<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended July 2, 1998
--------------------------------------------
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from -------------------- to --------------------
Commission file number 1-11556
----------------------------------------------------
UNI-MARTS, INC.
- ---------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 25-1311379
- ---------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
477 East Beaver Avenue, State College, PA 16801-5690
- ---------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(8l4) 234-6000
- ---------------------------------------------------------------------------
(Registrant's telephone number, including area code)
- ---------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
----- -----
6,860,149 Common Shares were outstanding at August 7, 1998.
This Document Contains 99 Pages.
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UNI-MARTS, INC. AND SUBSIDIARY
INDEX
PART I. FINANCIAL INFORMATION
- ------------------------------ PAGE(S)
Item 1. Financial Statements
Condensed Consolidated Balance Sheets -
July 2, 1998 and September 30, 1997 3-4
Condensed Consolidated Statements of Operations -
Quarter Ended and Three Quarters Ended
July 2, 1998 and July 3, 1997 5
Condensed Consolidated Statements of Cash Flows -
Three Quarters Ended July 2, 1998 and
July 3, 1997 6-7
Notes to Condensed Consolidated Financial Statements 8-10
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 11-14
PART II. OTHER INFORMATION
- ---------------------------
Item 4. Submission of Matters to a Vote of Security Holders 15
Item 6. Exhibits and Reports on Form 8-K 15-16
Exhibit Index 18
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<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
UNI-MARTS, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED BALANCE SHEETS
<CAPTION>
July 2, September 30,
1998 1997
---------- ------------
(Unaudited)
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash $ 4,167,593 $ 5,993,388
Marketable equity securities (at market,
cost $4,300 and $277,200) 4,966 407,475
Accounts receivable - less allowances of
$159,100 and $132,600 2,647,841 3,377,554
Tax refunds receivable 46,163 1,819,100
Inventories 10,819,088 15,683,330
Prepaid and current deferred taxes 2,996,134 3,359,490
Property held for sale 4,223,237 5,643,006
Prepaid expenses and other 826,575 796,668
Loan due from officer - current portion 200,000 150,000
----------- -----------
TOTAL CURRENT ASSETS 25,931,597 37,230,011
PROPERTY, EQUIPMENT AND IMPROVEMENTS -
at cost, less accumulated depreciation and
amortization of $47,667,900 and
$46,474,100 62,918,717 69,055,846
LOAN DUE FROM OFFICER 564,844 674,768
NET INTANGIBLE AND OTHER ASSETS 6,067,412 6,633,157
----------- ------------
TOTAL ASSETS $95,482,570 $113,593,782
=========== ============
</TABLE>
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<PAGE> 4
<TABLE>
UNI-MARTS, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED BALANCE SHEETS
(CONTINUED)
<CAPTION>
July 2, September 30,
1998 1997
----------- -------------
(Unaudited)
LIABILITIES AND STOCKHOLDERS' EQUITY
<S> <C> <C>
CURRENT LIABILITIES:
Accounts payable $11,513,917 $ 14,462,174
Gas taxes payable 2,446,078 2,424,641
Accrued expenses 4,401,668 6,806,632
Credit line payable 5,500,000 0
Current maturities of long-term debt 890,596 12,722,649
Current obligations under capital leases 67,587 87,320
----------- -----------
TOTAL CURRENT LIABILITIES 24,819,846 36,503,416
LONG-TERM DEBT, less current maturities 33,599,086 39,852,947
OBLIGATIONS UNDER CAPITAL LEASES,
less current maturities 499,638 533,551
DEFERRED TAXES 3,940,400 4,036,000
DEFERRED INCOME AND OTHER LIABILITIES 2,899,378 3,120,923
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Common Stock, par value $.10 per share:
Authorized 15,000,000 shares
Issued 7,316,797 and 7,286,657
shares, respectively 731,680 728,666
Additional paid-in capital 24,275,787 24,341,999
Retained earnings 7,682,505 8,254,538
----------- -----------
32,689,972 33,325,203
Less treasury stock, at cost - 494,099
and 639,980 shares of Common Stock,
respectively ( 2,965,750) ( 3,778,258)
----------- ------------
29,724,222 29,546,945
----------- ------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $95,482,570 $113,593,782
=========== ============
</TABLE>
See notes to consolidated financial statements
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<PAGE> 5
<TABLE>
UNI-MARTS, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<CAPTION>
QUARTER ENDED THREE QUARTERS ENDED
July 2, July 3, July 2, July 3,
1998 1997 1998 1997
----------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
REVENUES:
Merchandise sales $37,410,269 $50,334,225 $116,223,019 $139,415,716
Gasoline sales 25,046,889 40,895,705 83,386,599 121,433,727
Other income 822,265 730,943 1,873,718 1,936,058
----------- ----------- ------------ ------------
63,279,423 91,960,873 201,483,336 262,785,501
----------- ----------- ------------ ------------
COSTS AND EXPENSES:
Cost of sales 46,624,112 70,400,583 147,711,411 198,180,380
Selling 12,051,996 16,837,944 41,479,736 51,633,297
General and administrative 1,496,423 1,728,812 4,873,237 5,462,813
Depreciation and amortization 1,565,323 1,875,629 4,791,897 5,506,179
Interest 883,850 1,110,687 3,032,673 3,123,443
----------- ----------- ------------ ------------
62,621,704 91,953,655 201,888,954 263,906,112
----------- ----------- ------------ ------------
EARNINGS (LOSS) BEFORE INCOME TAXES,
EXTRAORDINARY ITEM AND CUMULATIVE
EFFECT OF ACCOUNTING CHANGE 657,719 7,218 ( 405,618) ( 1,120,611)
INCOME TAXES 281,500 2,929 ( 77,900) ( 392,869)
----------- ----------- ------------ ------------
EARNINGS (LOSS) BEFORE EXTRAORDINARY
ITEM AND CUMULATIVE EFFECT OF
ACCOUNTING CHANGE 376,219 4,289 ( 327,718) ( 727,742)
EXTRAORDINARY ITEM-LOSS FROM DEBT
EXTINGUISHMENT, NET OF INCOME TAX
BENEFIT OF $125,800 244,315 0 244,315 0
CUMULATIVE EFFECT OF ACCOUNTING CHANGE
NET OF INCOME TAX BENEFIT OF $725,800 0 0 0 ( 1,468,140)
----------- ----------- ------------ ------------
NET EARNINGS (LOSS) $ 131,904 $ 4,289 ($ 572,033) ($ 2,195,882)
=========== =========== ============ ============
BASIC EARNINGS (LOSS) PER SHARE:
EARNINGS (LOSS) PER SHARE BEFORE
EXTRAORDINARY ITEM AND CUMULATIVE
EFFECT OF ACCOUNTING CHANGE $ 0.06 $ 0.00 ($ 0.05) ($ 0.11)
LOSS PER SHARE FROM EXTRAORDINARY
ITEM ( 0.04) 0.00 ( 0.04) 0.00
LOSS PER SHARE FROM CUMULATIVE
EFFECT OF ACCOUNTING CHANGE 0.00 0.00 0.00 ( 0.22)
----------- ----------- ------------ ------------
NET EARNINGS (LOSS) PER SHARE $ 0.02 $ 0.00 ($ 0.09) ($ 0.33)
=========== =========== ============ ============
DILUTED EARNINGS (LOSS) PER SHARE:
EARNINGS (LOSS) PER SHARE BEFORE
EXTRAORDINARY ITEM AND CUMULATIVE
EFFECT OF ACCOUNTING CHANGE $ 0.06 $ 0.00 ($ 0.05) ($ 0.11)
LOSS PER SHARE FROM EXTRAORDINARY
ITEM ( 0.04) 0.00 ( 0.04) 0.00
LOSS PER SHARE FROM CUMULATIVE
EFFECT OF ACCOUNTING CHANGE 0.00 0.00 0.00 ( 0.22)
----------- ----------- ------------ ------------
NET EARNINGS (LOSS) PER SHARE $ 0.02 $ 0.00 ($ 0.09) ($ 0.33)
=========== =========== ============ ============
DIVIDENDS PER SHARE $ 0.00 $ 0.00 $ 0.00 $ 0.06
=========== =========== ============ ============
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING 6,820,870 6,642,289 6,736,062 6,640,229
=========== =========== ============ ============
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING ASSUMING DILUTION 6,827,468 6,678,326 6,736,062 6,640,229
=========== =========== ============ ============
</TABLE>
See notes to consolidated financial statements
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<PAGE> 6
<TABLE>
UNI-MARTS, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<CAPTION>
THREE QUARTERS ENDED
July 2, July 3,
1998 1997
------------ ------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Cash received from customers and others $201,654,328 $261,985,907
Cash paid to suppliers and employees ( 194,344,142) ( 255,224,744)
Net receipts for sales and purchases
of trading equity securities 831,886 0
Dividends and interest received 62,168 35,931
Interest paid (net of capitalized interest
of $0 and $57,400) ( 3,737,095) ( 3,163,046)
Income taxes received 2,244,393 1,867,325
------------ ------------
NET CASH PROVIDED BY OPERATING ACTIVITIES 6,711,538 5,501,373
CASH FLOWS FROM INVESTING ACTIVITIES:
Receipts from sale of capital assets 5,483,802 179,654
Purchase of property, equipment and
improvements ( 2,192,161) ( 10,650,294)
Payments for purchases of available-for-sale
securities 0 ( 183,667)
Note receivable from officer 59,924 ( 809,674)
Cash advanced for intangible and other
assets ( 258,000) ( 311,105)
Cash received for intangible and other
assets 375,184 143,769
------------ ------------
NET CASH PROVIDED (USED) IN INVESTING
ACTIVITIES 3,468,749 ( 11,631,317)
CASH FLOWS FROM FINANCING ACTIVITIES:
(Payments) borrowings on revolving credit
agreement ( 10,000,000) 3,000,000
Additional long-term borrowings 34,266,686 10,000,000
Borrowings on credit line 5,500,000 0
Principal payments on debt ( 42,461,983) ( 3,301,656)
Purchases of treasury stock ( 49,285) ( 354,905)
Proceeds from issuance of common stock 738,500 0
Dividends paid to stockholders 0 ( 398,173)
------------ ------------
NET CASH (USED) PROVIDED BY FINANCING
ACTIVITIES ( 12,006,082) 8,945,266
------------ ------------
NET (DECREASE) INCREASE IN CASH ( 1,825,795) 2,815,322
CASH:
Beginning of period 5,993,388 1,207,929
------------ ------------
End of period $ 4,167,593 $ 4,023,251
============ ============
</TABLE>
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<PAGE> 7
<TABLE>
UNI-MARTS, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(CONTINUED)
(Unaudited)
<CAPTION>
THREE QUARTERS ENDED
July 2, July 3,
1998 1997
---------- ----------
<S> <C> <C>
RECONCILIATION OF NET EARNINGS (LOSS) TO NET
CASH PROVIDED BY OPERATING ACTIVITIES:
NET EARNINGS (LOSS) ($ 572,033) ($2,195,882)
ADJUSTMENTS TO RECONCILE NET EARNINGS (LOSS) TO
NET CASH PROVIDED BY OPERATING ACTIVITIES:
Depreciation and amortization 4,791,897 5,506,179
Net unrealized holding loss on trading
securities 129,673 0
Gain on sale of trading equity securities ( 110,744) 0
Gain on sale of available-for-sale securities 0 ( 3,001)
(Gain) loss on sale of capital assets and other ( 6,350) 235,603
Cumulative effect of accounting change 0 1,468,140
Changes in assets and liabilities:
(Increase) decrease in:
Trading equity securities 383,580 0
Accounts receivable 874,926 ( 643,792)
Tax refunds receivable 1,772,937 0
Inventories 4,864,242 ( 2,716,807)
Prepaid expenses ( 131,017) ( 500,554)
Increase (decrease) in:
Accounts payable and accrued expenses ( 5,331,784) 2,886,098
Deferred income taxes and other
liabilities 46,211 1,465,389
---------- ----------
TOTAL ADJUSTMENTS TO NET EARNINGS (LOSS) 7,283,571 7,697,255
---------- ----------
NET CASH PROVIDED BY OPERATING ACTIVITIES $6,711,538 $5,501,373
========== ==========
</TABLE>
See notes to consolidated financial statements
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<PAGE> 8
UNI-MARTS, INC. AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
A. FINANCIAL STATEMENTS:
The consolidated balance sheet as of July 2, 1998, the consolidated
statements of operations and the consolidated statements of cash flows
for the three quarters ended July 2, 1998 and July 3, 1997 have been
prepared by Uni-Marts, Inc. (the "Company") without audit. In the opinion
of management, all adjustments (which include only normal recurring
adjustments) necessary to present fairly the financial position of the
Company at July 2, 1998 and the results of operations and cash flows for
all periods presented have been made.
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted. It is suggested
that these consolidated financial statements be read in conjunction with
the financial statements and notes thereto included in the Company's Annual
Report on Form 10-K for the fiscal year ended September 30, 1997. The
results of operations for the interim periods are not necessarily
indicative of the results to be obtained for the full year.
B. CHANGE IN ACCOUNTING METHOD:
In fiscal year 1997, the Company changed its method of valuing its
merchandise inventories. The Company formerly valued its merchandise
inventories at the lower of cost (first-in, first-out method) or market,
as determined by the retail inventory method utilizing a single category
of merchandise. The Company now values its merchandise inventories at
the lower of cost (first-in, first-out method) or market, as determined
by the retail inventory method utilizing eight categories of merchandise.
This change caused a one-time charge to earnings of $1,468,140, net of the
income tax benefit of $725,800. The statements of operations for the first
three quarters of fiscal year 1997 have been restated to reflect
retroactive application of this change.
C. INTANGIBLE AND OTHER ASSETS:
Intangible and other assets consist of the following:
July 2, September 30,
1998 1997
---------- -------------
Goodwill $5,998,351 $ 5,998,351
Lease acquisition costs 933,956 1,187,174
Non-competition agreements 0 1,213,040
Other 1,933,471 2,268,850
---------- -----------
8,865,778 10,667,415
Less accumulated amortization 2,798,366 4,034,258
---------- -----------
$6,067,412 $ 6,633,157
========== ===========
-8-
<PAGE> 9
Goodwill represents the excess of costs over the fair value of net
assets acquired in business combinations and is amortized on a straight-
line basis over periods of 13 to 40 years. Lease acquisition costs are
the bargain element of acquired leases and are being amortized on a
straight-line basis over the related lease terms. It is the Company's
policy to periodically review and evaluate the recoverability of the
intangible assets by assessing current and future profitability and cash
flows and to determine whether the amortization of the balances over
their remaining lives can be recovered through expected future results
and cash flows.
D. SHORT-TERM CREDIT FACILITIES:
In conjunction with its long-term mortgage financing discussed in
Footnote F, the Company has a $3.0 million revolving credit facility,
a $2.5 million property loan and a $2.7 million letter-of-credit
facility. The revolving credit facility and property loan are due on
or before June 30, 1999 and bear interest at a floating rate of LIBOR
plus 3.25%. The letter-of-credit facility expires on June 30, 1999. At
July 2, 1998, borrowings of $5.5 million and a letter of credit of $2.7
million were outstanding under these facilities. On July 7, 1998, $2.0
million of the property loan was repaid. The interest rate was 9.16%
at July 2, 1998.
E. LONG-TERM DEBT:
July 2, September 30,
1998 1997
----------- -------------
Mortgage Loan. Principal and interest will
be paid in 240 monthly installments beginning
August 1, 1998. The interest rate at July 2,
1998 was 9.08%. $34,266,686 $ 0
Term Loan. Principal on the note was repaid
in June 1998. 0 20,000,000
Term Loan. Principal on the note was repaid
in June 1998. 0 16,741,488
Revolving Credit Agreement. Principal was
repaid in June 1998. 0 10,000,000
Senior Notes of the Company. Principal was
repaid in February 1998. 0 3,736,735
Mortgage Loans Payable. Principal and interest
are paid in monthly installments. The loan
expires in 2010. The interest rate at July 2,
1998 was 8.5%. 222,996 2,097,373
----------- -----------
34,489,682 52,575,596
Less current maturities 890,596 12,722,649
----------- -----------
$33,599,086 $39,852,947
=========== ===========
The mortgage loans are collateralized by $47,343,400 of property, at cost.
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<PAGE> 10
On June 30, 1998, the Company completed a 20-year mortgage financing
with Franchise Finance Corporation of America ("FFCA") pursuant to which
the Company received long-term financing of $36.0 million. The Company
repaid all of its long-term debt with these funds except for one mortgage
with a balance of $223,000. This mortgage is expected to be repaid by
September 30, 1998.
Certain provisions of the loan agreements with FFCA require the Company's
maintenance of minimum net worth of $20 million and an aggregate fixed
charge ratio of 1.25 : 1. This agreement could possibly restrict the
Company's ability to declare and pay dividends on common stock.
F. NEW ACCOUNTING PRONOUNCEMENTS:
In June 1997, the Financial Accounting Standards Board issued Statement
No. 130, "Reporting Comprehensive Income," which will result in disclosure
of comprehensive income and its components (revenues, expenses, gains
and losses) in a full set of general-purpose financial statements. The
Company is not required to adopt this standard until fiscal year 1999. At
this time, the Company has not determined the impact this statement will
have on the Company's financial statements but expects that the effect will
not be material.
The Financial Accounting Standards Board also issued Statement No. 131,
"Disclosures about Segments of an Enterprise and Related Information,"
in June 1997. The Statement establishes standards for the way public
business enterprises report information about operating segments in annual
financial statements and requires that those enterprises report selected
information about operating segments in interim financial reports issued
to shareholders. It also establishes standards for related disclosures
about products and services, geographic areas and major customers. The
Company is not required to adopt this standard until fiscal year 1999. At
this time, the Company has not determined the impact this standard will
have on the Company's financial statements but does not expect the effect
to be material.
In February 1998, the Financial Accounting Standards Board issued Statement
No. 132, "Employers' Disclosures about Pensions and Other Postretirement
Benefits." The Statement standardizes the disclosure requirements for
pensions and other benefits to the extent practicable and requires
disclosure of certain other information. The Company is not required to
adopt this standard until fiscal year 1999 but expects that the adoption
will have a minimal effect on the Company's financial statements.
-10-
<PAGE> 11
<TABLE>
ITEM 2.
UNI-MARTS, INC. AND SUBSIDIARY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
<CAPTION>
Set forth below are selected unaudited consolidated financial data of the Company
for the periods indicated:
QUARTER ENDED THREE QUARTERS ENDED
July 2, July 3, July 2, July 3,
1998 1997 1998 1997
----------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
Revenues:
Merchandise sales 59.1% 54.7% 57.7% 53.1%
Gasoline sales 39.6 44.5 41.4 46.2
Other income 1.3 0.8 0.9 0.7
----- ----- ----- -----
Total revenues 100.0 100.0 100.0 100.0
Cost of sales 73.7 76.6 73.3 75.4
----- ----- ----- -----
Gross profit:
Merchandise (as a percentage of
merchandise sales) 35.2 32.5 35.8 35.5
Gasoline (as a percentage of
gasoline sales) 10.7 11.0 12.3 10.9
Total gross profit 26.3 23.4 26.7 24.6
Costs and expenses:
Selling 19.0 18.3 20.6 19.6
General and administrative 2.4 1.9 2.4 2.1
Depreciation and amortization 2.5 2.0 2.4 2.1
Interest 1.4 1.2 1.5 1.2
----- ----- ----- -----
Total expenses 25.3 23.4 26.9 25.0
Earnings (loss) before income taxes,
extraordinary item and cumulative
effect of accounting change 1.0 0.0 ( 0.2) ( 0.4)
Income taxes 0.4 0.0 0.0 ( 0.1)
----- ----- ----- -----
Earnings (loss) before cumulative
effect of accounting change 0.6 0.0 ( 0.2) ( 0.3)
Extraordinary item-loss from debt
extinguishment, net of income tax
benefit ( 0.4) 0.0 ( 0.1) 0.0
Cumulative effect of accounting change,
net of income tax benefit 0.0 0.0 0.0 ( 0.6)
----- ----- ----- -----
Net earnings (loss) 0.2% 0.0% ( 0.3)% ( 0.9)%
===== ===== ===== =====
OPERATING DATA (CONVENIENCE STORES ("C-STORES") ONLY):
Average, per store, for stores open two
full comparable periods:
Merchandise sales $ 128,481 $ 130,938 $ 359,829 $ 356,996
Gasoline sales $ 122,127 $ 148,750 $ 360,200 $ 428,426
Gallons of gasoline sold 145,739 146,173 403,594 405,904
Total gallons of gasoline sold 29,591,815 39,519,636 90,973,473 112,685,858
Gross profit per gallon of
gasoline $ 0.088 $ 0.112 $ 0.109 $ 0.114
C-Stores at beginning of period 272 398 384 405
C-Stores added 0 0 0 2
C-Stores closed 9 4 119 10
C-Stores converted to Choice
locations 0 6 2 9
C-Stores at end of period 263 388 263 388
Company-operated stores 249 356 249 356
Franchisee-operated stores 14 32 14 32
Choice Cigarette Discount Outlets 20 13 20 13
Locations with self-service gasoline 207 301 207 301
</TABLE>
-11-
<PAGE> 12
RESULTS OF OPERATIONS:
Matters discussed below should be read in conjunction with "Statements of
Operations Data" and "Operating Data (Convenience Stores Only)" on the
preceding pages. Certain statements contained in this report are forward
looking. Although Uni-Marts, Inc. believes that its expectations are based on
reasonable assumptions within the bounds of its knowledge of its business and
operations, there can be no assurance that actual results will not differ
materially from its expectations. Factors that could cause actual results to
differ from expectations include general economic, business and market
conditions, volatility of gasoline prices, merchandise margins, customer
traffic, weather conditions, labor costs and the level of capital expenditures.
For other important factors that may cause actual results to differ materially
from expectations and underlying assumptions, see the Company's periodic
filings with the Securities and Exchange Commission.
