corresponding to
the FFC File Numbers and addresses identified on Exhibit A attached hereto (as
the same may be modified from time to time add Substitute Premises and delete
replaced Premises), together with 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) and the
Personal Property. As used herein, the term "Premises" shall mean either a
singular property or all of the properties collectively, as the context may
require.
"Prohibited Transfer" means (i) a transfer by Member of its membership
interest in Borrower to any party other than JAX Real Estate Management, Inc.,
or (ii) a transfer by Parent of its membership interest in Member to any party
other than JAX Real Estate Management, Inc.
"Questionnaires" means the environmental questionnaires completed on
behalf of Borrower with respect to the Premises and submitted to Environmental
Insurer in connection with the issuance of the Environmental Policies.
"Release" means any release, deposit, discharge, emission, leaking,
spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping,
dumping, disposing or other movement of Hazardous Materials.
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"Remediation" means any response, remedial, removal, or corrective
action, any activity to clean up, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Materials or USTs required by any Environmental Law or
any Governmental Authority, 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 or USTs.
"Restoration" has the meaning set forth in the Mortgages.
"Securitization" means one or more sales, dispositions, transfers or
assignments by Lender or any of the other Lender Entities to a special purpose
corporation, trust or other entity identified by Lender or any of the other
Lender Entities of notes evidencing obligations to repay secured or unsecured
loans owned by Lender or any of the other Lender 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 Lender or any
of the other Lender 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.
"Substitute Documents" has the meaning set forth in Section 11.
"Substitute Premises" means one or more parcels of real estate
substituted for a Premises in accordance with the requirements of Section 11,
together with all rights, privileges and appurtenances associated therewith and
all buildings, fixtures and other improvements, equipment, trade fixtures,
appliances and other personal property located thereon (whether or not affixed
to such real estate). For purposes of clarity, where two or more parcels of real
estate comprise a Substitute Premises, such parcels or interests shall be
aggregated and deemed to constitute the Substitute Premises for all purposes of
this Agreement.
"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 any of the Premises
which may result from such Release.
"Title Company" means Lawyers Title Insurance Corporation.
"Transfer" means one or more sales, transfers or assignments by Lender
or any of the other Lender Entities to a third party of notes evidencing
obligations to repay secured or unsecured loans owned by Lender or any of the
other Lender Entities or any or all servicing rights with respect thereto.
"UCC-1 Financing Statements" means such UCC-1 Financing Statements as
Lender shall file with respect to the transactions contemplated by this
Agreement.
"U.S. Publicly-Traded Entity" is an Entity whose securities are listed
on a national securities exchange or quoted on an automated quotation system in
the U.S. or a wholly-owned subsidiary of such an Entity.
"USTs" means any one or combination of below or above ground tanks and
associated piping systems used in connection with the storage, dispensing and
general use of petroleum and petroleum-based substances.
2. TRANSACTION. On the terms and subject to the conditions set
forth in the Loan Documents, Lender shall make the Loans. The Loans will be
evidenced by the Notes and secured by the Mortgages. Borrower 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 $25,000,000.00,
allocated among the Premises as set forth on the attached Exhibit A. The Loans
shall be advanced at the Closing in cash or otherwise immediately available
funds subject to any prorations and adjustments required
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by this Agreement. The Premises shall be leased to the Lessee pursuant to the
Lease and, at Closing, Borrower shall assign the Lease to Lender pursuant to the
Mortgages.
3. ESCROW AGENT. Borrower and Lender hereby employ Title Company
to act as escrow agent in connection with the transactions described in this
Agreement. Borrower and Lender 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 shall not cause the transaction
to close unless and until it has received written instructions from Lender and
Borrower to do so. Title Company is authorized to pay, from any funds held by it
for Lender's or Borrower's respective credit all amounts necessary to procure
the delivery of such documents and to pay, on behalf of Lender and Borrower, all
charges and obligations payable by them, respectively. Borrower 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 Borrower and Lender or to interplead such documents
and/or funds in an action brought in any such court. Deposit by Title Company of
such documents and funds, after deducting therefrom its charges and its expenses
and attorneys' fees incurred in connection with any such court action, shall
relieve Title Company of all further liability and responsibility for such
documents and funds. Title Company's receipt of this Agreement and opening of an
escrow pursuant to this Agreement shall be deemed to constitute conclusive
evidence of Title Company's agreement to be bound by the terms and conditions of
this Agreement pertaining to Title Company. Disbursement of any funds shall be
made by check, certified check or wire transfer, as directed by Borrower and
Lender. 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.
4. CLOSING CONDITIONS. The obligation of Lender to consummate the
transaction contemplated by this Agreement is subject to the fulfillment or
waiver of each of the following conditions:
A. Title Insurance Commitments. Lender 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 Borrower vested with good
and marketable fee title in the real property comprising such Premises,
committing to insure Lender's first priority lien upon and security interest in
such real property subject only to Permitted Exceptions, and containing such
endorsements as Lender may require.
B. Survey. Lender shall have received a current ALTA survey of
each of the Premises or its equivalent, the form and substance of which shall be
satisfactory to Lender in its reasonable discretion. Lender shall have obtained
a flood certificate indicating 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 Emergency Management Agency, or if any Premises is in
such a flood plain or special flood hazard area, Borrower shall have provided
Lender with evidence of flood insurance maintained on such Premises in amounts
and on terms and conditions reasonably satisfactory to Lender.
C. Environmental. Lender shall have completed such environmental
due diligence of each of the Premises as it deems necessary or advisable in its
sole discretion, including, without limitation, receiving an Environmental
Policy with respect to each of the Premises, and Lender shall have approved the
environmental condition of each of the Premises in its sole discretion.
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D. Compliance With Representations, Warranties and Covenants. All
of the representations and warranties set forth in Section 5 shall be true,
correct and complete as of the Closing Date, and Borrower shall be in compliance
with each of the covenants set forth in Section 6 as of the Closing Date. No
event shall have occurred or condition shall exist or information shall have
been disclosed by Borrower or discovered by Lender which has had or would be
reasonably likely to have a Material Adverse Effect or affect Lender's
willingness to consummate the transaction contemplated by this Agreement, as
determined by Lender in its sole and absolute discretion.
E. Proof of Insurance. Borrower shall have delivered to Lender
certificates of insurance and copies of insurance policies showing that all
insurance required by the Loan Documents and providing coverage and limits
satisfactory to Lender are in full force and effect.
F. Legal Opinions. Borrower shall have delivered to Lender such
legal opinions as Lender may reasonably require all in form and substance
reasonably satisfactory to Lender and its counsel.
G. Fee and Closing Costs. Borrower shall have paid the Fee to
Lender and shall have paid all costs of the transactions described in this
Agreement, including, without limitation, the cost of title insurance premiums
and all endorsements required by Lender, survey charges, UCC and litigation
search charges, the attorneys' fees of Borrower, reasonable attorneys' fees and
expenses of Lender, the cost of the environmental due diligence undertaken
pursuant to Section 4.C, including, without limitation, the cost of the
Environmental Policies, Lender's site inspection costs and fees, stamp taxes,
mortgage taxes, transfer fees, escrow, filing and recording fees and UCC filing
and recording fees (including preparation, filing and recording fees for UCC
continuation statements). Borrower shall have also paid 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 4.A.
H. Lease, Memoranda and License Agreement. Borrower and Lessee
shall have executed and delivered the Lease, a memorandum of master lease in
recordable form for each of the Premises (the "Memoranda"), and the License
Agreement. The Lease, the License Agreement and the Memoranda shall be in form
and substance reasonably satisfactory to Lender. Lessee shall have delivered to
Borrower an executed Guaranty with respect to the Lease.
I. Closing Documents. At or prior to the Closing Date, Lender
and/or Borrower, as may be appropriate, shall have executed and delivered or
shall have caused to be executed and/or delivered to Lender, or as Lender may
otherwise direct, the Loan Documents and such other documents, instruments and
certificates, as Lender may reasonably require in form reasonably acceptable to
Lender.
Upon fulfillment or waiver of all of the above conditions, Lender 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.
5. REPRESENTATIONS AND WARRANTIES OF BORROWER. The
representations and warranties of Borrower contained in this Section are being
made by Borrower as of the Closing Date to induce Lender to enter into this
Agreement and consummate the transactions contemplated herein and shall survive
the Closing. Borrower represents and warrants to Lender (and Environmental
Insurer solely with respect to Section 5.K) as follows:
A. Financial Information. Borrower has delivered to Lender profit
and loss statements for the business conducted at each of the Premises (the "P&L
Statements") and consolidated financial statements of the Lessee Parties and
their consolidated Affiliates (the "Consolidated Statements"; the P&L Statements
and the Consolidated Statements are collectively referred to as, the "Financial
Information"). The Consolidated Statements were prepared in accordance with GAAP
and fairly present as of the date of such statements the financial condition of
the entities to which they pertain. The P&L Statements were prepared from the
consolidated financial records of the Lessee Parties and do not include charges
or allocations for general and administrative expenses (including management
training and relocation costs), interest expense, income taxes, and other income
and expense items which are not classified by the Lessee Parties as
restaurant-level items. The Financial Information (as prepared
8
above) is true, correct and complete in all material respects; there have been
no material amendments to the Financial Information since the date such
Financial Information was prepared or delivered to Lender. Borrower understands
that Lender is relying upon the Financial Information and Borrower represents
that such reliance is reasonable. No change has occurred with respect to the
financial condition of Borrower and/or the Premises which has not been disclosed
in writing to Lender and which has had, or could reasonably be expected to
result in, a Material Adverse Effect.
