EXHIBIT 10.20
EXECUTION COPY
FIRST AMENDMENT dated as of February 10, 2005 (this
"Amendment"), to the Amended Revolving Credit Agreement dated
as of January 14, 2004 (the "Revolving Credit Agreement"),
among Alon USA, LP (the "Borrower"), the Guarantor Companies
party thereto, the Lenders party thereto and Israel Discount
Bank of New York, as 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 Revolving Credit Agreement) agree to
amend the Revolving Credit Agreement as set forth herein to permit the Pipeline
Transactions, subject to the terms and conditions set forth herein, and to
effect certain other changes;
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 Revolving Credit Agreement;
WHEREAS, the Collateral Agents have agreed to provide the releases
set forth in Section 7 hereof in consideration for the agreements and subject to
the terms and conditions set forth herein including, without limitation, the
agreement by Alon Logistics (as defined below) to pledge all of the Alon
Logistics Notes to the Collateral Agent; and
NOW, THEREFORE, in consideration of these premises and of the mutual
covenants, agreements and conditions hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to the Revolving Credit Agreement effective as
of the First Amendment Effective Date.
(a) Section 1.01 of the Revolving Credit Agreement is hereby amended
by inserting the following definitions in their proper alphabetical order in
such Section:
"Alon Logistics" means Alon Pipeline Logistics, LLC, a
Delaware limited liability company.
"Alon Pipeline Assets" means Alon Pipeline Assets, LLC,
a Texas limited liability company.
"First Amendment" means the First Amendment to the
Amended Revolving Credit Agreement, dated as of February 10, 2005,
among the Borrower, the Guarantor Companies, the Lenders and the
Agent.
"First Amendment Effective Date" has the meaning
assigned to such term in the First Amendment.
SECTION 2. Amendments to the Revolving Credit Agreement effective as
of the Pipeline Transactions Effective Date.
(a) Section 1.01 of the Revolving Credit Agreement is hereby amended
by
(i) inserting the following definitions in their proper
alphabetical order in such Section:
"Alon Logistics Notes" means the subordinated
intercompany promissory notes in an aggregate principal amount of
$112,000,000, issued by the Borrower or one or more Subsidiaries of
Alon USA to Alon Logistics in exchange for delivery by Alon
Logistics to the Borrower or such Subsidiaries of the Cash
Consideration relating to the Xxxxx Pipeline Transactions.
"Assumed Liabilities" has the meaning given to such term
in Section 1.3 of the Contribution Agreement.
"Cash Consideration" means an amount in cash equal to
$120,000,000, paid to Alon Logistics pursuant to the Contribution
Agreement.
"Contribution Agreement" means the Contribution
Agreement dated as of January 25, 2005, among Xxxxx, Xxxxx Energy
Partners Operating L.P., the Transferors, Alon Pipeline Assets, Alon
Logistics, Alon USA, Inc. and the Borrower.
"Contributed Assets" has the meaning given to such term
in Section 1.1 of the Contribution Agreement (as in effect on the
First Amendment Effective Date), but shall exclude the "Excluded
Assets", as defined in the Contribution Agreement.
"Contract Rights" means all rights and interests of the
Borrower and its Affiliates under the P&T Contracts.
"Xxxxx" means Xxxxx Energy Partners, L.P., a Delaware
limited partnership.
"Indemnification Agreement" means the Indemnification
Agreement to be entered into on the Pipeline Transactions Effective
Date, between Alon Logistics and HEP Logistics Holdings, L.P., a
Delaware
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limited partnership, in the form attached as Exhibit A to the First
Amendment.
"Mortgage and Deed of Trust" means the Mortgage and Deed
of Trust (with Security Agreement, in each case which shall be in
form and substance reasonably satisfactory to the Agent), to be
entered into on the Pipeline Transaction Effective Date, between
Alon USA, LP, a Texas limited partnership, and Xxxxx, substantially
in the form attached as Exhibit B to the First Amendment.
"P&T Agreement" means the Pipeline and Terminals
Agreement, to be entered into on the Pipeline Transaction Effective
Date between the Borrower and Xxxxx, substantially in the form
attached as Exhibit C to the First Amendment.
"P&T Contracts" means the Contribution Agreement, the
P&T Agreement, the limited partnership agreement of Xxxxx (including
the amendment thereto to be entered into in connection with the
Pipeline Transactions), the Mortgage and Deed of Trust the
Indemnification Agreement, the Subordination Agreement and all other
agreements entered into in connection with the Pipeline
Transactions.
