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As filed with the Securities and Exchange Commission on May 3, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-11
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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FM 1993A CORP.
(Exact name of registrant as specified in governing instruments)
CRC-I LIMITED PARTNERSHIP
CRC-II LIMITED PARTNERSHIP
FOODMAKER, INC.
(exact name of co-registrants as specified in their governing instruments)
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One Financial Center, 13th Floor 9330 Balboa Avenue
Boston, Massachusetts 02111 San Diego, California 92123
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(Address of principal executive (Address of principal executive
offices of FM 1993A Corp., offices of
CRC-I and CRC-II) Foodmaker, Inc. )
Charles W. Duddles
9330 Balboa Avenue
San Diego, California 92123
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(Name and address of registrant's and
co-registrants' agent for service)
With copies to:
Rhonda S. Wagner, Esq.
Gibson, Dunn & Crutcher
750 B Street, Suite 3300
San Diego, California 92101
(619) 544-8025
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
--------------------
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Offering Registration
being Registered Registered Per Unit(1) Price(1) Fee
---------------- ---------- ----------- -------- ------------
Series B 9.75% Senior
Secured Notes due
November 1, 2003 $70,000,000 100% $70,000,000 $24,138
CRC-I Guaranty thereof _ _ _ _
CRC-II Guaranty thereof _ _ _ _
(1) Estimated solely for the purpose of calculating the registration fee.
--------------------
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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FM 1993A CORP.
Cross Reference Sheet Showing Location in Prospectus of Information
Required by Items of Part I of Form S-11
Numbers and Captions Location or Heading in Prospectus
-------------------- ---------------------------------
1. Forepart of the Registration Outside Front Cover Page of
Statement and Outside Front Cover Prospectus
Page of Prospectus
2. Inside Front and Outside Back Cover Inside Front Cover and Outside Back
Pages of Prospectus Cover Pages of Prospectus; Table of
Contents; Available Information;
Incorporation of Certain Documents by
Reference
3. Summary Information, Risk Factors, Prospectus Summary; Risk Factors
and Ratio of Earnings to Fixed
Charges
4. Determination of Offering Price The Exchange Offer
5. Dilution Not Applicable
6. Selling Security Holders Not Applicable
7. Plan of Distribution Prospectus Summary; The Exchange
Offer
8. Use of Proceeds The Exchange Offer
9. Selected Financial Data Selected Unaudited Pro Forma
Financial Data
10. Management's Discussion and Analysis Management's Discussion and Anaylsis
of Financial Condition and Results of of Financial Condition and Results of
Operations Operations
11. General Information as to Registrant Prospectus Summary; Business
12. Policy with Respect to Certain Prospectus Summary; Business
Activities
13. Investment Policies of Registrant Prospectus Summary; Description of
Leases; Business
14. Description of Real Estate Description of Underlying
Transactions
15. Operating Data Description of Leases
16. Tax Treatment of Registrant and Its Certain Federal Income Tax
Security Holders Consequences
17. Market Price of and Dividends on the Equity Ownership
Registrant's Common Equity and
Related Stockholder Matters
18. Description of Registrant's Prospectus Summary; Description of
Securities Notes
19. Legal Proceedings Not Applicable
20. Security Ownership of Certain Equity Ownership
Beneficial Owners and Management
21. Directors and Executive Officers Management
22. Executive Compensation Management
23. Certain Relationships and Related Not Applicable
Transactions
24. Selection, Management and Custody of Business
Registrant's Investments
25. Policies with Respect to Certain Prospectus Summary; Business
Transactions
26. Limitations of Liability Description of Underlying
Transactions; Description of New
Notes
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Numbers and Captions Location or Heading in Prospectus
-------------------- ---------------------------------
27. Financial Statements and Information Incorporation of Certain Foodmaker
Documents by Reference
28. Interests of Named Experts and Not Applicable
Counsel
29. Disclosure of Commission Position on Not Applicable
Indemnification for Securities Act
Liabilities
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SUBJECT TO COMPLETION, DATED MAY , 1994
P R O S P E C T U S
FM 1993A CORP.
Offer for all Outstanding
Privately Placed 9.75% Senior Secured Notes
due November 1, 2003
in Exchange for
Series B 9.75% Senior Secured Notes due November 1, 2003
Guaranteed by CRC-I Limited Partnership and CRC-II Limited Partnership
The offer will expire at midnight, New York City time,
on ______________, 1994, unless extended.
FM 1993A Corp. (the "Issuer"), a Delaware corporation, hereby offers (the
"Exchange Offer"), upon the terms and subject to the conditions set forth
herein and in the related Letter of Transmittal, to exchange up to $70 million
aggregate principal amount of Series B 9.75% Senior Secured Notes due
November 1, 2003 (the "New Notes") of the Issuer for a like amount of privately
placed 9.75% Senior Secured Notes due November 1, 2003 (the "Old Notes" and
together with the New Notes, the "Notes") from the holders (the "Holders of Old
Notes"; individually, a "Holder of Old Notes") thereof.
The New Notes are being offered hereunder in order to satisfy the
obligations of the Issuer under a registration rights agreement dated as of
December 15, 1993 (the "Registration Rights Agreement") among the Issuer,
Foodmaker, Inc. ("Foodmaker" or "Lessee"), CRC-I Limited Partnership ("CRC-I"),
CRC-II Limited Partnership ("CRC-II") and the purchasers of the Old Notes who
are signatories to the Registration Rights Agreement (the "Initial
Purchasers"). The Exchange Offer is designed to provide to Holders of Old
Notes an opportunity to acquire New Notes which, unlike the Old Notes, are
expected to be freely transferable at all times, subject to state securities or
"blue sky" law restrictions, provided that the Holder of Old Notes is not an
"affiliate" of the Issuer within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), and represents that the New Notes are being
acquired in the ordinary course of such holder's business and that said Holder
of Old Notes is not engaged in, and does not intend to engage in, a
distribution of the New Notes. With the exception of the freely transferable
nature of the New Notes, the New Notes are substantially identical to the Old
Notes. Both the Old Notes and the New Notes are guaranteed by CRC-I and CRC-II
but are without recourse to the general partners of such limited partnerships.
See "The Exchange Offer - Purpose of the Exchange Offer."
The Issuer will accept for exchange any and all validly tendered Old Notes
on or prior to midnight, New York time, on ______________, 1994, unless
extended (the "Expiration Date"). Tenders of Old Notes made pursuant to the
Exchange Offer may not be withdrawn. Foodmaker will pay the expenses of the
Exchange Offer.
The New Notes will bear interest from July 1, 1994. Accordingly, Holders
of Old Notes who receive New Notes in exchange for Old Notes will forego
accrued but unpaid interest on their exchanged Old Notes for the period from
July 1, 1994 to the date of exchange, but will be entitled to such interest
under the New Notes. See "Description of New Notes."
The Issuer makes no recommendation to Holders of Old Notes as to whether
to tender or refrain from tendering all of any portion of their Old Notes
pursuant to the Exchange Offer. In addition, no one has been authorized to
make any such recommendation. Holders of Old Notes must make their own
decision whether to tender pursuant to the Exchange Offer and, if so, the
principal amount of Old Notes to tender after reading this Prospectus and
consulting with their advisors, if any, based on their own financial position
and requirements.
The Exchange Offer is not conditioned upon any minimum principal amount of
Old Notes being tendered for exchange. However, the Exchange Offer is subject
to certain customary conditions. See "The Exchange Offer."
FOR A DISCUSSION OF CERTAIN OTHER CONSIDERATIONS RELEVANT TO AN
INVESTMENT IN
THE NEW NOTES, SEE "RISK FACTORS."
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE
COMMISSION OR ANY STATE COMMISSION PASSED UPON THE ACCURACY
OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
The date of this Prospectus is ______________, 1994.
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INCORPORATION OF CERTAIN FOODMAKER DOCUMENTS BY REFERENCE
The following documents previously filed with the Securities and Exchange
Commission (the "Commission") by Foodmaker pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated herein by
reference and made a part hereof: (1) Foodmaker's Annual Report on Form 10-K
for the fiscal year ended October 3, 1993; (2) Foodmaker's Quarterly Reports on
Form 10-Q for the fiscal quarters ended January 23, 1994[, and April __, 1994];
and (3) Foodmaker's Current Report on Form 8-K/A dated January 27, 1994.
Each document filed by Foodmaker pursuant to Sections 13(a), 13(c), 14 or
15(d) the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the New Notes made hereby shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such document.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Foodmaker will provide without charge to each person, including any
beneficial owner of Old Notes, to whom this Prospectus is delivered, upon the
written or oral request of such person, a copy of any or all of the documents
which have been incorporated by reference in this Prospectus (other than
exhibits to such documents which are not specifically incorporated by reference
into such documents). Such requests should be directed to Foodmaker, Inc.,
Attn: Corporate Communications, 9330 Balboa Avenue, San Diego, California
92123, (619) 571-2121.
AVAILABLE INFORMATION
The Issuer has filed with the Commission a registration statement relating
to the New Notes offered hereby (herein, together with all amendments and
exhibits, referred to as the "Registration Statement") under the Securities
Act. This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information,
reference is hereby made to the Registration Statement. Statements made in
this Prospectus as to the contents of any contract, agreement or other document
referred to are not necessarily complete. With respect to each such contract,
agreement or other document filed as an exhibit to the Registration Statement,
reference is made to such exhibit for a more complete description thereof, and
each such statement shall be deemed qualified in its entirety by such
reference. The Registration Statement and the exhibits and schedules thereto
may be inspected without charge and copied at prescribed rates at the Public
Reference Section of the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's regional offices at 7 World
Trade Center, New York, New York 10048 and at the Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
The Issuer is required under the terms of an indenture dated as of
December 15, 1993, between the Issuer and State Street Bank and Trust Company,
as trustee (the "Trustee"), as amended by an amendment dated
__________________, 1994 (the "Indenture"), to provide a copy of: (i) a
balance sheet of the Issuer at the end of each year setting forth in
comparative form the figures for the corresponding period in the previous
fiscal year, and (ii) statements of income and retained earnings and of changes
in cash flows of the Issuer for such year, setting forth in comparative form
the figures for the previous fiscal year, all in reasonable detail and
certified by the treasurer of the Issuer as being accurate and complete and, if
requested by the holders of more than 50% of the aggregate principal amount of
all Notes outstanding, or if required under any applicable securities laws,
accompanied by a letter from a firm of independent certified public accountants
of nationally recognized reputation, which certificate shall state that such
financial statements fairly present the financial condition of the Issuer and
that the examination of such accountants in connection therewith has been made
in accordance with generally accepted auditing standards, and accordingly
employed such tests of the accounting records and such other auditing
procedures as were deemed necessary.
Moreover, during the period beginning on the original issuance date of the
Old Notes and ending on the date that is three years from such date, the Issuer
is required, during any period in which Foodmaker or the Issuer is not subject
to
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Section 13 or 15(d) under the Exchange Act, to make available to any
Holder or beneficial holder of Old Notes which continue to be Restricted Notes,
in connection with any sale thereof, and make available to any prospective
purchaser of Old Notes from such Holder or beneficial holder of Old Notes, the
information required pursuant to Rule 144A(d)(4) under the Securities Act upon
the request of such Holder or beneficial holder of Old Notes. The Issuer is
also required to take such further action as any Holder or beneficial holder of
Old Notes may reasonably request, all to the extent required from time to time,
to enable such Holder or beneficial holder of Old Notes to sell its Old Notes
without registration under the Securities Act within the limitation of the
exemption provided by Rule 144A, as such rule may be amended from time to time.
Upon the request of any Holder or beneficial holder of Old Notes, the Issuer is
required to deliver to such Holder or beneficial holder of Old Notes a written
statement as to whether it has complied with such requirements.
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Based on interpretive letters previously issued by the Staff of the
Division of Corporation Finance of the Commission to third parties, the Issuer
believes that the New Notes issued pursuant to the Exchange Offer may be
offered for resale, resold and otherwise transferred by any holder thereof,
without complying with the registration and prospectus delivery provisions of
the Securities Act, provided that such holder (i) is not an "affiliate" or
"promoter" (as such terms are defined in Rule 405 under the Securities Act) of
the Issuer, (ii) is not participating in a distribution of the New Notes to be
received in the Exchange Offer, (iii) is not, except as noted below, a broker-
dealer and (iv) is acquiring the New Notes in the ordinary course of such
holder's business. Based on the prior interpretive letters, no broker-dealer
may resell or otherwise transfer New Notes issued pursuant to the Exchange
Offer without complying with the registration requirements of the Securities
Act, unless (a) such broker-dealer is holding Old Notes only as nominee, or
(b)(i) such broker-dealer acquired the Old Notes for its own account as a
result of market-making or other trading activities and undertakes to satisfy
certain conditions consistent with the requirements of the Securities Act,
including the delivery of a prospectus which contains a plan of distribution
with respect to such resale transactions (such plan of distribution need not
name the broker-dealer or disclose the amount of New Notes held by the broker-
dealer), and (ii) such broker-dealer has not entered into any arrangement or
understanding with the Issuer or an affiliate of the Issuer to distribute the
New Notes received pursuant to the Exchange Offer. If any Holder of Old Notes
does not satisfy any of the foregoing conditions, such holder may not be
entitled to rely on the previously issued interpretive letters.
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus.
The Issuer
On January 5, 1994, in a private placement transaction, the Issuer issued
and sold $70,000,000 aggregate principal amount of Old Notes. Proceeds from
the issuance of the Old Notes were used to purchase two secured promissory
notes issued by two special purpose Massachusetts limited partnerships, CRC-I
and CRC-II, in the principal amounts of $30,172,952 and $39,827,048, from CRC-I
and CRC-II, respectively (the "CRC-I Note" and the "CRC-II Note", respectively;
collectively, the "CRC Notes"). The Issuer is making the Exchange Offer to
satisfy its obligations under the Registration Rights Agreement, which requires
the Issuer to use its best efforts to effect the Exchange Offer. The Issuer
will not receive any additional proceeds from the offering of the New Notes.
The Exchange Offer
Securities Offered Up to $70,000,000 aggregate principal amount of
Series B 9.75% Senior Secured Notes due
November 1, 2003.
The Exchange Offer The New Notes are being offered in exchange for a
like principal amount of the Old Notes. The
issuance of the New Notes is intended to satisfy
the obligations of the Issuer under the terms of
the Registration Rights Agreement. The New Notes
are substantially identical to the Old Notes
except that the New Notes will be registered under
the Securities Act.
Expiration Date;
No Withdrawal Rights The Exchange Offer shall expire at midnight, New
York City time on _________, 1994 or such later
date to which it is extended by the Issuer (the
"Expiration Date"). Old Notes tendered pursuant
to the Exchange Offer and the Letter of
Transmittal delivered herewith may not be
withdrawn.
Accrued Interest on the The New Notes will bear interest from and
New Notes including July 1, 1994 (the day after the last
date for which interest will have been paid on the
Old Notes prior to the exchange). Accordingly,
Holders of Old Notes who receive New Notes in
exchange for Old Notes will forego accrued but
unpaid interest on their exchanged Old Notes for
the period from and including July 1, 1994 to the
date of exchange, but will be entitled to such
interest under the New Notes.
Conditions of the Exchange The Exchange Offer is subject to certain customary
Offer conditions, any or all of which may be waived by
the Issuer. See "The Exchange Offer - Conditions
to the Exchange Offer."
Procedures for Tendering
Old Notes Each Holder of Old Notes wishing to accept the
Exchange Offer must complete and sign the Letter
of Transmittal, in accordance with the
instructions contained therein and submit the
Letter of Transmittal to the Exchange Agent
identified below. See "The Exchange Offer -
Procedures for Tendering."
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Guaranteed Delivery Holders of Old Notes who wish to tender their Old
Procedures Notes and whose Old Notes are not immediately
available or who cannot deliver their Old Notes
and Letter of Transmittal or any other documents
required by the Letter of Transmittal to the
Exchange Agent prior to the Expiration Date, must
tender their Old Notes according to the guaranteed
delivery procedures set forth in "The Exchange
Offer - Guaranteed Delivery Procedures."
Acceptance of Old Notes
and Delivery of New
Notes The Issuer will accept for exchange any and all
Old Notes which are properly tendered in the
Exchange Offer prior to midnight, New York City
time, on the Expiration Date. The New Notes
issued pursuant to the Exchange Offer will be
delivered promptly following the Expiration Date.
See "The Exchange Offer - Acceptance of Old Notes
for Exchange; Delivery of New Notes."
Exchange Agent State Street Bank and Trust Company; telephone
(617) 985-3023. See "The Exchange Offer -
Exchange Agent."
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Terms Of The New Notes
Issuer The Issuer is a special purpose corporation formed
for purposes of issuing the Old Notes and the New
Notes (for its own account and as agent acting on
behalf of CRC-I and CRC-II) and purchasing the CRC
Notes.
Issue Principal Amount Up to $70 million principal amount of senior
secured notes.
Comparison with Old Notes It is expected that the New Notes will be freely
transferable under the Securities Act by Holders
of New Notes who are not affiliates of the Issuer,
subject to any restrictions on transfer imposed by
state securities or "blue sky" laws and those
described in "The Exchange Offer - Resales of New
Notes." The Holders of Old Notes are currently
entitled to certain registration rights pursuant
to the Registration Rights Agreement.
Consummation of the Exchange Offer will satisfy
the Issuer's obligations thereunder, and Holders
of Old Notes who do not exchange their Old Notes
for New Notes will no longer be entitled to any
registration rights and will not be able to
reoffer, resell or otherwise dispose of their Old
Notes, unless they are subsequently registered
under the Securities Act, which the Issuer will
have no obligation to do, or unless an exemption
from the registration requirements of the
Securities Act is available. See "The Exchange
Offer - Purpose of the Exchange Offer." The New
Notes otherwise will be substantially identical in
all respects to the Old Notes.
To the extent that Holders of Old Notes do not
participate in the Exchange Offer and Old Notes
remain outstanding after the consummation of the
Exchange Offer, any prepayments on the Notes would
be made on a pro rata basis pursuant to the
prepayment provisions contained in the Indenture.
In addition, Holders of New Notes and Old Notes,
together ("Holders of Notes"), will have the
voting and other rights described therein.
Maturity November 1, 2003.
Interest Rate 9.75% per annum.
Priority The New Notes will be senior secured indebtedness
of the Issuer.
Interest Payment Dates Semi-annual on the first business day of each
January and July, commencing on the first business
day of July, 1994 and continuing through the first
business day of July, 2003. A final interest
payment will also be due at Maturity.
Optional Prepayment Non-prepayable for five years. Thereafter
prepayable at the option of the Lessee in the
event of an "Early Termination" (i.e., termination
of the Lease and a reconveyance of the Deed of
Trust) of one of the Existing Assets (other than
Potential Existing Assets) or Construction Assets
(other than Potential Construction Assets), as the
case may be pursuant to the CRC Leases (as that
term is defined in "- The Underlying
Transactions") and the CRC Notes at the following
premiums: year six - 5.00%, year seven - 3.75%,
year eight - 2.50%, year nine - 1.25%, year ten -
0.00%. The principal amounts prepaid are to be
credited against the payment due at the beginning
of the tenth year.
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Amortization Interest-only payments through year nine; by the
beginning of year ten, 50% of the original Issue
Principal Amount must have been repaid; the
balance is due upon Maturity.
Collateral for Notes; The New Notes will be secured by, among other
Guaranties things, the following (collectively, the "Note
Collateral"):
(1) The pledge by the Issuer to the Trustee of
the CRC Notes and the CRC Collateral (as defined
below); and
(2) A pledge of the Issuer's rights in and to
the Collection Account, the Construction
Account, the Sinking Fund Account and the Equity
Collection Account (each as described in
"Description of the Underlying Transactions -
Construction Account - Collection,
Administrative Expenses, Sinking Fund and Equity
Collection Accounts") as well as certain other
accounts to be maintained by the Trustee
pursuant to the Indenture, and all funds held
therein.
The New Notes will also be guaranteed by each of
CRC-I and CRC-II, which guaranties will be
nonrecourse to the general partners of each of
CRC-I and CRC-II.
CRC-I Note Collateral The CRC-I Note is secured by, among other things,
the following (collectively, the "CRC-I
Collateral"):
(1) An absolute assignment to the Issuer of
CRC-I's rights as Lessor under the CRC-I
Lease (as defined in "- The Underlying
Transactions");
(2) A first priority deed of trust in favor of
the Issuer on CRC-I's rights in the Existing
Assets under the Estates For Years (as such
terms are defined in "- The Underlying
Transactions"), as acquired; and
(3) A first priority deed of trust in favor of
the Issuer on Foodmaker's reversionary rights
in the Existing Assets.
The CRC-I Note is cross-collateralized with the
CRC-II Collateral (as defined below).
CRC-II Note Collateral The CRC-II Note is secured by, among other things,
the following (collectively, the "CRC-II
Collateral," and together with the CRC-I
Collateral, the "CRC Collateral").
(1) An absolute assignment to the Issuer of
CRC-II's rights as Lessor under the CRC-II
Lease (as defined in "- The Underlying
Transactions");
(2) A first priority deed of trust in favor of
the Issuer on CRC-II's rights in the
Construction Assets under the Estates For
Years, (as such terms are defined in "- The
Underlying Transactions"), as acquired; and
(3) A first priority deed of trust in favor of
the Issuer on Foodmaker's reversionary rights
in the Construction Assets, as acquired.
The CRC-II Note is cross-collateralized with the
CRC-I Collateral.
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Payments of Principal and
Interest Prior to
Maturity; the Sinking
Fund The CRC Notes are interest-only through year nine
with interest payments required semi-annually as
described above. In addition to the semi-annual
interest payments, CRC-I and CRC-II must pay
$25,000 semi-annually through Maturity to fund
certain administrative expenses. Semi-annual
sinking fund payments of $747,402 through year
nine, and a special sinking fund payment of
$5,500,000 due the last business day of
December 2002, will be collectively applied to pay
a portion of the principal payment due at the
beginning of year ten. These sinking fund
obligations will be reduced to the extent of an
Early Termination. See "Description of the Leases
- Early Termination; Lease Modification." All of
these payments are expected to be covered by the
Basic Rent and Special Rent payments to be made by
Foodmaker under the CRC Leases. See "Description
of the Leases - Rental Rates."
By the beginning of year ten, the outstanding
balance of the Notes must be reduced to
$35,000,000 or less. The sinking fund will be
applied at the beginning of year ten to reduce the
outstanding debt, and CRC-I and CRC-II will be
obligated to make an additional principal payment
equal to the difference between $35,000,000 and
the balance in the sinking fund. This additional
principal payment is required to be covered by the
special rent payments and the purchase price
payable under the rejectable offer required to be
made by Foodmaker under the CRC Leases (the "Year
Nine Offer") not less than 120 nor more than 270
days prior to the first business day of January,
2003 (the "Year Nine Termination Date"). See
"Description of the Leases - Rejectable Offer
Requirements."
After the payment due at the beginning of year ten
as described above, CRC-I and CRC-II are required
to make one additional semi-annual payment on the
first business day of July, 2003 of interest only
and $25,000 to fund certain administrative
expenses, and then upon Maturity must pay the
remaining principal balance plus accrued interest
plus a final $25,000 payment for administrative
expenses. These payments are required to be
covered by the Basic Rent payable by Foodmaker
under the CRC Leases plus the Rejectable Offer
required to be made by Foodmaker under the CRC
Leases at Maturity. See "Description of the
Leases - Rejectable Offer Requirements."
Certain Covenants The Indenture pursuant to which the New Notes will
be issued restricts, among other things, the
incurrence of additional indebtedness, the use of
proceeds from the sale and issuance of the Old
Notes, the creation of certain liens, transactions
with affiliates, the engagement in any business or
activity other than that expressly permitted by
the Indenture, and the merger or consolidation of
the Issuer or the transfer of any part of the
Trust Estate (as defined in "Description of the
New Notes - Certain Definitions"), except as
expressly permitted by the Indenture. See
"Description of New Notes - Certain Covenants."
For more complete information regarding the New
Notes, see "Description of New Notes."
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The Underlying Transactions
The following is a summary description of the transactions underlying the
Exchange Offer. On January 5, 1994, in a private placement transaction, the
Issuer issued and sold $70,000,000 aggregate principal amount of Old Notes.
The Issuer used the proceeds from the sale of the Old Notes to purchase the CRC
Notes. The proceeds from the purchase of the CRC Notes were used by CRC-I and
CRC-II to enable each of them to acquire from Foodmaker estates for years to
expire on November 30, 2028 (the "Estates for Years," individually, an "Estate
For Years") in: (1) in the case of CRC-I, 38 existing Jack In The Box
restaurants (the "Existing Assets"), and (2) in the case of CRC-II, four
existing Jack In The Box restaurants and approximately 34 to-be-constructed
Jack In The Box restaurants (collectively, the "Construction Assets") subject
to Foodmaker's right of substitution, as described in "Description of the
Leases - Right of Substitution." The locations of the Existing Assets,
including those Existing Assets which Foodmaker has not yet acquired fee title
to (the "Potential Existing Assets;" individually, a "Potential Existing
Asset") and the locations of the Construction Assets, including those
Construction Assets which Foodmaker has not yet acquired fee title to (the
"Potential Construction Assets;" individually, a "Potential Construction
Asset"), are identified in "Description of the Underlying Transactions -
Schedule of Properties."
Pursuant to a Note Purchase Agreement between the Issuer and CRC-I, a
portion of the proceeds from the sale of the Old Notes was used to purchase the
CRC-I Note, issued by CRC-I in the principal amount of $30,172,952, for a
purchase price equal to $28,633,100 (the "CRC-I Note Purchase Price").
Pursuant to a Note Purchase Agreement between the Issuer and CRC-II, a portion
of the proceeds from the sale of the Old Notes was used to purchase the CRC-II
Note, issued by CRC-II in the principal amount of $39,827,048, for a purchase
price equal to $37,794,505 (the "CRC-II Note Purchase Price"). The purchase
price for each of the CRC Notes has been disbursed in full; however, a portion
of the purchase price for each such note has been held as collateral security
for the Notes by the Trustee acting on behalf of the Holders of Notes, pursuant
to the terms of the Indenture, to be released by the Trustee to Foodmaker from
time to time (a) in the case of the Potential Existing Assets, as soon as
Foodmaker has acquired fee title thereto and conveyed an Estate For Years
therein to CRC-I and all other conditions contained in the Indenture to the
release of the portion of the CRC-I Note Purchase Price allocable thereto have
been satisfied, and (b) in the case of the Potential Construction Assets, as
soon as Foodmaker has acquired fee title thereto and conveyed an Estate for
Years therein to CRC-II and all other conditions contained in the Indenture to
the release of the portion of the CRC-II Note Purchase Price allocable thereto
have been satisfied.
Concurrently with the acquisition by CRC-I of the Estate For Years in the
Existing Assets (other than the Potential Existing Assets), CRC-I leased such
Existing Assets to Foodmaker pursuant to a long-term, bond-type, triple-net
master lease (the "CRC-I Lease"). Similarly, concurrently with the acquisition
by CRC-II of the Estate For Years in the Construction Assets (other than the
Potential Construction Assets), CRC-II leased such Construction Assets to
Foodmaker pursuant to a long-term, bond-type triple-net master lease (the
"CRC-II Lease"). As CRC-I acquires the Estates For Years in the Potential
Existing Assets, upon the acquisition by Foodmaker of the fee interest in the
location thereof (subject to Foodmaker's right of substitution as it relates to
the Potential Existing Assets, as described in "Description of the Leases -
Right of Substitution"), the CRC-I Lease will be amended to subject such
Potential Existing Assets to the CRC-I Lease. Likewise, as CRC-II acquires the
Estate For Years in the Potential Construction Assets, upon the acquisition by
Foodmaker of the fee interest in the location thereof (subject to Foodmaker's
right of substitution as it relates to the Potential Construction Assets, as
described in "Description of the Leases - Right of Substitution"), the CRC-II
Lease will be amended to subject such Potential Construction Assets to the
CRC-II Lease. The CRC-I Lease and the CRC-II Lease shall hereinafter be
referred to as the "CRC Leases" or the "Leases." Each of the CRC Leases will
have an initial term expiring on November 1, 2003 (the "Basic Term").
Since January 5, 1994, Foodmaker has been responsible for, and is required
to make beginning July 1, 1994, rental payments on all of the Existing Assets
(including the Potential Existing Assets) under the CRC-I Lease regardless of
whether CRC-I has acquired the Estate For Years therein or whether all other
conditions to the release of the portions of the CRC-I Note Purchase Price
allocable thereto have been satisfied. Since January 5, 1994, Foodmaker has
also been responsible for, and is required to make beginning July 1, 1994,
rental payments on each Construction Asset (including the Potential
Construction Assets) under the CRC-II Lease regardless of whether each
Construction Asset has been acquired and/or construction has been completed by
Foodmaker and whether CRC-II has acquired an Estate For Years therein or
whether all other conditions to the release of the portion of the CRC-II Note
Purchase Price allocable thereto have been
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satisfied. As more fully described in the "Description of the Underlying
Transactions," the aggregate payments required to be made by Foodmaker under
the CRC-I Lease and the CRC-II Lease are sufficient to pay interest and
principal on the Notes by the end of the Basic Term.
The CRC Leases require Foodmaker to make the Year Nine Offer not less than
120 nor more than 270 days prior to the Year Nine Termination Date and to
purchase the Estates For Years in certain properties designated by Foodmaker in
the Year Nine Offer from CRC-I and CRC-II in the minimum amount of $12 million
(subject to Foodmaker's rights of Early Termination, see "Description of the
Leases - Early Termination; Lease Modification") which amount, when added to
the then-existing balance in a sinking fund which Foodmaker is required to fund
on a semi-annual basis pursuant to the terms of the Leases, would be sufficient
to liquidate 50% of the then outstanding principal balance of the Notes. The
CRC Leases also require Foodmaker to make a rejectable offer prior to the end
of the Basic Term to purchase CRC-I's and CRC-II's Estates For Years in the
remaining properties in an amount at least equal to the then outstanding
principal balance of the Notes. Said rejectable offer amounts shall be reduced
to the extent there is an Early Termination, or in the event Foodmaker
exercises its option to purchase CRC-I's or CRC-II's Estate For Years in any of
the properties, in each case pursuant to the CRC Leases and as described in the
"Description of the Leases." In order for CRC-I or CRC-II to reject either
such rejectable offer, CRC-I or CRC-II must deliver to the Trustee the
principal balance of the Notes allocable to the properties as to which such
rejectable offer has been made. See "Description of the Leases - Rejectable
Offer Requirements."
As collateral security for the CRC-I Note, CRC-I has granted to the Issuer
a security interest in and lien upon the CRC-I Collateral and CRC-II has
granted to the Issuer a security interest in and lien upon the CRC-II
Collateral. Similarly, as collateral security for the CRC-II Note, CRC-II has
granted to the Issuer a security interest in and lien upon the CRC-II
Collateral and CRC-I has granted to the Issuer a security interest in and lien
upon the CRC-I Collateral. The CRC-I Note and the CRC-II Note and the CRC
Collateral therefor has been pledged and assigned to the Trustee for the
benefit of Holders of Notes. In addition, each of CRC-I and CRC-II has
executed and delivered to the Trustee a guaranty of the Notes (the "CRC-I
Guaranty" and the CRC-II Guaranty, respectively), which guaranties are
nonrecourse to the general partners of each of CRC-I and CRC-II.
Foodmaker owns, operates and franchises the Jack In The Box restaurant
concept. Jack In The Box, with system-wide sales of $1,026.1 million in fiscal
1993, has restaurants located principally in the Western and Southwestern
United States. In addition, the Company owns an approximately 40% equity
interest in Family Restaurants, Inc., the operator of approximately 350 family
restaurants located primarily in California and parts of the Southwest under
the Carrow's and Coco's formats and approximately 315 Mexican restaurants
nationwide operated under the Chi-Chi's, El Torito and Casa Gallardo names.
Risk Factors
Prospective purchasers of the New Notes offered hereby should consider the
information set forth under "Risk Factors," as well as the other information
set forth in this Prospectus.
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Transaction Schematic
Narrative of graphical information presented in the Prospectus.
A diagram is presented illustrating the following activities:
Foodmaker, Inc.:
Sale of Estate for Years on Ex. Assets to CRC-I
Sale of Estate for Years on Con. Assets to CRC-II
Semi-Annual Lease Payments to Indenture Trustee
CRC-I Special-Purpose Entity (Ex. Assets)(1):
CRC-I Note sold to Issuer and CRC-I Collateral assigned to Issuer
CRC-I Guaranty provided to Indenture Trustee
10-Year Lease of Ex. Assets to Foodmaker
CRC-II Special-Purpose Entity (Con. Assets)(2):
CRC-II Note sold to Issuer and CRC-II Collateral assigned to Issuer
CRC-II Guaranty provided to Indenture Trustee
10-Year Lease of Con. Assets to Foodmaker
Issuer:
Sell Notes to Noteholders
Purchase of CRC-I Note from CRC-I
Purchase of CRC-II Note from CRC-II
Indenture Trustee:
Semi-Annual Payments of Principal and Interest to Noteholders
Makes Residual Payments to Issuer
Noteholders:
Notes Proceeds Remitted to Issuer
- -----------------------
(1) "Ex. Assets" refers to the Existing Assets (including the Potential
Existing Assets).
(2) "Con. Assets" refers to the Construction Assets (including the Potential
Construction Assets).
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RISK FACTORS
In addition to the other information set forth elsewhere in this
Prospectus, prospective investors should carefully consider the following risk
factors.
Consequences of a Foodmaker Bankruptcy
In the event a bankruptcy case is instituted by or against Foodmaker under
Title 11 of the United States Code (the "Bankruptcy Code"), Foodmaker (assuming
that the CRC Leases are treated as true leases as discussed below), as debtor-
in-possession, or its trustee in bankruptcy, would have the right, subject to
bankruptcy court approval, to assume or reject the Leases. Pending the
assumption or rejection of the Leases, it is possible that some or all of the
payments under the Leases may be interrupted or delayed for a significant
period of time. This would interrupt or delay payments on the Notes. Although
the Leases have been entered into in composite form with respect to each
Construction Asset and/or Existing Asset (a "Property;" the Existing Assets and
the Construction Assets, together, the "Properties"), it is possible that
Foodmaker, as debtor-in-possession, or its trustee in bankruptcy, would assert
the right to assume the Leases with respect to certain of such Properties while
rejecting the Leases with respect to other Properties. Alternatively,
Foodmaker, as debtor-in-possession, or its trustee in bankruptcy, might assert
a right to treat the obligations of Foodmaker to make the Rejectable Exchange
Offer during year nine and at the end of the Basic Term of the Leases, as in
the nature of a purchase obligation separate from its lease obligations and
which could be assumed or rejected in bankruptcy separately from the lease
obligations.
If any Lease were rejected, payments thereunder would terminate, leaving
the applicable Lessor without cash flow to make payments on the Notes. In the
event a lease was rejected, the applicable Lessor (and by virtue of the
Indenture, the Trustee) would have an administrative priority claim for the
unpaid post-bankruptcy rental value of the Properties used by the Lessee and an
unsecured non-priority claim for damages against Foodmaker's bankruptcy estate
but, under Section 502(b)(6) of the Bankruptcy Code, such claim would be
limited to an amount equal to the rent reserved under such Lease, without
acceleration, for the greater of one year or 15% (not to exceed three years) of
the remaining term of the Lease (plus pre-bankruptcy rent already due but
unpaid); if either rejectable offer obligation is not treated as a separate
obligation from the applicable Lease, such limitation could also apply to the
damages recoverable for a breach of such rejectable offer obligation. By
contrast, this limitation under Section 502(b)(6) would not apply to holders of
debt securities issued by Foodmaker. Therefore, if Foodmaker were the subject
of proceedings under the Bankruptcy Code and any Lease were rejected, the
damages that could be claimed for rejection, even assuming full recovery on
such claim (which may not occur), would not be sufficient to repay the Notes.
If Foodmaker assumes the Leases, it would be required to cure or provide
adequate assurances that it would promptly cure any defaults, compensate or
provide adequate assurances that it will promptly compensate for any actual
pecuniary loss caused by such default, and provide adequate assurances of
future performance. Foodmaker also may have the right in a bankruptcy to
assume and assign the Leases without the applicable Lessor's consent, and be
relieved of liability therefor, but only if adequate assurance of future
performance by the assignee is provided.
Moreover, it is possible that a bankruptcy court could treat the
transactions described herein including the Leases not as a leasing transaction
but instead as a secured loan to Foodmaker, in which case the bankruptcy court
could permit Foodmaker to use or dispose of the Properties, subject to
providing "adequate protection" (such as a lien on, substitute collateral) to
the applicable Lessor without the applicable Lessor's consent and/or the
consent of the Trustee and/or the Holders of Notes, and to modify and to
adversely affect the rights of the applicable Lessor and/or the Trustee and/or
the Holders of the Notes, including reduction of the secured amount and
modification of the timing of payments that would otherwise have been payable
by Foodmaker under the Leases (in such event, however, the above-described
limitation under Section 502(b)(6) of the Bankruptcy Code would not be
applicable) and limitations on damages recoverable by a landlord for a tenant's
breach of a lease. The characterization of the transaction as a secured loan
to Foodmaker could also arise under applicable non-bankruptcy law. In case the
transaction is viewed as a secured loan, the remedies available to the Lessors
would be those of a secured creditor, not a landlord. If the applicable Lessor
is treated as a secured creditor without a power of sale, the only remedy may
be to foreclose judicially even in states which permit non-judicial
foreclosure.
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In the event a bankruptcy case is instituted by or against Foodmaker under
the Bankruptcy Code, Foodmaker, as debtor-in-possession, or its trustee in
bankruptcy would also have the right, subject to bankruptcy court approval, to
reject the Estates For Years in the Properties granted to the applicable Lessor
in which case the applicable Lessor would have an election either to pursue an
unsecured nonpriority claim for damages against Foodmaker's bankruptcy estate
or to remain in possession of the Properties for the balance of the term of the
Estates For Years. It is not certain that the Leases would survive such a
rejection, in which case payments on the Notes could be discontinued. In
addition, it is possible that Foodmaker, as debtor-in-possession, or its
trustee in bankruptcy, would assert ownership interests in the various accounts
established pursuant to the Indenture and that Foodmaker would have the right
to use such accounts subject to providing adequate protection to the Trustee
and/or the Holders of Notes.
The occurrence of any of the foregoing events may have a material adverse
effect on the Holders of Notes.
Management of the Properties Following Termination of the Leases
The transaction documents from the underlying transactions do not include
obligations on the part of Foodmaker to continue to operate the Properties on
behalf of the Issuer, CRC-I or CRC-II as Jack In The Box restaurants after any
termination of the Leases, nor are the Trustee or the Holders of Notes granted
any special franchise, license or similar arrangements to use the Jack In The
Box name or other trademarks or to receive any other services from Foodmaker in
connection with the operation of a restaurant chain.
Food Service Industry
Food service businesses are often affected by changes in consumer tastes,
national, regional, and local economic conditions, demographic trends, traffic
patterns, and the type, number and location of competing restaurants. Multi-
unit food service chains such as Foodmaker can also be substantially adversely
affected by publicity resulting from food quality, illness, injury, or other
health concerns or operating issues stemming from one store or a limited number
of stores. Dependence on frequent deliveries of fresh produce also subjects
food service businesses such as Foodmaker to the risk that shortages or
interruptions in supply caused by adverse weather or other conditions could
adversely affect the availability, quality and cost of ingredients. In
addition, factors such as inflation, increased food, labor, and employee
benefits costs, regional weather conditions, and the unavailability of
experienced management and hourly employees may also adversely affect the food
service industry in general and Foodmaker's results of operations and financial
condition in particular.
Lack of Public Market
Although Old Notes are eligible for trading on PORTAL, there is currently
no established trading market for New Notes, and the Issuer has taken no steps
and does not intend to take steps to facilitate any public trading market for
New Notes. There can be no assurance that a market for New Notes will develop.
If a market for New Notes should develop, no assurance can be given as to the
liquidity of any such market, and New Notes could trade at a substantial
discount from their initial issue price.
THE EXCHANGE OFFER
Purpose of the Exchange Offer
The Exchange Offer is designed to provide Holders of Old Notes with an
opportunity to acquire New Notes which, unlike the Old Notes, will be freely
tradable at all times, subject to any restrictions on transfer imposed by state
securities or "blue sky" laws; provided that the Holder of Old Notes is (i) not
an affiliate or promoter of the Issuer within the meaning of the Securities
Act, (ii) represents that the New Notes are being acquired in the ordinary
course of such Holder's business, and (iii) is not engaged in, and does not
intend to engage in, a distribution of the New Notes.
The outstanding Old Notes, in the aggregate principal amount of
$70 million, were originally issued and sold on January 5, 1994. The original
sale to the Initial Purchasers was not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) of the Securities Act.
The Old Notes may not be reoffered, resold, or transferred
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other than pursuant to a registration statement filed pursuant to the
Securities Act or unless an exemption from the registration requirements of the
Securities Act is available.
Pursuant to Rule 144 promulgated under the Securities Act, Old Notes may
generally be resold (a) commencing two years after the date of original
issuance, in an amount up to, for any three-month period, the greater of 1% of
the Old Notes then outstanding or the average weekly trading volume of the Old
Notes during the four calendar weeks immediately preceding the filing of the
required notice of sale with the Commission and (b) commencing three years
after the date of original issuance, in any amount and otherwise without
restriction by a Holder of Old Notes who is not, and has not been for the
preceding 90 days, an affiliate of the Issuer. The Old Notes are eligible for
trading in the Private Offerings, Resales and Trading through Automated
Linkages Market ("PORTAL"), and may be resold to certain Qualified
Institutional Buyers pursuant to Rule 144A promulgated under the Securities
Act. Certain other exemptions may also be available under other provisions of
the federal securities laws for the resale of the Old Notes.
In connection with the original sale of the Old Notes, the Issuer entered
into the Registration Rights Agreement, pursuant to which it agreed to file
with the Commission a registration statement covering the exchange by the
Issuer of New Notes for Old Notes in a transaction designed to provide Holders
of Old Notes with identical New Notes that, with certain limitations, will be
freely tradable. The Registration Rights Agreement provides that the Issuer,
Foodmaker, CRC-I and CRC-II shall (i) cause to be filed with the SEC as soon as
practicable after the date hereof, but in no event later than May 4, 1994, a
registration statement with respect to an offer by the Issuer to each Holder of
Old Notes of the opportunity to exchange their Old Notes for New Notes, and
(ii) use their best efforts to cause (A) such registration statement to be
declared effective, and (B) New Notes to be delivered to the Registrar under
the Indenture for delivery to all Holders of Old Notes who have tendered Old
Notes pursuant to an offer by the Issuer to each Holder of Old Notes of the
opportunity to exchange their Old Notes for New Notes on or prior to
September 4, 1994. The Issuer, Foodmaker, CRC-I and CRC-II shall keep the
registration statement relating to the Exchange Offer continuously effective
for a period of not less than the period required under applicable federal and
state securities laws; provided, however, that (i) the Exchange Offer shall
remain open, and (ii) the registration statement relating to the Exchange Offer
shall remain continuously effective for a period of at least 20 consecutive
business days. In addition, under certain circumstances the Issuer may be
required to file a shelf registration statement covering the Old Notes and to
use its best efforts to cause such registration statement to be declared
effective.
In the event that: (a) the Registration Statement or, if required, a
shelf registration statement is not filed on or prior to May 4, 1994 (the
"Filing Date"); (b) the Exchange Offer is not consummated on or prior to
September 4, 1994 (the "Consummation Date") or the shelf registration
statement, if required, is not declared effective on or prior to August 4, 1994
(the "Effective Date"); (c) in the case of a shelf registration statement, if
required, the Commission issues a stop order suspending the effectiveness of
such shelf registration statement prior to the date which is one year from the
date on which such shelf registration statement was declared effective; or (d)
any Co-Registrant, for the third time, notifies or is required to give notice
of the happening of any event that makes any statement in the shelf
registration statement, if required, untrue in any material respect or that
requires the making of any changes in such shelf registration statement, if
any, so that it will not contain any untrue statement of material fact or omit
to state any material fact required to be stated therein, then the Lessee will
be required to pay, or cause to be paid, in addition to amounts otherwise due
under the Indenture and the Old Notes, as liquidated damages, and not as a
penalty, to each Holder of Notes, an additional amount equal to (a) for each
weekly period beginning on the Filing Date and until the Consummation Date or
the Effective Date, as applicable, $.05 per week per $1,000 principal amount of
the Old Notes held by such Holder and (b) for each weekly period commencing on
the Consummation Date or the Effective Date, as applicable, or thereafter, an
additional amount equal to $.10 per week per $1,000 principal amount of Old
Notes held by such Holder; provided, however, that such liquidated damages
will, in each case, cease to accrue on the date on which the Issuer's
obligations with respect to the Exchange Offer or the shelf registration
statement, as applicable, are satisfied.
The staff of the Division of Corporation Finance of the Commission has
issued certain interpretive letters that concluded, in circumstances similar to
those contemplated by the Exchange Offer, that new debt securities issued in a
registered exchange for outstanding debt securities, which new securities are
intended to be substantially identical to the securities for which they are
exchanged, may be offered for resale, resold and otherwise transferred by the
holders thereof (other than any holder that is an affiliate of the issuer or a
broker-dealer) without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that the new securities are acquired
in the ordinary course of
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such holders' business and such holders have no arrangement with any
person to participate in the distribution of the new securities. See "-
Resales of New Notes." The Issuer has not requested or obtained an
interpretive letter from the staff of the Division of Corporation Finance with
respect to this Exchange Offer. However, the Exchange Offer is being conducted
in a manner intended to be consistent with the facts and conditions represented
in such letters. By delivering the Letter of Transmittal, a Holder of Old
Notes tendering Old Notes for exchange will represent and warrant to the Issuer
that the Holder of Old Notes is acquiring the New Notes in the ordinary course
of its business and that the Holder of Old Notes is not engaged in, and does
not intend to engage in, a distribution of the New Notes. Any Holder of Old
Notes using the Exchange Offer to participate in a distribution of the New
Notes to be acquired in the Exchange Offer must comply with the registration
and prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction. Holders of Old Notes who do not exchange their
Old Notes pursuant to this Exchange Offer will continue to hold Old Notes that
are subject to restrictions on transfer.
It is expected that the New Notes will be freely transferable by the
Holders of New Notes subject to the limitations described in the immediately
preceding paragraph and in "- Resales of New Notes." Sales of New Notes
acquired in the Exchange Offer by Holders of New Notes who are "affiliates" of
the Issuer within the meaning of the Securities Act will be subject to certain
limitations on resale under Rule 144 of the Securities Act. Such persons will
only be entitled to sell New Notes in compliance with the volume limitations
set forth in Rule 144, and sales of New Notes by affiliates will be subject to
certain Rule 144 requirements as to the manner of sale, notice and the
availability of current public information regarding the Issuer. The foregoing
is a summary only of Rule 144 as it may apply to affiliates of the Issuer. Any
such persons must consult their own legal counsel for advice as to any
restrictions that might apply to the resale of their New Notes.
The New Notes otherwise will be identical in all respects (including
interest rate, maturity, security and restrictive covenants) to the Old Notes
for which they may be exchanged pursuant to this Exchange Offer.
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth herein and in the
accompanying Letter of Transmittal, the Issuer will exchange $500,000 principal
amount of New Notes for each $500,000 principal amount of its outstanding Old
Notes. New Notes will be issued only in integral multiplies of $500,000 to
each tendering Holder of Old Notes whose Old Notes are accepted in the Exchange
Offer.
The New Notes will bear interest from and including July 1, 1994 (the day
after the last date for which interest will have been paid on the Old Notes
prior to the exchange). Accordingly, Holders who receive New Notes in exchange
for Old Notes will forego accrued but unpaid interest on their exchanged Old
Notes for the period from and including July 1, 1994 to the date of exchange,
but will be entitled to such interest under the New Notes.
As of January 5, 1994, $70,000,000 aggregate principal amount of Old Notes
was outstanding. This Prospectus and the Letter of Transmittal are being sent
to all registered Holders of Old Notes. Tendering Holders of Old Notes will
not be required to pay brokerage commissions or fees or, subject to the
instructions in the Letter of Transmittal, transfer taxes with respect to the
exchange of Old Notes pursuant to the Exchange Offer. Foodmaker will pay all
charges and expenses, other than certain transfer taxes which may be imposed,
in connection with the Exchange Offer. See "- Payment of Expenses."
Holders of Old Notes do not have any appraisal or dissenters' rights under
the Delaware Corporation Law in connection with the Exchange Offer.
Expiration Date; Extensions; Termination
The Exchange Offer will expire at midnight, New York City time, on
______________, 1994 (the "Expiration Date"), subject to extension by the
Issuer by notice to the Exchange Agent as herein provided. The Issuer reserves
the right to extend the Exchange Offer at its discretion, in which event the
term "Expiration Date" shall mean the time and date on which the Exchange Offer
as so extended shall expire. The Issuer shall notify the Exchange Agent of any
extension prior to 9:00 A.M., New York City time, on the next business day
after the previously scheduled Expiration Date.
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The Issuer reserves the right to extend or terminate the Exchange Offer
and not accept for exchange any Old Notes if any of the events set forth below
under "- Conditions to the Exchange Offer" occur and are not waived by the
Issuer, by giving oral or written notice of such delay or termination to the
Exchange Agent. See "- Conditions to the Exchange Offer." The rights reserved
by the Issuer in this paragraph are in addition to the Issuer's rights set
forth below under the caption "- Conditions to the Exchange Offer."
Procedures for Tendering
The acceptance by Holders of Old Notes of the Exchange Offer pursuant to
one of the procedures set forth below will constitute an agreement between such
Holder of Old Notes and the Issuer in accordance with the terms and subject to
the conditions set forth herein and in the Letter of Transmittal.
To be tendered effectively, the Old Notes, together with the properly
completed Letter of Transmittal (or facsimile thereof), executed by the
registered Holder of Old Notes, and any other documents required by the Letter
of Transmittal, must be received by the Exchange Agent at the address set forth
below prior to midnight, New York City time, on the Expiration Date. LETTERS
OF TRANSMITTAL AND OLD NOTES SHOULD NOT BE SENT TO THE ISSUER.
Signatures on a Letter of Transmittal must be guaranteed unless the Old
Notes tendered pursuant thereto are tendered (i) by a registered Holder of Old
Notes who has not completed the box entitled "Special Issuance and Delivery
Instructions" on the Letter of Transmittal or (ii) for the account of any firm
that is a member of a registered national securities exchange or a member of
the National Association of Securities Dealers, Inc. or a commercial bank or
trust company having an office in the United States (an "Eligible
Institution"). In the event that signatures on a Letter of Transmittal are
required to be guaranteed, such guarantee must be by an Eligible Institution.
If the Letter of Transmittal is signed by a person other than a registered
Holder of Old Notes, such Old Note must be endorsed or accompanied by
appropriate bond powers, in either case signed exactly as the name or names of
the registered Holder or Holders appear on the Old Notes. If the Letter of
Transmittal or any Old Notes or bond powers are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or
others acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and, unless waived by the Issuer, proper evidence
satisfactory to the Issuer of their authority to so act must be submitted.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of tendered Old Notes will be resolved by the Issuer,
whose determination will be final and binding. The Issuer reserves the
absolute right to reject any or all tenders that are not in proper form or the
acceptance of which would, in the opinion of counsel for the Issuer, be
unlawful. The Issuer also reserves the right to waive any irregularities or
conditions of tender as to particular Old Notes. The Issuer's interpretation
of the terms and conditions of the Exchange Offer (including the instructions
in the Letter of Transmittal) will be final and binding. Unless waived, any
irregularities in connection with tenders must be cured within such time as the
Issuer shall determine. Neither the Issuer nor the Exchange Agent shall be
under any duty to give notification of defects in such tenders or shall incur
liabilities for failure to give such notification. Tenders of Old Notes will
not be deemed to have been made until such irregularities have been cured or
waived. Any Old Notes received by the Exchange Agent that are not properly
tendered and as to which the irregularities have not been cured or waived will
be returned by the Exchange Agent to the tendering Holder of Old Notes, unless
otherwise provided in the Letter of Transmittal, as soon as practicable
following the Expiration Date. The Issuer's acceptance for payment of Old
Notes tendered pursuant to the Exchange Offer will constitute a binding
agreement between the tendering person and the Issuer upon the terms and
subject to the conditions of the Exchange Offer.
THE METHOD OF DELIVERY OF OLD NOTES AND OTHER DOCUMENTS TO THE
EXCHANGE AGENT
IS AT THE ELECTION AND RISK OF THE HOLDER OF OLD NOTES, BUT IF
DELIVERY IS BY
MAIL IT IS SUGGESTED THAT THE MAILING BE MADE SUFFICIENTLY IN
ADVANCE OF THE
EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT BEFORE
THE EXPIRATION
DATE.
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Guaranteed Delivery Procedures
Holders of Old Notes who wish to tender their Old Notes and (i) whose Old
Notes are not immediately available, or (ii) who cannot deliver their Old
Notes, the Letter of Transmittal or any other required documents to the
Exchange Agent prior to the Expiration Date, may effect a tender if:
(a) The tender is made through an Eligible Institution;
(b) Prior to the Expiration Date, the Exchange Agent receives from such
Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by facsimile transmission, mail or hand delivery) setting
forth the name and address of the Holder of Old Notes, the certificate number
or numbers of such Old Notes and the principal amount of Old Notes tendered,
stating that the tender is being made thereby and guaranteeing that, within
five New York Stock Exchange trading days after the Expiration Date, the Letter
of Transmittal (or facsimile thereof) together with the certificate(s)
representing the Old Notes and any other documents required by the Letter of
Transmittal will be deposited by the Eligible Institution with the Exchange
Agent; and
(c) Such properly completed and executed Letter of Transmittal (or
facsimile thereof), as well as the certificate(s) representing all tendered Old
Notes in proper form for transfer and all other documents required by the
Letter of Transmittal are received by the Exchange Agent within five New York
Stock Exchange trading days after the Expiration Date.
Upon request of the Exchange Agent, a Notice of Guaranteed Delivery will
be sent to Holders of Old Notes who wish to tender their Old Notes according to
the guaranteed delivery procedures set forth above.
Conditions to the Exchange Offer
If, prior to the consummation of the Exchange Offer, (i) any Co-Registrant
determines, based on a written opinion of independent counsel provided to the
Trustee, that (A) the New Notes would not, upon receipt, be transferable by
each Holder of New Notes without restriction under the Securities Act and the
Exchange Act and without material restrictions under applicable "blue sky" or
state securities laws (provided that such Holder of New Notes is not an
affiliate of any of the Co-Registrants, that such New Notes are acquired in the
ordinary course of such Holder of New Notes' business and such Holder of New
Notes has no arrangement with any person to participate in the distribution of
such New Notes), (B) the interests of the Holders of Old Notes, taken as a
whole, would be materially adversely affected by the consummation of an
exchange offer, or (C) the Commission is unlikely to permit the consummation of
an exchange offer, or (ii) the Holders of at least a majority of the then
outstanding aggregate principal amount of the Old Notes request that the Co-
Registrants abstain from consummating an exchange offer based upon a written
opinion of independent counsel provided to the Co-Registrants to the effect
that either (A) the participation of such Holders of Old Notes in an exchange
offer is not legally permitted, or (B) a court decision or administrative
action may be reasonably expected to have a material adverse effect on such
Holders of Old Notes in the event such Holders participate in an exchange
offer, (iii) a request is made by any Holder of Old Notes for, and the Lessee
fails to deliver by the later of (x) the fifteenth day following such request
or (y) the fifteenth day following the Filing Date, an opinion of counsel
reasonably acceptable to such Holder of Old Notes that the exchange of Old
Notes for New Notes pursuant to the Exchange Offer will be a tax-free
transaction for the tendering Holders of Old Notes, or (iv) an exchange offer
is not consummated prior to the Consummation Date, then the Issuer must
promptly deliver to the Holders of Old Notes and the Trustee notice thereof
(the "Exchange Offer Termination Notice") and must thereafter, pursuant to the
Registration Rights Agreement, file with the Commission, and obtain the
effectiveness of, a shelf registration statement pursuant to which the Old
Notes may be resold by the Holders thereof under the Securities Act. If such
shelf registration statement is not filed on or prior to the Filing Date or is
not declared effective by the Commission on or prior to the Effective Date,
then the Issuer will be obligated to pay to Holders the liquidated damages
described above under "- Purpose of the Exchange Offer.".
