Loan Agreement - FFCA Acquisition Corp. and NERC LP
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of June 30, 1998, by
and between FFCA ACQUISITION CORPORATION, a Delaware corporation ("FFCA7), whose
address is 17207 North Perimeter Drive, Scottsdale, Arizona 85255, and NERC
LIMITED PARTNERSHIP II, a Delaware limited partnership ("Debtor"), whose address
is 80-A Turnpike Road, Westboro, Massachusetts 0 15 8 1.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms used in this
Agreement shall have the meanings set forth in Section 1. Debtor has requested
from FFCA, and applied for, the Loans to provide long-term financing for the
Premises, and for no other purpose whatsoever. Each Loan will be evidenced by a
Note and secured by a first priority security interest in the corresponding
Premises pursuant to a Mortgage. FFCA has committed to make the Loans pursuant
to the terms and conditions of the Commitment, this Agreement and the other Loan
Documents.
AGREEMENT:
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. DEFINITIONS. The following terms shall have the following meanings
for all purposes of this Agreement:
"ACTION" has the meaning set forth in Section 1 O.A(4).
"AFFILIATE" means any Person which directly or indirectly controls, is
under common control with, or is controlled by any other Person. For purposes of
this definition, "controls", "under common control with" and "controlled by"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
ownership of voting securities or otherwise.
"ASSIGNMENT OF RENTS AND LEASES" or "ASSIGNMENTS OF RENTS AND LEASES"
means, as the context may require, the assignment of rents and leases or
assignments of rents and leases to be executed by Debtor in favor of FFCA, as
the same may be amended from time to time. An Assignment of Rents and Leases
will be executed for each Premises.
"CHILI'S RESTAURANTS" means all of the Premises other than the On the
Border Restaurant.
"CLOSING" shall have the meaning set forth in Section 4.
"CLOSING DATE" means the date specified as the closing date in Section
4.
"CODE" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 ET
SEQ., as amended.
"COMMITMENT" means that certain Commitment Letter dated May 21, 1997
between FFCA and Lessee with respect to the Premises in Warwick, Rhode Island
and with respect to the other Premises that certain Commitment Letter dated
April
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30, 1998 between FFCA and Lessee, and any amendments or supplements thereto.
"COUNSEL" means legal counsel to Debtor and Lessee, licensed in the
state(s) in which (i) the Premises are located, (ii) Lessee is incorporated or
formed and (iii) Debtor and/or Lessee maintain principal places of business, as
applicable, as selected by Debtor and Lessee, as the case may be, and approved
by FFCA.
"DE MINIMIS AMOUNTS" shall mean, with respect to any given level of
Hazardous Materials, that level or quantity of Hazardous Materials in any form
or combination of forms which does not constitute a violation of any
Environmental Laws and is customarily employed in, or associated with, similar
businesses located in the state in which the Premises is located.
"DISCLOSURES" has the meaning set forth in Section 13.P.
"ENVIRONMENTAL CONDITION" means any condition with respect to soil,
surface waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air and any environmental medium comprising or surrounding the
Premises, whether or not yet discovered, which could or does result in any
damage, loss, cost, expense, claim, demand, order or liability to or against
Debtor, Lessee or FFCA by any third party (including, without limitation, any
Governmental Authority), including, without limitation, any condition resulting
from the operation of Debtor's or Lessee's business and/or the operation of the
business of any other property owner or operator in the vicinity of the Premises
and/or any activity or operation formerly conducted by any person or entity on
or off the Premises.
"ENVIRONMENTAL INDEMNITY AGREEMENT" or "ENVIRONMENTAL INDEMNITY
AGREEMENTS" means, as the context may require, the environmental indemnity
agreement or environmental indemnity agreements dated as of the date of this
Agreement executed by Debtor for the benefit of FFCA, as the same may be amended
from time to time. An Environmental Indemnity Agreement will be executed for
each Premises.
"ENVIRONMENTAL INSURER" means such environmental insurance company as
FFC,4 select in its sole discretion.
"ENVIRONMENTAL LAWS" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law, relating to Hazardous Materials and/or the protection of human
health or the environment by reason of a Release or a Threatened Release of
Hazardous Materials 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
promulgated pursuant thereto, and any state or local statutes, ordinances,
rules, regulations and the like addressing similar issues: the Comprehensive
Environmental Response, Compensation and Liability Act; the Emergency Planning
and Community Right-to-Know Act; the Hazardous Materials Transportation Act; the
Resource Conservation and Recovery Act (including but not limited to Subtitle I
relating to underground storage tanks); the Solid Waste Disposal Act; the Clean
Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe
Drinking Water Act; the Occupational Safety and Health Act; the Federal Water
Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act;
the Endangered Species Act; the National Environmental Policy Act; and the River
and Harbors Appropriation Act. "Environmental Laws" also includes, but is not
limited to, any present and future federal, state and local laws, statutes,
ordinances, rules, regulations and the like, as well as common law: conditioning
transfer of property upon a negative declaration or other approval of a
Governmental Authority with respect to Hazardous Materials; requiring
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notification or disclosure of Releases or other environmental condition of the
Premises to any Governmental Authority or other person or entity, whether or not
in connection with transfer of title to or interest in property; imposing
conditions or requirements relating to Hazardous Materials in connection with
permits or other authorization for lawful activity; 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 the Premises by reason of the presence of
Hazardous Materials in, on, under or above the Premises.
"ENVIRONMENTAL POLICY" means those certain environmental insurance
policies issued by Environmental Insurer to FFCA with respect to the Premises,
which Environmental Policies shall be in form and substance satisfactory to FFCA
in its sole discretion.
"EVENT OF DEFAULT" has the meaning set forth in Section 10.
"EXISTING LEASES" means, collectively, the ground leases which are in
existence as of the date hereof relating to the Premises and all modifications,
amendments and supplements thereto disclosed in the Lease Estoppel Certificate
and Consents delivered with respect thereto, and all modifications, amendments
and supplements consented to by FFCA pursuant to the terms of the Mortgages. The
term "Existing Leases" does not include the Operating Leases.
"EXISTING LESSEES" means the lessees identified in the Existing
Leases.
"EXISTING LESSORS" means the lessors under the Existing Leases.
"FCCR AMOUNT" has the meaning set forth in Section 10.A(7).
"FCCR LOANS" MEANS, collectively, the Loans and the mortgage loans
and/or equipment loans corresponding to the FCCR Premises.
"FCCR NOTES" means the promissory notes evidencing the FCCR Loans.
"FCCR PREMISES" means, collectively, the "Premises" and the parcels of
real estate (including improvements and appurtenances) corresponding to mortgage
loan and/or equipment loan agreements and related instruments hereafter entered
into between, among or by (1) any of the Debtor Entities, and, or for the
benefit of, (2) any of the FFCA Entities, including, without limitation,
promissory notes and guaranties. successors.
"FEE" means an underwriting, site assessment, valuation, processing
and commitment fee equal to 1% of the sum of the Loan Amounts for all of the
Premises, which Fee shall be payable as set forth in Section 3.
"FRANCHISOR" means Brinker International, Inc., a Delaware
corporation, and its
"FRANCHISOR CERTIFICATE" has the meaning set forth in Section 91.
"FRANCHISOR RESTAURANT" means (i) with respect to the Chili's
Restaurants, a Chili's restaurant, and (ii) with respect to the On the Border
Restaurant, an On the Border restaurant.
"GOVERNMENTAL AUTHORITY" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the states where the Premises
are located or any political subdivision thereof.
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"HAZARDOUS MATERIALS" means (a) any toxic substance or hazardous
waste, substance, solid waste or related material, or any pollutant or
contaminant; (b) radon gas, asbestos in any form which is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
which contains dielectric fluid containing levels of polychlorinated biphenyls
in excess of federal, state or local safety guidelines, whichever are more
stringent, or any petroleum product; (c) any substance, gas, material or
chemical which is or may be defined as or included in the definition of
"hazardous substances," "toxic substances" "hazardous materials," "hazardous
wastes" or words of similar import under any Environmental Laws; and (d) any
other chemical, material, gas or substance the exposure to or release of which
is or may be prohibited, limited or regulated by any Governmental Authority that
asserts or may assert jurisdiction over the Premises or the operations or
activity at the Premises, or any chemical, material, gas or substance that does
or may pose a hazard to the health and/or safety of the occupants of the
Premises or the owners and/or occupants of property adjacent to or surrounding
the Premises.
"INDEMNIFIED PARTIES" has the meaning set forth in Section 12.
"LEASE ESTOPPEL CERTIFICATE AND CONSENTS" has the meaning set forth in
Section 9.M.
"LESSEE" means NE Restaurant Company, Inc., a Delaware corporation,
and its successors and permitted assigns.
