EXHIBIT (10.3)
AMENDMENT NO. 9 TO CREDIT AGREEMENT
-----------------------------------
This Amendment No. 9 to Credit Agreement is dated as of April 15,
1997, 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, Amendment No. 6 dated as of
March 28, 1996, Amendment No. 7 dated as of December 31, 1996 and Amendment
No. 8 dated as of February 20, 1997 (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. Section 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 "Term Loan-B Commitment," "Term Loan-B
Commitment Fee," "Term Loan-B Maturity Date," "Term Loan-B Request Date," "Term
Loans-B," "Term Notes-B," "Term Loan-C Commitment," "Term Loan-C Commitment
Fee," "Term Loan-C Maturity Date," "Term Loan-C Request Date," "Term Loans-C,"
and "Term Notes-C" in Section 1.01 of the Credit Agreement are hereby deleted
in their entirety.
4. The defined terms "Commitment," "Fixed Charges," "Funded
Capital Expenditures," "Loan Request," "Loans," "Notes," "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,
Term Loan (Combined) Commitment and Commitments shall mean
the aggregate of the Revolving Credit Commitments, Term
Loan Commitments and Term Loan (Combined) Commitments of
all of the Banks.
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Fixed Charges shall mean, for any period of determination,
the sum of interest expense, income tax expense, dividend
payments on capital stock (to the extent actually paid in
cash), scheduled principal installments on Indebtedness (as
adjusted for prepayments), capital expenditures and Rentals,
in each case of the Borrower and its Subsidiaries, for such
periods determined and consolidated in accordance with GAAP.
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 (Combined).
Loan Request shall mean a request for Revolving Credit
Loans made in accordance with Section 2.05 hereof or, with
respect to any of the Loans, 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 (Combined), collectively, and Loan shall mean
any Revolving Credit Loan, Term Loan, Term Loan (Combined),
separately.
Notes shall mean the Revolving Credit Notes, the Term Notes
and the Term Notes (Combined).
Term Loan Base Rate Portion shall mean the portion of the
Term Loans and Term Loans (Combined) 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 (Combined) bearing interest at
any time under the Term Loan Euro-Rate Option.
5. The following defined terms are hereby inserted in alphabetical
order in Section 1.01 of the Credit Agreement:
Amendment No. 9 shall mean Amendment No. 9 to the Credit
Agreement dated as of April 15, 1997, by and among the
Borrower, the Agent and the Banks.
Amendment No. 9 Closing Date shall mean the date on which
all conditions to the effectiveness of Amendment No. 9 as
set forth in Section 14 of Amendment No. 9 are satisfied.
Amendment No. 9 Fee shall mean the fee paid by the
Borrower to the Agent pursuant to Section 14(f) of this
Amendment No. 9.
Term Loan (Combined) 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 (Combined)," and
thereafter on Schedule I to the most recent Assignment
and Assumption Agreement to which such Bank is a party
and Term Loan (Combined) Commitments shall mean the
aggregate Term Loan (Combined) Commitments of all the
Banks.
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Term Loan (Combined) Maturity Date shall mean December 31,
1999.
Term Loans (Combined) shall mean collectively all Term
Loans (Combined) made by the Banks to the Borrower under
Section 3.01(A) hereof, and Term Loan (Combined) shall
mean separately any Term Loan (Combined) made by any
Bank to the Borrower pursuant to Section 3.01(A) hereof.
Term Notes (Combined) shall mean collectively all Term
Notes (Combined) and Term Note (Combined) shall mean
separately any Term Note (Combined) of the Borrower,
in each case in the form of Exhibit A to Amendment
No. 9 which evidence the Term Loans (Combined), together
with all amendments, restatements, extensions, renewals,
replacements, refinancings or refundings thereof in
whole or in part.
6. Article III-B (Term Loans-B) and Article III-C (Term Loans-C)
are hereby deleted in their entirety and a new Article III-A (Term Loans
(Combined)) is hereby inserted immediately following Article III of the Credit
Agreement as set forth on Schedule 1 hereto.
7. Section 4.01 of the Credit Agreement is hereby amended by
deleting "Term Loans, Term Loans-B or Term Loans-C" in the fifth line thereof,
and inserting in lieu thereof "Term Loans or Term Loans (Combined)".
8. Section 4.01(b) of the Credit Agreement is hereby amended by
deleting "the Term Loans, the Term Loans-B or Term Loans-C" in the third line
thereof and inserting in lieu thereof "the Term Loans and the Term Loans
(Combined)".
9. 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 (Combined); and
10. 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 (Combined) prepayments
permitted pursuant to this Section 5.04 shall be
applied to the unpaid installments of principal of
the Term Loans or Term Loans (Combined), as the case
may be, in the inverse order of scheduled maturities.
