EXHIBIT 10.23
MASTER PROPERTY DISPOSITION AGREEMENT
THIS MASTER PROPERTY DISPOSITION AGREEMENT (this "Agreement") is
effective as of September 30, 2003 (the "Effective Date") by and between LASALLE
BANK NATIONAL ASSOCIATION, as Indenture Trustee pursuant to that certain
Indenture dated as of April 1, 1999 ("LaSalle"), and UNI-MARTS, INC., a Delaware
corporation ("Uni-Mart" or "Borrower").
PRELIMINARY STATEMENTS:
A. Pursuant to a certain loan agreement (the "Loan Agreement"),
various mortgage loans (collectively, the "Loans") were made by FFCA Acquisition
Corporation, a Delaware corporation ("FFCA"), to Uni-Mart with respect to the
land, buildings and/or equipment at certain properties owned or leased by
Uni-Mart (collectively, the "Properties"). The Loan Agreement, Loans and the
Properties relating thereto are described on Exhibit A attached hereto. The
Loans are evidenced by promissory notes (collectively, the "Notes") and are
secured by first priority liens on and security interests in the Properties
pursuant to mortgages and/or deeds of trust (collectively, the "Mortgages"). The
Loan Agreement, the Notes, the Mortgages and all other loan documents executed
in connection with the Loans are referred to collectively as the "Loan
Documents."
B. The Loans were assigned by FFCA to LaSalle. GE Capital
Franchise Finance Corporation, a Delaware corporation ("GECFF"), is the
successor by merger to FFCA and the servicer for the Loans (GECFF in such
capacity "Servicer").
C. Uni-Mart has identified certain under-performing Properties
described on Exhibit B attached hereto (collectively, the "Underperforming
Properties" and individually, an "Underperforming Property") which Uni-Mart
would like to sell to third parties and prepay the Loans corresponding to such
Properties at the closing of such sales (the "Disposition Plan").
D. Uni-Mart desires to proceed with the Disposition Plan and
LaSalle is willing to do so but only under the terms and conditions hereof.
AGREEMENT:
In consideration of the mutual covenants and provisions of this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. Unless otherwise expressly provided herein, the
following terms shall have the following meanings for all purposes of this
Agreement:
"Acceptable Financial Institution" means (i) Provident Bank on such
terms and conditions as LaSalle shall approve in its sole discretion, or (ii)
such other federally insured financial institution as may be reasonably
acceptable to LaSalle and Uni-Mart.
"APA" means an asset purchase agreement entered into by Uni-Mart, as
seller, and a qualified, independent third party, as purchaser, with respect to
the sale of one or more Underperforming Properties.
"Borrower Collateral Unit" means all Collateral associated with a given
Underperforming Property.
"Borrower Collateral Unit Excess Proceeds" means the amount by which
the Borrower Collateral Unit Net Proceeds for a given Borrower Collateral Unit
exceeds the Outstanding Loan Balance for the Loan associated with such Borrower
Collateral Unit.
"Borrower Collateral Unit Net Proceeds" means gross sale proceeds
related to the sale of a given Borrower Collateral Unit (excluding in-store and
underground inventory sales proceeds and credits received at closing for
Uni-Mart's prepaid expenses and security deposits) less reasonable, ordinary and
necessary, third party, arms length equipment/operating lease payoffs and
transaction costs, all as approved in advance by LaSalle in writing.
"Borrower Collateral Unit Shortfall" means the amount by which the
Outstanding Loan Balance for a given Loan exceeds the Borrower Collateral Unit
Net Proceeds for the Borrower Collateral Unit associated with such Loan.
"Closing" means the closing of the sale of an Underperforming Property.
"Closing Date" means the date of Closing.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et
seq., as amended.
"Collateral" means the land, improvements, furniture, fixtures,
equipment and other personal property and other collateral associated with
Underperforming Properties which are encumbered by mortgages and security
instruments in favor of LaSalle as of the Effective Date.
"Crossed Collateral" means all Collateral which secures a Loan and
obligations of Uni-Mart not relating to such Loan, as described more
particularly in Section 5 hereof.
"Cross-Collateralized Borrower Shortfall" means the amount by which the
aggregate Outstanding Loan Balance associated with all Crossed Collateral sold
by Uni-Mart during the Disposition Period exceeds the aggregate Borrower
Collateral Unit Net Proceeds associated with the same Crossed Collateral.
"Cross-Collateralized Excess Proceeds" means the amount by which the
aggregate Borrower Collateral Unit Net Proceeds associated with all Crossed
Collateral sold by Uni-Mart during the Disposition Period exceeds the aggregate
Outstanding Loan Balance associated with the same Crossed Collateral as of their
respective Closing Dates.
"Cross Escrow Account" means an escrow account established in the name
of "LaSalle Bank National Association, as Indenture Trustee (1999-1 Pool),
collateral account of Uni-Marts, Inc." in an Acceptable Financial Institution
with respect to those Loans made to Uni-Mart.
"Cross Escrow Account Security Agreement" means the Account Security
Agreement to be entered into by Uni-Mart in favor of LaSalle with respect to the
Cross Escrow Account, as the same may be amended from time to time.
"Disposition Period" means the period ending upon the earlier to occur
of (a) October 31, 2004, and (b) the date upon which the Closing for all the
Underperforming Properties has occurred, as the same may be extended pursuant to
the last sentence of Section 2.A.