"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. Each
Loan will be evidenced by a Note and secured by a Mortgage.
"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 Agreements, the Assignments of Rents and
Leases, the UCC-1 Financing Statements and all other documents executed in
connection therewith or contemplated thereby.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) a
Premises, including, without limitation, its operation as a Franchisor
Restaurant and/or its value, (ii) Debtor's ability to perform under any of the
Loan Documents, or (iii) Lessee's ability to perform under any of the Operating
Leases.
"MORTGAGE" OR "MORTGAGES" means, as the context may require, the
mortgage or mortgages dated as of the date of this Agreement to be executed by
Debtor for the benefit of FFCA, as the same may be amended from time to time. A
Mortgage will be executed for each Premises.
"NONDISTURBANCE AGREEMENTS" has the meaning set forth in Section 9.M.
"NOTE" or "NOTES" means, as the context may require, the promissory
note or notes dated as of the date of this Agreement to be executed by Debtor in
favor of FFCA, as such Note or Notes may be amended from time to time,
including, without limitation, as a result of the payment of the FCCR Amount
pursuant to Section 10. A Note in the corresponding Loan Amount will be executed
for each Premises.
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"ON THE BORDER RESTAURANT" means the Premises located in Rocky Hill,
Connecticut.
"OPERATING LEASE" or "OPERATING LEASES" means, as the context may
require, the lease or leases to be executed by Debtor, as lessor, and Lessee, as
lessee, for the sublease of the land comprising the Premises and the lease of
the buildings, improvements and tangible personal property located on such land.
An Operating Lease will be executed for each of the Premises.
"OTHER AGREEMENTS" means, collectively, all agreements and
instruments between, among or by (1) any of the Debtor Entities, and, or for the
benefit of, (2) any of the FFCA Entities, including, without limitation,
promissory notes and guaranties; provided, however, the term Other Agreements
shall not include the Loan Documents.
"PARTICIPATION" has the meaning set forth in Section 13Y.
"PERMITTED EXCEPTIONS" means those recorded easements, restrictions,
liens and encumbrances set forth as exceptions in the title insurance policies
issued by Title Company to FFCA and approved by FFCA in connection with the
Loans.
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental Authority or
any other form of entity.
"PREMISES" means the parcel or parcels of real estate corresponding to
the FFCA File Numbers, NERC PC Numbers and addresses identified on Exhibit A
attached hereto, together with all rights, privileges and appurtenances
associated therewith and all buildings, fixtures, and tangible personal property
(including, without limitation, restaurant equipment) and other improvements now
or hereafter located thereon (whether or not affixed to such parcels),
including, without limitation, parking areas. As used herein, the term
"Premises" shall mean either a singular property or all of the properties
collectively, as the context may require.
"QUESTIONNAIRE" means the environmental questionnaires completed by
Debtor or Lessee with respect to the Premises and submitted to Environmental
Insurer in connection with the issuance of the Environmental Policies.
"RELEASE" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying,
escaping, dumping, disposing or other movement of Hazardous Materials.
"REMEDIATION" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Material, 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.
"SECURITIZATION" has the meaning set forth in Section B.P.
"SECURITIZED LOAN POOL" means any pool or group of loans which are a
part of any Securitization transaction.
"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
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or any other environmental medium comprising or surrounding the Premises which
may result from such Release.
"TITLE COMPANY" means the title insurance company described in
Section 4.
"TRANSFER" has the meaning set forth in Section B.P.
"UCC-1 FINANCING STATEMENTS" means such UCC-1 Financing Statements as
FFCA shall require to be executed and delivered by Debtor and Lessee with
respect to the Premises.
2. TRANSACTION. On the terms and subject to the conditions set forth
in the Loan Documents, FFCA shall make the Loans. The Loans will be evidenced by
the Notes and secured by the Mortgages. Debtor shall repay the outstanding
principal amount of the Loans together with interest thereon in the manner and
in accordance with the terms and conditions of the Notes and the other Loan
Documents. The aggregate Loan Amount shall be $3,071,260.00 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 by this Agreement. Each Premises will be
leased to Lessee pursuant to an Operating Lease and Debtor will assign each
Operating Lease to FFCA pursuant to a Mortgage and an Assignment of Rents and
Leases.
3. UNDERWRITING, SITE ASSESSMENT, VALUATION, PROCESSING AND COMMITMENT
FEE. Lessee paid FFCA one-half of the Fee pursuant to the Commitment, and such
portion was deemed fully earned when received. The remainder of the Fee shall be
paid at the Closing and shall be deemed nonrefundable and fully earned upon the
Closing. The Fee constitutes FFCA's underwriting, site assessment, valuation,
processing and commitment fee.
4. Closing. (a) The Loan shall be closed (the "Closing") within 10
days following the satisfaction of all of the terms and conditions contained in
this Agreement, but no later than June 30, 1998 (the date on which the Closing
is scheduled to occur is referred to herein as the "Closing Date").
(b) Debtor has ordered a title insurance commitment for each Premises
from Lawyers Title Insurance Corporation ("Title Company"). On or prior to the
Closing Date, the parties hereto shall deposit with Title Company all documents
and moneys necessary to comply with their obligations under this Agreement.
Title Company shall n6t cause the transaction to close unless and until it has
received written instructions from FFCA to do so. All costs of such transaction
shall be borne by Debtor, including, without limitation, the cost of title
insurance and endorsements, the attorneys' fees of Debtor, attorneys' fees and
expenses of FFCA (provided that FFCA shall advise Debtor prior to the
commencement of any legal work for which extraordinary fees would be payable
(i.e., in excess of $4,000 per Premises) and discuss with Debtor the most cost
effective means to proceed), the cost of the surveys, the cost of the
environmental reports and the Environmental Policies to be delivered pursuant to
Section 9.E, FFCA's in-house site inspection costs and fees, stamp taxes,
mortgage taxes, transfer taxes, and escrow, filing and recording fees. All real
and personal property and other applicable taxes and assessments and other
charges relating to the Premises which are due and payable on or prior to the
Closing Date as well as taxes and assessments due and payable subsequent to the
Closing Date but which Title Company requires to be paid at Closing as a
condition to the issuance of the title insurance policy described in Section
9.C, shall be paid by Debtor at or prior to the Closing. The Closing documents
shall be dated as of the Closing Date.
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Debtor and FFCA hereby employ Title Company to act as escrow agent in
connection with this transaction. Debtor and FFCA will deliver to Title Company
all documents, pay to Title Company all sums and do or cause to be done all
other things necessary or required by this Agreement, in the reasonable judgment
of Title Company, to enable Title Company to comply herewith and to enable any
title insurance policy provided for herein to be issued. Title Company is
authorized to pay, from any funds held by it for FFCA's or Debtor's respective
credit all amounts necessary to procure the delivery of such documents and to
pay, on behalf of FFCA and Debtor, all charges and obligations payable by them,
respectively. Debtor will pay all charges payable by it to Title Company. Title
Company is authorized, in the event any conflicting demand is made upon it
concerning these instructions or the escrow, at its election, to hold any
documents and/or funds deposited hereunder until an action shall be brought in a
court of competent jurisdiction to determine the rights of Debtor and FFCA or to
interplead such documents and/or funds in an action brought in any such court.
Deposit by Title Company of such documents and funds, after deducting therefrom
its charges and its expenses and attorneys' fees incurred in connection with 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 FFCA. Title Company shall be under no obligation to disburse any
funds represented by check or draft, and no check or draft shall be payment to
Title Company in compliance with any of the requirements hereof, until it is
advised by the bank in which such check or draft is deposited that such check or
draft has been honored. Title Company is authorized to act upon any statement
furnished by the holder or payee, or a collection agent for the holder or payee,
of any lien on or charge or assessment in connection with the Premises,
concerning the amount of such charge or assessment or the amount secured by such
lien, without liability or responsibility for the accuracy of such statement.
The employment of Title Company as escrow agent shall not affect any rights of
subrogation under the terms of any title insurance policy issued pursuant to the
provisions thereof.
5. REPRESENTATIONS AND WARRANTIES OF FFCA. The representations and
warranties of FFCA contained in this Section are being made by FFCA as of the
date of this Agreement and the Closing Date to induce Debtor to enter into this
Agreement and consummate the transactions contemplated herein, and Debtor has
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. FFCA represents and
warrants to Debtor as follows:
A. ORGANIZATION OF FFCA. FFCA has been duly formed, is validly
existing and has taken all necessary action to authorize the
execution, delivery and performance by FFCA of this Agreement.
B. AUTHORITY OF FFCA. The person who has executed this Agreement
on behalf of FFCA is duly authorized so to do.
C. ENFORCEABILITY. Upon execution by FFCA, this Agreement shall
constitute the legal, valid and binding obligation of FFCA,
enforceable against FFCA in accordance with its terms.
