<PAGE> 1
CUSIP No. 867830101 14D-1 Page 1 of Pages
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
EZS Acquisition Corporation; E-Z Serve Corporation
76-0472274; 75-2168773
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
BK, WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(e) or 2(f) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware; Delaware
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7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-0-
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8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES* / /
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9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
-0%-
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10 TYPE OF REPORTING PERSON*
CO; CO
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<PAGE> 2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FINAL AMENDMENT TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
Sunshine-Jr. Stores, Inc.
(Name of subject company)
EZS Acquisition Corporation
E-Z Serve Corporation
(Bidder)
Common Stock, par value $.10 per share
(Title of class of securities)
867830101
(CUSIP number of class of securities)
E-Z Serve Corporation
2550 North Loop West, Suite 600
Houston, Texas 77092
Attention: Mr. John T. Miller
(713) 684-4300
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of bidder)
With a copy to:
Mr. John L. Keffer
Bracewell & Patterson, L.L.P.
711 Louisiana Street, Suite 2900
Houston, Texas 77002-2781
(713) 223-2900
<PAGE> 3
EZS Acquisition Corporation, a Delaware corporation (the "Purchaser") and
a wholly-owned subsidiary of E-Z Serve Corporation, a Delaware corporation
("Parent"), hereby amends and supplements the Tender Offer Statement on Schedule
14D-1 originally filed on June 19, 1995 (the "Statement"), with respect to the
offer by the Purchaser to purchase all of the outstanding shares of common
stock, par value $.10 per share (the "Shares"), of Sunshine-Jr. Stores, Inc., a
Florida corporation (the "Company"), at a purchase price of $12.00 per Share,
net to the seller in cash, without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase dated June 19, 1995 (the
"Offer to Purchase") and in the related Letter of Transmittal (which, together
with the Offer to Purchase, constitute the "Offer"). The Offer expired July 20,
1995, and pursuant to Instruction F of Schedule 14D-1, this Final Amendment
shall be deemed to satisfy the reporting requirements of Section 13(d) of the
Securities Exchange Act of 1933 with respect to all Shares acquired by the
Purchaser pursuant to the Offer as reported herein. Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Offer as
incorporated by reference into the Statement.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(b) Subsequent to the commencement of the Offer and in view of the
Company's endorsement of the Offer, representatives of the Company and Purchaser
had numerous discussions in the ordinary course of the Offer concerning the
status of the Offer, the Merger and potential Superior Proposals, as defined in
the Merger Agreement.
After the expiration of the Offer, Purchaser became aware that a lawsuit
("Lawsuit") had been filed by CCC-PP, Inc. ("CCC") and Randall Hughes, as
plaintiffs ("Plaintiffs"), against the Company and certain former shareholders
of the Company, as defendants (Case No. 95-3500 in the Circuit Court in and for
Leon County, Florida, Civil Division). Representatives of CCC had earlier
approached representatives of the Company with the view to developing a Superior
Proposal as defined in the Merger Agreement.
Purchaser was further advised that these discussions never matured into a
Superior Proposal because, among other reasons, representatives of CCC withdrew
from negotiation. The lawsuit was filed in the Circuit Court in and for Leon
County, Florida, Civil Division shortly before expiration of the Offer. The
Plaintiffs sought entry of an order enjoining the Company from consummating
the Merger and a declaration that the break-up fee in the Merger Agreement was
invalid and unenforceable. Parent filed a Form 8-K with the Commission on July
21, 1995, disclosing such litigation. CCC also filed a motion for an
expedited hearing and requested that such hearing occur on July 24, 1995. In
the morning of July 24, 1995, the Company filed a response in opposition to
Plaintiffs' motions. Later on July 24, 1995, Plaintiffs filed a Notice of
Voluntary Dismissal requesting the dismissal of the Lawsuit.
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The Merger was effected on July 21, 1995, by the filing of Articles of Merger
with the Secretary of State of Florida and a Certificate of Ownership and Merger
with the Secretary of State of Delaware. As described in the Offer to Purchase,
each Share not tendered in the Offer was thereupon converted into the right to
receive $12.00 in cash net to the seller. In addition, the officers and
directors of Purchaser became the officers and directors of the Company in
accordance with the Merger Agreement. Immediately after the effectiveness of
the Merger, Parent (as the sole shareholder of the Company) increased the number
of members of the Board of Directors of the Company to three and elected Marion
H. Blackmon as the third director to join Neil H. McLaurin and John T. Miller.
Messrs. McLaurin, Miller and Blackmon are all officers of Parent and were
previously identified as potential nominees for directors of the Company in the
Company's Schedule 14D-9 as filed with the Commission on June 19, 1995.
Thereafter, the new Board of Directors removed all of the officers of the
Company and appointed a new slate of officers.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(b) Upon the expiration of the Offer, Purchaser made a payment of
$20,136,984 to the Depositary as payment for all Shares tendered in the Offer,
which sum consisted of (i) $15,136,984 from the Third Amendment, as defined
below, (ii) $2,465,375 as a partial release of the funds held in escrow pursuant
to the Escrow Agreement, and (iii) $2,534,625 from cash on hand. Upon the
effectiveness of the Merger, Parent deposited an additional $282,816 with the
Depositary to pay for the Shares not tendered in the Offer, which sum consisted
of (i) $34,625 from the remaining funds released from escrow in accordance with
the Escrow Agreement, and (ii) $248,191 from cash on hand. A total amount of
$20,419,800 is on account with the Depositary for the payment of $12 per share
for all of the 1,701,650 Shares outstanding prior to the Offer and shall be paid
as applicable as soon as practicable.
On July 21, 1995, Parent and E-Z Serve Convenience Stores, Inc., a Delaware
corporation and wholly-owned subsidiary of Parent ("EZCON"), entered into an
Amendment No. 3 and Waiver No. 2 to Credit and Guaranty Agreement ("Third
Amendment") with a group of banks ("Lenders") and with Societe Generale as agent
("Agent"). Pursuant to the Third Amendment, the Lenders and the Agent agreed
(i) to make loans to EZCON ("Tender Loans") in the aggregate principal amount
not to exceed $15,400,000 to be applied solely as a loan on an intercompany
basis to Parent and contributed to Purchaser to fund a portion of the purchase
price for the Shares tendered in the Offer, (ii) to make loans to EZCON ("Merger
Loans") in the aggregate principal amount not to exceed $15,400,000 to be loaned
to Parent on an intercompany basis and then contributed to Purchaser to
refinance the Tender Loans and to purchase the Shares not tendered in the Offer
but required to be purchased pursuant to the terms of the Agreement and Plan of
Merger dated June 15, 1995, among Parent, Purchaser and
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<PAGE> 5
the Company governing the terms of the merger of Purchaser with and into the
Company (the "Merger").
The Tender Loans bear interest at the stated and effective rate of the Agent's
base rate plus 3% with a stated maturity of the earlier of 30 days following the
making of such Tender Loan or the consummation of the Merger. The Tender Loans
may be prepaid at any time prior to the stated maturity. The Merger Loans bear
interest at a stated and effective rate of the Agent's base rate plus 1.25%
payable at the end of each calendar month and can be converted to LIBOR loans at
LIBOR plus 2.5%. The Merger Loans have a stated maturity date of the earlier of
the consummation of the merger of the Company with and into EZCON or July 23,
1996; provided, however, that if such merger has not occurred by such date or if
certain earnings targets are not met, the Merger Loans shall amortize based upon
an agreed schedule.
The Third Amendment changed certain of the defined financial covenants and
various restrictions on distributions, business transactions, contractual
obligations, capital expenditures and lease obligations applicable to Parent and
its subsidiaries, including the addition of certain financial covenants
applicable to the Company. Compliance with certain of these defined covenants
and restrictions (other than financial covenants) is waived to the extent and
for so long as (and only to the extent and for so long as) an applicable
contract or other document or instrument would be contravened or a default
thereunder would arise as a result of complying with such covenants or
restrictions.
THE FOREGOING DESCRIPTION OF THE TERMS AND PROVISIONS OF THE THIRD AMENDMENT IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE FULL TEXT THEREOF, WHICH IS FILED
AS AN EXHIBIT TO THIS SCHEDULE 14D-1 AND IS AVAILABLE FOR INSPECTION AND COPYING
AT THE PRINCIPAL OFFICE OF THE COMMISSION IN THE MANNER DESCRIBED IN SECTION 8
OF THE OFFER TO PURCHASE.
Due to the funding of the Offer by the Lenders, on July 21, 1995, Parent gave
notice to Phemus Corporation and Intercontinental Mining & Resources
Incorporated as subscribers under the Subscription Agreement dated June 13,
1995, pursuant to which the subscribers agreed to subscribe to preferred stock
of Parent to allow Purchaser to fund the Offer, that Parent elected to terminate
the Subscription Agreement according to its terms and that no party had any
further obligations thereunder.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)-(g) The American Stock Exchange suspended trading in the Shares as of
July 21, 1995. Since the Company is a wholly-owned subsidiary of Parent as of
effective date of the
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Merger, the American Stock Exchange has informed the Company that the American
Stock Exchange will file, as soon as practicable, an application with the
Commission to delist and deregister the Shares.
On July 6, 1995, the Company filed a Motion for Approval of Form and Sufficiency
of Tender of Prepayment of Unresolved, Unsecured Claims, In Accordance With
Confirmed, Second Amended Plan of Reorganization ("Approval Motion") and a
Motion for Expedited Hearing ("Expedited Motion") with the Bankruptcy Court. The
Approval Motion requested that an order be issued determining that the
prepayment of the Company's secured promissory notes ("Secured Notes") with an
outstanding principal balance of $13,961,629 and the posting of a letter of
credit sufficient to pay any claims subject to objections pending in the
Bankruptcy Court that may, if allowed, become entitled to additional Secured
Notes is sufficient performance to satisfy and discharge the Company's Indenture
and eliminate the restrictions on payments, dividends and distributions to
shareholders of the Company contained in the Company's Plan of Reorganization.
The Expedited Motion requested the setting of a hearing date for the Approval
Motion at the earliest possible date due to the time sensitive nature of the
Offer and the financing commitment from Parent's Lenders. The Bankruptcy Court
has set July 28 as the hearing date for the Approval Motion.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a)-(b) As of July 20, 1995, approximately 98.6% of the Shares were
tendered to Purchaser in accordance with the Offer, of which certificates
representing 1,678,082 Shares had been physically received and 4,454 Shares were
subject to notices of guaranteed delivery that must be settled no later than
July 27, 1995. Upon the effectiveness of the Merger, all 1,701,650 Shares
outstanding prior to the Offer were cancelled and the 1,000 shares of common
stock of Purchaser were converted into 1,000 shares of common stock of the
Company. Therefore, Parent is the holder of 1,000 shares of common stock of the
Company which are now the only outstanding shares of capital stock of the
Company. As described above, Purchaser has paid for all Shares tendered
pursuant to the Offer and to be paid in accordance with the Merger Agreement by
depositing the necessary funds with the Depositary.
ITEM 10. ADDITIONAL INFORMATION.
(b) and (c) The waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, expired on July 4, 1995. Reference is made
to the Lawsuit described above.
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ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
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99.(a)(9) Letter of Transmittal to holders of Shares not tendered in the
Offer.
99.(b)(4) Amendment No. 3 and Waiver No. 2 to Credit and Guaranty
Agreement dated July 21, 1995 by and among Parent, EZCON, the
Lenders and Societe Generale as agent.
99.(c)(5) Company's Motion for Approval of Form and Sufficiency of Tender
of Prepayment of Unresolved, Unsecured Claims, In Accordance
With Confirmed, Second Amended Plan of Reorganization as filed
with the United States Bankruptcy Court for the Middle District
of Florida (Tampa Division) on July 6, 1995.
99.(c)(6) Company's Motion for Expedited Hearing as filed with the United
States Bankruptcy Court for the Middle District of Florida
(Tampa Division) on July 6, 1995.
99.(c)(7) Letter dated July 20, 1995, from EZS to Continental Stock
Transfer & Trust Company - incorporated by reference from
Exhibit 99.1 to Parent's report on Form 8-K dated July 20,
1995.
99.(c)(8) Press Release of the Company issued on July 20, 1995 -
incorporated by reference from Exhibit 99.2 to Parent's report
on Form 8-K dated July 20, 1995.
99.(c)(9) Complaint as filed on July 20, 1995, by Plaintiffs against the
Company and certain former shareholders of the Company in the
Circuit Court in and for Leon County, Florida, Civil Division
(the "Court") - incorporated by reference from Exhibit 99.3 to
Parent's report on Form 8-K dated July 20, 1995.
99.(c)(10) Plaintiff's Motion for Preliminary Injunction. Enjoining
Sunshine as filed with the Court on July 20, 1995 -
incorporated by reference from Exhibit 99.4 to Parent's report
on Form 8-K dated July 20, 1995.
99.(c)(11) Hughes' Motion for Preliminary Injunction Enjoining Shareholder
Defendants as filed with the Court on July 20, 1995 -
incorporated by reference from Exhibit 99.5 to Parent's report
on Form 8-K dated July 20, 1995.
</TABLE>
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<TABLE>
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99.(c)(12) Letter dated July 19, 1995, from CCC to the Company withdrawing
CCC's offer - incorporated by reference from Exhibit 99.6 to
Parent's report on Form 8-K dated July 20, 1995.
99.(c)(13) Defendant Sunshine-Jr. Stores, Inc.'s Response in Opposition to
Plaintiffs' Motion for Emergency Motion as filed with the Court
on July 24, 1995.
99.(c)(14) Plaintiffs' Notice of Voluntary Dismissal as filed with the
Court on July 24, 1995.
</TABLE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
E-Z SERVE CORPORATION
By: /s/ John T. Miller
-------------------------------------
Name: John T. Miller
Title: Senior Vice President
EZS ACQUISITION CORPORATION
By: /s/ John T. Miller
-------------------------------------
Name: John T. Miller
Title: Vice President
Date: July 25, 1995
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description Page No.
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99.(a)(9) Letter of Transmittal to holders of Shares not tendered in the
Offer.
99.(b)(4) Amendment No. 3 and Waiver No. 2 to Credit and Guaranty Agreement
dated July 21, 1995 by and among Parent, EZCON, the Lenders and
Societe Generale as agent.
99.(c)(5) Company's Motion for Approval of Form and Sufficiency of Tender of
Prepayment of Unresolved, Unsecured Claims, In Accordance With
Confirmed, Second Amended Plan of Reorganization as filed with the
United States Bankruptcy Court for the Middle District of Florida
(Tampa Division) on July 6, 1995.
99.(c)(6) Company's Motion for Expedited Hearing as filed with the United
States Bankruptcy Court for the Middle District of Florida (Tampa
Division) on July 6, 1995.
99.(c)(7) Letter dated July 20, 1995, from EZS to Continental Stock Transfer
& Trust Company - incorporated by reference from Exhibit 99.1 to
Parent's report on Form 8-K dated July 20, 1995.
99.(c)(8) Press Release of the Company issued on July 20, 1995 - incorporated
by reference from Exhibit 99.2 to Parent's report on Form 8-K dated
July 20, 1995.
99.(c)(9) Complaint as filed on July 20, 1995, by Plaintiffs against the
Company and certain former shareholders of the Company in the
Circuit Court in and for Leon County, Florida, Civil Division (the
"Court") - incorporated by reference from Exhibit 99.3 to Parent's
report on Form 8-K dated July 20, 1995.
99.(c)(10) Plaintiff's Motion for Preliminary Injunction Enjoining Sunshine as
filed with the Court on July 20, 1995 - incorporated by reference
from Exhibit 99.4 to Parent's report on Form 8-K dated July 20,
1995.
</TABLE>
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<TABLE>
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99.(c)(11) Hughes' Motion for Preliminary Injunction Enjoining Shareholder
Defendants as filed with the Court on July 20, 1995 -
incorporated by reference from Exhibit 99.5 to Parent's report on
Form 8-K dated July 20, 1995.
99.(c)(12) Letter dated July 19, 1995, from CCC to the Company withdrawing
CCC's offer - incorporated by reference from Exhibit 99.6 to
Parent's report on Form 8-K dated July 20, 1995.
99.(c)(13) Defendant Sunshine-Jr. Stores, Inc.'s Response in Opposition to
Plaintiffs' Motion for Emergency Motion as filed with the Court on
July 24, 1995.
99.(c)(14) Plaintiffs' Notice of Voluntary Dismissal as filed with the Court
on July 24, 1995.
</TABLE>
<PAGE> 1
EXHIBIT 99.(A)(9)
To Former Holders of Common Stock of
Sunshine-Jr. Stores, Inc.:
Enclosed is a Letter of Transmittal relating to the surrender of
certificates formerly representing shares of common stock, par value $0.10 per
share, of Sunshine-Jr. Stores, Inc. ("Sunshine"). The surrender of certificates
and delivery of a properly completed Letter of Transmittal are required to
permit Continental Stock Transfer & Trust Company, as Paying Agent, to pay you
the $12.00 per share cash consideration in connection with the merger of EZS
Acquisition Corporation with and into Sunshine, which took place on July 21,
1995. Please read the Letter of Transmittal carefully, complete, sign and return
it, along with your stock certificates, in accordance with the instructions set
forth in the Letter of Transmittal.
July 25, 1995.
<PAGE> 2
LETTER OF TRANSMITTAL
TO SURRENDER CERTIFICATES
FORMERLY REPRESENTING SHARES OF COMMON STOCK
OF
SUNSHINE-JR. STORES, INC.
IN EXCHANGE FOR $12.00 PER SHARE IN CASH
PURSUANT TO THE MERGER OF
EZS ACQUISITION CORPORATION
A WHOLLY-OWNED SUBSIDIARY
OF
E-Z SERVE CORPORATION
WITH AND INTO
SUNSHINE-JR. STORES, INC.
THE PAYING AGENT IS:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By Hand, Mail or Overnight Courier:
2 Broadway
New York, New York 10004
Attention: 19th Floor
For Information Call:
(212) 509-4000 ext. 227
THIS LETTER OF TRANSMITTAL SHOULD BE COMPLETED, SIGNED AND SUBMITTED,
TOGETHER WITH YOUR CERTIFICATE(S) REPRESENTING ONE OR MORE SHARES OF THE COMMON
STOCK OF SUNSHINE-JR. STORES, INC. TO THE ADDRESS SET FORTH ABOVE. DELIVERY OF
THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT
CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
IF CERTIFICATES ARE REGISTERED IN DIFFERENT NAMES, A SEPARATE LETTER OF
TRANSMITTAL MUST BE SUBMITTED FOR EACH DIFFERENT REGISTERED OWNER. SEE
INSTRUCTIONS 4 AND 6.
