18
REVOLVING CREDIT LOAN AGREEMENT AMENDMENT
THIS AGREEMENT made this 29th day of December, 1999, between UNI-MARTS,
INC., and its subsidiary, a Delaware Corporation, with an address of 000 Xxxx
Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, XX, 00000-0000, (hereinafter "Borrower") and U.S.
BANK, a state banking association with an address of 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, XX, (hereinafter "Lender") provides as follows:
WHEREAS, Borrower executed and delivered to Lender that certain Revolving
Credit Loan Agreement, (hereinafter "Loan Agreement") originally dated December
30, 1998, in the original principal amount of $10,000,000.00; and
WHEREAS, on June 28, 1999, the Borrower executed and delivered to Lender a
Revolving Credit Loan Modification Agreement to Lender modifying certain terms
and conditions of the original Loan Agreement; and
WHEREAS, the Lender committed to extend and modify the existing Revolving
Credit Loan by a Commitment Letter dated December 20, 1999, with Option One (1)
accepted on December 21, 1999; and
WHEREAS, it is the intention of the parties hereto that all the original
Loan Documents, including those previously amended, shall remain in full force
and effect accept as otherwise modified or amended per this Revolving Credit
Loan Agreement Amendment.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, and
intending to be legally bound, Borrower and Lender agree to the following:
1. All recitals set forth above shall be incorporated herein as if
fully set forth herein.
19
2. The following definitions originally set forth in Article 2 of the
Loan Agreement shall either be added, amended or supplemented as set forth
below:
A) COMMITMENT FEE: The Borrower shall pay to Lender a Commitment
Fee of $10,000.00 for the extension of the Revolving Credit
Loan on or before the date of Closing.
B) COMMITMENT LETTER: The Commitment Letter definition shall
include the Extension/Modification Commitment Letter dated
December 20, 1999, of which Option One (1) was accepted by the
Borrower on December 21, 1999.
C) DEBT: The definition of Debt shall be supplemented with the
amount set forth in the "Amended Revolving Credit Note" which
is part of this transaction.
D) LETTER OF CREDIT: The definition of Letter of Credit is
supplemented with the following additional requirements for
the Letter of Credit: The maturity date of the Letter of
Credit is currently June 30, 2000, shall contain an automatic
renewal clause of which the Lender must provide to Borrower
sixty (60) days prior written notice of the renewal or
extension of the Letter of Credit beyond June 30, 2000.
E) LOAN DOCUMENTS: The Loan Documents definition shall be
supplemented with the "Amended Revolving Credit Note",
Guaranty and Suretyship Agreement from Xxxxx X. Xxxxxxxx, the
Revolving Credit Loan Agreement Modification Agreement and
this Revolving Credit Loan Agreement Amendment, and shall
include any amendments to the other original Loan Documents.
F) TERMINATION DATE: The Termination Date shall be amended to
September 30, 2000.
G) GUARANTY AND SURETYSHIP AGREEMENT: That certain Guaranty and
Suretyship Agreement dated December 29, 1999, between Xxxxx X.
Xxxxxxxx and U.S. Bank, whereby Xxxxx X. Xxxxxxxx fully
guarantees the debt subject to certain terms and conditions
contained in the Guaranty and Suretyship Agreement.
3. Borrower agrees that Paragraph 2.8 of the Loan Agreement shall be
supplemented with the requirement that the maturity date of the Letter of Credit
of which is currently June 30, 2000, shall contain an automatic renewal clause
of which requires the Lender to notify the Borrower sixty (60) days prior to the
20
expiration date of the Letter of Credit of its intent to extend or not extend
said Letter of Credit to a date at least equal to the Termination Date of this
Loan.
4. The Loan Agreement in Article 3 sets forth "Conditions of the
Lending" between the Borrower and Lender. The following additional or modified
Conditions of Lending shall apply and to the extent these Conditions of Lending
modify the original Loan Agreement, then the new provisions as set forth herein
shall take precedence over the prior Conditions. All the original Conditions of
Lending unless modified herein shall remain in full force and effect.
A) The Conditions of Lending set forth in Paragraph
3.1(a)(b)(c)(d)(e)(f)(g)(h) and (i) shall be applicable to this Loan
and, accordingly, must be provided at the time of Closing to the
extent necessary.
