EXHIBIT 10.8(a)
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and entered into as of October 1, 2005, by and among DELEK
REFINING, LTD. (individually and, in its capacity as the representative of the
other Borrowers pursuant to Section 2.27 of the Credit Agreement (as hereafter
defined), "Delek Refining"), a Texas limited partnership; and DELEK PIPELINE
TEXAS, INC. ("Delek Pipeline"), a Texas corporation; (Delek Refining and Delek
Pipeline being referred to jointly as the "Borrowers," and individually as a
"Borrower"); various financial institutions ("Lenders"); SUNTRUST BANK, in its
capacity as administrative agent for the Lenders (the "Administrative Agent"),
as issuing bank (the "Issuing Bank") and as swingline lender (the "Swingline
Lender"). THE CIT GROUP/BUSINESS CREDIT, INC., in its capacity as collateral
agent for the Lenders (the "Collateral Agent"; the Administrative Agent and
Collateral Agent are each hereafter referred to from time to time individually
as an "Agent" and jointly as "Agents").
RECITALS:
Borrowers, Lenders and Agents are parties to a certain Amended and Restated
Credit Agreement, dated May 2, 2005 (as at any time amended, restated or
otherwise modified, the "Credit Agreement"), pursuant to which Lenders have made
certain revolving credit loans and other extensions of credit to Borrowers.
Borrowers have requested that Agents and Lenders consent to certain
amendments contained herein and Agents and Lenders are willing to consent to
such amendments, subject to the terms and conditions contained herein.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good and
valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby amended
as follows:
(a) By adding to Section 1.1 definitions of "Additional Subordinated
Indebtedness," "Excess Availability Condition," "Permitted Cash Collateral
Account" and "Reinstatement Conditions" at the appropriate alphabetical
location as follows:
"Additional Subordinated Indebtedness" shall mean Indebtedness of
the Borrowers owing to the Subordinate Creditor (as defined in the
Subordination Agreement) which (i) is evidenced by the Subordinated
Note, (ii) constitutes additional funds borrowed by the Borrowers from
the Subordinate Creditor after the Closing Date which are payable on
terms and conditions substantially similar to those applying to the
Indebtedness evidenced by the Subordinate Note, as amended, (iii)
constitutes Subordinate Debt under (and as defined in) the
Subordination Agreement, and (iv) is timely reflected in financial
statements delivered by the Borrowers to the Agents pursuant to
Section 5.1.
"Excess Availability Conditions" shall mean, at any date of
determination, (i) the Borrowers have Availability of not less than
$30,000,000 and (ii) no Event of Default exists.
"Permitted Cash Collateral Account" shall mean a Cash Collateral
Account maintained with (i) SunTrust, or (ii) a Lender other than
SunTrust to the extent the Administrative Agent has received not less
than ten (10) days prior written notice of the opening of such
account, which notice shall include applicable account numbers, wiring
instructions, contact persons at the applicable Lender, and
confirmation that the Administrative Agent shall have the right to
access and review, in real time, balances therein and all transactions
with respect thereto.
"Reinstatement Conditions" shall mean at any date when the Excess
Availability Conditions are not satisfied (i) by reason of the
occurrence of an Event of Default, such Event of Default has been
waived by the Agents or otherwise remedied by the Borrowers in
accordance with the Credit Agreement and no Event of Default occurs at
any time during a period of 30 consecutive days following the date on
which such Event of Default was so waived or otherwise remedied, or
(ii) by reason of Borrowers' failure to maintain Availability of not
less than $30,000,000, Borrowers shall have maintained Availability of
at least $30,000,000 for not less than 30 consecutive days; provided,
that if Borrowers fail to satisfy the Excess Availability Conditions
more than three (3) times during any twelve (12) month period, the
Borrowers may not avail themselves of the Reinstatement Conditions for
a period of twelve (12) months from the date on which Borrowers last
failed to satisfy the Excess Availability Conditions.