All representations and warranties of FFCA made in this Agreement shall
survive the Closing.
6. REPRESENTATIONS AND WARRANTIES OF DEBTOR. The representations and
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warranties of Debtor contained in this Section are being made by Debtor as of
the date of this Agreement and the Closing Date to induce FFCA to enter into
this Agreement and consummate the transactions contemplated herein, and FFCA has
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. Debtor represents and
warrants to FFCA as follows:
A. INFORMATION AND FINANCIAL STATEMENTS. Debtor has delivered to
FFCA Lessee's financial statements (either audited financial
statements or, if Debtor does not have audited financial statements,
certified financial statements) and certain other information
concerning Lessee, which financial statements and other information
are true, correct and complete in all material respects; and no
material adverse change has occurred with respect to any such
financial statements and other information provided to FFCA since the
date such financial statements and other information were prepared or
delivered to FFCA. Debtor understands that FFCA is relying upon such
financial statements and information and Debtor represents that such
reliance is reasonable. All such financial statements were prepared in
accordance with generally accepted accounting principles consistently
applied and accurately reflect as of the date of this Agreement and
the Closing Date, the financial condition of each individual or entity
to which they pertain.
B. ORGANIZATION AND AUTHORITY OF DEBTOR AND LESSEE. (1) Each of
Debtor and Lessee is duly organized or formed, validly existing and in
good standing under the laws of its state of organization or
formation, and qualified as a foreign corporation or limited
partnership, as applicable, to do business in each of the states where
the Premises are located. All necessary corporate or limited
partnership action has been taken to authorize the execution, delivery
and performance of this Agreement and of the other documents,
instruments and agreements provided for herein.
(2) The person(s) who have executed this Agreement on behalf of
the general partner of Debtor are duly authorized so to do.
C. ENFORCEABILITY OF DOCUMENTS. Upon execution by Debtor or
Lessee, as applicable, this Agreement and the other documents,
instruments and agreements to be executed in connection with this
Agreement, shall constitute the legal, valid and binding obligations
of Debtor and Lessee, respectively, enforceable against Debtor and
Lessee in accordance with their respective terms.
D. LITIGATION. There are no suits, actions, proceedings or
investigations pending or, to the best of Debtor's knowledge,
threatened against or involving Debtor, Lessee or the Premises before
any court, arbitrator, or Governmental Authority which might
reasonably result in any material adverse change in the contemplated
business, condition, worth or operations of Debtor, Lessee or the
Premises.
E. ABSENCE OF BREACHES OR DEFAULTS. Debtor and/or Lessee are not,
and the authorization, execution, delivery and performance of this
Agreement and the documents, instruments and agreements provided for
herein will not result, in any breach or default under any other
document, instrument or agreement to which Debtor and/or Lessee are a
party or by which Debtor, Lessee, the Premises or any of the property
of Debtor or Lessee is subject or bound, except such breach or default
which would not have a Material Adverse Effect. The authorization,
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execution, delivery and performance of this Agreement and the
documents, instruments and agreements provided for herein will not
violate any applicable law, statute, regulation, rule, ordinance,
code, rule or order.
F. UTILITIES. The Premises are served by ample public utilities
to permit full utilization of the Premises for their intended purpose
and all utility connection fees and use charges will have been paid in
full.
G. INTENDED USE AND ZONING; COMPLIANCE WITH LAWS. Debtor intends
that Lessee will use the Premises solely for the operation of
Franchisor Restaurants, and related ingress, egress and parking, and
for no other purposes, other than as may be contemplated by the
Mortgages. Each of the Premises are in material compliance with all
applicable zoning requirements. Debtor has no actual knowledge that
the use of any of the Premises as a Franchisor Restaurant constitutes
a nonconforming use under applicable zoning requirements which would
prevent a Franchisor Restaurant from being re-built and operated on
such Premises in the event that the existing Franchisor Restaurant is
subject to a casualty. The Premises comply with all applicable
statutes, regulations, rules, ordinances, codes, licenses, permits,
orders and approvals of each Governmental Authority having
jurisdiction over the Premises, including, without limitation, all
health, building, fire, safety and other codes, ordinances and
requirements, all applicable standards of the National Board of Fire
Underwriters and the Americans With Disabilities Act of 1990 and all
policies or rules of common law, in each case, as amended, and any
judicial or administrative interpretation thereof, including any
judicial order, consent, decree or judgment applicable to Debtor or
Lessee, except to the extent the failure with which to comply would
not have a Material Adverse Effect.
H. AREA DEVELOPMENT; WETLANDS. NO condemnation or eminent domain
proceedings affecting the Premises have been commenced or, to the
best of Debtor's knowledge, are contemplated. To the best of Debtor's
knowledge, the areas where the Premises are located have not been
declared blighted by any Governmental Authority. The Premises and/or
the real property bordering the Premises are not designated by any
applicable Governmental Authority as a wetlands.
1. LICENSES AND PERMITS; ACCESS. Debtor or Lessee has all
required licenses and permits, both governmental and private, to use
and operate the Premises in the intended manner. There are adequate
rights of access to public roads and ways available to the Premises to
permit fall utilization of the Premises for their intended purposes
and all such public roads and ways have been completed and dedicated
to public use.
J. CONDITION OF PREMISES. The Premises, including the equipment
located thereon, are of good workmanship and materials, fully equipped
and operational, in good condition and repair, free from known
structural defects, clean, orderly and sanitary, safe, well-lit,
landscaped, decorated, attractive and well-maintained.
K. ENVIRONMENTAL Debtor is fully familiar with the present use of
the Pre and, to the extent that Debtor or Lessee has previously
obtained a Phase I environmental report with respect to any of the
Premises, Debtor has become generally familiar with prior uses of such
Premises. During the period in which Debtor or Lessee has had a
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leasehold interest in the Premises, and except as disclosed in the
reports Questionnaires delivered pursuant to Section 9.E
(collectively, the "Environmental Disclosures"), (i) no Hazardous
Materials have been used, handled, manufactured, generated, produced,
stored, treated, processed, transferred or disposed of at or o
Premises, except in De Minimis Amounts and in compliance with all
applicable Environmental Laws, and (ii) no Release or Threatened
Release has occurred at or on the Premises. Furthermore, Debtor has no
actual knowledge that, during the period prior Lessee's acquisition of
a fee or leasehold interest in the Premises, and except as disclosed
the Environmental Disclosures, (i) any Hazardous Materials have been
used, handled, manufactured, generated, produced, stored, treated,
processed, transferred or disposed or on the Premises, except in De
Minimis Amounts and in compliance with all applicable Environmental
Laws, or (ii) any Release or Threatened Release has occurred at or o
Premises. The activities, operations and business undertaken on, at or
about the Premises during the period in which Debtor or Lessee has had
a fee or leasehold interest in the Premises, including, but not
limited to, any past or ongoing alterations or improvements at the
Premises, are and have been in compliance with all Environmental Laws,
except such noncompliance as would not have a Material Adverse Effect
and except as disclosed in the Environmental Disclosures, and Debtor
has no actual knowledge that any such activities, operations or
business undertaken on, at or about the Premises during the period
prior to Lessee's acquisition of a fee or leasehold interest in the
Premises were not in compliance with all Environmental Laws except
such noncompliance as would not have a Material Adverse Effect and
except as disclosed in the Environmental Disclosures. No further
action is required to remedy any Environmental Condition or violation
of, or to be in full compliance with, any Environmental Laws, and no
lien has been imposed on the Premises by any Governmental Authority in
connection with any Environmental Condition, the violation or
threatened violation of any Environmental Laws or the presence of any
Hazardous Materials on or off the Premises during the period in which
Debtor or Lessee has had a fee or leasehold interest in the Premises
or, to Debtor's actual knowledge, during the period prior to Lessee's
acquisition of a fee or leasehold interest in the Premises.
There is no pending or, to the best of Debtor's knowledge,
threatened litigation or proceeding before any court, administrative
agency or Governmental Authority in which any person or entity alleges
the violation or threatened violation of any Environmental Laws or the
presence, Release, Threatened Release or placement on or at the
Premises of any Hazardous Materials, or of any facts which would give
rise to any such action, nor has Debtor (a) received any notice (and
Debtor has no actual knowledge) that any Governmental Authority or any
employee or agent thereof has determined, threatens to determine or
requires an investigation to determine that there has been a violation
of any Environmental Laws at, on or in connection with the Premises or
that there exists a presence, Release, Threatened Release or placement
of any Hazardous Materials on or at the Premises, or the use,
handling, manufacturing, generation, production, storage, treatment,
processing, transportation or disposal of any Hazardous Materials at
or on the Premises; (b) received any notice under the citizen suit
provision of any Environmental Law in connection with the Premises or
any facilities, operations or activities conducted thereon, or any
business conducted in connection therewith; or (c) received any
request for inspection, request for information, notice, demand,
administrative inquiry or any formal or informal complaint or claim
with respect to or in connection with the violation or threatened
<PAGE>
violation of any Environmental Laws or existence of Hazardous
Materials relating to the Premises or any facilities, operations or
activities conducted thereon or any business conducted in connection
therewith.
