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LOAN AGREEMENT
DATED AS OF APRIL 20, 2000
BETWEEN
UNI-MARTS, INC. and its
CONSOLIDATED SUBSIDIARIES
AND
THE PROVIDENT BANK
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS 1.
1.01 Certain Definitions 1.
1.02 Construction 10.
1.03 Accounting Principles 11.
ARTICLE II. THE CREDITS 11.
2.01 Revolving Credit Loans 11.
2.02 Interest Rates 12.
2.03 Interest Payment Dates 17.
2.04 Payments 17.
2.05 Closing Fee 17.
2.06 Unutilized Line Fee 17.
2.07 Other Fees 18.
2.08 Letters of Credit 18.
2.09 Indemnities 19.
2.10 Loan Account 20.
2.11 Termination and Termination Fee 20.
2.12 Financing Statements 21.
ARTICLE III. REPRESENTATIONS AND WARRANTIES 21.
3.01 Organization and Qualification 21.
3.02 Power to Carry on Business; Licenses 21.
3.03 Authority and Authorization 21.
3.04 Execution and Binding Effect 22.
3.05 Absence of Conflicts 22.
3.06 Authorizations and Filings 22.
3.07 Ownership and Control 22.
3.08 Officers and Directors of the Borrower 23.
3.09 Subsidiaries 23.
3.10 Business 23.
3.11 Title to Property 23.
3.12 Financial Statements; Projections 23.
3.13 Taxes 24.
3.14 Contracts 24.
3.15 Litigation 24.
3.16 Compliance with Laws 24.
3.17 Pension Plans 24.
3.18 Patents, Licenses, Franchises 24.
3.19 Environmental Matters 25.
3.20 Proceeds 26.
3.21 Margin Stock 26.
3.22 No Event of Default; Compliance with Agreements 26.
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3.23 No Material Adverse Change 26.
3.24 Accurate and Complete Disclosure 26.
3.25 Security Interest 26.
3.26 Inventory Warranties 27.
3.27 Account Warranties 27.
ARTICLE IV. CONDITIONS OF LENDING 28.
4.01 Initial Loans 28.
4.02 Each Additional Loan 31.
ARTICLE V. AFFIRMATIVE COVENANTS 31.
5.01 Reporting and Information Requirements 31.
5.02 Preservation of Existence and Franchises 34.
5.03 Insurance 34.
5.04 Maintenance of Properties 35.
5.05 Payment of Liabilities 35.
5.06 Financial Accounting Practices 35.
5.07 Compliance with Laws 36.
5.08 Pension Plans 36.
5.09 Continuation of and Change in Business 36.
5.10 Use of Proceeds 36.
5.11 Sufficient Balances in Lender Accounts 36.
5.12 Lockbox 36.
5.13 Lien Searches 37.
5.14 Further Assurances 37.
ARTICLE VI. NEGATIVE COVENANTS 37.
6.01 Liens 37.
6.02 Debt 38.
6.03 Guarantees and Contingent Liabilities 38.
6.04 Loans and Investments 38.
6.05 Dividends and Related Distributions 39.
6.06 Leases 39.
6.07 Merger; Consolidation; Business Acquisitions 39.
6.08 Dispositions of Assets 39.
6.09 Self-Dealing 39.
6.10 Margin Stock 40.
6.11 Consolidated Tax Returns 40.
6.12 Capital Expenditures 40.
6.13 Financial Maintenance Covenants 40.
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ARTICLE VII. DEFAULTS 41.
7.01 Events of Default 41.
7.02 Consequences of an Event of Default 44.
7.03 Set-Off 45.
ARTICLE VIII. MISCELLANEOUS 45.
8.01 Holidays 45.
8.02 Records 45.
8.03 Amendments and Waivers 45.
8.04 No Implied Waiver: Cumulative Remedies 46.
8.05 Notices 46.
8.06 Expenses; Taxes; Attorneys' Fees 47.
8.07 Severability 47.
8.08 Governing Law; Consent to Jurisdiction 48.
8.09 Prior Understandings 48.
8.10 Duration; Survival 48.
8.11 Term of Agreement 48.
8.12 Counterparts 48.
8.13 Successors and Assigns 48.
8.14 No Third Party Beneficiaries 48.
8.15 Participation 49.
8.16 Exhibits 49.
8.16 Headings 49.
8.18 Joinder of Consolidated Subsidiaries 49.
8.19 WAIVER OF TRIAL BY JURY 49.
EXHIBITS
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Exhibit "A" Revolving Credit Note
Exhibit "B" Loan Request
Exhibit "C" Borrowing Base Certificate
Exhibit "D" Opinion of Counsel
Exhibit "E" Compliance Certificate
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SCHEDULES
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Schedule 3.01 Organization and Qualification
Schedule 3.07 Ownership and Control
Schedule 3.08 Officers and Directors of the Borrower
Schedule 3.09 Subsidiaries
Schedule 3.12 Financial Statements; Projections
Schedule 3.15 Litigation
Schedule 3.17 Pension Plans
Schedule 3.18 Patents, Trademarks, Franchises
Schedule 3.19 Environmental Matters
Schedule 3.26 Inventory Warranties
Schedule 6.01 Liens
Schedule 6.02 Debt
Schedule 6.04 Loans and Investments
Schedule 6.09 Self-Dealing
APPENDICES
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Appendix 1 List of Mortgaged Properties
Appendix 2 List of Collateral Locations
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LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of April 20, 2000, by and
between UNI-MARTS, INC., a Delaware corporation ("Uni-Marts"),
each of the Consolidated Subsidiaries of Uni-Marts, initially Uni-
Marts of America, Inc., and each other Consolidated Subsidiary
which joins this Agreement as a Borrower after the date hereof
pursuant to Section 8.18 of this Agreement (the "Consolidated
Subsidiaries") (Uni-Marts and the Consolidated Subsidiaries are
individually called a "Borrower" and collectively called the
"Borrowers"),
A
N
D
THE PROVIDENT BANK, a bank chartered under the laws of the
State of Ohio (the "Lender");
RECITALS:
The Borrowers have requested that the Lender provide the
Borrowers with certain loans and other financial accommodations as
described in this Agreement. The Lender is willing to provide
such financing on the terms, and subject to the conditions, set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants contained in this Agreement, and intending to be
legally bound, the parties agree as follows:
ARTICLE I
DEFINITIONS
------------
1.01 Certain Definitions. In addition to other words and
terms defined elsewhere in this Agreement or in the other Loan
Documents, the following words and terms have the following
meanings, respectively, unless the context otherwise clearly
requires:
"Affiliate" means any person or entity that directly or
indirectly controls, or is controlled by, or is under common
control with, a Borrower. For each individual who is an Affiliate
within the meaning of the foregoing, the term "Affiliate" shall
include any other individual related to such Affiliate by
consanguinity within the second degree or in a step or adoptive
relationship within such second degree or related by affinity
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with such Affiliate or any such individual, and any person
directly or indirectly controlled by any of the foregoing. The
term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of a person or entity, whether through the ownership of
voting securities, by contract or otherwise. "Affiliate" does not
include Uni-Realty of Wilkes-Barre, L.P., Uni-Realty of Luzerne,
L.P., Uni-Realty of Wilkes Barre, Inc. or Uni-Realty of Luzerne,
Inc.
"Agreement" means this Loan Agreement as amended, modified or
supplemented from time to time.
"Bankruptcy Code" shall mean 11 U.S.C. 101 et. seq. as the
same may be modified or amended from time to time.
"Borrower" or "Borrowers" means one or more of Uni-Marts or
the Consolidated Subsidiaries, as the context may require.
"Borrowing Base" has the meaning assigned to that term in
Section 2.01(c) of this Agreement.
"Business Day" means any day other than a Saturday, Sunday,
public holiday under the laws of the Commonwealth of Pennsylvania
or the State of Ohio or other day on which the Lender is not open
for business in Cincinnati, Ohio.
"Capital Expenditure" means any expenditure made or liability
incurred which is, in accordance with GAAP, treated as a capital
expenditure and not as an expense item for the year in which it
was made or incurred, as the case may be.
"Capitalized Lease Obligations" means any amount payable with
respect to any lease of any tangible or intangible property
(whether real, personal or mixed), however denoted, which is
required by GAAP to be reflected as a liability on the face of the
balance sheet of the lessee.
"Closing Date" means April 20, 2000 or such other date upon
which the parties may agree.
"Code" means the Uniform Commercial Code as in effect on the
date of this Agreement and as amended from time to time, of the
state or states having jurisdiction with respect to all or any
portion of the collateral granted or assigned to the Lender from
time to time under or in connection with this Agreement.
"Common Stock" means Uni-Mart's Common Stock, $.10 par value
per share.-
"Consolidated Subsidiary" or "Consolidated Subsidiaries"
means any Subsidiary whose financial results of operations are
consolidated with those of Uni-Marts.
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"Corresponding Source of Funds" means in the case of any Rate
Segment of the Euro-Rate Portion of the Loans, the proceeds of
hypothetical receipts by a Notional Euro-Rate Funding Office or by
the Lender through a Notional Euro-Rate Funding Office of one or
more dollar deposits in the interbank eurodollar market at the
beginning of the Rate Period corresponding to such Rate Segment,
having maturities approximately equal to such Euro-Rate Period and
in aggregate amount approximately equal to such Rate Segment.
"Debt" means (i) indebtedness or liability for borrowed
money, or for the deferred purchase price of property or services
(including trade obligations) whether such indebtedness or
liability is matured or unmatured, liquidated or unliquidated,
direct or contingent, and joint or several; (ii) Capitalized Lease
Obligations; (iii) current liabilities in respect of unfunded
vested benefits under any Plan; (iv) obligations under letters of
credit; (v) all guaranties, endorsements (other than for
collection or deposit in the ordinary course of business), and
other contingent obligations to purchase, to provide funds for
payment, to supply funds to invest in any person or entity, or
otherwise to assure a creditor against loss; and (vi) obligations
secured by any lien on property owned by such person or entity,
whether or not the obligations have been assumed.
"EBITDA" means, for any period, the consolidated Net Income
of Borrowers for such period plus the depreciation, amortization,
Interest Expense, Income Tax Expense and other non-cash expenses
deducted from income to determine Net Income for such period,
calculated in accordance with GAAP.
"Eligible Locations" means all locations where Collateral is
stored, more particularly described on Appendix 2 to this
Agreement, provided that the Lender shall have received from the
landlord of such premises a landlord's waiver satisfactory in form
and substance to the Lender.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974 as in effect as of the date of this Agreement and as
amended from time to time in the future.
"Euro-Rate Reserve Percentage" for any day shall mean the
percentage (rounded upward to the nearest 1/100 of 1%), as
determined in good faith by the Lender (which determination shall
be conclusive) as representing for such day the maximum effective
reserve requirement (including without limitation supplemental,
marginal and emergency requirements)?for member banks of the
Federal Reserve System with respect to eurocurrency funding
(currently referred to as "Eurocurrency liabilities") of any
maturity. Each Euro-Rate Loan shall be adjusted automatically as
of the effective date of any change in the Euro-Rate Reserve
Percentage.
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"Euro-Rate" shall mean with respect to the Loans comprising
any Rate Segment to which the Euro-Rate Option applies for any
Rate Segment, the interest rate per annum determined by the Lender
by dividing (the resulting quotient rounded upward to the nearest
1/100 of 1% per annum) (i) the rate of interest determined by the
Lender in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be
either (x) the average of the London interbank offered rates set
forth on the "LIBO" page of Reuters Monitor Money Rate Service for
U.S. Dollars quoted by the British Banker's Association (or
appropriate successor or, if Reuters or its successor ceases to
provide such quotes, a comparable replacement as determined by the
Lender) two (2) Business Days prior to the first day of such Rate
Period for an amount comparable to such Rate Segment and having a
borrowing date and a maturity comparable to such Rate Period or
(y) equal to the offered rates for deposits in Dollars for the
applicable Euro-Rate Rate Period which appear on Page 3750 of the
TELERATE rate reporting system or other similar system as of
approximately 11:00 a.m. Greenwich Mean Time, two (2) Business
Days prior to the first day of such Euro-Rate Rate Period for an
amount comparable to such Loan and having a borrowing date and a
maturity comparable to such Rate Period, by (ii) a number equal to
1.00 minus the Euro-Rate Reserve Percentage. The Euro-Rate may
also be expressed by the following formula:
[Average of London interbank offered rates on LIBO
page of Reuters Monitor Money Rate Service or appropriate
Euro-Rate = successor] or [Offered rate on TELERATE page 3750 or
appropriate successor]
----------------------------------------------------------
1.00 - Euro-Rate Reserve Percentage
"Event of Default" means any of the Events of Default
described in Section 7.01 of this Agreement.
"Expiration Date" means April 20, 2003, unless extended in
writing by the Lender in its sole and absolute discretion.
"FFCA Indebtedness" shall have the meaning ascribed to that
term in Section 6.02.
"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, and
(iii) dividends and other distributions made during the period (to
the extent permitted under this Agreement).
"GAAP" means generally accepted accounting principles (as
such principles may change from time to time) applied on a
consistent basis (except for changes in application in which the
Borrowers' independent certified public accountants concur).
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"Income Tax Expense" means, for any period, the consolidated
income tax expense of Borrowers for such period as reflected on
the consolidated financial statements of Borrowers for such
period, calculated in accordance with GAAP.
"Interest Coverage Ratio" means, for any period, (A) EBITDA
divided by (B) Interest Expense.
"Interest Expense" means, for any period, the consolidated
interest expense for Borrowers as reflected on the consolidated
financial statements of Borrowers for such period calculated in
accordance with GAAP.
"Interest Rate Option" has the meaning given to it in Section
2.02.
"Law" means any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction,
writ, decree or award of any Official Body.
"Lease Obligation" means an obligation of a lessee under a
lease of any tangible or intangible property (whether real,
personal or mixed), including without limitation, with respect to
any period under any such lease, the aggregate amounts payable by
such lessee to or on behalf of the lessor for such period,
including, without limitation, property taxes, insurance, interest
and amortized charges which such lessee is required to pay
pursuant to such lease. Whenever it is necessary to determine the
amount of Lease Obligations for any period with respect to which
any of the rentals under the relevant lease are not definitely
determinable by the terms of the lease, all such rentals will be
estimated in a reasonable amount for such period.
"Lender" means The Provident Bank, a bank chartered under the
laws of the State of Ohio, having an office at 1111 Superior
Avenue, Cleveland, Ohio 44114-2522.
"Letters of Credit" has the meaning assigned to that term in
Section 2.08 of this Agreement.
"Lien" means any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security
arrangement of any nature, including, but not limited to, any
conditional sale or title retention arrangement, and any
assignment, deposit arrangement or lease intended as, or having
the effect of, security.
"Loan Document" or "Loan Documents" mean, singularly or
collectively as the context may require, (i) this Agreement, (ii)
the Notes, (iii) the Security Agreement, (iv) the UCC-1 financing
statements filed in accordance with the Security Agreement, (v)
the Mortgages, (vi) applications for Letters of Credit, and any
and all other documents, instruments, certificates and agreements
executed and delivered in
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connection with this Agreement, as any of them may be amended,
modified, extended or supplemented from time to time.
"Loan" or "Loans" means the Revolving Credit Loans and any
other loan or loans made by the Lender to the Borrowers under this
Agreement.