<PAGE> 3
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DESCRIPTION OF CERTIFICATES SURRENDERED
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NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK EXACTLY AS NAME(S) CERTIFICATE(S) ENCLOSED
APPEAR ON CERTIFICATE(S)) (ATTACH ADDITIONAL LIST IF NECESSARY)
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TOTAL NUMBER
OF SHARES FORMERLY
CERTIFICATE REPRESENTED BY
NUMBER(S) CERTIFICATE(S)
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TOTAL SHARES:
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</TABLE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
<PAGE> 4
Ladies and Gentlemen:
The undersigned hereby surrenders to Continental Stock Transfer & Trust
Company, as Paying Agent (the "Paying Agent"), the certificate(s) listed above
(the "Certificate(s)") that formerly represented shares of common stock, par
value $0.10 per share ("Shares"), of Sunshine-Jr. Stores, Inc., a Florida
corporation (the "Company"), and now represent the right to receive cash for
cancellation in exchange for the payment of $12.00, net in cash without interest
("Cash Payment"), for each such former Share pursuant to the terms and
conditions of that certain Agreement and Plan of Merger dated as of June 15,
1995, by and among E-Z Serve Corporation, a Delaware corporation ("Parent"), EZS
Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of
Parent ("Purchaser"), and the Company pursuant to which Purchaser was merged
with and into the Company effective July 21, 1995 ("Merger"). Under both Florida
and Delaware law, no appraisal rights are available to the holders ("Certificate
Holders") of the Shares formerly represented by the Certificates surrendered
hereby.
The name and address of the Certificate Holder should be printed, if not
already set forth on a label above, under "Description of Certificates
Surrendered," as they appear on the Certificate(s). The Certificate(s) and the
number of Shares that the undersigned wishes to surrender should be indicated in
the appropriate boxes above. The undersigned hereby represents that the
undersigned has full authority to surrender, assign and transfer the
Certificates that formerly represented Shares free and clear of all liens,
claims and encumbrances. The undersigned will, upon request, execute and deliver
any additional documents reasonably deemed appropriate or necessary by the
Paying Agent in connection with the surrender of such Certificates.
The undersigned hereby irrevocably constitutes and appoints the Paying
Agent the true and lawful agent and attorney-in-fact of the undersigned with
respect to the undersigned's Certificate(s) with full power of substitution
(such power-of-attorney being deemed to be an irrevocable power coupled with an
interest), to deliver the Certificate(s), together with all accompanying
evidences of transfer and authenticity, upon receipt by the Paying Agent, as the
undersigned's agent, of the consideration therefor, for cancellation by the
Paying Agent. All authority conferred or agreed to be conferred in this Letter
of Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall survive
and not be affected by the death or incapacity of the undersigned.
The undersigned understands that surrender is not made in acceptable form
until receipt by the Paying Agent of this Letter of Transmittal, or a facsimile
hereof, duly completed and signed, together with all accompanying evidences of
authority in form satisfactory to Parent and any other required documents. All
questions as to validity, form and eligibility of any surrender of
Certificate(s) hereunder will be determined by Parent and such determination
shall be final and binding on all parties. The undersigned understands that
payment for surrendered Certificate(s) will be made as promptly as practicable
after surrender of Certificate(s) is made in acceptable form.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the Cash Payment in the name(s) of the Certificate
Holder appearing under "Description of Shares Surrendered." Similarly, unless
otherwise indicated under "Special Delivery Instructions," please mail the check
for the Cash Payment to the address of the Certificate Holder appearing under
"Description of Shares Surrendered." In the event that both the Special Delivery
Instructions and the Special Payment Instructions are completed, please issue
the check for the Cash Payment in the name of, and deliver such check to the
person or persons so indicated.
<PAGE> 5
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SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 5 AND 6)
To be completed ONLY if the check for the Cash Payment is to be issued in
the name of someone other than the undersigned.
Issue check to:
Name:
--------------------------------------------------------------------
(Please Print)
--------------------------------------------------------------------------
Address:
-----------------------------------------------------------------
--------------------------------------------------------------------------
(Include Zip Code)
--------------------------------------------------------------------------
(Taxpayer Identification or Social Security Number)
--------------------------------------------------------------------------
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SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 5 AND 6)
To be completed ONLY if the check for the Cash Payment is to be sent to
someone other than the undersigned or to the undersigned at an address
other than that indicated above.
Mail check and/or certificate(s) to:
Name:
--------------------------------------------------------------------
(Please Print)
--------------------------------------------------------------------------
Address:
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(Include Zip Code)
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<PAGE> 6
IMPORTANT -- SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 ON THE REVERSE)
SIGN
---------------------------------------------------------------------------
HERE
---------------------------------------------------------------------------
(Signature(s) of Shareholder(s))
Dated: , 1995
---------------------
(Must be signed by Certificate Holder(s) exactly as name(s) appear(s) on the
Certificate(s) or on a security position listing or by person(s) authorized to
become Certificate Holder(s) by certificates and documents transmitted herewith.
If any signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or another acting in a fiduciary or
representative capacity, please provide the following information and see
Instruction 4.)
Name(s)
-------------------------------------------------------------------------
(Please Print)
Capacity (Full Title)
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Address
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- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone No.
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Taxpayer Identification or Social Security No.
----------------------------------
(See Substitute Form W-9 on reverse side)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 4)
Authorized Signature
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Name
----------------------------------------------------------------------------
(Please Print)
Name of Firm
--------------------------------------------------------------------
Address
-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone No.
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Dated: , 1995
---------------------
Financial Institutions: Place
Medallion Guarantee in Space Below
<PAGE> 7
INSTRUCTIONS
1. SIGNATURE GUARANTEES. All signatures on this Letter of Transmittal must
be medallion guaranteed by a firm that is a member of the Medallion Signature
Guarantee Program, or by any other "eligible guarantor institution," as such
term is defined in Rule 17Ad-15 promulgated under the Securities Exchange Act of
1934, as amended (each of the foregoing being referred to as an "Eligible
Institution"), unless (a) this Letter of Transmittal is signed by the
Certificate Holder(s) of Certificates delivered herewith (which term, for
purposes of this document, shall include any participant in the Depository Trust
Company whose name appears on a security position listing as the owner of
Certificate(s)), and such holder(s) has (have) completed neither the box
entitled "Special Delivery Instructions" nor the box entitled "Special Payment
Instructions" on the reverse hereof, or (b) such Certificates are delivered for
the account of an Eligible Institution. See Instruction 4.
2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATE(S). This Letter of
Transmittal (or facsimile thereof) is to be completed by Certificate Holders in
accordance with the Instructions set forth herein. Certificate(s) together with
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof), and any other documents required by this Letter of Transmittal, must
be received by the Paying Agent.
THE METHOD OF DELIVERY OF CERTIFICATE(S), THIS LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE CERTIFICATE
HOLDER AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY PAYING
AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED,
PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ENSURE TIMELY DELIVERY.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
Certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. SIGNATURES ON LETTERS OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the Certificate Holder(s) of the
Certificate(s) surrendered hereby, the signature(s) must correspond exactly with
the name(s) as written on the face of the Certificate(s) without any change
whatsoever.
If any of the Certificate(s) surrendered herewith are owned of record by
two or more joint owners, all such owners must sign this Letter of Transmittal.
If more than one Certificate is surrendered herewith and such Certificates
are registered in different names, it will be necessary to complete, sign and
submit as many separate Letters of Transmittal as there are different
registrations of Certificates.
If this Letter of Transmittal or any Certificates or stock powers are
signed by trustee, executor, administrator, guardian, attorney-in-fact, officer
of a corporation or another acting in a fiduciary or representative capacity,
such person should so indicate when signing, and proper evidence satisfactory to
the Parent of the authority of such person so to act must be submitted.
If this Letter of Transmittal is signed by the registered owner(s) of the
Certificate(s) listed herein and transmitted hereby, no endorsements of
Certificates or separate stock powers are required unless payment is to be made
to a person other than the registered owner(s). Signatures on such Certificates
and stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of Certificates listed, the Certificates must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name or names of the registered owner or owners appear on the Certificates.
Signatures on such Certificates and stock powers must be guaranteed by an
Eligible Institution.
5. STOCK TRANSFER TAXES. EXCEPT AS PROVIDED IN THIS INSTRUCTION 5, IT WILL
NOT BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES
LISTED IN THIS LETTER OF TRANSMITTAL. The Company will pay any stock transfer
taxes with respect to Certificates surrendered pursuant to the Merger. If,
however, payment of the Cash Payment is to be made to any persons other than the
person in whose name the Certificate(s) are registered, the amount of any stock
transfer taxes (whether imposed on
<PAGE> 8
the registered owner(s) or such person) payable on account of the transfer to
such person will be deducted from the payment for such Certificate(s) purchase
price unless satisfactory evidence of the payment of such taxes or exemption
therefrom is submitted.
6. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for
Certificate(s) formerly representing Shares surrendered herewith is to be issued
in the name of a person other than the signer of this Letter of Transmittal or
if a check is to be sent to a person other than the signer of this Letter of
Transmittal or to an address other than that shown on the reverse of this Letter
of Transmittal, the appropriate boxes on the reverse of this Letter of
Transmittal should be completed.
7. 31% BACKUP WITHHOLDING. Under United States federal income tax law, a
Certificate Holder whose Certificate(s) are surrendered herewith is required to
provide the Paying Agent with each such Certificate Holder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 below. If such Certificate
Holder is an individual, the TIN is such Certificate Holder's social security
number. If the Paying Agent is not provided with the correct TIN, the Internal
Revenue Service may subject the Certificate Holder or other payee to a $50
penalty. In addition, payments that are made to such Certificate Holder or other
payee with respect to Shares converted into the right to receive the Cash
Payment may be subject to 31% backup withholding. If backup withholding applies,
the Paying Agent is required to withhold 31% of any such payments made to the
Certificate Holder or other payee. Backup withholding is not an additional tax.
Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld, provided that the required information is
given to the Internal Revenue Service. If backup withholding results in an
overpayment of taxes, a refund may be obtained from the Internal Revenue
Service.
Certain Certificate Holders (including among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, the Certificate Holder must submit a Form W-8, signed under
penalties of perjury, attesting to that individual's exempt status. A Form W-8
can be obtained from the Paying Agent. See the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for more
instructions.
The box in Part 3 of the Substitute Form W-9 may be checked if the
surrendering Certificate Holder has not been issued a TIN and has applied for a
TIN or intends to apply for a TIN in the near future. If the box in Part 3 is
checked, the Certificate Holder or other payee must also complete the
Certification portion of the Substitute Form W-9 in order to avoid backup
withholding. Notwithstanding that the box in Part 3 is checked and the
Certification portion of the Substitute Form W-9 is completed, the Paying Agent
may withhold 31% on all payments made prior to the time a properly certified TIN
is provided to the Paying Agent. However, such amounts will be refunded to such
Certificate Holder (if withheld) if a TIN is provided to the Paying Agent within
60 days.
The Certificate Holder is required to give the Paying Agent the TIN of the
record owner of the Shares or of the last transferee appearing on the transfers
attached to, or endorsed on, the Shares. If the Shares are in more than one name
or are not in the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer identification Number on Substitute Form W-9" for
additional guidance on which number to report.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for additional
copies of this Letter of Transmittal and the Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 should be directed to the
Paying Agent at its address set forth below. Questions or requests for
assistance may also be directed to the Paying Agent.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Shares have been lost, destroyed or stolen, the Certificate
Holder(s) should promptly notify the Paying Agent in writing. The Certificate
Holder(s) will then be instructed as to the steps that must be taken in order to
replace the Certificate(s). This Letter of Transmittal and related documents
cannot be processed until the procedures for replacing lost or destroyed
Certificate(s) have been followed. No interest will be paid on amounts due for
such or any Certificate(s).
<PAGE> 9
PAYER'S NAME: CONTINENTAL STOCK TRANSFER & TRUST COMPANY
<TABLE>
<S> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
Social Security Number
SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN IN -----------------------------------
FORM W-9 THE BOX AT RIGHT AND CERTIFY BY SIGNING OR
AND DATING BELOW --------------------------------
Employer Identification Number
----------------------------------------------------------------------------
Department of the Treasury Part 2 -- For payees exempt from backup withholding, see the enclosed
Internal Revenue Service Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 and complete as instructed therein.
----------------------------------------------------------------------------
PAYER'S REQUEST FOR TAXPAYER CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I CER- Part 3
IDENTIFICATION NUMBER (TIN) TIFY THAT THE INFORMATION PROVIDED ON THIS FORM IS TRUE,
CORRECT AND COMPLETE.
SIGNATURE Awaiting TIN / /
DATE
- ----------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 3 OF SUBSTITUTE FORM W-9
CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
(1) the number shown on this form is my correct Taxpayer Identification
Number (or I am waiting for a number to be issued to me) and either (a) I
have mailed or delivered an application to receive a taxpayer
identification number to the appropriate Internal Revenue Service ("IRS")
center or Social Security Administration office, or (b) I intend to mail
or deliver an application in the near future), and
(2) I am not subject to backup withholding because: (a) I am exempt from
backup withholding; (b) I have not been notified by the IRS that I am
subject to backup withholding as a result of a failure to report all
interest or dividends; or (c) the IRS has notified me that I am no longer
subject to backup withholding.
Certification Instructions -- You must cross out item (2) above if you
have been notified by the IRS that you are currently subject to backup
withholding because of underreporting interest or dividends on your tax
return.
<TABLE>
<S> <C>
- -------------------------------------------------- -----------------------------------------------
Signature Date
- --------------------------------------------------------------------------------------------------------
Name
- --------------------------------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------------------------------
(Include Zip Code)
</TABLE>
THE PAYING AGENT FOR THE MERGER IS:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By Hand, Mail or Overnight Courier:
2 Broadway
New York, New York 10004
Attention: 19th Floor
FOR INFORMATION CALL (212) 509-4000 EXT. 227
<PAGE> 1
Exhibit 99.(b)(4)
AMENDMENT NO. 3 AND WAIVER NO. 2 TO
CREDIT AND GUARANTY AGREEMENT
THIS AMENDMENT NO. 3 AND WAIVER NO. 2 TO CREDIT AND GUARANTY
AGREEMENT, dated as of July 21, 1995 (this "Amendment Agreement"), among E-Z
SERVE CONVENIENCE STORES, INC., a Delaware corporation (the "Borrower"), E-Z
SERVE CORPORATION, a Delaware corporation (the "Parent"), the Lenders (as
defined below) and SOCIETE GENERALE ("SG"), as agent (in such capacity, the
"Agent") for the Lenders,
W I T N E S S E T H:
WHEREAS, the Borrower, the Parent, the various financial institutions
parties thereto (collectively, the "Lenders") and the Agent have heretofore
entered into a certain Credit and Guaranty Agreement (the "Original Credit
Agreement"), dated as of January 17, 1995, as amended by Amendment Agreement
No. 1 to Credit and Guaranty Agreement (the "First Amendment"), dated as of
April 27, 1995, and Amendment Agreement No. 2 and Waiver No. 1 to Credit and
Guaranty Agreement (the "Second Amendment"), dated as of June 15, 1995 (the
Original Credit Agreement, as amended by the First Amendment and the Second
Amendment, hereinafter the "Existing Credit Agreement" and, together with this
Amendment Agreement, the "Credit Agreement"); and
WHEREAS, the Parent and EZS Acquisition Corporation, a Delaware
corporation and a direct wholly-owned subsidiary of the Parent ("Acquisition"),
have entered into an Agreement and Plan of Merger (the "Merger Agreement"),
dated as of June 15, 1995, with Sunshine-Jr. Stores, Inc., a Florida
corporation ("Target"); and
WHEREAS, pursuant to the Merger Agreement, the Parent has caused
Acquisition to make a tender offer (the "Tender Offer"), upon the terms and
subject to the conditions of the Merger Agreement, to acquire all of the
1,701,650 outstanding shares of common stock, par value $.10 per share (the
"Shares"), of Target, at a price of $12.00 per Share, net to the seller in
cash; and
WHEREAS, the Parent desires, assuming consummation of the Tender
Offer, to cause Acquisition to merge with and into Target, with Target being
the survivor of such merger (and a direct wholly-owned Subsidiary of the
Parent) in accordance with the
<PAGE> 2
terms and conditions of the Merger Agreement (and in accordance with the
Florida Business Corporation Act) (the "First Merger"); and
WHEREAS, concurrently with the First Merger, each then outstanding
Share of the Target (other than Shares owned by the Parent or any of its
Subsidiaries) shall be converted into the right to receive $12.00 per Share in
cash; and
WHEREAS, the Borrower and the Parent desire to obtain (a) Tender Loan
Commitments pursuant to which a Tender Loan will be made to the Borrower on the
date of the consummation of the Tender Offer in an aggregate principal amount
not to exceed $15,400,000, (b) First Merger Commitments pursuant to which First
Merger Loans will be made to the Borrower on the date of the consummation of
the First Merger (and the repayment in full of the Tender Loans) in an
aggregate principal amount not to exceed $15,400,000, and (c) amendments and
waivers to the Existing Credit Agreement in connection with the foregoing
transactions from the Lenders, as more fully set forth herein; and
WHEREAS, the Borrower, the Parent and the Lenders desire to supersede
and replace all aspects of the Second Amendment except the amendments and
waivers effected by Section 2.1 thereof, the related conditions precedent set
forth in Section 3.1 thereof, and Articles IV and V thereof; and
WHEREAS, the Lenders are willing to extend such Commitments and
consent to such amendments, waivers and other modifications, but only upon the
terms and conditions set forth below (including Article III);
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined or the context otherwise requires, terms used
in this Amendment Agreement, including its preamble and recitals, have the
meanings provided in the Credit Agreement.
ARTICLE II
AMENDMENTS AND WAIVERS TO CERTAIN PROVISIONS OF
THE CREDIT AGREEMENT
SECTION 2.1. Amendments and Waivers Relating to Entry into Merger
Agreement and Tender Loan Commitments. Effective on (and
-2-
<PAGE> 3
subject to the occurrence of) the Section 2.1 Effective Date (as hereinafter
defined), the Lenders and the Agent hereby agree that certain terms and
provisions of the Existing Credit Agreement are amended and/or waived to the
extent expressly set forth in this Section 2.1:
SECTION 2.1.1. Amendments to Section 1.1 of the Existing Credit
Agreement (Definitions). Section 1.1 of the Existing Credit Agreement is
hereby amended by (a) inserting the words "or Acquisition" after the word
"Borrower" in clause (c) of the definition of Change of Control, (b) adding the
words ", the Target Commitment Letter, the Target Fee Letter," after the term
"the Fee Letter" appearing in the definition of Loan Documents, and (c)
deleting the table appearing in clause (a) of the definition of "Capital
Expenditure" in its entirety and substituting therefor the following table:
<TABLE>
<CAPTION>
Minimum EBITDA
for Capital Minimum Fixed Charge Coverage Ratio
Expenditure for Capital Expenditure
"Fiscal Year Level I Level I
----------- -------------- --------------------
<S> <C> <C>
1995 $24,400,000 1.00:1.00
1996 29,000,000 1.05:1.00
1997 31,500,000 1.15:1.00
1998 34,000,000 1.25:1.00
1999 36,600,000 1.35:1.00
2000 39,800,000 1.40:1.00
2001 43,800,000 1.40:1.00"
</TABLE>
SECTION 2.1.2. Additional Amendments to Section 1.1 of the Credit
Agreement (Definitions). Section 1.1 of the Existing Credit Agreement is also
hereby amended by amending and restating each of the following definitions so
they read in their entirety as follows:
"Acquisition" means EZS Acquisition Corporation, a Delaware
corporation and a direct wholly-owned Subsidiary of the Parent.
