EXHIBIT (10.1)
AMENDMENT NO. 7 TO CREDIT AGREEMENT
-----------------------------------
This Amendment No. 7 to Credit Agreement is dated as of December 31,
1996, by and among Uni-Marts, Inc. (the "Borrower"), PNC Bank, National
Association, CoreStates Bank, N.A. and The Sumitomo Bank, Limited, as 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, Amendment No. 4 to Credit Agreement dated as of March 27,
1995, Amendment No. 5 dated as of December 26, 1995 and Amendment No. 6 dated as
of March 28, 1996 (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," "Funded Capital Expenditures"
"Loan Request," "Loans," "Notes," "Term Loan Base Rate Portion," "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, Term Loan-B Commitment and Term Loan-C
Commitment and Commitments shall mean the aggregate
of the Revolving Credit Commitments, Term Loan
Commitments, Term Loan-B Commitments and Term
Loan-C Commitments of all of the Banks.
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 or Term Loans-C.
Loan Request shall mean a request for Revolving
Credit Loans, Term Loans-B or Term Loans-C made in
accordance with Section 2.05, Section 3.02(B) or
Section 3.02(C) hereof or a request to select,
convert to or renew a Euro-Rate Option in accordance
with Section 4.02 hereof.
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Loans shall mean all Revolving Credit Notes, Term
Loans, Term Loans-B and Term Loans-C, collectively,
and Loan shall mean any Revolving Credit Loan,
Term Loan, Term Loan-B or Term Loan-C, separately.
Notes shall mean the Revolving Credit Notes, the
Term Notes, the Term Notes-B and the Term Notes-C.
Term Loan Base Rate Portion shall mean the portion
of the Term Loans, Term Loans-B and Term Loans-C
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, Term Loans-B and Term Loans-C
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. 7 shall mean Amendment No. 7 to the
Credit Agreement dated as of December 31, 1996 by
among the Borrower, the Agent and the Banks.
Amendment No. 7 Closing Date shall mean the date
on which all conditions to the effectiveness of
Amendment No. 7 as set forth in Section 11 of
Amendment No. 7 are satisfied.
Amendment No. 7 Fee shall mean the fee paid by the
Borrower to the Agent pursuant to Section 11 of
this Amendment No. 7.
Term Loan-C 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-C," and thereafter on Schedule I to the most
recent Assignment and Assumption Agreement to
which such Bank is a party and Term Loan-C
Commitments shall mean the aggregate Term Loan-C
Commitments of all the Banks.
Term Loan-C Commitment Fee shall have the meaning
given to such term in Section 3.04(C).
Term Loan-C Maturity Date shall mean the sooner of
364 days from the Amendment No. 7 Closing Date or
the completion of the Borrower's proposed private
placement.
Term Loan-C Request Date shall mean December 31,
1997.
Term Loans-C shall mean collectively all Term
Loans-C made by the Banks to the Borrower under
Section 3.03(C) hereof, and Term Loan-C shall mean
separately any Term Loan-C made by any Bank to the
Borrower pursuant to Section 3.03(C) hereof.
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Term Notes-C shall mean collectively all Term
Notes-C and Term Note-C shall mean separately any Term
Note-C of the Borrower, in each case in the form of
Exhibit A to Amendment No. 7 which evidence the Term
Loans-C, together with all amendments, restatements,
extensions, renewals, replacements, refinancings or
refundings thereof in whole or in part.
5. A new Article III(C) (Term Loans-C) is hereby inserted
immediately following Article III(B) of the Credit Agreement as set forth on
Schedule 1 hereto.
6. Section 4.01 of the Credit Agreement is hereby amended by
deleting "Term Loans or Term Loans-B" in the fifth line thereof, and inserting
in lieu thereof "Term Loans, Term Loans-B, or Term Loans-C".
7. Section 4.01(b) of the Credit Agreement is hereby amended by
deleting "the Term Loans and the Term Loans-B" in the third line thereof and
inserting in lieu thereof "the Term Loans, the Term Loans-B, and the Term
Loans-C".
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, the Term
Loans-B and the Term Loans-C; 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, Term Loan-B and Term Loan-C prepayments permitted
pursuant to this Section 5.04 shall be applied to the unpaid
installments of principal of the Term Loans, Term Loans-B or Term
Loans-C, as the case may be, in the inverse order of scheduled
maturities.
10. 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 30, 1997 $19,000,000
September 30, 1998 and each $12,000,000
fiscal year thereafter
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11. The effectiveness of this Amendment No. 7 is expressly
conditioned upon: (i) the Agent's receipt of counterparts of this Amendment
No. 7 duly executed by the Borrower and each of the Banks; (ii) each of the
Banks having received a duly executed Term Note-C 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. 7 Closing Date,
certifying as to all action taken by the Borrower to authorize the execution,
delivery and performance of this Amendment No. 7; (iv) a written opinion of
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, counsel for the Borrower, dated the Amendment
No. 7 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.
