EXHIBIT 10.7(c)
EXECUTION VERSION
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDMENT, dated as of December 15, 2005 (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, 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").
WITNESSETH:
WHEREAS, the Borrower intends to acquire (the "Acquisition") certain
assets pursuant to the Purchase and Sale Agreement, dated as of November 3, 2005
(the "Acquisition Agreement"), among BP Products North America, Inc., as seller,
and Delek US Holdings, Inc., as purchaser, as amended, supplemented or otherwise
modified from time to time in accordance with the Credit Agreement;
WHEREAS, the Borrower has requested that the Revolving Credit Facility
be increased by an amount equal to $30,000,000 to finance a portion of the
consideration for the Acquisition and to pay related fees and expenses;
WHEREAS, the Lenders have agreed to permit the amount of the Revolving
Credit Facility to be increased on the terms and conditions set forth in this
Amendment and the Credit Agreement;
WHEREAS, the Borrower requested the Lenders make certain other
amendments to the Credit Agreement on the terms and subject to the conditions
set forth herein; and
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 (Defined Terms).
(a) Section 1.1 of the Credit Agreement is hereby amended by deleting the
definitions of "Facility," "Majority Facility Lenders," "Revolving Credit
Commitment," "Term Loan Facility" and "Term Loan Lender," in their respective
entireties and substituting in lieu thereof the following in the appropriate
alphabetical order:
"Facility": each of (a) the Term Loan Commitments and the Term
Loans made thereunder (the "Term Loan Facility"), (b) the Revolving Credit
Commitments and the extensions of credit made thereunder (the "Revolving
Credit Facility") and (c) the Incremental Loans made pursuant to Section
2.25, if any, (the "Incremental Facility").
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of (a) in the case of the Term Loan Facility, the
aggregate unpaid principal amount of the Term Loans other than the
Incremental Loans, (b) in the case of the Revolving Credit Facility, prior
to any termination of the Revolving Credit Commitments, the Total Revolving
Credit Commitments (or, if the Revolving Credit Commitments are no longer
in effect, the Total Revolving Extensions of Credit then outstanding) and
(c) in the case of the Incremental Loans, if any, the aggregate then unpaid
principal amount of the Incremental Loans.
"Revolving Credit Commitment": as to any Lender, the obligation
of such Lender, if any, to make Revolving Credit Loans and participate in
Letters of Credit and Swing Line Loans, in an aggregate principal and/or
face amount not to exceed the amount set forth under the heading "Revolving
Credit Commitment" opposite such Lender's name on Schedule 1 to the Lender
Addendum or New Lender Supplement delivered by such Lender, or, as the case
may be, in the Assignment and Acceptance pursuant to which such Lender
became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof and of the Third Amendment. The aggregate
amount of the Total Revolving Credit Commitments as of the Third Amendment
Effective Date is $70,000,000.
"Term Loan Facilities": the collective reference to the Term Loan
Facility and the Incremental Term Loan Facility.
"Term Loan Lenders": the collective reference to the Term Loan
Lenders and the Incremental Lenders, if any.
(b) Section 1.1 of the Credit Agreement is hereby further amended by
deleting the percentage "30%" in clause (a) of the definition of "Change of
Control" and substituting in lieu thereof the percentage "35%."
(c) Section 1.1 of the Credit Agreement is hereby further amended by
amending the definition of "Consolidated EBITDA" as follows
(i) by deleting the word "and" at the end of paragraph (vii);
(ii) by deleting the "." at the end of paragraph (viii) and
substituting in lieu thereof the following "; and"; and
(iii) by adding the following new paragraph:
"(ix) solely for the purpose of determining Consolidated EBITDA
for the following periods, Consolidated EBITDA shall, without duplication,
be increased as a result of the Acquisition by amounts deemed attributable
to the assets acquired in the Acquisition: (w) for the four fiscal quarters
ended December 31, 2005 by an amount equal to $5,100,000, (x) for the four
fiscal quarters ended March 31, 2006 by an amount equal to $3,825,000, (y)
for the four fiscal quarters ended June 30, 2006 by an amount equal to
$2,550,000 and (z) for the four fiscal quarters ended September 30, 2006 by
an amount equal to $1,275,000."
