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EXHIBIT 4.1.1
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (the
"Amendment") dated as of June 15, 1993 is by and among NATIONAL CONVENIENCE
STORES INCORPORATED (the "Borrower"), KEMPCO PETROLEUM COMPANY, TEXAS SUPER
DUPER MARKETS, INC., SCHEPPS FOOD STORES, INC., STOP N GO MARKETS OF TEXAS,
INC., STOP N GO MARKETS OF GEORGIA, INC. (each a "Guarantor Subsidiary"),
NATIONSBANK OF TEXAS, N.A. ("NationsBank-Texas") and any other financial
institution that may become a party to the hereinafter described Credit
Agreement in accordance with the terms and provisions thereof (together
NationsBank-Texas and such other financial institutions are hereinafter
referred to as the "Lenders") and NATIONSBANK-TEXAS, as Agent for the Lenders
(in such capacity, the "Agent").
WHEREAS, the Borrower, the Guarantor Subsidiaries, the Agent
and the Lenders have entered into that certain Revolving Credit Agreement dated
as of March 9, 1993 (the "Credit Agreement"); and
WHEREAS, as a condition precedent to the execution of the
Credit Agreement, the Borrower and the Agent executed and delivered that
certain letter agreement (the "Letter Agreement") dated March 10, 1993,
pursuant to which the Borrower agreed, among other things, to amend the
Post-Confirmation NationsBank Loan Documents (as that term is defined in the
letter Agreement, and which includes, without limitation, the Credit Agreement)
within fourteen (14) days after written request from the Agent for the purpose
of incorporating any and all such More Favorable Terms (as that term is defined
in the Letter Agreement) as the Agent in its sole discretion may require; and
WHEREAS, pursuant to the terms of the Letter Agreement, the
Agent has requested that the Borrower amend the Credit Agreement in accordance
with the terms and conditions set forth herein and in the other documents and
instruments executed in connection herewith;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto hereby agree that the
Credit Agreement shall be amended as follows:
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ARTICLE I
DEFINITIONS
1.01. Capitalized terms defined in the recitals hereof are
hereby incorporated herein for all purposes.
1.02. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to them in the Credit Agreement.
ARTICLE II
AMENDMENT
2.01. Section 1.01 of the Credit Agreement is hereby
amended by inserting the following definitions in alphabetical order therein.
To the extent that the definition assigned to any capitalized term contained
herein is inconsistent with a definition already contained in the Credit
Agreement, the definition set forth in this Amendment shall be deemed to be
substituted in lieu of the existing definition.
"Guarantor Subsidiary" means any Subsidiary other
than a Non-Guarantor Subsidiary, including, without
limitation, the Guarantor Subsidiaries listed in the preamble
to this Agreement.
"Non-Guarantor Subsidiary" means any Subsidiary
designated as a Non-Guarantor Subsidiary on Exhibit 1.01D
hereto or any Real Estate Subsidiary hereafter formed or
acquired by the Borrower or a Subsidiary which is specifically
prohibited from encumbering its assets.
"Permitted Investments" means (a) Permitted Seller
Finance Notes permitted pursuant to Section 7.10(b)(iii)(C),
provided that such promissory notes have been pledged to the
Lenders to secure the Obligations in accordance with the terms
of the Loan Documents, (b) Investments reasonably made
available by the Agent to the Borrower or any Subsidiary in
which the Lenders' security interest remains continuously
perfected, with maturities not longer than seven (7) days from
the purchase thereof, (c) amounts on deposit in Depository
Accounts from time to time, and (d) amounts held in cash
collateral accounts securing the Obligations, and obligations
of the Borrower under the Bank of America Agreement.
"Permitted Seller Finance Notes" means promissory
notes that (i) are payable to the Borrower or any Subsidiary
made by the purchaser of, or otherwise in connection with the
sale of, assets of the Borrower or any Subsidiary that may be
sold without the Lenders' prior written consent in accordance
with clause (C) of Section 7.10(b)(iii) and (ii) have a term
to maturity of not greater than five (5) years.