"Pipeline Transactions" means (i) the contribution,
transfer, assignment and delivery by the Transferors, as a capital
contribution, of the Contributed Assets to Alon Pipeline Assets, in
consideration for Equity Interests in Alon Pipeline Assets; (ii) the
assignment by the Transferors of the Assumed Liabilities to Alon
Pipeline Assets and the assumption of such Assumed Liabilities by
Alon Pipeline Assets; (iii) the contribution, transfer, assignment
and delivery by the Transferors, as a capital contribution, of all
of the Equity Interests held by the Transferors in Alon Pipeline
Assets to Alon Logistics, in consideration for Equity Interests in
Alon Logistics; (iv) the transfer by Alon Logistics of all of the
Equity Interests held by Alon Logistics in Alon Pipeline Assets, in
consideration for the PT Consideration; (v) the execution and
delivery of the P&T Agreement; and (v) the other transactions
provided for in the Contribution Agreement and in the P&T Agreement.
"Pipeline Transactions Effective Date" has the meaning
assigned to such term in Section 6(c) of the First Amendment.
"PT Consideration" means (i) the payment by Xxxxx to
Alon Logistics of the Cash Consideration; and (ii) the delivery by
Xxxxx to Alon Logistics of certificates representing the Unit
Consideration, which shall be initially issued in the name of Alon
Logistics.
"Subordination Agreement" means the Subordination,
Non-Disturbance and Attornment Agreement to be entered into at the
closing of
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the Pipeline Transactions, between the administrative agent named
therein for the Credit Parties defined therein, the Agent and the
Borrower, in the form attached as Exhibit D to the First Amendment.
"Transferors" means each of T&R Assets, Inc., a Texas
corporation, FTPL, and Alon Refining.
"Unit Consideration" means 937,500 Class B Subordinated
Units representing limited partner interests issued by Xxxxx in
favor of Alon Logistics.
(ii) inserting the following in the definition of "Borrowing
Base" after the words "Debt Service Support Account (as defined in
the Term Loan Agreement)": "or any other segregated cash account
established or maintained in connection with the Debt Service
Support Requirement".
(iii) deleting the definition of "Debt Service Support
Requirement" in its entirety and substituting in lieu thereof the
following:
"Debt Service Support Requirement" means the requirement (a)
that the Borrower (i) provide a guarantee or letter of credit in
form and substance reasonably satisfactory to the Term Loan Agent
and issued by a banking institution acceptable to the Term Loan
Agent under which the Term Loan Agent may obtain amounts required to
pay principal or interest due but unpaid on the Term Loans or (ii)
establish a segregated cash account with the Term Loan Agent the
amounts in which are available for the payment of principal or
interest due but unpaid on the Term Loans, and (b) that the undrawn
amount of such guarantee or letter of credit, or the amount on
deposit in such segregated cash account, be on each day equal to or
less than $25,000,000 (and solely with respect to amounts deposited
in any such segregated cash account, plus accrued interest
thereon)."
(iv) replacing "and (C)" with "(C") in subclause (a)(ii) of
the definition of "Net Proceeds" and inserting the following
immediately before "and (b)" following subclause (a)(ii)(C) in the
definition of "Net Proceeds":
"and (D) the amount of any PT Consideration paid by any
Loan Party as a dividend or other distribution pursuant to Section
7.02(i)(vi)".
(b) Section 7.01 (a)(xv) of the Revolving Credit Agreement is hereby
amended by inserting the following immediately after the words "GTR Loan
Documents" in subsection (xv)(B): ", (C)" and (ii) by inserting the following at
the end of such subsection (xv): " and (D) any written notice received by the
Borrower or any Subsidiary
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from Xxxxx, or provided by the Borrower or any Subsidiary to Xxxxx, pursuant to
any P&T Contract that (i) relates to a default or alleged default by any party
under any such Agreement; (ii) could reasonably be expected to result in (A) the
termination or suspension of the P&T Agreement or (B) a Material Adverse Effect;
or (iii) is otherwise material to the Pipeline Transactions."