"Existing Pledge Agreement" means the Pledge, Control and Security
Agreement dated as of February 21, 2003 between Uni-Mart and Servicer.
"Junior Security Agreement" means the Account Security Agreement
(Subordinated) to be entered into by Uni-Mart in favor of Provident with respect
to the Cross Escrow Account, as the same may be amended from time to time.
"LaSalle Master Property Disposition Agreement" means the Master
Property Disposition Agreement to be entered into as of the Effective Date among
LaSalle Bank National Association, as Indenture Trustee, Uni-Mart and Uni Realty
of Wilkes-Barre, L.P., with respect to mortgage and equipment loans made to Uni
Realty of Wilkes-Barre, L.P. and Uni-Mart, respectively, in the 2000-1
securitized loan pool.
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"Loan Document Default" means an Event of Default as defined in any of
the Loan Documents, other than an Event of Default with respect to property
fixed charge coverage ratio covenants, corporate fixed charge coverage ratio
covenants or net worth covenants.
"Non-Crossed Collateral" means Collateral which is not Crossed
Collateral.
"Non-Pennsylvania Mortgage Collateral" means the Collateral described
in each Mortgage encumbering a Property located outside the Commonwealth of
Pennsylvania.
"Obligations" means the obligations of Uni-Mart with respect to its
Loans, including but not limited to the Notes and all other obligations secured
by the Mortgages or other Loan Documents.
"Other Master Property Disposition Agreements" means the LaSalle Master
Property Disposition Agreement and the WAMU Master Property Disposition
Agreement.
"Outstanding Loan Balance" means the outstanding principal balance for
a given Loan at the time of the Closing of the sale of the Underperforming
Property to which such Loan relates, together with all unpaid interest (at the
contract rate set forth in the applicable Note) and other sums due and unpaid in
connection therewith, but excluding any prepayment premium or yield maintenance
premium.
"Pennsylvania Mortgage Collateral" means the Collateral described in
each Mortgage encumbering a Property located in the Commonwealth of
Pennsylvania.
"Provident" means The Provident Bank, a bank chartered under the laws
of the State of Ohio.
"Reduced Prepayment Premium" means an amount equal to 25% of the
prepayment premium which would otherwise be due and payable under the applicable
Loan Documents in connection with the prepayment of the applicable Loan.
"Shortfall Loan" means a $4,000,000 credit facility to be provided by
Provident to be used by Uni-Mart to fund Borrower Collateral Unit Shortfalls.
The Shortfall Loan shall not be secured by (i) any collateral securing the
Loans, (ii) Borrower Collateral Unit Excess Proceeds which are required to be
deposited into the Cross Escrow Account or paid to LaSalle under this Agreement,
or (iii) any collateral or proceeds covered by the Other Master Property
Disposition Agreements (except to the extent otherwise expressly provided
therein).
"Shortfall Loan Agreement" means the Shortfall Loan Agreement to be
entered into by Uni-Mart, Uni-Marts of America, Inc. and Provident with respect
to the Shortfall Loan.
"Subordination Agreement" means the Subordination Agreement to be
entered into by Provident and LaSalle with respect to the Junior Security
Agreement, which Subordination Agreement shall be in form and substance
acceptable to LaSalle, as the same may be amended from time to time.
"Transaction Documents" means, collectively, this Agreement, the Cross
Escrow Account Security Agreement, the Subordination Agreement and all other
documents executed in connection with the transactions contemplated by this
Agreement.
"WAMU Master Property Disposition Agreement" means the Master
Property Disposition Agreement to be entered into as of the Effective Date among
Washington Mutual Bank, FA, Uni-Mart and Uni Realty of Luzerne, L.P.
2. DISPOSITION PLAN.
A. Previously Sold Units; Undertaking to Sell. Prior to the
Effective Date, Uni-Mart sold the Underperforming Properties listed on Exhibit C
attached hereto (the "Previously Sold Units") with LaSalle's consent. The net
proceeds from such sale were paid to LaSalle to repay the Outstanding Loan
Balance of the Loans
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corresponding to the Previously Sold Units (the "Previously Paid-Off Loans") and
the Reduced Prepayment Premium relating thereto. The Borrower Collateral Unit
Excess Proceeds relating to the Previously Sold Units in the aggregate amount of
$177,345.39 shall be deposited in the Cross Escrow Account by Uni-Mart
simultaneously with the execution and delivery of this Agreement. Upon such
transfer, the Existing Pledge Agreement shall be deemed terminated and of no
force and effect and, notwithstanding anything to the contrary contained in this
Agreement, Uni-Mart's obligation to pay any prepayment premiums with respect to
the Previously Paid-Off Loans shall be deemed to have been satisfied in full.
Uni-Mart agrees to use its best efforts to sell the remaining
Underperforming Properties as quickly as is reasonably possible during the
Disposition Period. If an APA has been executed during the Disposition Period
and LaSalle has received notice thereof as provided in clause B below but
Closing thereunder has been delayed beyond the Disposition Period, LaSalle
agrees to extend the Disposition Period as may be reasonably necessary to
accomplish such Closing, but not beyond November 30, 2004.
