AMENDED REVOLVING CREDIT AGREEMENT Dated as of June 22, 2006 by and among ALON USA, LP, and EOC ACQUISITION LLC, as Borrowers THE GUARANTOR COMPANIES FROM TIME TO TIME PARTY HERETO THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO and ISRAEL...
Exhibit 10.2
Execution Copy
AMENDED
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT
Dated as of June 22, 2006
by and among
ALON USA, LP,
and
EOC ACQUISITION LLC,
as Borrowers
and
EOC ACQUISITION LLC,
as Borrowers
THE GUARANTOR COMPANIES
FROM TIME TO TIME PARTY HERETO
FROM TIME TO TIME PARTY HERETO
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY HERETO
FROM TIME TO TIME PARTY HERETO
and
ISRAEL DISCOUNT BANK OF NEW YORK,
as Administrative Agent, Co-Arranger and Collateral Agent
as Administrative Agent, Co-Arranger and Collateral Agent
and
BANK LEUMI USA,
as Co-Arranger
as Co-Arranger
TABLE OF CONTENTS
PAGE | ||||||||
ARTICLE I DEFINITIONS; CERTAIN TERMS | 1 | |||||||
Section 1.01 | Definitions | 1 | ||||||
Section 1.02 | Accounting and Other Terms | 30 | ||||||
Section 1.03 | Time References | 31 | ||||||
ARTICLE II THE REVOLVING CREDIT LOANS | 31 | |||||||
Section 2.01 | Revolving Credit Commitments | 31 | ||||||
Section 2.02 | Revolving Credit Loans | 32 | ||||||
Section 2.03 | Making the Revolving Credit Loans | 32 | ||||||
Section 2.04 | Revolving Credit Notes; Repayment of Revolving Credit Loans | 32 | ||||||
Section 2.05 | Funding and Settlement Procedures | 32 | ||||||
Section 2.06 | Interest | 34 | ||||||
Section 2.07 | Reduction of Revolving Credit Commitment; Prepayment of Revolving Credit Loans | 35 | ||||||
Section 2.08 | Fees | 37 | ||||||
Section 2.09 | Eurodollar Rate Not Determinable; Illegality or Impropriety | 38 | ||||||
Section 2.10 | Indemnity | 39 | ||||||
Section 2.11 | Continuation and Conversion of Revolving Credit Loans | 40 | ||||||
Section 2.12 | Taxes | 41 | ||||||
Section 2.13 | Increases to the Facility Sublimit | 43 | ||||||
ARTICLE III LETTERS OF CREDIT | 45 | |||||||
Section 3.01 | Letters of Credit | 45 | ||||||
Section 3.02 | Participations | 48 | ||||||
Section 3.03 | Issuance of Letters of Credit; Fees | 51 | ||||||
ARTICLE IV FEES, PAYMENTS AND OTHER COMPENSATION | 52 | |||||||
Section 4.01 | Audit and Collateral Monitoring Fees | 52 | ||||||
Section 4.02 | Payments; Computations and Statements | 52 | ||||||
Section 4.03 | Sharing of Payments, Etc | 54 | ||||||
Section 4.04 | Apportionment of Payments | 54 | ||||||
Section 4.05 | Increased Costs and Reduced Return | 54 | ||||||
Section 4.06 | Joint and Several Liability of the Borrowers | 56 | ||||||
ARTICLE V CONDITIONS OF EFFECTIVENESS, LETTER OF CREDIT ISSUANCE AND LENDING | 57 | |||||||
Section 5.01 | Conditions Precedent to Effectiveness | 57 | ||||||
Section 5.02 | Conditions Precedent to Revolving Credit Loans and Letters of Credit | 60 | ||||||
ARTICLE VI REPRESENTATIONS AND WARRANTIES | 61 | |||||||
Section 6.01 | Representations and Warranties | 61 |
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TABLE OF CONTENTS
(continued)
(continued)
PAGE | ||||||||
ARTICLE VII COVENANTS OF COMPANIES | 68 | |||||||
Section 7.01 | Affirmative Covenants | 68 | ||||||
Section 7.02 | Negative Covenants | 78 | ||||||
ARTICLE VIII MANAGEMENT, COLLECTION AND STATUS OF ACCOUNTS RECEIVABLE AND OTHER COLLATERAL. |
86 | |||||||
Section 8.01 | Management of Collateral | 86 | ||||||
Section 8.02 | Accounts Receivable Documentation | 87 | ||||||
Section 8.03 | Status of Accounts Receivable and Other Collateral | 88 | ||||||
Section 8.04 | Collateral Custodian | 89 | ||||||
ARTICLE IX THE AGENT | 89 | |||||||
Section 9.01 | Authorization and Action | 89 | ||||||
Section 9.02 | Borrower’s Default | 89 | ||||||
Section 9.03 | Reliance, Etc | 90 | ||||||
Section 9.04 | IDB and Bank Leumi | 90 | ||||||
Section 9.05 | Lender Credit Decision | 91 | ||||||
Section 9.06 | Indemnification | 91 | ||||||
Section 9.07 | Successor Agent | 92 | ||||||
Section 9.08 | Collateral Matters | 92 | ||||||
ARTICLE X EVENTS OF DEFAULT | 94 | |||||||
Section 10.01 | Events of Xxxxxxx | 00 | ||||||
XXXXXXX XX XXXXXXXX | 00 | |||||||
Section 11.01 | Guaranty | 98 | ||||||
Section 11.02 | Obligations Unconditional | 99 | ||||||
Section 11.03 | Waivers | 100 | ||||||
Section 11.04 | Subrogation | 100 | ||||||
Section 11.05 | No Waiver; Remedies | 100 | ||||||
Section 11.06 | Stay of Acceleration | 100 | ||||||
ARTICLE XII MISCELLANEOUS | 101 | |||||||
Section 12.01 | Termination; Annual Review | 101 | ||||||
Section 12.02 | Notices, Etc | 101 | ||||||
Section 12.03 | Amendments, Etc | 102 | ||||||
Section 12.04 | No Waiver; Remedies, Etc | 103 | ||||||
Section 12.05 | Expenses; Taxes; Attorneys’ Fees | 103 | ||||||
Section 12.06 | Right of Set Off | 104 | ||||||
Section 12.07 | Severability | 105 | ||||||
Section 12.08 | Assignments and Participations | 105 | ||||||
Section 12.09 | Counterparts | 107 | ||||||
Section 12.10 | Headings | 107 | ||||||
Section 12.11 | Governing Law | 107 | ||||||
Section 12.12 | Waiver of Jury Trial, Etc | 108 | ||||||
Section 12.13 | Consent by the Agent, Lenders | 108 |
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TABLE OF CONTENTS
(continued)
(continued)
PAGE | ||||||||
Section 12.14 | No Party Deemed Drafter | 108 | ||||||
Section 12.15 | Reinstatement; Certain Payments | 108 | ||||||
Section 12.16 | Indemnification | 109 | ||||||
Section 12.17 | Environmental Indemnification | 109 | ||||||
Section 12.18 | Alon LP as Agent for Borrowers | 110 | ||||||
Section 12.19 | Binding Effect | 110 | ||||||
Section 12.20 | Interest | 111 | ||||||
Section 12.21 | Entire Agreement | 112 | ||||||
Section 12.22 | Patriot Act | 112 | ||||||
Section 12.23 | No Novation | 112 |
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TABLE OF CONTENTS
(continued)
(continued)
SCHEDULE A
|
Agent Account | |
SCHEDULE B
|
Lenders and Lenders’ Revolving Credit Commitments | |
SCHEDULE C
|
Fiscal Year, Fiscal Month and Fiscal Quarter | |
SCHEDULE D
|
Pipelines | |
SCHEDULE E
|
Terminals | |
SCHEDULE F
|
Stock Option Plan | |
SCHEDULE 5.01(d)(x)
|
Mortgage Recording Offices | |
SCHEDULE 6.01(e)
|
Inventory Locations; Books and Records Locations; Chief Executive Offices | |
SCHEDULE 6.01(f)
|
Subsidiaries | |
SCHEDULE 6.01(g)
|
Litigation | |
SCHEDULE 6.01(j)
|
ERISA | |
SCHEDULE 6.01(s)
|
Environmental Matters | |
SCHEDULE 6.01(cc)
|
Bank Accounts | |
SCHEDULE 6.01(dd)
|
Name; Jurisdiction of Organization; Organizational ID Number; FEIN | |
EXHIBIT A
|
Form of Revolving Credit Notes | |
EXHIBIT B
|
Form of Security Agreement | |
EXHIBIT C
|
Form of Pledge Agreement | |
EXHIBIT C-1
|
Form of Subordination Agreement (Intercompany) | |
EXHIBIT D
|
Form of Assignment and Acceptance | |
EXHIBIT E
|
Form of Notice of Borrowing | |
EXHIBIT F
|
Form of Joinder Agreement | |
EXHIBIT G
|
Form of Borrowing Base Certificate | |
EXHIBIT H
|
Form of Letter of Credit Application | |
EXHIBIT I
|
Form of Notice of Facility Sublimit Increase | |
EXHIBIT J
|
Form of Extension Notice | |
EXHIBIT K
|
Form of Consent and Agreement | |
EXHIBIT L
|
Form of Intercreditor Agreement |
-iv-
AMENDED REVOLVING CREDIT AGREEMENT
AMENDED REVOLVING CREDIT AGREEMENT (this “Agreement”), dated as of June 22, 2006 by
and among Alon USA Energy, Inc., a Delaware corporation (the “Parent”), Alon USA, LP, f/k/a
SWBU, L.P., a Texas limited partnership (“Alon LP”), EOC Acquisition LLC, a Delaware
limited liability company (“Xxxxxxxxx”; and together with Alon LP and such other
subsidiaries of the Parent as may be designated as a borrower hereunder by Alon LP with the prior
written consent of the Agent and the Required Lenders (each as defined below), each individually a
“Borrower”, and, collectively, the “Borrowers”), all direct and indirect
subsidiaries of the Parent (other than subsidiaries of Alon Interests (as defined below) and
Paramount (as defined below) and its subsidiaries), the financial institutions from time to time
party hereto (each a “Lender” and collectively, the “Lenders”), Israel Discount
Bank of New York, as administrative agent, co-arranger and collateral agent for the Lenders (in
such capacity, the “Agent”), and Bank Leumi USA, as co-arranger for the Lenders.
RECITALS
Pursuant to the original Amended Revolving Credit Agreement dated as of February 15, 2006 (as
amended prior to the date hereof, the “Existing Revolving Credit Agreement”), by and among
Alon LP, as borrower, certain of the Companies (as defined below), as guarantors, the Lenders and
the Agent, the Lenders extended credit to Alon LP consisting of a revolving credit facility in an
aggregate principal amount not to exceed $240,000,000 at any time outstanding. The Companies have
asked the Lenders to amend the Existing Revolving Credit Agreement in order to, among other things,
(a) permit the Parent and certain of its Subsidiaries to enter into a new term loan facility in the
principal amount of up to $550,000,000, the proceeds of which will be used (in part) (i) to
purchase all of the issued and outstanding shares of capital stock of Paramount Petroleum
Corporation, a Delaware corporation (“Paramount”), and repay certain outstanding
indebtedness of Paramount and its subsidiaries, and (ii) to pay the merger consideration in
connection with the merger of Xxxxxxxxx Oil Company, a Missouri corporation, with and into
Xxxxxxxxx and to pay the purchase price for certain inventory of Xxxxxxxxx Oil Company, (b) add an
additional Borrower and additional Guarantors, and (c) amend certain other provisions of the
Existing Revolving Credit Agreement. The proceeds of the revolving loans and letters of credit
under this Agreement shall be used by each Borrower (i) for working capital purposes of such
Borrower and its subsidiaries, (ii) to pay fees and expenses of the Borrowers incurred in
connection with this Agreement, and (iii) for other purposes permitted herein. Accordingly, the
Companies, the Borrowers, the Lenders and the Agent hereby agree that the Existing Revolving Credit
Agreement is amended as follows:
ARTICLE I
DEFINITIONS; CERTAIN TERMS
Section 1.01 Definitions. As used in this Agreement, the following terms shall have
the respective meanings indicated below, such meanings to be applicable equally to both the
singular and plural forms of such terms:
-1-
“Account” shall have the meaning assigned to it in Article 9 of the Uniform Commercial
Code in effect in the State of New York on the date hereof.
“Account Debtor” means each debtor, customer or obligor in any way obligated on or in
connection with any Account Receivable.
“Accounts Receivable” means any and all rights of a Person to payment for goods sold
or services rendered, including accounts, contract rights and general intangibles arising out of or
related to any Accounts and any and all such rights evidenced by chattel paper, instruments or
documents, whether due or to become due and whether or not earned by performance, and whether now
or hereafter acquired or arising in the future and any proceeds arising therefrom or relating
thereto.
“Acquisitions” means the Paramount Stock Purchase and the Xxxxxxxxx Merger.
“Acquisition Documents” means the Xxxxxxxxx Merger Documents and the Paramount Stock
Purchase Documents.
“Action” has the meaning specified therefor in Section 12.13 hereof.
“Administrative Borrower” has the meaning specified therefor in Section 12.18.
“Affiliate” means, as to any Person, any other Person that directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under common control with,
such Person. For purposes of this definition, “control” of a Person means the power, directly or
indirectly, either to (i) vote 10% or more of the Capital Stock having ordinary voting power for
the election of directors (or other Persons performing a similar function) of such Person or (ii)
direct or cause the direction of the management and policies of such Person whether by contract or
otherwise. Anything to the contrary notwithstanding, in no event shall the Agent, the WC
Collateral Agent or any Lender be deemed to be an Affiliate of any Loan Party.
“Agent” has the meaning specified therefor in the preamble hereto.
“Agent Account” means the account of the Agent set forth in Schedule A hereto.
“Agent Advances” has the meaning specified therefor in Section 9.08 hereof.
“Agreement” has the meaning specified therefor in the first paragraph hereof.
“Alon Assets” means Alon Assets, Inc., a Delaware corporation.
“Alon Capital” means Alon USA Capital, Inc., a Delaware corporation and a Subsidiary
of the Parent.
“Alon Interests” means Alon USA Interests, LLC, a Texas limited liability company.
2
“Alon Israel” means Alon Israel Oil Company Ltd., a limited liability company under
the laws of the State of Israel and the parent company of the Parent.
“Alon Logistics” means Alon Pipeline Logistics, LLC, a Delaware limited liability
company.
“Alon Logistics Notes” means the subordinated intercompany promissory notes in an
aggregate principal amount of $112,000,000, issued by Alon LP or one or more Subsidiaries of Alon
USA to Alon Logistics in exchange for delivery by Alon Logistics to Alon LP or such Subsidiaries of
the Cash Consideration relating to the Pipeline Transactions.
“Alon LP” has the meaning specified therefor in the preamble hereto.
“Alon Operating” means Alon USA Operating, Inc., a Delaware corporation and a
Subsidiary of the Parent.
“Alon Pipeline” means Alon USA Pipeline, Inc., a Delaware corporation.
“Alon Pipeline Assets” means Alon Pipeline Assets, LLC, a Texas limited liability
company.
“Alon Refining” means Alon USA Refining, Inc., a Delaware corporation, or any
successor thereto by merger.
“Alon USA” means Alon USA, Inc., a Delaware corporation and a wholly-owned Subsidiary
of the Parent.
“APPL” means Alon Petroleum Pipe Line Company, f/k/a American Petrofina Pipe Line
Company, a Delaware corporation.
“Applicable Borrowing Base Percentage” means, as of any date:
(a) if either (i) the WC Collateral Agent (for the benefit of the Lenders) has a legal, valid
and perfected first or second priority Lien on all or substantially all of the Fixed Assets and
Other Specified Property and Capital Stock owned by the Loan Parties, or (ii) the WC Collateral
Agent does not have a Lien on all or substantially all of the Fixed Assets and Other Specified
Property and Capital Stock owned by the Loan Parties and so long as such Fixed Assets and Other
Specified Property or Capital Stock are not subject to any Lien of any other Person, then (A) 90%
(with respect to the Net Amount of Eligible Accounts Receivable), and (B) 85% (with respect to
Eligible Inventory), and
(b) if the WC Collateral Agent does not have a Lien on all or substantially all of the Fixed
Assets and Other Specified Property and Capital Stock owned by the Loan Parties and such Fixed
Assets and Other Specified Property or Capital Stock are subject to a Lien of any other Person,
then (A) 85% (with respect to the Net Amount of Eligible Accounts Receivable), and (B) 80% (with
respect to Eligible Inventory).
3
“Applicable Percentage” means, with respect to a Permitted Investment, the percentage
that IDB ordinarily advances against such Permitted Investment in accordance with its customary
lending practices, not to exceed 100% of the value of such Permitted Investment, to the extent has
a legal, valid and perfected first priority security interest in such Permitted Investment, subject
to a control agreement in form and substance satisfactory to the Agent or otherwise perfected by
means satisfactory to the Agent.
“Asset Reinvestment Account” shall have the meaning specified therefor in Section
2.07(d).
“Assignment and Acceptance” means an assignment and acceptance entered into by an
assigning Lender and an assignee and accepted by the Agent, in accordance with Section 12.08 hereof
and substantially in the form of Exhibit D hereto.
“Assignment of Claims Act” means the Assignment of Claims Act of 1940, as amended from
time to time, codified at 31 U.S.C. § 3727 and 41 U.S.C. § 15, or any successor statute, and the
rules and regulations promulgated thereunder.
“Assumed Liabilities” has the meaning given to such term in Section 1.3 of the Xxxxx
Contribution Agreement.
“Availability” means, at any time, the difference between (i) the lowest of (A) the
Borrowing Base, (B) the Total Commitment, and (C) the then current Facility Sublimit, and (ii) the
sum of (A) the aggregate outstanding principal amount of all Revolving Credit Loans and (B) all
Letter of Credit Obligations.
“Bank Leumi” means Bank Leumi USA.
“Base Production Level” means, (a) as of February 15, 2006, 67,000 barrels per day,
which was Alon USA’s and its Consolidated Subsidiaries’ average throughput capacity to process
barrels of crude oil and blendstocks per day, and (b) after February 15, 2006, such amount plus any
increase from such amount in Alon USA’s and its Consolidated Subsidiaries’ average throughput
capacity to process barrels of crude oil and blendstocks per day for which the Administrative
Borrower has obtained an increase in the Facility Sublimit pursuant to Section 2.13(b).
“Base Rate” means a rate per annum equal to the Prime Rate for such day.
“Base Rate Loan” means a Revolving Credit Loan bearing interest at the Base Rate.
“Blended West Texas Crude Oil Price” means, as of any date, the price equal to the sum
of (i) nine-tenths of the closing spot price per barrel of West Texas Sour Crude Oil plus (ii)
one-tenth of the closing spot price per barrel of West Texas Intermediate Crude Oil.
“Big Spring Refinery” means the refinery owned by the Companies as of the Effective
Date and located near Big Spring, Texas, the fee interest owned by Alon Refining in approximately
1,278 acres of land on which such refinery is situated, use or license rights
4
covering tracts of land adjoining the railroad lines, spurs or sidings within the boundary of
the refinery site, all easements, rights of way and privileges granted to Alon Refining within or
adjoining the refinery site, all improvements, machinery and equipment thereon, and the interest of
Alon Refining as lessee in all leases of personal property used or held for use by Alon Refining in
connection with such refinery.
“Board” means the Board of Governors of the Federal Reserve System of the United
States.
“Borrower” and “Borrowers” have the meanings specified therefor in the
preamble hereto.
“Borrowing Base” means, as of any date, without duplication, the difference between
(i) the sum of (A) the Applicable Borrowing Base Percentage of the Net Amount of Eligible Accounts
Receivable of the Loan Parties (other than Alon Interests and the Parent), (B) the Applicable
Borrowing Base Percentage of the sum of the value of the Eligible Inventory of the Loan Parties
(other than Alon Interests and the Parent) plus the fair market value of the Eligible Exchanged
Inventory owed to the Loan Parties (other than Alon Interests and the Parent), provided
that the Agent may xxxx to market the Inventory at any time, in its sole discretion, and (C) the
Applicable Percentage of cash and Permitted Investments of the Loan Parties (other than Alon
Interests and the Parent), in each case to the extent that such cash or Permitted Investment is
either (x) held in a Depository Account over which the WC Collateral Agent (or its nominee) has
sole dominion and control and such Loan Party has executed and delivered to the WC Collateral Agent
a Depository Account Agreement with respect thereto or (y) constitutes investment property or
instruments, each as defined in the Uniform Commercial Code as in effect in the State of New York
(or another type of collateral) and is subject to a control agreement, in form and substance
satisfactory to the Agent, or is in the possession of the WC Collateral Agent or the Lien thereon
is perfected by other means satisfactory to the Agent, and in each case the WC Collateral Agent has
a perfected, first priority security interest thereon and (ii) such reserves as the Agent may deem
appropriate in the exercise of its reasonable business judgment based upon the lending practices of
the Agent, consistent with the practices customary in the commercial finance industry generally,
provided that, solely for purposes of calculating Availability, the Borrowing Base and
Letter of Credit Obligations in connection with standby Letters of Credit for purposes of Section
2.01(b)(ii)(B), Section 2.01(b)(iii)(B), Section 2.07(c), Section 3.01(b)(solely with respect to
clause (ii) of the first sentence thereof) and Section 7.01(l) of this Agreement, clause (ii) of
the definition of Letter of Credit Obligations in connection with standby Letters of Credit issued
for the purpose of facilitating the purchase of crude oil by the Borrowers shall be the actual
amount of the liability supported by such Letter of Credit even if such amount is less than the
actual amount available for drawing under such Letter of Credit, to the extent that the Agent is
satisfied that the actual amount of the liability supported by such Letter of Credit is so limited.
Notwithstanding anything herein to the contrary, Accounts Receivable and Inventory of the Parent,
Alon Interests and its Subsidiaries, Paramount or any other Person that becomes a Loan Party after
the date hereof shall not be included in the calculation of the Borrowing Base, unless and until
the Agent shall have received and approved (in its sole and absolute discretion) the results of a
field audit conducted by or on behalf of the Agent with respect to the Accounts Receivable and
Inventory of such Person.
5
“Borrowing Base Certificate” means a certificate signed by an Authorized Officer of
the Administrative Borrower, setting forth the calculation of the Borrowing Base in compliance with
Section 7.01(a)(ix), substantially in the form of Exhibit G hereto.
“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks in New York City are required or authorized to close, provided, that with
respect to the borrowing, payment, conversion to or continuation of, or determination of interest
rate on, any Eurodollar Loan, Business Day shall mean any Business Day on which dealings in Dollar
deposits may be carried on in the Interbank Market.
“Business Plan” means the Alon USA Business Plan dated as of December 31, 2005.
“Capital Guideline” means any law, rule, regulation, policy, guideline or directive
(whether or not having the force of law and whether or not the failure to comply therewith would be
unlawful) (i) regarding capital adequacy, capital ratios, capital requirements, the calculation of
the capital of a bank or its holding company or similar matters, or (ii) affecting the amount of
capital required to be obtained or maintained by the Lenders, Affiliates of the Lenders or any L/C
Issuer or the manner in which the Lenders, Affiliates of the Lenders or any L/C Issuer allocate
capital to any of their contingent liabilities (including letters of credit), advances,
acceptances, commitments, assets or liabilities.
“Capital Stock” means any and all shares, interests, participations, warrants, options
or other equivalents (however designated) of capital stock of a corporation or any and all
equivalent ownership interests in a Person (other than a corporation).
“Capitalized Lease” means any lease or agreement to lease which is required under GAAP
to be capitalized on the balance sheet of the lessee.
“Capitalized Lease Obligations” means obligations for the payment of rent for any real
or personal property under leases or agreements to lease that, in accordance with GAAP, have been
or should be capitalized on the books of the lessee and, for purposes hereof, the amount of any
such obligation shall be the capitalized amount thereof determined in accordance with GAAP.
“Cash Concentration Account” means a deposit account maintained by the Administrative
Borrower at the Cash Concentration Account Bank, which deposit account shall be under the sole
dominion and control of the Agent.
“Cash Concentration Account Agreement” means an agreement with respect to the Cash
Concentration Account, in form and substance satisfactory to the Agent, among the Cash
Concentration Account Bank, the Administrative Borrower, and the Agent, delivered to the Agent
pursuant to Section 7.01(m) hereof, as the same may be amended or otherwise modified from time to
time.
“Cash Concentration Account Bank” means Bank Leumi.
6
“Cash Consideration” means an amount in cash equal to $120,000,000, paid to Alon
Logistics pursuant to the Xxxxx Contribution Agreement.
“Change of Control” means, an event or series of events by which:
(i) Alon Israel shall cease to own and control legally and beneficially, either
directly or indirectly, equity securities in the Parent representing 25% or more of the
combined voting power of all of equity securities entitled to vote for members of the board
of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking
into account all such securities that each such person or group has the right to acquire
pursuant to any option right);
(ii) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) other than Alon Israel becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire (such right, an “option
right”), whether such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more of the equity securities of the Parent entitled to vote for
members of the board of directors of the Parent on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire pursuant to
any option right) than Alon Israel;
(iii) Alon Israel shall cease to have the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Parent, Alon USA or Alon LP;
(iv) any Person or two or more Persons acting in concert, other than Alon Israel or in
the case of a Significant Refinery, the Company owning such Significant Refinery immediately
after the Effective Date, shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation thereof, will result in its
or their acquisition of the power to exercise, directly or indirectly, a controlling
influence over the management or policies of the Parent or the day to day operations and
management of any Significant Refinery;
(v) the Parent shall cease to own and control legally and beneficially, either directly
or indirectly, equity securities in Alon USA representing 90% or more of the combined voting
power of all equity securities entitled to vote for members of the board of directors of
Alon USA on a fully-diluted basis (and taking into account all such securities that any
Person has the right to acquire pursuant to any option right);
(vi) Alon USA shall cease to own (free and clear of all Liens other than Permitted
Liens), and control legally and beneficially, either directly or indirectly, equity
securities in (A) Alon LP representing 90%, or (B) Alon Refining representing 81%, in each
case, of the combined voting power of all of the equity securities entitled to vote for
members
7
of the board of directors or equivalent governing body of such Person on a
fully-diluted basis (and taking into account all such securities that any Person has the
right to acquire pursuant to any option right);
(vii) Alon USA shall cease to directly or indirectly own any Significant Refinery (free
and clear of all Liens other than Permitted Liens); or
(viii) during any period of 24 consecutive months, a majority of the members of the
board of directors or other equivalent governing body of the Parent cease to be composed of
Persons (A) who were members of that board or equivalent governing body on the first day of
such period, (B) whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (A) above constituting at the time of
such election or nomination at least a majority of that board or equivalent governing body
or (C) whose election or nomination to that board or other equivalent governing body was
approved by Persons referred to in clauses (A) and (B) above constituting at
the time of such election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause (B) and clause (C),
any individual whose initial nomination for, or assumption of office as, a member of that
board or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of one or more directors by
or on behalf of the board of directors);
provided that (I) non-voting Capital Stock owned by any manager or employee of Alon Assets
and Alon Operating issued under any employee stock option or stock purchase plan or employee
benefit plan in existence as of the date hereof or hereafter adopted, or otherwise in connection
with the employment or retention of any manager or employee, in each case shall not be included in
the determination of whether a Change of Control has occurred so long as such Capital Stock does
not constitute, in the aggregate, more than 20% of the Capital Stock of any such Subsidiary, and
(II) Capital Stock acquired by any employee of a Company (other than with respect to the Capital
Stock of Alon Assets or Alon Operating to the extent specified in clause (I)) through the exercise
by such employee of any stock options granted under the stock option plan described in Schedule F
hereto, shall not be included in the determination of whether a Change of Control has occurred so
long as such Capital Stock does not constitute, in the aggregate, more than 16% of the Capital
Stock of any Company.
“Collateral” means all of the property (tangible and intangible) purported to be
subject to the Lien purported to be created by any security agreement, pledge agreement, assignment
or other security document heretofore or hereafter executed by any Person as security for all or
any part of the Obligations.
“Company” means all direct and indirect subsidiaries of the Parent (including, without
limitation, Alon Interests), other than Paramount and its Subsidiaries and Subsidiaries of Alon
Interests.
“Consent and Agreement” shall mean the Consent and Agreement dated as of the Effective
Date, among the Agent and Xxxxx, substantially in the form of Exhibit K hereto.
8
“Consolidated Current Assets” means, at a particular date, all cash, Permitted
Investments, accounts and inventory of a Person and its Consolidated Subsidiaries (other than
accounts for which the account debtor is an Affiliate of such Person, or any Consolidated
Subsidiary of such Person, to the extent such account did not arise through an arms length
transaction in the ordinary course of business) and all other items which would, in conformity with
GAAP, be included under current assets on a balance sheet of such Person and its Consolidated
Subsidiaries on a consolidated basis as at such date.
“Consolidated Current Liabilities” means, at a particular date, all amounts which
would, in conformity with GAAP, be included under current liabilities on a balance sheet of a
Person and its Consolidated Subsidiaries on a consolidated basis, as at such date, but in any event
including, without limitation, the amounts of (i) all Indebtedness for borrowed money of such
Person or any of its Consolidated Subsidiaries payable on demand, or, at the option of the Person
to whom such Indebtedness is owed, not more than twelve (12) months after such date, (ii) any
payments in respect of any Indebtedness of such Person or any of its Consolidated Subsidiaries
(whether installment, serial maturity, sinking fund payment or otherwise) required to be made not
more than twelve (12) months after such date, (iii) all liabilities or Indebtedness payable on
demand or, at the option of the Person to whom such Indebtedness is owed, not more than twelve (12)
months after such date, and (iv) all accruals for federal or other taxes measured by income payable
within a twelve (12) month period.
“Consolidated EBITDA” means, for any Person and its Consolidated Subsidiaries, for any
period, the net income (or net loss) of such Person and its Consolidated Subsidiaries for such
period, plus (i) the sum, without duplication, of (A) gross interest expense for such
period, (B) income tax expense, (C) positive depreciation expense, (D) positive amortization
expense, (E) extraordinary or unusual non-cash losses (to the extent that such extraordinary or
unusual losses have not resulted in a cash outlay by such Person), (F) non-cash charges
representing “last-in-first-out” inventory costs in excess of estimated replacement costs, (G) any
non-cash operating losses, (H) any losses resulting from a change in accounting principles and (I)
any minority interest expense to the extent identified as a line item in the financial statements
of such Person or its Consolidated Subsidiaries, less (ii) the sum, without duplication, of
(A) extraordinary gains or unusual non-cash gains, and (B) any non-cash gain that constitutes a
reversal or a recovery of any non-cash charges representing “last-in-first-out” inventory costs in
excess of estimated replacement costs, each determined on a consolidated basis in accordance with
GAAP for such Person and its Consolidated Subsidiaries.
“Consolidated Subsidiaries” of a Person at any time shall mean those Subsidiaries of
such Person whose accounts are or should in accordance with GAAP be consolidated with those of such
Person.
“Consolidated Tangible Assets” means, for a Person and its Consolidated Subsidiaries,
at any date, (i) Consolidated Total Assets of such Person and its Consolidated Subsidiaries
minus (ii) the portion of such Consolidated Total Assets attributable to positive goodwill,
unamortized non-compete agreements, organization costs, patents, trademarks, trade names,
copyrights, software and other intangible assets classified as such in accordance with GAAP.
9
“Consolidated Tangible Net Worth” means, with respect to a Person and its Consolidated
Subsidiaries, the excess of (i) the Consolidated Tangible Assets of such Person and its
Consolidated Subsidiaries over (ii) the Consolidated Total Liabilities of such Person and its
Consolidated Subsidiaries, in each case computed and consolidated in accordance with GAAP.
“Consolidated Total Assets” means, for a Person and its Consolidated Subsidiaries, at
any date, the aggregate net book value of the assets of such Person and its Consolidated
Subsidiaries on a consolidated basis after all appropriate adjustments in accordance with GAAP
(including, without limitation, reserves for doubtful receivables, obsolescence, depreciation and
amortization and excluding the amount of any write-up or revaluation of any asset resulting from a
non-cash transaction, and excluding any amounts due from employees and excluding all loans to
Affiliates, to the extent not made in the ordinary course of the business of such Person or
Consolidated Subsidiary).
“Consolidated Total Liabilities” means, for a Person and its Consolidated
Subsidiaries, at any date, without duplication, all obligations which in conformity with GAAP would
be included in determining total liabilities as shown on the liabilities side of a balance sheet of
such Person and its Consolidated Subsidiaries including, without limitation, in any event, all
Indebtedness for borrowed money of such Person and its Consolidated Subsidiaries at such date
whether or not the same would be shown, excluding Minority Interests and any Subordinated
Indebtedness.
“Continuing Directors” means (i) the directors of the Parent on the Effective Date and
(ii) each other director whose nomination for election to the board of directors of the Parent is
recommended by at least a majority of the then Continuing Directors.
“Contributed Assets” has the meaning given to such term in Section 1.1 of the Xxxxx
Contribution Agreement, but shall exclude the “Excluded Assets”, as defined in the Xxxxx
Contribution Agreement.
“Contribution Agreement” means the Amended and Restated Indemnity, Subrogation and
Contribution Agreement dated as of August 8, 2000, as amended and restated on January 14, 2004,
among Alon LP and the Guarantor Companies in favor of the Agent, in form and substance reasonably
satisfactory to the Agent, as the same may be further amended, restated or otherwise modified from
time to time.
“CS” means Credit Suisse, a bank organized under the laws of Switzerland.
“Default” means an event which, with the giving of notice or the lapse of time or
both, would constitute an Event of Default.
“Depository Account Agreements” means each control agreement, in form and substance
reasonably satisfactory to the Agent, among a Depository Bank, a Loan Party and the Agent,
delivered to the Agent as required hereunder, as such Agreement may be amended or otherwise
modified from time to time.
10
“Depository Accounts” means the lockbox accounts or blocked depository accounts
maintained by a Loan Party for the collection of the cash of such Loan Party and the proceeds of
Accounts Receivable and any other Collateral.
“Depository Bank” means each financial institution at which a Depository Account is
maintained.
“Disposition” has the meaning specified therefor in Section 7.02(c) hereof.
“Dollar”, “Dollars” and the symbol “$” means lawful money of the
United States of America.
“Xxxxxxxxx” has the meaning specified therefor in the preamble hereto.
“Xxxxxxxxx Oil Company” means Xxxxxxxxx Oil Company, a Missouri corporation.
“Xxxxxxxxx Assets” means all of the assets and properties of Xxxxxxxxx Oil Company
proposed to be purchased by the Parent or its designee pursuant to the Xxxxxxxxx Merger Agreement.
“Xxxxxxxxx Merger” means the merger of Xxxxxxxxx Oil Company with and into Xxxxxxxxx,
a wholly-owned Subsidiary of Paramount Petroleum Holdings.
“Xxxxxxxxx Merger Agreement” means the Agreement and Plan of Agreement, dated as of
April 28, 2006, by and among the Apex Oil Company, Inc., a Missouri corporation, Xxxxxxxxx Oil
Company, Xxxxxxxxx and the Parent, as in effect on the date hereof.
“Xxxxxxxxx Merger Documents” means the Xxxxxxxxx Merger Agreement and all other
agreements, instruments and documents entered into or delivered in connection with the Xxxxxxxxx
Merger.
“Effective Date” means the date on which all the conditions set forth in Section 5.01
hereof are satisfied or waived.
