Exhibit 10.1
FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AGREEMENT (this "Fifth Amendment") is
made as of the 30th day of April, 2003, but effective as of April 1, 2003 (the
"Fifth Amendment Effective Date"), by and among UNI-MARTS, INC., a Delaware
corporation, and UNI-MARTS OF AMERICA, INC., a Delaware corporation (together,
the "Borrowers"), and THE PROVIDENT BANK, a bank chartered under the laws of the
State of Ohio (the "Lender").
W I T N E S S E T H:
WHEREAS, the Borrowers and the Lender have heretofore entered into a
certain Loan Agreement dated as of April 20, 2000, as amended by the First
Amendment to Loan Agreement dated as of January 16, 2001, the Second Amendment
to Loan Agreement dated as of March 31, 2001, the Third Amendment to Loan
Agreement dated as of December 21, 2001, and the Fourth Amendment to Loan
Agreement dated as of September 30, 2002 (as so amended, the "Loan Agreement"),
pursuant to which the Lender has agreed to provide a $15,000,000 secured
revolving credit facility to the Borrowers, subject to the terms and conditions
set forth in the Loan Agreement; and
WHEREAS, the Borrowers have requested that the Lender extend the
seasonal increase of $2,000,000 to an aggregate amount not to exceed $15,000,000
through April 30, 2004, to extend the Expiration Date from April 20, 2004, to
December 31, 2004, to amend the Fixed Charge Coverage Ratio and the Interest
Coverage Ratio, to amend the Capital Expenditures limitation and to amend
certain other provisions of the Loan Agreement and the Lender is willing to do
so under the terms, and subject to the conditions, set forth in this Fifth
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 hereby
incorporated in this Fifth Amendment as covenants.
2. Use of Terms. Terms used herein and not otherwise defined are used
herein as defined in the Loan Agreement.
3. Amended and Restated Definitions. The following definitions set
forth in Section 1.01 of the Loan Agreement are hereby amended and restated in
their entirety as follows:
"Agreement" means this Loan Agreement, as amended by the First
Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment and as the same may be further amended, modified or
supplemented from time to time.
1
"Expiration Date" means December 31, 2004, unless extended in
writing by the Lender in its sole and absolute discretion.
"Revolving Credit Note" means the Third Amended and Restated
Revolving Credit Note of the Borrowers in the form of Exhibit "A"
to the Fifth Amendment evidencing the Revolving Credit Loans
together with all extensions, renewals, refinancings or refundings
in whole or in part.
In addition to the foregoing, the following defined terms are hereby
added to Section 1.01 of the Loan Agreement:
"Fifth Amendment" means the Fifth Amendment to Loan Agreement dated
as of April 30, 2003, effective the Fifth Amendment Effective Date,
among the Borrowers and the Lender.
"Fifth Amendment Closing Date" means April 30, 2003, or such other
date as the parties may agree.
4. Amendments to Revolving Credit Loan Facility.
(a) Amendment of Section 2.01 - Revolving Credit Loans. Subject to
the terms and conditions of this Fifth Amendment and the Loan Agreement, the
Lender has agreed to continue the increase of $2,000,000 to its Revolving Credit
commitment to a maximum principal amount of the Revolving Credit Loans not to
exceed $15,000,000 in the aggregate. Accordingly, subsections (b) and (c) of
Section 2.01 of the Loan Agreement are hereby amended and restated in their
entirety to read as follows:
(b) Revolving Credit Note. The obligations of the 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 Fifth Amendment Closing Date, in
substantially the form attached as Exhibit "A" to the Fifth
Amendment, with the blanks appropriately filled. The executed
Revolving Credit Note will be delivered by the Borrowers to the
Lender on the Fifth Amendment Closing Date. The Revolving Credit Note
shall be an amendment, restatement and replacement of the Revolving
Credit Note dated as of December 21, 2001, executed and delivered by
the Borrowers to the Lender (the "Existing Note"), and the
indebtedness evidenced by the Existing Note, together with additional
Revolving Credit Loans made by the Lender to the Borrower pursuant to
this Agreement after the Fifth Amendment Closing Date, shall be
evidenced by the Revolving Credit Note.
(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) Fifteen Million Dollars
($15,000,000) through April 30,2004, and, at all other times, Twelve
Million Dollars ($12,000,000.00), or (ii) seventy-five percent (75%)
of the aggregate gross amount of
2
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"), 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,
the business, operations or financial condition of the Borrowers or
any individual Borrower.
