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EXHIBIT 10.13
LOAN AGREEMENT
THIS LOAN
AGREEMENT (this "Agreement") is made as of October 1, 2002 (the
"Closing Date"), by and between GE CAPITAL
FRANCHISE FINANCE CORPORATION, a
Delaware corporation ("Lender"), and SCS
FINANCE II, L.P., a Delaware limited
partnership ("Borrower").
AGREEMENT:
In
consideration of the mutual covenants and provisions of this
Agreement,
the parties agree as follows:
1.
DEFINITIONS. The following terms shall have the following meanings
for
all purposes of this Agreement:
"ADA"
means the Americans with Disabilities Act of 1990, as such act
may
be amended from time to time.
"Affiliate" means any Person which directly or indirectly controls,
is
under common control with, or is controlled
by any other Person. For purposes of
this definition, "controls", "under common
control with" and "controlled by"
means the possession, directly or
indirectly, of the power to direct or cause
the direction of the management and
policies of such Person, whether through
ownership of voting securities or
otherwise.
"Affiliated Borrower" means SCS Finance I, L.P., a Delaware
limited
partnership.
"Affiliated Borrower Loan Agreements" means, collectively, the
Loan
Agreement and Equipment Loan and Security
Agreement, both dated as of the date
of this Agreement, between Lender and the
Affiliated Borrower pursuant to which
Lender is making mortgage and equipment
loans to the Affiliated Borrower, as the
same may be supplemented and amended from
time to time.
"Affiliated Borrower Loan Document" or "Affiliated Borrower
Loan
Documents" means, individually or
collectively, as the context may require, the
Affiliated Borrower Loan Agreements, the
notes, deeds of trust or mortgages,
environmental indemnity agreements and
other documents or instruments
contemplated by the Affiliated Borrower
Loan Agreements, all as amended and
supplemented from time to time.
"Applicable Regulations" means all applicable statutes,
regulations,
rules, ordinances, codes, licenses,
permits, orders and approvals of each
Governmental Authority having jurisdiction
over the Premises, including, without
limitation, all health, building, fire,
safety and other codes, ordinances and
requirements, all applicable standards of
the National Board of Fire
Underwriters and the ADA and rules of
common law, in each case, and any judicial
or administrative interpretation thereof,
including any judicial order, consent,
decree or judgment applicable to any of the
Borrower Parties or any of the
Lessee Parties, each as in effect on the
date of determination.
"Borrower
Parties" means, collectively, Borrower and any guarantors of
the
Loans now or in the future (including, in
each case, any
predecessors-in-interest), as
applicable.
"Business
Day" means any day on which Lender is open for business other
than a Saturday, Sunday or a legal holiday,
ending at 5:00 P.M. Phoenix, Arizona
time.
"Change of
Control" means a change in control of any of the Borrower
Parties occurring as a result of: (i) any
merger or consolidation by any of the
Borrower Parties, as applicable, with or
into any other entity other than
another entity controlled by Alon Israel
Oil Company Ltd. or any successor in
interest thereto; or (ii) if any "Person"
as defined in Section 3(a)(9) of the
Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), and as
used in Section 13(d) and 14(d) thereof,
including a "group" as defined in
Section 13(d) of the Exchange Act, who,
subsequent to the Closing, becomes the
"beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), of
securities of any of the Borrower Parties,
as applicable, representing 50% or
more of the combined voting power of that
Borrower Party's then outstanding
securities (other than indirectly as a
result of the redemption by any of the
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Borrower Parties, as applicable, of its
securities) including, without
limitation, a change in control resulting
from direct or indirect transfers of
voting stock or partnership, membership or
other ownership interests, whether in
one or a series of transactions; provided,
however, that if no Event of Default,
or events or circumstances which with the
giving of notice or passage of time
will result in an Event of Default, then
exists (except for an environmental
default being cured in accordance with
Section 9(3)), then no Change in Control
of any of the Borrower Parties shall be
deemed to have occurred if immediately
following the event that would otherwise
cause that Change in Control: (i)
Lessee has an aggregate amount of partners'
capital equal to or greater than the
aggregate amount of the partners' capital
of Lessee, as determined in accordance
with GAAP immediately prior to that event
and the Corporate Fixed Charged
Coverage Ratio (as defined in the Lease) of
Lessee determined for the last
twelve full months occurring prior to that
event is at least 1.5:1; or (ii) the
rating agency then rating the debt of
Guarantor has confirmed that the credit
rating of Guarantor is no lower than its
credit rating immediately prior to that
event; and provided, further, no event that
would otherwise be deemed to be a
Change in Control hereunder as a result of
any merger or consolidation of, or
the transfer of the voting stock or other
voting ownership interests in, Alon
Israel Oil Company Ltd. shall be deemed to
be a Change in Control under this
Agreement or any other Loan Document. For
purposes of this definition, "control"
means the possession, directly or
indirectly, of the power to direct or cause
the direction of the management and
policies of any of the Borrower Parties, as
applicable.
"Closing"
means the disbursement of the Loan Amounts by Title Company as
contemplated by this Agreement.
"Code"
means Title 11 of the United States Code, 11 U.S.C. Sec. 101 et
seq., as amended.
"Confidential Information" means, except as otherwise contemplated
by
Section 12.S, any proprietary or
confidential or nonpublic information relating
to Borrower and Lessee which is provided by
Borrower or Lessee to Lender,
provided that such information is
confidential and is identified thereon as
being confidential.
"Default
Rate" has the meaning set forth in the Notes.
"Environmental Compliance Activities" means any action to comply
with any
Environmental Laws or with any permits
issued pursuant thereto, any inspection,
investigation, study, monitoring,
assessment, audit, sampling and testing,
laboratory or other analysis or any
evaluation relating to Hazardous Materials.
"Environmental Condition" means any condition with respect to
soil,
surface waters, groundwaters, land, stream
sediments, surface or subsurface
strata, ambient air and any environmental
medium comprising or surrounding any
of the Premises, which would reasonably be
expected to or does result in any
damage, loss, cost, expense, claim, demand,
order or liability to or against any
of the Borrower Parties, Lessee Parties or
Lender by any third party (including,
without limitation, any Governmental
Authority), including, without limitation,
any condition resulting from the operation
of business at any of the Premises
and/or the operation of the business of any
other property owner or operator in
the vicinity of the Premises and/or any
activity or operation formerly conducted
by any person or entity on or off any of
the Premises.