"Commitment" means, as the context may require, a Lender's
Revolving Loan Commitment, Term Loan Commitment, Tender Loan
Commitment or Letter of Credit Commitment.
"Commitment Amount" means, as the context may require, either
the Revolving Loan Commitment Amount, the Term Loan
-3-
<PAGE> 4
Commitment Amount, the Tender Loan Commitment Amount or the Letter of
Credit Commitment Amount.
"Loan" means, as the context may require, either a Revolving
Loan, a Term Loan or a Tender Loan.
"Note" means, as the context may require, either a Revolving
Note, a Term Note or a Tender Loan Note.
"Stated Maturity Date" means (a) in the case of any Term Loan,
January 24, 2002, (b) in the case of any Revolving Loan, January 24,
1998 and (c) in the case of any Tender Loan, the earlier of (i) 30
days following the making of such Tender Loan and (ii) the
consummation of the First Merger.
"Target" means (a) prior to the consummation of the First
Merger, Sunshine-Jr. Stores, Inc., a Florida corporation ("Sunshine")
and (b) from and after the consummation of the First Merger, Sunshine
as the surviving corporation of the First Merger.
"Total Commitment Amount" means the sum, without duplication,
of the Term Loan Commitment Amount, the Tender Loan Commitment Amount
and the Revolving Loan Commitment Amount.
SECTION 2.1.3. Further Amendments to Section 1.1 of the Existing
Credit Agreement (Definitions). Section 1.1 of the Existing Credit Agreement
is further amended by adding the following terms and definitions:
"Borrower Contributed Amount" means the $5,000,000 in cash to
be loaned by the Borrower to the Parent which, in turn, will
contribute such amount to Acquisition to be used by Acquisition in
connection with the purchase of Shares pursuant to the Tender Offer,
such cash to be comprised of cash on hand of the Borrower and not to
be obtained from any draw of Revolving Loans.
"Escrow Agreement" means the Escrow Agreement referred to in
the Merger Agreement.
"First Merger" means the merger of Acquisition with and into
Target in accordance with the Merger Agreement, the Offer to Purchase
and the terms of this Agreement.
"Margin Stock" means the Shares and any other securities which
constitute "margin stock" under the rules and regulations promulgated
by the F.R.S. Board.
-4-
<PAGE> 5
"Merger Agreement" means the Agreement and Plan of Merger,
dated as of June 15, 1995, among the Borrower, the Parent and the
Target.
"Offer to Purchase" means Acquisition's tender offer statement
on Schedule 14D-1 filed with the Securities and Exchange Commission.
"Parent Inter-Company Note" means a promissory note of the
Parent payable to the Borrower, substantially in the form of Annex B
to the Third Amendment, evidencing (a) in the case of the Tender Offer
Closing Date, the $5,000,000 in cash loaned by the Borrower to the
Parent in connection with the purchase of Shares tendered pursuant to
the Tender Offer on such Date and the proceeds of the Tender Loan
loaned by the Borrower to the Parent for such purposes and (b) in the
case of the First Merger, a replacement promissory note evidencing the
refinancing of such amounts plus the amount of any First Merger Loans
made pursuant to Section 2.1.1.B hereof, in each case duly pledged to
the Agent for the benefit of the Lenders pursuant to the Borrower
Pledge Agreement.
"Second Amendment" means Amendment No. 2 and Waiver No. 1,
dated as of June 15, 1995, to this Agreement.
"Second Merger" means the merger of the Target into the
Borrower on the terms and subject to the conditions contained in the
Target Commitment Letter.
"Section 2.1 Effective Date" has the meaning ascribed thereto
in the Third Amendment.
"Section 2.2 Effective Date" has the meaning ascribed thereto
in the Third Amendment.
"Series C Preferred Stock" means the $6.00 Convertible
Preferred Stock, Series C, of the Parent, par value $.01 per share.
"Shares" means the 1,701,650 outstanding shares of common
stock, par value $.10 per share, of the Target.
"Target Commitment Letter" means the Commitment Letter dated
June 30, 1995 among SG, the Parent and the Borrower providing certain
financing, on the terms and conditions set forth therein, with respect
to the Tender Offer, the First Merger and the Second Merger, as the
same may be amended or otherwise modified from time to time.
-5-
<PAGE> 6
"Target Debt Documents" means the Target Indenture and each
other agreement and document relating to Indebtedness of the Target
described in clause (c) of Section 7.2.2 to the extent true, correct
and complete copies thereof had been furnished to the Agent by the
date of the Second Amendment.
"Target Fee Letter" means the fee letter dated as of June 30,
1995 among SG, the Parent and the Borrower, relating to the Target
Commitment Letter.
"Tender Commitment Termination Date" means the earliest to
occur of
(a) July 24, 1995;
(b) immediately after the making of any Tender Loans; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (a), (b) or (c),
the Tender Loan Commitment shall terminate automatically and without
any further action.
"Tender Loan" is defined in Section 2.1.1A.
"Tender Loan Commitment" means, relative to any Lender, such
Lender's obligation to make a Tender Loan pursuant to Section 2.1.1A.
"Tender Loan Commitment Amount" means, on any date prior to
the Tender Commitment Termination Date, the lesser of (a) $15,400,000
and (b) the amount necessary, after application in full of the
Borrower Contributed Amount, to make payment for all of the Shares of
Target tendered pursuant to the Tender Offer, to be made in one draw
on the date of the making of the Tender Loans.
"Tender Loan Note" means a promissory note of the Borrower
payable to any Lender, in substantially the form of Annex A to the
Third Amendment (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from such
Lender's Tender Loan, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal
thereof.
-6-
<PAGE> 7
"Tender Offer" means the tender offer by Acquisition to
acquire all of the outstanding Shares pursuant to the Merger
Agreement.
"Tender Offer Closing Date" means the date on which
Acquisition purchases at least 80% of the outstanding Shares (or, if
higher, the percentage of the Shares under applicable law, the
constituent documents of Target and the contractual arrangements of
Target sufficient to enable Acquisition to cause the First Merger
promptly to occur without the vote of any other shareholder or
directors of Target) pursuant to the Tender Offer in accordance with
the terms and conditions of the Merger Agreement and the Offer to
Purchase.
"Tender Offer Materials" means all Schedules 14D-9, all Tender
Offer Statements and all other materials filed with the Securities and
Exchange Commission in connection with the Tender Offer together with
any and all amendments and other modifications thereto permitted
hereunder.
"Tender Offer Statement" means the Schedule 14D-1 Tender Offer
Statement (including therein, among other things, the Offer to
Purchase and the Merger Agreement) with respect to the Target filed
with the Securities and Exchange Commission on June 19, 1995, as
amended or otherwise modified as permitted hereunder.
"Third Amendment" means Amendment No. 3 and Waiver No. 2,
dated as of July 21, 1995, to this Agreement.
SECTION 2.1.4. Amendments to Article II of the Existing Credit
Agreement (Commitments, Borrowing Procedures, Letters of Credit and Notes).
Article II of the Existing Credit Agreement is hereby amended by adding the
following new Sections 2.1.1A, 2.2.1A and 2.4A thereto:
"SECTION 2.1.1A. Tender Loan Commitment. On the Tender Offer
Closing Date (but only if Tender Loans are requested to be made on, or
prior to, the Tender Commitment Termination Date), each Lender agrees
to make a Tender Loan (relative to such Lender, its "Tender Loan";
collectively the "Tender Loans") in a single draw to the Borrower
equal to such Lender's Percentage of the aggregate amount of the
Borrowing of the Tender Loans requested by the Borrower to be made on
such day. The Commitment of each Lender described in this Section is
herein referred to as its "Tender Loan Commitment". No amounts paid
or prepaid with respect to the Tender Loans may be reborrowed.
-7-
<PAGE> 8
SECTION 2.2.1A. Tender Loans. No Borrowing of Tender Loans
shall be made if, after giving effect thereto, the aggregate
outstanding principal amount of all the Tender Loans (a) of all the
Lenders would exceed the Tender Loan Commitment Amount or (b) of any
Lender would exceed such Lender's Percentage of the Tender Loan
Commitment Amount.
SECTION 2.4A. Tender Loan Borrowing Procedure; No Conversion
Election. By delivering a Borrowing Request for the Tender Loans to
the Agent on or before 10:00 a.m. (New York City time) on a Business
Day, the Borrower shall have irrevocably requested that Tender Loans
comprised of a Base Rate Loan be made on such Business Day or on
another Business Day within five Business Days of such Business Day.
The proceeds of the Tender Loans shall be used solely for the purposes
described in Section 4.10A. On the terms and subject to the
conditions of this Agreement, the Borrowing of Tender Loans shall be
made on the Business Day specified in such Borrowing Request. On or
before 12:00 noon (New York City time) on such Business Day, each
Lender shall deposit with the Agent same day funds in an amount equal
to such Lender's Percentage of the requested Borrowing. Such deposit
will be made to an account which the Agent shall specify by notice to
the Lenders. To the extent funds are received from the Lenders, the
Agent shall make such funds available to the Borrower by wire transfer
to the accounts the Borrower shall have specified in its Borrowing
Request. No Lender's obligation to make any Tender Loan shall be
affected by any other Lender's failure to make any Tender Loan. The
Tender Loans will be comprised only of a Base Rate Loan, and no
conversion election as to LIBO Rate Loans shall be available with
respect thereto."
SECTION 2.1.5. Amendments to Article III of the Existing Credit
Agreement (Repayments, Prepayments, Interest and Fees). Article III of the
Credit Agreement is hereby amended by adding the following new Sections 3.1A,
3.1.1A and 3.2.1A thereto:
"SECTION 3.1A. Repayments and Prepayments. The Borrower
shall repay in full the unpaid principal amount of the Tender Loans
upon the Stated Maturity Date therefor and pursuant to Section 8.2 and
Section 8.3. Prior thereto, repayments and prepayments of Tender
Loans shall be made as set forth in this Section 3.1.A.
SECTION 3.1.1A. Voluntary Prepayments. Prior to the Stated
Maturity Date, the Borrower may, from time to time on any Business
Day, make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of the Tender Loans; provided, however,
that
-8-
<PAGE> 9
(a) all such voluntary prepayments shall require at
least one but no more than five Business Days' prior written
notice to the Agent; and
(b) all such voluntary partial prepayments shall be
in an aggregate minimum amount of $1,000,000 and an integral
multiple of $500,000.
Each prepayment of any Tender Loans made pursuant to this Section
shall be without premium or penalty."
SECTION 3.2.1A. Tender Loan Rate. The Tender Loans shall
accrue interest at a rate per annum equal to the sum of the SG Base
Rate from time to time in effect plus 3%."
SECTION 2.1.6. Additional Amendments to Article III of the Existing
Credit Agreement (Repayments, Prepayments, Interest and Fees). Article III of
the Existing Credit Agreement is hereby also amended by (a) inserting the words
"and the Tender Loans" after the words "Term Loans" each time such words appear
in Section 3.1.2(c) of the Existing Credit Agreement, and adding the words
"such mandatory prepayment amounts to be allocated ratably (in accordance with
the respective outstanding principal amounts thereof) among the Term Loans and
the Tender Loans" immediately prior to the semicolon appearing at the end of
such Section 3.1.2(c) and (b) inserting the words "and the Tender Fee Letter"
after the words "Fee Letter" appearing in Section 3.3.3 thereof.
SECTION 2.1.7. Amendment to Article IV of the Existing Credit
Agreement (Certain LIBO Rate and Other Provisions). The Existing Credit
Agreement is hereby amended by adding the following new Section 4.10A thereto:
"4.10A. Use of Proceeds. The Borrower shall apply the
proceeds of the Tender Loans solely as follows: the proceeds of the
Tender Loans (together with the Borrower Contributed Amount) will be
loaned by the Borrower to the Parent under the Parent Inter-Company
Note, and the Parent, in turn, will contribute such proceeds to the
capital of Acquisition to enable Acquisition to pay for the purchase
of Shares (with the Borrower Contributed Amount being applied in full
first) tendered pursuant to the Tender Offer supported by the
management and approved by the Board of Directors of Target, at a
purchase price equal to $12.00 per Share. It is understood and agreed
that the Borrower will provide up to an additional $1,500,000 from
cash on hand (and not from a draw of a Revolving Loan) to pay fees and
expenses that will be payable in connection with the Tender Offer."
-9-
<PAGE> 10
SECTION 2.1.8. Amendments to Article VI of the Existing Credit
Agreement (Representations and Warranties). Article VI of the Existing Credit
Agreement is hereby amended by adding the following new Section 6.22 thereto:
"6.22 Certain Representations and Warranties Relating to the Tender
Offer.
(a) The Parent directly owns free and clear of all Liens (other than
any Lien pursuant to the Parent Pledge Agreement), 100% of the
outstanding shares of stock (voting and non-voting) of Acquisition on
a fully diluted basis.
(b) Acquisition is a newly formed shell corporation which has no
assets or liabilities, and which has not engaged in any business
activity whatsoever, except in connection with the Tender Offer, the
Offer to Purchase, the Merger Agreement, this Agreement and any other
Loan Document. Acquisition has no Subsidiaries, except that, from and
after the date of consummation of the Tender Offer, Acquisition shall
own at least 80% of the Shares of Target, free and clear of all Liens.
Upon Acquisition's acquisition of at least 80% of the Shares of
Target, Acquisition shall own and control Shares possessing sufficient
voting power to permit Acquisition to cause the First Merger to be
consummated without the need of the affirmative vote of any other
shareholder of the Target nor any action by the Board of Directors of
the Target (other than the vote previously taken by the Board of
Directors of the Target on June 15, 1995), and the Target shall be a
Subsidiary of the Parent for all purposes of this Agreement and the
other Loan Documents.
(c) The Tender Offer Materials, as of their respective dates and as
amended, supplemented or otherwise modified to the date hereof (as so
amended, supplemented or otherwise modified, the "Information"), do
not when taken as a whole contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading in any material respect and, to the best
knowledge of the Borrower and the Parent, all other materials
furnished to the Agent in connection with the Tender Offer, the First
Merger and the transactions contemplated hereby, as of the respective
dates of such materials, do not, in the aggregate, constitute untrue
statements of material facts or omit to state material facts necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading in any material respect.
-10-
<PAGE> 11
(d) There is no fact known to the Borrower or the Parent related to
the Target, the Tender Offer or the First Merger which the Borrower or
the Parent has not disclosed to the Lenders in the Information (other
than facts related to general economic conditions) which materially
adversely affects or, insofar as the Borrower or the Parent can
reasonably foresee, will materially adversely affect, the financial
condition, operations, assets, business, properties, revenues or
prospects of the Target or the ability or prospective ability of the
Borrower or the Parent or Acquisition or the Target to perform their
respective or prospective obligations under this Agreement, the Notes,
all other Loan Documents, the Merger Agreement, or any document as
contemplated herein or therein.
(e) The Parent has heretofore delivered true and complete copies to
the Agent of each Target Debt Document, the Merger Agreement, the
Offer to Purchase and the other Tender Offer Materials, none of which
have been amended, waived, supplemented or otherwise modified, other
than the amendment pursuant to which the "fairness" opinion was
amended to be addressed to shareholders of the Target (and pursuant to
which no other amendments were made) and the amendment to the Tender
Offer Statement on Schedule 14d-1 required in accordance with
instruction D to Rule 14d-100 promulgated under the Securities
Exchange Act of 1934, as amended (and pursuant to which no other
amendments were made). There are no existing options, warrants,
calls, subscriptions or other rights or other agreements or
commitments of any character (including, without limitation, any
agreement in respect of a "poison pill") relating to the issued or
unissued capital stock of the Target, to which the Target is a party
or by which it may be bound or obligating the Target to issue,
transfer or sell or cause to be issued, transferred or sold any shares
of capital stock, or other equity interests or obligating the Target
to grant, extend or enter into any such option, warrant, call,
subscription or other right, agreement or commitment. There are no
outstanding contractual obligations of the Target to repurchase,
redeem or otherwise acquire any shares of capital stock of the Target.
(f) All representations and warranties by the Parent and Acquisition
under the Merger Agreement are true and correct in all material
respects as of the Section 2.1 Effective Date (as defined in the Third
Amendment) and the Section 2.2 Effective Date (as defined in the Third
Amendment) as if made on each such date (unless stated to relate
solely to an earlier date) and, to the best knowledge of the Parent
and its Subsidiaries, all representations and warranties by the Target
under the Merger Agreement are true and correct in
-11-
<PAGE> 12
all material respects as of the Section 2.1 Effective Date (as defined
in the Third Amendment) and the Section 2.2 Effective Date (as defined
in the Third Amendment) as if made on each such date (unless stated to
relate solely to an earlier date).
(g) There has been no material adverse change in the financial
condition, operations, assets, business, properties, revenues or
prospects of
(i) Acquisition since its date of incorporation; or
(ii) to the best of the knowledge of the Parent, the Target
since the date of its most recent financial statements
delivered to the Agent.
(h) There is no pending or, to the Parent's or the Borrower's
knowledge, threatened
(i) litigation, arbitration or governmental investigation or
proceeding relating to the Tender Offer, the Offer to
Purchase, the First Merger or the Merger Agreement or
(ii) to the best of the knowledge of the Parent, material
litigation, arbitration, or governmental investigation or
proceeding against the Target or to which any properties,
assets or revenues of the Target is subject, except as
disclosed in the Merger Agreement.
As of the time of the making of the Tender Loans and the First Merger
Loans, no injunction or other restraining order has been issued, no
hearing to cause an injunction or other restraining order to be issued
is pending or noticed and, except for the litigation disclosed in
Annex I to the Bracewell & Patterson, L.L.P. legal opinion, dated the
date hereof, no complaint has been filed with respect to any action,
suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a
result of, the Tender Offer, the First Merger, this Agreement, the
Merger Agreement or the making of Loans hereunder.
(i) The Tender Offer and the Merger Agreement comply with all
applicable laws, rules and regulations, including the federal
securities laws and the Florida Business Corporation Act, and all
legal requirements have been satisfied so that the First Merger may be
completed within 7 Business Days after the Tender Offer Closing Date
and that holders of
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<PAGE> 13
Shares not tendered pursuant to the Tender Offer shall have no rights
except to receive $12.00 per Share in cash.
(j) To the Parent's best knowledge, the audited balance sheet,
statement of operations and statement of cash flows for the Target for
the fiscal year ending December 29, 1994, and the unaudited balance
sheet, statement of operations and statement of cash flows for the
Target for the fiscal quarter ending March 30, 1995, present fairly
the financial condition of the Target as at the dates thereof and the
results of its operations for the periods then ended."
Article VI of the Existing Credit Agreement is also amended by (a) deleting the
words "Time Saver and" appearing in the second sentence thereof, (b) inserting
the words "except the Target" at the end of Section 6.8 thereof and (c)
inserting the words "Except in the case of the Tender Loans for purposes of
financing the purchase of Shares pursuant to the Tender Offer," at the
beginning of the second sentence of Section 6.19 thereof, and by adding the
following sentence immediately after such second sentence of Section 6.19: "No
use of any proceeds of any Loan (including any Tender Loan) made hereunder will
violate, or be inconsistent with, F.R.S. Board Regulation G, T, U or X."