(d) Section 1.1 of the Credit Agreement is hereby further amended by
inserting the following new definitions in the appropriate alphabetical order:
"Acquisition": as defined in the Third Amendment.
"Acquisition Agreement": as defined in the Third Amendment.
"Acquisition Documentation": collectively, the Acquisition
Agreement and all schedules, exhibits, annexes and amendments thereto and
all side letters and agreements affecting the terms thereof or entered into
in connection therewith.
"Initial Term Loans": a collective reference to the Term Loans
outstanding on the Effective Date.
"Incremental Facility": as defined in the definition of
"Facility" in this Section 1.1.
"Incremental Lenders": as defined in Section 2.25.
"Incremental Loans": as defined in Section 2.25.
"New Lender Supplement": with respect to each bank, financial
institution or other entity which shall become a Revolving Credit Lender
hereunder pursuant to Section 10 of the Third Amendment.
"New Revolving Credit Lender": as defined in Section 2.26(b).
"Remaining Dollar-Years": with respect to any Term Loan at any
date, the sum of the products obtained by multiplying (a) the amount of
each remaining scheduled payment of principal by (b) the number of years
(calculated to the nearest twelfth) which will elapse between such date and
the making of such payment.
"Revolving Commitment Increase Notice": as defined in Section
2.26(a).
"Revolving Credit Increase Effective Date": as defined in Section
2.26(f).
"Revolving Offered Increase Amount": as defined in Section
2.26(a).
"Third Amendment": the Third Amendment to this Agreement, dated
as of December 15, 2005.
"Third Amendment Effective Date": the Third Amendment Effective
Date as defined in Section 11 of the Third Amendment, which date is
December 15, 2005.
"Weighted Average Life to Maturity": with respect to any Loan at
any date, the number of years obtained by dividing the Remaining
Dollar-Years of such Loan by the outstanding principal amount of such Loan.
3. Amendment to Section 2 of the Credit Agreement. (a) Section 2 of
the Credit Agreement is hereby further amended by inserting the following new
Sections in the appropriate numerical order:
"2.25 Incremental Loans. (a) At any time prior to the Revolving Credit
Termination Date, the Borrower may, by notice to the Administrative Agent
(which shall promptly deliver a copy to each of the Lenders), request the
addition of up to two new tranches of term loans (the "Incremental Loans").
The Incremental Loans shall:
(i) be in an aggregate principal amount up to $50,000,000 and be
made in up to two drawings, provided that, each borrowing shall be a
minimum amount of $20,000,000;
(ii) unless otherwise provided in this Agreement, be Term Loans
for all purposes hereunder (including for purposes of sharing of
Collateral and guarantees under the Guarantee and Collateral Agreement
and for the purposes of any optional or mandatory prepayment);
(iii) have such pricing as may be agreed by the Borrower and the
Lenders providing such Incremental Loans; provided that the applicable
margin for the Incremental Loans shall not exceed the Applicable
Margin then in effect for the Initial Term Loans plus 0.25%;
(iv) have the same or longer Weighted Average Life to Maturity as
the Initial Term Loans; and
(v) have a final maturity date occurring not earlier than the
date which, on the date the Incremental Loans are made, is the
scheduled final maturity date of the Initial Term Loans;
and shall otherwise have the same terms as the Term Loans (and, unless
otherwise noted in this Agreement, references to Term Loans shall be deemed
as the context requires to include references to the Incremental Loans).
The Borrower shall have the right to arrange for one or more banks or other
financial institutions (any such bank or other financial institution being
called an "Incremental Lender") to extend commitments to provide
Incremental Loans in an aggregate amount equal to the amount, if any, by
which the commitments by the Lenders to provide such Incremental Loans are
less than the amount thereof requested by the Borrower, provided that, each
Incremental Lender shall be subject to the approval of the Borrower and the
Administrative Agent (which approval shall not be unreasonably withheld).