B. Notice. Uni-Mart shall notify LaSalle and Servicer in writing
of the prospective sale of any Underperforming Property by delivering to LaSalle
and Servicer (i) an executed APA, and (ii) an estimate of the Borrower
Collateral Unit Net Proceeds relating to such Underperforming Property,
including a breakdown of all expenses used in its calculation, which estimate
shall be subject to LaSalle's approval, not to be unreasonably delayed, withheld
or conditioned. If more than one Underperforming Property is being sold pursuant
to an APA, the APA shall provide an allocation of the purchase price among all
Underperforming Properties included in the APA, such allocation to be subject to
LaSalle's consent, not to be unreasonably withheld.
C. Agreement to Release. During the Disposition Period, upon each
Closing LaSalle shall, provided no Loan Document Default has occurred and is
then continuing and the Uni-Mart is in compliance with all of its obligations
under this Agreement, upon (i) the receipt of the aggregate, applicable
Outstanding Loan Balance for the Loan corresponding to the Underperforming
Property being sold, calculated as of the date of such Closing, and (ii) any
Borrower Collateral Unit Excess Proceeds being applied as described under
subsection E below, either (x) release its liens on the applicable
Underperforming Property on the applicable Closing Date or (y) provide on such
Closing Date to the title company handling the applicable Closing written
confirmation satisfactory to them that such liens will be released promptly
after such Closing Date, subject to the satisfaction of clauses (i) and (ii) of
this sentence (in which case, LaSalle shall release its liens promptly after
such Closing Date, subject to the satisfaction of clauses (i) and (ii) of this
sentence). LaSalle shall have no obligation to release any Mortgage or other
security interest or lien with respect to any Underperforming Property unless
and until it has received the payment required to be made pursuant to this
Section 2 at the Closing of the sale of such Underperforming Property.
D. Borrower Collateral Unit Shortfall. Upon each Closing, the
aggregate, applicable Outstanding Loan Balance for the Loan corresponding to the
Underperforming Property being sold shall be paid to LaSalle (from the Closing
escrow in immediately available funds) and applied to such Loan. Any Borrower
Collateral Unit Shortfall shall be paid to LaSalle by Uni-Mart on the Closing
Date (i) first, for any Crossed Collateral, from the Cross Escrow Account to the
extent funds are available in such account, and (ii) second, from the Shortfall
Loan or other funds of Uni-Mart.
E. Borrower Collateral Unit Excess Proceeds. At each Closing,
Borrower Collateral Unit Excess Proceeds, if any, shall be calculated by
Uni-Mart and LaSalle and shall be applied and paid:
(i) in the case of Non-Crossed Collateral,
FIRST, to LaSalle, in an amount up to the Reduced Prepayment
Premium due with respect to the Loan relating to such Non-Crossed
Collateral,
SECOND, to the Shortfall Loan, to the extent that Borrower
Collateral Unit Shortfalls have previously been funded from the
Shortfall Loan, and
THIRD, (x) if no Loan Document Default has occurred and is
then continuing and Uni-Mart is in compliance with all of its
obligations under this Agreement, to Uni-Mart, or (y) if a Loan
Document
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Default has occurred and is then continuing or if Uni-Mart is not in
compliance with all of its obligations under this Agreement, to LaSalle
to be applied toward the Obligations in such order, priority and
proportions as LaSalle in its discretion shall deem proper or, in
LaSalle's discretion, to cure the Loan Document Default;
(ii) in the case of Crossed Collateral,
FIRST, to the Shortfall Loan, to the extent that Borrower
Collateral Unit Shortfalls have previously been funded from the
Shortfall Loan, and
SECOND, to the Cross Escrow Account.
3. CROSS ESCROW ACCOUNT. A. LaSalle shall have a valid and
perfected first priority security interest in the Cross Escrow Account pursuant
to the Cross Escrow Account Security Agreement. Such security interest shall
terminate and be of no force and effect upon the distribution to LaSalle of all
funds held in the Cross Escrow Account and required to be distributed to LaSalle
at the end of the Disposition Period (subject to the last sentence of Section
2.A) in accordance with the provisions of Section 3.B. Pursuant to the Cross
Escrow Account Security Agreement, Provident shall waive any banker's lien or
rights of set-off or recoupment it may have with respect to the Cross Escrow
Account. Any interest accruing during the Disposition Period on the funds on
deposit in the Cross Escrow Account shall be added to the funds on deposit in
the Cross Escrow Account and shall be disbursed in the same manner as such
funds.