(b) By amending and restating the definition of "Availability" as
follows:
"Availability" shall mean on any determination date, an amount
equal to (a) (i) the Accounts Formula Amount on such date, plus (ii)
the Inventory Formula Amount on such date, plus (iii) 100% of Eligible
Cash Collateral on such date, PLUS (iv) 100% of Paid but Unexpired
Standby Letters of Credit on such date, minus (v) the Availability
Reserve on such date, minus (b) the aggregate amount of the
outstanding Loans on such date. If the amount of the Loans outstanding
under clause (b) is equal to or greater than the amounts under clause
(a), Availability shall be deemed to be zero.
(c) By amending and restating the definition of "Cash Collateral
Account" as follows:
"Cash Collateral Account" shall mean a demand deposit, money
market or other account established by the Administrative Agent at
SunTrust or a Lender other than SunTrust, which account shall be under
the control of the Administrative Agent and subject to the
Administrative Agent's Liens for the benefit of the Lenders pursuant
to a Deposit Account Control Agreement.
(d) By amending and restating the definition of "Change in Control" as
follows:
"Change in Control" shall mean the occurrence of one or more of
the following events: (i) any sale, lease, exchange or other transfer
(in a single transaction or a series of related transactions) of all
or substantially all of the assets of a Borrower to any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and
the rules of the Securities and Exchange Commission thereunder in
effect on the date hereof), (ii) the
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acquisition of ownership, directly or indirectly, beneficially or of
record, by any Person or "group" (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof) of 40% or more
of the outstanding shares of the voting stock of a Borrower except to
a Person or Persons that is an Affiliate of Holdings, or (iii)
occupation of a majority of the seats (other than vacant seats) on the
board of directors of a Borrower by Persons who were neither (a)
nominated by the current board of directors nor (b) appointed by
directors so nominated, nor (c) nominated by Holdings or an Affiliate
of Holdings.
(e) By amending and restating the definition of "Eligible Cash
Collateral" as follows:
"Eligible Cash Collateral" shall mean any and all cash and
Permitted Investments of the Borrowers which are held in Permitted
Cash Collateral Accounts under the control of the Administrative Agent
pursuant to Section 5.6(g); provided that Eligible Cash Collateral
shall not include on any date of determination the amount by which (i)
the average daily balance for the preceding thirty days in Permitted
Cash Collateral Accounts maintained with Lenders other than SunTrust,
exceeds (ii) the average daily balance for such period in Permitted
Cash Collateral Accounts maintained at SunTrust, in each case measured
as of the date of the most recently delivered Borrowing Base
Certificate for the period of thirty days then ending.
(f) By amending and restating the definition of "Mapco Reserve
Conditions" as follows:
"Mapco Reserve Conditions" shall mean, after any date on which
the Excess Availability Conditions are not satisfied (and thereafter
until the Reinstatement Conditions are satisfied), the Agents' receipt
of a Borrowing Base Certificate which indicates that Mapco has less
than $4,500,000 available during the period covered by such Borrowing
Base Certificate for additional working capital loans under the
formulae contained in Mapco's working capital credit facilities,
assuming all trade payables of Mapco are paid within normal terms.
(g) By amending and restating the definition of "Material
Indebtedness" as follows:
"Material Indebtedness" shall mean Indebtedness (other than the
Loans, the Letters of Credit and Permitted Subordinated Debt) and
Hedging Obligations of the Borrowers or any of their Subsidiaries,
individually or in an aggregate principal amount exceeding $2,000,000.
For purposes of determining the amount of attributed Indebtedness from
Hedging Obligations, the "principal amount" of any Hedging Obligations
at any time shall be the Net Xxxx-to-Market Exposure of such Hedging
Obligations.
(h) By deleting the "and" after clause (i) and adding "and" after
clause (j) of the definition of "Permitted Liens" and adding after clause
(j) a new clause (k) to provide as follows:
(k) Liens in cash of the Borrowers securing Hedging Obligations
incurred by a Borrower in connection with Hedging Transactions
permitted under Section 7.10.