No Lender shall have any obligation to make an Incremental Loan unless and
until it commits to do so. Commitments in respect of Incremental Loans
shall become Commitments under this Agreement pursuant to an amendment to
this Agreement executed by each of the Borrower, each Lender agreeing to
provide such Commitment, each Incremental Lender, if any, and the
Administrative Agent, and such amendments to the other Loan Documents
(executed by the relevant Loan Party and the Administrative Agent only) as
the Borrower and the Administrative Agent shall reasonably deem appropriate
to effect such purpose. For the avoidance of doubt, no amendment executed
for the purpose of making Commitments in respect of Incremental Loans
Commitments under this Agreement, shall require, as a condition to its
effectiveness, the signature of any Lender that is not obligated to make an
Incremental Loan under such amendment. The effectiveness of such amendment
shall be subject to the satisfaction on the date thereof and, if different,
on the date on which the Incremental Loans are made, of each of the
conditions set forth in paragraphs (a) and (b) of Section 5.2.
(b) Notwithstanding anything to the contrary contained in this
Agreement, (i) the Borrower may not make more than two requests pursuant to
Section 2.25 or pursuant to Section 2.26, provided that, it is understood
and agreed that the Borrower may, at its sole option, make one request
pursuant to each of Section 2.25 and Section 2.26 and (ii) the aggregate
amount of Incremental Loans requested by the Borrower pursuant to this
Section 2.25 plus the aggregate amount of increases of the Revolving Credit
Commitments pursuant to this Section 2.26 shall not exceed $50,000,000.
2.26 Increases in Revolving Credit Commitments. (a) At any time prior
to the Revolving Credit Termination Date, so long as no Default or Event of
Default has occurred and is continuing, the Borrower may, by notice to the
Administrative Agent (a "Revolving Commitment Increase Notice"), which
notice shall promptly be copied to each Lender, request an increase in the
Total Revolving Credit Commitments in an aggregate principal amount up to
$50,000,000 (the "Revolving Offered Increase Amount"), provided that each
such Revolving Offered Increase Amount shall be in a minimum amount of not
less than $10,000,000. The Borrower may, at its election, (i) offer one or
more of the Revolving Credit Lenders the opportunity to provide all or a
portion of any Revolving Offered Increase Amount pursuant to subparagraph
(c) below and/or (ii) with the consent of the Swing Line Lender, each
Issuing Lender and the Administrative Agent (which consent shall not be
unreasonably withheld), offer one or more additional banks, financial
institutions or other entities the opportunity to provide all or a portion
of such Revolving Offered Increase Amount pursuant to subparagraph (b)
below. Each Revolving Commitment Increase Notice shall specify which
Revolving Credit Lenders and/or banks, financial institutions or other
entities the Borrower desires to provide such Revolving Offered Increase
Amount. The Borrower or, if requested by the Borrower, the Administrative
Agent will notify such Revolving Credit Lenders, and/or banks, financial
institutions or other entities.
(b) Any additional bank, financial institution or other entity
that the Borrower selects to offer participation in any increased
Total Revolving Credit Commitments and that elects to become a party
to this Agreement and provide a Revolving Credit Commitment in an
amount so offered and accepted by it pursuant to clause (ii) of
Section 2.26(a) shall execute a New Lender Supplement with the
Borrower, the Swing Line Lender, each Issuing Lender and the
Administrative Agent, substantially in the form of Exhibit B to the
Third Amendment (a "New Lender Supplement"), whereupon such bank,
financial institution or other entity (herein called a "New Revolving
Credit Lender") shall become a Revolving Credit Lender for all
purposes and to the same extent as if originally a party hereto and
shall be bound by and entitled to the benefits of this Agreement,
provided that the Revolving Credit Commitment of any such New
Revolving Credit Lender shall be in an amount not less than
$5,000,000.
(c) Any Revolving Credit Lender that accepts an offer to it by
the Borrower to increase its Revolving Credit Commitment pursuant to
clause (i) of Section 2.26(a) shall, in each case, execute a
"Commitment Increase Supplement" with the Borrower, the Swing Line
Lender, each Issuing Lender and the Administrative Agent,
substantially in the form of Exhibit C to the Third Amendment,
whereupon such Revolving Credit Lender shall be bound by and entitled
to the benefits of this Agreement with respect to the full amount of
its Revolving Credit Commitment as so increased.