SECTION 2.1.9. Amendment to Section 7.1.1 of the Existing Credit
Agreement (Financial Information, Reports, Notices, Etc.). Section 7.1.1 of
the Existing Credit Agreement is hereby amended by including within each
covenant contained therein (other than Section 7.1.1(d) thereof) an appropriate
reference to the Target so that such reporting requirements shall apply to the
Target as well as the Parent and the Borrower.
SECTION 2.1.10. Amendment to Section 7.1.3 of the Existing Credit
Agreement (Maintenance of Properties). Section 7.1.3 of the Existing Credit
Agreement is hereby amended by replacing the table appearing in such Section
with the following:
<TABLE>
<CAPTION>
"Fiscal Year Capital Expenditures
----------- --------------------
<S> <C>
1995 $8,400,000
1996 $6,700,000
1997 $6,700,000
1998 $6,700,000
1999 $4,400,000
2000 $4,500,000
2001 $4,600,000"
</TABLE>
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<PAGE> 14
SECTION 2.1.11. Limited Waiver Regarding Section 7.1.4 of the Credit
Agreement (Insurance). Compliance by the Parent and the Target with the
provisions contained in Sections 7.1.4(b) and (d) of the Credit Agreement
relating to (a) the Agent being named a loss payee under a lenders loss payable
clause contained in any insurance policy maintained by the Target, (b) the
Agent being named an additional insured under any such insurance policy or (c)
the Term Loans or Tender Loans being prepaid with insurance proceeds payable to
the Target is waived to the extent and for so long as (and only to the extent
and for so long as) a Target Debt Document would be contravened or a default
thereunder would arise as a result of complying with such provisions.
SECTION 2.1.12. Limited Waiver Regarding Section 7.1.9(c) of the
Credit Agreement (Intellectual Property Collateral). Compliance by the Parent
and the Target with the provisions contained in Section 7.1.9(c) of the Credit
Agreement, insofar as such provisions relate to assets or rights of the Target,
is waived to the extent and for so long as (and only to the extent and for so
long as) a Target Debt Document would be contravened or a default thereunder
would arise as a result of complying with such provisions.
SECTION 2.1.13. Limited Waiver Regarding Section 7.1.10 of the Credit
Agreement (Future Subsidiaries). Compliance by the Parent and the Target with
the provisions contained in Section 7.1.10 of the Credit Agreement, insofar as
the Target is concerned, is waived to the extent and for so long as (and only
to the extent and for so long as) a Target Debt Document would be contravened
or a default thereunder would arise as a result of complying with such
provisions.
SECTION 2.1.14. Limited Waiver Regarding Section 7.1.11 of the Credit
Agreement (Springing Liens). Compliance by the Parent and the Target with the
provisions contained in Section 7.1.11 of the Credit Agreement, insofar as such
provisions relate to the granting by the Target of Liens on its assets, is
waived to the extent and for so long as (and only to the extent and for so long
as) a Target Debt Document would be contravened or a default thereunder would
arise as a result of complying with such provisions.
SECTION 2.1.15. Amendment to Section 7.1.12 of the Existing Credit
Agreement (Gasoline Purchases). Section 7.1.12 of the Existing Credit
Agreement is hereby amended by adding the words, ", the Target" after the word
"Borrower" appearing therein.
SECTION 2.1.16. Additional Amendments to Article VII of the Existing
Credit Agreement (Covenants). Article VII of the Existing Credit Agreement is
hereby also amended by adding the following new Sections 7.1.16, 7.1.17 and
7.1.18 thereto:
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<PAGE> 15
"SECTION 7.1.16. First Merger. The Parent shall cause
Acquisition to be merged with and into the Target within 5 Business
Days after the Tender Offer Closing Date, with the Target being the
surviving corporation of such merger as a direct wholly-owned
Subsidiary of the Parent.
SECTION 7.1.17. Merger of the Target and the Borrower. Each
of the Parent and the Borrower agrees to cause the corporation which
survives the First Merger to be merged with and into the Borrower,
with the Borrower being the surviving corporation (the "Second
Merger"), in a manner reasonably satisfactory to the Agent (including
as to delivery to the Agent of the certificates, opinions and other
documents referred to in Section 7.1.8, mutatis mutandis), and all
Target Debt Documents to be terminated and all related restrictions
and Liens to be fully released, as soon as practicable following the
obtaining of the favorable ruling of the U.S. Bankruptcy Court
administering the Target's Plan of Reorganization as specified in
Section 7.1.15 hereof, and the obtaining, to the extent required by
applicable law, of all or substantially all Beverage Licenses
necessary to permit, at the convenience stores owned or operated by
the Target, the sale and distribution of the alcoholic beverages sold
or distributed at such convenience stores as of the Section 2.1
Effective Date, including all consents and approvals, if any,
necessary to take into account effectuation of the Second Merger.
SECTION 7.1.18 Acquisition. Until consummation of the First
Merger, Acquisition shall remain a holding company, engaging in no
business activities of any nature whatsoever, except for the purchase
and holding of Shares, subject to Acquisition's right to dispose of
the same in accordance with Section 7.2.11 hereof, and the conduct of
activities directly related to the Tender Offer, the Merger Agreement
and this Agreement".
SECTION 2.1.17. Amendment to Section 7.2.2 of the Existing Credit
Agreement (Indebtedness). Clause (c) of Section 7.2.2 of the Existing Credit
Agreement is hereby amended by adding the following phrase at the end thereof:
"and Indebtedness of the Target existing as of the Tender Offer Closing Date
which is identified in Item 7.2.2(c)(Supp) ("Ongoing Target Indebtedness") of
the Disclosure Schedule".
SECTION 2.1.18. Amendment to Section 7.2.3 of the Existing Credit
Agreement (Liens). Clause (b) of Section 7.2.3 of the Existing Credit
Agreement is hereby amended by adding the following phrase at the end thereof:
"or Item 7.2.2(c)(Supp)
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<PAGE> 16
("Ongoing Target Indebtedness") of the Disclosure Schedule", and Section 7.2.3
of the Existing Credit Agreement is hereby further amended by adding the
following proviso at the end thereof: "provided, however, that, prior to the
date of consummation of the First Merger, none of the foregoing provisions of
this Section 7.2.3 shall prevent Acquisition from subjecting any Margin Stock
to a Lien so long as Acquisition receives fair value in cash therefor and
maintains such proceeds in cash or Cash Equivalent Investments".
SECTION 2.1.19. Amendments to Section 7.2.4 of the Existing Credit
Agreement (Financial Condition). Clauses (b) and (d) of Section 7.2.4 of the
Existing Credit Agreement are hereby amended in their entirety by substituting
the following therefor:
"(b) the Fixed Charge Coverage Ratio, as of the last day of
each Fiscal Quarter set forth below, to be less than the ratio set
forth opposite such Fiscal Quarter:
<TABLE>
<CAPTION>
Minimum Fixed Charge
Fiscal Quarter Coverage Ratio
-------------- --------------
<S> <C>
The second Fiscal Quarter
of the 1995 Fiscal Year 1.00:1.00
The third Fiscal Quarter
of the 1995 Fiscal Year 1.00:1.00
The fourth Fiscal Quarter
of the 1995 Fiscal Year 1.00:1.00
The first Fiscal Quarter
of the 1996 Fiscal Year 0.90:1.00
The second and third
Fiscal Quarters of the
1996 Fiscal Year
1.00:1.00
The fourth Fiscal Quarter
of the 1996 Fiscal Year 1.05:1.00
The first two Fiscal
Quarters of the 1997
Fiscal Year 1.10:1.00
The third and fourth
Fiscal Quarters of the
1997 Fiscal Year 1.15:1.00
</TABLE>
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<PAGE> 17
<TABLE>
<CAPTION>
Minimum Fixed Charge
Fiscal Quarter Coverage Ratio
-------------- --------------
<S> <C>
The first Fiscal Quarter
of the 1998 Fiscal Year 1.15:1.00
The second and third
Fiscal Quarters of the
1998 Fiscal Year 1.20:1.00
The fourth Fiscal Quarter
of the 1998 Fiscal Year 1.25:1.00
The first Fiscal Quarter
of the 1999 Fiscal Year 1.25:1.00
The second and third
Fiscal Quarters of the
1999 Fiscal Year
1.30:1.00
The fourth Fiscal Quarter
of the 1999 Fiscal Year 1.35:1.00
The first Fiscal Quarter
of the 2000 Fiscal Year 1.35:1.00
The second Fiscal Quarter
of the 2000 Fiscal Year
and thereafter 1.40:1.00
</TABLE>
(d) the Funded Debt to EBITDA Ratio, as of the last day of
each Fiscal Quarter set forth below, to be greater than the ratio set
forth opposite such Fiscal Quarter:
<TABLE>
<CAPTION>
Maximum Funded Debt
Fiscal Quarter to EBITDA Ratio
---------------- -------------------
<S> <C>
The second Fiscal Quarter
of the 1995 Fiscal Year 6.00:1.00
The third Fiscal Quarter
of the 1995 Fiscal Year 3.50:1.00
The fourth Fiscal Quarter
of the 1995 Fiscal Year 3.00:1.00
Each Fiscal Quarter of the
1996 Fiscal Year 2.75:1.00
Each Fiscal Quarter of the
1997 Fiscal Year 2.25:1.00
</TABLE>
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<PAGE> 18
<TABLE>
<CAPTION>
Maximum Funded Debt
Fiscal Quarter to EBITDA Ratio
---------------- -------------------
<S> <C>
Each Fiscal Quarter of the
1998 Fiscal Year and thereafter" 2.00:1.00
</TABLE>
SECTION 2.1.20. Additional Amendments to Section 7.2.4 of the
Existing Credit Agreement (Financial Condition). Section 7.2.4 of the Existing
Credit Agreement is hereby also amended by adding a new Section 7.2.4A at the
end thereof, such new Section to read as follows:
"SECTION 7.2.4A Financial Condition. The Parent will not
permit:
(a) the Target Interest Coverage Ratio (as defined
below), as of the last day of each Target Fiscal Year, to be
less than 3.0:1.0.
(b) the Target Fixed Charge Coverage Ratio (as
defined below), as of the last day of each Target Fiscal Year,
to be less than 1.0:1.0.
(c) the Target Funded Debt to EBITDA Ratio (as
defined below), as of the last day of each Target Fiscal Year
set forth below, to be greater than the ratio set forth
opposite such Target Fiscal Year:
<TABLE>
<CAPTION>
Maximum Funded Debt to
Year EBITDA Coverage Ratio
---- ----------------------
<S> <C>
1995 3.6 : 1.0
1996 2.5 : 1.0
1997 2.0 : 1.0
1998 and thereafter 1.5 : 1.0
</TABLE>
(d) the Target to make or, without duplication, commit to
make Capital Expenditures in any Fiscal Year, except Capital
Expenditures which do not aggregate in any Target Fiscal Year in
excess of the amount set forth below opposite such Target Fiscal Year:
<TABLE>
<CAPTION>
Target Fiscal Year Amount
------------------ ------
<S> <C>
1995 $3,000,000
1996 $5,100,000
</TABLE>
-18-
<PAGE> 19
<TABLE>
<S> <C>
1997 $2,200,000
1998 $2,200,000
1999 $1,800,000
2000 $ 600,000
2001 $ 700,000
2002 $2,000,000
</TABLE>
(e) For the purposes of this Section 7.2.4A, the following
terms have the following meanings:
"Target EBIT" means, for any period, the sum, without
duplication, of
(a) Target Net Income for such period;
plus
(b) the amounts deducted, in determining
Target Net Income for such period, for
(i) all income taxes paid by, or
accrued to be paid by, the Target during such
period in respect of such period (assuming
utilization of all available Target Net
Operating Losses to the extent permitted by
the Code),
plus
(ii) Target Interest Expense for such
period.
"Target EBITDA" means, for any period, the sum,
without duplication, for such period, of
(a) Target EBIT;
plus
(b) the amount deducted, in determining
Target Net Income for such period, for amortization
and depreciation of assets of the Target during such
period.
"Target Fiscal Quarter" means the three consecutive
month period ending on the last Thursday of every third month
from and after the beginning of a Target Fiscal Year, provided
that upon written notice from the Parent to the Agent, Target
Fiscal Quarters may be the same as the Parent's Fiscal
Quarters.
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<PAGE> 20
"Target Fiscal Year" means any period of twelve
consecutive months ending on the last Thursday of each
December, provided that upon written notice from the Parent to
the Agent the Target Fiscal Year may be the same as the
Parent's Fiscal Year. References to a Target Fiscal Year with
a number corresponding to any calendar year (e.g. "Target
Fiscal Year 1995") refer to the Target Fiscal Year ending
during such calendar year.
"Target Rolling Period" means, as of any date of
calculation, the immediately preceding four full Target Fiscal
Quarters.
"Target Fixed Charge Coverage Ratio" means, as of the
last day of any Target Fiscal Quarter, the ratio of:
(a) Target EBITDA for the Target Rolling
Period ending on such day minus all Capital
Expenditures of Target incurred or committed to be
incurred during such Target -Rolling Period;
to
(b) the sum of
(i) Target Interest Expense for such
Target Rolling Period;
plus
(ii) all scheduled repayments of
Target Funded Debt during such Target Rolling
Period;
plus
(iii) all income taxes paid by Target
during such Target Rolling Period in respect
of such Target Rolling Period (assuming
utilization of all available Target Net
Operating Losses (to the extent permitted by
the Code)).
"Target Funded Debt" means, as of any date of
determination, any Indebtedness of the Target of a type
described in clause (a), (b) (to the extent actually drawn) or
(c) of the definition of Indebtedness, or any Contingent
Liability of the
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<PAGE> 21
Target in respect of any such type of Indebtedness, which
(a) matures more than one year from such
date of determination;
(b) matures within one year from such date
of determination but is renewable or extendible, at
the option of the Target to a date more than one year
from such date; or
(c) arises under a revolving credit or
similar agreement which obligates the lender or
lenders thereof to extend such Indebtedness during a
period of more than one year from such date.
"Target Funded Debt to EBITDA Ratio" means, as of the
last day of any Target Rolling Period, the ratio of:
(a) Target Funded Debt as at the last day of
such Target Rolling Period;
to
(b) Target EBITDA for such Target Rolling
Period.
"Target Interest Coverage Ratio" means, as of the
last day of any Target Fiscal Quarter, the ratio of:
(a) Target EBITDA for the Target Rolling
Period ending on such day,
to
(b) Target Interest Expense for such Target
Rolling Period.
"Target Interest Expense" means, for any period, the
aggregate consolidated interest expense of the Target for such
period, as determined in accordance with GAAP, including,
without duplication, net obligations of the Target (including
fees) in respect of Rate Protection Agreements and the portion
of any Capitalized Lease Liabilities of the Target allocable
to interest expense, in each case paid or payable during such
period.
-21-
<PAGE> 22
"Target Net Income" means, for any period, all
amounts (exclusive of all amounts in respect of any
extraordinary gains or losses) which, in accordance with GAAP,
would be included as net income on the statements of income of
the Target for such period.
"Target Net Operating Loss" means all net operating
losses incurred by the Target, as shown on any federal tax
return (as amended or otherwise modified) filed or to be filed
by the Target.
SECTION 2.1.21. Limited Waiver Regarding Sections 7.2.5 and 7.2.7 of
the Credit Agreement (Investments; Capital Expenditures). Compliance by
Acquisition with the provisions contained in Sections 7.2.5 and 7.2.7 of the
Credit Agreement is waived to the extent (and only to the extent) necessary to
permit Acquisition to purchase Shares pursuant to the Tender Offer (including
not applying the purchase price of such Shares against the Capital Expenditure
Levels relating to such Section 7.2.7).
SECTION 2.1.22. Limited Waiver Regarding Sections 7.2.5 and 7.2.6(a)
of the Credit Agreement (Investments; Restricted Payments). Compliance by the
Borrower with the provisions contained in Sections 7.2.5 and 7.2.6(a) of the
Credit Agreement is waived to the extent (and only to the extent) necessary to
permit the Borrower to lend in cash to the Parent (a) the maximum amount of the
$2,500,000 escrow established pursuant to the Escrow Agreement which may be
released in accordance with the terms of the Escrow Agreement and (b) an amount
not exceeding $5,000,000 less the amount lent pursuant to the immediately
preceding clause (a) (unless otherwise required to be distributed pursuant to
the terms of the Escrow Agreement); provided, however, that such amounts are
immediately contributed by the Parent to Acquisition as a capital contribution
and used by Acquisition solely to purchase Shares pursuant to the Tender Offer.
SECTION 2.1.23. Amendment to Section 7.2.6(b) of the Existing Credit
Agreement (Restricted Payments). Clause (i) of Section 7.2.6(b) of the
Existing Credit Agreement is hereby amended by adding at the end thereof the
following proviso: "provided, however, that the Parent may, with respect to
any shares of Series C Preferred Stock, declare and pay dividends thereon in
the form of additional shares of Series C Preferred Stock, in accordance with
the terms of such Series C Preferred Stock as in effect on the date of the
Third Amendment".
SECTION 2.1.24. Amendment to Section 7.2.7 of the Existing Credit
Agreement (Capital Expenditures). Section 7.2.7 of the
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<PAGE> 23
Existing Credit Agreement is hereby amended by deleting the table appearing in
clause (a) thereto and substituting therefor the following table:
<TABLE>
<CAPTION>
Capital Capital Capital Capital
"Fiscal Expenditure Expenditure Expenditure Expenditure
Year Level I Level II Level III Level IV
---- ------- -------- --------- --------
<S> <C> <C> <C> <C>
1995 $17,500,000 $14,000,000 $10,500,000 $8,400,000
1996 13,500,000 10,800,000 8,100,000 6,700,000
1997 12,000,000 9,600,000 7,200,000 6,700,000
1998 11,000,000 8,800,000 6,700,000 6,700,000
1999 10,900,000 8,700,000 6,500,000 4,400,000
2000 13,400,000 10,700,000 8,000,000 4,500,000
2001 15,800,000 12,600,000 9,500,000 4,600,000"
</TABLE>
SECTION 2.1.25. Limited Waiver of Section 7.2.10 (Consolidation,
Merger, etc.). Compliance by Acquisition with the provisions contained in
Section 7.2.10 of the Credit Agreement is waived to the extent (and only to the
extent) necessary to permit Acquisition to consummate the Tender Offer and the
First Merger on the terms of the Merger Agreement and as provided in this
Agreement.
SECTION 2.1.26. Amendment to Section 7.2.11 of the Existing Credit
Agreement (Asset Dispositions, etc.). Section 7.2.11 of the Existing Credit
Agreement is hereby amended by adding at the end thereof the following proviso:
"provided, however, that notwithstanding the foregoing, prior to the date of
consummation of the First Merger, nothing contained in this Section 7.2.11
shall restrict the ability of Acquisition to sell or otherwise dispose of any
Margin Stock, so long as Acquisition receives fair value in cash therefor and
maintains such proceeds in cash or Cash Equivalent Investments."
SECTION 2.1.27. Amendment to Section 7.2.12 of the Existing Credit
Agreement (Modification of Certain Agreements). Section 7.2.12 of the Existing
Credit Agreement is hereby amended by adding after the words "Merger
Certificate" the phrase ", the Merger Agreement, the Offer to Purchase, any
other Tender Offer Material or any Organic Document of any Obligor".
