AMENDED AND RESTATED TERM LOAN NOTE
Exhibit 10.12(a)
AMENDED AND RESTATED TERM LOAN NOTE
FOR VALUE RECEIVED, Delek Finance, Inc. (hereinafter the “Borrower”) HEREBY PROMISE TO
PAY to the order of ISRAEL DISCOUNT BANK OF NEW YORK, its successors and assigns (hereinafter the
“Bank”), the principal amount of THIRTY MILLION DOLLARS ($30,000,000.00), in lawful money
of the United States (the “Loan”), or if less, the unpaid principal balance of the Loan as
follows:
(a) Eight (8) equal installments of One Million Two Hundred and Fifty Thousand
Dollars ($1,250,000.00), with the first such installment due and payable on March
31, 2010, with each subsequent installment due and payable every three (3) months
thereafter; and
(b) the remaining principal balance of the Loan on the Maturity Date, which is
the final and absolute due date of the Loan.
1. Interest Rate and Payments. The Borrower shall also pay Bank interest on the
outstanding principal balance of the Loan quarterly, commencing on March 31, 2009, and continuing
every three (3) months thereafter and on the Maturity Date. The Loan shall bear interest on the
unpaid principal amount thereof for each Interest Period (as defined below) applicable thereto at a
rate per annum equal to the higher of (i) five percent (5.00%) or (ii) LIBOR (as defined below)
determined for each such Interest Period therefore in accordance with the terms of this Note plus a
margin of 350 basis points (the “Interest Rate”). Any interest not paid when due hereunder
shall be added to the principal amount of this Note and shall bear interest from its due date at
the applicable interest rate specified above. Interest shall be calculated on the basis of a
360-day year and actual number of days elapsed. In no event shall the interest rate exceed the
maximum rate permitted by applicable law. Any change in the Interest Rate shall be effective as of
the first day of each Interest Period.
2. Default Rate. At the option of the Lender, upon the occurrence of and during the
continuance of any Event of Default, and in any event if any installment of principal or interest
or any fee or cost or other amount payable under this Note, or any other Loan Document, is not paid
when due, the Obligations shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the rate otherwise applicable thereto plus five (5%) percent per annum (the
“Default Interest Rate”), to the fullest extent permitted by applicable law. Accrued and
unpaid interest on past due amounts (including interest on past due interest) shall be compounded
monthly, on the last day of each calendar month, to the fullest extent permitted by applicable law.
3. Actions by Bank. The Bank may act without liability upon the basis of telephonic
notice believed by the Bank in good faith to be from a responsible officer of the Borrower.
Xxxxxxxx shall immediately confirm to the Bank, in writing, each telephonic notice.
Borrower hereby expressly authorizes the Bank to record on its records the Interest Period and
Interest Rate. In the event of any discrepancy between any such notation by the Bank and any
records of the Borrower, the records of the Bank shall be controlling and conclusive. The Bank’s
failure to make any notation to its records shall not limit or otherwise affect the obligations of
the undersigned to repay the Loan, in accordance with the terms hereof.
4. Xxxxxx and Application of Payments. All payments due hereunder shall be paid in
lawful money of the United States of America which shall be legal tender in payment of all debts
and due, public and private, in immediately available funds, without offset, deduction or
recoupment. Any payment by check or draft shall be subject to the condition that any receipt
issued therefore shall be ineffective unless the amount due is actually received by the Bank. Each
payment shall be applied first to the payment of any and all costs, fees and expenses incurred by
or payable to the Bank in connection with the collection or enforcement of this Note, second to the
payment of all unpaid late charges (if any), third to the payment of all accrued and unpaid
interest hereunder and fourth, to the payment of the unpaid principal balance of this Note, or in
any other manner which the Bank may, in its sole discretion, elect from time to time, but only to
the extent to Bank is entitled to such payment under the term of the Loan Documents.