(c) Section 7.02(b) of the Revolving Credit Agreement is hereby
amended by (i) deleting the word "and" at the end of subsection (xvi) thereof;
(ii) deleting the period and inserting "and" at the end of subsection (xvii)
thereof; and (iii) inserting the following new subsection (xviii) at the end
thereof:
"(xviii) Indebtedness of Alon Logistics incurred under the
Indemnification Agreement, provided that such Indebtedness shall
not, at any time, exceed $111,000,000;
Without limiting any of the foregoing or anything else in this
Agreement, the Borrower will not, and will not cause or permit any of its
Subsidiaries other than Alon Logistics (i) to provide a Guarantee, letter of
credit, cash account, security interest or any other form of liquidity or credit
support for or in respect of the liabilities or obligations, whether contingent
or otherwise, under the Indemnification Agreement or (ii) to be liable, whether
contingently or otherwise, or have any other obligations (A) under the
Indemnification Agreement or (B) for or in respect of the liabilities or
obligations under any P&T Contracts (other than (i) under the Alon Logistics
Notes, which shall be unsecured and subordinated to all of the Obligations of
the Loan Parties under the Loan Documents and (ii) the Borrower under the P&T
Agreement."
(d) Section 7.02(c) of the Revolving Credit Agreement is hereby
amended by deleting the word "and" immediately before subsection (vi) thereof
and inserting immediately before the period at the end thereof the following: ";
and (vii) the Indemnification Obligations and liabilities of Alon Logistics in
connection with the Pipeline Transactions under the Indemnification Agreement
(subject to the final sentence of Section 7.02(b))."
(e) Section 7.02(d)(ii)(E) of the Revolving Credit Agreement is
hereby amended by inserting the following after "in the case of the Fixed Assets
(I)": "(other than with respect to the Pipeline Transactions pursuant to and in
accordance with the Contribution Agreement)".
(f) Section 7.02(d)(iv) of the Revolving Credit Agreement is hereby
amended by deleting the word "and" immediately before subsection (B) thereof and
inserting immediately before the period thereof the following: "and (C) for the
sale of the Unit Consideration; provided that, the consideration for any such
sale or other disposition shall be for an amount (or equivalent) equal to the
then applicable fair market value of the Unit Consideration sold or otherwise
disposed".
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(g) Section 7.02(e) of the Revolving Credit Agreement is hereby
amended by deleting such subsection in its entirety and substituting in lieu
thereof the following:
"(e) Change in Nature of Business. (a) Make, or permit any of
their Subsidiaries to make, any material change in the nature of its
business as carried on at the date hereof.
(b) In the case of Alon Logistics only, engage in any business
or activity after the First Amendment Effective Date other than the
ownership of the Alon Logistics Notes and the Unit Consideration,
the entry into the Indemnification Agreement (as in effect on the
Pipeline Transactions Effective Date) and the Contribution Agreement
(as in effect on the Pipeline Transactions Effective Date) and the
transactions contemplated to be performed by Alon Logistics therein.
Alon Logistics will not own or acquire any assets (other than the
Alon Logistics Notes and the Unit Consideration) or incur any
liabilities (other than liabilities under the Loan Documents, the
Term Loan Documents, the Contribution Agreement or the
Indemnification Agreement and liabilities imposed by law incidental
to its existence and permitted business and activities); provided
that, Alon Logistics shall be entitled to receive the Cash
Consideration in accordance with the Contribution Agreement;
provided, further, that immediately upon the receipt thereof (i)
Alon Logistics shall distribute, dividend or transfer all such Cash
Consideration to the Borrower or any Subsidiary of Alon USA (other
than Alon Logistics), (ii) the Borrower and each such Subsidiary, as
applicable, shall issue to Alon Logistics the Alon Logistics Notes
in exchange for any such distribution, dividend or transfer of such
Cash Consideration and (iii) Alon Logistics shall pledge all Alon
Logistics Notes to the Collateral Agent for the ratable benefit of
the Secured Parties in accordance with the Security Documents and
subject to the Intercreditor Agreement."