SECTION 2.1.28. Amendment to Section 7.2.14 of the Existing Credit
Agreement (Negative Pledges; Restrictive Agreements). Clause (b) of Section
7.2.14 of the Existing Credit Agreement is hereby amended by deleting the
initial reference therein to "Borrower" and substituting therefor a reference
to "Parent".
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<PAGE> 24
SECTION 2.1.29. Limited Waiver Regarding Section 7.2.14 of the Credit
Agreement (Negative Pledges; Restrictive Agreements). Compliance by the Parent
and the Target with the provisions contained in clause (a) of Section 7.2.14 of
the Credit Agreement, insofar as such provisions relate to properties, revenues
or assets of the Target, is waived to the extent and for so long as (and only
to the extent and for so long as) a Target Debt Document would be contravened
or a default thereunder would arise as a result of complying with such
provisions.
SECTION 2.1.30. Amendment to Article VIII of the Existing Credit
Agreement (Events of Default). Article VIII of the Existing Credit Agreement
is hereby amended by (a) adding the words ", Section 7.1.15, Section 7.1.16,
Section 7.1.17, Section 7.1.18, Section 7.2.4A" after the words "Section
7.1.13" appearing in Section 8.1.3 thereof, (b) adding the words "or by the
Target under the Merger Agreement" after the words "Purchase Agreement"
appearing in the second sentence of Section 8.1.2 thereof, and (c) adding the
words "provided, however, that, prior to the date of consummation of the First
Merger, the foregoing shall not apply to any defaults in any provisions of any
such Indebtedness that restrict the pledge or sale or other disposition of any
Margin Stock" at the end of Section 8.1.5 thereof.
SECTION 2.1.31. Amendment to Section 10.1 of the Existing Credit
Agreement (Actions). Section 10.1 of the Existing Credit Agreement is hereby
amended by adding the words "of the Total Commitment Amount" after the word
"Percentage" appearing therein.
SECTION 2.1.32. Amendment to Schedule II to Existing Credit
Agreement. Schedule II to the Existing Credit Agreement is hereby amended in
its entirety to read as set forth on Annex I hereto.
SECTION 2.1.33. Amendment to Schedule III to Credit Agreement.
Schedule III to the Existing Credit Agreement is hereby amended in its entirety
to read as set forth on Annex III hereto.
SECTION 2.1.34. Amendment to Disclosure Schedule of Existing Credit
Agreement. Item 6.9 ("Ownership of Properties"), Item 6.12 ("Environmental
Matters") and Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure Schedule
are supplemented by the items set forth in Annex V hereto.
SECTION 2.1.35. Second Amendment. Except for the amendments effected
by Section 2.1 thereof, the related conditions precedent in Section 3.1 thereof
and the provisions of Articles IV and V thereof, all provisions of the Second
Amendment are replaced and superseded by this Amendment Agreement.
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SECTION 2.2. Amendments and Waivers Relating to First Merger and
First Merger Commitment. Effective on (and subject to the occurrence of) the
Section 2.2 Effective Date (as hereinafter defined), the Lenders and the Agent
hereby agree that certain terms and provisions of the Credit Agreement are
amended and/or waived to the extent expressly set forth in this Section 2.2:
SECTION 2.2.1. Amendments to Section 1.1 of the Credit Agreement
(Definitions). Section 1.1 of the Credit Agreement is hereby amended by (a)
substituting the words "or the Target" for the words "or Acquisition,"
appearing in clause (c) of the definition of Change of Control and (b)
"amending and restating each of the following definitions so they read in their
entirety as follows:
"Commitment" means, as the context may require, a Lender's
Revolving Loan Commitment, Term Loan Commitment, the First Merger
Commitment or Letter of Credit Commitment.
"Commitment Amount" means, as the context may require, either
the Revolving Loan Commitment Amount, the Term Loan Commitment Amount,
the First Merger Commitment Amount or the Letter of Credit Commitment
Amount.
"Loan" means, as the context may require, either a Revolving
Loan, a Term Loan or a First Merger Loan.
"Note" means, as the context may require, either a Revolving
Note, a Term Note or a First Merger Note.
"Stated Maturity Date" means (a) in the case of any Term Loan,
January 24, 2002, (b) in the case of any Revolving Loan, January 24,
1998 and (c) in the case of any First Merger Loan, the earlier of (i)
the Second Merger Date and (ii) July 23, 1996, provided, however, that
if the Second Merger Date has not occurred by July 23, 1996, the First
Merger Loan shall amortize as set forth on Annex IV to the Third
Amendment, and, if the Parent and its Subsidiaries (excluding the
Target) shall not have achieved an EBITDA for the 12 month period
ending June 30, 1996 of $20.9 million and the Second Merger Date shall
not have occurred by such July 23, 1996 date, the Borrower shall pay a
restructuring fee of $604,000 on July 23, 1996 to the Agent for the
pro rata account of the Lenders.
"Total Commitment Amount" means the sum, without duplication,
of the Term Loan Commitment Amount, the First Merger Commitment Amount
and the Revolving Loan Commitment Amount.
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SECTION 2.2.2. Additional Amendments to Section 1.1 of the Credit
Agreement (Definitions). Section 1.1 of the Credit Agreement is hereby further
amended by adding the following terms and definitions:
"Bankruptcy Motion" is defined in Section 2.4B.
"First Merger Commitment" means, relative to any Lender, such
Lender's obligation to make the First Merger Loan pursuant to Section
2.1.1B.
"First Merger Commitment Amount" means, on any date prior to
the First Merger Commitment Termination Date, $15,400,000.
"First Merger Commitment Termination Date" means the earliest
to occur of
(a) 30 days after the Tender Offer Closing Date;
(b) immediately after the making of the First Merger Loan; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (a), (b) or (c),
the First Merger Commitments shall terminate automatically and without
any further action.
"First Merger Loan" is defined in Section 2.1.1B.
"First Merger Note" means a promissory note of the Borrower
payable to any Lender, in substantially the form of Annex C to the
Third Amendment (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from the First
Merger Loan, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
"Second Merger" means the merger of the Target with and into
the Borrower, with the Borrower being the survivor of such merger.
"Second Merger Date" means the date on which the Second Merger
is consummated.
SECTION 2.2.3. Amendments to Article II of the Existing Credit
Agreement (Commitments, Borrowing Procedures, Letters of Credit and Notes).
Article II of the Existing Credit Agreement
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is hereby amended by adding the following new Sections 2.1.1B, 2.2.1B and 2.4B
thereto:
"SECTION 2.1.1B. First Merger Commitment. On the Business
Day the First Merger is consummated (but only if First Merger Loans
are requested to be made on, or prior to, the First Merger Commitment
Termination Date), each Lender agrees to make a Loan (relative to such
Lender, its "First Merger Loan"; collectively the "First Merger
Loans") in a single draw to the Borrower equal to such Lender's
Percentage of the aggregate amount of the Borrowing of the First
Merger Loans requested by the Borrower to be made on such day. The
Commitment of each Lender described in this Section is herein referred
to as its "First Merger Loan Commitment". No amounts paid or prepaid
with respect to the First Merger Loans may be reborrowed.
SECTION 2.2.1B. First Merger Loans. No Borrowing of First
Merger Loans shall be made if, after giving effect thereto, the
aggregate outstanding principal amount of all First Merger Loans (a)
of all Lenders would exceed the First Merger Commitment Amount or (b)
of any Lender would exceed such Lender's Percentage of the First
Merger Commitment Amount.
SECTION 2.4B. Borrowing Procedure. By delivering a Borrowing
Request for the First Merger Loans to the Agent on or before 10:00
a.m. (New York City time) on a Business Day, the Borrower shall have
irrevocably requested that First Merger Loans comprised of a Base Rate
Loan be made on such Business Day or on another Business Day within
five Business Days of such Business Day. The proceeds of the First
Merger Loan shall be used solely for the purposes described in Section
4.10B. On the terms and subject to the conditions of this Agreement,
the Borrowing of First Merger Loans shall be made on the Business Day
specified in such Borrowing Request. On or before 12:00 noon (New
York City time) on such Business Day, each Lender shall deposit with
the Agent same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made to
an account which the Agent shall specify by notice to the Lenders. To
the extent funds are received from the Lenders, the Agent shall make
such funds available to the Borrower by wire transfer to the accounts
the Borrower shall have specified in its Borrowing Request. No
Lender's obligation to make any First Merger Loan shall be affected by
any other Lender's failure to make any First Merger Loan. The First
Merger Loans shall be comprised initially only of a Base Rate Loan,
and through the date that an appropriate motion is duly filed with the
U.S. Bankruptcy Court administering the Target's Plan of
Reorganization (the
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"Bankruptcy Motion") with respect to the final resolution of all
outstanding Class 7 Creditors of Target holding unresolved Class 7
Claims (as such terms are defined in such Plan of Reorganization),
only a Base Rate Loan will be available. Thereafter, conversion and
continuation elections with respect to LIBO Rate Loans shall be
available as set forth below in this Agreement, except that Interest
Periods of only one month each shall be available."
SECTION 2.2.4. Amendments to Article III of the Credit Agreement
(Mandatory Prepayments). Article III of the Credit Agreement is hereby amended
by (a) substituting the words "the First Merger Loans" for the words "the
Tender Loans" in each place where such words appear in Section 3.1.2(c) of the
Credit Agreement and (b) adding the following proviso at the end of such clause
(b) of Section 3.1.2 thereof:
"provided, however, that if the Second Merger has not been consummated
by July 23, 1996, the First Merger Loans shall amortize as set forth
on Annex IV to the Third Amendment,"
SECTION 2.2.5. Additional Amendments to Article III of the Credit
Agreement (Repayments, Prepayments, Interest and Fees). Article III of the
Credit Agreement is hereby also amended by adding the following new Sections
3.1B, 3.1.1B and 3.2.1B thereto:
"SECTION 3.1B. Repayments and Prepayments. The Borrower
shall repay in full the unpaid principal amount of the First Merger
Loans upon the Stated Maturity Date therefor and pursuant to Section
8.2 and Section 8.3. Prior thereto, repayments and prepayments of
First Merger Loans shall be made as set forth in this Section 3.1B.
SECTION 3.1.1B. Voluntary Prepayments. Prior to the Stated
Maturity Date, the Borrower may, from time to time on any Business
Day, make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of the First Merger Loans; provided,
however, that
(a) any such prepayments shall be made pro rata
among the First Merger Loans of the same type and, if
applicable, having the same Interest Period of all the
Lenders;
(b) all such voluntary prepayments shall require at
least one but no more than five Business Days' prior written
notice to the Agent; and
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(c) all such voluntary partial prepayments shall be
in an aggregate minimum amount of $1,000,000 and an integral
multiple of $500,000.
Each voluntary prepayment of First Merger Loans made pursuant to this
Section shall be applied, to the extent of such prepayment, first to
any Base Rate Loans outstanding prior to being applied to any LIBO
Rate Loans outstanding. Each prepayment of First Merger Loans made
pursuant to this Section shall be without premium or penalty but
subject to Section 4.4.
SECTION 3.2.1B. Rates. Subject to Sections 2.4 and 2.5, the
Borrower may elect, pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, that the First Merger Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as
Base Rate Loans, equal to the sum of the SG Base Rate from
time to time in effect plus (i) prior to the filing of the
Bankruptcy Motion, 2.25% and, (ii) thereafter, 1.25%; and
(b) following the filing of the Bankruptcy Motion,
on that portion maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the
LIBO Rate (Reserve Adjusted) for such one month Interest
Period plus 2.5%."
Only a one month Interest Period will be available for any
First Merger Loan maintained as a LIBO Rate Loan."
SECTION 2.2.6. Further Amendment to Article III of the Credit
Agreement (Repayments, Prepayments, Interest and Fees). Clause (c) of Section
3.2.3 of the Credit Agreement is hereby amended in its entirety by substituting
the following new clause (c) therefor:
"(c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the Effective Date; provided, however,
that interest on any First Merger Loan maintained as a Base Rate Loan
shall be payable on the last day of each calendar month;"
SECTION 2.2.7. Amendment to Article IV of the Credit Agreement
(Certain LIBO Rate and Other Provisions). The Credit Agreement is hereby
amended by adding the following new Section 4.10B thereto:
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"4.10B. Use of Proceeds. The Borrower shall apply the
proceeds of the First Merger Loans solely as follows: (a) to provide
for the "cash out" payment at $12.00 per Share pursuant to the Merger
Agreement for all of the outstanding Shares not tendered and purchased
by Acquisition pursuant to the Tender Offer, and (b) to refinance the
Borrower's Tender Loans."
SECTION 2.2.8. Amendment to Section 6.8 of the Credit Agreement
(Subsidiaries). Section 6.8 of the Credit Agreement is hereby amended by
deleting the first sentence thereof and substituting therefor the following
sentence: "The Parent has no direct Subsidiaries except the Borrower, Petroleum
and the Target." Such Section 6.8 is further amended by deleting the last
sentence thereof and substituting therefor the following sentence at the end of
such Section: "The Target has no Subsidiaries."
SECTION 2.2.9. Additional Amendments to Article VI of the Credit
Agreement (Representations and Warranties). Article VI of the Credit Agreement
is hereby amended by adding the following new Section 6.23 thereto:
"6.23 Certain Representations and Warranties Relating to the
First Merger".
(a) the First Merger has been duly consummated in
accordance with the Merger Agreement (without any amendment,
waiver, supplement or other modification thereof) and this
Agreement and, as a result thereof, the Parent directly owns
100% of the capital stock of the Target, free and clear of all
Liens except the Lien created thereon by the Parent Pledge
Agreement and all Shares have been duly retired and or
cancelled.
(b) the First Merger has been duly consummated
without any breach of, or default under, or any requirement to
prepay or redeem or repurchase or accelerate any Indebtedness
or material lease under any Target Debt Document, and no
holder of any Indebtedness issued thereunder has asserted any
of the foregoing.
(c) the total number of outstanding Shares of the
Target did not exceed 1,701,650 and the total consideration
paid to holders of the Shares in connection with each of the
Tender Offer and the Merger did not exceed $12 per Share.
SECTION 2.2.10. Amendment to Schedule II to Credit Agreement.
Schedule II to the Credit Agreement is hereby amended in its entirety to read
as set forth on Annex II hereto.
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ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1. Conditions to Effectiveness of Section 2.1. The
amendments set forth in Section 2.1 shall become effective upon the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 3.1 and Section 3.3(the first date as of which each such condition has
been satisfied being herein called the "Section 2.1 Effective Date").
SECTION 3.1.1. Resolutions, etc. The Agent shall have received from
the Borrower, Acquisition and the Parent, a certificate, dated the Section 2.1
Effective Date, of its Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors then in full force
and effect authorizing the Tender Offer and the execution, delivery
and performance of this Amendment Agreement, the Credit Agreement, the
Merger Agreement and each other Loan Document to be executed by it;
and
(b) the incumbency and signatures of its officers authorized
to act with respect to the Amendment Agreement, the Credit Agreement,
the Merger Agreement and each other Loan Document to be executed by
it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or Assistant Secretary of the
Parent, the Borrower or Acquisition, as appropriate, cancelling or amending
such prior certificate.
SECTION 3.1.2. Consummation of Tender Offer. The Agent shall be
satisfied (a) that the Tender Offer is being consummated concurrently with the
making of the Tender Loans in accordance with the Merger Agreement and the
Offer to Purchase and without any modification thereto or waiver of any term or
condition thereof (including without limitation the approval of the Board of
Directors of the Target with respect thereto), except for any thereof which are
immaterial and not adverse to the Lenders, and that Acquisition owns all Shares
tendered pursuant to the Tender Offer free and clear of any Liens and that
certificates evidencing at least 80% of all outstanding Shares have been duly
delivered to the depository (as agent for Acquisition) in connection with the
Tender Offer, (b) that the Shares to be purchased (and the certificates
representing such Shares, other than book-entry Shares which have been
deposited with a book-entry transfer facility) shall have been validly tendered
to Acquisition, free of all restrictions to purchase imposed by applicable law
or otherwise, and such Shares shall not have been
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withdrawn and shall be available for purchase in accordance with the terms and
conditions set forth in Annex A to the Merger Agreement, (c) that the
consummation of the Tender Offer and the First Merger will not violate or cause
a default under any applicable law, statute, rule or regulation or any material
agreement or right of the Parent or any of its Subsidiaries or the Target, (d)
that the Boards of Directors of the Target, the Parent and Acquisition have not
sought to withdraw, modify or terminate their approval of the Merger Agreement
or any of the transactions contemplated thereby and (e) that the Tender Offer
and the First Merger shall be consummated, (i) without triggering any "poison
pill," "shark repellant" or other similar items, and (ii) without the Florida
anti-takeover statutes (or any other similar statutes, including without
limitation Sections 607.0901 and 607.0902 of the Florida Business Corporations
Act) being applicable thereto and the Agent shall have received satisfactory
legal opinions as to, among other things, the foregoing and as to Section 3.1.4
below.
SECTION 3.1.3. Litigation, etc. The Agent shall be satisfied that
there is no governmental or judicial action, actual or threatened, and no new
law or regulation shall have been passed by any governmental authority or
agency, that is reasonably likely to restrain, prevent or impose burdensome
conditions on or result in material damages in connection with the transactions
contemplated hereby (including the Tender Offer and the First Merger).
SECTION 3.1.4. Cash-out Merger. The Agent shall be satisfied that
(a) the sole right of the shareholders of Target who do not tender their Shares
pursuant to the Tender Offer shall be to receive only a cash payment of $12.00
per share pursuant to the "cash-out merger" of the First Merger and (b) the
Shares purchased by Acquisition at the time of the Tender Loans, when added to
the Shares already owned by Acquisition, will constitute at least a sufficient
percentage of the Shares of the Target under applicable law, the constituent
documents of Target and the contractual arrangements of the Target to enable
Acquisition to cause the First Merger promptly to occur without the vote of any
other shareholder or the Board of Directors of the Target (except for the vote
already taken on June 15, 1995) and without the incurrence by Acquisition or
the Target of costs not directly related to the financing contemplated hereby.
SECTION 3.1.5. Notes. The Agent shall have received (a) for the
account of each Lender providing Tender Loans, a Tender Loan Note, dated the
Tender Loan Closing Date, with appropriate insertions, duly executed by the
Borrower and (b) the original of the Parent Inter-Company Note, duly completed
and duly executed, and the Parent Inter-Company Note shall have been duly
pledged to the Agent for the benefit of the Lenders pursuant
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to a supplement to the Borrower Pledge Agreement, substantially in the form of
Annex D hereto.
SECTION 3.1.6. Target Claims. The Agent shall be satisfied as to the
nature and amount of all claims against the Target (including the Class 7
Claims pending before the U.S. Bankruptcy Court for the Middle District of
Florida (Tampa Division) administering the Target's Plan of Reorganization).
SECTION 3.1.7. Borrower Contributed Amount. The Agent shall have
received satisfactory evidence that the Borrower shall have provided the
Borrower Contributed Amount (including the $2,500,000 already deposited by the
Borrower in escrow pursuant to the terms of the Merger Agreement) with respect
to the tendered Shares of the Target from cash on hand and not from any draw of
any Revolving Loans.