5. Security. As security for this Note and all other Obligations (as defined below)
of Borrower to the Bank, Borrower and any Obligor of this Note hereby give(s) the Bank a continuing
lien and/or right of set-off upon any and all deposit balances now or hereafter maintained with the
Bank, any and all securities and other property of Borrower and any Obligor and the proceeds
thereof now or hereafter coming into the possession or control of the Bank, hereby authorizing the
Bank, at any time upon an Event of Default, without prior notice, to appropriate and apply such
deposits or the proceeds of the sale of such securities or other property to any such Obligations,
although contingent and although unmatured, it being understood that the Bank shall be under no
obligation to effect any such appropriation and application.
6. Defined Terms. As used herein the following terms shall have the following
meanings:
The term “Business Day” shall mean any day other than a Saturday, Sunday, or other day
on which commercial banks in New York are authorized or required to close under the laws of the
State of New York.
The term “Event of Default” shall mean any of the events or conditions specified in
Section 10 hereof.
The term “Guarantor” means each endorser, guarantor and surety of this Note or the
Obligations evidenced hereby and any person who is primarily or secondarily liable, in whole or in
part, for the repayment of the Obligations or any portion thereof (including without limitation
Delek US Holdings, Inc.), any person who has granted security for the repayment of the Obligations,
together with such person’s heirs, personal representatives, successors and assigns.
The term “Indebtedness” shall mean all items of indebtedness, obligation or liability,
whether matured or unmatured, liquidated or unliquidated, funded or unfunded, direct
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or contingent, joint or several, which would properly be included in the liability section of a
balance sheet or in a footnote to a financial statement in accordance with generally accepted
accounting principles, and shall also include (a) all indebtedness guaranteed, directly or
indirectly in any manner, or endorsed (other than for collection or deposit in the ordinary course
of business) or sold with recourse (b) all indebtedness in effect guaranteed, directly or
indirectly, through agreements, contingent or otherwise, and (c) all indebtedness secured by (or
for which the holder of such indebtedness has a right, contingent or otherwise, to be secured by)
any mortgage, deed of trust, pledge, assignment, lien, security interest or other charge or
encumbrance upon property owned or acquired subject thereto, whether or not the liabilities secured
thereby have been assumed or guaranteed.
The term “Interest Period” means:
(a) initially, the period commencing on the date the Loan is made and ending March 31, 2009;
and
(b) each Interest Period thereafter shall commence on the day immediately following the
expiration of the preceding Interest Period and end three (3) months thereafter, provided,
however, that all of the foregoing provisions relating to Interest Periods are subject to
the following:
(i) if any Interest Period would otherwise end on a day which is not a Business Day,
the Interest Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding Business Day; and
(ii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of a calendar month.
The term “LIBOR” shall mean with respect to a specific Interest Period, the rate per
annum as quoted on telerate page 3750 at 11:00 a.m. London time on the day that is two (2) Business
Days prior to the beginning of such Interest Period.
The term “Loan Documents” shall mean this Note or any other document, instrument or
agreement and any amendments thereto, evidencing or securing the Obligations, or now or at any time
hereafter executed, delivered or recorded in connection with the Obligations, , all as amended,
restated, extended, renewed, supplemented, modified or replaced from time to time.
The term “Maturity Date” shall mean December 31, 2011.
The term “Note” shall mean this Term Loan Note.
The term “Obligations” shall mean all existing and future debts, liabilities and
obligations of every kind or nature at any time owing by the Borrower to the Bank, whether
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under this Note or under any other existing or future instrument, document or agreement, between
the Borrower and the Bank, whether joint or several, related or unrelated, primary or secondary,
matured or contingent, due or to become due, including, without limitation, the debts, liabilities
and obligations in respect of this Note and any extensions, modifications, substitutions, increases
and renewals thereof. Without limiting the generality of the foregoing, Obligations shall include
any other loan, advances or extension of credit, under any existing or future loan agreement,
promissory note, or other instrument, document or agreement between the Borrower and the Bank.
The term “Obligor” shall mean individually and collectively the Borrower, each
endorser and surety of this Note, any person who is primarily or secondarily liable for the
repayment of this Note or any portion thereof (including, without limitation each Guarantor) any
person who has granted security for the repayment of the Note, together with such person’s heirs,
personal representatives, successors and assigns.
