exv10w4







Exhibit 10.4




June 23, 2009




Delek US Holdings, Inc.

7102 Commerce Way

Suite 300

Brentwood, TN 37027




Re: Bank Leumi USA loans to Delek US Holdings, Inc.




Ladies/Gentlemen:




     Reference is made to (i) that certain Promissory Note dated July 27, 2006 (as heretofore
amended or modified, the “2006 Note”) in the principal amount of $30,000,000 executed by
Delek US Holdings Inc. (the “Borrower”) in favor of Bank Leumi USA (“Lender”) and
(ii) that certain Promissory Note dated May 12, 2008 in the principal amount of $20,000,000
executed by the Borrower in favor of Lender (as amended or modified, the “2008 Note”; and
together with the 2006 Note, collectively, the “Notes”). The Notes together with all other
instruments, agreements and other documents executed or delivered with or in favor of Lender in
connection with the Notes whether as the same now exist or may hereafter be amended, restated,
renewed, extended, supplemented, substituted or otherwise modified, are hereinafter referred to
from time to time, collectively, as the “Loan Documents”). Capitalized terms used but not
otherwise defined herein, shall have the meaning(s) given to such term(s) in the Loan Documents.



     NOW, THEREFORE, in consideration of the premises herein contained and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as
follows:



     A. Covenants, Representations and Warranties. So long as any obligations under the
Notes remain outstanding, the Borrower, on behalf of itself and its subsidiaries (collectively, the
“Companies”) hereby represents, warrants and covenants in favor of Lender as follows:



          1. Dividends and Inter-company Debt. The ability of the Borrower’s subsidiaries to
upstream dividends or repay inter-company debt to the Borrower shall be maintained in any new debt
arrangements entered into after the date hereof and any such ability shall be (a) not materially
more restrictive than what exists in the Borrower’s existing debt arrangements in effect on the
date hereof, or (b) otherwise satisfactory to the Lender.




          2. Lion Oil Company Shares.




               (a) As of the date hereof, Borrower owns 2,867,242 shares, representing approximately
thirty-four and 6/10 (34.6%) percent of the issued and outstanding shares (the “Shares”),
of Lion Oil Company (“Lion”). Contemporaneously herewith, Borrower is delivering to Lender
in form and substance satisfactory to Lender (i) those certain Stock



 









 







Pledge and Security Agreements, dated as of the date hereof , in favor of each of Lender and
Israel Discount Bank of New York (“IDB”) as well as (ii) that certain Intercreditor Agreement
between the Lender and IDB. Lender hereby expressly consents to Borrower entering into the Stock
Pledge and Security Agreement with IDB and waives any potential Event of Default under the Notes
with respect only to Borrower’s entry into such agreement. Prior to Borrower’s granting of the
security interest provided for in the Stock Pledge and Security Agreements, Borrower shall not,
without the prior written consent of Lender, sell, assign, pledge, hypothecate, encumber or
otherwise dispose of the Shares.



          3. Total Adjusted Shareholders Equity. As of the last day of each of Borrower’s
fiscal quarters: (a) Total Adjusted Shareholders’ Equity, as defined herein, shall not be less
than $425,000,000; and (b) the ratio of Total Adjusted Shareholder’s Equity to the total assets of
Borrower and its subsidiaries, on a consolidated basis, and as determined in accordance with GAAP,
shall not be less than 30%. For the purposes of this agreement, “Total Adjusted Shareholders’
Equity” shall mean the Borrower’s consolidated shareholders’ equity, as determined in accordance
with GAAP, as of the last day of each of Borrower’s fiscal quarters, plus any amounts that may be
taken as an impairment or other charge to Borrower’s consolidated balance sheet with respect to the
following items (i) goodwill, as reported in Borrower’s consolidated balance sheet, and (ii)
Borrower’s investment in Lion Oil Company, such amounts to be added back to total shareholders’
equity so long as any obligations under the Notes remain outstanding.




          4. Payment of Dividends. Borrower shall not, directly or indirectly, declare, pay or
make any dividend or distribution on any class of its capital stock or apply any of its funds,
property or assets to the purchase, redemption or other retirement of any of its capital stock;
except, that, so long as no default or Event of Default exists under any of the
Notes or any of the other Loan Documents, immediately prior to or after giving affect to any such
payment, Borrower may make dividends or distributions to its shareholders not to exceed $15,000,000
in the aggregate in any fiscal year; provided, further, that, Borrower may
make dividends or distributions to its shareholders in excess of such $15,000,000 aggregate amount
in any fiscal year, so long as, concurrently with the making of any payment thereto, Borrower pays
to Lender an amount equal to thirty (30%) percent of such excess dividend payment, which payment(s)
will be applied by the Lender to the outstanding principal amount of the Notes. Lender shall apply
the excess dividend payment between the principal amount of the Notes in a pro rata manner but may,
in its discretion apply more of the excess dividend payment to the principal amount of the 2006
Note; provided, however, that in no event shall such excess dividend payment be applied to the
installment payment due on the Notes on each of April 1, 2010, July 1, 2010 and October 1, 2010,
January 3, 2011 or April 1, 2011.




