FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
[Those portions of this agreement that have been omitted and filed separately with the U.S. Securities and Exchange Commission
pursuant to Delek US Holdings, Inc.’s application requesting confidential treatment are marked “[***]” herein.]
Exhibit 10.6(d)
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is
made and entered into as of February 18, 2009 (provided, that the provisions of Section 5 shall be
effective as of the date provided therein), 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”), as swingline lender (the “Swingline Lender”), and 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 Second Amended and Restated Credit
Agreement, dated October 13, 2006, as amended as of December 15, 2008, January 30, 2009 and
February 13, 2009 (as at any time further 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.
The Administrative Agent, the Lenders signatory hereto and the Borrowers desire to amend the
Credit Agreement as set forth hereinafter.
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. Amendment to Definition. The definition indicated below is hereby amended and
restated to provide as follows:
“Borrowing Base Certificate” shall mean a certificate,
substantially in the form attached hereto as Exhibit H, by which the
Borrowers shall certify to each Agent and the Lenders, with such frequency
as provided in Section 5.9 hereof, the amount of the Borrowing Base
as of the date of the certificate (which date shall be not more than four
(4) Business Days earlier than the date of submission of such certificate to
Collateral Agent) and the calculation of such amount.
3. Amendment to Definition. The definition of “Reinstatement Conditions” is hereby
amended by deleting the proviso therein and replacing the same with:
“provided, that if Borrowers fail to satisfy the applicable
Excess Availability Conditions more than three (3) times following the
occurrence of the Recommencement Conditions (as defined in the Fourth
Amendment to this Agreement, dated as of February 18, 2009) during any
twelve (12) month period, the Borrowers may not avail themselves of the
applicable Reinstatement Conditions for a period of twelve (12) months from
the date on which the Borrowers last failed to satisfy such Excess
Availability Conditions.”
4. Suspension of Revolving Commitments. Until Delek Refining shall have satisfied the
Recommencement Conditions (as hereafter defined), the Lenders shall have no Revolving Commitments
under the Credit Agreement; provided that, no earlier than two weeks prior to the
anticipated (as of such date) recommencement of such refinery operations, at the written request of
the Borrowers the Issuing Bank shall issue Letters of Credit under Section 2.23 of the Credit
Agreement for the account of the Borrowers up to an amount not to exceed the lesser of (i)
$100,000,000 in the aggregate face amount or (ii) the value of crude oil equal to 2,000,000 barrels
multiplied by the weighted average price per barrel for the crude oil reflected in the applicable
Letters of Credit, minus the amount of open trade credit utilized from beneficiaries of
such Letters of Credit; provided that, in connection with any such issuance of
Letters of Credit, the provisions of Section 2.23(a)(iii) shall not be applicable. For purposes
hereof the term “Recommencement Conditions” shall mean the Borrowers satisfaction on or before
September 30, 2009, of each of the following conditions:
(a) Borrower’s shall have Availability of not less than $30,000,000 as
evidenced by a current Borrowing Base Certificate;
(b) no Default or Event of Default shall exist or would exist upon the
reinstatement of the Revolving Commitments;
(c) the Administrative Agent’s receipt of (i) reasonably satisfactory
field examinations of the Borrowers’ refinery in Tyler, Texas (the “Refinery”),
including the Collateral (which the Administrative Agent agrees to promptly complete
following reconstruction upon the Borrowers’ written request) and (ii) the status of
penalties or claims, if any, asserted by OSHA or any other applicable Governmental
Authority;
(d) the Pipeline Transaction (as hereafter defined) shall have been
consummated and (i) the Borrowers shall have entered into through-put and storage
agreements with the Buyer (as hereafter defined) substantially on the terms set
forth on Schedule 1 and otherwise on commercially reasonably terms (the
“Pipeline Agreement”), and (ii) the Administrative Agent and the Buyer shall
have entered into access agreements with respect to such pipeline and storage
facilities which permits the Administrative Agent, following an Event of Default and
as assignee of the Borrowers, to be entitled to the rights of Borrowers under the
Pipeline Agreement for so long as Administrative Agent performs obligations of
Borrowers thereunder and which agreement is otherwise reasonably acceptable to the
Administrative Agent; and
(e) the Borrowers shall have represented to the Administrative Agent in
writing that (w) the Refinery has been restored to a through-put operating
capability of not less than 40,000 bpd (x) all required repairs to the Refinery have
been completed to allow for such capability, (y) the Borrowers shall have received
all material federal, state and local permits, approvals and authorizations
necessary to achieve such capability and (z) the Borrowers have utilized or will
utilize not less than $27,500,000 of cash proceeds from the Pipeline Transaction (as
hereafter defined) in connection with the repair and improvement of the Refinery.
