Exhibit 4.23 FOURTH AMENDMENT TO THE FOURTH AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT This FOURTH AMENDMENT to the Fourth Amended and Restated Revolving Credit and Term Loan Agreement, dated as of September 26, 1997 ("Fourth...
Exhibit 4.23
FOURTH AMENDMENT TO THE
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This FOURTH AMENDMENT to the Fourth Amended and Restated Revolving Credit
and Term Loan Agreement, dated as of September 26, 1997 ("Fourth Amendment"),
by and among (a) Xxxxxxxx Consumers Company, Xxxx Xxxx, Inc., and Shore Stop
Corporation, each a Delaware corporation, (collectively, the "Borrowers"),
(b) BankBoston, N.A. (formerly known as The First National Bank of Boston),
The Travelers Insurance Company, The Travelers Indemnity Company, Senior Debt
Portfolio, Xxxxx Bank N.A., CypressTree Investment Management Company, Inc.
("CypressTree"), CypressTree Investment Partners I, Ltd. ("CypressTree I"),
and Deeprock & Company (collectively, the "Banks"), and (c) BankBoston, N.A.
as agent for the Banks (the "Agent").
WHEREAS, the Borrowers, the Banks and the Agent are parties to that
certain Fourth Amended and Restated Revolving Credit and Term Loan Agreement
dated as of July 8, 1996 (as amended and in effect prior to giving effect to
this Amendment, the "Credit Agreement"); and
WHEREAS, the Borrowers have requested and the Banks have agreed, subject
to the terms and conditions set forth herein, to modify certain provisions of
the Credit Agreement;
NOW, THEREFORE, the Borrowers, the Banks and the Agent hereby covenant
and agree as follows:
SECTION 1. Defined Terms. Capitalized terms which are used herein
without definition and which are defined in the Credit Agreement shall have
the same meanings herein as in the Credit Agreement.
SECTION 2. Amendment to the Credit Agreement. Section 1.1 (Definitions)
of the Credit Agreement is hereby further amended by modifying the proviso at
the end of the term Eligible Petroleum Inventory to read as follows:
"provided that Petroleum Product Inventory held for sale at retail outlets
and which would otherwise qualify as Eligible Petroleum Inventory may not be
included as Eligible Petroleum Inventory except during the period from and
including September 26, 1997 through and including December 31, 1997."
SECTION 3. Conditions to Effectiveness to Amendment. This Amendment
shall become effective upon satisfaction of the following condition precedent
on the Amendment Closing Date: receipt by the Agent of this Amendment,
executed and delivered by each of the Borrowers, the Agent and the Banks.
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SECTION 4. Affirmation of the Borrowers. Each of the Borrowers hereby
affirms all of its obligations under the Credit Agreement, as amended hereby,
and the Notes and under each of the other Loan Documents to which it is a
party and hereby affirms its absolute and unconditional promise to pay to the
Banks the Loans and all other amounts due under the Credit Agreement, as
amended hereby. Each of the Borrowers hereby represents, warrants and
confirms that the Obligations, as amended hereby, are and remain secured
pursuant to the Security Documents.
SECTION 5. Representations and Warranties. Each of the Borrowers hereby
represents and warrants to the Banks and the Agent as follows:
(a) Representations and Warranties. The representations and
warranties contained in Section 8 of the Credit Agreement were true and
correct in all material respects when made. The representations and
warranties contained in Section 8 of the Credit Agreement, after giving
effect to this Amendment, are true and correct on the date hereof, except (i)
for those representations and warranties which relate specifically to a
particular date, which representations and warranties were ture and correct
as of such date and (ii) as otherwise disclosed in writing by the Borrowers
to each of the Banks and the Agent subsequent to the Closing Date.
(b) Authority. The execution and delivery by each Borrower of
this Amendment, and the performance by each Borrower of this Amendment and
the Credit Agreement, as amended hereby, (i) are within the corporate
authority of such Borrower, (ii) have been duly authorized by all necessary
corporate proceedings, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to which
such Borrower is subject or any judgment, order, writ, injunction, license or
permit applicable to such Borrower, and (iv) do not conflict with any
provision of the corporate charter or bylaws of such Borrower or any
agreement or other instrument binding upon such Borrower.
(c) Enforceability. This Amendment and the Credit Agreement, as
amended hereby, are valid and legally binding obligations of each Borrower,
enforceable against such Borrower in accordance with their respective terms and
provisions, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditor's rights and except to the extent that availability of
the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
(d) No Default. No Default or Event of Default exists or will
exist after giving effect to the execution and delivery of this Amendment.
SECTION 6. No Other Amendments. Except as expressly provided in this
Amendment, all of the terms and conditions of the Credit Agreement and the other
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Loan Documents remain unchanged, and the terms and conditions of the Credit
Agreement as amended hereby and the other Loan Documents remain in full force
and effect.