"Loan Request" shall have the meaning ascribed to that term
in Section 2.01(b).
"London Business Day" ?shall mean a day for dealing in
deposits in United States dollars by and among banks in the London
interbank market.
"Material Adverse Change" shall mean any set of circumstances
or events which (a) has or could reasonably be expected to have
any material adverse effect whatsoever upon the validity or
enforceability of this Agreement or any other Loan Document, (b)
is or could reasonably be expected to be material and adverse to
the business, properties, assets, financial condition, results of
operations or prospects of the Borrowers taken as a whole, (c)
impairs materially or could reasonably be expected to impair
materially the ability of the Borrowers taken as a whole to duly
and punctually pay or perform their obligations to Lender, or (d)
impairs materially or could reasonably be expected to impair
materially the ability of the Lender, to the extent permitted, to
enforce its legal remedies pursuant to this Agreement or any other
Loan Document.
"Mortgages" means the Mortgages granted now or in the future
by Borrowers on their properties identified from time to time on
Appendix 1 to this Agreement.
"Net Income" means, for any fiscal period, the net income
(after taxes) of the Borrowers, if any, determined in accordance
with GAAP, excluding, however, extraordinary items.
"Note" or "Notes" mean the Revolving Credit Note and any
other note or notes of the Borrowers executed and delivered
pursuant to this Agreement, together with all extensions,
renewals, refinancings or refundings in whole or in part.
"Notional Euro-Rate Funding Office" has the meaning ascribed
to that term in Section 2.02(h).
"Office", when used in connection with the Lender, means its
office located at 1111 Superior Avenue, Cleveland, OH 44114-2522
or such other office of the Lender as the Lender may designate in
writing from time to time.
"Official Body" means any government or political subdivision
or any agency, authority, bureau, central bank, commission,
department or instrumentality of either, or any court, tribunal,
grand jury or arbitrator having proper jurisdiction, in each case
whether foreign or domestic.
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"Plan" means any deferred compensation program, including
both single and multi-employer plans, subject to Title IV of ERISA
and established and maintained for employees of Borrowers or any
Subsidiary or any controlled group of trades or businesses under
common control as defined respectively in Sections 1563 and 414(c)
of the Internal Revenue Code of 1986, as amended, of which the
Borrowers or any Subsidiary is or becomes a party.
"Portion"; "Prime Rate Portion" shall mean at any time the
part, including the whole, of the unpaid principal amount of the
Loans bearing interest at such time under the Prime Rate Option or
at a rate determined by reference to the Prime Rate Option
pursuant to Section 2.02. "Euro-Rate Portion" ?shall mean at any
time the part bearing interest at such time under the Euro-Rate
Option or at a rate determined by reference to the Euro-Rate
Option pursuant to Section 2.02.
"Potential Default" means any event or condition that with
notice or the passage of time would constitute an Event of
Default.
"Prime Rate" means the rate of interest publicly announced
from time to time by the Lender as its prime lending rate, which
may not be the lowest rate of interest available at the Lender.
"Qualified Accounts" means an account receivable, net of any
prepayments, progress payments, deposits and retentions, owing to
a Borrower which met the specifications established from time to
time by the Lender, in its reasonable discretion, at the time it
came into existence and continues to meet such specifications
until it is collected in full. As of the date of this Agreement,
an account receivable, to be a Qualified Account, must meet the
following specifications at the time it comes into existence and
continue to meet such specifications until it is collected in
full:
(a) The account is not more than ninety (90) days from
the date of the invoice therefore;
(b) The account arose from the performance of services
or an outright sale of goods by a Borrower in the ordinary course
of a Borrower's business and such goods have been shipped, or
services provided, to the account debtor and such Borrower has
possession of, or has delivered to the Lender, in the case of
goods, shipping and delivery receipts evidencing such shipment
and, in the case of services, receipts or other evidence
satisfactory to the Lender that such services have been provided,
provided, however, that a bill-and-hold receivable, which
otherwise meets the eligibility criteria for Qualified Accounts,
shall constitute a Qualified Account if the Lender shall have
received from the account debtor a letter agreement, satisfactory
in form and substance to the Lender, confirming the bill-and-hold
arrangement between a Borrower and the account debtor;
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(c) The account is not subject to any prior assignment,
claim, lien, or security interest, and a Borrower will not make
any further assignment of the account or create any further
security interest in the account, nor permit its rights in the
account to be reached by attachment, levy, garnishment or other
judicial process;
(d) The account is not subject to set-off, credit,
allowance or adjustment by the account debtor, except discounts
allowed for prompt payment, and the account debtor has not
complained as to his liability on the account and has not
returned, or retained the right to return, any of the goods from
the sale of which the account arose; provided, however, that the
Lender will advance against any portion of an account which but
for the application of this clause (d) would constitute a
Qualified Account if a Borrower establishes to the Lender's
reasonable satisfaction that such portion is not subject to
setoff, credit, allowance or adjustment by the account debtor and
that the account debtor has expressed its willingness to pay such
portion in accordance with the terms of the account;
(e) The account does not arise from a sale of goods
that are delivered or to be delivered outside the United States of
America, or from a sale of goods to an account debtor domiciled
outside of the United States of America, unless a Borrower has
arranged letter of credit facilities satisfactory to the Lender;
(f) The account arose in the ordinary course of a
Borrower's business and did not arise from the performance of
services or a sale of goods to a creditor, supplier, an employee
or an Affiliate of such Borrower;
(g) The account does not arise with respect to an
account debtor from whom fifty percent (50%) or more of the
accounts are more than ninety days from the date of the invoice
therefore or are otherwise deemed ineligible in accordance with
the eligibility criteria for Qualified Accounts;
(h) The account is not evidenced by chattel paper or an
instrument of any kind or, if such account is evidenced by chattel
paper or an instrument, such chattel paper or instrument has been
collaterally assigned to the Lender pursuant to an assignment in
form and substance reasonably satisfactory to the Lender and is in
the possession of the Lender;
(i) The account does not arise out of contracts with
the United States or any department, agency, or instrumentality of
the United States, unless the Borrower has executed any
instruments and taken any steps required by the Lender in order
that all monies due and to become due under such contracts shall
be assigned to the Lender and notice thereof given to the
government under the Federal Assignment of Claims Act;
(j) The account is not subject to any other prohibition
(under the applicable Law, by contract or otherwise) against its
assignment or requiring notice of
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or consent to any assignment to the Lender, unless all such
required notices have been given, all such required consents have
been received and all other procedures have been complied with
such that such account shall have been duly and validly assigned
to the Lender;
(k) The account does not constitute a finance charge or
lease receivable;
(l) The account debtor with respect to such account is
not located in New Jersey or any other state or jurisdiction
denying creditors access to its courts in the absence of
qualification to transact business in such state of the filing of
a Notice of Business Activities Report or other similar filing,
unless a Borrower has either qualified as a foreign corporation
authorized to transact business in such state or jurisdiction or
has filed a Notice of Business Activities Report or similar filing
with the applicable state or jurisdiction agency for the then
current year;
(m) No notice of bankruptcy, insolvency or material
adverse change of the account debtor has been received by or is
actually known to a Borrower; and
(n) The Lender has not notified a Borrower that the
Lender has determined, in its reasonable discretion, the account
or account debtor is unsatisfactory.
The Lender may require, in its reasonable discretion, that
certain reserves be established against certain accounts
receivable from time to time.
"Qualified Inventory" means inventory which is owned by a
Borrower and held for sale, which is subject to the Lender's
perfected first priority lien and security interest as provided in
the Security Agreement and which is not subject to a prior
security interest held by a third party and which meets the
specifications established by the Lender in its reasonable
discretion from time to time. In no event, however, shall
Qualified Inventory be deemed to include (a) any of a Borrower's
finished goods inventories held pursuant to a consignment
arrangement; (b) any of a Borrower's stores and supplies,
including solvents and spare and machine maintenance parts used in
the general operations and maintenance of the machinery and
equipment of a Borrower; (c) any of a Borrower's work-in-process
inventories; (d) equipment; (e) inventory-in-transit or
inventories not otherwise in a Borrower's possession at one of the
Eligible Locations; (f) inventory produced in violation of the
Fair Labor Standards Act and subject to the "hot goods" provision
contained in Title 29 U.S.C. Section 215(a)(1); or (g) inventory
determined by the Lender, in its reasonable discretion, to be slow
moving, obsolete or not currently usable or salable in the
ordinary course of a Borrower's business; (h) any of a Borrower's
inventories allocated or identified to purchase orders or
contracts received from any customer of such Borrower, as to which
inventories such customer has filed or intends to file UCC
Financing Statements or to otherwise perfect a security interest.
The Qualified Inventory shall be valued, for the
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purposes of this Agreement, at the lower of cost (determined on a
first-in-first-out basis) or market value, as determined by the
retail inventory method.
"Rate Period" shall have the meaning assigned to that term in
Section 2.02(d).
"Rate Segment" of the Euro-Rate Portion at any time shall be
the entire principal amount of such Portion to which at such time
there is applicable a particular Rate Period beginning on a
particular day and ending on another particular day. (By
definition, each Portion is at all times composed of an integral
number of discrete Rate Segments, each corresponding to a
particular Rate Period, and the sum of the principal amounts of
all Rate Segments of a particular Portion at any time equals the
principal amount of such Portion at such time).
"Revolving Credit Loans" has the meaning assigned to that
term in Section 2.01(a) of this Agreement.
"Revolving Credit Note" means the revolving credit note of
the Borrowers executed and delivered pursuant to Section 2.01(b)
of this Agreement, together with all extensions, renewals,
refinancings or refundings in whole or in part.
"Security Agreement" means the Security Agreement dated as of
the date of this Agreement, and as amended, modified or
supplemented from time to time, between the Borrowers and the
Lender.
"Standard Notice" shall mean an irrevocable notice provided
to the Lender on a Business Day which is:
(i) on the same Business Day in the case of the
selection of, conversion to or renewal of the Prime Rate Option or
prepayment of any Prime Rate Portion; or
(ii) at least two (2) London Business Days in
advance in the case of selection of, conversion to or renewal of
the Euro-Rate Option or prepayment of any Euro-Rate Portion.
Standard Notice must be provided no later than 12:00 noon,
New York time, on the last day permitted for such notice.
"Subsidiary" of a Borrower at any time means any corporation
of which a majority of the outstanding capital stock entitled to
vote for the election of directors is at such time owned by a
Borrower and/or one or more Subsidiaries.
"Tangible Net Worth" means, as of the date of determination,
the net worth of the Borrowers, as determined and consolidated in
accordance with GAAP, minus the sum of the Borrowers' goodwill,
deferred costs, notes receivable from Affiliates,
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including officers of the Borrowers, patent (net of amortization)
and other items deemed by the Lender to be intangible in its
reasonable discretion.
"Total Liabilities" means, as of the date of determination,
all items (including taxes accrued as estimated but excluding
taxes which are deferred in accordance with GAAP) which in
accordance with GAAP would be included as liabilities on the
liability side of a consolidated balance sheet of Uni-Marts.
"Uni-Marts" means Uni-Marts, Inc., a Delaware corporation,
having its principal office at 477 East Beaver Avenue, State
College, PA 16801-5690.
"Unutilized Line Fee" has the meaning assigned to that term
in Section 2.06 of this Agreement.
1.02 Construction. Unless the context of this Agreement
otherwise clearly requires, the following rules of construction
shall apply to this Agreement and each of the other Loan
Documents:
(a) references to the plural include the singular, the
plural, the part and the whole; "or" has the inclusive meaning
represented by the phrase "and/or," and "including" has the
meaning represented by the phrase "including without limitation";
(b) the words "hereof," "herein," "hereunder," "hereto"
and similar terms in this Agreement or any other Loan Document
refer to this Agreement or such other Loan Document as a whole and
not to any particular provision of this Agreement or such other
Loan Document;
(c) the section and other headings contained in this
Agreement or such other Loan Document and the Table of Contents
(if any), preceding this Agreement or such other Loan Document are
for reference purposes only and shall not control or affect the
construction of this Agreement or such other Loan Document or the
interpretation thereof in any respect;
(d) article, section, subsection, clause, schedule and
exhibit references are to this Agreement or other Loan Document,
as the case may be, unless otherwise specified; and
(e) reference to any agreement (including this
Agreement and any other Loan Document together with the schedules
and exhibits hereto or thereto), document or instrument means such
agreement, document or instrument as amended, modified, replaced,
substituted for, superseded or restated.
1.03 Accounting Principles. Except as otherwise provided in
this Agreement, all computations and determinations as to
accounting or financial matters and all financial statements to be
delivered pursuant to this Agreement shall be made and
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prepared in accordance with GAAP (including principles of
consolidation where appropriate), and all accounting or financial
terms shall have the meanings ascribed to such terms by GAAP.
[End of Article I]
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ARTICLE II
THE CREDITS
-----------
2.01 Revolving Credit Loans.
(a) Revolving Credit Loans. Subject to the terms and
conditions and relying upon the representations and warranties set
forth in this Agreement, the Security Agreement and the other Loan
Documents, the Lender agrees to make loans (the "Revolving Credit
Loans") to the Borrowers at any time or from time to time on or
after the Closing Date and to and including the day immediately
preceding the Expiration Date in an aggregate principal amount not
exceeding at any one time outstanding the Borrowing Base. If at
any time the sum of all Revolving Credit Loans outstanding plus
the face amount of all outstanding Letters of Credit exceeds the
Borrowing Base, the Borrowers shall immediately repay to the
Lender, in funds immediately available, the amount of such excess
together with all accrued interest on the amount of such
repayment. Within the limits of time and amount set forth in this
Section 2.01, and subject to the provisions of this Agreement,
including, without limitation, the Lender's right to demand
repayment of the Revolving Credit Loans upon the occurrence of an
Event of Default, the Borrowers may borrow, repay and reborrow
under this Section 2.01. The Borrowers shall use the proceeds of
the Revolving Credit Loans for general working capital purposes
and to refinance indebtedness to U.S. Bank (Johnstown, PA).
(b) Revolving Credit Note. The obligations of the
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 Closing
Date, in substantially the form attached as Exhibit "A" to this
Agreement, with the blanks appropriately filled. The executed
Revolving Credit Note will be delivered by the Borrowers to the
Lender on the Closing Date.
(c) Borrowing Base. The maximum borrowing 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) Ten Million
Dollars ($10,000,000.00), or (ii) seventy-five percent (75%) of
the aggregate gross amount of Qualified Accounts, plus sixty
percent (60%) of the aggregate value of Qualified Inventory, plus
fifty percent (50%) of the value of the real properties
identified on Appendix 1 to this Agreement, as revised from 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 properties (collectively the "New
Properties") for properties then listed on Appendix 1
(collectively the "Released Properties"), Uni-Marts shall submit
one or more MAI
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Appraisals of such New Properties to Lender (which appraisals
shall be reasonably satisfactory to Lender) or an alternative
valuation acceptable to Lender. 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 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, business, operations or financial condition of the
Borrowers or any individual Borrower.