The information and disclosures in the Questionnaires is true,
correct and complete in all material respects, FFCA and Environmental
Insurer may rely on such information and disclosures, and the person
or persons executing the Questionnaires were duly authorized to do so.
L. PREMISES; FIRST PRIORITY LIEN. Debtor is the holder of a
leasehold interest in the land comprising the Premises and the holder
of the fee interest in the buildings and improvements relating
thereto. Upon Closing, FFCA shall have a first priority lien upon and
security interest in Debtor's right, title and interest in and to each
of the Premises pursuant to the Mortgages and the UCC-I Financing
Statements.
M. NO OTHER AGREEMENTS AND OPTIONS. Neither Debtor, Lessee nor
the Premises are subject to any commitment, obligation, or agreement,
including, without limitation, any right of first refusal, option to
purchase or lease granted to a third party, which could or would
prevent or hinder FFCA in making the Loans or prevent or hinder Debtor
from fulfilling its obligations under this Agreement or the other Loan
Documents, other than those agreements with Existing Lessors for which
FFCA shall have received a Lease Estoppel Certificate and Consent
prior to Closing and the franchise, license and/or area development
agreements with Franchisor for which FFCA shall have received a
Franchisor Certificate prior to Closing.
N. NO MECHANICS' LIENS. There are no outstanding accounts
payable, mechanics' liens, or rights to claim a mechanics' lien in
favor of any materialman, laborer, or any other person or entity in
connection with labor or materials furnished to or performed on any
portion of the Premises; no work has been performed or is in progress
nor have materials been supplied to the Premises or agreements entered
into for work to be performed or materials to be supplied to the
Premises prior to the date hereof, which will not have been fully paid
for on or before the Closing Date or which might provide the basis for
the filing of such liens ' against the Premises or any portion
thereof, Debtor shall be responsible for any and all claims for
mechanics' liens and accounts payable that have arisen or may
subsequently arise due to agreements entered into for and/or any work
performed on, or materials supplied to the Premises prior to the
Closing Date; Debtor has made no contract or arrangement of any kind
the performance of which by the other party thereto would give rise to
a lien on the Premises; and Debtor shall and does hereby agree to
defend, indemnify and forever hold FFCA and FFCA's designees harmless
from and against any and all such mechanics' lien claims, accounts
payable or other commitments relating to the Premises.
0. NO RELIANCE. Debtor acknowledges that FFCA is not affiliated
with, and has no business relationship with, Franchisor, other than
landlord/tenant and/or creditor/debtor relationships unrelated to the
transaction set forth in this Agreement, and that FFCA did not prepare
or assist in the preparation of any of the projected financial
information used by Debtor in analyzing the economic viability and
feasibility of the transaction contemplated by .this Agreement.
Furthermore, Debtor acknowledges that it has not relied upon, nor may
it hereafter rely upon, the analysis undertaken by FFCA in determining
<PAGE>
the Loan Amounts, and such analysis will not be made available to
Debtor.
P. FRANCHISOR PROVISIONS. Lessee has entered into franchise,
license and/or area development agreements with Franchisor for the
conduct of business at the Premises. Such franchise, license and/or
area development agreements will be in full force and effect, will
permit Lessee to operate the Premises as Franchisor Restaurants, and
will have terms which, together with renewal options, will not expire
before the scheduled maturity date of the Notes.
Q. EXISTING LEASES. Debtor has delivered to FFCA a certified
true, correct and complete copy of the Existing Leases. The Existing
Leases have not been modified, amended, supplemented or otherwise
revised. The Existing Leases are the only leases or agreements between
the Existing Lessors and the Existing Lessees with respect to the
Premises. The Existing Leases are in full force and effect and
constitute the legal, valid and binding obligations of the Existing
Lessees, enforceable against the Existing Lessees in accordance with
their terms and, at Closing, such Existing Leases shall constitute the
legal, valid and binding obligations of Debtor enforceable against
Debtor in accordance with their terms. The Existing Lessees have not
assigned, transferred, mortgaged or hypothecated any of the Existing
Leases or any interest therein, except for liens that will be released
at Closing, and the Existing Lessees have not received any notice that
any of the Existing Lessors have made any assignment, pledge or
hypothecation of all or any part of their interests in any of the
Existing Leases. 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 any of the Existing Lessors or the Existing
Lessees, except such default as would not have a Material Adverse
Effect.
All representations and warranties of Debtor made in this Agreement shall
survive the Closing.
Debtor acknowledges and agrees that Environmental Insurer may rely on
the environmental representations and warranties set forth in the preceding
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.
7. COVENANTS. Debtor covenants to FFCA from and after the Closing Date
as
A. INSPECTIONS. Debtor shall, and Debtor shall cause Lessee to,
at all reasonable times and upon reasonable prior notice from FFCA
(except in the event of an emergency), (i) provide FFCA and FFCA's
officers, employees, agents, advisors, attorneys, accountants,
architects, and engineers with access to the Premises, all drawings,
plans, and specifications for the Premises in possession of Debtor and
Lessee, all engineering reports relating to the Premises in the
possession of Debtor and Lessee, the files and correspondence relating
to the Premises, and the financial books and records, including lists
of delinquencies, relating to the ownership, operation, and
maintenance of the Premises, and (ii) allow such persons to make such
inspections, tests, copies and verifications as FFCA considers
necessary; provided that such access, inspections, tests, copies and
<PAGE>
verifications shall not unreasonably interfere with Lessee's business
operations at the Premises.
B. FIXED CHARGE COVERAGE RATIO. Until such time as all of
Debtor's obligations under the Notes and the other Loan Documents are
paid, satisfied and discharged in full, Debtor shall cause to be
maintained a Fixed Charge Coverage Ratio at each of the Premises of at
least 1.25:1, as determined on each December 31. For purposes of this
Section, the term "Fixed Charge Coverage Ratio" shall mean with
respect to the twelve month period of time immediately preceding the
date of determination, the ratio calculated for such period of time 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 FFCA Payments, the Equipment Payment Amount and the Ground Lease
Expense.
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) by Lessee with respect to the subject
Premises which lease would, in conformity with generally accepted
accounting principles consistently applied, be required to be
accounted for as a capital lease on the balance sheet of Lessee. The
term "Capital Lease" shall not include any operating lease, including,
without limitation, the Operating Leases.
"DEBT" shall mean as directly related to the subject Premises and
the period of determination (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, indentures, notes or similar
instruments, (iii) obligations to pay the deferred purchase price of
property or services, (iv) obligations under leases which should be,
in accordance with generally accepted accounting principles
consistently applied, recorded as Capital Leases, and (v) obligations
under direct or indirect guarantees in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses (i) through (iv) above.
"DEPRECIATION AND AMORTIZATION" shall mean with respect to the
subject Premises the depreciation and amortization accruing during any
period of determination with respect to Debtor as determined in
accordance with generally accepted accounting principles consistently
applied.
"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 the
subject Premises and (ii) all loans secured by equipment located at
the subject Premises.
"FFCA PAYMENTS" shall mean with respect to the period of
determination, the sum of all amounts payable under the Note
corresponding to the subject Premises.
"GROSS SALES" shall mean the sales (less any discounts) or other
income arising from all business conducted at the subject Premises
during the period of determination, less sales tax and any amounts
<PAGE>
received from not-for-profit sales of all non-food items approved for
use in connection with promotional campaigns, if any, pursuant to the
franchise, license and/or area development agreements with Franchisor
for the subject Premises.
"GROUND LEASE EXPENSE" shall mean, for any period of
determination, the sum of all amounts payable by Debtor under any
Existing Lease with respect to the subject Premises.
"INTEREST EXPENSE" shall mean for any period of determination,
the sum of all interest accrued or which should be accrued in respect
of all Debt of Lessee allocable to the subject Premises and all
business operations THEREON DURING SUCH period (including interest
attributable to Capital Leases), as determined in accordance with
generally accepted accounting principles consistently applied.
"NET INCOME" shall mean with respect to the period of
determination, the net income or net loss of Lessee allocable to the
subject Premises. In determining the amount of Net Income, (i)
adjustments shall be made for nonrecurring gains and losses allocable
to the period of determination, (ii) deductions shall be made for,
among other things, Depreciation and Amortization, Interest Expense
and Operating Lease Expense allocable to the period of determination,
and (iii) no deductions shall be made for (x) income taxes or charges
equivalent to income taxes allocable to the period of determination,
as determined in accordance with generally accepted accounting
principles consistently applied, or (y) corporate overhead expense
allocable to the period of determination.
