1
EXHIBIT 4.4
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AND
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
and THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT (collectively, the
"AMENDMENT") is entered into as of March 31, 1995, among NATIONAL CONVENIENCE
STORES INCORPORATED, a Delaware corporation ("BORROWER"), NATIONSBANK OF NORTH
CAROLINA, N.A., a national banking association "NATIONSBANK-NORTH CAROLINA"),
and NATIONSBANK OF TEXAS, N.A., a national banking association
("NATIONSBANK-TEXAS") (collectively, the "LENDERS"), and NationsBank-Texas as
agent for itself and the other Lenders ("AGENT"). Terms not defined in this
Amendment have the meaning given such terms in the Credit Agreements (defined
below).
RECITALS
A. Borrower, Agent, and Lenders executed a Second Amended and
Restated Credit Agreement dated as of March 9, 1993 (as amended by that First
Amendment to Second Amended and Restated Credit Agreement dated as of June 15,
1993, and that Second Amendment to Second Amended and Restated Credit Agreement
dated as of March 31, 1994, and as subsequently amended, restated,
supplemented, or replaced, the "CREDIT AGREEMENT").
B. Borrower, Agent, and Lenders executed a Revolving Credit
Agreement dated as of March 9, 1993 (as amended by that First Amendment to
Revolving Credit Agreement dated as of June 15, 1993, and that Second Amendment
to Revolving Credit Agreement dated as of March 31, 1994, and as subsequently
amended, restated, supplemented, or replaced, the "REVOLVING CREDIT
AGREEMENT").
C. Collectively, the Credit Agreement and the Revolving Credit
Agreement are referred to in this Amendment as the "CREDIT AGREEMENTS".
D. Borrower has requested various modifications to the Credit
Agreements and the Lenders are willing to agree to such modifications subject
to the terms and conditions set out in this Amendment.
NOW, THEREFORE, in consideration of the premises set out in this
Amendment and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agree as follows:
2
1. Credit Agreement. Section 5.10 and Section 5.11 of the Credit
Agreement are deleted and replaced with the following:
SECTION 5.10. Minimum EBITDA. The sum of EBITDA calculated
as of the last day of each Fiscal Quarter for the four Fiscal Quarters
immediately preceding such date will not be less than the applicable
amount set forth in the following schedule, provided that through the
Fiscal Quarter ending March 31, 1994, calculations required above
shall include only Fiscal Quarters occurring after March 31, 1993, and
the minimum EBITDA will be the number listed below divided by 4 and
multiplied by the number of Fiscal Quarters occurring during such
period:
From and To and Minimum
Including Including EBITDA
--------- --------- ------
Closing Date 3/31/95 $26,000,000
6/30/95 6/29/96 $32,900,000
6/30/96 6/29/97 $36,600,000
6/30/97 6/29/98 $37,500,000
6/30/98 6/29/99 $38,600,000
6/30/99 thereafter $40,100,000
SECTION 5.11. Capital Expenditures. During the Fourth Fiscal
Quarter in Fiscal Year 1993, CAPEX shall be limited to $7,600,000.
During Fiscal Year 1994, CAPEX shall be limited to $25,000,000.
Thereafter during any Fiscal Year, as reported pursuant to Section
5.01(a), except as provided below, Capital Expenditures may not exceed
the LESSER of (x) the sum of (a) amounts set forth in the following
schedule, plus (b) for each Fiscal Year after Fiscal Year 1994,
amounts up to $3,000,000 which would have been permitted in the
immediately preceding Fiscal Year which were not expended (so long as
such carry-over amount does not otherwise cause a default in any other
covenant in Article V hereof), or (y) the sum of (a) the Consolidated
Fixed Charge Margin plus (b) for each Fiscal Year after Fiscal Year
1994, amounts up to $3,000,000 which would have been permitted in the
immediately preceding Fiscal Year which were not expended (so long as
such carry-over amount does not otherwise cause a default in any other
covenant in Article V hereof). At the last day of each Fiscal Quarter
within a year, cumulative CAPEX for the year-to-date may not exceed
the following percentages of the amounts for the Fiscal Year set forth
in the following schedule: First Quarter, 40%, Second Quarter, 75%,
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇%.