B. At the end of the Disposition Period (subject to the last
sentence of Section 2.A), the remainder of the funds held in the Cross Escrow
Account shall be applied to payment of the amount of the Reduced Prepayment
Premium due with respect to the Loans relating to all of the Crossed Collateral
sold by Uni-Mart during the Disposition Period as contemplated by Section 4
below. The balance, if any, remaining after such payment shall be paid as
follows:
(w) if no Loan Document Default has occurred and is then
continuing and Uni-Mart is in compliance with its property fixed charge
coverage ratio covenants contained in the Loan Documents and all of its
obligations under this Agreement,
FIRST, to the Shortfall Loan, to the extent that
Borrower Collateral Unit Shortfalls have previously been
funded from the Shortfall Loan, and
SECOND, to Uni-Mart;
(x) if a Loan Document Default has occurred and is then
continuing or Uni-Mart is not in compliance with all of its obligations
under this Agreement, to LaSalle to be applied toward the Obligations
in such order, priority and proportions as LaSalle in its discretion
shall deem proper or, in LaSalle's discretion, to cure the Loan
Document Default;
(y) if no Loan Document Default has occurred and is then
continuing and Uni-Mart is in compliance with all of its obligations
under this Agreement but is not in compliance with its property fixed
charge coverage ratio covenants contained in the Loan Documents (tested
for the 12 full months immediately preceding the end of the Disposition
Period),
FIRST, to LaSalle, in the amount necessary to cure
such non-compliance in accordance with the terms of Section
10.A(6) of the Loan Agreement,
SECOND, if clause (z) below is applicable, in
accordance with such clause (z), or, if clause (z) below is
not applicable, to the Shortfall Loan, to the extent that
Borrower Collateral Unit Shortfalls have previously been
funded from the Shortfall Loan,
THIRD, to Uni-Mart; or
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(z) if no Loan Document Default has occurred and is then
continuing and Uni-Mart is in compliance with all of its obligations
under this Agreement but is not in compliance with its corporate fixed
charge coverage ratio or net worth covenants contained in the Loan
Documents (tested in the case of the corporate fixed charge coverage
ratio for the 12 full months immediately preceding the end of the
Disposition Period), to LaSalle, and, in LaSalle's discretion, such
amount shall either be (i) applied toward the Obligations (other than
prepayment premiums due with respect to the Loans relating to all of
the Crossed Collateral sold by Uni-Mart during the Disposition Period,
as to which the provisions of Section 4 and the first sentence of
Section 3.B shall apply) in such order, priority and proportions as
LaSalle in its discretion shall deem proper, (ii) pledged to LaSalle to
secure such Obligations (either through an account security agreement
or the purchase of a letter of credit), or (iii) remitted to Uni-Mart.
4. REDUCED PREPAYMENT PREMIUM. Upon the Closing of each sale of
Non-Crossed Collateral, Uni-Mart shall pay, to the extent of available Borrower
Collateral Unit Excess Proceeds, and LaSalle shall accept, an amount equal to
the Reduced Prepayment Premium due with respect to the Loan relating to such
Non-Crossed Collateral, in full satisfaction of the prepayment premium payable
under the Loan Documents with respect to such Non-Crossed Collateral. With
respect to Crossed Collateral, upon the conclusion of the Disposition Period,
Uni-Mart and LaSalle shall determine if the aggregate Borrower Collateral Unit
Net Proceeds from the sale of the Crossed Collateral exceeds the aggregate
Outstanding Loan Balance paid to LaSalle with respect to the Crossed Collateral
sold by Uni-Mart. Within 10 days after the expiration of the Disposition Period,
Cross-Collateralized Excess Proceeds with respect to the Crossed Collateral sold
by Uni-Mart, if any, up to an amount equal to the Reduced Prepayment Premium due
with respect to the Loans relating to all of the Crossed Collateral sold by
Uni-Mart during the Disposition Period, will be released to LaSalle, to the
extent available, from the Cross Escrow Account, and accepted by LaSalle in full
satisfaction of the aggregate prepayment premiums payable under the Loan
Documents with respect to the Crossed Collateral sold by Uni-Mart.
5. CROSSED COLLATERAL. Uni-Mart acknowledges and agrees that:
(i) each Mortgage encumbering a Property located in the
Commonwealth of Pennsylvania only secures the mortgage Loan
corresponding to such Property, and, consequently, the Pennsylvania
Mortgage Collateral is Non-Crossed Collateral for purposes of the
provisions of this Agreement; and
(ii) each Mortgage encumbering a Property located outside the
Commonwealth of Pennsylvania secures all Loans made to Uni-Mart, and
consequently, all Non-Pennsylvania Mortgage Collateral is Crossed
Collateral for purposes of the provisions of this Agreement.
6. CONDITIONS PRECEDENT. LaSalle's obligations under this
Agreement are subject to the fulfillment or waiver of each of the following
conditions:
A. Shortfall Loan. LaSalle shall have received
satisfactory evidence of the existence of the Shortfall Loan and
LaSalle shall have received and approved the final versions of the loan
documents relating thereto, which approval shall not be unreasonably
withheld. The Shortfall Loan shall not be secured by (i) any collateral
securing the Loans, (ii) Borrower Collateral Unit Excess Proceeds which
are required to be deposited into the Cross Escrow Account or paid to
LaSalle under this Agreement, or (iii) any collateral or proceeds
covered by the Other Master Property Disposition Agreements (except to
the extent otherwise expressly provided therein).
B. Cross Escrow Account. The Cross Escrow Account shall
have been established and the Cross Escrow Account Security Agreement
shall have been executed and delivered. Provident shall have executed
and delivered an Acknowledgement and Consent to the Cross Escrow
Account Security Agreement in the form attached thereto as Exhibit B.
C. Estimated Proceeds. Uni-Mart shall have provided
LaSalle with a calendar describing the timing of the projected sale of
the Underperforming Properties, including, for each Borrower Collateral
Unit, the estimated Borrower Collateral Unit Net Proceeds and Borrower
Collateral Unit Shortfall or Borrower Collateral Unit Excess Proceeds,
and the estimated aggregate Borrower Collateral Unit Shortfalls or
Borrower Collateral Unit Net Proceeds.