(i) By amending and restating the definition of "Permitted
Subordinated Debt" as follows:
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"Permitted Subordinated Debt" shall mean (i) Indebtedness
evidenced by the Subordinated Note, including Additional Subordinated
Indebtedness, (ii) Subordinated Working Capital Indebtedness, or (iii)
any other Indebtedness of a Borrower or any Subsidiary (i) that is
expressly subordinated to the Obligations on terms satisfactory to the
Administrative Agent and the Required Lenders in their sole
discretion, (ii) that matures by its terms no earlier than six months
after the Revolving Commitment Termination Date, (iii) that bears
interest at a rate per annum not to exceed 10.0% and (iv) that is
evidenced by an instrument that is in a form reasonably satisfactory
to the Administrative Agent and the Required Lenders.
(j) By amending and restating the first two sentences of Section
2.2(b) as follows:
If at any time the aggregate Revolving Credit Exposure exceeds the
Aggregate Revolving Commitment Amount or the Borrowing Base (an
"Out-of-Formula Condition"), such aggregate Revolving Credit Exposure
shall nevertheless constitute Obligations that is secured by the
Collateral and entitled to all benefits thereof. In no event, however,
shall Borrowers have any right whatsoever to (i) receive any Revolving
Loan, (ii) receive any Swingline Loan, or (iii) request the issuance
of any Letter of Credit if, before or after giving effect thereto,
there shall exist a Default or after giving effect thereto, an
Out-of-Formula Condition would exist.
(k) By amending and restating Section 5.6(d) as follows:
(d) Account Verifications. For so long as an Event of Default
exists, the Collateral Agent shall have the right, in the name of the
Collateral Agent, any designee of the Collateral Agent or any Borrower
to verify the validity, amount or any other matter relating to any
Accounts of such Borrower by mail, telephone, telegraph or otherwise,
provided that from and after any date on which the Excess Availability
Conditions are not satisfied (and thereafter until the Reinstatement
Conditions are satisfied), Collateral Agent shall have the right at
any time or times, in the name of the Collateral Agent, any designee
of the Collateral Agent or any Borrower, to conduct such verifications
whether or not a Default or an Event of Default exists, provided,
further, that the Collateral Agent will endeavor in good faith to
notify the Borrowers after any such request for verification, but the
Collateral Agent shall have no liability, nor shall the Borrowers have
any recourse against the Collateral Agent, in the event the Collateral
Agent fails to so notify the Borrowers. Borrowers shall cooperate
fully with the Collateral Agent in an effort to facilitate and
promptly conclude any such verification process.
(l) By amending and restating Section 5.6(g) as follows:
(g) Application of Proceeds; Cash Collateral Account. The balance
in each Dominion Account shall be swept at least once on each Business
Day to a Cash Collateral Account maintained at SunTrust. If at any
time there are any Loans outstanding, or any other Obligations which
are then due and payable, (i) for so long as no Event of Default
exists the Administrative Agent shall apply the balance of any Cash
Collateral Account as the Borrowers may direct to the repayment of
such loans or other Obligations or (ii) if the Borrowers have not so
directed the Administrative Agent or at any time an Event of Default
exists, the Borrowers authorize the Administrative Agent to apply the
balance in a Cash Collateral Account as the Administrative Agent may
elect, in repayment of such Loan or other Obligation; provided,
however, that in the event that
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the Administrative Agent elects to apply such amount (or a portion
thereof) in repayment of a Eurodollar Rate Loan, such amount shall at
the Borrowers' option, in lieu of being applied in repayment of such
Eurodollar Rate Loan, be held by the Administrative Agent for
application to such Loan on the last day of the Interest Period
applicable thereto or otherwise applied to Borrowers' obligations
under Section 2.20. The Borrowers agree that each Cash Collateral
Account shall be under the sole dominion and control of the
Administrative Agent. Without limiting the foregoing, funds on deposit
in any Cash Collateral Account, after application to any outstanding
Loans or other Obligations shall be invested only in cash and
Permitted Investments, which shall be made at any time when no Event
of Default exists at the direction of the Borrowers. At any time when
an Event of Default exists each Lender maintaining a Cash Collateral
Account, at the direction of the Administrative Agent, shall promptly
remit all funds in the Cash Collateral Account maintained by such
Lender to a Cash Collateral Account maintained at SunTrust as the
Administrative Agent shall designate. Without limiting the foregoing,
for so long as an Event of Default exists, all sums held in a Cash
Collateral Account may be held in cash or may be invested in such
Permitted Investments as the Administrative Agent alone may elect.
