46
AMENDMENT NO. 5 TO CREDIT AGREEMENT
-----------------------------------
This Amendment No. 5 to Credit Agreement is dated as of December 26, 1995
by and among Uni-Marts, Inc. (the "Borrower"), PNC Bank, National Association
--------
("PNC"), CoreStates Bank, N.A. ("CoreStates") and The Daiwa Bank, Ltd.
--- ----------
("Daiwa", and together with PNC and CoreStates, collectively, the "Banks") and
----- -----
PNC Bank, National Association, in its capacity as agent (the "Agent") for the
Banks. -----
WHEREAS, the Borrower, the Banks and the Agent are parties to that
certain Credit Agreement dated as of March 1, 1993, as amended by Amendment
No. 1 to Credit Agreement dated as of March 21, 1994, Amendment No. 2 to
Credit Agreement dated as of July 1, 1994, Third Amendment to Credit Agreement
dated as of October 26, 1994 and Amendment No. 4 to Credit Agreement dated as
of March 27, 1995 (as amended, the "Credit Agreement");
----------------
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the same meanings given to them in the Credit Agreement; and
WHEREAS, the Borrower, the Banks and the Agent wish to amend the Credit
Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties hereto, intending to be legally bound, agree as
follows:
1. Schedule 1.01(a) to the Credit Agreement is hereby deleted in its
entirety and a new Schedule 1.01(a) is inserted in lieu thereof in the form
attached hereto.
2. Exhibit D to the Credit Agreement (Form of Loan Request) is hereby
deleted in its entirety and a new Exhibit D is inserted in lieu thereof in the
form attached hereto.
3. The defined terms "Commitment," "Consolidated Cashflow From
Operations," "Loan Request," "Loans," "Notes," "Ratable Share," "Term Loan
Base Rate Portion," and "Term Loan Euro-Rate Portion" in Section 1.01 of the
Credit Agreement are hereby deleted in their entirety and the following are
inserted in lieu thereof:
COMMITMENT shall mean as to any Bank, the aggregate of its Revolving
Credit Commitment, Term Loan Commitment and Term Loan-B Commitment and
COMMITMENTS shall mean the aggregate of the Revolving Credit Commitments,
the Term Loan Commitments and Term Loan-B Commitments of all the Banks.
47
CONSOLIDATED CASHFLOW FROM OPERATIONS for any period of determination
shall mean (i) the sum of Consolidated Net Income, depreciation,
amortization, other non-cash charges to Consolidated Net Income, interest
expense, income tax expense, Funded Capital Expenditures and Rentals
minus (ii) non-cash credits to Consolidated Net Income, in each case of
-----
the Borrower and its Subsidiaries for such period determined and
consolidated in accordance with GAAP.
LOAN REQUEST shall mean a request for Revolving Credit Loans or Term
Loans-B made in accordance with Section 2.05 or Section 3.02(B) hereof or
a request to select, convert to or renew a Euro-Rate Option in accordance
with Section 4.02 hereof.
LOANS shall mean all Revolving Credit Loans, Term Loans and Term Loans-B,
collectively, and LOAN shall mean any Revolving Credit Loan, Term Loan or
Term Loan-B, separately.
NOTES shall mean the Revolving Credit Notes, the Term Notes and the Term
Notes-B.
TERM LOAN BASE RATE PORTION shall mean the portion of the Term Loans and
Term Loans-B bearing interest at any time under the Term Loan Base Rate
Option.
TERM LOAN EURO-RATE PORTION shall mean the portion of the Term Loans and
Term Loans-B bearing interest at any time under the Term Loan Euro-Rate
Option.
4. The following defined terms are hereby inserted in alphabetical
order in Section 1.01 of the Credit Agreement:
AMENDMENT NO. 5 shall mean Amendment No. 5 to Credit Agreement dated as
of December 26, 1995 by and among the Borrower, the Agent and the Banks.
AMENDMENT NO. 5 CLOSING DATE shall mean the date on which all conditions
to the effectiveness of Amendment No. 5 as set forth in Section 14 of
Amendment No. 5 are satisfied.
FUNDED CAPITAL EXPENDITURES shall mean, for any period of determination,
all capital expenditures of the Borrower and its Subsidiaries, determined
and consolidated in accordance with GAAP, which are funded by Term
Loans-B.
OFFERING shall mean any secondary public offering of common stock of the
Borrower.