"Environmental Indemnity Agreement" means the environmental
indemnity
agreement dated as of the date of this
Agreement executed by Borrower for the
benefit of the Indemnified Parties and such
other parties as are identified in
such agreement with respect to the
Premises, as the same may be amended or
supplemented from time to time.
"Environmental Insurer" means American International Specialty
Lines
Insurance Company, or such other
environmental insurance company as Lender may
select, and its successors and assigns.
"Environmental Laws" means any applicable federal, state and local
laws,
statutes, ordinances, rules, regulations,
orders, injunctions and decrees of
Governmental Authorities and common law,
relating to Hazardous Materials or USTs
and/or the protection of human health or
the environment by reason of a Release
or a Threatened Release of Hazardous
Materials or USTs or relating to liability
for or costs of Remediation, Environmental
Compliance Activities, or prevention
of Releases. "Environmental Laws" includes,
but is not limited to, the following
statutes, as amended, any successor
thereto, and any regulations, rulings,
orders or decrees promulgated
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pursuant thereto, and any state or local
statutes, ordinances, rules,
regulations, orders, injunctions and
decrees of Governmental Authorities: the
Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C.
Sections 9601 et seq.; the Emergency
Planning and Community Right-to-Know Act,
42 U.S.C. Section 11001 et seq.; the
Hazardous Materials Transportation Act, 49
U.S.C. Section 5101 et seq.; the Resource
Conservation and Recovery Act
(including but not limited to Subtitle I
relating to USTs), 42 U.S.C. Sections
6901 et seq.; the Clean Water Act, 33
U.S.C. Sections 1251 et seq.; the Clean
Air Act, 42 U.S.C. Sections 7401 et seq.;
the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq.; the Safe
Drinking Water Act, 42 U.S.C. Sections
7401 et seq.; the Occupational Safety and
Health Act, 29 U.S.C. Section 651 et
seq.; the Federal Insecticide, Fungicide
and Rodenticide Act, 7 U.S.C. Sections
136 et seq.; the Endangered Species Act, 16
U.S.C. Sections 1531 et seq. and the
National Environmental Policy Act, 42
U.S.C. Section 4321 et seq. "Environmental
Laws" also includes, but is not limited to,
any applicable federal, state and
local laws, statutes, ordinances, rules,
regulations, orders, injunctions and
decrees of Governmental Authorities and
common law: conditioning transfer of
property upon a negative declaration or
other approval of a Governmental
Authority of the environmental condition of
the property; requiring notification
or disclosure of Releases or other
environmental condition of any of the
Premises to any Governmental Authority or
other person or entity, whether or not
in connection with transfer of title to or
interest in property; imposing
conditions or requirements relating to
Hazardous Materials or USTs in connection
with permits or other authorizations
required by Governmental Authorities;
relating to the handling and disposal of
Hazardous Materials; relating to
nuisance, trespass or other causes of
action related to Hazardous Materials; and
relating to wrongful death, personal
injury, or property or other damage in
connection with the physical condition or
use of any of the Premises by reason
of the presence of Hazardous Materials or
USTs in, on, under or above any of the
Premises.
"Environmental Lien" has the meaning set forth in Section
5.K(9).
"Environmental Policies" means the environmental insurance policies
issued
by Environmental Insurer to Lender with
respect to the Premises, which
Environmental Policies shall be in form and
substance satisfactory to Lender in
its sole discretion.
"Equipment" has the meaning given to such term in the Equipment
Loan
Agreement.
"Equipment
Loan Agreement" means that certain Equipment Loan and Security
Agreement dated as of the date of this
Agreement between Lender and Borrower, as
the same may be amended or supplemented
from time to time.
"Equipment
Loan Document" or "Equipment Loan Documents" means,
individually or collectively, as the
context may require, the Equipment Loan
Agreement, the Equipment Notes and other
documents or instruments contemplated
by the Equipment Loan Agreement, all as
amended or supplemented from time to
time.
"Equipment
Note" and "Equipment Notes" have the meaning set forth in the
Equipment Loan Agreement.
"Event of
Default" has the meaning set forth in Section 9.
"FCCR
Amount" has the meaning set forth in Section 9.A(7).
"Fee"
means an underwriting, valuation, processing and commitment fee
equal to 1% of the sum of the Loan Amounts
for all of the Premises.
"Fixed
Charge Coverage Ratio" has the meaning set forth in Section
6.J.
"GAAP"
means generally accepted accounting principles consistently
applied
and in effect in the United States of
America from time to time.
"Governmental Authority" means any governmental authority,
agency,
department, commission, bureau, board,
instrumentality, court or
quasi-governmental authority having
jurisdiction or supervisory or regulatory
authority over any of the Premises or any
of the Borrower Parties.
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"Guaranty"
means the unconditional guaranty of payment and performance
dated as of the date of this Agreement
executed by Alon USA, Inc., a Delaware
corporation, for the benefit of Borrower
with respect to the Lease.
"Hazardous
Materials" means (a) any toxic substance or hazardous waste,
substance, solid waste or related material,
or any pollutant or contaminant; (b)
radon gas, asbestos in any form which is or
could become friable, urea
formaldehyde foam insulation, transformers
or other equipment containing
dielectric fluid having levels of
polychlorinated biphenyls in excess of
applicable standards established by any
Governmental Authority, or any petroleum
product or additive; (c) any substance,
gas, material or chemical which is now
or hereafter defined as or included in the
definition of "hazardous substances,"
"toxic substances," "hazardous materials,"
"hazardous wastes," "regulated
substances" or words of similar import
under any Environmental Laws, including,
without limitation, "petroleum" and
"petroleum-based substances" or any similar
terms described or defined in any
Environmental Laws and any applicable federal,
state, county or local laws applicable to
or regulating USTs; and (d) any other
chemical, material, gas or substance the
exposure to or release of which is
prohibited, limited or regulated by any
Governmental Authority that asserts or
may assert jurisdiction over any of the
Premises or the operations or activity
at any of the Premises, or any chemical,
material, gas or substance that does or
is reasonably likely to pose a hazard to
the health and/or safety of the
occupants of any of the Premises or the
owners and/or occupants of property
adjacent to or surrounding any of the
Premises.