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"Special Reserves" means the following sub-accounts
of the balance sheet account "Other Liabilities and Deferred
Revenue":
Balance at 3/31/93*
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Total Environmental Reserve $ 18,656,000
less: Current Portion - 2,100,000
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Environmental Reserve (Long Term Portion) $ 16,556,000
National Money Orders, Inc. Reserve $ 2,370,000
Tax Reserve 1,918,000
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Total Special Reserves $ 20,844,000
*numbers are rounded to the nearest thousand.
"Special Reserve Adjustment" means the aggregate
amount of reduction since March 31, 1993 to Special Reserves,
as reported pursuant to Section 6.02(s), which has resulted,
directly or indirectly, in an increase to Consolidated Net
Worth.
"Temporary Cash Investment" means any Investment in
(i) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any
agency thereof, (ii) commercial paper rated at the time of
such Investment A-1, P-1 or better by a nationally recognized
credit rating agency, (iii) asset- backed corporate debt
securities rated at the time of such Investment A-1, P-1 or
better by a nationally recognized credit rating agency or (iv)
time deposits with, including certificates of deposit issued
by, any office located in the United States of any bank or
trust company the long-term debt of which (or of the parent
corporation of which) is rated A or better at the time of such
Investment by Standard & Poor's Corporation or A2 or better by
Moody's Investors Service, provided in each case that such
Investment matures within 180 days from the date of
acquisition thereof by the Borrower or a Subsidiary.
2.02. Section 6.02 of the Credit Agreement is hereby
amended by adding the following new subsection (s) thereto:
(s) Together with the financial statements to be
delivered pursuant to Sections 6.02(a) and 6.02(b) hereof, a
certificate of the chief financial officer or principal
accounting officer of the Borrower, accompanied by a schedule
in the form of Exhibit 6.02(s), detailing reductions against
Special Reserves since March 31, 1993, and specifying the
amount of the Special Reserve Adjustment.
2.03. Section 6.19 of the Credit Agreement is hereby
amended by inserting the following immediately after the section title
"Prepayment of Other Debt" in line 1 thereof:
(a) Neither the Borrower nor any Subsidiary will
make any payment or prepayment on or redemption of or
acquisition for value of Debt of the Borrower or any
Subsidiary, except for (i) payments approved pursuant to the
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Plan of Reorganization, (ii) payments of scheduled lease
payments under Capital Leases of the Borrower or any Guarantor
Subsidiary existing on the Closing Date and (iii) payments on
Debt permitted under Section 7.02; so long as upon payment or
prepayment on or redemption of or acquisition for value of
Debt that is made pursuant to any of clauses (i), (ii), or
(iii) above, the Borrower complies or causes compliance with
the terms of Section 6.19(b) below. (b)
2.04. Subject to Section 4.02 hereof, Section 7.08 of the
Credit Agreement is hereby amended by inserting the word "Guarantor"
immediately before the word "Subsidiary" in line 2 thereof.
2.05. Subject to Section 4.02 hereof, Section 7.10 of the
Credit Agreement is hereby deleted therefrom in its entirety and the following
new Section 7.10 is hereby inserted in lieu thereof:
SECTION 7.10 Asset Sales and Net Cash Proceeds. (a) All Net
Cash Proceeds received by the Borrower or any Subsidiary shall
be delivered to the Agent for the benefit of the Lenders in
the percentages set forth in Exhibit 2.05 and in accordance
with Section 2.05(a)(ii) hereof.