Notwithstanding any other provisions of the Exchange Offer or any
extension of the Exchange Offer, and in addition to the Issuer's right to
extend, amend or terminate the Exchange Offer at any time in its sole
discretion, the Issuer will not be required to accept for exchange and issue
New Notes in exchange for Old Notes validly tendered and may terminate or amend
the Exchange Offer as provided for in the Exchange Offer or may postpone
(subject to the
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requirements of the Exchange Act for prompt issuance of or return of Old
Notes) the acceptance for exchange and issuance of New Notes, if at any time on
or after _______________, 1994 and before the acceptance for exchange of any
such Old Notes, any of the following shall have occurred (or shall have been
determined by the Issuer in its sole discretion to have occurred):
(a) There shall be threatened, instituted or pending any action or
proceeding before, or any injunction, order or decree shall have been
issued by, any court or governmental agency or other governmental
regulatory or administrative agency or commission (i) seeking to restrain
or prohibit the making or consummation of the Exchange Offer or any other
transaction contemplated by the Exchange Offer, or assessing or seeking
any damages as a result thereof, or (ii) resulting in a material delay in
the ability of the Issuer to accept for exchange or, in the judgment of
the Issuer, might result in the Holders of the Old Notes having
obligations with respect to resales and transfers of Old Notes that are
greater than those described in "- Resales of New Notes" or would
otherwise in the judgment of the Issuer make it inadvisable to proceed
with the Exchange Offer, provided, however, that the Issuer will use
reasonable efforts to modify or amend the Exchange Offer to take such
other reasonable steps as to make the provisions of this section
inapplicable;
(b) any statute, rule, regulation, order or injunction shall be
sought, proposed, introduced, enacted, promulgated or deemed applicable to
the Exchange Offer or any of the transactions contemplated by the Exchange
Offer by any domestic or foreign government or governmental authority
that, in the sole judgment of the Issuer, might directly or indirectly
result in any of the consequences referred to in Clauses (a)(i) or (a)(ii)
above or, in the sole judgment of the Issuer might result in the Holders
of the Old Notes having obligations with respect to resales and transfers
of Old Notes that are greater than those described in "- Resales of Old
Notes" or would otherwise in the judgment of the Issuer make it
inadvisable to proceed with the Exchange Offer, provided, however, that
the Issuer will use reasonable efforts to modify or amend the Exchange
Offer or to take such other reasonable steps as to make the provisions of
this section inapplicable;
(c) there shall have occurred (i) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States or any limitations by any governmental agency or authority which
adversely affects the extension of credit, or (ii) a commencement of wars,
armed hostilities or other similar international calamity directly or
indirectly involving the United States, or, in the case of any of the
foregoing existing at the time of the commencement of the Exchange Offer,
a material acceleration or worsening thereof;
(d) any change shall have occurred or be threatened in the business,
properties, assets, liabilities, financial condition, results of
operations or prospects of the Issuer that, in the sole judgment of the
Issuer, is or may be materially adverse to the Issuer, or the Issuer shall
become aware of facts that, in the judgment of the Issuer, have or may
have an adverse significance with respect to the value of the Old Notes;
(e) any governmental approval has not been obtained, which approval
the Issuer shall, in its sole discretion, deem necessary for the
consummation of the Exchange Offer as contemplated hereby;
(f) there exists, in the sole judgment of the Issuer, any actual or
threatened legal impediment (including a default or prospective default
under an agreement, indenture or other instrument or obligation to which
the Issuer is a party or by which it is bound) to the consummation of the
transactions contemplated by the Exchange Offer; or
(g) the Holders of at least a majority of the then outstanding
aggregate principal amount of the Old Notes request that the Co-
Registrants abstain from consummating an exchange offer based upon a
written opinion of independent counsel provided to the Co-Registrants to
the effect that either (A) the participation of such Holders of Old Notes
in an exchange offer is not legally permitted, or (B) a court decision or
administrative action may be reasonably expected to have a material
adverse effect on such Holders of Old Notes in the event such Holders
participate in any exchange offer.
The Issuer expressly reserves the right to terminate the Exchange Offer
and not accept for exchange any Old Notes upon the occurrence of any of the
foregoing conditions. In addition, the Issuer may amend the Exchange Offer at
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any time prior to midnight, New York City time, on the Expiration Date if
any of the conditions set forth above occur. Moreover, regardless of whether
any of such conditions has occurred, the Issuer may amend the Exchange Offer in
any manner which, in its good faith judgment, is advantageous to the Holders.
Any determination made by the Issuer concerning an event, development or
circumstance described or referred to above will be final and binding on all
parties.
Acceptance of Old Notes for Exchange; Delivery of New Notes
Upon the terms and subject to the conditions of the Exchange Offer, the
Issuer will accept all Old Notes validly tendered prior to midnight, New York
City time, on the Expiration Date. The Issuer will deliver New Notes in
exchange for Old Notes promptly following the Expiration Date.
For purposes of the Exchange Offer, the Issuer shall be deemed to have
accepted validly tendered Old Notes when, as and if the Issuer has given oral
or written notice thereof to the Exchange Agent. The Exchange Agent will act
as agent for the tendering Holders of Old Notes for the purpose of receiving
the New Notes. Under no circumstances will interest be paid by the Issuer or
the Exchange Agent by reason of any delay in making such payment or delivery.
In all cases, delivery of New Notes in exchange for Old Notes tendered and
accepted for exchange pursuant to the Exchange Offer will be made only after
timely receipt by the Exchange Agent of (i) certificates ("Certificates") for
such Old Notes or timely confirmation (a "Book-Entry Confirmation") of the book-
entry transfer of the Old Notes into the Exchange Agent's account at The
Depositary Trust Company (the "Book-Entry Transfer Facility"), pursuant to the
procedures set forth in "Procedures for Tendering" above, (ii) the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, or an Agent's Message (as defined below) in
connection with a book-entry transfer, and (iii) any other documents required
by the Letter of Transmittal.
The term "Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Exchange Agent and forming a part of
a Book-Entry Confirmation, which states that such Book-Entry Transfer Facility
has received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Old Notes which are the subject of such Book-
Entry Confirmation, that such participant has received and agrees to be bound
by the terms of the Letter of Transmittal and that the Issuer may enforce such
agreement against such participant.
If any tendered Old Notes are not accepted for exchange because of an
invalid tender, the occurrence of certain other events set forth herein or
otherwise, any such unaccepted Old Notes will be returned, at the Issuer's
expense, to the tendering Holder of Old Notes thereof as promptly as
practicable after the expiration or termination of the Exchange Offer.
Withdrawal Rights
Tenders of Old Notes made pursuant to the Exchange Offer are irrevocable
and may not be withdrawn.
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Exchange Agent
State Street Bank and Trust Company (telephone (617) 985-3023) has been
appointed as Exchange Agent for the Exchange Offer. All correspondence in
connection with the Exchange Offer and the Letter of Transmittal should be
addressed to the Exchange Agent as follows:
By Hand: By Mail: By Overnight By Facsimile:
State Street Bank State Street Bank Express: (617) 985-3034
and and State Street Bank
Trust Company Trust Company and
Corporate Trust Corporate Trust Trust Company
Window, 4th Floor Department Corporate Trust
Two International P.O. Box 778 Department
Place Boston, Two International
Boston, Massachusetts 02102 Place
Massachusetts 02110 Attn: Andrew Boston,
Attn: Andrew Sinasky Massachusetts
Sinasky 02110
Attn: Andrew
Sinasky
Requests for additional copies of the Prospectus or the Letter of
Transmittal should be directed to the Exchange Agent or the Issuer.
Payment of Expenses
Foodmaker will reimburse the Exchange Agent for its reasonable
out-of-pocket expenses in connection with the Exchange Offer. Foodmaker will
also pay all transfer taxes, if any, applicable to the exchange of Old Notes
pursuant to the Exchange Offer. If, however, New Notes, or substitute Old
Notes for principal amounts not exchanged, are to be delivered to, or are to be
registered or issued in the name of, any person other than the registered
Holder of Old Notes tendered hereby, or if tendered Old Notes are registered in
the name of any person other than the person signing the Letter of Transmittal,
or if a transfer tax is imposed for any reason other than the exchange of Old
Notes pursuant to the Exchange Offer, the amount of any such transfer taxes
(whether imposed on the registered Holder of Old Notes or any other person)
will be payable by the tendering Holder of Old Notes. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted herewith, the
amount of such transfer taxes will be billed directly to such tendering Holder
of Old Notes.
Foomaker has not retained any dealer-manager or similar agent in
connection with the Exchange Offer and will not make any payments to brokers,
dealers or others for soliciting acceptances of the Exchange Offer.
Accounting Treatment
The New Notes will be recorded at the same carrying value as the Old
Notes, which is the principal amount, as reflected in the Issuer's accounting
records on the date of the exchange. Accordingly, no gain or loss for
accounting purposes will be recognized. The expenses of the Exchange Offer
will be capitalized by Foodmaker for accounting purposes.
Resales of New Notes
With respect to resales of New Notes, based on interpretive letters
previously issued by the Staff of the Division of Corporation Finance of the
Commission to third parties, the Issuer believes that the New Notes issued
pursuant to the Exchange Offer may be offered for resale, resold and otherwise
transferred by any holder thereof, without complying with the registration and
prospectus delivery provisions of the Securities Act, provided that such holder
(i) is not an "affiliate" or "promoter" (as such terms are defined in Rule 405
under the Securities Act) of the Issuer, (ii) is not participating in a
distribution of the New Notes to be received in the Exchange Offer, (iii) is
not, except as noted below, a broker-dealer and (iv) is acquiring the New Notes
in the ordinary course of such holder's business. Based on the prior
interpretive letters, no broker-dealer may resell or otherwise transfer New
Notes issued pursuant to the Exchange Offer without complying with the
registration requirements of the Securities Act, unless (a) such broker-dealer
is holding Old Notes only as nominee, or (b)(i) such broker-dealer acquired the
Old Notes for its own account as a result of market-making or other trading
activities and undertakes to satisfy certain conditions consistent with the
requirements of the Securities Act,
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including the delivery of a prospectus which contains a plan of distribution
with respect to such resale transactions (such plan of distribution need not
name the broker-dealer or disclose the amount of New Notes held by the
broker-dealer), and (ii) such broker-dealer has not entered into any
arrangement or understanding with the Issuer or an affiliate of the Issuer to
distribute the New Notes received pursuant to the Exchange Offer. If any
Holder of Old Notes does not satisfy any of the foregoing conditions, such
holder may not be entitled to rely on the previously issued interpretive
letters. If any other Holder of Old Notes is deemed to be an "underwriter"
within the meaning of the Securities Act or acquires New Notes in the
Exchange Offer for the purpose of distributing or participating in a
distribution of the New Notes, such holder must comply with the registration
and prospectus delivery requirements of the Securities Act in connection with
a secondary resale transaction, unless an exemption from registration is
otherwise available. By tendering Old Notes into the Exchange Offer,
registered Holders of Old Notes represent to the Issuer, among other things,
that (a) they are not "affiliates" or "promoters" of the Issuer (as those
terms are defined in Rule 405 under the Securities Act), (b) they are not
engaged in, do not intend to engage in, and have no arrangement or
understanding with any person to participate in, a distribution of the New
Notes to be issued in the Exchange Offer, and (c) are acquiring the New Notes
in the ordinary course of business.
Each broker-dealer that receives New Notes for its own account in exchange
for Old Notes must acknowledge that it will deliver a prospectus in connection
with any resale of such New Notes. The Issuer is under no obligation to
prepare a prospectus for use in connection with such resales.
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SELECTED UNAUDITED PRO FORMA FINANCIAL DATA
The following selected unaudited pro forma estimate of operations for the
twelve-month period commencing on the date of and giving effect to the following
transactions and events: (i) the sale on January 5, 1994 of $70 million
aggregate principal amount of Notes for $68.9 million; (ii) the concurrent
purchase of CRC Notes with an aggregate principal amount of $70 million for
$68.9 million; and (iii) the recordation of interest income on the CRC Notes and
interest expense on the Notes of $6.9 million each, including amortization of
the original issue discount thereon of $116 thousand. The selected unaudited
pro forma balance sheet contained herein gives effect to the foregoing
transactions and events as if they occurred on December 31, 1993.
The pro forma financial data presented herein do not purport to represent
what the Company's results of operations or financial position would have been
had such transactions in fact occurred at the beginning of the periods or to
project the Company's results of operations in any future period. The Selected
Unaudited Pro Forma Financial Data should be read in conjunction with the
Financial Statements, including the notes thereto, included herein.
UNAUDITED PRO FORMA ESTIMATE OF OPERATIONS
For the Initial Twelve Month Period
Estimated Revenues:
Interest income . . . . . . . . . . . . . . . . . . . . . . . $6,941,000
Estimated Expenses:
Interest expense. . . . . . . . . . . . . . . . . . . . . . . 6,941,000
---------
Pro forma estimated net earnings. . . . . . . . . . . . . . . . $ --
=========
- ----------------------------------------------------------------------------
UNAUDITED PRO FORMA BALANCE SHEET
As of December 31, 1993
-------------------------------------
Pro Forma As
Actual Adjustments Adjusted
-------- ----------- ----------
ASSETS
Cash. . . . . . . . . . . . . . . . $ 100 $ -- $ 100
Long-term notes receivable, net of
discount of $1,092,000. . . . . . -- 68,908,000 68,908,000
------- ---------- ----------
$ 100 $68,908,000 $68,908,100
======= ========== ==========
LIABILITIES AND STOCKHOLDER'S EQUITY
Long-term debt, net of discount
of $1,092,000 . . . . . . . . . . $ -- $68,908,000 $68,908,000
Common stock. . . . . . . . . . . . 100 -- 100
------- ---------- ----------
$ 100 $68,908,000 $68,908,100
======= ========== ==========
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MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND
RESULTS OF OPERATIONS
Results of Operations
[To come after May 15, 1994]
Liquity and Capital Resources
[To come after May 15, 1994]
BUSINESS
The Issuer
General
The Issuer is a special purpose corporation, incorporated in the State of
Delaware on December 22, 1993 for the benefit of Foodmaker in connection with
the transactions described herein. See "Description of the Underlying
Transactions." The purposes of the Issuer are limited to: (i) issuing and
selling the Notes, as principal and as agent for CRC-I and CRC-II, and entering
into the Indenture in connection therewith (the "Financing"); (ii) acquiring,
owning and holding obligations of CRC-I and CRC-II, accounts, investments and
other property to be pledged as collateral for the Notes and pledging such
property as collateral for the Notes; and (iii) engaging in any other
activities that are necessary, suitable, or convenient to accomplish the
matters set forth in the foregoing clauses (i) and (ii). In furtherance of
such limited purposes, the Issuer may not create, incur or assume any
indebtedness other than pursuant to or in connection with the Financing and the
transactions contemplated thereby, or incur, assume, or guarantee the
indebtedness of any person or entity, including, without limitation, pursuant
to any purchase or repurchase agreement, capital lease, indemnity, or any keep-
well, take-or-pay, through-put, or other arrangement having the effect of
assuring or holding harmless any third person or entity against loss with
respect to any obligation of such other person or entity, unless such
indebtedness is an invoice, statement of account, check, work request, purchase
order or other similar document representing expenses relating to the permitted
activities of the Issuer described above. Nor does the Issuer propose to
(i) make loans to other persons, (ii) invest in the securities of other issuers
for the purpose of exercising control, (iii) underwrite the securities of other
issuers, (iv) engage in the purchase and sale of investments, (v) offer
securities in exchange for property, (vi) repurchase or otherwise reacquire its
shares or other securities. The principal executive offices of the Issuer are
located at One Financial Center, 13th Floor, Boston, Massachusetts 02111, and
the Issuer's telephone number is (_____) _____-________.
Employees
Pursuant to the terms of the Indenture, the Issuer does not employ any
employees.
CRC-I
General
CRC-I is a Massachusetts special purpose limited partnership which was
organized solely for the purpose of participating in this Exchange Offer and
the underlying transactions. The original Certificate of Limited Partnership
of CRC-I was filed with the Secretary of State of the Commonwealth of
Massachusetts on December 8, 1993. The latest date upon which CRC-I is to
dissolve is December 31, 2043. The charter documents of CRC-I do not require
it to, nor does it intend to, hold annual meetings. The purposes of CRC-I are
limited to (i) acquiring, owning, holding and selling or otherwise transferring
(subject to the provisions of Section 1.06 of those certain Deeds of Trust and
Mortgages that have been (with respect to the Existing Assets) or will be (with
respect to the Potential Existing Assets) entered into by CRC-I in connection
with the transactions specified in (ii) below) Estates For Years in the CRC-I
Note Property; (ii) the sale of mortgage notes to the Issuer and encumbering,
hypothecating, mortgaging and pledging its interest in the CRC-I Note
Properties owned by it as security for or in partial satisfaction of such
mortgage notes and certain other mortgage notes issued by CRC-II; (iii) leasing
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the CRC-I Note Properties to Foodmaker pursuant to the terms of a master lease;
and (iv) engaging in any other activities which are necessary to accomplish the
foregoing purposes or are incidental thereto or connected therewith. In
furtherance of such limited purposes, CRC-I is not permitted to create, incur
or assume any indebtedness other than pursuant to or in connection with the
transactions specified in (ii) above and the transactions contemplated thereby,
or incur, assume, or guarantee the indebtedness of any person or entity other
than pursuant to or in connection with the transactions specified in (ii) above
or pursuant to a guaranty of the obligations of the Issuer in connection with
the Notes including, without limitation, pursuant to any purchase or repurchase
agreement, capital lease, indemnity, or any keep-well, take-or-pay, through-
put, or other arrangement having the effect of assuring or holding harmless any
third person or entity against loss with respect to any obligation of such
other person or entity, unless such indebtedness is an invoice, statement of
account, check, work request, purchase order or other similar document
representing expenses relating to the permitted activities of CRC-I described
above. Nor does CRC-I propose to (i) make loans to other persons, (ii) invest
in the securities of other issuers, (iii) underwrite the securities of other
issuers, (iv) engage in the purchase and sale of investments, (v) offer
securities in exchange for property, (vi) repurchase or otherwise reacquire its
shares or other securities. The General Partner of CRC-I is CRC-I Corp. (the
"CRC-I General Partner"), incorporated in the Commonwealth of Massachusetts on
December 8, 1993. The CRC-I General Partner is responsible for the management
of CRC-I, transacts all business for CRC-I and has complete discretion in its
management of all aspects of CRC-I's affairs.
Employees
CRC-I has no operations and does not employ any employees.
CRC-II
General
CRC-II is a Massachusetts special purpose limited partnership which was
organized solely for the purpose of effecting this Exchange Offer and the
underlying transactions. The original Certificate of Limited Partnership of
CRC-II was filed with the Secretary of State of the Commonwealth of
Massachusetts on December 1, 1993. The latest date upon which CRC-II is to
dissolve is December 31, 2043. The charter documents of CRC-II do not
require it to, nor does it intend to, hold annual meetings. The purposes of
CRC-II are limited to (i) acquiring, owning, holding and selling or otherwise
transferring (subject to the provisions of Section 1.06 of those certain
Deeds of Trust and Mortgages entered into by CRC-II in connection with the
transactions specified in (ii) below) Estates For Years in the CRC-II Note
Properties; (ii) selling mortgage notes to the Issuer and encumbering,
hypothecating, mortgaging and pledging its interest in the CRC-II Note
Properties owned by it as security for or in partial satisfaction of such
mortgage notes and certain other mortgage notes issued by CRC-I; (iii)
leasing the CRC-II Note Properties to Foodmaker pursuant to the terms of a
master lease; and (iv) engaging in any other activities which are necessary
to accomplish the foregoing purposes or are incidental thereto or connected
therewith. In furtherance of such limited purposes, CRC-II is not permitted
to create, incur or assume any indebtedness other than pursuant to or in
connection with the transactions specified in (ii) above and the transactions
contemplated thereby, or incur, assume, or guarantee the indebtedness of any
person or entity other than pursuant to or in connection with the
transactions specified in (ii) above or pursuant to a guaranty of the
obligations of the Issuer in connection with the Notes including, without
limitation, pursuant to any purchase or repurchase agreement, capital lease,
indemnity, or any keep-well, take-or-pay, through- put, or other arrangement
having the effect of assuring or holding harmless any third person or entity
against loss with respect to any obligation of such other person or entity,
unless such indebtedness is an invoice, statement of account, check, work
request, purchase order or other similar document representing expenses
relating to the permitted activities of CRC-II described above. Nor does
CRC-II propose to (i) make loans to other persons, (ii) invest in the
securities of other issuers, (iii) underwrite the securities of other
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issuers, (iv) engage in the purchase and sale of investments, (v) offer
securities in exchange for property, (vi) repurchase or otherwise reacquire
its shares or other securities. The General Partner of CRC-II is CRC-II
Corp. (the "CRC-II General Partner"), incorporated in the Commonwealth of
Massachusetts on November 30, 1993. The CRC-II General Partner is
responsible for the management of CRC-II, transacts all business for CRC-II
and has complete discretion in its management of all aspects of CRC-II's
affairs.
Employees
CRC-II has no operations and does not employ any employees.
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MANAGEMENT
The Issuer
Directors and Executive Officers
The following table sets forth the name, age and position with the Issuer
of each of the persons designated to serve as directors and executive officers
of the Issuer. Additional information with respect to each such individual is
contained below under "Background of Directors and Executive Officers." Each
Director of the Issuer will hold office until the next annual meeting of
stockholders of the Issuer or until his successor has been elected and
qualified. Officers of the Issuer are elected by the Board of Directors of the
Issuer and serve at the discretion of the Board. Robert H. Key owns all of the
outstanding shares of Common Stock of the Issuer, and has sole voting power
with respect to the election of directors. See, however, "Description of
Underlying Transactions - Corporate Governance Agreement.
Name Age Position(s)
---- --- -----------
Charles W. Duddles 53 President, Treasurer,
Secretary and Director
Charles F. MacGill 71 Director
Background of Directors and Executive Officers
Mr. Duddles has been a director and President, Treasurer and Secretary of
the Issuer since December 1993. Mr. Duddles is also a director, Executive Vice
President and Chief Financial and Administrative Officer of Foodmaker and has
been since at least 1988.
Mr. MacGill is a director of the Issuer and has been since May 1994.
Mr. MacGill is also President and Chairman of the Board of Chartwell
Properties Corporation, a real estate investment company, and has been since
1987.
Executive Compensation
None of the directors or officers of the Issuer receive any compensation
from the Issuer or for their services in these capacities.
OWNERSHIP OF EQUITY SECURITIES
The Issuer
The following table sets forth, as of the date of this Prospectus, the
beneficial ownership of the Issuer's Common Stock.
Name of Beneficial Shares of
Owner Common Stock Percent
------------------- ------------ -------
Robert H. Key 100 100%
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DESCRIPTION OF THE UNDERLYING TRANSACTIONS
Net Note Sales Proceeds; Closing Costs; Costs of the Estates For Years
On January 5, 1994, in a private placement transaction, the Issuer issued
and sold $70,000,000 aggregate principal amount of Old Notes. The net sales
proceeds from the sale of the Old Notes were $68,908,000, which proceeds were
used to purchase the CRC Notes. The total acquisition cost of the Estates For
Years purchased by CRC-I and CRC-II was $66,427,605 and the closing costs paid
by CRC-I and CRC-II were estimated, at January 5, 1994, to be $2,480,395.
Existing Assets
The CRC-I Note Purchase Price was in the amount of approximately $28.6
million. The proceeds from the sale of the CRC-I Note have been and will be
used by CRC-I to purchase from Foodmaker Estates For Years for terms ending
November 30, 2028 in 38 existing Jack In The Box restaurants consisting of an
aggregate of approximately 101,000 rentable square feet of space and situated
on an aggregate of approximately 19.6 acres of land. The locations of all of
the Existing Assets, including the Potential Existing Assets, are identified in
the Schedule of Properties below.
The full purchase price for the CRC-I Note was paid on January 5, 1994;
however, a portion of such funds has been deposited in the Additional Unit
Acquisition Account (a subaccount of the Construction Account) maintained by
the Trustee pursuant to the Indenture to be disbursed therefrom from time to
time to enable CRC-I to purchase Estates For Years in the Potential Existing
Assets from Foodmaker, as title to the fee interest therein is acquired by
Foodmaker, at which time such Properties will be subjected to the CRC-I Lease.
As of April 15, 1994, Estates For Years in the Existing Assets, other than the
Potential Existing Assets, had been acquired by CRC-I from the proceeds of the
CRC-I Note Purchase Price and were leased to Foodmaker pursuant to the CRC-I
Lease. At June _____, 1994, approximately $__________________ had been
disbursed for the acquisition of such Existing Assets. See "- Construction
Account." Pursuant to the terms of the CRC-I Lease, Foodmaker has been and
will be liable for the payment of rent from January 5, 1994 on all of the
Existing Assets, including the Potential Existing Assets (collectively, the
"CRC-I Note Properties"), regardless of the status of the acquisition by CRC-I
of an Estate for Years therein.
Construction Assets
The CRC-II Note Purchase Price was in the amount of approximately $37.8
million. The proceeds from the purchase of the CRC-II Note have been and will
be used by CRC-II to purchase from Foodmaker Estates For Years for terms ending
November 30, 2028 in four existing Jack In The Box restaurants and
approximately 34 to-be-constructed Jack In The Box restaurant locations
consisting of an aggregate of approximately 101,000 rentable square feet of
space and situated on an aggregate of approximately 19.6 acres of land. The
locations of all of the Construction Assets, including the Potential
Construction Assets, are identified in the Schedule of Properties below.
The full purchase price for the CRC-II Note was paid on January 5, 1994;
however, a portion of such funds has been deposited in the Construction Account
maintained by the Trustee pursuant to the Indenture to be disbursed therefrom
from time to time to enable CRC-II to purchase the Estates For Years in the
Potential Construction Assets from Foodmaker, as title to the fee interest
therein is acquired by Foodmaker (at which time such Properties will be
subjected to the CRC-II Lease), and to enable Foodmaker to build Jack In The
Box restaurants thereon. See "- Construction Account." As of April 15, 1994,
Estates For Years in the Construction Assets, other than the Potential
Construction Assets, had been acquired by CRC-II from the proceeds of the
CRC-II Note Purchase Price and were leased to Foodmaker pursuant to the CRC-II
Lease. At June _____, 1994, approximately $_________________ had been
disbursed for the acquisition of such Construction Assets. Estates For Years
in the Potential Construction Assets will be acquired from time to time and
will be subjected to the CRC-II Lease as Foodmaker acquires the fee interest
and CRC-II acquires the Estate For Years therein. Pursuant to the terms of the
CRC-II Lease, Foodmaker has been and will be liable for the payment of rent
from January 5, 1994 on all of the Construction Assets acquired by Foodmaker
(including the Potential Construction Assets) (collectively, the "CRC-II Note
Properties") regardless of the status of the acquisition by CRC-II of an Estate
For Years therein and/or the completion of construction thereof.
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The Properties
The usable area of a typical building constructed on a Property consists
of approximately 50% kitchen space and 50% dining space and includes
approximately 20-30 uncovered outdoor parking places. The Properties initially
will be operated as Jack In The Box restaurants.
Schedule Of Properties
Existing Assets (as of April 15, 1994)*
Number Location City State
------ -------- ---- -----
1 465 South Fairfax Los Angeles CA
2 5801 Bellaire Boulevard Houston TX
3 1395 Federal Road Houston TX
4 2101 9th Avenue North Texas City TX
5 4400 West Fuqua Houston TX
6 7447 Spencer Hwy Pasadena TX
7 3333 Red Bluff Pasadena TX
8 8767 South Main Houston TX
9 916 South Sam Houston Drive Huntsville TX
10 839 East Mulberry Street Angleton TX
11 419 South Washington Cleveland TX
12 901 East Curry Road Tempe AZ
13 1402 East Ash Globe AZ
14 41 East Edwardsville Woodriver IL
15 1649 Washington Avenue Alton IL
16 1800 North Illinois Swansea IL
17 1360 Highway 50 O'Fallon IL
18 830 Edwardsville Road Troy IL
19 13369 Firestone Boulevard Norwalk CA
20 315 South Brea Brea CA
21 57930 Twenty Nine Palms Yucca Valley CA
22 11080 Scarsdale Boulevard Houston TX
23 3317 First Street Rosenberg TX
24 15919 JFK Houston TX
25 5107 I-10 Baytown TX
26 15354 Manchester Road Ellisville MO
27 7520 Manchester Maplewood MO
28 322 Taylor Hazelwood MO
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29 479 Ranier Avenue South Renton WA
* The Existing Assets include the Potential Existing Assets, set forth
separately below.
Potential Existing Assets (as of April 15, 1994)
Number Location City State
------ -------- ---- -----
30 4751 El Cajon Boulevard San Diego CA
31 2701 Brooklyn Avenue Los Angeles CA
32 23813 South Avalon Carson CA
33 2210 North Alexander Baytown TX
34 1010 Richmond Wharton TX
35 1001 North 24th Street Phoenix AZ
36 1180 Highway 20 Cottonwood AZ
37 3330 Nameoki Road Granite City IL
38 300 South Buchanan Edwardsville IL
Construction Assets (as of April 15, 1994)**
Number Location City State
------ -------- ---- -----
1 Slauson & Greenwood City of Commerce CA
2 3830 West Sierra Way Acton CA
3 Hwy 99 & Lander Turlock CA
4 College at Lindbergh Beaumont TX
5 NEC Hwy 290 at Senate Road Houston TX
6 I-10 at Hwy 62 Orange TX
7 Sunshine & Tyler Harlingen TX
8 I-10 at FM 359 Brookshire TX
9 U.S. 83 & Bryan Road Mission TX
10 Tyler at South M Harlingen TX
11 Airline & I-610 Houston TX
12 Hwy 360 & Green Oaks Grand Prarie TX
13 1467 Olney Avenue Port Orchard WA
14 610 South Burlington Burlington WA
Boulevard
15 4717 Evergreen Everett WA
16 20746 108th Avenue Kent WA
** The Construction Assets include the Potential Construction Assets, set
forth separately below.
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Potential Construction Assets
Number Location City State
------ -------- ---- -----
17 I-8 & Fortuna Yuma AZ
18 Santa Fe & Bobier Vista CA
19 Pico Canyon & Lyons Santa Clarita CA
20 Archibald at I-60 Ontario CA
21 China Lake at College Blvd. Ridgcrest CA
22 Stockdale Hwy at 15 Kern County CA
23 Hwy 14 at Hwy 58 Mojave CA
24 Main Street & Mission Ridge Manteca CA
25 Sam Houston Pkwy & Hammerly Houston TX
26 Woodlands Drive at I-45 The Woodlands TX
27 North 10th & Pecan McAllen TX
28 Nolana Loop & North 2nd McAllen TX
29 I-35 & Del Mar Laredo TX
30 FM 518 & 270 League City TX
31 Silber & I-10 Houston TX
32 State Hwy 146 & IH10 Mont Belvieu TX
33 Westheimer & Hwy 6 Houston TX
34 Hwy 518 & Hwy 582 Friendswood TX
35 Mockingbird Ln & Stemmons Dallas TX
36 State Hwy. 121 & Harwood Bedford TX
37 377 at Loop 820 Haltom City TX
38 Dorsett & I-270 St. Louis MO
The CRC Leases
The terms of the CRC Leases are summarized under "Description of the
Leases" below.
Use of Properties
The Properties will initially be operated as Jack In The Box restaurants,
and will be subject to a use limitation requiring that they be used for
restaurant purposes or other business uses within Foodmaker's principal lines
of business for the three years after January 5, 1994.
Right of Substitution
Foodmaker may effect a substitiution (a "Substitution") of any Property
listed on the Schedule of Properties above with a replacement property
("Substitute Property") in any of the following circumstances: (a) a casualty
or condemnation which Foodmaker determines has rendered the Property
permanently unsuitable for continuation of the then existing
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business use, (b) Foodmaker determines any Property to be uneconomic for
continuation of the then existing business use, or (c) in the case of Potential
Construction Assets or Potential Existing Assets, prior to being subjected to
the applicable Lease.
The Substitute Property must have a fair market value not less than the
then current fair market value of the Property being substituted at the time of
such substitution, as confirmed by an independent appraisal (or as certified by
Foodmaker in the case of a Substitute Property substituted for a Potential
Construction Asset or Potential Existing Asset prior to being subjected to the
applicable CRC Lease). Foodmaker must (1) convey to CRC-I or CRC-II, as
applicable, an Estate For Years of a duration equal to the then remaining
Estate For Years of the substituted Property, and lease from CRC-I or CRC-II,
as applicable, the Substitute Property and (2) pay all charges incident to such
conveyance of the Substitute Property. Such Substitute Property must also be
encumbered as collateral for the CRC Notes pursuant to a deed of trust which
would, in turn, be pledged as collateral for the Notes. Foodmaker shall
receive a release from the lien of the Indenture, applicable deed of trust and
Lease as it relates to the Property so substituted.
Optional Prepayment
The Issuer may not prepay the Notes at any time, in whole or in part,
during the first five years after January 5, 1994. Thereafter, the Notes may
be prepaid in connection with an Early Termination under the Leases, at par
plus a premium (the "Prepayment Premium") equal to the following percentage of
the principal amount of the Notes to be prepaid: year six - 5.00%, year seven
- - 3.75%, year eight - 2.50%, year nine - 1.25%, and year ten - 0.00%. (See
"Description of the Leases - Early Termination; Lease Modification.")
Mandatory Prepayment
By the beginning of year ten, the outstanding balance of the Notes must be
reduced to $35,000,000 or less. The sinking fund will be applied at the
beginning of year ten to reduce the outstanding debt, and CRC-I and CRC-II will
be obligated to make an additional principal payment equal to the difference
between $35,000,000 and the balance in the sinking fund. This additional
principal payment is required to be covered by the special rent payments and
the purchase price payable under the rejectable offer required to be made by
Foodmaker under the Leases at the beginning of year ten. See "Description of
the Leases - Rejectable Offer Requirements."
Indenture Defaults
The following constitute events of default under the Indenture ("Indenture
Defaults"): (a) failure to pay principal of or interest on the Notes when due;
(b) a material misrepresentation which remains uncured 30 days after notice
thereof, with a reasonable and necessary extension during diligent pursuit of a
cure for those misrepresentations which by their nature cannot be cured within
30 days; (c) bankruptcy events with respect to the Issuer, CRC-I, CRC-II or
Foodmaker which are not dismissed within the applicable cure periods; and
(d) other customary defaults.
Acceleration of Senior Secured Notes
Upon the occurrence of an Indenture Default which is not cured by the
Issuer, CRC-I, CRC-II or Foodmaker, the Trustee will be entitled to accelerate
the principal of the Notes and premium, if any. The Issuer may not foreclose
upon the deeds of trust on Foodmaker's reversionary rights on the Existing
Assets or the Construction Assets unless a default under the CRC Leases (a
"Lease Default") or under the Foodmaker Mortgages (as defined in the Indenture)
has occurred and is continuing.
Limited Recourse
The recourse for repayment of the Notes will be limited to the Note
Collateral, the CRC-I Guaranty and the CRC-II Guaranty (which guaranties are
nonrecourse to the general partners of each of CRC-I and CRC-II). The Issuer
will not have any personal liability with respect to the Notes except for
certain customary nonrecourse exclusions. Similarly, the recourse for
repayment of the CRC Notes will be limited to the CRC Collateral.
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Construction Account
On January 5, 1994, approximately $28,073,455 was placed in the
Construction Account established pursuant to the Indenture. At April 15, 1994,
such funds, and the reinvestment income thereon, were held in the Construction
Account (including the Additional Unit Acquisition Account) for the purpose of
(a) funding the acquisition by CRC-I of an Estate For Years in the Potential
Existing Assets (unless Foodmaker exercises its right of Substitution and
thereby substitutes another asset for a Potential Existing Asset), and
(b) funding the acquisition by CRC-II of an Estate For Years in, and the
construction by Foodmaker, pursuant to the CRC-II Lease, of a Jack In The Box
restaurant on, each of the Potential Construction Assets (unless Foodmaker
exercises its right of Substitution and thereby substitutes another asset for a
Potential Construction Asset). The funds from the Construction Account
(including the Additional Unit Acquisition Account) are required to be remitted
promptly and in full to Foodmaker as (i) CRC-I acquires an Estate For Years in
each Potential Existing Asset, or (ii) Foodmaker acquires a fee interest and
CRC-II acquires an Estate For Years in each Potential Construction Asset, in an
amount which reflects the land acquisition cost of such asset plus, in the case
of Potential Construction Assets, the estimated cost to construct the
improvements thereon (subject to satisfaction of certain conditions set forth
in the Indenture). Whether or not the funds disbursed from the Construction
Account are sufficient to acquire or complete the Potential Construction
Assets, Foodmaker must complete the improvements on the Construction Assets
once they are acquired. In the event that Foodmaker is able to complete and
deliver the Construction Assets for a total amount less than that amount set
aside in the Construction Account, such excess amount shall be released to
Foodmaker.
If an unremedied Lease Default (as described in "Description of the
Leases - Defaults and Remedies") occurs, the Trustee may, in addition to
exercising its remedies under the Indenture, apply the funds available in the
Construction Account to pay the principal, premium, if any, and accrued
interest on the Notes.
Collection, Administrative Expenses, Sinking Fund and Equity Collection
Accounts
All amounts paid by Foodmaker under the Leases are remitted directly to
the Trustee for deposit in the Collection, Administrative Expenses, Sinking
Fund, and the Equity Collection Accounts established pursuant to the Indenture.
The rent payments are made available for application to payment of interest on
the Notes on each semi-annual Interest Payment Date, for payment or deposit
into the Administrative Expenses Account of $25,000 on each semi-annual
Interest Payment Date under the Indenture for projected Indenture expenses, and
to fund $747,402 semi-annually through year nine into the Sinking Fund Account
to create a source for payment of a portion of the principal payment due at the
end of year nine.
All proceeds of any hazard insurance or condemnation (in excess of
$500,000 for any one Property or $3 million in the aggregate at any time), are
required to be deposited in a separate Proceeds Account held by the Trustee,
and disbursed, as required, to fund the restoration of the damaged or condemned
Property (unless Foodmaker elects to substitute or consummate an Early
Termination of the Property, as herein described, in which case the insurance
or condemnation proceeds shall be released to Foodmaker upon consummation
thereof) except in the event of a Lease Default, in which case such proceeds
will be available to pay principal of and accrued interest on the Notes. See
"Description of the Leases - Defaults and Remedies."
Amounts owed to the applicable Lessor by Foodmaker under the CRC Leases in
connection with any Early Termination, the Rejectable Offer Requirements or the
exercise of any Option by Foodmaker (as described in "Description of the
Leases"), in excess of the sums payable on the Notes, are required to be
deposited in a separate Equity Collection Account and are required to be held
by the Trustee until all sums owing under the Notes have been paid in full.
If an unremedied Lease Default occurs, the Trustee may, in addition to
exercising its remedies under the Indenture, apply the funds in the Collection
Account, the Sinking Fund Account and the Equity Collection Account to pay
principal of and accrued interest on the Notes. In the absence of an Indenture
Default, all excess monies in the Collection Account not required to pay the
principal, premium, if any, and interest on the Notes on a Payment Date will be
free of the lien of the Indenture and may be distributed to the Lessee and/or
the Issuer.
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No Other Indebtedness or Activities
Neither the Issuer, CRC-I nor CRC-II is permitted to incur additional
indebtedness or to own other assets or engage in other business activities.
Corporate Governance
Each of the Issuer, CRC-I Corp. and CRC-II Corp., and their original
shareholders (the "Shareholders"), Foodmaker, a designated individual who is
both an officer and director of Foodmaker (the "Designated Officer") and an
individual unaffiliated with the Issuer, CRC-I Corp or CRC-II Corp. (the
"Independent Director") have entered into an agreement regarding corporate
governance (the "Corporate Governance Agreement"), which sets forth the
respective rights and responsibilities of the parties with respect to specific
corporate governance issues relating to the Issuer, CRC-I Corp. and CRC-II
Corp. Pursuant to the terms of the Corporate Governance Agreement, the
Shareholders are obligated to elect the Designated Officer (or his successor)
and the Independent Director as the two directors of each of the Issuer, CRC-I
Corp. and CRC-II Corp. The Independent Director and the Designated Officer
have agreed, in their capacities as directors of the Issuer, CRC-I Corp. and
CRC-II Corp., to elect the Designated Officer to all officer positions of each
of the Issuer, CRC-I Corp. and CRC-II Corp.
Foodmaker and the Designated Officer have agreed that the Designated
Officer (or his successor), in the capacity of Designated Officer of the
Issuer, CRC-I Corp. and CRC-II Corp., will not take any of the following
actions without the prior written consent of (i) the holders of 51% or more of
the limited partnership interests in CRC-I or CRC-II, in the case of an action
proposed to be taken by either of CRC-I or CRC-II, (ii) the holders of 51% or
more of the limited partnership interests of each of CRC-I and CRC-II, in the
case of an action proposed to be taken by the Issuer: (a) any waiver,
amendment or consent to a deviation by Foodmaker relating to any of the
Transaction Documents (as defined in the Corporate Governance Agreement to mean
all documents relating to the offer and sale of the Notes and the CRC Leases to
which the Issuer, CRC-I Corp. and/or CRC-II Corp. is a party) to which
Foodmaker is a party; (b) any action to accept or reject the Rejectable Offer
by Foodmaker; or (c) any action which would constitute or result in a breach by
the Issuer, CRC-I Corp. or CRC-II Corp. of any of the Transaction Documents.
The Designated Officer (or his successor) is also obligated to take any other
action on behalf of the Issuer, CRC-I Corp. and CRC-II Corp. upon receipt of
the same written consent requirements noted above, provided that such action is
not in violation of the organizational documents of the Issuer, CRC-I Corp. or
CRC-II Corp. Foodmaker also agreed to take, and agrees to cause the Designated
Officer (or his successor) to take (at Foodmaker's expense), all necessary
action to ensure that the Issuer, CRC-I Corp. and CRC-II Corp. remain at all
times in compliance with the Transaction Documents, and to effectuate transfers
of the limited partnership interests in either CRC-I or CRC-II upon the request
of at least 51% of the holders of the limited partnership interest of the
affected entity.
The Issuer's Certificate of Incorporation provides that its directors
shall not be personally liable to the Issuer or its stockholders for monetary
damages arising as a result of a director's breach of his or her fiduciary
duty.
In addition, the Indenture provides that subject to certain exceptions set
forth therein, neither the Trustee nor the Holders of Notes may seek or obtain
judgment against the Issuer or any of the Issuer's officers, directors,
shareholders or employees for payment of principal or interest under the Notes,
or any sums payable under the Indenture, and the sole recourse of the Trustee
and the Holders of Notes against the Issuer for any default in the payment of
such principal or interest or other sums shall be limited to the Trust Estate.
Trustee
State Street Bank and Trust Company serves as Trustee. The Trustee's fees
will be paid with the funds deposited in the Administrative Expenses Account,
excess funds available in the Collection Account, or through additional rent
payments due under the Leases.
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Tax Opinion
In connection with the offering of the Old Notes, a legal opinion was
delivered that the Old Notes would be classified as debt of CRC-I and CRC-II
for federal income tax purposes; this opinion did not address any other
federal income tax consequences or other tax consequences related to the
acquisition, ownership or disposition of the Old Notes. The legal opinion was
delivered in reliance upon a Certificate of Representations delivered by
Foodmaker including certain certifications relating to the current value and
projected future value of the Existing Assets and the Construction Assets,
among other things. If the certifications provided by Foodmaker in the
Certificate of Representations were incorrect, then the legal opinion as to
the classification of the Old Notes for federal income tax purposes would be
adversely affected. Purchasers of the Old Notes have been advised that
Foodmaker was not an independent third party to the offering of the Old
Notes, and was not relying on an independent third party, for the purposes of
its Certificate of Representations as to value. The legal opinion was based
on laws, regulations, rulings and decisions in effect at the time, all of
which are subject to change by legislative, administrative or judicial
action, which change may be retroactive. Said legal opinion is not binding
upon the Internal Revenue Service or any court, and no ruling has been
obtained from the Internal Revenue Service as to the classification of the
Old Notes for federal income tax purposes in the transaction. Investors
should consult with their own tax advisors in determining the federal, state,
local and other tax consequences to them of the purchase, ownership and
disposition of the New Notes. See "Certain Federal Income Tax Consequences."
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DESCRIPTION OF NEW NOTES
The following summary does not purport to be complete and is subject to,
and is qualified in its entirety by, reference to all of the provisions of the
New Notes and the Indenture, including the definitions contained therein of
certain terms and those terms made part of the Indenture by reference to the
Trust Indenture Act of 1939 as in effect on the date of the Indenture. Copies
of the New Notes and the Indenture may be obtained upon request from the
Issuer. Capitalized terms used herein and not otherwise defined in this
Prospectus have the meanings ascribed to them in the Indenture.
To the extent that holders of Old Notes do not participate in the Exchange
Offer and Old Notes remain outstanding after the consummation of the Exchange
Offer, Old Notes and New Notes will be repurchased and/or redeemed pro rata
pursuant to the repurchase and redemption provisions contained therein and in
the Indenture. In addition, Holders of New Notes and Holders of Old Notes,
together, will have the voting rights, rights to comply with notice provisions
and other rights specified in the Indenture.
General
The New Notes will be senior secured obligations of the Issuer, limited in
aggregate principal amount to $70,000,000, secured by certain property and
assets as described below and sometimes referred to herein as the "Collateral."
References herein to the "Collateral Documents" include all documents entered
into to create or perfect the security interests in the Collateral. The New
Notes will bear interest at the rate of 9.75% per annum, payable in cash semi-
annually on the first business day of January and July of each year, commencing
on January 2, 1995 to Holders of Notes at the close of business on the previous
business day. Interest will be computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days elapsed. The New Notes will
rank pari passu with any Old Notes that remain outstanding.
The New Notes will be issued only in fully registered form, without
coupons, in denominations of $500,000 and integral multiples thereof.
Security for the New Notes; Guaranties
The New Notes will be secured by, among other things, the following
(collectively, the "Note Collateral"): (1) The pledge by the Issuer to the
Trustee of the CRC-I Note and the CRC-II Note and the CRC Collateral; and (2) A
pledge of the Issuer's rights in and to the Collection Account, the
Construction Account, the Sinking Fund Account and the Equity Collection
Account (see "Description of the Underlying Transactions - Construction Account
- - Collection, Administrative Expenses, Sinking Fund and Equity Collection
Accounts") as well as certain other accounts to be maintained by the Trustee
pursuant to the Indenture, and all funds held therein.
If an unremedied Lease Default occurs, the Trustee may, in addition to
exercising its remedies under the Indenture, apply the funds in the
Construction Account, the Collection Account, the Sinking Fund Account and the
Equity Collection Account to pay principal of and accrued interest on the
Notes. In the absence of an Indenture Default, all excess monies in the
Collection Account not required to pay the principal, premium, if any, and
interest on the Notes on a Payment Date will be free of the lien of the
Indenture and may be distributed to the Lessee and/or the Issuer.
The New Notes will also be guaranteed by each of CRC-I and CRC-II which
guaranties will be nonrecourse to the general partners of each of CRC-I and
CRC-II.
The Issuer is required, at its expense, to maintain insurance policies
providing for title insurance for each property that is subject to the CRC
Mortgages and the Foodmaker Mortgages, collectively and severally.
Optional Prepayment
The Issuer may not prepay the Notes at any time, in whole or in part,
during the first five years after January 5, 1994. Thereafter, the Notes may
be prepaid in connection with an Early Termination under the Leases, at par
plus a premium (the "Prepayment Premium") equal to the following percentage of
the principal amount of the Notes to be
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prepaid: year six - 5.00%, year seven - 3.75%, year eight - 2.50%, year
nine - 1.25%, and year ten - 0.00% (see "Description of the Leases - Early
Termination; Lease Modification.")
Mandatory Prepayment
By the beginning of year ten, the outstanding balance of the Notes must be
reduced to $35,000,000 or less. The sinking fund will be applied at the
beginning of year ten to reduce the outstanding debt, and CRC-I and CRC-II will
be obligated to make an additional principal payment equal to the difference
between $35,000,000 and the balance in the sinking fund. This additional
principal payment is required to be covered by the special rent payments and
the purchase price payable under the rejectable offer required to be made by
Foodmaker under the Leases at the beginning of year ten. See "Description of
the Leases - Rejectable Offer Requirements."
Certain Covenants
The Indenture contains certain covenants with respect to the Issuer. The
covenants include, but are not limited to, the following:
Limitation on Use of Proceeds
The Indenture provides that the Issuer will use the proceeds from the sale
of the Old Notes solely for the purposes set forth therein and not for the
purchase of any security that constitutes "margin stock" or "margin securities"
within the meaning of Regulations G, T, U or X of the Board of Governors of the
Federal Reserve System (or any successor regulations thereto). See "-
Limitations on Lines of Business" and "Business - The Issuer."
Limitations on Additional Indebtedness
The Indenture provides that the Issuer will not incur or have outstanding
any indebtedness, or incur, assume, or guarantee the indebtedness of any Person
(including, without limitation, pursuant to any purchase or repurchase
agreement, any indemnity, or any keep-well, take-or-pay, through-put, or other
arrangement having the effect of assuring or holding harmless any third Person
against loss with respect to any obligation of such other Person) other than
pursuant to the Indenture, unless such indebtedness is an invoice, statement of
account, check, work request, purchase order or other similar document
representing expenses relating to permitted activities of the Issuer in
accordance with the terms of the Indenture.
Change of Control
The Indenture provides that the Issuer shall not cause, permit or
acquiesce in any sale, transfer, assignment or other disposition of the
interests of the shareholders in the Issuer which would result in a transfer,
cumulatively, of 49% or more of the shareholder interests in the Issuer.
Limitation on Liens
The Indenture provides that the Issuer will not (a) permit the validity or
effectiveness of the Indenture or any Grant thereunder to be impaired, or
permit the lien of the Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be released from any
covenants or obligations with respect to the Indenture or the Notes or any
document executed pursuant thereto, except as may be expressly permitted
thereby; (b) permit any lien, charge, adverse claim, security interest,
mortgage or other encumbrance (other than the lien of the Indenture and any
lien for taxes not yet due and payable) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof, any
interest therein or the proceeds thereof, or (c) take any action that would
permit the lien of the Indenture not to constitute a valid first priority
perfected security interest in the Trust Estate.
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Existence of Issuer
The Indenture provides that the Issuer will maintain in full force and
effect its existence, rights and franchises as a corporation, organized under
the laws of the State of Delaware, separate and apart from any of its
Affiliates, and will obtain and preserve its qualification to do business as a
foreign corporation, in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of the Indenture,
the Notes or the Trust Estate. The Issuer may not amend its certificate of
incorporation or by-laws without the written consent of the Majority
Noteholders. The Issuer at all times will be operated in accordance with the
provisions of its certificate of incorporation, by-laws and any laws or
regulations applicable to it, and shall observe all corporate formalities,
including keeping its own separate books and records, having its own bank
accounts and keeping its funds separate from the funds of its shareholders,
holding periodic meetings of its directors and shareholders, and having
officers that (when acting in their capacity as officers of the Issuer) act in
such corporation's best interests, and is able to fund from its own assets all
of its activities and expenses. The charter and by-laws of the Issuer provide
that a unanimous vote of all directors of the Issuer is necessary for (a) any
merger or consolidation, (b) any voluntary bankruptcy filing and any
declaration of insolvency for any purpose for the Issuer, or (c) any amendment
of the Issuer's charter, or of its by-laws if such amendment pertains to
certain matters, including, but not limited to, limitations on lines of
business and certain negative covenants, as set forth in the Indenture.
Limitation on Transactions with Affiliates
The Indenture provides that the Issuer will not enter into or permit to
exist, directly or indirectly, any transaction (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Issuer, except for transactions in the
ordinary course of the business of the Issuer and upon fair and commercially
reasonable terms which are no less favorable to the Issuer than would be
obtained in a comparable arm's-length transaction with a Person that is not
such an Affiliate.
Protection of Trust Estate
The Indenture provides that the Issuer shall from time to time execute and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and other
instruments, and shall take such other action as may be necessary or, upon
request of the Trustee or the Majority Noteholders, advisable to: (a) grant
more effectively all or any portion of the Trust Estate; (b) maintain or
preserve the lien (and the priority thereof) of the Indenture or to carry out
more effectively the purposes thereof; (c) perfect, publish notice of, or
protect the validity of any Grant made or intended to be made by the Indenture;
(d) enforce any of the Mortgage Note Documents, Eligible Investments, or other
instruments included in the Trust Estate, or the CRC Leases; (e) preserve and
defend title to the Trust Estate and the rights therein of the Trustee and the
Holders of Notes in such Trust Estate against the claims of all Persons and
parties; and (f) pay any and all taxes levied or assessed upon all or any part
of the Trust Estate.
The Indenture further provides that the Trustee shall not (a) remove any
portion of the Trust Estate that consists of money or is evidenced by an
instrument, certificate, or other writing including, without limitation, the
CRC Notes, (i) from the jurisdiction in which it was held at the date the most
recent Opinion of Independent Counsel was delivered pursuant to the Indenture
(or from the jurisdiction in which it was held as described in the Opinion of
Independent Counsel, delivered on January 5, 1994), if no Opinion of
Independent Counsel has yet been delivered pursuant to the Indenture or
(ii) from the possession of the Person who held it on such date or (b) cause or
permit ownership or the pledge of any portion of the Trust Estate to be
recorded on the books of a Person (i) located in a different jurisdiction from
the jurisdiction in which such ownership or pledge was recorded at such date or
(ii) other than the Person on whose books such ownership or pledge was recorded
at such date, unless the Trustee shall have first received an Opinion of
Independent Counsel to the effect that the lien and perfected first priority
security interest created by the Indenture with respect to such property will
continue to be maintained after giving effect to such action or actions.
Pursuant to the Indenture, the Issuer shall pay or cause to be paid any
taxes levied on the Issuer on account of the Issuer's ownership of the Trust
Estate.
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Opinions as to Trust Estate
The Indenture provides that on or before December 31 in the third calendar
year following January 5, 1994 and on December 31 in each third year
thereafter, the Issuer shall furnish to the Trustee an Opinion of Independent
Counsel either (a) stating that, in the opinion of such counsel, such action
has been taken with respect to the recording, filing, re-recording and refiling
of the Indenture, any indentures supplemental thereto and any other requisite
documents as is necessary to maintain the lien and perfected first priority
security interest created by the Indenture with respect to the Trust Estate and
reciting the details of such action, or (b) stating that, in the opinion of
such counsel, no such action is necessary to maintain such lien and perfected
first priority security interest. Such Opinion of Independent Counsel shall
also describe the recording, filing, re-recording, and refiling of the
Indenture, any indentures supplemental thereto and any other requisite
documents that will, in the opinion of such counsel, be required to maintain
the lien and perfected first priority security interest of the Indenture with
respect to the Trust Estate. The fees and expenses incurred in connection with
each such Opinion of Independent Counsel shall be Administrative Expenses
payable in accordance with the terms of the Indenture, and any such fees and
expenses not so paid shall be paid by the Trustee, to the extent funds are
available from the Trust Estate or are otherwise provided to the Trustee, on
behalf of the Issuer subject to the Trustee's right of reimbursement therefor.
Performance of Obligations
The Indenture provides that the Issuer shall not take any action, and will
use its best efforts not to permit any action to be taken by others, that would
release any Person from any of such Person's covenants or obligations under the
Mortgage Note Documents or the CRC Leases or under any instrument included in
the Trust Estate or which would result in the amendment, hypothecation,
subordination, termination, or discharge of, or impair the validity or
effectiveness of, any of the Mortgage Note Documents, the CRC Leases or any
such instrument, except as provided in the Indenture or such Mortgage Note
Document, the CRC Leases or other instrument.
Limitation on Mergers or Consolidations
The Indenture provides that the Issuer generally may not consolidate or
merge with or into any other Person or convey or transfer its properties and
assets to any Person.
