CONSENT AND NINTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.5 (i)
Execution Version
Execution Version
CONSENT AND NINTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT
This CONSENT AND NINTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of January
28, 2009 (this “Amendment”), by and among MAPCO EXPRESS, INC., a Delaware corporation (the
“Borrower”) and the Lenders (as defined herein) party hereto.
W I T N E S S E T H:
WHEREAS, the Borrower, Xxxxxx Brothers Inc., as advisor, sole lead arranger and sole
bookrunner, SunTrust Bank, as syndication agent, Bank Leumi USA, as co-administrative agent, Xxxxxx
Commercial Paper Inc. (“LCPI”), acting in its capacity as administrative agent (in such
capacity, the “Administrative Agent”) for certain financial institutions (the
“Lenders”), and such Lenders, are parties to that certain Amended and Restated Credit
Agreement dated as of April 28, 2005 (as amended by (a) the First Amendment to Amended and Restated
Credit Agreement, dated as of Xxxxxx 00, 0000, (x) the Second Amendment to Amended and Restated
Credit Agreement, dated as of October 11, 2005, (c) the Third Amendment to Amended and Restated
Credit Agreement, dated as of December 15, 2005, (d) the Fourth Amendment to Amended and Restated
Credit Agreement, dated as of April 18, 2006, (e) the Fifth Amendment to Amended and Restated
Credit Agreement, dated as of June 14, 2006, (f) the Sixth Amendment to Amended and Restated Credit
Agreement, dated as of July 13, 2006, (g) the Seventh Amendment to Amended and Restated Credit
Agreement, dated as of March 30, 2007 and (h) the Eighth Amendment to Amended and Restated Credit
Agreement, dated as of December 3, 2008, and as further amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, the Borrower has informed the Lenders that the Borrower desires to use the proceeds
of Revolving Loans and/or cash on hand of the Borrower to prepay a portion of the outstanding
principal amount of the Xxxxxx Acquisition Note in an aggregate amount equal to $25,000,000 (the
“Xxxxxx Loan Prepayment”);
WHEREAS, the Borrower has requested that Administrative Agent and the Lenders (a) consent to
the Xxxxxx Loan Prepayment and the use of Revolving Loans to consummate the Xxxxxx Loan Prepayment
and (b) amend the Credit Agreement in certain respects; and
WHEREAS, Administrative Agent and the Required Lenders are willing to accommodate such
requests, subject to the terms, conditions and other provisions hereof.
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. Effective as of the Ninth Amendment Effective Date, and in reliance
upon the representations and warranties of the Loan Parties set forth in the Loan Documents and in
this Amendment, the Credit Agreement is hereby amended as follows:
(a) Section 1.1 (Defined Terms). Section 1.1 of the Credit Agreement is hereby
amended by substituting the definitions of the terms set forth below in lieu of the current version
of such definitions contained in Section 1.1 of the Credit Agreement:
“Applicable Margin”: for each Type of Loan under each Facility the
rate per
annum set forth opposite such Facility under the relevant column heading below:
| Base Rate | Eurodollar | |||||||
| Loans | Loans | |||||||
Revolving Credit Facility (including Swing Line Loans) |
1.75 | % | 2.75 | % | ||||
Term Loan Facility |
2.50 | % | 3.50 | % | ||||
provided, that on and after the first Adjustment Date occurring after the completion
of fiscal quarter of the Borrower ending December 31, 2008, the Applicable Margins will be
determined pursuant to the Pricing Grid.
“Base Rate”: for any day, a rate per annum (rounded upwards, if
necessary, to
the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b)
the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the sum
of (x) Eurodollar Base Rate described in clause (a) of the definition thereof, for an
Interest Period of three months as it appears on Reuters Screen LIBOR01 Page as of 11:00
A.M. (London, England time) two (2) Business Days prior to such day, plus (y) the excess of
the Applicable Margin for Eurodollar Loans over the Applicable Margin for Base Rate Loans,
in each instance, as of such day. For purposes hereof: “Prime Rate” shall mean the
prime lending rate as set forth on the British Banking Association Telerate Page 5 (or such
other comparable publicly available page as may, in the reasonable opinion of the
Administrative Agent after notice to the Borrower, replace such page for the purpose of
displaying such rate if such rate no longer appears on the British Bankers Association
Telerate page 5), as in effect from time to time. The Prime Rate is a reference rate and
does not necessarily represent the lowest or best rate actually available. Any change in
the Base Rate due to a change in the Prime Rate, the Eurodollar Base Rate for an interest
period of three (3) months or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate, the Eurodollar
Base Rate or the Federal Funds Effective Rate, respectively. In the event that such rate
described in clause (c) above does not appear on Reuters Screen LIBOR01 Page screen (or
otherwise on such screen), the “Eurodollar Base Rate” for purposes of this definition shall
be determined by reference to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the Administrative Agent.