SECTION 3.1.8. Regulations G, U and X. The making of the Tender
Loans, the use of the proceeds thereof, and the security arrangements in
connection therewith will not result in a violation of F.R.S. Board Regulation
G, U or X, as in effect on the date hereof or as in effect on the Section 2.2
Effective Date in the event of any change therein having applicability on such
date, and the Parent, Acquisition, the Borrower and each entity providing debt
or equity funds for the Tender Offer or the First Merger shall be in compliance
with such regulations.
SECTION 3.1.9. Fairness Opinion. The Agent and the Lenders shall
have received a copy of the "fairness" opinion delivered by NationsBank Capital
Markets, Inc. to the Board of Directors of Target, and such letter shall remain
in full force and effect without modification or withdrawal.
SECTION 3.1.10. Series C Preferred Stock. The Agent shall have
received, for the account of each Lender, copies of the documents evidencing
and providing for the Series C Preferred Stock, such copies to be certified by
the Parent as being true, complete and correct copies thereto.
SECTION 3.2. Conditions to Effectiveness of Section 2.2. The
amendments set forth in Section 2.2 shall become effective upon the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 3.2 and Section 3.3 (the first date as of which each such condition has
been satisfied being herein called the "Section 2.2 Effective Date").
SECTION 3.2.1. Resolutions, etc. The Agent shall have received from
the Borrower, Acquisition and the Parent, a certificate, dated the Section 2.2
Effective Date, of its Secretary or Assistant Secretary as to
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(a) resolutions of its Board of Directors then in full force
and effect authorizing the First Merger and the execution, delivery
and performance of this Amendment Agreement, the Credit Agreement, the
Merger Agreement and each other Loan Document to be executed by it;
and
(b) the incumbency and signatures of its officers authorized
to act with respect to this Amendment Agreement, the Credit Agreement
and each other Loan Document to be executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or Assistant Secretary of the
Parent, the Borrower or Acquisition, as appropriate, cancelling or amending
such prior certificate.
SECTION 3.2.2. Consummation of First Merger. The Agent shall be
satisfied, and shall have received appropriate certificates dated the Section
2.2 Effective Date to the effect, that (a) the First Merger shall have been
consummated on the terms set forth in the Merger Agreement and the Offer to
Purchase, without waiver or modification and the Parent shall own all of the
capital stock of the Target free and clear of all Liens and encumbrances of any
nature, and (b) the consummation of the First Merger does not violate or cause
a default under any applicable law (including but not limited to the 30-day
requirement set forth in Section 607.1104(3) of the Florida Business
Corporation Act), statute, rule or regulation or any material agreement or
right of the Parent or any of its Subsidiaries (including the merger of
Acquisition with and into the Target, with the Target being the survivor),
including without limitation the Target Indenture, and the Agent shall have
received satisfactory legal opinions as to, among other things, the foregoing.
SECTION 3.2.3. Governmental Authority. The Agent shall be satisfied
that there is no governmental or judicial action, actual or threatened, and no
new law or regulation shall have been passed by any governmental authority or
agency, that is reasonably likely to restrain, prevent or impose burdensome
conditions on the First Merger or the other transactions contemplated hereby.
SECTION 3.2.4. Satisfaction of Conditions to First Merger. The Agent
shall be satisfied that the per Share amount paid for all Shares not tendered
in the Tender Offer shall not exceed $12.00.
SECTION 3.2.5. Pledge of Stock of the Target. The Agent shall have
received a Parent Pledge Agreement Supplement duly executed by the Parent in
substantially the form of Annex E
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hereto (the "Parent Pledge Agreement Supplement"), and all shares of stock of
the Target owned by the Parent shall have been duly and validly pledged to the
Agent for the benefit of the Lenders under the Parent Pledge Agreement
Supplement and certificates representing all such shares, together with stock
powers or other appropriate instruments of transfer executed in blank or in
favor of the Agent, shall be in the actual possession of the Agent.
SECTION 3.2.6. No Modification of Agreements. Neither the Parent nor
Acquisition nor the Target shall have consented to any amendment, supplement or
other modification of any of the terms or provisions contained in, or
applicable to, the Merger Agreement, the Offer to Purchase, or any instrument
or document relating thereto, other than any such amendment, supplement or
other modification which is immaterial and which could not adversely affect the
interests of the Agent or any Lender and which does not mention the Agent or
any Lender.
SECTION 3.2.7. Notes, etc. The Tender Loans shall have been
refinanced in full with the First Merger Loans, Lenders holding Tender Loan
Notes shall have returned them for cancellation to the Agent, each Lender
extending a First Merger Loan shall have received a First Merger Note from the
Borrower, dated the First Merger Date, with appropriate insertions, duly
executed by the Borrower, and the Agent shall have received a duly executed and
completed exchange Parent Inter-Company Note which shall have been duly pledged
to the Agent pursuant to the Borrower Pledge Agreement. In addition, all
accrued and unpaid interest on the Tender Loans shall have been paid in full.
SECTION 3.2.8. No Litigation. The Agent shall be satisfied as to the
condition set forth in Section 3.1.3 hereof as of the First Merger Date.
SECTION 3.3. Conditions to Effectiveness of Sections 2.1 and 2.2.
The occurrence of each Effective Date is also subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 3.3.
SECTION 3.3.1. Execution of Counterparts. The Agent shall have
received counterparts of this Amendment Agreement duly executed by the
Borrower, the Parent, the Agent and each Lender, and duly acknowledged by
Petroleum and Acquisition, each of which counterparts shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 3.3.2. Representations and Warranties. The Agent shall have
received a certificate executed by the chief financial Authorized Officer of
each of the Parent and the Borrower certifying that the representations and
warranties set forth in Article VI of the Credit Agreement and in the other
Loan
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Documents are true and correct in all material respects as of the applicable
Effective Date, and that no Default or Event of Default has occurred and is
continuing.
SECTION 3.3.3. Closing Fees, Expenses, etc. The Agent shall have
received for its own account, and for the account of each Lender, as the case
may be, all fees, costs and expenses due and payable (including those fees and
expenses described in the Target Fee Letter) which are then due and payable,
and all reasonable expenses of counsel to the Agent which have been invoiced.
The total amount of fees and expenses (unless otherwise consented to in writing
by the Agent) payable in connection with the Tender Offer shall not exceed $1.5
million and in connection with the First Merger shall not exceed $250,000, in
each case as certified by the Borrower to the Agent.
SECTION 3.3.4. Solvency Certificates. The Agent shall have received,
with copies for each Lender, solvency certificates in substantially the form of
Exhibit M to the Credit Agreement, dated the applicable Effective Date, duly
executed by the chief executive officer and chief financial Authorized Officer
of the Borrower, Petroleum, and the Parent, dated the dates of the Tender Loans
and the First Merger Loans and expressly permitting the Agent and the Lenders
to rely thereon.
SECTION 3.3.5. Opinions of Counsel. The Agent and the Lenders shall
have received legal opinions, dated the applicable Effective Date, in form and
substance satisfactory to the Agent, from (a) Florida counsel as to matters of
Florida law relevant to the Tender Offer and the First Merger and (b) Bracewell
& Patterson, L.L.P, as to such matters as the Agent may reasonably request.
SECTION 3.3.6. Consents, etc. The Agent shall have received, with
copies for each Lender, dated the applicable Effective Date, duly executed
certificates from the Parent and the Borrower to the effect that any and all
consents, approvals or authorizations required by reason of the Tender Offer or
the First Merger have been duly obtained and are in full force and effect and
all material licenses, permits and the like (materially being measured
individually and in the aggregate) shall remain in full force and effect after
giving effect to the Tender Offer and the First Merger.
SECTION 3.3.7. Miscellaneous. All sources and uses of funds shall be
in accordance with the Target Commitment Letter or shall otherwise be
satisfactory to the Agent, all surviving instruments signed by Acquisition
shall have been confirmed by the Target, all references to Acquisition in all
collateral security documents in respect of Acquisition shall have been
acknowledged by the Target to refer to the Target, any and all
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consents or approvals required in connection with the Tender Offer or the First
Merger shall have been duly obtained without qualification and all material
licenses (materiality being measured individually and in the aggregate) of the
Parent, the Borrower, Petroleum and the Target shall remain in full force and
effect after giving effect to the Tender Offer and the First Merger.
SECTION 3.3.8. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower, the Parent or any
other Obligor shall be satisfactory in form and substance to the Agent and its
counsel; the Agent and its counsel shall have received all information,
approvals, opinions, documents or instruments as the Agent or its counsel may
reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into this
Amendment Agreement, the Borrower and the Parent jointly and severally
represent and warrant unto the Agent, each Issuer and each Lender as set forth
in this Article IV.
SECTION 4.1. Compliance With Warranties. The representations and
warranties set forth in Article VI of the Credit Agreement and in each other
Loan Document delivered in connection herewith or therewith are true and
correct in all material respects with the same effect as if made on and as of
the date hereof and each Effective Date (unless stated to relate solely to an
earlier date).
SECTION 4.2. Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by each of the Borrower, Petroleum and the
Parent of this Amendment Agreement and each Loan Document to be executed by it
in connection with the terms and conditions hereof, and the execution, delivery
and performance by each of Acquisition and the Target of the Merger Agreement
and each Loan Document to be executed by it in connection with the terms and
conditions hereof, are within the Borrower's, the Parent's, Acquisition's and
the Target's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene the Borrower's, the Parent's,
Acquisition's or the Target's Organic Documents, (ii) contravene or result in a
default under any contractual restriction, law or governmental regulation or
court decree or order binding on or affecting the Borrower, the Parent,
Acquisition or the Target or (iii) result in, or require the
-37-
<PAGE> 38
creation or imposition of, any Lien (except as contemplated in or created by
the Loan Documents).
SECTION 4.3. Governmental Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other Person (other than the
filing of U.C.C. financing statements in the appropriate jurisdictions) is
required for (a) the due execution, delivery or performance by the Borrower,
Petroleum, the Parent, Acquisition or the Target of the Merger Agreement, this
Amendment Agreement or any other Loan Document delivered in connection with the
terms and conditions hereof to which it is a party, (b) the grant by each such
Obligor of the security interests, pledges and Liens granted by such Loan
Documents, or (c) the perfection of or the exercise by the Agent of its rights
and remedies under this Amendment Agreement or any other such Loan Document.
SECTION 4.4. Validity, etc. This Amendment Agreement and the Merger
Agreement have each been duly executed and delivered and are, and each other
Loan Document to be executed and delivered by the Borrower, Petroleum, the
Parent, Acquisition or the Target, as the case may be, will, on the due
execution and delivery thereof, constitute, the legal, valid and binding
obligations of the Borrower, the Parent, Acquisition or the Target, as the case
may be, enforceable in accordance with their respective terms; subject in each
case to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally, and subject to
the effect of general principles of equity (regardless of whether considered in
a proceeding in equity or at law). Each of such Loan Documents which purports
to create a security interest creates a valid first priority security interest
in the Collateral subject thereto, subject only to Liens permitted by Section
7.2.3, securing the payment of the Obligations.
SECTION 4.5. No Material Adverse Change. There has been no event or
occurrence, nor has any fact or state of facts existed, which might constitute
a material adverse change in the financial condition, operations, assets,
business or properties of the Parent and its Subsidiaries (including
Acquisition) or the Borrower and its Subsidiaries, taken as a whole.
SECTION 4.6. Compliance With Credit Agreement. As of the execution
and delivery of this Amendment Agreement and as of each Effective Date, each of
the Borrower, the Parent and each other Obligor is in compliance with all the
terms and conditions of the Credit Agreement and the other Loan Documents to be
observed or performed by it, and no Default has occurred and is continuing.
-38-
<PAGE> 39
SECTION 4.7. Merger Agreement. All representations and warranties by
the Parent and Acquisition under the Merger Agreement are true and correct in
all material respects as of the date hereof and each Effective Date as if made
on such date (unless stated to relate solely to an earlier date) and, to the
best knowledge of the Parent and its Subsidiaries, all representations and
warranties by the Target under the Merger Agreement are true and correct in all
material respects as of the date hereof and each Effective Date as if made on
such date (unless stated to relate solely to an earlier date).
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Ratification of Existing Credit Agreement. The Existing
Credit Agreement, as expressly amended by the terms hereof, is hereby ratified,
approved and confirmed in each and every respect, subject to Section 2.1.34
hereof. Except as specifically amended herein, the Existing Credit Agreement
shall continue in full force and effect in accordance with the provisions
thereof and except as expressly set forth herein the provisions hereof shall
not operate as a waiver of any right, power or privilege of the Agent and the
Lenders nor shall the entering into of this Amendment Agreement preclude the
Lenders from refusing to enter into any further or future amendments. This
Amendment Agreement shall be deemed to be a "Loan Document" for all purposes of
the Credit Agreement and all other Loan Documents.
SECTION 5.2. Consent and Acknowledgment of Guarantors, etc. By their
signatures below, each of the Parent, Acquisition and Petroleum, each in their
capacity as a guarantor and (where applicable) as a grantor of collateral
security under a Loan Document, hereby acknowledge, consent and agree to this
Amendment Agreement and hereby ratify and confirm their respective obligations
under each guaranty and Loan Document executed and delivered by it in all
respects and agree that such guarantees and grants of collateral shall, in
addition to the obligations secured and/or guaranteed prior to the date hereof,
additionally secure and/or guarantee, as the case may be, all of the
obligations of the Borrower with respect to the Tender Loans and the First
Merger Loans or otherwise provided for in this Amendment Agreement, provided,
however, that the shares of stock of the Target will not secure, either
directly or indirectly, the obligations of the Borrower under the Tender Loans.
SECTION 5.3. Existing Credit Agreement, References, etc. All
references to the Existing Credit Agreement in any other document, instrument,
agreement or writing shall hereafter be deemed to refer to the Existing Credit
Agreement as modified
-39-
<PAGE> 40
hereby. As used in the Existing Credit Agreement, the terms "Agreement",
"herein", "hereinafter", "hereunder", "hereto" and words of similar import
shall mean, from and after the applicable Effective Date, the Existing Credit
Agreement as modified by this Amendment Agreement.
SECTION 5.4. Expenses. The Borrower and the Parent jointly and
severally agree to pay all out-of-pocket expenses incurred by the Agent and the
Lenders in connection with the preparation, negotiation, execution and delivery
of this Amendment Agreement and related documents, including, without
limitation, the reasonable fees and other charges of Mayer, Brown & Platt, as
counsel for the Agent.
SECTION 5.5. Headings. The various headings of this Amendment
Agreement are inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment Agreement or any provisions hereof.
SECTION 5.6. Governing Law; Entire Agreement. THIS AMENDMENT
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK. This Amendment Agreement constitutes the entire
understanding among the parties hereto with respect to the subject matter
hereof and supersedes any prior agreements, written or oral, with respect
thereto. This Amendment Agreement and the provisions contained herein may be
modified only by an instrument in writing executed by the Borrower, the Agent
and the required Lenders.
-40-
<PAGE> 41
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
E-Z SERVE CONVENIENCE STORES, INC.,
as the Borrower
By: /s/ John T. Miller
-----------------------------------
Title: Senior Vice President
E-Z SERVE CORPORATION,
as the Guarantor
By: /s/ John T. Miller
-----------------------------------
Title: Senior Vice President
SOCIETE GENERALE,
as the Agent
By: /s/ David Brunson
-----------------------------------
Title: First Vice President
LENDERS
SOCIETE GENERALE
By: /s/ David Brunson
-----------------------------------
Title: First Vice President
BANK OF AMERICA TEXAS, N.A.
By: /s/ Kim A. Ruth
-----------------------------------
Title: Vice President
-41-
<PAGE> 42
Acknowledged, confirmed
and agreed to with respect
to Section 5.2:
E-Z SERVE PETROLEUM MARKETING, INC.
By: /s/ John T. Miller
----------------------------------
Title: Senior Vice President
EZS ACQUISITION CORPORATION
By: /s/ John T. Miller
----------------------------------
Title: Vice President
-42-
<PAGE> 43
ANNEX I
SCHEDULE II
PERCENTAGES
<TABLE>
<CAPTION>
Revolving Loan Term Loan Tender Loan
Lender Commitment Commitment Commitment Total Commitment
------ ---------- ---------- ---------- ----------------
<S> <C> <C> <C> <C>
SOCIETE GENERALE 66.66666667% 66.66666667% 100% 73.4748011%
BANK OF AMERICA TEXAS, N.A. 33.33333333% 33.33333333% 0% 26.5251989%
----------- ----------- ------- ----------
TOTAL 100.00% 100.00% 100.00% 100.0%
</TABLE>
<PAGE> 44
ANNEX II
SCHEDULE II
PERCENTAGES
<TABLE>
<CAPTION>
First Merger
Revolving Loan Term Loan Loan
Lender Commitment Commitment Commitment Total Commitment
------ ---------- ---------- ---------- ----------------
<S> <C> <C> <C> <C>
SOCIETE GENERALE 66.66666667% 66.66666667% 100% 73.4748011%
BANK OF AMERICA TEXAS, N.A. 33.33333333% 33.33333333% 0% 26.5251989%
----------- -----------
TOTAL 100.00% 100.00% 100.00% 100.00%
</TABLE>
<PAGE> 45
ANNEX III
SCHEDULE III
<TABLE>
<CAPTION>
Minimum Fixed Charge Capital Expenditure
Fiscal Year Minimum EBITDA Coverage Ratio Level
----------- -------------- -------------- -----
<S> <C> <C> <C>
1995 $22,000,000 1.30:1.00 II
1995 $19,500,000 1.50:1.00 III
1996 $26,100,000 1.30:1.00 II
1996 $23,200,000 1.30:1.00 III
1997 $28,400,000 1.30:1.00 II
1997 $25,200,000 1.30:1.00 III
1998 $30,600,000 1.30:1.00 II
1998 $27,200,000 1.30:1.00 III
1999 $32,900,000 1.35:1.00 II
1999 $29,300,000 1.35:1.00 III
2000 $35,800,000 1.40:1.00 II
2000 $31,800,000 1.40:1.00 III
2001 $39,400,000 1.40:1.00 II
2001 $35,000,000 1.40:1.00 III
</TABLE>
<PAGE> 46
ANNEX IV
Amortization of First Merger Loans
<TABLE>
<CAPTION>
Date $ 15.4MM
- ---- --------
<S> <C>
1/24/96 0
7/24/96 0.67
1/24/97 0.67
7/24/97 0.67
1/24/98 1.08
7/24/98 1.08
1/24/99 1.25
7/24/99 1.25
1/24/00 1.33
7/24/00 1.33
1/24/01 1.33
7/24/01 1.34
1/24/02 3.40
</TABLE>
<PAGE> 1
Exhibit 99.(c)(5)
UNITED STATES BANKRUPTCY COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
In re: )
)
Sunshine-Jr. Stores, Inc. ) Chapter 11
d/b/a Sunshine Supermarkets )
d/b/a Jr. Food Stores, ) Case No. 92-16406-BKC-8B1
)
Debtor. )
SUNSHINE-JR STORES, INC.'S
MOTION FOR APPROVAL OF FORM AND
SUFFICIENCY OF TENDER OF PREPAYMENT OF
UNRESOLVED, UNSECURED CLAIMS, IN ACCORDANCE
WITH CONFIRMED, SECOND AMENDED PLAN OF REORGANIZATION
Sunshine-Jr. Stores, Inc. ("Debtor"), by and through undersigned
counsel, hereby moves the Court for an Order approving the transaction
described herein, whereby the Debtor proposes the prepayment of Class 7
Creditors. In support, the Debtor respectfully states:
JURISDICTION
1. On December 18, 1992, this case was commenced by filing a
voluntary Chapter 11 Petition with the Clerk of this Court (the "Petition
Date"). Thereafter, the Court entered its Order Confirming Debtor's Second
Amended Plan of Reorganization (the "Plan") on May 12, 1994 (the "Confirmation
Order"). The Confirmation Order is now final.