Limitation on Lines of Business
The Indenture provides that the Issuer shall not engage in any business or
activity other than: (a) issuing and selling the Notes pursuant to the
Indenture and acquiring, owning, and pledging the Trust Estate in accordance
with the terms of the Indenture; (b) issuing or incurring indebtedness
permitted by the terms of the Indenture (see "- Certain Covenants - Limitations
on Additional Indebtedness"); and (c) engaging in any other activities which
are necessary, suitable, or convenient to accomplish the matters set forth
above or are incidental thereto or connected therewith. The organizational
documents of the Issuer provide that the Issuer is restricted to engaging only
in such business or activities.
Limitations on Transfer and Encumbrance of Trust Estate
The Indenture provides that the Issuer will not sell, transfer, exchange,
or otherwise dispose of, or pledge, mortgage, hypothecate, or otherwise
encumber (or permit such to occur or suffer such to exist), any part of the
Trust Estate, except as expressly permitted by the Indenture.
Limitation on Payment of Taxes
The Indenture provides that the Issuer will not claim any credit on, or
make any deduction from, the principal or interest payable with respect to the
Notes (other than the amounts required to be withheld in accordance with the
Code) or assert any claim against any present or future Holders of Notes, by
reason of the payment of any taxes levied or assessed upon any part of the
Trust Estate.
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Restrictions on Issuer's Exercise of Lessor's Rights Under Leases
The Indenture provides that the Issuer shall not exercise any right of the
Lessor under either of the CRC Leases (including, without limitation, any right
to make any election or determination or give any consent, direction, or waiver
under such CRC Lease) without the prior written approval of the Trustee, all of
which rights are assigned to the Trustee by virtue of the CRC Lease
Assignments, including the collateral assignments thereof by the Issuer to the
Trustee. To the extent any such consent may not be unreasonably withheld by
the applicable Borrower under the applicable CRC Lease, the Trustee and the
Holders of Notes shall be bound by such reasonableness standard.
Limitation on Status as Investment Company
The Indenture provides that the Issuer shall at all times while the Notes
are outstanding take all actions necessary to ensure that the Issuer is at all
times exempt from and need not register as an "investment company" under the
Investment Company Act, and shall at no time allow itself to be controlled by
an "investment company" as defined in the Investment Company Act.
Restriction on Purchase of Notes
The Indenture provides that the Issuer may not acquire any Notes.
Reports and Other Information
Provision of Rule 144A Information
During the period beginning on the original issuance date of the Old Notes
and ending on the date that is three years from such date, the Issuer shall,
during any period in which the Lessee or the Issuer is not subject to
Section 13 or 15(d) under the Exchange Act, make available to any Holder of Old
Notes which continue to bear the restrictive legend set forth in the Indenture,
and to any prospective purchaser of Old Notes from such Holder, the information
required pursuant to Rule 144A(d)(4) under the Securities Act upon the request
of such holder of Old Notes.
Statement as to Compliance
Promptly upon request by the Trustee or any Noteholder, the Issuer will
deliver to the Trustee an Officer's Certificate stating, as to each signer
thereof, that:
(a) a review of the activities of the Issuer during the preceding
six-month period and of the Issuer's performance under the Indenture has
been made under his or her supervision; and
(b) to the best of his or her knowledge, based on such review, the
Issuer has fulfilled all of its obligations under the Indenture and the
Mortgage Note Documents throughout such six-month period, has complied
fully with the terms and provisions hereof and no Default exists
thereunder, or, if there has or had been a Default during such quarter,
specifying each such Default known to him and the nature and status
thereof.
Payment Date Statement
The Issuer is required under the Indenture to prepare a statement (the
"Payment Date Statement") not later than the second business day preceding each
Payment Date. Upon request by the Trustee, the Issuer shall provide or cause
the Lessee to provide the Trustee with all information not in the Trustee's
possession and necessary to prepare each Payment Date Statement in a timely
manner. The Trustee shall forward copies of the Payment Date Statement to each
Holder of Notes on each Payment Date and the Trustee shall not be liable for
any error made in calculating or otherwise determining the information required
to be set forth in the Payment Date Statement as set forth in the Indenture,
except for any error resulting from negligence, willful misconduct, or bad
faith on the part of the Trustee or its employees. Pursuant to the terms of
the Indenture, the Issuer is required to indemnify the Trustee for any loss,
liability or expense incurred without
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negligence, willful misconduct or bad faith on the part of the Trustee or
its employees arising out of the Trustee's preparation and delivery of the
Payment Date Statement and disbursements made pursuant thereto.
Events of Default and Remedies
The Indenture defines an "Event of Default" as one of the following
events: (a) the occurrence and continuance of any CRC Lease Event of Default
or Mortgage Event of Default (see "Description of the Leases - Defaults and
Remedies"); (b) the failure by the Issuer to pay any interest, premium or
principal on any Note or to make any deposit required under the Notes to be
made to the Sinking Fund Account or the Administrative Expenses Account, when
due and payable; (c) the failure by the Issuer to perform or observe any other
term, provision, covenant, obligation, or agreement of the Indenture and,
subject to certain exceptions, the continuance of such failure for a period of
30 days from the earlier of actual knowledge thereof by any Responsible Issuer
Officer or written notice thereof to the Issuer by the Trustee or to the Issuer
and the Trustee by any Noteholder; (d) if any representation, warranty or
certification made by or on behalf of the Issuer in or pursuant to the
Indenture or by the Issuer in or pursuant to any other document entered into by
the Issuer or in connection with any of the transactions contemplated by the
Indenture or any other document entered into by the Issuer in connection with
any of the transactions contemplated by the Indenture shall prove to have been
false or incorrect on the date as of which made and such breach remains uncured
30 days after notice thereof has been given to the Issuer or after the
expiration of any reasonable and necessary extension (which shall not be for
more than 90 days) given by the Trustee for those misrepresentations which by
their nature cannot be cured in 30 days and which Issuer is diligently
proceeding to cure; (e) certain events of bankruptcy, insolvency,
reorganization or similar proceedings in respect of the Issuer, CRC-I, CRC-II,
Foodmaker or any General Partner; or (f) default by any party under the
Registration Rights Agreement.
If an Event of Default occurs and is continuing, the Majority Noteholders
may declare the principal of all the Notes to be immediately due and payable by
written notice to the Issuer and the Trustee, and upon any such declaration
such principal, together with interest accrued thereon and any premium payable
in connection therewith, shall become immediately due and payable; provided
that if an Event of Default specified in clause (e), above, occurs, then such
principal, together with interest accrued thereon and any premium payable in
connection therewith shall become immediately due and payable without any such
declaration, demand, presentment or notice or any other action (all of which
are waived) and references herein to "declaration of acceleration" shall
include such automatic acceleration.
At any time after such a declaration of acceleration of Maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Majority Noteholders, by written notice to the
Issuer and the Trustee, may rescind and annul such declaration and the
consequences thereof if: (a) the Issuer has paid or irrevocably deposited with
the Trustee on behalf of the Noteholders a sum sufficient to pay: (i) all
overdue installments of interest, premium, if any, and principal on all Notes;
(ii) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements, and advances, if any, of the Trustee and
its agents and counsel; and (iii) all sums payable to Noteholders pursuant to
the terms of the Indenture and the reasonable compensation, expenses,
disbursements, and advances of their counsel; and (b) all Events of Default,
other than the non-payment of the interest on or principal of Notes that have
become due solely by such acceleration, have been cured or waived as provided
in the Indenture.
Subject to certain provisions of the Indenture regarding the impairment or
waiver of specified rights of a Holder of Notes, (including, but not limited
to, the right to receive payment of the principal, premium, if any, or interest
on or after the Payment Dates expressed in such Notes), no Holder of Notes
shall have any right to institute any Proceedings, judicial or otherwise, with
respect to the Indenture, or for the appointment of a receiver or trustee, or
for any other remedy thereunder, unless, among other things:
(a) the Holders of not less than 25% in Aggregate Outstanding Amount
of Notes shall have made written request to the Trustee to institute
Proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(b) such Holder or Holders of Notes have offered to the Trustee
reasonable indemnity;
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(c) the Trustee for 30 days after its receipt of such notice,
request, and offer of indemnity has failed to institute any such
Proceeding; and
(d) no direction inconsistent with such written request has been
given to the Trustee during such 30-day period by the Majority
Noteholders.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Notes, neither
group constituting the Majority Noteholders, the Trustee in its sole discretion
may determine what action, if any, shall be taken.
Modification of the Indenture
The Indenture provides that the Trustee and the Issuer may enter into an
indenture or indentures supplemental to the Indenture for the purpose of adding
any provisions to, or changing or eliminating any of the provisions of the
Indenture or of modifying the rights of the Holders of Notes under the
Indenture, except in certain circumstances that will require unanimous consent,
including without limitation (i) changes with respect to payment of principal,
premium and interest (upon redemption, maturity or otherwise), (ii) the
creation of any lien ranking prior to or on a parity with the lien of the
Indenture with respect to any part of the Trust Estate, and (iii) termination
of the lien of the Indenture.
The Indenture also provides that the Issuer and the Trustee may amend or
supplement the Indenture or the Notes without the consent of or notice to the
Holders of Notes to, among other things, (i) provide for the issuance of the
New Notes to be exchanged for Old Notes pursuant to a Registered Exchange Offer
(as defined in the Registration Rights Agreement, (ii) cure any ambiguity,
defect or inconsistency, (iii) make any change that does not materially and
adversely affect the legal or other rights of any Holder of Notes or
(iv) comply with any requirements of the Commission in connection with the
qualification of the Indenture under the Trust Indenture Act of 1939, and the
rules and regulations promulgated thereunder.
The Indenture further provides that the provision regarding the withdrawal
of funds from the Sinking Fund Account shall not be amended or supplemented
without the prior written consent of Foodmaker.
Satisfaction and Discharge of the Indenture
The Indenture will be discharged and the liens Granted thereunder will
cease and the Issuer will be relieved of all obligations thereunder, provided
no Default or Event of Default has occurred and is continuing, except as to
(i) rights of registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Notes, (iii) the rights of Holders of
Notes to receive payments of principal and interest, (iv) the rights,
obligations and immunities of the Trustee thereunder, and (v) the rights of
Holders of Notes as beneficiaries with respect to the property deposited with
the Trustee and payable to all or any of them; and the Trustee, on demand of
and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of the Indenture (except as limited
above), when:
(1) all Notes theretofore authenticated and delivered (subject to certain
exceptions set forth in the Indenture) have been paid in full;
(2) the Issuer has paid or caused to be paid in full all other sums
payable under the Indenture; and
(3) the Issuer has delivered to the Trustee an Officer's Certificate and
Opinion of Counsel stating that all conditions precedent to the satisfaction
and discharge of the Indenture with respect to the Notes have been complied
with.
Concerning the Trustee
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set
forth in the Indenture. The Majority Noteholders will have the right to direct
the time, method and place of conducting any Proceeding for any remedy
available to the Trustee or any right, remedy, trust or power conferred on the
Trustee, subject to certain exceptions. The Indenture provides that following
an Event of Default
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and acceleration of the indebtedness incurred under the Indenture, the
Trustee will be required, in the exercise of its power, to use the same degree
of care and skill as a prudent person would exercise or use under similar
circumstances in the conduct of such person's own affairs. Subject to certain
provisions of the Indenture, the Trustee will be under no duty to exercise any
of its rights or powers under the Indenture at the request of any Holder of
Notes, unless such holder shall have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request.
The Indenture and the TIA contain certain limitations on the rights of the
Trustee, should it become a creditor of the Issuer, to obtain payment of claims
in certain cases or to realize on certain property received in respect of any
such claim as security or otherwise. Subject to the TIA, the Trustee will be
permitted to engage in other transactions, provided that if the Trustee
acquires any conflicting interest as described in the TIA it must eliminate
such conflict or resign.
Certain Definitions
Set forth below is a summary of certain of the defined terms used in the
Indenture. Reference is made to the Indenture for the full definition of all
such terms, as well as any other terms used herein for which no definition is
provided.
"Administrative Expenses": Without duplication, the sum of: (a) amounts
due the Trustee under Section 6.7; (b) expenses incurred by the Trustee
relating to the administration and maintenance of the Trust Estate (including,
without limitation, expenses pursuant to Article Eleven); (c) any fees and
expenses, other than fees and expenses paid in connection with the issuance of
the Notes, due to the respective counsel of the Noteholders and the Trustee;
(d) amounts due to Noteholders pursuant to Section 5.14(c) and, with respect to
any Issuer or Borrower solicitation, Section 8.1; and (e) any fees and expenses
payable to the Rating Agencies other than in connection with the issuance of
the Notes.
"Affiliate" of any specified Person: (a) Any other Person controlling or
controlled by or under common control with such specified Person and (b) any
partner of such Person if such Person is a partnership, or any shareholder of
such Person if such Person is a corporation. For the purposes of this
definition, "control," when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract, or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Aggregate Outstanding Amount": The aggregate principal amount of all the
Notes outstanding at the date of determination.
"Authorized Officer": With respect to the Issuer, any Person whose name
and specimen signature appears on a list of Authorized Officers furnished to
the Trustee as certified by the Secretary of the Issuer. With respect to the
Trustee or any other bank or trust company acting as trustee of an express
trust or as custodian, a Responsible Officer. With respect to the Lessee, any
Person whose name and specimen signature appears on a list of Authorized
Officers furnished to the Trustee as certified by the Secretary of the Lessee.
"Code": The Internal Revenue Code of 1986, as amended, or any successor
statute(s).
"Eligible Investments": Any one or more of the following obligations or
securities:
(a) (i) negotiable certificates of deposit, having a maturity of no
more than 30 days, of any Depository Institution or trust company (including
the Trustee) incorporated under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal or state
banking authorities so long as the commercial paper or the short term unsecured
debt obligations of such Depository Institution or trust company (or, in the
case of the principal Depository Institution in a holding company system, the
commercial paper or short term unsecured debt obligations of such holding
company) at the time of such investment or contractual commitment providing for
such investment have a short term credit rating by the Rating Agencies at least
equivalent to AA for Standard and Poor's and Aa for Moody's and (ii) any other
negotiable certificate of deposit having a maturity of not more than 30 days
that is fully insured by the Federal Deposit Insurance Corporation;
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(b) and, with respect to funds held in the Sinking Fund Account
only, the following additional obligations or securities:
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America, the Federal National Mortgage Association and
the Federal Home Loan Mortgage Corporation or any agency or
instrumentality of the United States of America the obligations of which
are backed by the full faith and credit of the United States of America,
provided that obligations of, or obligations fully guaranteed by, the
Federal National Mortgage Association (excluding stripped mortgage-backed
securities that are valued greater than par on the portion of unpaid
principal), the Federal Home Loan Mortgage Corporation, or any such agency
or instrumentality shall be Eligible Investments only if, at the time of
investment they have a credit rating equal to or higher than AA;
(ii) repurchase obligations pursuant to a written agreement with
respect to (A) any security described in clause (a) above, or (B) any
other security issued or guaranteed by an agency or instrumentality of the
United States of America and providing for the transfer of such security
to the Trustee or its agent as contemplated by applicable law and
regulation in such a way that the Trustee will have a perfected security
interest, in either case entered into with a Depository Institution or
trust company (acting as principal) described in clause (a)(i) above;
(iii) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of
America or any state thereof that have a short term credit rating by the
Rating Agencies at least equivalent to AA at the time of such investment
or contractual commitment providing for such investment; or
(iv) commercial paper issued by any Depository Institution, or any
corporation incorporated under the laws of the United States of America or
any state thereof, so long as the issuer of such commercial paper has, at
the time of such investment, a credit rating by the Rating Agencies
equivalent to at least AA;
provided that all Eligible Investments shall be held in the name of the
Trustee, in its capacity as such, and further provided that Eligible
Investments purchased with funds in any trust account established and
maintained by the Trustee hereunder shall be held until maturity (except as
otherwise provided in the Deposit Accounts Security Agreements) and shall
include only such obligations or securities as mature no later than the
Business Day prior to (x) the Year Nine Installment Payment Date in the case of
Eligible Investments purchased with funds in the Sinking Fund Account, or
(y) the next Payment Date in the case of Eligible Investments purchased with
funds in the Construction Account.
"General Partner": With respect to CRC-I, CRC-I Corp., a Massachusetts
corporation, and with respect to CRC-II, CRC-II Corp., a Massachusetts
corporation.
"Grant": To grant, bargain, sell, warrant, alienate, demise, release,
convey, assign, transfer, mortgage, charge, pledge, create and grant a security
interest in and right of set-off against, deposit, set over, and confirm. A
Grant of the CRC Notes and the other Mortgage Note Documents, or of any other
instrument or agreement Granted hereunder, shall include all rights, powers,
privileges, remedies, options and other benefits (but none of the obligations)
of the Granting party thereunder, including without limitation the immediate
and continuing right to claim for, to collect, to receive and to give any
receipt for principal, premium, if any, and interest payments in respect of the
CRC Notes and all other monies and other property payable thereunder or in
respect thereof, to give and to receive notices and other communications, to
make waivers or other agreements, to exercise all rights, powers, privileges,
remedies, options and other benefits, to bring Proceedings in the name of the
Granting party or otherwise, and generally to do and to receive anything that
the Granting party is or may be entitled to do or to receive thereunder or with
respect thereto.
"Independent": When used with respect to any specified Person, means such
a Person who (a) is in fact independent of the Issuer, the Lessee, CRC-I,
CRC-II and of any Affiliate of any thereof, (b) does not have any direct
financial interest or any material indirect financial interest in the Issuer,
the Lessee, CRC-I, CRC-II or in any Affiliate of any thereof, and (c) is not
connected with the Issuer, the Lessee, CRC-I, CRC-II or any Affiliate of any
thereof as an officer, employee, promoter, underwriter, trustee, partner
(whether general or limited), director, shareholder, beneficiary or Person
performing similar functions or having similar ownership interests. Whenever
it is provided herein that any
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Independent Person's opinion or certificate shall be furnished to the
Trustee, such Person shall be appointed by Issuer Order and such opinion or
certificate shall state that the signer has read this definition and that the
signer is Independent within the meaning hereof. "Independent" when used with
respect to any accountant shall include an accountant who audits the books of
any Person referred to in clause (a) above if, in addition to satisfying the
criteria set forth above, the accountant is independent with respect to such
Person within the meaning of Rule 101 of the Code of Ethics of the American
Institute of Certified Public Accountants.
"Installment Payment Date": The first business day of each January and
July, from and including July, 1994 through and including July, 2003.
"Majority Noteholders": The Holders of more than 50% of the Aggregate
Outstanding Amount of the Notes.
"Maturity": With respect to any Note, the date on which the entire unpaid
principal of and interest on such Note becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration pursuant to the terms of Section 5.2 or otherwise pursuant to the
terms of this Indenture.
"Mortgage Note Documents": The meaning specified in the Mortgages.
"Officer's Certificate": A certificate signed on behalf of any Person by
an Authorized Officer of such Person.
"Opinion of Independent Counsel": A written opinion, in form and
substance reasonably satisfactory to the Trustee, addressed to the Trustee and
the Noteholders, of a law firm which shall be Independent and which shall be
reasonably satisfactory to the Trustee.
"Payment Date": With respect to each semi-annual installment or deposit
payable under the Notes, each Installment Payment Date, and with respect to the
final payment or deposit at Maturity, the Stated Maturity specified in the
Notes.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"Proceeding": Any suit in equity, action at law, or other judicial or
administrative proceeding.
"Responsible Issuer Officer": Any officer of the Issuer, including any
president, vice president, secretary, treasurer, assistant vice president,
assistant secretary, assistant treasurer or any other officer of the Issuer
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively or to whom any matter is
referred because of his or her knowledge of, or familiarity with, this
Indenture or the transactions contemplated hereby.
"Responsible Officer": When used with respect to the Trustee, any officer
within the Corporate Trust Office of the Trustee (or any successor group of the
Trustee) including any vice president, assistant vice president, assistant
secretary, or any other officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, and to whom any corporate trust matter relating to the transactions
contemplated by the provisions of this Indenture is referred because of his or
her knowledge of, or familiarity with, the particular subject.
"Trust Estate": All of the Issuer's right, title and interest now owned
or hereafter acquired in, to and under all of (but none of its obligations with
respect to any of) its assets, whether now existing or hereafter coming into
existence, including, without limitation, (a) the CRC Notes, the CRC-I Lease
Assignment, the CRC-II Lease Assignment, the CRC-I Mortgages, the CRC-II
Mortgages, the Foodmaker Mortgages, the Deposit Accounts Security Agreements,
and the Financing Statements, and all other Mortgage Note Documents, including,
without limitation, any collateral that may be acquired by foreclosure or deed
in lieu of foreclosure and all proceeds of or to which the Issuer is entitled
under any of the foregoing, including without limitation, Insurance and
Condemnation Proceeds, Liquidation Proceeds and all income from REO Properties;
(b) all funds from time to time held in the Collection Account, including
Reinvestment Income (if any) thereon; (c) all funds from time to time held in
the Construction Account, including Reinvestment Income thereon; (d) all
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funds from time to time held in the Proceeds Account, including
Reinvestment Income (if any) thereon; (e) all funds from time to time held in
any REO Account, including Reinvestment Income thereon; (f) all funds from time
to time held in the Administrative Expenses Account, including Reinvestment
Income (if any) thereon; (g) all funds from time to time held in the Closing
Costs Account, including Reinvestment Income (if any) thereon; (h) all funds
from time to time held in the Sinking Fund Account, including Reinvestment
Income thereon; (i) all funds from time to time held in the Equity Collection
Account, including Reinvestment Income thereon; (j) all funds from time to time
held in the Additional Unit Acquisition Account, including Reinvestment Income
thereon; (k) the Insurance Policies; (l) other contracts or agreements of the
Issuer; (m) all other property, real or personal, tangible or intangible; and
(n) all proceeds of any of the foregoing of every kind and nature whatsoever,
including without limitation, proceeds of proceeds, and the conversion,
voluntary or involuntary, of any of the foregoing into cash or other property
(including, but not limited to, any Eligible Investments).
"Trustee": State Street Bank and Trust Company, and its successors in
interest and any corporation resulting from or surviving any consolidation or
merger to which it or its successors may be a party or any successor trustee at
the time serving as successor trustee as permitted hereunder.
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DESCRIPTION OF THE LEASES
Concurrently with the acquisition by CRC-I of the Estate For Years in the
Existing Assets (other than the Potential Existing Assets), CRC-I leased such
Existing Assets to Foodmaker pursuant to the CRC-I Lease. Similarly,
concurrently with the acquisition by CRC-II of the Estate For Years in the
Construction Assets (other than the Potential Construction Assets), CRC-II
leased such Construction Assets to Foodmaker pursuant to the CRC-II Lease. The
Existing Assets, other than the Potential Existing Assets, and the Construction
Assets, other than the Potential Construction Assets, may hereinafter be
referred to as the "Leased Properties" or, individually, as a "Leased
Property." As CRC-I acquires the Estates For Years in the Potential Existing
Assets, upon the acquisition by Foodmaker of the fee interest in the locations
thereof (subject to Foodmaker's right of Substitution as it relates to the
Potential Existing Assets, as described in "- Right of Substitution"), the
CRC-I Lease will be amended to subject such Potential Existing Assets to the
CRC-I Lease. Likewise, as CRC-II acquires the Estate For Years in the
Potential Construction Assets, upon the acquisition by Foodmaker of the fee
interest in the locations thereof (subject to Foodmaker's right of Substitution
as it relates to the Potential Construction Assets, as described in "- Right of
Substitution"), the CRC-II Lease will be amended to subject such Potential
Construction Assets to the CRC-II Lease.
Properties and Aggregate Net Rentable Building Area
The Properties are located in six states: Arizona, California, Illinois,
Missouri, Texas and Washington. These assets have been and will be initially
operated as Jack In The Box restaurants and have been and will be subject to
use limitations requiring that they be used for restaurant purposes, or other
business uses within Foodmaker's principal lines of business, for three years
commencing on January 5, 1994. There are approximately 202,000 square feet of
net rentable retail space (which includes kitchen, dining and food storage
space).
Basic Term and Renewal Options
The CRC Leases became effective on January 5, 1994 and extend for an
initial period expiring on November 1, 2003 (the "Basic Term"). Provided that
the Notes are repaid and the Note Collateral is released from the lien of the
Indenture, Lessee may exercise, separately and independently with respect to
each Property, four successive renewal terms ("Renewal Terms") of five years
each (except that the Renewal Term will be six years with regard to those
Properties in which the Estates for Years have been purchased by Lessee
pursuant to the Year Nine Offer), plus a fifth renewal term ending November 30,
2028, exercisable by written notice to Lessor no later than 30 days after the
date Lessor delivers to Lessee a valid Year Nine Rejection Notice or Rejection
Notice pursuant to the terms of the CRC Leases and no later than 180 days prior
to the expiration of each Renewal Term thereafter.
Rental Rates
The CRC Leases require Foodmaker to pay the amount of $6,875,000 per year
in the aggregate for all of the Properties, payable in arrears in two equal
semi-annual installments through the end of year nine of the Basic Term, each
of which is due on or before the last business day of June and December in
every year of the Basic Term commencing on the last business day of June, 1994
("Basic Rent"). This payment will adjust in the case of an Early Termination
(as defined below) of a Property to reflect the principal reduction under the
terms of the CRC Notes. Foodmaker is liable for the full Basic Rent payment
relating to the CRC-I Note Properties and the CRC-II Note Properties commencing
on January 5, 1994 regardless of the status of acquisition of the Potential
Existing Asset or the Potential Construction Assets or construction of the
Construction Assets.
With each semi-annual payment of Basic Rent, the Lessee will also be
obligated to make a special rent payment in arrears in the amount of $747,402
through year nine, which payment will be paid directly to Trustee on behalf of
CRC-I or CRC-II (as applicable) and will be deposited in the Sinking Fund
Account (the "Special Rent"). In addition, at the beginning of year ten (i.e.,
the first business day of January, 2003) the Lessee will be obligated to make a
special rent payment in an amount equal to the difference between $23,000,000
and the balance on deposit in the Sinking Fund Account. The foregoing semi-
annual special rent payment of $747,402 and the special rent payments equal to
the difference between $23,000,000 and the balance in the Sinking Fund Account
at the beginning of year ten will adjust in the case of the Early Termination
of any Property.
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All amounts which Lessee is required to pay or discharge pursuant to the
Lease in addition to Basic Rent and Special Rent (including every fee, charge,
overdue interest and cost which may be added for nonpayment or late payment
thereof) shall constitute additional rent ("Additional Rent").
Maintenance Repairs and Alterations
At its own expense, Lessee shall keep the Leased Properties in good order,
condition and repair, ordinary wear and tear or loss by fire or other casualty
excepted, and in compliance with all Legal Requirements and Environmental Laws,
subject to certain rights to contest set forth in the Leases.
Lessee, at its sole cost and expense, may make alterations and
improvements to the Leased Properties without Lessor's prior consent, free and
clear of liens, provided that the alterations or improvements do not diminish
the value of such properties.
Title to alterations and improvements vests in Lessor subject to the term
of the Estates For Years. Title to Trade Fixtures (as defined in the Lease)
and other personal property and operating equipment of Lessee remains with
Lessee and Lessee may remove its Trade Fixtures and other personal property and
operating equipment at any time during the term of the Leases, provided that
Lessee repairs any damage to the Leased Properties resulting from such removal.
Utilities and Taxes
During the term of the Leases, Lessee must pay for all utility,
communication and other services furnished to the Leased Properties to the
extent rendered or used on or about such properties. Lessee must also pay all
real property taxes and any general and special assessments subject to certain
rights to contest set forth in the Leases. Lessee is not obligated to pay
taxes levied against Lessor unless those taxes are in lieu of any tax or
assessment that would be payable by the Lessee under the Leases. Lessee must
pay all taxes, assessments, license fees and other charges that are levied or
assessed against its personal property and Trade Fixtures.
Insurance
The Leases obligate Lessee to maintain standard fire and extended coverage
insurance, including endorsements for vandalism, malicious mischief, business
interruption and sprinkler leakage (herein "All Risks Insurance"), on the
Leased Properties covering all replacements and additions thereto and all
building materials and other property which constitute part of such properties
in a manner consistent with insurance maintained by Lessee on properties
similar to such properties and in any event in amounts not less than the actual
replacement cost of such properties, excluding land cost and other uninsurable
items and with deductibles customarily maintained by Lessee. Lessee is also
required to maintain comprehensive general liability insurance, including
blanket contractual liability in the minimum amount of $5,000,000 per
occurrence for bodily injury and/or property damage. Lessee is required to
obtain insurance from insurance companies with a General Policy Rating of
"A:VIII" or better in Best's Key Rating Guide and a Standard and Poor's
Corporation rating of "B+" or better or a Moody's Investors Service, Inc.
rating of Ba3 or better. Lessor's insurance policy rights will be assigned to
the Trustee and the Trustee will be named as an additional insured with respect
to such policies. The minimum limits of the required insurance will in no way
limit the liability of lessee under the Leases.
Indemnification
Lessee must indemnify and hold the Indemnified Parties harmless from any
and all claims resulting from Lessee's use of the Leased Properties or
otherwise relating to such properties during the term of the Leases.
Furthermore, Lessee must provide indemnification to each Indemnified Party for
any and all environmental contamination or damage which occurs prior to the
expiration of the Leases. Lessee is required to remediate any environmental
contamination in accordance with applicable laws.
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Damage, Destruction or Condemnation
If a Leased Property is totally or partially destroyed by fire or other
casualty, or is subject to a taking by a governmental authority pursuant to
condemnation or other like action, Lessee must restore the Leased Property to
substantially its previous condition, whether or not the insurance or
condemnation proceeds are sufficient to cover the cost of restoration, unless
Lessee elects to effect a Substitution or an Early Termination. Lessee may not
terminate the Leases and is not entitled to an abatement of rent (except for
rental adjustments resulting from an Early Termination) in the event of such
damage, destruction or condemnation. Insurance or condemnation proceeds in
excess of $500,000 for any one Leased Property or $3,000,000 in the aggregate
at any time shall be held by the Trustee and disbursed in progress payments as
the work of restoration progresses, or, if Lessee elects a Substitution or
Early Termination, upon consummation of such Substitution or Early Termination.
Right of Substitution
Lessee may effect a Substitution of any Property with a Substitute
Property in any of the following circumstances: (i) a casualty or condemnation
which, upon the sole determination of Lessee, renders the Leased Property
permanently unsuitable for continuation of the then existing business use,
(ii) Lessee determines any Leased Property to be economically infeasible for
continuation of the then existing business, or (iii) in the case of the
Potential Construction Assets or Potential Existing Assets, prior to being
subjected to the applicable Lease.
The Substitute Property must have a fair market value not less than the
then current fair market value of the Property subject to the applicable Lease
as confirmed by an independent appraisal (or as certified by Foodmaker in the
case of a Substitute Property substituted for a Potential Construction Asset or
Potential Existing Asset prior to being subjected to the applicable Lease) at
the time of such Substitution. Foodmaker must (i) convey to the applicable
Lessor an Estate For Years of a duration equal to the then remaining Estate For
Years of the substituted Property and lease-back from Lessor the Substitute
Property in accordance with the terms of and for the remaining term of the
applicable Lease, and (ii) pay all charges incident to such conveyance of the
Substitute Property. Such Substitute Property must also be encumbered as
collateral for the CRC Notes pursuant to a deed of trust which would, in turn,
be pledged as collateral for the Notes.
Foodmaker shall receive a release from the lien of the Indenture, the
applicable deed of trust and Lease as it relates to the Property so submitted.
Early Termination; Lease Modification
At any time after the first business day of January, 1999, Lessee shall
have the right to effect an Early Termination with respect to any Property from
the applicable Lease. In order to do so, the Lessee must initially make a
"Special Sinker Rent" payment of 23/35ths of the "Termination Value" for the
Property. (The "Termination Value" is equal to that Property's initial
allocated portion of the applicable CRC-I or CRC-II original note balance.)
The Lessee must then make an offer to purchase the Property for a price which
is no less than the Termination Value of such Property plus the Termination
Premium thereon (equivalent to the Prepayment Premium applicable to the CRC
Notes) minus the "Special Sinker Rent" payment. These payments will be made
directly to the Trustee and applied as prepayments under the CRC Notes. The
applicable Lessor may reject this offer only if it counteroffers with a higher
price and only if it has prepaid the applicable portion of the applicable CRC
Note plus the prepayment premium. (See "Terms of the Transaction - Payments at
Option of the Issuer.") No further "Special Sinker Rent" is due once payments
of "Special Sinker Rent" in the aggregate amount of 23/70ths of the Termination
Values of all Properties have been made.)
Upon any Early Termination, the Basic Rent and Special Rent payments due
under the applicable Lease shall be adjusted to reflect the reduction in the
principal balance of the applicable CRC Note. Foodmaker shall receive a
release from the lien of the Indenture, the applicable deed of trust and Lease
as it relates to the property so terminated. Foodmaker will also be entitled
to apply a portion of the Sinking Fund Account balance to the "Special Sinker
Rent" payment due under the CRC Leases.
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Under the terms of the Indenture, the Lessors may neither alter nor
terminate the Leases before the expiration of the Basic Term under the Leases.
Assignment/Subletting; Surrender
Lessee may sublease all or any part of the Leased Properties to
subtenants. The term of the sublease may not extend beyond the then current
term of the Leases. Any subletting by Lessee shall not relieve Lessee of any
of its obligations under the Leases. Lessee may assign its rights and
obligations under either Lease provided there is no default and such an
assignment shall not operate to release Lessee from its obligations under the
Leases. The Leases provide that all of their provisions will bind the parties
and their respective permitted successors and assigns.
Surrender or mutual cancellation of the Leases will, at Lessor's option,
operate as an assignment to it of any or all approved subleases or
subtenancies.
Defaults and Remedies
Lease Defaults by Lessee are defined in the Leases to include:
(i) failure to pay rent for all of the Properties under each of the CRC-I Lease
and the CRC-II Lease when due; (ii) failure to observe or perform any covenants
or provisions of the Leases, where such failure is not cured within thirty (30)
days after written notice from Lessor of such failure (or such additional
period of time as may be reasonable to cure the same with reasonable
diligence); (iii) the making by Lessee of any general assignment for the
benefit of creditors, filing by Lessee of any bankruptcy petition or a filing
against Lessee of any bankruptcy petition which is not dismissed within sixty
(60) days, the appointment of a trustee or receiver to take possession of
Lessee, Lessee's interest in any Property or all or a substantial part of
Lessee's other assets or the attachment or levy upon Lessee's interest in any
Property which is not discharged within sixty (60) days; (iv) a final judgment
for payment in excess of $1,000,000 is rendered against but not remitted by
Lessee within sixty (60) days of such judgment (subject to Lessee's right to
appeal such judgment and post a stay bond); (vi) an acceleration of Lessee's
obligations under any single indebtedness or capital lease in excess of
$25,000,000 or under more than one indebtedness or capital lease in the
aggregate amount of $50,000,000 has occurred.
Upon a Lease Default, subject to applicable state laws, Lessor has the
following rights: (i) to accelerate Lessee's obligation to make the Rejectable
Offers described below, in which case the purchase price payable shall be not
less than the Termination Values of all Properties covered thereby, plus the
Termination Premium applicable thereto (See "Description of the Underlying
Transactions - Optional Prepayment "), (ii) to terminate Leases and recover
damages for default; and (iii) to continue the Leases in effect and recover
rent and all other payments as they become due. The transaction documents
include certain limitations on the ability of the Lessor to terminate the
Leases and recover payments due from Lessee in an amount in excess of the
difference between (A) the Termination Values of all Properties covered
thereon, plus the Termination Premium applicable thereto and (B) the fair
market value of the Estates For Years for the Properties covered by the
applicable Lease for the remaining term of such Estates For Years.
Rejectable Offer Requirements
During year nine, the Leases require that the Lessee must make an
irrevocable offer to purchase CRC-I's and CRC-II's Estates For Years in
Properties having an aggregate Termination Value (i.e., the portion of the
original principal balance of the CRC Notes allocable to each such Property) of
at least 50% of the Termination Values of all Properties initially covered by
the CRC Leases (i.e., $35,000,000). The purchase price for those Properties
having Termination Values not in excess of $35,000,000 will be no less than
12/35ths of their Termination Values plus 100% of the Termination Values in
excess of $35,000,000. The purchase price (a minimum of $12,000,000) plus the
balance on deposit in the Sinking Fund Account plus the special rent payments
due during year nine which, combined with the Sinking Fund balance, will equal
$23,000,000, will produce a source of payments sufficient to discharge
$35,000,000 (50% of the original balance) of the Notes. (See "Terms of the New
Notes - Payments of Principal and Interest Prior to Maturity; the Sinking Fund"
and "Description of the Leases - Rental Rates.") The above figures will adjust
as a result of any Early Termination prior to the beginning of year ten,
because Termination Values paid to the Lessor prior to that time will reduce
the Lessee's obligation to make the rejectable offer during year nine.
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Under the Leases, Lessee must also at the end of the Basic Term make an
irrevocable offer to purchase the Estate For Years in the remaining Properties
covered thereby for a purchase price at least equal to the Termination Values
of such Properties. This payment shall be sufficient to pay the remaining
principal balance due under the CRC Notes on November 1, 2003. Each such
irrevocable offer is referred to herein as a "Rejectable Offer." The
Rejectable Offer amounts will be reduced to the extent Foodmaker exercises its
option to purchase (described below) some or all of the Estates For Years.
If Lessor accepts the Rejectable Offers, the applicable Estates For Years
must be conveyed to Lessee in accordance with the provisions in the Leases and
the purchase price under the Rejectable Offers shall be delivered to the
Trustee for payment of the principal and interest then due under the Notes.
Pursuant to the terms of the Leases, the applicable Lessor has the right
to reject each Rejectable Offer. However, pursuant to the terms of the
Indenture, the applicable Lessor may only reject each Rejectable Offer provided
Lessor shall deposit with Trustee cash in the amount necessary to pay the
principal and interest then due under the Notes. Should Lessor reject any
Rejectable Offer, Lessee may elect to exercise any one of the following options
on a Property-by-Property basis:
(1) Terminate the Lease as of the last day of the Basic Term.
(2) Extend and renew the Lease pursuant to the Renewal Options.
(3) Elect to merge its reversionary interest with the Estate For Years in
such Property, in which event either the Lessee will purchase the applicable
Lessor's Estate For Years or the applicable Lessor will purchase the Lessee's
reversionary interest in such Property at the prices designated in the Lease.
Right of First Refusal and Option Right
Lessee shall have the right and option, exercisable within 15 business
days, to elect to purchase one or more of the applicable Lessor's Estate For
Years in the Properties if the applicable Lessor receives a bona fide written
offer to purchase the Properties and if Lessor intends to accept such an offer.
Exercise of such right and option shall not affect the deed of trust
encumbering such Property as security for the CRC Notes, nor shall such right
apply to a foreclosure sale; but provided no Lease Default is continuing such
right shall remain exercisable after a foreclosure sale. There shall be no
merger of the lessee's leasehold estate and the Estate For Years on account of
any such acquisition of an Estate For Years.
Lessee shall have an option to purchase at the beginning of year ten the
applicable Lessor's Estate For Years in one or more Properties having
Termination Values not in excess of 50% of the Termination Values of all the
Properties. The option price will equal the fair market value of the relevant
Estate For Years provided that it must be not less than 12/35 of the
Termination Values of such Properties. CRC-I and CRC-II will be obligated to
make an additional principal payment equal to the difference between
$35,000,000 and the balance in the sinking fund which will be covered by the
Special Rent payments due at the beginning of year ten. Lessee shall also have
an option to purchase the applicable Lessors' Estate For Years in one or more
of the Properties on the last day of the Basic Term or the last day of any
Renewal Term or Extended Term. The option price will equal the Fair Market
Value of the relevant Estate For Years, provided that if the option is
exercised on or about the last day of the Basic Term, the Option price shall
not be less than the Termination Values of the Remaining Properties. Exercise
of either such option shall not affect the deed of trust encumbering such
Property as security for the CRC Notes, but provided no Lease Default is
continuing, such options shall remain exercisable after a foreclosure sale.
Certain Definitions
Set forth below is a summary of certain of the defined terms used in the
Leases. Reference is made to the Leases for a full definition of all such
terms, as well as any other terms used herein for which no definition is
provided.
"Environmental Laws": Means the Resource Conservation and Recovery Art
(42 U.S.C. 6901 et seq.), as amended by the Hazardous and Solid Waste
Amendments of 1984, the Comprehensive Environmental Response,
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Compensation and Liability Act (42 U.S.C. 9601 et seq.), as amended by
the Superfund Amendments and Reauthorization Act of 1986, the Hazardous
Materials Transportation Act (49 U.S.C. 1801 et seq.), the Toxic Substances
Control Act (15 U.S.C. 2601 et seq.), the Clean Air Act (42 U.S.C. 9402 et
seq.), the Clean Water Act (33 U.S.C. 1251 et seq.), the Federal Insecticide,
Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.), the Occupational Safety
and Health Act (29 U.S.C. 651 et seq.) and all applicable federal, state and
local environmental laws, including obligations under the common law,
ordinances, rules, regulations, private agreements (such as covenants,
conditions and restrictions), orders, consent decrees, judgments, permits,
licenses, authorizations, codes and publications, as any of the foregoing may
have been or may be from time to time amended, supplemented or supplanted, and
any other federal, state or local laws, including obligations under the common
law, ordinances, rules, regulations, private agreements (such as covenants,
conditions and restrictions) and publications, now or hereafter existing
relating to regulation or control of Hazardous Substances or environmental
health and safety.
"Indemnified Party": Means each of Lessor, Lessor's Mortgagee, the
Indenture Trustee, each Holder of Notes and their respective Affiliates,
directors, officers, employees, successors and assigns.
"Legal Requirements": Means all laws, rules, orders, ordinances,
regulations and requirements now or hereafter enacted or promulgated, of every
government and municipality having jurisdiction over Lessee or the Leased
Properties and of any agency thereof, relating to Lessee or the Leased
Properties, or the improvements, or the facilities or equipment thereon or
therein, or the streets, sidewalks, curbs and gutters adjoining the Leased
Properties, or the appurtenances to such Properties, or the franchises and
privileges connected therewith, including without limitation the Americans with
Disabilities Act and Environmental Laws, all rules, orders and regulations of
the National Board of Fire Underwriters or other body exercising similar
functions in connection with the prevention of fire or the correction of
hazardous conditions which apply to the Leased Properties, and all private
covenants, conditions and restrictions affecting such properties.
"Rejection Notice": Written notice of Lessor's rejection of the
Termination Date Offer.
"Sinking Fund Account": Means the sinking fund account established and
maintained by the Trustee pursuant to the Indenture.
"Year Nine Rejection Notice": Written notice of Lessor's rejection of the
Year Nine Offer.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
An exchange of an Old Note for a New Note pursuant to the Exchange Offer
should not be treated as a material change in the terms of the Old Notes. As a
result, each New Note should be treated as a continuation of the corresponding
Old Note. An exchanging holder's holding period for a New Note should include
its holding period for the Old Note. In addition, the holder would not
recognize any gain or loss, and its basis and other tax attributes with respect
to the New Note would be the same as its basis and other tax attributes with
respect to the Old Note. The Exchange Offer will result in no federal income
tax consequences to a nonexchanging holder of Old Notes.
The preceding discussion summarizing certain federal income tax
consequences of the Exchange Offer reflects the opinion of Gibson, Dunn &
Crutcher, counsel to the Issuer, as to material federal income tax consequences
expected to result from the Exchange Offer. The discussion is for general
information only and does not constitute tax advice. Each holder should
consult its own tax adviser as to these and any other federal income tax
consequences of the Exchange Offer as well as any tax consequences to it under
state, local or other law. This summary is based on the current provisions of
the Internal Revenue Code of 1986, as amended, and applicable Treasury
regulations, judicial authority and administrative pronouncements. Those
consequences could be modified by future changes in the relevant law, which
could have retroactive effect.
LEGAL MATTERS
The validity of New Notes offered hereby will be passed upon for the
Issuer by Gibson, Dunn & Crutcher, San Diego, California.
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EXPERTS
The balance sheet of the Issuer as of December 31, 1993, included in the
Prospectus and Registration Statement has been included herein in reliance on
the report of KPMG Peat Marwick, independent certified public accountants,
appearing elsewhere herein, and upon the authority of said firm as experts in
accounting and auditing. The consolidated financial statements of Foodmaker as
of October 3, 1993 and September 27, 1992 and for the fifty-three weeks ended
October 3, 1993 and fifty-two weeks ended September 27, 1992 and September 29,
1991, incorporated by reference herein, have been incorporated by reference
herein in reliance upon the report of KPMG Peat Marwick, independent certified
public accountants, incorporated by reference herein and upon the authority of
said firm as experts in accounting and auditing.
The consolidated financial statements of Family Restaurants, Inc.
(formerly The Restaurant Enterprises Group, Inc.) incorporated by reference
from Foodmaker's Current Report on Form 8-K/A dated January 27, 1994 have
been audited by Deloitte & Touche, independent auditors, as stated in their
report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
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FM 1993A CORP.
INDEX TO FINANCIAL STATEMENTS
Financial Statements Page
----
Independent Auditors' Report F-2
Balance Sheet - December 31, 1993 F-3
Notes to Balance Sheet F-4
F-1
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INDEPENDENT AUDITORS' REPORT
The Board of Directors
FM 1993A Corp.:
We have audited the accompanying balance sheet of FM 1993A Corp. as of
December 31, 1993. This balance sheet is the responsibility of the Company's
management. Our responsibility is to express an opinion on this balance sheet
based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the balance sheet is free of material misstatement. An
audit of a balance sheet includes examining, on a test basis, evidence
supporting the amounts and disclosures in that balance sheet. An audit of a
balance sheet also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
balance sheet presentation. We believe that our audit of the balance sheet
provides a reasonable basis for our opinion.
In our opinion, the balance sheet referred to above presents fairly, in all
material respects, the financial position of FM 1993A Corp. at December 31, 1993
in conformity with generally accepted accounting principles.
KPMG PEAT MARWICK
San Diego, California
April 29, 1994
F-2
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FM 1993A CORP.
BALANCE SHEET
December 31, 1993
ASSETS
Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . $100
----
$100
====
STOCKHOLDER'S EQUITY
Common Stock, no par value, 1,000 shares
authorized, 100 shares issued and outstanding . . . . . $100
----
$100
====
See accompanying notes to this statement.
F-3
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FM 1993A CORP.
NOTES TO BALANCE SHEET
December 31, 1993
1. Organization
FM 1993A Corp. (the "Company") was incorporated in the State of Delaware
on December 22, 1993 for the purpose of: (i) issuing and selling debt
obligations ("Notes"), as principal and as agent for CRC-I Limited Partnership
("CRC-I") and CRC-II Limited Partnership ("CRC-II), Massachusetts limited
partnerships, and (ii) acquiring, owning and holding obligations of CRC-I and
CRC-II (collectively, the "CRC Notes") as well as accounts, investments and
other property to be pledged as collateral for the Notes. The Company may not
engage in any other activities other than those required to accomplish the
foregoing.
CRC-I and CRC-II (collectively, "CRC") are special purpose limited
partnerships organized to (i) acquire, own, hold and sell or transfer estates
for years in various existing and to-be-constructed Foodmaker, Inc. restaurant
properties, (ii) sell mortgage notes to the Company accompanied by a pledge of
the foregoing estates for years, and (iii) lease the restaurant properties to
Foodmaker. CRC-I and CRC-II may not engage in any other activities other than
those required to accomplish the foregoing.
2. Subsequent Event
On January 5, 1994, in a private placement transaction, the Company issued
and sold $70 million aggregate principal amount of Notes for $68.9 million,
which proceeds were used to purchase CRC Notes with an aggregate principal
amount of $70 million. The Notes are due November 1, 2003, payable interest
only at the rate of 9.75% per annum semi-annually on July 1 and January 1 each
year, with a mandatory prepayment of 50% of the original principal on the first
business day of January 2002. The CRC Notes' payment and interest terms are
equivalent to and structured to coincide with the Notes such that funds will be
available to make payments on the Notes. In addition, the CRC Notes require
semi-annual sinking fund payments to a trustee of $747 thousand, which will be
utilized to partially fund the 50% prepayment in January 2002. The Notes are
secured by, among other things, the CRC Notes, the CRC leases to Foodmaker,
first priority liens on the underlying properties and any sinking fund or other
amounts held in trust.
F-4
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 30. Other Expenses of Issuance and Distribution.
SEC Registration Fee $ 24,138
Legal Fees and Expenses *
Accountants' Fees and Expenses *
Blue Sky Fees and Expenses *
Transfer Agent's Fees *
Miscellaneous *
----------
Total Expenses $
==========
- --------------------
* Estimated
Item 31. Sales to Special Parties.
Not Applicable
Item 32. Recent Sales of Unregistered Securities.
On January 5, 1994, in a private placement transaction, FM 1993A Corp.
(the "Issuer") issued and sold $70,000,000 aggregate principal amount of 9.75%
Senior Secured Notes due November 1, 2003 (the "Old Notes"). Jeffries &
Company, Inc. was the placement agent in the above-mentioned transaction. The
Old Notes were sold to a limited number of institutional investors meeting the
criteria for qualified Institutional Investors (as defined in Rule 144A under
the Securities Act) or Accredited Investors (as defined in Rule 501(A) under
the Securities Act).
The aggregate offering and sale price for the Old Notes was $68,908,000.
The underwriting commission was $______________.
Exemption from registration was claimed under Section 4(2) of the
Securities Act based on the manner of offering and the limited number and
nature of the purchase.
One hundred percent of the Issuer's common stock was issued in a private
placement under Section 4(2) of the Securities Act to Robert H. Key, an
individual, in December, 1993.
Item 33. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law makes provision for
the indemnification of officers and directors in terms sufficiently broad to
indemnify officers and directors of the Company under certain circumstances
from liabilities (including reimbursement for expenses incurred) arising under
the Securities Act of 1933. The Certificate of Incorporation and Bylaws of
Issuer and Foodmaker provide for indemnification of officers and directors
against costs and expenses incurred in connection with any action or suit to
which such person is a party to the full extent permitted by the Delaware
General Corporation Law.
Item 34. Treatment of Proceeds From Stock Being Registered.
Not Applicable.
II-1
<PAGE>
<PAGE>
Item 35. Exhibits.
Number Description
3.1 Certificate of Incorporation of FM 1993A Corp.
3.2 Bylaws of FM 1993A Corp.
4.1 Indenture Agreement dated as of December 15, 1993, by and
between the FM 1993A Corp. and State Street Bank and Trust
Company **
4.1.1 Amendment dated _________, 1994 to Indenture Agreement*
4.1.2 Form of Series B 9.75% Senior Secured Notes*
4.2 Limited Partnership Guaranties dated as of December 15, 1993
5 Opinion of Gibson, Dunn & Crutcher*
10.1 Master Leases (incorporated by reference from Foodmaker's
Quarterly Report on Form 10-Q for the quarter ended
January 23, 1994)
10.2 Agreement Regarding Corporate Governance
23.1 Consent of Gibson, Dunn & Crutcher (included in Exhibit 5)*
23.2 Consent of KPMG Peat Marwick
23.3 Consent of KPMG Peat Marwick
23.4 Consent of Deloitte & Touche
24 Powers of Attorney (contained on pages II-3 - II-7 of this
Registration Statement)
25 Statement of Eligibility of Trustee*
99 Form of Letter of Transmittal
- -------------------
* To be filed by amendment.
** Schedules (or similar attachments) to this exhibit do not contain
information which is material to an investment decision and not
otherwise disclosed in the Registration Statement or the exhibits
thereto. A copy of any omitted schedule will be furnished to the
Commission upon request.
Item 36. Undertakings.
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrants' annual reports pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrants pursuant to the foregoing provisions, or otherwise, the registrants
have been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrants of expenses incurred or
paid by a director, officer or controlling person of the registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the offering of the
securities being registered, the registrants will, unless in the opinion of
their counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
them is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II-3
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), Foodmaker, Inc. certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing a Form S-3
and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of San Diego, State of
California, on the 3rd day of May, 1994.
FOODMAKER, INC.
By: /S/Charles W. Duddles
-----------------------------------
Charles W. Duddles,
Executive Vice President, Chief
Administrative Officer and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Charles W. Duddles and William E. Rulon,
Esq., and each of them, his true and lawful attorneys-in-fact and agents, each
with full power of substitution and resubstitutions, for his and in his name,
place and stead, in any and all capacities, to sign any or all amendments to
this registration statement, before and after the effective date thereof, and
to file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that either of said attorneys-in-
fact and agents, or his substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
--------- ----- ----
/S/Jack W. Goodall Chairman of the Board, May 3, 1994
- ----------------------- Chief Executive Officer
Jack W. Goodall and President (Principal
Executive Officer)
/S/Charles W. Duddles Executive Vice President, May 3, 1994
---------------------- Chief Administrative
Charles W. Duddles Officer, Chief Financial
Officer and Director
(Principal Financial
Officer)
/S/Robert L. Suttie Vice President, Controller May 3, 1994
---------------------- and Chief Accounting
Robert L. Suttie Officer (Principal
Accounting Officer)
II-4
<PAGE>
<PAGE>
Signature Title Date
--------- ----- ----
/S/Robert J. Nugent Executive Vice President, May 3, 1994
- ----------------------- President of Jack In The
Robert J. Nugent Box Division and Director
- ----------------------- Director
Leonard I. Green
- ----------------------- Director
Edward Gibbons
/S/L. Robert Payne
- ----------------------- Director May 3, 1994
L. Robert Payne
- ----------------------- Director
Christopher V. Walker
/S/Paul T. Carter
- ----------------------- Director May 3, 1994
Paul T. Carter
/S/Michael E. Alpert
- ----------------------- Director May 3, 1994
Michael E. Alpert
II-5
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), FM 1993A Corp. certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing a Form S-11 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Diego, State of
California, on the 3rd day of May, 1994.
FM 1993A CORP.
By: /S/Charles W. Duddles
-----------------------------------
Charles W. Duddles,
President, Treasurer and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Charles W. Duddles and Charles F.
MacGill, and each of them, his true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitutions, for his and in his
name, place and stead, in any and all capacities, to sign any or all amendments
to this registration statement, before and after the effective date thereof,
and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto each of said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that either of said
attorneys-in-fact and agents, or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
--------- ----- ----
/S/Charles W. Duddles Director, President, May 3, 1994
- ------------------------ Treasurer and Secretary
Charles W. Duddles (Principal Financial and
Accounting Officer)
/S/Charles F. MacGill
- ------------------------ Director May 3, 1994
Charles F. MacGill
II-6
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended
(the "Securiteis Act"), CRC-I Limited Partnership certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
a Form S-11 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San Diego,
State of California, on the 3rd day of May, 1994.
CRC-I LIMITED PARTNERSHIP
By: CRC-I Corp., General Partner
By: /S/Charles W. Duddles
------------------------------
Charles W. Duddles,
President, Treasurer and Clerk
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Charles W. Duddles and Charles F.
MacGill, and each of them, his true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitutions, for his and in his
name, place and stead, in any and all capacities, to sign any or all amendments
to this registration statement, before and after the effective date thereof,
and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto each of said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that either of said
attorneys-in-fact and agents, or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
--------- ----- ----
/S/Charles W. Duddles
- ------------------------ Director of CRC-I Corp. May 3, 1994
Charles W. Duddles
/S/Charles F. MacGill
- ------------------------ Director of CRC-I Corp. May 3, 1994
Charles F. MacGill
II-7
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), CRC-II Limited Partnership certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
a Form S-11 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San Diego,
State of California, on the 3rd day of May, 1994.
CRC-II LIMITED PARTNERSHIP
By: CRC-II Corp., General Partner
By: /S/Charles W. Duddles
------------------------------
Charles W. Duddles,
President, Treasurer and Clerk
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Charles W. Duddles and Charles F.
MacGill, and each of them, his true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitutions, for his and in his
name, place and stead, in any and all capacities, to sign any or all amendments
to this registration statement, before and after the effective date thereof,
and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto each of said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that either of said
attorneys-in-fact and agents, or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
--------- ----- ----
/S/Charles W. Duddles Director of CRC-II Corp. May 3, 1994
- ------------------------
Charles W. Duddles
/S/Charles F. MacGill
- ------------------------ Director of CRC-II Corp. May 3, 1994
Charles F. MacGill
II-8
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
FM 1993A CORP.
FIRST. The name of the corporation is FM 1993A Corp.
SECOND. The address of the corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
New Castle County, Delaware. The name of its registered agent at such address is
The Corporation Trust Company.