"OPERATING LEASE EXPENSE" shall mean the expenses incurred by
Lessee under any Operating Lease with respect to the subject Premises
and the business operations thereon during the period of
determination, as determined in accordance with generally accepted
accounting principles consistently applied.
Notwithstanding the foregoing, FFCA shall have the option at any
time, upon notice to Debtor, to convert the Fixed Charge Coverage
Ratio requirement from a 1.25:1 test applicable to each of the
Premises to an aggregate 1.25:1 test applicable to all of the FCCR
Premises, or to such of the FCCR Premises as selected by FFCA from
time to time, which Fixed Charge Coverage Ratio requirement shall
apply until such time as all of Debtor's obligations under the
agreements and instruments evidencing the FCCR Loans corresponding to
the FCCR Premises for which such aggregate Fixed Charge Coverage Ratio
is imposed are paid, satisfied and discharged in full. To the extent
FFCA elects to convert the Fixed Charge Coverage Ratio requirement to
an aggregate requirement, the definitions relating to the Fixed Charge
Coverage Ratio shall be deemed to be modified as applicable to provide
for the calculation of an aggregate Fixed Charge Coverage Ratio.
C. LOST NOTE. Debtor shall, if any Note is mutilated, destroyed, lost
or stolen (a "Lost Note"), promptly deliver to FFCA, upon receipt of an
affidavit from FFCA stipulating that such Note has been mutilated,
destroyed, lost or stolen, in substitution therefor, a new promissory
note containing the same terms and conditions as such Lost Note with a
notation thereon of the unpaid principal and accrued and unpaid
interest. Debtor shall provide fifteen (15) days' prior notice to FFCA
before making any payments to third parties in connection with a Lost
Note. Except as a result of the gross negligence or intentional
misconduct of Debtor, FFCA shall indemnify Debtor for all reasonable
<PAGE>
costs, expenses, damages, claims and liabilities incurred by Debtor as a
result of a Lost Note.
D. EXISTING LEASE MODIFICATIONS. The Existing Leases shall not be
modified, amended, terminated, cancelled or surrendered without FFCA's
prior consent, which consent shall not be unreasonably withheld or
delayed with respect to modifications or amendments as long as the
proposed modification or amendment does not shorten the term of the
Existing Lease or increase the amount of rent to be paid thereunder.
8. TRANSACTION CHARACTERIZATION. This Agreement is a contract to
extend a financial accommodation (as such term is used in the Code) for the
benefit of Debtor. It is the intent of the parties hereto that the business
relationship created by this Agreement, the Notes, the Mortgages and the other
Loan Documents is solely that of creditor and debtor and has been entered into
by both parties in reliance upon the economic and legal bargains contained in
the Loan Documents. None of the agreements contained in the Loan Documents is
intended, nor shall the same be deemed or construed, to create a partnership
between Debtor and FFCA, to make them joint venturers, to make Debtor an agent,
legal representative, partner, subsidiary or employee of FFCA, nor to make FFCA
in any way responsible for the debts, obligations or losses of Debtor.
9. CONDITIONS OF CLOSING. The obligation of FFCA to consummate the
transaction contemplated by this Agreement is subject to the fulfillment or
waiver of each of the following conditions:
A. TITLE. Debtor shall be the holder of a leasehold interest in
the land comprising the Premises and the holder of a fee interest in
the buildings and improvements relating thereto. Upon Closing, FFCA
will obtain a valid and perfected first priority lien upon and
security interest in Debtor's right, title and interest in and to each
of the Premises.
B. CONDITION OF PREMISES. FFCA shall have inspected and approved
the Premises, the Premises and the equipment located thereon shall be
in good condition and repair and of good workmanship and materials,
and the Premises shall be fully equipped and operational, clean,
orderly, sanitary, safe, well-lit, landscaped, decorated, attractive
and with a suitable layout, physical plant, traffic pattern and
location, all as determined by FFCA in its sole discretion.
C. EVIDENCE OF TITLE. FFCA shall have received for each of the
Premises a preliminary title report and irrevocable commitment to
insure title by means of a mortgagee's, ALTA extended coverage policy
of title insurance (or its equivalent, in the event such form is not
issued in the jurisdiction where the Premises is located) issued by
Title Company showing good and marketable leasehold title in the land
comprising the Premises in Debtor and good and marketable fee title in
the buildings and improvements relating thereto in Debtor, committing
to insure FFCA's first priority lien upon and security interest in
such Premises subject only to liens, encumbrances, restrictions and
easements approved by FFCA, and containing such endorsements as FFCA
may require.
D. SURVEY. FFCA shall have received a current ALTA survey of each
of the Premises, the form and substance of which shall be satisfactory
to FFCA in its sole discretion. Debtor shall have provided FFCA with
evidence satisfactory to FFCA that the location of each of the
Premises is not within the 100-year flood plain or identified as a
special flood hazard area as defined by the Federal Insurance
<PAGE>
Administration, or if any Premises is in such a flood plain or special
flood hazard area, Debtor shall provide FFCA with evidence of flood
insurance maintained on such Premises in amounts and on terms and
conditions satisfactory to FFCA.
E. ENVIRONMENTAL. FFCA shall have received (i) a Phase I
environmental report (and a Phase 11 environmental report, if
necessary, as determined by FFCA in its sole discretion) for each of
the Premises, the form, substance and conclusions of which shall be
satisfactory to FFCA in its sole discretion, or (ii) an Environmental
Policy with respect to each of the Premises, as determined by FFCA in
its sole discretion.
F. ZONING. Debtor shall have provided FFCA with evidence
satisfactory to FFCA that each of the Premises is properly zoned for
its use as a Franchisor Restaurant, including evidence that the use of
any of the Premises as a Franchisor Restaurant would not constitute a
nonconforming use under applicable zoning requirements which would
prevent a Franchisor Restaurant from being re-built and operated on
such Premises in the event that the existing Franchisor Restaurant is
subject to a casualty.
G. COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS. All
obligations of Debtor under this Agreement shall have been fully
performed and complied with, and no event shall have occurred or
condition shall exist w1iich would, upon the Closing Date, or, upon
the giving of notice and/or passage of time, constitute a breach or
default hereunder or under the Loan Documents, the franchise, license
and/or area development agreements with Franchisor for the Premises or
any other agreement between or among FFCA, Debtor, Lessee or
Franchisor pertaining to the subject matter hereof, and no event shall
have occurred or condition shall exist or information shall have been
disclosed by Debtor or discovered by FFCA which has had or would have
a material adverse effect on the Premises, Debtor or Lessee, and
accordingly, FFCA's willingness to consummate the transaction
contemplated by this Agreement, as determined by FFCA in its sole and
absolute discretion.
H. PROOF OF INSURANCE. Debtor shall have delivered to FFCA copies
of insurance policies showing that all insurance required by the Loan
Documents and providing coverage and limits satisfactory to FFCA are
in full force and effect.
I. OPINION OF COUNSEL TO DEBTOR AND LESSEE. Debtor and Lessee
shall have caused Counsel to prepare and deliver an opinion in form
and substance satisfactory to FFCA and its counsel.
J. ASSIGNMENTS OF RENTS AND LEASES. Debtor shall have executed
and delivered an Assignment of Rents and Leases for each Premises.
K. AVAILABILITY OF FUNDS. FFCA presently has sufficient funds to
discharge its obligations under this Agreement. In the event that the
transaction contemplated by this Agreement does not close on or before
the date established for Closing under Section 4(a) hereof, FFCA does
not warrant that it will thereafter have sufficient funds to
consummate the transaction contemplated by this Agreement.
L. FRANCHISE AGREEMENT. FFCA shall have received a certificate,
consent and agreement from Franchisor in form and substance acceptable
to FFCA in its sole discretion with respect to the Premises, the
<PAGE>
Existing Leases and the franchise, license and/or area development
agreements between Lessee and Franchisor relating to the Premises (the
"Franchisor Certificate").
M. EXISTING LEASES. Each of the Existing Leases shall be in full
force and effect and Debtor shall be entitled to occupy the Premises
corresponding thereto. FFCA shall have approved each Existing Lease in
its sole discretion and Debtor shall have delivered to FFCA an
estoppel certificate and consent from each Existing Lessor, the form
and substance of which shall be satisfactory to FFCA in its sole
discretion (the "Lease Estoppel Certificate and Consents"). If any
mortgages or deeds of trust (or other similar security agreements)
encumber fee simple title to any land comprising the Premises, the
holders of such instruments shall have delivered nondisturbance
agreements to Debtor and FFCA with respect to the Existing Leases in
form and substance acceptable to FFCA in its reasonable discretion
(the "Nondisturbance Agreements").