QUARTERS ENDED JULY 2, 1998 AND JULY 3, 1997
- --------------------------------------------
Total revenues in the quarter ended July 2, 1998 were $63.3 million, a decline
of $28.7 million, or 31.2%, from total revenues in the same quarter of fiscal
year 1997. This decline is largely the result of 125 fewer convenience stores
in operation at July 2, 1998, 105 of which were formerly leased from Getty
Petroleum Corp. ("Getty") and 14 of which were converted to Choice Cigarette
Discount Outlets ("Choice"). The Company operated 20 Choice stores at July 2,
1998, and merchandise sales discussed herein include sales of tobacco products
at these locations. Merchandise sales declined by $12.9 million, or 25.7%, to
$37.4 million in the third quarter of fiscal year 1998 compared to $50.3
million in the third quarter of fiscal year 1997, primarily as a result of
fewer stores in operation. Gasoline sales declined by $15.8 million due to
lower volumes from fewer stores in operation as well as a significant decrease
in the average retail price per gallon sold. Other income increased by
$91,000.
Gross profits on merchandise sales declined due to the lower level of
merchandise sales, but at a lesser rate due to a 2.7% increase in the gross
profit rate on those sales. In the third quarter of fiscal year 1998, gross
profits on merchandise sales were $13.2 million compared to $16.4 million in
the corresponding quarter of the prior fiscal year, a decrease of $3.2 million,
or 19.4%. Gross profits on gasoline sales declined $1.8 million, or 40.4%, due
primarily to the sale of 9.9 million fewer gallons of gasoline at 94 fewer
stores as well as lower gross profits per gallon sold.
Selling expenses decreased $4.8 million, or 28.4%, in the third quarter of
fiscal year 1998 compared to the third quarter of fiscal year 1997 due to
fewer stores in operation. General and administrative expense declined by
$232,000, or 13.4%, largely as a result of previous staffing reductions and
other cost-cutting measures. Depreciation and amortization expense declined by
$310,000, or 16.5%, reflecting fewer stores in operation. Interest expense
declined by $227,000, or 20.4%, due largely to lower borrowing levels in the
third quarter of fiscal year 1998 compared to the third quarter of fiscal
year 1997.
Earnings before income taxes, an extraordinary item and cumulative effect of
accounting change were $658,000 in the third quarter of fiscal year 1998
compared to earnings of $7,000 in the third quarter of fiscal year 1997.
Earnings before the extraordinary item and the cumulative effect of accounting
change were $376,000, or $0.06 per share, in the quarter ended July 2, 1998
compared to earnings of $4,000, or $0.00 per share, in the quarter ended
July 3, 1997. In the third quarter of fiscal year 1998, the Company incurred
an extraordinary loss from debt extinguishment of $244,000, net of income tax
benefit of $126,000. Net earnings were $132,000, or $0.02 per share, in the
-12-
<PAGE> 13
quarter ended July 2, 1998 compared to net earnings of $4,000, or $0.00 per
share in the quarter ended July 3, 1997.
THREE QUARTERS ENDED JULY 2, 1998 AND JULY 3, 1997
- --------------------------------------------------
Total revenues in the first three quarters of fiscal year 1998 declined $61.3
million, or 23.3%, from total revenues in the same period of fiscal year 1997.
This decrease resulted from the operation of 125 fewer convenience stores, 105
of which were leased from Getty and seven of which were converted to Choice.
The Company operated 20 Choice stores at July 2, 1998, and merchandise sales
discussed herein include sales at these locations. Merchandise sales declined
$23.2 million, or 16.6%, in the first three quarters of fiscal year 1998
compared to the first three quarters of fiscal year 1997 primarily due to fewer
stores in operation. Merchandise sales at comparable stores increased by 0.8%.
The sale of 21.7 million fewer gallons of gasoline at the Company's stores and
a decline of $0.16 in the average retail price per gallons sold caused a
decline of $38.0 million in gasoline sales in the first three quarters of
fiscal year 1998 compared to the corresponding period of fiscal year 1997.
Other income declined $62,000.
In the first three quarters of fiscal year 1998, gross profits on merchandise
sales were $41.6 million compared to $49.5 million in the same period of fiscal
year 1997, a decline of $7.9 million, or 15.9%. This decline is largely the
result of lower merchandise sales. Gross profits on gasoline sales declined by
$2.9 million, or 22.0%, primarily as the result of fewer gallons sold.
Selling expenses were $41.5 million in the first three quarters of fiscal year
1998 compared to $51.6 million in the first three quarters of fiscal year 1997.
This decline of $10.1 million, or 19.7%, is primarily due to fewer stores in
operation. General and administration expense declined by $590,000, or 10.8%,
largely as a result of staff reductions. Depreciation and amortization expense
declined by $714,000, or 13.0%, reflecting fewer stores in operation. Interest
expense declined by $91,000, or 2.9%, in the first three quarters of fiscal
year 1998 due to lower borrowing levels.
In the first three quarters of fiscal year 1998, the Company incurred a loss
before income taxes, an extraordinary item and cumulative effect of accounting
change of $406,000 compared to a loss of $1,121,000 in the same period of
fiscal year 1997. In the same periods, the Company recorded an income tax
benefit of $78,000 in fiscal year 1998 and $393,000 in fiscal year 1997. The
disproportionate provision in fiscal year 1998 reflects an adjustment to
deferred tax assets. In the three quarters ended July 2, 1998, the Company
recorded a loss of $328,000, or $0.05 per share, before the extraordinary item
and cumulative effect of an accounting change compared to a loss in the same
period of fiscal year 1997 of $728,000, or $0.11 per share. In fiscal year
1998, the Company incurred an extraordinary loss from debt extinguishment of
$244,000, net of income tax benefit of $126,000. As the result of an
accounting change, in fiscal year 1997 the Company recorded a charge to
earnings of $1,468,000, net of income tax benefit of $726,000. Operating
results for the first three quarters of fiscal 1997 have been restated to
reflect the retroactive application of this change. The Company recorded a net
loss of $572,000, or $0.09 per share, in the first three quarters of fiscal
year 1998 compared to a loss of $2,196,000, or $0.33 per share, for the same
period of fiscal year 1997.
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<PAGE> 14
LIQUIDITY AND CAPITAL RESOURCES:
Most of the Company's sales are for cash and its inventory turns over rapidly.
As a result, the Company's daily operations do not generally require large
amounts of working capital. From time to time, the Company utilizes
substantial portions of its cash to acquire and construct new stores and
renovate existing locations.
The Company recently completed a debt refinancing with Franchise Finance
Corporation of America ("FFCA"). This refinancing includes $36.0 million of
long-term mortgages, a $3.0 million revolving line of credit, $2.5 million in
short-term property loans and a $2.7 million letter-of-credit facility. The
$36.0 million mortgage facility will be amortized over 20 years and the
short-term facilities and letter-of-credit facility are available until
June 30, 1999. The property loans were used to provide funds on an interim
basis until two parcels of real estate are sold. The sale of one parcel was
completed in July 1998 and $2.0 million of the property loan was repaid.
Capital requirements for debt service and capital leases in the next twelve
months are approximately $6.5 million, of which $2.0 million was paid in July
1998. Another $500,000 will be repaid upon the closing of a second real estate
sale which is under a written agreement.
Through the long-term mortgage financing discussed above, the Company has
completed a matching of appropriate term financing with its long-term operating
assets. The Company is currently negotiating with various lenders to secure
equipment financing and to establish more appropriate short-term credit and
letter-of-credit facilities. Capital expenditure plans for fiscal year 1999
will be finalized upon completion of operational budgets and financing
commitments for new stores. Funds for renovations of stores and equipment
replacement will be supplied from available cash from operations. Management
believes that cash presently available, cash generated from operations and new
short-term financing will be sufficient to fulfill its cash requirements for
the foreseeable future.
YEAR 2000 COMPLIANCE:
An internal review has been conducted by the Company of all software used in
its data processing equipment to determine its exposure, if any, to the "year
2000 problem." Any problems detected have been corrected or will be corrected
within the next fiscal year. This problem may cause significant difficulties
with the electronic processing of information in the year 2000 and subsequent
years due to the inability of many computer programs to differentiate between
the years 1900 and 2000. Based on its review, the Company believes the
incremental costs to make the necessary corrections to prevent such
difficulties will not have a material effect on the Company's consolidated
financial statements.
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<PAGE> 15
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Annual Meeting of Stockholders of Uni-Marts, Inc. was held on June 18, 1998
at which the following matters were voted upon:
(1) Election of two directors to serve until the Annual Meeting of
Stockholders in 2001.
(2) Ratification of the appointment of independent auditors.
The results of the votes on the matters considered at the Annual Meeting of
Stockholders are set forth below:
Election of Directors:
Votes Votes Broker
"For" "Withheld" Non-Votes
--------- ---------- ---------
J. Kirk Gallaher 4,849,033 868,359 0
Stephen B. Krumholz 4,847,333 870,059 0
Ratification of appointment of independent auditors:
Votes Votes Votes Broker
"For" "Withheld" "Abstain" Non-Votes
--------- ---------- --------- ---------
4,855,470 860,279 1,644 0
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
3.1 Amended and Restated Certificate of Incorporation of the Company
(Filed as Exhibit 3.1 to the Company's Quarterly Report on Form
10-Q for the period ended March 30, 1995 and incorporated herein
by reference thereto).
3.2 By-Laws of the Company (Filed as Exhibit 3.2 to the Company's
Quarterly Report on Form 10-Q for the period ended March 30,
1995 and incorporated herein by reference thereto).
4.1 Form of the Company's Common Stock Certificate (Filed as Exhibit
4.3 to the Company's Quarterly Report on Form 10-Q for the
period ended April 1, 1993 and incorporated herein by reference
thereto).
10.1 Uni-Marts, Inc. Amended and Restated Equity Compensation Plan
(Filed as Exhibit 10.1 to the Company's Quarterly Report on Form
10-Q for the period ended March 30, 1995 and incorporated herein
by reference hereto).
10.2 Uni-Marts, Inc. Retirement Savings & Incentive Plan (Filed as
Exhibit 4.2 to the Company's Registration Statement on Form S-8,
File No. 33-9807, and incorporated herein by reference thereto).
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<PAGE> 16
10.3 Form of Indemnification Agreement between Uni-Marts, Inc. and
each of its Directors (Filed as Exhibit A to the Company's
Definitive Proxy Statement for the February 25, 1988 Annual
Meeting of Stockholders and incorporated herein by reference
thereto).
10.4 Uni-Marts, Inc. Deferred Compensation Plan (Filed as Exhibit
10.8 to the Annual Report of Uni-Marts, Inc. on Form 10-K for
the year ended September 30, 1990 and incorporated herein by
reference thereto).
10.5 Uni-Marts, Inc. Annual Bonus Plan (Filed as Exhibit 10.8 to the
Annual Report of Uni-Marts, Inc. on Form 10-K for the year ended
September 30, 1994 and incorporated herein by reference
thereto).
10.6 Uni-Marts, Inc. Performance Unit Plan (Filed as Exhibit 10.9 to
the Annual Report of Uni-Marts, Inc. on Form 10-K for the year
ended September 30, 1994 and incorporated herein by reference
thereto).
10.7 Composite copy of Change in Control Agreements between
Uni-Marts, Inc. and its executive officers (Filed as Exhibit
10.10 to the Annual Report of Uni-Marts, Inc. on Form 10-K for
the year ended September 30, 1994 and incorporated herein by
reference thereto).
10.8 Uni-Marts, Inc. 1996 Equity Compensation Plan (Filed as
Exhibit A to the Company's Definitive Proxy Statement for the
February 22, 1996 Annual Meeting of Stockholders and
incorporated herein by reference thereto).
10.9 Amended and Restated Note between Henry D. Sahakian and
Uni-Marts, Inc. dated January 7, 1998 (Filed as Exhibit 10.16 to
the Company's Annual Report on Form 10-K for the period ended
September 30, 1997 and incorporated herein by reference
thereto).
10.10 Loan Agreement between FFCA Acquisition Corporation and
Uni-Marts, Inc. dated June 30, 1998.
10.11 Revolving Loan Agreement between FFCA Acquisition Corporation
and Uni-Marts, Inc. dated June 30, 1998.
10.12 Property Loan Agreement between FFCA Acquisition Corporation
and Uni-Marts, Inc. dated June 30, 1998.
11 Statement regarding computation of per share earnings (loss).
27 Financial Data Schedule.
(b) REPORTS ON FORM 8-K
The Company did not file any reports on Form 8-K during the quarter
ended July 2, 1998.
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<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Uni-Marts, Inc.
-------------------------------------
(Registrant)
/S/ HENRY D. SAHAKIAN
Date August 14, 1998 -------------------------------------
----------------- Henry D. Sahakian
Chairman of the Board
(Principal Executive Officer)
/S/ J. KIRK GALLAHER
Date August 14, 1998 -------------------------------------
----------------- J. Kirk Gallaher
Executive Vice President, Director
and Chief Financial Officer
(Principal Accounting Officer)
(Principal Financial Officer)
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<PAGE> 18
UNI-MARTS, INC. AND SUBSIDIARY
EXHIBIT INDEX
Number Description Page(s)
10.10 Loan Agreement between FFCA Acquisition
Corporation and Uni-Marts, Inc. 19-47
10.11 Revolving Loan Agreement between FFCA
Acquisition Corporation and Uni-Marts, Inc. 48-75
10.12 Property Loan Agreement between FFCA
Acquisition Corporation and Uni-Marts, Inc. 76-96
11 Statement regarding computation of per
share earnings (loss). 97-98
27 Financial Data Schedule. 99
-18-
<PAGE> 19
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of June 30, 1998,
by and between FFCA ACQUISITION CORPORATION, a Delaware corporation
("FFCA"), whose address is 17207 North Perimeter Drive, Scottsdale,
Arizona 85255, and UNI-MARTS, INC., a Delaware corporation ("Debtor"),
whose address is 477 East Beaver Avenue, State College, Pennsylvania
16801-5690.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms used
in this Agreement shall have the meanings set forth in Section 1. Debtor
has requested from FFCA, and applied for, the Loans to provide long-term
financing for the Premises, and for no other purpose whatsoever.
Each Loan will be evidenced by a Note and secured by a first priority
security interest in the corresponding Premises pursuant to a Mortgage.
FFCA has committed to make the Loans pursuant to the terms and conditions
of the Commitment, this Agreement and the other Loan Documents.
AGREEMENT:
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. DEFINITIONS. The following terms shall have the following
meanings for all purposes of this Agreement:
"Action" has the meaning set forth in Section 10.A(4).
"Affiliate" means any Person which directly or indirectly controls,
is under common control with, or is controlled by any other Person. For
purposes of this definition, "controls", "under common control with" and
"controlled by" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies
of such Person or entity, whether through ownership of voting securities
or otherwise.
"Closing" shall have the meaning set forth in Section 4.
"Closing Date" shall have the meaning set forth in Section 4.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101
et seq., as amended.
"Commitment" means that certain Commitment Letter dated April 22,
1998, between FFCA and Debtor, and any amendments or supplements thereto.
"Counsel" means legal counsel to Debtor, licensed in the states in
which (i) the Premises are located, (ii) Debtor is incorporated and (iii)
Debtor maintains its principal place of business, as selected by Debtor
and approved by FFCA.
"Debtor Entities" means, collectively, Debtor and any Affiliate of
Debtor.
<PAGE> 20
"De Minimis Amounts" shall mean, with respect to any given level of
Hazardous Materials or Regulated Substances, that level or quantity of
Hazardous Materials or Regulated Substances in any form or combination of
forms which does not constitute a violation of any Environmental Laws and
is customarily employed in, or associated with, similar businesses
located in the states in which the Premises are located.
"Disclosures" has the meaning set forth in Section 14.P.
"Environmental Condition" means any condition with respect to soil,
surface waters, groundwaters, land, stream sediments, surface or
subsurface strata, ambient air and any environmental medium comprising or
surrounding the Premises, whether or not yet discovered, which could or
does result in any damage, loss, cost, expense, claim, demand, order or
liability to or against Debtor or FFCA by any third party (including,
without limitation, any Governmental Authority), including, without
limitation, any condition resulting from the operation of Debtor's
business, business at the Premises and/or the operation of the business
of any other property owner or operator in the vicinity of the Premises
and/or any activity or operation formerly conducted by any person or
entity on or off the Premises.
"Environmental Indemnity Agreement" or "Environmental Indemnity
Agreements" means, as the context may require, the environmental
indemnity agreement dated as of the date of this Agreement to be executed
by Debtor for the benefit of FFCA with respect to a Premises or the
environmental indemnity agreements dated as of the date of this Agreement
to be executed by Debtor for the benefit of FFCA with respect to all of
the Premises, as the same may be amended from time to time. An
Environmental Indemnity Agreement will be executed for each Premises.
"Environmental Insurer" means such environmental insurance company
as FFCA may 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, Regulated
Substances, USTs 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
2
<PAGE> 21
property upon a negative declaration or other approval of a Governmental
Authority with respect to Hazardous Materials, Regulated Substances and
USTs; requiring notification or disclosure of Releases or other
environmental condition of the Premises to any Governmental Authority or
other person or entity, whether or not in connection with transfer of
title to or interest in property; imposing conditions or requirements
relating to Hazardous Materials, Regulated Substances and USTs in
connection with permits or other authorization for lawful activity;
relating to nuisance, trespass or other causes of action related to
Hazardous Materials, Regulated Substances and USTs; and relating to
wrongful death, personal injury, or property or other damage in
connection with the physical condition or use of the Premises by reason
of the presence of Hazardous Materials, Regulated Substances and USTs in,
on, under or above the Premises.
"Environmental Policies" 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.
"FCCR Amount" has the meaning set forth in Section 10.A(6).
"Fee" means a commitment fee equal to 1.0% of the sum of the Loan
Amounts for all of the Premises, which Fee shall be payable as set forth
in Section 3.
"FFCA Entities" means, collectively, FFCA, Franchise Finance and any
Affiliate of FFCA or Franchise Finance.
"Franchise Finance" means Franchise Finance Corporation of America,
a Delaware corporation, and its successors.
"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.
"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.
3
<PAGE> 22
"Indemnified Parties" has the meaning set forth in Section 12.
"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 Agreements, the UCC-1 Financing
Statements, Related Loan Documents and all other documents executed in
connection therewith or contemplated thereby.
"Material Adverse Effect" means a material adverse effect on (i) the
business, condition, worth or operations of Debtor or any or all of the
Premises, including, without limitation, the operation of any of the
Premises as a Uni-Mart Facility and/or the value of any or all of the
Premises, or (ii) Debtor's ability to perform the obligations under the
Loan Documents.
"Modified FCCR Amount" has the meaning set forth in Section 10.A(6).
"Mortgage" or "Mortgages" means, as the context may require, the
deed of trust or mortgage dated as of the date of this Agreement to be
executed by Debtor for the benefit of FFCA with respect to a Premises or
the deeds of trust or mortgages dated as of the date of this Agreement to
be executed by Debtor for the benefit of FFCA with respect to all of the
Premises, as the same may be amended from time to time. A Mortgage will
be executed for each Premises.
"Note" or "Notes" means, as the context may require, the promissory
note dated as of the date of this Agreement to be executed by Debtor in
favor of FFCA with respect to a Premises or the promissory notes dated as
of the date of this Agreement to be executed by Debtor in favor of FFCA
with respect to all of the Premises, as the same may be amended from time
to time, including, without limitation, as a result of the payment of the
FCCR Amount or the Modified FCCR Amount pursuant to Section 10. A Note
will be executed for each Premises in the Loan Amount corresponding to
such Premises.
"Other Agreements" means, collectively, all agreements and
instruments between, among or by (1) any of the Debtor Entities, and, or
for the benefit of, (2) any of the FFCA Entities, including, without
limitation, promissory notes and guaranties but excluding the Loan
Documents.
"Participation" has the meaning set forth in Section 14.P.
"Permitted Exceptions" means those recorded easements, restrictions,
liens and encumbrances set forth as exceptions in the title insurance
policies issued by Title Company to FFCA and approved by FFCA in
connection with the Loans.
"Person" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental
Authority or any other form of entity.
4
<PAGE> 23
"Premises" means the parcel or parcels of real estate corresponding
to the FFCA File Numbers and addresses identified on Exhibit A attached
hereto, together with all rights, privileges and appurtenances associated
therewith and all buildings, improvements and fixtures now or hereafter
located thereon. As used herein, the term "Premises" shall mean either a
singular property or all of the properties collectively, as the context
may require.
"Questionnaires" means the environmental questionnaires completed by
Debtor with respect to the Premises and submitted to Environmental
Insurer in connection with the issuance of the Environmental Policies.
"Regulated Substances" means "petroleum" and "petroleum-based
substances" or any similar terms described or defined in any
Environmental Laws and any applicable federal, state, county or local
laws applicable to or regulating USTs.
"Related Loan Documents" means the Revolving Loan Agreement and Real
Property Loan Agreement of even date herewith from Debtor to FFCA and all
other documents executed or to be executed in connection therewith or
contemplated thereby.
"Release" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring,
emptying, escaping, dumping, disposing or other movement of Hazardous
Materials, Regulated Substances or USTs.
"Remediation" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or
otherwise remediate any Hazardous Material, Regulated Substances or USTs,
any actions to prevent, cure or mitigate any Release, any action to
comply with any Environmental Laws or with any permits issued pursuant
thereto, any inspection, investigation, study, monitoring, assessment,
audit, sampling and testing, laboratory or other analysis, or any
evaluation relating to any Hazardous Materials, Regulated Substances or
USTs.
"Securitization" has the meaning set forth in Section 14.P.
"Securitized Loan Pool" means any pool or group of loans that are a
part of any Securitization transaction.
"Substitute Premises" means one or more parcels of real property
substituted for a Premises in accordance with the requirements of Section
13, together with all rights, privileges and appurtenances associated
therewith, and all buildings, improvements and fixtures located
thereon. For purposes of clarity, where two or more parcels of real
property comprise a Substitute Premises, such parcels or interests shall
be aggregated and deemed to constitute the Substitute Premises for all
purposes of this Agreement.
"Threatened Release" means a substantial likelihood of a Release
which requires action to prevent or mitigate damage to the soil, surface
waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air or any other environmental medium comprising or
surrounding the Premises which may result from such Release.
5
<PAGE> 24
"Title Company" means the title insurance company described in
Section 4.
"Transfer" has the meaning set forth in Section 14.P.
"UCC-1 Financing Statements" means such UCC-1 Financing Statements
as FFCA shall require to be executed and delivered by Debtor with respect
to the transactions contemplated by this Agreement.
"Uni-Mart Facility" means: (i) with respect to those Premises listed
on Exhibit A-1, a Uni-Mart convenience store and gasoline station; (ii)
with respect to those Premises listed on Exhibit A-2, a Uni-Mart
convenience store; (iii) with respect to those Premises listed on Exhibit
A-3, a Choice Cigarette discount outlet and gasoline station; and (iv)
with respect to those Premises listed on Exhibit A-4, a Choice Cigarette
discount outlet.
