FIRST AMENDMENT TO LOAN AGREEMENT
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THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "First
Amendment") is made as of the 16th day of January, 2001, by and
among UNI-MARTS, INC., a Delaware corporation, and UNI-MARTS OF
AMERICA, INC., a Delaware corporation (together, the
"Borrowers"), and THE PROVIDENT BANK, a bank chartered under the
laws of the State of Ohio (the "Lender").
W I T N E S S E T H:
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WHEREAS, the Borrowers and the Lender have heretofore
entered into a certain Loan Agreement dated as of April 20, 2000
(the "Loan Agreement"), pursuant to which the Lender has agreed
to provide a $10,000,000 secured revolving credit facility to the
Borrowers, subject to the terms and conditions set forth in the
Loan Agreement; and
WHEREAS, the Borrowers have requested that the Lender
increase the maximum committed amount of the revolving credit
facility on a permanent basis from $10,000,000 to $13,000,000 and
to amend the definition of "Fixed Charge Coverage Ratio" and the
Lender is willing to do so under the terms, and subject to the
conditions, set forth in this First Amendment.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained and with the intent to be
legally bound, the parties hereto agree as follows:
1. Recitals as Covenants. The foregoing recitals are
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hereby incorporated in this First Amendment as covenants.
2. Use of Terms. Terms used herein and not otherwise
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defined are used herein as defined in the Loan Agreement.
3. Amended and Restated Definitions. The following
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definitions set forth in Section 1.01 of the Loan Agreement are
hereby amended and restated in their entirety as follows:
"Agreement" means this Loan Agreement, as amended by
the First Amendment, and as the same may be further
amended, modified or supplemented from time to time.
"Fixed Charge Coverage Ratio" means, for any period of
four consecutive fiscal quarters, (A) EBITDA plus net
cash proceeds received from the sale of fixed assets
divided by (B) the sum of (i) current portion of the
Borrowers' long term indebtedness as reflected on Uni-
Marts' consolidated balance sheet as of the date
beginning such period and determined in accordance with
GAAP, (ii) nonfinanced cash capital expenditures made
during the period, (iii) dividends and other
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distributions made during the period (to the extent
permitted under this Agreement), and (iv) interest
expense during the period.
"Revolving Credit Note" means the Amended and Restated
Revolving Credit Note of the Borrowers in the form of
Exhibit "A" to the First Amendment evidencing the
Revolving Credit Loans together with all extensions,
renewals, refinancings or refundings in whole or in
part.
In addition to the foregoing, the following defined terms
are hereby added to Section 1.01 of the Loan Agreement:
"First Amendment" means the First Amendment to Loan
Agreement dated as of January 16, 2001, among the
Borrowers and the Lender.
"First Amendment Closing Date" means January 16, 2001,
or such other date as the parties may agree.
4. Amendment to Revolving Credit Loan Facility.
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(a) Amendment of Section 2.01-Revolving Credit Loans.
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Subject to the terms and conditions of this First Amendment and
the Loan Agreement, the Lender has agreed to increase the maximum
principal amount of the Revolving Credit Loans from $10,000,000
to $13,000,000. Accordingly, subsections (b) and (c) of Section
2.01 of the Loan Agreement are hereby amended and restated in
their entirety to read as follows:
(b) Revolving Credit Note. The obligations of the
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Borrowers to repay the unpaid principal amount of the
Revolving Credit Loans made to the Borrowers by the Lender
and to pay interest on the unpaid principal amount will be
evidenced in part by the Revolving Credit Note of the
Borrowers dated the First Amendment Closing Date, in
substantially the form attached as Exhibit "A" to the First
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Amendment, with the blanks appropriately filled. The
executed Revolving Credit Note will be delivered by the
Borrowers to the Lender on the First Amendment Closing Date.
The Revolving Credit Note shall be an amendment, restatement
and replacement of the Revolving Credit Note dated as of
April 20, 2000, executed and delivered by the Borrowers to
the Lender (the "Existing Note"), and the indebtedness
evidenced by the Existing Note, together with additional
Revolving Credit Loans made by the Lender to the Borrower
pursuant to this Agreement after the First Amendment Closing
Date, shall be evidenced by the Revolving Credit Note.