Fiscal Maximum
Year Ending CAPEX
----------- -----
6/30/94 $25,000,000
6/30/95 $20,300,000
6/30/96 $24,000,000
6/30/97 $25,100,000
6/30/98 $25,100,000
2
3
Fiscal Maximum
Year Ending CAPEX
----------- -----
Thereafter $26,900,000
Notwithstanding the limits above, so long as no default results in any
other financial covenant in Article V hereof, (i) for the Fiscal
Quarter ending March 31, 1995, CAPEX may be $19,000,000, (ii) in
Fiscal Year 1995, CAPEX may be $18,500,000, so long as the
Consolidated Fixed Charge Coverage Margin for such Fiscal Year equals
an amount that is not less than $17,500,000 and (iii) permitted CAPEX
may be increased in any Fiscal Year by the sum of (a) New Equity
Capital Available for CAPEX, plus (b) Excess Cash Flow Available for
CAPEX.
2. Revolving Credit Agreement. Section 7.19 and Section 7.20 of
the Revolving Credit Agreement are deleted and replaced with the following:
SECTION 7.19. Minimum EBITDA. The sum of EBITDA calculated
as of the last day of each Fiscal Quarter for the four Fiscal Quarters
immediately preceding such date will not be less than the applicable
amount set forth in the following schedule, provided that through the
Fiscal Quarter ending March 31, 1994, calculations required above
shall include only Fiscal Quarters occurring after March 31, 1993, and
the minimum EBITDA will be the number listed below divided by 4 and
multiplied by the number of Fiscal Quarters occurring during such
period:
From and To and Minimum
Including Including EBITDA
--------- --------- ------
Closing Date 3/31/95 $26,000,000
6/30/95 6/29/96 $32,900,000
6/30/96 6/29/97 $36,600,000
6/30/97 6/29/98 $37,500,000
6/30/98 6/29/99 $38,600,000
6/30/99 thereafter $40,100,000
SECTION 7.20. Capital Expenditures. During the Fourth
Fiscal Quarter in Fiscal Year 1993, CAPEX shall be limited to
$7,600,000. During Fiscal Year 1994, CAPEX shall be limited to
$25,000,000. Thereafter during any Fiscal Year, as reported pursuant
to Section 5.01(a), except as provided below, Capital Expenditures may
not exceed the LESSER of (x) the sum of (a) amounts set forth in the
following schedule, plus (b) for each Fiscal Year after Fiscal Year
1994, amounts up to $3,000,000 which would have been permitted in the
immediately preceding Fiscal Year which were not expended (so long as
such carry-over amount does not otherwise cause a default in any other
covenant in Article V hereof), or (y) the sum of (a) the Consolidated
Fixed Charge Margin plus (b) for each Fiscal Year after Fiscal Year
1994, amounts up to $3,000,000 which would have been permitted in the
immediately preceding Fiscal Year which were not expended (so long as
such carry-over amount does not otherwise cause a default in any other
covenant in Article V hereof). At the last day of each Fiscal Quarter
within a year, cumulative CAPEX for the year-to-date may not exceed
the following percentages
3
4
of the amounts for the Fiscal Year set forth in the following
schedule: First Quarter, 40%, Second Quarter, 75%, ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇%.
Fiscal Maximum
Year Ending CAPEX
----------- -----
6/30/94 $25,000,000
6/30/95 $20,300,000
6/30/96 $24,000,000
6/30/97 $25,100,000
6/30/98 $25,100,000
Thereafter $26,900,000
Notwithstanding the limits above, so long as no default results in any
other financial covenant in Article V hereof, (i) for the Fiscal
Quarter ending March 31, 1995, CAPEX may be $19,000,000, (ii) in
Fiscal Year 1995, CAPEX may be $18,500,000, so long as the
Consolidated Fixed Charge Coverage Margin for such Fiscal Year equals
an amount that is not less than $17,500,000 and (iii) permitted CAPEX
may be increased in any Fiscal Year by the sum of (a) New Equity
Capital Available for CAPEX, plus (b) Excess Cash Flow Available for
CAPEX.
3. Conditions. This Amendment will not be effective until it has
been duly executed and delivered by Borrower, Agent, and each Lender and has
been consented to by each Guarantor Subsidiary.
4. Further Assurances. Borrower shall deliver to Agent such
other documents as Agent may reasonably request in connection with this
Amendment.