THIRD. The purposes of the Corporation are limited to: (i)
issuing and selling debt obligations ("Notes"), as principal and as agent for
CRC-I Limited Partnership, a Massachusetts limited partnership, and CRC-II
Limited Partnership, a Massachusetts limited partnership (the "Borrowers")
and entering into an indenture in connection therewith (the "Financing");
(ii) acquiring, owning and holding obligations of the Borrowers, accounts,
investments and other property to be pledged as collateral for the Notes and
pledging such property as collateral for the Notes; and (iii) engaging in any
other activities that are necessary, suitable, or convenient to accomplish
the matters set forth in the foregoing clauses (i) and (ii). In furtherance
of such limited purposes, the Corporation shall not create, incur or assume
any indebtedness other than pursuant to or in connection with the Financing
and the transactions contemplated thereby, or incur, assume, or guarantee the
indebtedness of any person or entity, including, without limitation, pursuant
to any purchase or repurchase agreement, capital lease, indemnity, or any
keep-well, take-or-pay, through-put, or other arrangement having the effect
of assuring or holding harmless any third person or entity against loss with
respect to any obligation of such other person or entity, unless such
indebtedness is an invoice, statement of account, check, work request,
purchase order or other similar document representing expenses relating to
the permitted activities of the Corporation described above. In addition to
the foregoing, in furtherance of such limited purposes, the Corporation shall
(i) observe all corporate formalities, including the maintenance of current
minute books, (ii) maintain its own separate and distinct books of account
and corporate records, (iii) cause its financial statements to be prepared in
accordance with generally
<PAGE>
<PAGE>
accepted accounting principles in a manner that indicates the separate
existence of the Corporation and its assets and liabilities, (iv) pay all its
liabilities out of its own funds, (v) in all dealings with the public,
identify itself under its own name and as a separate and distinct entity, and
(vi) independently make decisions with respect to its business and daily
operations. The Corporation shall not commingle its assets with those of any
other person or entity.
FOURTH. The total number of shares which the corporation shall
have authority to issue is 1,000 shares of capital stock, without par value.
FIFTH. The name and mailing address of the incorporator is
Jonathan Bell, Esq., Hinckley, Allen & Snyder, 1500 Fleet Center, Providence,
Rhode Island 02903.
SIXTH. The powers of the incorporator are to terminate upon the
filing of the Certificate of Incorporation, and the name and mailing address
of the persons who are to serve directors until the first annual meeting of
stockholders or until their successors are elected and qualified are :
Name Address
Christopher Wilson 1-1 Concord Greene
Concord, MA 01742
Charles Duddles c/o Foodmaker, Inc.
9330 Balboa Avenue
San Diego, CA 92123
SEVENTH. The corporation is to have perpetual existence.
EIGHTH. The board of directors of the corporation is expressly
authorized to make, alter, restate or repeal by-laws of the corporation.
NINTH. Elections of directors need not be by written ballot
except and to the extent provided in the by-laws of the corporation.
TENTH. The personal liability of any director to the corporation
or its stockholders for monetary damages arising as a result of the director's
breach of his or her fiduciary duty as a director is hereby eliminated. Nothing
in this provision shall be construed as eliminating the liability of the
director (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts
2
<PAGE>
<PAGE>
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
officer derived an improper personal benefit.
ELEVENTH. Meetings of stockholders may be held within or without
the State of Delaware, as the by-laws may provide. The books of the
corporation may be kept (subject to any provisions contained in the statutes)
outside the State of Delaware at such place or places as may be designated
from time to time by the board of directors or in the by-laws of the
corporation.
TWELFTH. The corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation. So long as any Notes are outstanding, the Corporation will not
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation without the written consent of holders of Notes representing a
majority of the Notes by aggregate outstanding principal amount.
THIRTEENTH. Notwithstanding any other provisions of this
Certificate of Incorporation and any provision of law that otherwise so
empowers the Corporation, the Corporation shall not, without the affirmative
vote of 100% of the members of the Board of Directors, do any of the
following:
(i) dissolve or liquidate, in whole or in part,
consolidate or merge with or into any other entity or convey or
transfer its properties and assets substantially as an entirety to
any entity; or
(ii) institute proceedings to be adjudicated bankrupt
or insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against it or file a petition seeking, or
consent to, reorganization or relief under any applicable federal
or state law relating to bankruptcy, or consent to the appointment
of a receiver, liquidator, assignee, trustee, conservator (or
other similar official) of the Corporation or a substantial part
of its property, or make any assignment for the benefit of
creditors, or admit in writing its inability to pay its debt
generally as they become due, or make corporate notice in
furtherance of any such action.
3
<PAGE>
<PAGE>
FOURTEENTH. So long as any Notes are outstanding, the Board of
Directors of the Corporation at all times shall include at least one
Independent Director. So long as any Notes are outstanding, when voting on
matters specified in Article THIRTEEN, the Independent Director shall take
into account both the interests of the Corporation and the interests of the
creditors of the Corporation.
For purposes of this Article FOURTEEN, the following terms shall
have the meanings set forth below:
(i) An "Independent Director" shall be an individual
who: (A) is not and has not been employed by Foodmaker, Inc., a
Delaware corporation, or any of its subsidiaries or affiliates, or
any partner of either of the Borrowers, or any person or entity
controlling either of the Borrowers or any partner of either of
the Borrower, or any of their respective subsidiaries or
affiliates (collectively, the "Subject Persons"), as a director,
officer or employee within the three years immediately prior to
such individual's appointment as an Independent Director; (B) is
not (and is not affiliated with a company or a firm that is) and
has not been a significant advisor or consultant to any of the
Subject Persons within the three years immediately prior to such
individual's appointment as an Independent Director; (C) does not
have and has not had personal services contract(s) with any of the
Subject Persons within the three years immediately prior to such
individual's appointment as an Independent Director; (D) is not
affiliated with a tax-exempt entity that receives significant
contributions from any of the Subject Persons within the three
years immediately prior to such individual's appointment as an
Independent Director; (E) is not the beneficial owner (nor an
officer or director of any such beneficial owner) at the time of
such individual's appointment as an Independent Director, or at
any time thereafter while serving as an Independent Director of
equity interests in any of the Subject Persons the value of which
constitute more than 5% of such individual's net worth; and (F) is
not a spouse, parent, sibling or child of any persons described by
(A) through (F);
(ii) An "affiliate" of a person, or a person
"affiliated with," a specified person, shall mean a person that
directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the
specified person.
(iii) The term "control" (including the terms
"controlling," "controlled by" and "under common control with")
shall mean the possession, direct or indirect, of the
4<PAGE>
<PAGE>
power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting
securities by contract, or otherwise; provided, however, that a
person shall not be deemed to control another person solely
because he or she is a director of such other person.
(iv) The term "person" shall mean any individual,
partnership, firm, corporation, association, trust, unincorporated
organization or other entity, as well as any syndicate or group
deemed to be a person pursuant to Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended.
(v) A "subsidiary" of a Person shall mean any
corporation the majority of the vesting stock of which is owned,
directly or indirectly through one or more other subsidiaries, by
such Person.
(vi) A person shall be deemed to be, or to be
affiliated with, a company or firm that is a "significant advisor
or consultant" to a Subject Person: if he, she or it, as the case
may be, received or would receive fees or similar compensation
from such Subject Person in excess of the lesser of (A) 3% of the
consolidated gross revenues which Foodmaker, Inc. and its
subsidiaries received during Foodmaker, Inc.'s last fiscal year;
(B) 5% of the gross revenues of the person during the last
calendar year, if such person is a self-employed individual and
(C) 3% of the consolidated gross revenues by such company or firm
for the sale of its products and services during its last fiscal
year, if the person is a company or firm; provided, however, that
director's fees and expense reimbursements shall not be included
in the gross revenues of an individual for purposes of this
determination.
(vii) A person shall be deemed to have "significant
personal services contract(s) with a Subject Person" if the fees
and other compensation received by the person pursuant to personal
services contract(s) with such Subject Person exceeded or would
exceed 5% of his or her gross revenues during the last calendar
year.
(viii) A tax-exempt entity shall be deemed to receive
"significant contributions from a Subject Person": if such
tax-exempt entity received during its last fiscal year, or expects
to receive during its current fiscal year, contribution from such
Subject Person in excess of the lesser of (A) 3% of the
consolidated gross revenues of Foodmaker, Inc. and its
subsidiaries during such fiscal year and (B) 5% of the
contributions received by the tax-exempt entity during such fiscal
year.
5<PAGE>
<PAGE>
The undersigned incorporator hereby acknowledges that the foregoing
Certificate of Incorporation is his free act and deed and that the facts stated
therein are true.
/S/ JONATHAN BELL
------------------------------
Jonathan Bell, Incorporator
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
On the ___ day of December, 1993, before me personally came
Jonathan Bell, known to me to be the individual described in and who
acknowledged the foregoing instrument and swore and acknowledged that he
executed the same as his free act and deed.
/S/ LAURIE C. WILKINS
------------------------------
Notary Public
My Commission Expires:________
6
<PAGE>
EXHIBIT 3.2
B Y - L A W S
of
FM 1993A Corp.
Article I
OFFICES
Section 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other
places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the corporation
may require.
Article II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Wilmington at such place as may be
fixed from time to time by the board of directors, or at such other place
either within or without the State of Delaware as shall be designated from
time to time by the board of directors and stated in the notice of the
meeting.Meetings of stockholders for any other purpose may be held at such
time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the
year 1994 shall be held on the first Monday in March, if not a legal
holiday, and if a legal holiday, then on the next secular day following, at
10:00 A.M., or at such other date and time as shall be designated from time
to time by the board of directors and stated in the notice of the meeting, at
which they shall elect by a plurality vote a board of directors, and transact
such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than fifty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be inspected
by any stockholder who is present.
<PAGE>
<PAGE>
Section 5. Special meetings of the stockholders, for any purpose
or purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board
of directors, or at the request in writing of stockholders owning a majority
in amount of the entire capital stock of the corporation issued and outstand-
ing and entitled to vote. Such request shall state the purpose or purposes
of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten nor more than fifty days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented.
At such adjourned meeting at which a quorum shall be present or represented
any business may be transacted which might have been transacted at the
meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voted power present in person
or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provisions of the
statues or of the certificate of incorporation, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital
stock having voting power held by such stockholder, but no proxy shall be
voted on after three years from its date, unless the proxy provides for a
longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special
meeting of stockholders of the corporation, or any action which may be taken
2<PAGE>
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at any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented
in writing.
Article III
DIRECTORS
Section 1. The number of directors which shall constitute the
whole board shall not be less than one (1) nor more than five (5). The
initial board shall consist of two (2) directors. Thereafter, within the
limits above specified, the number of directors shall be determined by
resolution of the board of directors or by the stockholders at the annual
meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is elected and
qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director, and the directors so chosen shall hold office until
the next annual election and until their successors are duly elected and
shall qualify, unless sooner displaced. If there are no directors in office,
then an election of directors may be held in the manner provided by statute.
If, at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole
board (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten per cent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to
be held to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by its
board of directors which may exercise all such powers of the corporation and do
all such lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by the stockholders.
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by the vote
of the stockholders at the annual meeting and no notice of such meeting shall
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be necessary to the newly elected directors in order legally to constitute
the meeting, provided a quorum shall be present. In the event of the failure
of the stockholders to fix the time or place of such first meeting of the
newly elected board of directors, or in the event such meeting is not held at
the time and place so fixed by the stockholders, the meeting may be held at
such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 6. Regular meeting of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on two days' notice to each director, either personally or by mail
or by telegram. Special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors.
Section 8. At all meetings of the board a majority of the number
of directors fixed pursuant to Section 2 of this Article shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided
by statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken
at any meeting of the board of directors or of any committee thereof may be
taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board or committee.
Section 10. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee
to consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the board of directors, shall have and
may exercise all the powers and authority of the board of directors in the
management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to
amending the certificate of incorporation, adopting an agreement of merger of
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consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of the incorporation expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the board of directors.
Section 11. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
Section 12. Unless otherwise restricted by the certificate of
incorporation, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any,
of attendance at each meeting of the board of directors and may be paid a
fixed sum for attendance at each meeting of the board of directors or a
stated salary as director. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Article IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of
the certificate of incorporation or of these by-laws, notice is required to
be given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed
to such director or stockholder, at his address as it appears on the records
of the corporation, with postage thereon prepaid, and such notice shall be
deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
Article V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a secretary and a treasurer.
The board of directors may also choose one or more vice-presidents, and one
or more assistant secretaries and assistant treasurers. Any number of
officers may be held by the same person, unless the certificate of
incorporation or these by-laws otherwise provide.
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Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a chairman of the board, a
president, one or more vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers
and agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
Section 6. The chairman of the board shall be the principal
executive officer of the corporation and shall supervise and conduct the
business and affairs of the corporation. The other officers of the
corporation shall have the powers and shall perform the duties customarily
appurtenant to their respective offices, and shall have such further powers
and shall perform such further duties as shall be from time to time assigned
to them by the board of directors.
Article VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be
entitled to have certificate, signed by, or in the name of the corporation
by, the chairman of the board, or the president vice- president and the
treasurer or an assistant treasurer, or the secretary or an assistant
secretary of the corporation, certifying the number of shares owned by him in
the corporation.
Section 2. Where a certificate is countersigned (1) by a transfer
agent other than the corporation or its employee, or, (2) by a registrar
other than the corporation or its employee, any other signature on the
certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corpora with the
same effect as if he were such officer, transfer agent or registrar at the
date of issue.
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation allegated to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
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directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such
manner as it shall require and/or to give the corporation a bond in such sum
as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4. Upon surrender to the corporation or the transfer agent
of the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls
and assessments a person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
Article VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificates of incorporation, if any, may
be declared by the board of directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of
the capital stock, subject to the provision of the certificate of
incorporation.
Section 2. Before payment of any dividend, there may be set aside
out of any funds of the corporation available for dividends such sum or sums
as the directors from time to time, in their absolute discretion, think
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proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation,
or for such other purpose as the directors shall think conducive to the
interest of the corporation, and the directors may modify or abolish any such
reserve in the manner in which it was created.
Section 3. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person
or persons as the board of directors may from time to time designate.
Section 4. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
Section 5. The corporate seal shall be in the form of a circle
with the name of the corporation, the words "Incorporated Delaware" and the
year of its incorporation inscribed therein.The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
Article VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or
new by-laws may be adopted by the stockholders or by the board of directors,
when such power is conferred upon the board of directors by the certificate
of incorporation, at any regular meeting of the stockholders or of the board
of directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting.
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EXHIBIT 4.1
INDENTURE
Dated as of December 15, 1993
by and between
FM 1993A CORP.,
the Issuer,
and
STATE STREET BANK AND TRUST COMPANY,
the Trustee
$70,000,000
9.75% SENIOR SECURED NOTES DUE NOVEMBER 1, 2003
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TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS ........................ 3
Section 1.1. Definitions ........................ 3
ARTICLE TWO THE NOTES .......................... 22
Section 2.1. Form Generally ..................... 22
Section 2.2. Forms of Notes and Certificates of
Authentication ..................... 23
Section 2.3. Authorized Amount; Stated Maturity;
Note Interest Rate ................. 23
Section 2.4. Denominations ...................... 24
Section 2.5. Execution, Authentication, Delivery
and Dating ......................... 24
Section 2.6. Exchange and Registration of
Transfer of Notes; Restrictions on
Transfer; Depositary ............... 25
Section 2.7. Mutilated, Destroyed, Lost or Stolen
Notes .............................. 31
Section 2.8. Payment of Principal and Interest;
Principal and Interest Rights
Preserved .......................... 32
Section 2.9. Prepayment ......................... 34
Section 2.10. Persons Deemed Owners .............. 34
Section 2.11. Cancellation ....................... 34
Section 2.12. Non-recourse ....................... 35
ARTICLE THREE DELIVERY OF NOTES AND DISTRIBUTION
OF PROCEEDS ........................ 36
Section 3.1. General Provisions ................ 36
Section 3.2. Collateral Support ................. 37
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Section 3.3. [Intentionally Omitted] ............ 41
Section 3.4. Distribution of Proceeds of Notes .. 43
ARTICLE FOUR SATISFACTION AND DISCHARGE ......... 45
Section 4.1. Satisfaction and Discharge of
Indenture .......................... 45
Section 4.2. Application of Trust Money ......... 46
ARTICLE FIVE EVENTS OF DEFAULT; REMEDIES ........ 46
Section 5.1. Events of Default .................. 46
Section 5.2. Acceleration of Maturity,
Foreclosure Events, Rescission and
Annulment .......................... 48
Section 5.3. Collection of Indebtedness and Suits
for Enforcement by Trustee ......... 49
Section 5.4. Remedies ........................... 50
Section 5.5. Optional Preservation of Trust
Estate ............................. 52
Section 5.6. Trustee May File Proofs of Claim ... 53
Section 5.7. Trustee May Enforce Claims Without
Possession of Notes ................ 54
Section 5.8. Application of Money Collected ..... 55
Section 5.9. Limitation on Suits ................ 56
Section 5.10. Rights of Noteholders to Receive
Principal, Premium and Interest .... 57
Section 5.11. Restoration of Rights and Remedies.. 58
Section 5.12. Rights and Remedies Cumulative ..... 58
Section 5.13. Delay or Omission Not Waiver ....... 58
Section 5.14. Control by Noteholders ............. 59
Section 5.15. Waiver of Past Defaults ............ 60
Section 5.16. Undertaking for Costs .............. 60
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Section 5.17. Waiver of Stay, Extension or Usury
Laws ............................... 61
Section 5.18. Sale of Trust Estate ............... 61
Section 5.19. Action on Notes .................... 63
ARTICLE SIX THE TRUSTEE ........................ 63
Section 6.1. Certain Duties and Responsibilities. 63
Section 6.2. Notice of Default .................. 65
Section 6.3. Certain Rights of Trustee .......... 65
Section 6.4. Not Responsible for Recitals or
Issuance of Notes .................. 67
Section 6.5. May Not Hold Notes ................. 68
Section 6.6. Money Held in Trust ................ 68
Section 6.7. Compensation and Reimbursement ..... 68
Section 6.8. Corporate Trustee Required;
Eligibility ........................ 69
Section 6.9. Resignation and Removal; Appointment
of Successor ....................... 70
Section 6.10. Acceptance of Appointment by
Successor .......................... 72
Section 6.11. Merger, Conversion, Consolidation or
Succession to Business of Trustee .. 72
Section 6.12. Co-Trustees and Separate Trustee ... 73
Section 6.13. Representations and Warranties of
Trustee ............................ 74
ARTICLE SEVEN COVENANTS .......................... 76
Section 7.1. Payment of Principal and Interest... 76
Section 7.2. Appointment of Agent ............... 76
Section 7.3. Money for Note Payments ............ 76
Section 7.4. Existence of Issuer ................ 76
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Section 7.5. Protection of Trust Estate ......... 77
Section 7.6. Opinions as to Trust Estate ........ 78
Section 7.7. Performance of Obligations ......... 79
Section 7.8. Certain Negative Covenants ......... 79
Section 7.9. Statement as to Compliance ......... 81
Section 7.10. Issuer May Not Consolidate, Etc. ... 82
Section 7.11. No Other Business .................. 82
Section 7.12. No Purchase of Notes ............... 82
Section 7.13. Investment Company Act ............. 82
Section 7.14. Notice of Event of Default ......... 82
Section 7.15. Use of Proceeds .................... 82
Section 7.16. Books and Records .................. 83
Section 7.17. Consents, Waivers and Modifications
of Other Agreements ................ 83
Section 7.18. Grant of Trust Estate .............. 83
Section 7.19. Rent to be Paid Over to Trustee .... 84
Section 7.20. Fiscal Year End .................... 84
Section 7.21. Inspection ......................... 84
Section 7.22. Access to Accountants .............. 85
Section 7.23. Provision of Rule 144A Information.. 85
Section 7.24. Maintenance of Office .............. 86
Section 7.25. Copies of Notices .................. 86
Section 7.26. Performance By Foodmaker ........... 86
ARTICLE EIGHT SUPPLEMENTAL INDENTURES ............ 86
Section 8.1. Supplemental Indentures ............ 86
Section 8.2. Execution of Supplemental Indentures 89
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Section 8.3. Effect of Supplemental Indentures .. 89
ARTICLE NINE ACCOUNTS, ACCOUNTING AND RELEASES .. 89
Section 9.1. Collection of Money ................ 89
Section 9.2. Collection Account and Sinking Fund
Account ............................ 90
Section 9.3. Accounting ......................... 94
Section 9.4. Construction Account ............... 97
Section 9.5. Releases from the Construction
Account ............................ 98
Section 9.6. Establishment of and Releases from
Closing Costs Account and
Administrative Expenses Account .... 103
Section 9.7. Releases ........................... 105
Section 9.8. Reports ............................ 105
Section 9.9. Form of Reports .................... 106
ARTICLE TEN APPLICATION OF MONIES .............. 106
Section 10.1. Disbursements of Monies from the
Collection Account ................. 106
Section 10.2. Trust Account ...................... 108
ARTICLE ELEVEN ADMINISTRATION AND SERVICING OF CRC
NOTES AND MORTGAGES ................ 108
Section 11.1. Duties and Responsibilities as to
Servicing .......................... 108
Section 11.2. Delegation of Duties; Sub-Servicing 108
Section 11.3. Fidelity Note and Errors and
Omissions Insurance Policy ......... 109
Section 11.4. Files and Records .................. 110
Section 11.5. Trustee Receipt of Insurance and
Condemnation Proceeds; Establishment
of Proceeds Account ................ 110
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Section 11.6. Excess Insurance and Condemnation
Proceeds ........................... 111
Section 11.7. Payment of Taxes and Other Charges.. 111
Section 11.8. Maintenance of Casualty Insurance .. 111
Section 11.9. Insurance Proceeds ................. 111
Section 11.10. Enforcement of CRC Leases .......... 112
Section 11.11. Protection of Security ............. 112
Section 11.12. Notices of Default ................. 113
Section 11.13. Intentionally Omitted .............. 113
Section 11.14. Modifications, Etc ................. 113
Section 11.15. Realization Upon Defaulted Mortgage
Loans .............................. 114
Section 11.16. Title to REO Property; REO Account . 116
Section 11.17. Management of REO Properties ....... 117
Section 11.18 Property Substitution .............. 118
Section 11.19. Early Termination Election ......... 121
Section 11.20. Limitation on Liability of the
Trustee Under Article Eleven ....... 122
ARTICLE TWELVE MISCELLANEOUS ...................... 122
Section 12.1. Right to List of Holders ........... 122
Section 12.2. Form of Documents Delivered to
Trustee ............................ 123
Section 12.3. Acts of Noteholders ................ 123
Section 12.4. Notices, Etc., to Trustee and Issuer 124
Section 12.5. Notices to Noteholders; Waiver ..... 124
Section 12.6. Effect of Headings and Table of
Contents ........................... 125
Section 12.7. Successors and Assigns ............. 125
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Section 12.8. Separability ....................... 125
Section 12.9. Benefits of Indenture .............. 125
Section 12.10. Legal Holidays ..................... 126
Section 12.11. Limitation on Interest ............. 126
Section 12.12. Governing Law ...................... 126
Section 12.13. Counterparts ....................... 126
Section 12.14. Indulgences Not Waivers ............ 127
Section 12.15. Recordation of Agreement ........... 127
Section 12.16. Attorneys' Fees .................... 127
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INDENTURE
Indenture, dated as of December 15, 1993, between FM
1993A CORP., a Delaware corporation (herein, together with its permitted
successors and assigns, called the "Issuer"), and STATE STREET BANK AND TRUST
COMPANY, as trustee (herein, together with its permitted successors in the
trusts hereunder, called the "Trustee").
PRELIMINARY STATEMENT: The Issuer and the Trustee are
each duly authorized to execute and deliver this Indenture. All covenants
and agreements made by the Issuer herein are for the benefit and security of
the Noteholders. The Issuer is entering into this Indenture, and the Trustee
is accepting the trusts created hereby, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged. All things
necessary to make this Indenture a valid agreement of the Issuer and the
Trustee in accordance with its terms have been done. All things necessary to
make the Notes, when executed by the Issuer and authenticated, issued, and
delivered under this Indenture, the valid, binding, and enforceable
obligations of the Issuer have been done. All capitalized terms used but not
otherwise defined shall have the meanings set forth in Article One of this
Indenture.
GRANTING CLAUSE: The Issuer hereby Grants to the
Trustee, for the benefit and security of the Holders of the Notes, all of the
Issuer's right, title and interest now owned or hereafter acquired in, to and
under all of (but none of its obligations with respect to any of) its assets,
whether now existing or hereafter coming into existence, including, without
limitation, (a) the CRC Notes, the CRC-I Lease Assignment, the CRC-II Lease
Assignment, the CRC-I Mortgages, the CRC-II Mortgages, the Foodmaker
Mortgages, the Deposit Accounts Security Agreements, and the Financing
Statements, and all other Mortgage Note Documents, including, without
limitation, any collateral that may be acquired by foreclosure or deed in
lieu of foreclosure and all proceeds of or to which the Issuer is entitled
under any of the foregoing, including without limitation, Insurance and
Condemnation Proceeds, Liquidation Proceeds and all income from REO
Properties; (b) all funds from time to time held in the Collection Account,
including Reinvestment Income (if any) thereon; (c) all funds from time to
time held in the Construction Account, including Reinvestment Income thereon;
(d) all funds from time to time held in the Proceeds Account, including
Reinvestment Income (if any) thereon; (e) all funds from time to time held in
any REO Account, including Reinvestment Income thereon; (f) all
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funds from time to time held in the Administrative Expenses Account,
including Reinvestment Income (if any) thereon; (g) all funds from time to
time held in the Closing Costs Account, including Reinvestment Income (if
any) thereon; (h) all funds from time to time held in the Sinking Fund
Account, including Reinvestment Income thereon; (i) all funds from time to
time held in the Equity Collection Account, including Reinvestment Income
thereon; (j) all funds from time to time held in the Additional Unit
Acquisition Account, including Reinvestment Income thereon; (k) the Insurance
Policies; (l) other contracts or agreements of the Issuer; (m) all other
property, real or personal, tangible or intangible; and (n) all proceeds of
any of the foregoing of every kind and nature whatsoever, including without
limitation, proceeds of proceeds, and the conversion, voluntary or
involuntary, of any of the foregoing into cash or other property (including,
but not limited to, any Eligible Investments) (collectively, the "Trust
Estate"). The Trustee acknowledges such Grant, accepts the trusts hereunder
and the Trust Estate for the benefit of and as agent for the Holders of the
Notes in accordance with the provisions hereof.
HABENDUM CLAUSE: To have and to hold in trust the Trust
Estate, for the equal and ratable benefit and security of all present and
future Holders of the Notes issued and to be issued under this Indenture,
without preference, priority, or distinction as to lien or otherwise (except
as herein expressly provided), of any one Note over any other Note upon the
terms and subject to the conditions hereinafter set forth.
ISSUER'S CAPACITY: In executing the Notes and this
Indenture, the Issuer will be acting both as principal and as agent for each
Borrower to the extent of such Borrower's obligations under the Notes. As
used in this Indenture, references to "the Issuer" shall be interpreted to
include the Issuer in its capacity as principal and the Issuer in its
capacity as agent for each Borrower pursuant to the Agency Agreement with
such Borrower and with respect to such Borrower's obligations under this
Indenture.
LEASE PAYMENTS: The Lessee has been directed to make all
payments of Rent and all other amounts which are required to be paid to or
deposited with the Borrowers pursuant to the CRC Leases directly to the
Trustee at such address or addresses as the Trustee shall from time to time
specify, for application as provided in this Indenture. Further, each
Borrower agrees that promptly on receipt thereof, such Borrower will transfer
to the Trustee any and all moneys from time to time received by such Borrower
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constituting part, or intended to constitute part, of the Trust Estate,
whether or not expressly referred to in the immediately preceding sentence,
for application pursuant to this Indenture, except for any amounts released
from the lien of this Indenture and, directly or indirectly, to such Borrower
by the Trustee under the terms of this Indenture.
ARTICLE ONE
DEFINITIONS
Section 1.1 Definitions.
Except as otherwise specified herein or as the context
may otherwise require, the following terms have the respective meanings set
forth below for all purposes of this Indenture, and the definitions of such
terms are equally applicable both to the singular and plural forms of such
terms and to the masculine, feminine, and neuter genders of such terms. Each
definition with respect to an agreement, instrument, or other document shall
be deemed to include such agreement, instrument, or other document as it may
be amended, modified, or supplemented in accordance with its terms and, if
applicable, in accordance with the terms hereof.
"Accountants' Certificate": A letter of a firm of
Independent certified public accountants of nationally recognized reputation
appointed by the Issuer which may be a firm of Independent accountants that
audits the financial statements of the Issuer or any of its Affiliates.
"Act" or "Acts of Noteholders": The meanings specified
in Section 12.3.
"Additional Unit Acquisition Account": The trust account
established and maintained by the Trustee as a subaccount of the Construction
Account pursuant to Section 9.4.
"Administrative Expenses": Without duplication, the sum
of: (a) amounts due the Trustee under Section 6.7; (b) expenses incurred by
the Trustee relating to the administration and maintenance of the Trust
Estate (including, without limitation, expenses pursuant to Article Eleven);
(c) any fees and expenses, other than fees and expenses paid in connection
with the issuance of the Notes, due to the respective counsel of the
Noteholders and the Trustee; (d) amounts due to Noteholders pursuant to
Section
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5.14(c) and, with respect to any Issuer or Borrower solicitation, Section
8.1; and (e) any fees and expenses payable to the Rating Agencies other than
in connection with the issuance of the Notes.
"Administrative Expenses Account": The trust account
established and maintained by the Trustee pursuant to Section 9.6(b).
"Affiliate" of any specified Person: (a) Any other
Person controlling or controlled by or under common control with such
specified Person and (b) any partner of such Person if such Person is a
partnership, or any shareholder of such Person if such Person is a
corporation. For the purposes of this definition, "control," when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract, or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agency Agreement": Collectively, the agreements, dated
as of the date hereof, between CRC-I and the Issuer and CRC-II and the
Issuer, as the case may be, concerning the Issuer's issuance and sale of the
Notes as agent for such Borrower.
"Aggregate Outstanding Amount": The aggregate principal
amount of all the Notes outstanding at the date of determination.
"Authorized Officer": With respect to the Issuer, any
Person whose name and specimen signature appears on a list of Authorized
Officers furnished to the Trustee as certified by the Secretary of the
Issuer. With respect to the Trustee or any other bank or trust company
acting as trustee of an express trust or as custodian, a Responsible Officer.
With respect to the Lessee, any Person whose name and specimen signature
appears on a list of Authorized Officers furnished to the Trustee as
certified by the Secretary of the Lessee.
"Bankruptcy Code": The Federal Bankruptcy Code, Title 11
of the United States Code, as amended, or any successor statute(s), or any
other Federal or state bankruptcy, insolvency or similar law, now or
hereafter in effect in the United States.
"Borrower": CRC-I or CRC-II, as the case may be.
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"Borrowers": CRC-I and CRC-II, collectively and
severally.
"Business Day": A day other than a Saturday, Sunday, or
a day on which banks in New York, New York or the city where the Corporate
Trust Office of the Trustee is located, are authorized or obligated to close
their regular banking business.
"Closing Costs": All fees, expenses and costs of the
Lessor, the Issuer, the Trustee, the Noteholders and Jefferies & Company,
Inc. (including, without limitation, attorneys' fees and expenses of outside
counsel, including, without limitation, special local counsel to Jefferies &
Company, Inc. and of one special counsel to the Noteholders and the fees of
Standard & Poor's and Moody's for issuing the rating agency letters
contemplated by this Indenture), and any investment banking, brokerage and
placement fees resulting from any contract or agreement with the Lessors or
Lessee (including, without limitation, those payable to Jefferies & Company,
Inc.), incident to the preparation and negotiation of this Indenture, the CRC
Leases, the Mortgages, the other Mortgage Note Documents and the Notes, and
all fees, expenses, taxes and costs incurred in connection with the
execution, delivery, filing, recording or rerecording of any notice or
memorandum of the CRC Leases, the Mortgages, and any other document or
instrument (including financing statements) required to be filed, recorded or
rerecorded in connection with the leasing and mortgaging of any Property,
including, without limitation, title insurance premiums and escrow fees.
"Closing Costs Account": The trust account established
and maintained by the Trustee pursuant to Section 9.6(a).
"Closing Date": The date of the initial issuance of the
Notes.
"Code": The Internal Revenue Code of 1986, as amended,
or any successor statute(s).
"Collection Account": The trust account established and
maintained by the Trustee pursuant to Section 9.2.
"Construction Account": The trust account established
and maintained by the Trustee pursuant to Section 9.4, including, without
limitation, the Additional Unit Acquisition Account as a subaccount thereof
as provided in Section 9.4.
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"Corporate Trust Office": The office of the Trustee at
which its corporate trust business with respect to this Indenture shall be
administered, which office at the date of execution of this Indenture is
located at 225 Franklin Street, Boston, Massachusetts 02110, or such other
address as the Trustee may designate from time to time by written notice to
the Noteholders and the Issuer or the principal corporate trust office of any
successor Trustee.
"Construction Units": The 16 Properties in which CRC-II
will hold as of the Closing Date, and the 22 Potential Construction Units in
which CRC-II will in the future hold, an estate for years, consisting of the
land and improvements and other related property constituting approximately
38 Jack In The Box restaurants constructed or to be constructed by Foodmaker
and which are listed on the attached Schedule A-2, and Schedule B in the case
of Potential Construction Units, or in the case of any permitted Substitution
of any thereof, any Substitute Unit therefor the Mortgages of which are
listed on the updated schedule to the CRC Notes as provided pursuant to
Section 11.18(b)(xiv).
"CRC Lease" or "CRC Leases": The CRC-I Lease or the
CRC-II Lease, as the case may be, or both of such leases.
"CRC Lease Assignments": The CRC-I Lease Assignment and
the CRC-II Lease Assignment, collectively.
"CRC Lease Event of Default": An "Event of Default"
under and as defined in the CRC-I Lease or the CRC-II Lease.
"CRC Mortgage" or "CRC Mortgages": Any of the CRC-I
Mortgages or the CRC-II Mortgages or all of such mortgages, collectively.
"CRC Notes": The CRC-I Note and the CRC-II Note,
collectively.
"CRC-I": CRC-I Limited Partnership, a Massachusetts
limited partnership.
"CRC-I Guaranty": The Guaranty, dated as of the date
hereof, by CRC-I as guarantor of all amounts due under the Notes.
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"CRC-I Lease": The Master Lease, dated as of the date
hereof, between CRC-I, as lessor, and Foodmaker, as lessee, with respect to
the Existing Assets.
"CRC-I Lease Assignment": Each Assignment of Lessor's
Interest In Leases effecting an assignment of the CRC-I Lease by CRC-I, as
assignor, to the Issuer, as assignee, and consented to by the Lessee.
"CRC-I Mortgage": With respect to a Property included in
the Existing Assets, the mortgage, deed of trust, deed to secure debt or
other security document now or hereafter executed by CRC-I creating a first
priority, perfected lien on and security interest in, among other things,
CRC-I's estate for years in such Property, in favor of the Issuer as
collateral for the CRC Notes, with a collateral assignment thereof by the
Issuer to the Trustee as security for the payment of the Notes.
"CRC-I Note": A promissory note in the original
principal amount of $30,172,952 issued by CRC-I to the Issuer on the Closing
Date pursuant to the CRC-I Note Purchase Agreement.
"CRC-I Note Purchase Price": The meaning specified in
Section 3.4(a).
"CRC-I Note Purchase Agreement": The Note Purchase
Agreement, dated as of the date hereof, between CRC-I and the Issuer.
"CRC-I Rent": All rent and other amounts payable by the
Lessee under the CRC-I Lease, including, without limitation, all Basic Rent,
Special Rent, Special Sinker Rent, Additional Rent, and any Purchase Price
(as all such terms are defined in the CRC-I Lease) payable by the Lessee
thereunder.
"CRC-II": CRC-II Limited Partnership, a Massachusetts
limited partnership.
"CRC-II Guaranty": The Guaranty, dated as of the date
hereof, by CRC-II as guarantor of all amounts due under the Notes.
"CRC-II Lease": The Master Lease, dated as of the date
hereof, between CRC-II, as lessor, and Foodmaker, as lessee, with respect to
the Construction Units.
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"CRC-II Lease Assignment": Each Assignment of Lessor's
Interest In Leases effecting an assignment of the CRC-II Lease by CRC-II, as
assignor, to the Issuer, as assignee, and consented to by the Lessee.
"CRC-II Mortgage": With respect to a Property included in
the Construction Units, the mortgage, deed of trust, deed to secure debt or
other security document now or hereafter executed by CRC-II creating a first
priority, perfected lien on and security interest in, among other things,
CRC-II's estate for years in such Property, in favor of the Issuer as
collateral for the CRC Notes, with a collateral assignment thereof by the
Issuer to the Indenture Trustee as security for the payment of the Notes.
"CRC-II Note": A promissory note in the original
principal amount of $39,827,048 issued by CRC-II to the Issuer on the Closing
Date pursuant to the CRC-II Note Purchase Agreement.
"CRC-II Note Purchase Price": The meaning specified in
Section 3.4(b).
"CRC-II Note Purchase Agreement": The Note Purchase
Agreement, dated as of the date hereof, between CRC-II and the Issuer.
"CRC-II Rent": All rent and other amounts payable by the
Lessee to CRC-II under the CRC-II Lease, including, without limitation, all
Basic Rent, Special Rent, Special Sinker Rent, Additional Rent, and any
Purchase Price (as all such terms are defined in the CRC-II Lease) payable by
the Lessee thereunder.
"Default": Any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Deposit Accounts Security Agreements": The Deposit
Accounts Security Agreement dated of even date herewith by and between each
of CRC-I and CRC-II (as the case may be) and the Issuer pertaining to funds
deposited in the Closing Costs Account, the Administrative Expenses Account,
the Collection Account, the Proceeds Account, the Sinking Fund Account, the
Equity Collection Account and the Construction Account.
"Depositary": With respect to the Notes issued in global
form, the Person specified in Section 2.6(f) as the "Depositary," until any
successor shall have been appointed and become such pursuant to the terms of
this Indenture, and thereafter, such successor.
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"Depository Institution": A depository institution as
that term is defined at 12 U.S.C. { 461(b)(1)(A), as amended.
"Destruction": The meaning specified in Article 12 of
the CRC Leases.
"Determination Date": The last day of an Interest
Accrual Period.
"Early Termination": The meaning specified in Article 37
of the CRC Leases.
"Early Termination Election": The meaning specified in
Article 37 of the CRC Leases.
"Eligible Investments": Any one or more of the following
obligations or securities:
(a) (i) negotiable certificates of deposit, having a
maturity of no more than 30 days, of any Depository Institution or
trust company (including the Trustee) incorporated under the laws of
the United States of America or any state thereof and subject to
supervision and examination by federal or state banking authorities
so long as the commercial paper or the short term unsecured debt
obligations of such Depository Institution or trust company (or, in
the case of the principal Depository Institution in a holding
company system, the commercial paper or short term unsecured debt
obligations of such holding company) at the time of such investment
or contractual commitment providing for such investment have a short
term credit rating by the Rating Agencies at least equivalent to AA
for Standard and Poor's and Aa for Moody's and (ii) any other
negotiable certificate of deposit having a maturity of not more than
30 days that is fully insured by the Federal Deposit Insurance
Corporation;
(b) and, with respect to funds held in the Sinking Fund
Account only, the following additional obligations or securities:
(i) direct obligations of, and obligations fully
guaranteed by, the United States of America, the Federal National
Mortgage Association and the Federal Home Loan Mortgage Corporation
or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the
United States of America, provided that
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obligations of, or obligations fully guaranteed by, the Federal
National Mortgage Association (excluding stripped mortgage-backed
securities that are valued greater than par on the portion of unpaid
principal), the Federal Home Loan Mortgage Corporation, or any such
agency or instrumentality shall be Eligible Investments only if, at
the time of investment they have a credit rating equal to or higher
than AA;
(ii) repurchase obligations pursuant to a written
agreement with respect to (A) any security described in clause (a)
above, or (B) any other security issued or guaranteed by an agency
or instrumentality of the United States of America and providing for
the transfer of such security to the Trustee or its agent as
contemplated by applicable law and regulation in such a way that the
Trustee will have a perfected security interest, in either case
entered into with a Depository Institution or trust company (acting
as principal) described in clause (a)(i) above;
(iii) securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws of
the United States of America or any state thereof that have a short
term credit rating by the Rating Agencies at least equivalent to AA
at the time of such investment or contractual commitment providing
for such investment; or
(iv) commercial paper issued by any Depository
Institution, or any corporation incorporated under the laws of the
United States of America or any state thereof, so long as the issuer
of such commercial paper has, at the time of such investment, a
credit rating by the Rating Agencies equivalent to at least AA;
provided that all Eligible Investments shall be held in the name of the
Trustee, in its capacity as such, and further provided that Eligible
Investments purchased with funds in any trust account established and
maintained by the Trustee hereunder shall be held until maturity (except as
otherwise provided in the Deposit Accounts Security Agreements) and shall
include only such obligations or securities as mature no later than the
Business Day prior to (x) the Year Nine Installment Payment Date in the case
of Eligible Investments purchased with funds in the Sinking Fund Account, or
(y) the next Payment Date in the case of Eligible Investments purchased with
funds in the Construction Account.
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"Eligible Unit" shall mean a Property, Potential
Construction Unit or Potential Additional Unit as to which Lessee has made an
Early Termination Election or has made the Year Nine Offer or exercised the
Year Nine Option under (and as such terms are defined in) the applicable CRC
Lease.
"Equity Collection Account": The trust account
established and maintained by the Trustee pursuant to Section 9.2(c).
"Event of Default": The meaning specified in Section
5.1.
"Exchange Act": The Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Existing Assets": The 29 Properties in which CRC-I will
hold as of the Closing Date, and the 9 Potential Additional Units in which
CRC-I will in the future hold, an estate for years, consisting of the land
and improvements and other related property constituting 38 existing Jack In
The Box restaurants set forth on the attached Schedules A-1 and A-3, or in
the case of any permitted Substitution thereof, any Substitute Unit(s)
therefor the Mortgages of which are listed on the updated schedule to the CRC
Notes as provided pursuant to Section 11.18(b)(xiv).
"Financing Statements": The financing statements
referred to in Sections 3.2(a)(viii) and (ix) and any financing statements
executed and delivered pursuant to Section 11.18(vii).
"Foodmaker": Foodmaker, Inc., a Delaware corporation.
"Foodmaker Mortgage" or "Foodmaker Mortgages": With
respect to each Property included in the Existing Assets and the Construction
Units, the mortgage, deed of trust, deed to secure debt or other security
document now or hereafter executed by Foodmaker creating a first priority,
perfected lien on and security interest in, among other things, Foodmaker's
reversionary interest in such Property, in favor of the Issuer as collateral
for the CRC Notes, with a collateral assignment thereof by the Issuer to the
Trustee as security for the payment of the Notes, or all of such mortgages,
collectively.
"General Partner": With respect to CRC-I, CRC-I Corp., a
Massachusetts corporation, and with respect to CRC-II, CRC-II Corp., a
Massachusetts corporation.
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"Grant": To grant, bargain, sell, warrant, alienate,
demise, release, convey, assign, transfer, mortgage, charge, pledge, create
and grant a security interest in and right of set-off against, deposit, set
over, and confirm. A Grant of the CRC Notes and the other Mortgage Note
Documents, or of any other instrument or agreement Granted hereunder, shall
include all rights, powers, privileges, remedies, options and other benefits
(but none of the obligations) of the Granting party thereunder, including
without limitation the immediate and continuing right to claim for, to
collect, to receive and to give any receipt for principal, premium, if any,
and interest payments in respect of the CRC Notes and all other monies and
other property payable thereunder or in respect thereof, to give and to
receive notices and other communications, to make waivers or other
agreements, to exercise all rights, powers, privileges, remedies, options and
other benefits, to bring Proceedings in the name of the Granting party or
otherwise, and generally to do and to receive anything that the Granting
party is or may be entitled to do or to receive thereunder or with respect
thereto.
"Highest Lawful Rate": The meaning specified in Section
12.11.
"Holder" or "Noteholder": The Person in whose name a
Note is now or hereafter registered in the Note Register.
"Ideal Sinking Fund Balance" shall mean, as of any
Payment Date, the amount which would be held on such date in the Sinking Fund
Account, assuming that such account were accruing interest at a rate of 6%
(on the basis of a 360-day year) compounded semi-annually on the last
Business Day of each June and December, commencing on the last Business Day
of June, 1994 and ending on the last Business Day of December, 2002, assuming
(i) on the last Business Day of each such June and December the Unit Sinking
Fund Payments due on such day under the Notes were deposited therein; and
(ii) an amount were withdrawn therefrom on the date of the Early Termination
of each Eligible Unit or, where applicable, upon the consummation of the
transactions resulting from the exercise of the Year Nine Option or the
making of the Year Nine Offer as to such Eligible Unit on the Year Nine
Installment Payment Date in an amount equal to 2 times the Unit Percentage
for such Eligible Unit multiplied by the lesser of (A) the balance in the
Sinking Fund Account on such date or (B) the amount which would have been the
Ideal Sinking Fund Balance on such date (after taking into account the
payments assumed to be made on such
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day in this definition of "Ideal Sinking Fund Balance" (inclusive of any Unit
Sinking Fund Payment attributable to such Eligible Unit which is due on such
day), but disregarding the withdrawal on account of such Eligible Unit under
this clause (ii) of this definition of "Ideal Sinking Fund Balance").
"Indenture": This instrument as originally executed and,
if from time to time supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, as so supplemented or amended. All references in this instrument to
designated "Articles," "Sections," "Subsections," and other subdivisions are
to the designated Articles, Sections, Subsections, and other subdivisions of
this instrument as originally executed. The words "herein," "hereof,"
"hereunder," and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section, Subsection, or other
subdivision.
"Independent": When used with respect to any specified
Person, means such a Person who (a) is in fact independent of the Issuer, the
Lessee, CRC-I, CRC-II and of any Affiliate of any thereof, (b) does not have
any direct financial interest or any material indirect financial interest in
the Issuer, the Lessee, CRC-I, CRC-II or in any Affiliate of any thereof, and
(c) is not connected with the Issuer, the Lessee, CRC-I, CRC-II or any
Affiliate of any thereof as an officer, employee, promoter, underwriter,
trustee, partner (whether general or limited), director, shareholder,
beneficiary or Person performing similar functions or having similar
ownership interests. Whenever it is provided herein that any Independent
Person's opinion or certificate shall be furnished to the Trustee, such
Person shall be appointed by Issuer Order and such opinion or certificate
shall state that the signer has read this definition and that the signer is
Independent within the meaning hereof. "Independent" when used with respect
to any accountant shall include an accountant who audits the books of any
Person referred to in clause (a) above if, in addition to satisfying the
criteria set forth above, the accountant is independent with respect to such
Person within the meaning of Rule 101 of the Code of Ethics of the American
Institute of Certified Public Accountants.
"Installment Payment Date": The first Business Day of
each January and July, from and including July, 1994 through and including
July, 2003.
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"Institutional Investor": Any of the following Persons
existing under the laws of the United States of America or any state thereof
or of the District of Columbia or of Canada or any province thereof: (a) any
bank, trust company, savings and loan association or national banking
association, acting for its own account or in a fiduciary capacity; (b) any
charitable foundation or other eleemosynary institution; (c) any insurance
company; (d) any investment company as defined in the Investment Company Act;
(e) any college or university; (f) any other governmental agency supervising
the investment of public funds; or (g) a "real estate investment trust" as
defined in Section 856 of the Code; provided that a Noteholder shall not be
an "Institutional Investor" for purposes of providing an unsecured agreement
to indemnify the Trustee pursuant to this Indenture, unless such Noteholder,
or, if held in nominee name, the beneficial owner of such Note, has a net
worth of not less than $100,000,000 and has so certified to the Trustee.
"Insurance and Condemnation Proceeds": Amounts paid to
any of the Lessee, any Borrower, the Issuer or the Trustee with respect to a
particular Property, CRC Note or REO Property pursuant to any Insurance
Policy, or as a result of a Destruction or pursuant to any fidelity note or
errors and omissions policy maintained by the Trustee.
"Insurance Policies": With respect to each Property,
those policies of insurance that shall be required to be maintained on or
with respect to such Property pursuant to the related Mortgages or CRC Lease,
including, without limitation, comprehensive general public liability
insurance, casualty insurance, or business interruption insurance, all Title
Policies, and any fidelity note or errors or omissions policy maintained by
the Trustee.
"Interest Accrual Period": As to any Note, with respect
to (i) the initial Interest Accrual Period, the period from the Closing Date
through and including June 30, 1994, (ii) thereafter, commencing July 1, 1994
and until June 30, 2003, the six (6) month period commencing on the first day
of each January or July to and including the last day of June or December,
respectively, and (iii) a final Interest Accrual Period from July 1, 2003
through, but not including November 1, 2003.
"Investment Company Act": The Investment Company Act of
1940, as amended.
"Issuer": FM 1993A Corp., a Delaware corporation, and
its permitted successors and assigns.
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"Issuer Order" or "Issuer Request": A written order or
request dated and signed in the name of the Issuer by an Authorized Officer
of the Issuer, and delivered to the Trustee.
"Lessee": Foodmaker, as lessee under the CRC-I Lease or
the CRC-II Lease or both, as applicable, and its permitted successors and
assigns.
"Liquidation Expenses": All amounts paid or incurred by
or on behalf of the Trustee (including the reasonable fees of its attorneys
and agents) in connection with the liquidation of any interest in any CRC
Note (or portion thereof) or any Property or REO Property or the preservation
of the Trustee's interest therein, including without limitation, the cost of
(a) preservation, restoration or protection of the Property or REO Property,
(b) any enforcement or judicial proceedings, including without limitation,
foreclosure, (c) accepting a deed in lieu of foreclosure, and (d) the
management, leasing, sale or other liquidation of the Property or REO
Property.
"Liquidation Proceeds": All funds received by the
Trustee in connection with the liquidation of any part of the Trust Estate,
including, without limitation, upon sale by deed in lieu of foreclosure, the
receipt of foreclosure proceeds from a judgment, writ of attachment or order
levied against the applicable Borrower and/or the Lessee or its assets, or
the receipt of proceeds from the sale of any Property or REO Property.
"Majority Noteholders": The Holders of more than 50% of
the Aggregate Outstanding Amount of the Notes.
"Maturity": With respect to any Note, the date on which
the entire unpaid principal of and interest on such Note becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration pursuant to the terms of Section 5.2 or otherwise
pursuant to the terms of this Indenture.
"Maximum Construction Unit Allowance": The aggregate
sums to be deposited in the Construction Account on the Closing Date pursuant
to Section 3.4.
"Moody's": Moody's Investors Service, Inc., and its
successors in interest.
"Mortgage Event of Default": Any Event of Default as
defined under any Mortgage.
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"Mortgage Note Documents": The meaning specified in the
Mortgages.
"Mortgages": The CRC Mortgages and the Foodmaker
Mortgages, collectively and severally.
"Net Liquidation Proceeds": Liquidation Proceeds net of
all Liquidation Expenses.
"Note Interest Rate": The annual rate at which interest
accrues on the Notes, as specified in Section 2.3 and in the terms of the
Notes.
"Note Purchase Agreement": The Note Purchase Agreement
between the Issuer and each Noteholder.
"Note Register" and "Note Registrar": The respective
meanings specified in Section 2.6.
"Noteholder" or "Holder": The Person in whose name a
Note is now or hereafter registered in the Note Register.
"Noteholders' Counsel": Brown & Wood, or other counsel
appointed by Majority Noteholders.
"Notes": The Issuer's 9.75% Senior Secured Notes, Due
November 1, 2003, which are authorized by, and executed, authenticated, and
delivered under, this Indenture.
"Officer's Certificate": A certificate signed on behalf
of any Person by an Authorized Officer of such Person.
"Opinion of Independent Counsel": A written opinion, in
form and substance reasonably satisfactory to the Trustee, addressed to the
Trustee and the Noteholders, of a law firm which shall be Independent and
which shall be reasonably satisfactory to the Trustee.
"Outstanding": With respect to the Notes, as of the date
of determination, all Notes theretofore authenticated and delivered under
this Indenture except:
(a) Notes theretofore cancelled by the Note Registrar;
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(b) Notes or portions thereof for whose payment money in
the necessary amount has been theretofore irrevocably deposited with
the Trustee in trust for the Holders of such Notes pursuant to the
provisions of this Indenture;
(c) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture;
and
(d) Notes alleged to have been mutilated, destroyed, lost,
or stolen for which replacement Notes have been issued as provided
in Section 2.7;
provided that, in determining whether the Holders of the requisite Aggregate
Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder, any Notes
owned by or pledged to the Issuer, any Borrower, any limited partner of any
Borrower, or of any general partner of any Borrower or any Affiliate of any
thereof shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, or waiver,
only Notes that the Trustee knows to be so owned or so pledged shall be
disregarded. Notes owned by a Person described in the immediately preceding
sentence that have been pledged in good faith may be regarded as Outstanding
if the pledgee certifies to the Trustee the pledgee's right so to act with
respect to such Notes and that the pledgee is not any of the Persons
described in the immediately preceding sentence.
"Payment Date": With respect to each semi-annual
installment or deposit payable under the Notes, each Installment Payment
Date, and with respect to the final payment or deposit at Maturity, the
Stated Maturity specified in the Notes.
"Payment Date Statement": The semiannual report to be
prepared by the Issuer pursuant to Section 9.3(a).
"Permitted Encumbrances": With respect to any Property,
(a) the applicable CRC Lease (subject to the provisions of the applicable
Memorandum of Lease as defined in each Mortgage), (b) the liens created by
the Mortgage Note Documents, (c) the lien of general and special real
property taxes and assessments which are not delinquent, (d) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record as of the date of recording of the applicable CRC Mortgage and
Foodmaker
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Mortgage which are generally acceptable in the jurisdiction where the
applicable Property is located to recognized lending institutions in
accordance with prudent lending practices, or as to which the Lessee
certifies to the Issuer and the Trustee in writing that such matters will not
have a material adverse effect on the value of such Property or its intended
use, (e) matters affecting the applicable Property existing as of the date of
the applicable CRC Lease and set forth in the Schedules attached to such CRC
Lease, and (f) other matters approved in writing by Noteholders' Counsel
prior to the recording of the applicable CRC Mortgage and Foodmaker Mortgage
and included in the applicable Title Policy.
"Person": Any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization, or government or any agency or political subdivision thereof.
"PORTAL Market": The term "PORTAL Market" shall mean the
Private Offerings, Resales and Trading through Automated Linkages Market
operated by the National Association of Securities Dealers, Inc. or any
successor thereto.
"Potential Additional Units": The meaning specified in
the CRC-I Lease.
"Potential Construction Units": The meaning specified in
the CRC-II Lease.
"Premium": The Prepayment Premium as defined in the
Notes.
"Principal" and "interest": Any Principal Payments,
interest or premium payments required to be distributed to a Noteholder
pursuant to the terms of this Indenture.
"Principal Payments": The installments of principal due
on any Note as provided in the Notes, subject to any adjustment thereof as
provided in the Notes.
"Private Placement Memorandum": With respect to the
Notes, the final Private Placement Memorandum dated as of December 15, 1993
relating to the offer and sale of the Notes by the Issuer.
"Proceeding": Any suit in equity, action at law, or
other judicial or administrative proceeding.
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"Proceeds Account": The trust account established and
maintained by the Trustee pursuant to Section 11.5 for the holding of certain
Insurance and Condemnation Proceeds.
"Property": With respect to any Mortgage, all property
that is subject to such Mortgage as collateral for the CRC Notes, including,
without limitation, the applicable Borrower's estate for years or the
Lessee's reversionary interest (as applicable) in all real property described
therein and the improvements now or hereafter located thereon, all
benefitting easements and other rights relating to such property, and all
personal property described therein (but excluding the Lessee's trade
fixtures and other items of personal property, as provided in the Mortgages),
and together with all leases, rents, purchase proceeds and other Rents,
Profits and Proceeds (as defined therein) and Insurance and Condemnation
Proceeds thereof.
"QIB": The term "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A.
"Rating Agencies": Standard & Poor's and Moody's.