7. Repayment Extension. If any payment of principal or interest shall be due on day
other than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of the payment of interest.
8. Late Charge. The Borrower shall pay a late charge (the “Late Charge”)
equal to five (5%) percent of the payment then due, if any such payment in whole or in part is not
received by the Bank within ten (10) days after its due date. The Late Charge shall be payable
together with the next payment due hereunder or, at the Bank’s option, upon demand by the Bank,
provided, however, that if any such late charge is not recognized as liquidated damages for such
delinquency, and is deemed to be interest in excess of the amount permitted by applicable law, the
Bank shall be entitled to collect a late charge only at the highest rate permitted by law, and any
payment actually collected by the Bank in excess of such lawful amount shall be deemed a payment in
reduction of the principal sum then outstanding, and shall be so applied.
9. Prepayment. This Note may be prepaid in whole or in part at any time, without
prior notice, provided that each prepayment shall be accompanied by payment of all unpaid costs,
fees expenses and late charges, if any, which are due plus all accrued interest due as of the date
of such prepayment.
10. Representations and Warranties. Borrower represents and warrants to Bank that:
Existence and Qualification; Power — Borrower is a corporation or limited liability
company duly formed, validly existing and in good standing under the laws of the state of its
organization. Borrower is duly qualified or registered to transact business and is in good
standing in each jurisdiction in which the conduct of its business or the ownership or leasing of
its properties makes such qualification or registration necessary. Borrower has all requisite
corporate power and/or other authority to conduct its business, to own and lease its properties and
to execute and deliver this Note and each Loan Document to which it is a party and to perform its
Obligations;
Compliance with Laws — Borrower is in compliance with all laws, regulations and other
legal requirements applicable to its business, has obtained all authorizations, consents,
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approvals,
orders, licenses and permits applicable to its business, and has accomplished (or obtained exemptions from) all filings, registrations and qualifications
that are necessary for the transaction of its business, except as would otherwise not have a
Material Adverse Effect on Borrower;
Authority; Compliance With Other Agreements and Instruments — The execution, delivery
and performance by Borrower of this Note and the other Loan Documents to which it is a party has
been duly authorized by all necessary corporate, partnership or membership action, as applicable,
and does not and will not: (i) require any consent or approval not heretofore obtained of any
manager, director, stockholder, member, partner, security holder or creditor of such party; (ii)
violate or conflict with any provision of Borrower’s partnership agreement, articles of
organization, operating agreement, articles of incorporation, charter, by-laws or other comparable
instruments; or (iii) result in a breach by Borrower or constitute a default by Borrower under, or
cause or permit the acceleration of any obligation owed under, any indenture or loan or credit
agreement or any other contractual obligation to which Borrower is a party or by which Borrower or
any of its property is bound or affected;
Financial Statements — the financial statements of Xxxxxxxx previously furnished to
Bank are complete and correct and fairly represent the financial condition of Borrower through, and
as of the end of, such fiscal period, and the result of Borrower’s operations as of the end of the
most recent fiscal quarter reflect no material adverse change in the financial condition of
Borrower;
No Default — no event has occurred and no event is continuing which with the giving of
notice or the lapse of time or both would constitute an Event of Default;
Representations and Warranties — Borrower hereby affirms that as of the date
hereofall representations and warranties contained herein, or the other Loan Documents, shall be
true and correct and of full force and effect.
Regulations T, U and X; Investment Company Act — no part of the proceeds of the Loan
will be used to purchase or carry, or to extend credit to others for the purpose of purchasing or
carrying, any margin stock within the meaning of Regulations T, U or X of the Board of Governors of
the Federal Reserve System. Borrower is not or is not required to be registered as an “investment
company” under the Investment Company Act of 1940; and
Patriot Act Compliance — Borrower is not involved in any activity, directly or
indirectly, which would constitute a violation of applicable laws concerning money laundering, the
funding of terrorism or similar activities. No part of the proceeds of the Loan will be used to
fund activities which would constitute a violation of the United States Bank Secrecy Act, the
United States Money Laundering Control Act of 1986, the United States International Money
Laundering Abatement and Anti-terrorist Financing Act of 2001.