“Eligible Accounts Receivable” means the Accounts Receivable of the Loan Parties
(other than Alon Interests and the Parent) which are, and at all times continue to be, reasonably
acceptable to the Agent in all respects. Criteria for eligibility may be established and revised
from time to time solely by the Agent in its exclusive judgment exercised reasonably. In general,
Accounts Receivable of the Loan Parties (other than Alon Interests and the Parent) shall be deemed
to be eligible to the extent that such Accounts Receivable are generated in the ordinary course of
business of such Loan Party and meet all of the following conditions: (i) delivery of the
merchandise or performance of the service giving rise to such Accounts Receivable has been
completed; (ii) no return, rejection or repossession has occurred; (iii) the merchandise or service
has been accepted by the Account Debtor without dispute, set-off, defense or counterclaim,
provided that if such Account Receivable is subject to dispute, set-off, defense or
counterclaim, the portion of such Account Receivable that the Agent determines in its reasonable
discretion is not subject to such dispute, set-off, defense or counterclaim and will be
11
paid in due course, will not be ineligible solely by reason of this clause (iii), (iv) such
Account Receivable (A) is owned by such Loan Party free and clear of any Lien, other than any Lien
in favor of the WC Collateral Agent and the Term Loan Agent, and (B) continues to be in full
conformity with any and all representations and warranties made by such Loan Party to the Agent and
the Lenders with respect thereto in the Loan Documents; (v) such Account Receivable is
unconditionally payable in Dollars, in the case of Accounts Receivable arising from the sale of jet
fuel, asphalt and lubricants, within 75 days from the invoice date, and in all other cases, within
30 days of the invoice date, and is not evidenced by a promissory note, chattel paper or any other
instrument or document; (vi) in the case of Accounts Receivable arising from the sale of jet fuel,
asphalt and lubricants, no more than 45 days have elapsed from the invoice due date and no more
than 120 days have elapsed from the invoice date, and in all other cases, no more than 15 days have
elapsed from the invoice due date and no more than 30 days have elapsed from the invoice date;
(vii) the Account Debtor with respect thereto is not an Affiliate of any Loan Party, (viii) such
Account Receivable does not constitute an obligation of the United States or any other Governmental
Authority unless such Loan Party has provided to the Agent evidence, reasonably satisfactory to the
Agent, that (A) the Accounts Receivable of such Governmental Authority are not subject to the
Assignment of Claims Act or any state counterpart to the Assignment of Claims Act or (B) such Loan
Party has complied in all respects with the Assignment of Claims Act (or any such state
counterpart) with respect to such Accounts Receivable (it being understood that (y) the burden of
such compliance shall rest solely with such Loan Party and (z) without limiting the obligations of
the Companies under Section 12.05 hereof, the Administrative Borrower shall reimburse the Agent
upon demand for any reasonable expenses (including, without limitation, the fees and other charges
of legal counsel to the Agent) incurred by the Agent to verify such compliance or otherwise in
connection therewith); (ix) the Account Debtor (or the applicable office of the Account Debtor)
with respect thereto is located in the continental United States, unless the Account Receivable is
supported by a letter of credit issued by a Bank satisfactory to the Agent in its reasonable
discretion (or other similar obligation satisfactory to the Agent in its sole discretion), such
letter of credit has been delivered to the WC Collateral Agent, the right to draw on such letter of
credit has been assigned and transferred to the WC Collateral Agent and the issuer of such letter
of credit has consented to such assignment and transfer; (x) the Account Debtor with respect
thereto is not also a vendor to, supplier to or creditor of any Loan Party, unless such supplier or
creditor has executed a no-offset letter satisfactory to the Agent in its sole discretion; (xi) not
more than 50% of the aggregate amount of all Accounts Receivable of the Account Debtor with respect
to such Account Receivable have remained unpaid, in the case of Accounts Receivable arising from
the sale of jet fuel, asphalt and lubricants, 15 days past the invoice due date or 75 days past the
invoice date, and in all other cases, 15 days past the invoice due date or 30 days past the invoice
date; (xii) the Accounts Receivable of such Account Debtor do not exceed an amount equal to 15% of
the aggregate of all Accounts Receivable at any date; (xiii) the Account Debtor is not the subject
of a “Bankruptcy Proceeding”; for purposes hereof an Account Debtor is subject to a “Bankruptcy
Proceeding” if such Account Debtor has filed a petition for bankruptcy or any other relief under
the United States Bankruptcy Code or any other law relating to bankruptcy, insolvency,
reorganization or relief of debtors, made an assignment for the benefit of creditors, had filed
against it any petition or other application for relief under the United States Bankruptcy Code or
any such other law, has failed, suspended business operations, become insolvent, called a meeting
of its creditors for the purpose of obtaining any financial concession or accommodation,
12
or had or suffered to be appointed a receiver or a trustee for all or a significant portion of
its assets or affairs; (xiv) credit card receivables, to the extent that (A) the Agent is satisfied
that the WC Collateral Agent has a perfected, first priority security interest, securing the
Obligations, (B) the Agent is satisfied that such Account Receivables comply with all laws and
regulations, and (C) such Account Receivables are otherwise satisfactory to the Agent, including,
without limitation, as to aging, default rate and such other criteria as the Agent may consider
relevant (all in the reasonable discretion of the Agent exercised in accordance with the customary
commercial practices of the Agent); and (xv) the Agent is, and continues to be, satisfied with the
credit standing of the Account Debtor in relation to the amount of credit extended.
“Eligible Assignee” means (i) any Lender or Affiliate of a Lender and (ii) with the
consent of the Agent and the Administrative Borrower, such consents not to be unreasonably withheld
or delayed, any other Person, provided, that the consent of the Administrative Borrower
shall not be required after the occurrence and during the continuance of a Default or an Event of
Default.
“Eligible Exchanged Inventory” means Exchanged Inventory owed to a Loan Party (other
than Alon Interests and the Parent) and constituting obligations that are, and at all times
continue to be, reasonably acceptable to the Agent in all respects. Criteria for eligibility may
be established and revised from time to time solely by the Agent in its exclusive judgment
exercised reasonably. In general, Exchanged Inventory of a Loan Party (other than Alon Interests
and the Parent) shall be deemed to be eligible to the extent that such Exchanged Inventory is
generated in the ordinary course of business of such Loan Party and meets all of the following
conditions: (i) such Person is obligated to transfer the Exchanged Inventory to such Loan Party,
free and clear of any right, title and interest of such Person and free and clear of any Lien
(other than any Lien in favor of the Agent and the Term Loan Agent), and in accordance with
customary industry terms and conditions for settlement of such transactions (as determined by the
Agent), (ii) such obligation arose in connection with the delivery in the ordinary course of
business of Hydrocarbons or Hydrocarbon Products by such Loan Party to such Person, (iii) the
obligation to deliver such Hydrocarbons or Hydrocarbon Products to such Loan Party is not subject
to any dispute, set-off, defense or counterclaim, (iv) such Person is not an Affiliate of any Loan
Party, and (v) the Agent is, and continues to be, satisfied with the credit standing of such Person
in relation to the amount of the Exchanged Inventory.
“Eligible Hydrocarbon Products” means the following Hydrocarbon Products: (i) crude
oil; (ii) gasoline; (iii) diesel fuel; (iv) jet fuel; (v) bitumen and other Hydrocarbon Products
derived from bitumen and any asphalt products; (vi) chemicals consisting of Propane, Propane Off
spec, Benzene, Toluene, Propylene — Chem Grade BS, and FAS 70, 104 and 104B; (vii) distillates
consisting of Jet A (Kerosene Base), Unfinished #2 Fuel Mixed Product, Light Oils — No 2 Dist,
Light Oils — Light Cycle, Low Sulfur Diesel Fuel, Low Sulfur No 1 Dist, and Low Sulfur Kerosene;
(viii) heavy oils and sulfur consisting of Heavy Oil — No 6 Fuel Oil and Heavy Fuel — Carbon Blk
Oil, and (ix) intermediates consisting of Methanol, Normal Butane, Alky Feed Stock, Isobutane,
Reformer Feed Stock, Gas Oil BS, Heavy Rerun Slop and Sulfur.
“Eligible Inventory” means Inventory (other than Exchanged Inventory) consisting of
Eligible Hydrocarbon Products of a Loan Party which meet all of the following specifications: (i)
the Inventory is owned by a Loan Party (other than Alon Interests and the
13
Parent) free and clear of any existing Lien, other than that of the WC Collateral Agent and
the Lenders under the Loan Documents, it is not held on consignment or any other similar
arrangement and may be lawfully sold and it continues to be in full conformity with any
representations and warranties made in this Agreement and the other Loan Documents by such Loan
Party with respect thereto; (ii) such Loan Party has the right to assign its interest therein and
the power to grant Liens thereon and security interests therein; (iii) the Inventory does not
represent unsaleable product; (iv) no Account Receivable or, except as permitted by clause (vi)(B)
below, document of title has been created or issued with respect to such Inventory; (v) the
Inventory is readily marketable for sale by such Loan Party; (vi) the Inventory is (A) located in
one of the locations in one of the United States listed on Part A of Schedule 6.01(e) hereto or
such other locations in the continental United States as the Agent shall approve in writing from
time to time or (B) “in transit”, provided that such “in-transit” Inventory is or will be Inventory
that is or will be shipped under a Letter of Credit issued by an L/C Issuer pursuant to this
Agreement to a location in the United States described in clause (vi)(A) above; and (vii) the
Inventory is not otherwise regarded by the Agent, in its reasonable discretion, as unsuitable
Collateral for the Obligations, and is and at all times shall continue to be reasonably acceptable
to the Agent in all respects. In no event shall Hydrocarbons or Hydrocarbon Products involved in
throughput operations or held in the Loan Parties’ terminals or trucks but not owned by or
contracted to such Loan Parties be considered Eligible Inventory (provided,
however, that Accounts Receivable arising out of the storage, handling or throughputting of
such non-owned Hydrocarbons or Hydrocarbon Products may be deemed Eligible Accounts Receivable,
subject to the other conditions set forth in the definition of such term).
“Employee Plan” means an employee benefit plan (other than a Multiemployer Plan)
covered by Title IV of ERISA and maintained (or was maintained at any time during the six (6)
calendar years preceding the date of any borrowing hereunder) for employees of the Companies or any
of their ERISA Affiliates.
“Environmental Actions” refers to any complaint, summons, citation, notice, directive,
order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter or
other written communication from any governmental agency, department, bureau, office or other
authority, or any third party involving violations of Environmental Laws or Releases of Hazardous
Materials (i) from any assets, properties or businesses of any Loan Party or any of its
Subsidiaries or any predecessor in interest; or (ii) from or onto any adjoining properties or
businesses; or (iii) from or onto any facilities which received Hazardous Materials generated by
any Loan Party or any of its Subsidiaries or any predecessor in interest.
“Environmental Costs” means any monetary obligations, losses, liabilities (including
strict liability), damages, punitive damages, consequential damages, treble damages, costs and
expenses (including all reasonable out-of-pocket fees, disbursements and expenses of counsel,
out-of-pocket expert and consulting fees and out-of-pocket costs for environmental site
assessments, remedial investigation and feasibility studies), fines, penalties, sanctions and
interest incurred as a result of any Environmental Action filed by any Governmental Authority or
any third party which relate to any violations of Environmental Laws, Remedial Actions, Releases or
threatened Releases of Hazardous Materials from or onto any property presently or formerly owned or
operated by any Company or any Subsidiary, or a predecessor in interest to the extent relating to
any Refinery, Terminal or Pipeline, or any Hazardous Materials generated
14
and disposed of offsite by any Company, or any Subsidiary of any Company or a predecessor in
interest to the extent relating to any Refinery, Terminal or Pipeline.
“Environmental Law” means the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. § 9601, et seq.), the Hazardous Materials Transportation
Act (49 U.S.C. § 1801, et seq.), the Resource Conservation and Recovery Act (42
U.S.C. § 6901, et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. § 2601 et seq.) and the Occupational Safety and
Health Act (29 U.S.C. § 651 et seq.), as such laws may be amended or supplemented
from time to time, and any other present or future federal, state, local or foreign statute,
ordinance, rule, regulation, order, judgment, decree, permit, license or other binding
determination of any Governmental Authority imposing liability or establishing standards of conduct
for protection of the environment.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and, unless the context otherwise requires, the rules and regulations promulgated
thereunder from time to time.
“ERISA Affiliate” means, with respect to any Person, any trade or business (whether or
not incorporated) which is a member of a group of which such Person is a member and which would be
deemed to be a “controlled group” within the meaning of Sections 414(b), (c), (m) and (o) of the
Internal Revenue Code.
“Eurodollar Base Rate” means, with respect to any Eurodollar Loan, the quotation
(expressed as percentage per annum and rounded upwards, if necessary, to the next 1/16 of 1%)
appearing on Telerate Page 3750 as of 11:00 a.m., New York time, two (2) Business Days prior to the
commencement of such Interest Period for U.S. Dollar deposits in the Interbank Market in the
approximate amount of such Eurodollar Loan to be outstanding during such Interest Period and for a
period equal to such Interest Period. Notwithstanding the foregoing, if no such rate appears on
Telerate Page 3750, then the Eurodollar Base Rate for such Interest Period shall be the rate
(rounded upwards, if necessary, to the next 1/16 of 1%) at which deposits in United States dollars
are offered to the Agent by prime banks in the Interbank Market in immediately available funds at
approximately 11:00 a.m., at the place of such Interbank Market, two (2) Business Days prior to the
commencement of such Interest Period in the approximate amount of such Eurodollar Loan to be
outstanding during such Interest Period and for a period equal to such Interest Period.
“Eurodollar Loan” means a Revolving Credit Loan bearing interest based on the
Eurodollar Rate.
“Eurodollar Rate” means with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in accordance with the
following formula (rounded upwards, if necessary, to the nearest 1/16 of 1%):
Eurodollar Base Rate
1.00 — Reserve Requirements
1.00 — Reserve Requirements
“Event of Default” means any of the events set forth in Section 10.01 hereof.
15
“Exchanged Inventory” means Inventory of a Person (other than a Company) consisting of
Hydrocarbons or Hydrocarbon Products that such Person is obligated to transfer to a Company in
connection with product exchange arrangements.
“Existing Effective Date” means January 14, 2004.
“Existing Loan Documents” means the Existing Revolving Credit Agreement, the Revolving
Credit Notes, the Guaranties, the Security Documents, the Cash Concentration Account Agreement, the
Depository Account Agreements, the Contribution Agreement, the Letter of Credit Applications, each
Joinder Agreement, each Lease Assignment, each Revolving Loan Amendment Document, each
Subordination Agreement (Intercompany) and all other instruments, agreements and other documents
executed and delivered pursuant thereto.
“Existing Revolving Credit Agreement” has the meaning specified therefor in the
recitals hereto.
“Extension Notice” has the meaning specified therefor in Section 2.13(d) hereof.
“Facility Floor” means, as of any date, $160,000,000, as such amount may be
permanently increased from time to time in accordance with Section 2.13(b).
“Facility Sublimit” means, as of any date, an aggregate amount equal to the sum of the
Facility Floor plus the Oil Price Adjustment, if any, as determined in accordance with Section
2.13; provided, that, in no event shall the Facility Sublimit exceed the Total Commitment.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period of the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three Federal funds brokers of recognized
standing selected by it.
“Field Examination Fee” has the meaning specified therefor in Section 2.08(d) hereof.
“Final Maturity Date” means the earlier to occur of (i) the Termination Date or (ii)
the date this Agreement is terminated pursuant to Section 12.01(a) or Section 12.01(b) hereof.
“Financial Statements” means (i) the audited consolidated balance sheets, consolidated
statements of income and consolidated statements of stockholders’ equity and consolidated
statements of cash flow of the Parent and its Consolidated Subsidiaries as of December 31, 2005,
audited by KPMG, LLP, and (ii) the unaudited consolidated balance sheets, consolidated statements
of income and consolidated statements of cash flow of the Parent and its Consolidated Subsidiaries
as of the Fiscal Quarter ending March 31, 2006, reviewed by KPMG, LLP.
16
“Fiscal Month” means a fiscal month of the Parent and its Consolidated Subsidiaries
ending on the last day of a calendar month.
“Fiscal Quarter” means a fiscal quarter of the Parent and its Consolidated
Subsidiaries ending on March 31, June 30, September 30 or December 31.
“Fiscal Year” means a fiscal year of the Parent and its Consolidated Subsidiaries
ending on December 31 of each year.
“Fixed Assets” means any Refinery, any other refinery, any Terminal, any Pipeline and
any other real property, fixture or equipment of any Company wherever located and whether now or
hereafter existing or arising and whether now owned or hereafter acquired.
“Fixed Assets and Other Specified Property” means any (a) Fixed Assets, (b) any
Capital Stock issued by a Subsidiary of a Company and owned by a Company (other than any Capital
Stock of (i) Paramount owned by Paramount Holdings, (ii) Alon Interests owned by Alon LP and (iii)
any Subsidiary of Alon Interests), and (c) any Indebtedness owed by one Company to another Company
which is evidenced by a promissory note.
“FTPL” means Fin-Tex Pipe Line Company, a Texas corporation.
“GAAP” means generally accepted accounting principles in effect from time to time in
the United States, applied on a consistent basis, provided that for the purposes of Section
7.02(i) and the definitions used therein, “GAAP” shall mean generally accepted accounting
principles in effect on the date hereof and consistent with those used in the preparation of the
Financial Statements.
“Governmental Authority” means any nation or government, any state or other political
subdivision thereof and any department, commission, board, bureau, instrumentality, agency, court
or other entity exercising executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
“Guaranties” means (i) the guaranty made by the Guarantor Companies contained in
Article XI hereof guaranteeing the Obligations and (ii) any other guaranty, in form and substance
satisfactory to the Agent, made by any Person in favor of the Lenders, guaranteeing all or any
portion of the Obligations.
“Guarantor Companies” means the Parent and the Companies party hereto from time to
time, other than the Borrowers.
“Guarantors” means the Guarantor Companies and all Persons which hereafter guarantee,
pursuant to Section 7.01(b) hereof or otherwise, all or any part of the Obligations.
“Hazardous Materials” shall include (i) any element, compound, or chemical that is
defined, listed or otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or
hazardous substances, extremely hazardous substance or chemical, hazardous waste, special waste, or
solid waste that contains hazardous constituents under Environmental Laws; (ii) petroleum and its
refined products; (iii) polychlorinated biphenyls; (iv) any substance exhibiting
17
a hazardous waste characteristic including but not limited to corrosivity, ignitability,
toxicity or reactivity as well as any radioactive or explosive materials; and (v) any
asbestos-containing materials and manufactured products containing Hazardous Materials.
“Hedging Agreement” means any interest rate, foreign currency, commodity or equity
swap, collar, cap, floor, exchange transaction, forward agreement, or other forward or other
exchange or protection agreement or arrangement designed to protect against fluctuations in
interest rates or currency, commodity (including, without limitation, Hydrocarbons or Hydrocarbon
Products, and whether or not the subject commodities are to be delivered) or equity values
(including, without limitation, any option with respect to any of the foregoing and any combination
of the foregoing agreements or arrangements), and any confirmation executed in connection with any
such agreement or arrangement, all as amended or otherwise modified from time to time.
“Xxxxx” means Xxxxx Energy Partners, L.P., a Delaware limited partnership.
“Xxxxx 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 and Alon LP.
“Hydrocarbon Products” means all liquid, semi-liquid and gaseous Hydrocarbon products
of a Company derived from Hydrocarbons and/or other feedstocks and blendstocks processed at any
Refinery, including, without limitation, crude oil, gasoline, diesel fuel, jet fuel, bitumen,
asphalt, propane, propylene, butane, benzene, aromatic solvents, carbon black oil and sulfur.
“Hydrocarbons” means oil, gas, casinghead gas, drip gasoline, natural gasoline,
condensate, distillate, and any other liquid or gaseous hydrocarbons and all products refined or
separated therefrom.
“IDB” means Israel Discount Bank of New York.
“Immaterial Company” means each Company (other than Alon Interests) that, (i) accounts
for less than (A) 3% of consolidated revenues of Alon USA and its Consolidated Subsidiaries, or (B)
3% of consolidated earnings of Alon USA and its Consolidated Subsidiaries before interest and
taxes, in each case for the immediately preceding four fiscal quarters of Alon USA ending as of the
last day of the most recent fiscal quarter in respect of which the financial statements have been
delivered pursuant to Section 7.01, or (ii) has assets which represent less than 3% of the
consolidated assets of Alon USA and its Consolidated Subsidiaries as of the last day of the most
recent fiscal quarter of Alon USA in respect of which the financial statements have been delivered
pursuant to Section 7.01.
“Indebtedness” means as to any Person, without duplication, (i) indebtedness for
borrowed money; (ii) indebtedness for the deferred purchase price of property or services (other
than current trade payables incurred in the ordinary course of business and payable in accordance
with customary practices); (iii) indebtedness evidenced by bonds, debentures, notes or other
similar instruments (other than performance, surety and appeal or other similar bonds arising in
the ordinary course of business); (iv) obligations and liabilities secured by a Lien upon property
18
owned by such Person, whether or not owing by such Person and even though such Person has not
assumed or become liable for the payment thereof; (v) obligations and liabilities directly or
indirectly guaranteed by such Person; (vi) obligations or liabilities created or arising under any
conditional sales contract or other title retention agreement with respect to property used and/or
acquired by such Person, whether or not the rights and remedies of the lessor, seller and/or lender
thereunder are limited to repossession of such property; (vii) Capitalized Lease Obligations;
(viii) all liabilities in respect of letters of credit, acceptances and similar obligations created
for the account of such Person; (ix) net liabilities of such Person under (A) Hedging Agreements
and (B) foreign currency exchange agreements, each calculated on a basis reasonably satisfactory to
the Agent and in accordance with accepted practice; and (x) all other items which, in accordance
with GAAP, would be included as liabilities on the liability side of the balance sheet of such
Person.
“Indemnification Agreement” means the Indemnification Agreement entered into on the
Pipeline Transactions Effective Date, between Alon Logistics and HEP Logistics Holdings, L.P., a
Delaware limited partnership.
“Indemnitees” has the meaning specified therefor in Section 12.16 hereof.
“Initial Oil Increase Period” has the meaning specified therefor in Section 2.13(c)
hereof.
“Interbank Market” means the London interbank market.
“Intercreditor Agreement” means the Lien Subordination and Intercreditor Agreement,
between the Agent and the Term Loan Agent, substantially in the form of Exhibit L hereto (as the
same may be further amended or otherwise modified from time to time).
“Interest Period” means with respect to any Eurodollar Loan, the period commencing on
the borrowing date or the date of any continuation of or conversion into such Eurodollar Loan, as
the case may be, and ending one, two, three or six months thereafter, in each case as selected by
the Administrative Borrower in the applicable notice given to the Agent pursuant to Sections 2.03
or 2.11 hereof; provided that (i) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such Interest Period shall end on the
next preceding Business Day, (ii) no Interest Period for any Eurodollar Loan shall end after the
Final Maturity Date, and (iii) no more than three (3) Interest Periods for the Borrowers may exist
at any one time.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time
to time.
“Inventory” means all Hydrocarbons, Hydrocarbon Products, other goods and other
merchandise of a Person including, but not limited to, all raw materials, work in process, finished
goods, materials and supplies of every nature used or usable in connection with the manufacture,
shipping, storing, advertising or sale of such goods and merchandise, whether now owned or
hereafter acquired and all such property the sale or other disposition of which may give rise to
Accounts Receivable.
19
“Investment” has the meaning specified therefor in Section 7.02(e) hereof.
“Joinder Agreement” means a Joinder Agreement, substantially in the form of Exhibit F
hereto, executed by a Subsidiary of a Company made a party hereto pursuant to Section 7.01(b)
hereof.
“L/C Issuer” means each of IDB and Bank Leumi, each in their respective capacities as
an issuer of Letters of Credit pursuant to Sections 3.01 and 3.03(a).
“Lease Agreement” means the Lease Agreement by and among Alon Refining, Alon Pipeline,
APPL, FTPL and T& R Assets, Inc., a Texas corporation, as lessors, and Alon LP, as lessee, dated as
of the Original Effective Date, as the same may be amended or otherwise modified from time to time.
“Lease Assignment” means the landlord’s consent, waiver and estoppel by Alon Refining,
Alon Pipeline, APPL, FTPL and T& R Assets, Inc., a Texas corporation, as lessors under the Lease
Agreement, in favor of the Agent, in form and substance satisfactory to the Agent.
“Lease Documents” means the Lease Agreement and each other agreement, instrument or
document required to be delivered pursuant thereto.
“Lender” and “Lenders” have the meanings specified therefor in the preamble
hereto.
“Letter of Credit” has the meaning specified therefor in Section 3.01(a).
“Letter of Credit Administration Fee” has the meaning specified therefor in Section
3.03(b)(i) hereof.
“Letter of Credit Amendment Fee” has the meaning specified therefor in Section
3.03(b)(i) hereof.
“Letter of Credit Application” has the meaning specified therefor in Section 3.01(a)
hereof.
“Letter of Credit Collateral Account” has the meaning specified therefor in Section
3.01(b) hereof.
“Letter of Credit Fees” means, collectively, (i) the Letter of Credit Administration
Fees, payable to the Agent for the account of the L/C Issuer, (ii) the Letter of Credit Issuance
Fees and the Letter of Credit Amendment Fees payable to the Agent for the account of the Lenders
pursuant to Section 3.03(b)(i) and (iii) the charges of the L/C Issuer payable by the Borrowers in
accordance with Section 3.03(b)(ii).
“Letter of Credit Issuance Fee” has the meaning specified therefor in Section
3.03(b)(i) hereof.
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“Letter of Credit Obligations” means, at any time and without duplication, the sum of
(i) the Reimbursement Obligations at such time, plus (ii) the aggregate maximum amount
available for drawing under the Letters of Credit outstanding at such time, plus (iii) all
amounts for which the L/C Issuer may be liable pursuant to any Letter of Credit in connection with
any steamship guaranty, airway release, indemnity or delivery order issued by the L/C Issuer at the
request of or for the benefit of the Borrowers, in each case as calculated by the L/C Issuer.
“License Agreement” means the Alliance Agreement dated effective as of January 1,
2002, by and between Xxxxxx Asphalt Products Co. and Alon USA, LP.
“Lien” means any mortgage, deed of trust, pledge, lien, security interest, charge or
other encumbrance or security arrangement of any nature whatsoever, including but not limited to
any conditional sale or title retention arrangement, and any assignment, deposit arrangement or
lease intended as, or having the effect of, security.
“Loan Account” means one or more ledger accounts for the Borrowers maintained at the
Payment Office of the Agent in the name of the Administrative Borrower under which the Borrowers
will be charged with all Revolving Credit Loans made to, and all other Obligations incurred by, the
Borrowers or such other account as the Agent shall designate from time to time.
“Loan Documents” means this Agreement, the Revolving Credit Notes, the Guaranties, the
Security Documents, the Intercreditor Agreement, the Cash Concentration Account Agreement, the
Depository Account Agreements, the Contribution Agreement, the Letter of Credit Applications, each
Joinder Agreement, each Lease Assignment, each Revolving Loan Amendment Document, each
Subordination Agreement (Intercompany) and all other instruments, agreements and other documents
executed and delivered pursuant hereto or thereto.
“Loan Parties” means the Borrowers and the Guarantors.
“Long Beach Refinery” means the refinery owned by Xxxxxxxxx as of the Effective Date
and located near Long Beach, California, the interest owned by Xxxxxxxxx in the land on which such
refinery is situated, use or license rights covering tracts of land adjoining the railroad lines,
spurs or sidings within the boundary of the refinery site, all easements, rights of way and
privileges granted to Xxxxxxxxx within or adjoining the refinery site, all improvements, machinery
and equipment thereon, and the interest of Xxxxxxxxx as lessee in all leases of personal property
used or held for use by Xxxxxxxxx in connection with such refinery.
“Material Adverse Effect” means a material adverse effect upon (i) the business,
condition (financial or otherwise), operations, properties or prospects of any Borrower or the
Companies taken as a whole, (ii) the ability of the Loan Parties (taken as a whole) to perform
their material obligations hereunder or under any other Loan Document to which each such Loan Party
is a party, (iii) the creation, priority or perfection of a Lien arising under the Loan Documents
on any Collateral (except as otherwise expressly provided in any Loan Document and except for any
such Lien on Collateral with a market value of $3,000,000 or less to the extent that such material
adverse effect is remedied within 60 days after any Company obtains knowledge thereof), or (iv) the
rights, powers and remedies of the Agent, the WC Collateral
21
Agent and the Lenders under this Agreement or any other Loan Document or the legality,
validity or enforceability of this Agreement or any other Loan Document.
“Minimum Oil Increase Period” means a period not to expire prior to the last day of
the second fiscal month following the date of the then current Notice of Facility Sublimit Increase
or the Extension Notice, as the case may be.
“Minority Interest” means an interest in a Company, held by a Person or Persons (other
than Alon Israel or another Company) which is set forth on the balance sheet of a Person and its
Consolidated Subsidiaries as a “Minority Interest in Subsidiaries”.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
“Mortgage” means the mortgages, deeds of trust and deeds to secure debt made by one or
more Loan Parties in favor of the WC Collateral Agent in respect of the real property, and the
improvements thereon, or interests therein, constituting or included in the Collateral.
“Mortgage and Deed of Trust (Xxxxx)” means the Mortgage and Deed of Trust entered into
on February 28, 2005, between Alon LP and Xxxxx.
“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA for which any Company or any of their ERISA Affiliates has contributed to, or has been
obligated to contribute to, at any time during the six (6) years preceding the date hereof.
“Net Amount of Eligible Accounts Receivable” means the aggregate unpaid invoice amount
of Eligible Accounts Receivable less, without duplication, sales, excise or similar taxes, returns,
discounts, chargebacks, claims, advance payments, credits, offsets, reserves and allowances of any
nature at any time issued, owing, granted, outstanding, available or claimed by an Account Debtor
of a Loan Party (other than Alon Interests and the Parent) with respect to such Eligible Accounts
Receivable, to the extent not already accounted for in the definition herein of Eligible Accounts
Receivable.
“New Guarantors” means Paramount of Oregon, LLC, a Delaware limited liability company,
Paramount of Washington, LLC, a Delaware limited liability company, Alon Crude Pipeline, LLC, a
Texas limited liability company, and Paramount Petroleum Holdings.
“Net Proceeds” means (a) with respect to the sale or other disposition of any asset by
the Companies or any of their Subsidiaries (including in connection with any sale-leaseback), the
excess, if any, of (i) the aggregate amount received in cash (including any cash received by way of
deferred payment pursuant to a note receivable, other non-cash consideration or otherwise, but only
as and when such cash is so received) in connection with such sale or other disposition, over (ii)
the sum of (A) the principal amount of any Indebtedness which is secured by a Permitted Lien on any
such asset (other than Indebtedness assumed by the purchaser of such asset) or which is required to
be, and is, repaid in connection with the sale or other disposition thereof (other than
Indebtedness hereunder), (B) the reasonable out-of-pocket expenses and fees incurred by the
Companies or their Subsidiaries in connection with such sale or other disposition, and
provided that all such expenses and fees are set forth on a certificate provided to the
Agent,
22
(C) federal and state taxes incurred in connection with such sale or other disposition,
whether payable at such time or thereafter and (D) the amount of any PT Consideration paid by any
Loan Party as a dividend and (b) with respect to the sale or other disposition of any Capital Stock
or debt security by the Companies or any of their Subsidiaries, the excess of (i) the aggregate
amount received in cash (including any cash received by way of deferred payment pursuant to a note
receivable, other non-cash consideration or otherwise, but only as and when such cash is so
received) in connection with such sale or other disposition, over (ii) the sum of (A) the
reasonable fees, commissions, discounts and other out-of-pocket expenses incurred by the Companies
or their Subsidiaries in connection with such sale or other disposition, and (B) federal and state
taxes incurred in connection with such sale or other disposition, whether payable at such time or
thereafter.
“Notice of Borrowing” has the meaning specified therefor in Section 2.03.
“Notice of Facility Sublimit Increase” has the meaning specified therefor in Section
2.13(c) hereof.
“Obligations” means (i) the obligations of the Borrowers to pay, as and when due and
payable (by scheduled maturity or otherwise), all amounts from time to time owing by them in
respect of any Loan Document to which any Borrower is a party, whether for principal, interest
(including, without limitation, all interest that accrues after the commencement of any case,
proceeding or other action relating to bankruptcy, insolvency or reorganization of a Loan Party,
whether or not a claim for post-filing interest is allowed in such proceeding), Letter of Credit
Obligations, fees, commissions, expense reimbursements, indemnifications or otherwise, and (ii) the
obligations of the Borrowers to perform or observe all of its other obligations from time to time
existing under any Loan Document to which any Borrower is a party.
“Oil Price Adjustment” has the meaning specified therefor in Section 2.13(a).
“Original Effective Date” means August 8, 2000.
“Other Taxes” has the meaning specified therefor in Section 2.12.
“P&T Agreement” means the Pipeline and Terminals Agreement, entered into on February
28, 2005, between Alon LP and Xxxxx.
“P&T Contracts” means the Xxxxx Contribution Agreement, the P&T Agreement, the limited
partnership agreement of Xxxxx (including the amendment thereto entered into in connection with the
Pipeline Transactions), the Mortgage and Deed of Trust (Xxxxx), the Indemnification Agreement, the
Subordination Agreement and all other agreements entered into in connection with the Pipeline
Transactions.
“Parent” has the meaning specified therefor in the preamble hereto.
“Paramount” has the meaning specified therefor in the Recitals hereto.
“Paramount Petroleum Holdings” means Paramount Petroleum Holdings, Inc., a Delaware
corporation and a wholly owned Subsidiary of Alon Assets.
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“Paramount Refinery” means the refinery being acquired by the Companies as of the
Effective Date pursuant to the Paramount Stock Purchase Documents and located near Paramount,
California, the interest owned by Paramount and its Subsidiaries in the land on which such refinery
is situated, use or license rights covering tracts of land adjoining the railroad lines, spurs or
sidings within the boundary of the refinery site, all easements, rights of way and privileges
granted to Paramount and its Subsidiaries within or adjoining the refinery site, all improvements,
machinery and equipment thereon, and the interest of Paramount or any of its Subsidiaries as lessee
in all leases of personal property used or held for use by Paramount or any of its Subsidiaries in
connection with such refinery.
“Paramount Stock” means all of the shares of Capital Stock of Paramount proposed to be
purchased by the Parent or its designee pursuant to the Paramount Stock Purchase Agreement.
“Paramount Stock Purchase” means the purchase of all of the issued and outstanding
shares of capital stock of Paramount by Paramount Petroleum Holdings.
“Paramount Stock Purchase Agreement” means the Stock Purchase Agreement, dated as of
April 28, 2006, by and among the Parent and the stockholders of Paramount named on the signature
page thereto, as in effect on the date hereof.
“Paramount Stock Purchase Documents” means the Paramount Stock Purchase Agreement and
all other agreements, instruments and documents entered into or delivered in connection with the
Paramount Stock Purchase.
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56
(signed into law October 26, 2001)).
“Payment Office” means the Agent’s offices located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, or such other offices as may be designated in writing from time to time by the Agent
to the Administrative Borrower and, when used in connection with any payments made to the Agent,
shall mean the Agent Account.
“Permitted Investments” means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any agency thereof and
backed by the full faith and credit of the United States or marketable direct obligations issued or
unconditionally guaranteed by any State or agency thereof and backed by the full faith and credit
of such State, in each case maturing within one year from the date of acquisition thereof, (ii)
commercial paper, maturing not more than 270 days after the date of issue rated P-1 by Moody’s or
A-1 by Standard & Poor’s, (iii) overnight bank deposits, certificates of deposit and bankers’
acceptances, in each case maturing not more than 360 days after the date of issue, issued by any
Lender or other commercial banking institutions and money market or time or demand deposit accounts
maintained at any Lender or other commercial banking institutions, each commercial banking
institution (other than any Lender) of which is a member of the Federal Reserve System and has a
combined capital and surplus and undivided profits of not less than $500,000,000, (iv) investments
in securities with maturities of six months or less from the date of
24
acquisition issued or fully guaranteed by any state, commonwealth or territory of the United
States of America, or by any political subdivision or taxing authority thereof, and rated at least
“A” by Standard & Poor’s or “A-2” by Moody’s, (v) repurchase agreements having maturities of not
more than 90 days from the date of acquisition which are entered into with the commercial banking
institutions described in clause (iii) above and which are secured by readily marketable direct
obligations of the Government of the United States of America or any agency thereof, and (vi)
investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act
of 1940, as amended, substantially all of whose assets are invested in investments of the type
described in clauses (i) through (iii) and (v) herein.