B. Organization and Authority. Borrower is duly organized or
formed, validly existing and in good standing under the laws of its state of
incorporation or formation. Borrower is qualified as a foreign corporation,
partnership or limited liability company, as applicable, to do business in each
state where the failure to be qualified would reasonably be expected to result
in a Material Adverse Effect. All necessary action has been taken to authorize
the execution, delivery and performance by Borrower of this Agreement and the
other Loan Documents. The person(s) who have executed this Agreement on behalf
of Borrower are duly authorized so to do. Borrower is not a "foreign
corporation", "foreign partnership", "foreign trust", "foreign estate" or
"foreign person" (as those terms are defined by the Internal Revenue Code of
1986, as amended). Borrower's U.S. Federal Tax Identification number,
Organization Identification number and principal place of business are correctly
set forth on the signature page of this Agreement. Neither Borrower nor any
individual or entity owning directly or indirectly any interest in Borrower, is
an individual or entity whose property or interests are subject to being blocked
under any of the OFAC Laws and Regulations or is otherwise in violation of any
of the OFAC Laws and Regulations; provided, however, the representation
contained in this sentence shall not apply to any Person to the extent such
Person's interest is in or through a U.S. Publicly-Traded Entity.
C. Enforceability of Documents. Upon execution by Borrower, this
Agreement and the other Loan Documents shall constitute the legal, valid and
binding obligations of Borrower, enforceable against Borrower in accordance with
their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, liquidation, reorganization and other laws
affecting the rights of creditors generally and general principles of equity.
D. Litigation. There are no suits, actions, proceedings or
investigations pending or, to its knowledge, threatened against or involving
Borrower or any of the Premises before any arbitrator or Governmental Authority,
except for such suits, actions, proceedings or investigations which,
individually or in the aggregate, have not had, and would not reasonably be
expected to result in, a Material Adverse Effect.
E. Absence of Breaches or Defaults. Borrower 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 Borrower is a party or by which
Borrower, any of the Premises or any of the property of Borrower is subject or
bound, except for such breaches or defaults which, individually or in the
aggregate, have not had, and would not reasonably be expected to result in, a
Material Adverse Effect. 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. None of the
Premises are subject to any right of first refusal, right of first offer or
option to purchase or lease granted to a third party (other than the Lease and
as disclosed in the title commitments delivered to Lender).
F. Utilities. Adequate public utilities are available at each of
the Premises to permit utilization of each of the Premises as a Permitted
Concept and all utility connection fees and use charges will have been paid in
full prior to delinquency.
G. Zoning; Compliance With Laws. To Borrower's knowledge, (i)
each of the Premises is in compliance in all material respects with all
applicable zoning requirements, and (ii) the use of each of the Premises as a
Permitted Concept does not constitute a nonconforming use under applicable
zoning requirements. To Borrower's knowledge, Borrower and the Premises are in
compliance with all Applicable Regulations except for such noncompliance which
has not had, and would not reasonably be expected to result in, a Material
Adverse Effect.
9
H. Area Development; Wetlands. No condemnation or eminent domain
proceedings affecting any of the Premises have been commenced or, to Borrower's
knowledge, are contemplated. None of the Premises and, to Borrower's knowledge,
none of the real property bordering any of the Premises are designated by any
Governmental Authority as a wetlands.
I. Licenses and Permits; Access. All required licenses and
permits, both governmental and private, to use and operate each of the Premises
as a Permitted Concept are in full force and effect, except for such licenses
and permits the failure of which to obtain has not had, and would not reasonably
be expected to result in, a Material Adverse Effect. Adequate rights of access
to public roads and ways are available to each of the Premises for unrestricted
ingress and egress and otherwise to permit utilization of each 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. Each of the Premises, including the
Personal Property, is in good condition and repair and well maintained, ordinary
wear and tear excepted, fully equipped and operational, free from structural
defects and properly lighted.
K. Environmental. Except as disclosed in the Questionnaires:
(1) None of the Premises nor Borrower are in violation of, or
subject to, any pending or, to Borrower's actual knowledge, threatened
investigation or inquiry by any Governmental Authority or to any remedial
obligations under any Environmental Laws, and this representation and warranty
would continue to be true and correct following disclosure to the applicable
Governmental Authorities of all relevant facts, conditions and circumstances, if
any, pertaining to any of the Premises and known to Borrower;
(2) All permits, licenses or similar authorizations required to
construct, occupy, operate or use any buildings, improvements, fixtures and
equipment forming a part of any of the Premises by reason of any Environmental
Laws have been obtained;
(3) No Hazardous Materials have been used, handled, manufactured,
generated, produced, stored, treated, processed, transferred, disposed of or
otherwise Released by Borrower, the Lessee Parties or, to Borrower's knowledge,
any other party, in, on, under, from or about any of the Premises, except in
Permitted Amounts;
(4) None of the Premises contain Hazardous Materials, except in
Permitted Amounts, and all USTs located on or about the Premises, if any, are in
full compliance with all Environmental Laws;
(5) To Borrower's knowledge, there is no threat of any Release
migrating to any of the Premises in excess of Permitted Amounts;
(6) There is no past (to Borrower's knowledge) or present
non-compliance with Environmental Laws, or with permits issued pursuant thereto,
in connection with any of the Premises;
(7) Borrower has not received any written or oral notice or other
communication from any person or entity (including but not limited to a
Governmental Authority) relating to Hazardous Materials or USTs or Remediation
thereof in excess of Permitted Amounts, of possible liability of any person or
entity pursuant to any Environmental Law, other environmental conditions in
connection with any of the Premises, or any actual or potential administrative
or judicial proceedings in connection with any of the foregoing;
(8) All information known to Borrower or contained in the files of
Borrower relating to any Environmental Condition or Releases of Hazardous
Materials in, on, under or from any of the Premises, other than in Permitted
Amounts, has been provided to Lender, including, without limitation, information
relating to all prior Remediation;
(9) All of the Premises are free and clear of all liens and other
encumbrances imposed pursuant to any Environmental Law (the "Environmental
Liens"); and Borrower has not allowed any tenant or other user of any of the
Premises to do any act that materially increased the dangers to human health or
the environment, posed an
10
unreasonable risk of harm to any person or entity (whether on or off any of the
Premises), impaired the value of any of the Premises in any material respect, is
contrary to any requirement of any insurer, constituted a public or private
nuisance, constituted waste, or violated any covenant, condition, agreement or
easement applicable to any of the Premises; and
(10) The information and disclosures in the Questionnaires are
true, correct and complete in all material respects, and the person or persons
executing the Questionnaires were duly authorized to do so.
Lender has charged Borrower a fee for the Environmental Policies. Borrower
acknowledges that the Environmental Policies are for the sole protection of
Lender and will not protect Borrower or provide Borrower with any coverage
thereunder. Borrower 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 the real
property comprising each of the Premises is vested in Borrower, free and clear
of all liens, encumbrances, charges and security interests of any nature
whatsoever, except the Permitted Exceptions. Lessee is the owner of all Personal
Property (other than the Leased Personal Property), free and clear of all liens,
encumbrances, charges and security interests of any nature whatsoever, and no
Affiliate of Borrower owns any of the Personal Property. Upon Closing, Lender
shall have a first priority lien upon and security interest in the real property
comprising each of the Premises pursuant to the Mortgages and the UCC-1
Financing Statements. Upon Closing, Borrower shall have a first priority lien
upon and security interest in the Personal Property pursuant to the Lease.
M. No Mechanics' Liens. There are no delinquent accounts payable
or mechanics' liens 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; 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 the date
hereof, which will be delinquent on or before the Closing Date.
N. Lease. Borrower has delivered to Lender a true, correct and
complete copy of the Lease. The Lease is the only lease with respect to the
Premises, and is in full force and effect, and constitutes the legal, valid and
binding obligations of the parties thereto, enforceable against such parties in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, liquidation, reorganization and other laws
affecting the rights of creditors generally and general principles of equity.
Borrower has not assigned, transferred, mortgaged, hypothecated or otherwise
encumbered the Lease or any rights thereunder or any interest therein, and
Borrower has not received any notice that the Lessee has made any assignment,
pledge or hypothecation of all or any part of its rights or interest in the
Lease. Borrower has not received any notice of default from the Lessee which has
not been cured or given any notice of default to the Lessee 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 Lessee or
Borrower under the Lease.
O. Nonconsolidation. (1) Borrower maintains appropriate and
complete books and records of account separate from all other Persons. Where
necessary or appropriate, Borrower has disclosed the nature of the transaction
contemplated by the Loan Documents and Borrower's independent status to its
creditors. The Premises and cash capital contributions represent all of the
assets owned or leased by Borrower as of the date hereof, and Borrower has not
commingled its assets and its liabilities with those of any other Person.
(2) Borrower maintains its own checking account or accounts with
commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with
other Persons, the salaries of and the expenses related to providing benefits to
such employees have been fairly and nonarbitrarily allocated among such
11
Persons, with the result that each such Person bears its fair share of the
salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other
Persons to do business with vendors or service providers or to share overhead
expenses, the costs incurred in so doing are, and at all times shall be, fairly
and nonarbitrarily allocated among such Persons, with the result that each such
Person bears its fair share of such costs. To the extent that Borrower contracts
or does business with vendors or service providers where the goods or services
provided are or shall be partially for the benefit of other Persons, the costs
incurred in so doing are fairly and nonarbitrarily allocated to or among such
Persons for whose benefit the goods or services are provided, with the result
that each such Person bears its fair share of such costs.