(d) On any Revolving Credit Increase Effective Date, (i) each
bank, financial institution or other entity that is a New Revolving
Credit Lender pursuant Section 2.26(b) or any Revolving Credit Lender
that has increased its Revolving Credit Commitment pursuant to Section
2.26(c) shall make available to the Administrative Agent such amounts
in immediately available funds as the Administrative Agent shall
determine, for the benefit of the other relevant Revolving Credit
Lenders, as being required in order to cause, after giving effect to
such increase and the use of such amounts to make payments to such
other relevant Revolving Credit Lenders, each Revolving Credit
Lender's portion of the outstanding Revolving Credit Loans of all the
Lenders to equal its Revolving Credit Percentage of such Revolving
Credit Loans and (ii) the Borrower shall be deemed to have repaid and
reborrowed all outstanding Revolving Credit Loans of all the Revolving
Credit Lenders to equal its Revolving Credit Percentage of such
outstanding Revolving Credit Loans as of the date of any increase in
the Revolving Credit Commitments (with such reborrowing to consist of
the Types of Loans, with related Interest Periods if applicable,
specified in a notice delivered by the Borrower in accordance with the
requirements of Section 2.5). The deemed payments made pursuant to
clause (ii) of the immediately preceding sentence in
respect of each Eurodollar Loan shall be subject to indemnification by
the Borrower pursuant to the provisions of Section 2.19 if the deemed
payment occurs other than on the last day of the related Interest
Periods.
(e) Notwithstanding anything to the contrary in this Section
2.26, (i) in no event shall any transaction effected pursuant to this
Section 2.26 cause the sum of Total Revolving Credit Commitments and
outstanding Term Loans to exceed $285,000,000, (ii) subject to Section
2.25(b), in no event may the Borrower deliver more than two Revolving
Commitment Increase Notices, (iii) subject to Section 2.25(b), in no
event shall there be more than two Revolving Credit Increase Effective
Dates and (iv) no Lender shall have any obligation to increase its
Revolving Credit Commitment unless it agrees to do so in its sole
discretion.
(f) The increase in the Revolving Credit provided pursuant to
this Section 2.26 shall be effective on the date (the "Revolving
Credit Increase Effective Date") the Administrative Agent, for the
benefit of the Lenders receives (i) a legal opinion of counsel to the
Borrower covering such matters as are customary for transactions of
this type and such other matters as may be reasonably requested by the
Administrative Agent and (ii) certified copies of resolutions of the
Borrower authorizing such Revolving Offered Increase Amount."
4. Amendment to Section 2.16 of the Credit Agreement (Pro Rata
Treatment and Payments). Section 2.16(b) of the Credit Agreement is hereby
amended by inserting the following new sentence at the beginning thereof:
"Each mandatory prepayment required by Section 2.10 to be applied to Term
Loans shall be allocated among the Term Loan Facilities pro rata according
to the respective outstanding principal amounts of Term Loans under such
Facilities. Each optional prepayment in respect of the Term Loans shall be
allocated among the Term Loan Facilities pro rata according to the
respective outstanding principal amounts of Term Loans under such
Facilities, except in the case of the prepayment and replacement of the
Term Loans under any Facility in the circumstances described in the last
paragraph of Section 10.1."
5. Amendments to Section 7.6 of the Credit Agreement (Limitation on
Restricted Payments). (a) Section 7.6(c) of the Credit Agreement is hereby
amended by deleting the amount "$100,000" and substituting in lieu thereof the
amount "$1,000,000."
(b) Section 7.6(e) of the Credit Agreement is hereby amended by
deleting the date "July 1, 2007" and substituting in lieu thereof the date
"July 1, 2006."
6. Amendment to Section 7.8 of the Credit Agreement (Limitation on
Investments). Section 7.8 is hereby amended by (i) deleting the word "and" at
the end of Section 7.8(f), (ii) deleting the period at the end of Section 7.8(g)
and substituting in lieu thereof the word "; and" and (iii) inserting in the
appropriate order the following new Section 7.8(h):
"(h) the Acquisition may be consummated on the Third Amendment
Effective Date."
7. Amendment to Section 7 of the Credit Agreement (Negative
Covenants). Section 7 of the Credit Agreement is hereby amended by inserting the
following new Section 7.18 in the appropriate numerical order:
"7.18 Limitation on Amendments to Acquisition Documentation, (a)
Amend, supplement or otherwise modify (pursuant to a waiver or otherwise)
the terms and conditions of the indemnities and licenses furnished to the
Borrower or any of its Subsidiaries pursuant to the Acquisition
Documentation such that after giving effect thereto such indemnities or
licenses shall be materially less favorable to the interests of the Loan
Parties or the Lenders with respect thereto or (b) otherwise amend,
supplement or otherwise modify the terms and conditions of the Acquisition
Documentation except to the extent that any such amendment, supplement or
modification could not reasonably be expected to have a Material Adverse
Effect."