"Indemnified Parties" means Lender, Environmental Insurer, the
trustees
under the Mortgages, if applicable, and any
person or entity who is or has been
involved in the origination of the Loans,
any person or entity who is or has
been involved in the servicing of the
Loans, any person or entity in whose name
the encumbrance created by any of the
Mortgages is or has been recorded, persons
and entities who may hold or acquire or
will have held a full or partial
interest in the Loans (including, but not
limited to, investors in any
Securitization, Participation or Transfer,
as well as custodians, trustees and
other fiduciaries who hold or have held a
full or partial interest in any of the
Loans for the benefits of third parties),
as well as the respective directors,
officers, shareholders, partners, members,
employees, lenders, agents, servants,
representatives, contractors,
subcontractors, affiliates, subsidiaries,
participants, and successors and assigns of
any and all of the foregoing
(including, but not limited to, any other
person or entity who holds or acquires
or will have held a participation or other
full or partial interest in any of
the Loans or any of the Premises, whether
during the term of the Loans or as a
part of or following a foreclosure of any
of the Loans and including, but not
limited to, any successors by merger,
consolidation or acquisition of all or a
substantial portion of Lender's assets and
business).
"Indemnity
Agreements" means all indemnity agreements executed for the
benefit of any of the Borrower Parties,
Lessee Parties or any prior owner,
lessee or occupant of the Premises in
connection with Hazardous Materials or
USTs, including, without limitation, the
right to receive payments under such
indemnity agreements.
"Lease"
means the master lease between Borrower, as lessor, and Lessee,
as
lessee, with respect to the Premises,
together with all amendments,
modifications and supplements thereto.
"Lender
Entities" means, collectively, Lender (including any
predecessor-in-interest to Lender) and any
Affiliate of Lender (including any
Affiliate of any predecessor-in-interest to
Lender).
"Lessee"
means Southwest Convenience Stores, LP, a Texas limited
partnership, and its successors.
"Lessee Parties"
means, collectively, Lessee and any guarantors of the
Lease, now or in the future (including, in
each case, any
predecessors-in-interest to Lessee).
"Loan" or
"Loans" means, as the context may require, the loan for each
Premises, or the loans for all of the
Premises, described in Section 2.
"Loan
Amount" or "Loan Amounts" means, as the context may require,
the
aggregate amount set forth in Section 2 or,
with respect to each Premises, the
individual amount set forth in Exhibit
A.
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"Loan
Document" or "Loan Documents" means, individually or
collectively,
as the context may require this Agreement,
the Notes, the Mortgages, the
Environmental Indemnity Agreement, the
UCC-1 Financing Statements, and all other
documents, instruments and agreements
executed in connection therewith or
contemplated thereby, as the same may be
supplemented or amended from time to
time.
"Loan
Pool" means:
(i) in the
context of a Securitization, any pool or group of loans that
are a part
of such Securitization;
(ii) in
the context of a Transfer, all loans which are sold,
transferred
or
assigned to the same transferee; and
(iii) in
the context of a Participation, all loans as to which
participating interests are granted to the same participant.
"Material
Adverse Effect" means a material adverse effect on (i) any of
the Premises, including, without
limitation, the operation of any of the
Premises as a Permitted Concept, or (ii)
Borrower's ability to perform its
obligations under the Loan Documents.
"Mortgage"
or "Mortgages" means, as the context may require, the deed of
trust or mortgage dated as of the date of
this Agreement executed by Borrower
for the benefit of Lender with respect to a
Premises or the deeds of trust or
mortgages dated as of the date of this
Agreement executed by Borrower for the
benefit of Lender with respect to all of
the Premises, as the same may be
amended, modified, restated and/or
supplemented from time to time, and any and
all replacements or substitutions thereof.
A Mortgage has been executed for each
Premises.
"Note" or
"Notes" means, as the context may require, the promissory note
dated as of the date of this Agreement
executed by Borrower in favor of Lender
evidencing a Loan with respect to a
Premises or the promissory notes dated as of
the date of this Agreement executed by
Borrower in favor of Lender evidencing
the Loans with respect to all of the
Premises, as the same may be amended,
restated and/or substituted from time to
time, including, without limitation, as
a result of the payment of the FCCR Amount
pursuant to Section 9. A Note has
been executed for each Premises in the Loan
Amount corresponding to such
Premises.
"Obligations" has the meaning set forth in the Mortgages.
"Other
Agreements" means, collectively, all agreements and instruments
between, among or by (1) any of the
Borrower Parties, Affiliated Borrowers,
and/or any other Affiliate of any of the
Borrower Parties (including any
Affiliate of any predecessor-in-interest to
any of the Borrower Parties), and,
or for the benefit of, (2) any of the
Lender Entities, including, without
limitation, promissory notes and
guaranties; provided, however, the term "Other
Agreements" shall not include the
agreements and instruments defined as the Loan
Documents, Equipment Loan Documents, the
Affiliated Borrower Loan Documents, or
any agreements or instruments between,
among or by (a) Lessee and/or any
guarantor, and, or for the benefit of (b)
any of the Lender Entities.
"Participation" means one or more grants by Lender or any of the
other
Lender Entities to a third party of a
participating interest in notes evidencing
obligations to repay secured or unsecured
loans owned by Lender or any of the
other Lender Entities or any or all
servicing rights with respect thereto.
"Permitted
Amounts" means, with respect to any given level of Hazardous
Materials, that level or quantity of
Hazardous Materials in any form or
combination of forms the presence, use,
storage, release or handling of which
does not constitute a violation of any
Environmental Laws and is customarily
employed in the ordinary course of, or
associated with, similar businesses
located in the states in which the Premises
are located.
"Permitted
Concept" means the operation of each Premises as a recognized,
regionally or nationally branded
convenience store or convenience store brand
used by Lessee for substantially all of its
stores, with facilities for the sale
of gasoline, which sells gasoline under the
brand name "Fina" (or any variant
thereof or successor brand thereto) or
under any other national or brand name
for gasoline having a similar or greater
name
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recognition in the market area in which the
Premises are located or any other
brand to which Lender consents, in Lender's
reasonable discretion (except with
respect to the Premises identified as Store
No. 716 located at 1800 Lomas
Boulevard NE, Albuquerque, New Mexico for
which "Permitted Concept" shall not
include the sale of gasoline).
