SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT (this "Second
Amendment") is made as of the 31st day of March, 2001, by
and among UNI-MARTS, INC., a Delaware corporation, and UNI-
MARTS OF AMERICA, INC., a Delaware corporation (together,
the "Borrowers"), and THE PROVIDENT BANK, a bank chartered
under the laws of the State of Ohio (the "Lender").
WITNESSETH:
WHEREAS, the Borrowers and the Lender have heretofore
entered into a certain Loan Agreement dated as of April 20,
2000 (the "Loan Agreement"), pursuant to which the Lender
has agreed to provide a $10,000,000 secured revolving credit
facility to the Borrowers, subject to the terms and
conditions set forth in the Loan Agreement; and
WHEREAS, the Borrowers had requested that the Lender
increase the maximum committed amount of the revolving
credit facility on a permanent basis from $10,000,000 to
$13,000,000 and to amend the definition of "Fixed Charge
Coverage Ratio" and the Lender did so under the terms, and
subject to the conditions set forth in the First Amendment,
dated January 16, 2001 (the "First Amendment").
WHEREAS, the Borrowers have requested that the Lender
amend the Loan Agreement, Article VI, Section 6.13(c)
Interest Coverage Ratio and the Lender is willing to do so
under the terms, and subject to the conditions, set forth in
the Second Amendment.
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants herein contained and with the intent to
be legally bound, the parties hereto agree as follows:
1. Recitals as Covenants. The foregoing recitals are
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hereby incorporated in this Second Amendment as covenants.
2. Use of Terms. Terms used herein and not otherwise
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defined are used herein as defined in the Loan Agreement.
3. Amended and Restated Definitions. The following
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definitions set forth in Article VI, Section 6.13(c) Interest
Coverage Ratio are hereby amended and restated in their entirety
as follows:
Fiscal Quarters Minimum Interest
Ending Coverage Ratio
All fiscal quarters 2:05:1
ending on or prior to
September 30, 2001
Quarters ending
December 31, 2001 2:30:1
through September 30,
2002
Quarters ending
December 31, 2002 2:35:1
through September 30,
2003
In addition to the foregoing, the following defined
terms are hereby added to Section 1.01 of the Loan
Agreement:
"Second Amendment" means the Second Amendment to
Loan Agreement dated as of March 31, 2001, among
the Borrowers and the Lender.
"Second Amendment Closing Date" means April 24,
2001, or such other date as the parties may agree.
4. Representations and Warranties. The Borrowers
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hereby represent and warrant to the Lender that:
(a) The Borrowers have and will continue to have
corporate power and authority to execute, deliver and
perform the provisions of this Second Amendment and the
Loan Agreement, as amended hereby, and to execute and
deliver the instruments required by the provisions of this
Second Amendment and the Loan Agreement, as amended hereby,
to be executed and delivered by the Borrowers; and all such
action has been duly and validly authorized by all necessary
corporate proceedings on the part of the Borrowers.
(b) The execution, delivery and performance of this
Second Amendment and the Revolving Credit Note will not
conflict with, constitute a default under or result in the
breach of, any provisions of the Law or the Articles of
Incorporation or the By-laws of the Borrowers or of any
agreement or other instrument to which each Borrower is a
party or by which it is bound or to which it is subject.
(c) This Second Amendment has been duly and validly
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executed and delivered by the Borrowers, and this Second
Amendment constitutes legal, valid and binding obligations of
the Borrowers, enforceable against the Borrowers in accordance
with their respective terms.
(d) The representations and warranties by the Borrowers
contained in Article III of the Loan Agreement are correct
and accurate in all material respects on and as of the date
of this Second Amendment with the same effect as though made
on and as of the date of this Second Amendment.
(e) No event has occurred and is continuing which
constitutes an Event of Default or would constitute an Event
of Default but for the requirement that notice be given or
time elapse or both.
