exv10w23



 






Exhibit 10.23


Execution Version




THIRD AMENDMENT




     This THIRD AMENDMENT (this “Amendment”) is dated as of December 23, 2005 and is
entered into by and between HOLLY CORPORATION, a Delaware corporation (the “Borrower”),
each of the lenders signatory hereto, and BANK OF AMERICA, N.A., in its capacity as the
Administrative Agent for the Lenders under the Credit Agreement referred to below (in such
capacity, the “Administrative Agent”).



RECITALS:




     WHEREAS, pursuant to that certain Credit Agreement, dated as of July 1, 2004 (as amended by
the First Amendment thereto dated as of January 25, 2005 and the Second Amendment thereto dated as
of May 17, 2005, and as further amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), among the Borrower, each lender from time to time party
thereto (collectively, the “Lenders”), the Administrative Agent, Guaranty Bank and PNC
Bank, National Association, as co-documentation agents, and Union Bank of California, N.A., as
syndication agent, the Lenders have agreed to make certain Loans and issue certain Letters of
Credit to and for the benefit of the Borrower;



     WHEREAS, the Borrower has requested that Required Lenders agree to amend certain provisions of
the Credit Agreement as more fully described below and the Required Lenders are willing to so
agree; and



     WHEREAS, unless otherwise defined herein, capitalized terms used in this Amendment shall have
the same definitions as are contained in the Credit Agreement.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and incorporating the foregoing recitals herein, the parties hereto agree as
follows.



SECTION I.

AMENDMENTS




     Subject to the terms and conditions set forth in this Amendment (including, without
limitation, Section III) and in reliance on the representations and warranties of the Borrower set
forth herein, the Credit Agreement is amended as follows:




	 	(a)	 	A new definition is added in alphabetical order in Section
1.01 of the Credit Agreement as follows:






	 	 	 	“Secondary Share Repurchase Program” means the repurchase by the
Borrower, subsequent to November 7, 2005, of its common stock, par value $.01
per share, for an aggregate amount not to exceed $200,000,000.






	 	(b)	 	Section 7.03(e) is amended by (i) deleting the reference to
“Section 7.01(i)” in the second line thereof and replacing it with
“Section 7.01(h)” and (ii) deleting the reference to “$10,000,000” in
the fourth line thereof and replacing it with “$25,000,000”.





 









 







	 	(c)	 	Section 7.05 is amended by (i) deleting the word “and” at the
end of clause (f) thereof, (ii) deleting the “.” at the end of clause (g)
thereof and replacing it with “; and” and (iii) adding a new clause (h) as
follows:






	 	 	 	“(h) The Disposition by the Borrower or any Restricted Subsidiary of assets in a
Sale and Leaseback Transaction if and to the extent that the corresponding lease
obligation is permitted under Section 7.03(e).”






	 	(d)	 	Section 7.05 is further amended by deleting the reference to
“clauses (a) through (g)” in the last line thereof and replacing it with
“clauses (a) through (h)”.
	 
	 	(e)	 	Section 7.06(d) is amended by (i) deleting each reference
therein to “March 31, 2005” and replacing it with “September 30, 2005” and (ii)
deleting the word “and” at the end thereof.
	 
	 	(f)	 	Section 7.06 is amended by (i) deleting the “.” at the end of
clause (e) thereof and replacing it with “; and” and (ii) adding a new clause
(f) as follows:
	 
	 	“(f) the Borrower may purchase, redeem or acquire shares of its common stock,
$.01 par value per share, pursuant to the Secondary Share Repurchase Program;
provided that immediately after giving effect to such proposed action,
no Default would exist.”

	 
	 	(g)	 	Section 7.11(a) is amended by adding the following at the end
of such section:

	 
	 	“and the Secondary Share Repurchase Program”.





SECTION II.

REPRESENTATIONS AND WARRANTIES




     The Borrower hereby represents and warrants to the Administrative Agent and the Lenders as of
the date hereof as follows:



     2.1 Corporate Power. The Borrower has the requisite corporate power and authority to
execute and deliver this Amendment and to perform its obligations hereunder and under the other
Loan Documents. The execution, delivery and performance by the Borrower of this Amendment, and the
performance by the Borrower and by each other Loan Party of each Loan Document to which it is a
party have been duly approved by all necessary corporate action of such Loan Party and no other
corporate proceedings on the part of such Loan Party are necessary to consummate such transactions.



     2.2 Authorization and Enforceability. This Amendment has been duly executed and
delivered by the Borrower. Each of this Amendment and each other Loan Document is the legal, valid
and binding obligation of each Loan Party hereto and thereto, enforceable against such Loan Party
in accordance with its terms, and is in full force and effect.



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     2.3 Defaults. No event has occurred and is continuing that constitutes a Default or
an Event of Default.



SECTION III.

CONDITIONS TO EFFECTIVENESS




     This Amendment shall not be effective until each of the following conditions precedent shall
have been satisfied.



     3.1 Execution. The Borrower, the Administrative Agent and the Required Lenders shall
have executed and delivered this Amendment to the Administrative Agent.



     3.2 Representations and Warranties. Each of the representations and warranties in
Section II above shall be true and correct as of the date of this Amendment.