“Permitted Lien” has the meaning specified therefor in Section 7.02(a).
“Person” means an individual, corporation, limited liability company, partnership,
association, joint-stock company, trust, unincorporated organization, joint venture or Governmental
Authority.
“Pipelines” means the real property interests described in Schedule D hereto and any
other pipeline now or hereafter owned or leased by any Company.
“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 Xxxxx Contribution Agreement and
in the P&T Agreement.
“Pledge Agreement” means the Pledge and Security Agreement dated as of the Effective
Date, by and among the Borrowers and each of the other Companies in favor of the WC Collateral
Agent, substantially in the form of Exhibit C hereto, as the same may be amended, supplemented or
otherwise modified from time to time.
“Post-Default Rate” means a rate of interest per annum equal to the rate of interest
otherwise in effect plus 2% or, if no other rate of interest is in effect, the Base Rate plus 2%.
“Prime Rate” means the rate of interest publicly announced by IDB in New York, New
York from time to time as its prime rate. The prime rate is determined from time to time by IDB as
a means of pricing some loans to its borrowers and neither is tied to any external rate of interest
or index, nor necessarily reflects the lowest rate of interest actually charged by IDB to any
particular class or category of customers. Each change in the Prime Rate shall be effective on the
first day of the month following the date such change is announced.
“Production Increase” has the meaning specified therefor in Section 2.13(b) hereof.
25
“Pro Rata Share” means:
(a) with respect to a Lender’s obligation to make Revolving Loans and receive payments of
interest, fees, and principal with respect thereto, the percentage obtained by dividing (i) such
Lender’s Revolving Credit Commitment, by (ii) the Total Commitment, provided that, if the
Total Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal
amount of such Lender’s Revolving Loans (including Agent Advances) and its interest in the Letter
of Credit Obligations and the denominator shall be the aggregate unpaid principal amount of all
Revolving Loans (including Agent Advances) and Letter of Credit Obligations; and
(b) with respect to all other matters (including, without limitation, the indemnification
obligations arising under Section 9.06), the percentage obtained by dividing (i) such Lender’s
Revolving Credit Commitment by (ii) the Total Commitment, provided that, if such Lender’s
Revolving Credit Commitment shall have been reduced to zero, such Lender’s Revolving Credit
Commitment shall be deemed to be the aggregate unpaid principal amount of such Lender’s Revolving
Loans (including Agent Advances) and its interest in the Letter of Credit Obligations, and if the
Total Commitment shall have been reduced to zero, the Total Commitment shall be deemed to be the
aggregate unpaid principal amount of all Revolving Loans (including Agent Advances) and Letter of
Credit Obligations.
“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 were initially issued in the name of Alon Logistics.
“Refinery” means a refinery owned by a Company (including, without limitation, any
Significant Refinery), such Company’s interest in the real property on which such refinery is
situated, use or license rights covering tracts of land adjoining any railroad lines, spurs or
sidings within the boundary of such refinery site, all easements, rights of way and privileges
granted to such Company within or adjoining the refinery site, all improvements, all machinery and
equipment thereon, and the interest of such Company as lessee in all leases of personal property
used or held for use by such Company in connection with such refinery.
“Reimbursement Obligations” means the obligations of the Borrowers to reimburse the
L/C Issuer and the Lenders for amounts payable by the L/C Issuer or the Lenders under a Letter of
Credit in respect of any drawing made under any Letter of Credit, together with interest thereon as
provided in Section 2.06 hereof and Section 3.01(c).
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, seeping, migrating, dumping, or disposing of any
Hazardous Material (including the abandonment or discarding of barrels, containers, and other
closed receptacles containing any Hazardous Material) into the indoor or outdoor environment,
including ambient air, soil, surface or ground water.
“Remedial Action” means all actions taken to (i) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or
outdoor environment; (ii) prevent or minimize a Release or threatened Release of
26
Hazardous Materials so they do not migrate or endanger or threaten to endanger public health
or welfare or the indoor or outdoor environment; (iii) perform pre-remedial studies and
investigations and post-remedial operation and maintenance activities; or (iv) any other actions
authorized by 42 U.S.C. 9601.
“Reportable Event” means an event described in Section 4043 of ERISA (other than an
event described in Section 4043(c)(7) of ERISA.
“Required Lenders” means, at any time, Lenders whose Pro Rata Shares aggregate at
least 51%.
“Reserve Requirements” means, for any day as applied to a Eurodollar Loan, the
aggregate (without duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements prescribed for eurocurrency
funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System. Eurodollar Loans shall be deemed to
constitute Eurocurrency Liabilities and to be subject to such reserve requirements without benefit
of or credit for proration, exceptions or offsets which may be available from time to time to any
Lender or the Affiliate of any Lender under Regulation D.
“Responsible Officer” means a person that is any of the chairman of the board of
directors, chief executive officer, or chief financial officer of any Person.
“Restricted Payment” has the meaning specified therefor in Section 7.02(f).
“Revolving Credit Commitment” means, with respect to each Lender, the revolving credit
commitment of such Lender as set forth in Schedule B hereto, as the same may be adjusted from time
to time pursuant to the terms of this Agreement.
“Revolving Credit Loan” means a loan made by a Lender to any Borrower pursuant to
Section 2.01(a) hereof.
“Revolving Credit Notes” means each amended promissory note of a Borrower,
substantially in the form of Exhibit A hereto, made payable to the order of a Lender and evidencing
the Indebtedness and other Obligations resulting from the making by such Lender of Revolving Credit
Loans and delivered to the Agent, as such promissory note may be modified or extended from time to
time, and any promissory note or notes issued in exchange or replacement therefor.
“Revolving Loan Amendment Documents” means this Agreement and each other Loan Document
delivered on the Effective Date pursuant to Article V hereof.
“SCS” means Southwest Convenience Stores LLC, a Texas limited liability Agreement.
00
“XXX” xxxxx xxx Xxxxxx Xxxxxx Securities and Exchange Commission and any successor
thereto.
“Securities Act” means the Securities Act of 1933, as in effect from time to time.
“Security Agreement” means the Amended and Restated Security Agreement, originally
dated as of August 8, 2000, as amended and restated as of the Effective Date, by and among the
Borrowers and each of the other Companies in favor of the WC Collateral Agent, substantially in the
form of Exhibit B hereto, as the same may be amended, supplemented or otherwise modified from time
to time.
“Security Documents” means, collectively, the Security Agreement, the Pledge
Agreement, each Mortgage and the Lease Assignment executed and delivered by a Company, and all
Uniform Commercial Code financing statements required by this Agreement and the Security Documents
to be filed with respect to the security interests in personal property and fixtures created
pursuant to such agreements, and all other documents and agreements executed and delivered by the
Companies in connection with any of the foregoing documents.
“Settlement Period” has the meaning specified therefor in Section 2.05(e) hereof.
“Significant Refinery” means Big Spring Refinery.
“Solvent” means, with respect to any Person on a particular date, that on such date
(a) the fair value of the property of such Person is not less than the total amount of its
liabilities (including, without limitation, liabilities on all claims, whether or not reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured) of such Person, (b) the present fair salable value of the
assets of such Person is not less than the amount that will be required to pay the probable
liability of such Person on its existing debts as they become absolute and matured, (c) such Person
is able to realize upon its assets and pay its debts and other liabilities, contingent obligations
and other commitments as they mature in the normal course of business, (d) such Person does not
intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in business
or a transaction, and is not about to engage in business or a transaction, for which such Person’s
property would constitute unreasonably small capital.
“Standard & Poor’s” means Standard & Poor’s Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor thereto.
“Subordination Agreement” means the Subordination, Non-Disturbance and Attornment
Agreement entered into at the closing of the Pipeline Transactions, between the administrative
agent named therein for the Credit Parties defined therein, the Agent and Alon LP.
“Subordination Agreement (Intercompany)” means an Amended and Restated Intercompany
Subordination Agreement, by and among (i) a Loan Party or a Subsidiary of a Loan Party, as obligor,
and (ii) a Loan Party or a Subsidiary of a Loan Party, as subordinated creditor, in favor of the
Agent, substantially in the form of Exhibit C-1 hereto (as the same may
28
be amended, supplemented or otherwise modified from time to time), pursuant to which
intercompany Indebtedness is subordinated to the prior payment in full of the Obligations.
“Subordinated Indebtedness” means Indebtedness of any Loan Party and any of its
Subsidiaries to any other Loan Party or any of its Subsidiaries that has been expressly
subordinated in right of payment to all Indebtedness of such Loan Party under the Loan Documents by
a Subordination Agreement (Intercompany).
“Subsequent Oil Increase Period” has the meaning specified therefor in Section
2.13(d).
“Subsidiary” means, with respect to any Person at any date, any corporation, limited
or general partnership, limited liability company, trust, association or other entity (i) the
accounts of which would be consolidated with those of such Person in such Person’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP or (ii) of
which more than 50% of (A) the outstanding Capital Stock having (in the absence of contingencies)
ordinary voting power to elect a majority of the board of directors of such corporation, (B) the
interest in the capital or profits of such partnership or limited liability company or (C) the
beneficial interest in such trust or estate is, at the time of determination, owned or controlled
directly or indirectly through one or more intermediaries, by such Person.
“Target Net Worth” means, on any date of determination, the sum of (i) $106,000,000
plus (ii) an amount determined on a cumulative basis equal to the sum of 50% of any positive
consolidated net income of Alon USA and its Consolidated Subsidiaries for each Fiscal Year ending
after December 31, 2004.
“Taxes” has the meaning specified therefor in Section 2.12.
“Terminals” means the real property interests described in Schedule E hereto and any
other terminal now or hereafter owned or leased by any Company.
“Termination and Releases” has the meaning specified therefor in Section 9.08 (d)
hereof.
“Termination Date” means January 1, 2010.
“Termination Event” means (i) a Reportable Event with respect to any Employee Plan,
(ii) any event that causes any Borrower or any of its ERISA Affiliates to incur liability under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
4971 or 4975 of the Internal Revenue Code, (iii) the filing of a notice of intent to terminate an
Employee Plan under Section 4041 of ERISA, (iv) the institution of proceedings by the Pension
Benefit Guaranty Corporation to terminate an Employee Plan, or (v) any other event or condition
that would constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Employee Plan.
“Term Loan Agent” means CS acting through its Cayman Islands branch, or any successor
or replacement agent under the Term Loan Agreement.
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“Term Loan Agreement” means the Amended and Restated Credit Agreement, dated as of the
date hereof, among Parent, as borrower, the lenders party thereto and Credit Suisse First Boston,
as administrative agent, as in effect on the Effective Date.
“Term Loan Documents” means the “Loan Documents”, as such term is defined in the Term
Loan Agreement as in effect on the Effective Date.
“Term Loan Lenders” means the financial institutions and other lenders from time to
time party to the Term Loan Agreement as “Lenders” thereunder.
“Term Loans” means the Term Loans made by the Term Loan Lenders to Alon USA in an
aggregate principal amount not to exceed $550,000,000 pursuant to the Term Loan Agreement.
“Title Company” means a nationally recognized title insurance company reasonably
acceptable to the Agent.
“Total Commitment” means the sum of the amounts of the Lenders’ Revolving Credit
Commitments. The initial amount of the Total Commitment is $240,000,000.
“Transaction Documents” means the Loan Documents, the License Agreement, and the Lease
Documents.
“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.
“WC Collateral Agent” means IDB, or any successor or replacement agent in its capacity
as a collateral agent for the Lenders.
Section 1.02 Accounting and Other Terms. Unless otherwise expressly provided herein,
each accounting term used herein shall have the meaning given it under GAAP applied on a basis
consistent with those used in preparing the Financial Statements. All terms used in this Agreement
which are defined in Article 8 or Article 9 of the Uniform Commercial Code in effect in the State
of New York on the date hereof and which are not otherwise defined herein shall have the same
meanings herein as set forth therein. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise, (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person’s successors and assigns, (c) the
words “herein”, “hereof” and “hereunder”,
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and words of similar import, shall be construed to refer to this Agreement in its entirety and
not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules
to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any right or interest in or to assets and properties of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible. References in this
Agreement to “determination” by the Agent include good faith estimates by the Agent (in the case of
quantitative determinations) and good faith beliefs by the Agent (in the case of qualitative
determinations). In the event of any inconsistency between the terms and provisions of this
Agreement and the terms and provisions of any Security Document, the terms and provisions of this
Agreement shall control, provided that nothing herein shall be deemed to affect the Liens
granted under any Security Document or the perfection thereof.
Section 1.03 Time References. Unless otherwise indicated herein, all references to
time of day refer to Eastern standard time or Eastern daylight saving time, as in effect in New
York City on such day. For purposes of the computation of a period of time from a specified date
to a later specified date, the word “from” means “from and including” and the words “to” and
“until” each means “to but excluding”, provided, however, that with respect to a
computation of fees or interest payable to the Agent, the Lenders or the L/C Issuer, such period
shall in any event consist of at least one full day.
ARTICLE II
THE REVOLVING CREDIT LOANS
Section 2.01 Revolving Credit Commitments.
(a) (i) Each Revolving Lender has made “Revolving Credit Loans” (as defined in the Existing
Revolving Credit Agreement) to Alon LP prior to the Effective Date, (ii) upon the effectiveness of
this Agreement, any such “Revolving Credit Loan” shall automatically be deemed to be a “Revolving
Credit Loan” to the Borrowers by such Lender under this Agreement, and (iii) subject to the terms
and conditions and relying upon the representations and warranties set forth herein, each Lender
severally agrees to continue to make Revolving Credit Loans to the Borrowers at any time and from
time to time until the Business Day preceding the Final Maturity Date, or until the earlier
reduction of its Revolving Credit Commitment to zero in accordance with the terms hereof, in an
aggregate principal amount of Revolving Credit Loans at any time outstanding not to exceed the
amount of such Lender’s Revolving Credit Commitment.
(b) Notwithstanding the foregoing, the aggregate principal amount of the Revolving Credit
Loans outstanding at any time shall not exceed the lowest of (i) the difference between (A) Total
Commitment and (B) the aggregate Letter of Credit Obligations, (ii) the difference between (A) the
then current Borrowing Base, and (B) the aggregate Letter of Credit Obligations and (iii) the
difference between (A) the then current Facility Sublimit and (B) the aggregate Letter of Credit
Obligations.
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(c) Within the foregoing limits, the Borrowers may borrow, repay and reborrow Revolving Credit
Loans, on or after the Effective Date and prior to the Final Maturity Date, subject to the terms,
provisions and limitations set forth herein.
Section 2.02 Revolving Credit Loans. Except as otherwise provided in Section 2.05,
Revolving Credit Loans shall be made ratably by the Lenders in accordance with their respective
Revolving Credit Commitments.
Section 2.03 Making the Revolving Credit Loans. The Administrative Borrower shall
give the Agent prior telephone notice (which notice, if requested by the Agent, must be promptly
confirmed in writing in substantially the form of Exhibit E hereto (a “Notice of
Borrowing”)) (i) for any Base Rate Loan not in excess of $30,000,000, not later than 12:00
noon (New York City time) one Business Days prior to such proposed borrowing or (ii) for any Loan
other than a Base Rate Loan not in excess of $30,000,000, not later than 12:00 noon (New York City
time) three Business Days prior to such proposed borrowing, and, in each case, the Agent shall
promptly deliver such Notice of Borrowing to each Lender. Such Notice of Borrowing shall be
irrevocable and shall specify the principal amount of the proposed borrowing (which, in the case of
a Eurodollar Loan, must be in a minimum amount of $1,000,000 and in multiples of $500,000 in excess
thereof), whether such Revolving Credit Loan is requested to be a Base Rate Loan or a Eurodollar
Loan and, in the case of a Eurodollar Loan, the initial Interest Period for such Eurodollar Loan,
the use of the proceeds of such proposed Revolving Credit Loan, and the proposed borrowing date,
which must be a Business Day, and the Borrowers shall be bound to make a borrowing in accordance
therewith. The Agent may act without liability upon the basis of written, telecopy or telephone
notice believed by the Agent in good faith to be from the Administrative Borrower (or from any
officer thereof designated in writing purportedly from the Administrative Borrower to the Agent),
and each Borrower hereby waives the right to dispute the Agent’s record of the terms of any such
telephonic Notice of Borrowing.
Section 2.04 Revolving Credit Notes; Repayment of Revolving Credit Loans.
(a) Each Revolving Credit Loan made by a Lender shall be evidenced by a single Revolving
Credit Note, duly executed by the Administrative Borrower, dated the Effective Date, and delivered
to and made payable to the order of such Lender in a principal amount equal to its Revolving Credit
Commitment on such date.
(b) The outstanding principal balance of each Revolving Credit Loan shall be due and payable
on the Final Maturity Date.
Section 2.05 Funding and Settlement Procedures.
(a) Except as otherwise provided in this Section 2.05, all Revolving Credit Loans under this
Agreement shall be made by the Lenders simultaneously and proportionately according to their Pro
Rata Shares of the Total Commitment, it being understood that no Lender shall be responsible for
any default by any other Lender in such other Lender’s obligation to make a Revolving Credit Loan
requested hereunder nor shall the Revolving Credit Commitment of any Lender to make the Revolving
Credit Loan requested be increased or decreased as a result
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of the default by any other Lender in such other Lender’s obligation to make a Revolving
Credit Loan requested hereunder.
(b) Notwithstanding any other provision of this Agreement, in order to reduce the number of
fund transfers among the Borrowers, the Lenders and the Agent, the Borrowers, the Lenders and the
Agent agree that the Agent may, but shall not be obligated to, and the Borrowers and the Lenders
hereby irrevocably authorize the Agent to, fund, on behalf of the Lenders, Revolving Credit Loans
pursuant to Sections 2.02 and 2.03, subject to the procedures for settlement set forth in
subsection 2.05(e); provided, however, that (A) the Agent shall in no event fund
such Revolving Credit Loan if the Agent shall have received written notice from the Required
Lenders on the Business Day prior to the date of the proposed Revolving Credit Loan that one or
more of the conditions precedent contained in Section 5.02 hereof will not be satisfied on the date
of the proposed Revolving Credit Loan and (B) the Agent shall not otherwise be required to
determine that, or take notice whether, the conditions precedent in Section 5.02 have been
satisfied. If the Agent elects not to fund a requested Revolving Credit Loan on behalf of the
Lenders, promptly after receipt of a Notice of Borrowing from the Administrative Borrower, the
Agent shall so notify each Lender. If the Agent notifies the Lenders that it will not fund a
requested Revolving Credit Loan on behalf of the Lenders, each Lender shall make its Pro Rata Share
of the Revolving Credit Loan available to the Agent, in immediately available funds, at the Payment
Office no later than 2:00 p.m. (New York City time) on the date of the proposed Revolving Credit
Loan. The Agent will make the proceeds of such Revolving Credit Loans available to the Borrowers
on the day of the proposed Revolving Credit Loan by causing an amount, in immediately available
funds, equal to the proceeds of all such Revolving Credit Loans received by the Agent at the
Payment Office or the amount funded by the Agent on behalf of the Lenders to be deposited in an
account designated by the Administrative Borrower.
(c) If the Agent has notified the Lenders that the Agent will not fund a particular Revolving
Credit Loan pursuant to subsection 2.05(b) on behalf of the Lenders, the Agent may assume that such
Lender has made such amount available to the Agent on such day and the Agent, in its sole and
absolute discretion, may, but shall not be obligated to, cause a corresponding amount to be made
available to the Borrowers on such day. If, in such case, the Agent makes such corresponding
amount available to the Borrowers and such corresponding amount is not in fact made available to
the Agent by such Lender, such Lender and the Borrowers severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon for each day from the
date such amount is made available to the Borrowers until the date such amount is repaid to the
Agent, at (A) in the case of the Borrowers, a rate per annum equal to the higher of the Federal
Funds Rate and the interest rate applicable thereto pursuant to Section 2.06 and (B) in the case of
such Lender, at the Federal Funds Rate for three Business Days and thereafter at the Prime Rate.
If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender’s Pro Rata Share of such Revolving Credit Loan.
(d) Nothing in this Section 2.05 shall be deemed to relieve any Lender from its obligation to
fulfill its Revolving Credit Commitment hereunder or to prejudice any rights that the Agent or the
Borrowers may have against any Lender as a result of any default by such Lender hereunder.
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(e) With respect to all periods for which the Agent, on behalf of the Lenders, has funded
Revolving Credit Loans pursuant to subsection 2.05(a), on the first Business Day after the last day
of each week, or such shorter period as the Agent may from time to time select (any such week or
shorter period being herein called a “Settlement Period”), the Agent shall notify each
Lender of the unpaid principal amount of the Revolving Credit Loans outstanding as of the last day
of the Settlement Period. In the event that such amount is greater than the unpaid principal
amount of the Revolving Credit Loans outstanding as of the last day of the immediately preceding
Settlement Period (or, if there has been no preceding Settlement Period, the amount of the
Revolving Credit Loans made on the date of such Lender’s initial funding), each Lender shall
promptly make available to the Agent such Lender’s Pro Rata Share of the difference in immediately
available funds. In the event that such amount is less than such unpaid principal amount, the
Agent shall promptly pay over to each other Lender such Lender’s Pro Rata Share of the difference
in immediately available funds. In addition, if the Agent shall so request at any time when a
Default or an Event of Default shall have occurred and be continuing, or any other event shall have
occurred as a result of which the Agent shall determine that it is desirable to present claims
against the Borrowers for repayment, each Lender shall promptly remit to the Agent or, as the case
may be, the Agent shall promptly remit to each Lender, sufficient funds to adjust the interests of
the Lenders in the then outstanding Revolving Credit Loans to such an extent that, after giving
effect to such adjustment, each Lender’s interest in the then outstanding Revolving Credit Loans
will be equal to its Pro Rata Share thereof. The obligations of the Agent and each Lender under
this subsection 2.05(e) shall be absolute and unconditional. Each Lender shall only be entitled to
receive interest on its Pro Rata Share of the Revolving Credit Loans which have been funded by such
Lender.
(f) In the event that any Lender fails to make any payment required to be made by it pursuant
to subsection 2.05(e), the Agent shall be entitled to recover such corresponding amount on demand
from such Lender together with interest thereon, for each day from the date such payment was due
until the date such amount is paid to the Agent, at the Federal Funds Rate for three Business Days
and thereafter at the Prime Rate. During the period in which such Lender has not paid such
corresponding amount to the Agent, notwithstanding anything to the contrary contained in this
Agreement or any other Loan Document, the amount so advanced by the Agent to the Borrowers shall,
for all purposes hereof, be a Revolving Credit Loan made by the Agent for its own account. Upon
any such failure by a Lender to pay the Agent, the Agent shall promptly thereafter notify the
Administrative Borrower of such failure and the Borrowers shall immediately pay such corresponding
amount to the Agent for its own account.
Section 2.06 Interest.
(a) Revolving Credit Loans. Each Revolving Credit Loan which is a Eurodollar Loan
shall bear interest on the principal amount thereof from time to time outstanding from the date of
such Revolving Credit Loan until such principal amount becomes due, at a rate per annum equal to
the Eurodollar Rate for the Interest Period in effect for such Revolving Credit Loan plus 1.50%.
Each Revolving Credit Loan which is a Base Rate Loan shall bear interest on the principal amount
thereof from time to time outstanding from the date of such Revolving Credit Loan until such
principal amount becomes due, at a rate per annum equal to the Base Rate.
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(b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default described in Section 10.01 hereof, all outstanding principal of the Revolving Credit Loans
and all outstanding Reimbursement Obligations, all accrued interest (to the extent permitted by
law) which is not paid when due and all other outstanding Obligations shall bear interest until
such time as no such Event of Default exists at a fluctuating interest rate per annum equal at all
times to the Post-Default Rate.
(c) Interest Payment. Interest on each Eurodollar Loan shall be payable in arrears on
the last day of each Interest Period of such Eurodollar Loan and, in the case of any Eurodollar
Loan with an Interest Period longer than three months, the day that interest would have been paid
if such Eurodollar Loan had an Interest Period of three months. Interest on each Base Rate Loan
shall be payable quarterly, in arrears, on the first day of each January, April, July and October,
commencing on the first day of the first such month following the making of such Base Rate Loan,
and at maturity (whether upon demand, by acceleration or otherwise). Interest at the Post-Default
Rate shall be payable on demand. The Borrowers hereby authorize the Agent to, and the Agent may,
from time to time, charge the Loan Account pursuant to Section 4.02 hereof with the amount of any
interest payment due hereunder. It is understood and agreed that on the Effective Date, all
interest on the “Revolving Credit Loans” (as defined in the Existing Revolving Credit Agreement)
that has accrued and is unpaid as of such date, shall continue to be due and owing (notwithstanding
the effectiveness of this Agreement) upon the effectiveness of this Agreement.
(d) General. All interest shall be computed on the basis of a year of 360 days for
the actual number of days, including the first day but excluding the last day, elapsed.
Section 2.07 Reduction of Revolving Credit Commitment; Prepayment of Revolving Credit
Loans.
(a) The Total Commitment shall not be reduced without the prior written consent of the
Administrative Borrower, the Agent and Bank Leumi, unless all of the Obligations are repaid in full
and the Total Commitment is terminated and reduced to zero in accordance with this Section 2.07(a).
Notwithstanding the first sentence of this Section 2.07(a), the Borrowers may not repay the
Obligations in full and the Total Commitment may not be terminated by the Borrowers unless in each
and every case the Agent and the Lenders receive at least three months’ prior written notice of
such repayment and termination from the Administrative Borrower (a “Termination Notice”),
provided that (i) in no event shall any such repayment and termination be effective prior
to November 15, 2006, (ii) the Termination Notice shall be revocable only during the first two
months immediately following the delivery of such notice (but not during the third month, it being
understood that after such second month the Termination Notice shall be irrevocable), provided
further that if the Administrative Borrower revokes a Termination Notice, the Administrative
Borrower may not give any other Termination Notice for a period of nine months following the date
of such revoked Termination Notice, and (iii) the Borrowers may repay the Obligations in full and
the Total Commitment may be terminated at any time notwithstanding the failure of the
Administrative Borrower to provide the Agent and the Lenders with a Termination Notice if (A) an
Event of Default shall have occurred and be continuing and (B) the Agent shall have provided
written notice of the existence of such Event of Default to the Administrative Borrower. Any
reductions of the Total Commitment
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which are so consented to shall be irrevocable and may not be reinstated. Each such approved
reduction shall reduce the Revolving Credit Commitment of each Lender proportionately in accordance
with its Pro Rata Share.
(b) Subject to the terms and conditions contained in this Section 2.07, Section 2.10 and
elsewhere in this Agreement, the Borrowers shall have the right to prepay, in whole or in part, the
Revolving Credit Loans.
(c) (i) If at any time the Borrowing Base is less than the sum of the aggregate
principal amount of all outstanding Revolving Credit Loans plus the outstanding amount of
all Letter of Credit Obligations, the Administrative Borrower will (A) immediately give
notice of such occurrence to the Agent and (B) prepay the Revolving Credit Loans in an
amount which will reduce the sum of the aggregate principal amount of all outstanding
Revolving Credit Loans plus Letter of Credit Obligations to an amount less than or equal to
the then current Borrowing Base. If at any time after the Borrowers have complied with the
first sentence of this Section 2.07(c), the aggregate amount of Letter of Credit Obligations
is greater than the then current Borrowing Base, the Borrowers shall provide cash collateral
to the Agent in the amount of such excess, which cash collateral shall be deposited in an
interest bearing account maintained by the Agent and, provided that no Event of
Default shall have occurred and be continuing, returned to the Borrowers at such time as (x)
the aggregate Letter of Credit Obligations plus (y) the aggregate principal amount of all
outstanding Revolving Credit Loans no longer exceeds the then current Borrowing Base.
(ii) If at any time the aggregate principal amount of all outstanding Revolving Credit
Loans plus the outstanding amount of all Letter of Credit Obligations exceeds the then
current Facility Sublimit, the Borrowers will (A) immediately give notice of such occurrence
to the Agent and (B) prepay the Revolving Credit Loans in an amount which will reduce the
sum of the aggregate principal amount of all outstanding Revolving Credit Loans plus the
Letter of Credit Obligations to an amount less than or equal to the then current Facility
Sublimit. If at any time after the Borrowers have complied with the first sentence of this
Section 2.07(c)(ii), the aggregate amount of Letter of Credit Obligations is greater than
the then current Facility Sublimit, the Borrowers shall provide cash collateral to the Agent
in the amount of such excess, which cash collateral shall be deposited in an interest
bearing account maintained by the Agent and, provided that no Event of Default shall
have occurred and be continuing, returned to the Borrowers at such time as (x) the aggregate
Letter of Credit Obligations plus (y) the aggregate principal amount of all outstanding
Revolving Credit Loans no longer exceeds the then current Facility Sublimit.
(d) Immediately upon the receipt by any Loan Party or any Company of any Net Proceeds from the
issuance, sale, assignment, transfer or other disposition of any Capital Stock, debt securities or
assets of a Company (other than Net Proceeds from the sale of Inventory in the ordinary course of
business and other than with respect to property subject to a prior Permitted Lien) the Borrowers
shall make a prepayment of the Revolving Credit Loans in an amount equal to the amount of such Net
Proceeds, except to the extent any Borrower or other Company is obligated to pay such Net Proceeds
of Fixed Assets, Capital Stock or debt securities
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to the Term Loan Agent in accordance with Sections 2.13(a) of the Term Loan Agreement (as in
effect on the date hereof). Notwithstanding the foregoing, (i) the Borrowers shall not be required
to prepay the Revolving Credit Loans in the case of intercompany Indebtedness between the Loan
Parties permitted by Sections 7.02(b) and 7.02(e) and (ii) the Administrative Borrower may, as to
any amounts that would constitute Net Proceeds of the sale of any Fixed Assets, deliver to the
Agent, at the time of receipt of such amounts by any Loan Party, a certificate of an officer
stating that it intends to reinvest such amounts in productive assets of a kind then used or usable
in the business of the Parent or its Subsidiaries (and, to the extent the assets sold in such asset
sale constituted Collateral, which will be subject to a perfected security interest in favor of the
Agent, subject only to the security interest of the Term Loan Agent, securing the Obligations under
this Agreement), within 360 days of receipt of such amounts, and such amounts shall be deemed not
to constitute Net Proceeds if, so long as and to the extent that (A) no Default or Event of Default
shall have occurred and be continuing at the time of delivery of such certificate or at the
proposed time of the application of such amounts, (B) such amounts may, pending their use to
acquire such assets, be deposited with and held by the Term Loan Agent in an account over which the
Term Loan Agent shall have sole control and exclusive rights of withdrawal subject to and
consistent with the terms of the Intercreditor Agreement, and which shall be subject to a perfected
security interest in favor of a Collateral Agent under the Security Documents (the “Asset
Reinvestment Account”), (C) the aggregate amount held pending reinvestment at any time pursuant
to this sentence shall not exceed $40,000,000 and (D) such amounts shall in fact be reinvested in
assets meeting the requirements set forth above within such 360-day period (it being agreed that
any amounts as to which any of the foregoing requirements shall at any time not be satisfied shall
constitute Net Proceeds and be applied to prepay Revolving Credit Loans to the extent required by
this Section 2.07).
(e) Any prepayment made pursuant to this Section 2.07 shall be (i) accompanied by accrued
interest on the principal amount being prepaid to the date of prepayment and (ii) subject to the
terms of the Intercreditor Agreement.
(f) All funds deposited on a Business Day into the Agent Account or directly to the Payment
Office or any other account designated by the Agent to the Administrative Borrower shall be applied
by the Agent to the payment, in whole or in part, to the outstanding Revolving Credit Loans as of
such Business Day, subject to Section 4.02 hereof.
Section 2.08 Fees.
(a) Unused Line Fee. From and after the Effective Date until the Final Maturity Date,
the Borrowers shall pay to the Agent for the account of the Lenders in accordance with the Lenders’
respective Pro Rata Shares and in immediately available funds, an unused line fee (the “Unused
Line Fee”) accruing at the rate of 15/100th of 1% (0.15%) per annum on the excess, if any, of
the Total Commitment over the then current Facility Sublimit. The Unused Line Fee shall be payable
quarterly in arrears on the first Business Day of each January, April, July and October, commencing
April 3, 2006 and shall be non-refundable.
(b) Unused Loan Subfacility Fee. From and after the Effective Date until the Final
Maturity Date, the Borrowers shall pay to the Agent for the account of the Lenders in accordance
with the Lenders’ respective Pro Rata Shares and in immediately available funds, an
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unused loan subfacility fee (the “Unused Loan Subfacility Fee”) accruing at the rate
of 3/10ths of 1% (0.30%) per annum, on the excess, if any, of the then current Facility Sublimit
over the sum of the average amount of all Revolving Credit Loans and Letter of Credit Obligations
outstanding from time to time. Solely for the purposes of calculating the Unused Loan Subfacility
Fee, the total amount of Letters of Credit Obligations shall be determined based upon the maximum
stated amount of each Letter of Credit and each such Letter of Credit shall be deemed to be
outstanding at the maximum stated amount until the expiry date of each such Letter of Credit,
irrespective of whether the maximum stated amount was reduced or such Letter of Credit was
terminated prior to the expiry date of such Letter of Credit. The Unused Loan Subfacility Fee
shall be payable quarterly in arrears on the first Business Day of each January, April, July and
October, commencing April 3, 2006 and shall be non-refundable.
(c) Letter of Credit Fees. From and after the Effective Date until all Letters of
Credit have been terminated, the Borrowers shall pay to the Agent the Letter of Credit Fees set
forth in and to be paid in accordance with Section 3.03(b) hereof.
(d) Field Examination Fee. The Borrowers shall pay the reasonable out of pocket fees,
costs, expenses and charges of auditors, appraisers and professionals employed or retained by the
Agent to review, inspect, audit or monitor any of the Collateral prior to the Effective Date and
from time to time thereafter (the “Field Examination Fee”).
(e) General. It is understood and agreed that on the Effective Date, all fees that
are payable on the “Obligations” (as defined in the Existing Revolving Credit Agreement) that have
accrued and are unpaid as of such date, shall continue to be due and owing (notwithstanding the
effectiveness of this Agreement) upon the effectiveness of this Agreement.
Section 2.09 Eurodollar Rate Not Determinable; Illegality or Impropriety.
(a) In the event, and on each occasion, that on or before the day on which the Eurodollar Rate
is to be determined for a borrowing that is to include Eurodollar Loans, the Agent has determined
in good faith that, or has been advised by the Required Lenders that, (i) the Eurodollar Rate
cannot be determined for any reason, (ii) the Eurodollar Rate will not adequately and fairly
reflect the cost of maintaining Eurodollar Loans or (iii) Dollar deposits in the principal amount
of the applicable Eurodollar Loans are not available in the Interbank Market, the Agent shall, as
soon as practicable thereafter, give written notice of such determination to the Administrative
Borrower and the Lenders. In the event of any such determination, any request by the
Administrative Borrower for a Eurodollar Loan pursuant to Section 2.03 shall, until, in the case of
such a determination by the Required Lenders, the Agent has been advised by the Required Lenders
and the Agent has so advised the Administrative Borrower that, or in the case of a determination by
the Agent, the Agent has advised the Administrative Borrower and the other Lenders that, the
circumstances giving rise to such notice no longer exist, be deemed to be a request for a Base Rate
Loan. Each determination by the Agent and/or the Required Lenders hereunder shall be conclusive
and binding absent manifest error.
