Delek Marketing & Supply, LP First Amendment To Amended and Restated Credit Agreement
Exhibit 10.13(d)
Delek Marketing & Supply, LP
First Amendment To Amended and Restated Credit Agreement
First Amendment To Amended and Restated Credit Agreement
This First Amendment to Amended and Restated Credit Agreement (herein, this “Amendment”) is
entered into as of October 17, 2008, by and among Delek Marketing & Supply, LP, a Delaware
limited partnership (the “Borrower”), the Required Lenders party hereto and Fifth Third Bank, an
Ohio banking corporation, as Administrative Agent and L/C Issuer.
Preliminary Statements
A. The Borrower, the Lenders party thereto and Fifth Third Bank, as Administrative Agent and
L/C Issuer, entered into a certain Amended and Restated Credit Agreement, dated as of December 19,
2007 (the “Credit Agreement”). All capitalized terms used herein without definition shall have the
same meanings herein as such terms have in the Credit Agreement.
B. The Borrower, the Required Lenders and Fifth Third Bank, as Administrative Agent and L/C
Issuer, have agreed to amend the Credit Agreement under the terms and conditions set forth in this
Amendment.
Now, Therefore, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendment to Credit Agreement.
Upon satisfaction of the conditions precedent set forth in Section 2 hereof, the Credit
Agreement shall be and hereby is amended as follows:
Section 1.1. The definition of “L/C Sublimit” in Section 1.1 of the Credit Agreement is
amended and restated in its entirety to read as follows:
“L/C Sublimit” means $35,000,000, as reduced pursuant to the terms
hereof.
Section 1.2. Section 1.1 of the Credit Agreement is amended by inserting the following defined
terms in their appropriate alphabetical locations:
“First Amendment Effective Date” means October 17, 2008.
“Holdings” means Delek US Holdings, Inc., a Delaware corporation.
Section 1.3. Section 5.7 of the Credit Agreement is amended and restated in to entirety to
read as follows:
Section 5.7. Use of Proceeds; Margin Stock. (a) All proceeds of
Loans may be used by the Borrower only (i) to refinance certain
existing indebtedness on the Closing Date, (ii) to fund a one-time
dividend by the Borrower to Holdings on or about the Closing Date in
an aggregate amount not to exceed $15,000,000, (iii) the making of a
one-time distribution by the Borrower to its parent or parents for
ultimate payment to Holdings in an amount not to exceed $20,000,000
within 15 days of the First Amendment Effective Date, (iv) to fund
fees and expenses incurred by the Borrower and its Subsidiaries in
connection with the closing of this Agreement and (iv) for working
capital purposes and other general corporate purposes (including to
finance capital expenditures and Permitted Acquisitions) of the
Borrower and its Subsidiaries. No part of the proceeds of any Loan
or other extension of credit hereunder will be used by the Borrower
or any Subsidiary thereof to purchase or carry any margin stock
(within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System) or to extend credit to others for the
purpose of purchasing or carrying any margin stock. Neither the
making of any Loan or other extension of credit hereunder nor the
use of the proceeds thereof will violate or be inconsistent with the
provisions of Regulations T, U or X of the Board of Governors of the
Federal Reserve System and any successor to all or any portion of
such regulations. Margin Stock (as defined above) constitutes less
than 25% of the value of those assets of the Borrower and its
Subsidiaries that are subject to any limitation on sale, pledge or
other restriction hereunder.
Section 1.4. Section 6.15 of the Credit Agreement is amended and restated in its entirety to
read as follows:
Section 6.15. Dividends and Certain Other Restricted Payments;
Amendments of Material Contracts. The Borrower shall not, nor shall
it permit any Subsidiary to, (a) make any distributions in respect
of any class or series of equity interests, (b) directly or
indirectly purchase, redeem, or otherwise acquire or retire any of
its equity interests or any options, or similar instruments to
acquire the same or (c) directly or indirectly pay any Management
Fees; provided, however, that the foregoing shall not operate to
prevent (i) the making of distributions by any Wholly-owned
Subsidiary of the Borrower to its parent company, (ii) the making of
distributions by Borrower in order to permit the holders of its
equity interests to pay any taxes which are due any payable by such
holders and attributable to Borrower and its Subsidiaries, (iii) the
payment of fees by the Borrower to MAPCO pursuant to that MAPCO
Services Agreement, (iv) the payment of fees by the Borrower to
Refining pursuant to the Refining Operating Agreement, (v) the
making of a one-time distribution by the Borrower to its parent or
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parents for ultimate payment to Holdings in an amount not to exceed
$15,000,000 on or about the Closing Date, (vi) the payments of
amounts referred to in clause (y) of Section 5.21 or (vii) the
making of a one-time distribution by the Borrower to its parent or
parents for ultimate payment to Holdings in an amount not to exceed
$20,000,000 within 15 days of the First Amendment Effective Date;
provided that, the Borrower shall not (without limiting the
operation of any escalation clauses contained therein) amend or
otherwise modify either of the MAPCO Services Agreement or Refining
Operating Agreement to increase the amount of fees payable by the
Borrower thereunder, accelerate any payment of fees payable by the
Borrower thereunder or reduce the term thereof; provided however,
that the Borrower may amend the amount of fees payable under the
MAPCO Services Agreement so long as the aggregate fees payable by
the Borrower thereunder do not exceed $1,000,000 in the aggregate
during any calendar year. Furthermore, without the prior written
consent of the Administrative Agent, the Borrower will not consent
or agree to any amendment or other modification of the terms of any
of Sections 2.1, 3.2 or 6.1 of the Refining Marketing Agreement
which amendment or other modification is materially adverse to the
Borrower or the Lenders.