RATABLE SHARE shall mean the proportion that a Bank's Commitment bears to
the Commitments of all the Banks, as set forth on Schedule 1.01(a)
hereto. ----------------
2
48
TERM LOAN-B COMMITMENT shall mean, as to any Bank at any time, the amount
initially set forth opposite its name on Schedule 1.01(a) hereto in the
----------------
column labeled "Amount of Commitment for Term Loans-B," and thereafter on
Schedule I to the most recent Assignment and Assumption Agreement to
which such Bank is a party and TERM LOAN-B COMMITMENTS shall mean the
aggregate Term Loan-B Commitments of all the Banks.
TERM LOAN-B COMMITMENT FEE shall have the meaning given to such term in
Section 3.04(B).
TERM LOAN-B MATURITY DATE shall mean December 25, 1998.
TERM LOAN-B REQUEST DATE shall mean December 25, 1996.
TERM LOANS-B shall mean collectively all Term Loans-B made by the Banks
to the Borrower under Section 3.02(B) hereof, and TERM LOAN-B shall mean
separately any Term Loan-B made by any Bank to the Borrower pursuant to
Section 3.02(B) hereof.
TERM NOTES-B shall mean collectively all Term Notes-B and TERM NOTE-B
shall mean separately any Term Note-B of the Borrower, in each case in
the form of Exhibit A to Amendment No. 5 which evidence the Term Loans-B,
together with all amendments, restatements, extensions, renewals,
replacements, refinancings or refundings thereof in whole or in part.
5. A new Article III(B) (Term Loans-B) is hereby inserted immediately
following Article III of the Credit Agreement as set forth on Schedule 1
hereto. ----------
6. Section 4.01 of the Credit Agreement is hereby amended by deleting
"or Term Loans" in the fifth line thereof, and inserting in lieu thereof
",Term Loans or Term Loans-B".
7. Section 4.01(b) of the Credit Agreement is hereby amended by
inserting immediately after "the Term Loans" in the third line thereof "and
the Term Loans-B".
8. Clause (y) of Section 5.04 of the Credit Agreement is hereby deleted
in its entirety and the following is inserted in lieu thereof:
(y) a statement indicating the application of the prepayment between the
Revolving Credit Loans, the Term Loans and the Term Loans-B; and
9. The third sentence of the last paragraph of Section 5.04 of the
Credit Agreement is hereby deleted in its entirety and the following is
inserted in lieu thereof:
All Term Loan and Term Loan-B prepayments permitted pursuant to this
Section 5.04 shall be applied to the unpaid installments of principal of
the Term Loans or Term Loans-B, as the case may be, in the inverse order
of scheduled maturities.
3
49
10. A new Section 5.60 (Mandatory Prepayments) is hereby inserted
immediately following Section 5.05 of the Credit Agreement as follows:
5.06 MANDATORY PREPAYMENT. Upon the closing of any Offering, the
Borrower shall, on the date of such closing, use the lesser of (i) all of
the proceeds of such Offering, net only of customary and reasonable
expenses incurred by the Borrower in connection with the Offering, or
(ii) $10,000,000, to prepay the Term Loans then outstanding, together
with all accrued fees and interest thereon.
11. Section 8.02(k) of the Credit Agreement (Capital Expenditures,
Including Capitalized Leases) is hereby deleted in its entirety and the
following is inserted in lieu thereof:
(k) CAPITAL EXPENDITURES, INCLUDING CAPITALIZED LEASES. The Borrower
shall not make any payments in the aggregate for any of the fiscal years
set forth below on account of the purchase or lease of any assets which
if purchased would constitute fixed assets or which if leased would
constitute a Capitalized Lease in excess of the following:
Fiscal Aggregate
Year Ending Permitted Amount
----------- ----------------
September 30, 1996 $17,500,000
September 20, 1997 and each $ 8,000,000
fiscal year thereafter
12. The first sentence of Section 10.11 of the Credit Agreement is
hereby deleted in its entirety and the following is inserted in lieu thereof:
With respect to its Commitments and the Loans made by it, the Agent shall
have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not the Agent, and the term "Banks"
shall, unless the context otherwise indicates, include the Agent in its
individual capacity.