SECTION 7. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by each party on a separate counterpart, each
of which when so executed and delivered shall be an original, but all of
which together shall constitute one instrument. In proving this Amendment, it
shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
SECTION 8. Miscellaneous. This Amendment shall be deemed to be a
contract under seal under the laws of The Commonwealth of Massachusetts and
shall for all purposes be construed in accordance with and governed by the
laws of The Commonwealth of Massachusetts. The captions in this Amendment are
for convenience of reference only and shall not define or limit the
provisions hereof. The Borrowers agree to pay to the Agent, on demand by the
Agent, all reasonable out-of-pocket costs and expenses incurred or sustained
by the Agent in connection with the preparation of this Amendment, including
reasonable legal fees.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
XXXXXXXX CONSUMERS COMPANY
By: /s/ Xxxxxxx X. XxXxxxxx
-----------------------------
Title:
XXXX XXXX, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
-----------------------------
Title:
SHORE STOP CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
-----------------------------
Title:
BANKBOSTON, N.A. (formerly known
as The First National Bank Of Boston),
individually and as Agent
By:
-----------------------------
Title:
THE TRAVELERS INSURANCE
COMPANY
By:
-----------------------------
Title:
THE TRAVELERS INDEMNITY
COMPANY
By:
-----------------------------
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Adviser
By:
-----------------------------
Title:
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
XXXXXXXX CONSUMERS COMPANY
By:
-----------------------------
Title:
XXXX XXXX, INC.
By:
-----------------------------
Title:
SHORE STOP CORPORATION
By:
-----------------------------
Title:
BANKBOSTON, N.A. (formerly known
as The First National Bank Of Boston),
individually and as Agent
By: /s/ H. Xxxxxx Xxxxxx
-----------------------------
Title:
THE TRAVELERS INSURANCE
COMPANY
By:
-----------------------------
Title:
THE TRAVELERS INDEMNITY
COMPANY
By:
-----------------------------
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Adviser
By:
-----------------------------
Title:
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
XXXXXXXX CONSUMERS COMPANY
By:
-----------------------------
Title:
XXXX XXXX, INC.
By:
-----------------------------
Title:
SHORE STOP CORPORATION
By:
-----------------------------
Title:
BANKBOSTON, N.A. (formerly known
as The First National Bank Of Boston),
individually and as Agent
By:
-----------------------------
Title:
THE TRAVELERS INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Title: Investment Officer
THE TRAVELERS INDEMNITY
COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Title: Investment Officer
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Adviser
By:
-----------------------------
Title:
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
XXXXXXXX CONSUMERS COMPANY
By:
-----------------------------
Title:
XXXX XXXX, INC.
By:
-----------------------------
Title:
SHORE STOP CORPORATION
By:
-----------------------------
Title:
BANKBOSTON, N.A. (formerly known
as The First National Bank Of Boston),
individually and as Agent
By:
-----------------------------
Title:
THE TRAVELERS INSURANCE
COMPANY
By:
-----------------------------
Title:
THE TRAVELERS INDEMNITY
COMPANY
By:
-----------------------------
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Adviser
By: /s/ Xxxxx X. Page
-----------------------------
Title: Vice President
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XXXXX BANK N.A.
By: /s/ H. Tyblum
-----------------------------
Title: Vice President
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of
First Allmerica Life Insurance Company
By:
-----------------------------
Title:
CYPRESSTREE INVESTMENT
PARTNERS I, LTD.
By: CypressTree Investment
Management Company, Inc., as
Portfolio Manager
By:
-----------------------------
Title:
DEEPROCK & COMPANY
By: Xxxxx Xxxxx Management, as
Investment Advisor
By:
-----------------------------
Title:
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XXXXX BANK N.A.
By:
-----------------------------
Title:
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of
First Allmerica Life Insurance Company
By: /s/ X. Xxxxxxx
-----------------------------
Title: Assistant Vice President
CYPRESSTREE INVESTMENT
PARTNERS I, LTD.
By: /s/ CypressTree Investment
Management Company, Inc., as
Portfolio Manager
By: /s/ X. Xxxxxxx
-----------------------------
Title: Assistant Vice President
DEEPROCK & COMPANY
By: Xxxxx Xxxxx Management, as
Investment Advisor
By:
-----------------------------
Title:
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XXXXX BANK N.A.
By:
-----------------------------
Title:
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As Attorney-in-Fact and on behalf of
First Allmerica Life Insurance Company
By:
-----------------------------
Title:
CYPRESSTREE INVESTMENT
PARTNERS I, LTD.
By: CypressTree Investment
Management Company, Inc.,
as Portfolio Manager
By:
-----------------------------
Title:
DEEPROCK & COMPANY
By: Xxxxx Xxxxx Management, as
Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------
Title: Vice President
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Each of the undersigned hereby (i) acknowledges the provisions of the
foregoing Amendment and (ii) ratifies and confirms all of its obligations
under each of the Loan Documents to which it is a party.
XXXXXXXX HOLDINGS, INC.
By: /s/ Xxxx Xxxxx
-----------------------------
Title: Vice President
XXXXXXXXX TERMINALS, INC.
By:
-----------------------------
Title:
REGENT TRANSPORT, INC.
By:
-----------------------------
Title:
Each of the undersigned hereby (i) acknowledges the provisions of the
foregoing Amendment and (ii) ratifies and confirms all of its obligations
under each of the Loan Documents to which it is a party.
XXXXXXXX HOLDINGS, INC.
By:
-----------------------------
Title:
XXXXXXXXX TERMINALS, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
-----------------------------
Title:
REGENT TRANSPORT, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
-----------------------------
Title:
