FIRST AMENDED & RESTATED MANAGEMENT & CONSULTING AGREEMENT
Exhibit 10.8
FIRST AMENDED & RESTATED MANAGEMENT & CONSULTING AGREEMENT
This First Amended and Restated Management and Consulting Agreement (the “Agreement”) is dated
effective May 1, 2011, by and between DELEK US HOLDINGS, INC. (“Delek US”), a Delaware corporation
with principal offices located at 0000 Xxxxxxxx Xxx, Xxxxxxxxx, XX 00000 and and DELEK GROUP LTD.
(“Delek Group”), 0, Xxxxxxx Xxxxxx Xx., P.O.B. 8464, Industrial Xxxx Xxxxx, Xxxxxxx 00000, Xxxxxx.
Whereas, Delek US owns and operates retail fuel and convenience stores in the southeastern
United States, wholesale refined products distribution facilities in west Texas and petroleum
refineries in Tyler, Texas and El Dorado, Arkansas;
Whereas, Delek Group is a retailer of refined petroleum products in Israel, and indirectly
owns a majority of the issued and outstanding stock of Delek US;
Whereas, Delek Group’s management has significant expertise and skill in the industries in
which Delek US operates; and
Whereas, Delek US and Delek Group desire to enter into this Agreement to confirm the terms of
Delek Group’s managing and consulting services to be rendered to Delek US.
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, for themselves, their successors and assigns, hereby agree as
follows:
1. Description of Services. As used in this Agreement, the term “Services” shall mean
the various services Delek Group agrees to provide Delek US under the terms of this Agreement. The
Services shall be performed by Delek Group’s key management personnel, and shall include, without
limitation: (a) assisting Delek US in planning its long-term goals and budgets; (b) assisting Delek
US evaluate ring technology for its fuel pumps; (c) helping Delek US identify and evaluate
potential acquisitions in the retail fuel, wholesale fuel and petroleum refining industries; (d)
assisting Delek US evaluate opportunities to further diversify its business into upstream energy
industry interests; (e) providing capital structure advice; (f) identifying sources of financing;
(g) negotiating credit facilities and other financings; and (h) providing credit support.
2. Purchase & Sale of Services. Delek Group agrees to provide the Services to Delek
US (or procure the provision of the Services for Delek US). Delek US agrees to purchase the
Services from Delek Group on the terms and subject to the conditions of this Agreement and in
consideration of the fees and costs described below.
3. Quarterly Management Fee. In consideration of the Services provided by Delek Group
hereunder, Delek US shall pay Delek Group a quarterly management fee of one hundred twenty-five
thousand U.S. dollars (US $125,000) (the “Management Fee”) payable within ninety (90) days
following the end of each calendar quarter. Effective April 1, 2011, the Management Fee shall
increase to one hundred fifty thousand U.S. dollars ($150,000).
4. Pass-Through Costs. In addition to the Management Fee set forth above, Delek US
shall reimburse Delek Group for reasonable, third-party, out-of-pocket costs and expenses actually
incurred by Delek Group on behalf of Delek US under this Agreement (the “Pass-Through Costs”). If
Delek Group incurs any such costs or expenses on behalf of both Delek US and other businesses owned
and/or operated by Delek Group, Delek Group shall allocate any such costs or expenses in good faith
between the various interests on behalf of which such costs or expenses were incurred. Delek Group
shall apply usual and accepted accounting conventions in making such allocations, and shall keep
and maintain such books and records as may be reasonably necessary to make such allocations. Delek
Group shall provide Delek US with written verification of the Pass-Through Costs upon Delek US’
reasonable request.
5. Standard of Service. Except as otherwise agreed with Delek US or described in this
Agreement, Delek Group agrees to perform the Services in good faith, and that the nature, quality,
and standard of care applicable to the delivery of the Services hereunder shall be substantially
the same as that which Delek Group provides from time to time throughout its businesses. Subject
to the obligations set forth in this Agreement, the management of and control over the provision of
the Services shall reside solely with Delek Group.
6. Limitation of Liability.
(a) Delek US agrees that neither Delek Group nor its directors, officers, agents, and
employees (each, a “Delek Group Indemnified Person”) shall have any liability, whether direct or
indirect, in contract or tort or otherwise, to Delek US or any other person or entity for or in
connection with the Services rendered or to be rendered by any Delek Group Indemnified Person
pursuant to this Agreement, the transactions contemplated hereby or the actions or inactions of any
Delek Group Indemnified Person in connection with any such Services or transactions. The foregoing
limitation of liability shall not apply to damages which have resulted from the gross negligence or
willful misconduct of a Delek Group Indemnified Person in connection with any Services, actions or
inactions.