8. Amendment to Section 10.1 of the Credit Agreement (Amendments and
Waivers). Section 10.1 of the Credit Agreement is hereby amended by inserting
immediately following the second sentence thereof the following:
"In addition to the amendments described above, and notwithstanding
anything in this Section 10.1 to the contrary, any amendment to this
Agreement or other Loan Documents to effectuate (i) the Incremental
Facility or (ii) a Revolving Offered Increase Amount, may be effected as
contemplated by Section 2.25 and Section 2.26, respectively."
9. Amendment to Schedule 1.1 A (Mortgaged Property) and Schedule 1.1B
(Real Property) of the Credit Agreement. Schedules 1.1A and 1.1B of the Credit
Agreement are hereby amended by adding the information on Annex I (the "New
Mortgaged Properties") hereto to each of such Schedules.
10. Revolving Credit Commitment Increase. (a) Any additional bank,
financial institution or other entity which the Borrower selects to offer
participation in the increased Total Revolving Credit Commitments and which
elects to become a party to the Amended Credit Agreement (as defined below) and
obtain a Revolving Credit Commitment in an amount so offered and accepted by it
shall execute a New Lender Supplement with the Borrower, the Administrative
Agent, the Swing Line Lender and the Issuing Lenders, substantially in the form
of Exhibit B (a "New Lender Supplement"), whereupon such bank, financial
institution or other entity (herein called a "New Revolving Credit Lender")
shall become a Revolving Credit Lender for all purposes and to the same extent
as if originally a party hereto and shall be bound by and entitled to the
benefits of the Amended Credit Agreement, provided that, the Revolving Credit
Commitment of any such New Revolving Credit Lender shall be in an amount not
less than $5,000,000.
(b) Any Revolving Credit Lender that elects to increase its Revolving
Credit Commitment shall execute a Revolving Credit Commitment Increase
Supplement with the Borrower, the Administrative Agent, the Swing Line Lender
and the Issuing Lenders,
substantially in the form of Exhibit C (a "Commitment Increase Supplement"),
whereupon such Revolving Credit Lender shall be bound by and entitled to the
benefits of the Amended Credit Agreement with respect to the full amount of its
Revolving Credit Commitment as so increased.
(c) Additional Revolving Credit Loans made on or after the Third
Amendment Effective Date shall be made pro rata based on the Revolving Credit
Percentages in effect on and after the Third Amendment Effective Date. In the
event that on the Third Amendment Effective Date there is an unpaid principal
amount of Base Rate Loans, the Borrower shall make prepayments thereof and
borrowings of Base Rate Loans so that, after giving effect thereto, the Base
Rate Loans outstanding are held pro rata based on such new Revolving Credit
Percentages. In the event that on the Third Amendment Effective Date there is an
unpaid principal amount of Eurodollar Loans, the Borrower shall make prepayments
thereof and borrowings of Eurodollar Loans so that, after giving effect thereto,
the Eurodollar Loans outstanding are held pro rata based on such new Revolving
Percentages, together with any amounts payable pursuant to Section 2.19 of the
Amended Credit Agreement, if any. The Lenders (which are Revolving Lenders under
the Credit Agreement (prior to giving effect to this Amendment), the "Existing
Credit Agreement") hereby waive any requirements for notice of prepayment and
minimum amounts of prepayments of Revolving Credit Loans (as defined in the
Existing Credit Agreement) under the Existing Credit Agreement to the extent
such notice or minimum amounts are required under the Existing Credit Agreement.
(d) As of the Third Amendment Effective Date, the Total Revolving
Credit Commitments shall be increased from $40,000,000 to $70,000,000.