"Permitted
Exceptions" means (i) those recorded easements, restrictions,
liens and encumbrances set forth as
exceptions in the title insurance policies
issued by Title Company to Lender with
respect to the Premises and approved by
Lender in its sole discretion in connection
with the closing of the Loans, (ii)
liens or encumbrances created by, through
or under the Lender or any Person
claiming by or through Lender, (iii) liens
or encumbrances for taxes,
assessments or other governmental charges
either not yet due or being contested
by Borrower or Lessee in accordance with
the Loan Documents or the Lease, (iv)
the Master Lease, and (v) inchoate
materialman's, mechanic's, workmen's,
repairmen's or other like liens arising in
the ordinary course of business and
for amounts the payment of which either is
not yet due or is being contested by
Borrower or Lessee as may be permitted by
the Loan Documents, provided that the
nonpayment of such amount does not involve
any material danger of sale, for
forfeiture or loss of any part of the
Premises, title thereto or any interest
therein.
"Permitted
Recipients" means, collectively, Lender, its respective
successors and assigns, the authorized
employees, agents and representatives,
lenders, purchasers, transferees,
assignees, servicers, participants, investors,
analysts, attorneys and advisors of Lender
and their respective successors and
assigns, and Governmental Authorities with
regulatory authority over Lender and
selected rating agencies with a need to
know.
"Person"
means any individual, corporation, partnership, limited
liability
company, trust, unincorporated
organization, Governmental Authority or any other
form of entity.
"Personal
Property" has the meaning set forth in the Mortgages.
"Premises"
means the parcel or parcels of real estate corresponding to the
FFC File Numbers and addresses identified
on Exhibit A attached hereto, together
with all rights, privileges and
appurtenances associated therewith and all
buildings, fixtures and other improvements
now or hereafter located thereon
(whether or not affixed to such real
estate) and the Personal Property located
thereon or related thereto. As used herein,
the term "Premises" shall refer to
either a singular property or all of the
properties collectively, as the context
may require.
"Questionnaires" means the environmental questionnaires completed
on
behalf of the Borrower Parties with respect
to the Premises and submitted to
Environmental Insurer in connection with
the issuance of the Environmental
Policies.
"Related
Lease" means the master lease, dated as of the date of this
Agreement, between the Affiliated Borrower,
as lessor, and Lessee, as lessee, as
amended or supplemented from time to
time.
"Release"
means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating,
injecting, pumping, pouring, emptying,
escaping, dumping, disposing or other
movement of Hazardous Materials in
violation of Environmental Laws or which
may result in a Material Adverse
Effect.
"Remediation" means any response, remedial, removal, or corrective
action,
any activity to clean up, detoxify,
decontaminate, contain or otherwise
remediate any Hazardous Materials or USTs
required by any Environmental Law or
any Governmental Authority, any actions to
cure or mitigate any Release, any
action to comply with any Environmental
Laws or with any permits issued pursuant
thereto, and any inspection, investigation,
study, monitoring, assessment,
audit, sampling and testing, laboratory or
other analysis, or any evaluation
relating to any Release of Hazardous
Materials or a Release of any USTs.
"Restoration" has the meaning set forth in the Mortgages.
"Securitization" means one or more sales, dispositions, transfers
or
assignments by Lender or any of the other
Lender Entities to a special purpose
corporation, trust or other entity
identified by Lender or any of the other
Lender Entities of notes evidencing
obligations to repay secured or unsecured
loans owned by Lender or any of the
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other Lender Entities (and, to the extent
applicable, the subsequent sale,
transfer or assignment of such notes to
another special purpose corporation,
trust or other entity identified by Lender
or any of the other Lender Entities),
and the issuance of bonds, certificates,
notes or other instruments evidencing
interests in pools of such loans, whether
in connection with a permanent asset
securitization or a sale of loans in
anticipation of a permanent asset
securitization. Each Securitization shall
be undertaken in accordance with all
requirements which may be imposed by the
investors or the rating agencies
involved in each such sale, disposition,
transfer or assignment or which may be
imposed by applicable securities, tax or
other laws or regulations.
"Substitute Documents" has the meaning set forth in Section 11.
"Substitute Premises" means one or more parcels of real estate
substituted
for a Premises in accordance with the
requirements of Section 11, together with
all rights, privileges and appurtenances
associated therewith and all buildings,
fixtures and other improvements, equipment,
trade fixtures, appliances and other
personal property located thereon (whether
or not affixed to such real estate).
For purposes of clarity, where two or more
parcels of real estate comprise a
Substitute Premises, such parcels or
interests shall be aggregated and deemed to
constitute the Substitute Premises for all
purposes of this Agreement.
"Terrorism
Laws" means Executive Order 13224 issued by the President of
the United States of America, the Terrorism
Sanctions Regulations (Title 31 Part
595 of the U.S. Code of Federal
Regulations), the Terrorism List Governments
Sanctions Regulations (Title 31 Part 596 of
the U.S. Code of Federal
Regulations), and the Foreign Terrorist
Organizations Sanctions Regulations
(Title 31 Part 597 of the U.S. Code of
Federal Regulations), and all other
present and future federal, state and local
laws, ordinances, regulations,
policies and any other requirements of any
Governmental Authority (including,
without limitation, the United States
Department of the Treasury Office of
Foreign Assets Control) addressing,
relating to, or attempting to eliminate,
terrorist acts and acts of war, each as
hereafter supplemented, amended or
modified from time to time, and the present
and future rules, regulations and
guidance documents promulgated under any of
the foregoing, or under similar
laws, ordinances, regulations, policies or
requirements of other states or
localities.
"Threatened Release" means a substantial likelihood of a Release
which
requires action to prevent or mitigate
damage to the soil, surface waters,
groundwaters, land, stream sediments,
surface or subsurface strata, ambient air
or any other environmental medium
comprising or surrounding any of the Premises
which may result from such Release.
"Title
Company" means LandAmerica Financial Services/Lawyers Title
Insurance Corporation (Phoenix National
Division).
"Transfer" means
one or more sales, transfers or assignments by Lender or
any of the other Lender Entities to a third
party of notes evidencing
obligations to repay secured or unsecured
loans owned by Lender or any of the
other Lender Entities or any or all
servicing rights with respect thereto.
"UCC"
means, with respect to each Premises, the Uniform Commercial Code
as
in effect in the state in which such
Premises is located.
"UCC-1
Financing Statements" means such UCC-1 Financing Statements as
Lender shall file with respect to the
transactions contemplated by this
Agreement.
"USTs"
means any one or combination of below or above ground tanks and
associated piping systems used in
connection with the storage, dispensing and
general use of petroleum and
petroleum-based substances.
2.
TRANSACTION. On the terms and subject to the conditions set forth
in
the Loan Documents, Lender shall make the
Loans. The Loans will be evidenced by
the Notes and secured by the Mortgages.