5. Application of Section 5.16(a). Effective as of November 20, 2008, the provisions
of Section 5.16(a) shall not apply for any purpose under the Credit Agreement until the Restart (as
defined below) of Delek Refining’s refinery operations, on which date such provisions shall be
deemed reinstated for all periods following such date.
6. Payments of Permitted Subordinated Debt. From the date of the issuance of any
Letter of Credit under Section 4 of this Amendment through the date on which the Borrowers’
Refinery operations are operating at an average daily charge rate of 50,000 bpd for 30 consecutive
days, the Borrowers shall make no payments of principal in respect of Permitted Subordinated Debt
unless (a) the Borrowers shall have received $30,000,000 or more in insurance proceeds, and (b)
Availability is not less than $15,000,000 after giving effect to any such payment. At all times
other than during such period, the Borrowers shall be permitted to repay permitted Subordinated
Debt as permitted by the Subordination Agreement or Section 5.19 of the Credit Agreement, as
applicable.
7. Amendment to Section 7.14. The reference to“$1,000,000” in Section 7.14 of the
Credit Agreement is hereby amended to read as: “$10,000,000,” and the following proviso shall be
added at the end of such Section: “; provided that this Section 7.14 shall not apply to any
operating lease or agreement to lease entered into or assumed in connection with the Pipeline
Transaction (as defined in the amendment to this Agreement, dated on or about February 18, 2009).”
8. Recommencement of Refinery Operations. The parties hereto acknowledge that since
November 20, 2008, the refinery operated by Borrowers in Tyler, Texas (the “Refinery”), has been
rendered inoperable due to an incident which occurred on such date (the “Incident”). The Borrowers
will, and will cause each of their Subsidiaries to, restart operations at the Refinery after the
Incident no later than September 30, 2009 (the “Required Restart Date”). For purposes of satisfying
this covenant, Borrowers shall be required to (i) resume refining operations at the Refinery on or
before the Required Restart Date, and (ii) process on average, for seven (7) consecutive days
immediately following the actual date of restart, an amount of crude oil daily equal to 40,000 bpd
(the “Restart”). The Borrowers’ failure to restart Refinery operations as required
hereinabove as of the Required Restart Date shall be deemed an Event of Default under the Credit
Agreement. The Required Restart Date shall be automatically tolled for a period not to exceed 30
consecutive days upon the Borrowers’ written notice to the Administrative Agent on or before the
Required Restart Date that an event of Force Majeure (as hereafter defined) has occurred. For
purposes hereof the term “Force Majeure” shall mean acts of God, strikes, lockouts or other
industrial disturbances, acts of the public enemy, wars, blockades, insurrections, riots, storms,
floods, washouts, civil disturbances and any other causes whether of the kind herein enumerated or
otherwise not reasonably within the control of the Borrowers and which by the exercise of due
diligence the Borrowers are unable to prevent or overcome. Notwithstanding the foregoing, the
inability of the Borrowers to make payments when due, or to secure funds, arrange bank loans or
other financing, or obtain adequate credit shall not be regarded as events of Force Majeure.