(h) Section 7.02(f) of the Revolving Credit Agreement is hereby
amended by (i) replacing "; and" with ";" at the end of paragraph (xiv) thereof;
(ii) re-lettering paragraph (xv) thereof as paragraph (xvi); (iii) inserting the
following new paragraph (xv) at the end thereof:
"investments by any Company and its Subsidiaries in the Unit
Consideration pursuant to the Contribution Agreement (as in effect
on the First Amendment Effective Date) and the issuance of the Alon
Logistics Notes; provided that the Unit Consideration and the Alon
Logistics Notes shall be pledged pursuant to the Security Documents
and subject to the Intercreditor Agreement; and"; and
(iv) replacing the parenthetical in clause (w) of the proviso in subsection (x)
thereof in its entirety with the following:
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"(including any Indebtedness of the Acquired Entity that is assumed
by a Company following such acquisition and the amount of any
forgivable loan owed to any Acquired Entity and any Indebtedness
permitted by Sections 7.02(b)(vi) and 7.02(b)(vii) but excluding (i)
any Net Proceeds from asset sales reinvested in accordance with
Sections 2.07(d) and (e), (ii) any Net Proceeds of the Pipeline
Transactions or from any sale or disposition of the Unit
Consideration (other than any Net Proceeds applied to prepay Loans)
and (iii) any Capital Expenditures made in accordance with Section
7.02(h))".
(i) Section 7.02(h) of the Revolving Credit Agreement is hereby
amended by replacing the text preceding the table in its entirety with the
following:
"(h) Capital Expenditures. Make or commit to make, or permit
any of their Subsidiaries to make or be committed to make, any
Capital Expenditure (by purchase or Capitalized Lease) other than
Capital Expenditures (including obligations under Capitalized
Leases) (i) up to $95,000,000 in the aggregate since the First
Amendment Effective Date, provided, that no Default or Event of
Default has occurred and is continuing at the time that such Capital
Expenditure is made and will not occur after giving effect to any
such Capital Expenditure; (ii) made with Net Proceeds of the sale of
the Unit Consideration (other than any such Net Proceeds applied to
prepay Term Loans); and (iii) which would not cause the aggregate
amount of all such Capital Expenditures (other than as permitted by
subclause (i) and subclause (ii)) in any period set forth below to
exceed:".
(j) Section 7.02(i) of the Revolving Credit Agreement is hereby
amended by (i) replacing "[INTENTIONALLY OMITTED]" in paragraph 7.02(i)(vi) with
"within 30 days following the receipt by Alon Logistics or any other Subsidiary
of the Cash Consideration, any Company and its Subsidiaries may declare and pay
dividends ratably to their respective equity holders in an aggregate amount not
to exceed $26,500,000" and (ii) deleting the word "and" immediately before
clause (III) in the last paragraph of such subsection and inserting immediately
before the period at the end of such subsection the following: "and (IV) the
payment of a dividend in accordance with Section 7.02(i)(vi)".
(k) Section 7.02(t) of the Revolving Credit Agreement is hereby
amended by inserting the following immediately after the words "the contrary" in
the second line ", other than as set forth in Section 7.02(i)(vi)".
(l) Section 10.01(e) of the Revolving Credit Agreement is hereby
amended by (i) inserting "(i)" after "Any Loan Party" in the first line thereof;
(ii) deleting the period at the end thereof and inserting "; or" in lieu
thereof; and (iii) inserting the following new subsection (ii) at the end
thereof:
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"(ii) shall default in the performance of any obligation under
any of the P&T Contracts or any related agreement (and such default
is not waived or continues after any applicable cure period
therefor) and such default could reasonably be expected, in the
judgment of the Agent or the Required Lenders, to result in the
termination of, or the loss or suspension of any rights of the
Borrower or any Subsidiary under, the P&T Agreement or in a Material
Adverse Effect."
(m) Section 10.01 is hereby amended by (i) deleting "or" at the end
of subsection (x) thereof; (ii) inserting "and" at the end of subsection (y)
thereof; and (iii) inserting the following new subsection (z) at the end
thereof:
"(z) Xxxxx or HEP Logistics Holdings, L.P. shall assert any
claim against the Borrower or any Company under or in connection
with the Indemnification Agreement in an aggregate amount exceeding
$2,500,000;".
SECTION 3. Representations and Warranties.
Each Loan Party hereby represents and warrants to the Agent and the
Lenders that, (i) on the First Amendment Effective Date, the following
representations and warranties are true and correct as of the First Amendment
Effective Date, and (ii) on the Pipeline Transaction Effective Date, the
following representations and warranties are true and correct as of the Pipeline
Transaction Effective Date:
(a) All representations and warranties of each Company set forth in
the Loan Documents (as amended hereby), any certificate or other writing
delivered to the Agent or the Lenders are true and correct in all material
respects except to the extent that any representation or warranty (i) expressly
relates to an earlier date (in which case such representation or warranty is
true and correct as of such earlier date); or (ii) is affected by the
consummation of the Pipelines Transaction; and no Default or Event of Default
has occurred and is continuing on the First Amendment Effective Date or will
result from the First Amendment becoming effective in accordance with its terms.
(b) Each Company (i) is a corporation, limited partnership or
limited liability company (as applicable) duly organized, validly existing and
in good standing under the laws of its state of organization; (ii) has all
requisite power and authority to execute, deliver and perform this Amendment,
and to perform the Revolving Credit Agreement, as amended hereby; and (iii) is
duly qualified to do business and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary, except where the
failure to so qualify individually or in the aggregate is not reasonably likely
to have a Material Adverse Effect.
(c) The execution, delivery and performance by each Company of this
Amendment and the performance by each such Company of the Revolving Credit
Agreement, as amended hereby, (i) have been duly authorized by all necessary
action;
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(ii) do not and will not contravene, in the case of a corporation, its charter
or by-laws, in the case of a limited liability company, its certificate of
formation and limited liability operating agreement, and in the case of a
limited partnership, its certificate of limited partnership and limited
partnership agreement, or any applicable equivalent document, or any applicable
law or any indenture, other material agreement, instrument or other material
contractual restriction binding on or otherwise affecting it or any of its
properties; (iii) do not give rise to a right thereunder to require any payment
to be made by any Company or any of its Subsidiaries; (iv) do not and will not
result in or require the creation of any Lien (other than pursuant to any Loan
Document) upon or with respect to any Company's or any Company's Subsidiaries'
assets or properties; and (v) do not and will not result in any suspension,
revocation, impairment, forfeiture or nonrenewal of any permit, license,
authorization or approval applicable to its operations or any of its properties
except where such suspension, revocation, impairment, forfeiture or nonrenewal
is not reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice
to or filing with, any Governmental Authority or agency or other regulatory body
is required in connection with the due execution, delivery and performance by
any Company of this Amendment, or for the performance of the Revolving Credit
Agreement, as amended hereby, except to the extent obtained or executed prior to
the date hereof and to the extent in full force and effect as of the First
Amendment Effective Date and the Pipeline Transactions Effective Date, as
applicable.
(e) This Amendment, the Revolving Credit Agreement, as amended
hereby, and each other Loan Document to which any Company is a party is a legal,
valid and binding obligation of such Company, enforceable against such Company
in accordance with its terms, except as such enforceability may be limited by or
subject to any bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally.
(f) The Borrower has furnished to the Lenders true and complete
copies of the P&T Contracts as in effect on the date hereof.
SECTION 4. Agreements of the Borrower.
(a) The terms and provisions of the Pipeline Transactions will be
consistent in all material respects with those terms set forth in the P&T
Contracts in the forms delivered to the Agent and the Lenders as of January 25,
2005.
(b) The Borrower will, will cause each Company to, and will use its
commercially reasonable best efforts to cause any third party to, execute any
and all further documents, financing statements, agreements and instruments, and
take all such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents),
that may be required under any applicable law, or that the Agent may reasonably
request, to create and perfect the Liens created by the Security Documents, as
amended hereby, in the Unit Consideration, the Contract Rights or otherwise.
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(c) At the time the Net Proceeds of the Pipeline Transactions are
received, the Borrower will prepay the Loans in an amount equal to the total
amount of such Net Proceeds, in accordance with Section 2.07 of the Revolving
Credit Agreement, except to the extent the Borrower or any other Company is
obligated to pay such Net Proceeds to the Term Loan Agent in accordance with the
Term Loan Agreement.
(d) The Borrower agrees that it shall not modify, vary, amend or
waive any provision of any P&T Contract (including any future Subordination
Agreement and the Indemnification Agreement) if such modification, variance,
amendment or waiver would materially increase the obligations of the Borrower or
confer additional material rights to Xxxxx in a manner adverse to Borrower, any
Subsidiary or the Lenders without the prior written consent of the Agent.
SECTION 5. Conditions Precedent to Effectiveness.
