Exhibit 10.2
FOURTH AMENDMENT TO AMENDED AND
RESTATED ADDENDUM TO
DISTRIBUTOR FRANCHISE
AGREEMENT
This Fourth
Amendment to Amended and Restated Addendum to Distributor Franchise
Agreement (“Fourth Amendment”) is entered into on this
18 th
day of
December 2006, by and between CITGO Petroleum Corporation
(“CITGO”) and The Pantry, Inc. (the
“Company”).
WHEREAS, CITGO and the Company have
entered into a Distributor Franchise Agreement on or about August,
2000 (the “DFA”);
WHEREAS, CITGO and the Company have
entered into an Amended and Restated Addendum to that DFA on
February 11, 2003, (the “Addendum”); a First
Amendment to Amended and Restated Addendum to DFA on March 31,
2005, (the “First Amendment”); a Second Amendment to
Amended and Restated Addendum to DFA on October 11, 2005,
(Second Amendment); a Third Amendment to Amended and Restated
Addendum to DFA on March 24, 2006 (Third Amendment); the
Addendum and three amendments are collectively referred to as the
“Addendum” or “Addendum as amended”;
and
WHEREAS, CITGO and the Company
desire to amend the performance criteria and other terms and
conditions of the Addendum as amended.
NOW, THEREFORE in consideration of
the premises and covenants contained herein, it is agreed that the
Addendum as amended is further amended as follows:
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1.
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“Contract
Year”, as defined in Section 3 of the Second
Amendment shall be changed to now mean, “October 1, 2006
through September 30, 2007 and each subsequent twelve month
period thereafter.”
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2.
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The following
terminal shall be added to the list of terminals in
Section 3 , for which the [* * *] applies:
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“Kenner, LA”
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[***]
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Confidential
treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the
Commission.
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3.
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Section 7 of the Addendum as amended shall be replaced in
its entirety and shall now read:
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“ PERFORMANCE
CRITERIA :
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7.1.
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The [* * *] are
based on the Company purchasing a minimum aggregate volume (the
“Minimum Volume”) of [* * *] gallons per Contract Year
of Motor Fuels (“Motor Fuels” being defined as all
grades of gasoline, branded and unbranded, and diesel). If, through
no fault of the Company, the Company’s purchases of Motor
Fuels from CITGO during the Contract Year fall below the Minimum
Volume, then [* * *], and if [* * *].
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7.2.
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The parties
acknowledge that the current gasoline (branded and unbranded) and
distillate volumes being purchased each month are [* * *] gallons
and [* * *] gallons, respectively. The parties further acknowledge
that currently the company has branded a minimum of [* * *] CITGO
branded stations (the “Minimum CITGO Branded
Stations”). Effective December 1, 2006, the Company and
CITGO agree to reduce the Minimum CITGO Branded Stations from [* *
*] to [* * *], a reduction of [* * *] Stations. This reduction is
due to the Company’s closure of [* * *] Stations and the
debranding of [* * *] Stations. Therefore, effective
December 1, 2006, the Gasoline Contract Volume (branded and
unbranded) shall be [* * *] gallons per month and the Distillate
Contract Volume shall be [* * *] gallons per month.
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7.3
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The parties
agree that the Gasoline Contract Volume (branded and unbranded) for
the Contract Year beginning October 1, 2006, shall equal [* *
*] gallons (two months at [* * *] gallons and 10 months at [* * *]
gallons per month). The parties also agree that the Distillate
Contract Volume for the Contract Year beginning October 1,
2006, shall equal [* * *] gallons (two months at [* * *] gallons
and 10 months at [* * *] gallons per month). For subsequent
Contract Years, the Gasoline Contract Volume and the Distillate
Contract Volume shall be based upon the sum of their respective
monthly Contract Volumes effective as of December 1, 2006,
reduced by amounts described in Subsections 7.4 (i), (ii) and
(iii) below for the applicable Contract Year.
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[***]
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Confidential
treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the
Commission.
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2
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7.4
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Should the
number of Minimum CITGO Branded Stations fall below [* * *]
stations, the parties agree as follows:
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(i)
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The amount of
branded gasoline volume sold under this Addendum shall be reduced
by the volume of branded gasoline that is being sold at the
stations that are debranded.
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(ii)
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The amount of
unbranded gasoline volume sold under this Addendum shall be reduced
by an amount equal to [* * *] of the volume reduction of branded
gasoline described in (i) above,
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(iii)
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The amount of
unbranded distillate volume sold under the Addendum shall be
reduced by an amount equal to [* * *] of the distillate volume that
is being sold at the stations that are debranded.
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Any additional
changes to those described above to the Gasoline Contract Volume,
the Distillate Contract Volume, or to the number of Minimum CITGO
Branded Stations will be effective only upon the execution of an
amendment to this Addendum.
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7.5
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If through no
fault of the Company, the number of CITGO branded stations falls
below the Minimum CITGO Branded Stations, then the Company shall
have [* * *] to once again meet the Minimum CITGO Branded Stations
commitment (“[* * *] Day Cure Period”). CITGO may
terminate th
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