AMENDMENT NO. 2 TO CREDIT AGREEMENT
EXHIBIT
10.4
AMENDMENT NO. 2 TO CREDIT AGREEMENT
This AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of June 15, 2010 (this
“Amendment”), is entered into by and among ALON REFINING XXXXX SPRINGS, INC., a Delaware
corporation (the “Borrower”), the financial institutions party hereto from time to time as
lenders (the “Lenders”), and BANK HAPOALIM B.M., a bank organized under the laws of Israel,
acting through its New York branch, as administrative agent (in such capacity, the
“Administrative Agent”) and as collateral agent (in such capacity, the “Collateral
Agent”) for the Lenders.
W I T N E S S E T H
WHEREAS, the Borrower, the Lenders, the Administrative Agent and the Collateral Agent are
parties to the Credit Agreement dated as of March 15, 2010 (as amended by Amendment No. 1 to Credit
Agreement dated as of May 28, 2010, the “Credit Agreement”) pursuant to which the Lenders
provided a term loan facility (the “Facility”) in the form of a single Borrowing on the
Closing Date in an aggregate principal amount of $65,000,000, of which $35,000,000 of principal and
accrued interest thereon has been prepaid to date.
WHEREAS, the Borrower, the Lenders , the Administrative Agent and the Collateral Agent wish to
amend the Credit Agreement to extend the Maturity Date to August 16, 2010;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. Any capitalized term used herein and not defined shall have the
meaning assigned to it in the Credit Agreement.
2. Amendment to Credit Agreement.
Amendment and Restatement of Existing Definitions. The following defined term in
Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
“‘Maturity Date’ shall mean August 16, 2010, provided, however,
that if such date falls on a day other than a Business Day, the Maturity Date
shall be extended to the next succeeding Business Day with interest
continuing to accrue at the rate in effect on the date falling three months
from the Closing Date.”
3. Conditions to Effectiveness. The effectiveness of this Amendment is subject to the
fulfillment of the following conditions (the date such conditions are fulfilled is hereafter
referred to as the “Second Amendment Effective Date”):
(a) The representations and warranties contained in this Amendment shall be true and correct
on and as of the Second Amendment Effective Date as though made on and as of
such date, except to the extent that such representations or warranties expressly relate
solely to an earlier date (in which case such representations or warranties shall be true and
correct on and as of such date); and no Default or Event of Default shall have occurred and be
continuing on the Second Amendment Effective Date or would result from this Amendment becoming
effective in accordance with its terms.
(b) The Administrative Agent shall have received on or before the Second Amendment Effective
Date a duly executed copy of this Amendment, and any other document reasonably requested by the
Administrative Agent.
(c) An extension fee in the amount of $20,000 have been fully paid by Borrower on or before
the Second Amendment Effective Date.
(d) All costs and expenses (including, without limitations, the Administrative Agent’s legal
fees) related to the negotiation, drafting and entering into this Amendment, have been fully paid
by Borrower on or before the Second Amendment Effective Date.
4. Representations and Warranties. In addition to any and all representations and
warranties included in the Credit Agreement, which are hereby affirmed in all respects as of the
date hereof, to induce the other parties hereto to enter into this Amendment, the Borrower
represent and warrant to the Lenders, the Administrative Agent and the Collateral Agent that, as of
the Second Amendment Effective Date:
(a) Organization; Powers. Each Obligor (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (c) is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the power and authority
to execute, deliver and perform its obligations under this Amendment and each other agreement or
instrument contemplated thereby to which it is or will be a party.
(b) Authorization. The execution, delivery and performance by each Obligor of this Amendment and
the other transactions contemplated hereby (collectively, the “Transactions”) (a) have been duly
authorized by all requisite corporate and, if required, stockholder action of such Obligor and (b)
will not (i) violate (A) any provision of law, statute, rule or regulation, or of the certificate
or articles of incorporation or other constitutive documents or by-laws, of such Obligor, (B) any
order of any Governmental Authority or (C) any provision of any indenture, agreement or other
instrument in respect of Material Indebtedness or any other material agreement to which such
Obligor is a party or by which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both)
a default under, or give rise to any right to accelerate or to require the prepayment, repurchase
or redemption of any obligation under any such indenture, agreement or other instrument in respect
of Material Indebtedness or any other material agreement or (iii) result in the creation or
imposition of any Lien upon or with respect to any property or assets now owned or hereafter
acquired by the Borrower or any of its subsidiaries (other than any Lien created hereunder or under
the Security Documents).
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(c) Enforceability. This Amendment has been duly executed and delivered by the Borrower and
constitutes, a legal, valid and binding obligation of the Borrower enforceable against the Borrower
in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability,
to equitable principles of general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
5. Reservation of Rights. No action or acquiescence by the Administrative Agent, the
Collateral Agent and the Lenders, including, without limitation, this Amendment of, or the
acceptance of any payments under, the Credit Agreement, shall constitute a waiver of any Default or
Event of Default which may exist as of the Second Amendment Effective Date. Accordingly, the
Administrative Agent, the Collateral Agent and the Lenders reserve all of their rights under the
Credit Agreement at law and otherwise regarding any such Default or Event of Default.
6. Continued Effectiveness of Loan Documents. Each of the parties hereto hereby
confirms and agrees that each Loan Document to which it is a party is, and shall continue to be, in
full force and effect and is hereby ratified and confirmed in all respects except that on and after
the Second Amendment Effective Date all references in any such Loan Document to “the Credit
Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Credit
Agreement shall mean the Credit Agreement as amended by this Amendment.
7. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same agreement. Delivery of a counterpart hereby by
facsimile or electronic transmission shall be equally effective as delivery of a manually executed
counterpart hereof.
(b) Section and paragraph headings herein are included for convenience of reference only and
shall not constitute a part of this Amendment for any other purpose.
(c) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
(d) THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE LENDERS EACH HEREBY
IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AMENDMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers as of the day and year first written above.
| ALON REFINING XXXXX SPRINGS, INC. |
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| By: | /s/ Shai Even | |||
| Name: | Shai Even | |||
| Title: | SVP & CFO | |||
| BANK HAPOALIM B.M., New York Branch, individually and as Administrative Agent and Collateral Agent |
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| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | First Vice President | |||