(b) In the event that it shall be unlawful or improper for any Lender to make, maintain or
fund any Eurodollar Loan as contemplated by this Agreement, then such
38
Lender shall forthwith give notice thereof to the Agent and the Administrative Borrower
describing such illegality or impropriety in reasonable detail. Effective immediately upon the
giving of such notice, the obligation of such Lender to make Eurodollar Loans shall be suspended
for the duration of such illegality or impropriety and, if and when such illegality or impropriety
ceases to exist, such suspension shall cease, and such Lender shall notify the Agent and the
Administrative Borrower. If any such change shall make it unlawful or improper for any Lender to
maintain any outstanding Eurodollar Loan as a Eurodollar Loan, such Lender shall, upon the
happening of such event, notify the Agent and the Administrative Borrower, and the Borrowers shall
immediately, or if permitted by applicable law, rule, regulation, order, decree, interpretation,
request or directive, at the end of the then current Interest Period for such Eurodollar Loan,
convert each such Eurodollar Loan into a Base Rate Loan.
Section 2.10 Indemnity.
(a) The Borrowers hereby jointly and severally indemnify each Lender and each Lender’s
Affiliate against, and hereby agree to hold them harmless from, any loss or expense that such
Lender or such Affiliate sustains or incurs (including, without limitation, any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such
Lender or such Affiliate to fund or maintain any Eurodollar Loan, and including loss of anticipated
profits) as a consequence of (i) any failure by the Borrowers to fulfill on the date of any
borrowing hereunder the applicable conditions set forth in Article V, (ii) any failure by the
Borrowers to borrow any Eurodollar Loan hereunder, to convert any Base Rate Loan into a Eurodollar
Loan or to continue a Eurodollar Loan as such after notice of such borrowing, conversion or
continuation has been given pursuant to Section 2.03 or Section 2.11, (iii) any payment, prepayment
(mandatory or optional) or conversion of a Eurodollar Loan required by any provision of this
Agreement or otherwise made on a date other than the last day of the Interest Period applicable
thereto (including, without limitation, any transfer of Eurodollar Loans required by the Borrowers
pursuant to Section 2.10(b) hereof or otherwise), (iv) any default in payment or prepayment of the
principal amount of any Eurodollar Loan or any part thereof or interest accrued thereon, as and
when due and payable (at the due date thereof, by notice of prepayment or otherwise), or (v) the
occurrence of any Event of Default, including, in each such case, any loss (including, without
limitation, loss of anticipated profits) or reasonable expense sustained or incurred in liquidating
or employing deposits from third parties acquired to effect or maintain such Revolving Credit Loan
or any part thereof as a Eurodollar Loan, provided that the indemnity made under this
Section 2.10 shall be limited to losses and expenses incurred on or prior to the end of the
relevant Interest Period. Such loss or reasonable expense shall include but not be limited to an
amount equal to the excess, if any, as reasonably determined by such Lender or such Affiliate, of
(i) the amount of interest that would otherwise have accrued on the principal amount so prepaid or
converted or continued or not borrowed or converted or continued for the period from the date of
such prepayment, conversion or continuation (or failure to borrow, convert or continue) to the last
day of the then current Interest Period for such Revolving Credit Loan at the applicable rate of
interest for such Revolving Credit Loan provided for herein, less (ii) the amount of interest that
otherwise would have accrued on such principal amount from the date of such prepayment, conversion
or continuation (or failure to borrow, convert or continue) until the end of the then current
Interest Period at a rate per annum equal to the Eurodollar Rate for such period (as reasonably
determined by the Agent). A certificate of any Lender setting forth in reasonable detail any
amount or amounts that such Lender or such
39
Lender’s Affiliate is entitled to receive pursuant to this Section 2.10 and the basis for the
determination of such amount or amounts shall be delivered to the Administrative Borrower and shall
be conclusive and binding absent manifest error.
(b) Notwithstanding paragraph (a) of this Section 2.10, the Agent will use reasonable efforts
to minimize or reduce any such loss or expense resulting from the mandatory prepayments required by
Section 2.07 of this Agreement by (i) applying all payments and prepayments to Revolving Credit
Loans bearing interest at the Base Rate prior to any application of payments to Revolving Credit
Loans bearing interest at the Eurodollar Rate and (ii) after all Base Rate Loans have been paid in
full, calculating any such loss or expense based upon the net decrease in Eurodollar Loans on a day
after giving effect to all prepayments and all Revolving Credit Loans made on such day.
Section 2.11 Continuation and Conversion of Revolving Credit Loans.
(a) Subject to Section 2.09 hereof, the Borrowers shall have the right, at any time, on three
(3) Business Days’ prior irrevocable written or telecopy notice from the Administrative Borrower to
the Agent, to continue any Eurodollar Loan, or any portion thereof, into a subsequent Interest
Period or to convert any Base Rate Loan or portion thereof into a Eurodollar Loan, or on one (1)
Business Day’s prior irrevocable written or telecopy notice from the Administrative Borrower to the
Agent, to convert any Eurodollar Loan or portion thereof into a Base Rate Loan, subject to the
following:
(i) no Eurodollar Loan may be continued as such and no Base Rate Loan may be converted
into a Eurodollar Loan, when any Event of Default or Default shall have occurred and be
continuing at such time;
(ii) in the case of a continuation of a Eurodollar Loan as such or a conversion of a
Base Rate Loan into a Eurodollar Loan, the aggregate principal amount of such Eurodollar
Loan shall not be less than $1,000,000 and in multiples of $500,000 if in excess thereof;
(iii) in the case of a conversion from a Eurodollar Loan to a Base Rate Loan accrued
interest on the Revolving Credit Loan (or portion thereof) being converted shall be paid by
the Borrowers at the time of conversion;
(iv) any portion of a Revolving Credit Loan maturing or required to be repaid in less
than one month may not be converted into or continued as a Eurodollar Loan; and
(v) if any conversion of a Eurodollar Loan shall be effected on a day other than the
last day of an Interest Period, the Borrowers jointly and severally agree to reimburse each
Lender on demand for any loss incurred or to be incurred by it in the reemployment of the
funds released by such conversion as provided in Section 2.10.
In the event that the Administrative Borrower shall not give notice to continue any Eurodollar Loan
into a subsequent Interest Period, such Revolving Credit Loan shall automatically become
40
a Base Rate Loan at the expiration of the then current Interest Period, subject to the other
provisions of this Agreement.
Section 2.12 Taxes.
(a) All payments by the Borrowers hereunder, under the Revolving Credit Notes or under any
other Loan Document shall be made without set-off, counterclaim, deduction or other defense. All
such payments shall be made free and clear of and without deduction for any present or future
income, franchise, sales, use, excise, stamp or other taxes, levies, imposts, deductions, charges,
fees, withholdings, restrictions or conditions of any nature now or hereafter imposed, levied,
collected, withheld or assessed by any jurisdiction (whether pursuant to United States Federal,
state, local or foreign law) or by any political subdivision or taxing authority thereof or
therein, and all interest, penalties or similar liabilities, excluding taxes on the net income of,
and branch profit taxes of, and franchise taxes imposed on, any Lender, the Agent or any L/C Issuer
imposed by the jurisdiction in which such Lender, the Agent or such L/C Issuer is organized or any
political subdivision thereof or taxing authority thereof or any jurisdiction in which such
Person’s principal office or relevant lending office is located or any political subdivision
thereof or taxing authority thereof (such nonexcluded taxes being hereinafter collectively referred
to as “Taxes”). If a Borrower is required by law to deduct or to withhold any Taxes from
or in respect of any amount payable hereunder, (i) the amount so payable shall be increased to the
extent necessary so that after making all required deductions and withholdings (including Taxes on
amounts payable to the Lenders, the Agent or the L/C Issuer pursuant to this sentence) the Lenders,
the Agent or the L/C Issuer receive an amount equal to the sum they would have received had no such
deductions or withholdings been made, (ii) such Borrower shall make such deductions or
withholdings, and (iii) the Borrowers shall pay the full amount deducted or withheld to the
relevant taxation authority in accordance with applicable law; provided, however,
that if a Lender assigns its rights pursuant to Section 12.08 hereof and such assignment would (but
for this proviso) cause the assignee Lender, immediately after such assignment, to be entitled to
receive any greater payments under this Section 2.12 in respect of United States Federal, state,
local or foreign withholding taxes than would have been made but for such assignment, then such
assignee Lender shall not be entitled to receive any such greater payments than such assigning
Lender would have been entitled to receive with respect to the rights assigned if such assignment
had not taken place unless (A) such assignment had been at the request of, or with the consent of,
the Borrowers or (B) an Event of Default has occurred and is continuing at the time of such
assignment. Whenever any Taxes are payable by the Borrowers, as promptly as possible thereafter,
the Borrowers shall send the Lenders, the L/C Issuer and the Agent an official receipt (or, if an
official receipt is not available, such other documentation as shall be reasonably satisfactory to
the Lenders, L/C Issuer or the Agent, as the case may be) showing payment. In addition, the
Borrowers jointly and severally agree to pay any present or future taxes, charges or similar levies
which arise from any payment made hereunder or from the execution, delivery, performance,
recordation or filing of, or otherwise with respect to, this Agreement, the Revolving Credit Notes,
the Letters of Credit or any other Loan Document, except as provided above with respect to taxes on
the net income of, and branch profit taxes of, and franchise taxes imposed on, any Lender, the
Agent or any L/C Issuer (such nonexcluded taxes being hereinafter collectively referred to as
“Other Taxes”).
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(b) The Borrowers jointly and severally agree to indemnify the Lenders, the Agent and the L/C
Issuer for the amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 2.12) paid by any Lender,
the Agent or the L/C Issuer and any liability (including penalties, interest and expenses for
nonpayment, late payment or otherwise) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted. This indemnification shall be paid
within 30 days from the date on which such Lender, the Agent or such L/C Issuer makes written
demand which demand shall identify the nature and amount of Taxes or Other Taxes for which
indemnification is being sought and the basis of the claim.
(c) Each Lender that is organized in a jurisdiction other than the United States, a State
thereof or the District of Columbia hereby agrees that:
(i) it shall, no later than the Effective Date (or, in the case of a Lender which
becomes a party hereto pursuant to Section 12.08 after the Effective Date, the date upon
which such Lender becomes a party hereto) deliver to the Borrowers and the Agent two
accurate, complete and signed originals of U.S. Internal Revenue Service Form W-8BEN or Form
W-8ECI or successor form, in each case indicating that such Lender is on the date of
delivery thereof entitled to receive payments of principal and interest for the account of
its lending office under this Agreement free from withholding of United States Federal
income tax;
(ii) if at any time such Lender changes its lending office or offices or selects an
additional lending office it shall, at the same time or reasonably promptly thereafter,
deliver to the Borrowers through the Agent in replacement for, or in addition to, the forms
previously delivered by it hereunder, if such changed or additional lending office is
located in the United States, two accurate, complete and signed originals of such Form
W-8BEN, Form W-8ECI or successor form, in each case indicating that such Lender is on the
date of delivery thereof entitled to receive payments of principal and interest for the
account of such changed or additional lending office under this Agreement free from
withholding of United States Federal income tax; and
(iii) it shall, promptly upon a Borrower’s reasonable request to that effect, deliver
to such Borrower such other forms or similar documentation as may be required from time to
time by any applicable law, treaty, rule or regulation in order to establish such Lender’s
tax status for withholding purposes.
(d) For any period with respect to which a Lender has failed to provide the Borrowers with the
appropriate form described in Section 2.12(c) (other than in the case where such Lender is not, or
is no longer, legally entitled to deliver such form), such Lender shall not be entitled to payment
from the Borrowers without deduction pursuant to Section 2.12(a) or indemnification by the
Borrowers pursuant to Section 2.12(b) to the extent that such payment or indemnification obligation
would have been reduced if the applicable form had been delivered to the Borrowers;
provided, however, that should such Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrowers shall take such steps as the Lender
shall reasonably request to assist such Lender to recover such Taxes.
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(e) If the Borrowers fail to perform their obligations under this Section 2.12, the Borrowers
jointly and severally agree to indemnify the Lenders, the Agent and the L/C Issuer for any taxes,
interest or penalties that may become payable as a result of any such failure.
(f) Any Lender that is organized in a jurisdiction other than the United States, a State
thereof or the District of Columbia claiming any indemnity payment or additional amounts payable
pursuant to this Section 2.12 shall use reasonable efforts (consistent with legal, regulatory and
policy considerations of such Lender) to file any certificate or document reasonably requested in
writing by the Administrative Borrower or to change the jurisdiction of its applicable lending
office if the making of such a filing or change would avoid the need for or reduce the amount of
any such indemnity payment or additional amounts which may thereafter accrue and would not, in the
sole and absolute determination of such Lender, be otherwise disadvantageous to such Lender.
Section 2.13 Increases to the Facility Sublimit. Upon the request of the
Administrative Borrower, subject to the conditions set forth below, the Facility Sublimit may be
adjusted from time to time as a result of either an Oil Price Adjustment or a Production Increase
(as each such term is defined below), as follows:
(a) Oil Price Adjustment. If the Blended West Texas Crude Oil Price equals an amount
set forth in the relevant column below, then, subject to the other provisions of this Section 2.13,
the then current Facility Sublimit may be increased by an amount equal to the amount set forth
below opposite such price per barrel (an “Oil Price Adjustment”):
Blended West Texas Crude Oil Price: | Oil Price Adjustment: |
|||
over $60 and up to and including $65 |
$ | 20,000,000 | ||
over $65 and up to and including $70 |
$ | 40,000,000 | ||
over $70 and up to and including $75 |
$ | 60,000,000 | ||
over $75 |
$ | 80,000,000 |
Notwithstanding the foregoing, in no event shall an Oil Price Adjustment cause the Facility
Sublimit to exceed the Total Commitment. The amount of the Facility Sublimit will be adjusted
based upon such Oil Price Adjustment, with effect from the first Business Day after the date of the
delivery by the Administrative Borrower to the Agent of a Notice of Facility Sublimit Increase (in
accordance with and subject to Section 2.13(c) below). No more than one Notice of Facility
Sublimit Increase may be delivered on any day.
(b) Production Increase. If Alon USA’s and its Consolidated Subsidiaries’ (other than
Paramount and its Subsidiaries) average throughput capacity to process crude oil and blendstocks
has permanently increased from the then current Base Production Level by at least 2,500 barrels per
day (a “Production Increase”), the then current Facility Sublimit amount may be permanently
increased (subject to Section 2.13(c) below) in increments of $10,000,000 (to an amount not to
exceed the Total Commitment), with respect to each such Production Increase. The amount of the
Facility Sublimit will permanently increase with effect from the first Business Day after the date
of delivery by the Administrative Borrower to the
43
Agent of a Notice of Facility Sublimit Increase (in accordance with and subject to Section
2.13(c) below). No more than one Notice of Facility Sublimit Increase may be delivered on any day.
(c) Making a Request for a Facility Sublimit Increase. At any time the Borrowers wish
to request an increase to the Facility Sublimit based upon either an Oil Price Adjustment or a
Production Increase, the Administrative Borrower shall give the Agent prior irrevocable notice, in
substantially the form of Exhibit I hereto (a “Notice of Facility Sublimit Increase”), and
the Agent shall promptly deliver a copy of any such Notice of Facility Sublimit Increase to each
Lender. Any such Notice of Facility Sublimit Increase shall specify (i) the amount of the new
proposed Facility Sublimit, (ii) whether the increase in the Facility Sublimit is a result of an
Oil Price Adjustment or a Production Increase, and (iii) in the case of an Oil Price Adjustment,
the initial period for which the increase in the Facility Sublimit is to take effect, such period
may not be less than the Minimum Oil Increase Period or more than six fiscal months following the
date of the Notice of Facility Sublimit Increase (an “Initial Oil Increase Period”). Each
notice of Facility Sublimit Increase shall be accompanied by a certificate of a Responsible Officer
of the Administrative Borrower, certifying (A) in the case of an Oil Price Adjustment, as to the
then current Blended West Texas Crude Oil Price as of the date of the Notice of Facility Sublimit
Increase and (B) in the case of a Production Increase, that Alon USA’s and its Consolidated
Subsidiaries’ (other than Paramount and its Subsidiaries) average throughput capacity to process
crude oil and blendstocks has permanently increased by at least 2,500 barrels per day over the Base
Production Level, and to the extent in excess thereof, the amount of any such increase. The Agent
may act without liability upon the basis of such written notice believed by the Agent in good faith
to be from the Borrowers (or from any officer thereof designated in writing to the Agent), and the
Borrowers hereby waives the right to dispute the Agent’s record of the terms of any such Notice of
Facility Sublimit Increase.
(d) Extension of an Oil Increase Period. In the case of an Oil Price Adjustment to
the Facility Sublimit, so long as the Blended West Texas Crude Oil Price has not decreased such
that the then current Oil Price Adjustment calculated in accordance with Section 2.13(a) can no
longer continue in effect after the expiration of the then current Oil Increase Period (as defined
below), the Borrowers shall have the right (but not the obligation), upon delivery of prior
irrevocable written notice to the Agent in substantially the form of Exhibit J hereto (an
“Extension Notice”), at any time prior to the expiration of the then current Oil Increase
Period, as defined below, to extend the effect of any such increase in the Facility Sublimit for
any subsequent period to be determined by the Borrowers, but in any event not to exceed six fiscal
months from the date of the Extension Notice, and not less than the Minimum Oil Increase Period (a
“Subsequent Oil Increase Period”; together with an Initial Oil Increase Period, an “Oil
Increase Period”). Any such Extension Notice shall (i) specify the duration of any Subsequent
Oil Increase Period and (ii) be accompanied by a certificate of a Responsible Officer of the
Administrative Borrower, certifying as to the then current Blended West Texas Crude Oil Price as at
the date of such continuation notice. In the event that the Borrowers shall not give notice to
extend the effect of any then current Oil Price Adjustment, the Facility Sublimit shall
automatically decrease at the expiration of the then current Oil Increase Period to the Facility
Floor then in effect; provided, however, that if the automatic decrease at the
expiration of the then current Oil Increase Period would cause the Facility Sublimit to decrease to
an amount which would cause the aggregate outstanding amount of all Letter of Credit Obligations to
44
exceed the Facility Floor, the Facility Sublimit shall not automatically decrease until the
expiration of all of the Letter of Credit Obligations that were outstanding on the date of the
expiration of the last Oil Increase Period; provided further that such stay of the automatic
decrease in the Facility Sublimit shall not extend beyond six months from the expiration of the
then current Oil Price Period.
ARTICLE III
LETTERS OF CREDIT
Section 3.01 Letters of Credit.
(a) IDB, as an L/C Issuer, has established and issued, at the request of and on behalf of the
Borrowers, “Letters of Credit” (as defined in the Existing Revolving Credit Agreement) prior to the
Effective Date, some of which remain outstanding on the Effective Date (immediately prior to the
effectiveness of this Agreement). Upon the effectiveness of this Agreement, each such “Letter of
Credit” shall automatically be deemed to be a “Letter of Credit” issued by IDB, as an L/C Issuer,
on behalf of the Borrowers under this Agreement. In addition, the Borrowers have requested the L/C
Issuer to continue to establish and open, from time to time, documentary and standby letters of
credit, which shall not have expiration dates that exceed 364 days (or such longer period as may be
approved by the Agent) from the date of issuance (the “Letters of Credit”), and each L/C
Issuer has agreed to do so, subject to the terms hereof and each Letter of Credit Application (as
hereinafter defined). A Borrower will be the account party for each application for a Letter of
Credit, which shall be substantially in the form of Exhibit H hereto or on a computer transmission
system approved by the applicable L/C Issuer or such other written form or written transmission
system as may from time to time be approved by the applicable L/C Issuer, and shall be duly
completed in a manner reasonably acceptable to the applicable L/C Issuer, together with such other
certificates, agreements, documents and other papers and information as the applicable L/C Issuer
may reasonably request (the “Letter of Credit Application”). In the event of any conflict
between the terms of the Letter of Credit Application and this Agreement, unless otherwise
expressly provided herein, the terms of this Agreement shall control.
(b) The aggregate Letter of Credit Obligations shall not exceed the lowest of (i) the
difference between (A) the Total Commitment and (B) the aggregate principal amount of Revolving
Credit Loans then outstanding, (ii) the difference between (A) the aggregate Borrowing Base and (B)
the aggregate principal amount of the Revolving Credit Loans then outstanding and (iii) the
difference between (A) the then current Facility Sublimit and (B) the aggregate principal amount of
Revolving Credit Loans. The terms and conditions of all Letters of Credit and all changes or
modifications thereof by the applicable Borrower and/or the applicable L/C Issuer shall in all
respects be subject to the prior approval of the Agent in the reasonable exercise of its sole and
absolute discretion; provided, however, that (i) the expiry date of all Letters of
Credit shall be no later than fifteen days prior to the Final Maturity Date unless, on or prior to
fifteen days prior to the Final Maturity Date, either (A) such Letters of Credit shall be cash
collateralized in an amount equal to 105% of the face amount of such Letters of Credit by the
deposit of cash in such amount in an account under the sole and exclusive control of the Agent for
the benefit of the Agent and/or the applicable L/C Issuer (the “Letter of Credit
45
Collateral Account”) or (B) the Borrowers shall provide the Agent and the Lenders with
an indemnification, in form and substance reasonably satisfactory to the Agent, from a commercial
bank or other financial institution acceptable to the Agent for any Letter of Credit Obligations
with respect to such Letters of Credit and (ii) the Letters of Credit and all documentation in
connection therewith shall be in form and substance reasonably satisfactory to the Agent and the
applicable L/C Issuer.
(c) The Agent shall have the right, without notice to the Borrowers, to charge the Loan
Account with the amount of any and all indebtedness, liabilities and obligations of any kind due
and payable under this Agreement (including Reimbursement Obligations, indemnification for breakage
costs, capital adequacy and reserve requirement charges due and payable under this Agreement)
incurred by an L/C Issuer with respect to a Letter of Credit. Any amount charged to the Loan
Account shall be deemed a Revolving Credit Loan hereunder made by the Lenders to the Borrowers,
funded by the Agent on behalf of the Lenders and subject to Section 2.05 of this Agreement. Any
charges, fees, commissions, costs and expenses charged by an L/C Issuer in connection with or
arising out of Letters of Credit or transactions relating thereto pursuant to the application and
agreement for letter of credit or other related agreements or documents executed by the Borrowers
in connection with any such Letter of Credit will be charged by the Agent to the Loan Account in
full and, when charged, shall be conclusive and binding on the Borrowers absent manifest error.
Each of the Lenders and the Borrowers agrees that the Agent shall have the right to make such
charges regardless of whether any Event of Default or Default shall have occurred and be continuing
or whether any of the conditions precedent in Section 5.02 have been satisfied.
(d) The Borrowers jointly and severally unconditionally indemnify the Agent, each L/C Issuer
and each Lender and agrees to hold the Agent, each L/C Issuer and each Lender harmless from any and
all loss, claim or liability incurred by the Agent, any L/C Issuer or any Lender arising from any
transactions or occurrences relating to Letters of Credit, any drafts or acceptances thereunder,
the Collateral relating thereto, and all Obligations in respect thereof, including any such loss or
claim due to any action taken by an L/C Issuer, other than for any such loss, claim or liability
arising out of the gross negligence or willful misconduct of the Agent, such L/C Issuer or such
Lender as determined by a final judgment of a court of competent jurisdiction.
(e) None of the Agent, the Lenders or the L/C Issuers shall be responsible for the existence,
character, quality, quantity, condition, value or delivery of the fuel, fuel by-products or other
goods purporting to be represented by any documents; any difference or variation in the character,
quality, quantity, condition, value or delivery of such goods from that expressed in the documents;
the validity, sufficiency or genuineness of any documents or of any endorsements thereof even if
such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent
or forged; the time, place, manner or order in which shipment is made; partial or incomplete
shipments, or failure or omission to ship any or all of such goods referred to in the Letters of
Credit or documents; any deviation from instructions, delay, default, or fraud by the shipper
and/or anyone else in connection with the Collateral or the shipping thereof; or any breach of
contract between the shipper or vendors and a Borrower. Furthermore, without limiting any of the
foregoing, none of the Agent, the L/C Issuers and the Lenders shall
46
be responsible for any act or omission with respect to or in connection with any goods covered
by any Letter of Credit.
(f) The Borrowers agree that any action taken by the Agent, any L/C Issuer or any Lender, if
taken in good faith, under or in connection with the Letters of Credit, the drafts or acceptances,
the guarantees or the Collateral, shall be binding on the Borrowers and shall not cause any of the
Agent, the L/C Issuers or the Lenders to have any liability to the Borrowers. In furtherance of
the foregoing, each L/C Issuer shall have the full right and authority to clear and resolve any
questions of non-compliance of documents; to give any instructions as to acceptance or rejection of
any documents or goods; to execute any and all steamship or airways guaranties (and applications
therefor), indemnities or delivery orders; to grant any extensions of the maturity of, time of
payment for, or time of presentation of, any drafts, acceptances or documents; and to agree to any
amendments, renewals, extensions, modifications, changes or cancellations of any of the terms or
conditions of any of the applications, Letters of Credit, drafts or acceptances, all in such L/C
Issuer’s sole name, without any notice to or any consent from any Borrower or any Lender. Each L/C
Issuer shall use reasonable efforts to consult with the Administrative Borrower before taking any
action pursuant to this Section 3.01(f).
(g) Without the applicable L/C Issuer’s express consent, the Borrowers agree: (i) not to
execute any and all applications for steamship or airway guaranties, indemnities or delivery
orders; to grant any extensions of the maturity of, time of payment for, or time of presentation
of, any drafts, acceptances or documents; or to agree to any amendments, renewals, extensions,
modifications, changes or cancellations of any of the terms or conditions of any of the
applications, Letters of Credit, drafts or Letter of Credit Applications; and (ii) after the
occurrence of an Event of Default, not to (A) clear and resolve any questions of non-compliance of
documents, or (B) give any instructions as to acceptances or rejection of any documents or goods.
(h) The Borrowers agree that (i) any necessary and material import, export or other license or
certificate for the import or handling of Inventory will have been promptly procured; and (ii) all
foreign and domestic material governmental laws and regulations in regard to the shipment and
importation of Inventory or the financing thereof will have been promptly and fully complied with,
in each case, where the failure to obtain such certificate or license or the failure to comply with
such laws and regulations would have a Material Adverse Effect; and any certificates in that regard
that the Agent or any L/C Issuer may at any time reasonably request will be promptly furnished. In
this connection, the Borrowers warrant and represent that all shipments made under any Letters of
Credit are in accordance with all material laws and regulations of the countries in which the
shipments originate and terminate, and are not prohibited by any such laws and regulations. As
between the Borrowers, on the one hand, and the Agent, the Lenders and the L/C Issuers, on the
other hand, the Borrowers assume all risk, liability and responsibility for, and agree to pay and
discharge, all present and future local, state, federal or foreign taxes, duties, or levies. As
between the Borrowers, on the one hand, and the Agent, the Lenders and the L/C Issuers, on the
other hand, any embargo, restriction, laws, customs or regulations of any country, state, city, or
other political subdivision, where such Inventory is or may be located, or wherein payments are to
be made, or wherein drafts may be
47
drawn, negotiated, accepted, or paid, shall be solely the Borrowers’ risk, liability and
responsibility.
(i) Upon any payments made to an L/C Issuer by the Agent or the Lenders as reimbursement for
payments made by such L/C Issuer under any Letter of Credit, the Agent or the Lenders, as the case
may be, shall, without prejudice to their rights under this Agreement (including that such
unreimbursed amounts shall constitute Revolving Credit Loans hereunder), acquire by subrogation,
any rights, remedies, duties or obligations granted or undertaken by the Borrowers in favor of such
L/C Issuer in any application for Letters of Credit, any standing agreement relating to Letters of
Credit or otherwise, all of which shall be deemed to have been granted to the Agent and the Lenders
and apply in all respects to the Agent and the Lenders and shall be in addition to any rights,
remedies, duties or obligations contained herein.
Section 3.02 Participations.
(a) Participations in Bank Leumi Letters of Credit.
(i) Purchase of Participations by Agent in Bank Leumi Letters of Credit.
Immediately upon issuance by Bank Leumi, as L/C Issuer, of any Letter of Credit pursuant to
this Agreement, the Agent shall be deemed to have irrevocably and unconditionally purchased
and received from Bank Leumi, as L/C Issuer, without recourse or warranty, an undivided
interest and participation in all obligations of Bank Leumi, as L/C Issuer, in such Letter
of Credit (including, without limitation, all Reimbursement Obligations of the Borrowers
with respect thereto pursuant to the Letters of Credit, the Letters of Credit Applications
or otherwise).
(ii) Sharing of Payments. In the event that Bank Leumi, as L/C Issuer, makes
any payment in respect of a Letter of Credit and the Borrowers shall not have repaid such
amount to the Agent for the account of the L/C Issuer, the Agent shall charge the Loan
Account in the amount of the Reimbursement Obligation, in accordance with Sections 3.01(c)
and 4.02.
(iii) Obligations Irrevocable. The obligations of the Agent to make payments
for the account of the L/C Issuer with respect to a Letter of Credit issued by Bank Leumi,
as L/C Issuer, shall be irrevocable, without any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following circumstances:
(A) any lack of validity or enforceability of this Agreement or any of the other Loan
Documents;
(B) the existence of any claim, setoff, defense or other right which the Borrowers may have at
any time against a beneficiary named in such Letter of Credit or any transferee of such Letter of
Credit (or any Person for whom any such transferee may be acting), the Agent, Bank Leumi, as L/C
Issuer, any Lender, or any other Person, whether in connection with this Agreement, such Letter of
Credit, the transactions contemplated herein or
48
any unrelated transactions (including any underlying transactions between any Borrower or
other party and the beneficiary named in such Letter of Credit);
(C) any draft, certificate or any other document presented under such Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance or observance of any of
the terms of any of the Loan Documents;
(E) any failure by Bank Leumi, as L/C Issuer, or the Agent to provide any notices required
pursuant to this Agreement relating to such Letter of Credit;
(F) any payment by Bank Leumi, as L/C Issuer, under any of the Letters of Credit against
presentation of a draft or certificate which does not comply with the terms of such Letter of
Credit; or
(G) the occurrence of any Default or Event of Default.
(b) Participations in Obligations to Agent in Respect of Bank Leumi Letters of Credit.
(i) Purchase of Participations by Lenders in Respect of Bank Leumi Letters of
Credit. Immediately upon issuance by Bank Leumi, as L/C Issuer, of any Letter of Credit
pursuant to this Agreement, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Agent, without recourse or warranty, an
undivided interest and participation, to the extent of such Lender’s Pro Rata Share, in all
obligations of the Agent to reimburse Bank Leumi, as L/C Issuer, in such Letter of Credit
(including, without limitation, all Reimbursement Obligations of the Borrowers with respect
thereto pursuant to the Letters of Credit, the Letters of Credit Applications or otherwise).
(ii) Sharing of Payments. In the event that the Agent makes any payment to
Bank Leumi, as L/C Issuer, in respect of a Letter of Credit pursuant to Section 3.02(a), the
Agent shall charge the Loan Account in the amount of the Reimbursement Obligation, in
accordance with Sections 3.01(c) and 4.02.
(iii) Obligations Irrevocable. The obligations of a Lender to make payments to
the Agent (to reimburse the Agent for payments made to Bank Leumi with respect to a Letter
of Credit issued by Bank Leumi, as L/C Issuer), shall be irrevocable, without any
qualification or exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without limitation, any of
the following circumstances:
(A) any lack of validity or enforceability of this Agreement or any of the other Loan
Documents;
49
(B) the existence of any claim, setoff, defense or other right which the Borrowers may have at
any time against a beneficiary named in such Letter of Credit or any transferee of such Letter of
Credit (or any Person for whom any such transferee may be acting), the Agent, Bank Leumi, as L/C
Issuer, any Lender, or any other Person, whether in connection with this Agreement, such Letter of
Credit, the transactions contemplated herein or any unrelated transactions (including any
underlying transactions between any Borrower or other party and the beneficiary named in such
Letter of Credit);
(C) any draft, certificate or any other document presented under such Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance or observance of any of
the terms of any of the Loan Documents;
(E) any failure by Bank Leumi, as L/C Issuer, or the Agent to provide any notices required
pursuant to this Agreement relating to such Letter of Credit;
(F) any payment by Bank Leumi, as L/C Issuer, under any of the Letters of Credit against
presentation of a draft or certificate which does not comply with the terms of such Letter of
Credit; or
(G) the occurrence of any Default or Event of Default.
(c) Participations in IDB Letters of Credit.
(i) Purchase of Participations in IDB Letters of Credit. Immediately upon
issuance by IDB, as L/C Issuer, of any Letter of Credit pursuant to this Agreement, each
Lender shall be deemed to have irrevocably and unconditionally purchased and received from
IDB, as L/C Issuer, without recourse or warranty, an undivided interest and participation,
to the extent of such Lender’s Pro Rata Share, in all obligations of IDB, as L/C Issuer, in
such Letter of Credit (including, without limitation, all Reimbursement Obligations of the
Borrowers with respect thereto pursuant to the Letters of Credit, the Letters of Credit
Applications or otherwise).
(ii) Sharing of Payments. In the event that IDB, as L/C Issuer, makes any
payment in respect of a Letter of Credit and the Borrowers shall not have repaid such amount
to the Agent for the account of IDB, as L/C Issuer, the Agent shall charge the Loan Account
in the amount of the Reimbursement Obligation, in accordance with Sections 3.01(c) and 4.02.
(iii) Obligations Irrevocable. The obligations of a Lender to make payments to
the Agent for the account of IDB, as L/C Issuer, with respect to a Letter of Credit shall be
irrevocable, without any qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:
50
(A) any lack of validity or enforceability of this Agreement or any of the other Loan
Documents;
(B) the existence of any claim, setoff, defense or other right which the Borrowers may have at
any time against a beneficiary named in such Letter of Credit or any transferee of such Letter of
Credit (or any Person for whom any such transferee may be acting), the Agent, IDB, as L/C Issuer,
any Lender, or any other Person, whether in connection with this Agreement, such Letter of Credit,
the transactions contemplated herein or any unrelated transactions (including any underlying
transactions between any Borrower or other party and the beneficiary named in such Letter of
Credit);
(C) any draft, certificate or any other document presented under such Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance or observance of any of
the terms of any of the Loan Documents;
(E) any failure by IDB, as L/C Issuer, or the Agent to provide any notices required pursuant
to this Agreement relating to such Letter of Credit;
(F) any payment by IDB, as L/C Issuer, under any of the Letters of Credit against presentation
of a draft or certificate which does not comply with the terms of such Letter of Credit; or
(G) the occurrence of any Default or Event of Default.
Section 3.03 Issuance of Letters of Credit; Fees.
(a) Request for Issuance. The Administrative Borrower may from time to time, upon
notice not later than 12:00 noon, New York City time, at least three Business Days in advance,
request an L/C Issuer to establish or open a Letter of Credit by delivering to the Agent, with a
copy to such L/C Issuer, a letter of credit application, together with any necessary related
documents. The Agent shall direct such L/C Issuer not to issue a Letter of Credit if the Agent
shall have received written notice from the Required Lenders on the Business Day immediately
preceding the proposed issuance date for such Letter of Credit that one or more of the conditions
precedent in Section 5.02 will not have been satisfied on such date, and neither any L/C Issuer nor
the Agent shall otherwise be required to determine that, or take notice whether, the conditions
precedent set forth in Section 5.02 have been satisfied. The Administrative Borrower will make a
good faith effort to request Letters of Credit from each L/C Issuer in proportion to such L/C
Issuer’s respective Pro Rata Share of the Obligations; provided that if (i) Availability is
less than $5,000,000, or (ii) an Event of Default has occurred and is continuing, then only IDB, in
its capacity as an L/C Issuer, may issue Letters of Credit for the account of the Borrowers.
(b) Letters of Credit Fees.