(5) To the extent that Borrower or other Persons have offices in
the same location, there is a fair, appropriate and nonarbitrary allocation of
overhead among them, with the result that each such Person bears its fair share
of such expenses.
(6) Borrower has not incurred any indebtedness, secured or
unsecured, direct or indirect, absolute or contingent, including, without
limitation, liability for the debts of any other Person (and Borrower has not
held itself out as being liable for the debts of any other Person), other than
the Loans and trade and operational debt incurred in the ordinary course of
business with trade creditors and in amounts as are normal and reasonable under
the circumstances. Borrower is not a guarantor of any obligations.
(7) Borrower is not presently a party to a pledge of its assets
for the benefit of other Persons. Borrower has not made any loans or advances to
any third party (including any Affiliate or constituent party of Borrower).
(8) Borrower has conducted its affairs strictly in accordance with
its organizational documents and has observed all necessary, appropriate and
customary formalities.
(9) Borrower does not hold itself out to the public or to any of
its individual creditors as being a unified entity with assets and liabilities
in common with any other Person.
(10) Borrower (a) is solvent, (b) is able to pay its obligations as
they become due and (c) is not and shall not be engaged in any business or
transaction for which its remaining capital is or may be unreasonably small.
(11) Borrower has no actual intent to hinder, delay or defraud
creditors in connection with any of the transactions contemplated herein or
intent to incur (or belief that it is incurring) debts beyond its ability to pay
the same as they mature.
(12) Borrower has not, as to itself or as to other Persons, (a)
commenced any case, proceeding or other action under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to Borrower or other Persons or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to Borrower or its debts or other Persons or their
debts or (b) sought appointment of a receiver, trustee, custodian or other
similar official for Borrower or for all or any substantial part of its or other
Person's assets or made a general assignment for the benefit of Borrower's
creditors.
P. Money Laundering. (1) Borrower has taken all reasonable
measures, in accordance with all applicable Anti-Money Laundering Laws, with
respect to each holder of a direct or indirect interest in Borrower, to assure
that funds invested by such holders in Borrower are derived from legal sources;
provided, however, none of the foregoing shall apply to any Person to the extent
that such Person's interest is in or through a U.S. Publicly-Traded Entity.
(2) To Borrower's knowledge after making due inquiry, neither
Borrower nor any holder of a direct or indirect interest in Borrower (a) is
under investigation by any Governmental Authority for, or has been charged with,
or convicted of, any violation of any Anti-Money Laundering Laws, or drug
trafficking, terrorist-related activities or
12
other money laundering predicated crimes or a violation of the BSA, (b) has been
assessed civil penalties under these or related laws, or (c) has had any of its
funds seized or forfeited in an action under these or related laws; provided,
however, none of the foregoing shall apply to any Person to the extent that such
Person's interest is in or through a U.S. Publicly-Traded Entity.
(3) Borrower has taken reasonable steps, consistent with industry
practice for comparable organizations and in any event as required by law, to
ensure that Borrower is and shall be in compliance with all (i) Anti-Money
Laundering Laws and (ii) OFAC Laws and Regulations.
6. COVENANTS. Borrower covenants to Lender (and Environmental
Insurer solely with respect to Section 6.F) from and after the Closing Date and
until all of the Obligations are satisfied in full, as follows:
A. Payment of the Notes. Borrower shall punctually pay, or cause
to be paid, the principal, interest and all other sums to become due in respect
of the Notes and the other Loan Documents in accordance with the Notes and the
other Loan Documents. Borrower shall authorize Lender to establish arrangements
whereby all scheduled payments made in respect of the Obligations are
transferred by Automated Clearing House Debit initiated by Lender directly from
an account at a U.S. bank in the name of Borrower to such account as Lender may
designate or as Lender may otherwise designate.
B. Title. Borrower shall maintain good and marketable fee simple
title to the real property comprising each of the Premises, free and clear of
all liens, encumbrances, charges and other exceptions to title, except the
Permitted Exceptions. Lender shall have valid first liens upon and security
interests in the real property comprising each of the Premises pursuant to the
Mortgages and the UCC-1 Financing Statements. Borrower shall cause Lessee to
maintain title to the Personal Property (other than the Leased Personal
Property, which Lessee shall maintain a leasehold interest in during the term of
the corresponding equipment lease) in accordance with the terms of the Lease,
free and clear of all liens, encumbrances, charges and security interests of any
nature whatsoever. Borrower shall have valid first liens upon and security
interests in Lessee's right, title and interest in and to the Personal Property
pursuant to the Lease.
C. Organization and Status of Borrower; Preservation of
Existence. Borrower shall be validly existing and in good standing under the
laws of its state of incorporation or formation. Borrower shall be qualified as
a foreign corporation, partnership or limited liability company to do business
in each state where the failure to be qualified would reasonably be expected to
result in a Material Adverse Effect. Borrower shall preserve its current form of
organization and shall not change its legal name, its state of formation, nor,
in one transaction or a series of related transactions, merge with or into, or
consolidate with, any other entity without providing, in each case, Lender with
30 days' prior written notice and obtaining Lender's prior written consent (to
the extent such consent is required under Section 7 of this Agreement). In
addition, Borrower shall require, and shall take reasonable measures to comply
with the requirement, that no individual or entity owning directly or indirectly
any interest in Borrower is an individual or entity whose property or interests
are subject to being blocked under any of the OFAC Laws and Regulations or is
otherwise in violation of any of the OFAC Laws and Regulations; provided,
however, the covenant contained in this sentence shall not apply to any Person
to the extent that such Person's interest is in or through a U.S.
Publicly-Traded Entity.
D. Licenses and Permits. All required licenses and permits, both
governmental and private, to use and operate each of the Premises as a Permitted
Concept shall be maintained in full force and effect.
E. Compliance With Laws Generally. The use and occupation of each
of the Premises, and the condition thereof, including, without limitation, any
Restoration, shall comply in all material respects with all Applicable
Regulations now or hereafter in effect. In addition, Borrower shall comply in
all material respects with all Applicable Regulations now or hereafter in
effect, including, without limitation, the OFAC Laws and Regulations and
Anti-Money Laundering Laws. Without limiting the generality of the other
provisions of this Section, Borrower shall comply in all material respects with
the ADA, and all regulations promulgated thereunder, as it affects each of the
Premises.
13
F. Compliance With Environmental Laws. (1) The Premises, Borrower
and any other operator or user of any of the Premises shall not be in violation
in any material respect of any Environmental Laws or any investigation or
inquiry by any Governmental Authority or subject to any Remediation obligations
under any Environmental Laws.
(2) All uses and operations on or of each of the Premises, whether
by Borrower or any other person or entity, shall be in compliance with all
Environmental Laws and permits issued pursuant thereto.
(3) There shall be no Releases or Hazardous Materials in, on,
under or from any of the Premises, except in Permitted Amounts.
(4) Borrower shall keep each of the Premises, or cause each of the
Premises to be kept, free and clear of all Environmental Liens.
(5) Borrower shall not do or allow any tenant or other user of any
of the Premises to do any act that (a) materially increases the dangers to human
health or the environment, (b) impairs or is reasonably likely to impair the
value of any of the Premises in any material respect, (c) is contrary in any
material respect to any requirement of any insurer, (d) constitutes a public or
private nuisance or constitutes waste, or (e) violates any covenant, condition,
agreement or easement applicable to any of the Premises in any material respect.
(6) Borrower shall immediately notify Lender in writing upon
Borrower obtaining actual knowledge of:
(a) any presence of Releases or Threatened Releases in,
on, under, from or migrating towards any of the Premises, in excess of
Permitted Amounts, including, without limitation, the presence on or
under any of the Premises, or the escape, seepage, leakage, spillage,
discharge, emission or release from any USTs on, above or under any of
the Premises, of any Hazardous Materials, apparent or real, in excess
of Permitted Amounts;
(b) any non-compliance with any Environmental Laws
related in any way to any of the Premises;
(c) any Environmental Lien or any act or omission which
could reasonably be expected to result in the imposition of an
Environmental Lien;
(d) any required or proposed Remediation of environmental
conditions relating to any of the Premises, including, without
limitation, any and all enforcement, clean-up, remedial, removal or
other governmental or regulatory actions threatened, instituted or
completed pursuant to any of the Environmental Laws affecting any of
the Premises;
(e) any written or oral notice or other communication of
which Borrower becomes aware from any source whatsoever (including but
not limited to a Governmental Authority) relating in any way to
Hazardous Materials, USTs or Remediation thereof, possible liability of
any person or entity pursuant to any Environmental Law, other
environmental conditions in connection with any of the Premises, or any
actual or potential administrative or judicial proceedings in
connection with anything referred to in this Agreement; or
(f) any investigation or inquiry initiated by any
Governmental Authority relating to the Environmental Condition of any
of the Premises.