"USTs" means any one or combination of tanks and associated piping
systems used in connection with the storage, dispensing and general use
of Regulated Substances.
2. TRANSACTION. On the terms and subject to the conditions set
forth in the Loan Documents, FFCA shall make the Loans. Each Loan will
be evidenced by a Note and secured by a Mortgage. Debtor shall repay the
outstanding principal amount of each Loan together with interest thereon
in the manner and in accordance with the terms and conditions of each
Note and the other Loan Documents. The aggregate Loan Amount of the
Loans shall be $36,000,000.00, allocated among the Premises as set forth
on the attached Exhibit A. Each Loan shall be advanced at the Closing in
cash or otherwise immediately available funds subject to any prorations
and adjustments required by this Agreement.
3. COMMITMENT FEE. Debtor paid FFCA a portion of the Fee pursuant
to the Commitment, and such portion was deemed fully earned when
received. The remainder of the Fee shall be paid at the Closing and
shall be deemed nonrefundable and fully earned upon the Closing. The
portion of the Fee paid and the balance due at Closing shall be adjusted
down (and returned or credited as appropriate) to reflect a Fee equal to
1% of the actual Loan Amounts approved. In the event the transaction set
forth in this Agreement fails to close due to a breach or default by
Debtor under this Agreement, FFCA shall retain the portion of the Fee
received by FFCA (without affecting or limiting FFCA's remedies set forth
in this Agreement).
4. CLOSING. (a) Each Loan shall be closed (the "Closing")
contemporaneously with the satisfaction of all of the terms and
conditions contained in this Agreement, but in no event shall the date of
the Closing be extended beyond June 30, 1998, unless such extension shall
be approved by FFCA in its sole discretion (the date on which the Closing
shall occur is referred to herein as the "Closing Date").
(b) FFCA has ordered a title insurance commitment for each Premises
from Lawyers Title Insurance Corporation ("Title Company"). Prior to the
Closing Date, the parties hereto shall deposit with Title Company all
documents and moneys necessary to comply with their obligations
under this Agreement. Title Company shall not cause the transaction to
close unless and until it has received written instructions from FFCA and
6
<PAGE> 25
Debtor to do so. All costs of such transaction shall be borne by Debtor,
including, without limitation, the cost of title insurance and
endorsements, survey charges, the attorneys' fees of Debtor, attorneys'
fees and expenses of FFCA, 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 fees, escrow and recording fees and site inspection fees for the
Premises. All real and personal property and other applicable taxes and
assessments and other charges relating to the Premises which are due and
payable on or prior to the Closing Date as well as taxes and assessments
due and payable subsequent to the Closing Date but which Title Company
requires to be paid at Closing as a condition to the issuance of the
title insurance policy described in Section 9.C, shall be paid by Debtor
at or prior to the Closing. The Closing documents shall be dated as
of the Closing Date.
Debtor and FFCA hereby employ Title Company to act as escrow agent
in connection with 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.
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5. REPRESENTATIONS AND WARRANTIES OF FFCA. The representations
and warranties of FFCA contained in this Section are being made by FFCA
as of the date of this Agreement and the Closing Date to induce Debtor to
enter into this Agreement and consummate the transactions contemplated
herein, and Debtor has relied, and will continue to rely, upon such
representations and warranties from and after the execution of this
Agreement and the Closing. FFCA represents and warrants to Debtor as
follows:
A. Organization of FFCA. FFCA has been duly formed, is
validly existing and has taken all necessary action to authorize the
execution, delivery and performance by FFCA of this Agreement.
B. Authority of FFCA. The person who has executed this
Agreement on behalf of FFCA is duly authorized so to do.
C. Enforceability. Upon execution by FFCA, this Agreement
shall constitute the legal, valid and binding obligation of FFCA,
enforceable against FFCA in accordance with its terms.
All representations and warranties of FFCA made in this Agreement
shall survive the Closing.
6. REPRESENTATIONS AND WARRANTIES OF DEBTOR. The representations
and warranties of Debtor contained in this Section are being made by
Debtor as of the date of this Agreement and the Closing Date to induce
FFCA to enter into this Agreement and consummate the transactions
contemplated herein, and FFCA has relied, and will continue to rely, upon
such representations and warranties from and after the execution of this
Agreement and the Closing. Debtor represents and warrants to FFCA as
follows:
A. Information and Financial Statements. Debtor has
delivered to FFCA financial statements (either audited financial
statements or, if Debtor does not have audited financial statements,
certified financial statements) and certain other information, 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. (1) Debtor is duly organized
or formed, validly existing and in good standing under the laws of
its state of incorporation or formation, and qualified as a foreign
corporation, partnership or limited liability company, as
applicable, to do business in any jurisdiction where such
qualification is required. All necessary corporate, partnership or
limited liability company action has been taken to authorize the
execution, delivery and performance of this Agreement and of the
other documents, instruments and agreements provided for herein.
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(2) The person(s) who have executed this Agreement on behalf
of Debtor are duly authorized so to do.
C. Enforceability of Documents. Upon execution by Debtor,
this Agreement and the other documents, instruments and agreements
to be executed in connection with this Agreement, shall constitute
the legal, valid and binding obligations of Debtor enforceable
against Debtor in accordance with their respective terms.
D. Litigation. There are no suits, actions, proceedings or
investigations pending or threatened against or involving Debtor or
the Premises before any arbitrator or Governmental Authority which
might reasonably result in any Material Adverse Effect.
E. Absence of Breaches or Defaults. Debtor is 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 is a party or by which
Debtor, the Premises or any of the property of Debtor is subject or
bound. The authorization, execution, delivery and performance of
this Agreement and the 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 to use the Premises solely for the operation of a Uni-Mart
Facility, and related ingress, egress and parking, and for no other
purposes. Each of the Premises is in compliance with all applicable
zoning requirements and the use of each of the Premises as a
Uni-Mart Facility does not constitute a nonconforming use under
applicable zoning requirements. 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.
H. Area Development; Wetlands. No condemnation or eminent
domain proceedings affecting the Premises have been commenced or, to
the best of Debtor's knowledge, are contemplated. To the best of
Debtor's knowledge, the areas where the Premises are located have
not been declared blighted by any Governmental Authority. The
Premises and/or the real property bordering the Premises are not
designated by any Governmental Authority as a wetlands.
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I. Licenses and Permits; Access. Debtor has all required
licenses and permits, both governmental and private, to use and
operate the Premises as a Uni-Mart Facility.
There are adequate rights of access to public roads and ways
available to the Premises to permit full utilization of the Premises
for their intended purposes and all such public roads and ways have
been completed and dedicated to public use.
J. Condition of Premises. The Premises are of good
workmanship and materials, fully equipped and operational, in good
condition and repair, free from structural defects, clean, orderly
and sanitary, safe, well-lit, landscaped, decorated, attractive and
well-maintained.
K. Environmental. Debtor is fully familiar with the present
use of the Premises, and, after due inquiry, Debtor has become
generally familiar with the prior uses of the Premises. Except as
disclosed in the Questionnaires, no Hazardous Materials or
Regulated Substances have been used, handled, manufactured,
generated, produced, stored, treated, processed, transferred or
disposed of at or on the Premises, except in De Minimis Amounts and
in compliance with all applicable Environmental Laws, except to
the extent such Hazardous Materials or Regulated Substances would
not have a Material Adverse Effect, and no Release or Threatened
Release has occurred at or on the Premises which would have a
Material Adverse Effect. Except as disclosed in the Questionnaires,
the activities, operations and business undertaken on, at or about
the Premises, including, but not limited to, any past or ongoing
alterations or improvements at the Premises, are and have been at
all times, in compliance with all Environmental Laws except where
such noncompliance would not have a Material Adverse Effect. No
further action is required to remedy any Environmental Condition or
violation of, or to be in full compliance with, any Environmental
Laws, and no lien has been imposed on the Premises by any
Governmental Authority in connection with any Environmental
Condition, the violation or threatened violation of any
Environmental Laws or the presence of any Hazardous Materials,
Regulated Substances or USTs on or off the Premises.
Except as disclosed in the Questionnaires, there is no pending
or threatened litigation or proceeding before any Governmental
Authority in which any person or entity alleges the violation or
threatened violation of any Environmental Laws or the presence,
Release, Threatened Release or placement on or at the Premises of
any Hazardous Materials, Regulated Substances or USTs, or of any
facts which would give rise to any such action, nor has Debtor,
except as disclosed in the Questionnaires, (a) received any notice
(and Debtor has no actual knowledge) that any Governmental Authority
or any employee or agent thereof has determined, threatens to
determine or requires an investigation to determine that there has
been a violation of any Environmental Laws at, on or in connection
with the Premises or that there exists a presence, Release,
Threatened Release or placement of any Hazardous Materials,
Regulated Substances or USTs on or at the Premises, or the use,
handling, manufacturing, generation, production, storage,
treatment, processing, transportation or disposal of any Hazardous
Materials, Regulated Substances or USTs at or on the Premises; (b)
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received any notice under the citizen suit provision of any
Environmental Law in connection with the Premises or any facilities,
operations or activities conducted thereon, or any business
conducted in connection therewith; or (c) received any request for
inspection, request for information, notice, demand, administrative
inquiry or any formal or informal complaint or claim with respect
to or in connection with the violation or threatened violation of
any Environmental Laws or existence of Hazardous Materials,
Regulated Substances or USTs relating to the Premises or any
facilities, operations or activities conducted thereon or any
business conducted in connection therewith.
The information and disclosures in the Questionnaires are 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. Title to Premises; First Priority Lien. Fee title to each
of the Premises is vested in Debtor, free and clear of all liens,
encumbrances, charges and security interests of any nature
whatsoever, except the Permitted Exceptions. Upon Closing, FFCA
shall have a first priority lien upon and security interest in each
of the Premises pursuant to the Mortgages and the UCC-1 Financing
Statements.
M. No Other Agreements and Options. Neither Debtor nor the
Premises are subject to any commitment, obligation, or agreement,
including, without limitation, any right of first refusal, option to
purchase or lease granted to a third party, which could or 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.
N. No Mechanics' Liens. There are no outstanding accounts
payable which if not paid timely would have a Material Adverse
Effect, 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; 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 the nonpayment of which would have a
Material Adverse Effect; and Debtor shall and does hereby agree to
defend, indemnify and forever hold FFCA and FFCA's designees
harmless from and against any and all such mechanics' lien claims,
accounts payable or other commitments relating to the Premises.
O. No Reliance. Debtor acknowledges that FFCA did not
prepare or assist in the preparation of any of the projected
financial information used by Debtor in analyzing the economic
viability and feasibility of the transaction contemplated by this
Agreement. Furthermore, Debtor acknowledges that it has not relied
upon, nor may it hereafter rely upon, the analysis undertaken by
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FFCA in determining the Loan Amounts, and such analysis will not be
made available to Debtor.
All representations and warranties of Debtor made in this
Agreement shall be and will remain true and complete as of and subsequent
to the Closing Date as if made and restated in full as of such time and
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 follows:
A. Inspections. Debtor shall, at all reasonable times, (i)
provide FFCA and FFCA's officers, employees, agents, advisors,
attorneys, accountants, architects, and engineers with access to the
Premises, all drawings, plans, and specifications for the
Premises in possession of Debtor, all engineering reports relating
to the Premises in the possession of Debtor, the files 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.
B. Fixed Charge Coverage Ratio. Until such time as all of
Debtor's obligations under the Notes and the other Loan Documents
are paid, satisfied and discharged in full, Debtor shall maintain an
aggregate Fixed Charge Coverage Ratio at all of the Premises of
at least 1.25:1, as determined on the last day of Debtor's fiscal
year (the "Date of Determination"). 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 (a "Period 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 (which shall equal the sum of 3% of
Gross Sales and 3% of Gross Gas Profits), to (b) the sum of the FFCA
Payments, Operating Lease Expense and the Equipment Payment Amount.
For purposes of this Section, the following terms shall be defined
as set forth below:
"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, and
(iv) 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 (iii) above.
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"Depreciation and Amortization" shall mean with respect to
all of the Premises the depreciation and amortization accruing
during any Period of Determination with respect to Debtor as
determined in accordance with 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
one or more of the Premises and (ii) all loans secured by
equipment located at one or more of the Premises.
"FFCA Payments" shall mean with respect to the Period of
Determination, the sum of all amounts payable under the Notes,
excluding payment of any FCCR Amount or Modified FFCR Amount
and any other non-scheduled payment required or permitted
hereunder.
"Gross Gas Profits" shall mean the difference between (I)
gasoline sales or other income arising from the sale of
gasoline at all of the Premises during the Period of
Determination, minus (ii) the sum of sales tax and the actual
costs paid by Debtor for the gasoline sold.
"Gross Sales" shall mean the difference between (i) sales
or other income arising from all business conducted at all of
the Premises (other than gasoline sales or other income arising
from the sale of gasoline) by Debtor during the Period of
Determination, minus (ii) the sum of sales tax and any amounts
received from not-for-profit sales of all non-food items
approved for use in connection with promotional campaigns, if
any, for all of the 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 Debtor allocable to one or
more of the Premises and all business operations thereon during
such Period of Determination, 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 Debtor allocable
to all of the Premises. In determining the amount of Net
Income, (i) adjustments shall be made for nonrecurring gains
and losses allocable to the Period of Determination, (ii)
deductions shall be made for, 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 Debtor under any operating leases, if any, with respect to
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one or more of the 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 right to divide
the Loans (and the corresponding Loan Documents) into no more than
three (3) Securitized Loan Pools in connection with no more than
three (3) Securitizations. If any Securitized Loan Pool does not
include all of the Loans, Debtor shall, upon notice from FFCA,
aintain with respect to each Securitized Loan Pool for which such
notice is given an aggregate Fixed Charge Coverage Ratio, as
determined on the date set forth above, of at least 1.25:1 for all
of the Premises corresponding to the Loans in such Securitized Loan
Pool, which Fixed Charge Coverage Ratio requirement shall be in
addition to the requirement to maintain an aggregate Fixed Charge
Coverage Ratio of at least 1:25:1 for all of the Premises as set
forth above, and shall apply until such time as all of the Debtor's
obligations under the Notes and the other Loan Documents
corresponding to such Loans are paid, satisfied and discharged in
full. To the extent that an aggregate Fixed Charge Coverage Ratio
requirement is imposed by FFCA with respect to the Loans in any
Securitized Loan Pool, for the purposes of determining whether or
not such Fixed Charge Coverage Ratio requirement has been satisfied,
the definitions relating to the Fixed Charge Coverage Ratio
shall be deemed to be modified as applicable to provide for the
calculation of the aggregate Fixed Charge Coverage Ratio for all of
the Premises corresponding to such Securitized Loan Pool rather than
a calculation of the Aggregate Fixed Charge Coverage Ratio for all
of the Premises.
C. Lost Note. Debtor shall, if any Note is mutilated,
destroyed, lost or stolen (a "Lost Note"), promptly deliver to FFCA,
upon receipt of an affidavit from FFCA stipulating that such Note
has been mutilated, destroyed, lost or stolen, in substitution
therefor, a new promissory note containing the same terms and
conditions as such Lost Note with a notation thereon of the unpaid
principal and accrued and unpaid interest. Debtor shall provide
fifteen (15) days' prior notice to FFCA before making any payments
to third parties in connection with a Lost Note. Except as a result
of the gross negligence or intentional misconduct of Debtor, FFCA
shall indemnify Debtor for all reasonable costs, expenses, damages,
claims and liabilities incurred by Debtor as the result of a Lost
Note.
D. Net Worth. At all times while the obligations of Debtor
to FFCA pursuant to this Agreement are outstanding, Debtor shall
maintain a net worth of at least $20,000,000.00, as determined in
accordance with generally accepted accounting principles
consistently applied.
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
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<PAGE> 33
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. Fee title to each of the Premises shall be vested
in Debtor, free of all liens, encumbrances, restrictions,
encroachments and easements, except the Permitted Exceptions and the
liens created by the Mortgages and the UCC-1 Financing Statements.
Upon Closing, FFCA will obtain a valid and perfected first priority
lien upon and security interest in each of the Premises.
B. Condition of Premises. FFCA shall have inspected and
approved the Premises, the Premises 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 fee title in
such Premises in Debtor, committing to insure FFCA's first priority
lien upon and security interest in such Premises subject only to
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 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. At Debtor's expense, FFCA shall have
received an Environmental Policy with respect to each of the
Premises, as required 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
use as a Uni-Mart Facility and that such use constitutes a legal,
conforming use under applicable zoning requirements.
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G. Compliance With Representations, Warranties and Covenants.
All obligations of Debtor under this Agreement shall have been fully
performed and complied with, and no event shall have occurred or
condition shall exist which would, upon the Closing Date, or, upon
the giving of notice and/or passage of time, constitute a breach or
default hereunder or under the Loan Documents or any other agreement
between FFCA and Debtor pertaining to the subject matter hereof, and
no event shall have occurred or condition shall exist or information
shall have been disclosed by Debtor or discovered by FFCA which has
had or would have a material adverse effect on the Premises, Debtor
or FFCA's willingness to consummate the transaction contemplated by
this Agreement, as determined by FFCA in its sole and absolute
discretion.
H. Proof of Insurance. Debtor shall have delivered to FFCA
certificates of insurance or 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. Opinions of Counsel to Debtor. Debtor shall have caused
Counsel to prepare and deliver one or more opinions to FFCA in form
and substance satisfactory to FFCA and its counsel.
J. Availability of Funds. FFCA presently has sufficient
funds to discharge its obligations under this Agreement. In the
event that the transaction contemplated by this Agreement does not
close on or before the date established for Closing under Section
4(a) hereof, FFCA does not warrant that it will thereafter have
sufficient funds to consummate the transaction contemplated by this
Agreement.
K. Closing Documents. At or prior to the Closing Date, FFCA
and/or Debtor, as may be appropriate, shall execute and deliver or
cause to be executed and delivered to Title Company or FFCA, as may
be appropriate, all documents required to be delivered by this
Agreement, and such other documents, payments, instruments and
certificates, as FFCA may require in form acceptable to FFCA,
including, without limitation, the following:
(1) Notes;
(2) Mortgages;
(3) Proof of Insurance;
(4) Opinions of Counsel to Debtor;
(5) Evidence of satisfactory zoning;
(6) UCC-1 Financing Statements;
(7) Environmental Indemnity Agreements; and
(8) Certifications (Confessions of Judgment), as
appropriate.
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"):
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(1) If any representation or warranty of Debtor set forth in
any of the Loan Documents is false in any respect and such falsity
would result in a Material Adverse Effect, or if Debtor renders any
false statement or account in any material respect.
(2) If any principal, interest or other monetary sum due under
the Notes, the Mortgages or any other Loan Document is not paid
within five days after the date when due; provided, however,
notwithstanding the occurrence of such an Event of Default,
FFCA shall not be entitled to exercise its rights and remedies set
forth below unless and until FFCA shall have given Debtor notice
thereof and a period of five days from the delivery of such notice
shall have elapsed without such Event of Default being cured.
(3) If Debtor fails to observe or perform any of the other
covenants (except with respect to a breach of the Fixed Charge
Coverage Ratio, which breach is addressed in subitem (6) below),
conditions, or obligations of this Agreement; provided, however, if
any such failure does not involve the payment of any monetary sum,
is not willful or intentional, does not place any rights or property
of FFCA in immediate jeopardy, and is within the reasonable power of
Debtor to promptly cure after receipt of notice thereof, all
as determined by FFCA in its reasonable discretion, then such
failure shall not constitute an Event of Default hereunder, unless
otherwise expressly provided herein, unless and until FFCA shall
have given Debtor notice thereof and a period of 30 days shall have
elapsed, during which period Debtor may correct or cure such
failure, upon failure of which an Event of Default shall be deemed
to have occurred hereunder without further notice or demand of any
kind being required. If such failure cannot reasonably be cured
within such 30-day period, as determined by FFCA in its reasonable
discretion, and Debtor is diligently pursuing a cure of such
failure, then Debtor shall have a reasonable period to cure such
failure beyond such 30-day period, which shall not exceed 90 days
after receiving notice of the failure from FFCA. If Debtor shall
fail to correct or cure such failure within such 90-day period, an
Event of Default shall be deemed to have occurred hereunder without
further notice or demand of any kind being required.
(4) If Debtor becomes insolvent within the meaning of the
Code, files or notifies Mortgagee 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, hereinafter, an
"Action"), is not generally paying its debts as the same become due
or if Debtor becomes the subject of an involuntary petition under
the Code or other similar involuntary Action (in which case
Debtor shall be required to provide the Mortgagee with immediate
notice of the commencement or filing of such involuntary petition or
Action), and any of the following shall have occurred: (i) the
involuntary petition or involuntary Action shall not have been
dismissed within 60 days of the date on which it was filed or
otherwise commenced, (ii) an order for relief under the Code (or
similar order) shall have been entered by the court in the
involuntary proceeding or involuntary Action, or (iii) the court
having jurisdiction over such involuntary proceeding or involuntary
Action (upon motion or other request for relief by the party against
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whom the involuntary petition or involuntary Action was filed or
otherwise commenced) shall not have granted Mortgagee full and final
relief from the automatic stay of Section 362 of the Code and from
any stay issued under Section 105 of the Code (or any similar stays
or injunctions) within 30 days of the filing or commencement of such
involuntary petition or involuntary Action so that Mortgagee is
thereafter free to exercise any and all of its rights and remedies
under the Loan Documents;
(5) If there is an "Event of Default" under any other Loan
Document or a breach or default, after the passage of all applicable
notice and cure or grace periods, under any of the Other Agreements.
