EXHIBIT 10.7(a)
EXECUTION COPY
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT, dated as of August 18, 2005 (this "Amendment"), to
the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 28, 2005 (as
amended, supplemented or otherwise modified in writing from time to time, the
"Credit Agreement"), among MAPCO EXPRESS, INC., a Delaware corporation ("MAPCO
Express"), and MAPCO FAMILY CENTERS, INC., a Delaware corporation ("MAPCO
Family"), the several banks and other financial institutions or entities from
time to time parties thereto (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").
WITNESSETH:
WHEREAS, MAPCO Express, MAPCO Family and the Lenders are parties to
the Credit Agreement;
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make certain loans and other extensions of credit to MAPCO Express and MAPCO
Family;
WHEREAS, on June 24, 2005, MAPCO Family merged into and with MAPCO
Express, and MAPCO Express was the surviving entity (the "Borrower");
WHEREAS, the Borrower has requested that the Lenders make certain
amendments to the Credit Agreement; and
WHEREAS, the Lenders agree 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 (Definitions). (a) Section 1.1 to the
Credit Agreement is hereby amended by (x) deleting the word "and" at the end of
paragraph (v) of the definition of "Consolidated EBITDA", (y) deleting the
period at the end of paragraph (vi) of such definition and substituting in lieu
thereof";", and (z) adding the following paragraphs (vii) and (viii) of the
definition of "Consolidated EBITDA" in the appropriate numerical order:
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"(vii) solely for the purpose of determining Consolidated EBITDA for
each period of four consecutive fiscal quarters ended on June 30, 2005 and
September 30, 2005, (A) Consolidated EBITDA for the period of four
consecutive fiscal quarters ending June 30, 2005, shall be increased by
$1,550,000 and (B) Consolidated EBITDA for the period of four consecutive
fiscal quarters ending September 30, 2005, shall be increased by $775,000,
in each case, representing the rebate deemed to be received by the Borrower
pursuant to the XxXxxx Distribution Service Agreement during such periods;
and
(viii) solely for the purpose of determining Consolidated EBITDA for
each period of four consecutive fiscal quarters ended on June 30, 2005 and
September 30, 2005, Consolidated EBITDA shall be increased by $220,000 and
$200,000, representing (y) the amount actually paid by the Borrower and its
Subsidiaries on account of legal fees and (z) an amount equal to payments
made by MAPCO Express to the State of Tennessee's Division of Underground
Storage Tanks Fund, respectively."
(b) Section 1.1 to the Credit Agreement is hereby further amended by
adding the following proviso at the end of the definition of "Consolidated Fixed
Charges":
"provided, that for the purpose of determining Consolidated Fixed
Charges for the fiscal quarters of the Borrower ending June 30, 2005,
September 30, 2005 and December 31, 2005, Consolidated Fixed Charges for
the relevant period (i) shall be deemed to equal Consolidated Fixed Charges
for such fiscal quarter (and, in the case of the latter two such
determinations, each previous fiscal quarter commencing after the Effective
Date) multiplied by 4, 2 and 4/3, respectively and (ii) shall exclude any
payment of scheduled amortization made on account of the Existing Credit
Facilities during such period."
(c) Section 1.1 to the Credit Agreement is hereby further amended by
deleting the parenthetical in the definition of "FQ1", "FQ2", "FQ3" and "FQ4"
and substituting in lieu thereof the following:
"(e.g., FQ1 2005 means the first fiscal quarter of the Borrowers' 2005
fiscal year, which ends Xxxxx 00, 0000)."
(x) Section 1.1 to the Credit Agreement is hereby further amended by
inserting at the end of the first sentence of the definition of "Indebtedness"
the following:
";provided that, solely for the purposes of calculating the financial
ratios set forth in Section 7.1 and calculating the Consolidated Leverage
Ratio for purposes of determining the Applicable Margin, "Indebtedness"
shall exclude the MFC Intercompany Debt."
3. Conditions to Effectiveness. This Amendment shall become effective
upon the date (the "Amendment Effective Date") on which the following conditions
have been satisfied:
(a) The Administrative Agent shall have received this Amendment,
executed and delivered by a duly authorized officer of the Borrower.
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(b) The Administrative Agent shall have received an Acknowledgment and
Consent, substantially in the form of Exhibit A hereto, duly executed and
delivered by each Grantor (as defined in the Guarantee and Collateral
Agreement) and Delek US Holdings, Inc.
(c) The Administrative Agent shall have received a Lender Consent
Letter, substantially in the form of Exhibit B (a "Lender Consent Letter"),
duly executed and delivered by the Required Lenders.
(d) 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
Amendment Effective Date.
(e) On or before the Amendment Effective Date, all corporate and other
proceedings taken or to be taken in connection with this Amendment shall be
reasonably satisfactory in form and substance to Administrative Agent and
its counsel, and Administrative Agent and such counsel shall have received
all such counterpart originals or certified copies of such documents as
Administrative Agent may reasonably request.
4. Representations and Warranties. The Borrower hereby represents and
warrants to the Administrative Agent and each Lender that (before and after
giving effect to this Amendment):
(a) Each Loan Party that is a party to this Amendment has the
corporate power and authority, and the legal right, to make, deliver and
perform this Amendment. Each Loan Party that is a party to this Amendment
has taken all necessary corporate or other action to authorize the
execution, delivery and performance of this Amendment. 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 this Amendment or the execution, delivery, performance, validity or
enforceability of this Amendment. This Amendment has been duly executed and
delivered on behalf of each Loan Party that is a party thereto. This
Amendment 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 this Amendment will not
violate any material Requirement of Law or any Contractual Obligation of
the Borrower or any of its respective 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).
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(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 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
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 this Amendment.
5. 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.
6. 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 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.
7. GOVERNING LAW; Miscellaneous. (a) THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
(b) 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. Delivery of an executed signature page of this
Agreement or of a Lender Consent Letter by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
(c) 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).
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 Borrower
By: /s/ Uzi Yemin
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Name: Uzi Yemin
Title: President
By: /s/ Xx Xxxxxx
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Name: Xx Xxxxxx
Title: Chief Financial Officer
XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent
By:
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Name:
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Title:
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[Signature Page to Amendment]
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 Borrower
By:
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Name:
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Title:
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By:
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Name:
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Title:
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XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent
By: /s/ V. Xxxx Xxxxxxxx
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Name: V. Xxxx Xxxxxxxx
Title: Authorized Signatory
[Signature Page to Amendment]