Neither of the Borrowers nor any Person claiming on behalf of or
through a Borrower shall have any right to demand payment of any funds
held in any Cash Collateral Account at any time prior to the
termination of all outstanding Letters of Credit, the payment in full
of all then outstanding and payable monetary Obligations and
termination of the Revolving Credit Commitments. Notwithstanding the
foregoing, the Administrative Agent shall be authorized to apply all
funds and Permitted Investments in a Cash Collateral Account as
provided in Section 2.24(b) and the Loan Documents.
(m) By amending and restating Section 5.6(i) as follows:
(i) Limitations on Bank Accounts. Except as otherwise disclosed
in this Agreement, the Borrowers and their Subsidiaries shall not open
any deposit account unless the depository bank for such deposit
account is a Lender that has entered into a Deposit Account Control
Agreement reasonably acceptable to the Administrative Agent. As of the
Closing Date, all bank accounts of any nature of the Borrowers and
their Subsidiaries are listed on Schedule 5.6 and such Schedule
designates which such accounts are deposit accounts.
(n) By amending and restating Section 5.9 as follows:
SECTION 5.9 BORROWING BASE CERTIFICATES. For so long as the
Excess Availability Conditions are satisfied Borrowers shall deliver
to the Collateral Agent (and the Collateral Agent shall, on request
from a Lender, promptly deliver to such Lender) a Borrowing Base
Certificate as of the 18th day and the last Business Day of each
month, in each case for the semi-monthly period ending not more than
two (2) Business Days earlier. At any date after the Excess
Availability Conditions are not satisfied (and thereafter until the
Reinstatement Conditions are satisfied), Borrowers shall deliver to
the Collateral Agent (and the Collateral Agent shall, on request from
a Lender, promptly deliver to such Lender) a Borrowing Base
Certificate weekly as of each Wednesday (or the next Business Day) in
respect of the prior week, or at such more frequent intervals as the
Collateral Agent may request (provided that, notwithstanding the
foregoing, certain items as noted in Schedule IV, shall only be
updated on a weekly basis). All calculations of Availability in
connection with any Borrowing Base Certificate shall originally be
made by the Borrowers and certified by a Responsible Officer to the
Agents, provided that the Agents shall have the right to review and
adjust, in the exercise of their credit
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judgment, any such calculation (i) to reflect their reasonable
estimate of declines in value of any of the Collateral described
therein and (ii) to the extent that such calculation is not in
accordance with this Agreement or does not accurately reflect the
amount of the Availability Reserve. No less frequently than bi-weekly,
a Borrowing Base Certificate shall indicate, without limitation, the
Account Debtors of a Borrower who are also creditors of Mapco and the
availability on any applicable date of Mapco under its working capital
credit facility for purposes of the Agents' determination of the
applicability and extent of the Mapco Reserve.
(o) By deleting Section 5.18 in its entirety.