Borrower shall repay, and may prepay
(subject to the terms of the Note), the
outstanding principal amount of the
Loans together with interest thereon in the
manner and in accordance with the
terms and conditions of the Notes and the
other Loan Documents. The aggregate
Loan Amount shall be $8,700,000, allocated
among the Premises as set forth on
the attached Exhibit A. The Loans shall be
advanced at the Closing in cash or
otherwise immediately available funds
SCS Finance II, L.P.
Mortgage Loan
7
<PAGE>
subject to any prorations and adjustments
required by this Agreement. The
Premises shall be leased to the Lessee
pursuant to the Lease and, at Closing,
Borrower shall assign the Lease to Lender
pursuant to the Mortgages.
3. ESCROW
AGENT. Borrower and Lender hereby employ Title Company to act
as
escrow agent in connection with the
transactions described in this Agreement and
the Equipment Loan Agreement. Borrower and
Lender will deliver to Title Company
all documents, pay to Title Company all
sums and do or cause to be done all
other things necessary or required by this
Agreement and the Equipment Loan
Agreement, in the reasonable judgment of
Title Company, to enable Title Company
to comply herewith and to enable any title
insurance policy provided for herein
to be issued. Title Company shall not cause
the transaction to close unless and
until it has received written instructions
from Lender and Borrower to do so.
Title Company is authorized to pay, from
any funds held by it for Lender's or
Borrower's respective credit all amounts
necessary to procure the delivery of
such documents and to pay, on behalf of
Lender and Borrower, all charges and
obligations payable by them, respectively.
Borrower will pay all charges payable
by it to Title Company. Title Company is
authorized, in the event any
conflicting demand is made upon it
concerning these instructions or the escrow,
at its election, to hold any documents
and/or funds deposited hereunder until an
action shall be brought in a court of
competent jurisdiction to determine the
rights of Borrower and Lender or to
interplead such documents and/or funds in an
action brought in any such court. Deposit
by Title Company of such documents and
funds, after deducting therefrom its
charges and its expenses and attorneys'
fees incurred in connection with any such
court action, shall relieve Title
Company of all further liability and
responsibility for such documents and
funds. Title Company's receipt of this
Agreement and opening of an escrow
pursuant to this Agreement shall be deemed
to constitute conclusive evidence of
Title Company's agreement to be bound by
the terms and conditions of this
Agreement pertaining to Title Company.
Disbursement of any funds shall be made
by check, certified check or wire transfer,
as directed by Borrower and Lender.
Title Company shall be under no obligation
to disburse any funds represented by
check or draft, and no check or draft shall
be payment to Title Company in
compliance with any of the requirements
hereof, until it is advised by the bank
in which such check or draft is deposited
that such check or draft has been
honored. Title Company is authorized to act
upon any statement furnished by the
holder or payee, or a collection agent for
the holder or payee, of any lien on
or charge or assessment in connection with
the Premises, concerning the amount
of such charge or assessment or the amount
secured by such lien, without
liability or responsibility for the
accuracy of such statement. The employment
of Title Company as escrow agent shall not
affect any rights of subrogation
under the terms of any title insurance
policy issued pursuant to the provisions
thereof.
4. CLOSING
CONDITIONS. The obligation of Lender to consummate the
transaction contemplated by this Agreement
is subject to the fulfillment or
waiver of each of the following
conditions:
A. Title
Insurance Commitments. Lender shall have received for each of
the
Premises a preliminary title report and
irrevocable commitment to insure title
in the amount of the Loan relating to such
Premises, by means of a mortgagee's,
ALTA extended coverage policy of title
insurance (or its equivalent in the
jurisdiction in which the Premises are
located), in the event such form is not
issued in the jurisdiction where the
Premises is located) issued by Title
Company showing Borrower vested with good
and marketable fee title in the real
property comprising such Premises,
committing to insure Lender's first priority
lien upon and security interest in such
real property subject only to Permitted
Exceptions, and containing such
endorsements as Lender may require.
B. Survey.
Lender shall have received a current TLTA or ALTA equivalent
survey of each of the Premises located in
Texas and a current ALTA survey of
each of the Premises located in New Mexico,
the form and substance of which
shall be satisfactory to Lender in its
reasonable discretion. Lender shall have
obtained a flood certificate indicating
that the location of each of the
Premises is not within the 100-year flood
plain or identified as a special flood
hazard area as defined by the Federal
Emergency Management Agency, or if any
Premises is in such a flood plain or
special flood hazard area, Borrower shall
have provided Lender with evidence of flood
insurance maintained on such
Premises in amounts and on terms and
conditions reasonably satisfactory to
Lender.
C.
Environmental. Lender shall have completed such environmental
due
diligence of each of the Premises as it
deems necessary or advisable in its sole
discretion, including, without limitation,
receiving an Environmental Policy
with respect to each of the Premises, and
Lender shall have approved the
environmental condition of each of the
Premises in its sole discretion.
SCS Finance II, L.P.
Mortgage Loan
8
<PAGE>
D.
Compliance With Representations, Warranties and Covenants. All of
the
representations and warranties set forth in
Section 5 shall be true, correct and
complete as of the Closing Date, and
Borrower shall be in compliance with each
of the covenants set forth in Section 6 as
of the Closing Date. No event shall
have occurred or condition shall exist or
information shall have been disclosed
by Borrower or discovered by Lender which
has had or would be reasonably likely
to have a material adverse effect on the
Premises, any of the Borrower Parties
or Lessee Parties.
E. Proof
of Insurance. Borrower shall have delivered to Lender
certificates of insurance and copies of
insurance policies showing that all
insurance required by the Loan Documents
(not including the Environmental
insurance to be acquired by Lender) and
providing coverage and limits
satisfactory to Lender are in full force
and effect.
F. Legal
Opinions. Borrower shall have delivered to Lender such legal
opinions as Lender may reasonably require
all in form and substance reasonably
satisfactory to Lender and its counsel.