(d) Making of Revolving Credit Loans. On any Business
Day when Borrowers desire that the Lender make a Revolving Credit
Loan, Uni-Marts shall provide notice to the Lender by completing,
executing and delivering to the Lender, by 12:00 noon New York
time, a completed Loan Request, in the form attached as Exhibit
"B" to this Agreement, and if no Borrowing Base Certificate has
been delivered during the week during which such Borrowing Base
Certificate is submitted, a Borrowing Base Certificate, in the
form attached as Exhibit "C" to this Agreement, setting forth the
borrowing base calculations for the each Borrower and the
Borrowers taken as a whole, together with the appropriate
supporting documentation and evidence and, if necessary to revise
or update information provided in any remittance report required
by the Lender on the Lender's standard form delivered by the
Borrowers at Closing, a revised remittance report. Subject to the
terms and conditions of this Agreement, upon the Lender's review,
approval and processing of the Loan Request, the Borrowing Base
Certificate and any other information requested by the Lender, the
Lender shall make the proceeds of the Revolving Credit Loan
available to the Borrowers at the Lender's Office, on the date
specified in the Loan Request in immediately available funds,
provided that Uni-Marts shall have delivered to the Lender the
Loan Request and any other information requested by the Lender no
later than 12:00 noon prevailing New York time on such specified
date.
2.02 Interest Rates.
(a) Revolving Credit Loans. The unpaid principal
amount of the Revolving Credit Loans shall bear interest for each
day until due on one or more bases selected by the Borrower from
among the interest rate options (the "Interest Rate Options") set
forth below. The Borrowers understand and agree that subject to
the
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provisions hereof the Borrower may select any number of Interest
Rate Options to apply simultaneously to different parts of the
unpaid principal amount of the Loans made to the Borrowers and may
select any number of Rate Segments to apply simultaneously to
different parts of the Euro-Rate Portion.
Interest Rate Options Available for Revolving Credit Loans
----------------------------------------------------------
Prime Rate Option: a rate per annum (computed on the basis of a
year of 360 days and actual days elapsed) for each day equal to the
Prime Rate for such day plus one percent (1.0%).
Euro-Rate Option: for each Rate Segment of the Euro-Rate Portion,
a rate per annum (computed on the basis of a year of 360 days and
actual days elapsed) for each day equal to the Euro-Rate for such
Rate Segment for such day plus 300 basis points.
(b) Interest After Default. After the principal amount
of any part of the Loans shall have become due (at maturity, by
acceleration or otherwise), or upon the occurrence of one or more
of the Events of Default (and for so long as any such Event of
Default shall continue), as compensation to the Lender for the
increased cost of administering the Loans, the Loans which are
then subject to the Prime Rate Option will bear interest for each
day until paid (before and after judgment) at a rate per year
(computed for the actual number of days elapsed on the basis of a
year of 360 days) which will be two percent (2.0%) above the then
current Prime Rate Option, such interest rate to change
automatically from time to time effective as of the effective date
of each change in the Prime Rate. After the occurrence of an
Event of Default, the Euro-Rate Portion shall bear interest for
each day until paid (before and after judgment) until the end of
the applicable then-current Rate Period at a rate per annum 200
basis points above the Euro-Rate Option. After the end of the
applicable then current Rate Period for any Revolving Credit Loan,
interest after an Event of Default shall accrue at a rate per year
(computed for the actual number of days elapsed on the basis of a
year of 360 days) which will be two percent (2.0%) above the then
current Prime Rate Option, such interest rate to change
automatically from time to time effective as of the effective date
of each change in the Prime Rate.
(c) Usury. In the event the rates of interest provided
for in subsections (a) and (b) above or either of them are finally
determined by any Official Body to exceed the maximum rate of
interest permitted by applicable usury or similar Laws, their or
its application will be suspended and there will be charged
instead the maximum rate of interest permitted by such Laws.
(d) Rate Periods. At any time when the Borrowers
select, convert to or renew the Euro-Rate Option the Borrowers
shall fix a period (the "Rate Period") (which shall be one, two,
or three months), during which the Euro-Rate Option shall apply
to the corresponding Rate Segment. Notwithstanding the term of
any Rate
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Period, interest accruing on Revolving Credit Loans which bear
interest at a Euro-Rate Option shall be paid on a monthly basis.
In no event, however, shall a Borrower select a Rate Period that
extends beyond the maturity date of the Loan with respect to which
the Interest Rate Option is being selected.
(e) Selection, Conversion or Renewal of Rate Options.
Subject to the other provisions hereof, the Borrowers may select
any Interest Rate Option to apply to the Loans or any part
thereof. Subject to the other provisions hereof, the Borrowers
may convert any part of the unpaid principal amount of the Loans
from any Interest Rate Option to any other Interest Rate Option
and may renew the Euro-Rate Option as to any Rate Segment: (a) at
any time with respect to conversion from the Prime Rate Option to
the Euro-Rate Option, and (b) at the expiration of any Rate Period
with respect to conversion from or renewals of the Euro-Rate
Option as to the Rate Segment corresponding to such expiring Rate
Period. Whenever the Borrowers desire to select, convert or renew
the Euro-Rate Option, Uni-Marts shall give the Lender Standard
Notice thereof (which shall be irrevocable, except as provided in
subsection (i) below of this Section 2.02), specifying the date,
amount and type of the proposed new Interest Rate Option. If such
notice has been duly given, on and after the date specified in
such notice, interest shall be calculated upon the unpaid
principal amount of the Loans in question taking into account such
selection, conversion or renewal. In no event shall more than
four (4) Rate Segments of the Euro-Rate Option be in effect at any
one time and each Rate Segment of the Euro-Rate Option shall be in
an amount of at least $500,000 and in integral multiples of
$50,000 thereafter.
(f) Prime Rate Fallback. If any Rate Period expires,
any part of the Rate Segment corresponding to such Rate Period
which has not been converted or renewed in accordance with Section
2.02 (e) hereof automatically shall be converted to the Prime Rate
Option.
(g) Indemnity Regarding Euro-Rate Borrowings and
Irrevocable Notices. The Borrowers shall indemnify the Lender
against any loss or expense (including loss of margin) which the
Lender has sustained or incurred as a consequence of:
(i) payment, prepayment or conversion of any part of any
Rate Segment of the Euro-Rate Portion on a day other than the last
day of the corresponding Rate Period (whether or not any such
payment is made before or after the occurrence and during the
continuance of an Event of Default or pursuant to demand or
acceleration by the Lender of the Loans following occurrence and
during the continuance of an Event of Default); or
(ii) the Borrowers' treatment of any irrevocable notice given
pursuant to this Agreement as a revocable notice (except as provided
in subsection (i) of this Section 2.02 below).
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If the Lender sustains any such loss or expense, the Lender shall
from time to time notify the Borrowers of the amount determined in
good faith by the Lender (which determination shall be conclusive
absent manifest error) to be necessary to indemnify the Lender for
such loss or expense. Together with such notice, the Lender shall
furnish to the Borrowers a certificate as to the amount due
setting forth in reasonable detail the reason for and the method
of calculating such loss or expense, such certificate to be
conclusive absent manifest error. Such amount shall be due and
payable by the Borrowers, ten (10) Business Days after
presentation by the Lender of a statement setting forth a brief
explanation of and the Lender's calculation of such amount, which
statement shall be conclusively deemed correct absent manifest
error. Any amount payable to Lender under this Section 2.02 (g)
will bear interest at the Prime Rate plus two percent (2%) per
annum (computed for the actual number of days elapsed on the basis
of a year of 360 days) from the due date until paid (before and
after judgment).
(h) Funding by Branch, Subsidiary or Affiliate.
(1) Notional Funding. The Lender shall have the
right from time to time, prospectively or retrospectively, without
notice to the Borrowers, to deem any branch, subsidiary or
affiliate of the Lender to have made, maintained or funded any
part of the Euro-Rate Portion of the Loans at any time. Any
branch, subsidiary or affiliate so deemed shall be known as a
"Notional Euro-Rate Funding Office". The Lender shall deem any
part of the Euro-Rate Portion of the Loans or the funding
therefore to have been transferred to a different Notional Euro-
Rate Funding Office if such transfer would avoid or cure a
situation in which the Lender declines to permit the Borrowers to
select the Euro-Rate Option because it (i) is unascertainable or
impracticable for the Lender to provide the same or (ii) would
lessen any compensation or indemnity payable to the Lender under
Article II hereof, and if the Lender determines in its sole
discretion that such transfer would be practicable and would not
have a material adverse effect on such part of the Loans, the
Lender or any Notional Euro-Rate Funding Office (it being assumed
for purposes of such determination that each part of the Euro-Rate
Portion of the Loans is actually made or maintained by or funded
through the corresponding Notional Euro-Rate Funding Office).
Notional Euro-Rate Funding Offices may be selected by the Lender
without regard to the Lender's actual methods of making,
maintaining or funding the Loans or any sources of funding
actually used by or available to the Lender.
(2) Actual Funding. The Lender shall have the right
from time to time to make or maintain any part of the Euro-Rate
Portion of the Loans by arranging for a branch, subsidiary or
affiliate of the Lender to make or maintain such part of the Euro-
Rate Portion of the Loans. The Lender shall have the right to (i)
hold any applicable Note payable to its order for the benefit and
account of such branch, subsidiary or affiliate or (ii) request
the Borrowers to issue one or more promissory notes in the
principal amount of such part of the Euro-Rate Portion of the
Loans payable to such branch, subsidiary or affiliate and with
appropriate changes reflecting
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that the holder thereof is not obligated to make any additional
Loans to the Borrower. The Borrowers agree to comply promptly
with any request under this Section 2.04(h). If the Lender causes
a branch, subsidiary or affiliate to make or maintain any part of
the Loans hereunder, all terms and conditions of this Agreement
shall, except where the context clearly requires otherwise, be
applicable to such part of the Loans and to any note payable to
the order of such part of the Euro-Rate Portion of the Loans as if
the Loans were made or maintained by the Lender and such note were
a Note payable to the Lender's order.
(i) Euro-Rate Unascertainable; Impracticability. If
(1) on any date on which a Euro-Rate would otherwise be
set, the Lender shall have in good faith determined (which
determination shall be conclusive) that:
(i) adequate and reasonable means do not exist for
ascertaining such Euro-Rate,
(ii) a contingency has occurred which materially and
adversely affects the interbank eurodollar market, or
(iii) the effective cost to the Lender of funding a proposed
Euro-Rate Segment of Loans from a Corresponding Source of Funds
shall exceed the Euro-Rate applicable to such Segment, or
(2) at any time the Lender shall have determined in
good faith (which determination shall be conclusive) that the
making, maintenance or funding of a particular Euro-Rate Loan has
been made impracticable or unlawful by compliance by the Lender or
a Notional Euro-Rate Funding Office in good faith with any Law,
regulation, order, guideline or interpretation or administration
thereof by any official Body charged with the interpretation or
administration thereof or with any request or directive of any
such Official Body (whether or not having the force of law); then,
and in any such event, the Lender shall notify the Borrowers of
such determination. Upon such date as shall be specified in such
notice (which shall not be earlier than the date such notice is
given) the obligation of the Lender to allow the Borrowers to
select the Euro-Rate Option for any Rate Segment of any Loans, in
any amount in case of a determination under Clause (1) above, or
in excess (in case of a determination under Clause (2) above) of
the amount of such Loans (if any) which is not determined to be
impracticable or unlawful shall be suspended until the Lender
shall have notified the Borrowers of the determination by the
Lender in good faith (which determination shall be conclusive)
that the circumstances giving rise to such previous determination
no longer exist.
If the Lender notifies the Borrowers of a determination under
subsection (2) of this Section 2.02(i), the Euro-Rate Loan or Loans, if any,
in excess of
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the amount (if any) not determined to be impracticable or unlawful
shall be due and payable on the date specified in such notice
(provided that the Borrowers shall owe no indemnification
obligation to the Lender pursuant to Section 2.09). Absent
contrary notice from the Borrowers to the Lender by 12:00 o'clock
noon, New York time, on such date, the Borrowers shall be deemed
to have given the Lender proper notice to the effect that the
Borrowers request that the Lender make Loans at such time at the
Prime Rate Option in principal amounts equal to the principal
amounts becoming due and payable pursuant to the preceding
sentence.
If at any time the Lender makes a determination under
subsection (1) or (2) of this Section 2.02(i) and the Borrowers
have previously notified the Lender that they wish to select the
Euro-Rate Option for a Portion of new Loans, including Loans being
converted or renewed at the Euro-Rate Option, but such Loans have
not yet been made, such notification shall be deemed to request
the making of a Portion of the Loans at the Prime Rate Option
instead of the Euro-Rate Option, unless the Borrowers promptly
(after notice by the Lender of a determination under subsection
(1) or (2) of this Section 2.02(i) elects to cancel the notice to
make a Portion of new Loans by giving notice of cancellation to
the Lender.
2.03 Interest Payment Dates. Interest on the Loans to which
the Prime Rate Option applies will be due and payable on the first
day of each month in arrears. Interest on the Loans to which the
Euro-Rate Option applies shall be due and payable on the last day
of the Rate Period for those Loans. Interest will be deducted
from a Borrower's demand or deposit accounts with the Lender on
the due date. After maturity of any part of the Loans (at
maturity, by acceleration or otherwise), interest on such part of
the Loans will be due and payable on demand.
2.04 Payments. All payments to be made in respect of
principal, interest, fees or other amounts due from the Borrowers
under this Agreement or under the Notes are payable at 12:00 noon,
New York time, on the day when due, without presentment, demand,
protest or notice of any kind, all of which are expressly waived,
and an action for the payments will accrue immediately. All such
payments must be made to the Lender at its Office in U.S. dollars
and in funds immediately available at such Office, without setoff,
counterclaim or other deduction of any nature. All such payments
shall be applied at the option of the Lender to accrued and unpaid
interest, outstanding principal and other sums due under this
Agreement in such order as the Lender, in its sole discretion,
shall elect.
2.05 Closing Fee. The Borrowers have paid the Lender a
closing fee with respect to the Loans equal to Fifty Thousand
Dollars ($50,000.00).
2.06 Unutilized Line Fee. The Borrowers shall pay to the
Lender monthly, during the term of this Agreement (or at the end
of the term of this Agreement), a fee (the "Unutilized Line Fee")
with respect to the unused portion of the Lender's commitment to
make the Revolving Credit Loans equal to one quarter of one
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percent (.25%) per year (based on a 360 day year) of the average
unused portion of the Lender's commitment to make the Revolving
Credit Loans for the preceding calendar month period (or portion
thereof). The unused portion of the Lender's commitment to make
the Revolving Credit Loans shall, for the purpose of calculating
the Unutilized Line Fee pursuant to this Section 2.06, be deemed
to be, for any day during the term of this Agreement, the
difference between Ten Million Dollars ($10,000,000.00) and the
principal amount of the Revolving Credit Loans outstanding plus
the aggregate face or stated amount of Letters of Credit
outstanding.
2.07 Other Fees.
(a) Audit Fees. The Borrowers shall pay to the
Lender an audit fee of One Thousand Dollars ($1,000.00) per
auditor per day for each audit of the Borrowers' assets, books and
records conducted by the Lender. Notwithstanding the foregoing ,
so long as no Event of Default shall have occurred and is
continuing, (i) the aggregate audit fee shall not exceed Two
Thousand Five Hundred Dollars ($2,500.00) for each audit and (ii)
the Borrowers shall not be required to pay an audit fee more than
once during any twelve (12) month period.
