Common use of Crack Spread Hedging Agreement Clause in Contracts

Crack Spread Hedging Agreement. The Borrower will, on or prior to the First Amendment Effective Date, (a) commence to completely unwind and terminate the Crack Spread Hedging Agreement, and cause the Crack Spread Hedging Agreement to be completely unwound and terminated and (b) cause the Unwind Proceeds and the Crack Spread Hedging Cash Collateral to be distributed and provided in full directly to the Administrative Agent, for the benefit of the Lenders, or to the ABL Agent, for the benefit of the Borrower, in each case as further described below, within six (6) weeks from the First Amendment Effective Date; provided that if there shall be any material market disruption in the market for Hydrocarbon Agreements which extends beyond such six (6) week period and has a material adverse effect on the Borrower’s ability to effect the unwind and termination of the Crack Spread Hedging Agreement, such six (6) week period shall be extended on a day-to-day basis during the pendency of such disruption for a period not to exceed an additional four (4) weeks. The Borrower shall (x) consult with the Steering Committee on an ongoing basis as to the status of the unwinding of the Crack Spread Hedging Agreement, (y) provide to the Steering Committee copies of all trade confirmations executed and/or delivered in connection with the unwinding of the Crack Spread Hedging Agreement, and (z) provide updates on the progress thereof upon request of any member of the Steering Committee. As a condition precedent to the unwind of the Crack Spread Hedging Agreement, the Borrower, the Administrative Agent and the ABL Agent shall have given, pursuant to the Unwind Letter of Direction, irrevocable instructions (which, notwithstanding any provision in the Loan Documents (including the Intercreditor Agreement) to the contrary, shall not be subject to or affected by any default or event of default under the Term Loan Agreement or the Permitted ABL Facility, or any notice with respect thereto) to the Crack Spread Hedging Counterparty (I) to, within three business days of the First Amendment Effective Date, cause the Crack Spread Hedging Cash Collateral to be distributed to the Administrative Agent to be applied in accordance with Section 2.12 hereof to the prepayment of the Loans, and (II) to distribute the Unwind Proceeds as follows: First, an amount up to $45,400,000 of the Unwind Proceeds will be distributed to the Administrative Agent to be applied in accordance with Section 2.12 hereof to the prepayment of the Loans; Second, an amount up to $25,000,000 of the Unwind Proceeds will be distributed to the ABL Agent to be applied to the Permitted ABL Facility in accordance with the terms of the Permitted ABL Facility Amendment (as defined in the First Amendment); Third, an amount up to $25,000,000 of the Unwind Proceeds will be distributed to the Administrative Agent to be applied in accordance with Section 2.12 hereof to the prepayment of the Loans; Fourth, an amount up to $25,000,000 of the Unwind Proceeds will be distributed to the ABL Agent to be applied to the Permitted ABL Facility in accordance with the terms of the Permitted ABL Facility Amendment (as defined in the First Amendment) (any amounts distributed to the ABL Agent pursuant to clause Second and clause Fourth hereof are referred to herein as the “Retained Unwind Proceeds”); and Fifth, all remaining Unwind Proceeds will be distributed to the Administrative Agent to be applied in accordance with Section 2.12 hereof to the prepayment of the Loans. The Borrower shall cause the Crack Spread Hedging Counterparty to promptly, and in any event within 5 Business Days of any settlement, termination or unwinding of any portion of the Crack Spread Hedging Agreement (but in any event not later than the same day as the Borrower would have otherwise been entitled to receive such amounts absent this Section 5.11), pay all Unwind Proceeds arising in connection with any such settlement, termination or unwinding directly to the Administrative Agent or the ABL Agent as provided above. The Borrower shall also cause the Crack Spread Hedging Counterparty to promptly, and in any event within 3 Business Days of the First Amendment Effective Date (but in any event not later than the same day as the Borrower would have otherwise been entitled to receive such amounts absent this Section 5.11), pay the Crack Spread Hedging Cash Collateral directly to the Administrative Agent. The Unwind Proceeds and the