G. Fee and
Closing Costs. Borrower shall have paid the Fee to Lender and
shall have paid all costs of the
transactions described in this Agreement,
including, without limitation, the cost of
title insurance premiums and all
endorsements required by Lender, as
specified in Section 4.A above, survey
charges, UCC and litigation search charges,
the attorneys' fees of Borrower,
reasonable attorneys' fees and expenses of
Lender, the cost of the environmental
due diligence undertaken pursuant to
Section 4.C, including, without limitation,
the cost of the Environmental Policies,
Lender's reasonable site inspection
costs and fees, stamp taxes, mortgage
taxes, transfer fees, escrow, filing and
recording fees and UCC filing and recording
fees (including preparation, filing
and recording fees for UCC continuation
statements). Borrower shall have also
paid all real and personal property and
other applicable taxes and assessments
and other charges relating to the Premises
which are due and payable on or prior
to the Closing Date as well as taxes and
assessments due and payable subsequent
to the Closing Date but which Title Company
requires to be paid at Closing as a
condition to the issuance of the title
insurance policy described in Section
4.A.
H. Other
Closings. All of the transactions described in the Equipment
Loan
Agreement and the Affiliated Borrower Loan
Agreements shall have closed prior to
or concurrently with the Closing of the
transactions described in this
Agreement.
I. Lease,
Memoranda. Borrower and Lessee shall have executed and
delivered
the Lease, and a memorandum of master lease
in recordable form for each of the
Premises (the "Memoranda"). The Lease and
the Memoranda shall be in form and
substance reasonably satisfactory to
Lender. Lessee shall have caused to be
delivered to Borrower an executed Guaranty
with respect to the Lease.
J. Closing
Documents. At or prior to the Closing Date, Lender and/or the
Borrower Parties, as may be appropriate,
shall have executed and delivered or
shall have caused to be executed and
delivered to Lender, or as Lender may
otherwise direct, the Loan Documents and
such other documents, payments,
instruments and certificates, as Lender may
require in form acceptable to
Lender.
Upon
fulfillment or waiver of all of the above conditions, Lender
shall
deposit funds necessary to close this
transaction with the Title Company and
this transaction shall close in accordance
with the terms and conditions of this
Agreement.
5.
REPRESENTATIONS AND WARRANTIES OF BORROWER. The representations
and
warranties of Borrower contained in this
Section are being made by Borrower as
of the Closing Date to induce Lender to
enter into this Agreement and consummate
the transactions contemplated herein and
shall survive the Closing. Borrower
represents and warrants to Lender (and
Environmental Insurer solely with respect
to Section 5.K) as follows:
A.
Financial Information. Borrower has delivered to Lender certain
financial statements and other information
concerning the Borrower Parties in
connection with the transaction described
in this Agreement (collectively, the
"Financial Information"). The Financial
Information is true, correct and
complete in all material respects; there
have been no amendments to the
Financial Information since the date such
Financial Information was
SCS Finance II, L.P.
Mortgage Loan
9
<PAGE>
prepared or delivered to Lender. Borrower
understands that Lender is relying
upon the Financial Information and Borrower
represents that such reliance is
reasonable. All financial statements
included in the Financial Information were
prepared in accordance with GAAP and fairly
present as of the date of such
financial statements the financial
condition of each individual or entity to
which they pertain. No change has occurred
with respect to the financial
condition of any of the Borrower Parties
and/or the Premises as reflected in the
Financial Information which has not been
disclosed in writing to Lender that has
had, or could reasonably be expected to
result in, a Material Adverse Effect.
B.
Organization and Authority. Each of the Borrower Parties (other
than
individuals), as applicable, is duly
organized or formed, validly existing and
in good standing under the laws of its
state of incorporation or formation.
Borrower is qualified as a foreign
corporation, partnership or limited liability
company, as applicable, to do business in
each state where the Premises are
located, and each of the Borrower Parties
is qualified as a foreign corporation,
partnership or limited liability company,
as applicable, to do business in any
other jurisdiction where the failure to be
qualified would reasonably be
expected to result in a Material Adverse
Effect. All necessary action has been
taken to authorize the execution, delivery
and performance by the Borrower
Parties of this Agreement and the other
Loan Documents. The person(s) who have
executed this Agreement on behalf of
Borrower are duly authorized so to do.
Borrower is not a "foreign corporation,"
"foreign partnership," "foreign trust,"
"foreign estate" or "foreign person" (as
those terms are defined by the Internal
Revenue Code of 1986, as amended).
Borrower's U.S. Federal Tax Identification
number, Organization Identification number
and principal place of business are
correctly set forth on the signature page
of this Agreement. None of the
Borrower Parties, and no individual or
entity owning directly or indirectly any
interest in any of the Borrower Parties, is
an individual or entity whose
property or interests are subject to being
"blocked" under any of the Terrorism
Laws or is otherwise in violation of any of
the Terrorism Laws.
C.
Enforceability of Documents. Upon execution by the Borrower
Parties,
this Agreement and the other Loan Documents
to which Borrower is a party shall
constitute the legal, valid and binding
obligations of the Borrower Parties,
respectively, enforceable against the
Borrower in accordance with their
respective terms, except as such
enforceability may be limited by applicable
bankruptcy, insolvency, liquidation,
fraudulent conveyance, fraudulent transfer,
reorganization and other laws affecting the
rights of creditors generally and
general principles of equity.
D.
Litigation. There are no suits, actions, proceedings or
investigations
pending, or to its actual knowledge,
threatened against or involving the
Borrower Parties or any of the Premises
before any arbitrator or Governmental
Authority, except for such suits, actions,
proceedings or investigations which,
individually or in the aggregate, have not
had, and would not reasonably be
expected to result in, a Material Adverse
Effect.
E. Absence
of Breaches or Defaults. The Borrower Parties are not, and the
authorization, execution, delivery and
performance of this Agreement and the
other Loan Documents will not result, in
any breach or default under any other
document, instrument or agreement to which
any of the Borrower Parties is a
party or by which any of the Borrower
Parties, any of the Premises or any of the
property of any of the Borrower Parties is
subject or bound, except for such
breaches or defaults which, individually or
in the aggregate, have not had, and
could not reasonably be expected to result
in, a Material Adverse Effect. The
authorization, execution, delivery and
performance of this Agreement and the
other Loan Documents by the Borrower
Parties will not violate any applicable
law, statute, regulation, rule, ordinance,
code, rule or order. None of the
Premises are subject to any right of first
refusal, right of first offer or
option to purchase or lease granted to a
third party (other than the Lease).
F.
Utilities. Adequate public utilities are available at each of
the
Premises to permit utilization of each of
the Premises as a Permitted Concept
and all utility connection fees and use
charges will have been paid in full
prior to delinquency.
G. Zoning;
Compliance With Laws. Each of the Premises is in compliance
with all applicable zoning requirements and
the use of each of the Premises as a
Permitted Concept does not constitute a
nonconforming use under applicable
zoning requirements, except, in each
instance, where such noncompliance would
not have a Material Adverse Effect,. The
Borrower Parties and the Premises are
in compliance with all Applicable
Regulations
SCS Finance II, L.P.