(7) Borrower shall, at its sole cost and expense:
(a) perform any environmental site assessment (but not
more than one per year per Premises) or other investigation of
environmental conditions in connection with any of the Premises as may
be reasonably requested by Lender (including but not limited to
sampling, testing and analysis of soil, water,
14
air, building materials and other materials and substances whether
solid, liquid or gas), and share with Lender and Environmental Insurer
the reports and other results thereof, and Lender, Environmental
Insurer and other Indemnified Parties shall be entitled to rely on such
reports and other results thereof; and
(b) have the Premises inspected as may be required by any
Environmental Laws for seepage, spillage and other environmental
concerns. If any USTs are located at any of the Premises, Borrower
shall maintain and monitor such USTs in accordance with all
Environmental Laws. Borrower shall provide Lender with written
certified results of all inspections performed on any of the Premises.
All costs and expenses associated with the inspection, preparation and
certification of results, as well as those associated with any
corrective action, shall be paid by Borrower. All inspections and tests
performed on any of the Premises shall be conducted in compliance with
all Environmental Laws.
(8) Borrower shall, at its sole cost and expense, and without
limiting the rights of Lender under any other provision of this Agreement,
comply with all reasonable written requests of Lender to:
(a) reasonably effectuate Remediation of any condition
(including but not limited to a Release) in, on, under or from any of
the Premises;
(b) comply with any Environmental Law;
(c) comply with any directive from any Governmental
Authority; and
(d) take any other reasonable action necessary or
appropriate for protection of human health or the environment.
(9) Lender, Environmental Insurer and any other person or entity
designated by Lender, including but not limited to any receiver, any
representative of a Governmental Authority, and any environmental consultant,
shall have the right, but not the obligation, to enter upon any of the Premises
(upon reasonable prior notice) during normal business hours or at any time (and
without prior notice) in the event of an emergency (including without limitation
in connection with any Securitization, Participation or Transfer contemplated by
this Agreement or in connection with the exercise of any remedies set forth in
the Mortgages or the other Loan Documents) to assess any and all aspects of the
environmental condition of any of the Premises and its use, including but not
limited to conducting any environmental assessment or audit (the scope of which
shall be determined in Lender's sole and absolute discretion) and taking samples
of soil, groundwater or other water, air, or building materials, and conducting
other invasive testing. Borrower shall cooperate with and provide access to
Lender, Environmental Insurer and any such person or entity designated by
Lender. Any such assessment and investigation shall be at Borrower's sole cost
and expense if, at the time Lender undertakes such assessment or investigation,
Lender has a reasonable basis for believing that a Release has occurred at any
of the Premises in excess of Permitted Amounts or if an Event of Default has
occurred and is continuing. Otherwise, any such assessment and investigation
shall be at Lender's sole cost and expense.
G. Financial Statements. Within 45 days after the end of each
fiscal quarter and within 120 days after the end of each fiscal year of
Borrower, Borrower shall deliver to Lender (a) complete financial statements of
Borrower including a balance sheet, profit and loss statement, statement of cash
flows and all other related schedules for the fiscal period then ended; and (b)
such other financial information as Lender may reasonably request in order to
establish compliance with the financial covenants in the Loan Documents,
including, without limitation, Section 6.J of this Agreement. All such financial
statements shall be prepared in accordance with GAAP from period to period,
except that the financial statements shall reflect the carrying value of the
real estate comprising the Premises and related depreciation expense and
contributed capital amounts on the basis of X. Xxxxxxxxx'x Corporation's
historical cost based carrying values, shall reflect lease income on an
operating lease basis without evaluation with respect to direct financing lease
treatment and shall not include footnote disclosures. The financial statements
shall be certified to be accurate and complete in all material respects by
Borrower (or the Treasurer or other appropriate officer of Borrower) to the best
of its knowledge. The financial statements delivered to Lender need not be
audited, but Borrower shall deliver to Lender copies of any audited financial
statements of Borrower
15
which may be prepared, as soon as they are available. Borrower shall also cause
to be delivered to Lender copies of any financial statements required to be
delivered to Borrower by any tenants of any of the Premises.
H. Lost Note. Borrower shall, if any Note is mutilated,
destroyed, lost or stolen (a "Lost Note"), promptly deliver to Lender, upon
receipt from Lender of an affidavit and indemnity in a form reasonably
acceptable to Lender and Borrower 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.
Borrower shall provide fifteen (15) days' prior notice to Lender before making
any payments to third parties in connection with a Lost Note.
I. Inspections. Borrower shall, during normal business hours (or
at any time in the event of an emergency), (1) provide Lender and Lender's
officers, employees, agents, advisors, attorneys, accountants, architects, and
engineers with access to each of the Premises, all drawings, plans, and
specifications for each of the Premises in possession of Borrower, all
engineering reports relating to each of the Premises in the possession of
Borrower, the files, correspondence and documents relating to each of the
Premises, and the financial books and records, including lists of
delinquencies, relating to the ownership, operation, and maintenance of each of
the Premises (including, without limitation, any of the foregoing information
stored in any computer files), (2) allow such persons to make such inspections,
tests, copies, and verifications as Lender considers necessary, and (3) if
Borrower is in breach of the Fixed Charge Coverage Ratio requirement set forth
in the following subsection J, pay expenses reasonably incurred by Lender from
time to time in conducting such inspections, tests, copies and verifications
upon demand (such amounts to bear interest at the Default Rate if not paid upon
demand until paid).
J. Fixed Charge Coverage Ratio. Borrower shall cause to be
maintained an aggregate Fixed Charge Coverage Ratio at all of the Premises of
at least 1.25:1, determined as of the last day of each fiscal year of Borrower.
For purposes of this Section, the term "Fixed Charge Coverage Ratio" shall mean
with respect to the fiscal year immediately preceding the date of
determination, the ratio calculated for such period of time 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 5% of Gross
Sales, to (b) the sum of the Lender Payments, Operating Lease Expense and the
Equipment Payment Amount.
For purposes of this Section, the following terms shall be defined as
set forth below:
"Capital Lease" shall mean any lease of any property (whether
real, personal or mixed) with respect to one or more of the Premises
which lease would, in conformity with GAAP, be required to be
accounted for on a balance sheet as a capital lease. The term "Capital
Lease" shall not include any operating lease or the 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 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.
"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.
"Gross Sales" shall mean the sales or other income arising
from all business conducted at all of the Premises during the period
of determination, less sales tax.
16
"Interest Expense" shall mean for any period of
determination, the sum of all interest accrued in respect of the Notes
and all other Debt 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.
"Lender Payments" shall mean with respect to the period of
determination, the sum of all amounts payable under the Notes.
"Net Income" shall mean with respect to the period of
determination, the aggregate net income or net loss allocable to all
business conducted at all of the Premises. In determining the amount
of Net Income, (i) adjustments shall be made for inter-company charges
and nonrecurring gains and losses included in 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 or (y) corporate overhead expense
allocable to the period of determination.
"Operating Lease Expense" shall mean the sum of all payments
and expenses incurred under any operating leases with respect to one
or more of the Premises and the business operations thereon during the
period of determination, as determined in accordance with GAAP;
provided, however, the term "Operating Lease Expense" shall not
include any payments and expenses incurred under the Lease.
K. Affiliate Transactions. Unless otherwise approved by Lender,
all transactions between Borrower and any of its Affiliates shall be on terms
substantially as advantageous to Borrower as those which could be obtained by
Borrower in a comparable arm's length transaction with a non-Affiliate of
Borrower.
L. Compliance Certificates. Within 120 days after the end of
each fiscal year of Borrower, Borrower shall deliver a compliance certificate
to Lender in a form to be provided by Lender in order to establish that
Borrower is in compliance in all material respects with all of its obligations,
duties and covenants under the Loan Documents.
M. Nonconsolidation. (1) Borrower shall at all times maintain
appropriate and complete books and records of account separate from all other
Persons. Where necessary or appropriate, Borrower shall disclose the nature of
the transaction contemplated by the Loan Documents and Borrower's independent
status to its creditors. Borrower shall not own or lease any assets other than
the Premises and cash, nor engage in any business other than owning and leasing
the Premises, including financing the Premises with Lender. Borrower shall not
commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain its own checking account or accounts
with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with
other Persons, the salaries of and the expenses related to providing benefits
to such employees, at all times shall be, fairly and nonarbitrarily allocated
among such Persons, with the result that each such Person shall bear its fair
share of the salary and benefit costs associated with all such common
employees.
(4) To the extent that Borrower jointly contracts with other
Persons to do business with vendors or service providers or to share overhead
expenses, the costs incurred in so doing at all times shall be, fairly and
nonarbitrarily allocated among such Persons, with the result that each such
Person shall bear its fair share of such costs. To the extent that Borrower
contracts or does business with vendors or service providers where the goods or
services provided are or shall be partially for the benefit of other Persons,
the costs incurred in so doing at all times shall be, fairly and nonarbitrarily
allocated to or among such Persons for whose benefit the goods or services are
provided, with the result that each such Person shall bear its fair share of
such costs. All transactions between Borrower and other Persons shall be only
on an arm's-length basis.
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(5) To the extent that Borrower or other Persons have offices in
the same location, there shall be a fair, appropriate and nonarbitrary
allocation of overhead among them, with the result that each such Person shall
bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or
unsecured, direct or indirect, absolute or contingent (including guaranteeing
any obligation or assuming liability for the debts of any other Person and
Borrower will not hold itself out as being liable for the debts of any other
Person), other than the Loans and trade and operational debt incurred in the
ordinary course of business with trade creditors and in amounts as are normal
and reasonable under the circumstances. No indebtedness other than the Loans
may be secured (subordinate or pari passu) by the Premises or any portion
thereof.