13. The last clause of the third sentence of Section 11.11 of the Credit
Agreement is hereby deleted in its entirety and the following is inserted in
lieu thereof:
, the Borrower shall execute and deliver new Notes to the assignee in the
amounts equal to the respective Commitments or Loans (as applicable)
assumed by it and new Notes to the assigning Bank in the amounts equal to
the respective Commitments or Loans (as applicable) retained by it
hereunder.
14. The effectiveness of this Amendment No. 5 is expressly conditioned
upon: (i) the Agent's receipt of counterparts of this Amendment No. 5 duly
executed by the Borrower and each of the Banks; (ii) each of the Banks having
4
50
received a duly executed Term Note-B in the form of Exhibit A hereto; (iii)
---------
the Agent's receipt of a certificate signed by the Secretary or Assistant
Secretary of the Borrower, dated the Amendment No. 5 Closing Date, certifying
as to all action taken by the Borrower to authorize the execution, delivery
and performance of this Amendment No. 5; (iv) a written opinion of Xxxxxxx
Xxxxx Xxxxxxx & Xxxxxxxxx, counsel for the Borrower, dated the Amendment No. 5
Closing Date and in form and substance satisfactory to the Agent and its
counsel as to such matters incident to the transactions contemplated hereby as
the Agent may reasonably request; and (v) the receipt by each of the Banks of
an amendment fee in the amount of $8,333.00.
15. The Borrower hereby represents to the Agent and the Banks that the
representations and warranties of the Borrower contained in Article VI of the
Credit Agreement remain true and accurate on and as of the date hereof; the
Borrower has performed and is in compliance with all covenants contained in
Article VIII of elsewhere in the Credit Agreement; and no Event of Default or
Potential Default has occurred and is continuing.
16. The Borrower hereby agrees to reimburse the Agent and the Banks on
demand for all reasonable costs, expenses and disbursements relating to this
Amendment No. 5 which are payable by the Borrower as provided in Sections
10.05 and 11.03 of the Credit Agreement.
17. The Borrower, the Agent and the Banks intend and agree that, except
as provided hereinabove, the Credit Agreement shall remain in full force and
effect, without modification.
18. This Amendment shall be governed by and construed in accordance with
the internal laws of the Commonwealth of Pennsylvania without reference to its
principles of conflicts of law.
19. The Borrower, the Banks (other than Daiwa) and the Agent acknowledge
that Daiwa is attempting to sell its banking operations and assets located in
the United States, including, without limitation, its Loans and Commitments as
a going concern to a successor financial institution. Daiwa hereby agrees
that, in the event any proposed purchaser of Daiwa's Loans and Commitments is
not acceptable to the Agent and/or the Borrower in their reasonable good faith
discretion, or in the event Daiwa has not entered into an agreement providing
for the sale of its Loans and Commitments to a Purchasing Bank acceptable to
both the Agent and the Borrower in their reasonable good faith discretion on
or before February 2, 1996 (or such later date as shall be acceptable to the
Agent in its sole and absolute discretion), Daiwa shall, at the option of and
upon request by the Agent, (a) sell its Loans and Revolving Commitments to
such of the other Banks that elect in their sole and absolute discretion to
purchase Daiwa's Loans and Commitments, which electing Banks shall thereupon
purchase Daiwa's Loans and Commitment on a pro rata basis based upon their
respective Commitments or on such other basis as such Banks may agree among
themselves, and/or (b) sell its Loans and Commitments to a Purchasing Bank
identified and approved by both the Agent and the Borrower in their reasonable
good faith discretion, provided that such Purchasing Bank is ready, willing
5
51
and able to purchase Daiwa's Loans and Commitments or the relevant portion
thereof for the purchase price set forth below. In the event the Agent
request Daiwa to sell its Loans and Commitments pursuant to this Section 19,
the closing of the sale and purchase thereof shall occur not less than thirty
(30) days after the Agent has given Daiwa written notice of the purchase(s) of
Daiwa's Loans and Commitments, or such shorter period of time as Daiwa shall
consent to in writing in its sole and absolute discretion or which shall
otherwise be required under applicable federal or state law. Any sale of
Daiwa's Loans and Commitments pursuant to this Section 19 shall be for an
aggregate purchase price equal to the unpaid principal balance of and all
accrued interest on Daiwa's Loans plus any accrued and unpaid Commitment Fees
on Daiwa's Commitments and any other amounts agreed to between Daiwa and the
purchaser(s) thereof, but less any Letter of Credit Fees paid to Daiwa for the
unexpired period of time for which such Letter of Credit Fees were paid.
20. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one and
the same instrument.
[SIGNATURE PAGE FOLLOWS]
6
52
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 5
as of the date first above written.
UNI-MARTS, INC.
By: /S/ J. XXXX XXXXXXXX
------------------------------
Title: Executive Vice President
--------------------------
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /S/ XXXXX X. XXXXXXXX
------------------------------
Title: Assistant Vice President
--------------------------
CORESTATES BANK, N.A.
By: /S/ XXXX X. XXXXXXXX
------------------------------
Title: Vice President
--------------------------
THE DAIWA BANK, LTD.
By: /S/ XXXXXX X. XXXXXXXXX
------------------------------
Title: Vice President
--------------------------
By: /S/ XXXX X. XXXX
-----------------------------
Title: Assistant Vice President
--------------------------
7
53
SCHEDULE 1.01(a)
TO
CREDIT AGREEMENT
------------------------------------------------------------------------------
Banks
-----
Amount of Amount of
Commitment Amount of Commitment
for Revolving Outstanding for Term Ratable
Bank Credit Loan (US$) Term Loans Loans-B Shares %
---- ----------------- ----------- ---------- --------
PNC Bank, National $4,500,000.00 $5,673,333.33 $3,333,333.34 33 1/3%
Association
CoreStates Bank, $4,500,000.00 $5,673,333.33 $3,333,333.34 33 1/3%
N.A.
The Daiwa Bank, $4,500,000.00 $5,673,333.33 $3,333,333.34 33 1/3%
Ltd.
54
SCHEDULE 1
ARTICLE III-B
TERM LOANS-B
-------------
3.01(B) TERM LOAN-B BORROWINGS. Subject to the terms and conditions
hereof, and relying upon the representations and warranties herein set forth,
each Bank severally agrees to make a term loan or loans (collectively, the
"Term Loans-B") to the Borrower on or after the Amendment No.5 Closing Date in
such principal amount as the Borrower shall request up to but not exceeding
such Bank's Term Loan-B Commitment. The obligation of each Bank to make a
Term Loan-B to the Borrower shall be in the proportion that such Bank's Term
Loan-B Commitment bears to the Term Loan-B Commitments of all Banks, but each
Bank's Term Loan-B shall never exceed its Term Loan-B Commitment. The
failure of any Bank to make a Term Loan-B to the Borrower shall not relieve
any other Bank of its obligations to make a Term Loan-B to the Borrower nor
shall it impose any additional liability on any other Bank hereunder. The
Banks shall have no obligation to make Term Loans-B hereunder after the Term
Loan-B Request Date. The Term Loan-B Commitments are not revolving credit
commitments and the Borrower shall not have the right to borrow, repay and
reborrow under this Section 3.01(B).
3.02(B) TERM LOAN-B REQUESTS. Except as otherwise provided herein, the
Borrower may from time to time prior to the Term Loan-B Request Date request
the Banks to make Term Loans-B by delivery to the Agent, not later than 10:00
a.m. Pittsburgh time, (i) two (2) Business Days prior to the proposed
Borrowing Date with respect to the making of a Term Loan-B to which the Euro-
Rate Option applies or the conversion to or the renewal of the Euro-Rate
Option for any Term Loan-B; and (ii) one (1) Business Day prior to either the
proposed Borrowing Date with respect to the making of a Term Loan-B to which
the Base Rate Option applies or the last day of the preceding Interest Period
with respect to the conversion to the Base Rate Option for any Term Loan-B, of
a duly completed Loan Request in the form of Exhibit D hereto. Each Loan
Request shall be irrevocable and shall specify (i) the proposed Borrowing
Date; (ii) the aggregate amount of the proposed Term Loan-B comprising each
Borrowing Tranche, which shall be in integral multiples of $500,000 and no
less than $1,000,000 for each Borrowing Tranche to which the Euro-Rate Option
applies and not less than $1,000,000 for Term Loans-B or the maximum amount
available for Term Loans-B to which the Term Loan Base Rate Option applies;
(iii) whether the Euro-Rate Option or Base Rate Option shall apply to the
proposed Term Loan-B comprising the Borrowing Tranche; and (iv) in the case of
a Borrowing Tranche to which the Euro-Rate Option applies, an appropriate
Interest Period for the proposed Term Loan-B comprising such Borrowing
Tranche.