(b) Letter of Credit Fees. The Borrowers shall pay to
the Lender in connection with the issuance of any standby Letter
of Credit an issuance fee equal to one-quarter-of-one-percent
(.25%) ("Issuance Fee") and an annual fee equal to one-and-one-
half-percent (1.50%) per year (computed for the actual number of
days elapsed on the basis of a year of 360 days) ("Annual Fee")
based on the face amount of the standby Letter of Credit issued.
Issuance Fees shall be paid in full at the time of issuance of any
such standby Letter of Credit. Borrowers shall also pay from time
to time any other customary amendment, extension and termination
fees as determined by the Lender from time to time. The Issuance
Fee shall not apply upon the automatic extension of Letters of
Credit that contain terms that automatically extend their expiry
absent a notice to the contrary from Lender. The Annual Fee shall
be payable on a per year basis at the beginning of each year.
2.08 Letters of Credit. Relying on the representations and
warranties set forth in this Agreement, and subject to such terms
and conditions as the Lender may from time to time require
(including without limitation conditions analogous to the
conditions set forth in Article IV of this Agreement, and the
execution and delivery by the Borrowers of the Lender's standard
form of the letter of credit application in such form as shall be
acceptable to the Lender), the Lender agrees to issue letters of
credit (in such form as shall be reasonably acceptable to the
Lender) for the account of the Borrowers and for the benefit of
customers or suppliers of the Borrowers in aggregate face or
stated amount at any time outstanding not exceeding Three Million
Five Hundred Thousand Dollars ($3,500,000); provided, however,
that the aggregate face or stated amount of Letters of Credit at
any time outstanding (less any draws under the Letters of Credit
which have been reimbursed by the Borrowers) plus the aggregate
principal amount of all Revolving Credit Loans made or extended
pursuant to this
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Agreement at any time outstanding shall not exceed the Borrowing
Base. The Borrowers shall be obligated immediately to reimburse
the Lender for all amounts which the Lender is required to advance
pursuant to the Letters of Credit. Such amounts advanced shall
become, at the time the amounts are advanced, Revolving Credit
Loans from the Lender and shall bear interest at the Prime Rate
Option. No Letter of Credit (or amendment thereof) shall expire
later than the Expiration Date). On the date when the Loans shall
be due and payable (by demand or otherwise), the Borrowers shall
deposit funds with the Lender in an amount equal to the aggregate
face or stated amount of Letters of Credit at that time
outstanding (less any draws under the Letters of Credit which have
been reimbursed by the Borrowers) to be held by the Lender as
additional collateral to reimburse the Lender for any draws under
such Letters of Credit for so long as and to the extent such
Letters of Credit remain outstanding.
2.09 Indemnities.
(a) General Indemnities. The Borrowers will indemnify
the Lender against any loss or expense which the Lender sustains
or incurs as a consequence of an Event of Default, including,
without limitation, any failure of the Borrowers to pay when due
(at maturity, by acceleration or otherwise) any principal,
interest, fee or any other amount due under this Agreement, or the
Notes or the other Loan Documents. If the Lender sustains or
incurs any such loss or expense it will from time to time notify
the Borrowers in writing of the amount determined in good faith by
the Lender (which determination will be conclusive) to be
necessary to indemnify the Lender for the loss or expense. Such
amount will be due and payable by the Borrowers to the Lender
within ten (10) days after presentation by the Lender of a
statement setting forth an explanation in reasonable detail of and
the Lender's calculation of such amount, which statement shall be
conclusively deemed correct absent manifest error. Any amount
payable to the Lender under this Section 2.09 will bear interest
at the Prime Rate plus three percent (3.0%) per year (computed for
the actual number of days elapsed on the basis of a year of 360
days) from the due date until paid (before and after judgment).
(b) Loss of Margin. In the event that any law,
regulation, treaty or official directive or the interpretation or
application thereof by any Official Body or the compliance with
any guideline or request of any central bank or other Official
Body (whether or not having the force of law):
(i) subjects the Lender to any tax with respect to any amounts
payable under this Agreement, the Notes or the other
Loan Documents by the Borrowers or otherwise with
respect to the transactions contemplated under this
Agreement, the Notes or the other Loan Documents (except
for taxes on the overall net income of the Lender
imposed by the United States of America, any
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foreign government or any political subdivision of any of them),
or
(ii) imposes, modifies or deems applicable any deposit insurance,
reserve, special deposit, capital maintenance or similar
requirement against assets held by, or deposits in or for the
account of, or loans or advances or commitment to make loans
or advances by, or letters of credit issued or commitment to
issue letters of credit by, the Lender, or
(iii)imposes upon the Lender any other condition with respect to
the Loans or the commitment to make Loans made under this
Agreement,
and the result of any of the foregoing is to increase the costs of
the Lender, reduce the income receivable by or return on equity of
the Lender or impose any expense upon the Lender with respect to
any Loans or commitments to make Loans under this Agreement, the
Lender shall so notify the Borrowers in writing. The Borrowers
agree to pay the Lender the amount of such increase in cost,
reduction in income, reduced return on equity or additional
expense within ten (10) days after presentation by the Lender of a
statement concerning such increase in cost, reduction in income,
reduced return on equity or additional expense. Such statement
shall set forth a brief explanation of the amount and the Lender's
calculation of the amount (in determining such amount the Lender
may use any reasonable averaging and attribution methods), which
statement shall be conclusively deemed correct absent manifest
error. If the amount set forth in such statement is not paid
within ten (10) days after such presentation of such statement,
interest will be payable on the unpaid amount at the Prime Rate
plus three percent (3.0%) per year (computed for the actual number
of days elapsed on the basis of a year of 360 days) from the due
date until paid (before and after judgment).
2.10 Loan Account. The Lender will open and maintain on its
books a loan account (the "Loan Account") with respect to Loans
made, repayments, prepayments, the computation and payment of
interest and fees and the computation and final payment of all
other amounts due and sums paid to the Lender under this
Agreement. Except in the case of manifest error in computation,
the Loan Account will be conclusive and binding on the Borrowers
as to the amount at any time due to the Lender from the Borrowers
under this Agreement or the Notes.
2.11 Termination and Termination Fee.
(a) The credit facilities made available to the
Borrowers under this Agreement (the "Credit Facilities") are
terminable by the Lender at its discretion upon the occurrence of
an Event of Default under this Agreement.
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(b) The Credit Facilities, if not sooner terminated,
will automatically terminate on the Expiration Date, unless
extended in writing by the Lender in its sole and absolute
discretion. In the event that the Credit Facilities are
terminated at any time prior to the second anniversary of the
Closing Date for any reason, including, without limitation,
prepayment (but excluding repayments and reborrowing of Revolving
Credit Loans in the ordinary course of business pursuant to
Section 2.01 of this Agreement) or refinancing of the Credit
Facilities from any source, the Borrowers shall pay to the Lender
a termination fee equal to One Hundred Thousand Dollars ($100,000)
(one percent (1%) of the maximum principal amount of the Credit
Facilities made available to the Borrowers as of the date of this
Agreement).
(c) Except as provided in the preceding subsection, the
Borrowers may prepay the Credit Facilities in full and terminate
the Credit Facilities made available to the Borrowers under this
Agreement at any time without premium or penalty, provided that
any such payment in full shall be accompanied by payment of all
accrued interest, costs, fees and expenses accrued to the date of
prepayment. In the event the Credit Facilities are terminated for
any reason, the outstanding balance of the Loans, together with
any accrued and unpaid interest thereon and any other sums due
pursuant to the terms of this Agreement, the Notes, the other Loan
Documents and any other credit accommodation made by the Lender to
the Borrowers shall be due and payable immediately.
2.12 Financing Statements. Promptly upon request by the
Lender, the Borrowers agree to execute all financing statements
describing the property in which the Lender has a security
interest under the Security Agreement. The Borrowers irrevocably
appoint the Lender as their agent and attorney to execute any such
financing statements in the Borrowers' name. The Borrowers
further agree that a carbon, photographic or other reproduction of
a financing statement or the Security Agreement is sufficient as a
financing statement and may be filed as such.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrowers jointly and severally represent and warrant to
the Lender with respect to each Borrower that:
3.01 Organization and Qualification. The Borrower is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. The Borrower
is duly qualified or licensed to do business as a foreign
corporation and is in good standing in all jurisdictions in which
the ownership of its properties or the nature of its activities or
both makes such qualification or licensing necessary except where
the failure to be so qualified or licensed would not have a
material and adverse effect on the assets, business,
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operations or financial condition of the Borrower or the ability
of the Borrower to perform its obligations under this Agreement,
the Notes and the other Loan Documents. Schedule 3.01 to this
Agreement states as of the Closing Date the jurisdiction of
incorporation of the Borrower and the jurisdiction in which the
Borrower is qualified to do business as a foreign corporation.
The sole business of Uni-Realty of Wilkes-Barre, L.P. and Uni-
Realty of Luzerne, L.P. is the ownership and lessor under a
certain Master Lease of real property and improvements acquired
from Orloski Service Station, Inc.
3.02 Power to Carry on Business; Licenses. The Borrower has
all requisite power and authority to own and operate its
properties and to carry on its business as now conducted and as
presently planned to be conducted in all material respects. The
Borrower has all licenses, permits, consents and governmental
approvals or authorizations necessary to carry on its business as
now conducted except where the failure to have any such license,
permit, consent, approval or authorization would not have a
material and adverse effect on the assets, business, operations or
financial condition of the Borrower or the ability of the Borrower
to perform its obligations under this Agreement, the Notes and the
other Loan Documents.
3.03 Authority and Authorization. The Borrower has corporate
power and authority to execute and deliver this Agreement, the
Notes, the Security Agreement, the Mortgages and the other Loan
Documents executed by the Borrower, to make the borrowings
provided for in this Agreement, to execute and deliver the Notes
in evidence of such borrowings and to perform its obligations
under this Agreement, the Notes, the Security Agreement, the
Mortgages and the other Loan Documents. All such action has been
duly and validly authorized by all necessary corporate proceedings
on the part of the Borrower.
3.04 Execution and Binding Effect. This Agreement, the
Notes, the Security Agreement, the Mortgages and the other Loan
Documents have been duly and validly executed and delivered by the
Borrower and each such document or agreement constitutes a legal,
valid and binding obligation of the Borrower enforceable in
accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, or other similar laws affecting
creditors' rights generally and by general equitable principles
(regardless if whether the issue of enforceability is considered
in a proceeding in equity or at law).
3.05 Absence of Conflicts. Neither the execution and
delivery of this Agreement, the Notes, the Security Agreement, the
Mortgages or the other Loan Documents, nor the consummation of the
transactions contemplated in any of them, nor the performance of
or compliance with their terms and conditions will (a) violate any
applicable Law, (b) conflict with or result in a breach of or a
default under the articles of incorporation or by-laws of the
Borrower or any agreement or instrument to which the Borrower is a
party or by which it or any of its properties (now owned or
acquired
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in the future) may be subject or bound or (c) result in the
creation or imposition of any Lien upon any property (now owned or
acquired in the future) of the Borrower, other than Liens granted
in favor of the Lender.
3.06 Authorizations and Filings. No authorization, consent,
approval, license, exemption or other action by, and no
registration, qualification, designation, declaration or filing
with, any Official Body is or will be necessary or advisable in
connection with the execution and delivery of this Agreement, the
Notes, the Security Agreement, the Mortgages or the other Loan
Documents, the consummation of the transactions contemplated in
any of them, or the performance of or compliance with the terms
and conditions of this Agreement, the Notes, the Security
Agreement, the Mortgages or the other Loan Documents.
3.07 Ownership and Control. Schedule 3.07 to this Agreement
states as of the Closing Date the authorized capitalization of the
Borrower (including capital stock of the Borrower held in
Treasury), the number of shares of each class of capital stock
issued and outstanding of the Borrower and the number and
percentage of outstanding shares of each such class of capital
stock and the names of the record and beneficial owners of such
shares. The outstanding shares have been duly authorized and
validly issued and are fully paid and nonassessable. Schedule
3.07 to this Agreement describes as of the Closing Date all
outstanding options, rights and warrants issued by the Borrower
for the acquisition of shares of the capital stock of the
Borrower, all outstanding securities or obligations convertible
into such shares and all agreements by the Borrower to issue or
sell such shares. Schedule 3.07 to this Agreement describes as of
the Closing Date all options, sale agreements, pledges, proxies,
voting trusts, powers of attorney and other agreements or
instruments binding upon any of its shareholders with respect to
beneficial or record ownership of or voting rights with respect to
shares of the capital stock of the Borrower.
3.08 Officers and Directors of the Borrower. Schedule 3.08
to this Agreement states as of the Closing Date the officers and
directors of the Borrower.
3.09 Subsidiaries. Except for Subsidiaries listed on
Schedule 3.09, the Borrower does not have any Subsidiaries.
3.10 Business. The Borrowers' report on form 10-K for the
year ended September 30, 1999, describes the business of the
Borrower as presently conducted and presently planned to be
conducted.
3.11 Title to Property. The Borrower has good and marketable
title in fee simple to all real property and good and marketable
title to all other property purported to be owned by it, including
that reflected in the most recent audited balance sheet referred
to in Section 3.12 of this Agreement or submitted pursuant to
Section 5.01(a) of this Agreement (except as sold or otherwise
disposed of in the ordinary
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course of business), subject only to Liens not forbidden by
Section 6.01 of this Agreement.
3.12 Financial Statements; Projections.
(a) Uni-Marts has delivered to the Lender audited
balance sheets and related statements of income and retained
earnings and cash flow of the Borrowers for the fiscal years
ending September 30, 1999, 1998 and 1997, as audited by Deloitte &
Touche LLP and certified with only such qualifications as are
described on Schedule 3.12 to this Agreement. Such financial
statements (including the notes) present fairly the financial
condition of the Borrowers as of the end of such fiscal period and
the results of its operations and the changes in financial
position for the fiscal periods then ended, all in conformity with
GAAP applied on a basis consistent with that of the preceding
fiscal period.
(b) Uni-Marts has delivered to the Lender an internally
prepared balance sheet and related statement of income and
retained earnings of the Borrowers for the calendar month and year-
to-date ending February 24, 2000. Such financial statements
present fairly the financial condition of the Borrowers as of the
end of such period and the results of their operations for the
period then ended, all in conformity with accounting principles
applied on a basis consistent with that of the preceding fiscal
period, subject to year-end adjustments.
(c) Uni-Marts has delivered to the Lender projections
(the "Projections") covering the fiscal years ending September 30,
2000, and September 30, 2001. The Projections were prepared by the
management of the Borrowers and represent the best available good
faith estimate of the Borrowers regarding the course of the
Borrowers' business for the periods covered by such projections.
The assumptions set forth in the Projections are reasonable and
realistic based on current economic conditions. The Borrowers
know of no fact, circumstance or condition that is likely to
prevent the Borrowers from achieving the performance levels set
forth in the Projections.
3.13 Taxes. All tax returns required to be filed by the
Borrower have been properly prepared, executed and filed. All
taxes, assessments, fees and other governmental charges upon the
Borrower or upon any of its properties, incomes, sales or
franchises which are due and payable have been paid. The reserves
and provisions for taxes on the books of the Borrower are adequate
for all open years and for its current fiscal period. The
Borrower does not know of any proposed additional assessment or
basis for any assessment for additional taxes (whether or not
reserved against) which would have a Material Adverse Effect.