released Crack Spread Hedging Cash Collateral delivered to the Administrative Agent for application to the outstanding Loans as provided above will be deemed to be prepayments pursuant to Section 2.12 and will be applied, first, pro rata to the remaining scheduled installments of principal due in 2009 and, thereafter, pro rata to the remaining scheduled installments of principal due in respect of the Loans on and after March 31, 2010 under Section 2.11. Any amounts owing to the Crack Spread Hedging Counterparty as a result of the exercise of any set-off rights or as a result of the unwinding of any hedging arrangements with such Crack Spread Hedging Counterparty or its Affiliates shall either (a) be applied against and reduce the Retained Unwind Proceeds payable to the ABL Agent for the benefit of the Borrower on a dollar-for-dollar basis by the amount thereof, or (b) otherwise be paid by the Borrower. In no event shall any such amounts be payable out of the Unwind Proceeds that are payable to the Lenders as provided above or out of the Crack Spread Hedging Cash Collateral. Each of the Lenders acknowledges that (a) the Borrower has not given any guarantee as to the ultimate amount of the Unwind Proceeds to be realized upon the unwinding of the Crack Spread Hedging Agreement, and (b) the Borrower may effect the unwinding of the Crack Spread Hedging Agreement in one or a series of transactions as determined in its sole discretion following consultation with the Steering Committee in accordance with Section 5.11.” 18. Article V of the Term Loan Agreement is amended by adding the following new Sections 5.13 and 5.14 after Section 5.12:

Crack Spread Hedging Agreement. The Borrower Borrowers will, on or prior to the First Second Amendment Effective Date, (a) commence to completely unwind and terminate the Crack Spread Hedging Agreement, and cause the Crack Spread Hedging Agreement to be completely unwound and terminated and (b) cause the Unwind Proceeds and the Crack Spread Hedging Cash Collateral to be distributed and provided in full directly to the Administrative Agent, for the benefit of the Lenders, or to the ABL Term Loan Agent, for application to the benefit of the BorrowerTerm Loan Facility, in each case as further described below, within six (6) weeks from the First Second Amendment Effective Date; provided that if there shall be any material market disruption in the market for Hydrocarbon Agreements which extends beyond such six (6) week period and has a material adverse effect on the Borrower’s Borrowers’ ability to effect the unwind and termination of the Crack Spread Hedging Agreement, such six (6) week period shall be extended on a day-to-day basis during the pendency of such disruption for a period not to exceed an additional four (4) weeks. The Borrower Borrowers shall (x) consult with the Steering Committee Agent on an ongoing basis as to the status of the unwinding of the Crack Spread Hedging Agreement, (y) provide to the Steering Committee Agent copies of all trade confirmations executed and/or delivered in connection with the unwinding of the Crack Spread Hedging Agreement, and (z) provide updates on the progress thereof upon request of any member of the Steering CommitteeAgent. As a condition precedent to the unwind of the Crack Spread Hedging Agreement, the BorrowerBorrowers, the Administrative Agent and the ABL Term Loan Agent shall have given, pursuant to the Unwind Letter of Direction, given irrevocable instructions (which, notwithstanding any provision in the Loan Documents (including the Intercreditor Agreement) to the contrary, shall not be subject to or affected by any default or event of default under the Term Loan Agreement or the Permitted ABL Term Loan Facility, or any notice with respect thereto) to the Crack Spread Hedging Counterparty (I) to, within three business days of the First Second Amendment Effective Date, cause the Crack Spread Hedging Cash Collateral to be distributed to the Administrative Term Loan Agent to be applied in accordance with Section 2.12 hereof to the prepayment of Term Loan Agreement (as amended by the LoansTerm Loan First Amendment), and (II) to distribute the Unwind Proceeds as follows: follows (with Unwind Proceeds being applied pursuant to each clause set forth below until payment in full thereof and then to the next succeeding clause): First, an amount up to $45,400,000 of the Unwind Proceeds will be distributed to the Administrative Term Loan Agent to be applied to the obligations under the Term Loan Facility in