          5. Debt Service Coverage Ratio. The Debt Service Coverage Ratio set forth in the
letter agreement dated May 7, 2008 between Lender and Borrower is hereby deleted (commencing with
the paragraph starting with the language “At all times during the term of the Loan” and ending
with, and inclusive of, the paragraph entitled “EBITDA.”)



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     B. Modification of 2006 Note.



          1. The first paragraph of Article A, Section 1 of the 2006 Note is hereby amended and restated
in its entirety to read as follows:





     “1. FOR VALUE RECEIVED, the undersigned, Delek US Holdings Inc., a
corporation organized under the laws of the State of Delaware (the “Borrower”),
hereby promises to pay to the order of BANK LEUMI USA (the “Bank”), at its offices
at 564 Fifth Avenue, New York, New York 10036, the principal sum of Thirty Million
Dollars ($30,000,000) in lawful money of the United States of America and in
immediately available funds, in installments in the amount of TWO MILLION DOLLARS
($2,000,000) each on each of April 1, 2010, July 1, 2010, October 1, 2010;
provided, that, the entire unpaid principal balance of this Note,
and all accrued and unpaid interest hereon shall be due and payable on January 3,
2011, or earlier as provided herein.”



          2. The first sentence of the second paragraph of Article A, Section 1 of the 2006 Note is
hereby amended and restated in its entirety to read as follows:





     “The Borrower will pay interest on the unpaid principal amount hereof from time
to time outstanding, computed on the basis of a 360-day year, at a rate per annum
which shall be equal to 3.5% per annum above the Libor Rate (Reserve Adjusted)* for
a three (3) month term, as elected by the Borrower and calculated by the Bank, in
the manner hereinafter provided, but in no event in excess of the maximum rate
permitted by applicable law; provided, that in the event the Bank shall have
determined that by reason of circumstances affecting the Libor Rate (Reserve
Adjusted) adequate and reasonable means do not exist for ascertaining the Libor Rate
(Reserve Adjusted) for any Interest Period, or the time remaining to the stated
maturity date of this Note is less than the shortest Interest Period which may be
elected hereunder, then the applicable rate of interest during such Interest Period
shall be equal to the rate of interest designated by the Bank, and in effect from
time to time, as its “Reference Rate” +1.75% per annum adjusted when said Reference
Rate changes, but in no event in excess of the maximum rate permitted by law (the
Borrower acknowledges that the Reference Rate may not necessarily represent the
lowest rate of interest charged by the Bank to customers) and in no event shall the
per annum rate of interest charged hereunder be less than 4.5% at any time; further
provided that if, by 11:00am, New York time, three (3) business days prior to the
end of any Interest Period, the Borrower has failed to timely notify the Bank of its
election of the choice of interest rate for or length of the next Interest Period,
then the interest rate in effect thereafter shall be at the Libor Rate (Reserve
Adjusted) +3.5% per annum for an Interest Period the length of which shall be the
same length as the immediately preceding Interest Period unless such Interest Period
would end after the stated maturity date of this Note, in which case the Interest
Period shall be of a duration equal to the next longest Interest Period which would
end prior to such scheduled maturity date, provided further that no Libor Rate
(Reserve Adjusted)-based loan



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shall be made less than one month before the stated maturity date of this Note
or after the occurrence and continuance of an Event of Default.”



          3. Article B of the 2006 Note is hereby amended by deleting the clause “default by the
Borrower, or any Subsidiary, in the payment of principal of or interest on any indebtedness for
borrowed money in excess of $10,000,000 in the aggregate owed to any other person or entity
(including any such indebtedness in the nature of a lease) or default in the performance or
observance of the terms of any instrument pursuant to which such indebtedness was created or is
secured, in each case the effect of which default is to cause any holder of any such indebtedness
to cause the same to become due prior to its stated maturity” in its entirety and replacing it with
the following:





“default by the Borrower, or any Subsidiary, in the performance or observance of the terms
(including, without limitation, payment terms) of any instrument pursuant to which any indebtedness
for borrowed money in excess of $5 million in the aggregate to each Counter Party (as such term is
defined herein) was created or is secured, the effect of which default is to cause any holder of
any such indebtedness to cause the same to become due prior to its stated maturity. For purposes
of this Agreement, “Counter Party” shall mean any natural person or entity to which the Borrower or
any Subsidiary of the Borrower owes indebtedness and “Indebtedness” shall mean all obligations for
borrowed money of any kind or nature, including but not limited to (i) funded and unfunded debt,
(ii) indebtedness secured by (or for which the holder of such indebtedness has an existing right to
be secured) a lien on any asset (iii) indebtedness guaranteed by Delek US or its subsidiaries, and
(iv) obligations in respect of letters of credit, bankers acceptances or similar instruments.”



