Exhibit 10.17
First Amendment to Distributor
Service Agreement
This First Amendment to Distributor
Service Agreement (the “Amendment”), is made and
entered into effective as of and retroactive to January 1,
2005, by and between McLane Company, Inc., a Texas corporation
(“McLane”), and SSP Partners, a Texas general
partnership (“SSP”).
Whereas, SSP and McLane entered into
that certain Distributor Service Agreement dated August 21,
1997, as extended pursuant to those certain extensions dated
May 13, 2002, October 10, 2002, and January 24,
2003. The Distributor Service Agreement, along with all amendments,
exhibits and extensions, is hereby incorporated herein by reference
for all purposes and is referred to herein as the
“Agreement”; and
Whereas, SSP and McLane desire to
amend the Agreement to in order to, among other things, extend the
Agreement and modify the billing plan and the cigarette
pricing;
Now, therefore, in consideration of
the premises described below, McLane and SPP agree to amend the
Agreement as follows:
1. The term of the Agreement (the
“Term”) shall be for three (3) years, commencing
January 1, 2005, and terminating on December 31,
2007.
2. Article 5.3 of the Agreement is
modified to provide that the notices to E. V. Bonner, Jr.,
shall be sent to P.O. Box 9036, Corpus Christi, Texas 78469,
telephone: 361-693-3735, telecopier: 361-693-3725.
3. The attached Exhibit
A entitled “Cigarette Pricing”, and
Exhibit B entitled “UIN Department Markup
Schedule” (referred to collectively as the “Replacement
Exhibits”), do hereby replace and supercede all prior
Exhibits in the Agreement relating to the above-mentioned
subjects.
4. All incentives and mark-up
reductions contained in the Replacement Exhibits shall be
retroactive to and effective as of January 1, 2005.
5. McLane shall provide to SSP,
[***] of shelf tags for all stores for all
products.
6. Telxon ordering units shall be
provided by McLane to SSP at [***] to SSP. If McLane
replaces the Telxon units with another electronic ordering device
during the term of this Agreement, any fees will be subject to
mutual agreement.
7. McLane shall provide to SSP [***]
of live image planograms [***].
8. McLane reserves the right to
implement a Diesel Fuel Surcharge (as described below) if the EIA
Report on Highway Diesel Price – Gulf Coast (the “EIA
Price”), exceeds [***] per gallon for [***] successive
months. The Diesel Fuel Surcharge shall be calculated on a
“per
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*
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CONFIDENTIAL
TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED IS OMITTED AND IS NOTED WITH
“[***].” AN UNREDACTED VERSION OF THIS DOCUMENT HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
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stop” basis as follows: For each
incremental [***] cent [***] increase above [***] per gallon,
McLane may charge an additional [***] cents [***] per stop. By way
of explanation, if the EIA Price increases to [***] per gallon (an
increase of [***] cents), then the Diesel Fuel Surcharge shall be
[***] cents ([***] cents x 2 [***]-cent increases) per stop.
Provided, however, that the Diesel Fuel Surcharge shall be
eliminated once the EIA Price goes below [***] per
gallon.
9. McLane shall pay to SSP a
one-time transition allowance of [***] (the “Transition
Allowance”), within [***] days after the last party signs
this Amendment, as indicated below. This Amendment is contingent on
the payment of the Transition Allowance, and the failure of McLane
to timely deliver the Transition Allowance to SSP shall render this
Amendment null and void and of no further force and effect. If the
Agreement is terminated at any time during the Term due to an
uncured default on the part of SSP or a Change in Control (as
defined in Article 5.2), then SSP shall reimburse to McLane
the total Transition Allowance paid to SSP by McLane under this
Amendment, less one-thirty-sixth (1/36) of the Transition
Allowance for each month elapsed during the Term.
10. McLane shall provide to SSP the
[***], on a [***] basis, as defined below, for all SSP stores. If
economic conditions warrant a change to the pricing structure by
McLane in markets where SSP also operates stores, McLane shall
notify SSP of such change and the pricing may be amended by mutual
written agreement by SSP and McLane. [***]. McLane agrees to
prov