(p) By amending and restating Section 5.19 as follows:
SECTION 5.19 SUBORDINATED WORKING CAPITAL FACILITY. On any
Availability Support Trigger Date occurring after any date on which
the Excess Availability Conditions are not satisfied (and thereafter
until the Reinstatement Conditions are satisfied), the Administrative
Agent may require the Borrowers to obtain (a "Funding Request"), and
the Borrowers shall obtain no later than five (5) days after the date
of any such Funding Request, advances under the Subordinated Working
Capital Credit Documents in amounts on any applicable date of not less
than $2,000,000, less the lowest daily Availability during the five
(5) consecutive Business Days immediately preceding the date of any
such Funding Request, and each day thereafter for so long as
Availability shall be less than $2,000,000, provided that the
Borrowers shall not be obligated to incur Subordinated Working Capital
Indebtedness hereunder in an aggregate amount exceeding $5,000,000
outstanding at any time. The Borrowers may request advances under the
Subordinated Working Capital Documents in excess of such required
amounts from time to time upon prior notice to the Agents. The
Borrowers may repay Subordinated Working Capital Indebtedness, whether
incurred voluntarily or otherwise hereunder, if and only if, (i)
Availability shall have been greater than $2,000,000 for five (5)
consecutive Business Days preceding any repayment date, (ii) after
giving effect to such repayments there will be not less than
$2,000,000 of Availability for five (5) consecutive Business Days
thereafter, (iii) the aggregate amount of such repayments do not
exceed the amount of the Subordinated Working Capital Indebtedness
plus interest and other fees at a rate not to exceed 10% per annum in
the aggregate, and (iv) no Default or Event of Default exists. Amounts
repaid in respect of Subordinated Working Capital Indebtedness, to the
extent permitted under the provisions of this Section 5.19, shall be
deemed applied first to that portion of the Subordinated Working
Capital Indebtedness voluntarily incurred by the Borrowers, to the
extent thereof, and next to Subordinated Working Capital Indebtedness
incurred to satisfy the requirements of this Section 5.19.
(q) By deleting Section 5.20 in its entirety.
(r) By amending and restating Sections 6.1 and 6.2 as follows:
SECTION 6.1 FIXED CHARGE COVERAGE RATIO. From and after any
date on which the Excess Availability Conditions are not satisfied
(and thereafter until the Reinstatement Conditions are satisfied), the
Borrowers shall maintain, as of the end of the immediately preceding
Fiscal Quarter and each Fiscal Quarter thereafter, a Fixed Charge
Coverage Ratio of not less than (a) 1.10: 1.00 for the Fiscal Quarters
ending Xxxxx 00, Xxxx 00 xxx Xxxxxxxxx 00, 0000, (x) 1.15:1.00 for the
Fiscal Quarters ending
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December 31, 2006 and March 31 and June 30, 2007, and (c) 1.25:1.00
for the Fiscal Quarter ending September 30, 2007 and as of the last
day of each Fiscal Quarter thereafter.
SECTION 6.2 CAPITAL EXPENDITURES. On any date on which the
Excess Availability Conditions are not satisfied (and thereafter until
the Reinstatement Conditions are satisfied), the Borrowers shall not
make Capital Expenditures if, after giving effect thereto, the
following limitations would be exceeded: (a) $23,000,000 during the
Fiscal Year ending December 31, 2005, (b) $35,000,000 during the
Fiscal Year ending December 31, 2006, (c) $21,000,000 during the
Fiscal Year ending December 31, 2007; or (d) $10,000,000 during the
Fiscal Year ending December 31, 2008, provided, that up to $7,500,000
of Capital Expenditures permitted in any Fiscal Year that were not
made in such Fiscal Year may be carried to the next, and only the
next, Fiscal Year.
(s) By amending and restating clause (h) of Section 7.1 as follows:
(h) other unsecured Indebtedness of a Borrower or its
Subsidiaries in an aggregate principal amount not to exceed
$5,000,000.
(t) By amending and restating clause (d) of Section 7.4 as follows:
(d) Investments made by the Borrowers in or to any Subsidiary and
by any Subsidiary to the Borrowers or in or to another Subsidiary;
provided, that the aggregate amount of Investments by Loan Parties in
or to, and Guarantees by Loan Parties of Indebtedness of any
Subsidiary that is not a Subsidiary Loan Party (including all such
Investments and Guarantees existing on the Closing Date), shall not
exceed $1,000,000 at any time outstanding;
(u) By amending and restating clause (g) of Section 7.4 as follows:
(g) Other Investments which in the aggregate do not exceed
$1,000,000 in any Fiscal Year.