(7) Borrower shall not enter into any contract or agreement with
any Affiliate of Borrower, any constituent party of Borrower or any Affiliate
of any constituent party of Borrower except upon terms and conditions that are
intrinsically fair and substantially similar to those that would be available
on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall
not pledge, grant any security interest in, hypothecate or otherwise encumber
its assets for the benefit of any other Persons.
(9) Borrower shall issue separate financial statements prepared
not less frequently than annually and prepared according to Section 6.G.
(10) Borrower shall maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and character in
light of its contemplated business operations.
(11) Borrower shall conduct its affairs strictly in accordance
with its organizational documents and shall observe all necessary, appropriate
and customary formalities. The books, records and accounts of Borrower shall at
all times be maintained in a manner permitting the assets and liabilities of
Borrower to be easily separated and readily ascertained from those of any other
Person.
(12) Borrower shall not hold itself out to the public or to any of
its individual creditors as being a unified entity with assets and liabilities
in common with any other Person, except that Borrower may be included in
Lessee's or its affiliates' reports under the Securities Exchange Act of 1934,
as amended, and its and their consolidated financial statements, as
appropriate, provided such statements adequately disclose the separate legal
existence of Borrower, the separate ownership by Borrower of the Premises and
the separate liabilities of Borrower. Borrower shall maintain and utilize
separate stationery, invoices and checks.
(13) Borrower shall not make any loans or advances to any third
party (including any Affiliate of Borrower or constituent party of Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a)
commence any case, proceeding or other action under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to Borrower or other Persons or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to Borrower or its debts or other Persons or their
debts or (b) seek appointment of a receiver, trustee, custodian or other
similar official for Borrower or for all or any substantial part of its or
other Person's assets or make a general assignment for the benefit of
Borrower's creditors. Borrower shall not take any action in furtherance of, or
indicating its consents to, approval of or acquiescence in, any of the acts set
forth above. Borrower shall not be unable to, or admit in writing its inability
to, pay its debts.
N. OFAC Laws and Regulations. Borrower shall immediately notify
Lender in writing if any individual or entity owning directly or indirectly any
interest in Borrower or any director, officer, member, manager or partner of
any of such holders is an individual or entity whose property or interests are
subject to being blocked under any of the OFAC Laws and Regulations or is
otherwise in violation of any of the OFAC Laws and Regulations, or is under
investigation by any Governmental Authority for, or has been charge with or
convicted of,
18
drug trafficking, terrorist-related activities or any violation Anti-Money
Laundering Laws, has been assessed civil penalties under these or related laws,
or has had funds seized or forfeited in an action under these or related laws;
provided, however, the covenant contained in this sentence shall not apply to
any Person to the extent that such Person's interest is in or through a U.S.
Publicly-Traded Entity.
O. Condominium. Borrower shall promptly pay, perform and comply
(or cause the payment, performance and compliance) with all obligations imposed
on the owner of the Premises located at 00000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx
(FFC No. 8001-4153; Unit No. 17) (the "Condominium Property") by the applicable
condominium declaration, by-laws and related documents (collectively, the
"Condominium Documents") and shall provide Lender with copies of any notices
received by Borrower from the condominium board, its managing agent or from the
owner of any other condominium unit, including, without limitation, notices
asserting or claiming a default or breach by Borrower under the Condominium
Documents, such copies to be provided to Lender within five (5) days after
Borrower's receipt of the applicable notice. Borrower shall indemnify, protect,
defend and hold harmless each of the Indemnified Parties from and against any
and all Losses (excluding Losses suffered by an Indemnified Party arising out
of the gross negligence or willful misconduct of such Indemnified Party;
provided, however, that the term "gross negligence" shall not include gross
negligence imputed as a matter of law to any of the Indemnified Parties solely
by reason of Borrower's interest in the Condominium Property or Lender's
failure to act in respect of matters which are or were the obligation of
Borrower under this Agreement) caused by, incurred or resulting from Borrower's
failure to pay, perform and comply (or cause the payment, performance and
compliance) with the terms and conditions of the Condominium Documents or this
Section. If Borrower fails to pay, perform or comply (or cause the payment,
performance and compliance) with any of its obligations under the Condominium
Documents or this Section, Lender may pay or perform such obligations;
provided, however, in no event shall Lender be obligated to pay or perform such
obligations, and in no event shall payment or performance of such obligations
by Lender constitute a cure of any Event of Default arising under this
Agreement as a result of Borrower's failure to pay, perform or comply with such
obligations. Any amounts disbursed by Lender as a result of Lender's
performance of such obligations shall bear interest at the Default Rate from
and including the date of such advance to and including the date such advance
is repaid.
7. PROHIBITION ON PROHIBITED TRANSFER AND PLEDGE. Without
limiting the terms and conditions of Section 3.09 of the Mortgages, Borrower
agrees that, from and after the Closing Date and until all of the Obligations
are satisfied in full, without the prior written consent of Lender: (1) no
Prohibited Transfer shall occur; and (2) no interest in Borrower or Member
shall be pledged, encumbered, hypothecated or assigned as collateral for any
obligation of Borrower or Member (each, a "Pledge"). In addition, no interest
in Borrower, or in any individual or person owning directly or indirectly any
interest in Borrower, shall be transferred, assigned or conveyed to any
individual or person whose property or interests are subject to being blocked
under any of the OFAC Laws and Regulations and/or who is in violation of any of
the OFAC Laws and Regulations, and any such transfer, assignment or conveyance
shall not be effective until the transferee has provided written certification
to Borrower and Lender that (A) the transferee or any person who owns directly
or indirectly any interest in transferee, is not an individual or entity whose
property or interests are subject to being blocked under any of the OFAC Laws
and Regulations or is otherwise in violation of the OFAC Laws and Regulations,
and (B) the transferee has taken reasonable measures to assure than any
individual or entity who owns directly or indirectly any interest in
transferee, is not an individual or entity whose property or interests are
subject to being blocked under any of the OFAC Laws and Regulations or is
otherwise in violation of the OFAC Laws and Regulations; provided, however, the
covenant contained in this sentence shall not apply to any Person to the extent
that such Person's interest is in or through a U.S. Publicly-Traded Entity.
Lender's consent to a Prohibited Transfer and/or Pledge shall be subject to the
satisfaction of such conditions as Lender shall determine in its sole
discretion, including, without limitation, (i) the execution and delivery of
such modifications to the terms of the Loan Documents as Lender shall request,
(ii) the proposed Prohibited Transfer and/or Pledge having been approved by
each of the rating agencies which have issued ratings in connection with any
Securitization of the Loans, and (iii) the proposed transferee having agreed to
comply with all of the terms and conditions of the Loan Documents (including
any modifications requested by Lender pursuant to clause (i) above). In
addition, any such consent shall be conditioned upon payment by Borrower to
Lender of (x) a fee equal to one percent (1%) of the then outstanding principal
balance of the Notes and (y) all out-of-pocket costs and expenses incurred by
Lender in connection with such consent, including, without limitation,
reasonable attorneys' fees. Lender shall not be required to demonstrate any
actual impairment of its security or any increased risk of default hereunder in
order to declare the Obligations immediately due and payable upon a Prohibited
Transfer
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or Pledge in violation of this Section. The provisions of this Section shall
apply to every Prohibited Transfer or Pledge regardless of whether voluntary or
not, or whether or not Lender has consented to any previous Prohibited Transfer
or Pledge.
8. TRANSACTION CHARACTERIZATION. A. It is the intent of the
parties hereto that this Agreement and the other Loan Documents are a contract
to extend a financial accommodation (as such term is used in the Code) for the
benefit of Borrower and that, except as otherwise contemplated by Sections
12.P(4) and (5), the Loan Documents evidence one unitary, unseverable
transaction pertaining to all of the Premises. Borrower acknowledges that all
of the Loans are cross-defaulted and cross-collateralized, except as otherwise
contemplated by Sections 12.P(4) and (5), and that such cross-default and
cross-collateralization is a material inducement to Lender making the Loans.
B. It is the intent of the parties hereto that the business
relationship created by the 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
Borrower and Lender, to make them joint venturers, to make Borrower an agent,
legal representative, partner, subsidiary or employee of Lender, nor to make
Lender in any way responsible for the debts, obligations or losses of Borrower.
9. DEFAULT AND REMEDIES. A. Each of the following shall be
deemed an event of default by Borrower (each, an "Event of Default"):
(1) If any representation or warranty of Borrower set forth in
any of the Loan Documents is false in any material respect, or if Borrower
renders any statement or account which is false in any material respect.
(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, Lender shall not be entitled to exercise its
rights and remedies set forth below unless and until Lender shall have given
Borrower 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 Borrower 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 (7) 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 Lender in immediate jeopardy, and is within
the reasonable power of Borrower to promptly cure after receipt of notice
thereof, all as determined by Lender in its reasonable discretion, then such
failure shall not constitute an Event of Default hereunder, unless otherwise
expressly provided herein, unless and until Lender shall have given Borrower
notice thereof and a period of 30 days shall have elapsed, during which period
Borrower 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 Lender in its reasonable
discretion, and Borrower is diligently pursuing a cure of such failure, then
Borrower 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 Lender. If Borrower 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 Borrower becomes insolvent within the meaning of the Code,
files or notifies Lender 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" or a breach or default,
after the passage of all applicable notice and cure or grace periods, under any
other Loan Document, the Lease or any of the Other Agreements.