"Registration Rights Agreement": The Registration Rights
Agreement, dated as of the date hereof, among the Issuer, the Lessee, CRC-I,
CRC-II and the Purchasers of Notes who are signatories to such agreement.
"Regular Record Date": As to any Payment Date, the last
Business Day of the month preceding the month in which such Payment Date
occurs.
"Reinvestment Income": Any interest or other earnings on
Eligible Investments, funds, or accounts that are part of the Trust Estate.
"Released Unit": The meaning specified in the CRC
Leases.
"Rent": The CRC-I Rent and the CRC-II Rent,
collectively.
"REO Account": The segregated trust account or accounts
established and maintained by the Trustee with respect to any REO Properties
pursuant to Section 11.16.
"REO Net Income": As to any Payment Date, the gross
revenues received by the Trustee with respect to any REO Property during the
most recently ended Interest Accrual Period, together with reinvestment
income thereon for the related Interest Accrual Period, net of costs of
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maintenance, restoration, repair, operation and management pursuant to
Section 11.17 for the most recently ended Interest Accrual Period.
"REO Property": A Property acquired by the Trustee on
behalf of the Noteholders through foreclosure or deed-in-lieu of foreclosure
pursuant to this Indenture.
"Required Rating": A debt rating equal to "B+" or better
by Standard & Poor's and "Ba3" or better by Moody's.
"Responsible Issuer Officer": Any officer of the Issuer,
including any president, vice president, secretary, treasurer, assistant vice
president, assistant secretary, assistant treasurer or any other officer of
the Issuer customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively or to whom any
matter is referred because of his or her knowledge of, or familiarity with,
this Indenture or the transactions contemplated hereby.
"Responsible Officer": When used with respect to the
Trustee, any officer within the Corporate Trust Office of the Trustee (or any
successor group of the Trustee) including any vice president, assistant vice
president, assistant secretary, or any other officer of the Trustee
customarily performing functions similar to those performed by the persons
who at the time shall be such officers, and to whom any corporate trust
matter relating to the transactions contemplated by the provisions of this
Indenture is referred because of his or her knowledge of, or familiarity
with, the particular subject.
"Restricted Notes": The term "Restricted Notes" means
any Note that bears or is required to bear the legend set forth in Section
2.6(d).
"Rule 144A": The term "Rule 144A" shall mean Rule 144A
as promulgated under the Securities Act.
"Sale": The meaning specified in Section 5.18.
"Securities Act": The Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Security Documents": The Mortgages, CRC Lease
Assignments, the Deposit Accounts Security Agreements, and the Financing
Statements executed by the applicable Borrower and/or the Lessee or consented
to by the Lessee (as applicable) in favor of the Issuer and as pledged by the
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Issuer to the Trustee, creating a first priority, perfected lien on, and
security interest in, the applicable Properties as collateral for the CRC
Notes, as well as such additional financing statements, documents,
instruments, and agreements as may be delivered by the Borrowers and/or the
Lessee or consented to by the Lessee (as applicable) to obtain for the
Trustee a first priority, perfected lien on such Properties.
"Sinking Fund Account": The trust account established
and maintained by the Trustee pursuant to Section 9.2(b).
"Standard & Poor's": Standard & Poor's Corporation, and
its successors in interest.
"Stated Maturity": With respect to any Note, the date on
which the entire unpaid principal of such Note becomes due and payable as
provided in Section 2.3 and in the Notes.
"Substitution": The meaning specified in the CRC Leases.
"Substitute Unit": The meaning specified in the CRC
Leases.
"Title Policy": With respect to any Mortgage, the policy
or policies of mortgagee's title insurance covering the related Property on
the 1970 form of American Land Title Association Loan Policy (or other
equivalent title policy form if such form is not available in the
jurisdiction in which any Property is located), insuring such Mortgage as a
valid first lien on the Mortgaged Property described therein, including,
without limitation, the applicable Borrower's estate for years or the
Lessee's reversionary interest therein, as applicable, issued by Chicago
Title Insurance Company (or any other title company approved by the
Noteholders' Counsel), with such endorsements and reinsurance as may be
reasonably required by the Majority Noteholders and subject to no exceptions
other than Permitted Encumbrances.
"Trust Estate": The meaning specified in the Granting
Clause hereof.
"Trustee": State Street Bank and Trust Company, and its
successors in interest and any corporation resulting from or surviving any
consolidation or merger to which it or its successors may be a party or any
successor trustee at the time serving as successor trustee as permitted
hereunder.
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"Trustee's Collateral Receipts": The Closing Date or
Second Closing Date interim and final receipts, respectively, of the Trustee
to be delivered pursuant to Section 3.2(c) substantially in the form of
Exhibits J-1, J-2, and J-3 respectively.
"UCC": The Uniform Commercial Code as in effect in the
State of New York; provided that in the event that by reason of mandatory
provisions of law, any or all of the attachment, perfection, or priority of
the Trustee's interest in the Trust Estate is governed by the law of some
other jurisdiction, such term shall mean the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection, or priority and for purposes of
definitions relating to such provisions.
"Unit Percentage" shall mean the percentage allocated to
each Property, Potential Construction Unit and Potential Additional Unit on
Schedule C attached hereto, regardless of whether any such Potential
Construction Unit or Potential Additional Unit has been added as part of the
"Leased Property" under any of the CRC Leases.
"Unit Redemption Price": The meaning specified in the
CRC Leases.
"Unit Sinking Fund Payment": The meaning set forth in
the Notes.
"Year Nine Installment Payment Date": The first Business
Day of January, 2003.
ARTICLE TWO
THE NOTES
Section 2.1. Form Generally.
The Notes and the Trustee's certificate of authentication
thereon shall be in substantially the form described in this Article Two,
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers, or other marks of identification and such legends or
endorsements placed thereon, as may, consistently herewith, be determined by
the Authorized Officer of the Issuer executing such Notes as evidenced by his
or her execution of such Notes.
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Pursuant to recommendations of the Committee on Uniform
Security Identification Procedures, "CUSIP" numbers may be printed on the
Notes.
The definitive Notes shall be typed, printed,
lithographed, or engraved or produced by any combination of these methods or
may be produced in any other manner, all as determined by the Authorized
Officers of the Issuer executing such Notes, as evidenced by their execution
of such Notes.
Section 2.2. Forms of Notes and Certificates of Authentication.
The Notes shall be issuable in fully registered form
without coupons, in substantially the forms attached hereto as Exhibits A-1
and A-2, and the form of the Trustee's certificate of authentication shall be
in the form provided in such Exhibits.
Any Note in global form shall represent such of the
outstanding Notes as shall be specified therein and shall provide that it
shall represent the aggregate amount of outstanding Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Notes
represented thereby may from time to time be increased or reduced to reflect
transfers or exchanges permitted hereby. Any endorsement of a Note in global
form to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee, at the
direction of the Trustee, in such manner and upon instructions given by the
Holder of such Note in global form. Payment of principal of and interest and
premium, if any, on any Note in global form shall be made to the Holder of
such Note.
Section 2.3. Authorized Amount; Stated Maturity; Note Interest Rate.
The Notes shall be designated generally as the 9.75%
Senior Secured Notes Due November 1, 2003. The aggregate principal amount of
Notes that may be authenticated and delivered under this Indenture is limited
to $70,000,000 except for Notes authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Notes pursuant to
Sections 2.6 or 2.7.
The Notes shall have a Stated Maturity of November 1,
2003. The Note Interest Rate shall be 9.75% from and including the Closing
Date to but excluding November 1, 2003.
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Section 2.4. Denominations.
The Notes shall be issuable only in minimum denominations
of $500,000 and integral multiples of $500,000. In each case, such principal
amounts shall be expressed in terms of the principal amounts thereof at the
Closing Date.
Section 2.5. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Issuer by
one Authorized Officer. The signature of such Authorized Officer on the
Notes shall be manual.
Notes bearing the manual signature of an individual who
was at any time the Authorized Officer of the Issuer shall bind the Issuer
notwithstanding the fact that such individual ceased to hold such office
prior to the authentication and delivery of such Notes or did not hold such
office at the date of issuance of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the
Issuer to the Trustee for authentication and the Trustee shall authenticate
and deliver such Notes upon Issuer Order as in this Indenture provided and
not otherwise.
Each Note authenticated and delivered by the Trustee upon
Issuer Order on the Closing Date shall be dated as of the date hereof. All
other Notes that are authenticated after the Closing Date for any other
purpose under the Indenture shall be dated the date of their authentication.
Notes issued upon transfer, exchange or replacement of
other Notes shall be issued in authorized denominations reflecting the
original aggregate principal amount of the Notes so transferred, exchanged or
replaced, but shall represent only the current outstanding principal amount
of the Notes so transferred, exchanged or replaced. In the event that any
Note is divided into more than one Note in accordance with this Article Two,
the original principal amount of such Note shall be proportionately divided
among the Notes delivered in exchange therefor and shall be deemed to be the
original aggregate principal amount of such subsequently issued Notes.
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No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Note a certificate of authentication, substantially in the form provided
for herein, executed by the Trustee by the manual signature of one of its
Authorized Officers, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated
and delivered hereunder.
All Notes will be equally and ratably secured hereunder,
without preference, priority or distinction on account of the date or dates
or the actual time or times of the issue of such Notes, so that all Notes
will have the same rights and preferences under and by virtue of this
Indenture.
Section 2.6. Exchange and Registration of Transfer of Notes; Restrictions on
Transfer; Depositary.
(a) The Issuer shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained in such
office and in any other office or agency of the Issuer designated pursuant to
Section 7.2 being herein sometimes collectively referred to as the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Notes and of
transfers of Notes. The Trustee is hereby appointed "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note
to the Note Registrar, and satisfaction of the requirements for such transfer
set forth in this Section 2.6, the Issuer shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denominations and of a
like aggregate principal amount and bearing such restrictive legends as may
be required by this Indenture.
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Notes to be exchanged at any such office or agency. Whenever any Notes are
so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Noteholder making the exchange
is entitled to receive.
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All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Issuer or the Note
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Issuer or the Note Registrar, and the
Note shall be duly executed by the Noteholder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes.
The Note Registrar shall not be required to register any
transfer or effect any exchange of any Note fifteen (15) days prior to a
Payment Date.
(b) So long as the Notes are eligible for book-entry
settlement with the Depositary, or unless otherwise required by law, all
Notes to be traded on the PORTAL Market shall be represented by a Note in
global form registered in the name of the Depositary or the nominee of the
Depositary. No person acquiring Notes traded on the PORTAL Market shall
receive or be entitled to receive physical delivery of certificates
evidencing such Notes. The transfer and exchange of beneficial interests in
such Note in global form shall be effected through the Depositary, in
accordance with this Indenture (including the restrictions on transfer set
forth herein) and the procedures of the Depositary therefor.
Notwithstanding the preceding paragraph, if at any time
it is necessary for the beneficial holder of an interest in a Note in global
form to obtain a Note in definitive form representing such interest (or a
portion thereof), such beneficial holder shall be entitled to obtain a
definitive Note upon written request to the Trustee in accordance with the
procedures of the Depositary for the issuance thereof. Upon receipt of any
such request, the Trustee will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Trustee,
the aggregate principal amount of the Note
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in global form to be reduced and, following such reduction, the Issuer will
execute and the Trustee will authenticate and deliver to such beneficial
holder (or its nominee) a Note or Notes in the appropriate aggregate
principal amount in the name of such beneficial holder (or its nominee) and
bearing such restrictive legends as may be required by this Indenture.
Any transfer of a beneficial interest in a Note in global
form which cannot be effected through book-entry settlement must be effected
by the delivery to the transferee (or its nominee) of a definitive Note or
Notes registered in the name of the transferee (or its nominee) on the books
maintained by the Note Registrar. With respect to any such transfer, the
Trustee will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Trustee, the aggregate
principal amount of the Note in global form to be reduced and, following such
reduction, the Issuer will execute and the Trustee will authenticate and
deliver to the transferee (or such transferee's nominee, as the case may be),
a Note or Notes in the appropriate aggregate principal amount in the name of
such transferee (or its nominee) and bearing such restrictive legends as may
be required by this Indenture.
So long as the Notes are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer of a
definitive Note to a QIB in accordance with Rule 144A, upon receipt of the
definitive Note or Notes being so transferred, together with a certification
from the transferor that the transferee is a QIB substantially in the form of
paragraph 4(a) of Exhibit B to the Note Purchase Agreement, the Trustee shall
make an endorsement on the Note in global form to reflect an increase in the
aggregate principal amount of the Notes represented by the Note in global
form, the Trustee shall cancel such definitive Note or Notes and cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Trustee, the aggregate principal amount of Notes
represented by the Note in global form to be increased accordingly.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Note
in global form held on their behalf by the Depositary, or the Trustee as its
custodian, or under such Note in global form, and the Depositary may be
treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee
as the absolute owner of such Note in global
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form for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Trustee or any agent of the Issuer or
the Trustee, from giving effect to any written certificate, proxy, or other
authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of a beneficial interest in
a Note in global form.
Any Note in global form may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be required by the
Depositary or by the National Association of Securities Dealers, Inc. in
order for the Notes to be tradeable on the PORTAL Market or as may be
required for the Notes to be tradeable on any other market developed for
trading of securities pursuant to Rule 144A or required to comply with any
applicable law or any regulation thereunder or with the rules and regulations
of any securities exchange upon which the Notes may be listed or traded or to
conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Notes are subject.
(c) Every Restricted Note shall be subject to the
restrictions on transfer provided in the legend required to be borne by each
Restricted Note pursuant to Subsection 2.6(d), unless such restrictions on
transfer shall have been waived by the written consent of the Issuer, and the
holder of each Restricted Note, by such Noteholder's acceptance thereof,
agrees to be bound by such restrictions on transfer. As used in this
Subsection 2.6(c) and in Subsection 2.6(d), the term "transfer" encompasses
any sale, pledge, transfer or other disposition of any Restricted Note.
(d) Until three years after the original issuance date
of any Note, any certificate evidencing such Note shall bear a legend in
substantially the following form:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN AND WILL NOT BE
REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER"(AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN "ACCREDITED
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INVESTOR" (AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN
OFFSHORE
TRANSACTION, AND (2) AGREES THAT IT WILL NOT WITHIN THREE YEARS
AFTER THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY
RESELL OR
OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY EXCEPT (A) TO FM
1993A
CORP. (THE "ISSUER"), (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE ISSUER
AND STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE (OR ANY
SUCCESSOR TRUSTEE, THE "TRUSTEE"), A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS
ON TRANSFER OF THE NOTE EVIDENCED HEREBY (SUBSTANTIALLY IN THE
FORM
ATTACHED AS EXHIBIT B TO THE NOTE PURCHASE AGREEMENT BETWEEN
THE
ISSUER AND THE ORIGINAL HOLDER, A COPY OF WHICH MAY BE
OBTAINED FROM
THE TRUSTEE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE
904 UNDER THE SECURITIES ACT OR (E) PURSUANT TO THE EXEMPTION
FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE). IN CONNECTION WITH ANY TRANSFER OF THE NOTE
EVIDENCED
HEREBY WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH
NOTE,
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH IN THE
ATTACHED
TRANSFER CERTIFICATE RELATING TO THE MANNER OF SUCH TRANSFER
AND
SUBMIT SUCH CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED
TRANSFEREE
IS AN ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S.
PERSON,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE
SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS REQUIRED
PURSUANT TO THE ATTACHED TRANSFER CERTIFICATE OR PURSUANT TO
THE
INDENTURE DATED AS OF DECEMBER 15, 1993 BETWEEN SUCH TRUSTEE
AND
THE ISSUER TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
MAY BE
REMOVED AFTER THE EXPIRATION OF THREE YEARS FROM THE ORIGINAL
ISSUANCE OF THE NOTE EVIDENCED HEREBY. AS USED HEREIN, THE
TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
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THE HOLDER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE
NOTE EVIDENCED HEREBY IS PROPOSED TO BE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THE FOREGOING LEGENDS.
After three years from the original issuance date of any
Note, any Note (or security issued in exchange or substitution therefor) may,
upon its surrender for exchange to the Note registrar in accordance with the
provisions of this Section 2.6, be exchanged for a new Note or Notes, of like
tenor and aggregate principal amount, which shall not bear the restrictive
legend required by this Subsection 2.6(d).
(e) Notwithstanding any other provisions of this
Indenture (other than the provisions set forth in Subsection 2.6(f)), a Note
in global form may not be transferred as a whole except by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
(f) The Depositary shall be a clearing agency
registered under the Exchange Act. The Issuer initially appoints the
Depositary Trust Company to act as Depositary with respect to the Notes in
global form. Initially, the global Note shall be issued to the Depositary,
registered in the name of Cede & Co., as the nominee of the Depositary, and
deposited with the Custodian for Cede & Co.
If at any time the Depositary for the Note in global form
notifies the Issuer that it is unwilling or unable to continue as Depositary
for such Note, the Issuer may appoint a successor Depositary with respect to
such Note. If a successor Depositary for the Note is not appointed by the
Issuer within 90 days after the Issuer receives such notice, the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of Notes, will authenticate and deliver, Notes in
definitive form, in an aggregate principal amount equal to the principal
amount of the Note in global form, in exchange for such Note in global form.
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If a definitive Note is issued in exchange for any
portion of a Note in global form after the close of business at the office or
agency where such exchange occurs on any Regular Record Date and before the
opening of business at such office or agency on the next succeeding Payment
Date, principal, premium (if any), and interest will not be payable on such
Payment Date in respect of such definitive Note, but will be payable on such
Payment Date only to the Person to whom principal, premium (if any), and
interest in respect of such portion of such Note in global form is payable in
accordance with the provisions of this Indenture.
Definitive Notes issued in exchange for all or a part of
a Note in global form pursuant to this Section 2.6 shall be registered in
such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall
deliver such definitive Notes to the persons in whose names such definitive
Notes are so registered.
(g) At such time as all interests in a Note in global
form have been redeemed, converted, repurchased, or canceled, such Note in
global form shall be canceled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the Trustee.
At any time prior to such cancellation, if any interest in a global Note is
exchanged for definitive Notes, redeemed, converted, canceled, or transferred
to a transferee who receives definitive Notes therefor or any definitive Note
is exchanged or transferred for part of a Note in global form, the principal
amount of such Note in global form shall, in accordance with the standing
procedures and instructions existing between the Depositary and the Trustee,
be reduced or increased, as the case may be, and an endorsement shall be made
on such Note in global form by the Trustee to reflect such reduction or
increase.
Section 2.7. Mutilated, Destroyed, Lost or Stolen Notes.
If (i) any damaged or mutilated Note is surrendered to
the Trustee, or the Issuer and the Trustee receive evidence of the
destruction, loss, or theft of any Note, and (ii) there is delivered to the
Issuer and the Trustee such security or indemnity as may reasonably be
required by them to save each of them harmless (provided, however, that if
the Holder of the surrendered Note is an Institutional
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Investor, such Holder's unsecured agreement to indemnify the Trustee and the
Issuer in a form reasonably acceptable to the Trustee and the Issuer shall be
a sufficient indemnity for this purpose), the Issuer shall execute and the
Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, damaged, destroyed, lost, or stolen Note, a new Note of the
same tenor and principal amount, bearing a number and such other identifying
mark not contemporaneously outstanding. If any such mutilated, damaged,
destroyed, lost, or stolen Note shall have become or shall be about to become
due and payable, instead of issuing a new Note, the Issuer may pay such Note
without surrender thereof, except that any damaged or mutilated Note shall be
surrendered.
Upon the issuance of any new Note under this Section 2.7,
the Issuer or the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto.
Every new Note issued pursuant to this Section 2.7 in
lieu of any mutilated, damaged, destroyed, lost, or stolen Note shall
constitute an original additional contractual obligation of the Issuer
whether or not the mutilated, damaged, destroyed, lost, or stolen Note shall
be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
Section 2.8. Payment of Principal and Interest; Principal and
Interest Rights Preserved.
(a) (i) The Notes shall accrue interest during each
Interest Accrual Period at the Interest Rate specified in Section
2.3. Interest and principal shall be payable on the Notes, and
deposits to the Administrative Expenses Account, Sinking Fund
Account and Equity Collection Account shall be made pursuant to the
Notes, all as provided in the Notes, in the forms attached hereto as
Exhibits A-1 and A-2.
(ii) Unless the unpaid principal of the Notes
becomes due and payable at an earlier date by acceleration, by
reason of an Early Termination or otherwise, principal shall be
payable on the Year Nine Installment Payment Date and upon the
Stated Maturity as further provided in the Notes.
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(iii) All payments of principal on the Notes shall
be allocated on a pro rata basis among all Outstanding Notes,
without preference or priority of any kind.
(b) Principal, premium (if any), and interest on each
Note shall be payable by wire transfer of immediately available funds to a
United States dollar account maintained by the Holder of such Note at a
Depository Institution in the United States of America as reflected on the
Note Register if the Noteholder has so notified the Trustee by the related
Regular Record Date and is the owner of Notes in an aggregate principal
amount of at least $5,000,000, and otherwise by check mailed to the
Noteholder by first-class mail, postage prepaid at its address as it appears
on the Note. Interest on each Note shall be paid by the Trustee from amounts
available therefor in the Collection Account as provided in Section 10.1
below. A portion of the principal payments due upon the Early Termination of
a Property, Potential Construction Unit or Potential Additional Unit shall be
paid from amounts available therefor in the Sinking Fund Account as provided
in Section 9.2(b) below. Principal payments on each Note on the Year Nine
Installment Payment Date shall be paid by the Trustee from amounts available
therefor in the Sinking Fund Account as provided in Section 9.2(b). In the
case of the Maturity of a Note, the Trustee shall, in the name and at the
expense of the Issuer, notify the Noteholder entitled thereto at its address
as it appears on the Note Register that such Note is to be paid in full.
Such notice shall be mailed as soon as practicable, and in any event no later
than the tenth day prior to the Maturity of such Note. Each Noteholder that
does not surrender any Note to the Trustee for payment and cancellation upon
the Maturity of such Note shall, nevertheless, be entitled to payment of such
Note, but such Noteholder shall be deemed to have agreed to indemnify the
Trustee and the Issuer and to save each of them harmless from any claim,
loss, or cost arising out of the nonsurrender of such Note.
(c) The Holders as of the Regular Record Date in
respect of a Payment Date shall be entitled to the interest accrued and
payable and principal and premium (if any) payable on such Payment Date.
Payments of principal and premium (if any) to such Holders shall be made in
the proportion that the unpaid principal balance of the Notes registered in
the name of each such Holder on such Regular Record Date bears to the
aggregate unpaid principal amount of all Notes Outstanding on such Regular
Record Date.
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(d) Interest with respect to any Note shall be computed
on the basis of a 360-day year consisting of 12 months of 30 days each and
the actual number of days elapsed.
(e) In the case where the date of any Payment Date,
Stated Maturity, or any other date for the payment of the principal of, or
premium or interest on, any Note shall not be a Business Day, then payment
need not be made on such date, but shall be made on the next succeeding
Business Day with the same force and effect as if made on the date of any
such Payment Date, Stated Maturity, or other date for the payment of the
principal of, or premium or interest on, such Note, as the case may be, and
no additional interest shall accrue on such payment for any period as a
result of such payment being made on the next succeeding Business Day.
(f) Subject to the foregoing provisions of this Section
2.8, each Note delivered under this Indenture and upon registration of
transfer of or in exchange for or in lieu of any other Note shall carry the
rights to unpaid interest, premium (if any), and principal that were carried
by such other Note.
Section 2.9. Prepayment.
The Notes shall not be prepayable except in connection
with (a) an Early Termination on or after the fifth anniversary of the
Closing Date as provided in Section 11.19 and (b) Lessee's exercise of the
Year Nine Option or making of the Year Nine Offer, in each case as provided
in the applicable CRC Lease and in the Notes.
Section 2.10. Persons Deemed Owners.
Prior to due presentment for registration of transfer of
any Note, the Issuer, the Trustee, and any agent of the Issuer or of the
Trustee shall treat the Person in whose name any Note is registered as the
owner of such Note for the purpose of receiving payments of principal of and
premium, if any, and interest on such Note and for all other purposes
whatsoever (whether or not such Note is overdue), and neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee shall be affected by
notice to the contrary.
Section 2.11. Cancellation.
All Notes surrendered for payment or registration of
transfer or exchange or deemed lost or stolen, shall, if surrendered to any
Person other than the Trustee, be
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delivered to the Trustee and shall be promptly canceled by it; provided,
however, that any Note delivered to the Trustee for payment shall be canceled
by the Trustee only if such Note is paid. No Notes shall be authenticated in
lieu of or in exchange for any Notes canceled as provided in this Section
2.11, except as expressly permitted by this Indenture. All canceled Notes
held by the Trustee shall be destroyed in accordance with its customary
procedure.
Section 2.12. Non-recourse.
(a) Subject to the provisions of this Section 2.12,
neither the Trustee nor the Holders of the Notes shall seek or obtain
judgment against the Issuer or any of the Issuer's officers, directors,
shareholders or employees for payment of principal or interest under the
Notes, or any sums payable under this Indenture, and the sole recourse of the
Trustee and the Holders of the Notes against the Issuer for any default in
the payment of such principal or interest or other sums shall be limited to
the Trust Estate.
(b) The limitation on recourse set forth in this
Section 2.12 shall be deemed void as against the Issuer and shall have no
force or effect as against the Issuer if the Issuer should attempt to
materially delay any foreclosure by the Trustee against the Trust Estate, or
if the Issuer or any other person described above should claim that any Note
or this Indenture or any Mortgage Note Document is invalid or unenforceable
to an extent that would preclude any such foreclosure.
(c) The limitation on recourse set forth in this
Section 2.12 shall not prejudice the rights of the Trustee or any Noteholder
to:
(i) name the Issuer as a party defendant in any
action, proceeding, reference or arbitration subject to the
limitations of this Section 2.12;
(ii) exercise remedies such as foreclosure
against or sale of any of the Trust Estate or obtain the
appointment of a receiver, or enforce the Assignment of Leases (as
defined in the CRC Mortgages);
(iii) collect or recover all Rents, Profits and
Proceeds (as defined in the CRC Mortgages) and all Insurance and
Condemnation Proceeds.
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(d) The limitation on recourse set forth in this
Section 2.12 does not affect the rights of the Trustee or any Noteholder to
recover from the Issuer any expenses, damages or costs, including attorneys'
fees and expenses (including the allocated costs for services of in-house
counsel), which the Trustee or any Noteholder may incur because of the
Issuer's fraud, willful misrepresentation, waste, misappropriation of Rents,
Profits and Proceeds or intentional damage of or to any of the Trust Estate;
(e) Nothing contained in this Section 2.12 shall limit
in any way any liability or obligations of Foodmaker under the CRC Leases or
of CRC-I or CRC-II under the CRC-I Guaranty and the CRC-II Guaranty,
respectively.
(f) Nothing contained in this Section 2.12 shall limit
in any way any liability or obligations of CRC-I, CRC-II or Foodmaker under
Section 1.09 or 1.18 of the Mortgages; provided, however, that no partner in
CRC-I or CRC-II shall have personal liability for the repayment of the
indebtedness evidenced by the CRC Notes.
(g) Nothing contained in this Section 2.12 shall impair
the validity of any Note or this Indenture or any lien or security interest
which it may create or perfect or the rights of Trustee to receive all Rents,
Profits and Proceeds following an Event of Default.
ARTICLE THREE
DELIVERY OF NOTES AND DISTRIBUTION OF PROCEEDS
Section 3.1. General Provisions.
On the Closing Date, the Notes to be issued on the
Closing Date in accordance with the Note Purchase Agreement shall be executed
by the Issuer and thereafter delivered to the Trustee for authentication and
thereupon the same shall be authenticated and delivered by the Trustee upon
Issuer Request, and upon compliance with the conditions of Section 3.2, and
upon receipt or execution by the Trustee and upon receipt by the Noteholders
(if addressed to them) of the following:
(a) One or more Officer's Certificates (i) evidencing
the authorization of the execution, authentication and delivery of this
Indenture and such Notes by the Issuer and specifying the Stated Maturity,
the principal amounts and the Interest Rates of each of the
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Notes to be authenticated and delivered; and (ii) certifying that (A) the
copy of the Issuer's charter documents, bylaws and resolutions of the
Issuer's board of directors attached thereto authorizing the execution,
delivery and performance of the foregoing agreements and the Issuer's
obligations thereunder, and designating the officers authorized to execute
and deliver such documents is a true and complete copy thereof; (B) such
charter documents, bylaws and resolutions have not been amended or rescinded
and are in full force and effect; and (C) the officers authorized to execute
and deliver such documents hold the offices and have the signatures indicated
therein;
(b) An Opinion or Opinions of Independent Counsel to
the Issuer substantially in the form of Exhibit B attached hereto, addressed
to the Trustee, the Noteholders and their respective counsel. In rendering
such opinion such counsel may rely as to matters of fact on Officer's
Certificates, certificates and records of public officials, certificates of
the Trustee, and such other certificates and records as such counsel deems
necessary and reasonable;
(c) An Officer's Certificate stating that (i) the
Issuer is not in Default under this Indenture and no Event of Default has
occurred; (ii) that the issuance of the Notes applied for will not result in
a breach of any of the terms, conditions or provisions of, or constitute a
default under, any indenture or other agreement or instrument to which the
Issuer is a party or by which the Issuer is bound, or any order of any court
or administrative agency entered in any Proceeding to which the Issuer is a
party or by which the Issuer is bound or to which the Issuer may be subject;
and (iii) that all conditions precedent provided in this Indenture relating
to the authentication and delivery of the Notes applied for have been
complied with;
(d) An executed counterpart of this Indenture;
(e) Evidence that the Administrative Expenses Account,
Closing Costs Account, Collection Account, Construction Account (and the
Additional Unit Acquisition Account as a subaccount thereof), Sinking Fund
Account and Equity Collection Account have been created in accordance with
the terms of this Indenture and, if required on the Closing Date, funded in
accordance with the provisions hereof. Evidence that all Closing Costs have
been paid by the Lessee (to the extent not paid from funds deposited in the
Closing Costs Account);
(f) A certificate signed by a Responsible Officer of
the Trustee, certifying the specimen signature and
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incumbency of the officers of the Trustee authorized to execute this
Indenture and the Trustee's certificate of authentication on the Notes;
(g) A letter from each of the Rating Agencies to the
effect that the Notes have been rated not lower than the Required Rating, and
that such rating is in full force and effect on the Closing Date;
(h) The Registration Rights Agreement and the Note
Purchase Agreement; and
(i) Such other documents as the Trustee and the
Noteholders may reasonably require.
Section 3.2. Collateral Support.
On the Closing Date, the Notes shall be executed by the
Issuer and thereafter delivered to the Trustee for authentication and
thereupon the same shall be authenticated and delivered by the Trustee upon
Issuer Request, and upon compliance with the conditions of Section 3.1, and
upon receipt by the Trustee of the following:
(a) The Grant of all of the Issuer's right, title and
interest in and to the CRC-I Note and the related Mortgage Note Documents,
including all right to receive interest and principal on or with respect
thereto.
In connection with such Grant, the Issuer shall
deliver to, and deposit with, or cause to be delivered to and deposited with,
the Trustee the following documents, instruments or items, each duly
executed, endorsed and acknowledged (where required) by each of the parties
thereto (as applicable), and each in form and substance satisfactory to the
Noteholders' Counsel:
(i) the original CRC-I Note in the form attached
hereto as Exhibit C-1, endorsed by the Issuer to the order of the
Trustee in the following form: "PAY TO THE ORDER OF State Street
Bank and Trust Company, as Trustee for the Noteholders under the
certain Indenture, dated as of December 15, 1993, between FM 1993A
Corp. and said Trustee, and without recourse except as provided
in the Indenture and the documents delivered thereunder, as
collateral for the obligations of FM 1993A CORP. under said
Indenture";
(ii) the original CRC-II Note in the form attached
hereto as Exhibit C-2, endorsed by the
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Issuer to the order of the Trustee in the following form: "PAY TO
THE ORDER OF State Street Bank and Trust Company, as Trustee for the
Noteholders under the certain Indenture, dated as of December 15,
1993, between FM 1993A Corp. and said Trustee, and without recourse
except as provided in the Indenture and the documents delivered
thereunder, as collateral for the obligations of FM 1993A CORP.
under said Indenture";
(iii) the original CRC-I Mortgage executed by CRC-I
with respect to each of the Existing Assets listed on the attached
Schedule A-1, with the collateral assignment thereof and of the
related Mortgage Note Documents from the Issuer to the Trustee, in
the forms attached hereto as Exhibit D-1;
(iv) the original CRC-II Mortgage executed by
CRC-II with respect to each of the Construction Units listed on the
attached Schedule A-2, with the collateral assignment thereof and of
the related Mortgage Note Documents from the Issuer to the Trustee,
in the forms attached hereto as Exhibit D-2;
(v) the original Foodmaker Mortgage executed by
the Lessee with respect to each of the Existing Assets listed on the
attached Schedule A-1 and each of the Construction Units listed on
the attached Schedule A-2, with the collateral assignment thereof
and of the related Mortgage Note Documents from the Issuer to the
Trustee, in the forms attached hereto as Exhibits D-3 and D-4,
respectively;
(vi) all duplicate originals of the CRC-I Lease
Assignment executed by CRC-I with respect to the Existing Assets
listed on the attached Schedule A-1, with the consent thereto by the
Lessee, in the forms attached hereto as Exhibit E-1;
(vii) all duplicate originals of the CRC-II Lease
Assignment executed by CRC-II with respect to the Construction Units
listed on the attached Schedule A-2, with the consent thereto by the
Lessee, in the forms attached hereto as Exhibit E-2;
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(viii) Uniform Commercial Code financing statements
on Form UCC-1 with respect to the Existing Assets listed on the
attached Schedule A-1 naming each of CRC-I and the Lessee,
respectively, as debtor, the Issuer, as secured party and the
Trustee, as assignee;
(ix) Uniform Commercial Code financing statements
on form UCC-1 with respect to the Construction Units listed on the
attached Schedule A-2 naming each of CRC-II and the Lessee,
respectively, as debtor, the Issuer, as secured party and the
Trustee, as assignee;
(x) the original Deposit Accounts Security
Agreements executed by each of CRC-I and CRC-II in the forms of
Exhibits F-1 and F-2, respectively;
(xi) Uniform Commercial Code financing statement
on Form UCC-1 naming the Issuer, as debtor, and the Trustee, as
secured party, with respect to the CRC-I Note and the related
Mortgage Note Documents;
(xii) the original of each CRC Lease (which shall
be the sole original thereof and which together with the original of
any amendments thereto permitted under the Mortgage Note Documents
shall be delivered to the Trustee on the Closing Date and held by
the Trustee at all times during the term hereof) and the original
recorded Short-Form Master Lease, Notice of Non-Responsibility and
Subordination and Recognition Agreement for each Existing Asset
listed on the attached Schedule A-1 and each Construction Unit
listed on the attached Schedules A-2;
(xiii) the Insurance Policies or certificates (which
may be blanket certificates) evidencing the Insurance Policies with
respect to each of the Existing Assets listed on the attached
Schedule A-1 and each of the Construction Units listed on the
attached Schedule A-2;
(xiv) the original Title Policies or commitments
therefor for each of the Existing Assets listed on the attached
Schedule A-1 and each of the Construction Units listed on the
attached Schedule A-2;
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(xv) a copy of any survey used in connection with
the issuance of such Title Policies;
(xvi) a copy of a "Phase I" environmental report
concerning each such Property, to the extent in the Lessee's or
CRC-I's or CRC-II's possession;
(xvii) the original CRC-I Guaranty in the form
attached hereto as Exhibit G-1;
(xviii) the original CRC-II Guaranty in the form
attached hereto as Exhibit G-2;
(xix) an original Officer's Certificate executed by
an Authorized Officer of the Lessee in the form attached hereto as
Exhibit H; and
(xx) Opinions of Independent Counsel dated the
Closing Date, addressed to the Trustee and the Noteholders
(including opinions of special New York counsel and local counsel in
each state in which a Property is located), in the forms attached
hereto as Exhibits B, and I-1 through I-4 with respect to, among
other things, the due authorization, execution and enforceability by
and against each of the Lessee, CRC-I, CRC-II and the Issuer of each
of the documents referred to in this Section to which such entity is
a party, which opinions may include customary assumptions,
limitations, qualifications and exclusions.
All such Security Documents and other documents and
assignments thereof delivered to the Trustee shall, as applicable, be in
appropriate form for filing or recording and shall be duly filed or recorded
in the offices where such filing or recording is required in the state where
the relevant Property is located; provided that the Trustee shall not be
required to determine whether any document is in recordable form or see to
the filing or recording of any document. With respect to the original
Security Documents or any other document set forth in the foregoing clauses
(i) through (xx) or any assignments thereof to the Trustee, that requires
filing or recordation, the Issuer hereby represents and warrants that such
original Security Document or other document or assignment thereof has been
delivered to the title company issuing the Title Policies for filing or
recordation, as the case may be. In all such instances, the Issuer shall
deliver the original Security Document or other document or assignment
thereof to the Trustee, with evidence of filing or recording, as the case may
be, indicated thereon, within 60 days after the Closing Date.
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All filing and recording required pursuant to this
Section 3.2 shall be accomplished at the expense of the Issuer. The Issuer
shall pay or shall cause the Lessee to pay all Closing Costs incurred in
connection with the closing hereunder.
The closing with respect to each of the Existing Assets
listed on the attached Exhibit A-1 and each of the Construction Units listed
on the attached Exhibit A-2 shall occur simultaneously.
(b) An Officer's Certificate of the Issuer, dated as of
the Closing Date, to the effect that, in the case of the CRC Notes and each
other item Granted as part of the Trust Estate, immediately prior to the
delivery thereof on the Closing Date with respect to paragraphs (i) through
(v) of this Subsection 3.2(b) and contemporaneous with the delivery thereof
with respect to paragraph (v) of this Subsection 3.2(b):
(i) the Issuer is the owner of the CRC Notes and
holder of the rights under each item Granted as part of the Trust
Estate, as applicable, in each case free and clear of any liens,
claims or encumbrances of any kind;
(ii) the Issuer has acquired its ownership in the
CRC Notes and such other items Granted as part of the Trust Estate
in good faith without notice of any adverse claim;
(iii) the Issuer has not assigned, pledged or
otherwise encumbered any interest in the CRC Notes or any other
items Granted as part of the Trust Estate;
(iv) the Issuer has full right to Grant the CRC
Notes and such other items Granted as part of the Trust Estate to
the Trustee;
(v) the Trustee shall have a valid, perfected
first priority security interest in the Trust Estate for the benefit
of the Noteholders hereunder.
(c) The Trustee shall have delivered to the Issuer
(with a copy to the Lessee at its address set forth in the CRC Leases) the
Trustee's Closing Date Collateral Receipt dated as of the Closing Date
confirming the Trustee's receipt of the CRC-I Note and the CRC-II Note and
the related Mortgage Note Documents which have been delivered to
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it and such other information specified therein in the form of Exhibit J-1
attached hereto. The Trustee shall also deliver the following Trustee's
Collateral Receipts to the Issuer (with a copy to the Lessee at its address
set forth in the CRC Leases):
(i) the Trustee's Interim Collateral Receipt,
dated as of the date 30 days from the Closing Date, in the form of
Exhibit J-2 attached hereto;
(ii) if the Trustee cannot certify in the
Trustee's Interim Collateral Receipt that it has received all
documents listed therein, the Trustee's Final Collateral Receipt,
dated as of the date on which the Trustee receives or has received
all such documents, in the form of Exhibit J-3 attached hereto.
In delivering any such Collateral Receipt, the Trustee
shall bear no responsibility for determining the due execution and the
genuineness of any signature on the documents which it has received. It is
understood that the scope of the Trustee's receipt with respect to the Notes
and related Mortgage Note Documents and other information specified in the
Collateral Receipts is to confirm that documents purported to be those
described on such Receipts have been delivered to it, and the Trustee shall
bear no responsibility for determining whether such insurance policies as are
delivered to it meet the definition thereof provided herein or to see to it
that all required insurance policies are delivered to it; nor shall the
Trustee bear any responsibility for determining whether the Security
Documents and other documents and assignments thereof delivered to it create
a valid, first priority lien.
Section 3.3. Intentionally Omitted.
Section 3.4. Distribution of Proceeds of Notes.
The Issuer will use the proceeds of the Notes on the
Closing Date to purchase the CRC-I Note and the CRC-II Note from CRC-I and
CRC-II, respectively, pursuant to the CRC-I Note Purchase Agreement and the
CRC-II Note Purchase Agreement, respectively, as follows:
(a) CRC-I Note Purchase. The Issuer has agreed to
purchase the CRC-I Note from CRC-I for the purchase price set forth in the
CRC-I Note Purchase Agreement (the "CRC-I Note Purchase Price"), which
purchase price shall be deposited with the Trustee and disbursed in full on
the Closing Date as follows:
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(i) The Issuer and CRC-I hereby direct and
authorize the Trustee to disburse $22,683,100 of the CRC-I Note
Purchase Price, on behalf of CRC-I, to the Lessee on the Closing
Date to finance the purchase by CRC-I of an estate for years in each
of the Existing Assets listed on the attached Schedule A-1 from the
Lessee, through the escrow established with the title company
issuing the Title Policies or as the Lessee may otherwise direct in
writing.
(ii) CRC-I and the Issuer hereby direct and
authorize the Trustee to deposit and hold proceeds of the CRC-I Note
Purchase Price, in the amount of $1,069,154, in the Closing Costs
Account in accordance with Section 9.6(a), and to release funds
deposited in the Closing Costs Account, from time to time to pay
Closing Costs in accordance with Section 9.6(a).
(iii) The Issuer and CRC-I hereby direct and
authorize the Trustee to deposit and hold the remaining balance of
the CRC-I Note Purchase Price, in the amount of $5,950,000 in the
Additional Unit Acquisition Account, and to release funds deposited
therein from time to time as a Potential Additional Unit(s) listed
on the attached Schedule A-3 is subjected to the CRC-I Lease, as
provided in Section 9.5. hereof
Notwithstanding that such disbursements of the CRC-I Note Purchase Price
shall be made directly by the Trustee to the Lessee or deposited in the
Closing Costs Account or the Additional Unit Acquisition Account and released
in accordance with Section 9.6(a) or 9.5, as applicable, such disbursements
shall be deemed to be paid by the Issuer to CRC-I under the CRC-I Note
Purchase Agreement on the Closing Date and interest shall accrue and be
payable by CRC-I on the full principal amount of the CRC-I Note at the rate
and as otherwise provided in the CRC-I Note commencing on the Closing Date.
(b) CRC-II Note Purchase. The Issuer has agreed to
purchase the CRC-II Note from CRC-II for the purchase price set forth in the
CRC-II Note Purchase Agreement (the "CRC-II Note Purchase Price"), which
purchase price shall be deposited with the Trustee and disbursed in full on
the Closing Date, as follows:
(i) The Issuer and CRC-II hereby direct and
authorize the Trustee to disburse $15,671,050 of the CRC-II Note
Purchase Price, on behalf of CRC-II, to the Lessee on the Closing
Date to finance the purchase by CRC-II of an estate for years in
each of the
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Construction Units listed on the attached Schedule A-2 from the
Lessee, together with the construction of a Jack In The Box
Restaurant on each such Property (as applicable) by the Lessee in
accordance with the terms of the CRC-II Lease, through the escrow
established with the title company issuing the applicable Title
Policies or as the Lessee may otherwise direct in writing.
(ii) CRC-II and the Issuer hereby direct and
authorize the Trustee to deposit and hold proceeds of the CRC-II
Note Purchase Price, in the amount of $1,411,241, in the Closing
Costs Account in accordance with Section 9.6(a), and to release
funds deposited in the Closing Costs Account, from time to time to
pay Closing Costs in accordance with Section 9.6(a).
(iii) CRC-II and the Issuer further hereby direct
and authorize the Trustee to deposit and hold the remaining balance
of the CRC-II Note Purchase Price, in the amount of $22,123,455, in
the Construction Account in accordance with Section 9.4, and to
release funds deposited in the Construction Account, from time to
time, on behalf of CRC-II, directly to the Lessee as the Lessee
acquires each of the Potential Construction Units listed on the
attached Schedule B and CRC-II acquires an estate for years in each
such Property from the Lessee, and otherwise in accordance with the
terms and conditions set forth in Section 9.5.
Notwithstanding that such disbursements of the CRC-II Note Purchase Price
shall be made directly by the Trustee to the Lessee or deposited in the
Closing Costs Account or the Construction Account and that such funds may
from time to time be released directly by the Trustee to the Lessee in
accordance with Sections 9.4 and 9.5 and 9.6(a), as applicable, such amounts
shall be deemed to be paid by the Issuer to CRC-II under the CRC-II Note
Purchase Agreement on the Closing Date and interest shall accrue and be
payable by CRC-II on the full principal amount of the CRC-II Note at the rate
and as otherwise provided in the CRC-II Note commencing on the Closing Date.
The Trustee shall have no responsibility to confirm that
the proceeds of the Notes are used for the purposes specified herein.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture.
Provided no Default or Event of Default has occurred and
is continuing hereunder, this Indenture shall cease to be of further effect
and the liens Granted hereunder shall cease and the Issuer shall be relieved
of all obligations hereunder, except as to (i) rights of registration of
transfer and exchange, (ii) substitution of mutilated, destroyed, lost or
stolen Notes, (iii) the rights of Noteholders to receive payments of
principal and interest, (iv) the rights, obligations and immunities of the
Trustee hereunder, and (v) the rights of Noteholders as beneficiaries hereof
with respect to the property deposited with the Trustee and payable to all or
any of them, and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture (except as limited above), when:
(1) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been mutilated, damaged, destroyed, lost or
stolen and which have been paid or replaced as provided in Section 2.7 or
upon payment in full as provided in Subsection 2.8(c), and (ii) Notes for
whose payment money has theretofore been deposited in trust and thereafter
repaid to the Issuer or discharged from such trust, as provided in Section
4.2), have been paid in full;
(2) the Issuer has paid or caused to be paid in full
all other sums payable hereunder; and
(3) the Issuer has delivered to the Trustee an
Officer's certificate and Opinion of Counsel stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to the Notes have been complied with.
Section 4.2. Application of Trust Money.
All monies deposited with the Trustee pursuant to Section
4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, including, without limitation,
Section 10.1 or 5.8, as the case may be, to the payment to the Persons
entitled thereto, of the principal and interest, for whose payment such money
has been deposited with the Trustee. Such money shall be held in a
segregated trust account in
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the trust department of the Trustee identified as being held in trust by the
Trustee for the benefit of the Noteholders.
ARTICLE FIVE
EVENTS OF DEFAULT; REMEDIES
Section 5.1. Events of Default.
"Event of Default" wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and
irrespective of whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree, or order of any
court or any order, rule, or regulation of any administrative or governmental
body):
(a) any CRC Lease Event of Default or Mortgage
Event of Default shall have occurred and be continuing;
(b) failure to pay any interest, premium or
principal on any Note or to make any deposit required under the
Notes to be made to the Sinking Fund Account or the Administrative
Expenses Account, when due and payable;
(c) default in the performance, or breach of any
term, provision, covenant, obligation or agreement of the Issuer in
Sections 7.8, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15 or 7.24;
(d) default in the performance, or breach, of any
term, provision, covenant, obligation, or agreement of the Issuer in
this Indenture (other than a covenant, a default in the performance
of which or breach of which is specifically dealt with elsewhere in
this Section), and such default or breach shall continue for a
period of 30 days from the earlier of (a) actual knowledge thereof
by any Responsible Issuer Officer or (b) written notice thereof to
the Issuer by the Trustee or to the Issuer and the Trustee by any
Noteholder;
(e) if any representation, warranty or
certification made by or on behalf of the Issuer herein or pursuant
hereto or by the Issuer in or pursuant to any other document
entered into by the Issuer or in connection with any of the
transactions contemplated hereby or thereby shall prove to have
been false or incorrect on the date as of which made and such
breach
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remains uncured 30 days after notice thereof has been given
to the Issuer or after the expiration of any reasonable and
necessary extension (which shall not be for more than 90 days)
given by the Trustee for those misrepresentations which by their
nature cannot be cured in 30 days and which Issuer is diligently
proceeding to cure;
(f) if (i) the Issuer, CRC-I, CRC-II, Foodmaker
or any General Partner (A) shall institute (by petition,
application, written admission, written consent or otherwise in
writing) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debts, dissolution, liquidation, or similar
proceedings, or (B) shall be adjudicated a bankrupt or become
insolvent or (C) shall make an assignment for the benefit of its
creditors or (D) shall admit in writing its inability to pay its
debts generally as they become due, or (E) shall be dissolved or (F)
shall suspend payment of its obligations or (G) shall take any
corporate action in furtherance of any of the foregoing; or
(ii) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, readjustment of debt, dissolution,
liquidation or similar proceedings shall be instituted (by petition,
application or otherwise) against the Issuer, CRC-I, CRC-II,
Foodmaker or any General Partner and (A) such entity shall consent
to the institution thereof, or (B) such proceedings shall not be
discharged or denied within sixty (60) days after the institution
thereof; or
(iii) a receiver, trustee or liquidator (or other
similar official) shall be appointed for or take possession or
charge of the Issuer, CRC-I, CRC-II, Foodmaker or any General
Partner or of any such entity's estate or interest in any Property
or of all or a substantial part of any such entity's other property
(if any), and shall not be discharged within sixty (60) days
thereafter, or if any such entity shall apply for consent to or
acquiesce in such appointment, or
(g) default by any party under the Registration
Rights Agreement.
Upon the occurrence of a Default, the Issuer shall
promptly notify the Trustee thereof in writing. Upon receipt of such
notification from the Issuer or if a Responsible Officer of the Trustee has
actual knowledge of the occurrence of a Default, the Trustee shall promptly
notify the Noteholders and, if any of the Notes are then
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rated by the Rating Agencies, the Rating Agencies, in writing of the
occurrence of such Default.
Section 5.2. Acceleration of Maturity, Foreclosure Events,
Rescission and Annulment.
If an Event of Default occurs and is continuing, then and
in every such case the Majority Noteholders may declare the principal of all
the Notes to be immediately due and payable, by a notice in writing to the
Issuer and to the Trustee, and upon any such declaration such principal,
together with interest accrued thereon and any premium payable in connection
therewith, shall become immediately due and payable; provided that if an
Event of Default specified in Subsection 5.1(f) occurs, then such principal,
together with interest accrued thereon and any premium payable in connection
therewith shall become immediately due and payable without any such
declaration, demand, presentment or notice or any other action (all of which
are waived) and references in this Indenture to "declaration of acceleration"
shall include such automatic acceleration.
At any time after such a declaration of acceleration of
Maturity has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as provided in this Article Five,
the Majority Noteholders, by written notice to the Issuer and the Trustee,
may rescind and annul such declaration and the consequences thereof if:
(a) the Issuer has paid or irrevocably deposited with
the Trustee on behalf of the Noteholders a sum sufficient to pay:
(i) all overdue installments of interest,
premium, if any, and principal on all Notes;
(ii) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements,
and advances, if any, of the Trustee and its agents and counsel; and
(iii) all sums payable to Noteholders pursuant to
Section 5.14(c), Section 7.1, and Section 8.1 and the reasonable
compensation, expenses, disbursements, and advances of their
counsel; and
(b) all Events of Default, other than the non-payment
of the interest on or principal of Notes that have become due solely by such
acceleration, have been cured or waived as provided in Section 5.15.
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No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Issuer covenants that, if Default is made in the
payment of any principal of or interest on or any deposit required under any
Note, the Issuer will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holder of such Note, the whole amount then due and payable
on such Note for principal, interest and any premium and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel, and
all sums, if any, payable to Noteholders pursuant to Section 5.14(c), Section
7.1, and Section 8.1 and the reasonable compensation, expenses,
disbursements, and advances of their counsel and any Administrative Expenses
incurred by the Trustee or by the Noteholders in connection therewith.
Subject to the provisions of Section 2.12 hereof, if the
Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, may institute a Proceeding
for the collection of the sums so due and unpaid, and may prosecute such
Proceeding to judgment or final decree, and may enforce the same against the
Issuer or any other obligor upon the Notes and collect the monies adjudged or
decreed to be payable in the manner provided by law and out of the Trust
Estate.
If an Event of Default occurs and is continuing, subject
to Section 5.14, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Noteholders by such appropriate
Proceedings as the Trustee shall deem most effectual or as directed by the
Majority Noteholders to protect and enforce any such rights whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Trustee by this Indenture or
by law.
The Issuer shall reimburse and indemnify the Trustee for
any expenses incurred in connection with any such Proceeding as provided in
Section 6.7.
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Section 5.4. Remedies.
(a) If the Notes have been declared, or have become,
due and payable and such declaration and its consequences have not been
rescinded and annulled, the Trustee may, after notice to the Noteholders, and
shall, upon direction by the Majority Noteholders subject to Section
6.1(b)(iv), do one or more of the following:
(i) institute Proceedings for the collection of
all amounts then payable on the Notes or under this Indenture,
whether by acceleration or otherwise, enforce any judgment obtained,
and collect from the Trust Estate monies adjudged due;
(ii) sell all or any portion of the Trust Estate
or rights or interest therein, at one or more public or private
sales called and conducted in any manner permitted by applicable law
and in accordance with Section 5.18 hereof;
(iii) institute Proceedings from time to time for
the complete or partial foreclosure of this Indenture with respect
to the Trust Estate;
(iv) exercise any remedies of a secured party
under the UCC (whether or not said UCC is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted, including, without limitation,
the right, to the maximum extent permitted by law, to exercise all
voting, consensual and other powers of ownership pertaining to the
Trust Estate as if the Trustee were the sole and absolute owner
thereof (and the Issuer agrees to take all such action as may be
appropriate to give effect to such right), and take any other
appropriate action that may be available at law or in equity or
pursuant to any Mortgage Note Document or other agreement to protect
and enforce the rights and remedies of the Notes or the Holders of
the Notes;
(v) institute Proceedings from time to time for
the enforcement of the CRC Leases;
(vi) institute Proceedings from time to time for
the enforcement of the CRC-I Guaranty and/or the CRC-II Guaranty,
enforce any judgment obtained, and collect all amounts payable
thereunder; or
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(vii) exercise any other rights and remedies that
may be available hereunder or under any of the Mortgage Note
Documents or at law or in equity.
(b) Notwithstanding the foregoing or anything to the
contrary contained herein, unless and until a CRC Lease Event of Default or
Mortgage Event of Default under any of the Foodmaker Mortgages shall have
occurred and be continuing, no such remedies shall be available with respect
to or exercisable against Foodmaker's interest in any Mortgaged Property
encumbered by any of the Foodmaker Mortgages.
(c) Upon any sale, whether made under the power of sale
hereby given or by virtue of judicial proceedings, any Noteholder or
Noteholders may bid for and purchase the Trust Estate or any part thereof
and, upon compliance with the terms of sale, may hold, retain, possess or
dispose of such property in its or their own absolute right without
accountability; and any purchaser at any such sale may, in paying the
purchase money, turn in any of the Notes in lieu of cash to the extent of the
amount which shall, upon distribution of the net proceeds of such sale, be
payable thereon. Said Notes, in the event that the amounts so payable
thereon shall be less than the amount due thereon, shall be returned to the
Holders thereof after being properly stamped to show partial payment.
Upon any sale, whether made under the power of sale
hereby given or by virtue of judicial proceedings, the receipt of the
Trustee, or of the officer making a sale under judicial proceedings, shall be
a sufficient discharge to the purchaser or purchasers at such sale for its or
their purchase money, and such purchaser or purchasers shall not be obliged
to see to the application thereof.
Any such sale, whether under any power of sale
hereby given or by virtue of judicial proceedings, shall bind the Issuer, the
Trustee and the Noteholders, shall operate to divest all right, title and
interest whatsoever, either at law or in equity, of each of them in and to
the property sold, and shall be a perpetual bar, both at law and in equity,
against each of them and their successors and assigns, and against any and
all Persons claiming through or under them.
(d) The Trustee shall give notice to the Issuer of any
sale of all or a portion of the Trust Estate pursuant to this Section 5.4 in
accordance with the requirements of applicable law.
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Section 5.5. Optional Preservation of Trust Estate.
