First Amendment to Throughput and Tankage Agreement (Tyler Terminal and Tankage), dated as of December 14, 2018, by and between Delek Refining, LTD., and Delek Marketing & Supply, LP
EX-10.39 2 dkl-ex1039xtylertermin.htm FIRST AMENDMENT-TYLER TERMINAL AND TANKAGE AGREEMENT Exhibit
FIRST AMENDMENT TO THROUGHPUT AND TANKAGE AGREEMENT
(Tyler Terminal and Tankage)
THIS FIRST AMENDMENT TO THROUGHPUT AND TANKAGE AGREEMENT (this “Amendment”), dated as of December 14, 2018, is made and entered into by and between DELEK REFINING, LTD., a Texas limited partnership (“Refining”) and DELEK MARKETING & SUPPLY, LP, a Delaware limited partnership (“Logistics”, and together with Refining, collectively, the “Parties” and each individually a “Party”). Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Agreement (as hereinafter defined).
WHEREAS, the Parties entered into that certain Throughput and Tankage Agreement (Tyler Terminal and Tankage) dated as of July 26, 2013 (the “Agreement”);
WHEREAS, the Initial Term of the Agreement shall expire on July 25, 2021; and
WHEREAS, the Parties have agreed to amend the Agreement to extend the Initial Term of the Agreement, all as more particularly set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1.Amendment. The Agreement is hereby amended by deleting Section 4(a) of the Agreement in its entirety, and inserting the following in lieu thereof:
“This Agreement shall have an initial term commencing on the Effective Date and extending through and including March 31, 2024 (the “Initial Term”). Thereafter, Refining shall have a unilateral option to extend this Agreement for two additional periods, the first commencing on April 1, 2024 and extending through and including July 25, 2025, and the second commencing on July 26, 2025 and extending through and including July 25, 2029, each on the same terms and conditions set forth herein (each, a “Renewal Term”). The Initial Term and any Renewal Terms are sometimes referred to collectively herein as the “Term.” In order to exercise its option to extend this Agreement for a Renewal Term, Refining shall notify Logistics in writing not less than twelve (12) months prior to the expiration of the Initial Term or any Renewal Term, as applicable.”
2. Effect of Amendment. Except as otherwise expressly provided herein, the Agreement is, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, except that on and after the date hereof, all references in the Agreement to “this Agreement”, “hereto”, “hereof”, “hereunder” or words of like import referring to the Agreement
shall mean the Agreement as amended by this Amendment. Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver or an amendment of any right, power or remedy of either Party under the Agreement, nor constitute a waiver or an amendment of any provision of the Agreement.
3. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
This Amendment contains the entire agreement of the parties and supersedes any other discussions or agreements relating to the subject of this Amendment.
This Amendment does not constitute a waiver of any default under the Agreement, whether or not either Party is aware of any such default.
The headings in this Amendment and the usage herein of defined terms are for convenience of reference only, and shall not be construed as amplifying, limiting or otherwise affecting the substantive provisions hereof.
All references herein to the preamble, the recitals or sections, paragraphs, subparagraphs, annexes or exhibits are to the preamble, recitals, sections, paragraphs, subparagraphs, annexes and exhibits of or to this Amendment unless otherwise specified. The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Amendment, refer to this Amendment as a whole and not to any particular provision of this Amendment.
Any reference herein to any instrument, document or agreement, by whatever terminology used, shall be deemed to include any and all amendments, modifications, supplements, extensions, renewals, substitutions and/or replacements thereof as the context may require.
When used herein, (1) the singular shall include the plural, and vice versa, and the use of the masculine, feminine or neuter gender shall include all other genders, as appropriate, (2) “include”, “includes” and “including” shall be deemed to be followed by “without limitation” regardless of whether such words or words of like import in fact follow same, and (3) unless the context clearly indicates otherwise, the disjunctive “or” shall include the conjunctive “and”.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment, or have caused this Amendment to be executed by their duly authorized officers or other representatives, as of the date first above written.
DELEK REFINING LTD.,
By: DELEK U.S. REFINING GP, LLC,
its general partner
By: /s/ Frederec Green
Name: Frederec Green
Title: Executive Vice President and Chief Operating Officer
By: /s/ Kevin Kremke
Name: Kevin Kremke
Title: Executive Vice President and Chief Financnial Officer
DELEK MARKETING & SUPPLY, LP,
By: DELEK MARKETING GP, LLC,
its general partner
By: /s/ Alan Moret
Name: Alan Moret
By: /s/ Regina Jones
Name: Regina Jones
Title: Executive Vice President, General Counsel & Corporate Secretary