(i) The Borrowers shall pay to the Agent for the ratable account of the applicable L/C
Issuer a nonrefundable administration fee (a “Letter of
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Credit Administration Fee”) for each Letter of Credit issued hereunder and for
each amendment to a Letter of Credit that increases the stated amount of such Letter of
Credit, such fee to be equal to 1/10 of 1% (0.10%) of the initial stated amount of such
Letter of Credit or the increase in the stated amount of such existing Letter of Credit, as
the case may be. The Letter of Credit Administration Fee shall be payable, in the case of
the issuance of a Letter of Credit, in advance of or prior to the issuance of such Letter of
Credit and, in the case of an amendment of an existing Letter of Credit, in advance of or
prior to the amendment of such existing Letter of Credit. In addition, the Borrowers shall
pay to the Agent for the account of the Lenders, in accordance with the Lenders’ Pro Rata
Shares, (x) for each Letter of Credit issued hereunder, a nonrefundable issuance fee (a
“Letter of Credit Issuance Fee”) equal to 1.50% per annum of the stated amount of
such Letter of Credit, and (y) for any amendment to an existing Letter of Credit that
increases the stated amount of such Letter of Credit, a nonrefundable amendment fee (a
“Letter of Credit Amendment Fee”) equal to 1.50% per annum of the increase in the
stated amount of such Letter of Credit.
(ii) The Borrowers shall pay to each L/C Issuer the standard charges from time to time
assessed by such L/C Issuer in connection with the issuance, administration, amendment,
payment or cancellation of Letters of Credit.
(iii) The Borrowers hereby authorize the Agent to, and the Agent may, from time to
time, charge the Loan Account pursuant to Sections 3.01(c) and 4.02 of this Agreement with
the amount of any Letter of Credit Fees or other charges due under this Section 3.03.
ARTICLE IV
FEES, PAYMENTS AND OTHER COMPENSATION
Section 4.01 Audit and Collateral Monitoring Fees. Each Company acknowledges that the
Agent and the WC Collateral Agent may upon reasonable notice to such Company conduct audits and/or
field examinations of such Company at any reasonable time and from time to time in a manner so as
to not unduly disrupt the business of such Company, provided that such notice shall not be
required if an Event of Default has occurred and is continuing. The Borrowers jointly and
severally agree to pay, for the account of the Agent, the reasonable charges of each examiner plus
the examiner’s reasonable out-of-pocket costs and expenses incurred in connection with all such
visits, inspections, audits and examinations.
Section 4.02 Payments; Computations and Statements.
(a) The Borrowers will make each payment hereunder and under the Revolving Credit Notes not
later than 11:00 a.m. (New York City time) on the day when due, in lawful money of the United
States of America and in immediately available funds, to the Agent at the Payment Office. All
payments received by the Agent after 11:00 a.m. (New York City time) on any Business Day will be
credited to the relevant Loan Account on the next succeeding Business Day. All payments shall be
made by the Borrowers without defense, set-off or counterclaim to the Agent and the Lenders.
Except as provided in Section 2.05, after receipt, the
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Agent will promptly thereafter cause to be distributed like funds relating to the payment of
principal ratably to the Lenders and like funds relating to the payment of any other amount payable
to any Lender to such Lender in each case to be applied in accordance with the terms of this
Agreement, provided that the Agent will cause to be distributed all interest and fees
received from or for the account of the Borrowers not less than once each month and in any event
promptly after receipt thereof. Any amounts not paid to a Lender in accordance with the preceding
sentence following receipt by the Agent (to the extent such amounts exceed $500,000 in the
aggregate) shall accrue interest from the date such amount is received by the Agent until the date
such amount is paid to such Lender, at a rate per annum equal to the Federal Funds Rate for three
Business Days and thereafter at the Prime Rate. The payment by the Borrowers of any amount to the
Agent for the account of the Lenders shall discharge the obligation of the Borrowers for such
amount, whether or not received by the Lenders, to the extent that such payment is made in
immediately available funds, such amount is not required to be returned to the Borrowers under any
applicable bankruptcy law or other law and the distribution of such amount shall not be enjoined.
The Lenders and the Borrowers hereby authorize the Agent to, and the Agent may, from time to time,
charge the Loan Account of the Borrowers (or any sub-account thereof) with any amount due and
payable by the Borrowers under any Loan Document to which any Borrower is a party. Each of the
Lenders and the Borrowers agree that the Agent shall have the right to make such charges whether or
not any Event of Default or Default shall have occurred and be continuing or whether any of the
conditions precedent in Section 5.02 have been satisfied. Any amount charged to the Loan Account
of the Borrowers shall be deemed a Revolving Credit Loan hereunder made by the Lenders to the
Borrowers, funded by the Agent on behalf of the Lenders and subject to Section 2.05 of this
Agreement. The Lenders and the Borrowers confirm that any charges which the Agent may so make to
the Loan Account of the Borrowers as herein provided will be made as an accommodation to the
Borrowers and solely at the Agent’s discretion. It is expressly understood and agreed by the
Companies that the Agent and the Lenders shall have no responsibility to inquire into the
correctness of the application apportionment, allocation or disposition of the proceeds of
Revolving Credit Loans or Letters of Credit by or at the direction of the Borrowers or any fees,
costs or expenses for which the Borrowers are obligated under this Agreement. Whenever any payment
to be made under any such Loan Document shall be stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day and such extension of time
shall in such case be included in the computation of interest or fees, as the case may be;
provided, however, if such extension would cause payment of interest on or
principal of a Eurodollar Loan to be made in the next following calendar month, such payment shall
be made on the next preceding Business Day. All computations of fees shall be made by the Agent on
the basis of a year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such fees are payable. Each
determination by the Agent of an interest rate or fees hereunder shall be conclusive and binding
for all purposes in the absence of manifest error.
(b) The Agent shall use good faith efforts to provide each Borrower and each Lender, promptly
after the end of each calendar month, a summary statement (in the form from time to time used by
Agent) of the opening and closing daily balances in the Loan Account during such month, the amounts
and dates on all Revolving Credit Loans and Agent Advances made during such month, the amounts and
dates of all payments on account of the Revolving Credit Loans to the Borrowers during such month
and the Revolving Credit Loans to which such payments were applied, the amount of interest accrued
on the Revolving Credit Loans to the
53
Borrowers during such month, any Letters of Credit issued by the L/C Issuer for the account of
the Borrowers during such month, specifying the face amount thereof, the amount of charges to the
Loan Account and/or Revolving Credit Loans made to the Borrowers during such month to reimburse the
Lenders for drawings made under Letters of Credit, and the amount and nature of any charges to such
Loan Account made during such month on account of fees, commissions, expenses and other
Obligations. All entries on any such statement shall, 30 days after the same is sent, be presumed
to be correct and shall constitute presumptive evidence of the information contained in such
statement and shall be final and conclusive absent manifest error.
Section 4.03 Sharing of Payments, Etc. Except as provided in Section 2.05, if any
Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of any Obligation in excess of its ratable share of payments
on account of similar obligations obtained by all the Lenders, such Lender shall forthwith deliver
such excess amount to the Agent and the Agent shall promptly distribute such amount in accordance
with the terms hereof and in compliance with the terms of the Intercreditor Agreement.
Section 4.04 Apportionment of Payments.
(a) Subject to Sections 2.05 and 12.01, all payments of principal and interest in respect of
outstanding Revolving Credit Loans, all payments in respect of the Reimbursement Obligations, all
payments of fees (other than the Letter of Credit Administration Fees, fees with respect to Letters
of Credit provided for in Section 3.03(b)(ii) and the audit and collateral monitoring fees provided
for in Section 4.01) and all other payments in respect of any other Obligations, shall be allocated
by the Agent among such of the Lenders as are entitled thereto, in proportion to their respective
Pro Rata Shares or otherwise as provided herein or, in respect of payments not made on account of
Revolving Credit Loans or Letter of Credit Obligations, as designated by the Person making payment
when the payment is made.
(b) After the occurrence and during the continuance of an Event of Default, the Agent may, and
upon the direction of the Required Lenders shall, apply all payments in respect of any Obligations
and all proceeds of the Collateral, subject to the provisions of this Agreement and the
Intercreditor Agreement, in such order and in such proportions as the Agent may determine in its
sole and absolute discretion.
Section 4.05 Increased Costs and Reduced Return.
(a) If any Lender or any L/C Issuer shall have determined that the adoption or implementation
of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive
of, or any change in the interpretation or administration thereof by, any court, central bank or
other administrative or Governmental Authority, or compliance by any L/C Issuer or any Lender or
any Affiliate of such Lender or such L/C Issuer with any directive of or guideline from any central
bank or other Governmental Authority or the introduction of or change in any accounting principles
applicable to any L/C Issuer or any Lender or any Affiliate of such Lender or such L/C Issuer (in
each case, whether or not having the force of law), shall (i) change the basis of taxation of
payments to any L/C Issuer or any Lender or any Affiliate of such Lender or such L/C Issuer of any
amounts payable hereunder (except for taxes on the overall net
54
income of any L/C Issuer or any Lender or any Affiliate of such Lender or such L/C Issuer),
(ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against
any Revolving Credit Loan or Letter of Credit or against assets of or held by, or deposits with or
for the account of, or credit extended by, any L/C Issuer or any Lender, or any Affiliate of such
Lender or such L/C Issuer or (iii) impose on any L/C Issuer or any Lender or any Affiliate of such
Lender or such L/C Issuer any other condition regarding this Agreement or any Revolving Credit Loan
or Letter of Credit, and the result of any event referred to in clause (i), (ii) or (iii) above
shall be to increase the cost to any L/C Issuer or any Lender of making any Revolving Credit Loan
or issuing, guaranteeing or participating in any Letter of Credit, or to reduce any amount received
or receivable by any L/C Issuer or any Lender hereunder, then, upon demand by such L/C Issuer or
such Lender, the Borrowers shall pay to such L/C Issuer or such Lender such additional amounts as
will compensate such L/C Issuer or such Lender for such increased costs or reductions in amount,
together with interest on such additional amounts.
(b) If any Lender or any L/C Issuer shall have determined that any Capital Guideline or
adoption or implementation of, or any change in, any Capital Guideline by the Governmental
Authority charged with the interpretation or administration thereof, or compliance by any L/C
Issuer, any Lender or any Affiliate of such L/C Issuer or such Lender with any Capital Guideline or
with any request or directive of any such Governmental Authority with respect to any Capital
Guideline, or the implementation of, or any change in, any applicable accounting principles (in
each case, whether or not having the force of law), either (i) affects or would affect the amount
of capital required or expected to be maintained by any L/C Issuer, any Lender or any Affiliate of
such L/C Issuer or such Lender, and any L/C Issuer or any Lender determines that the amount of such
capital is increased as a direct or indirect consequence of any Revolving Credit Loan made or
maintained, any Letter of Credit issued or any guaranty or participation with respect thereto, or
any L/C Issuer’s, any Lender’s or any such Person’s Affiliate’s other obligations hereunder, or
(ii) has or would have the effect of reducing the rate of return on any L/C Issuer’s, any Lender’s,
or any such Person’s Affiliate’s capital to a level below that which such L/C Issuer, such Lender
or such Affiliate could have achieved but for such circumstances as a consequence of any Revolving
Credit Loan made or maintained, any Letter of Credit issued, or any guaranty or participation with
respect thereto or any agreement to make Revolving Credit Loans, to issue Letters of Credit or such
L/C Issuer’s, such Lender’s, or such Person’s Affiliate’s other obligations hereunder (in each
case, taking into consideration such L/C Issuer’s, such Lender’s or such Affiliate’s policies with
respect to capital adequacy), then, upon demand by any L/C Issuer or any Lender, the Borrowers
jointly and severally agree to pay to such L/C Issuer or such Lender from time to time such
additional amounts as will compensate such L/C Issuer or such Lender for such cost of maintaining
such increased capital or such reduction in the rate of return on such L/C Issuer’s, such Lender’s
or such Affiliate’s capital.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is
three Business Days after the date of demand by an L/C Issuer or a Lender until payment in full to
such L/C Issuer or such Lender at the Post-Default Rate. A certificate of any L/C Issuer or any
Lender claiming compensation under this Section 4.05 specifying the event herein above described
and the nature of such event shall be submitted by such L/C Issuer or such Lender to the
Administrative Borrower, setting forth the additional amount due and an explanation of the
calculation thereof, such L/C Issuer’s or such Lender’s reasons for invoking the provisions of this
Section 4.05, and shall be final and conclusive absent manifest error. The
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Borrowers shall not be required to compensate a Lender or an L/C Issuer pursuant to
subsections (a) or (b) of this Section 4.05 for any amounts incurred more than 12 months prior to
the date that such Lender or such L/C Issuer notifies the Administrative Borrower of such Person’s
intention to claim compensation therefor, provided that if the circumstances giving rise to
such claim have a retroactive effect, then such 12 month period shall be extended to include the
period of such retroactive effect with respect to such claim.
Section 4.06 Joint and Several Liability of the Borrowers.
(a) Notwithstanding anything in this Agreement or any other Loan Document to the contrary,
each of the Borrowers hereby accepts joint and several liability hereunder and under the other Loan
Documents in consideration of the financial accommodations to be provided by the Agent and the
Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and
indirectly, of each of the Borrowers and in consideration of the undertakings of the other
Borrowers to accept joint and several liability for the Obligations. Each of the Borrowers,
jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but
also as a co-debtor, joint and several liability with the other Borrowers, with respect to the
payment and performance of all of the Obligations (including, without limitation, any Obligations
arising under this Section 4.06), it being the intention of the parties hereto that all of the
Obligations shall be the joint and several obligations of each of the Borrowers without preferences
or distinction among them. If and to the extent that any of the Borrowers shall fail to make any
payment with respect to any of the Obligations as and when due or to perform any of the Obligations
in accordance with the terms thereof, then in each such event, the other Borrowers will make such
payment with respect to, or perform, such Obligations. Subject to the terms and conditions hereof,
the Obligations of each of the Borrowers under the provisions of this Section 4.06 constitute the
absolute and unconditional, full recourse Obligations of each of the Borrowers, enforceable against
each such Person to the full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances
whatsoever.
(b) The provisions of this Section 4.06 are made for the benefit of the Agent, the Lenders and
their successors and assigns, and may be enforced by them from time to time against any or all of
the Borrowers as often as occasion therefor may arise and without requirement on the part of the
Agent, the Lenders or such successors or assigns first to marshal any of its or their claims or to
exercise any of its or their rights against any of the other Borrowers or to exhaust any remedies
available to it or them against any of the other Borrowers or to resort to any other source or
means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The
provisions of this Section 4.06 shall remain in effect until all of the Obligations shall have been
paid in full or otherwise fully satisfied.
(c) Each of the Borrowers hereby agrees that it will not enforce any of its rights of
contribution or subrogation against the other Borrowers with respect to any liability incurred by
it hereunder or under any of the other Loan Documents, any payments made by it to the Agent or the
Lenders with respect to any of the Obligations or any Collateral, until such time as all of the
Obligations have been paid in full in cash. Any claim which any Borrower may have against any
other Borrower with respect to any payments to the Agent or the Lenders
56
hereunder or under any other Loan Documents are hereby expressly made subordinate and junior
in right of payment, without limitation as to any increases in the Obligations arising hereunder or
thereunder, to the prior payment in full in cash of the Obligations.
ARTICLE V
CONDITIONS OF EFFECTIVENESS, LETTER OF CREDIT
ISSUANCE AND LENDING
ISSUANCE AND LENDING
Section 5.01 Conditions Precedent to Effectiveness. The effectiveness of this
Agreement is subject to the fulfillment, in a manner satisfactory to the Agent, of each of the
following conditions precedent:
(a) Payment of Fees, Etc. The Borrowers shall have paid on or before the Effective
Date, all fees, costs, expenses and taxes then due and payable by the Borrowers pursuant to
Sections 2.08, 3.03 and 12.05 hereof.
(b) Representations and Warranties; No Event of Default. The representations and
warranties contained in Section 6.01 of this Agreement and in each other Loan Document and
certificate or other writing delivered to the Agent, the Lenders or any L/C Issuer pursuant hereto
on or prior to the Effective Date shall be true and correct on and as of the Effective Date as
though made on and as of such date; and no Default or Event of Default shall have occurred and be
continuing on the Effective Date or would result from this Agreement becoming effective in
accordance with its terms.
(c) Legality. The effectiveness of this Agreement shall not contravene any law, rule
or regulation applicable to the Agent, the Lenders or any L/C Issuer.
(d) Delivery of Documents. The Agent shall have received on or before the Effective
Date the following, each in form and substance satisfactory to the Agent and, unless indicated
otherwise, dated the Effective Date:
(i) counterparts to this Agreement, duly executed by the Borrowers, each Guarantor
Company and the Lenders;
(ii) amended Revolving Credit Notes payable to the order of each Lender, in each case
duly executed by the Borrowers and delivered by the Borrowers;
(iii) amended and restated Schedules to this Agreement and the other Loan Documents;
(iv) the Security Agreement, duly executed by each Company;
(v) the Contribution Agreement, duly executed by each Company;
(vi) the Pledge Agreement, duly executed by each Company;
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(vii) a Joinder Agreement, duly executed by Alon LP, Xxxxxxxxx, the Parent, the
Existing Guarantors, the New Guarantors, the Lenders, and the Agent, in appropriate form as
may be necessary or, in the reasonable opinion of the Agent, desirable to join Xxxxxxxxx and
the New Guarantors to the Existing Loan Documents;
(viii) UCC financing statement amendments, in appropriate form for filing, and (B) to
the extent deemed necessary by the Agent in its sole discretion, UCC financing statements,
in appropriate form for filing, in each case 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 Documents;
(ix) UCC, tax and judgment lien search reports in all relevant jurisdictions, listing
all effective financing statements which name as debtor Xxxxxxxxx or any of the New
Guarantors (as determined by the Agent) and which are 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 Documents, together with copies of such
financing statements, none of which, except as the Agent shall otherwise agree, shall cover
any of the Collateral;
(x) each Mortgage, duly executed and in appropriate form for recording, in each case,
in the offices set forth in Schedule 5.01(d)(x) and such other offices as may be necessary
or, in the reasonable opinion of the Agent, desirable to perfect the security interests
purported to be created by such Mortgage;
(xi) a certified copy of each Term Loan Document and each legal opinion delivered
thereunder, as in effect on the date hereof, together with all exhibits and schedules
thereto;
(xii) the Intercreditor Agreement, duly executed by the Agent, the Collateral Agents
and CS;
(xiii) a copy of the resolutions adopted by the Board of Directors or equivalent
governing body of Alon LP, Xxxxxxxxx and the New Guarantors, certified as of the Effective
Date by authorized officers thereof, authorizing (x) the borrowings hereunder and the
transactions contemplated by this Agreement and the other documents, instruments and
agreements executed and/or to be delivered in connection herewith or therewith, and (y) the
execution, delivery and performance by each Loan Party of this Agreement and the other
documents, instruments and agreements executed and/or to be delivered in connection herewith
or therewith;
(xiv) a certificate of an authorized officer of Alon LP, Xxxxxxxxx and the New
Guarantors, certifying the names and true signatures of the officers of such Loan Party
authorized to sign this Agreement and the other agreements, instruments and documents to
which such Loan Party is or will be a party and the other documents to be
executed and delivered by such Loan Party in connection herewith, together with
evidence of the incumbency of such authorized officers;
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(xv) a certificate, dated as of a date (A) not more than thirty days prior to the
Effective Date, of the appropriate official(s) of the states of incorporation, and (B) not
more than one hundred and eighty days prior to the Effective Date, of the appropriate
official(s) of each state of foreign qualification of each of Alon LP, Xxxxxxxxx and the New
Guarantors, in each case, certifying as to the subsistence in good standing of, and the
payment of taxes by, such Loan Party in such states;
(xvi) a certificate from an authorized officer of Xxxxxxxxx and the New Guarantors,
certifying (A) its charter, certificate of formation or other organizational document, or
(B) its by-laws, limited liability agreement or limited partnership agreement or equivalent,
and attaching a true, correct and complete copy of such document;
(xvii) an opinion of in house counsel to the Loan Parties and Xxxxxxxxx and Xxxxxxxx
LLP or Xxxxx Day, special counsel to the Loan Parties, as to such matters as the Agent may
reasonably request;
(xviii) a certificate of the chief executive officer or the chief financial officer of
the Administrative Borrower, certifying as to the matters set forth in subsection (b) of
this Section 5.01;
(xix) a copy of the projections required by Section 7.01(a)(vi) and the Business Plan;
(xx) the Consent and Agreement, duly executed by the Agent and Xxxxx; and
(xxi) such other agreements, instruments, approvals, opinions and other documents as
the Agent may reasonably request including, without limitation, all inter-company management
services agreements among the Borrowers and the Guarantors or between the Borrowers and
third parties.
(e) Proceedings; Receipt of Documents. All proceedings in connection with the
transactions contemplated by this Agreement, and all documents incidental thereto, shall be
satisfactory to the Agent and its special counsel, and the Agent and such special counsel shall
have received all such information and such counterpart originals or certified or other copies of
such documents as the Agent or such special counsel may reasonably request.
(f) Material Adverse Effect. The Lenders shall have determined, in their sole
judgment, that no event or development has occurred after September 30, 2005 that may have a
Material Adverse Effect.
(g) Patriot Act. The Lenders shall have received all documentation and other
information requested by the Lenders, as required by bank regulatory authorities under
applicable “know your customer” and anti-money laundering rules and regulations, including the
Patriot Act.
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(h) Term Loan Facility. (i) The Term Loan Agreement shall have been executed and
delivered by each party thereto, (ii) each condition precedent to the effectiveness of the Term
Loan Agreement and the making of the Term Loans (other than the effectiveness of this Agreement)
shall have been satisfied or waived and (iii) upon the effectiveness of this Agreement and making
of the initial Revolving Credit Loan requested by the Borrowers hereunder, the Borrowers shall have
received net cash proceeds from the Term Loan of at least $400,000,000 (less fees, costs and
expenses incurred in connection with the Term Loan Documents) pursuant to the Term Loan Documents.
(i) Acquisition Documents. (i) The Acquisition Documents shall have been executed and
delivered by each party thereto, and (ii) each condition precedent to the effectiveness of the
Paramount Stock Purchase (other than the effectiveness of this Agreement) shall have been satisfied
or waived.
Section 5.02
Conditions Precedent to Revolving Credit Loans and Letters of Credit. As
a condition precedent to the Agent or any Lender making any Revolving Credit Loan (excluding the
continuation or conversion of any Revolving Credit Loan in accordance with Section 2.11 hereof), or
any L/C Issuer establishing or opening any Letter of Credit, each of the following conditions
precedent shall be fulfilled in a manner satisfactory to the Agent;
(a) Payment of Fees, Etc. The Borrowers shall have paid all fees, costs, expenses and
taxes then payable by the Borrowers pursuant to Sections 2.08, 3.03 and 12.05 hereof.
(b) Representations and Warranties; No Event of Default. The following statements
shall be true and correct, and the submission by the Administrative Borrower to the Agent of a
Notice of Borrowing with respect to a Revolving Credit Loan and the Borrowers’ acceptance of the
proceeds of such Revolving Credit Loan, or the submission by the Administrative Borrower of a
Letter of Credit Application with respect to a Letter of Credit and the issuance of such Letter of
Credit shall be deemed to be a representation and warranty by the Borrowers on the date of such
Revolving Credit Loan and the date of the issuance of such Letter of Credit that (i) the
representations and warranties contained in Section 6.01 of this Agreement and in each other Loan
Document and certificate or other writing delivered to the WC Collateral Agent, the Agent, any L/C
Issuer or any Lender pursuant hereto on or prior to the date of such Revolving Credit Loan or
Letter of Credit are true and correct on and as of the date of such Revolving Credit Loan or the
date of the issuance of such Letter of Credit as though made on and as of such date, except to the
extent that any such representation or warranty expressly relates solely to an earlier date (in
which case any such representation or warranty shall be true and correct on and as of such earlier
date); and (ii) no Event of Default or Default has occurred and is continuing or would result from
the making of the Revolving Credit Loan to be made on such date or the issuance of the Letter of
Credit to be issued on such date.
(c) Legality. The making of such Revolving Credit Loan or the issuance of such
Letter of Credit shall not contravene any law, rule or regulation applicable to the Agent, the
Lenders or the L/C Issuers, as the case may be.
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(d) Notices. Except in the case of a deemed borrowing of a Revolving Credit Loan
pursuant to Section 3.01(c), the Agent shall have received (i) in the case of a borrowing, a Notice
of Borrowing pursuant to and in accordance with Section 2.03 hereof, (ii) in the case of the
issuance of a Letter of Credit, a Letter of Credit Application pursuant to and in accordance with
Section 3.03(a) and (iii) a copy of any notices required to be delivered to the Agent pursuant to
Section 7.01(a)(xiii).
(e) Delivery of Documents. The Agent shall have received such other agreements,
instruments, approvals, opinions and other documents, each in form and substance reasonably
satisfactory to the Agent, as the Agent may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01 Representations and Warranties. Each Company (and, to the extent set
forth below, the Parent) represents and warrants as follows:
(a) Organization, Good Standing, Etc. Each of the Companies and the Parent (i) is a
corporation, limited liability company or limited partnership (as applicable) duly organized,
validly existing and in good standing under the laws of the state of its organization, (ii) has all
requisite power and authority to conduct its business as now conducted and as presently
contemplated and to make the borrowings hereunder (in the case of the Borrowers) and to consummate
the transactions contemplated by the Loan Documents and the other Transaction Documents to which it
is a party, 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.
(b) Authorization, Etc. The execution, delivery and performance by each of the
Companies and the Parent of each Loan Document and each other Transaction Document to which it is a
party, (i) have been duly authorized by all necessary corporate action, (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, or any
applicable equivalent document, 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 material contractual restriction binding on or otherwise affecting it or
any of its properties, (iii) do not and will not result in or require the creation of any Lien
(other than pursuant to any such Loan Document or Term Loan Document) upon or with respect to any
of its properties, and (iv) 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.
(c) Governmental Approvals. No authorizations, approval or consent of or other action
by, and no notice to or filing with, any Governmental Authority or other
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regulatory body is
required in connection with the due execution, delivery and performance by each Company and the
Parent of any Loan Document or other Transaction Document to which it is or will be a party or for
the validity or enforceability thereof.
(d) Enforceability of Transaction Documents. This Agreement is, and each other Loan
Document and other Transaction Document to which each Company and the Parent is or will be a party,
when delivered hereunder, will be, a legal, valid and binding obligation of such Company,
enforceable against such Company in accordance with its terms except to the extent that the
enforceability thereof may be limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect affecting generally, the enforcement of
creditors’ rights and remedies and by general principles of equity.
(e) Inventory Locations; Places of Business; Chief Executive Office. There is no
location at which a Loan Party has any Inventory (except for Inventory in transit and other
Inventory with an aggregate market value for all such Inventory not in excess of $500,000) other
than (i) those locations listed on Part A of Schedule 6.01(e) hereto and (ii) any other locations
approved in writing by the Agent pursuant to the definition of “Eligible Inventory.” Part B of
Schedule 6.01(e) hereto contains a true, correct and complete list, as of the Effective Date, of
the legal names and addresses of each storage facility at which Inventory of any Loan Party is
stored. None of the receipts received by any Loan Party from any storage facility states that the
goods covered thereby are to be delivered to bearer or to the order of a named Person or to a named
Person and such named Person’s assigns. Part C of Schedule 6.01(e) sets forth a complete and
accurate list of each location at which the books and records relating to the Inventory and
Accounts Receivables of any Company are maintained or stored. Part D of Schedule 6.01(e) sets
forth a complete and accurate list as of the date hereof of the location of the chief executive
office of each Company.
(f) Subsidiaries. Schedule 6.01(f) hereto is a complete and correct description of
the name, jurisdiction of incorporation and ownership of the outstanding Capital Stock of the
Companies and each Subsidiary of the Companies. Except as provided in Schedule 6.01(f) hereto and
except for the shares of Capital Stock of the Parent, Alon USA, any Subsidiary of Alon Interests,
and Paramount and of its Subsidiaries, all shares of such Capital Stock owned by the Loan Parties,
as indicated in such Schedule, are owned free and clear of all Liens other than Permitted Liens.
(g) Litigation. As of the Effective Date, there is no pending or, to the best of the
Companies’ knowledge threatened action, suit or proceeding affecting the Companies or any of their
Subsidiaries before any court or other Governmental Authority or any arbitrator, except as set
forth on Schedule 6.01(g) hereto and except for actions, suits and proceedings seeking money
damages of less than $1,000,000 in the aggregate. There is no pending or, to the best of the
Companies’ knowledge, threatened action, suit or proceeding affecting the Companies
or any of their Subsidiaries before any court or other Governmental Authority or any
arbitrator which may have a Material Adverse Effect.
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(h) Financial Condition.
(i) The Financial Statements, copies of which have been delivered to the Lenders,
fairly present in all material respects the financial condition of the Companies and their
Subsidiaries as at the respective dates thereof and the results of operations of the
Companies and their Subsidiaries for the fiscal periods ended on such respective dates, all
in accordance with GAAP, and since December 31, 2005, there has been no event or development
that has had or may reasonably be expected to have a Material Adverse Effect.
(ii) The Parent has heretofore furnished to the Agent and the Lenders the Business Plan
and projected pro forma balance sheets, income statements and statements of cash flow for
the period from December 31, 2006 to December 31, 2010, prepared on an annual basis, and the
Business Plan and such projections were believed at the time furnished to be reasonable,
have been prepared on a reasonable basis and in good faith by the Parent, and have been
based on assumptions believed by the Parent to be reasonable at the time made and upon the
best information then reasonably available to the Parent.
(i) Compliance with Law, Etc. Neither (i) any Borrower nor any other Company is in
violation of its charter, by-laws, limited partnership agreement or limited liability agreement (as
applicable) or (ii) any law or any material term of any agreement or instrument binding on or
otherwise affecting it or any of its properties except where, in the case of clause (ii) of this
Section 6.01(i), such violation of an instrument or agreement is not reasonably likely to result in
a Material Adverse Effect.
(j) ERISA. Schedule 6.01(j) hereto sets forth each Employee Plan and Multiemployer
Plan. Except as set forth on Schedule 6.01(j) hereto, (i) each Employee Plan is in substantial
compliance with the applicable provisions of ERISA and the Internal Revenue Code, (ii) no
Termination Event has occurred nor is reasonably expected to occur with respect to any Employee
Plan, (iii) the most recent annual report (Form 5500 Series) with respect to each Employee Plan,
including Schedule B (Actuarial Information) thereto, copies of which have been filed with the
Internal Revenue Service and delivered to the Agent, is complete and correct and fairly presents
the funding status of such Employee Plan, and since the date of such report there has been no
material adverse change in such funding status, (iv) no Employee Plan had an accumulated or waived
funding deficiency or permitted decreases or has applied for an extension of any amortization
period within the meaning of Section 412 of the Internal Revenue Code at any time during the
previous 60 months, and (v) no Lien imposed under the Internal Revenue Code or ERISA exists or is
likely to arise on account of any Employee Plan within the meaning of Section 412 of the Internal
Revenue Code at any time during the previous 60 months. Except as set forth on Schedule 6.01(j)
hereto, neither the Companies nor any of their respective ERISA Affiliates, have incurred any
withdrawal liability under ERISA with respect to any Multiemployer Plan, and the Companies are not
aware of any facts indicating that any Company or any of their respective ERISA Affiliates may in
the future incur any such withdrawal liability.
Except as required by Section 4980B of the Internal Revenue Code or as otherwise set forth on
Schedule 6.01(j) hereto, neither the Companies nor any of their respective ERISA Affiliates
maintains an employee welfare benefit plan (as defined in Section 3(1) of ERISA) which
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provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or
former employee of the Companies or any of their respective ERISA Affiliates or coverage after a
participant’s termination of employment. Neither the Companies nor any of their respective ERISA
Affiliates has incurred any liability or obligation under the Worker Adjustment and Retraining
Notification Act (“WARN”) or similar state law, which remains unpaid or unsatisfied.
(k) Taxes, Etc. All Federal, state and local tax returns and other reports required
by applicable law to be filed by the Companies or their Subsidiaries have been filed, and all
taxes, assessments and other governmental charges imposed upon the Companies or their Subsidiaries
or any property of the Companies or their Subsidiaries and which have become due and payable on or
prior to the date hereof have been paid, except (i) such filings or payments to be made by any of
the Immaterial Companies, provided that the failure by such Immaterial Companies to make
such filings or payments, either individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect or (ii) to the extent payments are contested in good faith by
proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the
non-payment thereof and with respect to which adequate reserves have been set aside for the payment
thereof.
(l) Regulations T, U and X. None of the Companies nor any of their Subsidiaries is or
will be engaged in the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulations T, U and X issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Revolving Credit Loan will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any
margin stock.
(m) Nature of Business. The Companies and their Subsidiaries (other than Alon
Logistics) are not engaged in any business other than (i) the ownership or leasing of certain of
the Fixed Assets, the manufacturing, processing, distribution and marketing of fuel, fuel
by-products, diesel, gas, asphalt and related goods and products and other businesses incidental
thereto, and (ii) the operation of convenience stores and retail gasoline stations and other
businesses incidental thereto. Alon Logistics is not engaged in any other business other than the
ownership of the Alon Logistics Notes, the Unit Consideration and incurrence of the liabilities, if
any, under the Loan Documents, the Contribution Agreement or the Indemnification Agreement and
liabilities imposed by law incidental to its existence and permitted business and activities.
Except for the Loan Parties, no Company is engaged in the sale of Hydrocarbon Products.
(n) Adverse Agreements, Etc. Neither the Companies nor any of their respective
Subsidiaries is a party to any agreement or instrument, or subject to any charter or other
organizational restriction or any judgment, order, regulation, ruling or other requirement of a
court or other Governmental Authority or regulatory body, which has or, to the best knowledge of
any Company in the future is reasonably likely to result in, a Material Adverse Effect.
(o) Investment Company Acts. None of the Companies is an “investment company” or an
“affiliated person” or “promoter” of, or “principal underwriter” of or for, an “investment
company”, as such terms are defined in the Investment Company Act of 1940, as amended.
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(p) Permits, Etc. Each Company (other than any Immaterial Company) has all material
permits, licenses, authorizations and approvals required for it lawfully to own and operate its
business.
(q) Title to Properties. Each Company (other than any Immaterial Company) has good
and marketable title to all of its personal properties and assets, and good and indefeasible title
to all of its real property assets, in all cases, free and clear of all Liens, except for Permitted
Liens.
(r) Full Disclosure. No Loan Document or schedule or exhibit thereto and, subject to
Section 6.01(h)(ii) in the case of financial projections, no certificate, report, statement or
other document or information furnished in writing by or on behalf of the Companies to the Lenders
in connection herewith or with the consummation of the transactions contemplated hereby, contains
any material misstatement of fact or omits to state a material fact or any fact necessary to make
the statements contained herein or therein not misleading in any material respect.
(s) Environmental Matters. Except as set forth on Schedule 6.01(s) hereto, (i) the
operations of the Companies and their Subsidiaries are in material compliance with all applicable
Environmental Laws except where non-compliance could not reasonably be expected to have a Material
Adverse Effect; (ii) there has been no Release at any of the properties owned or operated by any
Company or any of its Subsidiaries or a predecessor in interest, or at any disposal or treatment
facility which received Hazardous Materials generated by any Company or any of its Subsidiaries or
any predecessor in interest except, in each case, where the Release could not reasonably be
expected to have a Material Adverse Effect; (iii) no Environmental Actions have been asserted
against any Company or any of its Subsidiaries or any predecessor in interest which is reasonably
likely to have a Material Adverse Effect, nor does any Company have knowledge or notice of any
threatened or pending Environmental Action against any Company or any of its Subsidiaries or any
predecessor in interest which is reasonably likely to have a Material Adverse Effect; (iv) no
Environmental Actions have been asserted against any facilities that may have received Hazardous
Materials generated by any Company or any of its Subsidiaries or any predecessor in interest which
are reasonably likely to result in a Material Adverse Effect; and (v) the Companies have caused to
be delivered or made available to the Agent true and complete copies of all environmental reports,
studies, investigations or material correspondence regarding any Releases, violations of
Environmental Law or Environmental Costs of or by any of the Companies or any of their Subsidiaries
or any environmental conditions at any of the properties owned or leased by any of the Companies or
any of their Subsidiaries which are reasonably likely to result in a Material Adverse Effect, which
are in possession of any Company or any of its Subsidiaries or any of their agents.