3.03(B) MAKING TERM LOANS-B. The Agent shall, promptly after receipt of
a Loan Request pursuant to Section 3.02(B), notify the Banks of its receipt of
such Loan Request specifying: (i) the proposed Borrowing Date and the time and
method for disbursement of such Term Loan-B; (ii) the amount and type of such
Term Loan-B and the applicable Euro-Rate Interest Period (if any); and (iii)
the apportionment among the Banks of the Term Loan-B as determined by the
55
Agent in accordance with Section 3.01(B) hereof. Each Bank shall remit the
principal amount of each Term Loan-B to the Agent such that the Agent is able
to, and the Agent shall, to the extent the Banks have made funds available to
it for such purpose, fund such Term Loan-B to the Borrower in U.S. Dollars in
immediately available funds at the Principal Office prior to 2:00 p.m.
Pittsburgh time on the Borrowing Date, provided that if any Bank fails to
--------
remit such funds to the Agent in a timely manner, the Agent may elect in its
sole discretion to fund with its own funds the Term Loan-B of such Bank on the
Borrowing Date.
3.04(B) TERM LOAN-B COMMITMENT FEE. Accruing from the date hereof until
the Term Loan-B Request Date, the Borrower agrees to pay to the Agent for the
account of each Bank, as consideration for the Term Loan-B Commitments
hereunder, a nonrefundable commitment fee (the "Term Loan-B Commitment Fee")
equal to one quarter percent (1/4%) per annum (computed on the basis of a year
of 365 or 366 days and actual days elapsed) on the average daily difference
between the amount of the Term Loan-B Commitments and the principal amount of
Term Loans-B outstanding. All Term Loan-B Commitment Fees shall be payable in
arrears on the last Business Day of each fiscal quarter of the Borrower after
the date hereof, on the Term Loan-B Request Date and upon any acceleration of
the Notes.
3.05(B) TERM LOAN-B NOTE. The obligation of the Borrower to repay the
unpaid principal amount of the Term Loans-B made to it by each Bank, together
with interest thereon, shall be evidenced by a promissory note of the Borrower
dated the Amendment No. 5 Closing Date in substantially the form attached to
Amendment No. 5 as Exhibit A payable to the order of each Bank in the face
---------
amount of the Term Loan-B Commitment of such Bank. The principal amount as
provided therein of each Term Note-B shall be payable in full on the Term
Loan-B Maturity Date.
3.06(B) USE OF PROCEEDS. The proceeds of the Term Loans-B will be used
by the Borrower for capital expenditures.
2
56
EXHIBIT A
FORM OF TERM NOTE-B
-------------------
$3,333,333.34 Pittsburgh, Pennsylvania
December , 1995
FOR VALUE RECEIVED, the undersigned UNI-MARTS, INC., a Delaware
corporation (herein called the "Borrower"), hereby promises to pay to the
order of (the "Bank") the principal sum of Three
Million Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three and
34/100 U.S. Dollars (U.S. $3,333,333.34), which shall be payable to the Bank
in full on the earlier to occur of the Term Loan-B Maturity Date or the
acceleration of this Note.
The Borrower shall pay interest on the unpaid principal balance hereof
from time to time outstanding from the date hereof at the rate or rates per
annum specified by the Borrower pursuant to Section 4.01(b) of, or as
otherwise provided in, the Credit Agreement between the Borrower, the Banks
set forth therein and PNC Bank, National Association, as Agent for the Banks,
dated as of March 1, 1993, as amended by Amendment No. 1 to Credit Agreement
dated as of March 21, 1994, Amendment No. 2 to Credit Agreement dated as of
July 1, 1994, Third Amendment to Credit Agreement dated as of October 26,
1994, Amendment No. 4 to Credit Agreement dated as of March 27, 1995 and
Amendment No. 5 to Credit Agreement of even date herewith (as amended to date
and as it may be further amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement").
Upon the occurrence and during the continuation of an Event of Default,
the Borrower shall pay interest on the unpaid principal balance hereof at a
rate or rates per annum (based on a year of 360 days and actual days elapsed)
equal to two percent (2%) per annum above the rate or rates of interest
otherwise applicable with respect to such amount or the Base Rate if no other
rate of interest is otherwise applicable. Such interest rate will accrue
before and after any judgment has been entered.