(b) The Borrower shall not, nor shall it permit any
of its Guarantor Subsidiaries to, directly or indirectly,
sell, assign, lease, convey, transfer or otherwise dispose of
(whether in one or a series of transactions) any of its
assets, stock, business or property (including without
limitation, accounts and notes receivable (with or without
recourse)) or enter into any agreement to do any of the
foregoing except:
(i) Disposition of inventory, or used, worn-out
or surplus property, all in the ordinary course of
business;
(ii) The sale of equipment to the extent that such
equipment is traded in for credit against the
purchase price of similar replacement equipment or
the proceeds of such sale are reasonably promptly
applied to the purchase price of such replacement
equipment;
(iii) Borrower and its Subsidiaries may from time
to time sell assets, other than stock of Guarantors,
for cash (except as expressly permitted in clause (C)
of thisSection 7.10(b)(iii)), including assets in
which the Lenders have been granted a Lien, so long
as (x) no Default shall have occurred and be
continuing, (y) all such sales are negotiated in good
faith and on an arm's-length basis, and (z) each such
sale is not for less than the fair market value of
the respective asset, and upon the following
additional terms and conditions:
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(A) Borrower and its Subsidiaries may
sell all or substantially all the assets owned by
Borrower or any Subsidiary within any market area of
Borrower and its Subsidiaries; provided that if (x) a
sale or other transfer of assets constitutes a sale
of all or substantially all of the assets owned by
the Borrower or any Subsidiary in a market area or
(y) a sale or other transfer of assets when included
with the sales or other disposition of assets that
occurred during the immediately preceding twelve
consecutive months and that were the result of sales
or transfers by the Borrower or any Subsidiary to any
Person other than the Borrower or any Subsidiary,
would result in a net reduction of twenty-five (25)
or more stores of the Borrower or any subsidiary in
operation in any one market area (calculated by
taking the number of stores of the Borrower or a
Subsidiary, as the case may be, in operation in the
applicable market area at the beginning of such
period as compared to those in operation at the end
of such period, taking into account the proposed sale
or other disposition), or (z) the net book value or
sales price (whichever is greater) of any such asset
or group of assets to be sold or any such group of
assets to be sold as a whole in any one transaction
or series of related transactions, or to one
purchaser or group of purchasers acting together,
exceeds $250,000, then, in each instance, such assets
may not be sold without the prior written consent of
the Majority Lenders; and
(B) Borrower and its Subsidiaries may
sell any asset or group of assets other than the sale
of the capital stock of a Subsidiary or a sale of
assets which is governed by clause (b)(iii)(A)(x) or
clause (b)(iii)(A)(y) of this Section 7.10; provided
that, if the net book value or sale price (whichever
is greater) of any such asset to be sold or any such
group of assets to be sold as a whole in any one
transaction or series of related transactions, or to
one purchaser or group of purchasers acting together,
exceeds $250,000, the asset or group of assets may
not be sold without the prior written consent of the
Majority Lenders; and
(C) all such sales shall be for cash;
provided that sales of any asset or group of assets
to be sold as a whole in any one transaction or
series of related transactions, to one purchaser or
group of purchasers acting together, that have a net
book value or sale price (whichever is greater) of
less than $250,000 may be for cash and Permitted
Seller Finance Notes so long as (x) not less than
twenty percent (20%) of any sale for a Permitted
Seller Finance Note is for cash and (y) the aggregate
principal amount of Permitted Seller Finance Notes
outstanding at any one time does not exceed One
Million Dollars ($1,000,000).
(c) Amounts payable by any Person to Borrower or
any Guarantor Subsidiary hereunder, shall be paid by such
Person for the account of Borrower or such Subsidiary (i) in
the case of any purchasers affiliated with the Borrower
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or any Subsidiary or in the case of the sale of any Real
Estate, in escrow to an escrow agent designated by the Agent
(or, in the case of any sale of Real Estate, the applicable
title company), and shall be held in escrow by such escrow
agent (or title company, as the case may be) on terms
satisfactory to the Agent until such time as consummation of
the transaction in respect of which such funds have been
delivered into escrow has occurred, and immediately thereupon
Net Cash Proceeds payable to the Lenders shall be transferred
to the Agent, by wire transfer, in accordance with
instructions given to such escrow agent (or title company, as
the case may be) by the Agent, and (ii) in the case of any
other purchaser or the sale of any other assets, any such Net
Cash Proceeds payable to the Lenders under this Section 7.10
shall be immediately transferred to the Agent, by wire
transfer, in accordance with instructions given to such
purchaser by the Agent. The Borrower and each Subsidiary
shall take all action and do all such things as may be
necessary or desirable in the opinion of the Agent to
accomplish the foregoing.
(d) Subject to Section 7.10(e) hereof, upon the
request of the Borrower, and at the Borrower's expense,
simultaneous with the receipt hereunder by the Lenders of Net
Cash Proceeds relating to the Disposition by the Borrower or
any Subsidiary of any property or other assets securing the
Obligations, and provided that no Event of Default has
occurred which has not been waived by the Majority Lenders in
accordance with the terms hereof, the Agent may, and at the
instruction of the Majority Lenders shall, execute and deliver
to the Borrower or such Subsidiary duly executed releases, or
partial releases, as applicable, of any Lien they may have in
such property or assets, in form and substance satisfactory to
the Agent and the Borrower.