2. Pursuant to paragraph 12 of the Confirmation Order, the Court
retained jurisdiction for the purposes described in the Plan. Article XVII,
Section 17.1(f) of the Plan provides that the Court retains jurisdiction for
the enforcement or interpretation of the terms and conditions of the Plan.
Accordingly, the Court has jurisdiction over this motion.
<PAGE> 2
INTRODUCTION
3. The Debtor seeks Court approval of the form and sufficiency of
the plan for prepayment of certain notes issued under the Plan, or that would
otherwise be issued under the Plan, so that the Debtor may effectuate a
proposed merger (described below). The Plan provides for the issuance of
secured promissory notes to the holders of allowed Class 7 Claims. The secured
notes are issued under and are governed by the Trust Indenture (defined below).
The notes are secured by certain of the Debtor's real and personal property
(the "Collateral"). The Plan and the Trust Indenture restrict the Debtor's
ability to issue payments, dividends and distributions to shareholders, and to
consummate certain mergers where the Debtor is not the surviving entity, until
such time that the notes are paid in full.
4. In connection with obtaining the financing necessary to make
the payments contemplated herein, the Debtor must have the ability to (a)
declare and pay dividends to stockholders, and (b) pledge all of its assets,
including the Collateral. This requires the defeasance of the Trust Indenture.
The Debtor asserts that the Trust Indenture can be defeased and the other
restrictions on payments, dividends and distributions to shareholders may be
eliminated by the prepayment of all of the outstanding notes and the deposit of
funds sufficient to satisfy unresolved claims in full when, and if, they are
allowed. Accordingly, the Debtor seeks a determination from this Court that
all Class 7 Creditors will be deemed to be paid in full and the Trust Indenture
will be defeased, upon the happening of (a) the payment of all issued and
outstanding Class 7 Notes; and (b) the posting of funds in an amount sufficient
to make cash distributions, in lieu of Class 7 Notes, to all holders of
unresolved claims, to the extent holders of such unresolved claims become
holders of allowed Class 7 Claims, equal to 100% of their allowed claim.
-2-
<PAGE> 3
5. The Plan created nine (9) classes of claims and interests.
The determination sought by the Debtor requires an order interpreting certain
provisions of the Plan pertaining to Class 7: General Unsecured Claims; Class
8: Workers' Compensation Claims; and Class 9: Equity Interests.
6. CLASS 7: GENERAL UNSECURED CLAIMS. Members of Class 7, which
is comprised of holders of allowed, general unsecured claims, received secured
promissory notes (the "Class 7 Notes") in an amount equal to 100% of their
Allowed Class 7 Claims, payable in installments over a five year period ending
in 2000. The Class 7 Notes were issued under an indenture (the "Trust
Indenture"), governed by the Trust Indenture Act of 1939. At March 30, 1995,
there was $14,778,843 in Class 7 Notes issued and outstanding(1).
7. The Class 7 Notes are secured by a perfected first lien on a
substantial amount of the Debtor's real and personal property, including all
leasehold interests. Excluded property includes cash, accounts receivable,
inventory, and the "Unencumbered Property."(2)
8. The Plan, paragraph VI, and the Trust Indenture, Section 4.01
G. and Article XV, provide for the prepayment of the Class 7 Notes at any time,
without premium or penalty. Upon payment of the Class 7 Notes in full, the
Trust Indenture is terminated, resulting in a release of all collateral.
________________________
(1) Currently, there are an additional $444,661 of Class 7 Claims that have
been allowed, but have not yet received Class 7 Notes. These claims include:
Smith Factors - No. 173 allowed in the amount of $14,302, and No. 633 allowed
in the amount of $10,170; William Love - No. 339 allowed in the amount of
$12,643.89; and Charles Barnhill - No. 610 allowed in the amount of $7,545.
(2) "Unencumbered Property" is defined in the Plan as "the tangible real
and personal properties of the Debtor, selected by the Debtor and disclosed in
reasonable detail to the Class 7 Creditors prior to the Confirmation Date,
which have an aggregate Market Value ... of not greater than $8,000,000."
-3-
<PAGE> 4
9. CLASS 8: WORKERS' COMPENSATION CLAIMS. Holders of allowed
Class 8 Claims (prepetition workers' compensation claims), are to be paid 100%
of their allowed claim according to the applicable state workers' compensation
laws. The Debtor maintains policies of third-party insurance and
self-insurance programs that comply with all applicable state workers'
compensation laws. The Debtor believes that the insurance coverage is
sufficient to pay all Class 8 claims in full, in the ordinary course of the
Debtors' business. See, Affidavit of Michael G. Ware, attached hereto as
Exhibit "A" and incorporated by reference. However, the Plan provides that, in
the event such insurance or self-insurance coverage is insufficient to pay the
holders of Class 8 Claims in full, then any deficiency will be treated as an
allowed Class 7 Claim.
10. CLASS 9: EQUITY INTERESTS. Holders of Class 9 Equity
Interests retained all of the legal, equitable and contractual rights such
holders were entitled to prepetition, with one exception. Until such time the
Class 7 Creditors are paid in full, the holders of Equity interests may not
receive any payment, dividend or distribution.
THE TENDER OFFER
11. On June 19, 1995, E-Z Serve Acquisition Corporation
("Acquisition"), a wholly owned subsidiary of E-Z Serve Corporation ("E-Z
Serve"), made an offer to purchase all outstanding shares of capital stock of
the Debtor pursuant to a public tender offer (the "Tender Offer"). Prior to
the Tender Offer, the Debtor, Acquisition and E-Z Serve entered into an
Agreement and Plan of Merger (the "Merger"), whereby Acquisition will be merged
with and into the Debtor, with the Debtor surviving the merger as a wholly
owned subsidiary of E-Z Serve. Pursuant to such Merger, each outstanding share
of capital stock of the Debtor will be converted into the right to receive the
same consideration paid in the Tender Offer. The Board of Directors of the
Debtor has, by unanimous vote, approved the Tender Offer and the Merger
-4-
<PAGE> 5
and has determined that each of the Tender Offer and the Merger is fair to, and
in the best interest of, the Debtor and its shareholders recommend that the
shareholders of the Debtor accept the Tender Offer and tender their shares.
12. E-Z Serve's principal line of business, through its
subsidiaries, is the operation of convenience stores, mini marts and gas marts.
For the year ended December 25, 1994, E-Z Serve had consolidated revenues of
$563,191,000, and net income of $5,087,000. As of March 26, 1995 E-Z Serve had
total assets of $166,148,000 and stockholders' equity of $63,546,000. E-Z
Serve's shares are traded on the American Stock Exchange.
13. E-Z Serve has obtained a commitment for financing which (to
the extent conditions contained in the commitment are met) will enable the
Debtor to pay the Class 7 Creditors in full. E-Z Serve will make additional
financial resources available to the Debtor to enable the Debtor to make
capital improvements. In order for E-Z Serve to consummate such financing and
to provide the additional financial resources to the Debtor, the Trust
Indenture must be defeased, the Collateral must be released, and the
prohibition against payments, dividends and distribution must be eliminated.
This can only be accomplished by paying the Class 7 Creditors in full. While
this can readily be accomplished with respect to the issued and outstanding
Class 7 Notes, the payment of certain disputed claims is more complicated. If
allowed, these disputed claims may become allowed Class 7 Claims.
Consequently, it is possible that additional Class 7 Notes would have to be
issued in the future. Accordingly, the Debtor seeks a determination by the
Court that the proposal outlined herein is sufficient to accomplish the goal of
paying all Class 7 Creditors in full and defeasing the Trust Indenture.
THE UNRESOLVED CLAIMS
-5-
<PAGE> 6
14. The tables below contain a list of all claims that have not
yet been allowed or disallowed by the Court (the "Unresolved Claims"). The
Unresolved Claims are subject to objections filed by the Debtor. The tables
are broken down into four categories: (1) Unresolved Miscellaneous Claims; (2)
Unresolved Wage Claims; (3) Unresolved Personal Injury Claims; and (4)
Unresolved Workers' Compensation Claims.
15. UNRESOLVED MISCELLANEOUS CLAIMS. The Unresolved Miscellaneous
Claims, which are set forth in the table below, total $1,338,949.50. The
majority of the objections have been set for final evidentiary hearing in the
near future.
<TABLE>
<CAPTION>
Name of Claimant Claim Number Amount of Claim Maximum Exposure
------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Marketing Consulting Group, Inc. 233, 491 105,237 $105,237
Auto Pump Services Company, Inc. 533 53,383 53,383
Stephen Andrews 591 15,000 15,000
Florida Department of Banking and Finance 347, 348 66,388 66,388
W. Grady Swann, Inc. 497 4,038 4,038
Amplicon, Inc. 68, 740 78,021 78,021
Willie J. Brown(3) 731, 744 32,665.50 32,665.50
Botkin Monitoring Services 590 2,231 2,231
The Advertiser Company, Inc. 161 910 910
Nelson-Brantley Glass Contractors, Inc. 91, 620 589 589
Allen Lock & Safe 446 246 246
Perdue-Folmar Co., Inc. 126 576 576
The Prudential Insurance Company of America 641 789,767 789,767
</TABLE>
________________________
(3) On or about May 22, 1995, Willie Brown filed a Request to Amend Proof
of Claim to add sums allegedly owed for lost wages.
-6-
<PAGE> 7
<TABLE>
<CAPTION>
Name of Claimant Claim Number Amount of Claim Maximum Exposure
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Barnett Bank, N.A. 639, 640 126,923 126,923
Virogroup(4) 223 278,707 29,000
Shellie Day(5) 270 2,005 2,005
Brenda Rogers(6) 277 5,000 0
Linda Faye Edgar(7) 282 5,000 0
Coca Cola(8) 343 208,324 9,324
Waller Brothers(9) 403 3,240 0
</TABLE>
________________________
(4) The Debtor filed an objection to Claim No. 223 requesting that the Court
allow the claim in the amount of $257,000 and disallow the remainder. Virogroup
filed no response to the objection and the Debtor has submitted a proposed order
to the Court granting the relief requested. The Debtor has issued Class 7 Notes
to Virogroup in the amount of $257,000.
(5) The Debtor filed an objection to Claim No. 270 seeking disallowance in
full. No response to the objection was filed. The Debtor has submitted a
proposed order to the court disallowing the claim.
(6) The Claimant made the election to be treated as a Class 6 claim, thereby
reducing its claim to $1,000. The Debtor filed an objection to the claim
seeking to reduce it to $1,000 and disallowing the remainder. The Debtor has
submitted a proposed order to the Court granting the relief requested.
(7) The Claimant made the election to be treated as a Class 6 claim,
thereby reducing its claim to $1,000. The Debtor filed an objection to the
claim seeking to reduce it to $1,000 and disallowing the remainder. The
Debtor has submitted a proposed order to the Court granting the relief
requested.
(8) The Debtor filed an objection to Claim No. 414 requesting that the
Court allow the claim in the amount of $19,550.46 and disallow the remainder.
Smith Factors filed no response to the objection and the Debtor has submitted a
proposed order to the Court granting the relief requested.
(9) The Debtor has issued a Class 7 Note to Waller Brothers in the amount of
$3,240 and submitted a proposed order to the Court allowing the claim at that
amount.
-7-
<PAGE> 8
<TABLE>
<CAPTION>
Name of Claimant Claim Number Amount of Claim Maximum Exposure
-------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Smith Factors(10) 414 22,646 22,646
Total $1,800,896.50 $1,338,949.50
</TABLE>
16. UNRESOLVED WAGE CLAIMS. The Unresolved Wage Claims, which are
set forth in the table below, total $915,635. Four of the claimants, Lula Mae
Pickett, Mollie Folmar, Teresa P. Patterson, and Marguerite Cammack, have
elected treatment under Class 6 of the Plan. Accordingly, if such claims are
ultimately allowed, the holders of such claims will be treated pursuant to
Class 6. The remaining Unresolved Wage Claims total $891,635. Accordingly,
the Debtor's maximum exposure in Class 7 for all Unresolved Wage Claims of
$891,635.
________________________
(10) The Debtor filed an objection to Claim No. 414 requesting that the
Court allow the claim in the amount of $19,550.46 and disallow the remainder.
Smith Factors filed no response to the objection and the Debtor has submitted
a proposed order to the Court granting the relief requested
-8-
<PAGE> 9
<TABLE>
<CAPTION>
Name of Claimant Claim No. Amount of Claim Maximum Exposure
-------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Jim Dickens 305 $ 5,279 $ 5,279
Wheeler Stevens 631 3,938 1,938
Nora Frye 279 2,000 2,000
Lula Mae Pickett (Class 6 Election) 280 12,000 0
Wanda R. Chandler 284 7,000 7,000
Mollie Folmar (Class 6 Election) 291 5,000 0
Letti R. Wilson 286 2,000 2,000
Teresa P. Patterson (Class 6 Election) 288 2,000 0
Marilyn E. Wheat 289 5,000 5,000
Joyce Livingston 290 2,000 2,000
Marguerite Cammack (Class 6 Election) 292 5,000 0
Wanda Vanderslice 293 12,000 12,000
Lenard Miller 736 852,418 852,418
Total $915,635 $891,635
</TABLE>
17. UNRESOLVED PERSONAL INJURY CLAIMS. The Unresolved Personal
Injury Claims, which are set forth in the table below, total $2,281,578. These
claims were filed in specific amounts, except for Lilian and Frank Franklin,
and James and Marie Newton. All Unresolved Personal Injury Claims are covered
by policies of third-party liability insurance. Accordingly, the maximum
amount the Debtor will be required to distribute to such claimants, in the
event such Unresolved Personal Injury Claims are allowed, totals $335,407.
This amount equals the aggregate of the lesser of the amount sought or the
self-insured retention for each claim. See, Affidavit of Michael G. Ware,
attached hereto as Exhibit "A" and incorporated by reference.
-9-
<PAGE> 10
<TABLE>
<CAPTION>
Lesser of Amount
Sought or Self-
Name of Claimant Claim No. Amount of Claim Insured Retention
---------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cornelia Bower 198 $ 30,000 $30,000
Shirley Johnson 671 96,171 0
Charlotte Turner 559 25,000 25,000
Leta V. Hughes 725 50,000 50,000
Sue A. Finnochi 728 1,000,000 50,000
Lilian & Frank Franklin 379 30,000 30,000
Earl Brinkman 260 0 50,000
Mary A. Triplett 702 407 407
James E. Harris 715 50,000 50,000
James & Marie Newton 732 1,000,000 50,000
Total $ 2,281,578 $ 335,407
</TABLE>
18. All of the Unresolved Personal Injury Claims are subject to
objections filed by the Debtor. By order dated May 16, 1995, the Court abated
ruling on the Debtor's objections to the Unresolved Personal Injury Claims and
modified the permanent injunction imposed by the Confirmation Order to allow
Unresolved Personal Injury claimants to liquidate their claims in the
appropriate court and to proceed against any third parties and third party
insurance coverage. A copy of the May 16, 1995 Order is attached hereto as
Exhibit "B" and incorporated by reference.
19. UNRESOLVED WORKERS' COMPENSATION CLAIMS. The Unresolved
Workers' Compensation Claims, which are set forth in the table below, total
approximately $517,316. Due to the nature of the claims, all are unliquidated.
All of the Unresolved Workers' Compensation Claims are subject to objections
filed by the Debtor. By order dated June 14, 1995, the Court abated ruling on
the Debtor's objections and modified the permanent injunction imposed by the
Confirmation Order so that the Unresolved Workers' Compensation Claimants could
be liquidated in the appropriate state workers' compensation tribunals. A copy
of the
-10-
<PAGE> 11
June 14, 1995 Order is attached hereto as Exhibit "C" and incorporated by
reference. As the Unresolved Workers' Compensation Claims are liquidated, the
Debtor will to pay such liquidated amounts pursuant to the Plan.
<TABLE>
<CAPTION>
Name of Claimant Claim No. Amount of Claim
----------------------------------------------------------------------------------
<S> <C> <C>
Peggy J. Dower 564, 703 $ 92,316
Norma J. Tate 517 20,000
Richard T. Kirkland 520 5,000
Gae H. Reather 552 0
Kate Fowler 584 0
Shirley Mike 712 400,000
Total $ 517,316
</TABLE>
20. The Debtor maintains self-insurance programs in Florida and
Alabama. In order to maintain a self-insurance program in Florida, the Debtor
is required to post a bond in favor of the Florida Department of Labor and
Employment Security in the amount of $700,000. Attached as Exhibit "D" is a
copy of the Increase Rider issued by Utica Mutual Insurance Company dated March
22, 1995. In Georgia, Mississippi, and Louisiana, the Debtor pays premiums to
the workers' compensation insurance funds maintained in each state. Workers'
compensation claims in Georgia, Mississippi, and Louisiana are fully covered by
such insurance, with no deductibles or self-insured retentions. Further, the
Debtor, its outside claims adjuster, and its Certified Public Accountant have
calculated the Debtor's estimated maximum exposure for all of the self-insured
workers' compensation claims (including pre-and post-petition workers'
compensation claims). The Debtor has determined, based upon its estimate of
its maximum exposure on each claim, that it has sufficient coverage from
third-party insurance and self-insurance programs, to pay such liquidated
amounts in full as they come
-11-
<PAGE> 12
due. See, Exhibit "A" Affidavit of Michael G. Ware. Accordingly, the Debtor
anticipates that all Unresolved Workers' Compensation Claims will be paid
pursuant to Class 8 of the Plan and that no Unresolved Workers' Compensation
Claims will become allowed Class 7 Claims.
