Exhibit 10.41
AMENDMENT NO. 6 TO
LOAN AND SECURITY AGREEMENT
AND AMENDMENT NO. 8 TO SUPPLEMENT A
TO LOAN AND SECURITY AGREEMENT
June 29, 1998
All Star Gas Corporation, f/k/a
Empire Gas Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Loan and Security Agreement dated as
of June 29, 1994 among All Star Gas Corporation, f/k/a Empire Gas
Corporation ("Borrower"), the Lenders party thereto ("Lenders") and Bank of
America National Trust and Savings Bank, successor by merger to Bank of
America Illinois, f/k/a Continental Bank, f/k/a Continental Bank N.A., as a
Lender and as Agent for the Lenders ("BOA"), as amended through the date
hereof (the "Loan Agreement"). Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to such terms in the
Loan Agreement.
Borrower has requested that the Requisite Lenders agree to
amend the Loan Agreement and Supplement A thereto (a) to extend the
maturity date thereof through September 29, 1998 and (b) in various other
respects. The Requisite Lenders have agreed to the foregoing, on the terms
and conditions contained herein.
Therefore, the parties hereto agree as follows:
1. Amendments to Loan Agreement. The Loan Agreement
is hereby amended as follows:
(a) Section 1.1. Section 1.1 of the Loan Agreement is
hereby amended as follows:
(i) The definition of the term "LIBOR Rate" is hereby
amended by deleting the percentage "2.50%" contained therein
and inserting in its place the percentage "3.00%".
(ii) The definition of the term "Permitted Acquisition"
is amended and restated in its entirety as follows:
"'Permitted Acquisition' means any Acquisition
that is expressly consented to in writing by Requisite
Lenders."
(iii) The definition of the term "Termination Date" is
hereby amended by deleting the date "June 29, 1998" contained
therein and inserting in its place the date "September
29, 1998."
(b) Section 2.5(c). Section 2.5(c) of the Loan Agreement is
hereby amended by deleting the phrase "first Banking Day of each
month for the preceding month" and replacing it with the phrase
"first Banking Day on or after the first and fifteenth calendar days
of each month for the preceding period".
(c) Section 5.28. A new Section 5.28 is hereby added to the
Loan Agreement as follows:
"Banking Relationships. Maintain, and cause each
of its Subsidiaries to maintain, its principal business,
cash management, operating, and administrative deposit
accounts at Bank of America National Trust and Savings
Association."
(d) Section 3.2(d) of the Loan Agreement is hereby amended by
inserting the following at the end thereof:
"On or before July 15, 1998, Borrower shall establish at
Bank of America National Trust and Savings Association a
blocked account for receipt of the proceeds of Accounts
Receivable and other Collateral of Borrower and its
Subsidiaries, on terms and pursuant to documents in form
and substance acceptable to Agent."
2. Amendments to Supplement A. Supplement A is hereby amended
as follows:
(a) Section 2.2. Section 2.2 of Supplement A is hereby amended
as follows:
(i) Subsection (ii) thereof is hereby amended and
restated in its entirety as follows:
"(ii) an amount equal to the least of (a) $8,000,000, (b)
150% of Account Receivable Availability and (c) up to 52%
(after deduction of such reserves and allowances as Agent
deems proper and necessary in its reasonable judgment) of
Eligible Inventory."
(ii) Subsection (iii) is hereby deleted in its entirety.
(b) Section 3.1.1(a). Section 3.1.1(a) of Supplement A is
hereby amended by deleting the percentage "1.00%" contained therein
and inserting in its place the percentage "1.50%".
3. Representations and Warranties. The Borrower confirms that
all of the representations and warranties set forth in the Loan Agreement
are true and correct in all material respects as of the date of execution
hereof. In particular, the list of Borrower's Subsidiaries and their
business locations attached hereto as Annex 1 is true and correct in all
respects.
4. Scope. This Amendment No. 6 to Loan and Security Agreement
and Amendment No. 8 to Supplement A to Loan and Security Agreement (the
"Amendment") shall have the effect of amending the Loan Agreement,
Supplement A and the Related Agreements as appropriate to express the
agreements contained herein. In all other respects, the Loan Agreement,
Supplement A and the Related Agreements shall remain in full force and
effect in accordance with their respective terms.
5. Conditions to Effectiveness. This Amendment shall be
effective upon:
(a) the execution of this Amendment by BOA, on behalf of the
Requisite Lenders, acceptance hereof by Borrower and each other
Obligor, and delivery hereof to BOA at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, on or
prior to June 29, 1998; and
(b) the payment to BOA of a renewal fee of $15,000 in
consideration of this Amendment, which fee may be charged by BOA to
the Loan Account and shall be fully earned upon the execution of this
Amendment.
Very truly yours,
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, SUCCESSOR BY
MERGER TO BANK OF AMERICA ILLINOIS,
f/k/a CONTINENTAL BANK,
f/k/a CONTINENTAL BANK N.A.,
AS AGENT ON BEHALF OF REQUISITE LENDERS
By:_____________________________
Its:_____________________________
Acknowledged and agreed to
29th day of June, 1998.
