EX-10.5.H






Exhibit 10.5(h)




Execution Version




EIGHTH AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT




          This EIGHTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 3, 2008
(this “Amendment”), by and among MAPCO EXPRESS, INC., a Delaware corporation (the
“Borrower”) and the Lenders (as defined herein) party hereto.




WITNESSETH:




          WHEREAS, the Borrower, Lehman Brothers Inc., as advisor, sole lead arranger and sole
bookrunner, SunTrust Bank, as syndication agent, Bank Leumi USA, as co-administrative agent, Lehman
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 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, and as further amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”);




          WHEREAS, the Borrower has requested certain modifications to Section 7.5 of the Credit
Agreement in order to provide for the Disposition of certain other assets of the Borrower and its
Subsidiaries;




          WHEREAS, due to performance issues relative to LCPI’s and its parent corporation’s bankruptcy
proceedings, the Borrower and the Required Lenders desire to have LCPI resign or be removed or
replaced as Administrative Agent;




          WHEREAS, when and if such resignation, removal or replacement occurs, the Borrower and the
Required Lenders desire to consent to Fifth Third Bank, N.A. (in its individual capacity,
“Fifth Third”) becoming the successor “Administrative Agent” under the Credit Agreement;
and




          WHEREAS, the Required Lenders have agreed to amend the Credit Agreement is certain respects
and to consent to the appointment of Fifth Third as “Administrative Agent”, in each case 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 (Defined Terms).




 









 








          (a) Section 1.1 of the Credit Agreement is hereby amended by amending and restating the
following definitions as follows:





          “Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the
aggregate Net Cash Proceeds (or, in the case of any Asset Sale constituting a Disposition of
a Group Two Property, Group Two Net Cash Proceeds) received by a Borrower or any of its
Subsidiaries in connection therewith that are not applied to prepay the Term Loans and the
Revolving Credit Loans pursuant to Section 2.10(c) as a result of the delivery of a
Reinvestment Notice.




          “Reinvestment Notice”: a written notice executed by a Responsible Officer of a
Borrower stating that no Default or Event of Default has occurred and is continuing and that
such Borrower (directly or indirectly through a Subsidiary) intends and expects to use all
or a specified portion of the Net Cash Proceeds of an Asset Sale (or, in the case of any
Asset Sale constituting a Disposition of a Group Two Property, Group Two Net Cash Proceeds),
Purchase Price Refund or Recovery Event to acquire or repair assets useful in its business.



          (b) Section 1.1 of the Credit Agreement is hereby further amended by inserting the following
new definitions in the appropriate alphabetical order:





          “Eighth Amendment”: the Eighth Amendment to this Agreement, dated as of
December 3, 2008.




          “Eighth Amendment Effective Date”: the Eighth Amendment Effective Date (as
defined in Section 6 of the Eighth Amendment), which date is December 3, 2008.




          “Group One Properties”: the Properties identified on Annex I to the Eighth
Amendment.




          “Group Two Property”: each fee owned or leased real property interests of the
Borrower or any of its Subsidiaries that that is disposed of as part of a Permitted Group
Two Property Disposition.




          “Group Two Net Cash Proceeds”: with respect to a Disposition of any Group Two
Property, an amount equal to the Net Cash Proceeds received in connection with such
Disposition less any reasonable costs and expenses incurred and paid in cash by the
Borrower or such Subsidiary in connection with prior Disposition of a Group Two Property, to
the extent such reasonable costs and expenses were not deducted in computing Group Two Net
Cash Proceeds for any prior Dispositions of Group Two Properties.




          “Permitted Group Two Property Disposition”: the Disposition of fee owned or
leased real property interests of the Borrower or any of its Subsidiaries to Persons that
are not Affiliates of any Loan Party on an arms-length basis that shall yield (either
individually or collectively in a series of related Dispositions that shall occur within any
six month period) Total Consideration of at least six times the amount of