(6) If there is a breach of the Fixed Charge Coverage Ratio
requirement and FFCA shall have given Debtor notice thereof and
Debtor shall have failed within a period of 30 days from the
delivery of such notice (the "Cure Period") to:
(i) pay to FFCA the FCCR Amount (without premium or
penalty) with respect to such of the Premises (starting with
the Premises with the lowest Fixed Charge Coverage Ratio and
proceeding in ascending order to the Premises with the next
lowest Fixed Charge Coverage Ratio) as is necessary to cure the
breach of the Fixed Charge Coverage Ratio requirement and for
which the then Fixed Charge Coverage Ratio (with the
definitions in Section 7.B being deemed to be modified as
applicable to provide for the calculation of the Fixed Charge
Coverage Ratio for each such Premises on an individual basis
rather than on an aggregate basis with the other Premises) is
below 1.25:1 (each, a "Subject Premises"). 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 over the remaining
term of such Note, will result in an adjusted aggregate Fixed
Charge Coverage Ratio for all of the Premises of at least
1.25:1 based on the prior year's operations. Promptly after
Debtor's payment of the FCCR Amount, Debtor and FFCA 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;
(ii) prepay only the Note or Notes, in whole but not in
part (without premium or penalty), corresponding to the
Premises with the lowest Fixed Change Coverage Ratio and
proceeding in ascending order to the Premises with the next
lowest Fixed Charge Coverage Ratio (with the definitions
relative to Fixed Charge Coverage Ratio being deemed to be
modified as applicable to provide for the calculation of the
Fixed Charge Coverage Ratio for each such Premises on an
individual basis rather than an aggregate basis) as is
necessary to cure such breach of the Fixed Charge Coverage
Ratio requirement; or
(iii) substitute a Substitute Premises in accordance
with the terms of Section 13 for each Premises with the lowest
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<PAGE> 37
Fixed Charge Coverage Ratio and proceeding in descending order
to the Premises with the next lowest Fixed Charge Coverage
Ratio (with the definitions relating to Fixed Charge Coverage
Ratio being deemed to be modified as applicable to provide for
the calculation of the Fixed Charge Coverage Ratio for each
such Premises on an individual rather than an aggregate basis)
as is necessary to cure the breach of the Fixed Charge
Coverage Ratio requirement.
Notwithstanding the foregoing, to the extent that, in
accordance with the provisions of Section 7.B, FFCA shall have
imposed an aggregate Fixed Charge Coverage Ratio requirement with
respect to all of the Premises corresponding to the Loans in any
Securitized Loan Pool, then, in order to prevent an Event of Default
from occurring by reason of a breach of such aggregate Fixed Charge
Coverage Ratio, Debtor, within the Cure Period, must either:
(i) pay to FFCA the Modified FCCR Amount (without premium
or penalty) with respect to such of the Premises corresponding
to the Loans in such Securitized Loan Pool (starting with the
Premises with the lowest Fixed Charge Coverage Ratio and
proceeding in ascending order to the Premises with the next
lowest Fixed Charge Coverage Ratio) as is necessary to cure the
breach of such aggregate Fixed Charge Coverage Ratio
requirement and for which the then Fixed Charge Coverage Ratio
(with the definitions relating to the Fixed Charge Coverage
Ratio being deemed to be modified as applicable to provide for
the calculation of the Fixed Charge Coverage Ratio for each
such Premises on an individual basis rather than on an
aggregate basis with the other Premises corresponding to the
other Loans in such Securitized Loan Pool) is below 1.25:1
(each a "Selected Premises"). For purposes of the preceding
sentence, "Modified FCCR Amount" means that sum of money which,
when subtracted from the outstanding principal amount of the
Note corresponding to a Selected Premises (to the extent
applicable), and assuming the resulting principal balance is
reamortized over the remaining term of such Note, will result
in an adjusted aggregate Fixed Charge Coverage Ratio for all of
the Premises corresponding to the Loans in such Securitized
Loan Pool of at least 1.25:1 based on the prior year's
operations. Promptly after Debtor's payment of the Modified
FCCR Amount, Debtor and FFCA 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;
(ii) prepay only the Note or Notes, in whole but not in
part (without premium or penalty), corresponding to the
Premises with the lowest Fixed Change Coverage Ratio and
proceeding in ascending order to the Premises with the next
lowest Fixed Charge Coverage Ratio (with the definitions
relative to Fixed Charge Coverage Ratio being deemed to be
modified as applicable to provide for the calculation of the
Fixed Charge Coverage Ratio for each such Premises on an
individual basis rather than an aggregate basis with the other
Premises corresponding to the Loans in such Securitized Loan
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<PAGE> 38
Pool) as is necessary to cure such breach of the Fixed Charge
Coverage Ratio requirement for all of the Premises
corresponding to the Loans in such Securitized Loan Pool; or
(iii) substitute a Substitute Premises in accordance
with the terms of Section 13 for each Premises with the lowest
Fixed Charge Coverage Ratio and proceeding in descending order
to the Premises with the next lowest Fixed Charge Coverage
Ratio (with the definitions relating to Fixed Charge Coverage
Ratio being deemed to be modified as applicable to provide for
the calculation of the Fixed Charge Coverage Ratio for each
such Premises on an individual rather than an aggregate basis
with the other Premises corresponding to the Loans in such
Securitized Loan Pool) as is necessary to cure the breach of
the Fixed Charge Coverage Ratio requirement for all of the
Premises corresponding to the Loans in such Securitized Loan
Pool.
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, except as
otherwise provided herein or prohibited by applicable law, Debtor hereby
waives notice of intent to accelerate the obligations secured by the
Mortgages and notice of acceleration. Thereafter, FFCA may exercise, at
its option, concurrently, successively or in any combination, all
remedies available at law or in equity, including without limitation any
one or more of the remedies available under the Notes, the Mortgages or
any other Loan Document. Neither the acceptance of this Agreement nor
its enforcement shall prejudice or in any manner affect FFCA's right to
realize upon or enforce any other security now or hereafter held by FFCA,
it being agreed that FFCA shall be entitled to enforce this Agreement and
any other security now or hereafter held by FFCA in such order and
manner as it may in its absolute discretion determine. No remedy herein
conferred upon or reserved to FFCA is intended to be exclusive of any
other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the Loan
Documents to FFCA, or to which FFCA may be otherwise entitled, may be
exercised, concurrently or independently, from time to time and as often
as may be deemed expedient by FFCA.
11. ASSIGNMENTS. A. FFCA may assign in whole or in part its
rights under this Agreement, including, without limitation, in connection
with any Transfer, Participation and/or Securitization. Upon any
unconditional assignment of FFCA's entire right and interest hereunder,
FFCA shall automatically be relieved, from and after the date of such
assignment, of liability for the performance of any obligation of FFCA
contained herein.
B. Debtor shall not, without the prior written consent of FFCA,
sell, assign, transfer, mortgage, convey, encumber or grant any easements
or other rights or interests of any kind in the Premises, any of Debtor's
rights under this Agreement or any interest in Debtor, whether
voluntarily, involuntarily or by operation of law or otherwise,
including, without limitation, by merger, consolidation, dissolution or
20
<PAGE> 39
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,
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.
13. SUBSTITUTION. Debtor shall have the right to obtain a release
of a Premises by substituting a Substitute Premises for such Premises if
(a) permitted by the terms of Section 10.A(6), (b) subject to the
limitation set forth in subitem (xii) of this Section 13, Debtor
concludes, in Debtor's reasonable judgment, that it would be in Debtor's
best interest to cease business operations at such Premises based upon
unacceptable and substandard operating performance of such Premises or,
(c) subject to the limitation set forth in subitem (xii) of this
Section 13, such Premises is damaged or destroyed and Debtor concludes,
in Debtor's reasonable judgment, that it would be in its best interest
not to repair or restore such Premises based upon unacceptable
performance of such Premises, in all cases subject to fulfillment of the
following conditions:
(i) With respect to a substitution permitted by the terms of
Section 10.A(6), Debtor shall provide FFCA with notice of its
intention to substitute a Substitute Premises within the applicable
time period contemplated by such section and the closing of the
substitution shall take place within the period contemplated by such
section. With respect to a substitution pursuant to clauses (b) and
(c), above, of this Section 13, Debtor shall provide FFCA with
notice of its intention to substitute a Substitute Premises within
10 days after Debtor decides to proceed with such substitution and
the closing of such substitution shall take place within the 30 day
period immediately following delivery of such notice.
(ii) Debtor must provide for the substitution of a Substitute
Premises, and the proposed Substitute Premises must:
(1) be a Uni-Mart Facility, in good condition and
repair, ordinary wear and tear excepted;
(2) have for the twelve month period preceding the
date of the closing of such substitution a Fixed Charge
Coverage Ratio (with the definitions of Section 7.B being
deemed to be modified if necessary and as applicable to provide
for a calculation of the Fixed Charge Coverage Ratio for each
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<PAGE> 40
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 and
the substitution must not cause a breach of any Fixed Charge
Coverage Ratio requirement otherwise set forth in this
Agreement;
(3) be owned by and vested in Debtor, free and clear
of all liens and encumbrances, except such matters as are
acceptable to FFCA (the "Substitute Premises Permitted
Exceptions"); and
(4) have a fair market value no less than the
greater of the then fair market value of the Premises to be
replaced or the fair market value of such Premises as of the
Closing, all as reasonably determined by FFCA's in-house
inspectors and underwriters.
(iii) FFCA shall have inspected and approved the Substitute
Premises utilizing FFCA customary site inspection and underwriting
approval criteria. Debtor shall have reimbursed FFCA for all of its
costs and expenses incurred with respect to such proposed
substitution, including, without limitation, FFCA's third-party
and/or in-house site inspectors' costs and expenses with respect to
the proposed Substitute Premises. Debtor shall be solely responsible
for the payment of all costs and expenses resulting from such
proposed substitution, including, without limitation, the cost of
title insurance and endorsements, survey charges, stamp taxes,
mortgage taxes, transfer fees, escrow and recording fees, the cost
of environmental reports and the attorneys' fees and expenses of
counsel to Debtor and FFCA.
(iv) FFCA shall have received a preliminary title report and
irrevocable commitment to insure title by means of a 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 good and
marketable title in Debtor and committing to insure FFCA'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 FFCA at the Closing.
(v) FFCA shall have received a current ALTA survey of such
proposed Substitute Premises, the form of which shall be comparable
to those received by FFCA at the Closing and sufficient to cause the
standard survey exceptions set forth in the title policy referred to
in the preceding subsection to be deleted.
(vi) FFCA shall have received an Environmental Policy with
respect to the Substitute Premises as is acceptable to FFCA in its
sole discretion.
(vii) Debtor shall deliver, or cause to be delivered, with
respect to Debtor and the Substitute Premises, opinions of Counsel
in form and substance comparable to those received at Closing (but
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<PAGE> 41
also addressing such matters unique to the Substitute Premises as
may be reasonably required by FFCA).
(viii) no Event of Default (other than the breach of the
Fixed Charge Coverage Ratio covenant set forth in Section 7.B in the
case of a substitution pursuant to clause (a)above, of this Section
13) shall have occurred under any of the Loan Documents.
(ix) Debtor shall have executed such documents as are
comparable to the security documents executed and delivered at
Closing, as applicable (but with such revisions as may be reasonably
required by FFCA to address matters unique to the Substitute
Premises) or amendments to such documents, including, without
limitation, a Mortgage and UCC-1 Financing Statements (the
"Substitute Documents"), to provide FFCA with a first priority lien
on the proposed Substitute Premises (or with respect to proposed
Substitute Premises subject to ground leases, a first priority lien
on the improvements located at such proposed Substitute Premises and
Debtor's leasehold interest in the land thereunder), subject only to
the Substitute Premises Permitted Exceptions, and all other rights,
remedies and benefits with respect to the proposed Substitute
Premises which FFCA holds in the Premises to be replaced, all of
which documents shall be in form and substance reasonably
satisfactory to FFCA.
(x) the representations and warranties set forth in the
Substitute Documents and Section 6 of this Agreement applicable to
the proposed Substitute Premises shall be true and correct in all
material respects as of the date of substitution, and Debtor shall
have delivered to FFCA an officer's certificate certifying to that
effect.
(xi) Debtor shall have delivered to FFCA certificates of
insurance showing that insurance required by the Substitute
Documents is in full force and effect.
(xii) Debtor may not substitute Substitute Premises for more
than 22 Premises, in the aggregate, as a result of the exercise by
Debtor of its rights under clauses (b) and above, of this Section
13.
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 Premises to be replaced;
(b) the Loan Amount for the Substitute Premises shall be the
same as for the replaced Premises;
(c) the Substitute Premises shall be referred to herein as a
"Premises" and included within the definition of "Premises" and
shall secure the same Obligations (as defined in the Mortgages) as
were secured by the Premises that were replaced;
(d) the Substitute Documents shall be dated as of the date of
the substitution; and
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<PAGE> 42
(e) FFCA 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.
14. Miscellaneous Provisions.
A. Notices. All notices, consents, approvals or other
instruments required or permitted to be given by either party
pursuant to this Agreement shall be in writing and given by (i) hand
delivery, (ii) facsimile, (iii) express overnight delivery service
or (iv) certified or registered mail, return receipt requested, and
shall be deemed to have been delivered upon (a) receipt, if hand
delivered, (b) transmission, if delivered by facsimile, 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: J. Kirk Gallaher
Executive Vice President
and Chief Financial Officer
Uni-Marts, Inc.
477 East Beaver Avenue
State College, PA 16801-5690
Telephone: 814-234-6000
Telecopy: 814-234-3277
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.
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<PAGE> 43
E. Intentionally Omitted.
F. Severability. The provisions of this Agreement shall be
deemed severable. If any part of this Agreement shall be held
unenforceable, the remainder shall remain in full force and effect,
and such unenforceable provision shall be reformed by such court so
as to give maximum legal effect to the intention of the parties as
expressed therein.
G. Construction Generally. This is an agreement between
parties who are experienced in sophisticated and complex matters
similar to the transaction contemplated by this Agreement and is
entered into by both parties in reliance upon the economic and
legal bargains contained herein and shall be interpreted and
construed in a fair and impartial manner without regard to such
factors as the party which prepared the instrument, the relative
bargaining powers of the parties or the domicile of any party.
Debtor and FFCA were each represented by legal counsel competent in
advising them of their obligations and liabilities hereunder.
H. Other Documents. Each of the parties agrees to sign such
other and further documents as may be appropriate to carry out the
intentions expressed in this Agreement.
I. Attorneys' Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this
Agreement, the prevailing party shall be entitled to recover its
attorneys' fees and other costs in addition to any other relief to
which it may be entitled. References in this Agreement to the
attorneys' fees and/or costs of FFCA shall mean both the fees and
costs of independent outside counsel retained by FFCA with respect
to this transaction and the fees and costs of FFCA's in-house
counsel incurred in connection with this transaction.
J. Entire Agreement. This Agreement and the other Loan
Documents, together with any other certificates, instruments or
agreements to be delivered in connection therewith, constitute the
entire agreement between the parties with respect to the subject
matter hereof, and there are no other representations, warranties or
agreements, written or oral, between Debtor and FFCA with respect to
the subject matter of this Agreement. Notwithstanding anything in
this Agreement to the contrary, upon the execution and delivery of
this Agreement by Debtor and FFCA, the Commitment shall be deemed
null and void and of no further force and effect and the terms and
conditions of this Agreement shall control notwithstanding that such
terms may be inconsistent with or vary from those set forth in the
Commitment.
K. Forum Selection; Jurisdiction; Venue; Choice of Law.
Debtor acknowledges that this Agreement was substantially negotiated
in the State of Arizona, the Agreement was signed by FFCA in the
State of Arizona and delivered by Debtor in the State of Arizona,
all payments under the Notes will be delivered in the State of
Arizona and there are substantial contacts between the parties and
the transactions contemplated herein and the State of Arizona. For
purposes of any action or proceeding arising out of this Agreement,
the parties hereto hereby expressly submit to the jurisdiction of
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<PAGE> 44
all federal and state courts located in the State of Arizona and
Debtor consents that it may be served with any process or paper by
registered mail or by personal service within or without the
State of Arizona in accordance with applicable law. Furthermore,
Debtor waives and agrees not to assert in any such action, suit or
proceeding that it is not personally subject to the jurisdiction of
such courts, that the action, suit or proceeding is brought in an
inconvenient forum or that venue of the action, suit or proceeding
is improper. It is the intent of the parties hereto that all
provisions of this Agreement shall be governed by and construed
under the laws of the State of Arizona. To the extent that a court
of competent jurisdiction finds Arizona law inapplicable with
respect to any provisions hereof, then, as to those provisions only,
the laws of the states where the Premises are located shall be
deemed to apply. Nothing in this Section shall limit or restrict
the right of FFCA to commence any proceeding in the federal or state
courts located in the states in which the Premises are located to
the extent FFCA deems such proceeding necessary or advisable to
exercise remedies available under this Agreement or the other Loan
Documents.
L. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of Debtor and FFCA and their respective
successors and permitted assigns, including, without limitation, any
United States trustee, any debtor in possession or any trustee
appointed from a private panel.
N. Survival. Except for the conditions of Closing set forth
in Section 9, which shall be satisfied or waived as of the Closing
Date, all representations, warranties, agreements, obligations and
indemnities of Debtor and FFCA set forth in this Agreement shall
survive the Closing.
O. Waiver of Jury Trial and Punitive, Consequential, Special
and Indirect Damages. DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY
JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THIS WAIVER BY THE
PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS
BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
FURTHERMORE, DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO SEEK PUNITIVE,
CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE OTHER WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY IT 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. THE WAIVER BY DEBTOR AND FFCA OF ANY RIGHT THEY
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT
DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN.
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<PAGE> 45
P. Transfers, Participations and Securitization. (1) A
material inducement to FFCA's willingness to complete the
transactions contemplated by the Loan Documents is Debtor's
agreement that FFCA may, at any time, sell, transfer or assign any
Note, Mortgage and 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 asset
securitization 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").
(2) 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 be required with respect
to Debtor by a purchaser, transferee, assignee, servicer,
participant, investor or rating agency involved with respect to such
Transfer, Participation and/or the Securitization, as applicable;
provided, however, Debtor shall not be required to make Disclosures
of any confidential information or any information which has not
previously been made public unless required by applicable federal or
state securities laws; and (ii) amending the terms of the
transactions evidenced by the Loan Documents to the extent necessary
so as to satisfy the requirements of purchasers, transferees,
assignees, servicers, participants, investors or selected rating
agencies involved in any such Transfers, Participations or
Securitization, so long as such amendments would not have a material
adverse effect upon Debtor or the transactions contemplated
hereunder.
(3) Debtor consents to FFCA providing the Disclosures, as well
as any other information which FFCA may now have or hereafter
acquire with respect to the Premises or the financial condition of
Debtor to each purchaser, transferee, assignee, servicer,
participant, investor or rating agency involved with respect to each
Transfer, Participation and/or Securitization, as applicable. FFCA
and Debtor (and their respective Affiliates) shall each pay their
own attorneys fees and other out-of-pocket expenses incurred in
connection with the performance of their respective obligations
under this Section.
(4) Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents, from and after the Closing of
a Securitization with respect to some or all of the Loans or 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 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 Loan Document or Other Agreement which relates to a loan
which has been the subject of a Securitization;
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<PAGE> 46
(b) a breach or default, after the passage of all
applicable notice and cure or grace periods, under any Loan
Document or Other Agreement which relates to a loan which has
been the subject of a Securitization transaction shall not
constitute an Event of Default under any 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 the Loans in
any Securitized Loan Pool shall not secure the obligations of
Debtor and/or its Affiliates 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 Debtor and/or its Affiliates
contained in any Loan Document or Other Agreement which does
correspond to a loan in such Securitized Loan Pool.
Q. Pennsylvania Non-Cross-Collateralization. Notwithstanding
anything to the contrary contained in this Agreement or the other
Loan Documents, the Loan Documents corresponding to each Loan
secured by Premises located in the Commonwealth of Pennsylvania
shall not secure the obligations of Debtor and/or the Affiliates
contained in any other Loan Documents or Other Agreements.
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 E. WOOD
--------------------------------
Mark E. Wood
Vice President
DEBTOR:
UNI-MARTS, INC., a Delaware
corporation
By /S/ J. KIRK GALLAHER
--------------------------------
J. Kirk Gallaher
Executive Vice President and
Chief Financial Officer
28
<PAGE> 47
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 29,
1998 by Mark E. Wood, Vice President of FFCA Acquisition Corporation, a
Delaware corporation, on behalf of the corporation.
/S/ DEBBIE L. SUMAN
-------------------------------
Notary Public
My Commission Expires: Official Seal
5-5-2005 DEBBIE L. SUMAN
- ---------------------------- Notary Public State of Arizona
MARICOPA COUNTY
My Comm. Expires May 5, 2005
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 29, 1998
by J. Kirk Gallaher, Executive Vice President and Chief Financial
Officer, of Uni-Marts, Inc., a Delaware corporation, on behalf of the
corporation.
/S/ DEBBIE L. SUMAN
-------------------------------
Notary Public
My Commission Expires: Official Seal
5-5-2005 DEBBIE L. SUMAN
- ---------------------------- Notary Public State of Arizona
MARICOPA COUNTY
My Comm. Expires May 5, 2005
29
<PAGE> 48
REVOLVING LOAN AGREEMENT
THIS REVOLVING LOAN AGREEMENT (this "Agreement") is made as of June
30, 1998 by and between FFCA ACQUISITION CORPORATION, a Delaware
corporation ("FFCA"), whose address is 17207 North Perimeter Drive,
Scottsdale, Arizona 85255, and UNI-MARTS, INC., a Delaware corporation
("Debtor"), whose address is 477 East Beaver Avenue, State College,
Pennsylvania 16801-5690.
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. The Loans and the
Letter of Credit Amount will be evidenced by the Notes 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 11.A(4).
"Advance" or "Advances" means, as the context may require, any
advance of the proceeds of the Loans, or all Advances made by FFCA
pursuant to the terms of Section 2.
"Affiliate" means any Person which directly or indirectly controls,
is under common control with, or is controlled by any other Person. For
purposes of this definition, "controls", "under common control with" and
"controlled by" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
such Person or entity, whether through ownership of voting securities or
otherwise.
"Business Day" means a day on which banks located in Phoenix,
Arizona are not required or authorized to remain closed.
"Closing" shall have the meaning set forth in Section 5.
"Closing Date" shall have the meaning set forth in Section 5.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101
et seq., as amended.
<PAGE> 49
"Commitment" means that certain Commitment Letter dated April 22,
1998 between FFCA and Debtor, and any amendments or supplements thereto.
"Counsel" means legal counsel to Debtor, licensed in the states in
which (i) the Premises are located, (ii) Debtor is incorporated, and
(iii) Debtor maintains its principal place of business, as selected by
Debtor and approved by FFCA.
"Debtor Entities" means, collectively, Debtor and any Affiliate of
Debtor.