N. CLOSING DOCUMENTS. At or prior to the Closing Date, FFCA
and/or Debtor and/or Lessee, as may be appropriate, shall execute and
deliver or cause to be executed and delivered to Title Company or
FFCA, as may be appropriate, all documents required to be delivered by
this Agreement, and such other documents, payments, instruments and
certificates, as FFCA may require in form acceptable to FFCA,
including, without limitation, the following:
(1) Notes;
(2) Mortgages;
(3) Operating Leases;
(4) Assignments of Rents and Leases;
(5) Franchisor Certificate;
(6) Proof of Insurance;
(7) Opinion of Counsel to Debtor and Lessee;
(8) Evidence of satisfactory zoning;
(9) UCC-1 Financing Statements;
(10) Environmental Indemnity Agreements;
(11) Lease Estoppel Certificate and Consents; and
(12) Nondisturbance Agreements, as applicable.
0. DUE DILIGENCE. FFCA shall have completed its due diligence of
Debtor and Lessee to FFCA's satisfaction in its sole and absolute
discretion.
Upon fulfillment or waiver of all of the above conditions, FFCA shall deposit
funds necessary to close this transaction with the Title Company and this
transaction shall close in accordance with the terms and conditions of this
Agreement.
10. DEFAULT AND REMEDIES. A. Each of the following shall be deemed an
event of default by Debtor (each, an "Event of Default"):
(1) If any representation or warranty of Debtor set forth in any
of the Loan Documents is false in any material respect, or if Debtor
renders any intentionally false statement or account.
(2) If any principal, interest or other monetary sum due under
the Notes, the Mortgages or any other Loan Document is not paid within
five days after the date when due; provided, however, notwithstanding
the occurrence of such an Event of Default, FFCA shall not be entitled
to exercise its rights and remedies set forth below unless and until
<PAGE>
FFCA shall have given Debtor notice thereof and a period of five days
from the delivery of such notice shall have elapsed without such Event
of Default being cured.
(3) If Debtor fails to observe or perform any of the other
covenants (except with respect to a breach of the Fixed Charge
Coverage Ratio, which breach is addressed in subitem (7) below),
conditions, or obligations of this Agreement; provided, however, if
any such failure does not involve the payment of any monetary sum to
FFCA, is not willful, does not place any rights or property of FFCA in
immediate jeopardy, and is within the reasonable power of Debtor to
promptly cure after receipt of notice thereof, all as determined by
FFCA in its reasonable discretion, then such failure shall not
constitute an Event of Default hereunder, unless otherwise expressly
provided herein, unless and until FFCA shall have given Debtor notice
thereof and a period of 30 days shall have elapsed, during which
period Debtor may correct or cure such failure, upon failure of which
an Event of Default shall be deemed to have occurred hereunder without
further notice or demand of any kind. If such failure cannot
reasonably be cured within such 30-day period, as determined by FFCA
in its reasonable discretion, and Debtor is diligently pursuing a cure
of such failure, then Debtor shall have a reasonable period to cure
such failure beyond such 3 0day period, which shall not exceed 90 days
after receiving notice of such failure from FFCA. If Debtor shall fail
to correct or cure such failure within such 90-day period, an Event of
Default shall be deemed to have occurred hereunder without further
notice or demand of any kind being required.
(4) If Debtor or Lessee becomes insolvent within the meaning of
the Code, files or notifies FFCA that it intends to file a petition
under the Code, initiates a proceeding under any similar law or
statute relating to bankruptcy, insolvency, reorganization, winding up
or adjustment of debts (collectively, an "Action"), becomes the
subject of either an involuntary Action or petition under the Code
without such involuntary Action or petition being dismissed within 90
days of filing, or is not generally paying its debts as the same
become due.
(5) Subject to the provisions of Section 13.P, if there is an
"Event of Default" under any Operating Lease or any other Loan
Document, or if there is a breach or default, after the passage of all
applicable notice and cure or grace periods, under any other agreement
or instrument, including, without limitation, promissory notes and
guaranties, between, among or by (1) Debtor, Lessee and/or any
subsidiary or Affiliate of Debtor or Lessee, and, or for the benefit
of, (2) FFCA and/or any subsidiary or Affiliate of FFCA or Franchise
Finance Corporation of America, a Delaware corporation.
(6) If there is a breach or default, after the passage of any
applicable notice and grace period, under any franchise, license
and/or area development agreement with Franchisor with respect to any
of the Premises which breach or default would have a Material Adverse
Effect, or if such franchise, license and/or area development
agreement terminates or expires prior to the payment in full of the
Note corresponding to such Premises in accordance with its terms and a
substitute agreement for the terminated or expired agreement is not
entered into prior to such expiration or termination, which substitute
agreement shall be in form and substance reasonably satisfactory to
FFCA.
<PAGE>
(7) If there is a breach of the Fixed Charge Coverage Ratio and
FFCA shall have given Debtor notice thereof and Debtor shall have
failed within a period of 30 days from the delivery of such notice to
pay to FFCA (the "Cure Period") the FCCR Amount (without premium or
penalty) with respect to each of those Premises for which the Fixed
Charge Coverage Ratio is below 1.25:1 (each, a "Subject Premises").
For purposes of this subsection, "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 over the remaining term of
such Note, will result in an adjusted Fixed Charge Coverage Ratio for
such Subject Premises of at least 1.25:1 based on the prior year's
operations. Promptly after Debtor's payment of the FCCR Amount, Debtor
and FFCA agree to execute an amendment to each such Note in form and
substance reasonably acceptable to FFCA reducing the principal amount
payable to FFCA under such Note and reamortizing the principal amount
of such Note over the then remaining term of such Note.
Notwithstanding the foregoing, if FFCA shall have exercised its
option to require that Debtor cause to be maintained an aggregate
Fixed Charge Coverage Ratio with respect to some or all of the FCCR
Premises, then, in order to prevent an Event of Default occurring by
reason of a breach of such Fixed Charge Coverage Ratio, Debtor must
FFCA the Aggregate FCCR Amount (without premium or penalty) within the
Cure with respect to such of the FCCR Premises (as selected by Debtor)
necessary to cure breach of such Fixed Charge Coverage Ratio
requirement and for which a Fixed Coverage Ratio of at least 1.25:1 is
not being maintained (with the definitions relating Fixed Charge
Coverage Ratio being modified as applicable to provide for a
calculation the Fixed Charge Coverage Ratio on an individual basis for
each such FCCR Pre (each a " Selected Premises"). For purposes of the
preceding sentence, "Aggregate Amount" means that sum of money which,
when subtracted from the outstanding principal balance of the FCCR
Note corresponding to a Selected Premises, and assuming the re
principal balance is reamortized over the remaining term of such FCCR
Note, will re an adjusted aggregate Fixed Charge Coverage Ratio for
the applicable group of Premises of at least 1.25:1 based on the prior
year's operations. Promptly after D payment of the Aggregate FCCR
Amount, Debtor and FFCA agree to execute an amendment to each such
FCCR Note in form and substance reasonably acceptable to FFCA reducing
the principal amount payable to FFCA under such FCCR Note and
reamortizing the principal amount of such FCCR Note over the then
remaining term of such FCCR Note.
(8) If an Existing Lease terminates or expires prior to the
scheduled maturity date of the Note corresponding to the Premises to
which the Existing Lease relates.
B. Upon and during the continuance of an Event of Default, subject to
the limitations set forth in subsection A, FFCA may declare all or any part of
the obligations of Debtor under the Notes, this Agreement and any other Loan
Document to be due and payable, and the same shall thereupon become due and
payable without any presentment, demand, protest or notice of any kind except as
otherwise expressly provided herein, and Debtor hereby waives notice of intent
to accelerate the obligations secured by the Mortgages. Thereafter, FFCA may
exercise, at its option, concurrently, successively or in any combination, all
remedies available at law or in equity, including without limitation any one or
more of the remedies available under the Notes, the Mortgages or any other Loan
Document. Neither the acceptance of this Agreement nor its enforcement shall
<PAGE>
prejudice or in any manner affect FFCA's right to realize upon or enforce any
other security now or hereafter held by FFCA, it being agreed that FFCA shall be
entitled to enforce this Agreement and any other security now or hereafter held
by FFCA in such order and manner as it may in its absolute discretion determine.
No remedy herein conferred upon or reserved to FFCA is intended to be exclusive
of any other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the Loan Documents
to FFCA, or to which FFCA may be otherwise entitled, may be exercised,
concurrently or independently, from time to time and as often as may be deemed
expedient by FFCA.