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Consolidated
EBITDA generated by such real property interests during any twelve (12) month period ending
on or after the date which is nine (9) months prior to the date of such Disposition or, with
respect to a series of related Dispositions, prior to the date of the first Disposition of
such series (calculated on an aggregate basis for all such real property interests that are
part of the same or a related series of Dispositions occurring within any six month period,
pursuant to one or more binding purchase agreements, which may involve different
purchasers), as certified by a Responsible Officer, and accompanied by a Compliance
Certificate containing all information and calculations necessary for determining the same.
For the avoidance of doubt and notwithstanding anything to the contrary contained in the
preceding sentence, if, after giving effect to the consummation of a Disposition (or series
of related Dispositions) described in the preceding sentence, the Total Consideration
applicable to such Disposition (or series of related Dispositions) is actually less than six
times the amount of Consolidated EBITDA generated by such real property interests, as
calculated in accordance with the preceding sentence (such shortfall in the amount of Total
Consideration, the “Total Consideration Shortfall”), then such Disposition (or series of
related Dispositions) shall still constitute a Permitted Group Two Property Disposition if,
within ten days of the consummation of such Disposition (or the last Disposition in a series
of related Dispositions), Borrower makes a voluntary prepayment of Term Loans (or Revolving
Credit Loans if no Term Loans are then outstanding) in an amount equal to the Total
Consideration Shortfall.




          “Total Consideration”: means the aggregate Net Cash Proceeds received by the
Borrower or its Subsidiaries in connection with a Disposition of any fee owned or leased
real property interest of the Borrower or any of its Subsidiaries that is the subject of a
Permitted Group Two Property Distribution.



          3. Amendment to Section 2.10(c) of the Credit Agreement (Mandatory Prepayments).
Section 2.10(c) of the Credit Agreement is hereby amended by deleting such section in its entirety
and replacing it with the following:




          “(c) Unless the Required Prepayment Lenders shall otherwise agree, if on any date the
Borrowers or any of their Subsidiaries shall receive Net Cash Proceeds (or, in the case of any
Asset Sale constituting a Disposition of a Group Two Property, Group Two Net Cash Proceeds) from
any Asset Sale, Purchase Price Refund or Recovery Event then, unless a Reinvestment Notice shall be
delivered in respect thereof, on the date of receipt by a Borrower or such Subsidiary of such Net
Cash Proceeds or Group Two Net Cash Proceeds, as applicable, the Term Loans and the Revolving
Credit Loans shall be prepaid (without a corresponding reduction of the Revolving Credit
Commitments), and/or the outstanding Letters of Credit shall be cash collateralized, by an amount
equal to the amount of such Net Cash Proceeds or Group Two Net Cash Proceeds, as applicable, as set
forth in Section 2.10(e); provided, that, notwithstanding the foregoing, (i) the aggregate
Net Cash Proceeds or Group Two Net Cash Proceeds, as applicable, of Asset Sales and Recovery Events
that my be excluded from the foregoing requirement
pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the
Borrowers and (ii) on each Reinvestment Prepayment Date the Term Loans and Revolving Credit Loans
(without a corresponding reduction of the Revolving Credit Commitments) shall be prepaid, and/or
the outstanding Letters of Credit shall be cash collateralized, by an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event, as set



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forth in
Section 2.10(e). The provisions of this Section do not constitute a consent to the consummation of
any Disposition not permitted by Section 7.5.”




          4. Amendment to Section 7.5 of the Credit Agreement (Limitation on Disposition of
Property). Section 7.5 of the Credit Agreement is hereby amended by:




          (a) deleting the “and” at the end of Section 7.5(f);




          (b) deleting the “.” at the end of Section 7.5(g) and substituting “; and” in lieu thereof;
and




          (c) adding the following Section 7.5(h):





“(h) the Disposition of Group One Properties to Persons that
are not Affiliates of any Loan Party on an arms-length basis
and Permitted Group Two Property Dispositions,
provided, that, the aggregate Net Cash Proceeds of
Group Two Properties Disposed of during any fiscal year of
the Borrower shall not exceed $35,000,000.”



          5. Successor Administrative Agent and Successor Swing Line Lender.




          (a) In the event LCPI gives notice pursuant to Section 9.9 of the Credit Agreement to the
Lenders and the Borrower of its resignation as, or is otherwise removed or replaced (including
pursuant to an order of a court of competent jurisdiction) as, Administrative Agent under the
Credit Agreement and the other Loan Documents, each of the Required Lenders and the Borrower hereby
waives the requirement that notice be given ten days prior to such resignation, removal or
replacement.




