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Exhibit 10(A)
FOURTH AMENDMENT
TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (the "FOURTH AMENDMENT") is
dated as of the 14th day of March, 2001 by and among DAIRY MART CONVENIENCE
STORES, INC., a Delaware corporation (the "COMPANY"), the banks and other
financial institutions listed on Schedule I to the Credit Agreement (as
hereinafter defined) (collectively, together with any banks or financial
institutions from time to time parties to the Credit Agreement, the "BANKS") and
CITIZENS BANK OF CONNECTICUT, a Connecticut stock savings bank, as agent for the
Banks (in such capacity, the "AGENT").
W I T N E S S E T H:
The Company, the Banks, and the Agent are parties to a certain Credit
Agreement dated as of the 28th day of December, 1999 (as amended and in effect
from time to time, the "CREDIT AGREEMENT") whereby the Banks agreed to make
loans and advances and otherwise extend credit to the Company.
The Company, the Banks, and the Agent desire to further amend the
Credit Agreement.
Section 10.1. of the Credit Agreement provides that no amendment,
supplement or modification of the Credit Agreement shall be effective unless the
same shall be in writing and signed by the Company, the Required Banks and the
Agent.
NOW, THEREFORE, in consideration of one dollar ($1.00) and the other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, the Banks and the Agent hereby agree as follows:
1. Defined Terms. Defined terms not defined herein shall have the
meanings ascribed to them in the Credit Agreement.
2. Amendment to Credit Agreement. Section 2.11(c) of the Credit
Agreement is deleted.
3. Amendment Fee. In consideration of the agreement of the Banks to
execute and deliver this Fourth Amendment, the Company shall pay to the Agent
for the ratable benefit of the Banks an amendment fee in the amount of $500,000
(the "AMENDMENT FEE"). The Amendment Fee is earned by the Banks as of the date
hereof, and shall be payable on the Amendment Fee Payment Dates regardless of
any event that occurs after the date hereof. The Amendment Fee shall be payable
on the following dates (the "AMENDMENT FEE PAYMENT DATES"): (a) $ 50,000 of the
Amendment Fee shall be payable on March 19, 2001; (b) $ 450,000 of the Amendment
Fee shall be payable on April 16, 2001. Any failure of the Company to pay each
installment of the Amendment Fee as and when payable under this paragraph shall
constitute an Event of Default under Section 8(a) of the Credit Agreement.
4. Confirmation of Agreements. The Company, the Banks, and the Agent
hereby agree that, except as provided in this Fourth Amendment, the Credit
Agreement, the Notes and the Loan Documents, and the grant of the liens,
security interests and other
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encumbrances thereunder, and their agreements, covenants, obligations,
representations and warranties thereunder and therein are hereby expressly
ratified, confirmed and restated as of the date hereof.
5. Effect of Amendment. The Company, the Banks, and the Agent hereby
agree that, except as provided in this Fourth Amendment, the Credit Agreement
(as previously amended) remains in full force and effect and has not been
modified or amended in any respect, it being the intention of the Company, the
Banks, and the Agent that this Fourth Amendment and the Credit Agreement (as
previously amended) be read, construed and interpreted as one and the same
instrument.
6. Benefit. This Fourth Amendment shall inure to the benefit of and
bind the parties hereto.
7. Amendments. This Fourth Amendment shall be modified only by a
writing executed by the Company, the Agent and the Required Banks.
8. Counterparts. This Fourth Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts, taken together, shall constitute but
one and the same instrument. A facsimile of an executed counterpart shall have
the same effect as the original executed counterpart.
9. Release and Indemnity. (a) The Company, on behalf of itself, its
Subsidiaries and their respective successors and assigns, hereby waives,
releases and discharges the Banks and the Agent, any affiliate of the Banks and
the Agent and all directors, officers, shareholders, employees and agents of the
Banks or the Agent or any affiliate of the Banks or the Agent, from any and all
claims, demands, actions or causes of action arising out of or in any way
relating to the Credit Agreement, this Fourth Amendment, the credit
relationships between the Company, the Banks and the Agent relative thereto, and
any documents, agreements, dealings or other matters connected therewith,
including without limitation all known and unknown matters, claims, transactions
or things occurring prior to the Effective Date (as defined in paragraph 11
below) related to the subject matter thereof and hereof.
(b) The Company, on behalf of itself, its Subsidiaries and
their respective successors and assigns, hereby waives, releases and discharges
the Banks and the Agent, any affiliates of the Banks and the Agent, and all
directors, officers, shareholders, employees and agents of the Banks or the
Agent or any affiliate of the Banks or the Agent, from any and all claims,
demands, actions or causes of action arising out of or in any way relating to
any other credit or loan relationship between the Company, the Banks or the
Agent, and any documents, agreements, dealings or other matters connected with
such other credit or loan relationship, including without limitation all known
and unknown matters, claims transactions or things occurring prior to the
Effective Date.
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(c) The Company, on behalf of itself, its Subsidiaries and
their respective successors and assigns, agrees, jointly and severally with
itself and its Subsidiaries, to indemnify and hold the Banks and the Agent, any
affiliate of the Banks and the Agent and all directors, officers, shareholders,
employees and agents of the Banks or the Agent or any affiliate of any Bank or
the Agent harmless from and against any and all damages, losses, obligations,
payments, liabilities, claims, actions or causes of action, fees or expenses
(including legal fees) and other matters of every kind and character incurred,
sustained or paid by the Banks or the Agent, any affiliate of the Banks or the
Agent or any of such directors, officers, shareholders, employees and agents
arising out of or in any way relating to the Credit Agreement, this Fourth
Amendment, the administration of the credit relationships between the Company,
the Banks and the Agent, and any other credit or loan relationship between the
Company, the Banks or the Agent, and any documents, agreements, dealings or
other matters connected therewith, including without limitation all known and
unknown matters, claims transactions or things occurring prior to the Effective
Date related to the subject matter thereof or hereof. In the event of litigation
or other proceedings relating to any of the foregoing, the Banks and the Agent
shall be entitled to select their own legal counsel and, in addition to the
foregoing indemnity, the Company and its Subsidiaries agree to promptly pay the
reasonable fees and expenses of such counsel.
(d) The Company, on behalf of itself and its Subsidiaries,
acknowledges that it makes this release and indemnity knowingly, voluntarily and
only after considering the ramifications hereof with its legal counsel.
10. Effectiveness. This Fourth Amendment shall become effective as of
the date of the execution and delivery by each of the Company, Banks
constituting the Required Banks, and the Agent of a counterpart of this Fourth
Amendment, and the payment by the Company to the Agent of (a) the portion of the
Amendment Fee that is payable on the date hereof, and (b) the counsel fees
incurred by the Agent in connection with the preparation, execution and delivery
of this Fourth Amendment (the "EFFECTIVE DATE").
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IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment as of the Effective Date.
DAIRY MART CONVENIENCE STORES, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Treasurer
CITIZENS BANK OF CONNECTICUT,
Individually and as Agent
By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
PROVIDENT BANK
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