(c) Borrowing Base. The maximum borrowing
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availability under this Agreement applicable to the
Revolving Credit Loans to all Borrowers taken as a whole
shall be equal on any day during the term of this Agreement
to the lesser of (i) Thirteen Million Dollars
($13,000,000.00), or (ii) seventy-five percent (75%) of the
aggregate gross amount of Qualified Accounts, plus sixty
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percent (60%) of the aggregate value of Qualified Inventory,
plus fifty percent (50%) of the value of the real properties
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identified on Appendix 1 to this Agreement, as revised from
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time to time by Uni-Marts as provided herein (the lesser of
the amounts described in clauses (i) and (ii) of this
sentence is sometimes referred to in this Agreement as the
"Borrowing Base"). In the event that Uni-Marts desires to
add properties to Appendix 1, or substitute one or more
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properties (collectively the "New Properties") for
properties then listed on Appendix 1 (collectively the
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"Released Properties"), upon and subject to Lender's
agreeing to make the proposed substitution, (i) the
Borrowing Base shall be adjusted to reflect the substitution
and the Borrowers shall repay the amount of any Loans that
exceed the Borrowing Base, (ii) the applicable Borrower
shall grant to Lender Mortgages meeting the requirements of
this Agreement on all New Properties, and (iii) Lender shall
release its lien and Mortgage on the Released Properties.
Upon the sale or other disposition of any property listed on
Appendix 1 (a "Sold Property"), the Sold Property shall
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immediately be removed from the Borrowing Base and Borrowers
shall immediately repay any Loans in excess of the Borrowing
Base as calculated to take into account the sale of the Sold
Property. The Borrowing Base shall be further reduced by
(i) the aggregate undrawn amount of all Letters of Credit
from time to time outstanding as of the date of the
determination, and (ii) any reserve or reserves created and
maintained by the Lender from time to time and in its sole
reasonable discretion to reflect events, conditions,
contingencies or risks which affect the Qualified Accounts
or the Qualified Inventory or otherwise affect the assets,
the business, operations or financial condition of the
Borrowers or any individual Borrower.
(d) Amended and Restated Revolving Credit Note. The
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Borrowers shall execute and deliver the Revolving Credit Note in
the form attached to this First Amendment as Exhibit A to
evidence the Revolving Credit Loans as herein provided.
5. Representations and Warranties. The Borrowers hereby
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represent and warrant to the Lender that:
(a) The Borrowers have and will continue to have corporate
power and authority to execute, deliver and perform the
provisions of this First Amendment and the Loan Agreement, as
amended hereby, and to execute and deliver the instruments
required by the provisions of this First Amendment and the Loan
Agreement, as amended hereby, to be executed and delivered by the
Borrowers; and all such action has been duly and validly
authorized by all necessary corporate proceedings on the part of
the Borrowers.
(b) The execution, delivery and performance of this First
Amendment and the Revolving Credit Note will not conflict with,
constitute a default under or result in the breach of, any
provisions of Law or the Articles of Incorporation or the By-laws
of the Borrowers or of any agreement or other instrument to which
each Borrower is a party or by which it is bound or to which it
is subject.
(c) This First Amendment and the Revolving Credit Note have
each been duly and validly executed and delivered by the
Borrowers, and this First Amendment and the Revolving Credit Note
constitute legal, valid and binding obligations of the Borrowers,
enforceable against the Borrowers in accordance with their
respective terms.
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(d) The representations and warranties by the Borrowers
contained in Article III of the Loan Agreement are correct and
accurate in all material respects on and as of the date of this
First Amendment with the same effect as though made on and as of
the date of this First Amendment with certain changes set forth
in the letter from the Borrowers dated the date hereof and
attached hereto as Exhibit "B".
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(e) No event has occurred and is continuing which
constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time
elapse or both.
6. Conditions Precedent. It shall be a condition
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precedent to the effectiveness of this First Amendment that the
Lender shall have received, on or before the First Amendment
Closing Date, each of the following items, in form and substance
satisfactory to the Lender and its counsel:
(i) this First Amendment, duly executed and delivered;
(ii) the Amended and Restated Revolving Credit Note,
duly executed and delivered;
(iii) a certificate of the Borrowers, addressed to
the Lender and executed by the Chief Financial Officer or
President of each Borrower on behalf of the Borrowers,
certifying that all corporate actions necessary for the
consummation of the obligations to be incurred under the
First Amendment have been taken;
(iv) an opinion of counsel for the Borrowers, dated as
of the First Amendment Closing Date, in the form attached
hereto as Exhibit "C"; and
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(v) such other items, instruments, documents and
certificates as to the transactions contemplated by this
First Amendment and the Loan Documents as the Lender may
reasonably request.