(t) Schedules. All of the information which is required to be scheduled to this
Agreement is set forth on the Schedules attached hereto, is correct and accurate and does not omit
to state any information material thereto.
(u) Insurance. The Companies keep their properties adequately insured and maintain
(i) insurance to such extent and against such risks, including, flood, fire and environmental
hazards, as is customary with companies in the same or similar businesses, (ii)
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workmen’s compensation insurance in the amount required by applicable law, (iii)
public liability insurance, which shall include product liability insurance, in the amount customary with companies in the same
or similar business against claims for personal injury or death on properties owned, occupied or
controlled by them, and (iv) such other insurance as may be required by law or as may be reasonably
required in writing by the Agent.
(v) Use of Proceeds. The proceeds of the Revolving Credit Loans (i) were and shall
continue to be used for working capital in the ordinary course of business of the Borrowers and
their Subsidiaries, (ii) shall be used to pay fees and expenses in connection with this Agreement
and the transactions contemplated hereby, and (iii) for other purposes not prohibited by this
Agreement.
(w) Security Interests. The Security Documents create in favor of the WC Collateral
Agent, for the benefit of the Lenders, a legal, valid and enforceable security interest in and Lien
upon the Collateral. Each such security interest and Lien granted pursuant to a Security Document
is, and upon the filing of the UCC financing statements described in Section 5.01(e), the recording
of the Assignment For Security (Patents) and the Assignment For Security (Trademarks), referred to
in the Security Agreements, in the United States Patent and Trademark Office, the recording of the
amendments to the Mortgages referred to in Section 5.01(d)(x) in the offices set forth in Schedule
5.01(d)(x) hereto, such security interests in and Liens on the Collateral granted thereby (other
than Collateral with an aggregate market value not in excess of $500,000) shall be, perfected,
first priority security interests (subject to Permitted Liens and the priorities set forth in the
Intercreditor Agreement), and no further recordings or filings are or will be required in
connection with the creation, perfection or enforcement of such security interests and Liens, other
than (i) the filing of continuation statements in accordance with applicable law and as set forth
in the relevant Security Documents, (ii) the recording of an Assignment For Security (Patents) and
an Assignment For Security (Trademarks) pursuant to the Security Agreements in the United States
Patent and Trademark Office, with respect to after-acquired U.S. applications and registrations for
patents and trademarks, respectively, and (iii) the registration of all U.S. copyrights and the
recordation of appropriate evidence of the Security Interest in the United States Copyright Office.
(x) Solvency. After giving effect to the transactions contemplated or required to
occur by the terms of the Transaction Documents, (i) the Borrowers are, individually, and together
with its Subsidiaries, Solvent, and (ii) the Companies together with their Subsidiaries on a
consolidated basis, are Solvent.
(y) Employee and Labor Matters. (i) There is (A) no unfair labor practice complaint
pending or, to the best knowledge of any Company, threatened against any Borrower or other Company
(other than an Immaterial Company) before any Governmental Authority and
no grievance or arbitration proceeding pending or threatened against any Borrower or other
Company (other than an Immaterial Company) which arises out of or under any collective bargaining
agreement, (B) no strike, labor dispute, slowdown, stoppage or similar action or grievance pending
or threatened against any Borrower or other Company (other than an Immaterial Company) and (C) to
the best knowledge of each Company, no union representation question existing with respect to the
employees of the Borrower or any other Company (other
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than an Immaterial Company) and no union
organizing activity taking place with respect to any of the employees of any of them.
(z) Certain Transaction Documents. The Borrowers have delivered to the Agent a
complete and correct copy, as of the Effective Date, of each Acquisition Document, each Term Loan
Document, each Lease Document and the License Agreement, including all schedules and exhibits
thereto and all agreements, instruments or other documents evidencing or governing any Capital
Stock or Indebtedness issued in connection therewith. Each Acquisition Document, Term Loan
Document, Lease Document and License Agreement sets forth the entire agreement and understanding of
the parties thereto relating to the subject matter thereof, and there are no other agreements,
arrangements or understandings, written or oral, relating to the matters covered thereby. The
execution, delivery and performance of each Acquisition Document, Term Loan Document, Lease
Document and License Agreement has been duly authorized by all necessary action (including, without
limitation, the obtaining of any consent of stockholders or other holders of Capital Stock or other
Person required by law or by any applicable corporate or other organizational documents) on the
part of each Company party thereto and to the best of the Companies’ knowledge, each other Person
party thereto. No authorization or approval or other action by, and no notice to filing with or
license from, any Governmental Authority is required for such execution, delivery and performance
other than such as have been obtained on or prior to the Effective Date. Each Acquisition
Document, Term Loan Document, Lease Document and License Agreement is the legal, valid and binding
obligation of the parties thereto, enforceable against such parties in accordance with its terms.
(aa) Consummation of Transactions. (i) No Lease Document or License Agreement has
been amended or otherwise modified, and there has been no breach of any material term or condition
of any Lease Document or License Agreement, (ii) no material term of any Acquisition Document or
Term Loan Document has been amended or otherwise modified in a manner adverse to the Lenders (it
being understood and agreed that any extension of a termination or expiration date thereof shall
not be considered adverse to the Lenders), and there has been no breach of any material term under
any Acquisition Document or Term Loan Document, and (iii) all conditions precedent to each
Acquisition Document, each Term Loan Document, each Lease Document and the License Agreement, and
the consummation of the acquisition, term loan, lease and license transactions pursuant thereto,
have been fulfilled or waived, provided that such waiver does not relate to a material term
that could reasonably be expected to have an adverse effect on the Lenders.
(bb) Representations and Warranties in Documents; No Default. All representations and
warranties made by any of the Companies as set forth in the Loan Documents or the Term Loan
Documents are true and correct in all respects at the time as of which such representations were
made and on the Effective Date. No Event of Default has
occurred and is continuing and no condition exists which constitutes a Default or an Event of
Default.
(cc) Location of Bank Accounts. Schedule 6.01(cc) hereto sets forth a complete and
accurate list of all deposit and other accounts maintained by the Companies (including the Cash
Concentration Account and all Depository Accounts of the Borrowers)
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together with a description
thereof (i.e. the bank at which such deposit or other account is maintained and the account number
and the purpose thereof).
(dd) Name; Jurisdiction of Organization; Organizational ID Number; FEIN. Schedule
6.01(dd) sets forth a complete and accurate list of (i) the exact legal name of each Loan Party,
(ii) the jurisdiction of organization of each Loan Party, (iii) the organizational identification
number of each Loan Party (or indicates that such Loan Party has no organizational identification
number), and (iv) the federal employer identification number of each Loan Party.
ARTICLE VII
COVENANTS OF COMPANIES
Section 7.01 Affirmative Covenants. So long as any principal of or interest on the
Revolving Credit Loans, any Reimbursement Obligation or any other Letter of Credit Obligations
(whether or not due) shall remain unpaid or any Lender shall have any Revolving Credit Commitment
hereunder, the Companies will unless the Required Lenders shall otherwise consent in writing:
(a) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60 days after the end of each of the
first three Fiscal Quarters of the Parent in each Fiscal Year, consolidated balance sheets,
consolidated statements of income and consolidated statements of cash flow of (x) the Parent
and its Consolidated Subsidiaries and (y) Alon USA and its Consolidated Subsidiaries, in
each case, as at the end of such Fiscal Quarter; and for the period commencing at the end of
the immediately preceding Fiscal Year and ending with the end of such Fiscal Quarter,
setting forth in each case in comparative form the figures for the corresponding date or
period of the immediately preceding Fiscal Year, all in reasonable detail and (A) certified
by the chief financial officer of the Parent or Alon USA as fairly presenting, in all
material respects, the financial position and the results of operations and changes in
financial position, as of the end of such Fiscal Quarter of (x) the Parent and its
Consolidated Subsidiaries, (y) Alon USA and its Consolidated Subsidiaries, in accordance
with GAAP applied in a manner consistent with that of the most recent audited financial
statements furnished to the Lenders, subject to year end adjustments, and (B) in the case of
the financial statements of (x) the Parent and its Consolidated Subsidiaries and (z) Alon
USA and its Consolidated Subsidiaries, accompanied by a review report thereon of KPMG, LLP
or other independent certified public accountants of recognized standing selected by the
Parent and satisfactory to the Agent (it being agreed that any “Big Four” accounting firm
shall be deemed acceptable),
which report shall state that such accountants reviewed such consolidated balance
sheets, statements of income and statements of cash flow and that based on such review, such
accountants are not aware of any material modifications that should be made in such
financial statements in order for them to be in conformity with GAAP;
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(ii) as soon as available, and in any event within 90 days after the end of each Fiscal
Year of the Parent, the audited consolidated balance sheets, consolidated statements of
income and consolidated statements of stockholders’ equity and consolidated statements of
cash flow of (x) the Parent and its Consolidated Subsidiaries and (y) Alon USA and its
Consolidated Subsidiaries, in each case, as at the end of such Fiscal Year, setting forth in
comparative form the corresponding figures for the immediately preceding Fiscal Year, all in
reasonable detail and prepared in accordance with GAAP, and (in the case of the consolidated
balance sheets and statements of income, stockholders’ equity and cash flow) accompanied by
a report and an unqualified opinion, prepared in accordance with generally accepted auditing
standards, of KPMG, LLP or other independent certified public accountants of recognized
standing selected by the Parent and satisfactory to the Agent (it being agreed that any “Big
Four” accounting firm shall be deemed acceptable);
(iii) as soon as available and in any event within 30 days of the end of each Fiscal
Month, an internally prepared consolidated and consolidating balance sheets, consolidated
and consolidating statements of income and consolidated and consolidating statements of cash
flow for such Fiscal Month of (x) the Parent and its Consolidated Subsidiaries and (y) Alon
USA and its Consolidated Subsidiaries, in each case, for such Fiscal Month and for the
period from the beginning of such Fiscal Year to the end of such Fiscal Month, all in form
and detail consistent with that of the most recent monthly financial statements furnished to
the Agent prior to the date hereof and certified by the chief financial officer of the
Parent or Alon USA, as appropriate, as fairly presenting, in all material respects, the
financial position of the Parent and its Consolidated Subsidiaries and Alon USA and its
Consolidated Subsidiaries, in each case, as of the end of such Fiscal Month and the results
of operations and changes in financial position of the Parent and its Consolidated
Subsidiaries and Alon USA and its Consolidated Subsidiaries, in each case, for such Fiscal
Month, in accordance with GAAP applied in a manner consistent with that of the most recent
audited financial statements furnished to the Agent, subject to normal year end audit
adjustments and the absence of footnotes;
(iv) simultaneously with the delivery of the financial statements required by clauses
(i), (ii) and (iii) of this Section 7.01(a), a certificate of the chief financial officer of
the Parent or Alon USA, as appropriate, stating (a) that such officer is familiar with the
provisions of this Agreement and the other Loan Documents and has made or caused to be made
under his supervision a review of the condition and operations of the Companies and their
Subsidiaries during the period covered by such financial statements with a view to
determining whether the Companies and their Subsidiaries were in compliance with all of the
provisions of such Loan Documents at the times such compliance is required by the Loan
Documents, and that such review has not disclosed, and such officer has no knowledge of, the
existence during such period of an Event of Default or Default or, if an Event of Default or such Default existed,
describing the nature and period of existence thereof and the action which the Companies and
their Subsidiaries propose to take or took with respect thereto and (b) a schedule showing
the calculations specified in Section 7.02(i) of this Agreement;
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(v) on the 15th day of each month, a schedule, in form and substance
reasonably satisfactory to the Agent, containing actual information as of the
30th day of the preceding month, certified by the chief financial officer of the
Administrative Borrower, containing a breakdown of each Loan Party’s Inventory by amount and
valued at cost (which shall include dollar valuation by location) and storage facility and
production facility location, appropriately completed with information reasonably
satisfactory to the Agent, and incorporating all appropriate month-end adjustments;
(vi) (A) on or before December 31 of each calendar year, financial projections for (x)
the Parent and its Subsidiaries and (y) Alon USA and its Subsidiaries, each in form and
substance reasonably satisfactory to the Agent, for the one-year period commencing on
January 1 of the succeeding calendar year prepared on a monthly basis through December 31 of
such succeeding calendar year, and (B) on or before July 1 of each calendar year, updated
financial projections, in form and substance reasonably satisfactory to the Agent, for the
remaining six (6) month period in such year for (x) the Parent and its Subsidiaries and (y)
Alon USA and its Subsidiaries, all such financial projections to be reasonable, to be
prepared on a reasonable basis and in good faith, and to be based on assumptions believed by
the Companies to be reasonable at the time made and from the best information then available
to the Companies;
(vii) promptly upon their becoming available, a copy of (A) all consultants’ reports,
investment bankers’ reports, accountants’ management letters, business plans and similar
documents, (B) all reports, financial statements or other information delivered by any of
the Companies, (C) all reports, proxy statements, financial statements and other information
generally distributed by any Company to its creditors or the financial community in general,
and (D) any audit or other reports submitted to the Company by independent accountants in
connection with any annual, interim or special audit;
(viii) as soon as available and in any event within 15 days after the end of each
month, a report, in form and substance reasonably satisfactory to the Agent, setting forth a
summary of the economic terms of each Hedging Agreement to which any Company is a party,
including the obligations of such Company under such Hedging Agreement as of the end of such
month, provided that such report shall only be required to the extent the aggregate
notional amount of all such Hedging Agreements is greater than or equal to $20,000,000;
(ix) as soon as available and, in any event, no later than on the 15th day of each
month (A) a Borrowing Base Certificate containing actual information as of the 30th day of
the preceding month and setting forth and certifying as to (1) the calculation of the
Borrowing Base, (2) Availability, (3) the then current Blended West
Texas Crude Oil Price and (4) the then current Base Production Level, (B) an aging
report for each Borrower’s Accounts Receivable current as of the close of business on the
preceding Business Day and (C) a detailed summary of the accounts payable of each Company,
current as of the close of business on the preceding Business Day, in each case
appropriately completed with information reasonably satisfactory to the Agent,
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incorporating all appropriate adjustments. In addition, if the Agent or the Required Lenders reasonably
believe that Availability may be less than zero, promptly (but in any event within five
days) after the written request of the Agent or the Required Lenders (but not more than two
times per month), the Administrative Borrower will provide an additional Borrowing Base
Certificate containing actual information as of a recent date, provided that the
Administrative Borrower may instead elect to provide to the Agent and the Lenders with (x)
total Inventory, (y) total Accounts Receivable (including an aging thereof) and (z) total
cash (including a breakdown as to where cash is held), and the Agent and the Lenders may
utilize such information to calculate the Borrowing Base;
(x) promptly after submission to any Government Authority, (A) all material documents
and information furnished to such Government Authority and (B) a copy of the cover letter
and a summary of all documents and information furnished to such Governmental Authority in
connection with any investigation of any Loan Party other than routine inquiries by such
Governmental Authority; the Companies agree promptly to furnish copies of any documents or
information described in any such summary and to furnish additional copies of such
submissions to any consultant or adviser to the Lenders or the Agent, in each case as the
Agent may direct;
(xi) as soon as possible and in any event within five days after the occurrence of an
Event of Default or Default, or a Material Adverse Effect, the written statement of the
chief executive officer or the chief financial officer of the Parent, setting forth the
details of such Event of Default, Default or Material Adverse Effect and the action which
the Companies and their Subsidiaries propose to take with respect thereto;
(xii) (A) as soon as possible and in any event (1) within 30 days after the Companies
or any of their respective ERISA Affiliates knows or has reason to know that any Termination
Event described in clause (i) of the definition of Termination Event with respect to any
Employee Plan has occurred, (2) within 10 days after the Companies or any of their
respective ERISA Affiliates knows or has reason to know that any other Termination Event
with respect to any Employee Plan has occurred, or (3) within 10 days after any of the
Companies or any of their respective ERISA Affiliates knows or has reason to know that an
accumulated funding deficiency has been incurred or an application has been made to the
Secretary of the Treasury for a waiver or modification of the minimum funding standard
(including installment payments) or an extension of any amortization period under Section
412 of the Internal Revenue Code with respect to an Employee Plan, a statement of the chief
financial officer of the Parent or Alon USA setting forth the details of such occurrence and
the action, if any, which the Companies or any of their respective ERISA Affiliates proposes
to take with respect thereto, (B) promptly and in any event within two Business Days after
receipt thereof by the Companies or any of their respective ERISA Affiliates from the
Pension Benefit Guaranty Corporation, copies of the notice received by the Companies or any of their
respective ERISA Affiliates of the Pension Benefit Guaranty Corporation’s intention to
terminate any Plan or to have a trustee appointed to administer any Plan, (C) promptly and
in any event within 30 days after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the annual report (Form 5500
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Series) with respect to each Employee Plan and Multiemployer Plan, (D) promptly and in any event
within ten days after receipt thereof by the Companies or any of their respective ERISA
Affiliates from a sponsor of a Multiemployer Plan or from the Pension Benefit Guaranty
Corporation, a copy of the notice received by the Companies or any of their respective ERISA
Affiliates concerning the imposition or amount of withdrawal liability under Section 4202 of
ERISA or indicating that such Multiemployer Plan may enter reorganization status under
Section 4241 of ERISA, and (E) promptly and in any event within 10 Business Days after any
of the Companies or any of their respective ERISA Affiliates sends notice of a plant closing
or mass layoff (as defined in WARN) to employees, copies of each such notice sent by the
Borrowers, the Guarantors or any of their respective ERISA Affiliates;
(xiii) as soon as available and in any event (A) within 5 Business Days after receipt
or delivery thereof, copies of any material notices that a Borrower receives from or sends
to any of its licensors in connection with the License Agreement that any Company receives
or sends in respect of the License Agreement or Lease Document, (B) within 5 Business Days
after receipt thereof, copies of any notice of the occurrence of a default or event of
default or other material notice received by any Company under any Term Loan Document, not
less than 5 Business Days prior to the effective date thereof, copies of any amendments,
modifications, waivers or other changes to any License Agreement or, Lease Document or Term
Loan Document, and (C) any written notice received by Alon LP or any Subsidiary from Xxxxx,
or provided by the Alon LP or any Subsidiary to Xxxxx, pursuant to any P&T Contract that (1)
relates to a default or alleged default by any party under any such Agreement; (2) could
reasonably be expected to result in (x) the termination or suspension of the P&T Agreement
or (y) a Material Adverse Effect; or (iii) is otherwise material to the Pipeline
Transactions;
(xiv) promptly after the commencement thereof but in any event not later than five days
after service of process with respect thereto on, or the obtaining of knowledge thereof by,
any of the Companies, notice of each action, suit or proceeding before any court or other
Governmental Authority or other regulatory body or any arbitrator which if adversely
determined could have a Material Adverse Effect;
(xv) promptly after the commencement thereof but in any event not later than five days
after service of process with respect thereto on, or the obtaining of knowledge thereof by,
any of the Companies, notice of any material Environmental Actions against the Loan Parties
or any of their Subsidiaries which are reasonably likely to result in a Material Adverse
Effect;
(xvi) on or before the date (the “delivery date”) that any financial statement, report,
notice or other document is required to be delivered to the Term Loan Lenders pursuant to
the Term Loan Agreement, a copy of such financial statement, report, notice or other document (unless such financial statement, report, notice or
other document is required to be delivered to the Agent pursuant to another provision of
Section 7.01(a) of this Agreement);
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(xvii) promptly and in any event within five days after any Company is notified by the
Term Loan Agent that, or any Company gives notice to the Term Loan Agent that, or any
Company otherwise learns or has reason to believe that, (A) the Term Loan Agreement shall be
terminated for any reason or (B) CS shall cease to be the Term Loan Agent for any reason, a
statement setting forth the reason and probable effective date therefor;
(xviii) as soon as possible and in any event within five Business Days after receipt
thereof, a copy of any Phase I environmental audit and Phase II environmental audit
conducted at the request of the Term Loan Agent or any Term Loan Lender; and
(xix) promptly upon request, such other information concerning the condition or
operations, financial or otherwise, of any of the Companies that the Agent from time to time
may reasonably request.
(b) Subsidiaries, Etc.
(i) Cause each Subsidiary of a Company (other than (A) a Subsidiary of Alon Interests,
(B) any direct Subsidiary of the Parent and any Subsidiary of any direct Subsidiary of the
Parent (other than Subsidiaries of Alon USA) and (C) Paramount and any of its Subsidiaries)
not in existence on the Effective Date to execute and deliver to the Lender promptly and in
any event within five Business Days after the formation or acquisition thereof (1) a Joinder
Agreement, substantially in the form of Exhibit G hereto and otherwise in form and substance
satisfactory to the Agent, pursuant to which such Subsidiary shall be made a party to this
Agreement as a Company and Guarantor, (2) a supplement to the Security Agreement, (3) if
such Subsidiary has any Subsidiaries, a supplement Pledge Agreement together with, to the
extent not delivered to the Term Loan Agent in accordance with the Intercreditor Agreement,
(x) certificates, if any, evidencing all of the Capital Stock of any Person owned by such
Subsidiary, (y) undated stock powers executed in blank with signature guaranteed, and (z)
such opinion of counsel and such approving certificate of such Subsidiary as the Agent may
reasonably request in respect of complying with any legend on any such certificate or any
other matter relating to such Capital Stock, (4) one or more Mortgages creating on the real
property of such Subsidiary a perfected priority lien, subject to any Permitted Liens, a
Title Insurance Policy covering such real property, and if reasonably required by the Agent
a current survey thereof and a surveyor’s certificate, each in form and substance
satisfactory to the Agent, together with such other agreements, instruments and documents as
the Agent may reasonably require, unless such real property is subject to a Permitted Lien,
the mortgage or other security document governing such Permitted Lien prohibits the creation
of a lien on such real estate in favor of the Agent and after reasonable efforts such
Company cannot obtain the waiver of such prohibition, and (5) such other agreements,
instruments, approvals, legal opinions or other documents
reasonably requested by the Agent in order to create, perfect, establish the priority
(in accordance with the terms of the Intercreditor Agreement) of or otherwise protect any
Lien purported to be covered by any such Security Document to effect the intent that such
Subsidiary shall become bound by all of the terms, covenants and agreements
73
contained in the Loan Documents and that all property and assets of such Subsidiary shall become Collateral
for the Obligations; and
(ii) cause each owner of the Capital Stock of any such Subsidiary to execute and
deliver promptly and in any event within five Business Days after the formation or
acquisition of such Subsidiary a supplement Pledge Agreement, together with, to the extent
not delivered to the Term Loan Agent in accordance with the Intercreditor Agreement (A)
certificates (if any) evidencing all of the Capital Stock of such Subsidiary, (B) undated
stock powers or other appropriate instruments of assignment executed in blank with signature
guaranteed, (C) such opinion of counsel and such approving certificate of such Subsidiary as
the Agent may reasonably request in respect of complying with any legend on any such
certificate or any other matter relating to such Capital Stock and (D) such other
agreements, instruments, approvals, legal opinions or other documents requested by the
Agent.
(c) Compliance with Laws, Etc. Comply, and cause each of their respective
Subsidiaries to comply, in all material respects with all applicable material laws, rules,
regulations and orders (including, without limitation, ERISA and Environmental Laws), such
compliance to include, without limitation, (i) paying before the same become delinquent all taxes,
assessments and governmental charges or levies imposed upon it or upon its income or profits or
upon any of its properties, and (ii) paying all lawful claims which if unpaid might become a Lien
upon any of its properties, except to the extent contested in good faith by proper proceedings
which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and
with respect to which adequate reserves have been set aside for the payment thereof.
(d) Preservation of Existence, Etc. Maintain and preserve, and cause each of their
Subsidiaries to maintain and preserve, its existence, rights and privileges, and become or remain
duly qualified and in good standing in each jurisdiction in which the character of the properties
owned or leased by them or in which the transaction of their business makes such qualification
necessary except (i) where such failure to qualify is not reasonably likely to result in a Material
Adverse Effect or (ii) to the extent expressly permitted herein.
(e) Keeping of Records and Books of Account. Keep, and cause each of their
Subsidiaries to keep, adequate records and books of account, with complete entries made in
accordance with GAAP.
(f) Inspection Rights. Permit, and cause each of their Subsidiaries to permit, the
Agent, or any agents or representatives thereof at any time and from time to time and in any event
at least annually upon reasonable notice to the Administrative Borrower, during normal business
hours to examine and make copies of and abstracts from the records and books of account of the
Companies, to visit and inspect their properties, to conduct audits and field examinations, Phase I
and Phase II Environmental Site Assessments, physical counts, valuations
or examinations and to discuss their affairs, finances and accounts with any of the directors,
officers, managerial employees, independent accountants or other representatives thereof (all at
the cost and expense of the Borrowers), provided that (i) the foregoing shall be in a
manner so as
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to not unduly disrupt the business of any Company and (ii) such notice shall not be
required if an Event of Default has occurred and is continuing.
(g) Maintenance of Properties, Etc. Except as may be expressly permitted herein,
maintain and preserve, other than with respect to any Immaterial Company, all of their properties
which are necessary or useful in the proper conduct of their business in good working order and
condition, ordinary wear and tear excepted, and comply, in all material respects, other than with
respect to any Immaterial Company, at all times with the provisions of all leases to which each of
them is a party as lessee or under which each of them occupies property, so as to prevent any loss
or forfeiture thereof or thereunder.
(h) Maintenance of Insurance. Maintain for the Companies and their Subsidiaries, with
responsible and reputable insurance companies or associations, insurance (including, without
limitation, comprehensive general liability and property and casualty insurance and including
environmental impairment liability insurance sufficient to cover any reasonably anticipated
Environmental Costs, with the Lenders and the WC Collateral Agent listed as an additional insured
for the benefit of the Lenders and the WC Collateral Agent) with respect to their properties and
business, in such amounts and covering such risks, as the Agent may require and in any event as is
required by any Governmental Authority or other regulatory body having jurisdiction with respect
thereto and as is carried generally in accordance with sound business practice by companies in
similar businesses similarly situated. The Borrowers shall maintain for the benefit of the WC
Collateral Agent and the Lenders, and shall not cancel or terminate, any existing fully paid
secured lender liability insurance policy.
(i) Environmental. Shall, and shall cause each Subsidiary to (i) keep any property
either owned or operated by it free of any Liens arising under any Environmental Laws; (ii) comply
in all material respects with Environmental Laws and provide to the Agent documentation of such
compliance which the Agent reasonably requests; (iii) notify the Agent of any material Release of a
Hazardous Material and take any Remedial Actions required to xxxxx said Release; and (iv) promptly
provide the Agent with written notice within ten (10) days of the receipt of any material
Environmental Action or notice that a Environmental Action will be filed against any of the
Companies or their Subsidiaries which could reasonably be expected to result in a Material Adverse
Effect.
(j) Further Assurances.
(i) Shall, and shall cause each Subsidiary to, do, execute, acknowledge and deliver, at
the sole cost and expense of the Borrowers all such further acts, deeds, conveyances,
assignments, estoppel certificates, financing statements, notices of assignment, transfers
and assurances as the Agent may reasonably require from time to time in order to (i) carry
out more effectively the purposes of this Agreement and the other Loan Documents (including,
without limitation, any requests within 60 days from the Effective Date pertaining to the
Agent’s efforts to carry out more effectively the purposes of this Agreement and the other
Loan Documents with respect to joining Xxxxxxxxx as a Borrower), (ii) subject to valid and perfected first priority Liens on
all the Collateral (subject to the Permitted Liens and the priority of the Collateral
Agents’ security interest as established in accordance with the Intercreditor Agreement),
(iii)
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perfect and maintain the validity, effectiveness and priority of any of the Loan
Documents and the Liens intended to be created thereby (subject to the Permitted Liens and
in accordance with the Intercreditor Agreement), and (iv) better assure, convey, grant,
assign, transfer and confirm unto the Agent, the WC Collateral Agent, the Lenders and the
L/C Issuer the rights now or hereafter intended to be granted to the Agent, the WC
Collateral Agent, the Lenders and the L/C Issuer under this Agreement, any Loan Document or
any other instrument under which the Companies and their respective Subsidiaries may be or
may hereafter become bound for carrying out the intention or facilitating the performance of
the terms of the Agreement. In furtherance of the foregoing, to the maximum extent
permitted by applicable law, each Company (A) authorizes the Agent to execute any such
agreements, instruments or other documents in such Company’s name and to file such
agreements, instruments or other documents in any appropriate filing office, (B) authorizes
the Agent to file any financing statement required hereunder or under any other Loan
Document, and any continuation statement or amendment with respect thereto, in any
appropriate filing office without the signature of such Company, and (C) ratifies the filing
of any financing statement, and any continuation statement or amendment with respect
thereto, filed without the signature of such Company prior to the date hereof.
(ii) Within 60 days from the Effective Date, shall, and shall cause each Subsidiary to,
do, execute, acknowledge and deliver, at the sole cost and expense of the Borrowers all such
further acts, deeds, conveyances, assignments, estoppel certificates, financing statements,
notices of assignment, other documentation, transfers and assurances as the Agent may
require in connection with the addition of Xxxxxxxxx as a Borrower hereunder and the New
Guarantors as Guarantors hereunder.
(k) Real Estate. If at any time after the Effective Date, any Company (other than
Alon Interests) acquires any fee interest, easement or leasehold in real property, such Company
shall promptly execute, deliver and record, (i) in the case of a fee interest and in the case of a
leasehold interest where the applicable lease permits collateral assignments to third parties
without the consent of the landlord, a second priority mortgage, in form and substance reasonably
satisfactory to the Agent, in favor of the WC Collateral Agent covering such real property
interest, in form and substance reasonably satisfactory to the Agent, and provide such WC
Collateral Agent with a title commitment and insurance policy issued by the Title Company insuring
the second priority lien of said mortgage, deed of trust or deed to secure debt in such real
property encumbered thereby in an amount reasonably acceptable to the Agent and subject only to
Permitted Liens and to such other exceptions as are reasonably satisfactory to the Agent, and if
reasonably required by the Agent a current survey of such real property with a satisfactory
surveyor’s certificate thereon, a satisfactory legal description of such property and an opinion
from special counsel to the Companies, each in form and substance reasonably satisfactory to the
Agent and as to such matters as the Agent may reasonably request, and, to the extent necessary
under applicable law, Uniform Commercial Code financing statements covering fixtures, in each case
appropriately completed and duly executed, for filing in the appropriate county land office and
evidence that the Companies shall have paid to the Title Company all expenses of the Title
Company in connection with the issuance of such reports and in addition shall have paid to the
Title Company an amount equal to the recording and stamp taxes (including mortgage recording
taxes), if any, payable in connection with recording such mortgages in the appropriate county
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land offices, each in form and substance reasonably satisfactory to the Agent, and (ii) in the case of a
leasehold interest where the applicable lease does not permit collateral assignments to third
parties without the consent of the landlord, if so required by the WC Collateral Agent, a negative
pledge instrument in favor of the WC Collateral Agent, in suitable form for recording (unless the
applicable lease would not permit such instrument to be recorded) and in form and substance
satisfactory to the Agent. In addition, if any Event of Default has occurred and is continuing,
the Companies shall, within 30 days after a request by the Agent, cause to be performed, at the
Companies’ cost and expense, with respect to any Fixed Asset, a Phase I environmental audit with
respect to any Fixed Asset (and, if reasonably requested by the Agent based upon the results of
such Phase I Audit, a Phase II Audit), in form and substance and by an independent firm reasonably
satisfactory to the Agent.
(l) Change in Collateral; Collateral Records. Give the Agent not less than thirty
days’ prior written notice of any change in the location of any Collateral, other than to
locations, that as of the date hereof are known to the Agent and at which the WC Collateral Agent
has filed financing statements and otherwise fully perfected its Liens thereon, other than with
respect to Collateral with an aggregate market value not in excess of $500,000. The Borrowers
shall also advise the Agent promptly, in sufficient detail, of any material adverse change relating
to the type, quantity or quality of the Collateral or the Lien granted thereon. The Borrowers
agree to execute and deliver to the Agent for the benefit of the Lenders from time to time, solely
for the Agent’s convenience in maintaining a record of Collateral, such written statements and
schedules as the Agent may reasonably require, designating, identifying or describing the
Collateral. The Borrowers’ failure, however, to promptly give the Agent such statements or
schedules shall not effect, diminish or modify or otherwise limit the WC Collateral Agent’s
security interest in the Collateral.
(m) Borrowing Base. Maintain all Revolving Credit Loans and Letter of Credit
Obligations in compliance with the then current Borrowing Base.
(n) Cash Management. (i) Except as otherwise set forth in this Section 7.01(m), cause
all cash and all proceeds from Accounts Receivable and the sale of Inventory to be deposited each
Business Day into Depository Accounts that are subject to Depositary Account Agreements, (ii) cause
all funds in such Depository Accounts to be transferred by automated clearing house transfer or
wire transfer into the Cash Concentration Account at least once per week, (iii) authorize, and the
Companies do hereby authorize, the Agent to cause all cash to be sent by wire transfer to the Agent
Account at the discretion of the Agent and at times or intervals as the Agent may elect,
provided that if the Cash Concentration Account Bank does not receive directions from the
Agent to transfer such cash to its Agent’s Account on or before Thursday of any week, the Cash
Concentration Account Bank shall be instructed to transfer such cash to such Borrower’s operating
account on the immediately following Friday, (iv) authorize, and the Companies do hereby authorize,
the Agent to cause all funds transferred to the Agent Account to be credited to the Loan Account
and applied to reduce the Obligations outstanding from time to time in accordance with Section 2.07
hereof, (v) take all such actions as the Agent deems necessary or advisable to send all cash, all
proceeds from the sale of Inventory, all remittances or other proceeds of Collateral to the Agent Account to be applied to the Obligations as
described in clauses (i) through (v) above, (vi) on or before the Effective Date, deliver to the
Agent (A) Depository Account Agreements executed by the relevant Loan Party and each Depository
Bank,
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and (B) a Cash Concentration Account Agreement executed by the Borrowers and the Cash
Concentration Account Bank, (vi) take such other actions as the Agent deems necessary or advisable
to grant to the Agent dominion and control over the funds in the Depository Accounts and the Cash
Concentration Account, (vii) notify the Agent in writing not later than five Business Days prior to
the establishment of any new Depository Accounts, and (viii) cause to be delivered to the Agent,
prior to the deposit of any funds in such new Depository Account, a Depository Account Agreement,
in form and substance satisfactory to the Agent, duly executed by the Borrowers and such new
Depository Account Bank. Notwithstanding the foregoing, the Borrowers may maintain operating
accounts with commercial banks located near the Refineries with aggregate deposits not in excess of
$1,000,000 at any time (for all such accounts in the aggregate).
(o) Immaterial Subsidiaries. If at any time the gross book value of the assets of the
Immaterial Companies shall exceed 25% of the consolidated assets of Alon USA and its Consolidated
Subsidiaries as of the most recent fiscal quarter in respect of which financial statements have
been delivered pursuant to Section 7.01, the Borrowers shall designate sufficient Immaterial
Companies as “Material Companies” to eliminate such condition, such designation to occur
not later than the 20th day after the earlier of (i) the delivery pursuant to Section 7.01(a)(i) or
(ii) of financial statements of Alon USA and its Consolidated Subsidiaries for the period during
which the condition requiring such designation shall first have existed and (ii) in the event such
condition exists as a result of an acquisition, disposition or transfer to any Subsidiary of
material assets or Capital Stock, the date of such acquisition, disposition or transfer (and if the
Borrowers shall fail to designate such Subsidiaries by such time, Immaterial Companies shall
automatically become Material Companies in descending order based on the amounts of their
consolidated assets until such condition shall have been eliminated). Subsidiaries designated as
or otherwise becoming Material Companies pursuant to the preceding sentence shall for all purposes
of this Agreement cease to be Immaterial Companies and constitute Material Companies.