11. ASSIGNMENTS. A. Subsequent to the funding of the Loans by FFCA,
FFCA may assign in whole or in part its rights under this Agreement, including,
without limitation, in connection with any Transfer, Participation and/or
Securitization. Upon any unconditional assignment of FFCA's entire right and
interest hereunder, FFCA shall automatically BE RELIEVED, FROM AND after the
date of such assignment, of liability for the performance of any obligation of
FFCA contained herein.
B. Debtor shall not, without the prior written consent of FFCA, sell,
assign, transfer, mortgage, convey, encumber or grant any easements or other
rights or interests of any kind in the Premises, any of Debtor's rights under
this Agreement or any interest in Debtor, whether voluntarily, involuntarily or
by operation of law or otherwise, including, without limitation, by merger,
consolidation, dissolution or otherwise, except, subsequent to the Closing, as
expressly permitted by the Mortgage.
12. INDEMNITY. Debtor agrees to indemnify, hold harmless and defend
FFCA and its directors, officers, shareholders, employees, successors, assigns,
agents, contractors, subcontractors, experts, licensees, affiliates, lessees,
lenders, mortgagees, trustees and invitees, as applicable (collectively, the
"Indemnified Parties"), from and against any and all losses, costs, claims,
liabilities, damages and expenses, including, without limitation, reasonable
attorneys' fees (collectively, "Losses"), arising as the result of an
Environmental CONDITION and/or a breach of any of the representations,
warranties, covenants, agreements or obligations of Debtor set forth in this
Agreement. Without limiting the generality of the foregoing, such indemnity
shall include, without limitation, any engineering, governmental inspection and
reasonable attorneys' fees and expenses that the Indemnified Parties may incur
by reason of any representation set forth in this Agreement being false, or by
reason of any investigation or claim of any Governmental Authority in connection
therewith. Notwithstanding the foregoing, Debtor shall not be obligated to
indemnify, hold harmless and defend the Indemnified Parties with respect to
those Losses caused by an Environmental Condition which directly resulted from
affirmative acts taken with respect to a Premises by any Person (other than
Debtor, Lessee or an Affiliate of Debtor or Lessee) after the completion of a
foreclosure of the Mortgage corresponding to such Premises by FFCA or the
acceptance by FFCA of a deed-in-lieu thereof, it being expressly understood and
agreed that Debtor shall be obligated to indemnify, hold harmless and defend the
Indemnified Parties with respect to any Environmental Condition arising or
accruing prior to the completion of the foreclosure of such Mortgage by FFCA or
the acceptance by FFCA of a deed-in-lieu thereof even if such Environmental
Condition is not discovered until after the completion of such foreclosure or
acceptance of a deed-in-lieu thereof.
13. MISCELLANEOUS PROVISIONS.
A. NOTICES. All notices, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this
Agreement shall be in writing and given by (i) hand delivery, (ii)
<PAGE>
facsimile, (iii) express overnight delivery service or (iv) certified
or registered mail, return receipt requested, and shall be deemed to
have been delivered upon (a) receipt, if hand delivered, (b)
transmission, if delivered by facsimile, (c) the next business day, if
delivered by express overnight delivery service, or (d) the third
business day following the day of deposit of such notice with the
United States Postal Service, if sent by certified or registered mail,
return receipt requested. Notices shall be provided to the parties and
addresses (or facsimile numbers, as applicable) specified below:
If to Debtor: 80-A Turnpike Road
Westboro, MA 0 15 81
Attention: Mr. Paul Hoagland
Telephone: (508) 870-9200
Telecopy: (508) 870-9201
with a copy to: Brown, Rudnick, Freed and Gesmer
One Financial Center
Boston, MA 02111
Attention: Carl E. Axelrod, Esq.
Telephone: (617) 856-8200
Telecopy: (617) 856-8201
If to FFCA: Dennis L. Ruben,
Esq. Executive Vice President
and General Counsel
FFCA Acquisition Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
B. REAL ESTATE COMMISSION. FFCA and Debtor represent and warrant
to each other that they have dealt with no real estate or mortgage
broker, agent, finder or other intermediary in connection with the
transactions contemplated by this Agreement. FFCA and Debtor shall
indemnify and hold each other harmless from and against any costs,
claims or expenses, including attorneys' fees, arising out of the
breach of their respective representations and warranties contained
within this Section.
C. WAIVER AND AMENDMENT. No provisions of this Agreement shall be
deemed waived or amended except by a written instrument unambiguously
setting forth the matter waived or amended and signed by the party
against which enforcement of such waiver or amendment is sought.
Waiver of any matter shall not be deemed a waiver of the same or any
other matter on any future occasion.
D. CAPTIONS. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any
manner in the construction or interpretation hereof.
E. FFCA'S LIABILITY. Notwithstanding anything to the contrary
provided in this Agreement, it is specifically understood and agreed,
such agreement being a primary consideration for the execution of this
Agreement by FFCA, that (i) there shall be absolutely no personal
liability on the part of any shareholder, director, officer or
employee of FFCA, with respect to any of the terms, covenants and
conditions of this Agreement or the other Loan Documents, (ii) Debtor
waives all claims, demands and causes of action against FFCA's
<PAGE>
officers, directors, employees and agents in the event of any breach
by FFCA of any of the terms, covenants and conditions of this
Agreement or the other Loan Documents to be performed by FFCA and
(iii) Debtor shall look solely to the assets of FFCA for the
satisfaction of each and every remedy of Debtor in the event of any
breach by FFCA of any of the terms, covenants and conditions of this
Agreement or the other Loan Documents to be performed by FFCA, such
exculpation of liability to be absolute and without any exception
whatsoever.
F. SEVERABILITY. The provisions of this Agreement shall be deemed
severable. If any part of this Agreement shall be held unenforceable,
the remainder shall remain in full force and effect, and such
unenforceable provision shall be reformed by such court so as to give
maximum legal effect to the intention of the parties as expressed
therein.
G. CONSTRUCTION GENERALLY. This is an agreement between parties
who are experienced in sophisticated and complex matters similar to
the transaction contemplated by this Agreement and is entered into by
both parties in reliance upon the economic and legal bargains
contained herein and shall be interpreted and construed in a fair and
impartial manner without regard to such factors as the party which
prepared the instrument, the relative bargaining powers of the parties
or the domicile of any party. Debtor and FFCA were each represented by
legal counsel competent in advising them of their obligations and
liabilities hereunder.
H. OTHER DOCUMENTS. Each of the parties agrees to sign such other
and further documents as may be appropriate to carry out the
intentions expressed in this Agreement.
I. ATTORNEYS' FEES. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement,
the prevailing party shall be entitled to recover its reasonable
attorneys' fees and other costs in addition to any other relief to
which it may be entitled. References in this Agreement to the
attorneys' fees and/or costs of FFCA shall mean both the reasonable
fees and costs of independent outside counsel -retained by FFCA with
respect to this transaction and the costs (but not the fees) of FFCA's
in-house counsel incurred in connection with this transaction.
J. ENTIRE AGREEMENT. THIS Agreement and the other Loan Documents,
together with any other certificates, instruments or agreements to be
delivered in connection therewith, constitute the entire agreement
between the parties with respect to the subject matter hereof, and
there are no other representations, warranties or agreements, written
or oral, between Debtor and FFCA with respect to the subject matter of
this Agreement. Notwithstanding anything in this Agreement to the
contrary, upon the execution and delivery of this Agreement by Debtor
and FFCA, the terms and conditions of this Agreement shall control
over the terms and conditions of the Commitment notwithstanding that
such terms and conditions may be inconsistent with or vary from those
set forth in the Commitment.
K. FORUM SELECTION; JURISDICTION; VENUE; CHOICE OF LAW.
acknowledges that this Agreement was substantially negotiated in the
State of Arizona Agreement was signed by FFCA in the State of Arizona
and delivered by Debtor in the State of Arizona, all payments under
the Notes will be delivered in the State of Arizona an are substantial
<PAGE>
contacts between the parties and the transactions contemplated herein
State of Arizona. For purposes of any action or proceeding arising out
of this Agreement, the parties hereto hereby expressly submit to the
jurisdiction of all federal and state located in the State of Arizona
and Debtor consents that it may be served with any or paper by
registered mail or by personal service within or without the State of
Arizona accordance with applicable law. Furthermore, Debtor waives and
agrees not to assert such action, suit or proceeding that it is not
personally subject to the jurisdiction courts, that the action, suit
or proceeding is brought in an inconvenient forum or that of the
action, suit or proceeding is improper. It is the intent of the
parties hereto provisions of this Agreement shall be governed by and
construed under the laws of the of Arizona. To the extent that a court
of competent jurisdiction finds Arizona inapplicable with respect to
any provisions hereof, then, as to those provisions only, the of the
states where the Premises are located shall be deemed to apply.