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D. Payment of Costs and Expenses. Uni-Mart shall have
paid all costs and expenses as contemplated by the terms of Section 14
of this Agreement.
E. Representations and Warranties. The representations
and warranties of Uni-Mart contained in this Agreement and any other
document or instrument expressly contemplated by this Agreement shall
be true and correct in all respects as of the Effective Date.
F. Other Master Property Disposition Agreements. The
Other Master Property Disposition Agreements shall have been fully
executed and delivered.
G. Subordination Agreement. Provident shall have
executed and delivered the Subordination Agreement.
7. REPRESENTATIONS AND WARRANTIES OF LASALLE. The representations
and warranties of LaSalle contained in this Section are being made by LaSalle as
of the Effective Date to induce Uni-Mart to enter into this Agreement and
consummate the transactions contemplated herein, and Uni-Mart has relied, and
will continue to rely, upon such representations and warranties from and after
the Effective Date. LaSalle represents and warrants to Uni-Mart as follows:
A. Organization of Servicer. Servicer has been duly
formed, is validly existing and is in good standing under the laws of
its state of formation, and has taken all necessary action to authorize
the execution, delivery and performance by Servicer, on behalf of
LaSalle, of this Agreement and the other Transaction Documents to which
it is a party.
B. Authority of LaSalle. The person who has executed
this Agreement on behalf of LaSalle is duly authorized so to do.
C. Enforceability. Upon execution by LaSalle, this
Agreement and the other Transaction Documents to which it is a party
shall constitute the legal, valid and binding obligations of LaSalle,
enforceable against LaSalle in accordance with their respective terms.
All representations and warranties of LaSalle made in this Agreement
shall survive the execution and delivery of this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF UNI-MART. The
representations and warranties of Uni-Mart contained in this Section are being
made by Uni-Mart as of the Effective Date to induce LaSalle to enter into this
Agreement and consummate the transactions contemplated herein, and LaSalle and
Servicer have relied, and will continue to rely, upon such representations and
warranties from and after the Effective Date. Uni-Mart represents and warrants
to LaSalle and Servicer as follows:
A. Organization and Authority of Uni-Mart. Uni-Mart is
duly organized, validly existing and in good standing under the laws of
its state of incorporation or formation and qualified to do business in
any jurisdiction where such qualification is required. All necessary
corporate action has been taken to authorize the execution, delivery
and performance of this Agreement and the other Transaction Documents
to which it is a party. Uni-Mart is not a "foreign corporation",
"foreign partnership", "foreign trust", "foreign limited liability
company" or "foreign estate", as those terms are defined in the
Internal Revenue Code and the regulations promulgated thereunder. The
person who has executed this Agreement on behalf of Uni-Mart is duly
authorized so to do.
B. Enforceability of Transaction Documents. Upon
execution by Uni-Mart, this Agreement and the other Transaction
Documents to which it is a party shall constitute the legal, valid and
binding obligations of Uni-Mart, enforceable against Uni-Mart in
accordance with their respective terms.
C. Enforceability of Loan Documents. Each of the Loan
Documents to which Uni-Mart is a party constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its
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respective terms. Without limiting the generality of the foregoing, the
cross-collateralization provisions in each of the Loan Documents are
legal, valid and binding obligations, enforceable in accordance with
their respective terms.
D. First Priority Liens. Each of the Loans is secured by
a first priority lien against the real estate and equipment at the
corresponding Property.
E. Litigation. There are no suits, actions, proceedings
or investigations pending, or to the best of its knowledge, threatened
against or involving Uni-Mart or any of the Properties before any
arbitrator or governmental authority which might reasonably result in
any material adverse change in the contemplated business, condition,
worth or operations of Uni-Mart or any of the Properties.
F. Absence of Breaches or Defaults. No Loan Document
Default has occurred and is continuing and Uni-Mart is not in default
in any material respect under any other document, instrument or
agreement to which it, any of the Properties or any of its property is
subject or bound. The authorization, execution, delivery and
performance of this Agreement and the other Transaction Documents will
not result in any breach of or default under any other document,
instrument or agreement to which Uni-Mart is a party or by which
Uni-Mart, any of the Properties or any of the property of Uni-Mart is
subject or bound.
G. Shortfall Loan. Uni-Mart has satisfied all conditions
precedent to the issuance of the Shortfall Loan, including, without
limitation, paying all fees required to be paid as a condition to the
issuance of the Shortfall Loan.
All representations and warranties of Uni-Mart made in this Agreement
shall survive the execution and delivery of this Agreement.