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(6) If a final, nonappealable judgment is rendered by a court
against Borrower which (i) has a material adverse effect on the operation of
any of the Premises as a Permitted Concept, or (ii) is in an amount greater
than $100,000.00 and not covered by insurance, and, in either case, is not
discharged or provision made for such discharge within 60 days from the date of
entry of such judgment.
(7) If there is a breach of the Fixed Charge Coverage Ratio
requirement and Lender shall have given Borrower notice thereof and Borrower
shall have failed within a period of 30 days from the delivery of such notice
to (i) pay to Lender 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 6.J 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 Lender of
Borrower's election to substitute a Substitute Premises for each Subject
Premises in accordance with the terms of Section 11 (the failure of Borrower to
complete such substitution within 60 days after Lender 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 Borrower's payment of the FCCR Amount,
Borrower and Lender shall execute an amendment to each such Note in form and
substance reasonably acceptable to Lender reducing the principal amount payable
to Lender under such Note and reamortizing the principal amount of such Note in
equal monthly payments over the then remaining term of such Note at the rate of
interest set forth therein.
B. Upon the occurrence and during the continuance of an Event of
Default, subject to the limitations set forth in subsection A, Lender may
declare all or any part of the obligations of Borrower 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 Borrower
hereby waives notice of intent to accelerate the obligations secured by the
Mortgages and notice of acceleration. Thereafter, Lender may exercise, at its
option, concurrently, successively or in any combination, all remedies
available at law or in equity, including without limitation any one or more of
the remedies available under the Notes, the Mortgages or any other Loan
Document. Neither the acceptance of this Agreement nor its enforcement shall
prejudice or in any manner affect Lender's right to realize upon or enforce any
other security now or hereafter held by Lender, it being agreed that Lender
shall be entitled to enforce this Agreement and any other security now or
hereafter held by Lender in such order and manner as it may in its absolute
discretion determine. No remedy herein conferred upon or reserved to Lender 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 Lender, or to which Lender may be
otherwise entitled, may be exercised, concurrently or independently, from time
to time and as often as may be deemed expedient by Lender.
10. INDEMNITY; RELEASE. A. Borrower shall, at its sole cost and
expense, protect, defend, indemnify, release and hold harmless each of the
Indemnified Parties for, from and against any and all claims, suits,
liabilities (including, without limitation, strict liabilities), actions,
proceedings, obligations, debts, damages, losses, costs, expenses, diminutions
in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts
paid in settlement and damages of whatever kind or nature (including, without
limitation, attorneys' fees, court costs and other costs of defense)
(collectively, "Losses") (excluding Losses suffered by an Indemnified Party
directly arising out of such Indemnified Party's gross negligence or willful
misconduct; provided, however, that the term "gross negligence" shall not
include gross negligence imputed as a matter of law to any of the Indemnified
Parties solely by reason of Borrower's interest in any of the Premises or
Borrower's failure to act in respect of matters which are or were the
obligation of Borrower under the Loan Documents), and costs of Remediation
(whether or not performed voluntarily), engineers' fees, environmental
consultants' fees, and costs of investigation (including but not limited to
sampling, testing, and analysis of soil, water, air, building materials and
other materials and substances whether
21
solid, liquid or gas) imposed upon or incurred by or asserted against any
Indemnified Parties, and directly or indirectly arising out of or in any way
relating to any one or more of the following:
(1) any presence of any Hazardous Materials or USTs in, on,
above, or under any of the Premises;
(2) any past, present or Threatened Release in, on, above, under
or from any of the Premises;
(3) any activity by Borrower, any person or entity affiliated
with Borrower or any tenant or other user of any of the Premises in connection
with any actual, proposed or threatened use, treatment, storage, holding,
existence, disposition or other Release, generation, production, manufacturing,
processing, refining, control, management, abatement, removal, handling,
transfer or transportation to or from any of the Premises of any Hazardous
Materials or USTs at any time located in, under, on or above any of the
Premises;
(4) any activity by Borrower, any person or entity affiliated
with Borrower or any tenant or other user of any of the Premises in connection
with any actual or proposed Remediation of any Hazardous Materials or USTs at
any time located in, under, on or above any of the Premises, whether or not
such Remediation is voluntary or pursuant to court or administrative order,
including but not limited to any removal, remedial or corrective action;
(5) any past, present or threatened non-compliance or violations
of any Environmental Laws (or permits issued pursuant to any Environmental Law)
in connection with any of the Premises or operations thereon, including but not
limited to any failure by Borrower, any person or entity affiliated with
Borrower or any tenant or other user of any of the Premises to comply with any
order of any Governmental Authority in connection with any Environmental Laws;
(6) the imposition, recording or filing or the threatened
imposition, recording or filing of any Environmental Lien encumbering any of
the Premises;
(7) any administrative processes or proceedings or judicial
proceedings in any way connected with any matter addressed in this Agreement;
(8) any past, present or threatened injury to, destruction of or
loss of natural resources in any way connected with any of the Premises,
including but not limited to costs to investigate and assess such injury,
destruction or loss;
(9) any acts of Borrower, any person or entity affiliated with
Borrower or any tenant or other user of any of the Premises in arranging for
disposal or treatment, or arranging with a transporter for transport for
disposal or treatment, of Hazardous Materials or USTs owned or possessed by
Borrower, any person or entity affiliated with Borrower or any tenant or other
user, at any facility or incineration vessel owned or operated by another
person or entity and containing such or similar Hazardous Materials or USTs;
(10) any acts of Borrower, any person or entity affiliated with
Borrower or any tenant or other user of any of the Premises, in accepting any
Hazardous Materials or USTs for transport to disposal or treatment facilities,
incineration vessels or sites selected by Borrower, any person or entity
affiliated with Borrower or any tenant or other user of any of the Premises,
from which there is a Release, or a Threatened Release of any Hazardous
Materials which causes the incurrence of costs for Remediation;
(11) any personal injury, wrongful death, or property damage
arising under any statutory or common law or tort law theory, including but not
limited to damages assessed for the maintenance of a private or public nuisance
or for the conducting of an abnormally dangerous activity on or near any of the
Premises; or
(12) any misrepresentation or inaccuracy in any representation or
warranty or material breach or failure to perform any covenants or other
obligations pursuant to this Agreement.
B. Borrower fully and completely releases, waives and covenants
not to assert any claims, liabilities, actions, defenses, challenges, contests
or other opposition against Lender and Environmental Insurer, however
22
characterized, known or unknown, foreseen or unforeseen, now existing or
arising in the future, relating to this Agreement and any Hazardous Materials,
USTs, Releases and/or Remediation on, at or affecting any of the Premises
(other than those arising out of Lender's or Environmental Insurer's gross
negligence or willful misconduct; provided, however, that the term "gross
negligence" shall not include gross negligence imputed as a matter of law to
Lender or Environmental Insurer solely by reason of Borrower's interest in any
of the Premises or Borrower's failure to act in respect of matters which are or
were the obligation of Borrower under the Loan Documents).
11. SUBSTITUTION. A. Borrower shall have the right to obtain a
release of all liens granted in favor of Lender with respect to a Premises by
substituting a Substitute Premises for such Premises if:
(i) the terms of Section 9.A(7) permit such
substitution; or
(ii) Borrower determines for any reason to make a
substitution, provided, however, that Borrower may not substitute more
than two (2) of the Premises pursuant to the provisions of this
subitem (ii).
B. Borrower's right to substitute a Substitute Premises for a
Premises pursuant to the preceding subsection A shall be subject to the
fulfillment of each of the following terms and conditions:
(1) Borrower shall provide Lender with notice of its
intention to substitute a Substitute Premises. Any notice with respect
to a proposed substitution pursuant to the preceding subsection A(i)
must be delivered within the applicable 30 day period contemplated by
Section 9.A(7) and the closing of the substitution shall take place
within the applicable 60 day period contemplated by such subsection.
Any substitution pursuant to the preceding subsection A(ii) shall take
place within 60 days after delivery to Lender of the substitution
notice.
(2) Borrower must provide for the substitution of a
Substitute Premises, and the proposed Substitute Premises must:
(a) be a Permitted Concept, in good condition
and repair, ordinary wear and tear excepted;
(b) 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 6.J being
deemed to be modified if necessary and as applicable to
provide for a calculation of the Fixed Charge Coverage Ratio
for each of the Premises on an individual basis rather than
on an aggregate basis with the other Premises) at least equal
to the Fixed Charge Coverage Ratio for the Premises being
replaced, provided that, if the substitution is being done
pursuant to the preceding subsection A(i), the Fixed Charge
Coverage Ratio for the Substitute Premises for the twelve
month period preceding the date of the closing of such
substitution must also be high enough to result in a cure of
the breach of the Fixed Charge Coverage Ratio requirement;
(c) be owned in fee simple by Borrower at the
closing of the substitution;
(d) Borrower's right, title and interest in and
to each proposed Substitute Premises shall be free and clear
of all liens, restrictions, easements and encumbrances,
except such matters as are reasonably acceptable to Lender
(the "Substitute Premises Permitted Exceptions");
(e) have a fair market value no less than the
greater of (i) the outstanding principal amount of the Note
corresponding to the Premises to be replaced or (ii) the then
fair market value of the Premises to be replaced, with such
fair market values reasonably determined by Lender's in-house
inspectors and underwriters; and
(f) have a replacement cost no less than the
then replacement cost of the Premises to be replaced, all as
reasonably determined by Lender's in-house inspectors and
underwriters
23
(3) Lender shall have inspected and approved the
Substitute Premises utilizing such site inspection and underwriting
approval criteria that would be used by a prudent institutional
mortgage loan lender. Borrower shall have paid all costs and expenses
resulting from such proposed substitution, including, without
limitation, the cost of title insurance premiums and all endorsements
required by Lender, survey charges, UCC and litigation search charges,
the attorneys' fees of Borrower, reasonable attorneys' fees and
expenses of Lender, the cost of the environmental due diligence
undertaken pursuant to subsection (6) below, including, without
limitation, the cost of environmental insurance, Lender's site
inspection costs and fees, stamp taxes, mortgage taxes, transfer fees,
escrow, filing and recording fees and UCC filing and recording fees
(including preparation, filing and recording fees for UCC continuation
statements).