(e) If at any time any payment by the Borrower or
any Subsidiary of Net Cash Proceeds to any Lender is annulled,
set aside, invalidated, declared to be fraudulent or
preferential, rescinded or must otherwise be returned,
refunded or repaid by such Lender or if any foreclosure
proceeds in the form of credit against the indebtedness of
Borrower and the Guarantor Subsidiaries or in the form of cash
or certified funds or any other proceeds paid to any Lender
from time to time, are required to be returned by such Lender
upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Subsidiary, or upon or
as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the
Borrower or any Subsidiary or any substantial part of their
respective property or otherwise, the Obligations shall
continue to be effective or be reinstated, as the case may be,
all as though such payment or payments had not been made.
2.06. Sections 7.14, 7.15 and 7.16 of the Credit Agreement
are hereby deleted therefrom in their entirety and the following new Sections
7.14, 7.15 and 7.16 are hereby inserted in lieu thereof:
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SECTION 7.14. Total Borrowed Funds to Consolidated Net
Worth. The ratio of (A) Total Borrowed Funds to (B)
Consolidated Net Worth minus the Special Reserve Adjustment
will not at any time exceed the applicable ratios set forth in
the following schedule:
From and To and
Including Including Ratio
--------- --------- -----
Closing Date 6/29/94 438%
6/30/94 6/29/95 418%
6/30/95 6/29/96 361%
6/30/96 6/29/97 314%
6/30/97 thereafter 266%
SECTION 7.15. Maximum Total Liabilities to Consolidated Net
Worth. The ratio of (A) Total Liabilities plus the Special
Reserve Adjustment to (B) Consolidated Net Worth minus the
Special Reserve Adjustment will not at any time exceed the
applicable ratios set forth in the following schedule:
From and To and
Including Including Ratio
--------- --------- -----
Closing Date 6/29/94 400%
6/30/94 6/29/95 360%
6/30/95 6/29/96 310%
6/30/96 6/29/97 270%
6/30/97 6/29/98 230%
6/30/98 thereafter 225%
SECTION 7.16. Minimum Consolidated Net Worth. Consolidated
Net Worth minus the Special Reserve Adjustment will not at any
time be less than the applicable amount set forth in the
following schedule:
From and To and
Including Including Amount
--------- --------- ------
Closing Date 6/29/95 $61,400,000
6/30/95 6/29/96 $68,200,000
6/30/96 6/29/97 $77,700,000
6/30/97 6/29/98 $86,600,000
6/30/98 6/29/99 $98,900,000
6/30/99 thereafter $101,100,000
2.07. Section 8.01(e) of the Credit Agreement is hereby
amended by deleting it therefrom in its entirety and substituting the following
new Section 8.01(e) in lieu thereof:
(e) Other Defaults Under Agreement and Other
Credit Documents. The Borrower or any Subsidiary shall fail
duly and punctually to perform, comply
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with or observe any covenant or obligation to be performed,
observed or complied with by it under this Agreement (other
than those provisions referred to in subsections (a) through
(d) above) or the other Credit Documents, and such failure
shall not have been remedied or waived within ten (10) days
after the earlier to occur of (i) receipt of written notice
thereof from the Agent to the Borrower or such Subsidiary, as
applicable or (ii) the date upon which the President, Chief
Executive Officer, Chief Financial Officer or Treasurer of the
Borrower has knowledge of such event.
2.08. Section 8.01(g)(i) of the Credit Agreement is hereby
amended by deleting the words "thirty (30)" from line 5 thereof and inserting
in lieu thereof the words "ten (10)" and Section 8.01(g)(ii) of the Credit
Agreement is hereby amended by deleting the words "ten (10)" from line 6
thereof and inserting in lieu thereof the words "thirty (30)".