7. Further Assurances. The Borrowers, at their own cost
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and expense, shall cause to be promptly and duly taken, executed,
acknowledged and delivered all such further acts, documents and
assurances as the Lender may from time to time request in order
more effectively to carry out the intent and purposes of this
First Amendment and the transactions contemplated by this First
Amendment including, without limitation, amendments to each or
any of the Loan Documents consistent with the intent and purposes
of this First Amendment. Promptly upon request by the Lender,
the Borrowers agree to execute and deliver and to file and record
and refile and record such financing statements and amendments
and other assignments and other documents in such manner, at such
time or times and in such place or places as may be required by
any Law and to cause such other actions which may be required by
any Law or as may be requested by the Lender in order more
effectively to carry out the intent and purposes of this First
Amendment.
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8. Scope of this First Amendment. Except as amended by
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this First Amendment, the provisions of the Loan Agreement shall
remain in full force and effect. The Loan Documents shall
likewise remain in full force and effect. The Loan Agreement and
this First Amendment shall be construed as complementing each
other and, except as specifically amended by this First
Amendment, augmenting and not restricting the Lender's rights,
and the Loan Agreement shall remain in full force and effect in
accordance with its terms. The Borrowers hereby ratify, confirm
and reaffirm, without condition, all liens and security interests
granted to the Lender pursuant to the Loan Agreement and the Loan
Documents, and such liens and security interests shall continue
to secure the Secured Obligations. Except as expressly provided
in this First Amendment, the Lender has not agreed to any
amendment or modification to the Loan Agreement or to any of the
Loan Documents or to any departure by the Borrowers from their
due performance under the Loan Agreement or under any of the Loan
Documents. The rights and remedies of the Lender under the Loan
Agreement, as amended by this First Amendment, and the Loan
Documents shall survive the execution and delivery of this First
Amendment and the Lender may exercise such rights and remedies
with respect to any such defaults at any time and from time to
time.
9. Miscellaneous. The following provisions shall apply to
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this First Amendment:
(a) References. All notices, communications,
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agreements, certificates, documents or other instruments
executed and delivered after the execution and delivery of
this First Amendment may refer to the Loan Agreement without
making specific reference to this First Amendment, but
nevertheless all such references shall include this First
Amendment unless the context requires otherwise.
(b) Counterparts. This First Amendment may be
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executed in as many different counterparts as may be
convenient to the parties hereto, each of which when
executed by the Borrowers and the Lender shall be regarded
as an original and all such counterparts shall constitute
but one First Amendment.
14. Costs and Expenses. The Borrowers will pay all costs
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and expenses of the Lender (including, without limitation, the
reasonable fees and the disbursements of the Lender's counsel) in
connection with the preparation, execution and delivery of this
First Amendment.
15. Governing Law. This First Amendment and the rights and
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obligations hereunder shall be construed in accordance with and
governed by the laws of the Commonwealth of Pennsylvania.
16. Headings. The headings of this First Amendment are for
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purposes of reference only and shall not limit or otherwise
affect the meaning thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties, by their duly authorized
officers, have executed this First Amendment to Loan Agreement as
of the day and year first above written.
ATTEST: UNI-MARTS, INC.
/s/ Xxxxx X. Xxxxxx /s/ N. Xxxxxxx Xxxxxxx
------------------------------ By:---------------------------
Xxxxx X. Xxxxxx N. Xxxxxxx Xxxxxxx
Name:------------------------- Name:-------------------------
Secretary Title: Executive Vice President and
Chief Financial Officer
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ATTEST UNI-MARTS OF AMERICA, INC.
/s/ Xxxxx X. Xxxxxx /s/ N. Xxxxxxx Xxxxxxx
------------------------------ By:---------------------------
Xxxxx X. Xxxxxx N. Xxxxxxx Xxxxxxx
Name:------------------------- Name:-------------------------
Secretary Title: President
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THE PROVIDENT BANK
/s/ Xxxxxx X. Xxxxxxx
By:---------------------------
Xxxxxx X. Xxxxxxx
Name:-------------------------
Title: Senior Vice President
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