(v) By amending and restating clauses (iii) and (iv) of Section 7.5 as
follows:
(iii) dividends or distributions in respect of its stock or
equity interests, provided that on any date on which the Excess
Availability Conditions are not satisfied (and thereafter until the
Reinstatement Conditions are satisfied) neither Borrower shall pay any
cash dividend or distribution in respect of any class of its stock or
equity interests until after payment in full of the Subordinated Note
and, after such payment in full, each of the Conditions to Dividends
shall have been satisfied as of the date of and after giving effect to
any such dividend or distribution, (iv) fees payable under the
Management Agreement, provided that on any date on which the Excess
Availability Conditions are not satisfied (and thereafter until the
Reinstatement Conditions are satisfied) the Borrowers shall not pay
any fees under the Management Agreement if, after giving effect to
such payments, the aggregate fees paid in the applicable Fiscal Year
would exceed $1,500,000.
(w) By amending and restating Section 7.10 as follows:
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SECTION 7.10 HEDGING TRANSACTIONS. The Borrowers will not,
and will not permit any of the Subsidiaries to, enter into any Hedging
Transaction, other than Hedging Transactions entered into in the
ordinary course of business to hedge or mitigate interest rate or
commodity pricing risks to which the Borrowers or any Subsidiary is
exposed in the conduct of its business or the management of its
liabilities; provided, that the Borrowers shall not enter into any
Hedging Transactions with counterparties other than financial
institutions that have combined capital and surplus and undivided
profits of not less than $500,000,000, Persons whose senior, long term
unsecured debt has an actual or implied rating at or above BBB- from
S&P or the equivalent or higher rating by any other nationally
recognized rating agency, or such other Persons as shall be reasonably
acceptable to the Administrative Agent. Solely for the avoidance of
doubt, the Borrowers acknowledge that a Hedging Transaction entered
into for speculative purposes or of a speculative nature (which shall
be deemed to include any Hedging Transaction under which the Borrowers
or any of their Subsidiaries is or may become obliged to make any
payment (i) in connection with the purchase by any third party of any
common stock or any Indebtedness or (ii) as a result of changes in the
market value of any common stock or any Indebtedness) is not a Hedging
Transaction entered into in the ordinary course of business to hedge
or mitigate interest rate risks.
(x) By amending and restating clause (l) of Section 8.1 as follows:
(l) any judgment or order for the payment of money in excess of
$2,000,000 in the aggregate, which shall be rendered against a
Borrower or any Subsidiary, and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order
or (ii) there shall be a period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
3. TERMINATION OF FUNDING GUARANTY. The Agents hereby agree that effective
as of the date of this Amendment the Funding Guaranty shall be deemed terminated
and Delek Group shall have no obligations thereunder.
4. AMENDMENT FEE. In consideration of the Agents' and the Lenders'
willingness to enter into this Amendment, the Borrowers shall pay to the
Administrative Agent, for the benefit of the Lenders, an amendment fee in the
amount of $125,000 in immediately available funds on the date hereof (the
"Amendment Fee").
5. RATIFICATION AND REAFFIRMATION. Each Borrower hereby ratifies and
reaffirms the Obligations, each of the Loan Documents and all of such Borrower's
covenants, duties, indebtedness and liabilities under the Loan Documents.
6. ACKNOWLEDGMENTS AND STIPULATIONS. Each Borrower acknowledges and
stipulates that the Credit Agreement and the other Loan Documents executed by
Borrowers are legal, valid and binding obligations of Borrowers that are
enforceable against Borrowers in accordance with the terms thereof; all of the
Obligations are owing and payable without defense, offset or counterclaim (and
to the extent there exists any such defense, offset or counterclaim on the date
hereof, the same is hereby waived by each Borrower); and the security interests
and liens granted by Borrowers in favor of Administrative Agent, for the benefit
of itself and Lenders, are duly perfected, first priority security interests and
liens to the extent provided therein.