(a) If an Event of Default shall have occurred and be
continuing and so long as no declaration of acceleration has occurred which
has not been rescinded, the Trustee shall retain the Trust Estate securing
the Notes intact, receive the proceeds thereof and make and apply all such
receipts in respect of the Notes in accordance with the provisions of Section
5.8 or 10.1 (as applicable).
So long as such Event of Default is continuing, any
such retention of all or any portion of the Trust Estate pursuant to this
Subsection 5.5(a) may be rescinded at any time and from time to time by
written notice from the Majority Noteholders to the Trustee and the Issuer
directing the Trustee to liquidate or sell all or any portion of the Trust
Estate.
(b) Nothing contained in Subsection 5.5(a) shall be
construed to require the Trustee to preserve the Trust Estate securing the
Notes if prohibited by applicable law or if an Event of Default has occurred
and the Trustee is directed to liquidate or sell all or any portion of the
Trust Estate by the Majority Noteholders.
Section 5.6. Trustee May File Proofs of Claim.
In case there shall be pending Proceedings relating to
the Issuer under the Bankruptcy Code or any other applicable federal or state
bankruptcy, insolvency, or other similar law, or in case a receiver,
assignee, trustee in bankruptcy or reorganization, liquidator, sequestrator,
or similar official shall have been appointed for or taken possession of the
Issuer or its property, or in case of any other comparable proceedings
relating to the Issuer upon the Notes, or the creditors or property of the
Issuer, the Trustee, regardless of whether the principal of any Notes shall
then be due and payable as therein expressed or by declaration or otherwise
and regardless of whether the Trustee shall have made any demand pursuant to
the provisions of Section 5.3, shall be entitled and empowered (but shall not
be obligated), subject in each case to Section 5.14, by intervention in such
Proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid and other amounts
including, without limitation, Administrative Expenses in respect of
the Notes and this Indenture and to file such other papers or
documents and
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take such other action (including participating in a creditors'
committee) as it may deem necessary or advisable in order to have
the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of
negligence or bad faith, all as provided in Section 6.7) and of
the Noteholders (including any claim for sums due to Noteholders
pursuant to Section 5.14(c), Section 7.1 and Section 8.1) allowed
in any Proceedings relating to the Issuer upon the Notes or to the
creditors or property of the Issuer;
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of the Notes in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation, or other bankruptcy or insolvency
Proceedings or Person performing similar functions in comparable
Proceedings; and
(c) to collect and receive any monies or other
property payable to or deliverable on any such claims, and to
distribute in accordance with Section 5.8 all amounts received with
respect to the claims of the Noteholders and of the Trustee on their
behalf; and any trustee, receiver, liquidator, custodian, or other
similar official is hereby authorized by each of the Noteholders to
make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the Noteholders,
to pay to the Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of
negligence or bad faith, all as provided in Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Noteholder any plan of reorganization, arrangement, adjustment, or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Noteholder in
any such Proceeding except, as aforesaid, to vote for the election of a
trustee or standby trustee or
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similar Person or to participate as a member of any committee of creditors.
In any Proceedings brought by the Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture
to which the Trustee shall be a party), the Trustee shall be held to
represent all the Holders of the Notes, and it shall not be necessary to make
any Holders of the Notes parties to any such Proceedings.
Section 5.7. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or
the Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any Proceeding
relating thereto, and any such Proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall be applied as set forth in Section 5.8.
Section 5.8. Application of Money Collected.
Notwithstanding any other provision of this Indenture,
money collected by the Trustee pursuant to Article Eleven of this Indenture
with respect to Rent, CRC Note payments, REO Net Income, or otherwise
pursuant to Article Eleven with respect to any CRC Lease, CRC Note, Property,
or REO Property shall be deposited in the Collection Account and shall be
distributed pursuant to Section 10.1 of this Indenture, subject to payment of
the Trustee's fees and expenses incurred in connection with such collection.
Any money collected by the Trustee pursuant to Sections 5.3, 5.4, 5.6 and
5.18 (except as otherwise expressly provided in Section 5.5) shall be
deposited in the Collection Account, shall be applied, to the extent of such
funds then available in the Collection Account, in the order specified below,
on each Payment Date, or, in connection with any full or partial liquidation
of the Trust Estate pursuant to this Article Five, at such earlier date or
dates fixed by the Trustee in the following order of priority:
FIRST: Unless otherwise paid out of the Collection Account
pursuant to Subsection 10.1(a) on such date, to the payment of all
taxes, assessments, or liens with respect to the Trust Estate that
are prior to the lien of this Indenture, except those taxes,
assessments, or liens as to which any sale under this Article shall
have been subject, and to the payment of all reasonable costs and
expenses of any sale of or
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other realization upon the Trust Estate pursuant to the provisions
of this Article, and to the payment of all Liquidation Expenses (if
any) due and unpaid or previously paid, all amounts due and unpaid
to the Trustee under Section 6.7, and all liabilities, and advances
incurred or made by the Trustee (including its reasonable
compensation) or its agents and counsel in connection with exercise
of any remedies, the sale or other realization upon the Trust Estate
and all sums payable to Noteholders pursuant to Section 5.14(c) and
Section 8.1;
SECOND: To the payment of interest previously due but unpaid
on the Notes;
THIRD: To the payment of interest due on the Notes;
FOURTH: To the payment of premium (if any) previously
due but unpaid on the Notes;
FIFTH: To the payment of premium due (if any) on the
Notes;
SIXTH: To the payment of principal of and any other
amounts then owing with respect to the Notes until the principal of
and any other amounts owing with respect to the Notes are paid in
full;
SEVENTH: Provided that the Aggregate Outstanding Amount
of the Notes and any other amounts owing with respect to the Notes,
any Mortgage Note Document and the CRC Leases (after giving effect
to the foregoing distributions) is zero, to the payment of all
remaining Administrative Expenses not paid pursuant to clause FIRST
above; and
EIGHTH: Provided that the Aggregate Outstanding Amount
of the Notes and any other amounts owing with respect to the Notes
(after giving effect to the foregoing distributions) is zero, and
all amounts due and owing pursuant to clause SEVENTH have been paid,
to the payment of any remaining funds to the Issuer or any other
Person legally entitled thereto.
Section 5.9. Limitation on Suits.
Subject to Section 5.10, no Holder of any Note shall have
any right to institute any Proceedings, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless:
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(a) the Holders of not less than 25% in Aggregate
Outstanding Amount of Notes shall have made written request to the
Trustee to institute Proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(b) such Holder or Holders have offered to the
Trustee reasonable indemnity (provided, however, that if such Holder
is an Institutional Investor with a capitalization at least equal to
double the indemnity, such Holder's unsecured agreement to indemnify
the Trustee and the Issuer in a form reasonably acceptable to the
Trustee shall be a sufficient indemnity for this purpose) against
the costs, expenses and liabilities to be incurred in compliance
with such request;
(c) the Trustee for 30 days after its receipt of such
notice, request, and offer of indemnity has failed to institute any
such Proceeding; and
(d) no direction inconsistent with such written
request has been given to the Trustee during such 30-day period by
the Majority Noteholders;
it being understood and intended that no one or more Holders of Notes shall
have any right in any manner whatever by virtue of, or by availing themselves
of, any provision of this Indenture to affect, disturb, or prejudice the
rights of any other Holders or to obtain or to seek to obtain priority or
preference over any other Holders (except as expressly provided in this
Indenture) or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders of
Notes.
In the event the Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, neither group constituting the Majority Noteholders, the Trustee in
its sole discretion may determine what action, if any, shall be taken,
notwithstanding any other provision of this Indenture. In such event, the
Trustee shall give notice of such conflicting or inconsistent requests to the
Holders of the Notes.
Section 5.10. Rights of Noteholders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision of this Indenture,
the right of any Holder of any Note to receive
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payment of the principal of and premium, if any, or interest on such Note, on
or after the respective Payment Dates expressed in such Note, or to institute
Proceedings for the enforcement of any such payment on or after such
respective dates, or to institute Proceedings for the enforcement of the
CRC-I Guaranty and/or the CRC-II Guaranty, shall not be impaired or affected
without the consent of such Holder, except as to a postponement of an
interest payment for a period not exceeding three years from its due date
consented to by Holders of no less than seventy-five percent (75%) of the
Aggregate Outstanding Amount of the Notes, and except that such Holder may
not institute any such Proceedings, if and to the extent that the institution
or prosecution thereof or the entry of judgment therein would, under
applicable law, result in the surrender, impairment, waiver, or loss of the
lien of this Indenture upon any property subject to such lien.
Section 5.11. Restoration of Rights and Remedies.
If the Trustee or any Noteholder has instituted any
Proceeding to enforce any right or remedy under this Indenture and such
Proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Noteholder, then and in every
such case the Issuer, the Trustee and the Noteholder shall, subject to any
determination in such Proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Noteholders shall continue as though no such Proceeding
had been instituted.
Section 5.12. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to
the Trustee or to the Noteholders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing by law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent or later assertion or employment of any other
appropriate right or remedy.
Section 5.13. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default
or an
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acquiescence therein. Every right and remedy given by this Article
Five or by law to the Trustee or to the Noteholders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Noteholders, as the case may be.
Section 5.14. Control by Noteholders.
(a) Notwithstanding any other provisions of this
Indenture, the Majority Noteholders shall have the right to direct the time,
method, and place of conducting any Proceeding for any remedy available to
the Trustee or exercising any right, remedy, trust or power conferred on the
Trustee (including, without limitation, directing the Trustee to engage
counsel of such Noteholders' choice at the direction of such Noteholders);
provided that:
(i) such direction shall not be in conflict with
any rule of law or with this Indenture, and
(ii) the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction;
provided, however, that, in accordance with Section 6.1, the Trustee
need not take any action that it reasonably determines might involve
it in liability, unless it receives a reasonable indemnity therefor
(provided, further, that if such Holder is an Institutional Investor
with a capitalization at least equal to double the indemnity, such
Holder's unsecured agreement to indemnify the Trustee in a form
reasonably acceptable to the Trustee shall be a sufficient indemnity
for this purpose).
(b) Whenever the Trustee has received any request or
direction from any Holder or group of Holders pursuant to the provisions of
this Article that requires, or would, with the passage of time, require, any
action by the Trustee, the Trustee shall so notify each Noteholder of the
substance of such request or direction.
(c) If the Majority Noteholders determine that the
enforcement or protection of their rights under the Notes or this Indenture
so require, such Holders may take such action as shall not be inconsistent
with the terms of this Indenture and as they shall deem necessary or
appropriate to enforce or protect such rights, and shall be entitled to
reimbursement from the Issuer for their reasonable out-of-pocket expenses
relating thereto, including, but not limited to, legal fees and expenses of
counsel to such Holders engaged for such purpose.
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Section 5.15. Waiver of Past Defaults.
Prior to the time a judgment or decree for payment of the
money due has been obtained by the Trustee, as provided in this Article, the
Majority Noteholders may on behalf of the Holders of all the Notes waive any
past Default and its consequences, except a Default:
(a) in the payment of the principal of or premium or
interest on any Note, excluding principal or interest which has
become due as a result of acceleration, or
(b) in respect of a covenant or provision hereof that
under Section 8.1 cannot be modified or amended without the waiver
and consent of the Holder of each Outstanding Note affected.
In the case of any such waiver, the Issuer, the Trustee
and the Noteholders shall be restored to their former positions and rights
hereunder. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereto.
Section 5.16. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of
any Note by its acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the foregoing provisions shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Noteholder, or group
of Noteholders, holding in the aggregate more than 10% in Aggregate
Outstanding Amount of the Notes, or to any suit instituted by any Noteholder
for the enforcement of the payment of the principal of or interest on any
Note on or after the Stated Maturity expressed in such Note in which suits
the Trustee or such Noteholder or Noteholders, as the case may be, do not
prevail.
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Section 5.17. Waiver of Stay, Extension or Usury Laws.
The Issuer covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Issuer (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay, or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
Section 5.18. Sale of Trust Estate.
(a) The power to effect any sale (a "Sale") of any
portion of the Trust Estate pursuant to Section 5.4 shall not be exhausted by
any one or more Sales as to any portion of such Trust Estate remaining unsold
but shall continue unimpaired until the entire Trust Estate shall have been
sold or all amounts payable on the Notes and any other amounts due under this
Indenture with respect thereto shall have been paid. The Trustee may, with
subsequent notice to the Noteholders, and shall upon direction of the
Majority Noteholders, from time to time postpone any Sale by public
announcement made at the time of and place of such Sale. The Trustee hereby
expressly waives its rights to any amount fixed by law as compensation for
any Sale.
(b) The Trustee may bid for and acquire any portion of
the Trust Estate in connection with a Sale thereof, and may pay all or part
of the purchase price by crediting against amounts owing on the Notes or
other amounts secured by this Indenture, all or part of the net proceeds of
such Sale. The Notes need not be produced in order to complete any such
Sale, or in order for the net proceeds of such Sale to be credited against
amounts owing on the Notes. The Trustee shall hold, lease, operate, manage,
or otherwise deal with any property so acquired in accordance with this
Indenture in any manner permitted by law; provided, however, that nothing in
this Indenture shall require the Trustee to so hold, lease, operate, manage
or otherwise deal with any Property if as a result of any such action, the
Trustee would be considered to hold title to, or be a "mortgagee-in-
possession" of, or to be an "owner" or "operator" of such Property within the
meaning of CERCLA or any comparable law, or if as a result of such action,
the Trustee would be subject to liability pursuant to any
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federal, state or local environmental statute, regulation or similar
requirement, including, but not limited to, CERCLA, the Resource Conservation
and Recovery Act, the Toxic Substances Control Act, or at common law.
(c) The Trustee shall execute and deliver an
appropriate instrument of conveyance transferring its interest in any portion
of the Trust Estate in connection with a Sale thereof. In addition, the
Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the
Issuer to transfer and convey its interest in any portion of the Trust Estate
in connection with a Sale thereof, and to take all action necessary to effect
such Sale. No purchaser or transferee at such a Sale shall be bound to
ascertain the Trustee's authority, inquire into the satisfaction of any
conditions precedent, or see to the application of any monies.
(d) The Trustee may, upon ten (10) Business Days' prior
written notice to the Issuer of the time and place of a proposed public sale
or the time after which a private sale may occur, with respect to the Trust
Estate or any part thereof which shall then be or shall thereafter come into
the possession, custody or control of the Trustee, the Noteholders or any of
their respective agents, sell, lease, assign or otherwise dispose of all or
any portion of such Trust Estate pursuant to Section 5.4, at such place or
places as the Trustee deems best and for cash or on credit or for immediate
or future delivery (without thereby assuming any credit risk), at public or
private sale, without demand of performance or notice of intention to effect
any such disposition or of time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived) and the Trustee
or any Noteholder or anyone else may be the purchaser, lessee, assignee or
recipient of any or all of the Trust Estate so disposed of at any public sale
(or, to the extent not prohibited by law, at any private sale), and
thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any right or equity of redemption (statutory or
otherwise) of the Issuer or any of its Affiliates, any such demand, notice or
right and equity being hereby expressly waived and released. The Trustee
may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the time
and place fixed for the sale, and such sale may be made at any time or place
to which the same may be so adjourned. The foregoing shall not limit in any
way Subsection 5.4(a)(ii).
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(e) The Trustee and the Noteholders shall incur no
liability as a result of the sale of the Trust Estate, or any part thereof,
at any private sale pursuant to this Section 5.18 conducted in a commercially
reasonable manner. The Issuer hereby waives any claims against the Trustee
or any Noteholder arising by reason of the fact that the price at which the
Trust Estate may have been sold at such a private sale was less than the
price that might have been obtained at a public sale or was less than the
aggregate amount of the obligations secured by this Indenture.
Section 5.19. Action on Notes.
The Trustee's right to seek and recover judgment on the
Notes or under this Indenture shall not be affected by the seeking or
obtaining of or application for any other relief under or with respect to
this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Trustee or the Noteholders shall be impaired by the recovery
of any judgment by the Trustee against the Issuer, or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon
any of the assets of the Issuer.
ARTICLE SIX
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities.
(a) (i) The Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee;
(ii) in the absence of bad faith on its part and
of actual knowledge otherwise by a Responsible Officer, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, including, without limitation, certificates as to
factual matters provided by Foodmaker; provided, however, that in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture
and shall promptly notify
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the Person delivering the same if such certificate or opinion does
not conform; and if a corrected form shall not have been delivered
to the Trustee within fifteen (15) days after such notice from the
Trustee, the Trustee shall so notify the Noteholders; and
(iii) following an Event of Default and
acceleration of the indebtedness incurred hereby, the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this Subsection 6.1(b) shall not be construed
to limit the effect of Subsection 6.1(a);
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it
shall be proven that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders as may be required
by the terms hereof relating to the time, method, and place of
conducting any Proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture; and
(iv) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any
extraordinary financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is
not reasonably assured to it (provided, however, that if a Holder is
an Institutional Investor having a capitalization of at least double
the indemnity requested, such Holder's unsecured agreement to
indemnify the Trustee in a form reasonably
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acceptable to the Trustee shall be a sufficient indemnity for such
purpose) unless such risk or liability is incidental to its required
or ordinary services under this Indenture prior to the occurrence of
an Event of Default; provided, however, that the Trustee shall
promptly give written notice to the Noteholders of any decision by
it not to expend or risk its funds or incur financial liability as
permitted hereby.
(c) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 6.1.
(d) The Trustee shall not sell, transfer, exchange or
otherwise dispose of, or enter into or engage in any business with respect
to, any part of the Trust Estate, except as expressly permitted by this
Indenture.
Section 6.2. Notice of Default.
Promptly (and in no event later than fifteen (15)
Business Days) after the occurrence of any Default or Event of Default known
to a Responsible Officer of the Trustee or after declaration of acceleration
has been made pursuant to Section 5.2, the Trustee shall transmit by
facsimile transmission with a copy thereof delivered by overnight courier for
next-day delivery to the Rating Agencies (so long as any of the Notes are
rated by the Rating Agencies) and to all Noteholders (in the manner provided
for in Section 12.5), notice of all Defaults hereunder known to a Responsible
Officer of the Trustee to have occurred and notice of cure or waiver thereof,
and notice of any acceleration or rescission of acceleration of the Notes.
Section 6.3. Certain Rights of Trustee.
Except as otherwise provided in Section 6.1:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, note, debenture, Issuer Order, Issuer Request,
accounting report, Payment Date Statement, certificate as to factual
matters provided by Foodmaker, or other paper or document believed
by it to be genuine and to have been signed or presented by the
proper party or parties and the Trustee shall have no duty hereunder
to
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independently verify whether any person is an Authorized Officer;
(b) any request or direction of the Issuer mentioned
herein shall be sufficiently evidenced by an Issuer Request or
Issuer Order;
(c) whenever in the administration of this Indenture
the Trustee shall (i) deem it desirable that a matter be proved or
established prior to taking, suffering, or omitting any action
hereunder, the Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part and of
actual knowledge otherwise by a Responsible Officer, rely upon an
Officer's Certificate or a certificate as to factual matters
provided by Foodmaker, or (ii) be required to determine the value of
any collateral or funds hereunder, the Trustee may, in the absence
of bad faith on its part and of actual knowledge by a Responsible
Officer, rely on reports of nationally recognized Independent
accountants or other Independent Persons qualified to provide the
information required to make such determination or a certificate as
to factual matters provided by Foodmaker where permitted hereunder;
(d) as a condition to the taking or omitting of any
action by it hereunder, the Trustee may first consult with the
Noteholders or with the Noteholders' Counsel or with its own
counsel, and instructions of the Noteholders or the advice of such
counsel or any Opinion of Independent Counsel shall be full and
complete authorization and protection in respect of any action taken
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, debenture, note, certificate as
to factual matters provided by Foodmaker, or other paper or document
nor shall it be obligated to analyze or verify any calculation
contained in any such documents, but the Trustee, in its discretion,
may, and upon written direction by the Majority Noteholders shall,
make such further inquiry or investigation into such facts or
matters as it may see fit or as it shall be directed, and, if the
Trustee shall determine or be directed to make such further inquiry
or investigation, it shall be entitled, on reasonable prior notice
to the Issuer to examine the books, records, and premises of the
Issuer personally or by agent or attorney during the Issuer's normal
business hours; provided, that the Trustee shall
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hold, and shall cause its agents to hold, in confidence all such
information, except to the extent disclosure may be made to the
Noteholders or be required by law or any regulatory authority having
jurisdiction over any Noteholder and except to the extent that the
Trustee, in its sole judgment, may determine that such disclosure is
consistent with its obligations hereunder;
(f) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents (including servicers and independent
contractors) or attorneys; provided, however, that the Trustee shall
select such agents or attorneys in good faith and with due care and
that any agreement with an agent or attorney shall provide for due
care by such agent or attorney in respect of the Noteholders;
(g) to the extent permitted by applicable law, the
Trustee shall not be required to give any note or surety in respect
of the execution of this Indenture or otherwise;
(h) in the absence of actual knowledge thereof by a
Responsible Officer, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default or of any other fact
or circumstances upon the happening of which the Trustee may be
requested to take action hereunder; provided, however, that the
Trustee shall be deemed to have knowledge of any Default or Event of
Default arising out of a failure by the Issuer to make any payment
or deposit required to be made by or to the Trustee under this
Indenture or any failure of Foodmaker to deliver the annual
certificates required to be provided by Foodmaker as provided in the
CRC Leases; and
(i) the Trustee shall have no liability for losses on
investments made in accordance with this Indenture or any investment
instructions it receives from the proper party in accordance with
this Indenture; provided, however, that the foregoing shall not
excuse the institution acting as Trustee for any liability for any
such investments as to which such institution is an obligor acting
in its individual commercial capacity.
Section 6.4. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, other
than the certificate of authentication thereon, shall be taken as the
statements of the Issuer, and the Trustee
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assumes no responsibility for their correctness. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the sufficiency of the Trust
Estate. Except as specifically provided herein, the Trustee shall not be
accountable for the use or application of the Notes or proceeds of the Notes.
Section 6.5. May Hold Notes.
The institution acting as Trustee, in its individual or
any other capacity, may become the owner or pledgee of Notes and may
otherwise deal with the Issuer or any Affiliate thereof, with the same rights
it would have if it were not the Trustee, the Note Registrar or any other
agent.
Section 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder shall be
segregated from other funds held by the Trustee in trust. The Trustee shall
be under no liability for interest on any money received by it hereunder
except as otherwise agreed upon and except to the extent of income or other
gain on investments that are deposits in or certificates of deposit of the
institution acting as Trustee, acting not as Trustee but in its individual
commercial capacity, and income or other gain actually received by the
Trustee.
Section 6.7. Compensation and Reimbursement.
The Issuer agrees:
(a) to pay or cause the Lessee to pay the Trustee (i)
on the Closing Date, an agreed amount, and (ii) on each Installment
Payment Date (A) reasonable compensation for all services rendered
by it hereunder (including wire transfers of funds, any transfer of
Notes, regular periodic reporting as required hereunder, review of
loan files received on the Closing Date, normal servicing
obligations hereunder (including any site inspections), any trading
fees relating to Eligible Investments, any initial costs of setting
up any necessary computer operations in respect of its reporting and
accounting obligations hereunder and filing of UCC continuation
statements), and which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust, and (B) a fee in the amount payable on such
Installment Payment Date as set forth on the attached Schedule C, to
the extent not paid from funds
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held in the Administrative Expenses Account pursuant to Section
9.6(b);
(b) except as otherwise expressly provided herein, to
reimburse or cause the Lessee to reimburse the Trustee in a timely
manner upon its request for all reasonable out-of-pocket expenses,
disbursements, and advances incurred or made by the Trustee in
accordance with any provision of this Indenture or any Mortgage Note
Document (including the reasonable compensation, fees, and the
expenses and disbursements of its agents and counsel) and not
included in the compensation described in Section 6.7(a) and to the
extent not paid from funds held in the Administrative Expenses
Account pursuant to Section 9.6(b), except any such expense,
disbursement, or advance as may be attributable to its negligence,
willful misconduct, or bad faith; and
(c) to indemnify Trustee for, and to hold it harmless
against, any loss, liability, or expense incurred without
negligence, willful misconduct, or bad faith on its part, arising
out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder and to the
extent not paid from funds held in the Administrative Expenses
Account pursuant to Section 9.6(b).
The Trustee shall have a lien on the Trust Estate ranking
junior to that of the Notes upon all property and funds held or collected as
part of the Trust Estate by the Trustee in its capacity as such securing the
payment of the foregoing amounts; provided, however, that the Trustee shall
not institute any proceeding for enforcement of such lien except after
payment in full of all of the Notes. The Trustee agrees not to cause the
filing of a petition in bankruptcy against the Issuer for the non-payment to
the Trustee of any amounts provided by this Section 6.7 until at least 91
days after the payment in full of all Notes issued under this Indenture.
Section 6.8. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a corporation organized and doing business under the laws of the
United States of America or of any state, authorized under such laws to
exercise corporate trust powers, having, or being a member of a bank holding
company having, a combined capital and surplus of at least
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$100,000,000, subject to supervision or examination by federal or state
banking authority. Such standards for eligibility of the Trustee shall not
be modified without the Issuer's prior written consent. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 6.8, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article; provided, however, that if the
Majority Noteholders so direct, the Trustee shall continue as Trustee
notwithstanding such ineligibility.
Section 6.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.10. Any (i) resignation or removal of the Trustee,
(ii) appointment of a successor Trustee and (iii) acceptance of such
appointment by such successor Trustee, in each case under this Article Six,
shall be deemed to be without further notice or act.
(b) The Trustee may resign at any time by giving
written notice thereof to the Issuer and the Noteholders. Upon receiving
such notice of resignation, the Issuer shall promptly appoint a successor
Trustee or Trustees by written instrument, in duplicate, executed by two
Authorized Officers of the Issuer on behalf of the Issuer, one copy of which
shall be delivered to the Trustee so resigning and one copy to the successor
Trustee or Trustees, together with a copy to each Noteholder; provided,
however, that such successor Trustee shall be appointed only upon the written
consent of the Majority Noteholders. If no successor Trustee shall have been
appointed and an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 60 days after the giving of such
notice of resignation, the resigning Trustee or any Noteholder (who has been
a Holder of Notes for at least six months) may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by the
Majority Noteholders by written notice delivered to the Trustee and to the
Issuer. On or after the receipt by the Trustee of such written notice, all
authority and power of the Trustee under this Indenture whether with respect
to the Mortgage Note Documents or otherwise, shall pass to and be vested in
the successor Trustee appointed pursuant to and
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under this Section; and, without limitation, the successor Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Trustee, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of the CRC Notes and related
documents, or otherwise. The Trustee agrees to cooperate with the successor
Trustee in effecting the termination of the Trustee's responsibilities and
rights hereunder, including, without limitation, the transfer to the
successor Trustee for administration by it of any cash amounts which are
thereafter received by the Trustee with respect to the Trust Estate. Removal
or resignation hereunder will not release the Trustee from any liability or
obligation that will have arisen or may thereafter arise as a result of any
acts or omissions by the Trustee prior to such removal or resignation
constituting wilful misconduct, bad faith, or negligence in the performance
of duties hereunder.
(d) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Trustee
for any cause, the Trustee and the Issuer shall promptly notify the
Noteholders of such resignation, removal or inability to perform with respect
to the Trustee and propose the appointment of a successor Trustee, subject to
the consent of the Majority Noteholders (which notice shall (i) specify the
proposed successor Trustee and (ii) state that such consent shall be deemed
to have been given upon passage of thirty (30) days from the date of mailing
of notice of such proposed appointment by the Issuer to the Noteholders if no
response to the contrary has been received). If no successor Trustee shall
have been so appointed by the Issuer or the Noteholders and shall have
accepted appointment in the manner hereinafter provided, any Noteholder may,
on behalf of such Noteholder and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(e) The Trustee and the Issuer shall give prompt notice
of each resignation and each removal of the Trustee and each appointment of a
successor Trustee by giving written notice of such event to the Noteholders,
and, if the Notes are then rated by the Rating Agencies, to the Rating
Agencies. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
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Section 6.10. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Issuer and the retiring Trustee an
instrument accepting such appointment and making the representations set
forth in Section 6.13 hereof, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts, duties, and obligations of the retiring Trustee under this
Indenture but, on request of the Issuer or the successor Trustee, such
retiring Trustee shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers, and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 6.7. Upon request
of any such successor Trustee, the Issuer shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers, and trusts.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 6.10, the Issuer shall mail notice thereof to the
Noteholders.
No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor shall be qualified and eligible
under this Article Six.
Section 6.11. Merger, Conversion, Consolidation or Succession to Business of
Trustee.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder provided such corporation shall be otherwise qualified and
eligible under this Article Six, without the execution or filing of any paper
or any further act on the part of any of the parties hereto or thereto. In
case any Notes have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion, or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
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Section 6.12. Co-Trustees and Separate Trustee.
At any time or times, if the Trustee deems it to be
reasonably necessary, for the purpose of meeting the legal requirements of
any jurisdiction in which any part of the Trust Estate may at the time be
located, the Trustee shall have power to appoint, and, upon the written
request of the Majority Noteholders, shall so appoint, one or more Persons
(who shall not be Noteholders) either to act as co-trustee, jointly with the
Trustee, of all or any part of the Trust Estate, or to act as separate
trustees of any such property, in either case with such powers as may be
provided in the instrument of appointment which shall expressly designate the
property affected and the capacity of the appointee as either a co-trustee or
separate trustee, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary, subject to
the other provisions of this Section 6.12. The Issuer shall be deemed to
have joined in any such appointment by virtue of the execution of this
Indenture. The Issuer agrees to pay any reasonable fees and expenses in
connection with such appointment.
Should any written instrument from the Issuer be required
by any co-trustee or separate trustee so appointed for more fully confirming
to such co-trustee or separate trustee such property, title, right or power,
any and all such instruments shall, on request, be executed, acknowledged and
delivered by the Issuer and the Issuer hereby irrevocably designates the
Trustee to so act.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms:
(a) the Notes shall be authenticated and delivered
and all rights, powers, duties and obligations hereunder in respect
of the custody of securities, cash and other personal property held
by, or required to be deposited or pledged with, the Trustee
hereunder shall be exercised solely by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by the appointment of a co-trustee or separate trustee shall
be conferred or imposed upon and exercised or performed by the
Trustee or by the Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any
law of any jurisdiction in
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which any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee; provided, however,
that such co-trustee or separate trustee may exercise and perform
such rights, powers, duties and obligations only to the extent
necessary to comply with applicable law;
(c) the Trustee at any time, by an instrument in
writing executed by it, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section 6.12;
upon the written request of the Trustee, the Issuer shall join with
the Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignations or removal; a successor to any co-trustee or separate
trustee which has resigned or has been removed may be appointed in
the manner provided in this Section 6.12;
(d) no co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the Trustee
hereunder;
(e) the Trustee shall not be liable by reason of any
act or omission of a co-trustee or separate trustee selected, if
selected by the Trustee, in good faith and with due care; and
(f) any Act of Noteholders delivered to the Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
The appointment of a co-trustee shall not relieve the
Trustee of its responsibilities hereunder.
Section 6.13. Representations and Warranties of Trustee.
The Trustee represents and warrants that:
(a) The Trustee has been duly organized, and is validly
existing and in good standing as a Massachusetts banking corporation and has
the power to conduct business and affairs as a trustee.
(b) The Trustee has the corporate power and authority
to perform the duties and obligations of Trustee under this Indenture,
including, without limitation, the power and authority to hold the CRC Notes
and the other Mortgage Note Documents; the power and authority to
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establish and maintain the Administrative Expenses Account, Closing Costs
Account, Collection Account, Equity Collection Account, Construction Account,
Sinking Fund Account and, if necessary, to establish and maintain the
Proceeds Account, and to hold funds in and disburse funds from the
Administrative Expenses Account, Closing Costs Account, Collection Account,
Equity Collection Account, the Construction Account, Sinking Fund Account
and, if necessary, the Proceeds Account, as contemplated herein. The Trustee
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Indenture and all of the documents required pursuant
hereto and thereto. Upon execution and delivery by the Issuer, this
Indenture will constitute the legal, valid and binding obligation of the
Trustee enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights generally from time
to time in effect.
(c) Upon execution and delivery to the Trustee by the
Issuer and authentication and delivery to the Noteholders by the Trustee, the
Notes will have been duly and validly authenticated and delivered by the
Trustee on behalf of the Issuer.
(d) No consent, approval, authorization or order of,
giving of notice to, registration with, or taking of any other action with
respect to, any court or governmental agency or body is required for the
execution, delivery or performance by the Trustee of the Indenture the
authentication by the Trustee of the Notes, or the consummation by the
Trustee of the transactions provided for in this Indenture except such as
have been made or obtained, if any.
(e) The execution and delivery by the Trustee of this
Indenture and compliance with the terms hereof in its capacity as Trustee and
the authentication by the Trustee of the Notes will not, to its best
knowledge after diligent inquiry, (i) conflict with or violate any term or
provision of the charter or bylaws of the Trustee or any statute, order or
regulation applicable to the Trustee of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Trustee, or (ii) conflict with, result in a breach, violation or the
acceleration of or constitute a default under the terms of any material
indenture or other agreement or instrument to which the Trustee is a party or
by which it is bound.
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(f) No actions, proceedings or investigations are
pending or, to the best of its knowledge, threatened before any court,
administrative agency or other tribunal with respect to the Trustee (and no
basis therefor exists), which would affect the existence of the Trustee or in
any way contesting or affecting the validity or enforceability of this
Indenture, or the Notes or contesting the powers of the Trustee or its
authority to enter into and perform its obligations under this Indenture as
Trustee.
ARTICLE SEVEN
COVENANTS
Section 7.1. Payment of Principal and Interest.
The Issuer will duly and punctually pay the principal of
and premium, if any, and interest on, and all deposits required under, the
Notes in accordance with the terms of the Notes and this Indenture. Amounts
properly withheld under the Code, and under any laws of any state or other
jurisdiction by any Person from a payment to any Noteholder of interest or
principal shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
Section 7.2. Appointment of Agent.
The Issuer hereby irrevocably appoints the Trustee, at
its Corporate Trustee Office, to serve as the Issuer's agent to whom (i)
Notes may be presented or surrendered for payment, (ii) Notes may be
surrendered for registration of transfer or exchange, and (iii) notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may
be served.
Section 7.3. Money for Note Payments.
All payments of amounts due and payable with respect to
any Notes that are to be made from amounts withdrawn from the Collection
Account or the Sinking Fund Account shall be made on behalf of the Issuer by
the Trustee as provided herein.
Section 7.4. Existence of Issuer.
The Issuer will maintain in full force and effect its
existence, rights and franchises as a corporation, organized under the laws
of the State of Delaware, separate
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and apart from any of its Affiliates, and will obtain and preserve its
qualification to do business as a foreign corporation, in each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and enforceability of this Indenture, the Notes or the Trust Estate. The
Issuer shall not amend its articles of incorporation or by-laws without the
written consent of the Majority Noteholders. The Issuer at all times will be
operated in accordance with the provisions of its articles of incorporation,
by-laws and any laws or regulations applicable to it, and shall observe all
corporate formalities, including keeping its own separate books and records,
having its own bank accounts and keeping its funds separate from the funds of
its shareholders, holding periodic meetings of its directors and
shareholders, and having officers that (when acting in their capacity as
officers of the Issuer) act in such corporation's best interests, and is able
to fund from its own assets all of its activities and expenses. The charter
and by-laws of the Issuer provide that a unanimous vote of all directors of
the Issuer is necessary for (a) any merger or consolidation, (b) any
voluntary bankruptcy filing and any declaration of insolvency for any purpose
for the Issuer, or (d) any amendment of the Issuer's charter, or of its
by-laws if such amendment pertains to the matters set forth in this Section
7.4, Section 7.8 or Section 7.11.
Section 7.5. Protection of Trust Estate.
(a) The Issuer shall from time to time execute and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and
other instruments, and shall take such other action as may be necessary or,
upon request of the Trustee or the Majority Noteholders, advisable to:
(i) Grant more effectively all or any portion of
the Trust Estate;
(ii) maintain or preserve the lien (and the
priority thereof) of this Indenture or to carry out more effectively
the purposes hereof;
(iii) perfect, publish notice of, or protect the
validity of any Grant made or intended to be made by this Indenture;
(iv) enforce any of the Mortgage Note Documents,
Eligible Investments, or other
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instruments included in the Trust Estate, or the CRC Leases;
(v) preserve and defend title to the Trust Estate
and the rights therein of the Trustee and the Noteholders in such
Trust Estate against the claims of all Persons and parties; and
(vi) pay any and all taxes levied or assessed upon
all or any part of the Trust Estate.
The Issuer hereby irrevocably designates the Trustee its agent and attorney-
in-fact to execute, to the extent not prohibited by applicable law, any
financing statements, continuation statements, or other instruments or
documents required pursuant to this Section 7.5 if such Issuer fails to do
so.
(b) The Trustee shall not (i) remove any portion of the
Trust Estate that consists of money or is evidenced by an instrument,
certificate, or other writing including, without limitation, the CRC Notes,
(A) from the jurisdiction in which it was held at the date the most recent
Opinion of Independent Counsel was delivered pursuant to Section 7.6 (or from
the jurisdiction in which it was held as described in the Opinion of
Independent Counsel, delivered at the Closing Date), if no Opinion of
Independent Counsel has yet been delivered pursuant to Section 7.6) or (B)
from the possession of the Person who held it on such date or (ii) cause or
permit ownership or the pledge of any portion of the Trust Estate to be
recorded on the books of a Person (A) located in a different jurisdiction
from the jurisdiction in which such ownership or pledge was recorded at such
date or (B) other than the Person on whose books such ownership or pledge was
recorded at such date, unless the Trustee shall have first received an
Opinion of Independent Counsel to the effect that the lien and perfected
first priority security interest created by this Indenture with respect to
such property will continue to be maintained after giving effect to such
action or actions.
(c) The Issuer shall pay or cause to be paid any taxes
levied on the Issuer on account of the Issuer's ownership of the Trust
Estate.
Section 7.6. Opinions as to Trust Estate.
On or before December 31 in the third calendar year
following the Closing Date and on December 31 in each third year thereafter,
the Issuer shall furnish to the Trustee an Opinion of Independent Counsel
either (i) stating that, in
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the opinion of such counsel, such action has been taken with respect to the
recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents as is
necessary to maintain the lien and perfected first priority security interest
created by this Indenture with respect to the Trust Estate and reciting the
details of such action, or (ii) stating that, in the opinion of such counsel,
no such action is necessary to maintain such lien and perfected first
priority security interest. Such Opinion of Independent Counsel shall also
describe the recording, filing, re-recording, and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents that
will, in the opinion of such counsel, be required to maintain the lien and
perfected first priority security interest of this Indenture with respect to
the Trust Estate. The fees and expenses incurred in connection with each
such Opinion of Independent Counsel shall be Administrative Expenses payable
in accordance with the terms of this Indenture, and any such fees and
expenses not so paid shall be paid by the Trustee, to the extent funds are
available from the Trust Estate or are otherwise provided to the Trustee, on
behalf of the Issuer subject to the Trustee's right of reimbursement therefor
pursuant to Section 6.7.
Section 7.7. Performance of Obligations.
The Issuer shall not take any action, and will use its
best efforts not to permit any action to be taken by others, that would
release any Person from any of such Person's covenants or obligations under
the Mortgage Note Documents or the CRC Leases or under any instrument
included in the Trust Estate or which would result in the amendment,
hypothecation, subordination, termination, or discharge of, or impair the
validity or effectiveness of, any of the Mortgage Note Documents, the CRC
Leases or any such instrument, except as provided in this Indenture or such
Mortgage Note Document, the CRC Leases or other instrument.
Section 7.8. Certain Negative Covenants.
(a) From and after the Closing Date, the Issuer will
not:
(i) sell, transfer, exchange, or otherwise
dispose of, or pledge, mortgage, hypothecate, or otherwise encumber
(or permit such to occur or suffer such to exist), any part of the
Trust Estate, except as expressly permitted by this Indenture;
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(ii) claim any credit on, or make any deduction
from, the principal or interest payable with respect to the Notes
(other than the amounts required to be withheld in accordance with
the Code) or assert any claim against any present or future
Noteholder, by reason of the payment of any taxes levied or assessed
upon any part of the Trust Estate;
(iii) incur or have outstanding any indebtedness,
or incur, assume, or guarantee the indebtedness of any Person
(including, without limitation, pursuant to any purchase or
repurchase agreement, any indemnity, or any keep-well, take-or-pay,
through-put, or other arrangement having the effect of assuring or
holding harmless any third Person against loss with respect to any
obligation of such other Person) other than pursuant to this
Indenture, unless such indebtedness is an invoice, statement of
account, check, work request, purchase order or other similar
document representing expenses relating to activities of the Issuer
in accordance with Section 7.11;
(iv) cause, permit or acquiesce in any sale,
transfer, assignment or other disposition of the interests of the
shareholders in the Issuer which would result in a transfer,
cumulatively, of 49% or more of the shareholder interests in Issuer;
(v) (A) permit the validity or effectiveness of
this Indenture or any Grant hereunder to be impaired, or permit the
lien of this Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to this Indenture or the
Notes or any document executed pursuant hereto or thereto, except as
may be expressly permitted hereby or thereby; (B) permit any lien,
charge, adverse claim, security interest, mortgage or other
encumbrance (other than the lien of this Indenture and any lien for
taxes not yet due and payable) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof,
any interest therein or the proceeds thereof, or (C) take any action
that would permit the lien of this Indenture not to constitute a
valid first priority perfected security interest in the Trust
Estate;
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(vi) employ any employees; or
(vii) enter into or permit to exist, directly or
indirectly, any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering
of any service) with any Affiliate of the Issuer, except for
transactions in the ordinary course of the business of the Issuer
and upon fair and commercially reasonable terms which are no less
favorable to the Issuer than would be obtained in a comparable
arm's-length transaction with a Person that is not such an
Affiliate.
(b) The Issuer shall not exercise any right of the
lessor under either of the CRC Leases (including, without limitation, any
right to make any election or determination or give any consent, direction,
or waiver under such CRC Lease) without the prior written approval of the
Trustee, all of which rights are assigned to the Trustee by virtue of the CRC
Lease Assignments, including the collateral assignments thereof by the Issuer
to the Trustee. To the extent any such consent may not be unreasonably
withheld by the applicable Borrower under the applicable CRC Lease, the
Trustee and the Noteholders shall be bound by such reasonableness standard.
Section 7.9. Statement as to Compliance.
Promptly upon request by the Trustee or any Noteholder,
the Issuer shall deliver to the Trustee an Officer's Certificate stating, as
to each signer thereof, that:
(a) a review of the activities of the Issuer during
the preceding six-month period and of the Issuer's performance under
this Indenture has been made under his or her supervision; and
(b) to the best of his or her knowledge, based on
such review, the Issuer has fulfilled all of its obligations under
this Indenture and the Mortgage Note Documents throughout such
six-month period has complied fully with the terms and provisions
hereof and no Default exists hereunder or thereunder, or, if there
has or had been a Default during such quarter, specifying each such
Default known to him and the nature and status thereof.
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Section 7.10. Issuer May Not Consolidate, Etc.
Except as expressly permitted by Sections 7.11, the
Issuer shall not consolidate or merge with or into any other Person or convey
or transfer its properties and assets to any Person.
Section 7.11. No Other Business.
The Issuer shall not engage in any business or activity
other than: (i) issuing and selling the Notes pursuant to this Indenture and
acquiring, owning, and pledging the Trust Estate in accordance with the terms
of this Indenture; (ii) issuing or incurring indebtedness permitted by
Section 7.8(a)(iii); and (iii) engaging in any other activities which are
necessary, suitable, or convenient to accomplish the matters set forth in
this Section 7.11 or are incidental thereto or connected therewith. The
organizational documents of the Issuer provide that the Issuer is restricted
to engaging only in such business or activities.
Section 7.12. No Purchase of Notes.
The Issuer may not acquire any Notes.
Section 7.13. Investment Company Act.
The Issuer shall at all times while the Notes are
outstanding take all actions necessary to ensure that the Issuer is at all
times exempt from and need not register as an "investment company" under the
Investment Company Act, and shall at no time allow itself to be controlled by
an "investment company" as defined in the Investment Company Act.
Section 7.14. Notice of Event of Default.
Upon the occurrence of any Default or Event of Default,
the Issuer shall promptly notify the Trustee thereof in writing.
Section 7.15. Use of Proceeds.
The Issuer shall use the proceeds from the sale and
issuance of the Notes solely for the purposes set forth in Section 3.4. The
Issuer will not use any of the proceeds from the sale and issuance of the
Notes for the purchase of any security that constitutes "margin stock" or
"margin securities" within the meaning of Regulations G, T, U or X
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of the Board of Governors of the Federal Reserve System (or any successor
regulations thereto).
Section 7.16. Books and Records.
The Issuer shall keep accurate books and records
regarding the Notes and the Trust Estate and its business affairs and
transactions.
Section 7.17. Consents, Waivers and Modifications of Other Agreements.
Without the prior written consent of Majority Noteholders
or obtaining an Opinion of Independent Counsel and Accountants that a
requested action should have no material adverse effect on the Noteholders,
neither the Issuer nor the Trustee will consent to, waive or enter into or
acquiesce in or consent to any amendment, supplement or other modification of
any of the terms or provisions contained in, or applicable to, any Mortgage
Note Document, or CRC Lease or the partnership agreement or charter documents
of any Borrower or the charter documents of any General Partner. In
addition, neither the Issuer nor the Trustee will consent to any material
amendment, supplement or other modification of any of the terms or provisions
contained in, or applicable to, any CRC Note or any of the payment terms
thereof without the prior written consent of the Lessee. At the cost of the
Issuer, the Issuer shall provide to the Trustee and the Noteholders a copy of
any such proposed amendment, supplement or other modification, as applicable,
promptly upon receipt thereof by the Issuer. The fees and expenses incurred
in connection with each such advice letter of Independent counsel shall be
Administrative Expenses payable in accordance with the terms of this
Indenture, and any such fees and expenses not so paid shall be paid by the
Trustee, to the extent funds are available from the Trust Estate or are
otherwise provided to the Trustee, on behalf of the Issuer subject to the
Trustee's right of reimbursement therefor pursuant to Section 6.7. At the
cost of the Issuer, the Issuer shall provide to the Trustee and the
Noteholders a copy of the executed amendment, supplement or modification as
soon as practicable after its execution.
Section 7.18. Grant of Trust Estate.
The Grant of the Trust Estate hereby made shall be valid
and binding from and after the time of the delivery by the Trustee of the
first Note authenticated and delivered under this Indenture. All present and
future property of the Issuer subject to, or intended to be subject to, the
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Grant of the Trust Estate hereby made shall immediately be subject to the
lien created by such Grant and the obligation to perform the contractual
provisions hereunder shall have priority over any and all other obligations
and liabilities of the Issuer, and the lien created by such Grant shall be
valid and binding as against all parties having claims of any kind in tort,
contract, or otherwise against the Issuer irrespective of whether such
parties have notice thereof.
Section 7.19. Rent to be Paid Over to Trustee.
The Issuer shall cause the Rent to be paid directly to
the Trustee. If, notwithstanding these arrangements, the Issuer receives any
Rent, the Issuer shall immediately pay over the same to the Trustee and if
the Issuer is for any reason unable immediately to pay over such Rent to the
Trustee, the Issuer shall hold all such rent in trust for the Trustee and
shall pay over such Rent to the Trustee at the earliest possible time that
the Issuer is able to do so.
Section 7.20. Fiscal Year End.
The Issuer will use the calendar year as its fiscal year
and will not change its fiscal year.
Section 7.21. Inspection.
The Issuer shall permit and shall cause each Borrower to
permit the Trustee, any Noteholder, or any authorized representative
designated by any thereof, to visit, have access to and inspect, audit,
appraise and verify any information in the possession of the Issuer or such
Borrower with respect to, the Issuer, the Borrower, or any of the Properties,
including any related financial, accounting and other files and records, and
to make copies and take extracts therefrom, and to discuss the Issuer's or
any Borrower's affairs, finances and business with its respective officers,
directors, partners, employees and public accountants, at such reasonable
times during normal business hours and as often as may be reasonably
requested. The Issuer shall, at the request of the Trustee or any
Noteholder, take all steps necessary to facilitate any such inspection,
audit, appraisal or verification and, without limiting the generality of the
foregoing, shall use its best efforts to cause the Issuer's or any
Borrower's, as the case may be, officers, directors, partners, employees and
public accountants to cooperate in this regard.
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Section 7.22. Access to Accountants.
Upon request by the Trustee or any Noteholder, the Issuer
shall use its best efforts to cause its public accountants to deliver to the
Trustee (and upon receipt the Trustee shall deliver to each Noteholder) a
letter stating that the Trustee and the Noteholders are entitled to rely on
the financial statements (if any), reports and other material produced by
such accountants for the Issuer or any other Person in connection with this
Indenture or the Trust Estate Granted hereunder. The Issuer authorizes its
public accountants to discuss the financial condition of the Issuer and the
Properties with the Trustee and each Noteholder upon reasonable notice to the
Issuer and such accountants and authorizes such accountants to disclose to
the Trustee and the Noteholders any and all information of any kind that such
accountants may have with respect to the financial condition of the Issuer
and the Properties or either thereof. The Trustee and the Noteholders may
make such requests and take such action permitted under this Section 7.22 as
often as they may deem necessary including, without limitation, any time the
Issuer changes its public accountants.
Section 7.23. Provision of Rule 144A Information.
During the period beginning on the original issuance date
of the Notes and ending on the date that is three years from such date, the
Issuer covenants and agrees that it shall, during any period in which the
Lessee or the Issuer is not subject to Section 13 or 15(d) under the Exchange
Act, make available to any Holder or beneficial holder of Notes which
continue to be Restricted Notes in connection with any sale thereof, and make
available to any prospective purchaser of Notes from such Holder or
beneficial holder, the information required pursuant to Rule 144A(d)(4) under
the Securities Act upon the request of such Holder or beneficial holder of
the Notes. The Issuer shall take such further action as any Holder or
beneficial holder of such Notes may reasonably request, all to the extent
required from time to time to enable such Holder or beneficial holder to sell
its Notes without registration under the Securities Act within the limitation
of the exemption provided by Rule 144A, as such rule may be amended from time
to time. Upon the request of any Holder or any beneficial holder of the
Notes, the Issuer shall deliver to such Holder or beneficial holder a written
statement as to whether it has complied with such requirements.
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Section 7.24. Maintenance of Office.
The Issuer shall maintain its chief executive office and
principal place of business at One Financial Center, Boston, Massachusetts,
or at such other place in the United States of America as the Issuer shall
designate upon 60 days' prior notice to the Trustee and the Noteholders as
provided in Section 12.5 hereof.
Section 7.25. Copies of Notices.
The Issuer shall promptly send duplicate copies to the
Trustee of all notices furnished to the Issuer or given by it to any of the
Lessee, or any Borrower.
Section 7.26. Performance By Foodmaker.
To the extent Foodmaker performs any obligations of the
Issuer hereunder which are capable of being performed by Foodmaker, such
obligations of the Issuer shall be deemed satisfied.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures.
(a) The Issuer, when authorized by a resolution of its
Board of Directors, and the Trustee may amend or supplement this Indenture or
the Notes without notice to or the consent of any Holder;
(i) to cure any ambiguity, defect or
inconsistency;
(ii) to provide for the issuance of notes
hereunder to be exchanged for the Notes pursuant to a Registered Exchange
Offer (as defined in the Registration Rights Agreement);
(iii) to comply with any requirements of the
Securities and Exchange Commission in connection with the qualification of
this Indenture under the Trust Indenture Act of 1939, as amended, and the
rules and regulations promulgated thereunder;
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(iv) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee appointed in accordance with
Article Six; or
(v) to make any change that does not materially
and adversely affect the rights of any Holder.
(b) With the written consent of the Holders of the
Majority Noteholders, by Act of such Holders delivered to the Issuer and the
Trustee, the Issuer and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Note:
(i) change the Stated Maturity of the principal
of, or any installment of principal of or interest on, any Note, or
reduce or increase the principal amount thereof or the Note Interest
Rate thereon or the rights of the Noteholders to the benefit of any
provisions relating to the redemption of the Notes, change the
provisions of this Indenture relating to the application of proceeds
of the Trust Estate to the payment of principal or interest on the
Notes, or change any place where, or the coin or currency in which,
any Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after
the Maturity thereof;
(ii) change the percentage in Aggregate
Outstanding Amount of Notes, the consent of the Holders of which is
required for the execution of any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with provisions of this Indenture or Defaults hereunder
and their consequences provided for in this Indenture;
(iii) impair or adversely affect or release any
part of the Trust Estate except as otherwise permitted herein;
(iv) permit the creation of any lien ranking prior
to or on a parity with the lien of this Indenture with respect to
any part of the Trust Estate or terminate the lien of this
Indenture on any property at any time subject hereto or deprive any
Noteholder of the security afforded by the lien of this Indenture;
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(v) change the percentage of the Aggregate
Outstanding Amount, the consent of the Holders of Notes of which is
required to direct the Trustee to sell or liquidate the Trust Estate
pursuant to Article Five;
(vi) modify any of the provisions of this Section
8.1, or Section 5.15, 7.18 or Section 11.14;
(vii) modify the proviso to the definition of the
term "Outstanding" or modify the terms "Holder" and "Noteholder";
(viii) modify any of the provisions of this
Indenture in such a manner as to affect the calculation of the
amount of any payment of interest, premium, or principal due on any
Note, on any Payment Date (including the calculation of any of the
individual components of such calculation); or
(ix) cause the rating of the Notes to be lowered
by either of the Rating Agencies.
At the cost of the Issuer, the Trustee shall provide to
the Noteholders and, if any of the Notes are then rated by the Rating
Agencies, to the Rating Agencies a copy of any proposed supplemental
indenture at least 15 Business Days prior to the execution thereof by the
Trustee. The Trustee shall request written confirmation from the Rating
Agencies within such 15 Business Day period that the Rating Agencies will
not, as a result of such supplemental indenture, cause the rating of the
Notes to be lowered and the Trustee shall promptly provide the Noteholders
with any written response received from the Rating Agencies. At the cost of
the Issuer, the Trustee shall provide to the Noteholders and the Rating
Agencies a copy of the executed supplemental indenture as soon as practicable
after its execution. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Any solicitation of Holders of Notes to any consent,
waiver, or amendment under this Indenture involving consideration shall
provide that such consideration be paid equally to all Noteholders regardless
of whether or not such Noteholders agree to such consent, waiver, or
amendment or are entitled to participate in such consent, waiver, or
amendment.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of Sections 5.4(b), 9.2(b) (regarding the withdrawal
of funds from the Sinking Fund
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Account), 9.7(a), 11.5, 11.6, 11.18 and 11.19 of this Indenture shall not be
amended or supplemented without the prior written consent of Foodmaker.
Section 8.2. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created
by any supplemental indenture permitted by this Article Eight or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Sections 6.1 and 6.3) shall be
fully protected in relying upon, an Opinion of Independent Counsel stating
that the execution of such supplemental indenture is authorized or permitted
by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties, or immunities, respectively, under this Indenture or otherwise.
Section 8.3. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
permitted under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Notes theretofore and
thereafter authenticated and delivered hereunder shall be bound thereby
whether or not the Notes have any reference or notation concerning such
supplemental indenture.
ARTICLE NINE
ACCOUNTS, ACCOUNTING AND RELEASES
Section 9.1. Collection of Money.
Except as otherwise expressly provided herein, the
Trustee may demand payment or delivery of, and shall receive and collect,
directly and without intervention or assistance of any fiscal agent or other
intermediary, all money and other property payable to or receivable by the
Trustee pursuant to this Indenture or the Mortgage Note Documents or any
collateral assignment thereof to the Trustee, including, without limitation,
pursuant to either of the CRC Leases by virtue of the CRC Lease Assignments
and the collateral assignment thereof by the Issuer to the Trustee,
including, without limitation, all Rent, all payments due on the CRC Notes,
and all other amounts received under the Mortgage Note Documents. To the
extent any such amounts are paid or
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delivered to the Issuer, such amounts shall be held in trust for the benefit
of the Holders of the Notes and remitted to the Trustee by the Business Day
following receipt of such amounts. The Trustee shall hold all such money and
property received by it in trust for the Noteholders and shall apply it as
provided in this Indenture.
Section 9.2. Collection Account, Sinking Fund Account and Equity Collection
Account.