5. Representations and Warranties. Borrower hereby represents
and warrants to Lenders that the execution and delivery of this Amendment has
been authorized by all requisite action on the part of Borrower and each
Guarantor Subsidiary and will not violate any of their respective
organizational documents. Borrower further represents and warrants to Lenders
that (a) the representations and warranties of the Borrower and each Guarantor
Subsidiary in each Credit Document (as affected by this Amendment) are true
and correct in all material respects on and as of the effective date of this
Amendment as though made on and as of such date, and (b) the Borrower and each
Guarantor Subsidiary are each in full compliance with all covenants and
agreements contained in each Credit Document (as affected by this Amendment).
6. Fees and Expenses. Borrower agrees to pay the reasonable fees
and expenses of counsel to Agent for services rendered in connection with the
preparation, negotiation, and execution of this Amendment.
7. Inconsistency. Except as affected by this Amendment, the
Credit Documents are unchanged and continue in full force and effect. In the
event of any inconsistency between the terms of the Credit Agreements as hereby
modified (the "AMENDED CREDIT AGREEMENTS") and any
4
5
other Credit Document, the terms of the Amended Credit Agreements shall control
and such other Credit Document shall be deemed to be amended hereby to conform
to the terms of the Amended Credit Agreements.
8. No Waiver of Defaults; Release. This Amendment does not
constitute a waiver of, or a consent to any present or future violation of or
default under, any provision of the Credit Documents not expressly amended by
this Amendment, or a waiver of Lenders' right to insist upon future compliance
with each term, covenant, condition, and provision of the Credit Documents, and
the Credit Documents shall continue to be binding upon, and inure to the
benefit of, Borrower, Guarantor Subsidiaries, Agent, and Lenders and their
respective successors and assigns. BORROWER HEREBY RELEASES AGENT AND LENDERS
FROM ANY LIABILITY FOR ACTIONS OR FAILURES TO ACT IN CONNECTION WITH THE CREDIT
DOCUMENTS PRIOR TO THE DATE OF THIS AMENDMENT.
9. Form. Each agreement, document, instrument, or other writing
to be furnished Agent or Lenders under any provision of this Amendment must be
in form and substance satisfactory to Agent and its counsel.
10. Multiple Counterparts. This Amendment may be executed in more
than one counterpart, each of which shall be deemed an original, and all of
which constitute, collectively, one instrument; but, in making proof of this
Amendment, it shall not be necessary to produce or account for more than one
such counterpart. It shall not be necessary for Borrower, Agent, and all
Lenders to execute the same counterpart of this Amendment so long as Borrower,
Agent, and each Lender execute a counterpart of this Amendment.
11. Final Agreement. THE CREDIT DOCUMENTS, AS AMENDED BY THIS
AMENDMENT, REPRESENT 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 ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED as of the date first written above.
BORROWER AGENT
-------- -----
NATIONAL CONVENIENCE STORES NATIONSBANK OF TEXAS, N.A., as
INCORPORATED Agent and a Lender
By: By:
----------------------------------- -----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ Neill ▇. ▇▇▇▇▇
Vice President Senior Vice President
5
6
NATIONSBANK OF NORTH
CAROLINA, N.A. , as a Lender
By:
-----------------------------------
Neill ▇. ▇▇▇▇▇
Senior Vice President
6
7
GUARANTORS' CONSENT AND AGREEMENT
As an inducement to Agent and Lenders to execute, and in consideration
of Agent's and Lenders' execution of the foregoing Amendment, the undersigned
hereby consent to the Amendment and agree that the same shall in no way
release, diminish, impair, reduce, or otherwise adversely affect the respective
obligations and liabilities of each of the undersigned under the Second
Acknowledgment, Consent and Modification to Guarantee dated as of March 9,
1993, as amended by that First Amendment to Second Acknowledgment, Consent and
Modification to Guarantee dated as of June 15, 1993, which obligations and
liabilities are, and shall continue to be, in full force and effect. This
consent and agreement shall be binding upon the undersigned, and the respective
successors and assigns of each, and shall inure to the benefit of Agent and
Lenders, and the respective successors and assigns of each.
KEMPCO PETROLEUM COMPANY
▇▇▇▇▇▇▇ FOOD STORES, INC.
STOP N GO MARKETS OF GEORGIA, INC.
STOP N GO MARKETS OF TEXAS, INC.
TEXAS SUPER DUPER MARKETS INC.
By:
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer of each of the above companies
7