3.14 Contracts. Borrowers' filings with the Securities and
Exchange Commission accurately and completely describe all
material contracts to which Borrowers are a party.
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3.15 Litigation. Except as described in Schedule 3.15 to
this Agreement, there is no pending, contemplated or threatened
action, suit or proceeding by or before any Official Body against
or affecting the Borrower, at law or equity, which if adversely
decided would have a material and adverse effect on the assets,
business, operations or financial condition of the Borrower or on
the ability of the Borrower to perform its obligations under this
Agreement, the Notes, the Security Agreement or the other Loan
Documents.
3.16 Compliance with Laws. The Borrower is not in violation
of or subject to any material contingent liability on account of
the failure to be in compliance with any Law except where the
failure to do so could not result in a Material Adverse Change.
3.17 Pension Plans. Except as described in Schedule 3.17 to
this Agreement, (a) each Plan has been and will be maintained and
funded in accordance with its terms and with all provisions of
ERISA and other applicable laws; (b) no Reportable Event as
defined in ERISA has occurred and is continuing with respect to
any Plan; (c) no liability to the Pension Benefit Guaranty
Corporation (the "PBGC") has been incurred with respect to any
Plan, other than for premiums due and payable; (d) no Plan has
been terminated, no proceedings have been instituted to terminate
any Plan, and there exists no intent to terminate or institute
proceedings to terminate any Plan; (e) no withdrawal, either
complete or partial, has occurred or commenced with respect to any
multi-employer Plan, and there exists no intent to withdraw either
completely or partially from any multi-employer Plan; and (f)
there has been no cessation of, and there is no intent to cease,
operations at a facility or facilities where such cessation could
reasonably be expected to result in a separation from employment
of more than 20% of the total number of employees who are
participants under a Plan.
3.18 Patents, Licenses, Franchises. The Borrower owns or
possesses all of the patents, trademarks, service marks, trade
names, copyrights, licenses, franchises and permits and rights
with respect to the foregoing necessary to own and operate the
Borrower's properties and to carry on its business as presently
conducted and presently planned to be conducted without, to the
Borrower's knowledge, conflict with the rights of others.
Schedule 3.18 to this Agreement sets forth a true and correct list
and description of each such patent, trademark, service mark,
trade name, copyright, license, franchise and permit and right
with respect to the foregoing. Except as described in Schedule
3.18 to this Agreement, no patent, trademark, service mark, trade
name, copyright, license, franchise or permit or right with
respect to the foregoing is of material importance to the assets,
business, operations or financial condition of the Borrower and
there is no reason to anticipate any material liability to the
Borrower in respect to any claim of infringement of any of the
foregoing.
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3.19 Environmental Matters. Except as described on Schedule
3.19 to this Agreement, to the best knowledge, information and
belief of the executive officers of Borrowers after due inquiry:
(a) No Borrower is in violation, in any material
respect, of The Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, The Resource Conservation and
Recovery Act of 1976, as amended by the Hazardous and Solid Waste
Amendments of 1984, The Clean Water Act, The Toxic Substances
Control Act and The Clean Air Act or any rule or regulation
promulgated pursuant to any of the foregoing statutes, or any
other federal, state or local environmental law, statute, rule,
regulation or ordinance applicable to the Borrower or its
properties (all of the foregoing are sometimes collectively
referred to in this Section 3.19 as the "Environmental Laws");
(b) No Borrower or any of its directors, officers,
employees, agents or independent contractors has arranged, by
contract, agreement or otherwise, (i) for the disposal or
treatment of, or (ii) with a transporter for the transport for
disposal or treatment of, any hazardous substance (as defined by
CERCLA, as amended), owned, used or possessed by the Borrower,
identified by the EPA on the National Priorities List, 40 C.F.R.
Part 300, (or proposed by the EPA in the Federal Register for
listing on such National Priorities List) or identified under any
corresponding state statute or regulation concerning cleanup of
waste disposal sites (a "State Superfund Law"), at any location;
(c) No predecessor (as defined by CERCLA, as amended)
has arranged by contract, agreement or otherwise, (i) for the
disposal or treatment of, or (ii) with a transporter for transport
for the disposal or treatment of, any hazardous substance (as
defined by CERCLA, as amended), owned, used or possessed by any
Predecessor at any location;
(d) No Borrower is an "owner" or "operator" of a
"facility", as defined by CERCLA, as amended, or any State
Superfund Law; and
(e) No Borrower "owned" or "operated" any "facility" at
the time any hazardous substances were disposed of within the
meaning of CERCLA, as amended, or any State Superfund Law.
3.20 Proceeds. The Borrowers will use the proceeds of the
Revolving Credit Loans for general working capital purposes and to
refinance existing indebtedness of the Borrowers to U.S. Bank
(Johnstown, PA).
3.21 Margin Stock. The Borrower will make no borrowing under
this Agreement for the purpose of buying or carrying any "margin
stock", as such term is used in Regulation U and related
regulations of the Board of
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Governors of the Federal Reserve System, as amended from time to
time. The Borrower does not own any "margin stock". The Borrower
is not engaged in the business of extending credit to others for
such purpose, and no part of the proceeds of any borrowing under
this Agreement will be used to purchase or carry any "margin
stock" or to extend credit to others for the purpose of purchasing
or carrying any "margin stock".
3.22 No Event of Default; Compliance with Agreements. No
event has occurred and is continuing and no condition exists which
constitutes an Event of Default or Potential Default. The
Borrower is not (i) in violation of any term of any charter
instrument or bylaw or (ii) in default under any agreement, lease
or instrument to which the Borrower is a party or by which it or
any of its properties (now owned or acquired in the future) may be
subject or bound, except to the extent any such default would not
have a material and adverse affect on the assets, business,
operations or financial condition of the Borrower or the ability
of the Borrower to perform its obligations under this Agreement,
the Notes and the other Loan Documents.
3.23 No Material Adverse Change. Since September 30, 1999,
there has been no material adverse change in the assets, business,
operations or financial condition of the Borrower.
3.24 Accurate and Complete Disclosure. No representation or
warranty made by the Borrower under this Agreement, the Notes, the
Security Agreement or the other Loan Documents and no statement
made by the Borrower in any financial statement (furnished
pursuant to Sections 3.12 or 5.01 or otherwise), certificate,
report, exhibit or document furnished by the Borrower to the
Lender pursuant to or in connection with this Agreement is false
or misleading in any material respect (including by omission of
material information necessary to make such representation,
warranty or statement not misleading).
3.25 Security Interest. The security interest in the
collateral granted to the Lender pursuant to the Security
Agreement (i) constitutes and will continue to constitute a
perfected security interest under the Code entitled to all of the
rights, benefits and priorities provided by the Code and (ii)
except as otherwise permitted under Section 6.01 of this
Agreement, is and will continue to be superior and prior to the
rights of all third parties existing on the date of this Agreement
or arising after the date of this Agreement whether by lien or
otherwise, to the full extent provided by Law. All such action as
is necessary or advisable to establish such rights of the Lender
has been taken or will be taken at or prior to the time required
for such purpose and there will be upon execution and delivery of
the Loan Documents no necessity of any further action in order to
preserve, protect and continue such rights except the filing of
continuation statements with respect to such financing statements
within six months prior to each five year anniversary of the
filing of such financing statements and continued possession by
the Lender of the collateral delivered to it. All
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filing fees and other expenses in connection with each such action
shall be paid by the Borrower and the Lender shall be reimbursed
by the Borrower for any such fees and expenses incurred by the
Lender.
3.26 Inventory Warranties. With respect to all inventory
from time to time scheduled, listed or referred to in any
certificate, statement or report delivered to the Lender, (a) such
inventory is located on the premises listed on the Security
Agreement and is not in transit except in the ordinary course of
Borrower's business; (b) the Borrower has good, indefeasible and
merchantable title to such inventory and such inventory is not
subject to any lien or security interest whatsoever except for the
security interest granted to the Lender; (c) such inventory is of
good and merchantable quality, free from material defects or
obsolescence; (d) such inventory is not subject to any licensing,
patent, royalty, trademark, trade name or copyright agreements
with any third parties; and (e) except as described in Schedule
3.26 to this Agreement, the completion of manufacture and sale or
other disposition of such inventory by the Lender following an
Event of Default shall not require the consent of any person and
shall not constitutes breach or default under any contract or
agreement to which the Borrower is a party or to which the
inventory is subject. The Borrower shall immediately notify the
Lender in the event that any such inventory ceases to satisfy the
above representations and warranties.
3.27 Account Warranties. With respect to all accounts from
time to time scheduled, listed or referred to in any certificate,
statement or report delivered to the Lender, (a) the accounts are
genuine, are in all respects what they purport to be, and are not
evidenced by a note, instrument or judgment; (b) the accounts
represent undisputed, bona fide transactions completed in
accordance with the terms and provisions contained in the
documents delivered to the Lender with respect to the accounts;
(c) no payments have been or will be made on the accounts except
payments immediately delivered to the Lender pursuant to this
Agreement; (d) there are no material setoffs, counterclaims or
disputes existing or asserted with respect to the accounts and the
Borrower has not made any agreement with any account debtor for
any material deduction from any account; (e) there are no facts,
events or occurrences which in any way impair the validity or
enforcement of any account; (f) to the best of the Borrower's
knowledge, all account debtors have the capacity to contract and
are solvent; (g) the services furnished and/or goods sold giving
rise to any account are not subject to any lien, claim,
encumbrance or security interest except that of the Lender; (h) to
the best of the Borrower's knowledge, there are no proceedings or
actions which are threatened or pending against any account debtor
which might result in any material adverse change in such account
debtor's financial condition; (i) the account is not an account
with respect to which the account debtor is an Affiliate or a
director, officer or employee of the Borrower or an Affiliate; (j)
the account does not arise with respect to goods which have not
been shipped or arise with respect to services which have not been
fully performed and accepted as satisfactory by the account
debtor; (k) the account is not an account with respect to which
the account debtor's obligation to pay the account is conditional
upon the account debtor's approval or is otherwise subject to any
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repurchase obligation or return right, as with sales made on a
bill-and-hold, guaranteed sale, sale-and-return, or sale on
approval basis; and (l) the amounts shown on the applicable
certificates, statements, the Borrower's books and records and all
invoices and statements which may be delivered to the Lender with
respect to such accounts are actually and absolutely owing to the
Borrower and are not in any way contingent. The Borrower shall
immediately notify the Lender in the event that any such account
ceases to satisfy the above representations and warranties.
ARTICLE IV
CONDITIONS OF LENDING
---------------------
4.01 Initial Loans. The obligation of the Lender to make any
Loan on the Closing Date is subject to the accuracy as of the
Closing Date of the representations and warranties contained in
this Agreement and the other Loan Documents, to the performance by
the Borrowers of the obligations to be performed under this
Agreement and under the other Loan Documents on or before the
Closing Date and to the satisfaction of the following further
conditions:
(a) Representations and Warranties; Events of Default
and Potential Defaults. The representations and warranties
contained in Article III shall be true and correct on and as of
the date of each Loan with the same effect as though made on and
as of each such date. On the Closing Date, the Borrowers shall
have delivered a Certificate to that effect signed by the
President, Chairman or Chief Financial Officer of Uni-Marts. On
the date of each Loan, no Event of Default and no Potential
Default shall have occurred and be continuing or exist or shall
occur or exist after giving effect to the Loan to be made on such
date. On the Closing Date, the Borrowers shall have delivered a
Certificate to that effect signed by the President, Chairman or
Chief Financial Officer of Uni-Marts.
(b) Proceedings and Incumbency. On the Closing Date,
the Borrowers shall have delivered to the Lender a certificate, in
form and substance satisfactory to the Lender, dated the Closing
Date and signed on behalf of the Borrowers by the Secretary of the
Borrowers, certifying as to (a) true copies of the Articles of
Incorporation and bylaws of the Borrowers and any shareholders
agreement concerning the Borrowers, all as in effect on such date,
(b) true copies of all corporate action taken by the Borrowers
relative to this Agreement, the Notes, the Security Agreement and
the other Loan Documents, including but not limited to that
described in Section 3.03 of this Agreement, and (c) the names,
true signatures and incumbency of the officers of the Borrowers
authorized to execute and deliver this Agreement, the Notes, the
Security Agreement and the other Loan Documents. The Lender may
conclusively rely on such certificate unless and until a later
certificate revising the prior certificate has been furnished to
the Lender.
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(c) Opinion of Counsel. On the Closing Date, there
shall have been delivered to the Lender a written opinion, dated
the Closing Date, of Saul Ewing Remick & Saul LLP, counsel for the
Borrowers, in substantially the form attached as Exhibit "D" to
this Agreement.
(d) Agreement and Notes. On the Closing Date, this
Agreement and the Revolving Credit Note, satisfactory in terms,
form and substance to the Lender, shall have been executed and
delivered by the Borrowers to the Lender.
(e) Security Agreement. On the Closing Date, the
Security Agreement, satisfactory in terms, form and substance to
the Lender, shall have been executed and delivered by the
Borrowers to the Lender and shall be in effect, and all filings
contemplated by the Security Agreement shall have been made.
(f) UCC Financing Statements. On or before the
Closing, all UCC-1 financing statements to be filed pursuant to
the Security Agreement and the other Loan Documents shall have
been duly filed and shall be in effect.
(g) Landlord's Waivers. Within forty-five (45) days
following the Closing Date, the Lender shall have received a
landlord's waiver, satisfactory in form and substance to the
Lender, from the lessors of not less than 75% of all inventory
locations; within ninety (90) days following the Closing Date, the
Lender shall have received a landlord's waiver satisfactory in
form and substance to the Lender, from the lessors of not less
than 90% of all inventory locations; and thereafter the Borrowers
shall use their best efforts to cause the Lender to receive
landlord's waivers from all remaining lessors of all inventory
locations.
(h) Mortgages. On or before the Closing Date, the
Lender shall have received Mortgages on all of the properties
identified on Appendix 1.
(i) Operating and Other Accounts. Within fifteen (15)
days following the Closing Date, the Borrowers shall have
established its principal operating checking account with the
Lender together with cash collateral and concentration accounts
with the Lender to facilitate collection of cash from the
Borrowers' stores.
(j) Other Documents and Conditions. On or before the
Closing Date, the following documents and conditions shall have
been delivered or satisfied by or on behalf of the Borrowers to
the Lender:
(i) Good Standing and Tax Lien Certificates. Good
Standing Certificate of the Department of Commonwealth of
Pennsylvania certifying to the good standing and corporate status
of the Borrowers, good standing/foreign qualification certificates
from other jurisdictions in which the
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Borrowers are qualified to do business and tax lien certificates
of the Borrowers from each jurisdiction in which the Borrowers are
qualified to do business.
(ii) Financial Statements; Projections. Financial
statements, pro forma balance sheets and projections in form and
substance satisfactory to the Lender, as described in Section 3.12
of this Agreement.
(iii) Insurance. Evidence, in form and
substance satisfactory to the Lender, that the business and all
assets of the Borrowers are adequately insured (which may include
self-insurance of risks satisfactory to the Lender) and that the
Lender has been named as loss payee on all policies of insurance
covering the Collateral (as defined in the Security Agreement).
(iv) Ownership Interests. Evidence satisfactory to
the Lender that the ownership interests in the Borrowers are as
described in Schedule 3.07 to this Agreement.