(b) Notwithstanding the provisions of Section 6(a), Delek Group shall not be liable for any
special, indirect, incidental, or consequential damages of any kind whatsoever (including, without
limitation, attorneys’ fees) in any way due to, resulting from or arising in connection with any of
the Services or the performance of or failure to perform Delek Group’s obligations under this
Agreement. This disclaimer applies without limitation (i) to claims arising from the provision of
the Services or any failure or delay in connection therewith; (ii) to claims for lost profits;
(iii) regardless of the form of action, whether in contract, tort (including negligence), strict
liability, or otherwise; and (iv) regardless of whether such damages are foreseeable or whether
Delek US has been advised of the possibility of such damages.
(c) Delek Group shall have no liability to Delek US or any other person or entity for failure
to perform Delek Group’s obligations under this Agreement or otherwise, where (i) such failure to
perform is not caused by the gross negligence or
willful misconduct of Delek Group and (ii) such failure to perform similarly affects Delek
Group and does not have a disproportionately adverse effect on Delek US.
(d) Delek US agrees that it shall, in all circumstances, use commercially reasonable efforts
to mitigate and otherwise minimize its damages, whether direct or indirect, due to, resulting from
or arising in connection with any failure by Delek Group to comply fully with its obligations under
this Agreement.
(e) Notwithstanding the foregoing provisions of this Section 6, in the event of a substantial
and continuing failure on the part of Delek Group to provide or procure any Services, where such
failure is reasonably expected to have a material adverse effect on Delek US, Delek US shall be
entitled to seek specific performance to cause Delek Group to provide or procure such Services.
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7. Indemnification of Delek Group by Delek US. Delek US agrees to indemnify and hold
harmless each Delek Group Indemnified Person from and against any damages, and to reimburse each
Delek Group Indemnified Person for all reasonable expenses as they are incurred in investigating,
preparing, pursuing, or defending any claim, action, proceeding, or investigation, whether or not
in connection with pending or threatened litigation and whether or not any Delek Group Indemnified
Person is a party (collectively, “Actions”), arising out of or in connection with Services rendered
or to be rendered by any Delek Group Indemnified Person pursuant to this Agreement, the
transactions contemplated hereby or any Delek Group Indemnified Person’s actions or inactions in
connection with any such Services or transactions. Despite the foregoing, Delek US shall not be
responsible for any damages of any Delek Group Indemnified Person that have resulted from the gross
negligence or willful misconduct of such Delek Group Indemnified Person in connection with any of
the advice, actions, inactions, or Services referred to above.
8. Indemnification of Delek US by Delek Group. Delek Group agrees to indemnify and
hold harmless Delek US and its respective directors, officers, agents, and employees (each, a
“Delek US Indemnified Person”) from and against any damages, and shall reimburse each Delek US
Indemnified Person for all reasonable expenses (including reasonable attorneys’ fees) as they are
incurred in investigating, preparing, or defending any Action, arising out of the gross negligence
or willful misconduct of any Delek Group Indemnified Person in connection with the Services
rendered or to be rendered pursuant to this Agreement.
9. Term. Except as otherwise provided in this Agreement, the term of this Agreement
(the “Term”) shall commence on January 1, 2006, and continue through December 31, 2006.
Thereafter, the Term shall renew quarterly subject to either party’s right to terminate the
Agreement for any reason by serving at least thirty (30) days advance written notice of
termination. In the event that termination does not occur at the end of a calendar quarter, the
Management Fee shall be prorated through the date of termination.
10. Termination for Failure to Perform Obligations.
(a) Delek Group may terminate any Service at any time if: (i) Delek US fails to perform any of
its material obligations under this Agreement relating to the Service; (ii) Delek Group has
notified Delek US in writing of such failure, and (iii) such failure has continued for a period of
ninety (90) days after Delek US’ receipt of written notice of such failure.
(b) Delek US may terminate any Service at any time if: (i) Delek Group fails to perform any of
its material obligations under this Agreement relating to the Service; (ii) Delek US has notified
Delek Group in writing of such failure; and (iii) such failure has continued for a period of ninety
(90) days after Delek Group’s receipt of written notice of such failure.
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11. Confidential Information. The parties hereby covenant and agree to hold in trust
and maintain confidential all information marked as confidential by the disclosing party or that
should otherwise be reasonably understood as confidential by the receiving party.
12. No Agency. Nothing in this Agreement shall constitute or be deemed to constitute
a partnership or joint venture between the parties hereto or constitute or be deemed to constitute
any party the agent or employee of the other party for any purpose whatsoever. Neither party shall
have the authority or power to bind the other or to contract in the name of, or create a liability
against, the other in any way or for any purpose.
