EXHIBIT 10.24
MASTER PROPERTY DISPOSITION AGREEMENT
THIS MASTER PROPERTY DISPOSITION AGREEMENT (this "Agreement") is
effective as of September 30, 2003 (the "Effective Date") by and among LASALLE
BANK NATIONAL ASSOCIATION, as Indenture Trustee pursuant to that certain
Indenture dated as of November 1, 2000 ("LaSalle"), UNI-MARTS, INC., a Delaware
corporation ("Uni-Mart"), and UNI REALTY OF WILKES-BARRE, L.P., a Delaware
limited partnership ("Wilkes-Barre").
PRELIMINARY STATEMENTS:
A. Pursuant to a certain loan agreement and equipment loan
agreement (collectively, the "Loan Agreements"), various mortgage and equipment
loans (collectively, the "Loans") were made by FFCA Acquisition Corporation, a
Delaware corporation ("FFCA"), to Wilkes-Barre and Uni-Mart (sometimes
collectively, "Borrowers" and individually, a "Borrower"), respectively, with
respect to the land, buildings and/or equipment at certain properties owned or
leased by Borrowers (collectively, the "Properties"). The Loan Agreements, 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, deeds of trust and/or equipment security agreements
(collectively, the "Mortgages"). The Loan Agreements, the Notes, the Mortgages
and all other loan documents executed in connection with the Loans are referred
to collectively as the "Loan Documents." Wilkes-Barre leased its Properties to
Uni-Mart pursuant to a master lease (the "Lease").
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 and Wilkes-Barre each have identified certain
under-performing Properties described on Exhibit B attached hereto
(collectively, the "Underperforming Properties" and individually, an
"Underperforming Property") which such Borrower 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 and Wilkes-Barre each desire 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 each Borrower.
"APA" means an asset purchase agreement entered into by one or more of
the Borrowers, as seller(s), 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
Borrower and 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 such
Borrower'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 relating to a given Borrower
which secures a Loan and obligations of one or more Borrowers 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 (2000-1 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 and Wilkes-Barre 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.
"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
between LaSalle Bank National Association, as Indenture Trustee and Uni-Mart,
with respect to mortgage loans made to Uni-Mart in the 1999-1 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.
"Obligations" means the obligations of a given Borrower with respect to
its Loans, including but not limited to such Borrower's Notes and all other
obligations secured by such Borrower's 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.
"Provident" means The Provident Bank, a bank chartered under the laws
of the State of Ohio.
"Reduced Prepayment Premium" means an amount equal to 75% 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 or
Loans.
"Shortfall Loan" means a $4,000,000 credit facility to be provided by
Provident to be used by Uni-Mart to either (x) fund its own Borrower Collateral
Unit Shortfalls, or (y) make capital contributions to Wilkes-Barre for
Wilkes-Barre to use to fund its own 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.
"Uni-Mart Equipment Collateral" means the furniture, equipment, trade
fixtures, appliances and other tangible personal property collateral for the
Loans made to Uni-Mart.
"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.
"Wilkes-Barre Mortgage Collateral" means the land, improvements,
fixtures and other collateral for the Loans made to Wilkes-Barre.
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2. DISPOSITION PLAN.
A. Undertaking to Sell. Each Borrower agrees to use its best
efforts to sell its Underperforming Properties as quickly as is reasonably
possible during the Disposition Period. With respect to each Underperforming
Property for which LaSalle holds both a mortgage and equipment Loan, the Closing
of the sale of the equipment relating to such Underperforming Property may only
occur simultaneously with the Closing of the sale of the real estate relating to
such Underperforming Property. 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. Borrowers 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 with respect to each Borrower Collateral Unit
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. Each APA shall provide that the real estate at such
Underperforming Property is being sold by Wilkes-Barre and the equipment at such
Underperforming Property is being sold by Uni-Mart, with an allocation of the
purchase price between such real estate and equipment, 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 applicable Borrower(s) 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 or Loans 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. Upon the
Closing for each Underperforming Property which is the subject of the Lease,
Wilkes-Barre and Uni-Mart shall release such Underperforming Property from the
Lease and terminate the recorded memorandum of lease with respect to such
Underperforming Property, provided that, the rent payable under the Lease shall
not be reduced by reason of such release and termination, except as contemplated
by Section 11(a).
D. Borrower Collateral Unit Shortfall. Upon each Closing, the
aggregate, applicable Outstanding Loan Balance for the Loan or Loans
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 or Loans. Any Borrower Collateral Unit Shortfall shall be paid to
LaSalle by the respective Borrower 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 the applicable Borrower.