11. Events of Default. The occurrence of any one or more of the following events
shall constitute an “Event of Default” under this Note:
Payments — if any Borrower, or any other Obligor, fails to make any payment of
principal or interest under this Note when such payment is due and payable; or
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Other Charges — if any Borrower, or any other Obligor, fails to pay any other charges,
fees, expenses or other monetary obligations owing to Bank arising out of or incurred in connection
with this Note within five (5) Business Days after the date such payment is due and payable; or
Particular Covenant Defaults — if any Borrower fails to perform, comply with or
observe any covenant or undertaking contained in any Loan Document and such failure continues for
thirty (30) days after Bank delivers notice to Borrower of such failure to Borrower; or
Financial Information — if any statement, report, financial statement, or certificate
made or delivered by any Borrower, or any other Obligor, to Bank is not true and correct in all
material respect when made or delivered; or
Warranties or Representations — if any warranty, representation or other statement by
or on behalf of any Borrower contained in or pursuant to this Note, the other Loan Documents or in
any document, agreement or instrument furnished in compliance with, relating to, or in reference to
this Note, is false, erroneous, or misleading in any material respect when made; or
Agreements with Others — (i) if Borrower shall default beyond any grace period in the
payment of principal of or interest on any Indebtedness of Borrower in excess of $10 million in
principal amount; or (ii) if Borrower otherwise defaults under the terms of any such Indebtedness
in excess of $10 million in principal amount if the effect of such default is to cause the holder
of such Indebtedness to accelerate the payment of Borrower’s obligations, which are the subject
thereof, prior to the maturity date or prior to the regularly scheduled date of payment; or
Other Agreements with Bank — if Borrower breaches or violates the terms of, or if a
default occurs under, any other existing or future agreement (related or unrelated) (including,
without limitation, the other Loan Documents) between Borrower and the Bank and such breach,
violation or default remains uncured; or
Judgments — if any final, non-appealable, judgment for the payment of money in excess
of $20 million (i) which is not fully and unconditionally covered by insurance or (ii) for which
Borrower has not established a cash or cash equivalent reserve in the full amount of such judgment,
shall be rendered by a court of record against Borrower and such judgment shall continue
unsatisfied and in effect for a period of thirty (30) consecutive days without being vacated,
discharged, satisfied, stayed or bonded pending appeal; or
Assignment for Benefit of Creditors, etc. — if Xxxxxxxx makes or proposes in writing,
an assignment for the benefit of creditors generally, offers a composition or extension to
creditors, or makes or sends notice of an intended bulk sale of any business or assets now or
hereafter owned or conducted by Borrower; or
Bankruptcy, Dissolution, etc. — upon the commencement of any action for the
dissolution or liquidation of Borrower, or the commencement of any proceeding to avoid any
transaction entered into by Borrower, or the commencement of any case or proceeding for
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reorganization or liquidation of Xxxxxxxx’s debts under the Bankruptcy Code or any other state or
federal law, now or hereafter enacted for the relief of debtors, whether instituted by or against
any Borrower; provided however, that such Borrower shall have twenty (20) Business
Days to obtain the dismissal or discharge of involuntary proceedings filed against it, it being
understood that during such twenty (20) Business Day period, Bank may seek adequate protection in
any bankruptcy proceeding; or
Receiver — upon the appointment of a receiver, liquidator, custodian, trustee or
similar official or fiduciary for Borrower or for Borrower’s property; or
Execution Process, etc. — the issuance of any execution or distraint process against
any property of Borrower; or
Termination of Business — if Borrower permanently discontinues any material portion of
its business operations as presently conducted; or
Investigations — any indication or evidence received by Bank that reasonably leads it
to believe Borrower may have directly or indirectly been engaged in any type of activity which,
would be reasonably likely to result in the forfeiture of any material property of Borrower to any
governmental entity, federal, state or local; or
Liens — if any lien in favor of Bank shall cease to be valid, enforceable and
perfected and prior to all other liens other than permitted liens; or
Concealment/Removal of Property — if Borrower, or any other Obligor, conceals, removes
or permits to be concealed or removed any part of such Borrower’s property with intent to hinder,
delay, or defraud any of its creditors; or
Fraudulent Conveyance — the making or suffering by Xxxxxxxx, or any other Obligor, of
a transfer of any property, which is fraudulent under the law of any applicable jurisdiction; or
Material Adverse Effect — if there is any change in Borrower’s financial condition
which, in Bank’s reasonable opinion, has or would be reasonably likely to have a material adverse
effect with respect to (a) the assets, properties, financial condition, credit worthiness, business
prospects, material agreements or results of business operations of Borrower, or (b) Borrower’s
ability to pay the Obligations in accordance with the terms hereof, or (c) the validity or
enforceability of this Note or any of the other Loan Documents or the rights and remedies of Bank
hereunder or thereunder.