Nothing Section shall limit or restrict the right of FFCA to commence
any proceeding in the or state courts located in the states in which
the Premises are located to the extent FFCA deems such proceeding
necessary or advisable to exercise remedies available under this
Agreement or the other Loan Documents.
L. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
M. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of Debtor and FFCA and their respective successors and
permitted assigns, including, without limitation, any United States
trustee, any debtor in possession or any trustee appointed from a
private panel.
N. SURVIVAL. Except for the conditions of Closing set forth in
Sections 2 and 9, which shall be satisfied or waived as of the Closing
Date, all representations, warranties, agreements, obligations and
indemnities of Debtor and FFCA set forth in this Agreement shall
survive the Closing.
0. WAIVER OF JURY TRIAL AND PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES. DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, DEBTOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE
TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM
FFCA WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY DEBTOR AGAINST FFCA OR
ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR
RELATED HERETO. THE WAIVER BY DEBTOR OF ANY RIGHT IT MAY HAVE TO SEEK
PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN
NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN.
P. TRANSFERS, PARTICIPATIONS AND SECURITIZATION. A material
inducement to FFCA's willingness to complete the transactions
<PAGE>
contemplated by the Loan Documents is Debtor's agreement that FFCA
may, at any time after the funding of each of the Loans, sell,
transfer or assign any Note, Mortgage and any of the other Loan
Documents, and any or all servicing rights with respect thereto (each,
a "Transfer"), or grant participations therein (each, a
"Participation"), or complete an asset securitization vehicle selected
by FFCA, in accordance with all requirements which may be imposed by
the investors or the rating agencies involved in such securitized
financing transaction, as selected by FFCA, or which may be imposed by
applicable securities, tax or other laws or regulations, including,
without limitation, laws relating to FFCA's status as a real estate
investment trust (each, a "Securitization").
Debtor agrees to cooperate in good faith with FFCA in connection
with any Transfer, Participation and/or Securitization, including,
without limitation, (i) providing such documents, financial and other
data, and other information and materials (the "Disclosures") which
would typically and reasonably be required with respect to Debtor and
Lessee by a purchaser, transferee, assignee, servicer, participant,
investor or rating agency involved with respect to such Transfer,
Participation and/or the Securitization, as applicable; provided,
however, Debtor and Lessee 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 and the Operating Leases 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 Transfers, Participations or
Securitization, so long as such amendments would not have a material
adverse effect upon Debtor, Lessee or the transactions contemplated
hereunder.
Debtor consents to FFCA providing the Disclosures, as well as any
other information which FFCA may now have or hereafter acquire with
respect to the Premises or the financial condition of Debtor and
Lessee, to each purchaser, transferee, assignee, servicer,
participant, investor or rating agency involved with respect to each
Transfer, Participation and/or Securitization, as applicable; provided
that, to the extent that any of such Disclosures or other information
include confidential information, FFCA shall take reasonable steps to
advise all Persons to whom confidential information is disclosed by
FFCA that the information being disclosed is confidential. FFCA and
Debtor (and their respective Affiliates) shall each pay their own
attorneys fees and other out-of-pocket expenses incurred in connection
with the performance of their respective obligations under this
Section.
Notwithstanding anything to the contrary contained herein, Debtor
shall not be required to: (i) amend or change any documents evidencing
or securing any Loan which would modify (A) the interest rate payable
under any Note, (B) the stated maturity of any Note, (C) the
amortization of principal or prepayment rights with respect to any
Note, (D) the recourse provisions of any Loan, or (E) any other
material economic term of any Loan which would have a material adverse
effect on Debtor or the transactions contemplated by this Agreement;
or (ii) bear any cost or expense (other than nominal costs or
expenses) for updated title insurance endorsements, surveys,
environmental reports, legal opinions or any other similar cost or
expense relating to such Transfers, Participations or Securitizations
<PAGE>
except for its own attorney's fees in reviewing documents drafted or
PROPOSED BY FFCA OR ITS COUNSEL WITH RESPECT THERETO.
Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents, from and after the closing of a
Securitization with respect to the I any loan evidenced by any Other
Agreement:
(a) a breach or default, after the passage of all applicable
notice and cure or grace periods, under any Operating Lease, Loan
Document or Other Agreement which relates to a loan or
sale/leaseback transaction which has not been the subject of a
Securitization shall not constitute an Event of Default under any
Operating Lease, Loan Document or Other Agreement which relates
to a loan which has been the subject of a Securitization;
(b) a breach or default, after the passage of all applicable
notice and cure or grace periods, under any Operating Lease, Loan
Document or Other Agreement which relates to a loan which has
been the subject of a Securitization transaction shall not
constitute an Event of Default under any Operating Lease, Loan
Document or Other Agreement which relates to a loan which has
been the subject of a different Securitization transaction;
(c) the Loan Documents corresponding to any Loan in any
Securitized Loan Pool shall not secure the obligations of any of
the Debtor Entities contained in any Loan Document or Other
Agreement which does not correspond to a loan in such Securitized
Loan Pool; and
(d) the Loan Documents and Other Agreements which do not
correspond to a loan in any Securitized Loan Pool shall not
secure the obligations of any of the Debtor Entities contained in
any Loan Document or Other Agreement which does correspond to a
loan in such Securitized Loan Pool.
Q. State Specific Provisions. DEBTOR ACKNOWLEDGES THAT THE
TRANSACTION CONTEMPLATED HEREIN IS A COMMERCIAL TRANSACTION WITHIN THE
MEANING OF SECTION 52-278a OF THE CONNECTICUT GENERAL STATUTES, AND
THAT IN ANY ACTION UPON THIS TRANSACTION, FFCA MAY AVAIL ITSELF OF AND
PURSUE ITS RIGHTS TO OBTAIN A PREJUDGMENT REMEDY IN ACCORDANCE WITH
SECTION 52-278f OF THE CONNECTICUT GENERAL STATUTES. DEBTOR HAS BEEN
ADVISED BY COUNSEL OF ITS RIGHTS WITH RESPECT TO PREJUDGMENT REMEDIES
UNDER CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED,
INCLUDING SECTIONS 52-278a TO 52-278g. DEBTOR HEREBY KNOWINGLY AND
WILLING WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ALL RIGHTS OF
NOTICE, JUDICIAL HEARING OR PRIOR COURT ORDER IN CONNECTION WITH THE
OBTAINING BY FFCA OF ANY PREJUDGMENT REMEDY WITH RESPECT TO THIS
AGREEMENT, OR PURSUANT TO ANY OTHER DOCUMENT EXECUTED BY DEBTOR IN
CONNECTION WITH THIS TRANSACTION, INCLUDING ANY AMENDMENTS OR
EXTENSIONS HEREOF OR THEREOF. FURTHER, DEBTOR WAIVES ANY REQUIREMENT
OF FFCA TO POST A BOND OR ANY OTHER SECURITY, OR TO SHOW SOME
EXIGENCY, IN CONNECTION WITH THE OBTAINING BY FFCA OF ANY SUCH
PREJUDGMENT REMEDY.
IN WITNESS WHEREOF, Debtor and FFCA have entered into this Agreement
as of the date first above written.
FFCA:
FFCA ACQUISITION CORPORATION,
a Delaware corporation
By /s/ Mark Wood
------------------------------
Printed Name Mark Wood
Its Vice President
DEBTOR:
NERC LIMITED PARTNERSHIP II,
a Delaware limited partnership
By NERC SPE II Inc.,
a Delaware corporation,
its general partner
By /s/ Paul V. Hoagland
-------------------------
Paul V. Hoagland
Vice President, Finance and
Assistant Treasurer
<PAGE>
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ] I
The foregoing instrument was acknowledged before me on ______________,
1998 by, ______________________ of FFCA Acquisition Corporation, a Delaware
corporation, on behalf of the corporation.
____________________________
Notary Public
My Commission Expires:
_________________________
COMMONWEALTH OF MASSACHUSETTS ]
]SS.
COUNTY OF WORCHESTER ]
The foregoing instrument was acknowledged before me on, June 26, 1998
by Paul V. Hoagland, Vice President, Finance and Assistant Treasurer of NERC
SPE II Inc., a Delaware corporation, the general partner of NERC Limited
Partnership II, a Delaware limited partnership, on behalf of the partnership.
/s/ Lorraine M. Bates
-------------------------
Notary Public
My Commission Expires:
Lorraine M. Bates
-----------------------
Notary Public
My Commission Expires May 13, 2005
<PAGE>
EXHIBIT A
ALLOCATED LOAN AMOUNT; PREMISES
FFCA No. 8000-5791 Waterbury, CT $1,015,260.00
FFCA No. 8000-6563 Rocky Hill, CT $1,256,000.00
FFCA No. 8000-5417 Warwick, RI $ 800,000.00
-------------
Total $3,071,260.00