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:
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Fiscal Year Ending Aggregate Permitted Amount
------------------ --------------------------
September 30, 1997 $12,000,000
September 30, 1998 $ 4,000,000
and each fiscal year
thereafter
12. Section 8.02(l) of the Credit Agreement (Minimum Fixed Charge
Coverage Ratio) is hereby deleted in its entirety and the following is inserted
in lieu thereof:
(1) Minimum Fixed Charge Coverage Ratio. The Borrower
shall not permit the Fixed Charge Coverage Ratio,
calculated as of the end of each fiscal quarter for the
four (4) fiscal quarters then ended to be less than
the ratio set forth below for the period specified
below:
Period Ratio
------ -----
4/02/97 through 9/30/99 .90:1.0
10/01/99 and thereafter 1.0:1.0
Notwithstanding the foregoing, for the fiscal quarter
ending 4/02/97 only, in calculating the Fixed Charge
Coverage Ratio, Funded Capital Expenditures shall be
excluded from the calculation of Consolidated Cash
Flow From Operations and capital expenditures shall be
excluded from the definition of Fixed Charges.
13. Section 5.06 (Mandatory Prepayments) is hereby amended by
deleting "the Term Loans then outstanding," in the fourth and fifth line thereof
and inserting in lieu thereof "first the Term Loans (Combined) then outstanding
and then the Term Loans then outstanding, in either case."
14. The effectiveness of this Amendment No. 9 is expressly
conditioned upon: (a) the Agent's receipt of counterparts of this Amendment
No. 9 duly executed by the Borrower and each of the Banks; (b) each of the Banks
having received a duly executed Term Note (Combined) in the form of Exhibit A
hereto; (c) the Agent's receipt of a certificate signed by the Secretary or
Assistant Secretary of the Borrower, dated the Amendment No. 9 Closing Date,
certifying as to all action taken by the Borrower to authorize execution,
delivery and performance of this Amendment No. 9; (d) a written opinion of
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, counsel for the Borrower, dated the Amendment
No. 9 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; (e) receipt of waiver of any existing defaults
by the holders of any other existing Indebtedness; and (f) the receipt by each
of the Banks of an amendment fee in the amount of $25,000.00.
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 in Article VIII
or elsewhere in the Credit Agreement; and no Event of Default or Potential
Default has occurred and is continuing.
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16. The Borrower hereby agrees to reimburse the Agents and the
Banks on demand for all reasonable costs, expenses and disbursements relating to
this Amendment No. 9 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. 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. 9 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: Vice President
-----------------------------
CORESTATES BANK, N.A.
By: /S/ XXXX X. XXXXXXXX
--------------------------------
Title: Vice President
-----------------------------
THE SUMITOMO BANK, LIMITED
By: /S/ XXXXXX X. XXXXX
--------------------------------
Title: Vice President and Manager
-----------------------------
By: /S/ XXXXXX X. XXXXXXXXX
--------------------------------
Title: Vice President
-----------------------------
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SCHEDULE 1
ARTICLE III-A
TERM LOANS (COMBINED)
---------------------
3.01(A) Term Loan (Combined) Borrowings. Subject to the terms and
conditions of the Credit Agreement and Amendment No. 9, and relying upon the
representations and warranties of the Credit Agreement and Amendment No. 9, each
Bank severally agrees to combine the outstanding term loans made pursuant to
Amendment No. 5 and Amendment No. 7 into a term loan (combined) (collectively,
the "Term Loans (Combined)") in the amount of such Bank's Term Loan (Combined)
Commitment. The Term Loan (Combined) Commitments are not revolving credit
commitments and the Borrower shall not have the right to borrow, repay and
reborrow under this Section 3.01(A).
3.02(A) Term Loan (Combined) Note. The obligation of the Borrower to
repay the unpaid principal amount of the Term Loan (Combined) made to it by each
Bank, together with interest thereon, shall be evidenced by a promissory note of
the Borrower dated the Amendment No. 9 Closing Date in substantially the form
attached to Amendment No. 9 as Exhibit A payable to the order of each Bank in
the face amount of the outstanding Term Loan (Combined) Commitment of such Bank.
The aggregate principal amount of the Term Notes (Combined) shall be payable in
three (3) quarterly installments of Seven Hundred Fourteen Thousand Two Hundred
Eight-Five Dollars ($714,285) on the last Business Day of each of March, June
and September, 1999, with a final installment of Seventeen Million Eight Hundred
Fifty-Seven Thousand One Hundred Forty-Five Dollars ($17,857,145) on the Term
Loan (Combined) Maturity Date. The Term Notes (Combined) shall also be payable
in full upon any acceleration of such Notes.
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SCHEDULE 1.01(a)
TO
CREDIT AGREEMENT
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Banks
-----
Amount of Amount of Amount of
Commitment Commitment Commitment
for Revolving for Term for Term Ratable
Bank Credit Loan (US$) Loans Loans Share %
---- ----------------- ----- (Combined) -------
----------
PNC Bank, $4,500,000.00 $5,673,333.33 $6,666,666.68 33 1/3%
National
Association
CoreStates $4,500,000.00 $5,673,333.33 $6,666,666.66 33 1/3%
Bank, N.A.
The Sumitomo $4,500,000.00 $5,673,333.33 $6,666,666.66 33 1/3%
Bank, Limited
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