(4) Lender shall have received a preliminary title
report and irrevocable commitment to insure title in the amount of the
then outstanding principal balance of the Loan relating to the
Premises to be replaced by means of a mortgagee's ALTA extended
coverage policy of title insurance (or its equivalent, in the event
such form is not issued in the jurisdiction where the proposed
Substitute Premises is located) for such proposed Substitute Premises
issued by Title Company showing Borrower vested with good and
marketable title in the real property comprising the Substitute
Premises and committing to insure Lender's first priority lien upon
and security interest in the proposed Substitute Premises, subject
only to the Substitute Premises Permitted Exceptions and containing
endorsements substantially comparable to those required by Lender at
the Closing.
(5) Lender shall have received a current ALTA survey of
such proposed Substitute Premises or its equivalent, the form of which
shall be comparable to those received by Lender 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.
(6) Lender shall have completed such environmental due
diligence of the proposed Substitute Premises as it deems necessary or
advisable in its sole discretion, including, without limitation,
receiving an environmental insurance policy with respect to such
proposed Substitute Premises in a form and substance and issued by
such environmental insurance company as is acceptable to Lender, and
Lender shall have approved the environmental condition of the
Substitute Premises based on such environmental due diligence as
Lender deems necessary or advisable in its sole discretion; provided,
however, if such proposed substitution shall occur from and after such
time as the Loan is included in a Securitization, this subitem (6)
shall be modified to read as follows: Lender shall have completed such
environmental due diligence of the proposed Substitute Premises as a
prudent institutional mortgage loan lender deems necessary or
advisable, including, without limitation, receiving an environmental
insurance policy with respect to such proposed Substitute Premises in
a form and substance and issued by such environmental insurance
company as is acceptable to a prudent institutional mortgage loan
lender, and Lender shall have approved the environmental condition of
the Substitute Premises based on such environmental due diligence as a
prudent institutional mortgage loan lender would deem necessary or
advisable.
(7) Borrower shall deliver, or cause to be delivered,
such legal opinions as Lender may reasonably require with respect to
the proposed substitution, all in a form and substance which would be
satisfactory to a prudent institutional mortgage loan lender and its
counsel. If the Loan relating to the Premises to be replaced is part
of a Securitization, such opinions shall include, without limitation,
an opinion of counsel to the rating agencies which have issued ratings
in connection with such Securitization that the substitution does not
constitute a "significant modification" of such Loan under Section
1001 of the Internal Revenue Code or otherwise cause a tax to be
imposed on a "prohibited transaction" by any REMIC Trust.
(8) no Event of Default shall have occurred and be
continuing under any of the Loan Documents.
(9) Borrower and the Lessee Parties 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
24
be reasonably required by Lender to address matters unique to the
Substitute Premises) or amendments to such documents, including,
without limitation, a Mortgage, amendment to the Lease, Memoranda,
Guaranty and UCC-1 Financing Statements (the "Substitute Documents"),
to provide Lender with a first priority lien on the proposed
Substitute Premises, subject only to the Substitute Premises Permitted
Exceptions, and all other rights, remedies and benefits with respect
to the proposed Substitute Premises which Lender holds in the Premises
to be replaced, all of which documents shall be in a form and
substance which would be satisfactory to a prudent institutional
mortgage loan lender.
(10) the representations and warranties set forth in the
Substitute Documents and Section 5 of this Agreement applicable to the
proposed Substitute Premises shall be true and correct in all material
respects as of the date of substitution, and Borrower shall have
delivered to Lender an officer's certificate to that effect.
(11) Borrower shall have delivered to Lender certificates
of insurance and insurance policies showing that all insurance
required by the Substitute Documents is in full force and effect.
(12) The Personal Property located at the Substitute
Premises shall be owned by Lessee, free and clear of all liens,
encumbrances, charges and security interests of any nature whatsoever.
Upon satisfaction of the foregoing conditions with respect to the release of a
Premises: (a) the proposed Substitute Premises shall be deemed substituted for
the replaced Premises; (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 were secured by the
replaced Premises; (d) the Substitute Documents shall be dated as of the date
of the substitution; (e) Lender will release, or cause to be released, the lien
of the Mortgage, UCC-1 Financing Statements and any other Loan Documents
encumbering the replaced Premises; and (f) at the closing of the substitution,
Borrower shall convey without warranty or recourse the replaced Premises to a
third party determined by Borrower.
12. MISCELLANEOUS PROVISIONS.
A. Notices. All notices, consents, approvals or other
instruments required or permitted to be given by either party pursuant to this
Agreement or any of the other Loan Documents shall be in writing and given by
(i) hand delivery, (ii) express overnight delivery service or (iii) certified
or registered mail, return receipt requested, and shall be deemed to have been
delivered upon (a) receipt, if hand delivered, (b) the next Business Day, if
delivered by express overnight delivery service, or (c) 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 specified below:
If to Borrower: JAX Real Estate, LLC
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: R. Xxxxxxx Xxxxx
If to Lender: GE Capital Franchise Finance Corporation
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
B. Real Estate Commission. Lender and Borrower 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 or the other Loan Documents, except Borrower's
engagement of Banc of America Securities LLC, whose fees shall be paid by
Borrower. Lender and Borrower 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.
25
C. Waiver and Amendment; Document Review. (1) No provisions of
this Agreement or the other Loan Documents 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.
(2) In the event Borrower makes any request upon Lender requiring
Lender or Lender's attorneys to review and/or prepare (or cause to be reviewed
and/or prepared) any documents, plans, specifications or other submissions in
connection with or arising out of this Agreement or any of the other Loan
Documents, then Borrower shall (x) reimburse Lender promptly upon Lender's
demand for all out-of-pocket costs and expenses incurred by Lender in
connection with such review and/or preparation, including, without limitation,
reasonable attorneys' fees, and (y) pay Lender a reasonable processing and
review fee.
D. Captions. Captions are used throughout this Agreement and the
other Loan Documents for convenience of reference only and shall not be
considered in any manner in the construction or interpretation hereof.
E. Lender's Liability. Notwithstanding anything to the contrary
provided in this Agreement or the other Loan Documents, it is specifically
understood and agreed, such agreement being a primary consideration for the
execution of this Agreement and the other Loan Documents by Lender, that (1)
there shall be absolutely no personal liability on the part of any shareholder,
director, officer or employee of Lender, with respect to any of the terms,
covenants and conditions of this Agreement or the other Loan Documents, (2)
Borrower waives all claims, demands and causes of action against Lender's
officers, directors, employees and agents in the event of any breach by Lender
of any of the terms, covenants and conditions of this Agreement or the other
Loan Documents to be performed by Lender and (3) Borrower shall look solely to
the assets of Lender for the satisfaction of each and every remedy of Borrower
in the event of any breach by Lender of any of the terms, covenants and
conditions of this Agreement or the other Loan Documents to be performed by
Lender, such exculpation of liability to be absolute and without any exception
whatsoever.
F. Severability. The provisions of this Agreement and the other
Loan Documents shall be deemed severable. If any part of this Agreement or the
other Loan Documents shall be held invalid, illegal or unenforceable, the
remainder shall remain in full force and effect, and such invalid, illegal or
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 Agreement and the other Loan
Documents have been entered into by parties who are experienced in
sophisticated and complex matters similar to the transaction contemplated by
this Agreement and the other Loan Documents and are entered into by both
parties in reliance upon the economic and legal bargains contained therein 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. Borrower and
Lender were each represented by legal counsel competent in advising them of
their obligations and liabilities hereunder.
H. Further Assurances. Borrower will, at its sole cost and
expense, do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered all such further acts, documents, conveyances,
notes, mortgages, deeds of trust, assignments, security agreements, financing
statements and assurances as Lender shall from time to time reasonably require
or deem advisable to carry into effect the purposes of this Agreement and the
other Loan Documents, to perfect any lien or security interest granted in any
of the Loan Documents and for the better assuring and confirming of all of
Lender's rights, powers and remedies under the Loan Documents.
I. Attorneys' Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement or the
other Loan Documents, 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.
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 Borrower
and Lender with respect to the subject matter of this Agreement and
26
the other Loan Documents. Notwithstanding anything in this Agreement and the
other Loan Documents to the contrary, with respect to the Premises, upon the
execution and delivery of this Agreement by Borrower and Lender, any bid
proposals or loan commitments with respect to the transactions contemplated by
this Agreement shall be deemed null and void and of no further force and effect
and the terms and conditions of this Agreement shall control notwithstanding
that such terms and conditions may be inconsistent with or vary from those set
forth in such bid proposals or loan commitments.