9. ACKNOWLEDGEMENTS. Uni-Mart acknowledges and agrees that:
(i) except as otherwise permitted in the Loan Documents,
it will keep each Underperforming Property open and operating in a
manner substantially similar to past operations until such time as it
is sold and the aggregate Outstanding Loan Balance corresponding to
such Underperforming Property has been paid;
(ii) it will make all payments required under the terms of
its Loans, and, except as otherwise expressly provided in this
Agreement, it will comply with all of its other obligations under the
terms of the Loan Documents governing such Loans;
(iii) except as otherwise expressly provided for in this
Agreement, the Loan Documents are not modified or amended by this
Agreement and shall remain in full force and effect and this Agreement
shall not constitute a waiver of any rights or remedies in respect of
the Loan Documents. Without limiting the generality of the foregoing,
Uni-Mart acknowledges and agrees that the provisions of this Agreement
shall only apply to those Underperforming Properties for which a
Closing has occurred during the Disposition Period (subject to the last
sentence of Section 2.A);
(iv) except as otherwise expressly provided for in this
Agreement, the Loan Documents and all rights, title, interest, liens,
powers and privileges by virtue thereof (including, without limitation,
any cross-collateralization provisions contained therein) are hereby
reaffirmed, ratified, renewed and extended and shall be and continue to
be in full force and effect to secure the payment of the indebtedness
evidenced by the Loan Documents and any and all restatements, renewals,
modifications, amendments, increases and/or extensions thereof;
(v) except as otherwise expressly provided for in this
Agreement, no payment, discharge or release of any liens or collateral
securing the Loan Documents is intended hereby and all liens on all
such collateral shall continue in full force and effect from the date
of their execution and perfection and unimpaired by anything contained
in this Agreement;
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(vi) it has no defenses, offsets or counterclaims with
respect to the performance of its obligations under the Loan Documents
to which it is a party, as modified by this Agreement;
(vii) Section 5 of this Agreement is a true, accurate and
complete description of the extent to which the Loans and the
Properties are cross-collateralized; and
(viii) LaSalle's agreement to release liens in accordance
with the provisions of Section 2 only applies to liens against
Underperforming Properties for which the Closing occurs during the
Disposition Period (subject to the last sentence of Section 2.A). This
Agreement does not create any obligation on the part of LaSalle to
release liens against (x) Properties which are not Underperforming
Properties, or (y) Underperforming Properties for which the Closing
occurs after the end of the Disposition Period (subject to the last
sentence of Section 2.A), except as may be required pursuant to the
Loan Documents.
10. FORBEARANCE. During the Disposition Period, LaSalle shall
forbear and refrain from enforcing any property fixed charge coverage ratio
covenants, corporate fixed charge coverage ratio covenants or net worth
covenants contained in the Loan Documents; provided that, such agreement to
forbear and refrain (i) shall immediately, without notice to Uni-Mart, or an
opportunity to cure, terminate upon the occurrence of a Loan Document Default or
the occurrence of a breach or default by Uni-Mart under this Agreement, (ii)
shall not limit LaSalle's right under Section 3.B to receive from the Cross
Escrow Account the amount necessary to cure any non-compliance by Uni-Mart at
the end of the Disposition Period with its property fixed charge coverage ratio
covenants contained in the Loan Documents (tested for the 12 full months
immediately preceding the end of the Disposition Period) in accordance with the
terms of Section 10.A(6) of the Loan Agreement, (iii) shall not be deemed to
waive any other default that may occur under the Loan Documents, and (iv) shall
terminate at the end of the Disposition Period (subject to Section 11(b)).
11. POST DISPOSITION PERIOD AMENDMENT. Promptly after the end of
the Disposition Period, Uni-Mart and LaSalle shall negotiate in good faith an
amendment to the Loan Agreement to revise the minimum net worth covenant
contained therein to an appropriate dollar amount based on the properties and
assets then owned by Uni-Mart (after the sale of the properties to be sold
pursuant to this Agreement and the Other Master Property Disposition Agreements)
and its then capital structure.
12. DEFAULT AND REMEDIES. Each of the following shall be deemed an
event of default by Uni-Mart under this Agreement (each, an "Event of Default"):
(i) If any representation or warranty of Uni-Mart set
forth in this Agreement or any of the Transaction Documents is false in
any material respect or if Uni-Mart renders any written statement or
account which is false in any material respect;
(ii) If Uni-Mart fails to keep or perform any of the other
covenants, conditions, or obligations of this Agreement beyond the
expiration of all applicable notice and cure or grace periods set forth
in this Agreement;
(iii) If Uni-Mart is or becomes insolvent within the
meaning of the Code, files or notifies LaSalle that it intends to file
a petition under the Code, initiates a proceeding under any similar law
or statute relating to bankruptcy, insolvency, reorganization, winding
up or adjustment of debts (each, an "Action"), becomes the subject of
either a petition under the Code or an Action, or is not generally
paying its debts as the same become due;
(iv) If a Loan Document Default shall occur and be
continuing; or
(v) If there is a breach or default under the Shortfall
Loan which continues beyond the expiration of all applicable notice and
cure or grace periods.
Upon the occurrence of an Event of Default, LaSalle may exercise, at its option,
concurrently, successively or in any combination, all remedies available at law
or in equity. A breach or default by Uni-Mart under this Agreement shall be
deemed an "Event of Default" under the Loan Documents.
9
13. SHORTFALL LOAN. (a) Uni-Mart shall not amend or modify any of
the provisions of the Shortfall Loan Agreement or the Junior Security Agreement
without providing at least fifteen (15) calendar days' prior written notice to
LaSalle and obtaining LaSalle's prior written consent.
(b) Uni-Mart has informed LaSalle that, under the Shortfall Loan
Agreement, the aggregate maximum principal amount outstanding under the
Shortfall Loan and any other revolving credit loans that Provident has agreed to
make to Uni-Mart (the "Existing Revolvers") may not exceed $15,000,000. In order
for the full $4,000,000 Shortfall Loan to be available to Uni-Mart, Uni-Mart
covenants and agrees that the maximum principal amount outstanding under the
Existing Revolvers shall not exceed $11,000,000.