(b) Amended and Restated Revolving Credit Note. The Borrowers
shall execute and deliver the Revolving Credit Note in the form attached to the
Fifth Amendment as Exhibit A to evidence the Revolving Credit Loans as herein
provided.
(c) Amendment of Section 6.08 - Dispositions of Assets. Subject
to the terms and conditions of this Fifth Amendment and the Loan Agreement, the
Lender has agreed to amend Section 6.08 - Dispositions of Assets. Accordingly,
Section 6.08 is hereby amended and restated in its entirety to read as follows:
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 and stores in the
ordinary course of business and stores not in the ordinary course of
business pursuant to a certain plan of disposition developed by the
Borrowers and submitted to the Lender for approval and to be further
approved by the Lender at the disposition of such stores.
(d) Amendment of Section 6.12 - Capital Expenditures. Subject
to the terms and conditions of this Fifth Amendment and the Loan Agreement, the
Lender has agreed to amend Section 6.12 - Capital Expenditures. Accordingly,
Section 6.12 is hereby amended and restated in its entirety to read as follows:
3
6.12 Capital Expenditures. The Borrowers shall not permit
Capital Expenditures to exceed $3,000,000, excluding Capital
Expenditures directly funded by third parties, for any fiscal year of
the Borrowers during the term of this Agreement.
(e) Amendments of Section 6.13 - Financial Maintenance
Covenants. Subject to the terms and conditions of this Fifth Amendment and the
Loan Agreement, the Lender has agreed to amend certain financial maintenance
covenants. Accordingly, subsections (b) and (c) of Section 6.13 are hereby
amended and restated in their entirety to read as follows:
(b) Fixed Charge Coverage Ratio. The Borrowers shall
maintain a Fixed Charge Coverage Ratio (measured as of the last
date of each fiscal quarter beginning with the fiscal quarter ending
April 3, 2003) equal to or greater than the ratio set forth below,
except as otherwise specified below, for any period of four
consecutive fiscal quarters, during the periods specified below:
Fiscal Quarters Minimum Fixed Charge Coverage Ratio
--------------------------------------------------------- ---------------------------------------
Fiscal quarter ending on April 3, 2003 Not Tested
--------------------------------------------------------- ---------------------------------------
Quarters ending July 3, 2003 (3 month test) 1.1:1
--------------------------------------------------------- ---------------------------------------
Quarter beginning April 4, 2003 and ending September 1.15:1
30, 2003 (6 month test)
--------------------------------------------------------- ---------------------------------------
Quarters beginning April 4, 2003 and ending January 1, 1.15:1
2004 (9 month test)
--------------------------------------------------------- ---------------------------------------
Quarters beginning April 4, 2003 and ending April 1, 1.15:1
2004 (12 month test)
--------------------------------------------------------- ---------------------------------------
Quarters beginning April 2, 2004 and ending December 1.15:1
30, 2004 (trailing 4 quarters)
--------------------------------------------------------- ---------------------------------------
(c) Interest Coverage Ratio. Borrowers shall maintain an
Interest Coverage Ratio (measured as of the last date of each fiscal
quarter beginning with the fiscal quarter ending April 3, 2003) equal
to or greater than the ratio set forth below for any period of four
consecutive fiscal quarters during the periods specified below:
4
Fiscal Quarters Ending Minimum Interest Coverage
Ratio
-------------------------------------------------- ------------------------------
Quarters ending on April 3, 2003 1.5:1
-------------------------------------------------- ------------------------------
Quarters ending April 3, 2003 through July 3, 1.5:1
2003
-------------------------------------------------- ------------------------------
Quarters ending April 3, 2003 through December 1.65:1
30, 2004, and thereafter
-------------------------------------------------- ------------------------------
5. Fees. The Borrowers agree to pay the Lender a closing fee with
respect to the amendments set forth in this Fifth Amendment equal to $18,750.00,
payable on or before the Fifth Amendment Closing Date. In addition, the
Borrowers agree to pay the Lender a fee for the extension of the Expiration Date
and for the temporary seasonal increase of the revolving credit facility equal
to $75,000.00: $25,000 of such fee is due and payable on or before the Fifth
Amendment Closing Date; $25,000 of such fee is due and payable on or before July
1, 2003; and the remaining $25,000 is due and payable on or before September 1,
2003. This extension and temporary seasonal increase fee shall be deemed earned
in full on the Fifth Amendment Closing Date and shall not be subject to rebate
or proration.