13. Subcontractors. Delek Group may hire or engage one or more subcontractors to
perform all or any of its obligations under this Agreement; provided that (subject to Section 6)
Delek Group shall in all cases remain primarily responsible for all obligations undertaken by it
herein.
14. Force Majeure.
(a) For purposes of this Section, “Force Majeure” means an event beyond the control of either
party, which by its nature could not have been foreseen by such party, or, if it could have been
foreseen, was unavoidable, and includes without limitation, acts of God, storms, floods, riots,
fires, sabotage, civil commotion or civil unrest, terrorism, interference by civil or military
authorities, acts of war (declared or undeclared) and failure of energy sources.
(b) Delek Group shall be under no liability for failure to fulfill any obligation under this
Agreement, so long as and to the extent to which the fulfillment of such obligation is prevented,
frustrated, hindered, or delayed as a consequence of circumstances of Force Majeure. However,
Delek Group must exercise commercially reasonable efforts to minimize the effect of Force Majeure
on its obligations hereunder.
(c) Promptly upon becoming aware of Force Majeure causing a delay in performance or preventing
performance of any obligations imposed by this Agreement (and the termination of such delay), the
party affected shall give written notice to the other party giving details of the same, including
particulars of the actual
and, if applicable, estimated continuing effects of such Force Majeure on the obligations of
the party whose performance is prevented or delayed. If such notice shall have been duly given,
any actual delay resulting from such Force Majeure shall be deemed not to be a breach of this
Agreement, and the period for performance of the obligation to which it relates shall be extended
accordingly. However, if the Force Majeure results in the performance of a party being delayed by
more than sixty (60) days, the other party shall have the right to terminate the Agreement with
respect to all Services affected by such delay forthwith by written notice.
16. Information. Delek US agrees to provide Delek Group with reasonable access to all
information Delek Group reasonably deems necessary to provide its Services hereunder. Subject to
applicable law and privileges, each party hereto covenants and agrees to provide the other party
with, and to the disclosure to third parties of, all information regarding itself and transactions
under this Agreement (including the Agreement itself) that the other party reasonably believes are
required to comply with all applicable federal, state, county and local laws, ordinances,
regulations and codes, including, but not limited to, securities laws and regulations.
17. Notices. All notices and other communications to any party hereunder shall be in
writing and shall be deemed given when received by signature or confirmed facsimile receipt.
18. Severability. If any provision of this Agreement shall be found invalid or
unenforceable, such invalidity or unenforceability shall not render the entire Agreement invalid.
Rather, the Agreement shall be construed as if not containing the particular invalid or
unenforceable provision, and the rights and obligations of each party shall be construed and
enforced accordingly.
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19. Amendments; No Waivers. Any provision of this Agreement may be amended or waived
if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by
Delek Group and Delek US, or in the case of a waiver, by the party against whom the waiver is to be
effective. No failure or delay by any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
20. Successors & Assigns. Neither party may assign, delegate or otherwise transfer
any of its rights or obligations under this Agreement without the consent of the other party.
21. Governing Law & Venue. This Agreement shall be construed in accordance with and
governed by the law of the State of Tennessee, without regard to the conflicts of laws rules
thereof. The exclusive venue for any litigation arising under this Agreement shall be the state
and federal courts for Nashville, Tennessee. Accordingly, the parties hereby submit to the
jurisdiction of said courts.
22. Counterparts; Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by the other party hereto.
23. Entire Agreement. This Agreement constitutes the entire understanding of the
parties with respect to the subject matter hereof and supersede all prior agreements,
understandings and negotiations, both written and oral, between the parties with respect to the
subject matter hereof.
24. Captions. The captions herein are included for convenience of reference only and
shall be ignored in the construction or interpretation hereof.
In witness whereof, the parties hereto have caused this Agreement to be duly executed by two
of their respective authorized officers as of the date first above written.
| DELEK GROUP, LTD. | DELEK US HOLDINGS, INC. | |||||||
| /s/ Barak Mashraki | /s/ Xxxxx Xxxxxxxx | |||||||
By:
|
Barak Mashrak | By: | Xxxxx Xxxxxxxx | |||||
Title:
|
CFO | Title: | EVP | |||||
| /s/ Xxxxx Xxxxx Xxxxx | /s/ Xxxx X. Xxx | |||||||
By:
|
Xxxxx Xxxxx Xxxxx | By: | Xxxx X. Xxx | |||||
Title:
|
VP | Title: | EVP / CFO | |||||
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