Subject to the provisions of the Credit Agreement, interest on this Note
will be payable in arrears (i) on the portion of the Term Loans-B evidenced
hereby to which the Base Rate option applies on the last Business Day of each
December, March, June and September after the date hereof and on the Term
Loan-B Maturity Date and on any acceleration of this Note and (ii) on the
portion of the Term Loan-B evidenced hereby to which the Euro-Rate Option
applies, on the last day of each applicable Euro-Rate Interest Period, and if
such Euro-Rate Interest Period is longer than three (3) months, also on the
last day of every third month during such period and on the Term Loan-B
Maturity Date and upon any acceleration of this Note.
57
If any payment or action to be made or taken hereunder shall be stated to
be or become due on a day which is not a Business Day, such payment or action
shall be made or taken on the next following Business Day (unless in the case
of the Term Loan Euro-Rate Portion such Business Day falls in the next
calendar month, in which case the payment or action shall be made on the next
preceding Business Day) and such extension of time shall be included in
computing interest or fees, if any, in connection with such payment or action.
Subject to the provisions of the Credit Agreement, payments of principal
and interest shall be made without setoff, counterclaim or other deduction of
any nature at the office of the Agent located at Xxxxx Xxxxxx xxx Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, in lawful money of the United States of
America in immediately available funds.
This Note is one of the Term Notes-B referred to in, and is entitled to
the benefits of, the Credit Agreement and the other Loan Documents, including
the representations, warranties, covenants and conditions contained or granted
therein. The Credit Agreement among other things contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments, in certain circumstances, on account of
principal hereof prior to maturity upon the terms and conditions therein
specified.
All capitalized terms used herein shall, unless otherwise defined herein,
have the same meanings given to such terms in the Credit Agreement.
Except as otherwise provided in the Credit Agreement, the Borrower waives
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement
of this Note and the Credit Agreement.
This Note shall bind the Borrower and its successors and assigns, and the
benefits hereof shall inure to the benefit of the Bank and its successors and
assigns. All references herein to the "Borrower" and the "Bank" shall be
deemed to apply to the Borrower and the Bank, respectively, and their
respective successors and assigns.
This Note and any other documents delivered in connection herewith and
the rights and obligations of the parties hereto and thereto shall for all
purposes be governed by and construed and enforced in accordance with the
substantive laws of the Commonwealth of Pennsylvania without giving effect to
its principles of conflicts of law.
The Borrower consents to the exclusive jurisdiction and venue of the
federal and state courts located in Allegheny County, Pennsylvania, in any
action on, relating to or mentioning this Note, as more specifically set forth
in Section 11.16 of the Credit Agreement.
THE BORROWER ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS, AFTER
CONSULTATION WITH ITS COUNSEL, THAT THE PROVISIONS OF THE FOLLOWING PARAGRAPH
COULD ENABLE THE LENDER TO OBTAIN A JUDGMENT AGAINST THE BORROWER AND COMMENCE
-2-
58
EXECUTION PROCEEDINGS THAT RESULT IN THE SEIZURE OF ASSET OF THE BORROWER, IN
EITHER CASE, WITHOUT THE BORROWER HAVING THE BENEFIT OF A PRIOR HEARING; AND
(ii) THE BORROWER NEVERTHELESS KNOWINGLY AND VOLUNTARILY AGREES TO SUCH
POSSIBLE CONSEQUENCES AND THE PROVISIONS OF THE FOLLOWING PARAGRAPH.