"De Minimis Amounts" shall mean, with respect to any given level of
Hazardous Materials or Regulated Substances, that level or quantity of
Hazardous Materials or Regulated Substances in any form or combination of
forms which does not constitute a violation of any Environmental Laws and
is customarily employed in, or associated with, similar businesses
located in the states in which the Premises are located.
"Disclosures" has the meaning set forth in Section 14.P.
"Environmental Condition" means any condition with respect to soil,
surface waters, groundwaters, land, stream sediments, surface or
subsurface strata, ambient air and any environmental medium comprising or
surrounding the Premises, whether or not yet discovered, which could or
does result in any damage, loss, cost, expense, claim, demand, order or
liability to or against Debtor or FFCA by any third party (including,
without limitation, any Governmental Authority), including, without
limitation, any condition resulting from the operation of Debtor's
business, business at the Premises and/or the operation of the business
of any other property owner or operator in the vicinity of the Premises
and/or any activity or operation formerly conducted by any person or
entity on or off the Premises.
"Environmental Indemnity Agreement" or "Environmental Indemnity
Agreements" means, as the context may require, the environmental
indemnity agreement dated as of the date of this Agreement to be executed
by Debtor for the benefit of FFCA with respect to a Premises or the
environmental indemnity agreements dated as of the date of this Agreement
to be executed by Debtor for the benefit of FFCA with respect to all of
the Premises, as the same may be amended from time to time. An
Environmental Indemnity Agreement will be executed for each Premises.
"Environmental Insurer" means such environmental insurance company
as FFCA may 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, Regulated
Substances, USTs 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
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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, Regulated Substances and
USTs; requiring notification or disclosure of Releases or other
environmental condition of the Premises to any Governmental Authority or
other person or entity, whether or not in connection with transfer of
title to or interest in property; imposing conditions or requirements
relating to Hazardous Materials, Regulated Substances and USTs in
connection with permits or other authorization for lawful activity;
relating to nuisance, trespass or other causes of action related to
Hazardous Materials, Regulated Substances and USTs; and relating to
wrongful death, personal injury, or property or other damage in
connection with the physical condition or use of the Premises by reason
of the presence of Hazardous Materials, Regulated Substances and USTs in,
on, under or above the Premises.
"Environmental Policies" 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 11.
"Fee" means a commitment fee equal to $30,000.00, which represents
1.0% of the Maximum Loan Amount, which Fee shall be payable as set forth
in Section 4.
"FFCA Entities" means, collectively, FFCA, Franchise Finance and any
Affiliate of FFCA or Franchise Finance.
"Franchise Finance" means Franchise Finance Corporation of America,
a Delaware corporation, and its successors.
"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.
"Hazardous Materials" means (i) any toxic substance or hazardous
waste, substance, solid waste or related material, or any pollutant or
contaminant; (ii) 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; (iii)
any substance, gas, material or chemical which is or may be defined as or
included in the definition of "hazardous substances," "toxic substances,"
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"hazardous materials," hazardous wastes" or words of similar import under
any Environmental Laws; and (iv) 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 13.
"Letters of Credit" means those certain standby letters of credit to
be issued as of the Closing Date by the Letter of Credit Provider
pursuant to the Letter of Credit Documents in the Letter of Credit Amount
for a period of one year.
"Letter of Credit Amount" means the aggregate amount of
$2,700,000.00, which shall be allocated to each Premises in accordance
with its Premises Percentage.
"Letter of Credit Documents" means that certain Application and
Agreement for Standby Letter of Credit dated on or about the date first
above written executed by FFCA and Debtor and delivered to the Letter of
Credit Provider, all other documents executed in connection therewith
or contemplated thereby, and all amendments and modifications to and
renewals of such documents.
"Letter of Credit Fee" means a letter of credit fee equal to 4% of
the Letter of Credit Amount, which Letter of Credit Fee shall be payable
on the Closing Date as contemplated by Section 3.D of this Agreement.
"Letter of Credit Obligations" has the meaning set forth in Section
3 of this Agreement.
"Letter of Credit Provider" means the banking subsidiary of
NationsBank Corporation that issues the Letters of Credit.
"Loan" or "Loans" means, as the context may require, the revolving
line of credit loan for each Premises, or the revolving line of credit
loans for all of the Premises, as described in Section 2.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Mortgages, the Related Loan Documents, the Environmental Indemnity
Agreements, 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) the
business, condition, worth or operations of Debtor or any or all of the
Premises, including, without limitation, the operation of any of the
Premises as a Uni-Mart Facility and/or the value of any or all of the
Premises, or (ii) Debtor's ability to perform the obligations under the
Loan Documents.
"Maturity Date" shall have the meaning set forth in the Notes.
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"Maximum Loan Amount" means, on the Closing Date, $3,000,000.00,
which shall be allocated to each Premises in accordance with its Premises
Percentage and subsequent to the Closing Date, $3,000,000 less the Letter
of Credit Obligations.
"Mortgage" or "Mortgages" means, as the context may require, the
deed of trust or mortgage dated as of the date of this Agreement to be
executed by Debtor for the benefit of FFCA with respect to a Premises or
the deeds of trust or mortgages dated as of the date of this Agreement to
be executed by Debtor for the benefit of FFCA with respect to all of the
Premises, as the same may be amended from time to time. A Mortgage will
be executed for each Premises.
"Note" or "Notes" means, as the context may require, the promissory
note dated as of the date of this Agreement in the Premises Loan Amount
to be executed by Debtor in favor of FFCA with respect to a Premises, or
the promissory notes dated as of the date of this Agreement to be
executed by Debtor in favor of FFCA with respect to all of the Premises,
as the same may be amended from time to time, including, without
limitation, as contemplated by Section 2.C. A Note will be executed for
each Premises in the Premises Loan Amount.
"Other Agreements" means, collectively, all agreements and
instruments between, among or by (1) any of the Debtor Entities, and, or
for the benefit of, (2) any of the FFCA Entities, including, without
limitation, promissory notes and guaranties but excluding the Loan
Documents.
"Participation" has the meaning set forth in Section 14.P.
"Permitted Exceptions" means those recorded easements, restrictions,
liens and encumbrances set forth as exceptions in the title insurance
policies issued by Title Company to FFCA and approved by FFCA in
connection with the Loans.
"Person" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental
Authority or any other form of entity.
"Premises" means the parcel or parcels of real estate corresponding
to the FFCA File Numbers and addresses identified on Exhibit A attached
hereto, together with all rights, privileges and appurtenances associated
therewith and all buildings, improvements and fixtures now or
hereafter located thereon. As used herein, the term "Premises" shall
mean either a singular property or all of the properties collectively, as
the context may require.
"Premises Letter of Credit Amount" means the Letter of Credit
Amount, which shall be allocated to each Premises in accordance with its
Premises Percentage.
"Premises Loan Amount" means the sum of the Premises Letter of
Credit Amount and the Premises Revolver Loan Amount, which shall be
allocated to each Premises in accordance with its Premises Percentage.
"Premises Revolver Loan Amount" means the Maximum Loan Amount, which
shall be allocated to each Premises in accordance with its Premises
Percentage.
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"Premises Percentage" means the percentage for each Premises set
forth on Exhibit C, which is determined by comparing the Premises Loan
Amount to the sum of the Letter of Credit Amount and the Maximum Loan
Amount.
"Questionnaires" means the environmental questionnaires completed by
Debtor with respect to the Premises and submitted to Environmental
Insurer in connection with the issuance of the Environmental Policies.
"Related Loan Documents" means the Loan Agreement and Real Property
Loan Agreement of even date herewith by and between Debtor and FFCA and
all other documents executed or to be executed in connection therewith or
contemplated thereby.
"Regulated Substances" means "petroleum" and "petroleum-based
substances" or any similar terms described or defined in any
Environmental Laws and any applicable federal, state, county or local
laws applicable to or regulating USTs.
"Release" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring,
emptying, escaping, dumping, disposing or other movement of Hazardous
Materials, Regulated Substances or USTs.
"Remediation" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or
otherwise remediate any Hazardous Material, Regulated Substances or USTs,
any actions to prevent, cure or mitigate any Release, any action
to comply with any Environmental Laws or with any permits issued pursuant
thereto, any inspection, investigation, study, monitoring, assessment,
audit, sampling and testing, laboratory or other analysis, or any
evaluation relating to any Hazardous Materials, Regulated Substances or
USTs.
"Securitization" has the meaning set forth in Section 14.P.
"Securitized Loan Pool" means any pool or group of loans that 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 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 5.
"Transfer" has the meaning set forth in Section 14.P.
"UCC-1 Financing Statements" means such UCC-1 Financing Statements
as FFCA shall require to be executed and delivered by Debtor with respect
to the transactions contemplated by this Agreement.
"Uni-Mart Facility" means (i) with respect to those Premises listed
on Exhibit A-1, a Uni-Mart convenience store and gasoline station; (ii)
with respect to those Premises listed on Exhibit A-2, a Uni-Mart
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convenience store; (iii) with respect to those Premises listed on Exhibit
A-3, a Choice Cigarette discount outlet and gasoline station; and (iv)
with respect to those Premises listed on Exhibit A-4, a Choice Cigarette
discount outlet.
"USTs" means any one or combination of tanks and associated piping
systems used in connection with the storage, dispensing and general use
of Regulated Substances.
2. LOANS. A. On the terms and subject to the conditions set
forth in the Loan Documents, FFCA shall make the Loans, which Loans will
be in the form of an Advance in the aggregate amount of the Maximum Loan
Amount made as of the Closing Date and, subject to the Maximum Loan
Amount limitation, subsequent Advances made from time to time as provided
in this Agreement. The outstanding aggregate principal amount of the
Loans shall not exceed the Maximum Loan Amount at any time. So long as
no event has occurred and is continuing which is, or with the passage of
time or the giving of notice or both would constitute an Event of Default
under the Loan Documents, Debtor may borrow, prepay and reborrow, from
the Closing Date until the Maturity Date, an amount up to the Maximum
Loan Amount. Debtor shall not request an Advance in an amount less than
$100,000.00 and no more frequently than once in a calendar month.
B. Simultaneously with the execution and delivery of this
Agreement, Debtor shall execute and deliver to FFCA the Notes. The
obligation of Debtor to pay the outstanding aggregate principal amount of
all Advances plus accrued interest thereon shall be evidenced by the
Notes. All Advances and payments shall be allocated to the Notes
according to the Premises Percentage. All payments shall be allocated to
the Notes according to the Premises Percentage and applied in accordance
with the terms of the Notes. Each Note shall be secured by the related
Mortgage.
C. Debtor irrevocably authorizes FFCA to make or cause to be made,
at or about the time of any Advance or at the time of FFCA's receipt of
any payment of the principal amount of the Loans, an appropriate notation
in FFCA's records reflecting the amount of such Advance or payment, as
applicable, and the allocation of such Advance and allocation of such
payment to each of the Notes, as applicable. The outstanding principal
amount of the Notes plus accrued interest thereon set forth in FFCA's
records maintained with respect to the Notes (which may include computer
records) shall, absent manifest error, be prima facie evidence of the
outstanding principal amount plus accrued interest thereon due and owing
to FFCA, but the failure to record, or any error in so recording, any
such amount on FFCA's records shall not limit or otherwise affect the
obligations of Debtor under the Notes to make payments when due.
Notwithstanding the foregoing, and subject to Section 8.C hereof, Debtor
agrees to execute such amendments to the Notes, amendments and
restatements of the Notes and/or substitute and/or additional promissory
notes in the form of the Notes as FFCA may reasonably request to evidence
Debtor's obligations to FFCA under the Loan Documents.
D. Debtor shall notify FFCA at least five Business Days before the
Business Day on which Debtor desires to receive an Advance; provided,
however, Debtor acknowledges that each Advance shall be made on the first
Business Day of the month immediately following the month in which Debtor
notifies FFCA of its desire to receive such Advance. Each such notice
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shall be in the form of Exhibit B attached hereto (each, a "Notice"), and
shall set forth the requested amount of each Advance and such other
information required by the Notice. Each Notice shall constitute
a certification by Debtor that the representations and warranties of
Debtor set forth in the Loan Documents are true, correct and complete in
all material respects as of the date of such Notice and as of the date of
such requested Advance and that Debtor has satisfied each of the
conditions precedent set forth in this Agreement. FFCA's obligation to
fund each Advance shall be subject to the satisfaction of the following
conditions precedent as of the date of the requested Advance:
(i) no event shall have occurred and be continuing which is,
or with the passage of time or the giving of notice or both would
constitute an Event of Default under the Loan Documents or any of
the Other Agreements;
(ii) Debtor shall be in compliance with each of the covenants
set forth in Section 8 hereof;
(iii) the aggregate outstanding principal balance of the
Loans, together with the amount of the requested Advance, shall not
exceed the Maximum Loan Amount; and
(iv) there shall have been no material adverse change in
Debtor's business, operations, assets or financial condition since
the Closing Date, as determined by FFCA in its reasonable
discretion.
Upon Debtor's satisfaction of the foregoing conditions, FFCA will
disburse the requested Advance in immediately available funds to such
account as Debtor shall have specified in the Notice or as otherwise
directed by Debtor in the Notice.
E. The Loans shall bear interest at a variable rate of interest as
set forth in the Notes and shall be payable in arrears on the first day
of each month based on the then outstanding principal balance of the
Notes. Debtor shall have the right to prepay (without premium or
penalty) the Notes in whole or in part at any time provided that any such
prepayment shall only be made on a regularly scheduled payment date upon
not less than 10 days prior written notice from Debtor to FFCA. All
prepayments shall be allocated to the Notes based on the Premises
Percentage and applied in accordance with the terms of the Notes. Unless
otherwise paid prior to the Maturity Date, Debtor shall pay on the
Maturity Date, and there shall become absolutely due and payable on the
Maturity Date, the outstanding principal amount of the Loans and all
accrued but unpaid interest thereon.
F. If the Loans are paid in full, and Debtor shall have by notice
terminated FFCA's obligation to make any further Advances, and no Event
of Default or event or circumstance which, with the giving of notice,
passage of time or both, would result in an Event of Default, exists,
then FFCA shall release from the lien of the related Mortgages such
Premises as negotiated, in good faith, between FFCA and Debtor such that
the remaining Premises shall fully secure Debtor's obligations under the
Letter of Credit Documents. If Debtor and FFCA are unable to agree on
the Premises to be released, then FFCA's determination as to the Premises
to be released and which of the Premises shall remain to secure the
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Debtor's obligations under the Letter of Credit Documents shall control.
Following such release, the Premises Percentage shall be adjusted to
reflect the ratio of each original Premises Loan Amount to the Letter of
Credit Amount.
3. LETTER OF CREDIT OBLIGATIONS. A. Debtor and FFCA agree to
execute and deliver the Letter of Credit Documents on or before the
Closing Date.
B. Debtor agrees to pay, and reimburse FFCA on demand for, all
charges, fees, costs and expenses, including, without limitation,
reasonable attorneys' and accountants' fees and expenses, and any other
amounts paid by FFCA pursuant to or under the Letter of Credit Documents
or otherwise incurred by FFCA with respect to the Letter of Credit
Documents (the "Letter of Credit Obligations"). All Letter of Credit
Obligations shall be deemed allocated to the Notes based on the Premises
Percentage. The Letter of Credit Obligations are and shall be absolute
and unconditional, and shall be paid or performed strictly in accordance
with this Agreement and the other Loan Documents under all circumstances
irrespective of:
(i) any lack of validity or enforceability of, or any
amendment or other modifications of, or waiver with respect to this
Agreement, any of the other Loan Documents, any of the Letters of
Credit or any of the Letter of Credit Documents;
(ii) any exchange or release of any other obligations
under this Agreement, any of the other Loan Documents, any of the
Letters of Credit or any of the Letter of Credit Documents;
(iii) the existence of any claim, setoff, defense, reduction,
abatement or other right which Debtor may have at any time against
FFCA or any other Person;
(iv) any document presented in connection with this Agreement,
any of the other Loan Documents, the Letters of Credit or any of the
Letter of Credit Documents proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(v) any payment by FFCA under any of the Letter of Credit
Documents as a result of a payment by the Letter of Credit Provider
of any Letter of Credit against presentation of a certificate or
other document which does not strictly comply with the terms of such
documents;
(vi) any breach by Debtor of any representation, warranty or
covenant contained in this Agreement, any other Loan Documents, any
of the Letters of Credit or any of the Letter of Credit Documents;
or
(vii) any other circumstances, other than payment in full,
which might otherwise constitute a defense available to, or
discharge of, Debtor in respect of this Agreement, the other Loan
Documents, the Letters of Credit or any of the Letter of Credit
Documents.
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C. Letter of Credit Obligations shall bear interest from the date
paid by FFCA to the date of actual reimbursement by Debtor, or on behalf
of Debtor, at the lesser of the highest rate for which Debtor may legally
contract, or the rate of 14% per annum, and such interest shall be
included within the Letter of Credit Obligations for which Debtor must
reimburse FFCA as set forth in Section 3.B. Notwithstanding anything to
the contrary contained in any of the Loan Documents, the obligations of
Debtor to FFCA under this subsection are subject to the limitation
that payments of interest to FFCA shall not be required to the extent
that receipt of any such payment by FFCA would be contrary to provisions
of applicable law limiting the maximum rate of interest that may be
charged or collected by FFCA. All payments of the Letter of Credit
Obligations shall be allocated to the Notes in accordance with the
Premises Percentage and applied in accordance with the Notes.
D. Debtor shall pay FFCA a Letter of Credit Fee on the Closing
Date. The Letter of Credit Fee shall be deemed fully earned and
nonrefundable upon FFCA's receipt. The Letter of Credit Fee due and
payable on the Closing Date shall equal 4% of the Letter of Credit Amount
as of the Closing Date.
E. FFCA shall have no obligation to renew, apply for or obtain a
renewal of the Letter of Credit past the one-year term of the Letter of
Credit.
F. If FFCA receives notice of a draw request under the Letter of
Credit, then FFCA shall use good faith efforts to provide Debtor, to the
person set forth in Section 14.A., with telephonic notice of such draw
request.
4. UNDERWRITING, SITE ASSESSMENT, VALUATION, PROCESSING AND
COMMITMENT FEE. Debtor paid FFCA a portion of the Fee pursuant to the
Commitment, and such portion was deemed fully earned when received. The
remainder of the Fee shall be paid at the Closing and shall be deemed
nonrefundable and fully earned upon the Closing. The portion of
the Fee paid and the balance due at Closing shall be adjusted down (and
returned or credited as appropriate) to reflect a Fee equal to 1% of the
actual Maximum Loan Amount. In the event the transaction set forth in
this Agreement fails to close due to a breach or default by Debtor under
this Agreement, FFCA shall retain the portion of the Fee received by FFCA
(without affecting or limiting FFCA's remedies set forth in this
Agreement).
5. CLOSING. (a) Each Loan shall be closed (the "Closing")
contemporaneously with the satisfaction of all of the terms and
conditions contained in this Agreement, but in no event shall the date of
the Closing be extended beyond June 30, 1998, unless such extension shall
be approved by FFCA in its sole discretion (the date on which the Closing
shall occur is referred to herein as the "Closing Date").
(b) FFCA has ordered a title insurance commitment for each Premises
from Lawyers Title Insurance Corporation ("Title Company"). Prior to the
Closing Date, the parties hereto shall deposit with Title Company all
documents and moneys necessary to comply with their obligations
under this Agreement. Title Company shall not cause the transaction to
close unless and until it has received written instructions from FFCA and
Debtor to do so. All costs of such transaction shall be borne by Debtor,
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including, without limitation, the cost of title insurance and
endorsements, survey charges, the attorneys' fees of Debtor, attorneys'
fees and expenses of FFCA, the cost of the environmental reports and the
Environmental Policies to be delivered pursuant to Section 10.E, FFCA's
in-house site inspection costs and fees, stamp taxes, mortgage
taxes, transfer fees, escrow and recording fees and site inspection fees
for the Premises. All real and personal property and other applicable
taxes and assessments and other charges relating to the Premises which
are due and payable on or prior to the Closing Date as well as taxes and
assessments due and payable subsequent to the Closing Date but which
Title Company requires to be paid at Closing as a condition to the
issuance of the title insurance policy described in Section
10.C, shall be paid by Debtor at or prior to the Closing. The Closing
documents shall be dated as of the Closing Date.
Debtor and FFCA hereby employ Title Company to act as escrow agent
in connection with 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.
6. REPRESENTATIONS AND WARRANTIES OF FFCA. The representations
and warranties of FFCA contained in this Section are being made by FFCA
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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.
7. REPRESENTATIONS AND WARRANTIES OF DEBTOR. The representations
and warranties of Debtor contained in this Section are being made by
Debtor as of the date of this Agreement and the Closing Date to induce
FFCA to enter into this Agreement and consummate the transactions
contemplated herein, and FFCA has relied, and will continue to rely, upon
such representations and warranties from and after the execution of this
Agreement and the Closing. Debtor represents and warrants to FFCA as
follows:
A. Information and Financial Statements. Debtor has
delivered to FFCA financial statements (either audited financial
statements or, if Debtor does not have audited financial statements,
certified financial statements) and certain other information, 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. (1) Debtor is duly organized
or formed, validly existing and in good standing under the laws of
its state of incorporation or formation, and qualified as a foreign
corporation, partnership or limited liability company, as applicable, to
do business in any jurisdiction where such qualification is required.
All necessary corporate, partnership or limited liability company action
has been taken to authorize the execution, delivery and performance of
this Agreement and of the other documents, instruments and agreements
provided for herein.
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(2) The person(s) who have executed this Agreement on behalf
of Debtor are duly authorized so to do.
C. Enforceability of Documents. Upon execution by Debtor,
this Agreement and the other documents, instruments and agreements
to be executed in connection with this Agreement, shall constitute
the legal, valid and binding obligations of Debtor, enforceable
against Debtor in accordance with their respective terms.
D. Litigation. There are no suits, actions, proceedings or
investigations pending or threatened against or involving Debtor or
the Premises before any arbitrator or Governmental Authority which
might reasonably result in any Material Adverse Effect.
E. Absence of Breaches or Defaults. Debtor is 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 is a party or by which
Debtor, the Premises or any of the property of Debtor is subject or
bound. The authorization, execution, delivery and performance of
this Agreement and the 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 to use the Premises solely for the operation of Uni-Mart
Facilities, and related ingress, egress and parking, and for no
other purposes. Each of the Premises is in compliance with all
applicable zoning requirements and the use of each of the Premises
as a Uni-Mart Facility does not constitute a nonconforming use under
applicable zoning requirements. 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.