accordance with Section 2.12 hereof to the prepayment of Term Loan Agreement (as in effect on the LoansSecond Amendment Date); Second, an amount up to $25,000,000 of the Unwind Proceeds will be distributed to the ABL Agent to be applied for application to the Permitted ABL Facility Obligations in accordance with the terms of the Permitted ABL Facility Amendment (as defined in the First Amendment)this Agreement; Third, an amount up to $25,000,000 of the Unwind Proceeds will be distributed to the Administrative Term Loan Agent to be applied to the obligations under the Term Loan Facility in accordance with Section 2.12 hereof to the prepayment of Term Loan Agreement (as in effect on the LoansSecond Amendment Date); Fourth, an amount up to $25,000,000 of the Unwind Proceeds will be distributed to the ABL Agent to be applied for application to the Permitted ABL Facility Obligations in accordance with the terms of the Permitted ABL Facility Amendment (as defined in the First Amendment) this Agreement (any amounts to be distributed for application to the ABL Agent Obligations pursuant to clause Second and clause Fourth hereof are referred to herein as the “Retained Unwind Proceeds”); and Fifth, all remaining Unwind Proceeds the remainder of such proceeds will be distributed to the Administrative Term Loan Agent to be applied to the obligations under the Term Loan Facility in accordance with Section 2.12 hereof to the prepayment of Term Loan Agreement (as in effect on the LoansSecond Amendment Date). The Borrower Borrowers shall cause the Crack Spread Hedging Counterparty to promptly, and in any event within 5 Business Days of any settlement, termination or unwinding of any portion of the Crack Spread Hedging Agreement (but in any event not later than on the same day as the Borrower would have otherwise been entitled to receive such amounts absent this Section 5.1110.1.9), pay all Unwind Proceeds arising in connection with any such settlement, termination or unwinding directly to the Administrative Agent or the ABL Term Loan Agent as provided above. The Borrower Borrowers shall also cause the Crack Spread Hedging Counterparty to promptly, and in any event within 3 Business Days of the First Second Amendment Effective Date (but in any event not later than the same day as the Borrower Borrowers would have otherwise been entitled to receive such amounts absent this Section 5.1110.1.9), pay the Crack Spread Hedging Cash Collateral directly to the Administrative Agent. The Unwind Proceeds and the released Crack Spread Hedging Cash Collateral delivered to the Administrative Term Loan Agent for application to the outstanding Loans as provided above will be deemed to be prepayments pursuant to Section 2.12 and will be applied, first, pro rata to applied in accordance with the remaining scheduled installments of principal due in 2009 and, thereafter, pro rata to the remaining scheduled installments of principal due in respect of the Loans on and after March 31, 2010 under Section 2.11. Any amounts owing to the Crack Spread Hedging Counterparty Term Loan Agreement (as a result of the exercise of any set-off rights or as a result of the unwinding of any hedging arrangements with such Crack Spread Hedging Counterparty or its Affiliates shall either (a) be applied against and reduce the Retained Unwind Proceeds payable to the ABL Agent for the benefit of the Borrower on a dollar-for-dollar basis amended by the amount thereof, or (b) otherwise be paid by the Borrower. In no event shall any such amounts be payable out of the Unwind Proceeds that are payable to the Lenders as provided above or out of the Crack Spread Hedging Cash CollateralTerm Loan First Amendment). Each of the Lenders acknowledges that (a) the Borrower Company has not given any guarantee as to the ultimate amount of the Unwind Proceeds to be realized upon the unwinding of the Crack Spread Hedging Agreement, and (b) the Borrower Company may effect the unwinding of the Crack Spread Hedging Agreement in one or a series of transactions as determined in its sole discretion following consultation with the Steering Committee in accordance with Section 5.11.” 18. Article V of the Term Loan Agreement (as in effect on the Second Amendment Date).” (u) Amendment of Section 10.1.14. Section 10.1 14 is hereby amended by adding replacing the following new Sections 5.13 first occurrence only of “$40,000,000” with “$66,000,000”. In all other respects, Section 10.1.14 remains in full force and 5.14 after effect. (v) Amendment of Section 5.12:10.2.1