12. 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 or elsewhere in the Credit Agreement; and no Event of Default or
Potential Default has occurred and is continuing.
13. 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. 7 which are payable by the Borrower as provided in
Sections 10.05 and 11.03 of the Credit Agreement.
14. 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.
15. 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.
16. 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]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. 7 as of the date first above written.
UNI-MARTS, INC.
By: /S/ J. XXXX XXXXXXXX
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Title: Executive Vice President
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PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /S/ XXXXX X. XXXXXXXX
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Title: Vice President
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CORESTATES BANK, N.A.
By: /S/ XXXX X. XXXXXXXX
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Title: Vice President
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THE SUMITOMO BANK, LIMITED
By: /S/ XXXXXX X. XXXXX
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Title: Vice President and Manager
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By: /S/ XXXXXX X. XXXXXXXXX
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Title: Vice President
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SCHEDULE 1
ARTICLE III-C
TERM LOANS-C
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3.01(C) Term Loan-C 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-C") to the Borrower on or after the Amendment No. 7 Closing Date in such
principal amount as the Borrower shall request up to but not exceeding such
Bank's Term Loan-C Commitment. The obligation of each Bank to make a Term
Loan-C to the Borrower shall be in the proportion that such Bank's Term Loan-C
Commitment bears to the Term Loan-C Commitments of all Banks, but each Bank's
Term Loans-C shall never exceed its Term Loan-C Commitment. The failure of any
Bank to make a Term Loan-C to the Borrower shall not relieve any other Bank of
its obligations to make a Term Loan-C 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-C hereunder after the Term Loan-C Request Date.
The Term Loan-C Commitments are not revolving credit commitments and the
Borrower shall not have the right to borrow, repay and reborrow under this
Section 3.01(C).
3.02(C) Term Loan-C Requests. Except as otherwise provided herein, the
Borrower may from time to time prior to the Term Loan-C Request Date request the
Banks to make Term Loans-C by the 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-C to which the Euro-
Rate Option applies or the conversion to or the renewal of the Euro-Rate Option
for any Term Loan-C; and (ii) one (1) Business Day prior to either the proposed
Borrowing Date with respect to the making of a Term Loan-C 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-C, 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-C 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-C or the maximum amount available for Term Loans-C 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-C 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-C comprising such Borrowing Tranche.
3.03(C) Making Term Loans-C. The Agent shall, promptly after receipt
of a Loan Request pursuant to Section 3.02(C), 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-C; (ii) the amount and type of
such Term Loan-C and the applicable Euro-Rate Interest Period (if any); and
(iii) the apportionment among the Banks of the Term Loan-C as determined by the
Agent in accordance with Section 3.01(C) hereof. Each Bank shall remit the
principal amount of each Term Loan-C 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-C 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-C of such Bank on the
Borrowing Date.
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3.04(C) Term Loan-C Commitment Fee. Accruing from the Amendment No. 7
Closing Date until the Term Loan-C Request Date, the Borrower agrees to pay to
the Agent for the account of each Bank, as consideration for the Term Loan-C
Commitments hereunder, a nonrefundable commitment fee (the "Term Loan-C
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-C Commitments and the principal
amount of Term Loans-C outstanding. All Term Loan-C Commitment Fees shall be
payable in arrears on the last Business Day of each fiscal quarter of the
Borrower after the Amendment No. 7 Closing Date, on the Term Loan-C Request Date
and upon any acceleration of the Notes.
3.05(C) Term Loan-C Note. The obligation of the Borrower to repay the
unpaid principal amount of the Term Loans-C made to it by each Bank, together
with interest thereon, shall be evidenced by a promissory note of the Borrower
dated the Amendment No. 7 Closing Date in substantially the form attached to
Amendment No. 7 as Exhibit A payable to the order of each Bank in the face
amount of the Term Loan-C Commitment of such Bank. The principal amount as
provided therein of each Term Note-C shall be payable in full on the Term Loan-C
Maturity Date.
3.06(C) Use of Proceeds. The proceeds of the Term Loans-C will be used
by the Borrower for capital expenditures.
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SCHEDULE 1.01(a)
TO
CREDIT AGREEMENT
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Banks
-----
Amount of Amount of Amount of Amount of
Commitment Commitment Commitment Commitment
for Revolving for Term for Term for Term Ratable
Bank Credit Loan (US$) Loans Loans-B Loans-C Share %
---- ----------------- ----- ------- ------- -------
PNC Bank, $4,500,000.00 $5,673,333.33 $3,333,333.34 $3,333,333.34 33 1/3%
National
Association
CoreStates $4,500,000.00 $5,673,333.33 $3,333,333.34 $3,333,333.34 33 1/3%
Bank, N.A.
The Sumitomo $4,500,000.00 $5,673,333.33 $3,333,333.34 $3,333,333.34 33 1/3%
Bank, Limited
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