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EXHIBIT 4.4
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, SECOND
AMENDMENT TO REVOLVING CREDIT AGREEMENT AND OVERRIDING
AMENDMENT TO ALL OTHER LOAN DOCUMENTS
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT, SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND OVERRIDING
AMENDMENT TO ALL OTHER LOAN DOCUMENTS (the "Amendment") dated as of March 31,
1994 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"), NATIONSBANK OF NORTH CAROLINA, N.A. ("NationsBank--North
Carolina") (together NationsBank-Texas and NationsBank-North Carolina are
hereinafter referred to as the "Banks") and NATIONSBANK-TEXAS, as Agent for the
Banks (in such capacity, the Agent").
WHEREAS, the Borrower, the Agent and the Banks are parties to
that certain Second Amended and Restated Credit Agreement dated as of March 9,
1993, as amended by that certain First Amendment to Second Amended and Restated
Credit Agreement dated as of June 15, 1993 (as amended, the "Credit
Agreement"); and
WHEREAS, the Borrower, the Guarantor Subsidiaries, and
NationsBank-Texas (in its dual capacity as a lender thereunder and as agent for
the parties that are now, or in the future may be, signatories thereto) are
parties to that certain Revolving Credit Agreement dated as of March 9, 1993,
as amended by that certain First Amendment to Revolving Credit Agreement dated
as of June 15, 1993 (as amended, the "Revolving Agreement"); and
WHEREAS, the Borrower and the Banks are parties to other Loan
Documents (as that term is defined in the Credit Agreement); and
WHEREAS, the Banks and Bank of America National Trust and
Savings Association ("Bank of America") are parties to the Second Amended and
Restated Intercreditor Agreement dated as of November 23, 1992, as amended by
that certain First Amendment to Second Amended and Restated Intercreditor
Agreement dated March 1, 1993 and further amended by that certain Second
Amendment to Second Amended and Restated Intercreditor Agreement dated as of
March 9, 1993 (as amended, the "Intercreditor Agreement"); and
WHEREAS, the Banks and Bank of America have issued letters of
credit (the "Outstanding Letters of Credit") for the benefit of National Union
Fire Insurance Company of Pittsburgh, Pa., American Home Assurance Company and
the Insurance Company of the State of Pennsylvania (such companies are related
to AIG Risk Management, Inc. and are in the American International Group of
insurance companies and are, together with AIG Risk Management, Inc. and AIG
Life Insurance Company, hereinafter collectively referred to as
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"National Union" and individually as a "National Union Company") to secure the
Borrower's obligations to National Union resulting from the insurance policies
issued by National Union for the benefit of the Borrower; and
WHEREAS, the Bankruptcy Court (as that term is defined in the
Credit Agreement) has entered an order in the Bankruptcy Cases (as that term is
defined in the Credit Agreement) that orders that the Outstanding Letters of
Credit issued by the Banks and Bank of America for the benefit of National
Union shall be reduced in the aggregate amount of $4,494,152.00; and
WHEREAS, to accomplish the ordered reduction in the
Outstanding Letters of Credit, the Borrower, the Banks, National Union and Bank
of America have agreed to (i) cancel all of the Outstanding Letters of Credit
issued by Bank of America, (ii) issue shares of the Borrower's capital stock
to National Union in lieu of the Outstanding Letters of Credit issued by Bank
of America for the benefit of National Union, and (iii) to provide for the
replacement of the Existing Letters of Credit issued by NationsBank-Texas for
the benefit of National Union, as beneficiary, (the "National Union Letters of
Credit") with nine new letters of credit; and
WHEREAS, in connection with the foregoing, the Borrower and
the Banks have agreed to amend the Credit Agreement, the Revolving Agreement
and the other Loan Documents as set forth herein and the Banks and Bank of
America have agreed to terminate the Intercreditor Agreement;
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:
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.
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ARTICLE II
AMENDMENT AND AGREEMENT
2.01. Section 1.01 of the Credit Agreement is hereby
amended by inserting the following definition in alphabetical order therein:
"National Union Company" means any of National Union
Fire Insurance Company of Pittsburgh, Pa., American Home
Assurance Company, the Insurance Company of the State of
Pennsylvania, AIG Risk Management, Inc. and AIG Life Insurance
Company.