14. COSTS AND EXPENSES. All out-of-pocket third-party costs and
expenses of this Agreement and the transactions contemplated by this Agreement
and any other activity contemplated by this Agreement shall be paid by Uni-Mart
within ten (10) days of written demand therefor, including, without limitation,
recording and filing fees, the actual and reasonable attorneys' fees and
expenses of Servicer and/or LaSalle and the attorneys' fees and expenses of
Uni-Mart, and escrow fees. In addition, Uni-Mart shall pay any document
preparation fee customarily charged by Servicer with respect to releases of the
liens held by LaSalle against each Underperforming Property sold during the
Disposition Period.
15. INDEMNITY. Uni-Mart agrees to indemnify, hold harmless and
defend LaSalle, Servicer and their respective directors, officers, shareholders,
employees, successors, assigns, agents, contractors, subcontractors, experts,
licensees, affiliates, lessees, servicers, mortgagees, trustees and invitees, as
applicable, from and against any and all losses, costs, claims, liabilities,
damages and expenses arising as a result of a breach of any of the
representations, warranties, covenants, agreements or conditions of Uni-Mart set
forth in this Agreement.
16. MISCELLANEOUS PROVISIONS.
A. Notices. All notices, consents, approvals or other
instruments required or permitted to be given by either party pursuant
to this Agreement shall be in writing and given by (i) hand delivery,
(ii) facsimile, (iii) express overnight delivery service or (iv)
certified or registered mail, return receipt requested, and shall be
deemed to have been delivered upon (a) receipt, if hand delivered, (b)
transmission, if delivered by facsimile, (c) the next business day, if
delivered by express overnight delivery service, or (d) the third
business day following the day of deposit of such notice with the
United States Postal Service, if sent by certified or registered mail,
return receipt requested. Notices shall be provided to the parties and
addresses (or facsimile numbers, as applicable) specified below:
If to Uni-Mart: N. Gregory Petrick
Executive Vice President
Uni-Marts, Inc.
477 East Beaver Avenue
State College, PA 16801-5690
Telephone: (814) 234-6000
Telecopy: (814) 234-3277
If to LaSalle or Servicer: c/o Dennis L. Ruben, Esq.
Executive Vice President,
General Counsel and Secretary
GE Capital Franchise Finance
Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (480) 585-4500
Telecopy: (480) 585-2226
B. Real Estate Commission. LaSalle and Uni-Mart
represent and warrant to each other that they have dealt with no real
estate broker, agent, finder or other intermediary in connection with
the transactions contemplated by this Agreement except Trefethen &
Company and other brokers that have been or may be retained by Uni-Mart
with respect to the sale of Underperforming Properties, all of whose
fees shall be paid by
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Uni-Mart. LaSalle and Uni-Mart shall indemnify and hold each other
harmless from and against any costs, claims or expenses, including
attorneys' fees, arising out of the breach of their respective
representations and warranties contained within this Section.
C. Waiver and Amendment. No provisions of this Agreement
shall be deemed waived or amended except by a written instrument
unambiguously setting forth the matter waived or amended and signed by
the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same
or any other matter on any future occasion.
D. Captions. Captions are used throughout this Agreement
for convenience of reference only and shall not be considered in any
manner in the construction or interpretation hereof.
E. Liability of LaSalle and Servicer. Notwithstanding
anything to the contrary provided in this Agreement, it is specifically
understood and agreed, such agreement being a primary consideration for
the execution of this Agreement by LaSalle, that (i) there shall be
absolutely no personal liability on the part of any shareholder,
director, officer or employee of LaSalle or Servicer, with respect to
any of the terms, covenants and conditions of this Agreement or the
other Transaction Documents, (ii) Uni-Mart waives all claims, demands
and causes of action against the officers, directors, employees and
agents of LaSalle or Servicer in the event of any breach by LaSalle of
any of the terms, covenants and conditions of this Agreement or the
other Transaction Documents to be performed by LaSalle, and (iii)
Uni-Mart shall look solely to the assets of LaSalle for the
satisfaction of each and every remedy of Uni-Mart in the event of any
breach by LaSalle of any of the terms, covenants and conditions of this
Agreement or the other Transaction Documents to be performed by
LaSalle, such exculpation of liability to be absolute and without any
exception whatsoever.
F. Severability. The provisions of this Agreement shall
be deemed severable. If any part of this Agreement shall be held
unenforceable, the remainder shall remain in full force and effect, and
such unenforceable provision shall be reformed by such court so as to
give maximum legal effect to the intention of the parties as expressed
therein.
G. Construction Generally. This is an agreement between
parties who are experienced in sophisticated and complex matters
similar to the transaction contemplated by this Agreement and is
entered into by all parties in reliance upon the economic and legal
bargains contained herein and shall be interpreted and construed in a
fair and impartial manner without regard to such factors as the party
which prepared the instrument, the relative bargaining powers of the
parties or the domicile of any party. Each of the parties was
represented by legal counsel competent in advising them of their
obligations and liabilities hereunder.
H. Other Documents; Time is of the Essence. Each of the
parties agrees to sign such other and further documents as may be
reasonably necessary to carry out the intentions expressed in this
Agreement. Time is of the essence in the performance of each obligation
under this Agreement.