11. Conditions to Effectiveness. This Amendment shall become effective
upon the date (the "Third 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) New Lender Supplements and Commitment Increase Supplements. The
Administrative Agent shall have received (i) a New Lender Supplement,
substantially in the form of Exhibit B to the Third Amendment, duly
executed and delivered by each New Revolving Credit Lender, and (ii) a
Commitment Increase Supplement, substantially in the form of Exhibit C to
the Third Amendment duly executed and delivered by each Revolving Credit
Lender increasing its Revolving Credit Commitment pursuant to Section
10(b), representing additional Revolving Credit Commitments in an aggregate
amount equal to $30,000,000.
(d) Lender Consent Letter. A Lender Consent Letter, substantially in
the form of Exhibit D (a "Lender Consent Letter"), duly executed and
delivered by the Required Lenders and the Required Prepayment Lenders (in
each case, as defined in the Existing
Credit Agreement) (it being agreed that the execution of a Commitment
Increase Supplement shall be deemed to constitute the delivery of a Lender
Consent Letter by a Lender, in its capacity as a Lender under the Existing
Credit Agreement).
(e) Amendment Fee. The Administrative Agent shall have received an
amendment fee for the account of each Lender that executes and delivers to
the Administrative Agent a Lender Consent Letter at or prior to 5:00 P.M.,
New York City time, on December 15, 2005, in an amount equal to 0.10% of
the Aggregate Exposure of such Lender.
(f) Acquisition, etc. The following transactions shall have been
consummated substantially contemporaneously, in each case on terms and
conditions reasonably satisfactory to the Lenders:
(i) the Borrower shall have received a cash equity contribution
from Holdings in an amount equal to at least $7,500,000; and
(ii) the Acquisition shall have been consummated as set forth in
the Acquisition Agreement, and no provision thereof shall have been
waived, amended, supplemented or otherwise modified in a manner that
would reasonably be expected to be materially adverse to the Lenders
without the prior written consent of the Lenders.
(g) Related Agreements. The Administrative Agent shall have received
(in a form reasonably satisfactory to the Administrative Agent), true and
correct copies, certified as to authenticity by the Borrower, of (i) the
Acquisition Agreement and (ii) such other documents or instruments as may
be reasonably requested by the Administrative Agent, including, without
limitation, a copy of any debt instrument, security agreement or other
material contract to which the Loan Parties may be a party.
(h) Mortgages. The Administrative Agent shall have received (i) a
Mortgage covering each of the New Mortgaged Properties and (ii) with
respect to each of the Mortgages in effect on the Third Amendment Effective
Date, a mortgage amendment (each, a "Mortgage Amendment"), substantially in
the form of Exhibit E (with such changes thereto as shall be advisable or
required under the law of the jurisdiction in which such Mortgage Amendment
is to be recorded, as the Administrative Agent on or before the Third
Amendment Effective Date shall reasonably determine is necessary to
maintain the priority of the first mortgage Lien encumbering the relevant
Mortgaged Property), executed and delivered by a duly authorized officer of
the relevant Loan Party.
(i) Title Insurance; Flood Insurance. (i) If requested by the
Administrative Agent, the Administrative Agent shall have received, and the
title insurance company issuing the policy referred to in clause (ii) below
(the "Title Insurance Company") shall have received, maps or plats of an
as-built survey of the sites of the New Mortgaged Properties, dated a date
reasonably satisfactory to the Administrative Agent and the Title Insurance
Company by an independent professional licensed land surveyor reasonably
satisfactory to the Administrative Agent and the Title Insurance
Company, which maps or plats and the surveys on which they are based shall
be in form and substance reasonably satisfactory to the Administrative
Agent and the Title Insurance Company and which shall in any event be
sufficient to enable the Title Insurance Company to issue the title
policies referred to below without the standard survey exception and
include therein all survey dependant endorsements reasonably requested by
the Administrative Agent.
(ii) The Administrative Agent shall have received in respect of
each New Mortgaged Property a mortgagee's title insurance policy (or
policies) or marked up unconditional binder for such insurance. Each
such policy shall (A) be in an amount satisfactory to the
Administrative Agent; (B) be issued at ordinary rates; (C) insure that
the Mortgage insured thereby creates a valid first Lien on such New
Mortgaged Property free and clear of all defects and encumbrances,
except as disclosed therein and are determined by the Administrative
Agent to be acceptable; (D) name the Administrative Agent for the
benefit of the Secured Parties as the insured thereunder; (E) be in
the form of ALTA Loan Policy - 1970 (Amended 10/17/70 and 10/17/84)
(or equivalent policies); (F) contain such endorsements and
affirmative coverage as the Administrative Agent may reasonably
request and (G) be issued by title companies satisfactory to the
Administrative Agent (including any such title companies acting as
co-insurers or reinsurers, at the option of the Administrative Agent).
