EXHIBIT 10.18
EXECUTION COPY
SECOND AMENDMENT dated as of May 6, 2005 (this
"Amendment"), to the Amended and Restated Credit Agreement
dated as of January 14, 2004 (as amended by the First
Amendment dated as of February 10, 2005, the "Credit
Agreement"), among Alon USA, Inc. (the "Borrower"), the
Lenders party thereto and Credit Suisse First Boston, acting
through its Cayman Islands Branch, as Administrative Agent and
Collateral Agent (the "Agent").
WHEREAS, the Borrower has requested that the Required Lenders (such
term and each other capitalized term used but not otherwise defined herein
having the meaning assigned to it in the Credit Agreement, as amended hereby)
agree to amend the Credit Agreement as set forth herein;
WHEREAS, it is contemplated that Alon Energy may engage in initial
public offering of its common Equity Interests;
WHEREAS, Alon Energy proposes to transfer all or some of the net
cash proceeds of such initial public offering to the Borrower by means of an
Equity Issuance and/or intercompany Indebtedness; and
WHEREAS, the undersigned Lenders, constituting the Required Lenders,
are willing, on the terms and subject to the conditions set forth herein, to
approve such amendments to the Credit Agreement.
NOW, THEREFORE, in consideration of these premises, the parties
hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement effective as of the
Second Amendment Effective Date. (a) The definition of "Change in Control" in
Section 1.01 of the Credit Agreement is hereby amended by replacing paragraph
(a) thereof in its entirety with the following:
"(a) Alon Israel shall cease, at any time, to own and
Control, directly, shares representing at least 51% of the equity
in, and the aggregate ordinary voting power represented by, the
issued and outstanding capital stock of Alon Energy,"
(b) Section 6.01 of the Credit Agreement is hereby amended by (i)
replacing "; and" with ";" at the end of paragraph (l) thereof, (ii) relettering
paragraph (m) thereof as paragraph (n) and (iii) inserting the following new
paragraph (m) thereof:
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"(m) loans or advances by Alon Energy to the Borrower of
proceeds of the initial public offering of Equity Interests of Alon
Energy; and"
SECTION 2. Representations and Warranties. Each Loan Party hereby
represents and warrants to the Agent and the Lenders that, as of the date
hereof:
(a) No Default or Event of Default has occurred and is continuing.
(b) All representations and warranties of each Loan Party set forth
in the Loan Documents (as amended hereby) are true and correct in all
material respects except to the extent that any representation or warranty
expressly relates to an earlier date (in which case such representation or
warranty is correct as of such earlier date).
(c) The execution and delivery of this Amendment and the
effectiveness of the provisions hereof will not violate or result in a
default under any indenture or other material agreement or instrument
binding upon the Borrower or any of its Subsidiaries or on their assets,
or give rise to a right thereunder to require any payment to be made by
the Borrower or any of its Subsidiaries, and will not result in the
creation or imposition thereunder of any Lien on any asset of the Borrower
or any of the other Subsidiaries.
SECTION 3. Conditions Precedent to Effectiveness. This Amendment
shall become effective on the date on which each of the following conditions is
satisfied (the "Second Amendment Effective Date"):
(a) The Agent shall have received counterparts hereof duly executed
and delivered by the Borrower, the Agent and the Required Lenders.
(b) The Agent shall have received (i) the Amendment Fee and (ii) all
other amounts due hereunder or under the Credit Agreement and payable on
or prior to the Second Amendment Effective Date, including reimbursement
or payment of all out-of-pocket expenses (including fees, charges and
disbursements of counsel) required to be reimbursed or paid by any Loan
Party hereunder or under any Loan Document.
(c) The Agent shall have received a certificate, dated the Second
Amendment Effective Date and signed by the President, a Vice President or
a Financial Officer of the Borrower, confirming the accuracy of the
representations and warranties set forth in Section 2.
SECTION 4. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Collateral Agent or the Administrative Agent under, the Credit
Agreement or any other Loan Document, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other
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Loan Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to entitle the
Borrower or any other Loan Party to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. This Amendment shall constitute a "Loan
Document" for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 5. Consent of Guarantors. The Borrower and each Guarantor
hereby acknowledges receipt of and consents to the terms of this Amendment and
confirms that the Guarantees, pledges and other security interests provided
pursuant to the Guarantee and Collateral Agreement remain in full force and
effect notwithstanding the execution and delivery of this Amendment.
SECTION 6. Amendment Fee. The Borrower agrees to pay on the Second
Amendment Effective Date in immediately available funds to the Agent for the
account of each Lender that executes and delivers a copy of this Amendment to
the Agent (or its counsel) at or prior to 12:00 noon, New York City time, on May
6, 2005, an amendment fee (the "Amendment Fee") in an amount equal to 0.125% of
the outstanding Term Loans of each such Lender as of the Second Amendment
Effective Date. The parties agree that no fees shall be payable to Lenders in
respect of this Amendment other than as set forth in this Amendment.
SECTION 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 any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 8. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Headings. The headings of this Amendment are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the Borrower, the Guarantors, the Agent and the
undersigned Lenders have caused this Amendment to be duly executed by their duly
authorized officers, all as of the date first above written.
ALON ASSETS, INC.
ALON USA OPERATING, INC.
ALON USA REFINING, INC.
ALON USA PIPELINE, INC.
ALON PETROLEUM PIPE LINE COMPANY
FIN-TEX PIPE LINE COMPANY
T & R ASSETS, INC.
ALON USA ASPHALT, INC.
ALON ASPHALT BAKERSFIELD, INC
ALON USA, INC.
ALON USA ENERGY, INC.
ALON USA CAPITAL, INC.,
by /s/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
ALON USA, LP,
By: Alon USA GP, LLC, a Delaware limited
liability company, its general
partner,
by
/s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
ALON USA GP, LLC,
by
/s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
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SOUTHWEST CONVENIENCE STORES, LLC
ALON USA INTERESTS, LLC
by
/s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
ALON USA DELAWARE, LLC
ALON PIPELINE LOGISTICS, LLC
by
/s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chairman/President
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CREDIT SUISSE FIRST BOSTON,
acting through its Cayman
Islands Branch, individually and
as Administrative Agent and
Collateral Agent,
by: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
by: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate
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Signature Page to Second Amendment to
the Alon USA, Inc.Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
A3 FUNDING LP, By: A3 Management LLC,
Its: General Partner
by: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: V.P.
by: ___________________________________________
Name:
Title:
8
Signature Page to Second Amendment to
the Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
Ableco Finance LLC
by: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Sr. V.P.
by: ___________________________________________
Name:
Title:
9
Signature Page to Second Amendment to
the Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
Cenurion DCO 9, Limited
By: American Express Asset Management
Group, Inc. as Collateral Manager
by: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director-Operations
by: ___________________________________________
Name:
Title:
10
Signature Page to Second Amendment to the Alon
USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
Centurion CDO VII, Ltd.
By: American Express Asset Management
Group, Inc. as Collateral Manager
by: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director-Operations
by: ___________________________________________
Name:
Title:
11
Signature Page to Second Amendment to the Alon
USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
Centurion CDO II, Ltd.
By: American Express Asset Management
Group, Inc. as Collateral Manager
by: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director-Operations
by: ___________________________________________
Name:
Title:
12
Signature Page to Second Amendment to the Alon
USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
Centurion CDO VI, Ltd.
By: American Express Asset Management
Group, Inc. as Collateral Manager
by: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director-Operations
by: ___________________________________________
Name:
Title:
13
Signature Page to Second Amendment to the Alon
USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
Sequils-Centurion V, Ltd.
By: American Express Asset Management
Group, Inc. as Collateral Manager
by: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director-Operations
by: ___________________________________________
Name:
Title:
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Signature Page to Second Amendment to the Alon
USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
Aviary Associates LP
By: Aviary Capital Enterprises, Inc.,
General Partner
by: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Exec. V.P.
by: /s/ Xxx X. Xxxx
-------------------------------------------
Name: Xxx X. Xxxx
Title: Vice President
15
Signature Page to Second Amendment to the Alon
USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
BLACK DIAMOND CLO 2000-1, LTD
by: /s/ Xxxx Xxxxxxx
___________________________________________
Name: Xxxx Xxxxxxx
Title: Director
by: ___________________________________________
Name:
Title:
16
Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
DIAMOND SPRINGS TRADING LLC
by: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
by: _________________________
Name:
Title:
17
Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
ECL Funding LLC for itself or as agent for
GCL2 Funding LLC
by: /s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: as Attorney-in-fact
by: _________________________
Name:
Title:
18
Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
SECURITY INCOME FUND-INCOME
OPPORTUNITY SERIES, as Lender
By: Four Corners Capital Management LLC,
As Sub-Adviser
/s/ Xxxxx Xxxxxxxxxx
-----------------------
Xxxxx Xxxxxxxxxx
Assistant Vice President
19
Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
FIRST TRUST/FOUR CORNERS
SENIOR FLOATING RATE
INCOME FUND II, as Lender
By: Four Corners Capital Management LLC,
As Sub-Adviser
/s/ Xxxxx Xxxxxxxxxx
------------------------
Xxxxx Xxxxxxxxxx
Assistant Vice President
20
Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
FIRST TRUST/FOUR CORNERS
SENIOR FLOATING RATE
INCOME FUND, as Lender
By: Four Corners Capital Management LLC,
As Sub-Adviser
/s/ Xxxxx Xxxxxxxxxx
------------------------
Xxxxx Xxxxxxxxxx
Assistant Vice President
21
Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
HIGHLAND FLOATING RATE ADVANTAGE
FUND
By: Highland Capital Management, L.P.,
Its Investor Advisor
by: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
Highland Capital Management, L.P.
by: _________________________________
Name:
Title:
22
Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
HIGHLAND FLOATING RATE LIMITED
LIABILITY COMPANY
By: Highland Capital Management, L.P.,
Its Investor Advisor
by: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
Highland Capital Management, L.P.
by: _________________________________
Name:
Title:
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Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
HIGHLAND LEGACY LIMITED
By: Highland Capital Management, L.P.,
as Collateral Manager
by: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Treasurer
Highland Capital Management, L.P.
by: _________________________________
Name:
Title:
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Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
PAMCO CAYMAN, LTD.
By: Highland Capital Management, L.P.,
as Collateral Manager
by: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Treasurer
Highland Capital Management, L.P.
by: _________________________________
Name:
Title:
25
Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
Oppenheymer Senior Floating Rate Fund
by: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: AVP
by: _________________________________
Name:
Title:
26
Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
ORIX FINANCE CORP. I
by: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Authorized Representative
27
Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
Citigroup Investments Corporate Loan Fund
Inc. By: Travelers Asset Management
International Company LLC
by: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: VP
28
Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
Columbus Loan Funding Ltd.
By: Travelers Asset Management
International Company LLC
by: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: VP
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Signature Page to Second Amendment to the
Alon USA, Inc. Amended and Restated Credit
Agreement
To approve the Amendment:
Name of Lender:
IRS IO LLC
by: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