2.02. Section 2.02 of the Credit Agreement shall be amended
by deleting said Section 2.02 in its entirety and substituting in lieu thereof
the following:
SECTION 2.02. Letters of Credit. (a) On and after the date
hereof all Existing Letters of Credit which have been issued
for the benefit of a National Union Company shall be exchanged
for, and replaced by nine letters of credit each to be issued
to National Union Fire Insurance Company of Pittsburgh, PA, as
beneficiary thereunder, in the respective face amounts (the
"Face Amounts") shown below (collectively, the "Replacement
Letters of Credit" and individually, a "Replacement Letter of
Credit"):
(i) Face Amount: $1,279,394.01
Availability Date: March 31, 1994
(ii) Face Amount: $1,500,000.00
Availability Date: June 1, 1994
(iii) Face Amount: $1,250,000.00
Availability Date: December 1, 1994
(iv) Face Amount: $1,250,000.00
Availability Date: June 1, 1995
(v) Face Amount: $1,000,000.00
Availability Date: December 1, 1995
(vi) Face Amount: $1,000,000.00
Availability Date: June 1, 1996
(vii) Face Amount: $750,000.00
Availability Date: December 1, 1996
(viii) Face Amount: $750,000.00
Availability Date: June 1, 1997
(ix) Face Amount: $591,925.00
Availability Date: December 1, 1997
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With the exception of the Replacement Letter of Credit
described in subsection (i) of this Section 2.02(a), each
Replacement Letter of Credit shall have an expiry date of
sixty (60) days subsequent to such Replacement Letter of
Credit's corresponding "Availability Date" set forth in
Section 2.02(a)(ii) through (ix). Each Replacement Letter of
Credit shall not be renewed, provided, however, that each
Replacement Letter of Credit shall automatically renew for an
additional forty- five (45) days following the expiry date in
the event that during the period occurring after the
Availability Date and at least thirty (30) days prior to the
expiry date of a Replacement Letter of Credit, the Agent shall
fail to notify the beneficiary of such Replacement Letter of
Credit in writing by registered mail (return receipt
requested) that such Replacement Letter of Credit will not be
renewed; and provided, further, that no such notice shall be
necessary in connection with the Replacement Letter of Credit
described in Section 2.02(a)(i) hereof, which Replacement
Letter of Credit shall have an expiry date of thirty (30) days
following its Availability Date, with no possible extensions
or renewals.
Upon the occurrence of a draw on any of the Replacement
Letters of Credit, the amount available under such Replacement
Letter of Credit shall be permanently reduced by an amount
equal to the drawn amount provided, that the foregoing shall
in no event limit the right of the beneficiary of the
Replacement Letter of Credit to effect a draw in accordance
with the terms and conditions of this Agreement.
(b) On or after the date hereof, and prior to the Termination
Date, subject to the terms and conditions of this Agreement,
so long as no Event of Default has occurred (and shall not
have been waived by the Majority Banks in accordance with the
terms hereof), NationsBank-Texas (the "Issuing Bank") agrees
to permit the Existing Letters of Credit for the account of
the Borrower to renew in accordance with their terms;
provided, that, (i) the renewed Existing Letters of Credit,
other than the Replacement Letters of Credit, shall not have
an expiry date on or after a date which is more than twelve
(12) months following such renewal, and in any event, shall
have an expiry date which is at least ten (10) days prior to
the Termination Date, and (ii) after giving effect to any
renewal, the aggregate amount of all the Existing Letters of
Credit, other than the Replacement Letters of Credit, at any
time outstanding (including that portion of any Existing
Letter of Credit which has been drawn upon and which has not
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been reimbursed by the Borrower) shall not exceed
$1,774,274.49, less amounts drawn under any Letter of Credit,
other than the Replacement Letters of Credit, from time to
time from and after March 31, 1994. Existing Letters of
Credit may be renewed solely for the benefit of the
Beneficiary of such Existing Letter of Credit, or the
successors or assigns of such Beneficiary, under the terms and
conditions of such Existing Letter of Credit, and for the
purpose for which such Existing Letter of Credit was
originally issued.