“Eurodollar Base Rate”: with respect to each day during each
Interest Period,
the greater of (a) the rate per annum determined on the basis of the rate for
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deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Reuters Screen LIBOR01 Page as of 11:00 A.M.
(London, England time), two Business Days prior to the beginning of such Interest Period and
(b) two and three quarters percent (2.75%). In the event that such rate described in clause
(a) above does not appear on Reuters Screen LIBOR01 Page screen (or otherwise on such
screen), the “Eurodollar Base Rate” for purposes of this definition shall be determined by
reference to such other comparable publicly available service for displaying eurodollar
rates as may be selected by the Administrative Agent.
“Pricing Grid”: the table set forth below.
| Applicable Margin for Base | Applicable Margin for | |||||||||||||||
| Rate Loans | Eurodollar Loans | |||||||||||||||
| Consolidated Leverage | Revolving | Revolving | ||||||||||||||
| Ratio | Credit Facility | Term Facility | Credit Facility | Term Facility | ||||||||||||
> 3.50 to 1.00 |
2.25 | % | 2.75 | % | 3.25 | % | 3.75 | % | ||||||||
£ 3.50 to 1.00 and > 3.00 to 1.00 |
2.00 | % | 2.50 | % | 3.00 | % | 3.50 | % | ||||||||
£ 3.00 to 1.00 |
1.75 | % | 2.50 | % | 2.75 | % | 3.50 | % | ||||||||
For the purposes of the Pricing Grid, changes in the Applicable Margin resulting from
changes in the Consolidated Leverage Ratio shall become effective on each date (each, an
“Adjustment Date”) that is three Business Days after the date on which financial
statements are delivered to the Lenders pursuant to Section 6.1 and shall remain in effect
until the next change to be effected pursuant to this paragraph. If any financial
statements referred to above are not delivered within the time periods specified in Section
6.1, then, until the date that is three Business Days after the date on which such financial
statements are delivered, the highest rate set forth in each column of the Pricing Grid
shall apply. In addition, at all times while an Event of Default shall have occurred and be
continuing, the highest rate set forth in each column of the Pricing Grid shall apply. Each
determination of the Consolidated Leverage Ratio pursuant to the Pricing Grid shall be made
in a manner consistent with the determination thereof pursuant to Section 7.1.
(b) Section 1.1 (Defined Terms). Section 1.1 of the Credit Agreement is hereby
further amended by inserting the following new definitions in the appropriate alphabetical order:
“Ninth Amendment”: the Ninth Amendment to this Agreement, dated as of January
28, 2009.
“Ninth Amendment Effective Date”: January 28, 2009.
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3. Consent to Xxxxxx Loan Prepayment. Effective as of the date hereof, subject to the
conditions set forth below in this Section 3, upon satisfaction of the conditions precedent set
forth in Section 4 hereof, and in reliance upon the representations and warranties of the Loan
Parties set forth in the Credit Agreement, the other Loan Documents and in this Amendment, and
notwithstanding anything to the contrary contained in the Credit Agreement or
any other Loan Document (including, without limitation, Sections 4.16 and 7.2 of the Credit
Agreement and the Parent Subordination Agreement), the Administrative Agent and the Required
Lenders hereby consent to the Xxxxxx Loan Prepayment and consent to the use of proceeds of
Revolving Loans and/or Swing Line Loans (if any are used) to consummate the Xxxxxx Loan Prepayment,
provided that the effectiveness of such consent is subject to the following conditions: (i) the
amount of the Xxxxxx Loan Prepayment shall not exceed $25,000,000, (ii) the Xxxxxx Loan Prepayment
shall be consummated no later than Xxxxx 00, 0000, (xxx) with respect to the Xxxxxx Loan, amounts
repaid on the Xxxxxx Acquisition Note may not be reborrowed by the Borrower and (iv) the Borrower
shall have provided evidence to the Lenders that the Xxxxxx Loan Prepayment has been applied as a
prepayment of the Xxxxxx Acquisition Note.
4. Conditions to Effectiveness. This Amendment shall become effective upon the date
(the “Ninth Amendment Effective Date”) on which the following conditions have been
satisfied:
(a) Amendment. The Required Lenders shall have received this Amendment, executed and
delivered by a duly authorized officer of the Borrower.