ALL STAR GAS CORPORATION, f/k/a
EMPIRE GAS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Executive Vice President
Acknowledgment and Acceptance of Guarantors
Each of the undersigned is either (a) a party to the Master
Corporate Guaranty dated June 29, 1994 in favor of BOA, as Agent for itself
and Lenders (the "Guaranty"), pursuant to which each of the undersigned has
guaranteed the Obligations of Borrower under the Loan Agreement, (b) has
previously acquired to become a party to the Guaranty or (c) is agreeing by
its signature below to become a party to the Guaranty. Each of the
undersigned hereby acknowledges receipt of the foregoing Amendment, accepts
and agrees to be bound by the terms thereof, ratifies and confirms all of
its obligations under the Guaranty, and agrees that the Guaranty shall
continue in full force and effect as to it, notwithstanding such Amendment.
Acknowledged and Agreed to this
29th day of June, 1998.
EACH OF THE SUBSIDIARIES OF ALL STAR GAS
CORPORATION, f/k/a EMPIRE GAS CORPORATION,
LISTED ON EXHIBIT A ATTACHED HERETO
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Vice President of each Subsidiary
EXHIBIT A
List of Subsidiaries
CORPORATE REPORT
JUNE 18, 1998
AUTHORIZED TO
CORPORATION INCORPORATED DO BUSINESS OFFICERS DIRECTORS
All Star Gas Corporation Missouri None President ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Exec. VP ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Exec. VP ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
COO ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇. VP ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇. VP ▇▇▇ ▇▇▇▇▇▇▇
VP/MIS J. ▇▇▇▇ ▇▇▇▇▇
All Star Gas Inc. of Arizona None President ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Arizona Vice President ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Globe VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Camp Verde VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Flagstaff Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
All Star Gas Inc. of Arkansas Oklahoma President ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Arkansas Vice President ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - ▇▇▇▇▇▇▇▇▇ ▇▇/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Lincoln VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Siloam Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Springs VP/Treasurer
Summer's Butane
All Star Gas Inc. of California None President ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
California Vice President ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Needles Vice President ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
O.C. Propane VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
All Star Gas Inc. of California None President ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Elsinore Vice President ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
All Star Gas Inc. of California None President ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Sacramento Vice President ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
All Star Gas Inc. of California None President ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Susanville Vice President ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
All Star Gas Inc. of Yucca California None President ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Valley Vice President ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
All Star Gas Inc. of Colorado Colorado President ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Colorado Vice President ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Gunnison VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Boulder VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Canon City Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Castle VP/Treasurer
Rock
All Star - Colorado
Springs
All Star - Denver
All Star - Evergreen
All Star - Fairplay
All Star - Fort
▇▇▇▇▇▇▇
All Star - Delta
All Star - Grand
Junction
All Star - Loveland
All Star - Monte
Vista
All Star - Pueblo
All Star - Woodland
Park
All Star Gas Inc. of Michigan None President ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Michigan Vice President ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Big Rapids VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Newaygo VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Charlotte Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - ▇▇▇▇▇▇▇ ▇▇/Treasurer
All Star - Chassell
All Star - ▇▇▇▇▇▇▇
All Star - Kalamazoo
All Star - Marquette
All Star - Munising
All Star - Vassar
All Star - Oakley
All Star Gas Inc. of Delaware Missouri President ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Missouri Vice President ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Bolivar ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Buffalo VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
All Star - Carrolton VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Clinton Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - ▇▇▇▇ Camp VP/Treasurer
All Star - Humansville
All Star - Kansas City
All Star - Lebanon
All Star - ▇▇▇▇▇▇▇▇
All Star - Mt. ▇▇▇▇▇▇
All Star - Warsaw
All Star - Camdenton
All Star - Cuba
All Star - Elsberry
All Star - Lake Ozark
All Star - ▇▇▇▇▇▇
All Star - Mid-Mo
All Star - ▇▇▇▇▇▇ County
All Star Gas Inc. of No. No. Carolina None President ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Carolina Vice President ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Denver VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Gastonia VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Hendersonville VP/Treasurer
All Star -
Waynesville
All Star - Wilmington
All Star - Apex
All Star - Ayden
All Star - Carthage
All Star - Creedmoor
All Star - Durham
All Star - Warrenton
All Star - Washington
All Star - ▇▇▇▇▇▇
All Star - Zebulon
All Star Gas Inc. of Ohio Ohio None President ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
All Star - Columbiana Vice President ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Dover VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Mt. Vernon VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Toledo Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All Star - Johnstown VP/Treasurer
All Star Gas of Oklahoma, Oklahoma None President ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Inc. Vice President Vacant ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
All Star Marketing Oklahoma Iowa President ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Corporation Missouri Vice President Vacant ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Florida VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Kentucky VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
All Star Gas Inc. of Wyoming None President ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Wyoming Vice President ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Big Horn VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Ron's LP Gas VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
Empire Gas Corp. formerly California None President ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Empiregas Equip. Vice President Vacant ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Corp. VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
All Star Gas Inc. of Indiana None President ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Indiana Vice President ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Orland LP Gas VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
All Star Gas Inc. of Nevada Nevada None President ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
All Star - Sparks Vice President ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ - Winnemucca VP/Corp. Sec. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ - ▇▇▇▇▇▇ VP/Asst. Corp. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇ Sec. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP/Treasurer
ANNEX I
List of Subsidiaries and Locations