9. Pipeline Transaction. Notwithstanding any provision of the Credit Agreement and
the other Loan Documents to the contrary and for so long as no Event of Default exists, the
Administrative Agent consents to (x) the conveyance, sale, lease, license, assignment, transfer or
other disposition of certain pipeline and storage property assets as set forth in Schedule II
attached hereto and related properties and interests, both real and personal, by Delek Refining and
certain subsidiaries of the Borrowers to Delek Marketing GP, LLC or Affiliates thereof (in any
instance, the “Buyer”) and (y) the Borrowers entering into the Pipeline Agreement and any
other agreements reasonably determined by the Borrowers to be necessary to effect the foregoing
transactions (the transactions referenced in the foregoing clauses (x) and (y) being collectively
referred to as the “Pipeline Transactions”); provided that (a) the Borrowers shall
have given to the Administrative Agent 3 days prior written notice of the consummation of the
Pipeline Transaction, which notice shall include, in reasonable detail, the final terms and
conditions of the Pipeline Transaction and copies of all material documentation executed or
delivered in connection with such transaction; (b) the Borrowers shall have delivered to the
Administrative Agent a current appraisal Pipeline System (taking into account the Pipeline
Transaction) prepared by a reputable firm experienced in appraising assets of similar, which
reflects a valuation of the Pipeline Transaction that is consistent with the total cash
consideration received by Borrowers in connection therewith; and (c) in connection therewith, the
Administrative Agent and the Borrowers shall have reached an agreement as to appropriate additional
Availability Reserve in a manner consistent with the definition thereof and Section 5.9 of the
Credit Agreement. Subject to the foregoing and at the Borrowers’ expense, the Administrative Agent
shall execute and deliver such releases as may be reasonably requested by the Borrowers to
terminate any negative pledges to the extent relating to the assets subject to the Pipeline
Transaction.
10. Covenants to Deliver. Until the Recommencement Conditions have been satisfied,
the Borrowers shall deliver to the Administrative Agent a Borrowing Base Certificate no less
frequently than weekly. Following the satisfaction of the Recommencement Conditions, the Borrowers
shall deliver Borrowing Base Certificates in accordance with the terms of Section 5.9 of the Credit
Agreement.
11. 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, in each case as amended hereby.
12. 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.
13. 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; (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; and (d) the Borrowers have
not received from OSHA, the EPA or any other applicable Governmental Authority notifications or
citations alleging or asserting the imposition of penalties or violations of applicable law arising
from the Incident.
14. 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.
15. 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
(following the expiration of any applicable cure period).
16. 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 amounts payable under a
fee letter dated on or about the date hereof and payment to the Administrative Agent
for the ratable benefit of the Lenders of the amendment fee referenced in Section 17
of this Amendment;
(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.
17. Amendment Fee. In consideration of the Agents’ and Lenders’ willingness to enter
into this Amendment, Borrowers agree to pay to the Administrative Agent for the ratable benefit of
each Lender which executes this Amendment on or before Wednesday , February 18, 2009, an amendment
fee in an amount equal to .25% of the amount of the Revolving Commitment of each such Lender.
18. Expenses of the Administrative Agent. Borrowers agree to pay all costs and
expenses incurred by the Administrative Agent 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 Agent’s legal counsel and any taxes or expenses associated with or incurred in
connection with any instrument or agreement referred to herein or contemplated hereby.
19. Miscellaneous. This Amendment shall be effective upon acceptance by the
Administrative Agent 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.
20. 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, including, without
limitation, the Borrowers’ obligation to pay commitment fees pursuant to Section 2.15(b) of the
Credit Agreement. This Amendment is not intended to 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.
21. Further Assurances. Each Borrower agrees to take such further actions as the
Administrative Agent 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.
22. 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.