12. Rights and Remedies upon Default. Upon and after the occurrence of an Event of
Default hereunder, the Bank, in the Bank’s sole discretion and without notice or demand to Borrower
or any other Obligor, may: (a) declare the entire outstanding principal balance of this Note,
together with all accrued interest and all other sums due under this Note to be immediately due and
payable, and the same shall thereupon become immediately due and payable without presentment,
demand or notice, which are hereby expressly waived; (b) exercise its right of set-off against any
money, funds, credits or other property of any nature whatsoever of Borrower
now or at any time hereafter in the possession of, in transit to or from, under the control or
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custody of, or on deposit with, the Bank or any affiliate of the Bank in any capacity whatsoever,
including without limitation, any balance of any deposit account and any credits with the Bank or
any affiliate of the Bank; (c) terminate any outstanding commitments of the Bank to Borrower or any
Obligor; and (d) exercise any or all rights, powers, and remedies provided for in the Loan
Documents or now or hereafter existing at law, in equity, by statute or otherwise.
13. Remedies Cumulative. Each right, power and remedy of the Bank hereunder, under
the other Loan Documents or now or hereafter existing at law, in equity, by statute or otherwise
shall be cumulative and concurrent, and the exercise or the beginning of the exercise of any one or
more of them shall not preclude the simultaneous or later exercise by the Bank of any or all such
other rights, powers or remedies. No failure or delay by the Bank to insist upon the strict
performance of any one or more provisions of this Note or of the Loan Documents or to exercise any
right, power or remedy consequent upon a breach thereof or a default hereunder shall constitute a
waiver thereof, or preclude the Bank from exercising any such other rights, powers or remedy. By
accepting full or partial payment after the due date of any amount of principal or interest on this
Note, or other amounts payable on demand, the Bank shall not be deemed to have waived the right
either to require prompt payment when due and payable of all other amounts of principal or interest
on this Note or other amounts payable on demand, or to exercise any rights and remedies available
to is in order to collect all such other amounts due and payable under this Note.
14. Collection Expenses. If this Note is placed in the hands of an attorney for
collection following the occurrence of an Event of Default hereunder, the Borrower agrees to pay to
the Bank upon demand costs and expenses, including all attorney’s fees and court costs, paid or
incurred by the Bank in connection with the enforcement or collection of this Note (whether or not
any action has been commenced by the Bank to enforce or collect this Note) or in successfully
defending any counterclaim or other legal proceeding brought by the Borrower contesting the Bank’s
right collect the outstanding principal balance of this Note. The obligation of the Borrower to
pay all such costs and expenses shall not be merged into any judgment by confession against the
Borrower. All of such costs and expenses shall bear interest at the higher of the rate of interest
provided herein or Default Interest Rate provided herein, from the date of payment by the Bank
until repaid in full.
15. Interest Rate after Judgment. If judgment is entered against the Borrower on this
Note, the amount of the judgment entered (which may include principal, interest, fees and costs)
shall bear interest at the higher of (i) the legal rate of interest then applicable to judgments in
the jurisdiction in which judgment was entered or, (ii) if otherwise permitted by applicable law,
the Default Interest Rate provided herein.