2.09. Section 10.07 of the Credit Agreement is hereby
amended by deleting it therefrom in its entirety and inserting the following
new Section 10.07 in lieu thereof:
SECTION 10.07. EXCEPT FOR THE LETTERS OF CREDIT
SPECIFICALLY GOVERNED BY THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1983 REVISION), ICC PUB. NO. 400, AND
EXCEPT FOR COLLATERAL DOCUMENTS SPECIFICALLY GOVERNED BY THE
LAWS OF ANOTHER STATE, THIS AGREEMENT, THE NOTES, AND ALL
OTHER DOCUMENTS EXECUTED IN CONNECTION HEREWITH SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF TEXAS (EXCEPT THAT TEX. REV. CIV. STAT. ANN. ART.
5069, CH. 15 (WHICH REGULATES CERTAIN REVOLVING CREDIT LOAN
ACCOUNTS AND REVOLVING TRIPARTY ACCOUNTS) SHALL NOT APPLY TO
THIS AGREEMENT, THE LOANS OR THE NOTES), EXCEPT TO THE EXTENT
THAT THE FEDERAL LAW OF THE UNITED STATES OF AMERICA MAY
OTHERWISE APPLY. UNLESS CHANGED IN ACCORDANCE WITH LAW, THE
APPLICABLE RATE CEILING UNDER TEXAS LAW SHALL BE THE INDICATED
(WEEKLY) RATE CEILING FROM TIME TO TIME IN EFFECT AS PROVIDED
IN TEX. REV. CIV. STAT. ANN. ART. 5069-1.04, AS AMENDED.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECTION 10.07 OR IN
ANY OTHER LOAN DOCUMENT TO THE CONTRARY, NOTHING IN THIS
AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS SHALL BE
DEEMED TO CONSTITUTE A WAIVER OF ANY RIGHTS WHICH THE BANKS
MAY HAVE UNDER THE NATIONAL BANK ACT OR ANY APPLICABLE
FEDERAL LAW.
2.10. The Credit Agreement is hereby further amended by (i)
inserting in numerical order the new Exhibit 1.01D attached hereto, (ii)
deleting the existing Exhibit 2.05 therefrom in its entirety and substituting
the new Exhibit 2.05 attached hereto in lieu thereof and (iii) inserting in
numerical order the new Exhibit 6.02(s) attached hereto.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01. The Borrower and each Guarantor Subsidiary is duly
authorized to execute and deliver this Amendment and to perform the Credit
Agreement as amended hereby, and all corporate action on the Borrower's and
each Guarantor Subsidiary's part requisite for the due execution and delivery
of this Amendment, and the performance of the Credit Agreement as amended
hereby, has been duly and effectively taken.
3.02. All of the representations and warranties contained
in Article V of the Credit Agreement, as amended hereby, are true and correct
on and as of the date hereof and will be true and correct after giving effect
to this Amendment and the Borrower and each Guarantor Subsidiary hereby agrees
to be bound by such representations and warranties.
3.03. No event which constitutes a Default or an Event of
Default under the Credit Agreement, as amended hereby, has occurred and is
continuing, or would result from the execution and delivery of this Amendment.
ARTICLE IV
CONDITIONS
4.01. As a condition precedent to the closing of this
Amendment, the Agent shall have received the following, in form and substance
reasonably satisfactory to the Agent and in sufficient copies for each Lender:
(a) an accounting of all costs, fees and expenses which
were payable to Bank of America, or for which Bank of America was
seeking reimbursement, on the Effective Date, in scope, form and
substance acceptable to the Majority Lenders; and
(b) a copy of the final executed amendment to the Bank of
America Agreement reflecting changes made to Sections 6.11, 6.12 and
6.13 thereof effective as of June 15, 1993.
4.02. On or before July 15, 1993, Borrower and Bank of
America shall have executed and delivered an amendment (the "Conforming
Amendment") to the Bank of America Agreement, which substantially conforms
Sections 2.12(c), 6.23 and 6.44 of the Bank of America Agreement to Sections
7.10(c), 7.10(b) and 7.08, respectively, of the Credit Agreement as amended
hereby. Failure to timely deliver to the Agent an executed copy of such
Conforming Amendment, in form and substance satisfactory to the Agent, shall
result immediately and without further action from any party in the deletion of
all references to "Guarantor Subsidiary" or "Guarantor Subsidiaries" from new
Sections 7.10(c), 7.10(b) and 7.08 of the Credit Agreement and the insertion of
the terms "Subsidiary" and "Subsidiaries" in lieu thereof as appropriate,
effective as of the date hereof.
