EXHIBIT 10.7(d)
EXECUTION COPY
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH AMENDMENT, dated as of April 18, 2006 (this
"Amendment") to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 28,
2005 (as amended by the First Amendment, dated as of August 18, 2005, the Second
Amendment, dated as of October 11, 2005, the Third Amendment, dated as of
December 15, 2005, and as further amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among MAPCO EXPRESS, INC., a
Delaware corporation (the "Borrower"), the several banks and other financial
institutions or entities from time to time parties to the Credit Agreement (the
"Lenders"), XXXXXX BROTHERS INC., as advisor, sole lead arranger and sole
bookrunner (in such capacity, the "Arranger"), SUNTRUST BANK, as syndication
agent (in such capacity, the "Syndication Agent"), BANK LEUMI USA, as
co-administrative agent (in such capacity, the "Co-Administrative Agent"), and
XXXXXX COMMERCIAL PAPER INC., as administrative agent (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make
certain amendments to Credit Agreement, as in effect prior to the Fourth
Amendment Effective Date (the "Existing Credit Agreement");
WHEREAS, the Lenders have agreed to make such amendments
solely upon the terms and conditions provided for in this Amendment;
NOW, THEREFORE, in consideration of the premises herein
contained and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise noted herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
2. Amendment to Section 1.1 of the Credit Agreement. (a)
Section 1.1 of the Credit Agreement is hereby amended by deleting the
definitions of "Consolidated Fixed Charge Coverage Ratio" and "L/C Commitment"
in their entireties and substituting in lieu thereof the following in their
respective appropriate alphabetical order:
"Consolidated Fixed Charge Coverage Ratio": for any period,
the ratio of (a) (x) Consolidated EBITDA of the Borrower and its
Subsidiaries for such period minus (y) the aggregate amount actually
paid by the Borrower and its Subsidiaries in cash during such period on
account of Capital Expenditures plus (z) the proceeds of any Holdings'
Equity Contribution made during such period, including any such
contributions made within thirty (30) days after the end of such period
that are used by the Borrower and its Subsidiaries for Capital
Expenditures made during such period, in
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an aggregate amount not exceeding the amount of Capital Expenditures
described in clause (y) above, to (b) Consolidated Fixed Charges for
such period.
"L/C Commitment": $25,000,000.
(b) Section 1.1 of the Credit Agreement is hereby further
amended by adding the following new definition in its appropriate alphabetical
order:
"Holdings' Equity Contribution": any cash equity
contribution to the Borrower made by Holdings.
3. Amendment to Section 7.7 of the Credit Agreement. Section
7.7 of the Credit Agreement is hereby amended by deleting Section 7.7(a) in its
entirety and substituting in lieu thereof the following:
"(a) during any fiscal year of the Borrower, Capital
Expenditures of the Borrower and its Subsidiaries in an aggregate
amount not in excess of the amount set forth opposite such fiscal
year below:
Fiscal Year Capital Expenditure
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2005 $12,000,000
2006 $33,000,000
2007 $40,000,000
2008 $40,000,000
2009 and thereafter $12,000,000
provided, that (i) up to 50% of any amount set forth above, if not
expended in the fiscal year for which it is permitted, may be
carried over for expenditure in the next succeeding fiscal year and
(ii) Capital Expenditures made pursuant to this clause (a) during
any fiscal year shall be deemed made, first, in respect of amounts
permitted for such fiscal year as provided above and second, in
respect of amounts carried over from the prior fiscal year pursuant
to subclause (i) above; and"
4. Conditions to Effectiveness. This Amendment shall become
effective upon the date (the "Fourth Amendment Effective Date") on which the
following conditions have been satisfied:
(a) Amendment. The Administrative Agent shall have received
this Amendment, executed and delivered by a duly authorized officer of
the Borrower.
(b) Acknowledgment and Consent. The Administrative Agent shall
have received an Acknowledgment and Consent, substantially in the form
of Exhibit A hereto, duly executed and delivered by each Guarantor.
(c) Lender Consent Letter. A Lender Consent Letter,
substantially in the form of Exhibit B (a "Lender Consent Letter"),
duly executed and delivered by the Required Lenders (as defined in the
Existing Credit Agreement).