H. Area Development; Wetlands. No condemnation or eminent
domain proceedings affecting the Premises have been commenced or, to
the best of Debtor's knowledge, are contemplated. To the best of
Debtor's knowledge, the areas where the Premises are located have
not been declared blighted by any Governmental Authority. The
Premises and/or the real property bordering the Premises are not
designated by any Governmental Authority as a wetlands.
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I. Licenses and Permits; Access. Debtor has all required
licenses and permits, both governmental and private, to use and
operate the Premises as a Uni-Mart Facility. There are adequate
rights of access to public roads and ways available to the Premises
to permit full utilization of the Premises for their intended
purposes and all such public roads and ways have been completed and
dedicated to public use.
J. Condition of Premises. The Premises are of good
workmanship and materials, fully equipped and operational, in good
condition and repair, free from structural defects, clean, orderly
and sanitary, safe, well-lit, landscaped, decorated, attractive and
well-maintained.
K. Environmental. Debtor is fully familiar with the present
use of the Premises, and, after due inquiry, Debtor has become
generally familiar with the prior uses of the Premises. Except as
disclosed in the Questionnaires, no Hazardous Materials or
Regulated Substances have been used, handled, manufactured,
generated, produced, stored, treated, processed, transferred or
disposed of at or on the Premises, except in De Minimis Amounts and
in compliance with all applicable Environmental Laws, except to
the extent such Hazardous Materials or Regulated Substances would
not have a Material Adverse Effect, and no Release or Threatened
Release has occurred at or on the Premises which would have a
Material Adverse Effect. Except as disclosed in the Questionnaires,
the activities, operations and business undertaken on, at or about
the Premises, including, but not limited to, any past or ongoing
alterations or improvements at the Premises, are and have been at
all times, in compliance with all Environmental Laws except where
such noncompliance would not have a Material Adverse Effect. No
further action is required to remedy any Environmental Condition or
violation of, or to be in full compliance with, any Environmental
Laws, and no lien has been imposed on the Premises by any
Governmental Authority in connection with any Environmental
Condition, the violation or threatened violation of any
Environmental Laws or the presence of any Hazardous Materials,
Regulated Substances or USTs on or off the Premises.
Except as disclosed in the Questionnaires, there is no pending
or threatened litigation or proceeding before any Governmental
Authority in which any person or entity alleges the violation or
threatened violation of any Environmental Laws or the presence,
Release, Threatened Release or placement on or at the Premises of
any Hazardous Materials, Regulated Substances or USTs, or of any
facts which would give rise to any such action, nor has Debtor,
except as disclosed in the Questionnaires, (a) received any
notice (and Debtor has no actual knowledge) that any Governmental
Authority or any employee or agent thereof has determined, threatens
to determine or requires an investigation to determine that there
has been a violation of any Environmental Laws at, on or in
connection with the Premises or that there exists a presence,
Release, Threatened Release or placement of any Hazardous Materials,
Regulated Substances or USTs on or at the Premises, or the use,
handling, manufacturing, generation, production, storage,
treatment, processing, transportation or disposal of any Hazardous
Materials, Regulated Substances or USTs at or on the Premises; (b)
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received any notice under the citizen suit provision of any
Environmental Law in connection with the Premises or any facilities,
operations or activities conducted thereon, or any business
conducted in connection therewith; or (c) received any request for
inspection, request for information, notice, demand, administrative
inquiry or any formal or informal complaint or claim with respect
to or in connection with the violation or threatened violation of
any Environmental Laws or existence of Hazardous Materials,
Regulated Substances or USTs relating to the Premises or any
facilities, operations or activities conducted thereon or any
business conducted in connection therewith.
L. Environmental Questionnaires. The information and
disclosures in the Questionnaires are 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.
M. Title to Premises; First Priority Lien. Fee title to each
of the Premises is vested in Debtor, free and clear of all liens,
encumbrances, charges and security interests of any nature
whatsoever, except the Permitted Exceptions. Upon Closing, FFCA
shall have a first priority lien upon and security interest in each
of the Premises pursuant to the Mortgages and the UCC-1 Financing
Statements.
N. No Other Agreements and Options. Neither Debtor nor the
Premises are subject to any commitment, obligation, or agreement,
including, without limitation, any right of first refusal, option to
purchase or lease granted to a third party, which could or 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.
O. No Mechanics' Liens. There are no outstanding accounts
payable which if not paid timely would have a Material Adverse
Effect, 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; 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 the nonpayment of which would have a
Material Adverse Effect; and Debtor shall and does hereby agree to
defend, indemnify and forever hold FFCA and FFCA's designees
harmless from and against any and all such mechanics' lien claims,
accounts payable or other commitments relating to the Premises.
P. No Reliance. Debtor acknowledges that FFCA did not
prepare or assist in the preparation of any of the projected
financial information used by Debtor in analyzing the economic
viability and feasibility of the transaction contemplated by this
Agreement. Furthermore, Debtor acknowledges that it has not relied
upon, nor may it hereafter rely upon, the analysis undertaken by
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FFCA in determining the Maximum Loan Amount, and such analysis will
not be made available to Debtor.
All representations and warranties of Debtor made in this Agreement
shall be and will remain true and complete as of and subsequent to the
Closing Date as if made and restated in full as of such time and 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.
8. COVENANTS. Debtor covenants to FFCA from and after the Closing
Date as follows:
A. Inspections. Debtor shall, at all reasonable times, (i)
provide FFCA and FFCA's officers, employees, agents, advisors,
attorneys, accountants, architects, and engineers with access to the
Premises, all drawings, plans, and specifications for the Premises
in the possession of Debtor, all engineering reports relating to the
Premises in the possession of Debtor, 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.
B. Corporate Fixed Charge Coverage Ratio. Until such time as
all of Debtor's obligations under the Notes and the other Loan
Documents are paid, satisfied and discharged in full, Debtor shall
maintain a corporate fixed charge coverage ratio ("CFCCR") of at
least 1.25:1, as determined on the last day of each fiscal quarter
of Debtor (the "Date of Determination"). For purposes of this
Section, the term "CFCCR" shall mean with respect to the three month
period of time immediately preceding the Date of Determination (a
"Period 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, to (b) the sum of
Operating Lease Expense, current maturities of Debt, current
maturities of all Capital Leases and Interest Expense.
For purpose 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, which, in conformity with GAAP, would be
required to be accounted for on Debtor's balance sheet as a capital lease
and which is applicable to one or more of Debtor's properties.
"Debt" shall mean, for the Period of Determination:
(A) indebtedness for borrowed money;
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(B) obligations evidenced by bonds, indentures, notes or
similar instruments;
(C) obligations to pay the deferred purchase price of
property or services;
(D) obligations under leases which should be, in
accordance with GAAP, recorded as Capital Leases; and
(E) 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 (A) through (D)
above,
allocable to Debtor; provided, however, Debt shall not include
Debtor's obligations to the Letter of Credit Provider with respect
to the Letters of Credit.
"Depreciation and Amortization" shall mean, for the Period of
Determination, depreciation and amortization as determined in
accordance with GAAP allocable to Debtor.
"Equipment Payment Amount" shall mean for the Period of
Determination the sum of all amounts payable under all loans secured
by equipment at the Premises.
"GAAP" means generally accepted accounting principles
consistently applied.
"Interest Expense" shall mean, for the Period of Determination,
the sum of all interest accrued or which should be accrued in
respect of all Debt, including interest attributable to Capital
Leases, as determined in accordance with GAAP, allocable to Debtor.
"Net Income" shall mean, for the Period of Determination, the
net income or net loss of Debtor allocable to Debtor. In
determining the amount of Net Income, (1) adjustments shall be made
for nonrecurring gains and losses allocable to the Period of
Determination, (2) deductions shall be made for, among other things,
Depreciation and Amortization, Interest Expense and Operating Lease
Expense allocable to the Period of Determination, (3) no deductions
shall be made for income taxes or charges equivalent to income taxes
allocable to the Period of determination, as determined in
accordance with GAAP, and (4) a deduction shall be made for actual
corporate overhead expense allocable to the Period of Determination.
"Operating Lease Expense" shall mean, for the Period of
Determination, the expenses incurred under any operating lease, as
determined in accordance with GAAP, allocable to Debtor.
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
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conditions as such Lost Note with a notation thereon of the unpaid
principal and accrued and unpaid interest. Debtor shall provide
fifteen (15) days prior notice to FFCA before making any payments to
third parties in connection with a Lost Note. Except as a result
of the gross negligence or intentional misconduct of Debtor, FFCA
shall indemnify Debtor for all reasonable costs, expenses, damages,
claims and liabilities incurred by Debtor as the result of a Lost
Note.
D. Net Worth. At all times while the obligations of Debtor
to FFCA pursuant to this Agreement are outstanding, Debtor shall
maintain a net worth of at least $20,000,000.00, as determined in
accordance with generally accepted accounting principles
consistently applied.
E. Reporting Obligations. Debtor will provide FFCA with each
of the following:
(i) Event of Default. Promptly, but in any event within
two Business Days, after Debtor becomes aware of an Event of
Default, written notification to an officer of FFCA specifying
the nature and period of existence thereof and what action
Debtor is taking or proposes to take with respect thereto.
(ii) Certificates. At the time of each Advance, a
certificate of an officer of Debtor substantially in the form
attached hereto as Exhibit B.
(iii) Auditors' Reports. Promptly upon receipt thereof, a
copy of each report submitted to Debtor by its independent
accountants in connection with any annual, interim or special
audit made by it of the books of Debtor.
(iv) Other Information. Promptly after the receipt of
written request therefor from FFCA, information concerning
Debtor reasonably requested by FFCA that is required to satisfy
all requirements applicable to FFCA pursuant to the Securities
Exchange Act of 1934 and all other regulatory laws applicable
to FFCA or to which FFCA is subject or bound.
F. Use of Proceeds. Debtor shall only use the proceeds of
the Loans to finance the Premises and for working capital purposes.
9. 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.
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10. CONDITIONS OF CLOSING. The obligation of FFCA to consummate
the transaction contemplated by this Agreement is subject to the
fulfillment or waiver of each of the following conditions:
A. Title. Fee title to each of the Premises shall be vested
in Debtor, free of all liens, encumbrances, restrictions,
encroachments and easements, except the Permitted Exceptions and the
liens created by the Mortgages and the UCC-1 Financing Statements.
Upon Closing, FFCA will obtain a valid and perfected first priority
lien upon and security interest in each of the Premises.
B. Condition of Premises. FFCA shall have inspected and
approved the Premises, the Premises 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 fee title in
such Premises in Debtor, committing to insure FFCA's first priority
lien upon and security interest in such Premises subject only to
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 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. At Debtor's expense, FFCA shall have
received an Environmental Policy with respect to each of the
Premises, as required 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
use as a Uni-Mart Facility and that such use constitutes a legal,
conforming use under applicable zoning requirements.
G. Compliance With Representations, Warranties and Covenants.
All obligations of Debtor under this Agreement shall have been fully
performed and complied with, and no event shall have occurred or
condition shall exist which would, upon the Closing Date, or, upon
the giving of notice and/or passage of time, constitute a breach or
default hereunder or under the Loan Documents or any other agreement
between FFCA and Debtor pertaining to the subject matter hereof, and
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no event shall have occurred or condition shall exist or information
shall have been disclosed by Debtor or discovered by FFCA which has
had or would have a material adverse effect on the Premises, Debtor
or FFCA's willingness to consummate the transaction contemplated by
this Agreement, as determined by FFCA in its sole and absolute
discretion.
H. Proof of Insurance. Debtor shall have delivered to FFCA
certificates of insurance or 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. Opinions of Counsel to Debtor. Debtor shall have caused
Counsel to prepare and deliver one or more opinions to FFCA in form
and substance satisfactory to FFCA and its counsel.
J. Letters of Credit. The Letter of Credit Provider shall
have issued the Letters of Credit.
K. Closing Documents. At or prior to the Closing Date, FFCA
and/or Debtor, as may be appropriate, shall execute and deliver or
cause to be executed and delivered to Title Company or FFCA, as may
be appropriate, all documents required to be delivered by this
Agreement, and such other documents, payments, instruments and
certificates, as FFCA may require in form acceptable to FFCA,
including, without limitation, the following:
(1) Notes;
(2) Mortgages;
(3) Proof of Insurance;
(4) Opinions of Counsel to Debtor;
(5) Evidence of satisfactory zoning;
(6) UCC-1 Financing Statements;
(7) Environmental Indemnity Agreements; and
(8) Certifications (Confessions of Judgment), as
appropriate.
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.
11. DEFAULT AND REMEDIES. A. Each of the following shall be deemed
an event of default by Debtor (each, an "Event of Default"):
(1) If any representation or warranty of Debtor set forth in
any of the Loan Documents is false in any respect and such falsity
would result in a Material Adverse Effect, or if Debtor renders any
false statement or account in any material respect.
(2) If any principal, interest or other monetary sum due under
the Notes, the Mortgages or any other Loan Document is not paid
within five days after the date when due; provided, however,
notwithstanding the occurrence of such an Event of Default,
FFCA shall not be entitled to exercise its rights and remedies set
forth below unless and until FFCA shall have given Debtor notice
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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 CFCCR requirements
or any of the covenants in Sections 8.F, conditions, or obligations
of this Agreement; provided, however, if any such failure does not
involve the payment of any monetary sum, is not willful or
intentional, does not place any rights or property of FFCA in
immediate jeopardy, and is within the reasonable power of Debtor to
promptly cure after receipt of notice thereof, all as determined by
FFCA in its reasonable discretion, then such failure shall not
constitute an Event of Default hereunder, unless otherwise expressly
provided herein, unless and until FFCA shall have given Debtor
notice thereof and a period of 30 days shall have elapsed, during
which period Debtor may correct or cure such failure, upon failure
of which an Event of Default shall be deemed to have occurred
hereunder without further notice or demand of any kind being
required. If such failure cannot reasonably be cured within such
30-day period, as determined by FFCA in its reasonable discretion,
and Debtor is diligently pursuing a cure of such failure, then
Debtor shall have a reasonable period to cure such failure beyond
such 30-day period, which shall not exceed 90 days after receiving
notice of the failure from FFCA. If Debtor shall fail to correct or
cure such failure within such 90-day period, an Event of Default
shall be deemed to have occurred hereunder without further notice or
demand of any kind being required.
(4) If Debtor becomes insolvent within the meaning of the
Code, files or notifies FFCA that it intends to file a petition
under the Code, initiates a proceeding under any similar law or
statute relating to bankruptcy, insolvency, reorganization, winding
up or adjustment of debts (collectively, hereinafter, an "Action"),
is not generally paying its debts as the same become due or if
Debtor becomes the subject of an involuntary petition under the Code
or other similar involuntary Action (in which case Debtor shall be
required to provide FFCA with immediate notice of the commencement
or filing of such involuntary petition or Action), and any of the
following shall have occurred: (i) the involuntary petition or
involuntary Action shall not have been dismissed within 60 days of
the date on which it was filed or otherwise commenced, (ii) an order
for relief under the Code (or similar order) shall have been entered
by the court in the involuntary proceeding or involuntary Action, or
(iii) the court having jurisdiction over such involuntary
proceeding or involuntary Action (upon motion or other request for
relief by the party against whom the involuntary petition or
involuntary Action was filed or otherwise commenced) shall not have
granted FFCA full and final relief from the automatic stay of
Section 362 of the Code and from any stay issued under Section 105
of the Code (or any similar stays or injunctions) within 30 days of
the filing or commencement of such involuntary petition or
involuntary Action so that FFCA is thereafter free to exercise any
and all of its rights and remedies under the Loan Documents;
(5) If there is an "Event of Default" under any other Loan
Document or a breach or default, after the passage of all applicable
notice and cure or grace periods, under any of the Other Agreements.
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(6) If Debtor fails to observe or perform any of the covenants
in Sections 8.F of this Agreement.
(7) If there is a breach of the CFCCR requirement.
(8) If Debtor fails to perform any of its obligations under
any of the Letter of Credit Documents or if Debtor is otherwise in
breach or default under any of the Letter of Credit Documents, or if
Debtor fails to reimburse FFCA for any of the Letter of Credit
Obligations as contemplated by Section 3 of this Agreement.
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, except as
otherwise provided herein or prohibited by applicable law, Debtor hereby
waives notice of intent to accelerate the obligations secured by the
Mortgages and notice of acceleration. Thereafter, FFCA may exercise, at
its option, concurrently, successively or in any combination, all
remedies available at law or in equity, including without limitation any
one or more of the remedies available under the Notes, the Mortgages or
any other Loan Document. Neither the acceptance of this Agreement nor
its enforcement shall prejudice or in any manner affect FFCA's right to
realize upon or enforce any other security now or hereafter held by FFCA,
it being agreed that FFCA shall be entitled to enforce this Agreement and
any other security now or hereafter held by FFCA in such order and
manner as it may in its absolute discretion determine. No remedy herein
conferred upon or reserved to FFCA is intended to be exclusive of any
other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the
Loan Documents to FFCA, or to which FFCA may be otherwise entitled, may
be exercised, concurrently or independently, from time to time and as
often as may be deemed expedient by FFCA.
12. ASSIGNMENTS.
A. FFCA may assign in whole or in part its rights under this
Agreement, including, without limitation, in connection with any
Transfer, Participation and/or Securitization. Upon any assignment of
FFCA's right and interest hereunder, FFCA shall remain liable 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 or any of them,
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.
13. 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
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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,
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.
14. MISCELLANEOUS PROVISIONS.
A. Notices. All notices, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this
Agreement shall be in writing and given by (i) hand delivery, (ii)
facsimile, (iii) express overnight delivery service or (iv) certified or
registered mail, return receipt requested, and shall be deemed to have
been delivered upon (a) receipt, if hand delivered, (b) transmission, if
delivered by facsimile, (c) the next business day, if delivered by
express overnight delivery service, or (d) the third business day
following the day of deposit of such notice with the United States Postal
Service, if sent by certified or registered mail, return receipt
requested. Notices shall be provided to the parties and addresses (or
facsimile numbers, as applicable) specified below:
If to Debtor: J. Kirk Gallaher
Executive Vice President and
Chief Financial Officer
Uni-Marts, Inc.
477 East Beaver Avenue
State College, PA 16801-5690
Telephone: (814) 234-6000
Telecopy: (814) 234-3277
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.
23
<PAGE> 71
C. Waiver and Amendment. No provisions of this Agreement shall be
deemed waived or amended except by a written instrument unambiguously
setting forth the matter waived or amended and signed by the party
against which enforcement of such waiver or amendment is sought. Waiver
of any matter shall not be deemed a waiver of the same or any other
matter on any future occasion.
D. Captions. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any manner
in the construction or interpretation hereof.
E. Intentionally Omitted.
F. Severability. The provisions of this Agreement shall be deemed
severable. If any part of this Agreement shall be held unenforceable,
the remainder shall remain in full force and effect, and such
unenforceable provision shall be reformed by such court so as to give
maximum legal effect to the intention of the parties as expressed
therein.
G. Construction Generally. This is an agreement between parties
who are experienced in sophisticated and complex matters similar to the
transaction contemplated by this Agreement and is entered into by both
parties in reliance upon the economic and legal bargains contained herein
and shall be interpreted and construed in a fair and impartial manner
without regard to such factors as the party which prepared the
instrument, the relative bargaining powers of the parties or the domicile
of any party. Debtor and FFCA were each represented by legal counsel
competent in advising them of their obligations and liabilities
hereunder.
H. Other Documents. Each of the parties agrees to sign such other
and further documents as may be appropriate to carry out the intentions
expressed in this Agreement.
I. Attorneys' Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement, the
prevailing party shall be entitled to recover its attorneys' fees and
other costs in addition to any other relief to which it may be entitled.
References in this Agreement to the attorneys' fees and/or costs of FFCA
shall mean both the fees and costs of independent outside counsel
retained by FFCA with respect to this transaction and the fees and costs
of FFCA's in-house counsel incurred in connection with this transaction.
J. Entire Agreement. This Agreement and the other Loan Documents,
together with any other certificates, instruments or agreements to be
delivered in connection therewith, constitute the entire agreement
between the parties with respect to the subject matter hereof, and
there are no other representations, warranties or agreements, written or
oral, between Debtor and FFCA with respect to the subject matter of this
Agreement. Notwithstanding anything in this Agreement to the contrary,
upon the execution and delivery of this Agreement by Debtor and
FFCA, the Commitment shall be deemed null and void and of no further
force and effect and the terms and conditions of this Agreement shall
control notwithstanding that such terms may be inconsistent with or vary
from those set forth in the Commitment.
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<PAGE> 72
K. Forum Selection; Jurisdiction; Venue; Choice of Law. Debtor
acknowledges that this Agreement was substantially negotiated in the
State of Arizona, the Agreement was signed by FFCA in the State of
Arizona and delivered by Debtor in the State of Arizona, all payments
under the Notes will be delivered in the State of Arizona and there are
substantial contacts between the parties and the transactions
contemplated herein and the State of Arizona. For purposes of any
action or proceeding arising out of this Agreement, the parties hereto
hereby expressly submit to the jurisdiction of all federal and state
courts located in the State of Arizona and Debtor consents
that it may be served with any process or paper by registered mail or by
personal service within or without the State of Arizona in accordance
with applicable law. Furthermore, Debtor waives and agrees not to assert
in any such action, suit or proceeding that it is not personally subject
to the jurisdiction of such courts, that the action, suit or proceeding
is brought in an inconvenient forum or that venue of the action, suit or
proceeding is improper. It is the intent of the parties hereto
that all provisions of this Agreement shall be governed by and construed
under the laws of the State of Arizona. To the extent that a court of
competent jurisdiction finds Arizona law inapplicable with respect to any
provisions hereof, then, as to those provisions only, the laws of
the states where the Premises are located shall be deemed to apply.
Nothing in this Section shall limit or restrict the right of FFCA to
commence any proceeding in the federal or state courts
located in the states in which the Premises are located to the extent
FFCA deems such proceeding necessary or advisable to exercise remedies
available under this Agreement or the other Loan Documents.
L. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of Debtor and FFCA and their respective successors and
permitted assigns, including, without limitation, any United States
trustee, any debtor in possession or any trustee appointed from a
private panel.
N. Survival. Except for the conditions of Closing set forth in
Section 10, which shall be satisfied or waived as of the Closing Date,
all representations, warranties, agreements, obligations and indemnities
of Debtor and FFCA set forth in this Agreement shall survive the
Closing.
O. Waiver of Jury Trial and Punitive, Consequential, Special and
Indirect Damages. DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM
OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS
AN ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, DEBTOR AND FFCA
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
EITHER MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES FROM THE OTHER WITH RESPECT TO ANY AND ALL ISSUES
PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT
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<PAGE> 73
BY IT 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. THE WAIVER BY
DEBTOR 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 Securitization. (1) A material
inducement to FFCA's willingness to complete the transactions
contemplated by the Loan Documents is Debtor's agreement that FFCA may,
at any time, sell, transfer or assign any Note, any 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").
(2) 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 be required with respect to Debtor by a purchaser,
transferee, assignee, servicer, participant, investor or rating agency
involved with respect to such Transfer, Participation and/or the
Securitization, as applicable; provided, however, Debtor shall not be
required to make Disclosures of any confidential information or any
information which has not previously been made public unless required by
applicable federal or state securities laws; and (ii)
amending the terms of the transactions evidenced by the Loan Documents to
the extent necessary so as to satisfy the requirements of purchasers,
transferees, assignees, servicers, participants, investors or selected
rating agencies involved in any such Transfers, Participations or
Securitization, so long as such amendments would not have a material
adverse effect upon Debtor or the transactions contemplated hereunder.
(3) Debtor consents to FFCA providing the Disclosures, as well as
any other information which FFCA may now have or hereafter acquire with
respect to the Premises or the financial condition of Debtor to each
purchaser, transferee, assignee, servicer, participant, investor
or rating agency involved with respect to each Transfer, Participation
and/or Securitization, as applicable. FFCA and Debtor (and their
respective Affiliates) shall each pay their own attorneys
fees and other out-of-pocket expenses incurred in connection with the
performance of their respective obligations under this Section.
(4) Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents, from and after the Closing of a
Securitization with respect to some or all of the Loans or 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 Loan Document or Other
Agreement which relates to a loan or sale/leaseback transaction
26
<PAGE> 74
which has not been the subject of a Securitization shall not
constitute an Event of Default under any Loan Document or Other
Agreement which relates to a loan which has been the subject of a
Securitization;
(b) a breach or default, after the passage of all applicable
notice and cure or grace periods, under any Loan Document or Other
Agreement which relates to a loan which has been the subject of a
Securitization transaction shall not constitute an Event of
Default under any 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 the Loans in any
Securitized Loan Pool shall not secure the obligations of Debtor
and/or its Affiliates 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 Debtor and/or its Affiliates contained in any
Loan Document or Other Agreement which does correspond to a loan in
such Securitized Loan Pool.
Q. Pennsylvania Non-Cross-Collateralization. Notwithstanding
anything to the contrary contained in this Agreement or the other Loan
Documents, the Loan Documents corresponding to each Loan secured by one
or more of the Premises located in the Commonwealth of Pennsylvania shall
not secure the obligations of Debtor and/or the Affiliates contained in
any other Loan Documents or Other Agreements.
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 E. WOOD
----------------------------------
Mark E. Wood
Vice President
DEBTOR:
UNI-MARTS, INC.,
a Delaware corporation
By /S/ J. KIRK GALLAHER
---------------------------------
J. Kirk Gallaher
Executive Vice President and
Chief Financial Officer
27
<PAGE> 75
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 29, 1998 by
Mark E. Wood, Vice President of FFCA Acquisition Corporation, a Delaware
corporation, on behalf of the corporation.
/S/ DEBBIE L. SUMAN
--------------------------------------
Notary Public
OFFICIAL SEAL
My Commission Expires: DEBBIE L. SUMAN
5-5-2002 Notary Public State of Arizona
- ------------------------------ MARICOPA COUNTY
My Comm. Expires May 5, 2002
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 29, 1998 by
J. Kirk Gallaher, Executive Vice President and Chief Financial Officer of
Uni-Marts, Inc., a Delaware corporation, on behalf of the corporation.
/S/ DEBBIE L. SUMAN
--------------------------------------
Notary Public
OFFICIAL SEAL
My Commission Expires: DEBBIE L. SUMAN
5-5-2002 Notary Public State of Arizona
- ------------------------------ MARICOPA COUNTY
My Comm. Expires May 5, 2002
28
<PAGE> 76
PROPERTY LOAN AGREEMENT
THIS PROPERTY LOAN AGREEMENT (this "Agreement") is made as of June
30, 1998, by and between FFCA ACQUISITION CORPORATION, a Delaware
corporation ("FFCA"), whose address is 17207 North Perimeter Drive,
Scottsdale, Arizona 85255, and UNI-MARTS, INC., a Delaware corporation
("Debtor"), whose address is 477 East Beaver Avenue, State College,
Pennsylvania 16801-5690.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms used
in this Agreement shall have the meanings set forth in Section 1. Debtor
has requested from FFCA, and applied for, the Loans to provide long-term
financing for the Premises, and for no other purpose whatsoever. Each
Loan will be evidenced by a Note and secured by a first priority security
interest in the corresponding Premises pursuant to a Mortgage. FFCA has
committed to make the Loans pursuant to the terms and conditions of the
Commitment, this Agreement and the other Loan Documents.
AGREEMENT:
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. DEFINITIONS. The following terms shall have the following
meanings for all purposes of this Agreement:
"Action" has the meaning set forth in Section 10.A(4).
"Affiliate" means any Person which directly or indirectly controls,
is under common control with, or is controlled by any other Person. For
purposes of this definition, "controls", "under common control with" and
"controlled by" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
such Person or entity, whether through ownership of voting securities or
otherwise.
"Closing" shall have the meaning set forth in Section 4.
"Closing Date" shall have the meaning set forth in Section 4.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101
et seq., as amended.
"Commitment" means that certain Commitment Letter dated April 22,
1998, between FFCA and Debtor, and any amendments or supplements thereto.
"Counsel" means legal counsel to Debtor, licensed in the states in
which (i) the Premises are located, (ii) Debtor is incorporated and (iii)
Debtor maintains its principal place of business, as selected by Debtor
and approved by FFCA.
"Debtor Entities" means, collectively, Debtor and any Affiliate of
Debtor.
<PAGE> 77
"De Minimis Amounts" shall mean, with respect to any given level of
Hazardous Materials or Regulated Substances, that level or quantity of
Hazardous Materials or Regulated Substances in any form or combination of
forms which does not constitute a violation of any Environmental Laws.
"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 or FFCA by any third party (including,
without limitation, any Governmental Authority), including, without
limitation, any condition resulting from the operation of Debtor's
business, business at the Premises and/or the operation of the business
of any other property owner or operator in the vicinity of the Premises
and/or any activity or operation formerly conducted by any person or
entity on or off the Premises.
"Environmental Indemnity Agreement" or "Environmental Indemnity
Agreements" means, as the context may require, the environmental
indemnity agreement dated as of the date of this Agreement to be executed
by Debtor for the benefit of FFCA with respect to a Premises or the
environmental indemnity agreements dated as of the date of this Agreement
to be executed by Debtor for the benefit of FFCA with respect to all of
the Premises, as the same may be amended from time to time. An
Environmental Indemnity Agreement will be executed for each Premises.
"Environmental Laws" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as
well as common law, relating to Hazardous Materials, Regulated
Substances, USTs 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, Regulated Substances and
USTs; requiring notification or disclosure of Releases or other
environmental condition of the Premises to any Governmental Authority or
other person or entity, whether or not in connection with transfer of
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<PAGE> 78
title to or interest in property; imposing conditions or requirements
relating to Hazardous Materials, Regulated Substances and USTs in
connection with permits or other authorization for lawful activity;
relating to nuisance, trespass or other causes of action related to
Hazardous Materials, Regulated Substances and USTs; and relating to
wrongful death, personal injury, or property or other damage in
connection with the physical condition or use of the Premises by reason
of the presence of Hazardous Materials, Regulated Substances and USTs in,
on, under or above the Premises.
"Event of Default" has the meaning set forth in Section 10.
"Fee" means an underwriting, site assessment, valuation, processing
and commitment fee equal to 1.0% of the sum of the Loan Amounts for all
of the Premises, which Fee shall be payable as set forth in Section 3.
"FFCA Entities" means, collectively, FFCA, Franchise Finance and any
Affiliate of FFCA or Franchise Finance.
"Franchise Finance" means Franchise Finance Corporation of America,
a Delaware corporation, and its successors.
"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.
"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.
"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.
3
<PAGE> 79
"Loan Documents" means, collectively, this Agreement, the Notes, the
Mortgages, the Environmental Indemnity Agreements, 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) the
business, condition, worth or operations of Debtor or any or all of the
Premises, including, without limitation, the value of any or all of the
Premises, or (ii) Debtor's ability to perform the obligations under the
Loan Documents.
"Mortgage" or "Mortgages" means, as the context may require, the
deed of trust or mortgage dated as of the date of this Agreement to be
executed by Debtor for the benefit of FFCA with respect to a Premises or
the deeds of trust or mortgages dated as of the date of this Agreement to
be executed by Debtor for the benefit of FFCA with respect to all of the
Premises, as the same may be amended from time to time. A Mortgage will
be executed for each Premises.
"Note" or "Notes" means, as the context may require, the promissory
note dated as of the date of this Agreement to be executed by Debtor in
favor of FFCA with respect to a Premises or the promissory notes dated as
of the date of this Agreement to be executed by Debtor in favor of
FFCA with respect to all of the Premises, as the same may be amended from
time to time. A Note will be executed for each Premises in the Loan
Amount corresponding to such 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 but excluding the Loan
Documents.
"Participation" has the meaning set forth in Section 13.P.
"Permitted Exceptions" means those recorded easements, restrictions,
liens and encumbrances set forth as exceptions in the title insurance
policies issued by Title Company to FFCA and approved by FFCA in
connection with the Loans.
"Person" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental
Authority or any other form of entity.
"Premises" means the parcel or parcels of real estate corresponding
to the FFCA File Numbers and addresses identified on Exhibit A attached
hereto, together with all rights, privileges and appurtenances associated
therewith and all buildings, improvements and fixtures now or
hereafter located thereon. As used herein, the term "Premises" shall
mean either a singular property or all of the properties collectively, as
the context may require.
"Regulated Substances" means "petroleum" and "petroleum-based
substances" or any similar terms described or defined in any
Environmental Laws and any applicable federal, state, county or local
laws applicable to or regulating USTs.
4
<PAGE> 80
"Release" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring,
emptying, escaping, dumping, disposing or other movement of Hazardous
Materials, Regulated Substances or USTs.
"Remediation" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or
otherwise remediate any Hazardous Material, Regulated Substances or USTs,
any actions to prevent, cure or mitigate any Release, any action to
comply with any Environmental Laws or with any permits issued pursuant
thereto, any inspection, investigation, study, monitoring, assessment,
audit, sampling and testing, laboratory or other analysis, or any
evaluation relating to any Hazardous Materials, Regulated Substances or
USTs.
"Securitization" has the meaning set forth in Section 13.P.
"Securitized Loan Pool" means any pool or group of loans that 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 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 13.P.
"UCC-1 Financing Statements" means such UCC-1 Financing Statements
as FFCA shall require to be executed and delivered by Debtor with respect
to the transactions contemplated by this Agreement.
"USTs" means any one or combination of tanks and associated piping
systems used in connection with the storage, dispensing and general use
of Regulated Substances.
2. TRANSACTION. On the terms and subject to the conditions set
forth in the Loan Documents, FFCA shall make the Loans. The Loans will
be evidenced by the Notes and secured by the Mortgages. Debtor shall
repay the outstanding principal amount of the Loans together with
interest thereon in the manner and in accordance with the terms and
conditions of the Notes and the other Loan Documents. The aggregate Loan
Amount shall be $2,500,000.00, 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 by this Agreement.
3. UNDERWRITING, SITE ASSESSMENT, VALUATION, PROCESSING AND
COMMITMENT FEE. Debtor paid FFCA a portion of the Fee pursuant to the
Commitment, and such portion was deemed fully earned when received. The
remainder of the Fee shall be paid at the Closing and shall be deemed
nonrefundable and fully earned upon the Closing. The portion of
the Fee paid and the balance due at Closing shall be adjusted down (and
returned or credited as appropriate) to reflect a Fee equal to 1% of the
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<PAGE> 81
actual Loan Amounts approved. In the event the transaction set forth in
this Agreement fails to close due to a breach or default by Debtor under
this Agreement, FFCA shall retain the portion of the Fee received by FFCA
(without affecting or limiting FFCA's remedies set forth in this
Agreement).
4. CLOSING. (a) Each Loan shall be closed (the "Closing")
contemporaneously with the satisfaction of all of the terms and
conditions contained in this Agreement, but in no event shall the date of
the Closing be extended beyond June 30, 1998, unless such extension shall
be approved by FFCA in its sole discretion (the date on which the Closing
shall occur is referred to herein as the "Closing Date").
(b) FFCA has ordered a title insurance commitment for each Premises
from Lawyers Title Insurance Corporation ("Title Company"). Prior to the
Closing Date, the parties hereto shall deposit with Title Company all
documents and moneys necessary to comply with their obligations under
this Agreement. Title Company shall not cause the transaction to close
unless and until it has received written instructions from FFCA and
Debtor 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, FFCA's in-house site inspection costs and fees, stamp taxes,
mortgage taxes, transfer fees, escrow and recording fees and site
inspection fees for the Premises. All real and personal property and
other applicable taxes and assessments and other charges relating to the
Premises which are due and payable on or prior to the Closing Date as
well as taxes and assessments due and payable subsequent to the Closing
Date but which Title Company requires to be paid at Closing as a
condition to the issuance of the title insurance policy described in
Section 9.C, shall be paid by Debtor at or prior to the Closing. The
Closing documents shall be dated as of the Closing Date.
Debtor and FFCA hereby employ Title Company to act as escrow agent
in connection with 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
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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 warranties of Debtor contained in this Section are being made by
Debtor as of the date of this Agreement and the Closing Date to induce
FFCA to enter into this Agreement and consummate the transactions
contemplated herein, and FFCA has relied, and will continue to rely, upon
such representations and warranties from and after the execution of this
Agreement and the Closing. Debtor represents and warrants to FFCA as
follows:
A. Information and Financial Statements. Debtor has
delivered to FFCA financial statements (either audited financial
statements or, if Debtor does not have audited financial statements,
certified financial statements) and certain other information, 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.
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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. (1) Debtor is duly organized
or formed, validly existing and in good standing under the laws of
its state of incorporation or formation, and qualified as a foreign
corporation, partnership or limited liability company, as
applicable, to do business in any jurisdiction where such
qualification is required. All necessary corporate, partnership or
limited liability company action has been taken to authorize the
execution, delivery and performance of this Agreement and of the
other documents, instruments and agreements provided for herein.
(2) The person(s) who have executed this Agreement on behalf
of Debtor are duly authorized so to do.
C. Enforceability of Documents. Upon execution by Debtor,
this Agreement and the other documents, instruments and agreements
to be executed in connection with this Agreement, shall constitute
the legal, valid and binding obligations of Debtor enforceable
against Debtor in accordance with their respective terms.
D. Litigation. There are no suits, actions, proceedings or
investigations pending or threatened against or involving Debtor or
the Premises before any arbitrator or Governmental Authority which
might reasonably result in any Material Adverse Effect in the
contemplated business, condition, worth or operations of Debtor or
the Premises.
E. Absence of Breaches or Defaults. Debtor is not, and the
authorization, execution, delivery and performance of this Agreement
and the 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 is a party or by which
Debtor, the Premises or any of the property of Debtor is subject or
bound. The authorization, execution, delivery and performance of
this Agreement and the documents, instruments and agreements
provided for herein will not violate any applicable law, statute,
regulation, rule, ordinance, code, rule or order.
F. Area Development; Wetlands. No condemnation or eminent
domain proceedings affecting the Premises have been commenced or, to
the best of Debtor's knowledge, are contemplated. To the best of
Debtor's knowledge, the areas where the Premises are located have
not been declared blighted by any Governmental Authority. The
Premises and/or the real property bordering the Premises are not
designated by any Governmental Authority as a wetlands.
G. Environmental. Debtor is fully familiar with the present
use of the Premises, and, after due inquiry, Debtor has become
generally familiar with the prior uses of the Premises. No Hazardous
Materials or Regulated Substances have been used, handled,
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manufactured, generated, produced, stored, treated, processed,
transferred or disposed of at or on the Premises, except in De
Minimis Amounts and in compliance with all applicable Environmental
Laws, except to the extent such Hazardous Materials or Regulated
Substances would not have a Material Adverse Effect, and no Release
or Threatened Release has occurred at or on the Premises which would
have a Material Adverse Effect. The activities, operations and
business undertaken on, at or about the Premises, including, but not
limited to, any past or ongoing alterations or improvements at
the Premises, are and have been at all times, in compliance with all
Environmental Laws except where such noncompliance would not have a
Material Adverse Effect. No further action is required to remedy
any Environmental Condition or violation of, or to be in full
compliance with, any Environmental Laws, and no lien has been
imposed on the Premises by any Governmental Authority in connection
with any Environmental Condition, the violation or threatened
violation of any Environmental Laws or the presence of any
Hazardous Materials, Regulated Substances or USTs on or off the
Premises.
There is no pending or threatened litigation or proceeding
before any Governmental Authority in which any person or entity
alleges the violation or threatened violation of any Environmental
Laws or the presence, Release, Threatened Release or placement on or
at the Premises of any Hazardous Materials, Regulated Substances or
USTs, 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, Regulated Substances or USTs on or at the
Premises, or the use, handling, manufacturing, generation,
production, storage, treatment, processing, transportation or
disposal of any Hazardous Materials, Regulated Substances or USTs at
or on the Premises; (b) received any notice under the citizen suit
provision of any Environmental Law in connection with the Premises
or any facilities, operations or activities conducted thereon, or
any business conducted in connection therewith; or (c) received any
request for inspection, request for information, notice, demand,
administrative inquiry or any formal or informal complaint or claim
with respect to or in connection with the violation or threatened
violation of any Environmental Laws or existence of Hazardous
Materials, Regulated Substances or USTs relating to the Premises or
any facilities, operations or activities conducted thereon or any
business conducted in connection therewith.
H. Title to Premises; First Priority Lien. Fee title to each
of the Premises is vested in Debtor, free and clear of all liens,
encumbrances, charges and security interests of any nature
whatsoever, except the Permitted Exceptions. Upon Closing, FFCA
shall have a first priority lien upon and security interest in each
of the Premises pursuant to the Mortgages and the UCC-1 Financing
Statements.
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I. No Other Agreements and Options. Neither Debtor nor the
Premises are subject to any commitment, obligation, or agreement,
including, without limitation, any right of first refusal, option to
purchase or lease granted to a third party, which could or 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.
J. No Mechanics' Liens. There are no outstanding accounts
payable which if not paid timely would have a Material Adverse
Effect, 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; 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 the nonpayment of which would have a
Material Adverse Effect; and Debtor shall and does hereby agree to
defend, indemnify and forever hold FFCA and FFCA's designees
harmless from and against any and all such mechanics' lien claims,
accounts payable or other commitments relating to the Premises.
K. No Reliance. Debtor acknowledges that FFCA did not
prepare or assist in the preparation of any of the projected
financial information used by Debtor in analyzing the economic
viability and feasibility of the transaction contemplated by this
Agreement. Furthermore, Debtor acknowledges that it has not relied
upon, nor may it hereafter rely upon, the analysis undertaken by
FFCA in determining the Loan Amounts, and such analysis will not be
made available to Debtor.
All representations and warranties of Debtor made in this
Agreement shall be and will remain true and complete as of and subsequent
to the Closing Date as if made and restated in full as of such time and
shall survive the Closing.
7. COVENANTS. Debtor covenants to FFCA from and after the Closing
Date as follows:
A. Inspections. Debtor shall, at all reasonable times, (I)
provide FFCA and FFCA's officers, employees, agents, advisors,
attorneys, accountants, architects, and engineers with access to the
Premises, all drawings, plans, and specifications for the Premises
in possession of Debtor, all engineering reports relating to the
Premises in the possession of Debtor, the files 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.
B. Corporate Fixed Charge Coverage Ratio. Until such time as
all of Debtor's obligations under the Notes and the other Loan
Documents are paid, satisfied and discharged in full, Debtor shall
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maintain a corporate fixed charge coverage ratio ("CFCCR") of at
least 1.25:1, as determined on the last day of each fiscal quarter
of Debtor (the "Date of Determination"). For purposes of this
Section, the term "CFCCR" shall mean with respect to the three month
period of time immediately preceding the Date of Determination (a
"Period 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, to (b) the sum of
Operating Lease Expense, current maturities of Debt, current
maturities of all Capital Leases and Interest Expense.
For purpose 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, which, in conformity with GAAP, would be
required to be accounted for on Debtor's balance sheet as a capital
lease and which is applicable to one or more of Debtor's properties.
"Debt" shall mean, for the Period of Determination:
(A) indebtedness for borrowed money;
(B) obligations evidenced by bonds, indentures, notes or
similar instruments;
(C) obligations to pay the deferred purchase price of
property or services;
(D) obligations under leases which should be, in
accordance with GAAP, recorded as Capital Leases; and
(E) 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 (A)
through (D) above,
allocable to Debtor; provided, however, Debt shall not include
Debtor's obligations to the Letter of Credit Provider with respect
to the Letters of Credit.
"Depreciation and Amortization" shall mean, for the Period of
Determination, depreciation and amortization as determined in
accordance with GAAP allocable to Debtor.
"Equipment Payment Amount" shall mean for the Period of
Determination the sum of all amounts payable under all loans secured
by equipment at the Premises.
"GAAP" means generally accepted accounting principles
consistently applied.
"Interest Expense" shall mean, for the Period of Determination,
the sum of all interest accrued or which should be accrued in
respect of all Debt, including interest attributable to Capital
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Leases, as determined in accordance with GAAP, allocable to
Debtor.
"Net Income" shall mean, for the Period of Determination, the
net income or net loss of Debtor allocable to Debtor. In
determining the amount of Net Income, (1) adjustments shall be made
for nonrecurring gains and losses allocable to the Period of
Determination, (2) deductions shall be made for, among other things,
Depreciation and Amortization, Interest Expense and Operating Lease
Expense allocable to the Period of Determination, (3) no deductions
shall be made for income taxes or charges equivalent to income taxes
allocable to the Period of Determination, as determined in
accordance with GAAP, and (4) a deduction shall be made for actual
corporate overhead expense allocable to the Period of Determination.