I. Attorneys' Fees. In the event of any judicial or
other adversarial proceeding between the parties concerning this
Agreement, the prevailing party shall be entitled to recover its
attorneys' fees and other costs in addition to any other relief to
which it may be entitled.
J. Entire Agreement. This Agreement and the other
Transaction Documents, together with any other certificates,
instruments or agreements to be delivered in connection therewith,
constitute the entire agreement between the parties with respect to the
subject matter hereof, and there are no other representations,
warranties or agreements, written or oral, between or among the parties
with respect to the subject matter of this Agreement.
K. Forum Selection; Jurisdiction; Venue; Choice of Law.
Uni-Mart acknowledges that this Agreement was substantially negotiated
in the State of Arizona, the Agreement was delivered by Uni-Mart in the
State of Arizona, all payments under the Loan Documents will be
delivered in the State of Arizona and there are substantial contacts
between the parties and the transactions contemplated herein and the
State of Arizona. For purposes of any action or proceeding arising out
of this Agreement, the parties hereto hereby
11
expressly submit to the jurisdiction of all federal and state courts
sitting in Maricopa County, Arizona and Uni-Mart consents that it may
be served with any process or paper by registered mail or by personal
service within or without the State of Arizona in accordance with
applicable law. Furthermore, Uni-Mart waives and agrees not to assert
in any such action, suit or proceeding that it is not personally
subject to the jurisdiction of such courts, that the action, suit or
proceeding is brought in an inconvenient forum or that venue of the
action, suit or proceeding is improper. It is the intent of the parties
hereto that all provisions of this Agreement shall be governed by and
construed under the laws of the State of Arizona, without giving effect
to its principles of conflicts of law. To the extent that a court of
competent jurisdiction finds Arizona law inapplicable with respect to
any provisions hereof, then, as to those provisions only, the laws of
the states where the Properties are located, as applicable, shall be
deemed to apply. Nothing in this Section shall limit or restrict the
right of LaSalle or Servicer to commence any proceeding in the federal
or state courts located in the states in which the Properties are
located, as applicable, to the extent LaSalle or Servicer deems such
proceeding necessary or advisable to exercise remedies available under
this Agreement or the other Transaction Documents.
L. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of each of the parties and their respective
successors and permitted assigns, including, without limitation, any
United States trustee, any debtor in possession or any trustee
appointed from a private panel.
N. Survival. All representations, warranties,
agreements, obligations and indemnities of the parties set forth in
this Agreement shall survive the execution and delivery of this
Agreement.
O. Waiver of Jury Trial and Punitive, Consequential,
Special and Indirect Damages. EACH OF THE PARTIES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT THEY MAY HAVE TO A TRIAL
BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO
AGAINST THE OTHER PARTY HERETO OR ITS SUCCESSORS WITH RESPECT TO ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THIS WAIVER BY THE
PARTIES HERETO OF ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY HAS BEEN
NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE,
EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES THE RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL
AND INDIRECT DAMAGES FROM THE OTHER PARTY HERETO OR ANY OF ITS
AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER
PARTY HERETO OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES
OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN
OR RELATED HERETO. THE WAIVER BY EACH OF THE PARTIES OF ANY RIGHT IT
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES
HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN.
P. Provident. Provident shall be a third-party
beneficiary of those provisions in this Agreement which provide for the
distribution or application of Borrower Collateral Unit Excess Proceeds
or funds in the Cross Escrow Account to or towards the Shortfall Loan.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first above written.
LASALLE BANK NATIONAL ASSOCIATION, as
Indenture Trustee pursuant to that certain Indenture
dated as of April 1, 1999
By GE Capital Franchise Finance Corporation, a
Delaware corporation, successor by merger to
Franchise Finance Corporation of America, as
Attorney-in-Fact and Master Servicer pursuant to
that Servicing Agreement dated as of April 1, 1999
By /S/ TODD J. WEISS
--------------------------------------------------
Printed Name Todd J. Weiss
Its Associate General Counsel
UNI-MARTS, INC., a Delaware corporation
By /S/ N. GREGORY PETRICK
---------------------------------------------------
Printed Name N. Gregory Petrick
Its Executive VP and CFO
The undersigned, as successor by merger to FFCA, acknowledges and agrees that it
has sold and assigned to LaSalle all of its right, title and interest in and to
the Loan Agreement, Loans and Properties described on Exhibit A attached hereto
and that no consent, waiver or approval from the undersigned is necessary for
the Disposition Plan or the transactions, including releases, contemplated
hereby. In its capacity as Servicer for LaSalle, the undersigned will act in
accordance with the terms of the foregoing Agreement.
GE CAPITAL FRANCHISE FINANCE CORPORATION,
a Delaware corporation
By /S/ TODD J. WEISS
--------------------------------------------------
Printed Name Todd J. Weiss
Its Associate General Counsel
EXHIBIT A
DESCRIPTION OF LOANS/PROPERTIES
EXHIBIT B
LIST OF UNDERPERFORMING PROPERTIES
* Properties which are subject to letters of intent as of the Effective Date
EXHIBIT C
PREVIOUSLY SOLD UNITS
1. 649 Himes Avenue, Frederick, Maryland 21702 (Unit No. 6005, FFC No.
8000-7107)
2. 300 S. Jefferson Street, Frederick, Maryland 21701 (Unit No. 46003, FFC
No. 8000-7105)