Section 1.5. Section 6.19(a) of the Credit Agreement is amended and restated in its entirety
to read as follows:
(a) Total Leverage Ratio. As of the last day of each fiscal quarter
of the Borrower, the Borrower shall not permit the Total Leverage
Ratio for the period of four fiscal quarters then ended to be
greater than 3.50 to 1.00.
Section 1.6. Section 6.19(c) of the Credit Agreement is amended and restated in its entirety
to read as follows:
(c) Net Worth. The Borrower shall at all times maintain Net
Worth of the Borrower and its Subsidiaries determined on a
consolidated basis in an amount not less than (i) $19,000,000 plus
(ii) 75% of the Net Income for each fiscal quarter of the Borrower
ending on or after the First Amendment Effective Date (i.e.,
commencing with the fiscal quarter beginning on or about December
31, 2008), for which such Net Income is a positive amount (i.e.,
there shall be no reduction to the minimum amount of Net Worth
required to be maintained hereunder for any fiscal quarter in which
Net Income is less than zero) plus (iii) 85%
of the aggregate proceeds from all equity issuances by the Borrower
after the First Amendment Effective Date.
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Section 2. Conditions Precedent.
The effectiveness of this Amendment is subject to the satisfaction of all of the following
conditions precedent:
(a) The Borrower, the Required Lenders and Fifth Third Bank, as Administrative Agent
and L/C Issuer, shall have executed and delivered this Amendment.
(b) The Guarantors shall have executed and delivered the Reaffirmation and Consent of
Guarantors attached to this Amendment.
(c) The Borrower shall have paid to the Administrative Agent all fees due and payable
to it pursuant to that certain letter agreement by and between the Borrower and the
Administrative Agent dated as of September 23, 2008.
(d) Legal matters incident to the execution and delivery of this Amendment shall be
satisfactory to the Administrative Agent and its counsel.
Section 3. Representations and Warranties.
The Borrower represents and warrants to the Lenders and Fifth Third Bank, as Administrative
Agent and L/C Issuer, that (i) each of the representations and warranties set forth in Section 5 of
the Credit Agreement is true and correct in all material respects on and as of the date of this
Amendment after giving effect to this Amendment as if made on and as of the date hereof (except to
the extent such representation relates and warrants relate to an earlier date, in which case they
are true and correct in all material respects as of such date) and as if each reference therein to
the Credit Agreement referred to the Credit Agreement as amended hereby; (ii) as of the date
hereof, no Default and no Event of Default exists; and (iii) without limiting the effect of the
foregoing, the Borrower’s execution, delivery and performance of this Amendment has been duly
authorized, and this Amendment has been executed and delivered by duly authorized officers of the
Borrower.
Section 4. Collateral.
The Borrower has heretofore executed and delivered to the Administrative Agent the Collateral
Documents and the Borrower hereby agrees that notwithstanding the execution and delivery of this
Amendment, the Collateral Documents shall remain in full force and effect and shall secure the
Obligations, Hedging Liability and Funds Transfer and Deposit Account Liability; and the rights and
remedies of the Lenders under the Collateral Documents, obligations of the Borrower thereunder, and
any liens or security interests created or provided for thereunder shall be and remain in full
force and effect and shall not be affected, impaired or discharged hereby. Nothing herein
contained shall in any manner affect or impair the priority of the liens
and security interests created and provided for by the Collateral Documents as to the
indebtedness that would be secured thereby prior to giving effect to this Amendment.
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Section 5. Miscellaneous.
(a) Except as specifically amended herein, the Credit Agreement shall continue in full force
and effect in accordance with its original terms. Reference to this specific Amendment need not be
made in the Credit Agreement or any other Loan Document, or in any certificate, letter or
communication issued or made pursuant to or with respect to any Loan Document, any reference in any
of such items to the Credit Agreement being sufficient to refer to the Credit Agreement as amended
hereby.
(b) The Borrower agrees to pay on demand all costs and expenses of or incurred by the
Administrative Agent in connection with the negotiation, preparation, execution and delivery of
this Amendment, including the reasonable fees and expenses of counsel for the Administrative Agent.
(c) This Amendment may be executed in any number of counterparts and by different parties
hereto on separate counterpart signature pages, each of which when so executed shall be an original
but all of which shall constitute one and the same instrument. This Amendment shall be governed by
the internal laws of the State of New York.
[Signature Pages to Follow]
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In Witness Whereof, the parties hereto have caused their duly authorized officers to
execute and deliver this First Amendment to Credit Agreement as of the date first set forth above.
| “Borrower” Delek Marketing & Supply, LP |
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| By: | Delek Marketing GP, LLC, its general partner | |||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name Xxxxxx Xxxxxx | ||||
| Title Chief Financial Officer | ||||
| By | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name Xxxxxxx X. Xxxxxxxx | ||||
| Title Treasurer | ||||
[Signature page to First Amendment to Credit Agreement]
| “Lenders” Fifth Third Bank, an Ohio banking corporation, as a Lender, as L/C Issuer, and as Administrative Agent |
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| By | /s/ Xxxx Xxxxxxx | |||
| Name Xxxx Xxxxxxx | ||||
| Title Vice President | ||||
[Signature page to First Amendment to Credit Agreement]