"Operating Lease Expense" shall mean, for the Period of
Determination, the expenses incurred under any operating lease, as
determined in accordance with GAAP, allocable to Debtor.
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 costs, expenses, damages,
claims and liabilities incurred by Debtor as the result of a Lost
Note.
D. Net Worth. At all times while the obligations of Debtor
to FFCA pursuant to this Agreement are outstanding, Debtor shall
maintain a net worth of at least $20,000,000.00, as determined in
accordance with generally accepted accounting principles
consistently applied.
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:
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A. Title. Fee title to each of the Premises shall be vested
in Debtor, free of all liens, encumbrances, restrictions,
encroachments and easements, except the Permitted Exceptions and the
liens created by the Mortgages and the UCC-1 Financing Statements.
Upon Closing, FFCA will obtain a valid and perfected first priority
lien upon and security interest in each of the Premises.
B. 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 fee title in
such Premises in Debtor, committing to insure FFCA's first priority
lien upon and security interest in such Premises subject only to
liens, encumbrances, restrictions and easements approved by FFCA,
and containing such endorsements as FFCA may require.
C. Compliance With Representations, Warranties and Covenants.
All obligations of Debtor under this Agreement shall have been fully
performed and complied with, and no event shall have occurred or
condition shall exist which would, upon the Closing Date, or, upon
the giving of notice and/or passage of time, constitute a breach or
default hereunder or under the Loan Documents or any other agreement
between FFCA and Debtor pertaining to the subject matter hereof, and
no event shall have occurred or condition shall exist or information
shall have been disclosed by Debtor or discovered by FFCA which has
had or would have a material adverse effect on the Premises, Debtor
or FFCA's willingness to consummate the transaction contemplated by
this Agreement, as determined by FFCA in its sole and absolute
discretion.
D. Proof of Insurance. Debtor shall have delivered to FFCA
certificates of insurance or copies of insurance policies showing
that all insurance required by the Loan Documents and providing
coverage and limits satisfactory to FFCA are in full force and
effect.
E. Opinions of Counsel to Debtor. Debtor shall have caused
Counsel to prepare and deliver one or more opinions to FFCA in form
and substance satisfactory to FFCA and its counsel.
F. Availability of Funds. FFCA presently has sufficient
funds to discharge its obligations under this Agreement. In the
event that the transaction contemplated by this Agreement does not
close on or before the 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.
G. Closing Documents. At or prior to the Closing Date, FFCA
and/or Debtor, as may be appropriate, shall execute and deliver or
cause to be executed and delivered to Title Company or FFCA, as may
be appropriate, all documents required to be delivered by this
Agreement, and such other documents, payments, instruments and
certificates, as FFCA may require in form acceptable to FFCA,
including, without limitation, the following:
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(1) Notes;
(2) Mortgages;
(3) Proof of Insurance;
(4) Opinions of Counsel to Debtor;
(5) UCC-1 Financing Statements;
(6) Environmental Indemnity Agreements; and
(7) Certifications (Confessions of Judgment), as
appropriate.
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 and such falsity would result in
a Material Adverse Effect in any material respect, or if Debtor
renders any false statement or account in any material respect.
(2) If any principal, interest or other monetary sum due under
the Notes, the Mortgages or any other Loan Document is not paid
within five days after the date when due; provided, however,
notwithstanding the occurrence of such an Event of Default, FFCA
shall not be entitled to exercise its rights and remedies set forth
below unless and until FFCA shall have given Debtor notice thereof
and a period of five days from the delivery of such notice shall
have elapsed without such Event of Default being cured.
(3) If Debtor fails to observe or perform any of the other
covenants (except with respect to a breach of the CFCCR
requirements, conditions, or obligations of this Agreement;
provided, however, if any such failure does not involve the payment
of any monetary sum, is not willful or intentional, does not place
any rights or property of FFCA in immediate jeopardy, and is within
the reasonable power of Debtor to promptly cure after receipt of
notice thereof, all as determined by FFCA in its reasonable
discretion, then such failure shall not constitute an Event of
Default hereunder, unless otherwise expressly provided herein,
unless and until FFCA shall have given Debtor notice thereof and a
period of 30 days shall have elapsed, during which period Debtor may
correct or cure such failure, upon failure of which an Event of
Default shall be deemed to have occurred hereunder without further
notice or demand of any kind being required. If such failure
cannot reasonably be cured within such 30-day period, as determined
by FFCA in its reasonable discretion, and Debtor is diligently
pursuing a cure of such failure, then Debtor shall have a reasonable
period to cure such failure beyond such 30-day period, which shall
not exceed 90 days after receiving notice of the failure from FFCA.
If Debtor shall fail to correct or cure such failure within such
90-day period, an Event of Default shall be deemed to have occurred
hereunder without further notice or demand of any kind being
required.
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(4) If Debtor becomes insolvent within the meaning of the
Code, files or notifies Mortgagee 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, hereinafter, an
"Action"), is not generally paying its debts as the same become due
or if Debtor becomes the subject of an involuntary petition under
the Code or other similar involuntary Action (in which case
Debtor shall be required to provide the Mortgagee with immediate
notice of the commencement or filing of such involuntary petition or
Action), and any of the following shall have occurred: (i) the
involuntary petition or involuntary Action shall not have been
dismissed within 60 days of the date on which it was filed or
otherwise commenced, (ii) an order for relief under the Code (or
similar order) shall have been entered by the court in the
involuntary proceeding or involuntary Action, or (iii) the court
having jurisdiction over such involuntary proceeding or involuntary
Action (upon motion or other request for relief by the party against
whom the involuntary petition or involuntary Action was filed or
otherwise commenced) shall not have granted Mortgagee full and final
relief from the automatic stay of Section 362 of the Code and from
any stay issued under Section 105 of the Code (or any similar stays
or injunctions) within 30 days of the filing or commencement of such
involuntary petition or involuntary Action so that Mortgagee is
thereafter free to exercise any and all of its rights and remedies
under the Loan Documents;
(5) If there is an "Event of Default" under any other Loan
Document or a breach or default, after the passage of all applicable
notice and cure or grace periods, under any of the Other Agreements.
(6) If there is a breach of the CFCCR requirements.
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, except as
otherwise provided herein or prohibited by applicable law, Debtor hereby
waives notice of intent to accelerate the obligations secured by the
Mortgages and notice of acceleration. Thereafter, FFCA may exercise, at
its option, concurrently, successively or in any combination, all
remedies available at law or in equity, including without limitation any
one or more of the remedies available under the Notes, the Mortgages or
any other Loan Document. Neither the acceptance of this Agreement nor
its enforcement shall prejudice or in any manner affect FFCA's right to
realize upon or enforce any other security now or hereafter held by FFCA,
it being agreed that FFCA shall be entitled to enforce this Agreement and
any other security now or hereafter held by FFCA in such order and
manner as it may in its absolute discretion determine. No remedy herein
conferred upon or reserved to FFCA is intended to be exclusive of any
other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the
Loan Documents to FFCA, or to which FFCA may be otherwise entitled, may
be exercised, concurrently or independently, from time to time and as
often as may be deemed expedient by FFCA.
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11. ASSIGNMENTS. A. FFCA may assign in whole or in part its rights
under this Agreement, including, without limitation, in connection with
any Transfer, Participation and/or Securitization. Upon any
unconditional assignment of FFCA's entire right and interest hereunder,
FFCA shall automatically be relieved, from and after the date of such
assignment, of liability for the performance of any obligation of FFCA
contained herein.
B. Debtor shall not, without the prior written consent of FFCA,
sell, assign, transfer, mortgage, convey, encumber or grant any easements
or other rights or interests of any kind in the Premises, any of Debtor's
rights under this Agreement or any interest in Debtor, whether
voluntarily, involuntarily or by operation of law or otherwise,
including, without limitation, by merger, consolidation, dissolution or
otherwise, except, subsequent to the Closing, as expressly permitted by
the 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,
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.
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) 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: J. Kirk Gallaher
Executive Vice President
and Chief Financial Officer
Uni-Marts, Inc.
477 East Beaver Avenue
State College, PA 16801-5690
Telephone: 814-234-6000
Telecopy: 814-234-3277
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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. Intentionally Omitted.
F. Severability. The provisions of this Agreement shall be
deemed severable. If any part of this Agreement shall be held
unenforceable, the remainder shall remain in full force and effect,
and such unenforceable provision shall be reformed by such court so
as to give maximum legal effect to the intention of the parties as
expressed therein.
G. Construction Generally. This is an agreement between
parties who are experienced in sophisticated and complex matters
similar to the transaction contemplated by this Agreement and is
entered into by both parties in reliance upon the economic and legal
bargains contained herein and shall be interpreted and construed in
a fair and impartial manner without regard to such factors as the
party which prepared the instrument, the relative bargaining powers
of the parties or the domicile of any party. Debtor and FFCA were
each represented by legal counsel competent in advising them of
their obligations and liabilities hereunder.
H. Other Documents. Each of the parties agrees to sign such
other and further documents as may be appropriate to carry out the
intentions expressed in this Agreement.
I. Attorneys' Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this
Agreement, the prevailing party shall be entitled to recover its
attorneys' fees and other costs in addition to any other relief to
17
<PAGE> 93
which it may be entitled. References in this Agreement to the
attorneys' fees and/or costs of FFCA shall mean both the fees
and costs of independent outside counsel retained by FFCA with
respect to this transaction and the fees and costs of FFCA's
in-house counsel incurred in connection with this transaction.
J. Entire Agreement. This Agreement and the other Loan
Documents, together with any other certificates, instruments or
agreements to be delivered in connection therewith, constitute the
entire agreement between the parties with respect to the subject
matter hereof, and there are no other representations, warranties or
agreements, written or oral, between Debtor and FFCA with respect to
the subject matter of this Agreement. Notwithstanding anything in
this Agreement to the contrary, upon the execution and delivery of
this Agreement by Debtor and FFCA, the Commitment shall be deemed
null and void and of no further force and effect and the terms and
conditions of this Agreement shall control notwithstanding that such
terms may be inconsistent with or vary from those set forth in the
Commitment.
K. Forum Selection; Jurisdiction; Venue; Choice of Law.
Debtor acknowledges that this Agreement was substantially negotiated
in the State of Arizona, the Agreement was signed by FFCA in the
State of Arizona and delivered by Debtor in the State of Arizona,
all payments under the Notes will be delivered in the State of
Arizona and there are substantial contacts between the
parties and the transactions contemplated herein and the State of
Arizona. For purposes of any action or proceeding arising out of
this Agreement, the parties hereto hereby expressly submit to
the jurisdiction of all federal and state courts located in the
State of Arizona and Debtor consents that it may be served with any
process or paper by registered mail or by personal service within or
without the State of Arizona in accordance with applicable law.
Furthermore, Debtor waives and agrees not to assert in any such
action, suit or proceeding that it is not personally subject to the
jurisdiction of such courts, that the action, suit or proceeding is
brought in an inconvenient forum or that venue of the action, suit
or proceeding is improper. It is the intent of the parties hereto
that all provisions of this Agreement shall be governed by and
construed under the laws of the State of Arizona. To the extent
that a court of competent jurisdiction finds Arizona law
inapplicable with respect to any provisions hereof, then, as to
those provisions only, the laws of the states where the Premises are
located shall be deemed to apply. Nothing in this Section shall
limit or restrict the right of FFCA to commence any proceeding in
the federal or state courts located in the states in which the
Premises are located to the extent FFCA deems such proceeding
necessary or advisable to exercise remedies available under this
Agreement or the other Loan Documents.
L. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of Debtor and FFCA and their respective
successors and permitted assigns, including, without limitation, any
18
<PAGE> 94
United States trustee, any debtor in possession or any trustee
appointed from a private panel.
N. Survival. Except for the conditions of Closing set forth
in Section 9, which shall be satisfied or waived as of the Closing
Date, all representations, warranties, agreements, obligations and
indemnities of Debtor and FFCA set forth in this Agreement shall
survive the Closing.
O. Waiver of Jury Trial and Punitive, Consequential, Special
and Indirect Damages. DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THIS WAIVER BY THE
PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS
BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
FURTHERMORE, DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO SEEK PUNITIVE,
CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE OTHER WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY IT 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. THE WAIVER BY DEBTOR AND FFCA OF ANY RIGHT THEY
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT
DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN.
P. Transfers, Participations and Securitization. (1) A
material inducement to FFCA's willingness to complete the
transactions contemplated by the Loan Documents is Debtor's
agreement that FFCA may, at any time, sell, transfer or assign any
Note, Mortgage and 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").
(2) 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 be required with respect to
Debtor by a purchaser, transferee, assignee, servicer, participant,
investor or rating agency involved with respect to such Transfer,
Participation and/or the Securitization, as applicable; provided,
however, Debtor shall not be required to make Disclosures of any
confidential information or any information which has not previously
been made public unless required by applicable federal or state
19
<PAGE> 95
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 Transfers, Participations or Securitization, so
long as such amendments would not have a material adverse effect
upon Debtor or the transactions contemplated hereunder.
(3) Debtor consents to FFCA providing the Disclosures, as well
as any other information which FFCA may now have or hereafter
acquire with respect to the Premises or the financial condition of
Debtor to each purchaser, transferee, assignee, servicer,
participant, investor or rating agency involved with respect to each
Transfer, Participation and/or Securitization, as applicable. FFCA
and Debtor (and their respective Affiliates) shall each pay their
own attorneys fees and other out-of-pocket expenses incurred in
connection with the performance of their respective obligations
under this Section.
(4) Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents, from and after the Closing of
a Securitization with respect to some or all of the Loans or 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 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 Loan Document or Other Agreement which relates to a loan
which has been the subject of a Securitization;
(b) a breach or default, after the passage of all
applicable notice and cure or grace periods, under any Loan
Document or Other Agreement which relates to a loan which has
been the subject of a Securitization transaction shall not
constitute an Event of Default under any 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 the Loans in any
Securitized Loan Pool shall not secure the obligations of
Debtor and/or its Affiliates 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 Debtor and/or its Affiliates
contained in any Loan Document or Other Agreement which
does correspond to a loan in such Securitized Loan Pool.
Q. Pennsylvania Non-Cross-Collateralization. Notwithstanding
anything to the contrary contained in this Agreement or the other
Loan Documents, the Loan Documents corresponding to each Loan
secured by Premises located in the Commonwealth of Pennsylvania
shall not secure the obligations of Debtor and/or the Affiliates
contained in any other Loan Documents or Other Agreements.
20
<PAGE> 96
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 E. WOOD
----------------------------------
Mark E. Wood
Vice President
DEBTOR:
UNI-MARTS, INC., a Delaware corporation
By /S/ J. KIRK GALLAHER
----------------------------------
J. Kirk Gallaher
Executive Vice President and
Chief Financial Officer
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 29, 1998 by
Mark E. Wood, Vice President of FFCA Acquisition Corporation, a Delaware
corporation, on behalf of the corporation.
/S/ DEBBIE L. SUMAN
--------------------------------------
Notary Public
OFFICIAL SEAL
My Commission Expires: DEBBIE L. SUMAN
5-5-2002 Notary Public State of Arizona
- ---------------------------- MARICOPA COUNTY
My Comm. Expires May 5, 2002
STATE OF ARIZONA ]
] SS.
COUNTY OF Maricoppa ]
The foregoing instrument was acknowledged before me on June 29, 1998 by
J. Kirk Gallaher, Executive Vice President and Chief Financial Officer,
of Uni-Marts, Inc., a Delaware corporation, on behalf of the
corporation.
/S/ DEBBIE L. SUMAN
--------------------------------------
Notary Public
OFFICIAL SEAL
My Commission Expires: DEBBIE L. SUMAN
5-5-2002 Notary Public State of Arizona
- ------------------------------ MARICOPA COUNTY
My Comm. Expires May 5, 2002
21
<PAGE> 97
<TABLE>
EXHIBIT (11)
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS (LOSS):
(A) Computation of the weighted average number of shares of common
stock outstanding for the periods indicated:
<CAPTION>
QUARTERS ENDED JULY 2, 1998 AND JULY 3, 1997
WEIGHTED
SHARES OF NUMBER OF DAYS NUMBER OF NUMBER OF SHARES
COMMON STOCK OUTSTANDING SHARE DAYS OUTSTANDING
------------ -------------- ---------- ----------------
<S> <C> <C> <C> <C>
Quarter Ended July 2, 1998
- --------------------------
April 3 - July 2 6,817,786 91 620,418,520
Treasury Stock Purchases ( 4,658) Various ( 4,658)
Shares Issued 9,570 Various 285,299
--------- -----------
6,822,698 620,699,161 6,820,870
========= =========== =========
Quarter Ended July 3, 1997
- --------------------------
April 4 - July 3 6,638,141 91 604,070,874
Treasury Stock Purchases ( 498) Various ( 1,994)
Shares Issued 7,263 Various 379,375
--------- -----------
6,644,906 604,448,255 6,642,289
========= =========== =========
<CAPTION>
THREE QUARTERS ENDED JULY 2, 1998 AND JULY 3, 1997
WEIGHTED
SHARES OF NUMBER OF DAYS NUMBER OF NUMBER OF SHARES
COMMON STOCK OUTSTANDING SHARE DAYS OUTSTANDING
------------ -------------- ------------- ----------------
<S> <C> <C> <C> <C>
Period Ended July 2, 1998
- -------------------------
October 1 - July 2 6,646,677 275 1,827,836,139
Treasury Stock Purchases ( 12,459) Various ( 737,964)
Shares Issued 188,480 Various 25,318,977
--------- -------------
6,822,698 1,852,417,152 6,736,062
========= ============= =========
Period Ended July 3, 1997
- -------------------------
October 1 - July 3 6,658,487 276 1,837,742,384
Treasury Stock Purchases ( 48,437) Various ( 10,450,515)
Shares Issued 34,856 Various 5,411,413
--------- -------------
6,644,906 1,832,703,282 6,640,229
========= ============= =========
</TABLE>
-1-
<PAGE> 98
<TABLE>
(B) Computation of Earnings (Loss) Per Share:
Computation of earnings (loss) per share is net earnings divided by the weighted
average number of shares of common stock outstanding for the periods indicated:
<CAPTION>
QUARTER ENDED THREE QUARTERS ENDED
July 2, July 3, July 2, July 3,
1998 1997 1998 1997
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Basic:
Weighted average number of shares
of common stock outstanding 6,820,870 6,642,289 6,736,062 6,640,229
---------- ---------- ---------- ----------
Earnings (loss) before extraordinary
item and cumulative effect of
accounting change $ 376,219 $ 4,289 ($ 327,718) ($ 727,742)
Extraordinary item-loss from debt
extinguishment 244,315 0 244,315 0
Cumulative effect of accounting
change 0 0 0 ( 1,468,140)
---------- ---------- ---------- ----------
Net earnings (loss) $ 131,904 $ 4,289 ($ 572,033) ($2,195,882)
---------- ---------- ---------- ----------
Earnings (loss) per share before
extraordinary item and cumulative
effect of accounting change $ 0.06 $ 0.00 ($ 0.05) ($ 0.11)
Loss per share from extraordinary
item ( 0.04) 0.00 ( 0.04) 0.00
Loss per share from cumulative
effect of accounting change 0.00 0.00 0.00 ( 0.22)
---------- ---------- ---------- ----------
Net earnings (loss) per share $ 0.02 $ 0.00 ($ 0.09) ($ 0.33)
========== ========== ========== ==========
Assumuming dilution:
Weighted average number of shares
of common stock outstanding 6,820,870 6,642,289 6,736,062 6,640,229
Net effect of dilutive stock
options-not included if the
effect was antidilutive 6,598 36,037 0 0
---------- ---------- ---------- ----------
Total 6,827,468 6,678,326 6,736,062 6,640,229
---------- ---------- ---------- ----------
Earnings (loss) before extraordinary
item and cumulative effect of
accounting change $ 376,219 $ 4,289 ($ 327,718) ($ 727,742)
Extraordinary item-loss from debt
extinguishment 244,315 0 244,315 0
Cumulative effect of accounting
change 0 0 0 ( 1,468,140)
---------- ---------- ---------- ----------
Net earnings (loss) $ 131,904 $ 4,289 ($ 572,033) ($2,195,882)
---------- ---------- ---------- ----------
Earnings (loss) per share before
extraordinary item and cumulative
effect of accounting change $ 0.06 $ 0.00 ($ 0.05) ($ 0.11)
Loss per share from extraordinary
item ( 0.04) 0.00 ( 0.04) 0.00
Loss per share from cumulative
effect of accounting change 0.00 0.00 0.00 ( 0.22)
---------- ---------- ---------- ----------
Net earnings (loss) per share $ 0.02 $ 0.00 ($ 0.09) ($ 0.33)
========== ========== ========== ==========
</TABLE>
-2-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEET DATED JULY 2, 1998 AND THE STATEMENT OF OPERATIONS FOR THE
QUARTER ENDED JULY 2, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000805020
<NAME> UNI-MARTS, INC.
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1998
<PERIOD-START> OCT-01-1997
<PERIOD-END> JUL-02-1998
<CASH> 4,167,593
<SECURITIES> 4,966
<RECEIVABLES> 2,806,941
<ALLOWANCES> 159,100
<INVENTORY> 10,819,088
<CURRENT-ASSETS> 25,931,597
<PP&E> 110,586,617
<DEPRECIATION> 47,667,900
<TOTAL-ASSETS> 95,482,570
<CURRENT-LIABILITIES> 24,819,846
<BONDS> 34,098,724
0
0
<COMMON> 731,680
<OTHER-SE> 28,992,542
<TOTAL-LIABILITY-AND-EQUITY> 95,482,570
<SALES> 199,609,618
<TOTAL-REVENUES> 201,483,336
<CGS> 147,711,411
<TOTAL-COSTS> 201,888,954
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 77,980
<INTEREST-EXPENSE> 3,032,673
<INCOME-PRETAX> (405,618)
<INCOME-TAX> (77,900)
<INCOME-CONTINUING> (327,718)
<DISCONTINUED> 0
<EXTRAORDINARY> (244,315)
<CHANGES> 0
<NET-INCOME> (572,033)
<EPS-PRIMARY> (0.09)
<EPS-DILUTED> (0.09)
</TABLE>