(c) In no event will the Issuing Bank have any obligation
to issue any letter of credit for the account of the Borrower
other than a renewal (or successive renewals) of an Existing
Letter of Credit, other than a Replacement Letter of Credit in
accordance with the provisions of Section 2.02(a).
2.03. Any and all references contained in the Credit
Agreement, the Revolving Agreement and any other Loan Documents to Letter(s) of
Credit or Existing Letters of Credit (as those terms are defined in such Credit
Agreement, Revolving Agreement and Loan Documents) shall include a reference to
the Replacement Letters of Credit.
2.04. Subsection (a) of Section 2.08 of the Credit
Agreement is hereby amended by deleting the phrase "in accordance with the
procedures set forth in Exhibit 2.08 hereof," in lines 2 and 3 therein.
2.05. Subsection (d) of Section 2.08 of the Credit
Agreement is hereby amended by deleting the phrase "such Net Cash Proceeds in
the proportions required in accordance with notices delivered by the Agent and
Bank of America pursuant to Exhibit 2.08 hereto; provided that upon payment in
full of all obligations of the Borrower to the Bank of America under the Bank
of America Agreement, the Borrower shall pay to the Agent, for the benefit of
the Banks and the lenders parties to the Revolving Credit Agreement," in lines
2 through 7 therein.
2.06. Subsection (a) of Section 2.15 of the Credit
Agreement is hereby amended to add the phrase ", other than the Replacement
Letters of Credit," after the words "Existing Letter of Credit" on line 3 of
said Subsection (a), and after the words "Letter of Credit" on line 6 of said
Subsection (a).
2.07. Subsection (c) of Section 2.15 of the Credit
Agreement is hereby amended by adding after the phrase "In order to induce the
renewal of the Existing Letters of Credit by the Issuing Bank," in lines 1 and
2 therein, the following:
"or, in order to induce the Issuing Bank to issue the
Replacement Letters of Credit,"
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2.08. Section 5.11 of the Credit Agreement is hereby amended
by deleting the phrase "CAPEX shall be limited to the greater of (i)
$17,300,000 or (ii) the Consolidated Fixed Charge Coverage Margin, up to an
amount equal to $19,000,000" from lines 3 and 4 therein, and substituting the
phrase "CAPEX shall be limited to $25,000,000" in lieu thereof. Section 5.11
of the Credit Agreement is hereby further amended by deleting the figure
$17,300,000 in line 1 of the schedule contained therein and substituting the
figure $25,000,000 in lieu thereof.
2.09. Subsection (a) of Section 5.14 of the Credit
Agreement is hereby amended by inserting a period after the word "Liens" in
subsection (a)(v) therein and by deleting the semicolon and the word "and" in
subsection (a)(v) therein and by deleting subsection (a)(vi) in its entirety.
2.10. Subsection (a) of Section 5.22 of the Credit
Agreement is hereby amended by inserting a period after the word "Banks" in
line 3 therein and by deleting the phrase "in the percentages set forth in
Exhibit 2.08 and in accordance with Section 2.08(d) hereof." in lines 3 and 4
therein.
2.11. Section 5.23 of the Credit Agreement is hereby
deleted in its entirety and is of no further force and effect and the following
shall be substituted in lieu thereof:
SECTION 5.23. Intentionally Omitted.
2.12. Section 5.25 of the Credit Agreement is hereby
amended to provide that, notwithstanding any provision of said Section 5.25, no
amounts shall be payable at any time pursuant to the Bank of America Credit
Documents to Bank of America under Section 5.25 thereof after the date of this
Amendment.
2.13. Exhibit 2.08 to the Credit Agreement is hereby
deleted in its entirety and the following shall be substituted in lieu thereof:
Exhibit 2.08 Intentionally Omitted.
