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EXHIBIT 4.5
FOURTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AND
FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
and FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "AMENDMENT") is
entered into as of June 30, 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 a first
amendment dated as of June 15, 1993, a second amendment dated as of March 31,
1994, a Consent, Waiver and Amendment of Certain Provisions of Second Amended
and Restated Credit Agreement and Revolving Credit Agreement dated as of April
29, 1994, and a third amendment dated as of March 31, 1995, the "TERM LOAN
AGREEMENT").
B. Borrower, Agent, and Lenders executed a Revolving Credit
Agreement dated as of March 9, 1993 (as amended by a first amendment dated as
of June 15, 1993, a second amendment dated as of March 31, 1994, a Consent,
Waiver and Amendment of Certain Provisions of Second Amended and Restated
Credit Agreement and Revolving Credit Agreement dated as of April 29, 1994, and
a third amendment dated as of March 31, 1995, the "REVOLVING CREDIT
AGREEMENT").
C. Collectively, the Term Loan 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:
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1. Term Loan Agreement. Sections 5.09, 5.10 and 5.11 of the Term
Loan Agreement are deleted and replaced with the following:
SECTION 5.09. Maintenance of Consolidated Fixed Charge
Coverage. As of the last day of each Fiscal Quarter, the
Consolidated Fixed Charge Coverage Ratio will not be less than
the applicable ratios set forth in the following schedule:
From and To and
Including Including Ratio
--------- --------- -----
6/30/95 9/29/95 119%
9/30/95 6/29/96 125%
6/30/96 6/29/97 140%
6/30/97 6/29/98 140%
6/30/98 thereafter 145%
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, 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
--------- --------- ------
6/30/95 9/29/95 $29,500,000
9/30/95 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 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 1995, 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 1995, 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
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percentages of the amounts for the Fiscal Year set forth in
the following schedule: First Quarter, 40%, Second Quarter,
75%, Xxxxx Xxxxxxx, 00%.
Fiscal Maximum
Year Ending CAPEX
----------- -----
6/30/95 $27,000,000
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) in Fiscal Year 1995, CAPEX may be $27,000,000, and (ii)
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.
(a) The definition of "Termination Date" in Section 1.01
of the Revolving Credit Agreement is deleted and replaced with
the following:
"Termination Date" means September 30, 1996.
(b) Section 2.02 (g) of the Revolving Credit Agreement
is deleted.
(c) Sections 7.18, 7.19 and 7.20 of the Revolving Credit
Agreement are deleted and replaced with the following:
SECTION 7.18. Maintenance of Consolidated Fixed Charge
Coverage. As of the last day of each Fiscal Quarter, the
Consolidated Fixed Charge Coverage Ratio will not be less than
the applicable ratios set forth in the following schedule:
From and To and
Including Including Ratio
--------- --------- -----
6/30/95 9/29/95 119%
9/30/95 6/29/96 125%
6/30/96 6/29/97 140%
6/30/97 6/29/98 140%
6/30/98 thereafter 145%
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
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schedule, 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
--------- --------- ------
6/30/95 9/29/95 $29,500,000
9/30/95 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 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 1995, 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 1995, 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%, Xxxxx
Xxxxxxx, 00%.
Fiscal Maximum
Year Ending CAPEX
----------- -----
6/30/95 $27,000,000
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) in Fiscal Year 1995,
CAPEX may be $27,000,000, and (ii) 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 become effective when it has
been duly executed and delivered by Borrower, Agent, and each Lender and has
been consented to by each Guarantor Subsidiary.
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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, except to the extent such
representations and warranties relate to a specific earlier 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
accordance with their respective terms. In the event of any inconsistency
between the terms of the Credit Agreements as hereby modified (the "AMENDED
CREDIT AGREEMENTS") and any 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 affected 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, if any,
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.
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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.,
INCORPORATED as Agent and a Lender
By: By:
_________________________ ____________________________
Xxxxx Xxxxxxx Neill X. Xxxxx
Vice President Senior Vice President
NATIONSBANK OF NORTH CAROLINA, N.A.,
as a Lender
By:
____________________________
Neill X. Xxxxx
Senior Vice President
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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
XXXXXXX FOOD STORES, INC.
STOP N GO MARKETS OF GEORGIA, INC.
STOP N GO MARKETS OF TEXAS, INC.
TEXAS SUPER DUPER MARKETS INC.
By:
________________________________________________
Xxxxx Xxxxxxx
Treasurer of each of the above companies
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