6. Representations and Warranties. The Borrowers 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 Fifth Amendment
and the Loan Agreement, as amended hereby, and to execute and deliver the
instruments required by the provisions of this Fifth 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 Fifth Amendment
and the Revolving Credit Note will not conflict with, constitute a default under
or result in the breach of, any provisions of Law or the Articles of
Incorporation or the By-laws of the Borrowers or of any agreement or other
instrument to which each Borrower is a party or by which it is bound or to which
it is subject.
(c) This Fifth Amendment and the Revolving Credit Note have each been
duly and validly executed and delivered by the Borrowers, and this Fifth
Amendment and the Revolving Credit constitute 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 Fifth Amendment Effective Date with the same effect as
though made on and as of the Fifth Amendment Effective Date.
5
(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.
(f) The security interest in the Collateral (as defined in 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 the Loan Agreement, is and will continue to be superior and
prior to the rights of all third parties existing on the date of this Fifth
Amendment or arising after the date of this Fifth Amendment 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 is 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.
7. Conditions Precedent. It shall be a condition precedent to the
effectiveness of this Fifth Amendment that the Lender shall have received, on or
before the Fifth Amendment Closing Date, each of the following items, in form
and substance satisfactory to the Lender and its counsel:
(i) this Fifth Amendment, duly executed and delivered;
(ii) the Third Amended and Restated Revolving Credit Note (in the
form of Exhibit A to this Fifth Amendment), duly executed and
delivered;
(iii) a certificate of the Borrowers, addressed to the Lender and
executed by the Chief Financial Officer or President of each Borrower
on behalf of the Borrowers, certifying that all corporate actions
necessary for the consummation of the obligations to be incurred
under this Fifth Amendment have been taken; and
(iv) such other items, instruments, documents and certificates as
to the transactions contemplated by this Fifth Amendment and the Loan
Documents as the Lender may reasonably request.
8. Further Assurances. The Borrowers, at their own cost 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 Fifth Amendment and the transactions contemplated by this Fifth Amendment
including, without limitation, amendments to each or any of the Loan Documents
consistent with the intent and purposes of this Fifth Amendment. Promptly upon
request by the Lender, the Borrowers agree to execute and deliver and to file
and record and refile and record such financing statements and amendments and
other assignments and other documents in such manner, at such time or times and
in such place or places as may be required by any Law and to cause such
6
other actions which may be required by any Law or as may be requested by the
Lender in order to carry out the intent and purposes of this Fifth Amendment.
9. Scope of this Fifth Amendment. Except as amended by this Fifth
Amendment, the provisions of the Loan Agreement shall remain in full force and
effect. The Loan Documents shall likewise remain in full force and effect. The
Loan Agreement and this Fifth Amendment shall be construed as complementing each
other and, except as specifically amended by this Fifth Amendment, augmenting
and not restricting the Lender's rights, and the Loan Agreement shall remain in
full force and effect in accordance with its terms. The Borrowers hereby ratify,
confirm and reaffirm, without condition, all liens and security interests
granted to the Lender pursuant to the Loan Agreement and the Loan Documents, and
such liens and security interests shall continue to secure the Secured
Obligations. Except as expressly provided in this Fifth Amendment, the Lender
has not agreed to any amendment or modification to the Loan Agreement or to any
of the Loan Documents or to any departure by the Borrowers from their due
performance under the Loan Agreement or under any of the Loan Documents. The
rights and remedies of the Lender under the Loan Agreement, as amended by this
Fifth Amendment, and the Loan Documents shall survive the execution and delivery
of this Fifth Amendment and the Lender may exercise such rights and remedies
with respect to any such defaults at any time and from time to time.
10. Miscellaneous. The following provisions shall apply to this
Fifth Amendment:
(a) References. All notices, communications, agreements,
certificates, documents or other instruments executed and delivered
after the execution and delivery of this Fifth Amendment may refer to
the Loan Agreement without making specific reference to this Fifth
Amendment, but nevertheless all such references shall include this
Fifth Amendment unless the context requires otherwise.
(b) Counterparts. This Fifth Amendment may be 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 Fifth Amendment.
11. Costs and Expenses. The Borrowers will pay all costs 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 Fifth Amendment.