Mortgage Loan
10
<PAGE>
except for such noncompliance which has not
had, and would not reasonably be
expected to result in, a Material Adverse
Effect.
H. Area
Development; Wetlands. No condemnation or eminent domain
proceedings affecting any of the Premises
have been commenced or, to Borrower's
actual knowledge, are contemplated. None of
the Premises and, to Borrower's
actual knowledge, none of the real property
bordering any of the Premises are
designated by any Governmental Authority as
a wetlands.
I.
Licenses and Permits; Access. All required licenses and permits,
both
governmental and private, to use and
operate each of the Premises as a Permitted
Concept are in full force and effect,
except for such licenses and permits the
failure of which to obtain has not had, and
could not reasonably be expected to
result in, a Material Adverse Effect.
Adequate rights of access to public roads
and ways are available to each of the
Premises for unrestricted ingress and
egress and otherwise to permit utilization
of each of the Premises for their
intended purposes, and all such public
roads and ways have been completed and
dedicated to public use.
J.
Condition of Premises. Each of the Premises, including the
Personal
Property, is in good condition and repair
and well maintained, ordinary wear and
tear excepted, fully equipped, operational,
free from known structural defects,
safe and properly lighted.
K.
Environmental. Except as disclosed in the Questionnaires, as
amended
and supplemented through the date of
Closing:
(1) None
of the Premises nor any of the Borrower Parties are in
violation
of, or subject to, any pending or, to
Borrower's actual knowledge, threatened
investigation or inquiry by any
Governmental Authority or to any remedial
obligations under any Environmental Laws,
which violation, investigation or
inquiry would have a Material Adverse
Effect, and this representation and
warranty would continue to be true and
correct following disclosure to the
applicable Governmental Authorities of all
relevant facts, conditions and
circumstances, if any, pertaining to any of
the Premises;
(2) All
permits, licenses or similar authorizations required to
construct,
occupy, operate or use any buildings,
improvements, fixtures and equipment
forming a part of any of the Premises by
reason of any Environmental Laws have
been obtained, or are pending, and Borrower
has no reason to believe that such
permits, licenses or similar authorizations
that are pending will not be issued
in due course, except where such failure to
obtain any permit, license or
authorization would not have a Material
Adverse Effect;
(3) Since
the initial acquisition by and during the ownership of the
Premises by Borrower and/or any Affiliate
of Borrower or Lessee, and to
Borrower's knowledge prior to such
acquisition and ownership, no Hazardous
Materials have been used, handled,
manufactured, generated, produced, stored,
treated, processed, transferred, disposed
of or otherwise Released in, on,
under, from or about any of the Premises,
except in Permitted Amounts;
(4) None
of the Premises contain Hazardous Materials, except in
Permitted
Amounts, and all USTs located on or about
the Premises, if any, are in full
compliance with all Environmental Laws,
except where such noncompliance would
not have a Material Adverse Effect;
(5) To
Borrower's knowledge, there is no threat of any Release
migrating
to any of the Premises in excess of
Permitted Amounts;
(6) Since
the initial acquisition by and during the ownership of the
Premises by Borrower and/or any Affiliate
of Borrower or Lessee, and to
Borrower's knowledge prior to such
acquisition and ownership, there is no past
or present non-compliance with
Environmental Laws, or with permits issued
pursuant thereto, in connection with any of
the Premises, except where such
noncompliance would not have a Material
Adverse Effect;
(7) None
of the Borrower Parties has received any written notice or
other
communication from any person or entity
(including but not limited to a
Governmental Authority) relating to any
Release of Hazardous
SCS Finance II, L.P.
Mortgage Loan
11
<PAGE>
Materials in excess of Permitted Amounts,
or USTs or Remediation thereof,
possible liability of any person or entity
pursuant to any Environmental Law,
other Environmental Conditions in
connection with any of the Premises, or any
actual or potential administrative or
judicial proceedings in connection with
any of the foregoing;
(8) All
information known to any of the Borrower Parties or contained
in
the files of any of the Borrower Parties
relating to any existing Environmental
Condition or Releases of Hazardous
Materials in, on, under or from any of the
Premises, other than in Permitted Amounts,
has been provided to Lender,
including, without limitation, information
relating to all prior Remediation
(which provision of information was
accomplished in part by delivering to
representatives of Lender for their review
and analysis the files of Lessee
maintained by Lessee with respect to
environmental matters relating to the
Premises);
(9) All of
the Premises are free and clear of all liens and other
encumbrances imposed pursuant to any
Environmental Law (the "Environmental
Liens"); and none of the Borrower Parties
has allowed any tenant or other user
of any of the Premises to do any act on the
Premises that materially increased
the dangers to human health or the
environment, posed an unreasonable risk of
harm to any person or entity (whether that
person or entity was on or off any of
the Premises), impaired the value of any of
the Premises in any material
respect, is contrary to any requirement of
any insurer insuring the Premises,
constituted a public or private nuisance,
or violated any covenant, condition,
agreement or easement applicable to any of
the Premises, except where such
violation did not have a Material Adverse
Effect on the Premises; and
(10) The
information and disclosures in the Questionnaires, as amended
and
supplemented through the date of Closing,
are true, correct and complete in all
material respects, and the person or
persons executing the Questionnaires and
any amendments and supplements thereto were
duly authorized to do so; and
(11) Each
of the Borrower Parties is in compliance with the requirements
of 40 C.F.R. Section 280 Subpart H -
Financial Responsibility (or equivalent
state law or regulation) with respect to
all petroleum underground storage tanks
or storage tank systems (as those terms are
defined under 40 C.F.R. Section
280.12 or equivalent state law or
regulation) owned or operated by any of the
Borrower Parties or located on any of the
Premises, except where such
noncompliance would not have a Material
Adverse Effect.
Environmental Insurer has charged a fee for
the Environmental Policies, which
Borrower has paid. Borrower acknowledges
that the Environmental Policies are for
the sole protection of Lender and will not
protect Borrower or provide Borrower
with any coverage thereunder. Borrower
acknowledges and agrees that
Environmental Insurer may rely on the
environmental representations and
warranties set forth in this subsection K,
that Environmental Insurer is an
intended third-party beneficiary of such
representations and warranties and that
Environmental Insurer shall have all rights
and remedies available at law or in
equity as a result of a breach of such
representations and warranties,
including, to the extent applicable, the
right of subrogation.