SECTION IV.

MISCELLANEOUS.




     4.1 Limited Effect. Except as otherwise expressly set forth herein, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain, unaltered and in
full force and effect in accordance with their terms and are hereby confirmed and ratified. To the
extent that any existing provision of the Credit Agreement or any other Loan Document is
inconsistent with the specific provisions of this Amendment, the provisions of this Amendment shall
control.



     4.2 No Novation. This Amendment shall not be deemed or construed to be a
satisfaction, restatement, novation or release of the Credit Agreement or of any of the other Loan
Documents or a waiver by the Administrative Agent or any Lender of any of the defenses, rights or
remedies of the Administrative Agent and the Lenders under the Credit Agreement or any of the other
Loan Documents or at law or in equity or otherwise.



     4.3 Reaffirmation. The Borrower hereby reaffirms each and every covenant, condition,
obligation and provision set forth in the Loan Documents other than as specifically amended by this
Amendment.



     4.4 Headings. Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any other purpose.



     4.5 Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     4.6 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



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     4.7 Counterparts. This Amendment may be executed in any number of counterparts, and
by different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute but one and the
same instrument. Delivery of an executed counterpart of a signature page to this Amendment by
facsimile shall be effective as delivery of a manually executed counterpart of this Amendment.



     4.8 Construction. The Borrower acknowledges that it has been represented by its own
legal counsel in connection with the negotiation, execution and delivery of this Amendment, that it
has exercised independent judgment with respect to this Amendment, and that it has not relied on
the Administrative Agent or any Lender or on the Administrative Agent’s or any Lender’s counsel for
any advice with respect to this Amendment.



[Signature page follows]




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered
by their proper and duly authorized officers as of the date first set forth above.



	 	 	 	 	 
	 	BORROWER:





HOLLY CORPORATION,

a Delaware corporation, as Borrower

 	 
	 	By:  	/s/
Stephen D. Wise
 	 
	 	 	Name:  	Stephen D. Wise 	 
	 	 	Title:  	Treasurer 	 
	 



	 	 	 	 	 
	 	ADMINISTRATIVE AGENT:





BANK OF AMERICA, N.A.,

in its capacity as Administrative Agent for and on

behalf of the Lenders

 	 
	 	By:  	/s/ Claire Liu
 	 
	 	 	Name:  	Claire Liu 	 
	 	 	Title:  	Senior Vice President 	 
	 




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	 	LENDERS:





BANK OF AMERICA, N.A.,

as a Lender

 	 
	 	By:  	
/s/ Claire Liu
 	 
	 	 	Name:  	Claire Liu 	 
	 	 	Title:  	Senior Vice President 	 
	 


[Signature Page to Holly Corporation Third Amendment to Credit Agreement]





 









 





	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/
Marc Muehlemann
 	 
	 	 	Name:  	Marc Muehlemann	 
	 	 	Title:  	Vice President 	 
	 


[Signature Page to Holly Corporation Second Amendment to Credit Agreement]






 









 








	 	 	 	 	 
	 	GUARANTY BANK,

as a Lender

 	 
	 	By:  	/s/
Jim R. Hamilton
 	 
	 	 	Name:  	Jim R. Hamilton 	 
	 	 	Title:  	Senior Vice President 	 
	 


[Signature Page to Holly Corporation Second Amendment to Credit Agreement]





 










 






	 	 	 	 	 
	 	UNION BANK OF CALIFORNIA, N.A.,

as a Lender

 	 
	 	By:  	/s/ Sean Murphy
 	 
	 	 	Name:  	Sean Murphy 	 
	 	 	Title:  	Vice President 	 
	 


[Signature
Page to Holly Corporation Second Amendment to Credit Agreement]





 









 








	 	 	 	 	 
	 	REGIONS BANK,

as a Lender

 	 
	 	By:  	/s/ Jated Andersen
 	 
	 	 	Name:  	Jated Andersen 	 
	 	 	Title:  	Vice President 	 
	 


[Signature
Page to Holly Corporation Second Amendment to Credit Agreement]





 










 






	 	 	 	 	 	 	 	 	 
	 	 	RZB FINANCE LLC,	 	 	 	 
	 	 	as a Lender	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John A. Valiska
	 	By:
	 	 /s/ Christoph Hoedl
	 

	 	 	 	 
	 	 	 	 
	 

	 	 	 	Name: JOHN A. VALISKA
	 	 	 	Name: CHRISTOPH HOEDL
	 

	 	 	 	Title: First Vice President
	 	 	 	Title: Group Vice President






[Signature
Page to Holly Corporation Second Amendment to Credit Agreement]




 









 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Mark E. Thompson
 	 
	 	 	Name:  	Mark E. Thompson 	 
	 	 	Title:  	Vice President 	 
	 



[Signature
Page to Holly Corporation Second Amendment to Credit Agreement]




 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, N.A.,

as a Lender

 	 
	 	By:  	/s/ M. Jarrod Bourgeois
 	 
	 	 	Name:  	M. Jarrod Bourgeois 	 
	 	 	Title:  	Assistant Vice President 	 
	 



[Signature
Page to Holly Corporation Second Amendment to Credit Agreement]