(a) This Amendment shall become effective (except as to Sections 2
and 6 hereof) on the date on which each of the following conditions is satisfied
(the "First Amendment Effective Date"):
(i) the Agent shall have received counterparts hereof duly
executed and delivered by the Borrower, the Guarantor Companies, the
Agent and the Required Lenders;
(ii) the Agent shall have received the First Amendment to the
Term Loan Agreement, duly executed and delivered by each party
thereto;
(iii) the Agent shall have received the following, each in
form and substance satisfactory to the Agent and, unless indicated
otherwise, dated the First Amendment Effective Date:
(A) a copy of the resolutions adopted by the Board of
Directors or equivalent governing body of each Company,
certified as of the First Amendment Effective Date by
authorized officers thereof, authorizing the transactions
contemplated by this Amendment, the First Amendment to the
Term Loan Agreement and the other documents, instruments and
agreements executed and/or to be delivered in connection
herewith or therewith;
(B) a certificate of an authorized officer of Alon
Logistics, certifying:
(x) the names and true signatures of the officers
of Alon Logistics authorized to sign this
Amendment and the other documents to be executed
and delivered by Alon Logistics in connection
herewith, together with evidence of the incumbency
of such authorized officers; and
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(y) a copy of the charter, certificate of
formation or other organizational document and
by-laws, operating agreement or other similar
agreement of Alon Logistics, and any amendment,
supplement or modification thereto, certified by
the appropriate official(s) of the state of
organization;
(C) any fee letter or other side letter agreement, if
any, as reasonably required by the Agent, duly executed by the
Agent and the Borrower;
(D) a certificate, dated as of a date not more than ten
Business Days prior to the First Amendment Effective Date, of
the appropriate official of the state of incorporation and
each state of foreign qualification of Alon Logistics,
certifying as to the subsistence in good standing of, and the
payment of taxes by, Alon Logistics in such states and listing
all charter documents of Alon Logistics on file with such
official(s);
(E) a Security Agreement Supplement, in form and
substance satisfactory to the Agent, duly executed by Alon
Logistics, the Agent and each Guarantor;
(F) a Joinder Agreement, in form and substance
satisfactory to the Agent, duly executed by Alon Logistics,
the Agent and each Guarantor;
(G) a Contribution Agreement Supplement, in form and
substance satisfactory to the Agent, duly executed by Alon
Logistics;
(H) a Pledge Agreement Amendment, in form and substance
satisfactory to the Agent, duly executed by the Borrower and
Alon Logistics; and
(I) such other agreements, instruments, approvals,
opinions and other documents as the Agent may reasonably
request; and
(iv) the Agent shall be satisfied with all other legal matters
incident to this Amendment and the transactions contemplated hereby.
(b) Sections 2 and 6 of this Amendment shall become effective on the
date on which each of the following conditions is satisfied (the "Pipeline
Transactions Effective Date"):
(i) the Term Loan Documents shall have been amended and/or
waived in a manner consistent with the amendments effected hereby
and satisfactory in all respects to the Agent, and the Agent shall
have received
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copies of the duly executed amendments and waivers certified by a
Responsible Officer of the Borrower as true and correct copies
thereof;
(ii) (A) to the extent deemed necessary by the Agent in its
discretion, amendments on Form UCC-3 to the financing statements
delivered pursuant to the Term Loan Agreement and Revolving Credit
Agreement, duly executed by the Company party thereto and in
appropriate form for filing; and (B) appropriate financing
statements on Form UCC-1 or comparable form, duly filed in such
office or offices as may be necessary or, in the reasonable opinion
of the Agent, desirable to perfect the security interests purported
to be created by the Security Agreement executed by Alon Logistics
and the Pledge Agreement executed by Alon Logistics;
(iii) the Agent shall have received a copy of a First
Amendment to the Intercreditor Agreement, in the form attached as
Exhibit E hereto or otherwise in form and substance reasonably
satisfactory to the Agent, duly executed by the Collateral Agent,
and by CSFB, in its capacity as Collateral Agent under the Term Loan
Agreement (or any successor agent or representative authorized
thereby) and the Companies party thereto;
(iv) the Agent shall have received a copy of a Consent and
Agreement, in the form attached as Exhibit F hereto or otherwise in
form and substance reasonably satisfactory to the Agent, duly
executed by the Agent and by Xxxxx;
(v) the Agent shall have received a copy of the Subordination
Agreement, in the form attached as Exhibit D hereto or otherwise in
form and substance satisfactory to the Agent, duly executed by the
Borrower and the administrative agent named therein for the Credit
Parties defined therein;
(vi) the Agent shall have received a certificate, dated the
Pipeline Transactions Effective Date and signed by the Responsible