(v) Lien Searches. Copies of record searches,
including UCC searches, judgments, suits, tax and other lien
searches initiated by the Lender, and real property title reports
initiated by the Borrowers, evidencing that the Lender has a first
priority security interest in the Collateral described in the
Security Agreement and the property described in the Mortgages ,
except as otherwise provided in Section 6.01 of this Agreement.
(vi) No Material Adverse Change. Evidence
satisfactory to the Lender that no material adverse change has
occurred with respect to the Borrowers since September 30, 1999.
(vii) Environmental Matters. Evidence, in
form and substance satisfactory to the Lender, that the Borrowers
and their properties are in compliance with all environmental laws
and regulations, except as and to the extent described on Schedule
3.19 to this Agreement.
(viii) Termination Statements - Releases.
Evidence satisfactory to the Lender that UCC termination or
release statements with respect to the liens on the Borrowers'
property not permitted under Section 6.01 of this Agreement,
including those held by U.S. Bank Johnstown, PA, have been filed
or satisfactory arrangements have been made for such filing.
(ix) Minimum Availability. At the Closing Date,
there shall be a minimum additional availability for advances
under the Borrowing Base of $1,000,000 after repayment of the
indebtedness to U.S. Bank, the issuance by the Lender of a standby
Letter of Credit for the account of the Borrowers for the benefit
of Pennsylvania Manufacturers Association Insurance Company,
payment of all payables (including all trade and supplier
payables) in the ordinary
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course of business when due without delay, default or any
requested extensions, and payments of all closing costs and
expenses and all other advances made thereunder.
(x) Other Documents and Conditions. Such other
documents and conditions as may be required to be submitted to the
Lender by the terms of this Agreement or of any Loan Document.
(k) Details, Proceedings and Documents. All legal
details and proceedings in connection with the transactions
contemplated by this Agreement shall be satisfactory to the Lender
and the Lender shall have received all such counterpart originals
or certified or other copies of such documents and proceedings in
connection with such transactions, in form and substance
satisfactory to the Lender, as the Lender may from time to time
request.
(l) Fees and Expenses. The Borrowers shall have paid
all fees and charges as required for the Closing and relating to
the Closing, including legal fees, closing costs, filing and
notary fees, and any other similar matters pertinent to the
closing.
4.02 Each Additional Loan. At the time of making any Loans
or issuing any Letters of Credit other than Loans made or Letters
of Credit issued on the Closing Date and after giving effect to
the proposed borrowings: the representations and warranties of
the Borrowers contained in Article III of this Agreement shall be
true on and as of the date of such additional Loan or Letter of
Credit with the same effect as though such representations and
warranties had been made on and as of such date (except
representations and warranties which expressly relate solely to an
earlier date or time, which representations and warranties shall
be true and correct on and as of the specific dates or times
referred to therein) and the Borrowers shall have performed and
complied with all covenants and conditions of this Agreement,
including without limitation, execution, the delivery and
recording of Mortgages from any New Properties set forth on
Appendix 1, as the same may be amended from time to time; no Event
of Default or Potential Default shall have occurred and be
continuing or shall exist; the making of the Loans or issuance of
such Letter of Credit shall not contravene any Law applicable to
the Borrowers or Lender; and the Borrowers shall have delivered to
the Lender a duly executed and completed Borrowing Base
Certificate or application for a Letter of Credit as the case may
be.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
Each Borrower covenants to the Lender as follows:
5.01 Reporting and Information Requirements.
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(a) Annual Audited Reports. As soon as practicable,
and in any event within 120 days after the close of each fiscal
year of the Borrowers, Uni-Marts will furnish to the Lender
audited statements of income, retained earnings and cash flow of
the Uni-Marts and its Consolidated Subsidiaries for such fiscal
year and an audited balance sheet of Uni-Marts and its
Consolidated Subsidiaries as of the close of such fiscal year, and
notes to each, all in reasonable detail, setting forth in
comparative form the corresponding figures for the preceding
fiscal year, prepared in accordance with generally accepted
accounting principles applied on a basis consistent with that of
the preceding fiscal year (except for changes in application in
which such accountants concur) with such statements and balance
sheet to be certified by independent certified public accountants
of recognized standing selected by the Borrowers and satisfactory
to the Lender. The certificate or report of such accountants
shall be free of exception or qualifications not acceptable to the
Lender and shall in any event contain a written statement of such
accountants substantially to the effect that such accountants
examined such statements and balance sheet in accordance with
generally accepted auditing standards.
(b) Monthly Reports. As soon as practicable, and in
any event within 30 days after the close of each fiscal month,
during the term of this Agreement the Borrowers will furnish to
the Lender statements of income and cash flow for the Borrowers
for such month and for the portion of the fiscal year to the end
of such month, and a balance sheet of the Borrowers as of the
close of such month, all in reasonable detail. All such income
statements, cash flow statements and balance sheets shall be
prepared by the Borrowers and certified by the President or Chief
Financial Officer of Uni-Marts as presenting fairly the financial
position of the Borrowers as of the end of such month and the
results of their operations for such periods, subject to year end
adjustment, in conformity with generally accepted accounting
principles applied in a manner consistent with that of the most
recent audited financial statements furnished to the Lender.
(c) Compliance Certificate. Within 120 days after the
end of each fiscal year of the Borrowers and within 45 days after
the end of each fiscal quarter of the Borrowers, Uni-Marts will
deliver to the Lender a certificate, in the form attached to this
Agreement as Exhibit "E", dated as of the end of such fiscal year
or quarter, as the case may be, signed on behalf of the Borrowers
by the President or Chief Financial Officer of Uni-Marts,
including a calculation of the financial maintenance covenants set
forth in Sections 6.12 and 6.13 of this Agreement and stating
that, as of the date of the certificate, no Event of Default or
Potential Default has occurred and is continuing or exists, or if
an Event of Default or Potential Default has occurred and is
continuing or exists, specifying in detail the nature and period
of existence of the Event of Default or Potential Default and any
action taken or contemplated to be taken by the Borrowers.
(d) Accountants' Certificates. Each set of statements
and balance sheet delivered pursuant to Section 5.01(a) of this
Agreement shall be
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accompanied by a certificate or report dated the date of such
statements and balance sheet by the accountants who examined, and
issued an opinion on, such statements and balance sheet stating in
substance that they have reviewed Articles VI and VII of this
Agreement and that in making the examination necessary for their
audit of such statements and balance sheet they did not become
aware of any Event of Default or Potential Default, or if they did
become so aware, such certificate or report shall state the nature
and period of existence of the Event of Default or Potential
Default. The Lender and the Borrowers acknowledge that the
accountants' audit will not be directed primarily toward obtaining
knowledge of whether the Borrowers are in compliance with the
terms of this Agreement or is in default of any of its terms,
covenants, and conditions relating to financial matters.
(e) Accounts Receivable and Accounts Payable
Statements. Within twenty (20) days after the end of each fiscal
month, the Borrowers will deliver to the Lender a schedule of the
Borrowers' accounts receivable and accounts payable, identifying
all Qualified Accounts, and the aging thereof by open invoice of
each customer owed to or by the Borrowers, and such other reports
concerning the Qualified Accounts and the accounts payable as the
Lender shall require, all certified as to accuracy by the
President, Treasurer or Chief Financial Officer of Uni-Marts and
all in such form as the Lender shall require. The Borrowers shall
also provide the Lender with all information requested by the
Lender with respect to any account debtor.
(f) Inventory Certifications. Within twenty (20) days
after the end of each fiscal month, the Borrowers will deliver to
the Lender a report in form satisfactory to the Lender of the
level of the Borrowers' inventory, with such details as may be
requested by the Lender including identifying all Qualified
Inventory, all certified as to accuracy by the President,
Treasurer or Chief Financial Officer of Uni-Marts.
(g) Collateral Reports. As often as the Lender shall
from time to time reasonably request and in any event at least
once each week, the Borrowers will deliver to the Lender such
other reports of sales, collections, credit adjustments and other
information pertaining to the Accounts as the Lender shall from
time to time request including without limitation Borrowing Base
Certificates in the form attached as Exhibit "C".
(h) Audit Reports. Promptly upon receipt thereof, the
Borrowers will deliver to the Lender one copy of each other report
submitted to the Borrowers by independent accountants, including
"comment" or management letters, in connection with any annual,
interim or special audit report made by them of the books of the
Borrowers; provided, however, that if such "comment" or management
letters are not qualified to disclose a material weakness, the
Borrowers shall have no obligation to provide such "comment" or
management letters to Lender, unless
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requested by the Lender to do so, in which case Borrowers shall
provide such "comment" or management letters.
(i) Projections Prior to the end of each fiscal year
of the Borrower or as soon thereafter as practical but in no event
later than 60 days after the commencement of any fiscal year, Uni-
Marts will deliver to the Lender income statement projections,
balance sheets, cash flows and borrowing base and availability
calculations prepared for the next fiscal year on an annual basis
and on a month to month basis for the next fiscal year,
(quarterly, however, in the case of balance sheets), prepared by
the President, Treasurer or Chief Financial Officer of Uni-Marts.
(j) Visitation; Audits. The Borrowers will permit such
persons as the Lender may designate to visit and inspect any of
the properties of the Borrowers, to conduct field examinations of
the collateral, to examine, and to make copies and extracts from,
the books and records of the Borrowers and to discuss their
affairs with their officers, employees and independent accountants
during normal business hours and after reasonable notice, unless
an Event of Default shall have occurred and be continuing, in
which case at such times and as often as the Lender may request.
The Borrowers authorize their officers, employees and independent
accountants to discuss with the Lender the affairs of the
Borrowers.
(k) Notice of Event of Default. Promptly upon becoming
aware of an Event of Default or Potential Default, the Borrowers
will give the Lender notice of the Event of Default or Potential
Default, together with a written statement of the President,
Treasurer or chief financial officer of Uni-Marts setting forth
the details of the Event of Default or Potential Default and any
action taken or contemplated to be taken by the Borrowers.
(l) Notice of Material Adverse Change. Promptly upon
becoming aware thereof, the Borrowers will give the Lender
telephonic or telegraphic notice (with written confirmation set on
the same or next Business Day) about any material adverse change
in the assets, business, operations or financial condition of the
Borrowers or any development or occurrence which would materially
and adversely affect the ability of the Borrowers to perform their
obligations under this Agreement.
(m) Reports to Governmental Agencies and other
Creditors. With reasonable promptness following request of the
Lender, the Borrowers will deliver to the Lender copies of all
such financial reports, statements and returns which the Borrowers
shall file with any federal or state department, commission,
board, bureau, agency or instrumentality and any report, statement
or return delivered by the Borrowers to any supplier or other
creditor.
(n) Notice of Proceedings. Promptly upon becoming
aware thereof, the Borrowers will give the Lender notice of the
commencement,
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existence or threat of all proceedings by or before any Official
Body against or affecting the Borrowers which, if adversely
decided, would have a material adverse effect on the assets,
business, operations or financial condition of the Borrowers.
(o) Further Information. The Borrowers will promptly
furnish to the Lender such other information, and in such form, as
the Lender may reasonably request from time to time.
5.02 Preservation of Existence and Franchises. The Borrowers
will maintain their corporate existence, rights and franchises in
full force and effect in its jurisdiction of incorporation. The
Borrowers will qualify and remain qualified as a foreign
corporation in each jurisdiction in which failure to receive or
retain qualification would have a material adverse effect on the
assets, business, operations or financial condition of the
Borrowers.
5.03 Insurance. The Borrowers will maintain insurance with
financially sound and reputable insurers or self-insurance of
risks satisfactory to the Lender with respect to the properties
and business and against such liabilities, casualties and
contingencies and of such types and in such amounts as is
satisfactory to the Lender and as is customary in the case of
corporations or other entities engaged in the same or similar
business or having similar properties similarly situated. The
Borrowers will add the Lender as lender's loss payee to all
policies of insurance which insure against loss of or damage to
the Collateral (as defined in the Security Agreement) or the real
property subject to the Mortgages, to provide the Lender with
thirty (30) days advance notice of the termination of any such
policy of insurance.
5.04 Maintenance of Properties. The Borrowers will maintain
or cause to be maintained in good repair, working order and
condition, the properties now or in the future owned, leased or
otherwise possessed by the Borrowers and shall make or cause to be
made all needful and proper repairs, renewals, replacements and
improvements to the properties so that the business carried on in
connection with the properties may be properly and advantageously
conducted at all times. The Borrowers shall notify the Lender
prior to any change in the location of any of their properties or
business.
5.05 Payment of Liabilities. The Borrowers will pay or
discharge:
(a) on or prior to the date on which penalties attach,
all taxes, assessments and other governmental charges or levies
imposed upon them or any of their properties or income except
taxes, assessments or charges subject to good faith dispute for
which the Borrowers have created adequate reserves on its books;
(b) on or prior to the date when due, all lawful claims
of materialmen, mechanics, carriers, warehousemen, landlords and
other like persons
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which, if unpaid, might result in the creation of a Lien upon any
of its property, except such claims which are subject to good
faith dispute and as to which the Borrowers have created adequate
reserves on their books;
(c) on or prior to the date when due, all other lawful
claims which, if unpaid, might result in the creation of a Lien
upon any of their property, except such claims which are subject
to good faith dispute and as to which the Borrowers have created
adequate reserves on their books; and
(d) all other current liabilities so that none is due
more than ninety (90) days after the due date for each liability,
except current liabilities which are subject to good faith dispute
and as to which the Borrowers have created adequate reserves on
their books.
5.06 Financial Accounting Practices. The Borrowers will make
and keep books, records and accounts which, in reasonable detail,
accurately and fairly reflect their transactions and dispositions
of their assets and maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (a)
transactions are executed in accordance with management's general
or specific authorization, (b) transactions are recorded as
necessary (i) to permit preparation of financial statements in
conformity with GAAP and (ii) to maintain accountability for
assets, (c) access to assets is permitted only in accordance with
management's general or specific authorization and (d) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken
with respect to any differences.
5.07 Compliance with Laws. The Borrowers shall comply in all
material respects with all applicable Laws.
5.08 Pension Plans. The Borrowers shall (a) keep in full
force and effect any and all Plans which are presently in
existence or may, from time to time, come into existence under
ERISA, unless such Plans can be terminated without material
liability to the Borrowers in connection with such termination;
(b) make contributions to all of the Borrowers' Plans in a timely
manner and in a sufficient amount to comply with the requirements
of ERISA; (c) comply with all material requirements of ERISA which
relate to such Plans so as to preclude the occurrence of any
Reportable Event, Prohibited Transaction (other than a Prohibited
Transaction subject to an exemption under ERISA) or material
"accumulated funding deficiency" as such term is defined in ERISA;
and (d) notify the Lender immediately upon receipt by a Borrower
of any notice of the institution of any proceeding or other action
which may result in the termination of any Plan. The Borrowers
shall deliver to the Lender, promptly after the filing or receipt
thereof, copies of all reports or notices which a Borrower files
or receives under ERISA with or from the Internal Revenue Service,
the Pension Benefit Guaranty Corporation, or the U.S. Department
of Labor, other than reports or notices which do not materially or
adversely (i) affect a Borrower, its business, assets or
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financial condition, or (ii) a Borrower's ability to perform its
obligations under Section 5.08 of this Agreement.