E. Borrower Collateral Unit Excess Proceeds. At each Closing,
Borrower Collateral Unit Excess Proceeds, if any, shall be calculated by the
applicable Borrower 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 or Loans relating to such
Non-Crossed Collateral,
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SECOND, to Wilkes-Barre, to the extent that Wilkes-Barre has
previously funded its own Borrower Collateral Unit Shortfalls from the
proceeds of capital contributions made to Wilkes-Barre by Uni-Mart from
the proceeds of the Shortfall Loan (in which case, Wilkes-Barre shall
remit the amount received under this clause SECOND to Uni-Mart as a
return of capital and Uni-Mart shall apply such amount to the Shortfall
Loan), and
THIRD, (x) if no Loan Document Default has occurred and is
then continuing and the applicable Borrower is in compliance with all
of its obligations under this Agreement, to Wilkes-Barre, or (y) if a
Loan Document Default has occurred and is then continuing or if the
applicable Borrower 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 the applicable Borrower 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 the applicable Borrower 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 the applicable Borrower 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),
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FIRST, to LaSalle, in the amount necessary to cure
such non-compliance in accordance with the terms of Section
10.A(6) of the applicable mortgage 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
(z) if no Loan Document Default has occurred and is then
continuing and the applicable Borrower 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, Wilkes-Barre 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 and Wilkes-Barre acknowledge and
agree that:
(i) each Mortgage encumbering a Property corresponding to a
mortgage Loan made to Wilkes-Barre only secures such mortgage Loan,
and, consequently, the Wilkes-Barre Mortgage Collateral is Non-Crossed
Collateral for purposes of the provisions of this Agreement; and
(ii) each equipment lien and security interest granted by
Uni-Mart secures all mortgage and equipment Loans made to Uni-Mart or
Wilkes-Barre, and consequently, all Uni-Mart Equipment 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). Provident shall have
agreed in writing not to commence, or join with any creditor other than
LaSalle in the commencement of, or assist Wilkes-Barre in the
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commencement of, any bankruptcy, insolvency, arrangement,
reorganization, receivership, relief, or other similar case or
proceeding involving Wilkes-Barre or substantially all of its assets,
without LaSalle's prior written consent, which consent may be given or
withheld in LaSalle's sole discretion.
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. Borrowers 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, for each Borrower, the estimated aggregate Borrower Collateral
Unit Shortfalls or Borrower Collateral Unit Net Proceeds.
D. Payment of Costs and Expenses. Borrowers 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 Borrowers 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 Borrowers to enter into this Agreement and
consummate the transactions contemplated herein, and Borrowers have relied, and
will continue to rely, upon such representations and warranties from and after
the Effective Date. LaSalle represents and warrants to Borrowers 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 BORROWERS. The representations and
warranties of Borrowers contained in this Section are being made by each of the
Borrowers 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. Each of the Borrowers represents
and warrants to LaSalle and Servicer as follows:
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A. Organization and Authority of Borrowers. Each of the
Borrowers 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 or limited partnership 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.
None of the Borrowers is 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 each of the Borrowers is duly
authorized so to do.
B. Enforceability of Transaction Documents. Upon
execution by each of the Borrowers, this Agreement and the other
Transaction Documents to which it is a party shall constitute the
legal, valid and binding obligations of each of the Borrowers, as
applicable, enforceable against each of the Borrowers, as applicable,
in accordance with their respective terms.
C. Enforceability of Loan Documents and Lease. Each of
the Loan Documents to which it is a party and the Lease constitutes its
legal, valid and binding obligation, enforceable against it in
accordance with its 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 mortgage Loans to
which it is a party is secured by a first priority mortgage lien
against the real estate at the corresponding Property and each of the
equipment Loans to which it is a party is secured by a first priority
lien against and security interest in the 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 any of the Borrowers 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 any of the Borrowers or any of the
Properties.
F. Absence of Breaches or Defaults. No Loan Document
Default has occurred and is continuing and the Borrowers are 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 any of the Borrowers is a party or by
which any of the Borrowers, any of the Properties or any of the
property of any of the Borrowers 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 the Borrowers made in this
Agreement shall survive the execution and delivery of this Agreement.
9. ACKNOWLEDGEMENTS. A. Each of the Borrowers 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;
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(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,
each of the Borrowers 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;
(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;
(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;
(ix) Wilkes-Barre was created and remains a special
purpose bankruptcy remote entity consistent with its representations
and covenants contained in its Loan Agreement with respect thereto;
(x) at the time of the origination of each of the Loans
to Wilkes-Barre, the fair market value of the Properties securing such
Loans equaled or exceeded the corresponding amount of such Loans; and
(xi) as a special purpose, bankruptcy remote entity,
Wilkes-Barre does not have creditors other than LaSalle, various
property tax authorities and any other creditors expressly permitted by
the terms of its Loan Agreement.
Wilkes-Barre acknowledges the "Nonconsolidation" covenants set forth in the Loan
Documents to which it is a party and acknowledges its obligations to comply with
and abide by such covenants, and LaSalle shall not assert that any provision in
this Agreement constitutes a violation of such covenants by Wilkes-Barre.