L. Title
to Premises; First Priority Lien. Fee title to the real
property
comprising each of the Premises is vested
in Borrower, free and clear of all
liens, encumbrances, charges and security
interests of any nature whatsoever,
except the Permitted Exceptions. Borrower
is the owner of all Personal Property,
free and clear of all liens, encumbrances,
charges and security interests of any
nature whatsoever, and no Affiliate of
Borrower owns any of the Personal
Property. Upon Closing, Lender shall have a
first priority lien upon and
security interest in each of the Premises
pursuant to the Mortgages and the
UCC-1 Financing Statements.
M. No
Mechanics' Liens. There are no delinquent accounts payable or
mechanics' liens in favor of any
materialman, laborer, or any other person or
entity in connection with labor or
materials furnished to or performed on any
portion of the Premises; and no work has
been performed or is in progress nor
have materials been supplied to the
Premises or agreements entered into for work
to be performed or materials to be supplied
to the Premises prior to the date
hereof, which will be delinquent on the
date of the Closing.
N.
Nonconsolidation. (1) Borrower maintains correct and complete books
and
records of account separate from all other
Persons. Where necessary or
appropriate, Borrower has disclosed the
nature of the transaction contemplated
by the Loan Documents and Borrower's
independent status to its creditors. The
Premises,
SCS Finance II, L.P.
Mortgage Loan
12
<PAGE>
Equipment and related property represent
all of the assets owned or
leased by Borrower as of the date hereof,
and Borrower has not commingled its
assets and its liabilities with those of
any other Person.
(2)
Borrower maintains its own checking account or accounts with
commercial banking institutions separate
from other Persons.
(3) To the
extent that Borrower shares the same employees with other
Persons, the salaries of and the expenses
related to providing benefits to such
employees have been fairly and
nonarbitrarily allocated among such Persons, with
the result that each such Person bears its
fair share of the salary and benefit
costs associated with all such common
employees.
(4) To the
extent that Borrower jointly contracts with other Persons to do
business with vendors or service providers
or to share overhead expenses, the
costs incurred in so doing are, and at all
times shall be, fairly and
nonarbitrarily allocated among such
Persons, with the result that each such
Person bears its fair share of such costs.
To the extent that Borrower contracts
or does business with vendors or service
providers where the goods or services
provided are or shall be partially for the
benefit of other Persons, the costs
incurred in so doing are fairly and
nonarbitrarily allocated to or among such
Persons for whose benefit the goods or
services are provided, with the result
that each such Person bears its fair share
of such costs.
(5) To the
extent that Borrower or other Persons have offices in the same
location, there is a fair, appropriate and
nonarbitrary allocation of overhead
among them, with the result that each such
Person bears its fair share of such
expenses.
(6)
Borrower has not incurred any indebtedness, secured or
unsecured,
direct or indirect, absolute or contingent,
including, without limitation,
liability for the debts of any other Person
(and Borrower has not held itself
out as being liable for the debts of any
other Person), other than the Loans,
the loans may be made by Lender pursuant to
the Equipment Loan Documents and
trade and operational debt incurred in the
ordinary course of business with
trade creditors and in amounts as are
normal and reasonable under the
circumstances. Borrower is not a guarantor
of any obligation.
(7)
Borrower is not presently a party to a pledge of its assets for
the
benefit of other Persons. Borrower has not
made any loans or advances to any
third party (including any Affiliate or
constituent party of Borrower).
(8)
Borrower has conducted its affairs strictly in accordance with
its
organizational documents including
Borrower's general partner's organizational
documents and has observed all necessary,
appropriate and customary formalities.
(9)
Borrower does not hold itself out to the public or to any of
its
individual creditors as being a unified
entity with assets and liabilities in
common with any other Person.
(10)
Borrower (a) is solvent, (b) is able to pay its obligations as
they
become due and (c) is not and shall not be
engaged in any business or
transaction for which its remaining capital
is or may be unreasonably small.
(11)
Borrower has no actual intent to hinder, delay or defraud
creditors
in connection with any of the transactions
contemplated herein or intent to
incur (or belief that it is incurring)
debts beyond its ability to pay the same
as they mature.
(12)
Borrower has not, as to itself or as to other Persons, (a)
commenced
any case, proceeding or other action under
any applicable law of any
jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency,
reorganization or relief of debtors,
seeking to have an order for relief entered
with respect to Borrower or other Persons
or seeking reorganization,
arrangement, adjustment, winding-up,
liquidation, dissolution, composition or
other relief with respect to Borrower or
its debts or other Persons or their
debts or (b) sought appointment of a
receiver, trustee, custodian or other
similar official for Borrower or for all or
any substantial part of its or other
Person's assets or made a general
assignment for the benefit of Borrower's
creditors.
SCS Finance II, L.P.
Mortgage Loan
13
<PAGE>
6.
COVENANTS. Borrower covenants to Lender (and Environmental
Insurer
solely with respect to Section 6.F) from
and after the Closing Date and until
all of the Obligations are satisfied in
full, as follows:
A. Payment
of the Notes. Borrower shall punctually pay, or cause to be
paid, the principal, interest and all other
sums to become due in respect of the
Notes and the other Loan Documents in
accordance with the Notes and the other
Loan Documents.
B. Title.
Borrower shall maintain good and marketable fee simple title to
each of the Premises (other than the
Personal Property located thereon or
related thereto) and title to such Personal
Property free and clear of all
liens, encumbrances, charges and other
exceptions to title, except the Permitted
Exceptions. Lender shall have valid first
liens upon and security interests in
the Premises, including the Personal
Property, pursuant to the Mortgages and the
UCC-1 Financing Statements.
C.
Organization and Status of Borrower; Preservation of Existence.
Each of
the Borrower Parties (other than
individuals), as applicable, shall be validly
existing and in good standing under the
laws of its state of incorporation or
formation. Borrower shall be qualified as a
foreign corporation, partnership or
limited liability company to do business in
each state where the Premises are
located, and each of the Borrower Parties
shall be qualified as a foreign
corporation, partnership or limited
liability company in any other jurisdiction
where the failure to be qualified could
reasonably be expected to result in a
Material Adverse Effect. Borrower shall
preserve its current form of
organization and shall not change its legal
name, its state of formation, nor,
in one transaction or a series of related
transactions, merge with or into, or
consolidate with, any