12. Governing Law. This Fifth Amendment and the rights and
obligations hereunder shall be construed in accordance with and governed by the
laws of the Commonwealth of Pennsylvania.
13. Headings. The headings of this Fifth Amendment are for purposes
of reference only and shall not limit or otherwise affect the meaning thereof.
7
IN WITNESS WHEREOF, the parties, by their duly authorized officers,
have executed this Fifth Amendment to Loan Agreement as of the day and year
first above written.
ATTEST: UNI-MARTS, INC.
/S/ XXXX X. XXXXXXXX By: /S/ N. XXXXXXX XXXXXXX
------------------------------------ ---------------------------------
Name: Xxxx X. Xxxxxxxx Name: N. Xxxxxxx Xxxxxxx
------------------------------- Title: Executive Vice President and
Asst. Secretary Chief Financial Officer
ATTEST UNI-MARTS OF AMERICA, INC.
/S/ XXXXX X. XXXXXX By: /S/ N. XXXXXXX XXXXXXX
------------------------------------ ---------------------------------
Name: Xxxxx X. Xxxxxx Name: N. Xxxxxxx Xxxxxxx
------------------------------- Title: President
Secretary
THE PROVIDENT BANK
By: /S/ XXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
8
Exhibit "A"
to the Fifth Amendment
THIRD AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$15,000,000.00 April __, 2003
Effective as of April 1, 2003
FOR VALUE RECEIVED, the undersigned, UNI-MARTS, INC., a Delaware
corporation, and UNI-MARTS OF AMERICA, INC., a Delaware corporation
(collectively, the "Borrowers"), jointly and severally promise to pay to the
order of THE PROVIDENT BANK (the "Lender"), on December 31, 2004, if not sooner
paid, the lesser of: (i) the principal sum of FIFTEEN MILLION DOLLARS
($15,000,000.00) or (ii) the aggregate unpaid principal amount of all revolving
credit loans and extensions of credit made by the Lender to the Borrowers
pursuant to the Loan Agreement, dated as of April 20, 2000, entered into by and
between the Borrowers and the Lender, as amended by the First Amendment to Loan
Agreement dated as of January 16, 2001, the Second Amendment to Loan Agreement
dated as of March 31, 2001, the Third Amendment to Loan Agreement dated as of
December 21, 2001, the Fourth Amendment to Loan Agreement dated as of September
30, 2002, and the Fifth Amendment to Loan Agreement dated as of the date hereof
but effective as of April 1, 2003, as such agreement may be further amended,
modified or supplemented from time to time (the "Loan Agreement"). The Borrowers
further promise to pay to the order of the Lender interest from time to time
outstanding on the unpaid principal amount of this Revolving Credit Note at the
rate or rates per annum determined pursuant to, or otherwise provided in, the
Loan Agreement, and with such amounts being payable on the dates set forth, or
as otherwise provided in, the Loan Agreement.
All payments and prepayments to be made in respect of principal,
interest or other amounts due from the Borrowers under this Revolving Credit
Note shall be payable at 12:00 noon, New York time, on the day when due. Such
payments shall be made to the Lender at its office identified in the Loan
Agreement, or at such other place as Lender may designate in writing, in lawful
money of the United States of America in immediately available funds without
setoff, counterclaim or other deduction of any nature. The Borrowers expressly
waive presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Revolving Credit Note, and an action for any amounts due and unpaid shall
therefore accrue immediately.
If any payment of principal or interest under this Revolving Credit
Note becomes due on a day which is a Saturday, Sunday or other day on which
lending institutions are authorized or obligated to close in Cincinnati, Ohio or
New York, New York, such payment will be made on the next following business day
on which the Lender is open for business and such extension of time will be
included in computing interest in connection with such payment.
This Third Amended and Restated Revolving Credit Note is the
"Revolving Credit Note" referred to in, and is entitled to the benefits of, the
Loan Agreement as defined herein, between the
9
Borrowers and the Lender. This Revolving Credit Note is secured by, and is
entitled to the benefits of, certain other Loan Documents, as each of them may
be amended, modified or supplemented from time to time. Capitalized terms used
in this Revolving Credit Note which are defined in the Loan Agreement have the
meanings assigned to them in the Loan Agreement unless otherwise expressly
defined in this Revolving Credit Note.
