Amended And Restated Revolving Credit Agreement

AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT


dated as of May 2, 2005


among


DELEK REFINING, LTD.,


DELEK PIPELINE TEXAS, INC.,
as Borrowers


THE LENDERS FROM TIME TO TIME PARTY HERETO


THE CIT GROUP/BUSINESS CREDIT, INC.,
as the Collateral and Co-Documentation Agent


NATIONAL CITY BUSINESS CREDIT, INC.,
as Co-Documentation Agent


BANK OF AMERICA, N.A. and
PNC BUSINESS CREDIT, INC.,
as Co-Syndication Agents


and


SUNTRUST BANK,
as the Administrative Agent


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SUNTRUST CAPITAL MARKETS, INC.,
as Sole Lead Arranger and Book Manager


TABLE OF CONTENTS
Page
---- ARTICLE I................................................................ 3


DEFINITIONS; CONSTRUCTION................................................ 3
Section 1.1 Definitions............................................. 3
Section 1.2 Classifications of Loans and Borrowings................. 32
Section 1.3 Accounting Terms and Determination...................... 33
Section 1.4 Terms Generally......................................... 33


ARTICLE II............................................................... 33


AMOUNT AND TERMS OF THE COMMITMENTS...................................... 33
Section 2.1 General Description of Facilities....................... 33
Section 2.2 Revolving Loans......................................... 34
Section 2.3 Procedure for Revolving Borrowings...................... 34
Section 2.4 Swingline Commitment.................................... 35
Section 2.5 Agent Advances.......................................... 37
Section 2.6 [Reserved].............................................. 38
Section 2.7 Funding of Borrowings................................... 38
Section 2.8 Interest Elections...................................... 39
Section 2.9 Optional Reduction and Termination of Commitments....... 40
Section 2.10 Repayment of Loans...................................... 41
Section 2.11 Evidence of Indebtedness................................ 41
Section 2.12 Optional Prepayments.................................... 41
Section 2.13 Mandatory Prepayments................................... 42
Section 2.14 Interest on Loans....................................... 43
Section 2.15 Fees.................................................... 44
Section 2.16 Computation of Interest and Fees........................ 45
Section 2.17 Inability to Determine Interest Rates................... 45
Section 2.18 Illegality.............................................. 46
Section 2.19 Increased Costs......................................... 46
Section 2.20 Funding Indemnity....................................... 48
Section 2.21 Taxes................................................... 48
Section 2.22 Payments Generally; Pro Rata Treatment; Sharing of Set-
offs.................................................... 50
Section 2.23 Letters of Credit....................................... 52
Section 2.24 Application of Payments................................. 56
Section 2.25 Mitigation of Obligations............................... 57
Section 2.26 Replacement of Lenders.................................. 58
Section 2.27 Agent Borrower.......................................... 58
Section 2.28 Nature and Extent of Each Borrower's Liability.......... 58


ARTICLE III.............................................................. 60 CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT...................... 60
Section 3.1 Conditions To Effectiveness............................. 60
Section 3.2 Each Credit Event....................................... 64
Section 3.3 Delivery of Documents................................... 64


ARTICLE IV............................................................... 64


REPRESENTATIONS AND WARRANTIES........................................... 64
Section 4.1 Existence; Power........................................ 65
Section 4.2 Organizational Power; Authorization..................... 65
Section 4.3 Governmental Approvals; No Conflicts.................... 65
Section 4.4 [Reserved ]............................................. 65
Section 4.5 Litigation and Environmental Matters.................... 65
Section 4.6 Compliance with Laws and Agreements..................... 66
Section 4.7 Investment Company Act, Etc............................. 66
Section 4.8 Taxes................................................... 66
Section 4.9 Margin Regulations...................................... 66
Section 4.10 ERISA................................................... 66
Section 4.11 Ownership of Property................................... 67
Section 4.12 Disclosure.............................................. 67
Section 4.13 Labor Relations......................................... 67
Section 4.14 Subsidiaries............................................ 68
Section 4.15 Insolvency.............................................. 68
Section 4.16 Subordination of Subordinated Debt...................... 68
Section 4.17 Accounts................................................ 68
Section 4.18 OF AC................................................... 69
Section 4.19 Patriot Act............................................. 69