5. Conditions Precedent. It shall be a condition
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precedent to the effectiveness of this Second Amendment that
the Lender shall have received, on or before the Second
Amendment Closing Date, each of the following items, in
form and substance satisfactory to the Lender and its counsel:
(i) this Second Amendment, duly executed and delivered;
(ii) a certificate of the Borrowers, addressed to the Lender
and executed by the Chief Financial Officer or President of
the Borrowers, certifying that all corporate actions
necessary for the consummation of the obligations to be
incurred under the Second Amendment have been taken;
(iii)such other items, instruments, documents and certificates
as to the transactions contemplated by this Second
Amendment and the Loan Documents as the
Lender may reasonably request.
6. Further Assurances. The Borrowers, at their own cost
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and expense, shall cause to be promptly and duly taken, executed,
acknowledged and delivered all such further acts, documents
and assurances as the Lender may from time to time request in
order more effectively to carry out the intent and purposes
of this Second Amendment and the transactions contemplated
by this Second Amendment including, without limitation,
amendments to each or any of the Loan Documents consistent
with the intent and purposes of this Second Amendment.
Promptly upon request by the Lender, the Borrowers agree to
execute and deliver and to file and record and refile and
record such financing statements and amendments and other
assignments and other documents in such manner, at such time
or times and in such place or places as may be required by
any Law or as may be requested by the Lender in order more
effectively to carry out the intent and purposes of this
Second Agreement.
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7. Scope of this Second Amendment. Except as amended
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by the First and this Second Amendment, the provisions of the
Loan Agreement shall remain in full force and effect. The
Loan Agreement and the First Amendment and Second Amendment
shall be construed as complementing each other and, except
as specifically amended by the First and this Second Amendment,
augmenting and not restricting the Lender' rights, and the
Loan Agreement shall remain in full force and effect in
accordance with its terms. The Borrowers hereby ratify,
confirm and reaffirm, without condition, all liens and
security interests granted to the Lender pursuant to the
Loan Agreement and the Loan Documents, and such liens and
security interests shall continue to secure the Secured
Obligations. Except as expressly provided for in this
Second Amendment, and the First Amendment, the Lender has
not agreed to any amendment or modification to the Loan
Agreement or any of the Loan Documents or to any departure
by the Borrowers from their due performance under the Loan
Agreement or under any of the Loan Documents. The rights
and remedies of the Lender under the Loan Agreement, as
amended by this Second Amendment, and the Loan Documents
shall survive the execution and delivery of this Second
Amendment and the Lender may exercise such rights and
remedies with respect to any such defaults at any time and
from time to time.
8. Miscellaneous. The following provisions shall
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apply to this Second Amendment:
(a) References. All notices, communications,
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agreements, certificates, documents or other instruments
executed and delivered after the execution and delivery
of this Second Amendment may refer to the Loan Agreement
without making specific reference to this Second Amendment,
but nevertheless all such references shall include this Second
Amendment unless the context requires otherwise.
(b) Counterparts. This Second Amendment may be
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executed in as many different counterparts as may be
convenient to the parties hereto, each of which when
executed by the Borrowers and the Lender shall be regarded
as an original and all such counterparts shall constitute
but one Second Amendment.
9. Costs and Expenses. The Borrowers will pay all costs
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and expenses of the Lender (including, without limitation, the
reasonable fees and the disbursements of the Lender's counsel)
in connection with the preparation, execution and delivery of this
Second Amendment.
10. Governing Law. This Second Amendment and the rights
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and obligations hereunder shall be construed in accordance with
and governed by the laws of the Commonwealth of Pennsylvania.
11. Headings. The headings of this Second Amendment are
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for purposes of reference only and shall not limit or otherwise
affect the meaning thereof.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties, by their duly
authorized officers, have executed this Second Amendment to
Loan Agreement as of the day and year first above written.
ATTEST: UNI-MARTS, INC.
/s/ Harry A. Martin /s/ N. Gregory Petrick
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Harry A. Martin N. Gregory Petrick
Name:------------------------- Name:-----------------------
Secretary Title: Executive Vice President and
Chief Financial Officer
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ATTEST: UNI-MARTS OF AMERICA, INC.
/s/ Harry A. Martin /s/ N. Gregory Petrick
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Harry A. Martin N. Gregory Petrick
Name:------------------------- Name:-----------------------
Secretary Title: President
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THE PROVIDENT BANK
/s/ Ronald L. Tassone
By:-------------------------
Name: Ronald L. Tassone
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Title: Senior Vice President
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