B) Xxxxx X. Xxxxxxxx shall provide the Guaranty and Suretyship
Agreement. The Guaranty and Suretyship Agreement provided by Xxxxx
X. Xxxxxxxx is based upon the personal financial statement of Xxxxx
X. Xxxxxxxx, as provided on November 30, 1999. The Guarantor shall
be permitted to transfer or sale certain assets originally listed on
the November 30, 1999 personal financial statement provided same are
approved by the Lender. Xxxxx X. Xxxxxxxx agrees he will not
transfer or encumber assets that will materially alter his financial
position and/or the amount of his assets during the term of this
Loan. The Guaranty Agreement will, however, provide for the
exclusion of the Guarantor's primary residence and will also not be
enforced against the Guarantor by the Borrower for a period of one
year from an Event of Default pursuant to the terms as set forth
in the "Loan Documents."
C) The Amended Revolving Credit Note and the other Loan Documents shall
be properly entered into by the Borrower and provided to the Lender.
D) The security interests originally perfected shall continue to remain
in full force and effect and, accordingly, the Borrower hereby
continues its pledge of a first lien security interest in all
accounts receivable and inventory to the Lender for UCC-1 property
described in the Security Agreement of which is located in the
States of Pennsylvania, New York, Delaware, Virginia and Maryland.
E) The Borrower agrees that upon the Lender's opening of its branch
office in State College, Pennsylvania, that it will open and
maintain its operating accounts with Lender (within
21
thirty (30) days of opening) provided Lender's services and
pricing are competitive.
5. REPRESENTATIONS AND WARRANTIES. The Representations and Warranties
set forth in Article 4 of the Loan Agreement shall remain effective and apply to
the terms and conditions of this amended Loan Agreement in their entirety and
shall also apply to all new and amended Loan Documents.
6. AFFIRMATIVE AND NEGATIVE COVENANTS. The Affirmative and Negative
Covenants set forth in Article 5 of the Loan Agreement shall remain in full
force and effect provided, however, said covenants shall be modified or
supplemented by the following Affirmative or Negative Covenants:
A) The Borrower gives and grants a first lien position and security
interest in all accounts receivables and inventory of the Borrower
at all of its locations and stores, including but not limited to
stores within the Commonwealth of Pennsylvania and States of New
York, Delaware, Virginia and Maryland.
B) The Borrower hereby agrees not to pledge, transfer, finance, lien or
otherwise encumber any currently owned and unencumbered equipment
located at any of Borrower's store locations, including those in the
Commonwealth of Pennsylvania and States of New York, Delaware,
Virginia and Maryland, all of said stores being more specifically
described in Exhibit "A" of the Security Agreement originally dated
December 30, 1998.
C) The Borrower agrees to extend the applicability of all the terms of
the Security Agreement dated December 30, 1998, to and include
September 30, 2000 and beyond, if the Loan is extended or renewed
and, accordingly, all terms of said Security Agreement shall be
applicable to this Loan, as extended and modified.
D) The Borrower pledges as additional collateral a first mortgage lien
position on at least $4,000,000 in value of its unencumbered real
estate which is specifically listed on Exhibit "A" and attached
hereto. The Borrower agrees that mortgages in the amount of
$10,000,000.00 each will be recorded against said real estate having
a minimum of $4,000,000 on or before March 31, 2000. In the event
the first lien mortgages are not prepared, executed and recorded
before March 31, 2000, the Loan shall then be considered in default
and shall immediately become due and payable in full.
E) The Borrower will cause Xxxxx X. Xxxxxxxx to provide a Guaranty and
Surety in the format, specifically set forth in the Guaranty and
Suretyship Agreement.
22
F) On or before December 29, 1999, the Borrower will provide a draft
Audit for fiscal year ending 1999 which substantially conforms with
the financial statement provided by the Borrower or in the
alternative, the Borrower shall provide a letter from the Borrower's
C.P.A. indicating the financial statements provided by the Borrower
substantially conform with the Draft Audit for the Fiscal year
Ending 1999.
G) As soon as available, and in any event within sixty (60) days after
the close of each quarter of each fiscal year, Borrower shall
provide to Lender Reviewed Form 10Q Consolidated Financial
Statements for Borrower and it subsidiaries, including a balance
sheet, financial statements and related statements of income as of
the end of such quarters which shall be prepared by Borrower's
Management and which shall be certified and signed by Borrower's
Chief Financial Officer.
H) As soon as available, and in any event with one-hundred twenty (120)
days after the close of each fiscal year, Borrower shall provided to
Lender an audited form 10K Consolidated Financial Statements of
Borrowers and its subsidiaries, including a Balance Sheet and
related statements of income and of cash flows as of the end of such
Fiscal year.
I) The Borrower shall submit to Lender an annual budget thirty (30)
days prior to its fiscal year ending. Said annual budget submission
must be prepared in a fashion that provides a breakdown of quarterly
financial expectations and budget items. The Borrower also agrees
to provide quarterly financial statements that will compare the
actual results to the budget within thirty (30) days of the end of
each fiscal quarter. The Borrower acknowledges it is already in pos
session of the quarterly budgets for the fiscal year ending
September 30, 2000.