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ARTICLE V
MISCELLANEOUS
5.01. The Credit Agreement as hereby amended is in all
respects ratified and confirmed, and all other rights and powers created
thereby or thereunder shall be and remain in full force and effect.
5.02. This Amendment may be executed in several
counterparts, and each counterpart, when so executed and delivered, shall
constitute an original instrument, and all such separate counterparts shall
constitute but one and the same instrument.
5.03. The Borrower and each Guarantor Subsidiary agrees to
do, execute, acknowledge and deliver all and every further act and instrument
as the Lenders may request for the better assuring and confirming unto the
Lenders all and singular the rights granted or intended to be granted hereby or
hereunder.
5.04. THIS AMENDMENT AND ALL OTHER DOCUMENTS EXECUTED IN
CONNECTION HEREWITH SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF TEXAS (EXCEPT THAT TEX. REV. CIV. STAT. ANN. ART. 5069,
CH. 15 (WHICH REGULATES CERTAIN REVOLVING CREDIT LOAN ACCOUNTS AND REVOLVING
TRIPARTY ACCOUNTS) SHALL NOT APPLY TO THIS AMENDMENT), EXCEPT FOR COLLATERAL
DOCUMENTS SPECIFICALLY GOVERNED BY THE LAWS OF ANOTHER STATE AND EXCEPT TO THE
EXTENT THAT THE FEDERAL LAW OF THE UNITED STATES OF AMERICA MAY OTHERWISE
APPLY. NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECTION 5.04 TO THE
CONTRARY, NOTHING IN THIS AMENDMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS
SHALL BE DEEMED TO CONSTITUTE A WAIVER OF ANY RIGHTS WHICH THE LENDERS MAY HAVE
UNDER THE NATIONAL BANK ACT OR ANY APPLICABLE FEDERAL LAW.
5.05. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto, by their respective
officers thereunto duly authorized, have executed this Amendment effective as
of the date first above written.
BORROWER:
NATIONAL CONVENIENCE STORES
INCORPORATED
By:____________________________________
Name:_______________________________
Title:______________________________
100 Waugh Drive
Houston, Texas 77007
Telecopier: (713) 880-0579
GUARANTOR SUBSIDIARIES:
KEMPCO PETROLEUM COMPANY
By:____________________________________
Name:_______________________________
Title:______________________________
TEXAS SUPER DUPER MARKETS, INC.
By:____________________________________
Name:_______________________________
Title:______________________________
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SCHEPPS FOOD STORES, INC.
By:___________________________________
Name:______________________________
Title:_____________________________
STOP N GO MARKETS OF TEXAS, INC.
By:___________________________________
Name:______________________________
Title:_____________________________
STOP N GO MARKETS OF
GEORGIA, INC.
By:__________________________________
Name:_____________________________
Title:____________________________
LENDERS:
NATIONSBANK OF TEXAS, N.A.
By:_________________________________
Name: Neill P. Davis
Title: Senior Vice President
Domestic Lending Office and Euro-Dollar
Lending Office
700 Louisiana
8th Floor
Southwest Corporate Banking
Houston, Texas 77002
Telecopier No.: (713) 247-6719
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AGENT:
NATIONSBANK OF TEXAS, N.A.
By:________________________________
Name: Neill P. Davis
Title: Senior Vice President
Domestic Lending Office and Euro-Dollar
Lending Office
700 Louisiana
8th Floor
Southwest Corporate Banking
Houston, Texas 77002
Telecopier No.: (713) 247-6719
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Each of the undersigned has read, and does hereby consent to and
approve (i) the terms and conditions set forth in this Amendment and (ii) the
execution and delivery of this Amendment by the Borrower and the Guarantor
Subsidiaries to the Lenders and the performance by the Borrower and the
Guarantor Subsidiaries of the Credit Agreement as amended hereby, and further,
does hereby acknowledge that the execution and delivery of the Amendment by the
Borrower and the Guarantor Subsidiaries and performance by the Borrower and the
Guarantor Subsidiaries of the Credit Agreement, as amended hereby, will in no
event affect or limit the obligation of the undersigned to the Lenders under
that certain Guarantee Agreement dated as of February 6, 1990, executed by the
undersigned for the benefit of the Lenders, as it has been amended, restated or
otherwise modified from time to time and as it may be further amended, restated
or otherwise modified from time to time (the "Guarantee") and that certain
Security Agreement dated January 24, 1991, executed by the undersigned for the
benefit of the Agent and the Lenders, as it has been amended, restated or
otherwise modified from time to time and as it may be further amended, restated
or otherwise modified from time to time (the "Security Agreement"). The terms
and conditions of, and the obligations of the undersigned under, the Guarantee
and the Security Agreement are hereby ratified and affirmed in all respects.