          (b) (i) The Required Lenders hereby agree, upon the resignation, removal or replacement of
LCPI as contemplated by Section 5(a) hereof, to the designation and appointment of (and the
Borrower hereby approves the appointment of) Fifth Third as the successor Administrative Agent (the
“Successor Administrative Agent”) for the Lenders under the Credit Agreement and the other
Loan Documents to be effective immediately upon delivery of written notice by the Successor
Administrative Agent to the Borrower acknowledging such appointment, (ii) Fifth Third hereby agrees
that, effective upon the resignation, removal or replacement of LCPI and upon receipt by Fifth
Third of all documents, agreements and instruments (including, without limitation, all possessory
collateral previously delivered to LCPI) necessary to effectuate the transfer of agency and
evidence the appointment of the Successor Administrative Agent reasonably requested by Fifth Third,
Fifth Third shall be appointed as the Successor Administrative Agent under the Credit Agreement and
each other Loan Document and agrees to serve in such capacity in accordance with the relevant terms
of the Loan Documents, (iii) the Borrower, each Guarantor and each other surety of or for any of
the obligations owing to
Administrative Agent and/or Lenders under the Credit Agreement or any Loan Document hereby
acknowledges such assignment, delegation and assumption and agrees, in its respective capacities as
debtor, obligor, grantor, mortgagor, pledgor, guarantor, surety, indemnitor, assignor and each
other similar capacity, if any, in which any such entity has previously granted Liens on all or any
part of its real or personal property pursuant to the Credit Agreement or any Loan



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Document, that
such assignment, delegation and assumption shall not affect in any way all or any of such Liens,
all of which Liens remain and shall continue to be in full force and effect and each of which is
hereby ratified, confirmed and reaffirmed in all respects, and (iv) the Required Lenders and the
Borrower hereby confirm that Fifth Third, in its capacity as the Successor Administrative Agent,
shall have all rights, remedies, protections, benefits, duties and powers of the Administrative
Agent under the Credit Agreement and the other Loan Documents and all references to the
“Administrative Agent” shall be deemed to mean Fifth Third, acting in such capacity. The Required
Lenders and Borrower understand and agree that the provisions of Section 9 of the Credit Agreement
shall inure to the benefit of LCPI as to any actions taken or omitted to be taken while it was
Administrative Agent under the Credit Agreement and the other Loan Documents.




          (c) The Required Lenders and the Borrower hereby agree that, (i) upon the resignation, removal
or replacement of LCPI as administrative agent (as contemplated by Section 5(a) hereof) and as
“Swing Line Lender”, (ii) the appointment of the Successor Administrative Agent in accordance with
the terms hereof, and (iii) upon compliance by the Borrower with Section 2.6(e) of the Credit
Agreement, (A) Fifth Third or one of its Affiliates (the “Successor Swing Line Lender”)
shall be the “Swing Line Lender” under the Credit Agreement, (B) the definition of “Swing Line
Lender” contained in the Credit Agreement and all references to the Swing Line Lender shall be
deemed amended to mean Fifth Third or such Affiliate, acting in such capacity, and (C) Fifth Third
or such Affiliate, as the case may be, in its capacity as the Successor Swing Line Lender, shall
have all rights, remedies, protections, benefits, duties and powers of the Swing Line Lender under
the Credit Agreement and the other Loan Documents.




          6. Conditions to Effectiveness. This Amendment shall become effective upon the date
(the “Eighth 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) 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 0.10% 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.




          (d) 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



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documentation
(including reasonable fees, disbursements and other charges of counsel to the Required Lenders on
or before the Eighth Amendment Effective Date.




          7. 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 Eighth
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).




          (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 Eighth
Amendment Effective Date.





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          (e) No Default or Event of Default has occurred and is continuing, or will result from the
consummation of the transactions contemplated by this Amendment.




          8. 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.




          9. 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.




          10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.




          11. 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/ Edward Morgan
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	 	 
	 	By:  	                      /s/ Gregory A. Intemann
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Eighth 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.




	 	 	 	 	 
	 	 	 
	 	
 	, as 
	 	 a Lender 	 
	 	 	 
	 
	 	By:  	  	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Eighth Amendment to Amended and Restated Credit Agreement