ARTICLE V................................................................ 70


AFFIRMATIVE COVENANTS.................................................... 70
Section 5.1 Financial Statements and Other Information.............. 70
Section 5.2 Lien Perfection......................................... 71
Section 5.3 Location of Collateral; Consignment of Inventory........ 71
Section 5.4 Protection of Collateral................................ 71
Section 5.5 Assignments and Records of Accounts..................... 72
Section 5.6 Administration of Accounts.............................. 72
Section 5.7 Administration of Inventory............................. 75
Section 5.8 [Reserved].............................................. 76
Section 5.9 Borrowing Base Certificates............................. 76
Section 5.10 Notices of Material Events.............................. 76
Section 5.11 Existence; Conduct of Business.......................... 77
Section 5.12 Compliance with Laws, Etc............................... 77
Section 5.13 Payment of Obligations.................................. 78
Section 5.14 Books and Records....................................... 78
Section 5.15 Visitation, Inspection, Etc............................. 78
Section 5.16 Maintenance of Properties; Insurance.................... 78
Section 5.17 Use of Proceeds and Letters of Credit................... 79
Section 5.18 Commodity Hedging....................................... 79
Section 5.19 Subordinated Working Capital Facility................... 79
Section 5.20 Collateral Access Agreements............................ 80
Section 5.21 BSI Report.............................................. 80
Section 5.22 Opening Balance Sheet................................... 80


ARTICLE VI............................................................... 80


FINANCIAL COVENANTS...................................................... 80
Section 6.1 Fixed Charge Coverage Ratio............................. 80
Section 6.2 Capital Expenditures.................................... 80


ARTICLE VII.............................................................. 81


NEGATIVE COVENANTS....................................................... 81
Section 7.1 Indebtedness and Preferred Equity....................... 81
Section 7.2 Negative Pledge......................................... 82
Section 7.3 Fundamental Changes..................................... 82
Section 7.4 Investments, Loans, Etc................................. 83
Section 7.5 Restricted Payments..................................... 84
Section 7.6 Sale of Assets.......................................... 84
Section 7.7 Transactions with Affiliates............................ 84
Section 7.8 Restrictive Agreements.................................. 85
Section 7.9 Sale and Leaseback Transactions......................... 85
Section 7.10 Hedging Transactions.................................... 85
Section 7.11 Amendment to Material Documents......................... 85
Section 7.12 Permitted Subordinated Indebtedness..................... 86
Section 7.13 Accounting Changes...................................... 86
Section 7.14 Lease Obligations....................................... 86


ARTICLE VIII............................................................. 86


EVENTS OF DEFAULT........................................................ 86
Section 8.1 Events of Default....................................... 86


ARTICLE IX............................................................... 89


THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT........................ 89
Section 9.1 Appointment of Agents................................... 89
Section 9.2 Nature of Duties........................................ 90
Section 9.3 Lack of Reliance on the Agents.......................... 90
Section 9.4 Certain Rights of the Agents............................ 91
Section 9.5 Reliance by Agents...................................... 91
Section 9.6 The Agents in their Individual Capacity................. 91
Section 9.7 Successor Agents........................................ 91
Section 9.8 Authorization to Execute other Loan Documents........... 92
Section 9.9 Documentation Agent; Syndication Agent.................. 92


Section 9.10 BSI Report; Reconciliation to Borrowing Base............ 92


ARTICLE X................................................................ 92


MISCELLANEOUS............................................................ 92
Section 10.1 Notices................................................. 92
Section 10.2 Waiver; Amendments; Out-of-Formula Loans................ 94
Section 10.3 Expenses; Indemnification............................... 96
Section 10.4 Successors and Assigns.................................. 98
Section 10.5 Governing Law; Jurisdiction; Consent to Service of
Process................................................. 100
Section 10.6 WAIVER OF JURY TRIAL.................................... 101
Section 10.7 Right of Setoff......................................... 101
Section 10.8 Counterparts; Integration............................... 102
Section 10.9 Survival................................................ 102
Section 10.10 Severability............................................ 102
Section 10.11 Confidentiality......................................... 102
Section 10.12 Interest Rate Limitation................................ 103
Section 10.13 Waiver of Effect of Corporate Seal...................... 103
Section 10.14 Posting of Electronic Communications;
Viewing of Accounts..................................... 103


Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule II - Commitment Amounts
Schedule III - Eligible Carriers
Schedule IV - Continuing Borrowing Base Items
Schedule 1.1 (c) - Other Permitted Investments
Schedule 4.5 - Environmental Matters
Schedule 4.6 - Compliance with Laws
Schedule 4.14 - Subsidiaries
Schedule 5.3 - Collateral Locations
Schedule 5.6 - Deposit Accounts
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments


Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Security Agreement
Exhibit C - Form of Swingline Note
Exhibit D - Form of Pledge Agreement
Exhibit E - Form of Assignment and Acceptance
Exhibit F - Form of Subsidiary/Delek Land Guaranty Agreement
Exhibit G - Form of Parent Guaranty Agreement
Exhibit H - Form of Borrowing Base Certificate
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.4 - Form of Notice of Swingline Borrowing
Exhibit 2.8 - Form of Continuation/Conversion
Exhibit 3.l(b)(v) - Form of Secretary's Certificate
Exhibit 5.l(d) - Form of Compliance Certificate


AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT


THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered into as of May 2, 2005, by and among, DELEK REFINING, LTD. (individually and, in its capacity as the representative of the other Borrowers pursuant to Section 2.27 hereof, "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"), the several banks and other financial institutions and lenders from time to time party hereto (the "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 CIT GROUP/BUSINESS CREDIT, INC. and NATIONAL CITY BUSINESS CREDIT, INC., in their capacities as co-documentation agents (each in such capacity, the "Co-Documentation Agents"), and BANK OF AMERICA, N.A. and PNC BUSINESS CREDIT, INC., in their capacities as co-syndication agents (each in such capacity, the "Co-Syndication Agents"). Capitalized terms used in this Agreement have the meanings assigned to them in Article I hereof.


WITNESSETH:


WHEREAS, the Borrowers, the Agents, certain financial institutions ("Existing Lenders"), and the other parties named therein are parties to a certain Revolving Credit Agreement dated April 29, 2005 (as at any time amended, modified, supplemented or restated, the "Existing Credit Agreement"), pursuant to which Existing Lenders made certain revolving credit loans, letters of credit, and other financial accommodations to the Borrowers in an amount not exceeding $250,000,000;


WHEREAS, the Borrowers have requested that the Existing Credit Agreement be amended and restated in its entirety to become effective and binding on the Borrowers and the other Loan Parties pursuant to the terms hereof, and the Lenders (including the Existing Lenders that are parties hereto) have agreed, subject to the terms of this Agreement, to amend and restate the Existing Credit Agreement in its entirety to read as set forth herein, and it has been agreed by the parties hereto that (a) the commitments which the Existing Lenders that are parties hereto extended to the Borrowers under the Existing Credit Agreement and the commitments of new Lenders that become parties hereto shall be extended or advanced upon the amended and restated terms and conditions contained in this Agreement and (b) the Loans and other Obligations outstanding under the Existing Credit Agreement shall be governed by and deemed to be outstanding under the amended and restated terms and conditions contained herein;


WHEREAS, all existing Obligations are and shall continue to be (and all Obligations incurred pursuant hereto shall be) secured by, among other things, the Security


Documents and the other Loan Documents and shall be guaranteed pursuant to the Subsidiary/Delek Land Guaranty Agreement and the Parent Guaranty Agreement, and


NOW, THEREFORE, the parties hereto hereby agree to amend and restate the Existing Credit Agreement and the Existing Credit Agreement is hereby amended and restated, in its entirety as follows:


ARTICLE I


DEFINITIONS; CONSTRUCTION


SECTION 1.1 DEFINITIONS. In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (to be equally applicable to both the singular and plural forms of the terms defined):


"Account Debtor" shall mean any Person who is obligated to make payments under an Account.


"Accounts" shall mean all accounts, contract rights, chattel paper, instruments, drafts, acceptances and documents of a Borrower arising from the sale or lease of goods or the provision of services by a Borrower in the ordinary course of its business, whether secured or unsecured, and whether now existing or hereafter created or arising, and "Account" shall mean any one of the foregoing.


"Accounts Formula Amount" shall mean, on any date of determination thereof, an amount equal to the sum of (i) 85% of the net amount of Eligible Accounts on such date, plus (ii) 100% of LC Backed Accounts. As used herein, the phrase "net amount of Eligible Accounts" shall mean the face amount of such Accounts on any date less any and all returns, rebates, discounts (which may, at the Collateral Agent's option, be calculated on shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with, or any interest accrued on the amount of, such Accounts at such date.


"Acquisition" shall mean the acquisition of certain assets of Seller as contemplated by the terms of the Acquisition Documents.


"Acquisition Documents" shall mean any and all agreements and other documents relating to the Acquisition, including, without limitation, the Asset Purchase Agreement.


"Adjusted LIBO Rate" shall mean, with respect to each Interest Period for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar Reserve Percentage.


"Administrative Questionnaire" shall mean, with respect to each Lender, an administrative questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative Agent duly completed by such Lender.


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"Affiliate" shall mean, as to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person. For the purposes of this definition, "Control" shall mean the power, directly or indirectly, either to (i) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of a Person or (ii) direct or cause the direction of the management and policies of a Person, whether through the ability to exercise voting power, by control or otherwise. The terms "Controlling", "Controlled by", and "under common Control with" have the meanings correlative thereto.


"Agent Advances" has the meaning set forth in Section 2.5 hereof.


"Agent Banks" means the Administrative Agent, the Collateral Agent, the Co-Documentation Agents and the Co-Syndication Agents.


"Agents" means the Administrative Agent and the Collateral Agent, and "Agent" means any one of them.


