First Amendment to Distributor Service Agreement

Exhibit 10.17

First Amendment to Distributor Service Agreement

This First Amendment to Distributor Service Agreement (the “Amendment”), is made and entered into effective as of and retroactive to January 1, 2005, by and between XxXxxx Company, Inc., a Texas corporation (“McLane”), and SSP Partners, a Texas general partnership (“SSP”).

Whereas, SSP and McLane entered into that certain Distributor Service Agreement dated August 21, 1997, as extended pursuant to those certain extensions dated May 13, 2002, October 10, 2002, and January 24, 2003. The Distributor Service Agreement, along with all amendments, exhibits and extensions, is hereby incorporated herein by reference for all purposes and is referred to herein as the “Agreement”; and

Whereas, SSP and McLane desire to amend the Agreement to in order to, among other things, extend the Agreement and modify the billing plan and the cigarette pricing;

Now, therefore, in consideration of the premises described below, McLane and SPP agree to amend the Agreement as follows:

1. The term of the Agreement (the “Term”) shall be for three (3) years, commencing January 1, 2005, and terminating on December 31, 2007.

2. Article 5.3 of the Agreement is modified to provide that the notices to X. X. Xxxxxx, Xx., shall be sent to X.X. Xxx 0000, Xxxxxx Xxxxxxx, Xxxxx 00000, telephone: 000-000-0000, telecopier: 000-000-0000.

3. The attached Exhibit A entitled “Cigarette Pricing”, and Exhibit B entitled “UIN Department Markup Schedule” (referred to collectively as the “Replacement Exhibits”), do hereby replace and supercede all prior Exhibits in the Agreement relating to the above-mentioned subjects.

4. All incentives and xxxx-up reductions contained in the Replacement Exhibits shall be retroactive to and effective as of January 1, 2005.

5. McLane shall provide to SSP, [***] of shelf tags for all stores for all products.

6. Telxon ordering units shall be provided by McLane to SSP at [***] to SSP. If McLane replaces the Telxon units with another electronic ordering device during the term of this Agreement, any fees will be subject to mutual agreement.

7. McLane shall provide to SSP [***] of live image planograms [***].

8. McLane reserves the right to implement a Diesel Fuel Surcharge (as described below) if the EIA Report on Highway Diesel Price – Gulf Coast (the “EIA Price”), exceeds [***] per gallon for [***] successive months. The Diesel Fuel Surcharge shall be calculated on a “per

* CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND IS NOTED WITH “[***].” AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

stop” basis as follows: For each incremental [***] cent [***] increase above [***] per gallon, McLane may charge an additional [***] cents [***] per stop. By way of explanation, if the EIA Price increases to [***] per gallon (an increase of [***] cents), then the Diesel Fuel Surcharge shall be [***] cents ([***] cents x 2 [***]-cent increases) per stop. Provided, however, that the Diesel Fuel Surcharge shall be eliminated once the EIA Price goes below [***] per gallon.

9. McLane shall pay to SSP a one-time transition allowance of [***] (the “Transition Allowance”), within [***] days after the last party signs this Amendment, as indicated below. This Amendment is contingent on the payment of the Transition Allowance, and the failure of McLane to timely deliver the Transition Allowance to SSP shall render this Amendment null and void and of no further force and effect. If the Agreement is terminated at any time during the Term due to an uncured default on the part of SSP or a Change in Control (as defined in Article 5.2), then SSP shall reimburse to McLane the total Transition Allowance paid to SSP by McLane under this Amendment, less one-thirty-sixth (1/36) of the Transition Allowance for each month elapsed during the Term.

10. McLane shall provide to SSP the [***], on a [***] basis, as defined below, for all SSP stores. If economic conditions warrant a change to the pricing structure by McLane in markets where SSP also operates stores, McLane shall notify SSP of such change and the pricing may be amended by mutual written agreement by SSP and XxXxxx. [***]. XxXxxx agrees to provide to SSP the [***] available from McLane in markets where SSP operates stores.

11. Article 5.2 is amended by adding the following:

“If there is a Change of Control, as herein defined, this Agreement may be terminated by SSP. A “Change in Control” shall be defined as: (a) a transfer of a substantial number of SSP’s Stores, or (b) an event or series of events constituting a change in voting control of SSP or Susser Holdings, LLC. If SSP is unable to cause the acquiring party to so assume and ratify this Agreement, then SSP shall have the option of terminating this Agreement and the parties shall have no further liabilities or obligations hereunder, except for amounts due to McLane prior to such termination, and the unearned Transition Allowance, if any, described in Paragraph 9 above.”

The Agreement, as expressly amended and modified herein, is hereby ratified and confirmed by SSP and McLane and shall continue in full force and effect. In the event of a conflict between the terms of this Amendment and the terms of the Agreement, the terms of this Amendment shall govern and control.

[Signatures on following page]

* CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND IS NOTED WITH “[***].” AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

2

XxXxxx Company, Inc.
By:		/s/

Print Name: 

Print Title: 

SSP Partners, a Texas general partnership
By:		/s/ X.X. Xxxxxx, Xx.

Print Name:		X.X. Xxxxxx, Xx.
Print Title:		Executive V. P.