CONSENTED AND APPROVED:
KEMPCO PETROLEUM COMPANY
By:_______________________________
Name:__________________________
Title:_________________________
TEXAS SUPER DUPER MARKETS, INC.
By:_______________________________
Name:__________________________
Title:_________________________
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STOP N GO MARKETS OF TEXAS, INC.
By:_______________________________
Name:__________________________
Title:_________________________
STOP N GO MARKETS OF GEORGIA, INC.
By:_______________________________
Name:__________________________
Title:_________________________
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The undersigned has read, and does hereby consent to and
approve (i) the terms and conditions set forth in this Amendment and (ii) the
execution and delivery of this Amendment by the Borrower and the Guarantor
Subsidiaries to the Lenders and the performance by the Borrower and the
Guarantor Subsidiaries of the Credit Agreement as amended hereby, and further,
does hereby acknowledge that the execution and delivery of the Amendment by the
Borrower and the Guarantor Subsidiaries and performance by the Borrower and the
Guarantor Subsidiaries of the Credit Agreement, as amended hereby, will in no
event affect or limit the obligation of the undersigned to the Lenders under
that certain Guarantee Agreement dated as of January 24, 1991, executed by the
undersigned for the benefit of the Lenders, as it has been amended, restated or
otherwise modified from time to time and as it may be further amended, restated
or otherwise modified from time to time (the "Guarantee") and that certain
Security Agreement dated January 24, 1991, executed by the undersigned for the
benefit of the Agent and the Lenders, as it has been amended, restated or
otherwise modified from time to time and as it may be further amended, restated
or otherwise modified from time to time (the "Security Agreement"). The terms
and conditions of, and the obligations of the undersigned under, the Guarantee
and the Security Agreement are hereby ratified and affirmed in all respects.
CONSENTED AND APPROVED:
SCHEPPS FOOD STORES, INC.
By:______________________________
Name:_________________________
Title:________________________
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The undersigned has read, and does hereby consent to and
approve (i) the terms and conditions set forth in this Amendment and (ii) the
execution and delivery of this Amendment by the Borrower and the Guarantor
Subsidiaries to the Lenders and the performance by the Borrower and the
Guarantor Subsidiaries of the Credit Agreement as amended hereby, and further,
does hereby acknowledge that the execution and delivery of the Amendment by the
Borrower and the Guarantor Subsidiaries and performance by the Borrower and the
Guarantor Subsidiaries of the Credit Agreement, as amended hereby, will in no
event affect or limit the obligation of the undersigned to the Lenders under
that certain Guarantee Agreement dated as of March 9, 1993, executed by the
undersigned for the benefit of the Lenders, as it may be amended, restated or
otherwise modified from time to time (the "Guarantee"). The terms and
conditions of, and the obligations of the undersigned under, the Guarantee are
hereby ratified and affirmed in all respects.
CONSENTED AND APPROVED:
NCS REALTY COMPANY
By:______________________________
Name:_________________________
Title:________________________
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EXHIBIT 2.05
to that certain Revolving Credit Agreement (as it may be amended, modified or
restated, from time to time, the "Agreement") dated as of March 9, 1993 by and
among National Convenience Stores Incorporated (the "Borrower"), the Guarantor
Subsidiaries parties thereto, the Lenders parties thereto, and NationsBank of
Texas, N.A. as Agent for the Lenders (in such capacity, the "Agent")
PAYMENT OF NET CASH PROCEEDS
AND OTHER INTERCREDITOR FUNDS
1. Certain Defined Terms.
1.1 "Credit Agreements" means the Agreement, the Reorganized
Credit Facility and the Bank of America Agreement.