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/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| By | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Treasurer | |||
| DELEK PIPELINE TEXAS, INC. |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| By | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Treasurer | |||
| Schedule I |
In connection with the asset sale, the parties will enter into a long term Pipelines and
Tankage Agreement whereby Delek Refining and/or its affiliates (“Refining”) will continue
to use the pipelines and tank storage and Buyer will provide transportation and storage services to
Refining. In exchange for these services, Refining will pay Buyer a throughput fee equal to $0.35
per barrel subject to annual increases based on the FERC Oil Pipeline Index (with an minimum
guaranteed monthly fee of $425,000) and a guaranteed storage fee equal to $250,000 per month for
capacity of 900,000 barrels per month subject to annual increases
based on the FERC oil Pipeline
Index. Refining will continue to pay the Plains pipeline lease fee of [***] per barrel up to 27,000 bpd then [***] per barrel (total estimated at [***] annually). Buyer will be responsible for
all maintenance capital expense.
Schedule 1
| SCHEDULE II |
| Pipeline Transaction Assets |
| • | The real and personal property consisting of approximately 16.58 acres in Xxxxx County, and 55.347 · acres in Xxxxx County, Texas, as shown on the X.X. Xxxxx Survey A-59, and otherwise referred to as the La Xxxxxx Tank Farm Site, along with the crude oil pipeline and crude oil gathering system and all rights of way and any other related assets associated therewith; | |
| • | The crude oil pipeline and crude oil gathering system located in Xxxxx, Xxxxx and Xxxx Counties, Texas, and all rights of way associated therewith, owned by or in favor of MPC Pipeline Acquisition, Inc. (“MPC Pipeline”) and MPC Land Acquisition, Inc. (“MPC Land”); | |
| • | All other real property interests (including easements, licenses or other rights of way) owned or leased by or for the benefit of MPC Pipeline and MPC Land together with all improvements, fixtures, non crude oil inventories, equipment and fixtures located thereon; | |
| • | All other real property interests (including easements, licenses or other rights of way) owned or leased by or for the benefit of Delek Refining, Ltd., Delek Land Texas, Inc. and Delek Pipeline Texas, Inc. for use in connection with the above referenced pipeline and gathering system, together with all improvements, fixtures, non crude oil inventories, equipment and fixtures located thereon | |
| • | All machinery, equipment, vehicles, tools, supplies, spare parts, catalysts, chemicals and precious metals and other non-crude oil personal property owned by MPC Land and MPC Acquisition, located at the above listed sites and used or held for use by MPC Land or MPC Acquisition in connection with their operations, and all spare parts owned by MPC Land and MPC Acquisition, located off the transferred sites and held for use by MPC Land or MPC Acquisition in connection with their operations; | |
| • | That certain Pipeline Capacity Lease Agreement, dated April 12, 1999 by and between La Xxxxxx Oil and Gas Company and Xxxxxxxx Permian LLC, as extended by Extension of Lease, dated effective January 1,2005 (and as may have been further extended or amended), by and between La Xxxxxx Oil and Gas Company and Plains Marketing L.P., as successor in interest to Xxxxxxxx Permian LLC. | |
| • | Such other properties, rights and interests (whether contractual or otherwise) directly associated with the operation, maintenance of the assets transferred by MPC Pipeline and MPC Land; | |
| • | All rights to the name and xxxx ·“XxXxxxxx” and any other intel1ectual property rights that are in use with the foregoing assets; and | |
| • | All books and records relating primarily to the foregoing assets. |
CONSENT ANDREAFFIRMATION
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 Fourth
Amendment to Second 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 Fourth Amendment to Second Amended and Restated Credit Agreement.
| DELEK REFINING, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | ||||
| Title: | Treasurer | |||
| DELEK US REFINING GP, LLC |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | ||||
| Title: | Treasurer | |||
| DELEK LAND TEXAS, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | ||||
| Title: | Treasurer | |||
[Signatures will continue on following page]
| MPC PIPELINE ACQUISITlON, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | ||||
| Title: | Treasurer | |||
| MPC LAND ACQUISITION, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | ||||
| Title: | Treasurer | |||
[Signatures will continue on following page]