EXHIBIT “A”

CIGARETTE PRICING

All cigarettes shall be billed at the then current manufacturer list price plus (a) [***] per carton with respect to all cigarettes manufactured by Xxxxxx Xxxxxx or any of its respective affiliates, or the Xxxxx & Xxxxxxxxxx business unit of Xxxxxxxx American, except as provided otherwise in (c) below, (b) [***] per carton on all cigarettes manufactured by Xxxxxxxx American or any of its affiliates, except as provided otherwise in (a) above or (c) or (d) below, (c) [***] per carton on Xxxxx, GPC, Viceroy and any other similarly priced cigarettes previously manufactured by Xxxxx & Xxxxxxxxxx, or any of its affiliates (including certain Pall Mall cigarettes), (d) [***] per carton on Xxxxxxxx cigarettes, (e) [***] per carton on all cigarettes manufactured by Lorillard Tobacco Company or any of its affiliates, or (f) [***] per carton with respect to cigarettes not described in (a), (b), (c), (d) or (e) above, plus, in all cases, all then applicable taxes and fair trade xxxx-ups. The per xxxxxx xxxx-ups described in (a), (b), (c), (d), (e) or (f) above will be proportionately increased/decreased in the event of any post-June 1, 2004 increases/decreases in the amounts payable to and/or discounts available to McLane from the cigarette manufacturers related to the purchase of cigarettes from such manufacturers by McLane. The per carton rebates described below will be paid within ten (10) business days after the end of each McLane fiscal accounting period.

Cigarette incentive schedule

State		Premium		Generic		Sub-Generic
Texas		[***]		[***]		[***]
Oklahoma		[***]		[***]		[***]

[***] will be paid on purchases by SSP of cigarettes manufactured by the fallowing manufacturers or any other manufacturers that do not offer satisfactory rebate/promotional programs to McLane.

Imperial Tobacco

KingMaker

Kretek

Xxx Xxxxxxx

Premier

State Fe Natural

Tobacco Exports

S&M Brands, Inc.

* CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND IS NOTED WITH “[***].” AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

Subject to the terms and conditions of Section 6.16 of this Agreement, McLane shall provide SSP with [***] of the price protection provided to McLane by the manufacturer on future price increases on cigarettes.

* CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND IS NOTED WITH “[***].” AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

UIN DEPARTMENT MARKUP SCHEDULE

EXHIBIT B

UIN DEPT		DEPARTMENT DESCRIPTION		XXXX UP
CIGARETTES
GROCERY		DEFAULT
20601		GROCERY		[***]
20602		SOFT/SPORTS DRINKS		[***]
20603		FOUNTAIN SYRUPS FIGAL/BIB		[***]
20604		JUICES		[***]
20605		DRINK POWDER/LIQ FOUNTAIN		[***]
20606		COOKIES/CRACKERS		[***]
20608		NUTS/SNACKS		[***]
20610		AUTOMOTIVE/MOTOR OIL		[***]
20611		NACHO CHIPS		[***]
20612		COFFEE VEND		[***]
20614		BULK POPCORN/SUPPLIES		[***]
20618		GROCERY (NORMAL GMP)		[***]
20620		DISPOSABLE LIGHTERS		[***]
20721		CUPS & LIDS		[***]
20722		STORE SUPPLIES/RACKS		[***]
20723		BAGS/PAPER/PLASTIC		[***]
20925		CANDY/FULL CASE, VEND		[***]
20926		CANDY/BAG		[***]
21030		CANDY/COUNT GOOD		[***]
21235		TOBACCO SMOKELESS		[***]
21338		TOBACCO CHEWING/SMOKING		[***]
21339		CIGARETTE PAPERS/SMOKING ACCSS		[***]
21442		TOBACCO CIGARS		[***]
21545		FROZEN FOOD RETAIL		[***]
21546		FROZEN FOOD BULK/P.PACK		[***]
21547		DELI MEAT/BULK/PPK FROZEN		[***]
21548		BAKERY FROZEN		[***]
21649		FROZEN F.FD MISC/DESSERTS		[***]
21650		FROZEN SANDWICHES		[***]
21651		FROZEN F.FD PIZZA/BURRITO		[***]
21652		ICE CREAM TAKE HOME		[***]
21653		FROZEN NOVELTIES RETAIL		[***]

* CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND IS NOTED WITH “[***].” AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

UIN DEPARTMENT MARKUP

SCHEDULE

EXHIBIT B

UIN DEPT		DEPARTMENT DESCRIPTION		XXXX UP
GROCERY
21757		REFRIGERATED		[***]
21758		REFRIGERATED JUICE/SHAKES		[***]
21759		CHEESE PACKAGED		[***]
21760		BAKERY COOLER		[***]
21761		EGGS		[***]
21762		PRODUCE		[***]
21865		FROZEN BEEF		[***]
21866		PROCESSED MEATS		[***]
21867		WAFER MEATS		[***]
21868		FRESH BOX BEEF		[***]
21869		FRESH POULTRY		[***]
21870		FRESH SEAFOOD		[***]
21871		DELI MEAT/BULK/PPK/COOLER		[***]
21872		DELI CHEESE BULK/P.PACK		[***]
21873		DELI SALADS BULK/P.PACK		[***]
21874		FROZEN POTATOES		[***]
21875		FROZEN POULTRY		[***]
21876		FROZEN PORK		[***]
21877		FRESH SALADS		[***]
21878		FRESH BULK VEGETABLES		[***]
21879		FRESH BULK FRUITS		[***]
21880		PRODUCE PREPACKAGED		[***]
21881		FROZEN SEAFOOD		[***]
		CATCHWEIGHT		[***]
		HALF-CASE		[***]
		SINGLE-SELL		[***]

* CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND IS NOTED WITH “[***].” AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.