2.14. Subsection (a)(ii) of Section 2.05 of the Revolving
Agreement is hereby amended by deleting the phrase "such Net Cash Proceeds in
the proportions required in accordance with notices delivered by the Agent and
Bank of America pursuant to Exhibit 2.05 hereto; provided that, upon payment in
full of all obligations of the Borrower to Bank of America under the Bank of
America Agreement, the Borrower shall pay to the Agent, for the benefit of the
Lenders and the banks parties to the Reorganized Credit Facility," from lines 4
through 9 therein.
2.15. Subsection (b) of Section 2.05 of the Revolving
Agreement is hereby amended by deleting in its entirety the last sentence of
said Subsection (b).
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2.16. Section 6.17 of the Revolving Agreement is hereby
deleted in its entirety and is of no further force and effect and the following
shall be substituted in lieu thereof:
Section 6.17 Intentionally Omitted.
2.17. Section 7.01 of the Revolving Agreement is hereby
amended by deleting in its entirety subsection (d) therein and by redesignating
subsection (e) as subsection (d).
2.18. Subsection (a) of Section 7.10 of the Revolving
Agreement is hereby amended by deleting the phrase "in the percentages set
forth in Exhibit 2.05 and" in line 3 therein.
2.19. Exhibit 2.05 to the Revolving Agreement is hereby
deleted in its entirety and the following shall be substituted in lieu thereof:
Exhibit 2.05 Intentionally Omitted.
2.20. Borrower hereby acknowledges and agrees that the
Intercreditor Agreement has been fully and effectively terminated. Any and all
references to the Intercreditor Agreement contained in the Credit Agreement,
the Revolving Agreement and in any of the Loan Documents shall, as of the date
hereof, be of no further force and effect. Without limitation to anything
contained herein, (i) for all purposes under the Credit Agreement, the
Revolving Agreement and the other Loan Documents, all of the obligations of the
Borrower to Bank of America under the Bank of America Agreement shall be deemed
to be paid in full and the Banks and the Lenders (as defined in the Revolving
Agreement) shall be entitled to 100% of all Net Cash Proceeds and (ii) to the
extent that the obligations of the Borrower to Bank of America under the Bank
of America Agreement are included in any calculation contained in any provision
in the Credit Agreement, the Revolving Agreement and any other Loan Document,
including, without limitation, the definition of "Senior Debt", the amount of
the Borrower's obligations to Bank of America under the Bank of America
Agreement shall be deemed to be $0.00.
2.21. In consideration of the foregoing, on and as of the
date hereof, Borrower shall pay to the Banks a prepayment in the amount of
$2,312,102.55 (the "Prepayment") which shall be applied first to the payment of
accrued and unpaid interest of, and second to the payment of unpaid principal
amounts outstanding on, the Notes under the Credit Agreement as of the date
such payment is received, in inverse order of maturity, provided that payments
applied to reduction of any Fixed Rate Loan will be subject to Section 2.10 of
the Credit Agreement.
2.22. 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 to the
Banks and the performance by the Borrower of the Credit Agreement and the
Revolving Agreement, as amended hereby, and the
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other Loan Documents insofar as they are affected by this Amendment, and
further, does hereby acknowledge that the execution and delivery of the
Amendment by the Borrower and performance by the Borrower of the Credit
Agreement and the Revolving Agreement, as amended hereby, and the other Loan
Documents insofar as they are affected by this Amendment, will in no event
affect or limit the obligation of the undersigned to the Banks under that
certain Guarantee Agreement dated as of February 6, 1990, as to each of the
undersigned other than Schepps Food Stores, Inc. (collectively referred to as
the "1990 Guarantee"), and that certain Guarantee Agreement dated as of January
24, 1991, as to Schepps Foods Stores, Inc. (referred to as the "Schepps
Guaranty"), in each case executed by the undersigned for the benefit of the
Banks, 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 (together the 1990 Guarantee and the Schepps Guarantee are herein referred
to as the "Guarantee") and that certain Security Agreement dated January 24,
1991, executed by the undersigned for the benefit of the Agent and the Banks,
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, in each
case executed by the undersigned, are hereby ratified and affirmed in all
respects.