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(d) Fees, etc. The Administrative Agent shall have received
all fees required to be paid, and all expenses for which invoices have
been presented supported by customary documentation (including
reasonable fees, disbursements and other charges of counsel to the
Administrative Agent), on or before the Fourth Amendment Effective
Date.
5. Representations and Warranties. The Borrowers hereby
represent and warrant to the Administrative Agent and each Lender that (before
and after giving effect to this Amendment):
(a) Each Loan Party has the corporate power and authority, and
the legal right, to make, deliver and perform this Amendment and the
Acknowledgment and Consent (the "Amendment Documents") to which it is a
party and, in the case of the Borrower, to borrow under the Credit
Agreement as amended hereby. Each Loan Party has taken all necessary
corporate or other action to authorize the execution, delivery and
performance of the Amendment Documents to which it is a party and, in
the case of the Borrower, to authorize the borrowings on the terms and
conditions of the Credit Agreement as amended by this Amendment (the
"Amended Credit Agreement"). No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the
Amendment Documents, the borrowings under the Amended Credit Agreement
or the execution, delivery, performance, validity or enforceability of
this Amendment or the Acknowledgment and Consent, except (i) consents,
authorizations, filings and notices which have been obtained or made
and are in full force and effect and (ii) the filings referred to in
Section 4.19 of the Credit Agreement. Each Amendment Document has been
duly executed and delivered on behalf of each Loan Party that is a
party thereto. Each Amendment Document and the Amended Credit Agreement
constitutes a legal, valid and binding obligation of each Loan Party
that is a party thereto, enforceable against each such Loan Party in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
(b) The execution, delivery and performance of the Amendment
Documents, the borrowings under the Amended Credit Agreement, and the
use of the proceeds thereof will not violate any Requirement of Law or
any Contractual Obligation of the Borrower or any of its Subsidiaries
and will not result in, or require, the creation or imposition of any
Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the
Liens created by the Security Documents).
(c) Each of the representations and warranties made by any
Loan Party herein or in or pursuant to the Loan Documents is true and
correct in all material respects on and as of the Fourth Amendment
Effective Date as if made on and as of such date (except that any
representation or warranty which by its terms is made as of an earlier
date shall be true and correct in all material respects as of such
earlier date).
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(d) The Borrower and the other Loan Parties have performed in
all material respects all agreements and satisfied all conditions which
this Amendment and the other Loan Documents provide shall be performed
or satisfied by the Borrower or the other Loan Parties on or before the
Fourth Amendment Effective Date.
(e) After giving effect to this Amendment, no Default or Event
of Default has occurred and is continuing, or will result from the
consummation of the transactions contemplated by this Amendment.
6. Payment of Expenses. The Borrower agrees to pay or
reimburse the Administrative Agent for all of its reasonable out-of-pocket costs
and expenses incurred in connection with this Amendment, any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.
7. Limited Effect. Except as expressly provided hereby, all of
the terms and provisions of the Credit Agreement and the other Loan Documents
are and shall remain in full force and effect. The amendments contained herein
shall not be construed as an amendment or waiver of any other provision of the
Credit Agreement or the other Loan Documents or for any purpose except as
expressly set forth herein or a consent to any further or future action on the
part of the Borrower that would require the waiver or consent of the
Administrative Agent or the Lenders.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. Miscellaneous. (a) This Amendment may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Amendment and the Lender
Consent Letters signed by all the parties shall be lodged with the Borrower and
the Administrative Agent. This Amendment may be delivered by facsimile
transmission of the relevant signature pages hereof.
(b) The execution and delivery of the Lender Consent Letter by
any Lender shall be binding upon each of its successors and assigns
(including assignees of its Loans in whole or in part prior to
effectiveness hereof).
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
MAPCO EXPRESS, INC.
By: /s/ Xx Xxxxxx
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Name: Xx Xxxxxx
Title: CFO
By: /s/ Xxxx Xxxxxxx, Xx.
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Name: Xxxx Xxxxxxx, Xx.
Title: Treasurer
[Signature Page to Fourth Amendment]
XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Authorized Signatory
[Signature Page to Fourth Amendment]