Officer of the Borrower, confirming the accuracy of the
representations and warranties set forth in Section 3 hereof, in
each case as of the Pipeline Transactions Effective Date, and to the
effect that the Pipeline Transactions and the application of the
proceeds thereof will comply with the terms of the Revolving Credit
Agreement as amended hereby;
(vii) the Agent shall have received evidence satisfactory to
the Agent that (i) all the conditions precedent to the effectiveness
of the P&T Contracts and to the obligations of the parties thereto
shall have been satisfied; and (ii) all PT Consideration shall have
been (or substantially contemporaneously with the Pipeline
Transactions Effective Date shall be) paid in full;
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(viii) the Agent shall have received, on behalf of itself and
the Lenders, a favorable written opinion of Xxxxxxxxx and Xxxxxxxxx,
L.L.P., counsel for the Borrower, dated the First Amendment
Effective Date, (A) addressed to the Administrative Agent and the
Lenders and (B) covering such matters relating to this Amendment,
the Loan Documents (as a result of this Amendment) and the Pipeline
Transactions as the Agent shall reasonably request, and the Borrower
hereby requests such counsel to deliver such opinion;
(ix) the Agent shall have received from the Borrower, in
immediately available funds, an amendment fee, which shall be earned
in full on the Pipeline Transaction Effective Date, in the amount of
$141,600.00;
(x) the Agent shall have received an Acknowledgment and
Consent, duly executed by each Investor, consenting to the
transactions contemplated by this Amendment, the First Amendment to
the Term Loan Agreement, the Joinder Agreement joining Alon
Logistics to the Revolving Credit Agreement, the Joinder Agreement
joining Alon Logistics to the Term Loan Agreement and all other
agreements, instruments and other documents executed in connection
with the foregoing and acknowledging that each Guaranty and each
other Loan Document that such Investor is a party to shall remain in
full force and effect;
(xi) the Agent shall have received all amounts due hereunder,
in any fee letter or other side letter agreement executed by the
Agent and any Company in connection herewith (not to exceed the
amount in Section 5(b)(ix) and under the Revolving Credit Agreement
and payable on or prior to the Pipeline Transactions Effective Date,
including reimbursement or payment of all out-of-pocket expenses
(including fees, charges and disbursements of counsel to the Agent);
(xii) the Agent shall have received such other agreements,
instruments, approvals, opinions and other documents as the Agent
may reasonably request; and
(xiii) the Agent shall be satisfied with all other legal
matters incident to this Amendment and the transactions contemplated
hereby.
SECTION 6. Release.
On the Pipeline Transactions Effective Date, the Agent is hereby
authorized and instructed by the undersigned Lenders to take all such actions as
shall be required to release the Contributed Assets and the Equity Interests in
Alon Pipeline Assets from the Liens of the Security Documents.
13
SECTION 7. 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 or the Agent under, the Revolving
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 Revolving Credit Agreement or any other 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 Revolving 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 Revolving Credit
Agreement specifically referred to herein. This Amendment shall constitute a
"Loan Document" for all purposes of the Revolving Credit Agreement and the other
Loan Documents.
SECTION 8. Consent of Guarantors Company.
The Borrower and each Guarantor Companies 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
Security Documents remain in full force and effect notwithstanding the execution
and delivery of this Amendment.
SECTION 9. 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 10. Applicable Law.
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
SECTION 11. Headings.
The headings of this Amendment are for purposes of reference only
and shall not limit or otherwise affect the meaning hereof.
14
IN WITNESS WHEREOF, the Borrower, the Guarantor Companies, 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.
Borrower:
ALON USA, LP
By: Alon USA GP, LLC, a Delaware limited
liability company, its general partner
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chairman of the Board of Managers
Guarantor Companies:
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/ Xxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chairman of the Board of Directors
ALON USA GP, LLC
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chairman of the Board of Managers
SOUTHWEST CONVENIENCE STORES, LLC
ALON USA INTERESTS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board of Managers
ALON USA DELAWARE, LLC
ALON PIPELINE LOGISTICS, LLC
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President
Agent and Lender:
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: First Vice President
By: /s/ XXX XXXXXX
------------------------------
Name: Xxx Xxxxxx
Title: Vice President
Agent and Lender:
BANK LEUMI USA
By: /s/ YURAL TULAY
------------------------------
Name: Yural Tulay
Title: VP
By: /s/ XXXXXX XXXXXXXXXXX
------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Assistant Treasurer