(a) Collection Account. The Trustee shall, prior
to the Closing Date, establish a segregated non-interest bearing trust
account for the benefit of the Noteholders which shall be called the
"Collection Account" into which the Trustee shall from time to time deposit
all amounts required to be deposited therein pursuant to the terms of this
Indenture. Without limiting the foregoing, all Rent is required to be paid
by the Lessee directly to the Trustee pursuant to the CRC Leases for deposit
in the Collection Account, and for application hereunder by the Trustee in
accordance with Section 10.1 or Section 5.8 (as applicable). All monies
deposited from time to time in the Collection Account pursuant to this
Indenture shall be held by the Trustee as part of the Trust Estate and shall
be applied as herein provided.
(b) Sinking Fund Account.
(i) The Trustee shall, prior to the Closing Date,
establish a segregated trust account for the benefit of the Noteholders which
shall be called the "Sinking Fund Account" into which the Trustee shall
deposit on each Payment Date to and including the Year Nine Installment
Payment Date, the sum of the Unit Sinking Fund Payments due on such date
under the Notes, from the funds deposited in the Collection Account (to the
extent available and after giving effect to any distributions from the
Collection Account pursuant to clauses FIRST through SIXTH of Section 10.1).
All monies deposited in the Sinking Fund Account pursuant to this Indenture
and all Reinvestment Income thereon shall be held by the Trustee as part of
the Trust Estate. So long as no Event of Default has occurred and is
continuing, all or a portion of the monies in the Sinking Fund Account shall
be invested and reinvested at the Lessee's direction, by a written request
dated and signed in the name of the Lessee by an Authorized Officer of the
Lessee and delivered to the Trustee, in one or more Eligible Investments
having a maturity date no later than the Business Day prior to the Year Nine
Installment Payment Date.
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(ii) In addition, so long as no Event of Default
has occurred and is continuing, at the Issuer's and the Lessee's direction,
by a written request dated and signed in the name of the Issuer and the
Lessee by Authorized Officers of the Issuer and the Lessee and delivered to
the Trustee, (A) upon Lessee's purchase of the applicable Borrower's interest
in an Eligible Unit upon the Early Termination thereof, a portion of the
balance of the Sinking Fund Account (herein referred to as the "Required
Equity Account Contribution"), in an amount specified in such request and
which shall equal the amount by which (I) two (2) times the Unit Percentage
for each such Eligible Unit multiplied by the lesser of (aa) the balance in
the Sinking Fund Account on such date or (bb) the amount which would have
been the Ideal Sinking Fund Balance on such date (after taking into account
the payments assumed to be made on such date in the definition of "Ideal
Sinking Fund Balance" (inclusive of any payment of Individual Unit Special
Rent (as defined in the applicable CRC Lease) attributable to such Eligible
Unit which is due on such day), but disregarding the withdrawal on account of
such Eligible Unit under clause (ii) of the definition of "Ideal Sinking Fund
Balance"), exceeds (II) the excess, if any, of the Lessee's Early Termination
Increment over the Lessee's Present Value Increment for such Eligible Unit
(in each case as defined in the applicable CRC Lease) shall be deposited in
the Equity Collection Account (any Required Equity Account Contribution
actually deposited in the Equity Collection Account is referred to herein as
an "Actual Equity Account Contribution") and an amount equal to the excess,
if any, of the Lessee's Early Termination Increment over the Lessee's Present
Value Increment for such Eligible Unit shall be released to Lessee in
accordance with the instructions specified in Lessee's written request and
(B) upon the applicable Borrower's purchase of Lessee's interest in an
Eligible Unit upon the Early Termination thereof, an amount equal to the
Required Equity Account Contribution shall be released to the applicable
Borrower as specified in such request. Notwithstanding the foregoing, at
such time as the aggregate Actual Equity Account Contributions (which for
purposes of this sentence shall be deemed to include any Required Equity
Account Contributions released to the applicable Borrower) together with the
Reinvestment Income which would have been earned thereon had such Actual
Equity Account Contributions accrued interest from the date of deposit (or
deemed deposit) thereof into the Equity Collection Account at the rate of 6%
(on the basis of a 360-day year), compounded semi-annually on the first day
of each January and July), equal the present value (discounted to the date of
such calculation at a discount rate of 6% (on the basis of a 360-day year)
compounded semi-annually on the first day of each January and July of a
payment of
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$11,500,000 due on the first business day of January, 2003, as certified in a
certificate signed by an Authorized Officer of the Lessee and delivered to
the Trustee, no further Required Equity Account Contributions shall be due or
made or released to any Borrower.
In addition, so long as no Event of Default has occurred
and is continuing, at the Issuer's and the Lessee's direction, by a written
request dated and signed in the name of the Issuer and the Lessee by
Authorized Officers of the Issuer and Lessee and delivered to the Trustee,
upon the Year Nine Installment Payment Date and so long as all payments
previously due or then due on the Notes have been paid, the remaining balance
of the Sinking Fund Account shall be applied as follows:
(x) A portion of such balance, in an amount equal to
the aggregate Required Equity Account Contributions for all Eligible
Units as to which an Early Termination has been consummated
(exclusive of the amounts of all Actual Equity Account Contributions
previously deposited to the Equity Collection Account and Required
Equity Account Contribution released to the Borrowers) together with
all Reinvestment Income earned on the amounts of such Required
Equity Account Contributions while they were retained in the Sinking
Fund Account, as certified in a Certificate signed by Authorized
Officers of the Issuer and the Lessee and delivered to the Trustee,
shall be deposited in the Equity Collection Account; and
(y) The balance of such account shall be released to
Lessee.
If an Event of Default has occurred and is continuing or
if the Lessee shall not have given any directions pursuant to this Subsection
9.2(b), the Trustee shall invest and reinvest such monies as fully as
practicable in one or more Eligible Investments and which are, to the extent
available, administered by the Trustee or an Affiliate of the Trustee. All
income or other gain from such investments shall be credited to the Sinking
Fund Account and shall be applied as provided above. Any loss resulting from
such investments shall be charged to the Sinking Fund Account. The Trustee
shall not in any way be held liable by reason of any insufficiency in the
Sinking Fund Account resulting from any loss on any Eligible Investment,
except as otherwise provided in Subsection 6.3(i). Nothing contained herein
shall limit the obligations of the Issuer to pay the Initial Bullet Payment
(as defined in the Notes) or any other amounts payable under each of the
Notes in the event the funds in the Collection
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Account are not sufficient to pay the full amount of the Initial Bullet
Payment under (and as defined in) each of the Notes on the Year Nine
Installment Payment Date or such other payments when due.
(c) Equity Collection Account. The Trustee shall,
prior to the Closing Date, establish a segregated trust account for the
benefit of the Noteholders which shall be called the "Equity Collection
Account." Provided that no Event of Default has occurred and is continuing,
the sum of the Purchase Price plus the Special Sinker Rent (if any) paid
under (and as such terms are defined in) the CRC Leases for any Property in
connection with the Early Termination or exercise of the Year Nine Option or
making of the Year Nine Offer (as defined in the CRC Leases), minus the
Termination Value of such Property, which amount shall be certified in an
Officer's Certificate by an Authorized Officer of the Issuer (as agent to the
applicable Borrower) to the Trustee, shall be transferred by the Trustee from
the Collection Account, after giving effect to the distributions from the
Collection Account set forth in clauses FIRST through TENTH of Section 10.01,
to the Equity Collection Account. In addition, deposits shall be made to the
Equity Collection Account as provided in Section 9.2(b). Monies in the
Equity Collection Account (including any Reinvestment Income thereon) shall
be held by the Trustee as part of the Trust Estate as collateral for the
repayment of the Notes. So long as no Event of Default has occurred and is
continuing, all or a portion of the monies in the Equity Collection Account
shall be invested and reinvested upon Issuer Order, in one or more Eligible
Investments having a maturity date no later than the Business Day prior to
the Stated Maturity. If an Event of Default has occurred and is continuing
or if the Issuer (as agent for the applicable Borrower) shall not have given
any directions pursuant to this Subsection 9.2(c), the Trustee shall invest
and reinvest such monies as fully as practicable in one or more Eligible
Investments and which are, to the extent available, administered by the
Trustee or an Affiliate of the Trustee. All income or other gain from such
investments shall be credited to the Equity Collection Account and shall be
applied as provided above. Any loss resulting from such investments shall be
charged to the Equity Collection Account. The Trustee shall not in any way
be held liable by reason of any insufficiency in the Equity Collection
Account resulting from any loss on any Eligible Investment, except as
otherwise provided in Subsection 6.3(i). Upon the satisfaction and discharge
of this Indenture in accordance with Section 4.2, any funds deposited in the
Equity Collection Account and any Reinvestment Income thereon shall be
distributed by the Trustee to the applicable Borrower,
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upon written request of the Issuer joined in by both Borrowers and
authorization by the Issuer as to the Borrower entitled to such funds or any
portion thereof. Upon the occurrence of any Event of Default, the funds
deposited in the Equity Collection Account and any Reinvestment Income
thereon may be applied by the Trustee to the outstanding principal balance of
the Notes and any accrued interest thereon or any other sums owing hereunder
or under the Mortgage Note Documents.
Section 9.3. Accounting.
If the Trustee shall not have received any accounting
provided for in this Section 9.3 on or before the first Business Day after
the date on which such accounting is due to the Trustee, the Trustee shall
immediately notify the Issuer of such fact.
(a) Payment Date Accounting. The Issuer shall prepare
a statement (the "Payment Date Statement") not later than the second Business
Day preceding each Payment Date. Upon request by the Trustee, the Issuer
shall provide or cause the Lessee to provide the Trustee with all information
not in the Trustee's possession and necessary to prepare each Payment Date
Statement in a timely manner. The Trustee shall forward copies of the
Payment Date Statement to each Noteholder on each Payment Date (in the manner
set forth in Section 12.5) and the Trustee shall not be liable for any error
made in calculating or otherwise determining the information required to be
set forth in the Payment Date Statement pursuant to this Subsection 9.3(a),
except for any error resulting from negligence, willful misconduct, or bad
faith on the part of the Trustee or its employees. Pursuant to Subsection
6.7(c), the Issuer shall indemnify the Trustee for any loss, liability or
expense incurred without negligence, willful misconduct or bad faith on the
part of the Trustee or its employees arising out of the Trustee's preparation
and delivery of the Payment Date Statement and disbursements made pursuant
thereto. The Payment Date Statement shall contain, without limitation, the
following information with respect to each Payment Date:
(i) The interest to be paid on such Payment Date on the Notes,
and the portion thereof, if any, that was due but not paid on a previous
Payment Date;
(ii) The premium, if any, to be paid on such Payment Date on the
Notes, and the portion thereof, if any, that was due but not paid on a
previous Payment Date;
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(iii) The Aggregate Outstanding Amount of Notes before giving
effect to any payment to be made on such Payment Date;
(iv) The principal (if any) to be paid on such Payment Date
on the Notes;
(v) The amount of cash held in the Collection Account as
of the related Determination Date (before giving effect to any
distributions to be made on such Payment Date);
(vi) The amount of cash and Eligible Investments and
Reinvestment Income thereon (if any) held in the Construction
Account (including the Additional Unit Acquisition Account) as of the
related Determination Date (before giving effect to any distributions to
be made on such Payment Date);
(vii) The amount of cash held in the Proceeds Account (if
any) as of the related Determination Date (before giving effect to any
distributions to be made on such Payment Date);
(viii) The amount of cash held in the Administrative Expenses
Account (if any) as of the related Determination Date (before giving
effect to any distributions to be made on such Payment Date);
(ix) The amount of cash held in the Closing Costs Account
(if any) as of the related Determination Date (before giving effect to
any distributions to be made on such Payment Date);
(x) The amount of cash and Eligible Investments and
Reinvestment Income thereon (if any) held in the Sinking Fund
Account as of the related Determination Date (before giving effect to
any distributions to be made on such Payment Date);
(xi) The amount of cash and Eligible Investments and
Reinvestment Income thereon (if any) held in the Equity Collection
Account as of the related Determination Date (before giving effect
to any distributions to be made on such Payment Date);
(xii) The amount to be withdrawn from the Administrative
Expenses Account, the Closing Costs Account, the Collection Account
(including the Additional Unit Acquisition Account), the Construction
Account, the Sinking Fund Account, the Equity Collection
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Account, and the Proceeds Account, if any, as of such Determination
Date, which amount shall be disbursed in accordance with Sections 9.6(a)
and (b), 10.1 (or 5.8, as applicable), 9.5, 9.2(b), and 11.5 or 11.6,
respectively;
(xiii) The balance remaining in the Administrative Expenses
Account, the Closing Costs Account, the Collection Account (including
the Additional Unit Acquisition Account), the Construction Account,
the Sinking Fund Account, the Equity Collection Account, and the
Proceeds Account immediately after all withdrawals to be made from
such account(s) on such Payment Date;
(xiv) The amount due to the Trustee under Section 6.7 of the
Indenture;
(xv) The amount of any Administrative Expenses for such
Payment Date other than as set forth in Section 9.3(a)(xi);
(xvi) The amount of all CRC-I Rent received for the related
Interest Accrual Period;
(xvii) The amount of all CRC-II Rent received for the related
Interest Accrual Period;
(xviii) The amount of all Rent credited to interest payments
on the CRC Notes for the related Interest Accrual Period;
(xix) The amount of all Rent and other amounts credited to
principal payments on or with respect to the CRC Notes (including
and shown on an itemized basis, all Principal Payments and all
Liquidation Proceeds and Insurance and Condemnation Proceeds applied to
reduction of principal) for the related Interest Accrual Period and a
calculation showing how each such amount was derived;
(xx) The amounts required to be deposited on such date in
the Administrative Expenses Account, the Sinking Fund Account and the
Equity Collection Account pursuant to Sections 9.6(b), 9.2(b) and
9.2(c); and
(xxi) The amount of all Reinvestment Income payable to Foodmaker
in accordance with the CRC Leases.
(b) Payment Date Instructions. The Trustee shall
withdraw on each Payment Date from the Collection Account and pay, in
accordance with Subsection 2.8(c), to the
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Persons entitled thereto and deposit in the Administrative Expenses Account,
Sinking Fund Account and Equity Collection Account, funds in the specified
amounts set forth in the Payment Date Statement in accordance with the
priorities established in Section 10.1 or in Section 5.8, as the case may be.
(c) Annual Reports. Within ninety (90) days after the
last day of each calendar year, the Issuer shall deliver to each Noteholder a
copy of: (i) a balance sheet of the Issuer as at the end of such year setting
forth in comparative form the figures for the corresponding period in the
previous fiscal year, and (ii) statements of income and retained earnings and
of changes in cash flows of the Issuer for such year, setting forth in
comparative form the figures for the previous fiscal year, all in reasonable
detail and certified by the chief financial officer of the Issuer as being
accurate and complete and, if requested by Majority Noteholders, or if
required under any applicable securities laws, accompanied by an Accountants'
Certificate, which certificate shall state that such financial statements
fairly present the financial condition of the Issuer and that the examination
of such accountants in connection therewith has been made in accordance with
generally accepted auditing standards, and accordingly employed such tests of
the accounting records and such other auditing procedures as were deemed
necessary.
Section 9.4. Construction Account.
(a) The Trustee shall, prior to the Closing Date,
establish a segregated trust account for the benefit of the Noteholders which
shall be called the "Construction Account." The Trustee shall, on the
Closing Date, deposit the amount specified in Subsection 3.4(b)(iii) above in
the Construction Account. The Trustee shall, on the Closing Date, deposit
the amount specified in Subsection 3.4(a)(iii) above in the Additional Unit
Acquisition Account, which shall be a subaccount of the Construction Account.
All monies deposited from time to time in the Construction Account
(including, without limiting, the Additional Unit Acquisition Account)
pursuant to this Indenture and all Reinvestment Income thereon shall be held
by the Trustee as part of the Trust Estate and shall be applied to the
purposes herein provided.
(b) So long as no Event of Default has occurred and is
continuing, all or a portion of the monies in the Construction Account
(including, without limiting, the Additional Unit Acquisition Account) shall
be invested and reinvested at the Lessee's direction, by a written request
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dated and signed in the name of the Lessee by an Authorized Officer of the
Lessee and delivered to the Trustee, in one or more Eligible Investments
having a maturity date no later than the Business Day prior to the next
Payment Date. If an Event of Default known to a Responsible Officer of the
Trustee has occurred and is continuing, the Trustee shall invest and reinvest
such monies as fully as practicable in one or more Eligible Investments and
which are, to the extent available, administered by the Trustee or an
Affiliate of the Trustee. All income or other gain from such investments
shall be credited to the Construction Account and, provided no CRC Lease
Event of Default or Mortgage Event of Default under any Foodmaker Mortgage
shall have occurred and be continuing, shall be disbursed to the Lessee on
each Payment Date in accordance with the CRC Leases as specified in the
applicable Payment Date Statement. If a CRC Lease Event of Default or
Mortgage Event of Default under any Foodmaker Mortgage shall have occurred
and shall be known to a Responsible Officer of the Trustee, such income and
gain shall be transferred by the Trustee to the Collection Account and
disbursed pursuant to Section 10.1 or 5.8 (as applicable). Any loss
resulting from such investments shall be charged to the Construction Account.
The Trustee shall not in any way be held liable by reason of any
insufficiency in the Construction Account resulting from any loss on any
Eligible Investment, except as otherwise provided in Subsection 6.3(i).
Section 9.5. Releases from the Construction Account.
(a) The Trustee shall, from time to time as requested
in writing by the Lessee, release, on behalf of CRC-I or CRC-II (as
applicable), to the Lessee or to such Person as the Lessee may direct in
writing, (A) funds on deposit in the Additional Unit Acquisition Account as
CRC-I acquires an estate for years in each of the Potential Additional Units
identified on the attached Schedule A-3 (or such Substitute Units acquired in
substitution of any of the Potential Additional Units identified on the
attached Schedule A-3 in accordance with Article 15 of the Master Lease),
which funds shall be used to finance the purchase by CRC-I of such estates
for years, and (B) funds on deposit in the Construction Account (other than
funds in the Additional Unit Acquisition Account) as the Lessee acquires each
of the Potential Construction Units identified on the attached Schedule B (or
such Substitute Units acquired in substitution of any of the Potential
Construction Units identified on the attached Schedule B in accordance with
Article 15 of the CRC-II Lease) and CRC-II acquires an estate for years
therein from the Lessee, which funds shall be used to finance the purchase by
CRC-II of such estate for
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years in, and the construction by the Lessee of a Jack In The Box Restaurant
on, each such Property in accordance with the terms of the CRC-II Lease. Any
such release shall be made within five (5) Business Days after written notice
to the Trustee including the amount requested to be released, the date on
which the release is requested to be effected, and a schedule of the
Additional Unit(s) or Potential Construction Unit(s) with respect to which
such release is being requested, and satisfaction of the conditions set forth
in this Section 9.5(a) and Section 9.5(b), to the extent such funds are
available in the Additional Unit Acquisition Account or the balance of the
Construction Account, respectively. Any such release shall require delivery
to the Trustee of the following with respect to each such Potential
Additional Unit and Potential Construction Unit, each duly executed and
acknowledged (where required) by all of the parties thereto (as applicable),
and each in form and substance satisfactory to the Trustee and the
Noteholder's Counsel:
(i) an original certificate of the Lessee in the
form attached hereto as Exhibit K as to the facts set forth above
and the other matters set forth in Exhibit K (which certificate
shall include, in the case of a Substitute Unit, a certification by
the Lessee that the fair market value of the Substitute Unit is no
less than the fair market value of the unit identified on the
attached Schedule A-3 or B for which the Substitute Unit has been
substituted);
(ii) the original deed executed by the Lessee
conveying an estate for years in the applicable Property to the
applicable Borrower in the form attached hereto as Exhibit L with
such modifications thereto as may be necessary under applicable
state law as approved by Noteholder's Counsel;
(iii) an original Short-Form Master Lease, Notice
of Non-Responsibility and Subordination and Recognition Agreement in
the form attached hereto as Exhibit M with such modifications
thereto as may be necessary under applicable state law as approved
by Noteholder's Counsel;
(iv) an original CRC Mortgage executed by the
applicable Borrower, and an original Foodmaker Mortgage executed by
the Lessee, in each case with the collateral assignment thereof from
the Issuer to the Trustee, which Mortgages and collateral
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assignments shall be in the form of the deed of trust or mortgage
(as applicable) attached as Exhibits D-2 and D-4, respectively, with
such modifications thereto as may be necessary under applicable
state law as approved by Noteholder's Counsel;
(v) a supplement to the applicable CRC Lease
Assignment executed by the applicable Borrower, with consent thereto
executed by the Lessee, in the form attached hereto as Exhibit N;
(vi) a Uniform Commercial Code financing statement
on Form UCC-1 naming each of the applicable Borrower and the Lessee,
respectively, as debtor, the Issuer, as secured party and the
Trustee, as assignee;
(vii) the Insurance Policies or certificates (which
may be blanket certificates) evidencing the Insurance Policies for
the applicable Property;
(viii) the original Title Policy or Policies or
commitments therefor with respect to such Property, insuring the
applicable CRC Mortgage or Foodmaker Mortgage as valid and first
priority liens on the applicable Borrower's estate for years
interest and the Lessee's reversionary interest, respectively,
in such Property in favor of the Issuer and the Trustee (by virtue
of the collateral assignment thereof to the Trustee referred to in
clause (iv) above) subject to no exceptions other than Permitted
Encumbrances;
(ix) a copy of any survey used in connection with
the issuance of such Title Policy;
(x) a copy of a "Phase I" environmental report
concerning the Property, to the extent in the Lessee's or the
applicable Borrower's possession;
(xi) Uniform Commercial Code financing statement
on Form UCC-1 naming the Issuer, as debtor, and the Trustee, as
secured party;
(xii) an original amendment to the applicable CRC
Lease in the form attached hereto as Exhibit O-1 or O-2 (which shall
be the sole original thereof and which shall be delivered to the
Trustee and held by the Trustee during the term hereof);
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(xiii) an original Officer's Certificate executed by
an Authorized Officer of the Lessee in the form attached hereto as
Exhibit H;
(xiv) opinions of Independent Counsel addressed to
the Trustee and the Noteholders (including opinions of special New
York counsel and local counsel in the state in which each such
Property is located), substantially in the forms attached hereto as
Exhibits B, and I-1 through I-4, which opinions shall be approved by
Noteholders' Counsel, and may include customary assumptions,
limitations, qualifications and exclusions; and
(xv) an updated schedule to the CRC Notes
describing the Mortgages which secure such notes.
All such Security Documents and other documents and assignments thereof to
the Trustee shall, as applicable, be in appropriate form for filing or
recording and shall be duly filed or recorded in the offices where such
filing or recording is required in the state where the relevant Property is
located; provided that the Trustee shall not be required to determine whether
any document is in recordable form or see to the filing or recording of any
document. With respect to the original Security Documents or any other of
the documents referred to above or any assignments thereof to the Trustee
that requires filing or recordation, the Issuer shall represent and warrant
in writing that such original Security Document or other document or
assignment thereof has been delivered to the title company issuing the Title
Policies for filing or recordation, as the case may be and the Trustee is
hereby directed to accept such copies. In all such instances, the Issuer
shall deliver or cause to be delivered such original Security Document or
other document or assignment thereof to be filed or recorded to the Trustee,
with evidence of filing or recording, as the case may be, indicated thereon,
within 60 days after such release of funds from the Construction Account.
All filing and recording required pursuant to this
Section 9.5 shall be accomplished at the expense of the Issuer.
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All of the foregoing documents and items shall be subject
to review by the Noteholders' Counsel for conformity with the requirements
hereof and of the applicable CRC Lease and, in the case of a Substitute Unit
which is located in a state other than Arizona, California, Texas,
Washington, Illinois or Missouri, to review by local counsel in such state to
the extent Noteholders' Counsel deems reasonably necessary. The Trustee may
rely conclusively on the review by Noteholders' counsel as to conformity of
the foregoing documents or items with such requirements. The Issuer shall
pay or cause the Lessee to pay all expenses incurred by the Trustee and the
Noteholders in connection with any release of funds from the Construction
Account, including, without limitation, reasonable attorneys' fees and
expenses (including, without limitation, for special local counsel, if any)
incurred in reviewing any of the foregoing documents or items.
(b) In no event shall funds in the Construction Account
be released to the Lessee or to any other Person with respect to any
Potential Construction Unit or Additional Unit or any Substitute Unit: (i)
in excess of the lesser of (A) the amount allocated to such unit on the
attached Schedule B or A-3, as applicable (or, in the case of a Substitute
Unit, in excess of the amount allocated to the Released Unit on the attached
Schedule A-3 or B), or (B) in the case of any Potential Construction Unit,
the amount which, when added to all prior releases of funds from the
Construction Account (other than funds in the Additional Unit Acquisition
Account) pursuant to this Indenture, does not exceed the Maximum Construction
Unit Allowance and, in the case of any Potential Additional Unit, the amount
which when added to all prior releases of funds from the Additional Unit
Acquisition Account does not exceed the sum of the amounts allocated to such
units on Schedule A-3; (ii) if the Lessee has not acquired fee title to such
Property and conveyed an estate for years in such Property to the applicable
Borrower; (iii) if the Trustee has not received any of the documents,
instruments or items required to be delivered to the Trustee pursuant to
Section 9.5(a); (iv) if, in the case of a Substitute Unit, any of the other
conditions to such Substitution set forth in Article 15 of the applicable CRC
Lease have not been satisfied as certified by the Lessee in the certificate
referred to in clause (i) above; or (v) if a CRC Lease Event of Default or
Mortgage Event of Default under any Foodmaker Mortgage has occurred and is
continuing.
(c) If any of the conditions set forth in clauses (ii)
through (v) of Section 9.5(b) have not been met, the funds then remaining in
the Construction Account
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(including the Additional Unit Acquisition Account) and any Reinvestment
Income thereon shall not be released to the Lessee or any other Person, but
shall instead be retained in the Construction Account as security for the
payment of the Notes in accordance with the Deposit Accounts Security
Agreements and the collateral assignment thereof by the Issuer to the
Trustee, and upon a CRC Lease Event of Default or Mortgage Event of Default
under any Foodmaker Mortgage shall be transferred by the Trustee to the
Collection Account and applied to the Aggregate Outstanding Amount of the
Notes as provided in Section 10.1 or 5.8 (as applicable).
(d) Subject to satisfaction of all of the conditions
set forth in this Section 9.5, provided such funds have not been transferred
to the Collection Account as provided in Section 9.4(b), 9.5(c) and Section
10.1, such funds shall be released to the Lessee or its designee through the
escrow established with the title company issuing the Title Policies or, in
the case of the portion of any such funds to be released representing costs
of construction of the Jack In The Box restaurant to be constructed on a
Potential Construction Asset, directly to the Lessee in accordance with
written instructions from the Lessee upon the consummation of the Lessee's
acquisition of such Property. Funds in the Construction Account shall
continue to be released to the Lessee upon satisfaction of the conditions set
forth in this Section 9.5 notwithstanding any other Event of Default or any
foreclosure under any CRC Mortgage so long as no CRC Lease Event of Default
or Mortgage Event of Default under any Foodmaker Mortgage has occurred and is
continuing.
(e) Prior to releasing any funds from the Construction
Account, the Trustee shall receive and be entitled to rely conclusively upon
an Officer's Certificate of the Issuer and/or the Lessee and/or an Opinion of
Counsel to the effect that all conditions precedent herein to such release
have been satisfied.
Section 9.6. Establishment of and Releases from Closing Costs Account
and Administrative Expenses Account.
(a) The Trustee shall, prior to the Closing Date,
establish a segregated account for the benefit of the Noteholders which shall
be called the "Closing Costs Account" into which the Trustee shall, on the
Closing Date, deposit the amounts specified in Sections 3.4(a) and (b),
respectively. All monies deposited in the Closing Costs Account pursuant to
this Indenture shall be held by the
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Trustee as part of the Trust Estate and shall be applied by the Trustee at
the written direction of the Issuer or any Noteholder to pay all Closing
Costs (to the extent such funds are sufficient therefor) incurred by the
Trustee or the Noteholders with respect to the closing hereunder on the
Closing Date, or the closing of the acquisition of any Potential Additional
Unit listed on the attached Schedule A-3 or Potential Construction Unit
listed on the attached Schedule B or Substitute Unit in the case of a
permitted Substitution, subject in the case of reimbursement to any
Noteholder of receipt of written certification from such Noteholder (with a
copy to the Lessee at its address set forth in the CRC Leases) that any
Closing Costs for which it requests reimbursement were properly incurred in
connection with any such closing. In the event the monies deposited in the
Closing Costs Account are not sufficient at any time to pay all such Closing
Costs in full, the Issuer shall pay or shall cause the Lessee to pay all
excess Closing Costs on the Closing Date or, in the case of the closing of
any Potential Additional Unit or Potential Construction Unit or any
Substitute Unit, on the closing date thereof, or otherwise promptly upon
written demand by the Trustee. In the event that upon satisfaction and
discharge of this Indenture pursuant to Section 4.2, the actual Closing Costs
that have been incurred by the Trustee and the Noteholders hereunder are less
than the monies remaining in the Closing Costs Account, such excess funds
shall be released by the Trustee to the Lessee upon its written certification
that it is entitled to such excess funds. The Trustee shall be entitled to
rely conclusively on any such certification.
(b) The Trustee shall, prior to the Closing Date,
establish a segregated trust account for the benefit of the Noteholders which
shall be called the "Administrative Expenses Account" into which the Trustee
shall deposit, on each Payment Date, to the extent available, $25,000 from
the funds deposited in the Collection Account (after giving effect to any
distributions from the Collection Account pursuant to clauses FIRST through
SEVENTH of Section 10.1) representing the estimated Administrative Expenses
for the preceding six (6) month period. All monies deposited in the
Administrative Expenses Account pursuant to this Indenture shall be held by
the Trustee as part of the Trust Estate and shall be applied by the Trustee
to pay Administrative Expenses. In the event the monies deposited in the
Administrative Expenses Account are not sufficient at any time to pay in full
any Administrative Expenses then due but unpaid, the Issuer shall pay or
shall cause the Lessee to pay such excess Administrative Expenses promptly in
accordance with Section 6.7 hereof. Funds deposited in the Administrative
Expenses Account and not applied as provided
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herein shall be held by the Trustee in the Administrative Expenses Account
and shall be used to pay subsequently accrued Administrative Expenses;
provided, that upon satisfaction and discharge of this Indenture pursuant to
Section 4.2, any excess funds in the Administrative Expenses Account not
needed to pay Administrative Expenses shall be released to the Lessee. The
Trustee shall provide the Issuer (with a copy to the Lessee at its address
set forth in the CRC Leases) with invoices for all Administrative Expenses,
whether or not paid from funds in the Administrative Expenses Account.
Section 9.7. Releases.
(a) In addition to releases of funds from the Sinking
Fund Account pursuant to Section 9.2(b), from the Equity Collection Account
pursuant to Section 9.2(c), from the Construction Account pursuant to Section
9.5, from the Closing Costs Account and the Administrative Expenses Account
pursuant to Section 9.6, and from the Proceeds Account pursuant to Section
11.5, the Trustee may, and when required by the provisions of this Indenture
shall, execute instruments to release property from the lien of this
Indenture, or convey the Trustee's interest in the same, in all cases in
accordance with the provisions of this Indenture. No party relying upon an
instrument executed by the Trustee as provided in this Section 9.7 shall be
bound to ascertain the Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
(b) The Trustee shall, at such time as there are no
Notes Outstanding and all obligations of the Issuer hereunder have been
satisfied (including the payment of all fees and expenses of the Trustee),
release the Trust Estate from the lien of this Indenture and deliver it to
the Issuer or other Person legally entitled thereto.
Section 9.8. Reports.
The Trustee and the Issuer shall each supply in a timely
fashion to the other and, upon request to any Noteholder, any information
available to either of them that the other, or any Noteholder, may from time
to time request with respect to the CRC Notes or the Collection Account,
Sinking Fund Account, Construction Account, Closing Costs Account,
Administrative Expenses Account, Equity Collection Account or Proceeds
Account or that is reasonably needed to complete the Payment Date Statement
or to provide any other information required to be provided by Section 9.3.
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Section 9.9. Form of Reports.
With the prior written consent of the Majority
Noteholders, the Issuer or the Trustee may change the format of any report
required to be delivered by it pursuant to this Indenture in order to better
present the information required by this Indenture or to clarify any
ambiguities in such reports. Any such change in any report will be effective
after such consent and three Business Days after delivery of notice thereof
by the party making such change to the other party to this Indenture and the
other party to this Indenture may change the format of any reports it
delivers to correspond to such changes.
ARTICLE TEN
APPLICATION OF MONIES
Section 10.1. Disbursements of Monies from the Collection Account.
(a) On each Payment Date, the Trustee shall withdraw
funds from the Collection Account (unless otherwise provided pursuant to
Section 5.8 hereof) and shall make the following disbursements to the extent
funds are available therefor:
FIRST: to the Noteholders, an amount equal to the interest
previously due on the Notes but unpaid;
SECOND: to the Noteholders, an amount equal to the interest
due on the Notes;
THIRD: to the Noteholders, an amount equal to any premium
previously due with respect to the Notes but unpaid;
FOURTH: to the Noteholders, an amount equal to any premium
due on the Notes;
FIFTH: to the Noteholders, an amount equal to the principal
previously due with respect to the Notes but unpaid;
SIXTH: to the Noteholders, an amount equal to the principal
due on the Notes;
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SEVENTH: with respect to each Payment Date to and including
the Year Nine Installment Payment Date, the Aggregate Unit Sinking
Fund Payments due on such date under the Notes shall be deposited in
the Sinking Fund Account in accordance with Section 9.2(b);
EIGHTH: $25,000 shall be deposited in the Administrative
Expenses Account in accordance with Section 9.6(b);
NINTH: to the payment of all amounts due and unpaid to
the Trustee under Section 6.7 and to the payment of all remaining
Administrative Expenses to the extent not paid from funds held in
the Administrative Expenses Account;
TENTH: to Foodmaker, an amount not to exceed all Reinvestment
Income earned on the funds in the Construction Account during the
preceding Interest Accrual Period;
ELEVENTH: to the Equity Collection Account in an amount
equal to the Equity Collection Account Contributions previously due
but unpaid or then due under the Notes;
TWELFTH: on any Payment Date (or on the Stated Maturity)
on which (after giving effect to the distributions made pursuant to
the foregoing clauses) there is no continuing Default or Event of
Default, to the Issuer or to such Person as the Issuer may direct or
to any other Person legally entitled thereto, an amount equal to the
remaining funds in the Collection Account.
If, on any Payment Date the amount on deposit in the
Collection Account is insufficient to make the payments set forth in
clauses FIRST through EIGHTH, then the Trustee shall, before making
such payments, transfer to the Collection Account funds sufficient
to make such payments from the Construction Account, the Equity
Collection Account and the Proceeds Account to the extent funds are
available therefor.
If, in order to make the disbursements set forth above,
the Trustee requires additional information with respect to the
priority of payments within any clause above or otherwise, the
Trustee may request and the Issuer shall provide the Trustee with
such information.
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(b) If the amount available in the Collection Account
on a Payment Date is insufficient to make the full amount of the
disbursements required by the accounting furnished by the Issuer pursuant to
Subsection 9.3(a), the Trustee shall make the disbursements called for in the
order and according to the priority set forth under Subsection 10.1(a) above
or Section 5.8, as the case may be, to the extent funds are available
therefor.
Section 10.2. Trust Account.
All monies held by, or deposited with the Trustee in the
Collection Account, pursuant to the provisions of this Indenture shall be
deposited in one or more segregated trust accounts for the benefit of the
Noteholders. To the extent monies deposited in any trust account exceed the
FDIC insured amounts, such accounts shall be invested in Eligible Investments
in the manner provided in Subsection 9.2(b).
ARTICLE ELEVEN
ADMINISTRATION AND SERVICING OF CRC
NOTES AND MORTGAGES
Section 11.1. Duties and Responsibilities as to Servicing.
The Trustee shall receive such amounts as are delivered
to it with respect to each CRC Note, and shall hold, and subject to the
provisions hereof, enforce the CRC Notes and the Mortgages in the best
interests of and for the benefit of the Noteholders in accordance with the
terms of this Indenture. The Trustee shall not have any duties or
responsibilities regarding the CRC Notes and the Mortgages except those
expressly set forth in this Article Eleven and no implied covenants,
responsibilities, duties, obligations or liabilities shall be read into this
Indenture or the Mortgage Note Documents or otherwise imposed upon the
Trustee.
Section 11.2. Delegation of Duties; Sub-Servicing.
(a) The Trustee may execute any of its duties hereunder
by or through other Persons. The Trustee may enter into servicing agreements
with a servicer for the servicing and administration of all or part of the
CRC Notes and the Mortgages, provided such servicer and such servicing
agreement conform to the requirements therefor in this Indenture. Each
servicer must be a reputable, knowledgeable and competent servicer of
commercial mortgage loans and be qualified to transact business and be in
good standing under
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the laws of each state in which any Property serviced by the servicer is
located or be otherwise exempt under applicable law from such qualification.
References in this Indenture to actions taken or to be taken by the Trustee
in servicing the CRC Notes and the Mortgages include actions taken or to be
taken by a servicer on behalf of the Trustee provided that none of the
provisions of this Indenture relating to servicing agreements or to actions
taken through any such servicer or otherwise shall be deemed to relieve the
Trustee of any of its express duties and obligations to the Noteholders
hereunder, with respect to the servicing of the related CRC Notes and the
Mortgages or otherwise, and the Trustee shall be primarily obligated with
respect thereto to the same extent and under the same terms and conditions as
if it alone were performing all such duties and obligations. The Trustee
shall not be responsible for the acts or omissions of a servicer appointed
with due care. Following an Event of Default hereunder, the Administrative
Expenses to be reimbursed to the Trustee hereunder shall include the
reasonable fees of any duly appointed servicer.
(b) The Trustee shall send written notice to the Issuer
and Noteholders whenever it enters into any servicing arrangement identifying
the servicer and enclosing a copy of the servicing agreement. Any servicing
agreement that may be entered into and any other transaction or services
relating to the CRC Loans involving a servicer shall be deemed to be between
the servicer and the Trustee alone and Noteholders shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the servicer.
Section 11.3. Fidelity Note and Errors and Omissions Insurance Policy.
The Trustee, at the Trustee's expense, will maintain in
effect during the term hereof a fidelity bond and an errors and omissions
insurance policy, affording coverage for all directors, officers, employees
and other Persons acting on the Trustee's behalf with respect to the
Trustee's activities as a servicer of mortgage loans with recognized insurers
having an A. M. Best's rating of A+ or better and a Standard & Poor's rating
of "A" or better and in such amount as is customary for entities servicing
commercial mortgage loan portfolios (either owned by such entity or by third
persons) of a size similar to the portfolio serviced by the Trustee for
itself or others. On or prior to the date of delivery of this Indenture and
thereafter, upon the request of the Issuer or any Noteholder, the Trustee
shall furnish to the Issuer or such requesting Noteholder copies of all
binders and policies or
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certificates evidencing that such note and insurance policy are in full force
and effect. Notwithstanding the foregoing, the Trustee shall not be required
to maintain an errors and omissions policy so long as the long term unsecured
debt of the Trustee has a credit rating equal to or higher than AA.
Section 11.4. Files and Records.
The Trustee will maintain for each Mortgage a Mortgage
file consisting of a complete copy of each Mortgage and related Mortgage Note
Documents and any correspondence and other papers and documents relating to
such Mortgage coming into the possession of the Trustee and specifically
identifying such Mortgage that are material to the performance of the
obligations of the Trustee hereunder.
Section 11.5. Trustee Receipt of Insurance and Condemnation Proceeds;
Establishment of Proceeds Account.
(a) The CRC Leases and the Mortgages (and the
collateral assignments thereof) require certain Insurance and Condemnation
Proceeds to be delivered to the Trustee and certain funds to be deposited by
Foodmaker with the Trustee in connection with a Destruction. Any such
Insurance and Condemnation Proceeds and Foodmaker's funds (to the extent not
otherwise applied pursuant to Subsection 11.5(b) hereof), received (and
identified as such) by the Trustee shall promptly be deposited by the Trustee
into, and shall be held by the Trustee in, one or more segregated trust
accounts (collectively, the "Proceeds Account").
(b) Funds in the Proceeds Account shall be released by
the Trustee to the Lessee in accordance with the terms of Article 12 of the
CRC Leases and Section 1.03(c) of the Foodmaker Mortgages as certified by
Foodmaker to the Trustee. The Trustee may conclusively rely on a
certification by Foodmaker as to the satisfaction of such requirements and of
the requirements for release of funds contained in subsection (c) hereof, as
applicable.
(c) Upon the occurrence of a CRC Lease Event of Default
or a Mortgage Default under any Foodmaker Mortgage in each case known to a
Responsible Officer of the Trustee, all funds in the Proceeds Account will be
immediately deposited in the Collection Account for application to payments
on the Notes and other distributions pursuant to Subsection 10.1(a) or
Section 5.8, as applicable. Funds in the Proceeds Account shall continue to
be released to the Lessee upon satisfaction of the requirements of the CRC
Leases and the Foodmaker Mortgages as certified by Foodmaker to the Trustee
notwithstanding any other Event of Default or
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foreclosure under any CRC Mortgage so long as no CRC Lease Event of Default
or Mortgage Event of Default under any Foodmaker Mortgage has occurred and is
continuing as certified by Foodmaker.
Section 11.6. Excess Insurance and Condemnation Proceeds.
Any funds remaining in the Proceeds Account with respect
to a particular Property shall be released to the Lessee in accordance with
the CRC Leases upon satisfaction of the requirements of the CRC Leases as
certified by Foodmaker to the Trustee. The Trustee may conclusively rely on
a certification by Foodmaker as to the satisfaction of such requirements.
Section 11.7. Payment of Taxes and Other Charges.
With respect to each Property, the Issuer shall maintain
or shall, by monitoring compliance with the CRC Leases, cause the Lessee to
maintain accurate records reflecting the status of taxes, assessments, and
other charges which are or may become a lien upon any Property and the status
of insurance premiums and coverage under the Insurance Policies and shall
obtain, from time to time, all bills for the payment of such charges
(including renewal premiums) and shall effect payment thereof prior to the
applicable penalty or termination date and at a time appropriate for securing
the maximum discounts allowable. The Trustee shall have no responsibility to
monitor such compliance.
Section 11.8. Maintenance of Casualty Insurance.
The Issuer shall maintain or shall, by monitoring
compliance with the CRC Leases, cause the Lessee to maintain Insurance
Policies for each Property. The Trustee shall maintain or cause to be
maintained Insurance Policies for each REO Property. Any amounts received by
the Trustee under any such policies and any other Insurance and Condemnation
Proceeds received by the Trustee shall be deposited in the Proceeds Account
subject to disbursement pursuant to Sections 11.5 and 11.6.
Section 11.9. Insurance Proceeds.
Except as otherwise provided in the CRC Leases, the
Trustee shall be named as a payee on all insurance loss drafts and the
Trustee upon the occurrence and continuance of an Event of Default shall be
responsible for the disbursement of insurance loss settlements under each
Insurance Policy, including, but not limited to:
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(a) Arranging for and authorizing the restoration and
rehabilitation of the related Property in accordance with the Mortgage Note
Documents or of the related REO Property;
(b) Collecting, endorsing, and disbursing the Insurance
Proceeds and arranging for progress inspections and payments, if necessary;
and
(c) Complying with all requirements of each Insurance
Policy pertaining to the filing of claims and the settlement of insurance
losses.
Section 11.10. Enforcement of CRC Leases.
(a) Upon the occurrence of an Event of Default and
subject to the provisions of this Indenture, the Trustee shall enforce the
CRC Leases in accordance with their terms with respect to all payment and
performance by the Lessee thereunder. By virtue of the CRC Lease
Assignments, including the collateral assignments thereof by the Issuer to
the Trustee, the Trustee shall have all rights (but no obligations) of the
lessor under each CRC Lease, which may be exercised to the exclusion of the
Issuer and the applicable Borrower or jointly with either the Issuer or their
applicable Borrower in the Trustee's sole discretion, including, without
limitation, the right to make any election or give any consent, direction, or
waiver under such CRC Lease. The Trustee shall, nevertheless, not assume or
be deemed to have assumed any obligation of the lessor under either CRC Lease
unless the Trustee succeeds to the interest of the Issuer under any Mortgage
and forecloses on that Mortgage, but subject to the terms of the applicable
Memorandum of Lease.
(b) The Trustee shall immediately notify the Issuer of
the delinquency of any semi-annual payment due with respect to a CRC Note or
a CRC Lease.
Section 11.11. Protection of Security.
(a) Inspection of Properties. If a CRC Note is 60 days
or more delinquent, or if a Responsible Officer of the Trustee has reason to
believe that the interests of the Trustee and the Noteholders in a Property
may be materially adversely affected as a result of negligent or willful acts
or omissions of any Person or any default on the part of a Borrower under the
terms of its CRC Note or any other Mortgage note document and, after giving
notice thereof to each Noteholder, is directed by the Majority Noteholders to
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do so and receives satisfactory indemnity for its fees and expenses, the
Trustee shall make or cause to be made an immediate inspection of the
relevant Property and shall cause the delivery of a report with respect
thereto to the Issuer and each Noteholder. When an inspection reveals that
repairs are necessary, the Trustee shall demand forthwith that the Lessee
make or cause to be made all necessary repairs. In addition, if the Trustee
receives notice that any Property is in violation of any laws (including
building codes), the Trustee shall provide the Lessee with a copy thereof
and, if an Event of Default has occurred and is continuing, use reasonable
efforts to require that the Lessee make or cause to be made the repairs
necessary to fulfill such legal requirements.
(b) Notice of Liens and Other Actions. The Trustee
will promptly notify the Issuer and each Noteholder whenever the Trustee
receives actual notice that any levy or writ of attachment on any Property
has occurred or that a lien on any Property has been claimed, or in the event
of any actual or threatened condemnation of any Property.
(c) Filing of Continuation Statements. The Trustee
will file, or cause to be filed, any and all financing statements necessary
to continue the liens created by the financing statements executed by the
Borrowers and the Lessee to the Issuer or the Issuer to the Trustee on the
Closing Date.
Section 11.12. Notices of Default.
Each of the parties hereto will promptly notify the other
party hereto and each Noteholder in writing (a "Default Notice") of the
occurrence of any event of default with respect to a CRC Note or any Mortgage
of which it has actual knowledge, which Default Notice shall specify the
event of default.
Section 11.13. Intentionally Omitted.
Section 11.14. Modifications, Etc.
Upon prior written notice to the Noteholders with a copy
of each proposed modification, waiver, amendment, approval or consent, and
the prior written consent thereto of the Majority Noteholders or as otherwise
may be required pursuant to Section 7.17, the Trustee is authorized and
empowered to execute and deliver or cause to be executed and delivered, any
and all modifications, waivers, amendments, approvals or consents to any
provisions contained in any of the Mortgage Note Documents and any and all
instruments of
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satisfaction or cancellation or of full or partial release, discharge or
modification, and all other comparable instruments with respect to the
Mortgage Note Documents and the Properties, provided, however, that so long
as any Note remains outstanding the Trustee may not take any action with
respect to (a) any change in the interest rate or manner of calculating
interest on a CRC Note, (b) any forgiveness of any payment of principal or
interest on a CRC Note, (c) any extension of the final due date for
principal, (d) any release or substitution of security for a CRC Note (except
as expressly permitted pursuant to Section 5.06 of each Mortgage) or (e) the
waiver of any other term of a CRC Note that would result in one of the
modifications mentioned in this proviso, without the consent of the Majority
Noteholders. At the cost of the Issuer, the Issuer shall provide to the
Trustee, the Noteholders and the Rating Agencies a copy of the executed
amendment, supplement or modification as soon as practicable after its
execution. In accordance with Section 5.06 of each Mortgage, the Trustee is
further authorized, empowered and directed to execute and deliver or cause to
be executed and delivered a full or partial reconveyance of such Mortgage
upon satisfaction of the conditions therefor set forth in Section 5.06 (as
such fact is certified to the Trustee by the Issuer) of each Mortgage,
without the prior consent of or prior notice to the Noteholders.
Section 11.15. Realization Upon Defaulted Mortgage Loans.
(a) Upon written direction to do so from a Majority of
Noteholders and subject to Section 6.1(b)(iv), the Trustee will give such
notices of default, declare the CRC Note or CRC Notes, as applicable,
immediately due and payable and commence such proceedings with respect
thereto as are directed by the Majority Noteholders.
(b) If requested in writing by the Majority Noteholders
and subject to Section 6.1(b)(iv), the Trustee will, no later than sixty (60)
days after receipt of such request, cause to be prepared a general plan of
foreclosure with respect to the Properties or any thereof which secure the
CRC Loans or any CRC Loan which have or has been accelerated and with respect
to enforcement of the CRC Leases or either thereof that will include a
proposal regarding the order of foreclosure of such Properties or proposed
enforcement action, the proposed actions to be taken in connection therewith,
a good faith estimate of the time and expenses necessary to complete the
foreclosure plan or other proposed enforcement action and such other
information as any Noteholder may request thereto. In connection with the
preparation of such plan, at the request
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of the Majority Noteholders, the Trustee shall obtain an advice letter of
Independent counsel in each state in which such a Property is located and in
the state of California (and any other state as the Majority Noteholders may
direct) with respect to the effect or possible effect of exercising any
remedies pursuant to this Section 11.15(b) including, without limitation,
consideration of any applicable "one form of action" rules, anti-deficiency
legislation, equitable defenses of the applicable Borrower with respect to
marshalling of assets, or other issues such counsel may consider appropriate
to address concerning such exercise or remedies, and the Trustee shall
promptly deliver such advice letter of Independent counsel to each
Noteholder. The fees and expenses incurred in connection with each such
advice letter of Independent counsel shall be Administrative Expenses payable
in accordance with the terms of this Indenture, and any such fees and
expenses not so paid shall be paid by the Trustee, to the extent funds are
available from the Trust Estate or are otherwise provided to the Trustee, on
behalf of the Issuer subject to the Trustee's right of reimbursement therefor
pursuant to Section 6.7. Upon written direction to do so by the Majority
Noteholders (subject to Section 6.1(b)(iv)) the Trustee will: (i) foreclose
upon or otherwise comparably convert, or cause to be foreclosed upon or
comparably converted, the ownership of the applicable Property or Properties
or seek the appointment of a receiver with respect to the ownership of the
applicable Property or Properties, (ii) obtain a deed or deeds in lieu of
foreclosure of the applicable Property or Properties or, (iii) abandon the
applicable Property or Properties, or (iv) enforce either or both of the CRC
Leases; provided, however, that, notwithstanding anything else contained
herein or in the Mortgages, CRC Leases or related Security Documents, the
Trustee shall not commence foreclosure proceedings with respect to or take
any formal action to acquire title to any Property, take over the operation
of any Property or take any other action with respect to any Property if, as
a result of any such action, the Trustee, on behalf of the Noteholders, would
be considered to hold title to, to be a "mortgagee-in-possession" of or to be
an "owner" or "operator" of such Property within the meaning of CERCLA, or
any comparable law, or if, as a result of such action, the Trustee would be
subject to liability pursuant to any federal, state or local environmental
statute, regulation or similar requirement including but not limited to
CERCLA, the Resource Conservation and Recovery Act, the Toxic Substances
Control Act, the Clean Water Act and the Clean Air Act, or at common law.
The Trustee shall be reimbursed for all reasonable costs and expenses
(including fees and expenses of its counsel and agents) incurred by it in
connection with any
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foreclosure or comparable proceedings or enforcement of the CRC Leases (as
well as its normal compensation). In no event will the Trustee be liable for
the inaccuracy of any prediction, estimate or statement in connection with
the foreclosure or enforcement plan, provided that the Trustee acted in good
faith and accordance with the standard of care imposed hereunder.
Notwithstanding anything else contained herein to the contrary, the Trustee
will not, however, commence foreclosure proceedings with respect to or take
any formal action to acquire title to any Property, or take over the
operation of any Property or take any other action with respect to any
Property customarily administered by secured lenders), unless it has (i)
taken all actions necessary (if any) pursuant to the environmental indemnity
contained in the Grant Deed (as defined in the Mortgages for the applicable
Property and the CRC Leases to preserve, pursue, protect and enforce all
rights and remedies thereunder and (ii) received, and provided copies thereof
to, the Noteholders, a study prepared by a qualified Independent professional
engineer selected by the Majority Noteholders of whether such Property is
subject to or presents any toxic waste or environmental hazards, contingent
or accrued liabilities or any other hazards and an estimate of the cost of
curing or cleaning up any such hazard. In addition, if any given study
discloses any environmental hazards, the Trustee shall immediately deliver a
copy of such study to the applicable Borrower and the Lessee and (subject to
Section 6.1(b)(iv)) shall take all actions necessary pursuant to such
environmental indemnities to preserve, pursue, protect and enforce all rights
and remedies thereunder. The Trustee shall not be under an obligation of any
kind to expend its own funds towards the curing or cleaning up of any toxic
waste or environmental hazard found on any Property. The Trustee shall
report to the Internal Revenue Service and the applicable Borrower in the
manner required by applicable law the information required to be reported
regarding any Property that is abandoned or that has been foreclosed.
(c) Notwithstanding any other provision of this
Indenture, the Trustee shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any modification,
foreclosure, cancellation or abandonment that occurs by operation of law, or
that the Trustee may be restricted by law from preventing.
Section 11.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed
or certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the Noteholders.
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(b) The Trustee shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. All Insurance and Condemnation
Proceeds with respect to any REO Property shall be dealt with by the Trustee
pursuant to Sections 11.5 and 11.6 hereof. The Trustee shall establish and
maintain one or more segregated trust accounts (collectively, the "REO
Account"), held in trust for the benefit of the Noteholders, into which the
Trustee shall deposit revenues derived from such REO Property. Funds in the
REO Account may be invested in Eligible Investments so long as liquid funds
are always made available to make any transfers required by Section 11.16(c)
hereof.
(c) The Trustee shall deposit, or cause to be
deposited, on the Business Day immediately following receipt, in the REO
Account all revenues received by it with respect to any REO Property. The
Trustee shall withdraw from the REO Account funds necessary for the proper
operation, management, maintenance and disposition of any REO Property, but
only to the extent of amounts on deposit in the REO Account relating to such
REO Property. On each Payment Date, the Trustee shall withdraw from the REO
Account and deposit into the Collection Account the REO Net Income from each
REO Property on deposit in the REO Account.
(d) The payments or cash recoveries from sale or other
disposition of any REO Property (including proceeds of a final sale or
Insurance and Condemnation Proceeds) shall be deposited in the Collection
Account on the Business Day following receipt thereof for distribution on the
succeeding Payment Date in accordance with Subsection 10.1(a) or Section 5.8,
as the case may be.
(e) The Trustee shall keep and maintain records for the
purpose of accounting for all deposits to, and withdrawals from, the REO
Account pursuant to Section 11.16(b) or (c) or Section 11.17.
Section 11.17. Management of REO Properties.
If, upon the foreclosure, acceptance of a deed in lieu of
foreclosure, or other transfer of title to any Property, or the taking by the
Trustee of possession thereof pursuant to the Mortgage Note Documents, the
Trustee acquires any REO Property, the Trustee shall have full power and
authority to do any and all things in connection therewith, including without
limitation, to hold, lease, operate, manage, or otherwise deal with such REO
Property, subject to the direction of the Majority Noteholders with
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respect thereto. The Trustee may enter into a servicing agreement with a
servicer or an agreement with an independent contractor for the management of
REO Properties in accordance with the provisions of Section 11.2(a).
Section 11.18. Property Substitution.
(a) The Lessee shall have the right to make a Substitution
with respect to any Property subject to the CRC Leases with another property
(a "Substitution") in accordance with Articles 12, 15 and 28 of the
applicable CRC Lease.