(b) Acknowledgment and Consent. The Required Lenders shall have received an
Acknowledgment and Consent, substantially in the form of Exhibit A hereto, duly executed and
delivered by each Guarantor.
(c) Projections. The Required Lenders shall have received, in each case, in form and
substance reasonably satisfactory to the Required Lenders, an updated pro forma budget of the
Borrower and its Subsidiaries for the current fiscal year on a quarter by quarter basis, along with
the corresponding financial covenant calculations with respect to each financial covenant set forth
in Section 7.1 of the Credit Agreement, which such projections and covenant calculations shall be
prepared in accordance with the requirements set forth in the Credit Agreement and shall give pro
forma effect to the consummation of Xxxxxx Loan Prepayment and the borrowing of Revolving Loans in
connection therewith (collectively, the “Pro Forma Projections”).
(d) Amendment Fee. The Borrower shall have delivered (and the Borrower hereby
covenants and agrees to pay) to each Lender who has delivered an executed signature page to this
Amendment on or prior to 5:00 P.M., New York City time, on the date hereof (collectively, the
“Signing Lenders”) in immediately available funds, for the benefit of such Signing Lender,
a non-refundable fee in an aggregate amount equal to .25% of such Signing Lender’s pro rata share
of the aggregate amount of the Revolving Credit Commitments and the outstanding principal balance
of the Term Loan held by the Signing Lenders, in each case, as of the date hereof, which fee shall
be fully earned and payable as of the date hereof.
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(e) No Defaults. No Default or Event of Default under the Credit Agreement shall have
occurred and be continuing.
(f) Representations and Warranties. The truth and accuracy of the representations and
warranties contained in Section 5 hereof.
(g) Fees, etc. The Required Lenders 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 Required Lenders on
or before the Ninth 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 Ninth Amendment
Effective Date as if made on and as of such date (except that any
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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).
(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 Ninth Amendment Effective Date.
(e) The Pro Forma Projections are based on reasonable estimates, information and assumptions
and the Borrower has no reason to believe that such Pro Forma Projections are incorrect or
misleading in any material respect.
(f) 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 a waiver or amendment 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. 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
shall be lodged with the Borrower and the Administrative Agent. This Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.
[SIGNATURE PAGES FOLLOW]
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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., as the Borrower |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | ||||
| Title: | Treasurer | |||
Consent and Ninth Amendment to Amended and Restated Credit Agreement
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.
| XXXXXX COMMERCIAL PAPER INC., as Administrative Agent |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
Consent and Ninth Amendment to Amended and Restated Credit Agreement
ACKNOWLEDGEMENT AND CONSENT
Reference is made to the Consent and Ninth Amendment to Amended and Restated Credit Agreement,
dated as of January 28, 2009 (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,
the Fourth Amendment, dated as of April 18, 2006, the Fifth Amendment, dated as of June 14, 2006,
the Sixth Amendment, dated as of July 13, 2006, the Seventh Amendment, dated as of March 30, 2007,
the Eighth Amendment, dated as of December 3, 2008 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 sale 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”), and (ii) the Guarantee and Collateral Agreement, dated
as of April 28, 2005 (as amended, supplemented or otherwise modified in writing from time to time,
the “Guarantee and Collateral Agreement”), made by each of the signatories thereto
(together with any other entity that may become a party thereto as provided therein, the
“Grantors”), in favor of the Administrative Agent for the benefit of the Secured Parties.
Unless otherwise defined herein, capitalized terms used herein and defined in the Credit Agreement
are used herein as therein defined.
Each of the undersigned parties to the Guarantee and Collateral Agreement and the other
Security Documents hereby (a) consents to the transactions contemplated by the Ninth Amendment and
(b) acknowledges and agrees that the guarantees and grants of security interests made by such party
contained in the Guarantee and Collateral Agreement and the other Security Documents are, and shall
remain, in full force and effect after giving effect to the Ninth Amendment.
THIS ACKNOWLEDGEMENT AND CONSENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Consent and Ninth Amendment to Amended and Restated Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Acknowledgement and Consent to be
duly executed and delivered by their respective proper and duly authorized officers as of January
28, 2009.
| MAPCO EXPRESS, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | ||||
| Title: | Treasurer | |||
| GASOLINE ASSOCIATED SERVICES, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | ||||
| Title: | Treasurer | |||
| LIBERTY WHOLESALE CO., INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | ||||
| Title: | Treasurer | |||
Consent and Ninth Amendment to Amended and Restated Credit Agreement