J) The Borrower agrees as an Affirmative Covenant to maintain a Debt
Service Coverage Ratio, defined as "EBITDA", which is Earnings
Before Interest Taxes Depreciation and Amortization, divided by
current maturities of long term debt and capitalized leases plus
interest of 1.10 to 1.0.
K) The Borrower agrees its unfunded capital expenditures may not exceed
$3,000,000.00 during the nine (9) month term ending September 30,
2000.
L) The Borrower agrees it must maintain a maximum debt to tangible net
worth ratio of 3.0 to 1.
M) The Borrower agrees it will maintain a minimum tangible net worth of
$24,000,000.00 in the first and fourth quarters of the Borrower's
fiscal year. The Borrower must maintain a minimum tangible net
worth of $23,000,000.00 in the second and third quarters of the
Borrower's fiscal year. The Borrower and Lender agree that on March
30, 2000 and on June 29, 2000, that a financial evaluation of the
23
Borrower's financial position will be reviewed by the Lender, and the
failure to comply with the above financial covenants will be considered
an Event of Default.
N) The Borrower agrees the Lender will continue to maintain the
existing sublimit $3,000,000.00 Letter of Credit. The Revolving
Credit Loan will maintain unused available funds equal to the Letter
of Credit that has been issued. The Letter of Credit will remain
available to the Borrower for the sole use and purpose of securing
Borrower's worker's compensation obligations. Any other use or
requested use of the Letter of Credit shall be subject to the
Lender's prior written approval of which shall be in the sole
discretion of the Lender. At no time prior to the maturity date of
the Loan, may the Letter of Credit and Revolving Credit Loan
Outstandings or Commitments exceed $10,000,000.00 and at no time
shall the Letter of Credit exceed $3,000,000.00. The maturity date
of the Letter of Credit presently is June 30, 2000, provided,
however, said Letter of Credit shall be amended to the extent
necessary to provide Borrower an automatic renewal subject to Lender
notifying Borrower at least sixty (60) days prior to expiration of
the Letter of Credit that it will or will not renew the Letter of
Credit for a term until at least until the maturity date of this
Loan.
7. EVENTS OF DEFAULT. The Events of Default set forth in the Loan
Agreement shall remain in full force and effect and in addition, will be
supplemented with the following additional Events of Default:
A) If the Borrower fails for any reason to maintain the Guaranty
Agreement from Xxxxx X. Xxxxxxxx, as provided herein, this shall be
considered an Event of Default.
B) If the Borrower fails to meet the financial covenants and conditions
set forth herein and as set forth in the original Loan Agreement,
this shall be considered an Event of Default.
C) If Borrower fails to provide a first lien position on all account
receivables and inventory as provided herein, this shall be
considered an Event of Default.
D) If the Borrower encumbers equipment of which it has agreed not to
encumber, this shall be considered an Event of Default.
E) If the Borrower fails to place first mortgage liens against a
minimum of $4,000,000 of value of the real property as listed on
Exhibit "A" hereto by March 31, 2000, this shall be considered an
Event of Default.
F) If the Borrower fails to provide the financial statements provided
herein within fifteen (15) days of their due date, this shall be
considered an Event of Default.
24
8. REMEDIES - ARTICLE 7. The Remedies set forth in the original Loan
Agreement shall remain in full force and effect and shall be supplemented by the
following additional Remedy: Upon the occurrence of an Event of Default, and
after thirty (30) days prior written notice, the full amount of the principal
balance of the loan, principal interest and costs shall become immediately due
and payable in full.
9. GENERAL. All terms of Article 8 of the original Loan Agreement
shall remain in full force and effect, except that the notice to the Borrower
shall be amended to read as follows:
Uni-Marts, Inc.
Attn: N. Xxxxxxx Xxxxxxx, CFO
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000-0000
10. The provisions set forth in this Amended Loan Agreement shall modify
the terms of the original Loan Documents only to the extent specifically
modified herein. The terms of the original Loan Agreement shall remain in full
force and effect and are applicable to this Loan extension.
Executed and intending to be legally bound as of the day and year first
written above.
LENDER:
U.S. BANK
/s/ Xxxxx X. Xxxxxx
By:-----------------------------------
Xxxxx X. Xxxxxx
Assistant Vice President
BORROWER:
ATTEST: UNI-MARTS, INC.
/s/ Xxxxx X. Xxxxxx /s/ N. Xxxxxxx Xxxxxxx
--------------------------- By:-----------------------------------
N. Xxxxxxx Xxxxxxx
Senior Vice President and
Chief Financial Officer