(b) Any such Substitution shall require sixty (60) days'
prior written notice to the Trustee. Such notice shall include the date upon
which the Substitution is requested, the Property requested to be replaced,
and the proposed Substitute Unit. Any such Substitution shall be subject to
all of the terms and conditions set forth in Articles 12 and 15 (as
applicable) and Article 28 of the applicable CRC Lease, as certified by the
Lessee pursuant to the certificates referred to in clause (i) below. In
addition to all such conditions, such Substitution shall not occur unless and
until the Trustee has received all of the following, with respect to such
Substitution and the Substitute Unit, each duly executed and acknowledged
(where required), and each in form and substance satisfactory to Noteholders'
Counsel:
(i) a certificate of the Lessee in the form
attached as Exhibit P;
(ii) a copy of the deed evidencing the applicable
Borrower's estate for years in the Substitute Unit of a duration not
less than the then remaining estate for the Released Unit in the
form attached as Exhibit L;
(iii) an original Short-Form Master Lease, Notice
of Non-Responsibility, Subordination and Recognition Agreement in
the form of Exhibit M;
(iv) an original amendment to the applicable CRC
Lease subjecting the Substitute Unit to such CRC Lease in the form
attached hereto as Exhibit O-3 (which shall be the sole original
thereof and which shall be delivered to the Trustee and held by the
Trustee during the term hereof);
(v) an original CRC Mortgage and Foodmaker
Mortgage with respect to the Substitute Unit
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executed by the applicable Borrower and the Lessee, respectively,
with the collateral assignment thereof from the Issuer to the
Trustee, which Mortgages and collateral assignment shall be in the
form of the deed of trust or mortgage (as applicable) attached as
Exhibits D-1, D-2, D-3 or D-4, as the case may be, with such
modifications thereto as may be necessary under applicable state law
as approved by the Noteholders' Counsel;
(vi) an original supplement to the applicable CRC
Lease Assignment with respect to the Substitute Unit in the form
attached as Exhibit N;
(vii) a Uniform Commercial Code financing statement
on Form UCC-1 naming CRC-I or CRC-II, as applicable, and the Lessee,
respectively, as debtor, the Issuer, as secured party and the
Trustee, as assignee;
(viii) the Insurance Policies or certificates (which
may be blanket certificates) evidencing the Insurance Policies
concerning the Substitute Unit;
(ix) a copy of any survey required in connection
with the issuance of Title Policies concerning the Substitute Unit,
if available;
(x) a copy of the MAI appraisals required under
the applicable CRC Lease, each dated not more than 60 days before
the date of such Substitution, concerning the Substitute Unit;
(xi) a copy of a "Phase I" environmental report
concerning the Substitute Unit, to the extent in the Lessee's or
CRC-I's or CRC-II's possession;
(xii) any necessary Uniform Commercial Code
financing statements on Form UCC-1 naming the Issuer, as debtor, and
the Trustee, as secured party;
(xiii) the Title Policy or Policies for the
Substitute Unit or a commitment therefor, insuring the CRC Mortgage
and the Foodmaker Mortgage for such Substitute Unit as valid first
priority liens on, among other things, the applicable Borrower's
estate for years interest or the Lessee's reversionary interest in
such Property, as applicable, in favor of the Issuer and the Trustee
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(by virtue of the collateral assignment thereof to the Trustee
referred to in clause (vi) above), subject to no exceptions other
than Permitted Encumbrances;
(xiv) an updated schedule to the CRC Notes
describing the Mortgages which secure such notes; and
(xv) opinions of counsel addressed to the Trustee
and the Noteholders (including from special New York counsel and
local counsel acceptable to the Trustee in the state in which the
Substitute Unit is located), substantially in the forms attached
hereto as Exhibits B, and I-1 through I-4, as applicable, with
respect to, among other things the due authorization, execution,
delivery and enforceability by and against the Issuer, the
applicable Borrower and the Lessee of each of the documents referred
to in this Section to which such entity is a party, which opinions
may include customary assumptions, limitations, qualifications and
exclusions.
In no event shall any Substitution be permitted if a CRC
Lease Event of Default or an Event of Default under any Foodmaker Mortgage
has occurred and is continuing.
All such Security Documents and other documents and
assignments thereof to the Trustee shall be in appropriate form for filing or
recording and shall be duly filed or recorded in the offices where such
filing or recording is required in the state where the relevant Substitute
Unit is located; provided that the Trustee shall not be required to determine
whether any document is in recordable form or see to the filing or recording
of any document. With respect to the original Security Documents or any
other of the documents referred to above or any assignments thereof to the
Trustee that requires filing or recordation, the Issuer shall represent and
warrant in writing that such original Security Document or other document or
assignment thereof has been delivered to the title company issuing the Title
Policies for filing or recordation, as the case may be. In all such
instances, the Issuer shall deliver or cause to be delivered such original
Security Document or other document or assignment thereof to be filed or
recorded to the Trustee, with evidence of filing or recording, as the case
may be, indicated thereon, within 60 days after the Substitution.
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All filing and recording required pursuant to this
Section 11.18 shall be accomplished at the expense of the Issuer.
All of the foregoing documents and items shall be subject
to review by Noteholders' Counsel for conformity with the requirements hereof
and of the applicable CRC Lease, and if a Substitute Unit is located in a
state other than Arizona, California, Texas, Washington, Illinois or
Missouri, to review by local counsel in such state to the extent Noteholders'
Counsel deems reasonably necessary. The Issuer shall pay or cause the Lessee
to pay all expenses incurred by the Trustee and the Noteholders in connection
with any such Substitution, including, without limitation, reasonable
attorneys' fees and expenses (including, without limitation, for special
local counsel) incurred in reviewing any of the foregoing documents or items.
(c) Upon satisfaction of the foregoing conditions of
this Section 11.18, the Substitute Unit shall constitute a Property for all
purposes of this Indenture and the Trustee shall execute and deliver releases
relating to the Released Unit to release such Released Unit from the lien of
this Indenture and the lien of the applicable Mortgages in accordance with
Section 5.06 of the applicable Mortgages. The Trustee may rely conclusively
on Noteholders' counsel as to satisfaction of the conditions to any such
release.
Section 11.19. Early Termination Election.
The Lessee shall have the right, at its option, at any
time on or after the fifth anniversary of the Closing Date, to deliver an
Early Termination Election with respect to any Property, Potential Additional
Unit or Potential Construction Unit in accordance with Article 37 of the
applicable CRC Lease and have such Property or unit released from the lien of
this Indenture and any applicable Mortgages by making a payment under the
Notes as provided in Section 5 of the Notes, and satisfaction of all other
conditions set forth in Article 28 (as applicable to an Early Termination
Election) and Article 37 of the applicable CRC Lease and in Section 6 of the
Notes. The Issuer shall provide, or cause the Lessee to provide, to the
Trustee copies of all appraisals and all necessary calculations for such
prepayment as may be requested by the Trustee, with the notice to the Trustee
of prepayment required under the Notes. Upon receipt by the Trustee of
copies of such appraisals and calculations satisfactory to the Trustee, and
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satisfaction of all other conditions set forth or referred to in this Section
11.19 above, the Trustee shall execute and deliver releases relating to the
Terminated Unit(s) (as defined in the CRC Leases) to release such Property
from the lien of this Indenture and the applicable Mortgages. The Issuer
shall pay or cause the Lessee to pay all expenses incurred by the Issuer and
the Trustee in connection with any Early Termination Election, including,
without limitation, reasonable attorneys' fees and expenses.
Section 11.20. Limitation on Liability of the Trustee Under
Article Eleven.
Neither the Trustee nor any of its officers, directors,
employees, or agents shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under this Article Eleven; provided,
however, that this provision shall not protect the Trustee or any such Person
against any liability which would otherwise be imposed by reason of wilful
misconduct, bad faith, reckless disregard or negligence in the performance of
its duties under this Article Eleven, or (b) responsible in any manner to any
Person for any recitals, statements, representations, or warranties made by
the Issuer, Foodmaker, the Borrowers or any officer thereof contained in the
Mortgage Note Documents or in any certificate, report, statement, or other
document referred to or provided for in, or received by the Trustee under or
in connection with the Mortgage Note Documents or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of such Mortgage
Note Documents or for any failure of the Issuer, Foodmaker or either Borrower
to perform its obligations thereunder. The Trustee shall not be under any
obligation to any Person to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, such
Mortgage Note Documents or to inspect the properties, books, or records of
the Issuer, Foodmaker or either Borrower other than and to the extent as
expressly required hereunder.
ARTICLE TWELVE
MISCELLANEOUS
Section 12.1. Right to List of Holders.
Any Noteholder shall have the right, upon five days prior
notice to the Trustee, to obtain a complete list of Noteholders.
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Section 12.2. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such person may certify or give an opinion as to such matters in one or
several documents.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 12.3. Acts of Noteholders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be
given or taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in
person or by an agent or proxy duly appointed in writing; and, except as
otherwise expressly provided herein or in such instrument, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved in any manner that the Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by any Noteholder shall bind the
Holder (and any transferee thereof) of every
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Note issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof, in respect of anything done, omitted or suffered to be
done by the Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 12.4. Notices, Etc., to Trustee and Issuer.
Any request, demand, authorization, direction, notice,
consent, waiver, or Act of Noteholders or other documents provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with:
(i) the Trustee by any Noteholder or by the
Issuer shall be sufficient for every purpose hereunder when
delivered if made, given, furnished or filed in writing to the
Trustee addressed to it at its Corporate Trust Office; or
(ii) the Issuer by the Trustee or by any
Noteholder shall be sufficient for every purpose hereunder if in
writing and mailed, by first-class mail, postage prepaid, sent by
facsimile or telecopier or sent by overnight courier to the Issuer
addressed to it c/o Mr. Christopher Wilson, at 1-1 Concord Green,
Concord, Massachusetts 01742, with a copy to Mr. Charles Duddles,
c/o Foodmaker, Inc., 9330 Balboa Avenue, San Diego, California
92123.
Section 12.5. Notices to Noteholders; Waiver.
Where this Indenture provides for notice to Noteholders
of any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, by first-class mail,
postage prepaid, (or, upon the prior direction to the Trustee by a
Noteholder, sent by facsimile or telecopier or sent by overnight courier) to
such Noteholder, at its address for such notice as it appears on the
respective Note Register. Any defect in any notice so given to any
particular Noteholder shall not affect the sufficiency of such notice with
respect to other Noteholders, and any notice which is mailed in the manner
herein provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for any notice or delivery to Noteholders, such
notice shall also be delivered to the Rating Agencies so long as they
continue to rate any of the Notes.
The Trustee shall deliver to each Noteholder a copy of
any request, demand, authorization, direction, notice,
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consent, waiver or other document received by the Trustee, in connection with
this Indenture, any of the Mortgage Note Documents or any other documents
referred to herein, and which does not indicate it has been previously or
concurrently furnished to each Noteholder.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed
with the Trustee but such filing shall not be a condition precedent to the
validity of any action taken or omitted in reliance upon such waiver.
Section 12.6. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
Section 12.7. Successors and Assigns.
All covenants and agreements in this Indenture by the
Issuer shall bind its successors and assigns, whether so expressed or not.
Section 12.8. Separability.
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 12.9. Benefits of Indenture.
Nothing in this Indenture or in the Notes, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Noteholders, any benefit or any legal or
equitable right, remedy or claim under this Indenture; provided, however,
that the Lessee shall be a third party beneficiary of those specific
provisions of this Indenture which call for payments to be made directly to
the Lessee or for performance of other obligations to be made in favor of the
Lessee.
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Section 12.10. Legal Holidays.
In the event that the date of any Payment Date or other
date for any payment hereunder shall not be a Business Day, then
notwithstanding any other provision of the Notes or this Indenture, payment
need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of
any such Payment Date or other date for any payment hereunder, and no
additional interest shall accrue for the period from and after any such
nominal date.
Section 12.11. Limitation on Interest.
Anything herein or in any Note to the contrary
notwithstanding, the amount of interest payable or paid on any Note under the
terms of this Indenture shall be limited to any amount that shall not exceed
the maximum nonusurious rate of interest allowed by the applicable laws of
the United States and the State of New York, that could lawfully be
contracted for, charged, or received (the "Highest Lawful Rate"). In the
event any payment of interest is made in violation of this provision, the
parties hereto stipulate, and each Noteholder by his purchase of a Note is
hereby deemed to stipulate, that such excess amount shall be deemed to have
been paid as a result of an error on the part of both the Trustee, acting on
behalf of the Holder of such Note, and the Issuer and the Holder receiving
such excess payment shall promptly, upon discovery of such error or upon
notice thereof from the Issuer or the Trustee, apply the excess to the
payment of principal of such Note, if any, remaining unpaid. In addition,
all sums, which must be treated as interest, paid or agreed to be paid to the
Trustee for the benefit of Holders of Notes for the use, forbearance or
detention of money shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full term of such
Notes.
Section 12.12. Governing Law.
THIS INDENTURE, EACH NOTE AND EACH COLLATERAL
ASSIGNMENT
ATTACHED AS PART II TO EACH MORTGAGE SHALL BE CONSTRUED IN
ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 12.13. Counterparts.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
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be an original, but all such counterparts shall together constitute but one
and the same instrument.
Section 12.14. Indulgences Not Waivers.
Neither the failure nor any delay on the part of a party
to exercise any right, remedy, power or privilege under this Indenture will
operate as a waiver thereof, nor will any single or partial exercise of any
such right, remedy, power or privilege preclude any other or further exercise
of the same or of any other such right, remedy, power or privilege with
respect to any occurrence or be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver will be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
Section 12.15. Recordation of Agreement.
To the extent permitted by applicable law, this Indenture
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the Properties are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Trustee
at the Issuer's expense at direction of the Majority Noteholders accompanied
by an Opinion of Independent Counsel to the effect that such recordation
materially and beneficially affects the interests of the Trustee or is
necessary for the administration or servicing of the CRC Notes and the
Mortgages. For the purpose of facilitating the recordation of this Indenture
as herein provided and for other purposes, this Indenture may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and such counterparts shall constitute but
one and the same instrument.
Section 12.16. Attorneys' Fees.
Notwithstanding anything to the contrary contained herein
but subject to the provisions of Section 2.12 hereof, in each case where this
instrument provides for the payment of the attorneys' fees and expenses of
in-house or staff counsel to the Noteholders or the Trustee, such provision
shall obligate the Issuer to pay only the reasonably allocated fees and
expenses of in-house or staff counsel to the Trustee, based on a billing for
legal services actually rendered on an hourly basis and at a reasonable
hourly rate.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be executed, as of the day and year first above written.
FM 1993A CORP., a Delaware corporation,
as principal and as agent for the Borrowers
By: /S/ CHARLES DUDDLES
-------------------------------
Name: Charles Duddles
Title: President
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /S/ DANIEL GOLDEN
_________________________________
Name: Daniel Golden
Title: Assistant Vice President
<PAGE>
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ATTACHMENTS TO INDENTURE
SCHEDULES
Schedule A-1 Schedule of 29 Existing Assets to be funded
on the Closing Date
Schedule A-2 Schedule of 16 Construction Units to be
funded on the Closing Date
Schedule A-3 Schedule of 9 Potential Additional Units to
be funded after the Closing Date
Schedule B Schedule of 22 Potential Construction Units
to be acquired by Lessee after the Closing
Date
Schedule C Unit Percentages
Schedule D Schedule of Trustee's Fees
<PAGE>
EXHIBIT 4.2
GUARANTY
(CRC-I Limited Partnership)
This Guaranty ("Guaranty") is entered into as of December 15,
1993 by the undersigned (the "Guarantor") in favor of and for the benefit of
State Street Bank and Trust Company, as trustee (the "Indenture Trustee") and
the holders of the Issuer Notes (the "Noteholders") under that certain Indenture
described in the recitals below. The Indenture Trustee and the Noteholders are
referred to collectively herein as the "Beneficiaries." All capitalized terms
used herein but not specifically defined shall have the respective meanings
given to such terms in the Indenture.
RECITALS
A. FM 1993A Corp., a Delaware corporation ("Issuer") is a
corporation which has been established for the sole purpose of issuing
certain notes (the "Issuer Notes") pursuant to that certain Indenture (the
"Indenture"), dated as of December 15, 1993, between Issuer and the Indenture
Trustee, and to use the proceeds from such issuance of the Issuer Notes to,
among other things, purchase certain promissory notes (collectively, the
"Mortgage Notes") now or hereafter issued by Guarantor and CRC-II Limited
Partnership, a Massachusetts limited partnership ("CRC-II") pursuant to Note
Purchase Agreements between Issuer and Guarantor and between Issuer and CRC-
II. Guarantor and CRC-II are also referred to herein individually as a "CRC
Partnership" and collectively as the "CRC Partnerships."
B. Concurrently with the execution and delivery of this
Guaranty, Issuer has issued and sold the Issuer Notes and has pledged and
assigned to the Indenture Trustee, for the benefit of the Noteholders, the
Mortgage Notes and all collateral pledged to Issuer in connection with the
Mortgage Notes. The principal and interest payments on the Issuer Notes will
be serviced by payment of the Mortgage Notes.
C. Guarantor anticipates benefiting directly and indirectly
from the issuance and sale of the Issuer Notes by Issuer and is, therefore,
willing to guarantee the obligations of Issuer thereunder in accordance with the
terms hereof.
In consideration of the above Recitals and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Guaranty of Indebtedness. As set forth in this
Guaranty, Guarantor unconditionally guarantees the full payment of the
Indebtedness (as hereafter defined) when due, upon maturity, acceleration or
otherwise, and unconditionally agrees to pay the full amount of the
Indebtedness. This is a guaranty of payment, not of collection. If Issuer
defaults in the payment when due of the Indebtedness or any part of it,
Guarantor shall in lawful money of the
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United States pay to the Beneficiaries or to order, on demand, all of the
Indebtedness.
2. Definition of Indebtedness. "Indebtedness" as used
herein shall mean all principal, interest, fees, charges, prepayment
premiums, penalties, expenses, payments, and all other amounts due from
Issuer from time to time under the Indenture on or with respect to the Issuer
Notes, whether now existing or hereafter arising, whether by reason of
amendment or otherwise, whether due or to become due, absolute or contingent,
liquidated or unliquidated, whether Guarantor may be liable individually or
jointly with others.
3. Unconditional Guaranty. Subject to the conditions set
forth in Section 13 of this Guaranty, the liability of Guarantor under this
Guaranty in respect of the Indebtedness shall be absolute and unconditional,
and shall not be affected or released in any way, irrespective of:
a. any lack of validity or enforceability of the
Issuer Notes, the Mortgage Notes, the Indenture, or any other agreement or
instrument relating thereto (such documents and instruments, the "Transaction
Documents");
b. any change in the time, manner or place of payment
of, or in any other term of, all or any of the Indebtedness or amendment or
waiver of, or any consent to any departure from, any Transaction Document,
including, without limitation, any increase in the Indebtedness or other
obligations of Issuer under the Indenture and any transfer by Guarantor of
its interest in any one or more of the Properties encumbered as collateral
for the Mortgage Notes;
c. any enforcement of any Transaction Document,
including the taking, holding or sale of any collateral, or any termination
of or release of any collateral from the liens created by any Transaction
Document or the non-perfection of any liens created by any Transaction
Document;
d. any change, restructuring or termination of the
corporate or partnership structure or existence, as the case may be, of
Issuer or either CRC Partnership; or
e. the Issuer or either CRC Partnership becoming the
subject of any bankruptcy, insolvency, arrangement, reorganization, or other
debtor-relief proceeding under any federal or state law, whether now existing
or later to be enacted.
4. Separate Obligation. Except to the extent provided in
Section 13 of this Guaranty, the obligations hereunder are independent of the
obligations of Issuer or any other guarantor, and a separate action or
actions may be brought and prosecuted against Guarantor whether action is
brought against either Issuer or any other guarantor
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or whether either Issuer or any other guarantor be joined in any such action
or actions.
5. Additional Rights of Beneficiaries. Guarantor
authorizes the Beneficiaries without notice or demand and without affecting
its liability hereunder, from time to time, whether before or after
termination of this Guaranty, to (a) renew, compromise, extend, accelerate or
otherwise change the time for payment of the obligations of Issuer under the
Indenture or any part thereof; (b) take and hold security for the payment of
this Guaranty or the Indebtedness, and exchange, enforce, waive, release,
fail to perfect, sell, or otherwise dispose of any such security; (c) apply
such security and direct the order or manner of sale thereof; and (d) release
or substitute any one or more endorsers or guarantors.
6. Waivers of Defenses. Guarantor hereby waives, to the
fullest extent permitted by applicable law: (a) promptness, diligence, notice
of acceptance and any other notice with respect to any of the Indebtedness or
any other obligations under the Transaction Documents or this Guaranty;
(b) any requirement that any of the Beneficiaries or any other person
protect, secure or insure any lien on any security interest in or collateral
or other property subject thereto or exhaust any right or take any action
against either Issuer or any other person or any collateral or pursue any
other remedy in such Beneficiary's power to pursue; (c) any defense arising
by reason of any claim or defense based upon any election of remedies by the
Beneficiaries which in any manner impairs, reduces, releases or otherwise
adversely affects its subrogation, contribution or reimbursement rights or
other rights to proceed against either Issuer or any other person or any
collateral; (d) any duty on the part of any of the Beneficiaries to disclose
to Guarantor any matter, fact or thing relating to the business, operation or
condition of either Issuer or any other party to any of the Transaction
Documents and Issuer's assets now known or hereafter known by such
Beneficiary; (e) all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and
notices of acceptance of this Guaranty and of the existence, creation, or
incurrence of new or additional Indebtedness; (f) all statutes of limitations
as a defense to any action or proceeding brought against Guarantor by any
Beneficiary; (g) any defense based on any legal disability of Issuer, any
discharge or limitation of the liability of Issuer to any Beneficiary,
whether consensual or arising by operation of law or any bankruptcy,
reorganization, receivership, insolvency, or debtor-relief proceeding, or
from any other cause, or any claim that Guarantor's obligations exceed or are
more burdensome than those of Issuer; (h) any defense based on or arising out
of any defense that Issuer may have to the payment or performance under the
Issuer Notes or the Indenture or any part of them; and (i) all rights to
participate in any security now or later held by any Beneficiary for the
Issuer Notes, regardless of whether Guarantor may have made any payments to
such Beneficiary or for such security.
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7. Waivers of Subrogation and Other Rights.
a. Guarantor hereby irrevocably waives any claim or
other rights which it may now or hereafter acquire against either Issuer or
any other guarantor of any or all of the Indebtedness, whether due or to
become due, voluntary or involuntary, absolute or contingent, liquidated or
unliquidated, determined or undetermined, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of any
Beneficiary against either Issuer or any such guarantor or any collateral
which any Beneficiary now has or hereafter acquires, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including without limitation, the right to take or receive from Issuer,
directly or indirectly, in cash or other property or by set-off or in any
other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to Guarantor in violation of the preceding
sentence and the Indebtedness shall not have been paid in full, such amount
shall be deemed to have been paid to Guarantor for the benefit of, and held
in trust for the benefit of, the Beneficiaries and shall forthwith be paid to
the Beneficiaries to be credited and applied to the Indebtedness, whether
matured or unmatured, in accordance with the terms of the Indenture.
Guarantor acknowledges that it will receive direct and indirect benefits from
the sale of the Issuer Notes contemplated by the Indenture and that the
waiver set forth in this Section 7 is knowingly made in contemplation of such
benefits.
b. Upon a default by Issuer, the Beneficiaries in
their sole discretion, without prior notice to or consent of Guarantor, and
as provided in the Indenture, may elect to foreclose either judicially or
nonjudicially against any real or personal property security any of them may
hold for the Issuer Notes, or accept an assignment of any such security in
lieu of foreclosure, or compromise or adjust the Issuer Notes or any of them
or make any other accommodation with Issuer, Guarantor or any other guarantor
of the Indebtedness, or exercise any other remedy against Issuer or any
security. No such action by the Beneficiaries shall release or limit the
liability of Guarantor, who shall remain liable under this Guaranty after the
action, even if the effect of the action is to impair or destroy any ability
that Guarantor may have to seek reimbursement, contribution or
indemnification from Issuer or others based on any right Guarantor may have
of subrogation, reimbursement, contribution, or indemnification for any
amounts paid by Guarantor under this Guaranty. Guarantor further understands
and acknowledges that in the absence of this waiver, such potential
impairment or destruction of Guarantor's rights, if any, may entitle
Guarantor to assert certain defenses to this Guaranty and that, by executing
this Guaranty, Guarantor freely, irrevocably and unconditionally: (i) waives
and relinquishes that defense and agrees that Guarantor will be fully liable
under this Guaranty even though the Beneficiaries may foreclose judicially or
nonjudicially against any real property security for the Notes; (ii) agrees
that Guarantor will not assert that defense in any action or proceeding which
the Beneficiaries
4<PAGE>
<PAGE>
may commence to enforce this Guaranty; and (iii) acknowledges and agrees that
the Beneficiaries are relying on this waiver in entering into the Indenture
and purchasing the Notes, and that this waiver is a material part of the
consideration which the Beneficiaries are receiving for entering into the
Indenture and purchasing the Notes. Guarantor expressly agrees that under no
circumstances shall it be deemed to have any right, title, interest or claim
in or to any real or personal property to be held by Beneficiaries or any
third party after any foreclosure or assignment in lieu of foreclosure of any
security for the Issuer Notes.
8. Revival and Reinstatement. Guarantor agrees that, to
the extent that either Issuer or Guarantor makes a payment or payments to the
Beneficiaries, or the Beneficiaries receive any proceeds of collateral, which
payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or otherwise required to
be repaid to either Issuer, its estate, trustee, receiver or any other party,
including, without limitation, under any bankruptcy law, state or federal
law, common law or equitable cause, then to the extent of such payment or
repayment, the obligation or part thereof which has been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or satisfaction
occurred. Guarantor shall defend and indemnify the Beneficiaries from and
against any claim or loss under this Section 8 (including reasonable
attorneys' fees and expenses for both outside and staff counsel) in the
defense of any such action or suit.
9. Issuer's Financial Condition. Guarantor acknowledges
and agrees that it shall have the sole responsibility for obtaining from
Issuer such information concerning Issuer's financial condition or business
operations as Guarantor may require, and that the Beneficiaries have no duty
at any time to disclose to Guarantor any information relating to the business
operations or financial condition of Issuer.
10. Subordination of Guarantor's Rights. To the extent that
the waivers set forth in Section 7 are or are deemed to be ineffective or
inapplicable, any obligations of Issuer to Guarantor, now or hereafter existing,
are hereby subordinated to the Indebtedness. If the Beneficiaries so request,
after the occurrence of an Event of Default (as defined in the Indenture), such
obligations of Issuer to Guarantor shall be enforced and performance received by
Guarantor as trustee for the Beneficiaries and the proceeds thereof shall be
paid over to the Beneficiaries on account of the Indebtedness, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty.
11. Assignment; Disclosure of Information. The
Beneficiaries may, without notice to Guarantor and without affecting
Guarantor's obligations hereunder, assign this Guaranty, in whole or in part
in accordance with the provisions of the Indenture. Guarantor agrees that
the Beneficiaries may, subject to the provisions of the Indenture,
5<PAGE>
<PAGE>
disclose to any prospective purchaser and any purchaser of all or part of the
Indebtedness any and all information in the Beneficiaries' possession
concerning Guarantor, this Guaranty and any security for this Guaranty.
12. Attorneys' Fees. Subject to Section 13 of this
Guaranty, Guarantor agrees to pay all reasonable attorneys' fees and expenses
(for both outside and staff counsel) and all other fees and expenses which
may be incurred by the Beneficiaries in the enforcement of this Guaranty.
Any attorneys' fees and expenses of in-house or staff counsel shall be based
on a billing for legal services actually rendered on an hourly basis and at a
reasonable hourly rate.
13. Non-Recourse to General Partner. The Beneficiaries
agree that neither the general partner of Guarantor (the "GP Entity"), nor
any partner, officer, director, shareholder or employee of either Guarantor
or the GP Entity (collectively, the "Nonrecourse Parties") shall be
personally liable for the payment of any sums now or hereafter owing to the
Beneficiaries under the terms of, or for the performance of any obligation
contained in, this Guaranty. The Beneficiaries agree that their rights
hereunder shall be limited to proceeding against Guarantor and that they
shall have no right to proceed against the Nonrecourse Parties for (i) the
satisfaction of any monetary obligation of, or enforcement of any monetary
claim against, Guarantor, (ii) the performance of any obligation, covenant or
agreement arising under this Guaranty, or (iii) any deficiency judgment
remaining after foreclosure of any personal property securing the obligations
hereunder. Nothing under this Section 13 shall be construed to limit the
liability of the Nonrecourse Parties under the CRC Loans (subject to the
nonrecourse provisions contained in the Transaction Documents).
14. Choice of Law. This Guaranty shall be governed by and
construed according to the laws of the State of New York without regard to
principles of conflicts of law. Any legal action or proceeding with respect
to this Guaranty may be instituted in the courts of the State of New York,
the United District Court for the Southern District of New York, or
elsewhere, as the Beneficiaries may elect, and by execution and delivery of
this Guaranty, Guarantor irrevocably and unconditionally waives (i) any
objection it may now or hereafter have to the laying of venue in any such
courts, (ii) any claim that any action or proceeding brought in any of such
courts has been brought in an inconvenient forum, and (iii) any rights,
entitlement or privilege which Guarantor or its property might otherwise have
not to be subject to such actions or proceedings by reason of sovereign
immunity or otherwise. Guarantor agrees that so long as Guarantor shall be
obligated to the Beneficiaries under this Guaranty, Guarantor shall maintain
duly appointed agents satisfactory to Beneficiaries for the service of
process in New York, and shall keep the Beneficiaries advised in writing of
the identification and location of such agents. The failure of such agents
to give notice to Guarantor of any such service shall not impair or affect
the validity of such service or of any judgment rendered in any action or
proceeding based thereon.
6<PAGE>
<PAGE>
15. Complete Agreement. This Guaranty embodies the entire
agreement and understanding between the parties hereto and supersedes all
prior agreements and understandings relating to the subject matter hereof.
16. Delay; Cumulative Remedies. No delay or failure by any
of the Beneficiaries to exercise any right or remedy against the Issuer,
Guarantor or any other guarantor will be construed as a waiver of that right
or remedy. All remedies of the Beneficiaries against the Issuer, Guarantor
and any other guarantors are cumulative.
17. Successors and Assigns. The provisions of this Guaranty
will bind and benefit the endorsees, transferees, successors and assigns of
Guarantor and Beneficiaries.
18. Severability. In the event any one or more of the
provisions contained in this Guaranty shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
and unenforceable provision shall not affect any other provision of this
Guaranty, but this Guaranty shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
19. Counterparts. This Guaranty may be executed in any
number of counterparts, all of which together shall constitute one and the
same instrument.
Guarantor has executed this Guaranty as of the date and year
first written above.
Guarantor:
CRC-I Limited Partnership,
a Massachusetts limited partnership
By: CRC-I Corp.,
a Massachusetts corporation,
its sole general partner
By: /S/ CHARLES DUDDLES
----------------------------
Name: Charles Duddles
Title: President
7<PAGE>
<PAGE>
GUARANTY
The Company also entered into a Guaranty with CRC-II substantially identical to
the CRC-I Guaranty differing only as the to properties involved. A summary of
material differences follows:
1. References to CRC-I are changed to CRC-II.
2. References to CRC-II are changed to CRC-I.
<PAGE>
EXHIBIT 10.2
AGREEMENT REGARDING CORPORATE GOVERNANCE
THIS AGREEMENT REGARDING CORPORATE GOVERNANCE ("Agreement") is
made as of
December ___, 1993 ("Effective Date"), by and between CHARLES DUDDLES
(hereinafter, "Designated Officer"), FOODMAKER, INC., a Delaware Corporation
("Foodmaker"), and CRC-I CORP., a Massachusetts corporation ("CRC-I Corp."),
CRC-II CORP., a Massachusetts corporation ("CRC-II Corp."), FM 1993A CORP., a
Delaware corporation ("FM 1993A"), CHRISTOPHER WILSON, an individual ("Wilson"),
MATHEWS-PHILIPS SERVICE COMPANY, a Pennsylvania general partnership ("Mathews"),
ROBERT KEY, an individual ("Key"), and ROBERT L. NESSEN, an individual
("Nessen"), who agree as follows:
1. Recitals. This Agreement is executed in contemplation of
the following facts and circumstances:
a. Designated Officer is an officer and director of Foodmaker.
b. Foodmaker and CRC-I Limited Partnership, a Massachusetts
limited partnership ("CRC-I Limited Partnership"), and CRC-II Limited
Partnership, a Massachusetts limited partnership ("CRC-II Limited
Partnership"), are parties to those certain sale-leaseback transactions
(hereinafter, "Sale-Leaseback Transactions") described in (i) that certain
Master Lease between CRC-I Limited Partnership, as lessor, and Foodmaker, as
lessee, (ii) that certain Master Lease between CRC-II Limited Partnership, as
lessor, and Foodmaker, as lessee, (iii) that certain Registration Rights
Agreement (as hereinafter defined), and (iv) all other documents executed in
connection therewith (collectively, "Transaction Documents").
c. FM 1993A Corp. has agreed to issue certain debt securities
("Debt Securities") and to utilize the proceeds thereof to purchase certain
promissory notes from the CRC-I Limited Partnership and the CC-II Limited
Partnership (collectively, the "Limited Partnerships") in connection with the
Sale-Leaseback Transactions.
d. CRC-I Corp. is the sole corporate general partner of the
CRC-I Limited Partnership.
e. CRC-II Corp. is the sole corporate general partner of the
CRC- II Limited Partnership.
f. Nessen is the sole shareholder of CRC-I Corp. and CRC-II
Corp., and Key is the sole shareholder of FM 1993A. Nessen intends to
transfer the shares of CRC-I Corp. to Mathews after the Effective Date. The
parties (other than Mathews) intend that Mathews will execute this Agreement
as a condition to the transfer of the shares of
1<PAGE>
<PAGE>
CRC-I to Mathews. The parties anticipate that Wilson will serve as a
director of each of CRC-I Corp., CRC-II Corp. and FM 1993A.
g. In connection with the Sale-Leaseback Transactions, FM
1993A, CRC-I Corp. and CRC-II Corp. (collectively, "Co-Registrants") have
executed or will be required to execute that certain Registration Rights
Agreement ("Registration Rights Agreement"), which requires the Co-Registrants
to participate in the filing of a registration statement with the Securities and
Exchange Commission incident to FM 1993A's sale of the Debt Securities.
h. By this Agreement, the parties intend to set forth their
respective rights and responsibilities with respect to the corporate
governance of CRC-I Corp., CRC-II Corp. and FM 1993A.
i. Foodmaker acknowledges and agrees that it will receive a
material benefit from the participation of the Limited Partnerships and FM
1993A in such transaction.
2. Basic Term. This Agreement shall remain in effect for a period
beginning on the Effective Date and continuing until November 1, 2003.
3. Obligations of Designated Officer. For as long as Designated
Officer is an officer, director or employee of Foodmaker, upon the nomination
and election of the Designated Officer by the shareholders of the Co-
Registrants, the Designated Officer shall serve as the director of each of
the Co-Registrants, and shall vote to appoint himself to serve as the
President, Clerk and Chief Financial Officer (and any other office required
under Massachusetts or Delaware corporate law, as applicable) of each of the
Co-Registrants. The Designated Officer shall accept said nomination and
election from time to time as required under the laws of the state of
Massachusetts or Delaware, as applicable, and shall serve as a director and
as the officers of each of the Co-Registrants until such time as the Debt
Securities have been repaid in full and the registration statement described
in the Registration Rights Agreement is no longer effective.
4. Obligations of Foodmaker. If Designated Officer shall cease to be
an employee of Foodmaker for any reason or shall resign as the director or
officer of any of the Co-Registrants, Foodmaker shall designate a successor
(hereinafter, "Successor Designated Officer") who, for as long as the Successor
Designated Officer is an employee of Foodmaker, upon the nomination and election
of the Successor Designated Officer by the shareholders of the Co-Registrants,
shall serve as the director of each of the Co-Registrants and shall appoint
himself or herself to serve as the President, Clerk and Chief Financial Officer
(and the holder of any other office required under Massachusetts or Delaware
corporate law, as applicable) of each of the Co- Registrants. The Successor
2<PAGE>
<PAGE>
Designated Officer shall accept such nomination and election from time to
time as required under the laws of the State of Massachusetts or Delaware, as
applicable, and shall serve as a director and the officers of each of the Co-
Registrants until such time as the Debt Securities have been repaid in full
and the registration statement described in the Registration Rights Agreement
is no longer effective. Upon designating a Successor Designated Officer,
Foodmaker shall cause such Successor Designated Officer to execute and
deliver to the other parties hereto an agreement in form and substance
satisfactory to them pursuant to which he assumes the obligations of the
Designated Officer hereunder from and after the date of his appointment as
such.
5. Obligations of Shareholders. Until such time as the Debt
Securities have been repaid in full and the registration statement described
in the Registration Rights Agreement is no longer effective, the shareholders
of each of the Co-Registrants (Mathews, Nessen and Key, with respect to CRC-I
Corp., CRC-II Corp. and FM 1993A, respectively) shall elect Wilson and the
Designated Officer as directors of each of the Co-Registrants. If either (i)
the Designated Officer shall cease to be employed by Foodmaker for any
reason, or (ii) the Designated Officer shall resign as a director or as the
officers of any of the Co-Registrants, the shareholders of each of the Co-
Registrants shall elect the Successor Designated Officer as the director of
each of the Co-Registrants.
6. Obligations of Wilson. Upon the nomination and election of Wilson
by the shareholders of Co-Registrants, Wilson shall accept such nomination,
shall serve as a director of the Co-Registrants, and shall vote to appoint
Duddles to serve as the President, Clerk and Chief Financial Officer (and any
other office required under Massachusetts or Delaware corporate law, as
applicable) of each of the Co-Registrants.
7. Certain Corporate Governance Matters. Foodmaker and the
Designated Officer agree that the Designated Officer (or Successor Designated
Officer), in his or her capacities as a director or officer of any
Co-Registrant) will not take, and Foodmaker will not permit the Designated
Officer (or Successor Designated Officer) to take, any action specified below
without the prior written consent of the holders of 51% or more of the limited
partnership interests in the Limited Partnership by which such action is
proposed to be taken, or, in the case of an action by FM 1993A Corp., without
the prior written consent of the holders of 51% or more of the limited
partnership interests in each Limited Partnership:
a. Any action to waive compliance by Foodmaker with, to amend
or to consent to a deviation by Foodmaker from the terms of the Transaction
Documents.
b. Any action to accept or reject any offer made by Foodmaker
to either Limited Partnership pursuant to the terms of either Master Lease
referenced in the preamble to this Agreement.
3<PAGE>
<PAGE>
c. Any action which would constitute or result in a violation
by either Limited Partnership or of FM 1993A of any of the provisions of the
Transaction Documents.
In addition, the Designated Officer (or Successor Designated Officer), in his
or her capacities as a director or officer of any Co-Registrant, shall take
any action upon the written request of the holders of 51% or more of the
limited partnership interests in the Limited Partnership by which such action
is proposed to be taken (provided that such action is not in violation of
such Co-Registrant's organizational documents or the limited partnership
agreement of such Limited Partnership), or, in the case of FM 1993A Corp.,
upon the written request of the holders of 51% or more of the limited
partnership interests in each Limited Partnership.
8. Certain Affirmative Corporate Governance Obligations. Foodmaker
agrees that it will take, and will cause the Designated Officer (or Successor
Designated Officer) to take, at Foodmaker's expense, all necessary action to
ensure that the Limited Partnerships and FM 1993A Corp. are at all time in full
compliance with the provisions of each of the Transaction Documents to which
they are a party. In addition to the foregoing, Foodmaker agrees that it will
take, and will cause the Designated Officer (or Successor Designated Officer) to
take, all necessary action requested by any limited partner of the Limited
Partnerships to effectuate the transfer to any third party of such limited
partner's partnership interest in the Limited Partnership in which such limited
partner is a partner (provided that the prior written consent of the general
partner of such Limited Partnership has been obtained) and all necessary action
requested by the holders of 51% or more of the limited partnership interests in
a Limited Partnership to sell, assign or otherwise transfer all or any portion
of the assets of such Limited Partnership (provided that such transfer is
carried out in accordance with Section 1.06 of the applicable mortgage or deed
of trust entered into by such Limited Partnership as a part of the Transaction
Documents covering the assets proposed to be so transferred).
9. Further Assurances. Each party shall perform any further acts and
execute and deliver any documents which reasonably may be necessary to carry out
the intent of this Agreement.
10. Attorneys' Fees. If any action or proceeding is commenced or
legal counsel consulted to enforce or interpret any provision of this Agreement,
the prevailing party shall be entitled to recover from the other party
attorneys' fees and costs incurred in connection with such legal action or
consultation. The term "prevailing party" shall mean the party in any action or
consultation who obtains substantially the relief or result sought, whether by
compromise, settlement or judgment.
4<PAGE>
<PAGE>
11. Governing Law. This Agreement in all respects shall be
interpreted, enforced and governed by and under the laws of the Commonwealth
of Massachusetts.
12. Integration. This Agreement memorializes and constitutes the
final, complete and exclusive agreement and understanding between the
parties, and supersedes and replaces all prior negotiations, proposed
agreements and agreements, whether written or oral. Each party to this
Agreement acknowledges that no other party or agent or attorney for any other
party has made any promise, representation or warranty whatsoever or implied
which is not expressly contained in this Agreement and each party further
acknowledges that it has not executed this Agreement in reliance upon any
collateral promise, representation or warranty, or under reliance of any
belief as to any fact not expressly recited in paragraph 1 above.
13. Independent Advice. Each party acknowledges that it has received
independent legal advice with respect to the advisability of entering into this
Agreement.
14. Headings. Paragraph headings have been inserted into this
Agreement as a matter of convenience only and are not a part of this Agreement
and shall not be used in the interpretation of this Agreement.
15. Severance. If a provision of this Agreement is held to be illegal
or invalid by a court of competent jurisdiction, said provision shall be deemed
to be severed and deleted and neither such provision, nor its severance and
deletion shall effect the validity of the remaining provisions.
16. Successors and Assigns. The provisions, covenants, conditions and
agreements herein contained shall apply to, bind and inure to the benefit of the
parties and their respective heirs, executors, administrators, legal
representatives, successors and assigns.
17. Counterparts. This Agreement may be executed in one or more
counterparts all of which the other shall constitute one original document.
18. Interpretation. This Agreement has been negotiated at arm's
length between persons sophisticated and knowledgeable with the matters dealt
with in this Agreement. In addition, each party has been given the opportunity
to consult with and has consulted with experienced and knowledgeable legal
counsel. Accordingly, any rule of law or legal decision that would require
interpretation of any ambiguities in this Agreement against the party that has
drafted it is not applicable and is waived. The provisions of this Agreement
shall be interpreted in a reasonable manner to effect the purposes of this
Agreement.
5<PAGE>
<PAGE>
19. Venue. Venue for any action, whether arbitration, judicial or
otherwise, shall be in San Diego County, California.
20. No Oral Modifications. This Agreement may be amended or modified
in writing only signed by the parties hereto.
21. Notices. All communications herein provide for or made pursuant
hereto shall be in writing and shall be sent by (i) legible fax with original to
follow in due course (failure to send such original shall not affect the
validity of such fax notice), and the giving of such communication shall be
complete when such fax is received, and (ii) either (A) registered or certified
mail, return receipt requested, in which event the giving of such communication
shall be deemed complete on the fifth business day after the same is deposited
in the United States Post Office with charges prepaid, or (B) reputable
overnight delivery service, in which event the giving of such communication
shall be deemed complete upon the immediately succeeding business day after the
same is deposited with such deliver service:
If to Designated Officer: Charles Duddles
9330 Balboa Avenue
San Diego, California 92123-1516
If to Foodmaker: Foodmaker, Inc.
9330 Balboa Avenue
San Diego, California 92123-1516
If to CRC-I Corp: CRC-I Corp.
c/o R. Gordon Mathews
650 Washington Road
Pittsburgh, Pennsylvania 15228
and to: c/o Charles Duddles
9330 Balboa Avenue
San Diego, California 92123-1516
If to CRC-II Corp: CRC-II Corp.
c/o Robert L. Nessen
One Financial Center, 13th Floor
Boston, Massachusetts 02111
and to: c/o Charles Duddles
9330 Balboa Avenue
San Diego, California 92123-1516
6<PAGE>
<PAGE>
If to FM 1993A: FM 1993A
c/o Robert Key
3350 North 60th Street
Phoenix, Arizona 85018
and to: c/o Charles Duddles
9330 Balboa Avenue
San Diego, California 92123-1516
If to Wilson: Christopher Wilson
1-1 Concord Green
Concord Green, Massachusetts 01742
If to Mathews: Mathews-Philips Service Company
c/o R. Gordon Mathews
650 Washington Road
Pittsburgh, Pennsylvania 15228
If to Key: Robert Key
3350 North 60th Street
Phoenix, Arizona 85018
If to Nessen: Robert L. Nessen
One Financial Center, 13th Floor
Boston, Massachusetts 02111
22. Effective Date. This Agreement shall be effective only after all
the parties hereto have affixed their signatures below.
FOODMAKER, INC., a Delaware corporation
By: /S/ WILLIAM F. MOTTS
------------------------------
William F. Motts
Vice President
Restaurant Development
By:
------------------------------
Leo Momsen
Assistant Secretary
(SIGNATURES CONTINUED NEXT PAGE)
7<PAGE>
<PAGE>
MATHEWS-PHILIPS SERVICE COMPANY, a
Pennsylvania general partnership
By:______________________________
Its:_____________________________
______________________________
Christopher Wilson
/S/ROBERT L. NESSEN
------------------------------
Robert L. Nessen
_____________________________
Robert Key
______________________________
Charles Duddles
CRC-I CORP., a Massachusetts corporation
By: /S/ ROBERT NESSEN
-------------------------
Robert Nessen
President
CRC-II CORP., a Massachusetts corporation
By: /S/ ROBERT NESSEN
-------------------------
Robert Nessen
President
FM 1993A CORP., a Delaware corporation
By:_________________________
Charles Duddles
President
8
<PAGE>
Exhibit 23.2
Independent Auditor's Consent
The Board of Directors
Foodmaker, Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-11 of FM 1993A Corp. of our report dated November 19, 1993, relating
to the consolidated balance sheets of Foodmaker, Inc. and subsidiaries as of
October 3, 1993 and September 27, 1992 and the related consolidated
statements of operations, cash flows, and stockholders' equity for the fifty-
three weeks ended October 3, 1993 and the fifty-two weeks ended September 27,
1992 and September 29, 1991, and our report dated December 30, 1993 on
related schedules, for the fifty-three weeks ended October 3, 1993 and the
fifty-two weeks ended September 27, 1992 and September 29, 1991, which
reports appear in the October 3, 1993 annual report on Form 10-K of
Foodmaker, Inc. and subsidiaries. Our reports refer to a change in 1993 in
the methods of accounting for postretirement benefits and income taxes to
adopt the provisions of the Financial Accounting Standards Board's
Statements of Financial Accounting Standards No. 106, "Employers' Accounting
for Postretirement Benefits Other Than Pensions", and No. 109, "Accounting
for Income Taxes".
We also consent to the reference to our firm under the heading "Experts" in
the prospectus.
KPMG PEAT MARWICK
San Diego, California
May 2, 1994
<PAGE>
Exhibit 23.3
Independent Auditor's Consent
The Board of Directors
FM 1993A Corp.:
We consent to use of our reports included herein and to the reference
to our firm under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK
San Diego, California
May 2, 1994
<PAGE>
Exhibit 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of FM 1993A Corp., CRC-I Limited Partnership, CRC-II Limited Partnership
on Form S-11 (Form S-3 as to Foodmaker, Inc.) of our report dated March 22,
1994, on Family Restaurants, Inc., (formerly The Restaurant Enterprises
Group, Inc.), included in Foodmaker, Inc.'s Current Report on Form 8-K/A
dated January 27, 1994.
DELOITTE & TOUCHE
Costa Mesa, California
May 2, 1994
<PAGE>
EXHIBIT 99
LETTER OF TRANSMITTAL
Offer for all Outstanding Privately Placed
9.75% Senior Secured Notes due November 1, 2003
in Exchange for
Series B 9.75% Senior Secured Notes due November 1, 2003
of
FM 1993A CORP.
THIS EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON _____________, 1994, UNLESS EXTENDED
The Exchange Agent will be State Street Bank and Trust Company,
whose mailing address, facsimile number and telephone number are as follows:
By Overnight
By Hand: By Mail: Express: By Telephone:
State Street Bank State Street Bank State Street Bank (617) 985-3023
and Trust Company and Trust Company and Trust Company
Corporate Trust Corporate Trust Corporate Trust
Window, 4th Floor Department Department
Two International P.O. Box 778 Two International By Facsimile:
Place Boston, Boston, Place Boston,
Massachusetts 02110 Massachusetts 02102 Massachusetts 02110 (617) 985-3034
Attn: Andrew Sinasky Attn: Andrew Sinasky Attn: Andrew Sinasky
DESCRIPTION OF SECURITIES TENDERED
Name and Address of Registered
Holder as it Appears on the
Privately Placed 9.75% Senior
Secured Notes due Certificate
November 1, 2003 Number(s) of Principal Amount of
("Old Notes") Old Notes Transmitted Old Notes Transmitted
- ---------------------------- ----------------------- ---------------------
- ---------------------------- ----------------------- ---------------------
- ---------------------------- ----------------------- ---------------------
- ---------------------------- ----------------------- ---------------------
- ---------------------------- ----------------------- ---------------------
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ
THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
EXHIBIT 99
<PAGE>
<PAGE>
Ladies and Gentlemen:
1. The undersigned hereby agrees to exchange the aggregate principal
amount of Privately Placed 9.75% Senior Secured Notes due November 1, 2003
(the "Old Notes") for a like principal amount of Series B 9.75% Senior
Secured Notes due November 1, 2003 (the "New Notes") of FM 1993A Corp. (the
"Issuer"), upon the terms and subject to the conditions contained in the
Registration Statement on Form S-11 filed by Foodmaker, Inc., the Issuer,
CRC-I Limited Partnership ("CRC-I") and CRC-II Limited Partnership ("CRC-II")
(collectively, the "Co-Registrants") with the Securities and Exchange
Commission (the "Registration Statement") and the accompanying Prospectus
dated _____________, 1994 included therein (the "Prospectus"), receipt of
each of which is hereby acknowledged.
2. The undersigned hereby acknowledges and agrees that the New Notes
will bear interest from and including July 1, 1994 (the last date on which
interest will have been paid on the Old Notes prior to the exchange).
Accordingly, the undersigned will forego accrued but unpaid interest on his,
her or its Old Notes that are exchanged for New Notes from and including July
1, 1994, but will receive such interest under the New Notes.
3. The undersigned hereby represents and warrants that it has full
authority to tender the Old Notes described above. The undersigned will,
upon request, execute and deliver any additional documents deemed by the
Issuer to be necessary or desirable to complete the exchange of the Old
Notes.
4. The undersigned understands that the tender of the Old Notes
pursuant to all of the procedures set forth in the Prospectus will constitute
an agreement between the undersigned and the Issuer as to the terms and
conditions set forth in the Prospectus.
5. The undersigned hereby represents and warrants that the
undersigned is acquiring the New Notes in the ordinary course of the business
of the undersigned and that the undersigned is not engaged in, and does not
intend to engage in, a distribution of the New Notes.
6. If the undersigned is a broker-dealer, (i) it hereby represents
and warrants that it acquired the Old Notes for its own account as a result
of market-making activities or other trading activities, and (ii) it hereby
acknowledges that it will deliver a prospectus meeting the requirements of
the Securities Act of 1933, as amended (the "Securities Act") in connection
with any resale of the New Notes received hereby. The acknowledgment
contained in the foregoing sentence shall not be deemed an admission that the
undersigned is an "underwriter" within the meaning of the Securities Act.
7. Any obligation of the undersigned hereunder shall be binding upon
the successors, assigns, executors, administrators, trustees in bankruptcy
and legal and personal representatives of the undersigned.
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SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS
(See Instruction 1)
To be completed ONLY IF the New Notes are to be sent to someone
other than the undersigned or to the undersigned at an address other than
that provided above.
Mail to:
Name__________________________________
(Please Print)
Address_______________________________
_______________________________
_______________________________
(Include Zip Code)
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SIGNATURE
____________________________________
(Name of Registered Holder)
By:_________________________________
Name:
Title:
Date:_______________________________
(Must be signed by registered holder exactly as name appears on Old Notes.
If signature is by trustee, executor, administrator, guardian, attorney-in-
fact, officer of a corporation or other person acting in a fiduciary or
representative capacity, please set forth full title. See Instruction 4.)
Address _______________________
_______________________
_______________________
Telephone No._______________________
Taxpayer Identification No.:_____________________________________________
Signature Guaranteed By:_________________________________________________
(See Instruction 1)
Title:
Name of Institution:
Address:
Date:
PLEASE READ THE INSTRUCTIONS BELOW, WHICH FORM A PART OF THIS
LETTER OF TRANSMITTAL.
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INSTRUCTIONS
1. Guarantee of Signatures. Signatures on this Letter of
Transmittal must be guaranteed by a firm that is a member of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc. or by a commercial bank or trust company having an
office in the United States (an "Eligible Institution") unless (i) the
"Special Issuance and Delivery Instructions" above have not been completed,
or (ii) the Old Notes described above are tendered for the account of an
Eligible Institution.
2. Delivery of Letter of Transmittal and Old Notes. The Old Notes,
together with a properly completed and duly executed Letter of Transmittal
(or a facsimile thereof), should be mailed or delivered to the Exchange Agent
at the address set forth above.
The method of delivery of Old Notes and other documents is at the election
and risk of their respective holder. If delivery is by mail, registered mail
(with return receipt), properly insured, is suggested.
3. Guaranteed Delivery Procedures. Registered holders who wish to
tender their Old Notes and (i) whose Old Notes are not immediately available,
or (ii) who cannot deliver their Old Notes, the Letter of Transmittal or any
other required documents to the Exchange Agent prior to the Expiration Date,
may effect a tender if:
(a) The tender is made through an Eligible Institution;
(b) Prior to the Expiration Date, the Exchange Agent receives from
such Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery (by facsimile transmission, mail or
hand delivery) setting forth the name and address of the registered
holder of the Old Notes, the certificate number or numbers of such
Old Note(s) and the principal amount of Old Notes tendered, stating
that the tender is being made thereby and guaranteeing that, within
five New York Stock Exchange trading days after the ExpirationDate,
the Letter of Transmittal (or facsimile thereof) together with the
certificate(s) representing the Old Notes and any other documents
required by the Letter of Transmittal will be deposited by the
Eligible Institution with the Exchange Agent; and
(c) Such properly completed and executed Letter of Transmittal (or
facsimile thereof), as well as the certificate(s) representing all
tendered Old Notes in proper form for transfer and all other
documents required by the Letter of Transmittal are received by the
Exchange Agent within five New York Stock Exchange trading days
after the Expiration Date.
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Upon request of the Exchange Agent, a Notice of Guaranteed Delivery
will be sent to registered holders who wish to tender their Old Notes
according to the guaranteed delivery procedures set forth above.
4. Signatures on Letter of Transmittal, Bond Powers and
Endorsements. If this Letter of Transmittal is signed by a person other than
a registered holder of any Old Notes, such Old Notes must be endorsed or
accompanied by appropriate bond powers, in either case signed exactly as the
name or names of the registered holder or holders appear on the Old Notes.
If this Letter of Transmittal or any Old Notes or bond power is signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity,
such person should so indicate when signing, and, unless waived by the
Issuer, proper evidence satisfactory to the Issuer of their authority to so
act must be submitted.
5. Exchange of Old Notes Only. Only the above-described Old Notes
may be exchanged for New Notes pursuant to the Exchange Offer.
6. Miscellaneous. All questions as to the validity, form,
eligibility (including time of receipt), acceptance and withdrawal of
tendered Old Notes will be resolved by the Issuer, whose determination will
be final and binding. The Issuer reserves the absolute right to reject any
or all tenders that are not in proper form or the acceptance of which would,
in the opinion of counsel for the Issuer, be unlawful. The Issuer also
reserves the right to waive any irregularities or conditions of tender as to
particular Old Notes. The Issuer's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in this Letter
of Transmittal) will be final and binding. Unless waived, any irregularities
in connection with tenders or consents must be cured within such time as the
Issuer shall determine. Neither the Issuer nor the Exchange Agent shall be
under any duty to give notification of defects in such tenders or shall incur
liabilities for failure to give such notification. Tenders of Old Notes will
not be deemed to have been made until such irregularities have been cured or
waived. Any Old Notes received by the Exchange Agent that are not properly
tendered and as to which the irregularities have not been cured or waived
will be returned by the Exchange Agent to the tendering holder thereof.
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