Section 7.02 Negative Covenants. So long as any principal of or interest on the
Revolving Credit Loans, any Reimbursement Obligation or any Letter of Credit Obligations (whether
or not due) shall remain unpaid or any Lender shall have any Revolving Credit Commitment hereunder,
the Companies will not without the prior written consent of the Required Lenders:
(a) Liens, Etc. Create or suffer to exist, or permit any of their Subsidiaries (other
than Paramount and its Subsidiaries and Subsidiaries of Alon Interests) to, create or suffer to
exist, any Lien upon or with respect to any of their properties, rights or other assets, whether
now owned or hereafter acquired, or assign or otherwise transfer, or permit any of its Subsidiaries
(other than Paramount and its Subsidiaries and Subsidiaries of Alon Interests) to assign or
otherwise transfer, any right to receive income, other than the following (each, a “Permitted
Lien”):
(i) Liens created pursuant to the Loan Documents;
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(ii) Liens for taxes, assessments or governmental charges or levies to the extent that
the payment thereof shall not be required by Section 7.01(c) hereof;
(iii) Liens created by operation of law (other than Liens created under Environmental
Laws), such as materialmen’s liens, mechanics’ liens and other similar Liens, arising in the
ordinary course of business and securing claims the payment of which shall not be required
by Section 7.01(c) hereof;
(iv) deposits, pledges or Liens (other than Liens arising under ERISA or the Internal
Revenue Code) securing (A) obligations incurred in respect of workers’ compensation,
unemployment insurance or other forms of governmental insurance or benefits, (B) the
performance of bids, tenders, leases, contracts (other than for the payment of money) and
statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent
such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of
business and secure obligations which are not past due;
(v) easements, rights-of-way, zoning and similar restrictions and other similar charges
and encumbrances on the use of real property and minor irregularities in the title thereto
which do not (A) secure obligations for the payment of money or (B) materially impair the
value of such property or materially impair the use thereof by any of the Companies or any
of their Subsidiaries in the normal conduct of such Person’s business;
(vi) Liens created under the Term Loan Documents, subject to the provisions of this
Agreement and the Intercreditor Agreement; provided, that such Liens shall secure only those
obligations which they secure on the Effective Date and modifications, extensions, renewals
and replacements thereof permitted under the Intercreditor Agreement and hereunder; and
(vii) so long as no Event of Default has occurred or is continuing or will result from
the creation or existence of any such Liens and such Liens do not encumber or otherwise
cover any of the Collateral securing the Obligations hereunder and under the other Loan
Documents (other than with respect to the License Agreement), other Liens (whether in one
transaction or in a series of related transactions) (A) securing obligations, actual or
contingent, in an aggregate amount not to exceed $25,000,000 at any time outstanding, or (B)
securing obligations, actual or contingent, in an aggregate amount greater than $25,000,000,
provided that prior to the creation or existence or incurrence of any such Lien the
Borrowers deliver to the Agent a certificate of a Responsible Officer of the Administrative
Borrower, certifying that (I) immediately before and after the creation or incurrence of any
such Liens, no Event of Default has occurred or is continuing or will result from the
creation or incurrence of any such Liens, (II) as of the last Fiscal Quarter for which
financial statements were delivered to the Lenders pursuant to Section 7.01(a)(i), on a pro
forma basis after giving effect to such creation or incurrence of Indebtedness, Liens or
other obligations as if it had occurred at the beginning of the most recent fiscal period of
four Fiscal Quarters for which such
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financial statements were delivered, Alon USA and its Consolidated Subsidiaries would
be in compliance with the covenants contained in Section 7.02(i) hereof (which certification
shall set forth in reasonable detail the Borrowers’ calculations, shall be prepared both on
a reasonable basis and in good faith and based on assumptions believed by the Borrowers to
be reasonable at the time made), and (III) such Liens do not encumber the Collateral
securing the Obligations hereunder and under the other Loan Documents.
(b) Indebtedness. Create, incur, assume, guarantee or suffer to exist, or otherwise
become or remain liable with respect to, or permit any of their Subsidiaries (other than Paramount
and its Subsidiaries and any Subsidiaries of Alon Interests) to create, incur, assume, guarantee or
suffer to exist, or otherwise become or remain liable with respect to, any Indebtedness, other than
Indebtedness pursuant to the Term Loan Documents or the Acquisition Documents (each an
“incurrence”), (i) if an Event of Default has occurred or is continuing or will result from the
incurrence of any such Indebtedness, (ii) if such Indebtedness is owed to an Affiliate unless such
Affiliate is a party to the Subordination Agreement (Intercompany), or (iii) in an aggregate
principal amount in excess of $25,000,000 (whether in one transaction or in a series of related
transactions), unless prior to the incurrence of such Indebtedness, the Borrowers deliver to the
Agent a certificate of a Responsible Officer of the Administrative Borrower, certifying that (A)
immediately before and after the incurrence of any such Indebtedness, no Event of Default has
occurred or is continuing or will result from the incurrence of any such Indebtedness and (B) as of
the last Fiscal Quarter for which financial statements were delivered to the Lenders pursuant to
Section 7.01(a)(i), on a pro forma basis after giving effect to such incurrence of Indebtedness, as
if it had occurred at the beginning of the most recent fiscal period of four Fiscal Quarters for
which such financial statements were delivered, Alon USA and its Consolidated Subsidiaries would be
in compliance with the covenants contained in Section 7.02(i) hereof (which certification shall set
forth in reasonable detail the Borrowers’ calculations, shall be prepared both on a reasonable
basis and in good faith and based on assumptions believed by the Borrowers to be reasonable at the
time made).
(c) Merger, Consolidation, Sale of Assets, Etc.
(i) Merge or consolidate with any Person, or permit any of their Subsidiaries, other
than Paramount and its Subsidiaries and Subsidiaries of Alon Interests, to merge or
consolidate with any Person (each a “Merger”), unless (A) no Change of Control will
result from such Merger, (B) no Event of Default exists immediately prior to such Merger or
will result therefrom, (C) in any Merger involving a Borrower, such Borrower shall be the
surviving Person and the surviving Person shall expressly assume all Obligations of the
Borrowers under this Agreement and the other Loan Documents pursuant to such agreements and
other documents, each in form and substance reasonably satisfactory to the Agent, as the
Agent may reasonably require, (D) the WC Collateral Agent’s security interest in all of the
IDB Revolving Facility First Lien Collateral (as defined in the Intercreditor Agreement)
shall remain a perfected first priority security, securing the Obligations, free and clear
of all other Liens (other than Permitted Liens), and the Companies shall have taken all
actions necessary or reasonably requested by the WC Collateral Agent to maintain or protect
the WC Collateral Agent’s security interest, and (E) in the event that the aggregate net
book value of the assets of
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such Person and its Consolidated Subsidiaries subject to and after giving effect to
such Merger (whether in one transaction or a series of related transactional) exceeds
$25,000,000, the Borrowers deliver to the Agent a certificate of a Responsible Officer of
the Administrative Borrower, certifying that (I) immediately before and after giving effect
to any such Merger, no Event of Default has occurred or is continuing or will result from
any such Merger, (II) as of the last Fiscal Quarter for which financial statements were
delivered pursuant to Section 7.01(a)(i), on a pro forma basis after giving effect to any
such Merger as if it had occurred at the beginning of the most recent fiscal period of four
Fiscal Quarters for which such financial statements were delivered, Alon USA and its
Consolidated Subsidiaries would be in compliance with the covenants contained in Section
7.02(i) hereof, (III) no Change of Control shall occur as a result of and after giving
effect to such Merger and (IV) as of the date of the last Borrowing Base Certificate
delivered to the Agent pursuant to Section 7.01(a)(ix), on a pro forma basis after giving
effect to such Merger as if it had occurred as of the date of such Borrowing Base
Certificate, the sum of (x) the aggregate principal amount of all outstanding Revolving
Credit Loans, plus (y) the outstanding amount of all Letter of Credit Obligations does not
exceed the Borrowing Base (which, with respect to the certifications in clause (II) and
(IV), shall set forth in reasonable detail the Borrowers’ calculations, shall be prepared
both on a reasonable basis and in good faith and based on assumptions believed by the
Borrowers to be reasonable at the time made), then such Merger shall be permitted;
provided further, however, that (i) any Company may consummate a Merger
pursuant to the Acquisition Documents and (ii) any Company (other than the Borrowers) may be
merged into any other Company (other than the Borrowers) or another such Subsidiary (other
than the Borrowers) that is a Guarantor Company, or may consolidate with another such
Subsidiary that is a Guarantor Company, so long as (A) no other provision of this Agreement
would be violated thereby, (B) the Companies give the Agent at least 60 days’ prior written
notice of such merger or consolidation and which entity will survive in any such merger or
consolidation and (C) no Event of Default shall have occurred and be continuing either
before or after giving effect to such transactions.
(ii) Sell, assign, lease, pledge, encumber or otherwise transfer or dispose of, or
permit any of its Subsidiaries, other than Paramount and its Subsidiaries and Subsidiaries
of Alon Interests, to sell, assign, lease, pledge, encumber or otherwise transfer or dispose
of, whether in one transaction or in a series of related transactions, any of its
properties, rights or other assets whether now owned or hereafter acquired to any Person
(each a “Disposition”), provided that:
(A) the Loan Parties may sell Inventory in the ordinary course of business;
(B) the Fixed Assets shall be leased to Alon LP in accordance with the Lease Documents
and may be encumbered in accordance with Section 7.02(a); and
(C) the Companies may make any other Disposition, provided that (I) no Event of
Default has occurred or is continuing or will result from any such Disposition, (II) Big
Spring Refinery is not the subject of any such
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Disposition, (III) the WC Collateral Agent’s security interest in all of the IDB
Revolving Facility First Lien Collateral (as defined in the Intercreditor Agreement) shall
remain a perfected first priority security, securing the Obligations, free and clear of all
other Liens (other than Permitted Liens), and the Companies shall have taken all actions
necessary or reasonably requested by the WC Collateral Agent to maintain or protect the WC
Collateral Agent’s security interest, and (IV) the aggregate Net Proceeds of any such
Disposition or series of related Dispositions do not exceed $25,000,000 in the aggregate,
unless prior to making such Disposition in excess of $25,000,000, the Borrowers deliver to
the Agent a certificate of a Responsible Officer of the Administrative Borrower, certifying
that (1) immediately before and after giving effect to any such Disposition, no Event of
Default has occurred or is continuing or will result from any such Disposition (2) as of the
last Fiscal Quarter for which financial statements were delivered pursuant to Section
7.01(a)(i), on a pro forma basis after giving effect to any such Disposition as if it had
occurred at the beginning of the most recent fiscal period of four Fiscal Quarters for which
such financial statements were delivered, Alon USA and its Consolidated Subsidiaries would
be in compliance with the covenants contained in Section 7.02(i) hereof, (3) no Change of
Control shall occur as a result of and after giving effect to such Disposition and (4) as of
the date of the last Borrowing Base Certificate delivered to the Agent pursuant to Section
7.01(a)(ix), on a pro forma basis after giving effect to such Disposition as if it had
occurred as of the date of such Borrowing Base Certificate, the sum of (x) the aggregate
principal amount of all outstanding Revolving Credit Loans, plus (y) the outstanding amount
of all Letter of Credit Obligations does not exceed the Borrowing Base (which, with respect
to the certifications in clause (2) and (4), shall set forth in reasonable detail the
Borrowers’ calculations, shall be prepared both on a reasonable basis and in good faith and
based on assumptions believed by the Borrowers to be reasonable at the time made).
(d) Change in Nature of Business. 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 and as specified
in Section 6.01(m).
(e) Investments, Etc. Make, or permit any of their Subsidiaries (other than Paramount
and its Subsidiaries and Subsidiaries of Alon Interests) to make, any loan or advance to any Person
(including, without limitation, intercompany loans) or purchase or otherwise acquire, or permit any
of their Subsidiaries (other than Paramount and its Subsidiaries and Subsidiaries of Alon
Interests) to purchase or otherwise acquire, any Capital Stock, other securities, properties,
assets or obligations of, or any interest in, any Person (in each case, an “Investment”),
other than (i) Permitted Investments, (ii) Investments consisting of the Acquisitions, (ii) so long
as no Event of Default has occurred or is continuing or will result from any such Investment, any
Investment or series of related Investments that do not exceed an amount equal to $25,000,000 in
the aggregate, and (iii) so long as no Event of Default has occurred or is continuing or will
result from any such Investment, any Investment or series of related Investments that exceeds
$25,000,000 in the aggregate, provided that, prior to making any such Investment, the
Borrowers deliver to the Agent a certificate of a Responsible Officer of the Administrative
Borrower, certifying that (A) immediately before and after giving effect to any such Investment, no
Event of Default has occurred or is continuing or will result from any such Investment and (B) as
of the last Fiscal Quarter for which financial statements were
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delivered pursuant to Section 7.01(a)(i), on a pro forma basis after giving effect to any such
Investment as if it had occurred at the beginning of the most recent fiscal period of four Fiscal
Quarters for which such financial statements were delivered, Alon USA and its Consolidated
Subsidiaries would be in compliance with the covenants contained in Section 7.02(i) hereof (which
certification shall set forth in reasonable detail the Borrowers’ calculations, shall be prepared
both on a reasonable basis and in good faith and based on assumptions believed by the Borrowers to
be reasonable at the time made).
(f) Dividends, Prepayments, Etc. Declare or pay any dividends, purchase or otherwise
acquire for value any of its Capital Stock now or hereafter outstanding, return any capital to its
stockholders as such, or make any other payment or distribution of assets to its stockholders as
such, or permit any of its Subsidiaries to do any of the foregoing or to purchase or otherwise
acquire for value any stock of any Loan Party, make any payment or prepayment of principal of,
premium, if any, or interest on, or redeem, defease or otherwise retire, any Indebtedness of any
Loan Party before its scheduled due date (other than prepayments of Indebtedness under the Loan
Documents or the Term Loan Documents) (in each case, a “Restricted Payment”), other than,
(i) so long as no Event of Default has occurred or is continuing or will result from any such
Restricted Payment, Restricted Payments in an amount not to exceed $25,000,000 in the aggregate,
and (ii) so long as no Event of Default has occurred or is continuing or will result from any such
Restricted Payment, any Restricted Payment that exceeds $25,000,000 in the aggregate,
provided that prior to making any such Restricted Payment, the Borrowers deliver to the
Agent a certificate of a Responsible Officer of the Administrative Borrower, certifying that (A)
immediately before and after giving effect to any such Restricted Payment, no Event of Default has
occurred or is continuing or will result from the Restricted Payment and (B) as of the last Fiscal
Quarter for which financial statements were delivered pursuant to Section 7.01(a)(i), on a pro
forma basis after giving effect to any such Restricted Payment as if it had occurred at the
beginning of the most recent fiscal period of four Fiscal Quarters for which such financial
statements were delivered, Alon USA and its Consolidated Subsidiaries would be in compliance with
the covenants contained in Section 7.02(i) hereof (which certification shall set forth in
reasonable detail the Borrowers’ calculations, shall be prepared both on a reasonable basis and in
good faith and based on assumptions believed by the Borrowers to be reasonable at the time made).
(g) Federal Reserve Regulations. Permit any Revolving Credit Loan or the proceeds of
any Revolving Credit Loan under this Agreement or the proceeds of the Term Loans to be used for any
purpose which violates or is inconsistent with the provisions of Regulation T, U or X of the Board
of Governors of the Federal Reserve System.
(h) Environmental. Permit the use, handling, generation, storage, treatment, Release
or disposal of Hazardous Materials at any property owned or leased by the Companies except in
material compliance with Environmental Laws and so long as any failure to comply with Environmental
Laws governing such use, handling, generation, storage, treatment, release or disposal of Hazardous
Materials does not result in a Material Adverse Effect.
(i) Financial Covenants.
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(i) Minimum Tangible Net Worth. Permit Consolidated Tangible Net Worth of Alon
USA and its Consolidated Subsidiaries at any time to be less than Target Net Worth at such
time.
(ii) Funded Debt to EBITDA. Permit the ratio of (A) the aggregate principal
amount of all outstanding Indebtedness for borrowed money of Alon USA and its Consolidated
Subsidiaries as of the end of any period of four Fiscal Quarters, less freely transferable
cash and Permitted Investments of Alon USA and its Consolidated Subsidiaries not subject to
any Lien (other than a Lien in favor of the Agent) as of the end of such period of four
Fiscal Quarters, to (B) Consolidated EBITDA of Alon USA and its Consolidated Subsidiaries
for such period of four Fiscal Quarters, to be greater than 4.0 to 1.0.
Solely for the purposes of calculating the ratio set forth above, if, at the time the
ratio is being determined, either Alon USA or any of its Subsidiary shall have completed any
Disposition, Merger, incurrence of Indebtedness, Investment or Restricted Payment (or series
of related Dispositions, Mergers, incurrence of Indebtedness, Investments or Restricted
Payments) exceeding $25,000,000 in the aggregate since the beginning of the relevant four
Fiscal Quarter period, the ratio shall be determined on a pro forma basis as if such
Disposition, Merger, incurrence of Indebtedness, Investment or Restricted Payment, had
occurred at the beginning of such period.
(iii) Current Ratio. Permit the ratio of Consolidated Current Assets to
Consolidated Current Liabilities of Alon USA and its Consolidated Subsidiaries to be less
than 1.0:1.0 at any time.
(iv) Interest Coverage Ratio. Permit the ratio (the “Interest Coverage
Ratio”) of (A) Consolidated EBITDA of Alon USA and its Consolidated Subsidiaries, to (B)
interest expense of Alon USA and its Consolidated Subsidiaries payable for such period, in
each case as of the end of any period of four Fiscal Quarters, to be less than 2.0:1.0.
(j) Fiscal Periods. Change the Fiscal Months, Fiscal Years and Fiscal Quarters as set
forth on Schedule C hereto, except as otherwise agreed to in writing by the Agent.
(k) Amendment or Waiver of Documents. Agree to any amendment or other change to (or
make any payment consistent with any amendment or other change to), or waive any of its rights
under, any of the Lease Documents, provided that such consent shall not be required if (A)
no Default or Event of Default exists or will result from such amendment, modification, waiver or
change and (B) such amendment, modification, waiver or change is not adverse to the interests of
the Lenders in any material respect and does not provide for terms more restrictive in any material
respect.
(l) Restrictive Agreements. Enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon (i) the
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ability of the Companies to create, incur or permit to exist any Lien upon any of the
Collateral (other than Permitted Liens), or (ii) the ability of any Company (other than an
Immaterial Company) to pay dividends or other distributions with respect to any of its Capital
Stock or to make or repay loans or advances to the Companies or any other Subsidiary or to guaranty
Indebtedness of a Company or any other Subsidiary; provided that the foregoing shall not
apply to (A) restrictions and conditions imposed by law or by any Loan Document, (B) customary
restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided that such restrictions and conditions apply only to the Subsidiary that
is to be sold and such sale is permitted hereunder, (C) restrictions and conditions imposed in
respect of the Term Loan Documents and any extensions, renewals or replacements of such Term Loan
Documents established simultaneously with the expiration or termination of such credit facility and
expressly permitted under Section 7.02(b) hereof; provided, however, that the terms
and provisions of any such extensions, renewals or replacements shall not have any greater adverse
effect on the Lenders than the terms and provisions of the Term Loan Documents existing on the date
hereof , (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by
any agreement relating to secured Indebtedness or Capitalized Lease Obligations permitted by this
Agreement if such restrictions or conditions apply only to the property or assets securing such
Indebtedness or Capitalized Lease Obligations and (E) clause (i) of the foregoing shall not apply
to customary provisions in leases and other contracts restricting the assignment thereof.
(m) Modifications of Organizational Documents and Certain Other Agreements; Etc.
Amend, modify or otherwise change its name, jurisdiction of organization, organizational
identification number or FEIN unless the WC Collateral Agent receives (i) in the case of the
Borrowers and Alon USA, at least 30 days’ prior written notice thereof, or (ii) in the case of any
other Company, at least 10 Business Days’ prior written notice thereof.
(n) Hedging Agreements. Enter into any Hedging Agreements other than Hedging
Agreements which (i) are entered into in the ordinary course of business for nonspeculative
purposes and (ii) are disclosed in each report required to be delivered to the Agent under Section
7.01(a)(ix) hereof.
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ARTICLE VIII
MANAGEMENT, COLLECTION AND STATUS OF
ACCOUNTS RECEIVABLE AND OTHER COLLATERAL.
Section 8.01 Management of Collateral.
(a) After the occurrence and during the continuance of an Event of Default, the WC Collateral
Agent may for the benefit of the Lenders send a notice of assignment and/or notice of the WC
Collateral Agent’s security interest to any and all Account Debtors or any third party holding or
otherwise concerned with any of the Collateral, and thereafter the WC Collateral Agent on behalf of
the Lenders shall have the sole right to collect the Accounts Receivable and/or take possession of
the Collateral and the books and records relating thereto. The Borrowers shall not, without prior
written consent of the Agent, grant any extension of time of payment of any Account Receivable,
compromise or settle any Account Receivable for less than the full amount thereof, release, in
whole or in part, any Person or property liable for the payment thereof, or allow any credit or
discount whatsoever thereon, except prior to the occurrence and during the continuance of an Event
of Default, in the ordinary course of business.
(b) (i) The Companies hereby appoint the WC Collateral Agent and the Agent or their designee
as the Companies attorney-in-fact with power to endorse any Company’s name upon any notes,
acceptances, checks, drafts, money orders or other evidences of payment or Collateral that may come
into its possession, to sign each Borrower’s name on any invoice or xxxx of lading relating to any
of the Accounts Receivable, drafts against Account Debtors, assignments and verifications of
Accounts Receivable and notices to Account Debtors, to send verification of Accounts Receivable,
and upon the occurrence and during the continuance of an Event of Default, to notify the Postal
Service authorities to change the address for delivery of mail addressed to the Borrowers to such
address as the Agent may designate and to do all other acts and things necessary to carry out this
Agreement. All acts of said attorney or designee are hereby ratified and approved, and said
attorney or designate shall not be liable for any acts of omission or commission (other than acts
or omissions constituting gross negligence or willful misconduct as determined by a final judgment
of a court of competent jurisdiction), nor for any error of judgment or mistake of fact or law;
this power being coupled with an interest is irrevocable until all of the Revolving Credit Loans
and any other Obligations under the Loan Documents are paid in full and all of the Revolving Credit
Commitments are terminated.
(ii) The Agent and the WC Collateral Agent, without notice to or consent of the
Borrowers, upon the occurrence and during the continuance of an Event of Default (A) may xxx
upon or otherwise collect, extend the time of payment of, or compromise or settle for cash,
credit or otherwise upon any terms, any of the Accounts Receivable or any securities,
instruments or insurance applicable thereto and/or release the Account Debtor thereon; (B)
is authorized and empowered to accept the return of the fuel, fuel-by products or other
goods represented by any of the Accounts Receivable, and (C) shall have the right to
receive, endorse, assign and/or deliver in its name or the name of any Company any and all
checks, drafts, and other instruments for the payment of money relating to the Accounts
Receivable. The Borrowers hereby waive notice of presentment, protest and non-payment of
any instrument so endorsed, all in a
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commercially reasonable manner and without discharging or in any way affecting
liability hereunder.
(c) Nothing herein contained shall be construed to constitute any Company as agent of the
Agent, the WC Collateral Agent or the Lenders for any purpose whatsoever, and the Agent, the WC
Collateral Agent and the Lenders shall not be responsible or liable for any shortage, discrepancy,
damage, loss or destruction of any part of the Collateral wherever the same may be located and
regardless of the cause thereof (other than from acts or omissions of the Agent, the WC Collateral
Agent and the Lenders constituting gross negligence or willful misconduct as determined by a final
judgment of a court of competent jurisdiction). The Agent, the WC Collateral Agent or the Lenders
shall not, under any circumstances or in any event whatsoever, have any liability for any error or
omission or delay of any kind occurring in the settlement, collection or payment of any of the
Accounts Receivable or any instrument received in payment thereof or for any damage resulting
therefrom (other than acts or omissions of the Agent, the WC Collateral Agent or the Lenders
constituting gross negligence or willful misconduct as determined by a final judgment of a court of
competent jurisdiction). The Agent, the WC Collateral Agent and the Lenders, by anything herein or
in any assignment or otherwise, do not assume any of the Companies’ obligations under any contract
or agreement assigned to the Agent or the WC Collateral Agent and the Agent, the WC Collateral
Agent or the Lenders shall not be responsible in any way for the performance by the Companies of
any of the terms and conditions thereof.
(d) If any of the Accounts Receivable includes a charge for any tax payable to any
Governmental Authority, the Agent is hereby authorized (but in no event obligated) in its
discretion to pay the amount thereof to the proper taxing authority for the Borrowers’ account and
to charge the Loan Account therefor. The Borrowers shall notify the Agent if any Accounts
Receivable include any taxes due to any such authority and, in the absence of such notice, the
Agent shall have the right to retain the full proceeds of such Accounts Receivable and shall not be
liable for any taxes that may be due from such Company by reason of the sale and delivery creating
such Accounts Receivable.
Section 8.02
Accounts Receivable Documentation. The Borrowers will at such intervals as
the Agent may reasonably require, execute and deliver confirmatory written assignments of the
Accounts Receivable to the Agent and furnish such further schedules and/or information as the Agent
may reasonably require relating to the Accounts Receivable, including, without limitation, sales
invoices or the equivalent, credit memos issued, remittance advises, reports and copies of deposit
slips and copies of original shipping or delivery receipts for all merchandise sold. In addition,
the Borrowers shall notify the Agent of any non-compliance in respect of the representations,
warranties and covenants contained in Section 8.03 below. The items to be provided under this
Section 8.02 are to be in form reasonably satisfactory to the Agent and are to be executed and
delivered to the Agent from time to time solely for its convenience in maintaining records of the
Collateral. The Borrowers’ failure to give any such items to the Agent or the WC Collateral Agent
shall not affect, terminate, modify or otherwise limit the WC Collateral Agent’s Lien in the
Collateral. The Borrowers shall not re-date any invoice or sale or make sales on extended dating
beyond that customary in the Borrowers’ industry, and shall not re-xxxx any Accounts Receivable
without promptly disclosing the same to the Agent and providing the Agent with copy of such
re-billing, identifying the same as such. If
87
any Borrower become aware of anything materially detrimental to any of such Borrower’s
customers’ credit, the Borrowers will promptly advise the Agent thereof.
Section 8.03
Status of Accounts Receivable and Other Collateral. With respect to
Collateral of any Company at the time such Collateral becomes subject to a Collateral Agent’s
security interests, such Company covenants, represents and warrants: (a) the Company shall be the
sole owner, free and clear of all Liens except the Lien in the favor of such Collateral Agent for
the benefit of the Lenders or except as otherwise permitted hereunder, fully authorized to sell,
transfer, pledge and/or grant a security interest in each and every item of said Collateral; (b) to
the knowledge of the Borrowers, at the time created, each Account Receivable shall be a good and
valid account representing an undisputed bona fide indebtedness incurred or an amount indisputably
owed by the Account Debtor therein named, for a fixed sum as set forth in the invoice relating
thereto with respect to an absolute sale and delivery upon the specified terms of goods sold by the
Borrowers or work, labor and/or services theretofore rendered by the Borrowers; (c) to the best
knowledge of the Borrowers and except as otherwise disclosed to the Agent, no Account Receivable is
subject to any defense, offset, counterclaim, discount or allowance except as may be stated in the
invoice relating thereto or discounts and allowances as may be customary in the Borrowers’
business, and, each of such Accounts Receivable will be paid when due; (d) none of the transactions
underlying or giving rise to any Accounts Receivable shall violate any applicable state or federal
laws or regulations, and all documents relating thereto shall be legally sufficient under such laws
or regulations and shall be legally enforceable in accordance with their terms; (e) except as
disclosed to the Agent, no agreement under which any deduction or offset of any kind, other than
normal trade discounts, may be granted or shall have been made by the Borrowers at or before the
time such Accounts Receivable is created; (f) all documents and agreements relating to Accounts
Receivable shall be true and correct and in all respects what they purport to be; (g) to the best
knowledge of the Borrowers, all signatures and endorsements that appear on all documents and
agreements relating to Accounts Receivable shall be genuine and all signatories and endorsers shall
have full capacity to contract; (h) the Companies shall maintain books and records pertaining to
said Collateral in such detail, form and scope as the Agent shall reasonably require; (i) the
Borrowers will immediately notify the Agent if any of its accounts arise out of contracts with the
United States or any department, agency, or instrumentality thereof and will execute any
instruments and take any steps reasonably required by the Agent in order that all monies due or to
become due under any such contract shall be assigned to the WC Collateral Agent and notice thereof
given to the United States Government under the Federal Assignment of Claims Act; (j) the Companies
will, within three Business Days of learning thereof, report to the Agent any material loss or
destruction of, or substantial damage to, any of the Collateral, and any other matters affecting
the value, enforceability or collectibility of any of the Collateral; (k) if any amount payable
under or in connection with any Account Receivable is evidenced by a promissory note or other
instrument, as such term is defined in the Uniform Commercial Code, such promissory note or
instrument shall be pledged, endorsed, assigned and delivered to the WC Collateral Agent as
additional Collateral within three Business Days; (l) the Borrowers shall not redate any invoice or
sale or make sales on extended dating beyond that which is customary in the ordinary course of
their business and in the relevant industry; (m) the Borrowers shall conduct a physical count of
their Inventory at such intervals as the Agent may reasonably request and the Borrowers shall
promptly supply the Agent with a copy of such count accompanied by a report of the value (based on
market value) of such Inventory; and (n) the Companies are not and shall not be
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entitled to pledge the Agent’s or the Lenders’ credit on any purchases for or any purpose
whatsoever.
Section 8.04
Collateral Custodian. Upon the occurrence and during the continuance of
an Event of Default, the WC Collateral Agent may at any time and from time to time employ and
maintain in the premises of the Companies a custodian selected by the WC Collateral Agent who shall
have full authority to do all acts necessary to protect the WC Collateral Agent’s interests. The
Companies hereby agree to cooperate with any such custodian and to do whatever the WC Collateral
Agent may reasonably request to preserve the Collateral. All reasonable costs and expenses
incurred by the WC Collateral Agent, by reason of the employment of the custodian, shall be charged
to the Loan Account.
ARTICLE IX
THE AGENT
Section 9.01
Authorization and Action. Each Lender (and each subsequent holder of any
Revolving Credit Notes by its acceptance thereof) hereby irrevocably appoints and authorizes IDB,
in its capacity as the Agent, (i) to receive on behalf of each Lender any payment of principal of
or interest on the Revolving Credit Notes outstanding hereunder and all other amounts accrued
hereunder paid to the Agent, and, subject to Section 2.05 of this Agreement and the other
provisions of this Agreement, to distribute promptly to each Lender its Pro Rata Share of all
payments so received, (ii) to distribute to each Lender, if so determined by the Agent, copies of
all material notices and agreements received by the Agent and not required to be delivered to each
Lender pursuant to the terms of this Agreement, and (iii) subject to Section 12.03 of this
Agreement, to take such action as the Agent deems appropriate on its behalf to administer the
Revolving Credit Loans, Letters of Credit and the Loan Documents and to exercise such other powers
delegated to the Agent by the terms hereof or the Loan Documents (including, without limitation,
the power to give or to refuse to give notices, waivers, consents, approvals and instructions and
the power to make or to refuse to make determinations and calculations), together with such powers
as are reasonably incidental thereto to carry out the purposes hereof and thereof. As to any
matters not expressly provided for by this Agreement and the other Loan Documents (including,
without limitation, enforcement or collection of the Revolving Credit Notes), the Agent shall not
be required to exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions of the Required Lenders shall be
binding upon all Lenders and all holders of Revolving Credit Notes; provided,
however, that the L/C Issuer shall not be required to refuse to honor a drawing under any
Letter of Credit and the Agent shall not be required to take any action which, in the reasonable
opinion of the Agent, exposes the Agent to liability or which is contrary to this Agreement or any
Loan Document or applicable law.
Section 9.02
Borrower’s Default. In the event that (i) the Borrowers fail to pay when
due the principal of or interest on any Revolving Credit Notes, Revolving Credit Loan or any
Reimbursement Obligation or any amount payable hereunder, or (ii) the Agent receives written notice
of the occurrence of an Event of Default, the Agent shall promptly give written notice thereof to
the Lenders, and the Agent shall take such action with respect to such Event of
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Default as it shall be directed to take by the Required Lenders; provided,
however, that, unless and until the Agent shall have received such directions and except as
otherwise expressly provided in this Agreement, the Agent may take such action or refrain from
taking such action hereunder or under the other Loan Documents with respect to an Event of Default
or Default, as it shall deem advisable in the best interest of the Lenders.
Section 9.03 Reliance, Etc. None of the Agent or any of its directors, officers,
agents, Affiliates or employees shall be liable for any action taken or omitted to be taken by it
under or in connection with this Agreement or the other Loan Documents, except for its own gross
negligence or willful misconduct as determined by a final judgment of a court of competent
jurisdiction. Without limiting the generality of the foregoing, the Agent (i) may treat the payee
of any Revolving Credit Notes as the holder thereof until the Agent receives written notice of the
assignment or transfer thereof, pursuant to Section 12.08 hereof, signed by such payee and in form
satisfactory to it; (ii) may consult with legal counsel (including, without limitation, counsel to
the Borrowers), independent public accountants, and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements, certificates, warranties or
representations made in or in connection with this Agreement or the other Loan Documents; (iv)
shall not have any duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement or the other Loan Documents on the part of any
Person or to inspect the Collateral or other property (including, without limitation, the books and
records) of any Person; (v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan
Documents or any other instrument or document furnished pursuant hereto or thereto; (vi) shall not
be deemed to have made any representation or warranty regarding the existence, value or
collectibility of the Collateral, the existence, priority or perfection of the Lenders’ Lien
thereon, or the Borrowing Base or any certificate prepared by the Borrowers in connection
therewith, nor shall the Agent be responsible or liable to the Lenders for any failure to monitor
or maintain the Borrowing Base or any portion of the Collateral, except for its own gross
negligence or willful misconduct as determined by a final judgment of a court of competent
jurisdiction; and (vii) shall incur no liability under or in respect of this Agreement or the other
Loan Documents by acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, telecopy, cable or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
Section 9.04
IDB and Bank Leumi.
(a) With respect to the Revolving Credit Loans made by it, the Revolving Credit Notes issued
to it and its participation in the Letters of Credit, IDB and its Affiliates shall have the same
rights and powers under this Agreement as any other Lender and may exercise the same as though it
were not the Agent, the WC Collateral Agent, a Co-Arranger or an L/C Issuer; and the term “Lender”
or “any Lenders” shall, unless otherwise expressly indicated, include IDB in its individual
capacity. IDB and its Affiliates may accept deposits from, lend money to, act as trustee or paying
agent under indentures of, and generally engage in any kind of business with, any Borrower or any
Guarantor, any of their Affiliates, or any Person who may do business with or own securities of any
Borrower or any Company, or any of their Affiliates, all as if IDB were
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not the Agent, the WC Collateral Agent, a Co-Arranger or an L/C Issuer and without any duty to
account therefor to any Lenders.
(b) With respect to the Revolving Credit Loans made by it, the Revolving Credit Notes issued
to it and its participation in the Letters of Credit, Bank Leumi and its Affiliates shall have the
same rights and powers under this Agreement as any other Lender and may exercise the same as though
it were not a Co-Arranger or an L/C Issuer; and the term “Lender” or “any Lenders” shall, unless
otherwise expressly indicated, include Bank Leumi in its individual capacity. Bank Leumi and its
Affiliates may accept deposits from, lend money to, act as trustee or paying agent under indentures
of, and generally engage in any kind of business with, any Borrower or any Guarantor, any of their
Affiliates, or any Person who may do business with or own securities of any Borrower or any
Company, or any of their Affiliates, all as if Bank Leumi were not a Co-Arranger or an L/C Issuer
and without any duty to account therefor to any Lenders.
Section 9.05
Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender, made its own credit analysis
and decision to enter into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement and the other Loan Documents.