THE PREPAYMENT STRUCTURE
21. With respect to all issued and outstanding Class 7 Notes, the
Debtor will deliver sufficient funds to the Indenture Trustee to pay the notes,
including accrued interest, in full. With respect to the Unresolved Claims,
the Debtor will tender an amount equal to the Debtor's estimate of its maximum
exposure on each claim, taking into account available insurance coverage. The
tender will be made in the form of a single letter of credit in favor of the
holders of Unresolved Claims. If, and to the extent that any of the Unresolved
Claims are allowed as Class 7 Claims, the holders thereof will receive a cash
distribution equal to 100% of its allowed claim in lieu of a Class 7 Note. The
table below reflects, by category, the Debtor's estimate of its maximum
exposure:
<TABLE>
<CAPTION>
Amount of Unresolved Tender Amount
Unresolved Claim Category Claims (Maximum Exposure)
-------------------------------------------------------------------------------------------------------------
<S> <C> <C>
(1) Miscellaneous Claims $1,800,896.50 $1,338,949.50
(2) Wage Claims $915,635 $891,635
(3) Personal Injury Claims $2,281,578 $335,407
(Unliquidated)
(4) Workers' Compensation Claims $517,316 $0
(Unliquidated)
Total $5,515,425.50 $2,565,991.50
</TABLE>
22. THE MECHANICS. The following paragraphs describe the specific
manner, by category, in which the Debtor will tender and secure payment to each
of the Unresolved Claims:
-12-
<PAGE> 13
(1) Unresolved Miscellaneous Claims. The Debtor will tender
payment in the amount of $1,338,949.50 in the form of a letter
of credit. This amount represents the full amount of each of
the Unresolved Miscellaneous Claims, without giving effect to
the Debtor's objection to such claims. The letter of credit
will be in favor of the holders of Unresolved Claims. Upon
allowance, the holder will receive a cash distribution equal
to the allowed amount of its Class 7 Claim in lieu of a Class
7 Note.
(2) Unresolved Wage Claims. The Debtor will tender payment in the
amount of $891,635 in the form of a letter of credit. This
amount represents the full amount of each of the Unresolved
Wage Claims, without giving effect to the Debtor's objection
to such claims. The letter of credit will be in favor of the
holders of Unresolved Claims. Upon allowance, the holder will
receive a cash distribution equal to the allowed amount of its
Wage Claim in lieu of a Class 7 Note.
(3) Unresolved Personal Injury Claims. All of the Unresolved
Personal Injury Claims are covered by liability insurance.
The Debtor's maximum exposure with regard to the Unresolved
Personal Injury Claims totals $335,407. This amount is equal
to the total self-insured retention for all of the Unresolved
Personal Injury Claims. Accordingly, the Debtor will tender
payment in the amount of $335,407 in the form of a letter of
credit. The letter of credit will be in favor of holders of
Unresolved Claims. The holder will receive a cash
distribution equal to the difference between the allowed
amount of the Claim and the insurance coverage in lieu of a
Class 7 Note.
-13-
<PAGE> 14
(4) Unresolved Workers' Compensation Claims. All of the
Unresolved Workers' Compensation Claims are covered by
third-party insurance (including excess loss coverage),
self-insurance programs maintained by the Debtor, or both.
The Debtor asserts that based upon its estimate of the maximum
exposure for all of such claims, that all of the Unresolved
Workers' Compensation Claims will be paid in full, and that no
Class 8 Claim will ever become a Class 7 Claim. Accordingly,
the Debtor asserts that no tender of payment with regard to
the Class 8 Unresolved Workers' Compensation Claims is
necessary.
Accordingly, the Debtor will obtain a single letter of credit in an aggregate
amount of $2,565,991.50, the aggregate maximum exposure on the Unresolved
Miscellaneous Claims, the Unresolved Wage Claims, the Unresolved Personal
Injury Claims, and the Unresolved Workers' Compensation Claims.
CONCLUSION
23. While the Plan and the Trust Indenture provide for the
prepayment of allowed claims at any time, they do not provide a mechanism for
the prepayment of the Unresolved Claims. The Debtor asserts that the
prepayment structure outlined above falls within the intent of the Plan, fully
protects the interests of the Class 7 Creditors, and results in a much more
expedient and secure distribution to Class 7 Creditors. Specifically, the
tender results in immediate payment of the Unresolved Claims upon allowance,
compared to the deferred payment pursuant to the terms of a Class 7 Note. The
tender of payment, as outlined above, eliminates the necessity for issuing
Class 7 Notes, as the unresolved Class 7 Claims will be paid in full upon
allowance. Accordingly, after the Prepayment Date, the Trust Indenture may be
defeased and the collateral released, without affecting the substantive rights
of the Class 7 Creditors.
-14-
<PAGE> 15
24. The tender of payment, in the form of a single letter of
credit, will be in an amount sufficient to provide distributions to the Class 7
Creditors in the full amount of their allowed claims. By posting the letter of
credit to pay the Class 7 Claims, the mechanism for such distributions is
outside the Debtor's control and fully secures, in cash (or its equivalent) the
payment to holders of Unresolved Claims. A determination that all the Class 7
Creditors have been satisfied upon the tender of payment outlined above will
not affect the substantive rights of the Class 7 Creditors. Accordingly, a
determination by the Court that the condition contained in Class 9 has been met
(i.e. that Class 7 Creditors have been paid in full), is appropriate, will
result in the expedited payment of Class 7 Creditors, and leaves intact or
enhances the substantive rights of the Class 7 Creditors.
25. The Debtor has served this motion on the Indenture Trustee,
all of the holders of Unresolved Claims, and former members of and counsel for
the Creditors Committee.
WHEREFORE, based upon the foregoing, the Debtor requests that the Court
(a) determine that (i) the prepayment of the Class 7 Notes, and
(ii) the tender of payment to the Class 7 Creditors outlined
above, is sufficient to deem the Class 7 Creditors paid in
full;
(b) determine that the foregoing is sufficient to terminate and
defease the Trust Indenture;
(c) determine that as a result of the payment of Class 7 Creditors
in full, the prohibition against payments, dividends and
distributions to equity interests contained in Class 9 of the
Plan has terminated; and
(d) grant such other and further relief as the Court deems just.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of Sunshine-Jr. Stores,
Inc.'s Motion for Approval of Form and Sufficiency of Tender of Prepayment of
Unresolved, Unsecured Claims, in Accordance with Confirmed, Second Amended Plan
of Reorganization, and all
-15-
<PAGE> 16
Exhibits, has been served on the members of the Unsecured Creditors' Committee;
Sunshine-Jr. Stores, Inc., June Avenue and 17th Street, Panama City, FL 34201;
James Main, Kirschner, Main, et al., P.O. Box 1559, Jacksonville, FL 32201;
U.S. Trustee, Suite 110, 4919 Memorial Highway, Tampa, FL 33634; David
Epstein, King & Spalding, 191 Peachtree Street, Atlanta, Georgia 30303-5100;
Charles M. Tatelbaum, Johnson, Blakely, et al., 911 Chestnut Street,
Clearwater, FL 34617; William Aewadski, Trenam, Kemker, et al., 101 E. Kennedy
Bovd., Tampa, Florida 33602; and to all the parties listed on the attached
Service List via regular, first class, U.S. Mail, postage prepaid, on this the
6th day of July, 1995.
/s/ Marsha Griffin Rydberg
----------------------------------------
MARSHA GRIFFIN RYDBERG
Florida Bar No. 220973
DONALD ALAN WORKMAN
Florida Bar No. 933392
RYDBERG & GOLDSTEIN, P.A.
500 East Kennedy Blvd., Suite 200
Tampa, Florida 33602
(813) 229-3900
(813) 229-6101 (facsimile)
Attorneys for Debtor
-16-
<PAGE> 1
Exhibit 99.(c)(6)
UNITED STATES BANKRUPTCY COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IN RE:
Sunshine-Jr. Stores, Inc. Case No. 92-16406-8B1
d/b/a Sunshine Supermarkets
d/b/a Jr. Food Stores,
Debtor.
_____________________________/
MOTION FOR EXPEDITED HEARING ON DEBTOR'S
MOTION FOR APPROVAL OF FORM AND SUFFICIENCY OF
TENDER OF REPAYMENT OF UNRESOLVED,
UNSECURED CLAIMS, IN ACCORDANCE WITH
CONFIRMED, SECOND AMENDED PLAN OF REORGANIZATION
Sunshine-Jr. Stores, Inc. d/b/a Sunshine Supermarkets d/b/a Jr. Food
Stores ("Debtor"), moves the Court for an Order setting an expedited hearing
date and time on Debtor's Motion for Approval of Form and Sufficiency of Tender
of Repayment of Unresolved, Unsecured Claims, in Accordance with Confirmed,
Second Amended Plan of Reorganization ("Motion for Approval"), and in support
thereof says:
1. On December 18, 1992 ("Petition Date"), the Debtor filed its
Voluntary Petition under Title 11, Chapter 11 of the United States Code
("Bankruptcy Code").
2. The Debtor is a publicly held company which is engaged in the
ownership and operation of over 200 convenience stores located in the States of
Florida, Alabama, Mississippi, Georgia and Louisiana.
3. On May 12, 1994, the Court entered its Order Confirming the
Debtor's Plan of Reorganization.
<PAGE> 2
4. The Debtor's Board of Directors has reviewed and approved a
tender offer (the "Tender Offer") for the purchase of all of the Debtor's
outstanding shares of capital stock.
5. The Tender Offer was made by E-Z Serve Acquisition Corporation
("Acquisition"), a wholly owned subsidiary of E-Z Serve Corporation ("E-Z
Serve"). The Debtor, Acquisition and E-Z Serve have entered into an Agreement
and Plan of Merger.
6. Concurrent with the filing of this motion, the Debtor filed
the Motion for Approval, which describes in detail the Tender Offer made by
Acquisition.
7. The Motion for Approval proposes a mechanism for the payment
of all Class 7 Creditors in full immediately.
8. Acquisition and E-Z Serve intend to effect the prepayment
within 30 to 45 days after the commencement of the Tender Offer. E-Z Serve has
obtained a commitment for the financing necessary to make these significant
payments. Accordingly, time is of the essence in this matter. Any significant
delay in obtaining a hearing on the Motion for Approval will jeopardize the
financing commitment.
9. The Motion for Approval seeks a ruling by the Court
determining that the Debtor's proposed mechanism for prepaying or tendering
payment of unresolved claims is consistent with the Confirmed Plan's intent,
will result in the termination of the trust indenture and will eliminate
certain restrictions contained in the Plan and the Indenture.
2
<PAGE> 3
10. The Debtor is aware and is very sensitive to the Court's
congested docket, and estimates that no longer than 30 minutes would be
required for the hearing.
11. In light of the time sensitive nature of the Tender Offer and
the financing commitment, the Debtor respectfully requests that the Court set
the Motion for Approval at the earliest possible date and time.
CERTIFICATE OF SERVICE OF THE MOTION FOR EXPEDITED
HEARING ON DEBTOR'S MOTION FOR APPROVAL OF FORM AND
SUFFICIENCY OF TENDER OF REPAYMENT OF UNRESOLVED,
UNSECURED CLAIMS, IN ACCORDANCE WITH CONFIRMED,
SECOND AMENDED PLAN OF REORGANIZATION
JOINT PRETRIAL AND DISCOVERY CONFERENCE REPORT
I HEREBY CERTIFY that a true and correct copy of the foregoing has
been furnished by U.S. Mail to Sunshine-Jr. Stores, Inc., June Avenue and 17th
Street, Panama City, FL 34201; James Main, Kirschner, Main et al., P. O. Box
1559, Jacksonville, FL 32201; U.S. Trustee, Suite 110, 4919 Memorial Highway,
Tampa, FL 33634; and all unresolved claimholders as listed on the attached
Matrix, this 6th day of July, 1995.
/s/ Marsha Griffin Rydberg
____________________________________
MARSHA GRIFFIN RYDBERG
Florida Bar No. 220973
DONALD ALAN WORKMAN
Florida Bar No. 933392
RYDBERG & GOLDSTEIN, P.A.
500 E. Kennedy Blvd., Suite 200
Tampa, Florida 33602
Phone: (813) 229-3900
Fax: (813) 229-6101
Attorneys for Debtor
3
<PAGE> 1
EXHIBIT 99.(c)(13)
IN THE CIRCUIT COURT IN AND FOR LEON COUNTY, FLORIDA
CIVIL DIVISION
CCC-PP, INC. AND RANDALL HUGHES,
Plaintiffs,
v. Case No.: 95-3500
SUNSHINE-JR- STORES, INC.,
LEONA J. LEWIS and LANA JANE Division:
LEWIS-BRENT, as Trustees of
the Leona J. Lewis Revocable
Trust, LUTHER D. LEWIS, LANA
JANE LEWIS BRENT, PAUL BRENT,
and DONNA SUE RAINES,
Defendants.
- -------------------------------------\
DEFENDANT SUNSHINE-JR. STORES, INC.'S
RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION
FOR EMERGENCY MOTION
Defendant, Sunshine-Jr. Stores, Inc. ("Sunshine"), by and through its
undersigned attorneys, hereby responds to Plaintiffs' Motion for Emergency
Hearing (the "Motion for Emergency Hearing") as follows:
1. Plaintiffs, CCC-PP, Inc. and Randall Hughes' (Collectively,
"Plaintiffs"), Motion for Emergency Hearing requests that the Court "set an
emergency hearing of at least 30 minutes on July 24, 1995, or as soon
thereafter as is possible," with respect to motions Plaintiffs have filed for
preliminary injunctions (the "Motions for Preliminary Injunctions") to enjoin
Sunshine from going forward with a sale and merger transaction with EZS
Acquisition Corporation ("EZS") and to enjoin Sunshine's co-defendants Leona
J. Lewis and Lana Jane
<PAGE> 2
Lewis-Brent, as Trustees of the Leona J. Lewis Revocable Trust, Luther D.
Lewis, Lana Jane Lewis-Bronx, Paul Brent, and Donna Sue Raines (collectively,
the "Shareholder Defendants") from tendering their shares of stock in Sunshine
to EZS, or requiring such tenders to be withdrawn, if already tendered.
2. However, as the undersigned counsel for Sunshine advised counsel
for Plaintiffs after receipt of Plaintiffs' Motion for Emergency Hearing,
Sunshine and EZS' sale and merger transaction that Plaintiffs seek to enjoin
has been completed; specifically, the shares tendered in the offer have already
been accepted for payment, payment has already been made therefor and the
merger of EZS into Sunshine was consummated on July 21, 1995. The foregoing is
evidenced by the merger certification documents, copies of which are attached
hereto as Composite Exhibit "A."
3. The law in Florida is clear that injunctive relief such as that
sought by Plaintiffs is available only to restrain future acts. City of
Jacksonville v. Naegele Outdoor Advertising Co., 634 So.2d 750, 754 (Fla. 1st
DCA 1994).
4. As the First District made clear in City of Jacksonville, supra:
Whether prohibitory or mandatory, an injunction is prospective.
"[A]n injunction does not lie to prohibit an act which has already
been committed." [citation omitted] "It is well settled that
injunction will not lie to enjoin that which has already been
done." [citation omitted] "[A]n injunction will lie only to
restrain ... future injury since it is impossible to prevent what
has already occurred." [citation omitted]
Id.
-2-
<PAGE> 3
5. Accordingly, because Plaintiffs' Motion for Emergency Hearing seeks
an emergency hearing on motions to enjoin an act or acts that have already taken
place (i.e., the sale and merger transaction involving Sunshine and EZS), the
injunctive relief sought by Plaintiffs is not available under Florida law.
Thus, the "emergency" nature of the Motions for Injunctions and, in fact, the
motions themselves, have been mooted.
WHEREFORE, Defendant Sunshine respectfully requests that the Court deny
Plaintiffs' Motion for Emergency Hearing as being moot.
KIRSCHNER, MAIN, PETRIE,
GRAHAM, TANNER & DEMONT, P.A.
By: /s/ John T. Rogerson, III
------------------------------------
T. Geoffrey Heekin
Fla. Bar No.: 32448
John T. Rogerson, III
Fla. Bar No.: 832839
Post Office Box 1559
Jacksonville, Florida 32201-1559
(904) 354-4141
Attorneys for Defendant
Sunshine-Jr. Stores, Inc.
-3-
<PAGE> 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant
Sunshine-Jr. Stores, Inc.'s Response in Opposition to Plaintiffs' Motion for
Emergency Motion has furnished this 24th day of July, 1995, by facsimile and
regular U.S. mail to:
Martha Hartell Chumbier, Esquire
Carlton, Fields, War, Emmanuel, Smith & Cutler, P.A.
First Florida Bank Building
P. O. Drawer 190
Tallahassee, Florida 32304
Nancy J. Faggianelli, Esquire
Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.
One Harbour Place
Post Office Box 3239
Tampa, Florida 33602
James Elliott Messer, Esquire
Messer, Vickers, Caparello, Madsen & Lewis
P. O. Box 1876
Tallahassee, Florida 32302
and by U.S. mail only to:
Leona J. Lewis, as Trustee
of the Leona J. Lewis Revocable Trust
100 Cherry Street
Panama City, Florida 32401
Luther D. Lewis
P. O. Box 27466
Panama City, Florida 32411
-4-
<PAGE> 5
Lana Jane Lewis-Brent
Paul Brent
1216 Dewitt Street
Panama City, Florida 32401
Donna Sue Raines
20187 Forest Glen Court
Tallahassee, Florida 32303
/s/ John T. Rogerson, III
----------------------------------------
Attorney
-5-
<PAGE> 1
Exhibit 99.(c)(14)
IN THE CIRCUIT COURT IN AND FOR LEON COUNTY, FLORIDA
CIVIL DIVISION
CCC-PP, INC. AND RANDALL HUGHES,
Plaintiffs,
v. Case No.: 95-3500
SUNSHINE-JR- STORES, INC.,
LEONA J. LEWIS and LANA JANE Division:
LEWIS-BRENT, as Trustees of
the Leona J. Lewis Revocable
Trust, LUTHER D. LEWIS, LANA
JANE LEWIS BRENT, PAUL BRENT,
and DONNA SUE RAINES,
Defendants.
- -------------------------------------\
NOTICE OF VOLUTARY DISMISSAL
Pursuant to Florida Rule of Civil Procedure 1.420(a)(1), the Plaintiffs
hereby give notice of the voluntary dismissal of the above-styled matter.
Respectfuly submitted this 24th day of July, 1995.
By: /s/ Martha Harrell Chumbler
------------------------------------
Nancy J. Faggianelli
Florida Bar No. 0347590
Martha Harrell Chumbler
Florida Bar No. 0263222
CARLTON, FIELDS, WARD, EMMANUEL,
SMITH & CUTLER, P.A.
One Harbour Place
Post Office Box 3239
Tampa, Florida 33602
(813) 223-7000
Attorneys for Plaintiffs
<PAGE> 2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original and a copy of the foregoing have been
furnished this 24th day of July, 1995, by United States mail and facsimile, to:
T. Geoffrey Heekin, Esquire
Kirschner, Main, Petrie, Graham, Tanner & Demont
Post Office Box 1559
Jacksonville, Florida 32201-1599
Attorney for Sunshine-Jr. Stores, Inc.;
by hand delivery to:
James Elliott Messer, Esquire
Messer, Vickers, Caparello, Madsen & Lewis
P. O. Box 1876
Tallahassee, Florida 32302
Attorney for Leona J. Lewis and
Lana Jane Lewis Brent;
and by United States mail to:
Leona J. Lewis, as Trustee
of the Leona J. Lewis Revocable Trust
100 Cherry Street
Panama City, Florida 32401
Luther D. Lewis
P. O. Box 27466
Panama City, Florida 32411
Lana Jane Lewis-Brent
Paul Brent
1216 Dewitt Street
Panama City, Florida 32401
Donna Sue Raines
20187 Forest Glen Court
Tallahassee, Florida 32303
/s/ MARTHA HARRELL CHUMBLER
----------------------------------------
Attorney
-2-
