FOURTH AMENDMENT
Exhibit 10.1
EXECUTION
COPY
FOURTH
AMENDMENT
FOURTH AMENDMENT, dated as of June 26, 2008 (this
“Amendment”), to the Credit Agreement, dated as
of March 30, 2007 (as previously amended and as further
amended, supplemented or otherwise modified from time to time,
the “Credit Agreement”), among Delek US
Holdings, Inc. (the “Borrower”), the lenders
from time to time parties thereto (the
“Lenders”), Xxxxxx Commercial Paper Inc., as
administrative agent (the “Administrative
Agent”) and the other parties named therein.
W I T
N E S S E T
H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent
are parties to the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders amend
certain provisions in the Credit Agreement in the manner
provided for herein; and
WHEREAS, the Administrative Agent and the Required Lenders are
willing to agree to the requested amendments subject to the
provisions of this Amendment;
NOW, THEREFORE, in consideration of the premises contained
herein, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise
defined herein, terms which are defined in the Credit Agreement
and used herein as defined terms are so used as so defined.
2. Amendments to Section 1.1
(Definitions). (a) The definition of
“Consolidated EBITDA” in Section 1.1 of the
Credit Agreement is hereby amended as follows:
(i) by relettering existing subclause (f) in the
additions to Consolidated EBITDA as new subclause (h);
(ii) by inserting the following new subclauses (f) and
(g) in the additions to Consolidated EBITDA:
‘‘(f) any non-cash expenses or losses under
FAS 133 resulting from the net change in the fair market
value of Hedge Agreements during such period, (g) losses
resulting from the termination of ethanol-related Hedge
Agreements during such period; provided that the
aggregate amount of all such losses under this
subclause (g) permitted to be included in Consolidated
EBITDA shall not exceed $7,000,000 during the term of this
Agreement”;
(iii) by relettering existing subclauses (c), (d) and
(e) in the subtractions from Consolidated EBITDA as new
subclauses (d), (e) and (f), respectively; and
(iv) by inserting the following new subclause (c) in
the subtractions from Consolidated EBITDA:
“(c) any non-cash gains under FAS 133 resulting from
the net change in the fair market value of Hedge
Agreements,”.
(b) Section 1.1 of the Credit Agreement is hereby
amended by inserting the following new definition of
“FAS 133” in appropriate alphabetical order:
“FAS 133”: Statement of Financial
Accounting Standards No. 133.
3. Amendment to Section 6.1 (Financial Condition
Covenants — Consolidated Leverage
Ratio). Section 6.1 of the Credit
Agreement is hereby amended by adding the following proviso at
the end of the final sentence thereof:
“; provided that notwithstanding the foregoing
ratio, for the four consecutive fiscal quarter periods ending on
June 30, 2008 and September 30, 2008, the Borrower
shall be in compliance with
this Section 6.1 to the extent that the Consolidated Leverage
Ratio as of the last day of such periods does not exceed 3.90 to
1.00 and 3.70 to 1.00, respectively”.
4. Representations and
Warranties. On and as of the date hereof and
after giving effect to this Amendment, the Borrower hereby
confirms, that the representations and warranties set forth in
Section 3 of the Credit Agreement are true and correct in
all material respects (if not qualified as to materiality or
Material Adverse Effect) or in any respect (if so qualified).
5. Effectiveness of
Amendment. This Amendment shall become
effective as of the date first written above upon of
satisfaction of the following conditions:
(a) receipt by the Administrative Agent of counterparts of
this Amendment duly executed by the Borrower and the Required
Lenders; and
(b) receipt by the Administrative Agent of a consent fee
for the account of each Lender consenting to this Amendment by
5:00 P.M. (New York City time) on June 30, 2008, in an
amount equal to 0.50% of each such Lender’s outstanding
Term Loans.
6. Continuing Effect; No Other Amendments or
Consents. Except as expressly provided
herein, all of the terms and provisions of the Credit Agreement
are and shall remain in full force and effect. The amendments
provided for herein are limited to the specific subsection of
the Credit Agreement specified herein and shall not constitute a
consent, waiver or amendment of, or an indication of the
Administrative Agent’s or the Lenders’ willingness to
consent to any action requiring consent under any other
provisions of the Credit Agreement or the same subsection for
any other date or time period.
7. Expenses. The Borrower agrees
to pay and reimburse the Administrative Agent for all its
reasonable costs and out-of-pocket expenses incurred in
connection with the preparation and delivery of this Amendment,
including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent.
8. Counterparts. This Amendment
may be executed in any number of counterparts by the parties
hereto (including by facsimile transmission), each of which
counterparts when so executed shall be an original, but all the
counterparts shall together constitute one and the same
instrument.
9. GOVERNING LAW. THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized
officers as of the day and year first above written.
| by: |
/s/ Xxxxxx
Xxxxxx
|
Name: Xxxxxx Xxxxxx
| Title: | Chief Financial Officer |
| by: |
/s/ Xxxxx
Xxxxxx
|
Name: Xxxxx Xxxxxx
| Title: | V.P. and Chief Accounting Officer |
XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent and as a Lender
| by: |
/s/ Xxxxx
Xxxxxx
|
Name: Xxxxx Xxxxxx
| Title: | Authorized Signatory |
JPMORGAN CHASE BANK, N.A., as a Lender
| by: |
/s/ Xxxxxx
X. Xxxxxx
|
Name: Xxxxxx X. Xxxxxx
| Title: | Division Manager |