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7. REPRESENTATIONS AND WARRANTIES. Each Borrower represents and warrants to
Agents and Lenders, to induce Agents and Lenders to enter into this Amendment,
that (a) after giving effect to this Amendment, no Default or Event of Default
exists on the date hereof; (b) the execution, delivery and performance of this
Amendment have been duly authorized by all requisite company action on the part
of each Borrower and this Amendment has been duly executed and delivered by each
Borrower; and (c) all of the representations and warranties made by Borrowers in
the Credit Agreement are true and correct, in all material respects, on and as
of the date hereof, except those representations and warranties made as of a
specific date in which such case such representations and warranties were true
and correct as of such date.
8. REFERENCE TO CREDIT AGREEMENT. Upon the effectiveness of this Amendment,
each reference in the Credit Agreement to "this Agreement," "hereunder," or
words of like import shall mean and be a reference to the Credit Agreement, as
amended by this Amendment.
9. BREACH OF AMENDMENT. This Amendment shall be part of the Credit
Agreement and a breach of any representation, warranty or covenant herein shall
constitute an Event of Default.
10. CONDITIONS PRECEDENT. The effectiveness of the provisions contained in
this Amendment are subject to the satisfaction of each of the following
conditions precedent, in form and substance reasonably satisfactory to the
Administrative Agent:
(a) the Administrative Agent shall have received this Amendment duly
executed by the parties;
(b) the Administrative Agent shall have received payment of the Amendment
Fee; and
(c) the Administrative Agent shall have received from Borrowers such other
agreements, assurances, financing statements or other documents as the
Administrative Agent may reasonably request in connection with the subject
matter of this Amendment.
11. EXPENSES OF AGENTS. Borrowers agree to pay, ON DEMAND, all costs and
expenses incurred by Agents in connection with the preparation, negotiation and
execution of this Amendment and any other Loan Documents executed pursuant
hereto and any and all amendments, modifications, and supplements thereto,
including, without limitation, the reasonable costs and fees of Agents' legal
counsel and any taxes or expenses associated with or incurred in connection with
any instrument or agreement referred to herein or contemplated hereby.
12. MISCELLANEOUS. This Amendment shall be effective upon acceptance by
Agents and Lenders, whereupon the same shall be governed by and construed in
accordance with the internal laws of the State of Georgia. This Amendment shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. This Amendment may be executed in any number
of counterparts and by different parties to this Amendment on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed to be an original
signature hereto. Section titles and references used in this Amendment shall be
without substantive meaning or content of any kind whatsoever and are not a part
of the agreements among the parties hereto.
13. NO NOVATION, ETC. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Credit Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to
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be, nor shall it be construed to create, a novation or accord and satisfaction,
and the Credit Agreement as herein modified shall continue in full force and
effect.
14. FURTHER ASSURANCES. Each Borrower agrees to take such further actions
as Agents and Lenders shall reasonably request from time to time in connection
herewith to evidence or give effect to the amendments set forth herein or any of
the transactions contemplated hereby.
15. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO THIS
AMENDMENT.
[Remainder of page intentionally left blank; signatures on the following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
DELEK REFINING, LTD.
By: DELEK US REFINING GP, LLC
Title: General Partner
By /s/ UZI YEMIN
-------------------------------------
Name: UZI YEMIN
Title: President
By /s/ XX XXXXXX
-------------------------------------
Name: XX XXXXXX
Title: CFO
DELEK PIPELINE TEXAS, INC.
By /s/ UZI YEMIN
-------------------------------------
Name: UZI YEMIN
Title: President
By /s/ XX XXXXXX
-------------------------------------
Name: XX XXXXXX
Title: CFO
SUNTRUST BANK,
as Administrative Agent, as Issuing
Bank, as Swingline Lender and as a
Lender
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
DELEK REFINING, LTD.