This Revolving Credit Note amends, restates, consolidates and
continues that certain Second Amended and Restated Revolving Credit Note dated
December 21, 2001, in the original principal amount of Fifteen Million Dollars
($15,000,000) and executed by Borrowers in favor of the Lender. This amendment
and restatement does not constitute a novation of the indebtedness evidenced by
the original Revolving Credit Note. Any and all amounts outstanding under such
note, including any accrued and unpaid interest, shall be evidenced by this
Revolving Credit Note and shall be paid in accordance with the terms hereof.
This Revolving Credit Note is governed by, and will be construed and
enforced in accordance with, the laws of the Commonwealth of Pennsylvania
without regard to principles of conflicts of law in the Commonwealth of
Pennsylvania. The Borrowers consent to the exclusive jurisdiction and venue of
the Federal and State courts located in Allegheny County, Pennsylvania with
respect to any suit arising out of, relating to, or mentioning this Revolving
Credit Note.
THE BORROWERS AUTHORIZE AND EMPOWER THE PROTHONOTARY OR ANY ATTORNEY
OF ANY COURT OF RECORD WITHIN THE UNITED STATES OR ELSEWHERE, UPON THE
OCCURRENCE OF ANY EVENT OF DEFAULT UNDER THE LOAN AGREEMENT, UNDER THIS
REVOLVING CREDIT NOTE OR UNDER ANY OF THE OTHER LOAN DOCUMENTS, TO APPEAR FOR
AND CONFESS JUDGMENT AGAINST THE BORROWERS IN FAVOR OF THE LENDER OR ANY HOLDER
OF THIS REVOLVING CREDIT NOTE, FOR ALL SUMS DUE AND UNPAID UNDER THIS REVOLVING
CREDIT NOTE, WHETHER BY ACCELERATION OR NOT, WITH OR WITHOUT DECLARATION, WITH
COST OF SUIT, RELEASE OF ALL ERRORS, WITHOUT STAY OF EXECUTION AND WITH TEN
PERCENT (10%) ADDED FOR COLLECTION FEE (PROVIDED, HOWEVER, THAT, DESPITE THE
ENTRY OF JUDGMENT IN SUCH AMOUNT, THE LENDER SHALL NOT BE ENTITLED TO COLLECT AS
PART OF SUCH COLLECTION FEE AN AMOUNT IN EXCESS OF REASONABLE ATTORNEYS' AND
PARALEGALS' FEES). THE BORROWERS ALSO WAIVE THE RIGHT OF INQUISITION OF ANY REAL
ESTATE LEVIED ON, VOLUNTARILY CONDEMNS THE SAME, AUTHORIZES THE PROTHONOTARY OR
CLERK TO ENTER THE WRIT OF EXECUTION AND VOLUNTARY CONDEMNATION, AGREES THAT
SAID REAL ESTATE MAY BE SOLD ON A WRIT OF EXECUTION, AND ALSO WAIVES AND
RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAW OF ANY
STATE NOW IN FORCE OR ENACTED IN THE FUTURE. IF A COPY OF THIS REVOLVING CREDIT
NOTE, VERIFIED BY AFFIDAVIT OF THE LENDER OR ANY HOLDER OF THIS REVOLVING CREDIT
NOTE OR SOMEONE AUTHORIZED TO ACT ON BEHALF OF THE LENDER OR ANY SUCH HOLDER,
HAS BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL OF
THE REVOLVING CREDIT NOTE AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER TO
APPEAR FOR AND ENTER JUDGMENT AGAINST THE BORROWERS WILL NOT BE EXHAUSTED BY ANY
SINGLE EXERCISE OF THE AUTHORIZED POWER, AND THE SAME MAY BE EXERCISED FROM TIME
TO TIME AS OFTEN AS THE HOLDER
10
DEEMS NECESSARY OR DESIRABLE; AND THIS INSTRUMENT WILL BE A SUFFICIENT WARRANT.
[SIGNATURE PAGE FOLLOWS]
11
IN WITNESS WHEREOF, and intending to be legally bound, the Borrowers
have executed, issued and delivered this Third Amended and Restated Revolving
Credit Note as of the day and year first above written.
ATTEST: UNI-MARTS, INC.
_______________________________ By: _____________________________
Secretary Name: N. Xxxxxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
ATTEST: UNI-MARTS OF AMERICA, INC.
_______________________________ By: _____________________________
Secretary Name: N. Xxxxxxx Xxxxxxx
Title: President
12