2.23. In connection with the termination of the
Intercreditor Agreement, (A) compliance by the Borrower with clauses (i), (iii)
and (iv) of Section 5.01(n) of the Credit Agreement is permanently waived, and
(B) calculation in accordance with the provisions of Section 5.25 of the Credit
Agreement of the amount of prepayments to be made by the Borrower to the Banks
and Bank of America on the date of this Amendment and in connection with this
Amendment is hereby waived.
2.24. In connection with the termination of the
Intercreditor Agreement, (A) compliance by the Borrower with clauses (i), (iii)
and (iv) of Section 6.02(r) of the Revolving Agreement is permanently waived,
and (B) calculation in accordance with the provisions of Section 6.19 of the
Revolving Agreement of the amount of prepayments to be made by the Borrower to
the Banks and Bank of America on the date of this Amendment and in accordance
with this Amendment is hereby waived.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01. The Borrower 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 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.
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3.02. All of the representations and warranties contained
in Article IV of the Credit Agreement, as amended, and Article V of the
Revolving Agreement, as amended, are true and correct on and as of the date
hereof and will be true and correct after giving affect to this Amendment and
the Borrower 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 effectiveness of this
Amendment, all of the following must have occurred:
(a) the Agent shall have received the Prepayment required
by Section 2.21 hereof;
(b) the Banks and Bank of America shall have executed an
agreement, in form and substance reasonably satisfactory to the Agent, that
fully and effectively terminates the Intercreditor Agreement;
(c) the Outstanding Letters of Credit issued by
NationsBank-Texas for the benefit of National Union shall have been cancelled
and terminated and the Replacement Letters of Credit shall have been issued;
(d) the Outstanding Letters of Credit issued by Bank of
America for the benefit of National Union shall have been cancelled and
terminated;
(e) the Agent shall have received a legal opinion from
counsel for the Borrower that this Amendment and the transaction contemplated
herein (i) has been duly authorized by all requisite corporate action, and (ii)
has been validly executed and delivered by the Borrower and the Guarantor
Subsidiaries; and
(f) the Agent shall have received evidence reasonably
satisfactory to the Banks that the Liens in favor of Bank of America granted
pursuant to the Bank of America Credit Documents have been released or will be
released immediately subsequent to the execution of this Amendment.
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ARTICLE V
MISCELLANEOUS
5.01. The Credit Agreement and the Revolving Agreement, as
hereby amended, and the other Loan Documents insofar as they are affected by
this Amendment, are 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 agrees to do, execute, acknowledge and
deliver all and every further act and instrument as the Banks may reasonably
request for the better assuring and confirming unto the Banks 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 BANKS MAY HAVE
UNDER THE NATIONAL BANK ACT OR ANY APPLICABLE FEDERAL LAW.
5.05. THE CREDIT AGREEMENT, THE REVOLVING AGREEMENT, AND
THE LOAN DOCUMENTS, AS AMENDED BY THIS AMENDMENT, 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.
(THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.)
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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.
NATIONAL CONVENIENCE STORES
INCORPORATED
By:______________________________
Name: Brian Fontana
Title: Vice President - Chief
Financial Officer
BANKS:
NATIONSBANK OF NORTH
CAROLINA, N.A.
By:_____________________________
Name: Neill P. Davis
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A.
By:____________________________
Name: Neill P. Davis
Title: Senior Vice President
AGENT:
NATIONSBANK OF TEXAS, N.A.
By:___________________________
Name: Neill P. Davis
Title: Senior Vice President
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GUARANTOR SUBSIDIARIES:
KEMPCO PETROLEUM COMPANY
By:__________________________
Name:_____________________
Title:____________________
TEXAS SUPER DUPER MARKETS, INC.
By:__________________________
Name:_____________________
Title:____________________
STOP N GO MARKETS OF TEXAS, INC.
By:__________________________
Name:_____________________
Title:____________________
STOP N GO MARKETS OF GEORGIA, INC.
By:__________________________
Name:_____________________
Title:____________________
SCHEPPS FOOD STORES, INC.
By:__________________________
Name:_____________________
Title:____________________
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