1.2 "Intercreditor Banks" means the Agent, the Lenders, the Banks
(as that term is defined in the Reorganized Credit Facility) and Bank of
America and "Intercreditor Bank" means any one such bank.
1.3 "Other Intercreditor Funds" as used herein means monies used
or required to be used for making prepayments pursuant to the second sentence
of clause (b) of Section 2.05 of the Agreement.
1.4 Capitalized terms used in this Exhibit 2.05 and not otherwise
defined herein shall have the meanings assigned to them in the Agreement.
2. Obligations of Borrower.
2.1 The Borrower will deliver notice in writing (the "Borrower
Notice") to the Agent (on behalf of the Lenders and the banks parties to the
Reorganized Credit Facility) and Bank of America at least five (5) days (or
such other time period agreed to by the Borrower and the Agent on behalf of the
Lenders and the banks parties to the Reorganized Credit Facility) prior to the
date (the "Expected Payment Date") the Borrower reasonably expects to receive,
or otherwise have, Net Cash Proceeds or Other Intercreditor Funds (the
"Expected Payment") payable to the Intercreditor Banks pursuant to the
respective Credit Agreements, setting forth (a) the total amount of the
Expected Payment, (b) the date upon which the Borrower reasonably expects to
receive or otherwise have the Expected Payment, (c) the source of such Expected
Payment, and (d) a determination as to the applicable percentage (the
"Estimated Applicable Percentage") of such Expected Payment which should be
paid to each Intercreditor Bank pursuant to the terms and conditions of the
Intercreditor Agreement.
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2.2 Upon receipt or possession (the "Actual Payment Date") of Net
Cash Proceeds or Other Intercreditor Funds (the "Actual Payment") payable to
the Intercreditor Banks pursuant to the respective Credit Agreements, the
Borrower will reconcile the Actual Payment with the Estimated Payment and will
pay the Actual Applicable Percentages (hereinafter defined) of such Actual
Payment to each Intercreditor Bank pursuant to the terms of the respective
Credit Agreements. In any event, the Borrower shall hold the Actual Payment in
a segregated cash collateral account, in trust for the Agent (on behalf of the
Lenders and the banks parties to the Reorganized Credit Facility) and Bank of
America on terms and conditions satisfactory to the Agent until paid to the
Intercreditor Banks in accordance with the terms of the respective Credit
Agreements.
2.3 The "Actual Applicable Percentage" shall be (i) the Estimated
Applicable Percentage, if (x) the Agent and Bank of America do not otherwise
notify the Borrower on or before the Actual Payment Date, (y) only one
Intercreditor Bank notifies the Borrower of changes to the Estimated Applicable
Percentage, or (z) the Intercreditor Banks specify inconsistent changes to the
Estimated Applicable Percentage that are not reconciled on or before the Actual
Payment Date or (ii) the percentage that both the Agent and Bank of America
specify to the Borrower on or before the Actual Payment Date, if the
Intercreditor Banks specify consistent changes to the Estimated Applicable
Percentages. If the Intercreditor Banks disagree (whether before or after the
Actual Payment Date) with the Estimated Applicable Percentages and such dispute
is not resolved on or before the Actual Payment Date, the Intercreditor Banks
shall hold the portion of the Actual Payment received that is in dispute, and
shall resolve such dispute, in accordance with the terms of the Intercreditor
Agreement.
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EXHIBIT 6.02(S)
Submitted for the quarter ended ________________________________.
Since March 31, 1993, Special Reserves have been reduced as follows:
Amount of Remaining
Reduction* Balance*
Environmental Reserve (Long Term Portion) $ $
------------ ------------
NMO Reserve $ $
------------ ------------
Tax Reserve $ $
------------ ------------
Total $ $
------------ ------------
Since March 31, 1993, the corresponding accounting entries to balance the
Special Reserve reduction were as follows:
Cash $
------------
Short Term Environmental Reserves $
------------
(specify) $
------------
(specify) $
------------
Total $
------------
*All numbers are rounded to the nearest thousand
The Special Reserve Adjustment as of the most recent quarter end (which is
equal to the aggregate amount of reduction since March 31, 1993 to Special
Reserves which has resulted, directly or indirectly, in an increase to
Consolidated Net Worth) is equal to $_______________________.