5.09 Continuation of and Change in Business. The Borrowers
will continue to engage in the businesses and activities described
in Schedule 3.10 to this Agreement and the Borrowers will not
engage in any other businesses or activities without prior written
consent of the Lender.
5.10 Use of Proceeds. The Borrowers will use the proceeds of
the Revolving Credit Loans for general working capital purposes
and to refinance existing revolving credit loans made to the
Borrowers from U.S. Bank (Johnstown, PA).
5.11 Sufficient Balances in Lender Accounts. Within fifteen
(15) days after the Closing Date, the Borrowers shall establish,
and for the remaining term of this Agreement shall maintain, their
principal operating accounts with Lender. The Borrowers will
maintain sufficient balances in collected U.S. funds immediately
available in the Borrowers' demand or deposit accounts with the
Lender to pay the interest and the fees on the first day of each
month and to pay principal all as required by Article II of this
Agreement.
5.12 Lockbox. Borrowers shall maintain their principal
operating checking accounts with Lender. The Borrowers shall
maintain one or more lockbox accounts with the Lender, as shall be
mutually acceptable to the Borrowers and the Lender.
5.13 Lien Searches. The Lender may, but shall not be
obligated to, conduct lien searches of the Borrowers and their
assets and properties on an annual basis and at such other times
as the Lender, in its sole discretion, may determine to be
necessary. The Borrowers shall reimburse the Lender for the
Lender's out-of-pocket costs in connection with such lien
searches.
5.14 Further Assurances. The Borrowers, at their own cost
and expense, will 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
Agreement and the transactions contemplated by this Agreement and
to cause the security interest or interests, the liens, or
conveyances granted under the Security Agreement or any other Loan
Documents to be, at all times, valid, perfected and enforceable
against the Borrowers and all third parties. All expenses of such
filings, and recordings, and refilings, and rerecordings, shall be
borne by the Borrowers.
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ARTICLE VI
NEGATIVE COVENANTS
------------------
The Borrowers jointly and severally covenant to the Lender as
follows:
6.01 Liens. The Borrowers shall not at any time create,
incur, assume or suffer to exist any Lien on any of their property
or assets, tangible or intangible, now owned or acquired in the
future, or agree to become liable to do so, except:
(a) Liens existing on the Closing Date and described in
Schedule 6.01 to this Agreement, Liens in favor of the Lender and
Liens securing Debt permitted under Section 6.02 of this
Agreement;
(b) Liens arising from taxes, assessments, charges,
levies or claims described in Section 5.05(a) of this Agreement
that are not yet due or that remain payable without penalty or to
the extent permitted to remain unpaid under the proviso to Section
5.05(a) of this Agreement;
(c) Deposits or pledges to secure workmen's
compensation, unemployment insurance, old age benefits or other
social security obligations, or in connection with or to secure
the performance of bids, tenders, trade contracts or leases, or to
secure statutory obligations, or stay, surety or appeal bonds, or
other pledges or deposits of like nature and all in the ordinary
course of business;
(d) Mechanics', carriers', workmen's, repairmen's or
similar liens arising in the ordinary course of business in
respect of obligations which are not overdue, or deposits made to
obtain the release of such mechanics', carriers', workmen's,
repairmen's or similar liens which are being contested in good
faith by appropriate proceedings and with respect to which the
Borrowers have created reserves which are determined to be
adequate by the application of GAAP consistently applied; and
(e) Zoning restrictions, easements, minor restrictions
on the use of real property, minor irregularities in title to real
property and other minor Liens that do not secure the payment of
money or the performance of an obligation and that do not in the
aggregate materially detract from the value of a property or asset
to, or materially impair its use in the business of, the
Borrowers.
6.02 Debt. The Borrowers will not at any time create, incur,
assume or suffer to exist any Debt, except:
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(a) Debt under this Agreement, the Notes, the other
Loan Documents or under any other document, instrument or
agreement between the Borrowers and the Lender;
(b) Debt existing on the Closing Date and described in
Schedule 6.02 to this Agreement; provided, however, that none of
such indebtedness shall be extended, renewed or refinanced without
the prior written consent of the Lender;
(c) Current accounts payable, accrued expenses and
other current items arising out of transactions (other than
borrowings) in the ordinary course of business;
(d) Debt secured by purchase money security interests
and capitalized leases in equipment and fixtures, provided that
the aggregate principal amount (including Capitalized Lease
Obligations) of all such additional Debt shall not exceed
$2,000,000, excluding indebtedness provided by Franchise Finance
Corporation of America ("FFCA") to the Borrowers and described on
Schedule 6.02 ("FFCA Indebtedness"), in any fiscal year of the
Borrowers and provided that the liens and security interests
securing such indebtedness are limited to the specific identified
asset purchased with such indebtedness; and
6.03 Guarantees and Contingent Liabilities. The Borrowers
will not at any time directly or indirectly assume, guarantee,
endorse or otherwise agree, become or remain directly or
contingently liable upon or with respect to any obligation or
liability of any other person, firm or entity.
6.04 Loans and Investments. The Borrowers will not at any
time make or suffer to remain outstanding any loan or advance to,
or purchase, acquire or own any stock, bonds, notes or securities
of, or any partnership interest (whether general or limited) in,
or any other interest in, or make any capital contribution to, any
other person, including any Subsidiary, or agree, become or remain
liable to do any of the foregoing, other than (i) loans not
exceeding $1,000,000 in the aggregate to Henry D. Sahakian, other
officers of Borrowers or purchases of stores from Borrowers, (ii)
capital contributions to Consolidated Subsidiaries, and (iii)
investments as described on Schedule 6.04 to this Agreement.
6.05 Dividends and Related Distributions. The Borrowers will
not declare, make, pay, or agree, become or remain liable to make
or pay, any dividend or other distribution of any nature (whether
in cash, property, securities or otherwise) on account of or in
respect of any shares of the capital stock of the Borrowers or on
account of the purchase, redemption, retirement or acquisition of
any shares of the capital stock (or warrants, options or rights
for any shares of the capital stock) of the Borrowers without the
consent of the Lender.
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6.06 Leases. The Borrowers will not at any time enter into
or suffer to remain in effect any agreement to lease, as lessee,
any real or personal property, except:
(a) leases existing on the Closing Date; and
(b) leases entered into the ordinary course of
business.
6.07 Merger; Consolidation; Business Acquisitions. The
Borrowers will not merge or will not agree to merge with or into
or consolidate with any other person, corporation, firm or other
entity, except that any Consolidated Subsidiary may merge or
consolidate with, or convey, sell or transfer all or substantially
all, of its assets to, any other Consolidated Subsidiary or Uni-
Marts. The Borrowers will not acquire any material portion of the
stock or assets or business of any other person, corporation, firm
or other entity, except that the Borrowers may acquire 100% of the
stock or assets of any other person, corporation, firm or entity
or a Consolidated Subsidiary may merge with another person,
corporation, firm or other entity, if the following criteria are
satisfied: (i) the target company is in a similar line of business
as the acquiring Borrower and is organized under the laws of the
United States (or the assets to be acquired are utilized in a
similar line of business and are located in the United States);
(ii) the acquisition is to be non-hostile in nature; (iii) prior
to and immediately following such acquisition, there shall not be
a Potential Default or Event of Default under this Agreement, (iv)
the assets of the acquired person which are of the nature that
constitutes Collateral (including without limitation accounts and
inventory) are purchased free and clear of any liens and
encumbrances; and (vi) if the target company becomes a Subsidiary
of any Borrower (or the assets to be held in a newly formed
Subsidiary of any Borrower), such Subsidiary shall be required to
become a Borrower pursuant to Section 8.18 of this Agreement.
6.08 Dispositions of Assets. The Borrowers will not sell,
convey, assign, lease, abandon or otherwise transfer or dispose
of, voluntarily or involuntarily (any of the foregoing being
referred to in this Section as a "transaction" and any series of
related transactions constituting but a single transaction), any
of their properties or assets, tangible or intangible (including
stock of subsidiaries), except for sales of inventory in the
ordinary course of business and stores in the ordinary course of
business.
6.09 Self-Dealing. From and after the date of this
Agreement, the Borrowers will not enter into or carry out any
loan, advance or other transaction (including, without limitation,
purchasing property or services or selling property or services)
with any Affiliate except that:
(a) shareholders of the Borrowers may render services
to the Borrowers for compensation at the same rates generally paid
by non-affiliated
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corporations engaged in the same or similar businesses for the
same or similar services; and
(b) the Borrowers may, with the prior written consent
of the Lender, enter into and carry out other transactions with
Affiliates if in the ordinary course of business, pursuant to the
reasonable requirements of the Borrowers' business upon terms
reasonably found by the board of directors of the relevant
Borrower after due inquiry to be fair and reasonable and no less
favorable to the Borrower than would be obtained in a comparable
arm's-length transaction; and
(c) the Borrowers may enter into and carry out the
transactions existing as of the Closing Date and described on
Schedule 6.09 to this Agreement.
6.10 Margin Stock. The Borrowers will not use the proceeds
of any Loans directly or indirectly to purchase or carry any
"margin stock" (within the meaning of Regulations U, G, T, or X of
the Board of Governors of the Federal Reserve System) or to extend
credit to others for the purpose of purchasing or carrying,
directly or indirectly, any margin stock.
6.11 Consolidated Tax Returns. The Borrowers will not,
without prior written consent of the Lender, file, or consent to
the filing of, any consolidated income tax return with any person
other than a Consolidated Subsidiary.
6.12 Capital Expenditures. The Borrowers shall not permit
Capital Expenditures to exceed $5,000,000, excluding Capital
Expenditures directly funded with FFCA Indebtedness, for any
fiscal year of the Borrowers during the term of this Agreement.
6.13 Financial Maintenance Covenants.
(a) Tangible Net Worth. Borrowers shall at all times
maintain a Tangible Net Worth in an amount equal to or greater
than $18,700,000.
(b) Fixed Charge Coverage Ratio. Borrowers shall
achieve EBITDA equal to or greater than the following amounts for
the following periods.
Period Ending Minimum EBITDA
3 months ended
June 30, 2000 $4,250,000
6 months ended
September 30, 2000 $9,250,000
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9 months ended
December 31, 2000 $13,500,000
From and after March 31, 2001, Borrowers shall at all times
maintain a Fixed Charge Coverage Ratio equal to or greater than
1.1 to 1.0.
(c) Interest Coverage Ratio. Borrowers shall maintain
an Interest Coverage Ratio equal to or greater than the following
ratios for the following periods:
Fiscal Quarters Minimum Interest
Ending Coverage Ratio
All fiscal quarters
ending on or prior to
June 30, 2001 2.25:1
Quarters ending
September 2001
through September
30, 2002 2.30:1
Quarters ending
December 31, 2002
through September
30, 2003 2.35:1
ARTICLE VII
DEFAULTS
--------
7.01 Events of Default. An Event of Default means the
occurrence or existence of one or more of the following events or
conditions (whatever the reason for such Event of Default and
whether voluntary, involuntary or effected by operation of Law):
(a) The Borrowers shall fail to pay principal on the
Notes when due; or
(b) The Borrowers shall fail to pay interest on the
Loans or any fees payable pursuant to Article II of this Agreement
when due and such failure continues for a period of three (3)
Business Days; or
(c) The Borrowers shall fail to pay any other fee, or
other amount payable pursuant to this Agreement, the Notes, the
Security Agreement or
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any of the other Loan Documents when due and such failure
continues for a period of three (3) Business Days; or
(d) Any representation or warranty made by the
Borrowers under this Agreement, the Notes, the Security Agreement,
the Mortgages or any of the other Loan Documents or any statement
made by the Borrowers in any financial statement, certificate,
report, exhibit or document furnished by the Borrowers, as the
case may be, to the Lender pursuant to this Agreement or the other
Loan Documents shall prove to have been false or misleading in any
material respect as of the time when made; or
(e) The Lender's security interest under the Security
Agreement or liens under the Mortgages is or shall become
unperfected; or
(f) The Borrowers shall be in default in the
performance or observance of Sections 5.04, 5.06, 5.09 and 5.10 of
this Agreement and such default shall continue for a period of
fifteen (15) Business Days after the Lender shall have given
notice to the Borrowers of such default; provided, however, that
so long as the default is capable of being cured and the Borrowers
are diligently pursuing the same, then Borrowers shall have an
additional twenty-five (25) Business Days to correct such default,
or
(g) The Borrowers shall be in default in the
performance or observance of any other covenant, agreement or duty
under this Agreement, the Notes, the Security Agreement, the
Mortgages or the other Loan Documents beyond any applicable grace
or cure period expressly provided in such Loan Document; or
(h) The Borrowers shall have failed to provide Lender
the landlord's waivers from the lessors of all inventory locations
within the time limits prescribed in Section 4.01(g) of this
Agreement; or
(i) The Borrowers shall (i) default (as principal or
guarantor or other surety) in any payment of principal of or
interest on any obligation (or set of related obligations) for
borrowed money in excess of $100,000, beyond any period of grace
with respect to the payment or, if an obligation (or set of
related obligations) is or are payable or repayable on demand,
fails to pay or repay such obligation or obligations when
demanded, or (ii) default in the observance of any other covenant,
term or condition contained in any agreement or instrument by
which an obligation (or set of related obligations) is or are
created, secured or evidenced, if the effect of such default is to
cause, or to permit the holder or holders of such obligation or
obligations (or a trustee or agent on behalf of such holder or
holders) to cause, all or part of such obligation or obligations
to become due before its or their otherwise stated maturity; or
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(j) One or more judgments for the payment of money in
excess of $100,000 shall have been entered against any Borrower,
which judgment or judgments shall have remained undischarged or
unstayed for a period of forty-five (45) days; or
(k) A writ or warrant of attachment, garnishment,
execution, distraint or similar process in excess of $100,000
shall have been issued against any Borrower or any of its
properties which shall have remained undischarged or unstayed for
a period of forty-five (45) days; or
(l) Henry D. Sahakian shall cease to serve as Chairman
and Chief Executive Officer of Uni-Marts or to discharge the
duties of that office, provided that neither the death nor the
permanent disability of Henry D. Sahakian shall constitute an
Event of Default; or
(m) The indictment or threatened indictment of any
Borrower under any criminal statute, or commencement or threatened
commencement of criminal or civil proceedings against any Borrower
pursuant to which statute or proceedings the penalties or remedies
sought or available include forfeiture of any of the Collateral.
(n) A Material Adverse Change has occurred; or
(o) A proceeding shall be instituted in respect of any
Borrower:
(i) seeking to have an order for relief entered in
respect of the Borrower, or seeking a declaration
or entailing a finding that the Borrower is
insolvent or a similar declaration or finding, or
seeking dissolution, winding-up, charter revocation
or forfeiture, liquidation, reorganization,
arrangement, adjustment, composition or other
similar relief with respect to the Borrower, its
assets or its debts under any law relating to
bankruptcy, insolvency, relief of debtors or
protection of creditors, termination of legal
entities or any other similar law now or in the
future in effect; or
(ii) seeking appointment of a receiver, trustee,
custodian, liquidator, assignee, sequestrator or
other similar official for the Borrower or for all
or any substantial part of its property; or
(p) Any Borrower shall become insolvent, shall become
generally unable to pay its debts as they become due, shall
voluntarily suspend
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transaction of its business, shall make a general assignment for
the benefit of creditors, shall institute a proceeding described
in Section 7.01(o)(i) of this Agreement or shall consent to any
order for relief, declaration, finding or relief described in
Section 7.01(o)(i) of this Agreement, shall institute a proceeding
described in Section 7.01(o)(ii) of this Agreement or shall
consent to the appointment or to the taking of possession by any
such official of all or any substantial part of its property
whether or not any proceeding is instituted, dissolves, winds-up
or liquidates itself or any substantial part of its property, or
shall take any action in furtherance of any of the foregoing.