16. Maximum Rate of Interest. Notwithstanding any provision of this Note or the Loan
Documents to the contrary, the Borrower shall not be obligated to pay interest pursuant to this
Note in excess of the maximum rate of interest permitted by the laws of any state determined to
govern this Note or the laws of the United States applicable to loans in such state. If any
provisions of this Note shall ever be construed to require the payment of any amount of interest in
excess of that permitted by applicable law, then the interest to be paid pursuant to this Note
shall be held subject to reduction to the amount allowed under applicable law and any sums paid in
excess of the interest rate allowed by law shall be applied in reduction of the principal balance
outstanding pursuant to this Note. Xxxxxxxx acknowledges that the laws of the State of New
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Xxxx will govern the maximum rate of interest that it is permissible for the Bank to charge the Borrower
pursuant to this Note.
17. Certain Waivers by the Borrower. Borrower waives demand, presentment, protest and
notice of demand, of non-payment, of dishonor, and of protest of this Note. The Bank, without
notice to or further consent of Borrower or any other Obligor and without in any respect
compromising, impairing, releasing, lessening or affecting the obligations of Borrower hereunder or
under of the Loan Documents, may: (a) release, surrender, waive, add, substitute, settle, exchange,
compromise, modify, extend or grant indulgences with respect to (i) this Note, (ii) any of the Loan
Documents, and/or (iii) all or any part of any collateral or security for this Note; and/or (iv)
any Obligor; (b) complete any blank space in this Note according to the terms upon which the loan
evidenced hereby is made; and (c) grant any extension or other postponements of the time of payment
hereof.
18. Choice of Law: Forum Selection: Consent to Jurisdiction. This Note shall be
governed by, construed and interpreted in accordance with the laws of the State of New York
(excluding the choice of law rules thereof). Each Borrower hereby irrevocably submits to the
jurisdiction of any New York state court or federal court sitting in New York County, New York in
any action or proceeding arising out of or relating to this Note, and hereby irrevocably waives any
objection to the laying of venue of any such action or proceeding in any such court and any claim
that any such action or proceeding has been brought in an inconvenient forum. A final judgment in
any such action or proceeding shall be conclusive and may be enforced in any other jurisdiction by
suit on the judgment or in any other manner provided by law.
19. Subsequent Holders. In the event that any holder of this Note transfers this Note
for value, Xxxxxxxx agrees that except with respect to a subsequent holder with actual knowledge of
a claim or defense, no subsequent holder of this Note shall be subject to any claims or defenses
which Borrower may have against a prior holder (which claims or defenses are not waived as to prior
holder), all of which are waived as to the subsequent holder, and that all such subsequent holders
shall have all of the rights of a holder in due course with respect to Borrower even though the
subsequent holder may not qualify, under applicable law, absent this paragraph, as a holder in due
course.
20. Invalidity of Any Part. If any provision or part of any provision of this Note
shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision (or any remaining part of any
provision) of this Note, and this Note shall be construed as if such invalid, illegal or
unenforceable provision (or part thereof) had never been contained in this Note, but only to the
extent of its invalidity, illegality, or unenforceability. In any event, if any such provision
pertains to the repayment of the Obligations evidenced by this Note, then and in such event, at the
Bank’s option, the outstanding principal balance of this Note, together with all accrued and unpaid
interest thereon, shall become immediately due and payable.