By: DELEK US REFINING GP, LLC
Title: General Partner
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DELEK PIPELINE TEXAS, INC.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SUNTRUST BANK,
as Administrative Agent, as Issuing
Bank, as Swingline Lender and as a
Lender
By /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
CONSENT AND REAFFIRMATION
Each of the undersigned guarantors of the Obligations of the Borrowers at
any time owing to the Agents and the Lenders hereby (i) acknowledges receipt of
a copy of the foregoing First Amendment to Amended and Restated Credit
Agreement; (ii) consents to the Borrowers' execution and delivery thereof; (iii)
agrees to be bound thereby; and (iv) affirms that nothing contained therein
shall modify in any respect whatsoever its guaranty of the Obligations and
reaffirms that such guaranty is and shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Consent and
Reaffirmation as of the date of such First Amendment to Amended and Restated
Credit Agreement.
DELEK REFINING, INC.
By: /s/ UZI YEMIN
------------------------------------
UZI YEMIN, President
By: /s/ XXXXXX XXXXXX
------------------------------------
XXXXXX XXXXXX, CFO
DELEK US REFINING GP, LLC
By: /s/ UZI YEMIN
------------------------------------
UZI YEMIN, President
By: /s/ XXXXXX XXXXXX
------------------------------------
XXXXXX XXXXXX, CFO
DELEK LAND TEXAS, INC.
By: /s/ UZI YEMIN
------------------------------------
UZI YEMIN, President
By: /s/ XXXXXX XXXXXX
------------------------------------
XXXXXX XXXXXX, CFO
[Signatures will continue on following page]
MPC PIPELINE ACQUISITION, INC.
By: /s/ UZI YEMIN
------------------------------------
UZI YEMIN, President
By: /s/ XXXXXX XXXXXX
------------------------------------
XXXXXX XXXXXX, CFO
MPC LAND ACQUISITION, INC.
By: /s/ UZI YEMIN
------------------------------------
UZI YEMIN, President
By: /s/ XXXXXX XXXXXX
------------------------------------
XXXXXX XXXXXX, CFO
[Signatures will continue on following page]
SUNTRUST BANK, as Administrative Agent,
as Issuing Bank, as Swingline Lender and
as a Lender
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxx, Vice President
[Signatures will continue on following page]
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Collateral Agent, as Co-Documentation
Agent and as a Lender
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
[Signatures will continue on following page]
BANK OF AMERICA, N.A., as Co-Syndication
Agent and as a Lender
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
[Signatures will continue on following page]
PNC BANK, NATIONAL ASSOCIATION, as
Co-Syndication Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
[Signatures will continue on following page]
NATIONAL CITY BUSINESS CREDIT, INC.,
as Co-Documentation Agent and as a
Lender
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Associate
[Signatures will continue on following page]
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
[Signatures will continue on following page]
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
[Signatures will continue on following page]
REGIONS BANK AS SUCCESSOR IN INTEREST TO:
UNION PLANTERS BANK, N.A., as a Lender
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: XXXXX X. XXXXXX
Title: SENIOR VICE PRESIDENT
[Signatures will continue on following page]
TEXTRON FINANCIAL CORPORATION, as a
Lender
By: /s/ XXXX X. XXXXXXX
------------------------------------
Name: XXXX X. XXXXXXX
Title: SVP-CREDIT, SENIOR ACCOUNT
EXECUTIVE
[Signatures will continue on following page]
FIFTH THIRD BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
[Signatures will continue on following page]
SIEMENS FINANCIAL SERVICES, INC. as a
Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President - Credit
[Signatures will continue on following page]
ISRAEL DISCOUNT BANK OF NEW YORK, as a
Lender
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: FVP
By: /s/ XXXXX XXXX
------------------------------------
Name: XXXXX XXXX
Title: VP
[Signatures will continue on following page]
XXXXX FARGO FOOTHILL, LLC, as a Lender
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
[Signatures will continue on following page]
XXXXXXX BUSINESS CREDIT CORP., as a
Lender
By: /s/ XXXX X. XXXXX
------------------------------------
Name: XXXX X. XXXXX
Title: VICE PRESIDENT
[Signatures will continue on following page]
BANK LEUMI USA, as a Lender
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Title: VP
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: SVP