CONFESSION OF JUDGMENT. THE BORROWER HEREBY AUTHORIZES AND EMPOWERS THE
----------------------
PROTHONOTARY OR CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE
COMMONWEALTH OF PENNSYLVANIA FROM AND AFTER AN EVENT OF DEFAULT (AS DEFINED IN
THE CREDIT AGREEMENT) AND UPON TEN (10) DAYS' PRIOR NOTICE TO THE BORROWER TO
APPEAR FOR THE BORROWER AND TO CONFESS JUDGMENT OR A SERIES OF JUDGMENTS
AGAINST THE BORROWER IN FAVOR OF THE BANK FOR SUCH SUMS AS SHALL HAVE BECOME
DUE UNDER THIS NOTE, WITH OR WITHOUT DECLARATION, WITH COST OF SUIT, RELEASE
OF ERROR, WITHOUT STAY OF EXECUTION AND WITH FIFTEEN PERCENT (15%) ADDED FOR
COLLECTION FEE, AND ALSO WAIVES THE RIGHT OF INQUISITION OF ANY REAL ESTATE
LEVIED ON, VOLUNTARILY CONDEMNS THE SAME, AUTHORIZES THE PROTHONOTARY OR CLERK
TO ENTER THE WRIT OF EXECUTION OF SAID VOLUNTARY CONDEMNATION, AGREES THAT
SAID REAL ESTATE MAY BE SOLD ON A WRIT OF EXECUTION, AND ALSO WAIVES AND
RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAW OF
ANY STATE NOW IN FORCE OR ENACTED IN THE FUTURE. IF A COPY OF THIS NOTE,
VERIFIED BY AFFIDAVIT OF THE BANK HEREOF OR SOMEONE ON THE BANK'S BEHALF, HAS
BEEN FILED IN SUCH ACTION, IT WILL NOT BE NECESSARY TO FILE THE ORIGINAL NOTE
AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER TO APPEAR FOR AND ENTER
JUDGMENT AGAINST THE BORROWER WILL NOT BE EXHAUSTED BY THE INITIAL EXERCISE OF
THE AUTHORIZED POWER, AND THE POWER MAY BE EXERCISED FROM TIME TO TIME AS
OFTEN AS THE BANK DEEMS NECESSARY OR DESIRABLE; AND THIS INSTRUMENT WILL BE A
SUFFICIENT WARRANT.
IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned
has executed this Note by its duly authorized officers as of the date and year
set forth above with the intention that it constitute a sealed instrument.
ATTEST: UNI-MARTS, INC.
By:
----------------------------------- --------------------------------
Title: Title:
[Seal]
-3-
59
EXHIBIT D
FORM OF LOAN REQUEST
--------------------
TO: PNC Bank, National Association
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
FROM: Uni-Marts, Inc.
RE: Credit Agreement (the "Agreement") dated as of March 1, 1993, by and
between Uni-Marts, Inc., as Borrower, the Banks set forth therein
and PNC Bank, National Association, as Agent for the Banks, as
amended
A. Pursuant to Section 2.05, Section 3.02(B) or Section 4.02 of
the Agreement, as applicable, the undersigned hereby makes the following Loan
Request:
1. Type of Loan U.S.$
(Revolving Credit or --------------------------
Term Loan-B)
2. Aggregate Principal Amount
of Loans Comprising the
Borrowing Tranche -------------------------------
3. Proposed Borrowing
Conversion or Renewal
Date -------------------------------
4. Applicable Interest Rate
Option (choose one):
------- a. Base Rate Option
------- b. Euro-Rate Option for a
Euro-Rate Interest
Period of (choose one):
------- i. 1 month
------- ii. 2 months
------- iii. 3 months
------- iv. 6 months
60
B. Pursuant to Section 4.02 of the Agreement, the undersigned
hereby makes the following request to select, convert to or renew a Euro-Rate
Option:
1. Aggregate Principal Amount
of Loans comprising the
Borrowing Tranche (Loans
must be in the amount of
$1,000,000 or a greater
amount which is an integral
multiple of $500,000) U.S.$
--------------------------
2. Proposed Conversion or
Renewal Date -------------------------------
3. Type of Loan (Revolving
Credit Loan, Term Loan
or Term Loan-B) -------------------------------
4. a. Revolving Credit Euro-
Rate Option for a Euro-
Rate Interest Period of
(choose one):
------- i. 1 month
------- ii. 2 months
------- iii. 3 months
------- iv. 6 months
b. Term Loan Euro-Rate
Option for a Euro-Rate
Interest Period of
(choose one):
------- i. 1 month
------- ii. 2 months
------- iii. 3 months
------- iv. 6 months
C. As of the date hereof and the date of making of, converting to or
renewing the Loans: the representations and warranties contained in Article VI
of the Agreement are and will be true (except representations and warranties
that expressly relate solely to an earlier date or time, which representations
and warranties were true on and as of the specific date referred to therein);
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the Borrower has performed and complied with all covenants and conditions of
the Agreement; no Event of Default or Potential Default has occurred and is
continuing or shall exist; and the making of the Loans shall not contravene
any Law applicable to the Borrower.
Capitalized terms used but not defined herein shall have the meanings
given to them in the Agreement.
The undersigned certifies to the accuracy of the foregoing.
UNI-MARTS, INC.
By:
-----------------------------
Its:
----------------------------
Date:
---------------------------
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