"Aggregate Revolving Commitment Amount" shall mean the aggregate principal amount of the Aggregate Revolving Commitments from time to time. On the Closing Date, the Aggregate Revolving Commitment Amount equals $250,000,000.


"Aggregate Revolving Commitments" shall mean, collectively, all Revolving Commitments of all Lenders at any time outstanding.


"Applicable Lending Office" shall mean, for each Lender and for each Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such Lender) designated for such Type of Loan in the Administrative Questionnaire submitted by such Lender or such other office of such Lender (or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrowers as the office by which its Loans of such Type are to be made and maintained.


"Applicable Margin" shall mean, as of any date, with respect to interest on all Revolving Loans outstanding on any date or the letter of credit fee, as the case may be, a percentage per annum determined by reference to the applicable Average Availability from time to time in effect as set forth on Schedule I; provided, that a change in the Applicable Margin resulting from a change in the Average Availability shall be effective on the second Business Day after which the Agents shall have received all Borrowing Base Certificates required by Section 5.9 for the applicable quarterly period; provided further, that if the Agents have not received such Borrowing Base Certificates for any applicable quarterly period by the dates such Borrowing Base Certificates are required to be delivered under this Agreement, the Applicable Margin shall be at Level IV as set forth on Schedule I until such time as such Borrowing Base Certificates are delivered, at which time the Applicable Margin shall be determined as provided above. Notwithstanding the foregoing, the Applicable Margin from the Closing Date until all Borrowing Base Certificates for the Fiscal Quarter ending December 31, 2005 are delivered shall be at Level II as set forth on Schedule I.


"Applicable Percentage" shall mean, as of any date, with respect to the commitment fee as of any date, the percentage per annum determined by reference to the


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applicable Average Availability in effect on such date as set forth on Schedule I; provided, that a change in the Applicable Percentage resulting from a change in the Average Availability shall be effective on the second Business Day after the Agents shall have received all Borrowing Base Certificates required by Section 5.9 for the applicable quarterly period; provided further, that if the Agents shall not have received such Borrowing Base Certificates for any applicable quarterly period by the dates such Borrowing Base Certificates are required to be delivered under this Agreement, the Applicable Percentage shall be at Level IV as set forth on Schedule I until such time as such Borrowing Base Certificates are delivered, at which time the Applicable Percentage shall be determined as provided above. Notwithstanding the foregoing, the Applicable Percentage for the commitment fee from the Closing Date until all Borrowing Base Certificates for the Fiscal Quarter ending December 31, 2005 are delivered shall be at Level II as set forth on Schedule I.


"Approved Electronic Communications" shall mean each notice, demand, communication, information, document and other material that any Loan Party is obligated to, or otherwise chooses to, provide to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein, including any financial statement or and other financial report, Borrowing Base Certificate, notice, request, certificate and other information or material; provided, however, that, "Approved Electronic Communication" shall exclude (i) all Notices of Borrowing, any request for a Letter of Credit, any Notice of Conversion/Continuation, and any other notice, demand, communication, information, document and other material relating to a request for a new, or a conversion of an existing, Borrowing, (ii) any notice pursuant to Sections 2.9, 2.12 or 2.13 and any other notice relating to the payment of any principal or other amount due under any Loan Document prior to the scheduled date therefor, (iii) all notices of any Default or Event of Default and (iv) any notice, demand, communication, information, document and other material required to be delivered to satisfy any of the conditions set forth in Article III or any other condition to any Borrowing or other extension of credit hereunder or any condition precedent to the effectiveness of this Agreement.


"Approved Fund" shall mean any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.


"Asset Purchase Agreement" shall mean that certain Refinery Purchase and Sale Agreement, dated as of March 14, 2005, as amended April 29, 2005, among the Borrowers, and Delek Land, as purchasers, and the Seller, as seller.


"Assignment and Acceptance" shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit E attached hereto or any other form approved by the Administrative Agent.


"Availability" shall mean on any determination date, the amount that Borrowers are entitled to borrow as Revolving Loans on such date, such amount being the difference derived when (a) the aggregate amount of the outstanding Loans is subtracted from (b) the


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Borrowing Base on such date. If the sum of the amounts outstanding under clause (a) is equal to or greater than the Borrowing Base, Availability is zero.


"Availability Block" shall mean the amount of $15,000,000.


"Availability Period" shall mean the period from the Closing Date to the Revolving Commitment Termination Date.


"Availability Reserve" shall mean on any date of determination thereof, an amount equal to the sum of the following (without duplication): (i) from and after the 45th day after the Closing Date, three (3) months rental payments, storage charges or throughput fees or other similar charges (net of cash deposits securing such obligations, as evidenced to the reasonable satisfaction of the Agents from time to ti ...