          4. In consideration of the modification to the 2006 Note agreed to by Lender herein, on the
date of this agreement, Borrower shall pay to Lender a fee in the amount of $150,000 (the “2006
Note Modification Fee”), which 2006 Note Modification Fee shall be fully earned, due and payable on
the date hereof, and shall not be subject to refund, rebate or proration for any reason whatsoever.




     C. Modification of 2008 Note.



          1. The first paragraph of Article A, Section 1 of the 2008 Note is hereby amended and restated
in its entirety to read as follows:





     “1. FOR VALUE RECEIVED, the undersigned, Delek US Holdings Inc., a
corporation organized under the laws of the State of Delaware (the “Borrower”),
hereby promises to pay to the order of BANK LEUMI USA (the “Bank”), at its offices
at 564 Fifth Avenue, New York, New York 10036, the principal sum of TWENTY MILLION
DOLLARS ($20,000,000) in lawful money of the United States of America and in
immediately available funds in installments of ONE MILLION DOLLARS ($1,000,000) each
on each of July 1, 2010, October 1, 2010, January 3, 2011 and April 1, 2011,
provided that the entire unpaid principal balance of this Note, and all accrued and
unpaid interest hereon, shall be due and payable on May 11, 2011, or earlier as
provided herein.”



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          2. Article B of the 2008 Note is hereby amended by deleting the clause “default by the
Borrower, or any Subsidiary, in the payment of principal of or interest on any indebtedness for
borrowed money in excess of $10,000,000 in the aggregate owed to any other person or entity
(including any such indebtedness in the nature of a lease) or default in the performance or
observance of the terms of any instrument pursuant to which such indebtedness was created or is
secured, in each case the effect of which default is to cause any holder of any such indebtedness
to cause the same to become due prior to its stated maturity” in its entirety and replacing it with
the following:





     “default by the Borrower, or any Subsidiary, in the performance or observance of the terms
(including, without limitation, payment terms) of any instrument pursuant to which any indebtedness
for borrowed money in excess of $5 million in the aggregate to each Counter Party (as such term is
defined herein) was created or is secured, the effect of which default is to cause any holder of
any such indebtedness to cause the same to become due prior to its stated maturity.



          3. Notwithstanding anything to the contrary set forth in the 2008 Note, at no time shall the
per annum rate of interest charged by Lender to Borrower under the 2008 Note be less than 4.50%.




     D. Effect on this Amendment. Except as specifically set forth herein, no other
changes or modifications to the Loan Documents are intended or implied, and, in all other respects,
the Loan Documents shall continue to remain in full force and effect in accordance with their terms
as of the date hereof. This agreement, and the instruments and agreements delivered pursuant
hereto and thereto constitute the entire agreement of the parties with respect to the subject
matter hereof and thereof, and supersede all prior oral or written communications, memoranda,
proposals, negotiations, discussions, term sheets and commitments with respect to the subject
matter hereof and thereof. Except as specifically set forth herein, nothing contained herein shall
evidence a waiver or amendment by Lender of any other provision of the Loan Documents. Without
limiting the foregoing, nothing herein contained shall, or shall be deemed to, waive any Event of
Default of which Lender does not have actual knowledge as of the date hereof, or any event or
circumstance which with notice or passage of time, or both, would constitute an Event of Default.
The failure by Borrower to comply with any of the terms of this Amendment shall, at the option of
Lender, constitute an Event of Default. Lender may waive any of such Events of Default, but only in
a specific writing signed by Lender.



     E. Further Assurances. Borrower shall execute and deliver such additional documents
and take such additional action as may be reasonably requested by Agent to effectuate the
provisions and purposes of this agreement.



     F. Binding Effect. This agreement shall be binding upon and inure to the benefit of
each of the parties hereto and their respective successors and assigns.



     G. Governing Law. The rights and obligations hereunder of each of the parties hereto
shall be governed by and interpreted and determined in accordance with the internal laws of the
State of New York (without giving effect to principles of conflict of laws).



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     H. Counterparts. This agreement may be signed in counterparts, each of which shall be
an original and all of which taken together constitute one agreement. In making proof of this
agreement, it shall not be necessary to produce or account for more than one counterpart signed by
the party to be charged. Any signatures delivered by a party by facsimile transmission or by
electronic mail transmission shall be deemed an original signature hereto.



(remainder of page intentionally left blank)




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BANK LEUMI USA




	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Gil Hershman
 

	 	 
	 	By:
	 	/s/ Dr. Avram Keusch
 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	Gil Hershman
	 	 	 	Name:
	 	Dr. Avram Keusch	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title:

	 	Vice President
	 	 	 	Title:
	 	Vice President	 	 






AGREED:




DELEK US HOLDINGS, INC.




	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Gregory A. Intemann
 

	 	 
	 	By:
	 	/s/ Assi Ginzburg
 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	Gregory A. Intemann
	 	 	 	Name:
	 	Assi Ginzburg	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title:

	 	Treasurer
	 	 	 	Title:
	 	EVP	 	 






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