B. Uni-Mart acknowledges and agrees that:
(i) it will make all payments required under the terms of
the Lease and will comply with all of its other obligations under the
terms of the Lease without any rent reduction for any sale of a
Property pursuant to the Disposition Plan;
(ii) except as otherwise expressly provided for in this
Agreement, the Lease is 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 Lease;
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(iii) except as otherwise expressly provided for in this
Agreement, the Lease and all rights, title, interest, liens, powers and
privileges by virtue thereof are hereby reaffirmed, ratified, renewed
and extended and shall be and continue to be in full force and effect,
including any and all restatements, renewals, modifications, amendments
and/or extensions thereof;
(iv) except as otherwise expressly provided for in this
Agreement, no payment, discharge or release of any liens or collateral
securing the Lease is intended hereby and all liens on all such
collateral shall continue in full force and effect, unimpaired from the
date of their execution and perfection;
(v) it has no defenses, offsets or counterclaims with
respect to the performance of its obligations under the Lease;
(vi) the Lease constitutes a single master lease of all,
but not less than all, of the Properties subject to the Lease and
Wilkes-Barre executed and delivered the Lease with the understanding
that the Lease constitutes a unitary, unseverable instrument pertaining
to all, but not less than all, of the Properties subject to the Lease,
and that neither the Lease nor the duties, obligations or rights of
Uni-Mart, as tenant, may be allocated or otherwise divided among such
Properties by Uni-Mart; and
(vii) the business relationship created by the Lease and
any related documents is solely that of a long-term commercial lease
between landlord and tenant and has been entered into by both parties
in reliance upon the economic and legal bargains contained herein.
Uni-Mart acknowledges the "Nonconsolidation" covenants set forth in the Lease
and acknowledges its obligations to comply with and abide by such covenants, and
LaSalle shall not assert that any provision in this Agreement constitutes a
violation of such covenants by Uni-Mart.
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 any of the
Borrowers, or an opportunity to cure, terminate upon the occurrence of a Loan
Document Default or the occurrence of a breach or default by any of the
Borrowers 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
applicable mortgage 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 AMENDMENTS. (a) Promptly after the end
of the Disposition Period, Wilkes-Barre and Uni-Mart shall enter into an
amendment to the Lease to reduce the base annual rental payable thereunder to an
amount to be negotiated by the parties in good faith based on the Properties
then remaining in the Lease, the annual debt service payments then due under the
Notes with respect to such Properties, and appropriate gross ups to such debt
service payments to take into account potential increases in the variable
interest rate relating to such Notes. LaSalle's prior written consent shall be
required with respect to such amendment, which consent shall not be unreasonably
withheld, delayed or conditioned by LaSalle.
(b) Promptly after the end of the Disposition Period, Uni-Mart and
LaSalle shall negotiate in good faith an amendment to Uni-Mart's Loan Agreements
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 the Borrowers under this Agreement (each, an "Event of
Default"):
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(i) If any representation or warranty of any of the
Borrowers set forth in this Agreement or any of the Transaction
Documents is false in any material respect or if any of the Borrowers
renders any written statement or account which is false in any material
respect;
(ii) If any of the Borrowers 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 any of the Borrowers 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 any Borrower under this Agreement shall be
deemed an "Event of Default" under the Loan Documents to which such Borrower is
a party.
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 Borrowers
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
Borrowers, and escrow fees. In addition, Borrowers 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. Each Borrower 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 such Borrower 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
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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 Wilkes-Barre: N. Gregory Petrick
Treasurer
Uni Realty of Wilkes-Barre, L.P.
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 the Borrowers
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
Borrowers with respect to the sale of Underperforming Properties, all
of whose fees shall be paid by Borrowers. LaSalle and the Borrowers
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) each of the Borrowers 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) each of the Borrowers shall look solely to the
assets of LaSalle for the satisfaction of each and every remedy of the
Borrowers 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.
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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.
Borrowers acknowledge that this Agreement was substantially negotiated
in the State of Arizona, the Agreement was delivered by the Borrowers
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 expressly submit to the
jurisdiction of all federal and state courts sitting in Maricopa
County, Arizona and each of the Borrowers 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, each of the Borrowers 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.
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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 ANY OF THE PARTIES HERETO
AGAINST ANY OF THE OTHER PARTIES OR THEIR 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 ANY OF THE OTHER PARTIES HERETO OR ANY OF
THEIR RESPECTIVE 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 ANY OF THE PARTIES
HERETO AGAINST ANY OF THE OTHER PARTIES HERETO OR ANY OF THEIR
RESPECTIVE 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 November 1, 2000
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 November 1,
2000
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
UNI REALTY OF WILKES-BARRE, L.P., a Delaware
limited partnership
By Uni Realty of Wilkes-Barre, Inc., a Delaware
corporation, its general partner
By /S/ N. GREGORY PETRICK
---------------------------------------------------
Printed Name N. Gregory Petrick
Its Treasurer
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 Agreements, 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. The undersigned, as successor by merger to FFCA, agrees that it shall
not assert that any provision in this Agreement constitutes (i) a violation by
Wilkes-Barre of any "Nonconsolidation" covenants set forth in the Loan Documents
to which it is a party, or (ii) a violation by Uni-Mart of any
"Nonconsolidation" covenants set forth in the Lease. 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