The Administrative Agent shall have received evidence satisfactory to
it that all premiums in respect of each such policy, all charges for
mortgage recording tax, and all related expenses, if any, have been
paid.
(iii) The Administrative Agent shall have received (A) a policy
of flood insurance that (1) covers any parcel of improved real
property that is encumbered by any Mortgage to the extent the
applicable New Mortgaged Property is located in an area designated as
a special flood zone hazard by the Secretary of Housing and Urban
Development, (2) is written in an amount not less than the outstanding
principal amount of the indebtedness secured by such Mortgage that is
reasonably allocable to such real property or the maximum limit of
coverage made available with respect to the particular type of
property under the National Flood Insurance Act of 1968, whichever is
less, and (3) has a term ending not later than the maturity of the
indebtedness secured by such Mortgage or that may be extended to such
maturity date and (B) confirmation that the Borrowers have received
the notice required pursuant to Section 208(e)(3) of Regulation H of
the Board.
(iv) The Administrative Agent shall have received a copy of all
recorded documents referred to, or listed as exceptions to title in,
the title policy or policies referred to in clause (ii) above and a
copy of all other material documents affecting the New Mortgaged
Properties.
(j) Appraisals; Leasehold Property Requirements. The Administrative
Agent shall have received a satisfactory appraisal of all fee owned and
leasehold properties from a firm reasonably satisfactory to the
Administrative Agent for each New Mortgaged
Property on the Third Amendment Effective Date, provided that, with respect
to such New Mortgaged Property consisting of leasehold interests, (A) the
Borrower has delivered on or prior to the Third Amendment Effective Date a
related lease in recordable form (or a memorandum thereof in recordable
form) (unless under applicable law such recorded instrument is not
necessary in order for the Administrative Agent to have a perfected Lien on
the applicable New Mortgaged Property), (B) the applicable landlord
executes and delivers an agreement substantially the form attached as
Exhibit D-4 to the Credit Agreement, with such changes thereto as may be
reasonably approved by the Administrative Agent, and (C) a recent survey of
the related leased real property conforming to Section 11(i)(i),
reasonably satisfactory to the Administrative Agent (subject, in the case
of surveys, to exceptions consented to by the Administrative Agent in its
sole discretion).
(k) Environmental Matters. The Lenders shall have received a
satisfactory environmental review with respect to the New Mortgaged
Properties specified on Annex I.
(l) 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 Third Amendment Effective Date. All such amounts will be paid
with proceeds of Revolving Credit Loans made on the Third Amendment
Effective Date and will be reflected in the funding instructions given by
the Borrower to the Administrative Agent on or before the Third Amendment
Effective Date.
(m) Resolutions, etc. On or before the Third 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.
(n) Borrower Certificate. The Administrative Agent shall have received
a certificate of the Borrower, dated the Third Amendment Effective Date, in
form and substance reasonably satisfactory to the Administrative Agent.
(o) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Fulbright & Xxxxxxxx L.L.P., counsel to
the Loan Parties, substantially in the form of Exhibit F; and
(ii) the legal opinion of local counsel in each of Alabama,
Arkansas, Tennessee, Mississippi, Louisiana and Virginia.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Amendment as the Administrative Agent may
reasonably require and shall be addressed to the Administrative Agent and
the Lenders.
(p) Consents, Approvals, etc. All material governmental and third
party approvals necessary in connection with the increase in the Revolving
Credit Facility, the Acquisition, the continuing operations of the Loan
Parties and the other transactions contemplated hereby shall have been
obtained and be in full force and effect.
12. 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 consummate the Acquisition and
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 consummate the Acquisition and 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 consummation of the Acquisition, 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, the
consummation of the Acquisition 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 Third 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 Third
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.
13. 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.
14. 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.
15. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16. 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).
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/ Uzi Yemin
--------------------------------
Name: Uzi Yemin
------------------------------
Title: President
-----------------------------
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
------------------------------
Title: CFO
-----------------------------
XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