K. Forum Selection; Jurisdiction; Venue; Choice of Law. Borrower
acknowledges that this Agreement and the other Loan Documents were
substantially negotiated in the State of Arizona, this Agreement and the other
Loan Documents were executed by Lender in the State of Arizona and executed and
delivered by Borrower 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
or any of the other Loan Documents, the parties hereto hereby expressly submit
to the non-exclusive jurisdiction of all federal and state courts located in
the State of Arizona and Borrower 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, Borrower
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 and the Notes 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 of
this Agreement or the Notes, 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 Lender to commence any proceeding
in the federal or state courts located in the states in which the Premises are
located to the extent Lender deems such proceeding necessary or advisable to
exercise remedies available under this Agreement or the other Loan Documents.
L. Counterparts. This Agreement and the other Loan Documents may
be executed in one or more counterparts, each of which shall be deemed an
original.
M. Assignments by Lender; Binding Effect. Lender 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 Lender's entire right and
interest hereunder, Lender shall automatically be relieved, from and after the
date of such assignment, of liability for the performance of any obligation of
Lender contained herein. This Agreement and the other Loan Documents shall be
binding upon and inure to the benefit of Borrower and Lender 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 4, which shall be satisfied or waived as of the Closing Date, all
representations, warranties, agreements, obligations and indemnities of
Borrower and Lender set forth in this Agreement and the other Loan Documents
shall survive the Closing.
O. Waiver of Jury Trial and Punitive, Consequential, Special and
Indirect Damages. BORROWER AND LENDER 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, 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, ANY OF THE OTHER
LOAN DOCUMENTS 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,
BORROWER AND LENDER 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,
27
CLAIM OR COUNTERCLAIM BROUGHT BY EITHER PARTY 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,
ANY OF THE OTHER LOAN DOCUMENTS OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED
HERETO. THE WAIVER BY BORROWER AND LENDER 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.
P. Transfers, Participations and Securitizations. (1) A material
inducement to Lender's willingness to complete the transactions contemplated by
the Loan Documents is Borrower's agreement that Lender may, at any time,
complete a Transfer, Participation or Securitization with respect to any Note,
Mortgage and/or any of the other Loan Documents or any or all servicing rights
with respect thereto; provided, however, without the prior written consent of
Borrower, Lender shall not make a Transfer or grant a Participation to a
competitor of Borrower in the casual dining industry.
(2) Borrower agrees to cooperate in good faith with Lender in
connection with any such Transfer, Participation and/or Securitization of any
Note, Mortgage and/or any of the other Loan Documents, or any or all servicing
rights with respect thereto, including, without limitation (i) providing such
documents, financial and other data, and other information and materials (the
"Disclosures") which would typically be required with respect to Borrower or
the Lessee Parties 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, Borrower and the
Lessee Parties shall not be required to make Disclosures of any confidential
information or any information which has not previously been made public unless
required by applicable federal or state securities laws; and (ii) amending the
terms of the transactions evidenced by the Loan Documents to the extent
necessary so as to satisfy the requirements of purchasers, transferees,
assignees, servicers, participants, investors or selected rating agencies
involved in any such Transfer, Participation or Securitization, so long as such
amendments would not have a material adverse effect upon Borrower, the Lessee
Parties or the transactions contemplated hereunder. Lender shall be responsible
for preparing at its expense any documents evidencing the amendments referred
to in the preceding subitem (ii).
(3) Borrower consents to Lender providing the Disclosures, as
well as any other information which Lender may now have or hereafter acquire
with respect to the Premises or the financial condition of Borrower or the
Lessee Parties to each purchaser, transferee, assignee, servicer, participant,
investor or rating agency involved with respect to each Transfer, Participation
and/or Securitization, as applicable. Lender and Borrower (and their respective
Affiliates) shall each pay their own attorneys fees and other out-of-pocket
expenses incurred in connection with the performance of their respective
obligations under this Section; provided, however, in no event shall Borrower
be required to incur out-of-pocket expenses in excess of $10,000 pursuant to
this Section.
(4) Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents: (a) an Event of Default or 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) an Event of Default or 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 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 and Other Agreements
corresponding to the loans in any Loan Pool shall not secure the obligations of
Borrower 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 Borrower contained in any Loan Document or Other Agreement
which does correspond to a loan in such Loan Pool.
(5) In the event that at least one, but not all, of the Loans are
included in a Loan Pool, Borrower, at the request of Lender, shall execute (i)
a separate Loan Agreement with respect to those Loans included in such Loan
28
Pool, which Loan Agreement shall be in substantially the same form and
substance as this Agreement but shall only apply with respect to those Premises
corresponding to such Loans (the "Other Loan Agreement"), and (ii) an amendment
to this Agreement that shall modify the term "Premises" to delete those
Premises corresponding to the Other Loan Agreement from this Agreement. Lender
shall prepare, at Lender's expense, the documents contemplated by the preceding
sentence. If Borrower shall fail to execute and deliver any of the documents
contemplated by this subsection (5) within twenty (20) days after Lender's
written request, Lender shall be and is hereby irrevocably appointed the agent
and attorney-in-fact of Borrower to execute and deliver such documents, which
appointment is coupled with an interest and is irrevocable and binding.
Q. Estoppel Certificate. At any time, and from time to time,
each party agrees, promptly and in no event later than fifteen (15) days after
a request from the other party, to execute, acknowledge and deliver to the
other party a certificate in the form supplied by the other party, certifying:
(a) to its knowledge, whether there are then any existing defaults by it or the
other party in the performance of their respective obligations under this
Agreement or any of the other Loan Documents, and, if there are any such
defaults, specifying the nature and extent thereof; (b) that no notice of
default has been given or received by it under this Agreement or any of the
other Loan Documents which has not been cured, except as to defaults specified
in the certificate; (c) the capacity of the person executing such certificate,
and that such person is duly authorized to execute the same on behalf of it;
and (d) any other information reasonably requested by the other party in
connection with this Agreement and the other Loan Documents.
29
IN WITNESS WHEREOF, Borrower and Lender have entered into this
Agreement as of the date first above written. LENDER:
GE CAPITAL FRANCHISE FINANCE
CORPORATION, a Delaware corporation
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxx
Its Senior Vice President
BORROWER:
JAX REAL ESTATE, LLC,
a Delaware limited liability company
By /s/ R. Xxxxxxx Xxxxx
--------------------------------------------
R. Xxxxxxx Xxxxx
Its Vice President and Treasurer
U.S. Federal Tax Identification Number:
00-0000000
Organization Identification Number:
3580306
Principal Place of Business:
Nashville, Tennessee
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on October 29,
2002 by Xxxxxxx X. Xxxxxxx, Senior Vice President of GE Capital Franchise
Finance Corporation, a Delaware corporation, on behalf of the corporation.
/s/ Notary Public
---------------------------------
Notary Public
My Commission Expires:
December 12, 2004
---------------------------------------
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me on October 29,
2002 by R. Xxxxxxx Xxxxx, Vice President and Treasurer of JAX Real Estate, LLC,
a Delaware limited liability company, on behalf of the limited liability
company.
/s/ Notary Public
---------------------------------
Notary Public
My Commission Expires:
December 12, 2004
---------------------------------------
POWER OF ATTORNEY
Lender may act as attorney-in-fact or otherwise on behalf of Borrower
pursuant to Section 12.P(5) of this Agreement. This power of attorney is
coupled with an interest, is durable and is not affected by subsequent
disability or incapacity of the principal or lapse of time.
/s/ SH /s/ RGL
--------------- --------------------
Witness Borrower
WITNESS
In accordance with the requirements of Arizona Revised Statutes
Section 14-5506 and other applicable law, the undersigned has executed this
Agreement for the purpose of witnessing the grant of the powers of attorney by
Borrower to Lender.
/s/ Xxxxx Xxxxxxxx
---------------------------------------
EXHIBIT A
DESCRIPTION OF PREMISES; ALLOCATED LOAN AMOUNT
----------------------------------------------------------------------------------------------
PROPERTY
----------------------------------------------------------------------------------------------
ADDRESS CITY COUNTY STATE INSURANCE AMOUNT
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxxxx TN 3,150,000.00
----------------------------------------------------------------------------------------------
0000 Xxxxxxxxxx Xxxxxxx Xx. Xxxxxx Xxxxxxxxxx XX 2,100,000.00
----------------------------------------------------------------------------------------------
0000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxxxx XX 2,100,000.00
----------------------------------------------------------------------------------------------
0000 00xx Xxxxxx Xxx Xxxxx Du Page IL 3,575,000.00
----------------------------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX 3,100,000.00
----------------------------------------------------------------------------------------------
00000 Xxxxxxx Xxxxxx Xxxxxxxx Xxxx Xxxxxxx XX 3,150,000.00
----------------------------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxx Xxxx. Xxxxxxxxxxx Xxxxxxxx XX 1,425,000.00
----------------------------------------------------------------------------------------------
0000 Xxxxx Xxxxxxxxxx Xxxx. Xxxxxxx Xxxxxx XX 3,400,000.00
----------------------------------------------------------------------------------------------
00000 Xxxxxxxx Xxxx Xxxxxxx Xxxxx XX 3,000,000.00
----------------------------------------------------------------------------------------------
TOTAL $25,000,000.00
----------------------------------------------------------------------------------------------
EXHIBIT B
LEASED PERSONAL PROPERTY
Lessee occasionally leases the following items of Personal Property:
trash dumpsters, CO2 canisters.