7.02 Consequences of an Event of Default.
(a) If an Event of Default specified in subsections (a)
through (n) of Section 7.01 of this Agreement occurs and continues
or exists, the Lender will be under no further obligation to make
Loans and may demand the unpaid principal amount of the Notes,
interest accrued on the unpaid principal amount and all other
amounts owing by the Borrowers under this Agreement, the Notes,
the Security Agreement, the Mortgages and the other Loan Documents
to be immediately due and payable without presentment, demand,
protest or further notice of any kind, all of which are expressly
waived, and an action for any amounts due shall accrue
immediately.
(b) If an Event of Default specified in subsections (o)
or (p) of Section 7.01 of this Agreement occurs and continues or
exists, the Lender will be under no further obligation to make
Loans and the unpaid principal amount of the Notes, interest
accrued on the unpaid principal amount and all other amounts owing
by the Borrowers under this Agreement, the Notes, the Security
Agreement and the other Loan Documents shall become immediately
due and payable without presentment, demand, protest or notice of
any kind, all of which are expressly waived, and an action for any
amounts due shall accrue immediately.
(c) If an Event of Default occurs and continues or
exists, the Lender may, without notice to the Borrowers increase
the rate of interest applicable to the Loans to the rate of
interest applicable to the Loans to the rate of interest specified
in subsection (b) of Section 2.04 of this Agreement.
(d) If an Event of Default occurs or exists, the Lender
may, immediately upon giving written notice to the Borrowers, in
its sole discretion, reduce the Borrowing Base, by adjusting the
advance rates or by creating such additional reserves as the
Lender shall, in its sole discretion, deem appropriate.
(e) If an Event of Default occurs and continues or
exists, and whether or not the Lender shall have accelerated the
maturity of Loans pursuant to any of the foregoing provisions of
this Section 7.02, the Lender, if owed any amount with respect to
the Notes or Letters of Credit, may proceed to protect and
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enforce its rights by suit in equity, action at law and/or other
appropriate proceeding, whether for the specific performance of
any covenant or agreement contained in this Agreement or the
Notes, including as permitted by applicable Law the obtaining of
the ex parte appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce
the payment thereof or any other legal or equitable right of the
Lender.
(f) If an Event of Default occurs and continues or
exists, the Lender may exercise each and every right and remedy
granted to the Lender under the Loan Documents and under any
applicable Law.
7.03 Set-Off. If the unpaid principal amount of the Notes,
interest accrued on the unpaid principal amount or other amount
owing by the Borrowers under this Agreement, the Notes, the
Security Agreement, the Mortgages or the other Loan Documents
shall have become due and payable (at maturity, by acceleration or
otherwise), the Lender and the holder of any participation in any
Loan will each have the right, in addition to all other rights and
remedies available to it, without notice to the Borrowers, to set-
off against and to appropriate and apply to such due and payable
amounts any debt owing to, and any other funds held in any manner
for the account of, the Borrowers by the Lender or by such holder
including, without limitation, all funds in all deposit accounts
(whether time or demand, general or special, provisionally
credited or finally credited, or otherwise) now or in the future
maintained by the Borrowers with the Lender or such holder. The
Borrowers consent to and confirm the foregoing arrangements and
confirm the Lender's rights and such holder's rights of banker's
lien and set-off. Nothing in this Agreement will be deemed a
waiver or prohibition of or restriction on the Lender's rights or
any such holder's rights of banker's lien or set-off.
ARTICLE VIII
MISCELLANEOUS
-------------
8.01 Holidays. Except as otherwise provided in this
Agreement, whenever any payment or action to be made or taken
under this Agreement, or under the Notes or under any of the other
Loan Documents is stated to be due on a day which is not a
Business Day, such payment or action will be made or taken on the
next following Business Day and such extension of time will be
included in computing interest or fees, if any, in connection with
such payment or action.
8.02 Records. The unpaid principal amount of the Notes and
drawings under Letter of Credit, the unpaid interest accrued
thereon, the interest rate or rates applicable to such unpaid
principal amount and the duration of such applicability shall at
all times be ascertained from the records of the Lender, which
shall be conclusive absent manifest error.
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8.03 Amendments and Waivers. The Lender and the Borrowers
may from time to time enter into agreements amending, modifying or
supplementing this Agreement, the Notes or any other Loan Document
or changing the rights of the Lender or of the Borrowers under
this Agreement, under the Notes or under any other Loan Document
and the Lender may from time to time grant waivers or consents to
a departure from the due performance of the obligations of the
Borrowers under this Agreement, under the Notes or under any other
Loan Document. Any such agreement, waiver or consent must be in
writing and will be effective only to the extent specifically set
forth in such writing. In the case of any such waiver or consent
relating to any provision of this Agreement, any Event of Default
or Potential Default so waived or consented to will be deemed to
be cured and not continuing, but no such waiver or consent will
extend to any other or subsequent Event of Default or Potential
Default or impair any right consequent to any other or subsequent
Event of Default or Potential Default.
8.04 No Implied Waiver; Cumulative Remedies. No course of
dealing and no delay or failure of the Lender in exercising any
right, power or privilege under this Agreement, the Notes or any
other Loan Document will affect any other or future exercise of
any such right, power or privilege or exercise of any other right,
power or privilege except as and to the extent that the assertion
of any such right, power or privilege shall be barred by an
applicable statute of limitations; nor shall any single or partial
exercise of any such right, power or privilege or any abandonment
or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise of such right, power or
privilege or of any other right, power or privilege. The rights
and remedies of the Lender under this Agreement, the Notes or any
other Loan Document are cumulative and not exclusive of any rights
or remedies which the Lender would otherwise have.
8.05 Notices. All notices, requests, demands, directions and
other communications (collectively "notices") under the provisions
of this Agreement or the Notes must be in writing (including
telexed or telecopied communication) unless otherwise expressly
permitted under this Agreement and must be sent by first-class or
first-class express mail, private overnight or next Business Day
courier or by telex or telecopy with confirmation in writing
mailed first class, in all cases with charges prepaid, and any
such properly given notice will be effective when received. All
notices will be sent to the applicable party at the addresses
stated below or in accordance with the last unrevoked written
direction from such party to the other parties.
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If to Borrower: Uni-Marts, Inc.
477 East Beaver Avenue
State College, PA 16801-5690
Attn: N. Gregory Petrick,
Senior Vice President and
Chief Financial Officer
Telephone: (814) 234-6000
Telecopy: (814) 234-3277
and copy to: Anthony F. Walsh, Esq.
Saul, Ewing, Remick & Saul LLP
Centre Square West
1500 Market Street, 36th Floor
Philadelphia, PA 19102-2186
Telephone: (215) 972-7738
Telecopy: (215) 972-1930
If to Lender: The Provident Bank
1111 Superior Avenue
Cleveland, OH 44114-2522
Attn: Ronald L. Tassone
Senior Vice President
Telephone: (216) 694-2352
Telecopy: (216) 694-2323
and copy to: James F. Bauerle, Esq.
Doepken Keevican & Weiss
Professional Corporation
58th Floor, USX Tower
600 Grant Street
Pittsburgh, PA 15219
Telephone: (412) 355-2600
Telecopy: (412) 355-2609
8.06 Expenses; Taxes; Attorneys' Fees. The Borrowers agree
to pay or cause to be paid and to save the Lender harmless against
liability for the payment of all reasonable out-of-pocket
expenses, including, but not limited to fees and expenses of
counsel and paralegals for the Lender, incurred by the Lender from
time to time (i) arising in connection with the preparation,
execution, delivery and performance of this Agreement, the Notes
and the other Loan Documents, (ii) relating to any requested
amendments, waivers or consents to this Agreement, the Notes or
any of the other Loan Documents, (iii) arising in connection with
the Lender's enforcement or preservation of rights under this
Agreement, the Notes or any of the other Loan Documents, including
but not limited to such expenses as may be incurred by the Lender
in the collection of the outstanding principal amount of the
Lender, and (iv)
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arising in connection with any case under the Bankruptcy Code
filed by or against the Borrowers. The Borrowers agree to pay all
stamp, document, transfer, recording or filing taxes or fees and
similar impositions now or in the future determined by the Lender
to be payable in connection with this Agreement, the Notes or any
other Loan Document. The Borrowers agree to save the Lender
harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any
omission to pay or delay in paying any such taxes, fees or
impositions. In the event of termination adverse to the Borrowers
of any action at law or suit in equity in relation to this
Agreement, the Notes or the other Loan Documents, the Borrowers
will pay, in addition to all other sums which the Borrowers may be
required to pay, a reasonable sum for attorneys' and paralegals'
fees incurred by the Lender or the holder of the Notes in
connection with such action or suit. All payments due from the
Borrowers under this Section will be added to and become part of
the Loans until paid in full.
8.07 Severability. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement is
held invalid or unenforceable in whole or in part in any
jurisdiction, the provision will, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability
without in any manner affecting the validity or enforceability of
the provision in any other jurisdiction or the remaining
provisions of this Agreement in any jurisdiction.
8.08 Governing Law; Consent to Jurisdiction. This Agreement
will be deemed to be a contract under the laws of the Commonwealth
of Pennsylvania and for all purposes will be governed by and
construed and enforced in accordance with the laws of said
Commonwealth. The Borrowers consent to the exclusive jurisdiction
and venue of the federal and state courts located in Allegheny
County, Pennsylvania, in any action on, relating to or mentioning
this Agreement, the Notes, the other Loan Documents, or any one or
more of them.
8.09 Prior Understandings. This Agreement, the Notes, the
Security Agreement, the Mortgages and the other Loan Documents
supersede all prior understandings and agreements, whether written
or oral, among the parties relating to the transactions provided
for in this Agreement, the Notes, the Security Agreement, the
Mortgages and the other Loan Documents.
8.10 Duration; Survival. All representations and warranties
of the Borrowers contained in this Agreement or made in connection
with this Agreement or any of the other Loan Documents shall
survive the making of and will not be waived by the execution and
delivery of this Agreement, the Notes or the other Loan Documents,
by any investigation by the Lender, or the making of any Loan.
Notwithstanding termination of this Agreement or an Event of
Default, all covenants and agreements of the Borrowers will
continue in full force and effect from and after the date of this
Agreement so long as the Borrowers may borrow under this Agreement
and until payment in full of the Notes, interest thereon, and all
fees and other obligations of the Borrowers under this Agreement
or the Notes. Without limitation, it
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is understood that all obligations of the Borrowers to make
payments to or indemnify the Lender will survive the payment in
full of the Notes and of all other obligations of the Borrowers
under this Agreement, the Notes, the Security Agreement and the
other Loan Documents.
8.11 Term of Agreement. This Agreement will terminate when
all indebtedness of the Borrowers to Lender including, without
limitation, the Loans and interest on the Loans is paid in full,
and the Borrowers have no right to borrow under this Agreement and
the Lender has no obligation to make Loans under this Agreement.
8.12 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties to this
Agreement on separate counterparts each of which, when so
executed, will be deemed an original, but all such counterparts
will constitute but one and the same instrument.
8.13 Successors and Assigns. This Agreement will be binding
upon and inure to the benefit of the Lender, the Borrowers and
their respective successors and assigns, except that the Borrowers
may not assign or transfer any of their rights under this
Agreement without the prior written consent of the Lender.
8.14 No Third Party Beneficiaries. The rights and benefits
of this Agreement and the other Loan Documents are not intended
to, and shall not, inure to the benefit of any third party.
8.15 Participation. The Lender may from time to time sell,
assign or grant one or more participations in all or any part of
the Loans made by the Lender or which may be made by the Lender,
or its right, title and interest in the Loans or in or to this
Agreement, to another lending officer, lender or financial
institution, so long as the Lender remains the administrative
agent for all participants and retains voting control of the
participation. Except to the extent otherwise required by the
context of this Agreement, the word "Lender" where used in this
Agreement means and includes any holder of a Note originally
issued to the Lender and each such holder of a Note will be bound
by and have the benefits of this Agreement, the same as if such
holder had been a signatory to this Agreement. In connection with
any such sale, assignment or grant of participation, the Lender
may make available to any prospective purchaser, assignee or
participant any information relative to the Borrowers in the
Lender's possession. In the event that Lender desires to sell,
assign or grant participation in excess of 75% of the Loans Lender
shall obtain Borrowers' prior written consent which shall not be
unreasonably withheld.
8.16 Exhibits. All exhibits and schedules attached to this
Agreement are incorporated and made a part of this Agreement.
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8.18 Joinder of Consolidated Subsidiaries. Any Consolidated
Subsidiary of the Borrower formed or acquired after the Closing
Date shall execute and deliver to the Lender (i) a consent and
joinder in form and substance satisfactory to the Lender pursuant
to which it shall consent to and join in this Agreement and to
each of the Loan Documents to which the initial Borrowers are
parties, (ii) documents in the forms described in Section 4.01
[Initial Loans] modified as appropriate to relate to such
Consolidated Subsidiary, and (iii) documents necessary to grant
and perfect prior security interests to the Lender in all
Collateral held by such Consolidated Subsidiary. Such consent and
joiner and related documents shall be executed and provided to the
Lender within five (5) Business Days after the date of the filing
of such Consolidated Subsidiary's articles of incorporation if the
Consolidated Subsidiary is a corporation, the date of the filing
of its certificate of limited partnership if it is a limited
partnership or the date of its organization if it is an entity
other than a limited partnership or corporation.
8.19 WAIVER OF TRIAL BY JURY. THE BORROWERS AND THE LENDER
EXPRESSLY, KNOWINGLY AND VOLUNTARILY WAIVE ALL BENEFIT AND
ADVANTAGE OF ANY RIGHT TO A TRIAL BY JURY, AND NONE OF THEM WILL
AT ANY TIME INSIST UPON, OR PLEAD OR IN ANY MANNER WHATSOEVER
CLAIM OR TAKE THE BENEFIT OR ADVANTAGE OF A TRIAL BY JURY IN ANY
ACTION ARISING IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY
OF THE LOAN DOCUMENTS.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, and intending to be legally bound, the
parties, by their duly authorized officers, have executed and
delivered this Loan Agreement as of the date set forth at the
beginning of this Loan Agreement.
ATTEST: UNI-MARTS, INC.
/s/ Harry A. Martin /s/ N. Gregory Petrick
------------------------------ By:------------------------------
Secretary N. Gregory Petrick
Senior Vice President and
Chief Financial Officer
Uni-Marts, Inc.
[CORPORATE SEAL]
ATTEST: UNI-MARTS OF AMERICA, INC.
/s/ Harry A. Martin /s/ N. Gregory Petrick
------------------------------- By:------------------------------
Secretary N. Gregory Petrick
President
Uni-Marts of America, Inc.
[CORPORATE SEAL]
THE PROVIDENT BANK
/s/ Ronald L. Tassone
By:-------------------------------
Senior Vice President
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