21. WAIVER OF JURY TRIAL. BORROWER HEREBY (i) COVENANTS AND AGREES NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (ii) WAIVES TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO WHICH THE BANK AND BORROWER MAY BE PARTIES
ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY PERTAINING TO
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THIS NOTE, ANY OF THE LOAN DOCUMENTS
AND/OR ANY TRANSACTIONS, OCCURRENCES, COMMUNICATIONS, OR UNDERSTANDINGS (OR THE LACK OF ANY OF THE
FOREGOING) RELATING IN ANY WAY TO THE BORROWER-BANK RELATIONSHIP BETWEEN THE PARTIES. IT IS
UNDERSTOOD AND AGREED THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST
ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO
THIS NOTE. THIS WAIVER OF JURY TRIAL IS SEPARATELY GIVEN, KNOWINGLY, WILLINGLY AND VOLUNTARILY
MADE BY XXXXXXXX AND BORROWER HEREBY AGREES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN
MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY
ITS EFFECT. THE BANK IS HEREBY AUTHORIZED TO SUBMIT THIS NOTE TO ANY COURT HAVING JURISDICTION
OVER THE SUBJECT MATTER AND BORROWER SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF SUCH WAIVER OF RIGHT
TO TRIAL BY JURY. XXXXXXXX REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF
THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE
WILL, AND/OR THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
22. Waiver of Defenses, Counterclaims, etc. Borrower hereby waives, in any litigation
(whether or not arising out of or related to this note or any other obligation or liabilities to
the bank) in which Borrower and the Bank shall be adverse parties, the right to interpose any
defense, set-off or counterclaim of any nature or description.
23. Prior Note(s). This Note amends, replaces, restates and relates back to the
Promissory Collateral Note dated May 23, 2006 in the principal amount of $30,000,000.00 (“Prior
Note”), and all sums outstanding under the Prior Note shall be deemed outstanding under this
Note as of the date hereof and in the amounts set forth on the Bank’s records.
24. Indemnification. The Borrower agrees: (i) to pay and reimburse Bank for all of
its reasonable and documented out-of-pocket costs and expenses incurred in connection with the
preparation and execution of, and any amendment, supplement or modification to, this Note and the
other Loan Documents, and the consummation and administration of the transactions contemplated
hereby and thereby, including the reasonable fees, disbursements and other charges of external
counsel, (ii) to pay and reimburse Bank for reasonable and documented out-of-pocket costs and
expenses incurred in connection with the enforcement or preservation of any rights under this Note,
Loan Documents and any such other documents, including the reasonable fees, disbursements and other
charges of its external counsel, (iii) to pay, indemnify and hold harmless the Bank and its
directors, officers and agents (each, an “Indemnified Party” and collectively,
“Indemnified Parties”) from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever, including reasonable and documented fees, disbursements and other charges of
external counsel for all Indemnified Parties in connection with the execution, delivery,
enforcement, performance and administration of this Note or the Loan Documents and any such other
documents or the use of the proceeds thereof, including any of the foregoing relating to the
violation of, noncompliance with or liability applicable to the operations of the Borrower,
any of
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its subsidiaries; provided that the Borrower shall have no obligation hereunder to any
Indemnified Party with respect to damages caused directly by the negligence or misconduct of such
Indemnified Party.
25. Miscellaneous. Time is of the essence under this Note. The paragraph headings of
this Note are for convenience only, and shall not limit or otherwise affect any of the terms
hereof. This Note and the other Loan Documents, if any, constitute the entire agreement between
the parties with respect to their subject matter and supersede all prior letters, representations,
or agreements, oral or written, with respect thereto. No modification, release, or waiver of this
Note shall be deemed to be made by the Bank unless in writing signed by the Bank, and each such
waiver, if any, shall apply only with respect to the specific instance involved. No course of
dealing or conduct shall be effective to modify, release or waive any provisions of this Note or
any of the other Loan Documents. This Note shall inure to the benefit of and be enforceable by the
Bank and the Bank’s successors and assigns and any other person to whom the Bank may grant an
interest in the obligations evidenced by this Note and shall be binding upon and enforceable
against the Borrower and the Borrower’s successors and assigns. Whenever used herein, the singular
number shall include the plural, the plural the singular, and the use of the masculine, feminine,
or neuter gender shall include all genders. This Note may be executed in any number of
counterparts, all of which, when taken together shall constitute one Note.
IN WITNESS WHEREOF, the parties hereto have duly executed this Note on the date first written
above.
| BORROWER: Delek Finance, Inc. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | CFO | |||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Treasurer | |||
11