Section 9.06
Indemnification. Each Lender agrees to indemnify and hold harmless the
Agent and the WC Collateral Agent (to the extent not reimbursed by any Borrower or any Guarantor),
ratably according to the Pro Rata Shares of each Lender, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Agent or the WC Collateral Agent in any way relating to or arising out of this
Agreement or the other Loan Documents or any action taken or omitted by the Agent or the WC
Collateral Agent under this Agreement or the other Loan Documents; provided,
however, that no Lender shall be liable to the Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements for which there has been a final judicial determination that such resulted from the
Agent’s gross negligence or willful misconduct. Without limiting the foregoing, each Lender agrees
to reimburse the Agent and the WC Collateral Agent promptly upon demand for its ratable share of
any out-of-pocket expenses (including reasonable counsel fees, disbursements and other charges)
incurred by the Agent or the WC Collateral Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether through negotiation,
legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement or the other Loan Documents, to the extent that the Agent or any WC Collateral
Agent, as applicable, is not reimbursed in full for such expenses by the Borrowers. The
obligations of each Lender under this Section 9.06 shall survive the termination of this Agreement
and the other Loan Documents and the payment of all other obligations of the Agent, the WC
Collateral Agent and the Lenders under this Agreement and the other Loan Documents.
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Section 9.07
Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Administrative Borrower. Upon any such resignation, (i) Bank
Leumi shall have the right to become the successor Agent or to appoint one of its Affiliates to
become the successor Agent, with such rights and obligations hereunder as those previously held by
the retiring Agent, and (ii) if Bank Leumi does not choose to become the Agent or appoint the Agent
pursuant to clause (i), then the Borrowers shall have the right to appoint a successor Agent
reasonably acceptable to Bank Leumi and the Required Lenders, with such rights and obligations
hereunder as those previously held by the retiring Agent, provided, the successor Agent may be
appointed by the Required Lenders without any consultation with or consent of the Companies or any
other Loan Party if an Event of Default or Default has occurred and is continuing. If no successor
Agent shall have been so appointed pursuant to clause (ii) above, and shall have accepted such
appointment, within 30 days after the retiring Agent’s giving of notice of resignation, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a Lender or
a commercial bank or other financial institution organized under the laws of the United States of
America or any State thereof and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent such successor Agent
shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of
the retiring Agent and the retiring Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents. After any retiring Agent’s resignation hereunder as
the Agent, the provisions of this Article IX shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Agent under this Agreement and the other Loan Documents.
Section 9.08
Collateral Matters.
(a) The Agent may from time to time, make such reasonable disbursements and advances
(“Agent Advances”) which the Agent, in its sole discretion, deems necessary or desirable to
preserve or protect the Collateral or any portion thereof, to enhance the likelihood or maximize
the amount of repayment by the Borrowers, any Guarantor or other Person of the Revolving Credit
Loans, Reimbursement Obligations or Letters of Credit and other Obligations or to pay any other
amount chargeable to the Borrowers or any Guarantor pursuant to the terms of this Agreement,
including, without limitation, costs, fees and expenses as described in Section 12.05. The Agent
Advances shall be repayable on demand and be secured by the Collateral. The Agent Advances shall
not constitute Revolving Credit Loans but shall otherwise constitute Obligations hereunder.
Without limitation to its obligations pursuant to Section 9.06, each Lender agrees that it shall
make available to the Agent, upon the Agent’s demand, in Dollars in immediately available funds,
the amount equal to such Lender’s Pro Rata Share of each such Agent Advance. If such funds are not
made available to the Agent by such Lender the Agent shall be entitled to recover such funds, on
demand from such Lender together with interest thereon, for each day from the date such payment was
due until the date such amount is paid to the Agent, at the Federal Funds Rate for three Business
Days and thereafter at the Base Rate. The Agent shall use reasonable efforts to notify the
Administrative Borrower and the Lenders promptly after any such Agent Advance.
(b) The Agent shall have no obligation whatsoever to any Lenders to assure that the Collateral
exists or is owned by any Borrower or any Guarantor or is cared for, protected or insured or has
been encumbered or that the Liens granted to the WC Collateral
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Agent herein or pursuant hereto have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or to exercise at all
or in any particular manner or under any duty of care, disclosure or fidelity, or to continue
exercising, any of the rights, authorities and powers granted or available to the Agent in this
Section 9.08 or in any of the Loan Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, any of the Agent and the WC Collateral
Agent may act in any manner it may deem appropriate, in its sole discretion, given the Agent’s and
the WC Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Agent
and the WC Collateral Agent shall have no duty or liability whatsoever to any other Lender other
than for acts or omissions constituting gross negligence or willful misconduct as determined by a
final judgment of a court of competent jurisdiction.
(c) The Lenders agree to authorize the WC Collateral Agent to release any Lien granted to or
held by the WC Collateral Agent upon any Collateral upon termination of the Revolving Credit
Commitments and payment and satisfaction of all Revolving Credit Loans and Letter of Credit
Obligations (whether or not due) and all other Obligations which have matured and which the Agent
has been notified in writing are then due and payable; or constituting property being sold or
disposed of in compliance with Section 7.02(c)(ii) hereof (and the WC Collateral Agent may rely
conclusively on any such certificate, without further inquiry); or constituting property in which
the Companies owned no interest at the time the Lien was granted or at any time thereafter; or
(except as otherwise provided in Section 12.03 of this Agreement) if approved, authorized or
ratified in writing by the Required Lenders. To the extent a Company sells or disposes of any
Collateral in accordance with Section 7.02(c)(ii) or with the consent of the Required Lenders, such
Collateral in each case shall be sold or otherwise disposed of free and clear of the Liens created
by the Loan Documents (it being understood that the Liens created by the Loan Documents shall
continue in all cash and noncash proceeds), and the WC Collateral Agent shall execute and deliver
such releases as the applicable Company may reasonably request to evidence the termination of such
Liens (which release shall not affect in any respect the obligations of any Loan Party under any
Loan Document, shall be at the sole cost and expense of such Company and shall be without
representation, warranty or recourse of any kind). Without in any manner limiting the WC
Collateral Agent’s authority to act without any specific or further authorization or consent by the
Required Lenders, upon request by the Collateral Agent at any time, the Lenders shall confirm in
writing the WC Collateral Agent’s authority to release particular contained in types or items of
Collateral pursuant to this Section 9.08(c).
(d) Promptly after the date on which the principal of and interest on all Term Loans and all
other obligations under the Term Loan Agreement shall have been paid in full and the Term Loan
Agreement and other Term Loan Documents shall have been terminated, the Agent shall, at the written
request of the Administrative Borrower, (i) deliver to the Borrowers all promissory notes and stock
certificates in its possession constituting Fixed Assets and Other Specified Property and
specifically requested by the Administrative Borrower (or, if any such note or certificate has been
lost, a lost note affidavit or lost certificate affidavit, provided that the failure of the
Agent to turn such notes or certificates shall not result in the Agent having any liability to the
Borrowers or any other Loan Party (except as expressly provided in such lost note affidavit or lost
certificate affidavit) or give rise to any right of offset, counterclaim, set-off, reduction or
other defense with respect to the Obligations), and (ii) provide the Administrative Borrower with
(A) a termination and release letter with respect to any Liens
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in favor of the Agent or any of the Lenders (as Lenders or in any other capacity under this
Agreement) with respect to any of the Fixed Assets and Other Specified Property and any other
assets (other than the types of “Collateral” covered by the Existing Revolving Credit Agreement and
Loan Documents referred to therein as of February 15, 2006), duly executed by the Agent and the
Lenders, (B) a release of all mortgages filed by the Agent or any Lender in any capacity under the
Revolving Credit Agreement, and (C) authorization to file UCC statements of amendment for all UCC-1
financing statements filed by or for the benefit of the Agent or any Lender, in any capacity and
covering any Fixed Assets and Other Specified Property and any other assets of the Parent and its
Subsidiaries (other than the types of “Collateral” covered by the Existing Revolving Credit
Agreement and Loan Documents referred to therein as of February 15, 2006), as the Administrative
Borrower may reasonably request, in all cases, in form and substance reasonably satisfactory to,
and subject to the prior approval by, the Agent (collectively, the “Termination and
Releases”). The Termination and Releases shall be provided by the Agent at the sole cost and
expense of the Companies and shall be without representation, warranty or recourse of any kind.
(e) The Borrowers may at any time request in writing that the Agent terminate the Guaranty to
which Alon Interests is a party. Promptly after receipt of any such request, the Agent agrees to
execute and deliver a termination, in form and substance reasonably satisfactory to the Agent, as
the Borrowers may reasonably request to evidence the termination of the Guaranty to which Alon
Interests is a party (which termination shall not affect in any respect the obligations of any
other Loan Party under any Loan Document, shall be at the sole cost and expense of the Companies
and shall be without representation, warranty or recourse of any kind), provided that the
Agent shall have received the following, each in form and substance satisfactory to the Agent: (i)
an amendment to this Agreement, which shall, among other matters, (A) terminate the Guaranty by
Alon Interests, expressly provide that Alon Interests is no longer a party to this Agreement,
provide evidence to the satisfaction of the Agent and the Lenders that any Indebtedness (contingent
or otherwise) incurred by any Loan Party for the benefit of Alon Interests and its Subsidiaries
shall be included in the calculation of the financial covenants contained in Section 7.02(i) of
this Agreement, modify the financial covenants to, among other things, exclude any net income
attributable to Alon Interests and its Subsidiaries from any of the applicable financial covenants
to the extent necessary, and provide for the delivery of such financial statements as the Agent and
the Lenders may reasonably require to exclude the assets, liabilities, income, expenses and cash
flows of Alon Interests and its Subsidiaries, and (B) make such other amendments as the Agent and
the Lenders may deem necessary in their reasonable discretion, and (ii) such other agreements,
documents and opinions as Agent or the Required Lenders may reasonably request.
(f) Without in any manner limiting the authority of the Agent to act without any specific or
further authorization or consent by the Required Lenders, upon request by the Agent at any time,
the Lenders shall confirm in writing the authority of the Agent to release the Guaranty of Alon
Interests pursuant to this Section 9.08.
ARTICLE X
EVENTS OF DEFAULT
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Section 10.01
Events of Default. If any of the following Events of Default shall occur
and be continuing:
(a) Any Borrower shall fail to pay (i) any principal on any Revolving Credit Loan, any Agent
Advance or any Reimbursement Obligation when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) or (ii) any interest thereon or any fee or other
amount when due under any Loan Document and, in the case of this clause (ii), such failure shall
continue unremedied for more than three Business Days;
(b) Any representation or warranty made by any Loan Party or any officer of such Loan Party
under or in connection with any Loan Document shall have been incorrect in any material respect
when made;
(c) (i) Any Loan Party shall fail to perform or observe (A) any covenant contained in
subparagraphs (i), (ii), (iii), (v), (vi), (vii) or (x) of Section 7.01(a) or Section 7.01(b)
hereof and such failure shall continue unremedied for more than 10 days, or (B) any covenant
contained in subsections (c), (e), (g), (j) or (n) of Section 7.01 hereof and such failure shall
continue unremedied for more than five days after the earlier of the date written notice of such
failure shall have been given by the Agent or the Required Lenders to any Loan Party and the date a
Responsible Officer of any Loan Party becomes aware of such failure or (ii) any Company shall fail
to perform or observe any other covenant contained in Section 7.01 hereof or any covenant contained
in Section 7.02 hereof or Section 5 of the Security Agreements;
(d) Any Loan Party shall fail to perform or observe any other term, covenant or agreement,
other than as set forth above in Sections 10.01(a), (b) and (c) above, contained in any Loan
Document to be performed or observed by such Loan Party and such failure, if capable of being
remedied, shall remain unremedied for 15 days after the earlier the date written notice of such
failure shall have been given by the Agent or the Required Lenders to any Loan Party and the date a
Responsible Officer of any Loan Party becomes aware of such failure;
(e) Any Loan Party (other than any Immaterial Company) (i) shall fail to pay any principal or
interest on any of its Indebtedness (excluding Indebtedness evidenced by the Loan Documents) in
excess of $15,000,000 or any interest or premium thereon, when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument relating to such
Indebtedness, or any other default under any agreement or instrument relating to any such
Indebtedness, or any other event, shall occur and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such
Indebtedness in excess of such amount shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity
thereof or (ii) shall default in the performance of any obligation under any of the P&T Contracts
or any related agreement (and such default shall not be waived or shall continue 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,
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or the loss or suspension of any rights of the Borrowers or any Subsidiary of the Parent
under, the P&T Agreement or to have a Material Adverse Effect;
(f) Any Loan Party (other than any Immaterial Company) (i) shall institute any proceeding or
voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition
of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for such Loan Party or for any substantial part of its
property, (ii) shall be generally not paying its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, (iii) shall make a general assignment for the
benefit of creditors, or (iv) shall take any action to authorize or effect any of the actions set
forth above in this subsection (f);
(g) Any proceeding shall be instituted against any Loan Party (other than any Immaterial
Company) seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar
official for such Loan Party or for any substantial part of its property, and either such
proceeding shall remain undismissed or unstayed for a period of 60 days or any of the actions
sought in such proceeding (including, without limitation, the entry of an order for relief against
it or the appointment of a receiver, trustee, custodian or other similar official for it or for any
substantial part of its property) shall occur;
(h) Any provision of any Loan Document shall at any time for any reason be declared by a court
of competent jurisdiction to be null and void, or the validity or enforceability thereof shall be
contested by any Loan Party, or a proceeding shall be commenced by any Loan Party or any
Governmental Authority or other regulatory body having jurisdiction over such Loan Party that could
reasonably be expected to result in a Material Adverse Effect, seeking to establish the invalidity
or unenforceability thereof, or any Loan Party shall deny in writing that such Loan Party has any
liability or obligation purported to be created under any Loan Document;
(i) Any Security Document, after delivery thereof pursuant hereto, shall for any reason fail
or cease to create a valid and perfected and, except to the extent permitted by the terms hereof or
thereof, first priority Lien on or security interest in any Collateral with a fair market value
exceeding $500,000 in the aggregate purported to be covered thereby;
(j) One or more judgments or orders (other than a judgment or award described in subsection
(f) or (g) of this Section 10.01) for the payment of money exceeding $5,000,000 in the aggregate
for the Loan Parties, shall be rendered against any Loan Party and either (i) enforcement
proceedings shall have been commenced by any creditor upon any such judgment or order, or (ii)
there shall be any period of 30 consecutive days during which a stay of enforcement of any such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
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(k) Any Company or any of its ERISA Affiliates shall have made a complete or partial
withdrawal from a Multiemployer Plan, and, as a result of such complete or partial withdrawal, such
Loan Party or such ERISA Affiliate incurs a withdrawal liability in an annual amount exceeding
$5,000,000; or a Multiemployer Plan enters reorganization status under Section 4241 of ERISA, and,
as a result thereof, such Loan Party’s or such ERISA Affiliate’s annual contribution requirement
with respect to such Multiemployer Plan increases in an annual amount exceeding $5,000,000;
(l) Any Termination Event with respect to any Employee Plan shall have occurred, and, 30 days
after notice thereof shall have been given to any Company by the Agent, (i) such Termination Event
(if correctable) shall not have been corrected, and (ii) the then current value of such Employee
Plan’s vested benefits exceeds the then current value of assets allocable to such benefits in such
Employee Plan by more than $5,000,000 (or, in the case of a Termination Event involving liability
under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 4971 or 4975 of the Internal Revenue Code, the liability is in excess of such amount);
(m) An “Event of Default” (as defined in the Term Loan Agreement) shall have occurred under
the Term Loan Agreement or any other Term Loan Document;
(n) A Change of Control shall have occurred;
(o) Any Loan Party (other than an Immaterial Company) is enjoined, restrained or in any way
prevented by the order of any court or any administrative or regulatory agency from conducting all
or any material part of its business for more than fifteen (15) days;
(p) Any material damage to, or loss, theft or destruction of, any Collateral, whether or not
insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy,
or other casualty which causes, for more than fifteen (15) consecutive days, the cessation or
substantial curtailment of revenue producing activities at any facility of any Borrower or any
other Loan Party, if any such event or circumstance could reasonably be expected to have a Material
Adverse Effect;
(q) The loss, suspension or revocation of, or failure to renew, any license or permit now held
or hereafter acquired by any Borrower or any other Loan Party, if such loss, suspension, revocation
or failure to renew could reasonably be expected to have a Material Adverse Effect;
(r) The indictment of any Borrower or any other Loan Party or any chief executive officer,
chief financial officer, president or similar material officer thereof under any criminal statute,
or commencement of criminal or civil proceedings against any Borrower or any other Loan Party,
pursuant to which statute or proceedings the penalties or remedies sought or available include
forfeiture to any government or governmental agency, authority or instrumentality of any material
portion of the property of such Borrower or other Loan Party or in the case of a material officer,
imprisonment;
(s) The occurrence of any event or series of events which has had a Material Adverse Effect;
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(t) The Term Loan Agreement shall be terminated for any reason (other than the repayment of
all obligations thereunder) and a successor or replacement term loan agreement in form and
substance acceptable to the Agent has not become effective;
(u) CS shall no longer be the Term Loan Agent and the successor Term Loan Agent shall not have
entered into a lien intercreditor agreement and collateral access agreement with the Agent
reasonably acceptable to the Agent;
(v) (i) Alon LP shall fail to make any lease payment under the Lease Agreement as and when due
and payable or (ii) any other breach, default, event of default or termination shall occur under
the Lease Documents, after giving effect to applicable grace periods, if any, contained in the
Lease Documents that gives any third party the right to terminate any of the Lease Documents;
(w) Xxxxx or HEP Logistics Holdings, L.P. shall assert any claim against any Borrower or
Company (other than an Immaterial Company) under or in connection with the Indemnification
Agreement in an aggregate amount exceeding $5,000,000;
then, and in any such event, with the consent of the Required Lenders the Agent may, or upon
the request of the Required Lenders, the Agent shall, by notice to the Administrative Borrower, (i)
declare the Total Commitment to be reduced to zero, whereupon the Total Commitment shall forthwith
be reduced to zero, (ii) declare all Revolving Credit Loans and all Reimbursement Obligations, all
interest thereon and all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Revolving Credit Loans, all Reimbursement Obligations, all such interest and
all such amounts shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived by each Company;
provided, however, that upon the occurrence of any Event of Default described in
subsections (f) or (g) of this Section 10.01, the Revolving Credit Loans, all Reimbursement
Obligations, all such interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which are expressly
waived by each Company, and (iii) exercise any and all of its other rights under applicable law,
hereunder and under the other Loan Documents. Upon demand by the Agent after the occurrence and
during the continuation of any Event of Default, the Borrowers shall deposit with the Agent with
respect to each Letter of Credit then outstanding cash in an amount equal to 105% of the greatest
amount for which such Letter of Credit may be drawn. Such deposits shall be held by the Agent in
the Letter of Credit Collateral Account as security for, and to provide for the payment of, the
Letter of Credit Obligations.
ARTICLE XI
GUARANTY
Section 11.01 Guaranty. Each Guarantor Company hereby (i) irrevocably, absolutely and
unconditionally guarantees the prompt payment, as and when due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), of (A) all the Obligations,
including, without limitation, all amounts now or hereafter owing in respect of the Loan Documents,
whether for principal, interest (including interest accruing on or
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after the filing of any petition in bankruptcy or for reorganization relating to the Borrowers
whether or not a claim for post-filing interest is allowed in such proceeding), fees, expenses,
indemnifications or otherwise, and (B) all indebtedness, obligations and other liabilities, direct
or indirect, absolute or contingent, now existing or hereafter arising of the Borrowers to the
Agent, the WC Collateral Agent, the Lenders or the L/C Issuer under the Loan Documents and (ii)
agrees to pay any and all reasonable expenses (including reasonable counsel fees and expenses)
incurred by the Agent, the WC Collateral Agent, the Lenders or the L/C Issuer in enforcing its
rights under this Article XI.
Section 11.02 Obligations Unconditional.
(a) Each Guarantor Company hereby guarantees that the Obligations will be paid strictly in
accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent, the
Lenders or the L/C Issuer with respect thereto. Each such Guarantor Company agrees that its
guarantee constitutes a guaranty of payment when due and not of collection, and waives any right to
require that any resort be had by the Agent, the WC Collateral Agent, the Lenders or the L/C Issuer
to any Collateral. The obligations of each Guarantor Company under this Article XI are independent
of the obligations of the Borrowers under this Agreement and the other Loan Documents and a
separate action or actions may be brought and prosecuted against the Guarantor Companies to enforce
this Article XI irrespective of whether any action is brought against any of the Borrowers or
whether any of the Borrowers are joined in any such action. The liability of the Guarantor
Companies hereunder shall be absolute and unconditional, irrespective of: (i) any lack of validity
or enforceability of any Loan Document or any agreement or instrument relating thereto; (ii) any
extension or change in the time, manner or place of payment of, or in any other term in respect of,
all or any of the Obligations (including, without limitation, any extension for longer than the
original period), or any other amendment or waiver of or consent to any departure from any
provision of any Loan Document (including the creation or existence of any Obligations in excess of
the amounts permitted by any lending formulas contained in this Agreement); (iii) any exchange or
release of, or non-perfection of any Lien on, any Collateral, or any release or amendment or waiver
of or consent to any departure from any other guaranty, for all or any of the Obligations; or (iv)
the existence of any claim, set off, defense or other right that the Guarantor Companies may have
against any Person, including the Agent, the WC Collateral Agent, the L/C Issuer or the Lenders;
(v) any other circumstance which might otherwise constitute a defense available to, or a discharge
of, any Borrower or any other Guarantor in respect of the Obligations or of the Guarantor Companies
in respect hereof.
(b) This Guaranty (i) is a continuing guaranty and shall remain in full force and effect until
such date on which all of the Obligations and all other expenses to be paid by the Borrowers
pursuant hereto shall have been satisfied in full after the Total Commitment shall have been
terminated, (ii) shall continue to be effective or shall be reinstated, as the case may be, if at
any time any payment of any of the Obligations is rescinded or must otherwise be returned by the
Agent, the WC Collateral Agent, the Lenders or the L/C Issuer upon the insolvency, bankruptcy or
reorganization of any Borrower or any Guarantor or otherwise, all as though such payment had not
been made, and (iii) shall be binding upon each Guarantor Company, its successors and assigns.
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Section 11.03 Waivers. Each Guarantor Company hereby waives, to the extent permitted
by applicable law, (i) promptness and diligence, (ii) notice of acceptance and notice of the
incurrence of any Obligation, (iii) notice of any action taken by the Agent, the WC Collateral
Agent, the Lenders, the L/C Issuer, IDB or any Borrower or any other agreement or instrument
relating thereto, (iv) all other notices, demands and protests, and all other formalities of every
kind in connection with the enforcement of the Obligations or of the obligations of such Guarantor
Company hereunder, the omission of or delay in which, but for the provisions of this Section 11.03,
might constitute grounds for relieving such Guarantor Company of its obligations hereunder, (v) any
requirement that the Agent, the WC Collateral Agent, the Lenders or the L/C Issuer protect, secure,
perfect or insure any Lien or any property subject thereto or exhaust any right or take any action
against any Person or any Collateral, and (vi) any other defenses available to the Borrowers or
such Guarantor Company. All such waivers by the Guarantor Companies shall be effective only to the
extent permitted by applicable law.
Section 11.04 Subrogation. Until such time as the Obligations shall have been paid in
full and the Total Commitment is terminated, each Guarantor Company hereby irrevocably agrees that
it will not exercise any and all rights which it has or may have at any time or from time to time
(whether arising directly or indirectly by operation of law or contract) to assert any claim
against any Borrower or any other Guarantor on account of any payments made under this Agreement,
including, without limitation, all existing and future rights of subrogation, reimbursement,
exoneration, contribution and/or indemnity. If any amount shall be paid to a Guarantor Company on
account of such rights at any time when all of such Obligations and all other Obligations shall not
have been paid in full, such amount shall be held in trust for the benefit of the Agent or the
Lenders, shall be segregated from the other funds of such Guarantor Company and shall forthwith be
paid over to the Agent to be applied in whole or in part by the Agent against the Obligations,
whether matured or unmatured, in accordance with the terms of this Agreement.
Section 11.05 No Waiver; Remedies. No failure on the part of the Agent, the WC
Collateral Agent, the Lenders or the L/C Issuer to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedy provided by law.
Section 11.06 Stay of Acceleration. If acceleration of the time for payment of any
amount payable by the Borrowers in respect of the Obligations is stayed upon the insolvency,
bankruptcy or reorganization of any Borrower, all such amounts otherwise subject to acceleration
under the terms of this Agreement shall nonetheless be payable by the Guarantor Companies hereunder
forthwith on demand by the Agent, the WC Collateral Agent, the Lenders or the L/C Issuer.
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ARTICLE XII
MISCELLANEOUS
Section 12.01 Termination; Annual Review.
(a) The Borrowers may terminate the Total Commitment and reduce it to zero in accordance with
Section 2.07, and the Total Commitment and this Agreement shall terminate in accordance with the
last paragraph of Section 10.01.
(b) The Total Commitment and this Agreement shall automatically terminate on the Termination
Date.
(c) All Obligations shall become due and payable as of the date of any termination under
Section 2.07(a), Section 12.01(a) or 12.01(b) and, pending a final accounting, the Agent may
withhold any balances in the Loan Account (unless supplied with an indemnity satisfactory to the
Agent) to cover all of the Obligations, whether absolute or contingent. All of the Agent’s, the WC
Collateral Agent’s and the Lenders’ rights and Liens and security interests shall continue after
any termination until all Obligations for the payment of money have been paid in cash and satisfied
in full and all Letters of Credit have been canceled and returned to the L/C Issuer or cash
collateralized to the reasonable satisfaction of the Agent. After such payment and satisfaction,
the Agent, the WC Collateral Agent and the Lenders will, upon the reasonable request of the
Administrative Borrower, execute all documents necessary to release, without recourse,
representation and warranty and at the expense of the Borrowers, its Liens granted pursuant to the
terms of this Agreement and the other Loan Documents.
(d) On or prior to July 31 of each year (commencing July 31, 2006), the Borrowers shall
provide the Agent with a certificate certifying and attaching any supporting calculations or
details that: (i) the representations and warranties contained in Section 6.01 of this Agreement
and in each other Loan Document and certificate or other writing delivered to either Collateral
Agent, the Agent, the L/C Issuer or the Lenders pursuant hereto on or prior to such date are true
and correct on and as of such date as though made on and as of such date, except to the extent that
any such representation or warranty expressly relates solely to an earlier date (in which case any
such representation or warranty shall be true and correct on and as of such earlier date), (ii) the
Borrowers are in compliance with the financial covenants set forth in Section 7.02(j) hereof, and
(iii) no Event of Default or Default has occurred and is continuing.
Section 12.02 Notices, Etc. All notices and other communications provided for
hereunder shall be in writing and shall be mailed, sent by overnight courier, telecopied, or
delivered, if to any Lender, at its address specified under its signature on the signature pages
hereof; if to the Borrowers or the other Companies, at the following address:
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Alon USA, LP
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx Xxxxx
Xx. Xxxxxx X. Xxxx, Xx.
Xx. Xxxx Even
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx Xxxxx
Xx. Xxxxxx X. Xxxx, Xx.
Xx. Xxxx Even
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
if to the Agent, to it at the following address:
Israel Discount Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Telecopier: (000) 000-0000
or, as to each party, at such other address as shall be designated by such party in a written
notice to the other party complying as to delivery with the terms of this Section 12.02. All such
notices and other communications shall be effective (i) if mailed (by certified mail, postage
prepaid and return receipt requested), upon receipt or three Business Days after mailing whichever
occurs first, (ii) if telecopied, when transmitted and a confirmation is received, provided the
same is on a Business Day and, if not, on the next Business Day, (iii) if sent by overnight
courier, upon receipt or two Business Days after delivered to such overnight courier, whichever
occurs first or (iv) if delivered, upon delivery, provided the same is on a Business Day and, if
not, on the next Business Day, except that notices to the Agent or the L/C Issuer pursuant to
Articles II and III hereof shall not be effective until received by the Agent or the L/C Issuer, as
the case may be.
Section 12.03 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or the other Loan Documents, and no consent to any departure by any Loan Party therefrom,
shall in any event be effective unless the same shall be in writing and signed by such Loan Party
and the Required Lenders, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall (i) increase the Revolving Credit Commitment of any Lender,
reduce the principal of, or interest on, the Revolving Credit Loans or the Reimbursement
Obligations payable to any Lender, reduce the amount of any fee payable for the
account of any
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Lender, or postpone or extend any date fixed for any payment of principal of,
or interest or fees on, the Revolving Credit Loans or Letter of Credit Obligations payable to any
Lender, in each case without the written consent of any Lender affected thereby, (ii) increase the
Total Commitment without the written consent of each Lender, (iii) change the percentage of the
Revolving Credit Commitments or of the aggregate unpaid principal amount of the Revolving Credit
Notes, or amend the definition of “Required Lenders,” without the written consent of each Lender,
(iv) release all or a substantial portion of the Collateral (except as otherwise provided in this
Agreement or any of the other Loan Documents) or the Guarantors (other than inactive Guarantors or
as otherwise provided in this Agreement or in any of the other Loan Documents) without the written
consent of each Lender, (v) amend, modify or waive Section 12.01 or this Section 12.03 of this
Agreement without the written consent of each Lender, or (vi) amend the definitions of “Applicable
Borrowing Base Percentage,” “Applicable Percentage” or “Borrowing Base” if the effect of such
amendment is to increase Availability without the written consent of each Lender. Notwithstanding
the foregoing, no amendment, waiver or consent shall affect the rights or duties of the Agent or
the L/C Issuer with respect to a Letter of Credit under this Agreement or the other Loan Documents,
unless the same shall have been signed by the Agent or the L/C Issuer, as applicable.
Section 12.04 No Waiver; Remedies, Etc. No failure on the part of the L/C Issuer, any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder or under any other
Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any
right under any Loan Document preclude any other or further exercise thereof or the exercise of any
other right. The rights and remedies of the L/C Issuer, the Lenders and the Agent provided herein
and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any
rights or remedies provided by law. The rights of the Lenders, the L/C Issuer and the Agent under
any Loan Document against any party thereto are not conditional or contingent on any attempt by the
Lenders, the L/C Issuer and the Agent to exercise any of their rights under any other Loan Document
against such party or against any other Person.
Section 12.05 Expenses; Taxes; Attorneys’ Fees. The Companies agree to jointly and
severally pay or cause to be paid, on demand, and to save the Agent (and, in the case of clauses
(a) and (c) through (m) below, the Lenders) harmless against liability for the payment of, all
reasonable out-of-pocket fees, costs and expenses, regardless of whether the transactions
contemplated hereby are consummated, including but not limited to reasonable fees, costs and
expenses of counsel for the Agent (and, in the case of clauses (c) through (m) below, the Lenders),
accounting, due diligence, periodic field audits, investigation, monitoring of assets, syndication,
miscellaneous disbursements, examination, travel, lodging and meals, incurred by the Agent (and, in
the case of clauses (a) and (c) through (m) below, the Lenders) from time to time arising from or
relating to: (a) the negotiation, preparation, execution, delivery, performance and administration
of this Agreement and the other Loan Documents, (b) any requested amendments, waivers or consents
to this Agreement or the other Loan Documents, whether or not such documents become effective or
are given, (c) the preservation and protection of any of the Agent’s and the Lenders’ rights under
this Agreement or the other Loan Documents, (d) the defense of any claim or action asserted or
brought against the Agent or the Lenders by any Person that arises from or relates to this
Agreement, any other Loan Document, the Agent’s or the Lenders’ claims against the Borrowers or the
other Loan Parties, or any and all matters in connection therewith, (e) the commencement or defense
of, or intervention in, any court
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proceeding arising from or related to this Agreement or any other Loan Document, (f) the
filing of any petition, complaint, answer, motion or other pleading by the Agent or the Lenders, or
the taking of any action in respect of the Collateral or other security, in connection with this
Agreement or any other Loan Document, (g) the protection, collection, lease, sale, taking
possession of or liquidation of, any Collateral or other security in connection with this Agreement
or any other Loan Document, (h) any attempt to enforce any Lien on any Collateral or other security
in connection with this Agreement or any other Loan Document, (i) any attempt to collect from the
Borrowers or any other Loan Party, (j) the receipt of any professional advice with respect to any
of the foregoing (including, without limitation, with respect to any restructuring, work-out or
renegotiation of any Loan Document), (k) all liabilities and reasonable costs arising from or in
connection with the past, present or future operations of the Loan Parties (or any Affiliate of the
foregoing) involving any damage to real or personal property or natural resources or harm or injury
alleged to have resulted from any Release of Hazardous Materials on, upon or into such property,
(l) any reasonable costs or liabilities incurred in connection with the investigation, removal,
cleanup and/or remediation of any Hazardous Materials present or arising out of the operations of
any facility of the Loan Parties, or (m) any liabilities or reasonable costs incurred in connection
with any Lien arising under any Environmental Law. Without limitation of the foregoing or any
other provision of any Loan Document: (x) the Companies jointly and severally agree to pay all
stamp, document, transfer, recording or filing taxes or fees (including, without limitation,
mortgage recording taxes) and similar impositions now or hereafter payable pursuant to Section 2.12
hereof, and the Companies jointly and severally agree to save the Agent, the L/C Issuer and the
Lenders harmless from and against any and all present or future claims, liabilities or losses with
respect to or resulting from any omission to pay or delay in paying any such taxes, fees or
impositions in accordance with such Section 2.12, and (y) if the Borrowers or any Loan Party fails
to perform any covenant or agreement contained herein or in any other Loan Document, the Agent may
itself perform or cause performance of such covenant or agreement, and the expenses of the Agent
incurred in connection therewith shall be reimbursed on demand by the Borrowers.
Section 12.06 Right of Set Off. Upon the occurrence and during the continuance of any
Event of Default, each Lender and its Affiliates may, and is hereby authorized to, at any time and
from time to time, without notice to any Loan Party (any such notice being expressly waived by the
Borrowers and Companies) and to the fullest extent permitted by law, set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or its Affiliates to or for the credit or the account
of any Loan Party against any and all joint and several obligations of the Borrowers now or
hereafter existing under any Loan Document, irrespective of whether or not such Lender or its
Affiliates shall have made any demand hereunder or thereunder and although such obligations may be
contingent or unmatured. Such set-off shall be subject to the provisions of Section 4.03. Such
Lender agrees to notify the Administrative Borrower promptly after any such set-off and application
made by such Lender or its Affiliates, provided that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section 12.06 are in addition to the other rights and remedies (including,
without limitation, other rights of set-off) which such Lender may have.
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Section 12.07 Severability. Any provision of this Agreement, or of any other Loan
Document to which any Borrower or any Guarantor is a party, which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining portions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 12.08 Assignments and Participations.
(a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a portion of its
Revolving Credit Commitment, the Revolving Credit Loans made by it, the Revolving Credit Notes held
by it and its Pro Rata Share of Letter of Credit Obligations); provided, however,
that (1) the consent of the Agent and the Administrative Borrower shall not be required for any
such assignment by a Lender to one or more of such Lender’s Affiliates, (2) each such assignment is
in an amount which is at least $10,000,000 or a multiple of $1,000,000 in excess thereof (or the
remainder of such Lender’s Revolving Credit Commitment), (3) each such assignment shall be of a
constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations
under this Agreement, (4) such assignee shall execute and deliver an Assignment and Acceptance to
the Agent, (5) the parties to each such assignment shall execute and deliver to the Agent, for its
acceptance, an Assignment and Acceptance, together with any Revolving Credit Notes subject to such
assignment, (6) such parties shall deliver to the Agent a processing and recordation fee of $3,500
(except in the case of any assignment by a Lender to one or more of its Affiliates in which case
such fee will not be payable), and (7) such assignee shall reimburse the Agent for any
out-of-pocket expenses (including reasonable legal fees) incurred in connection therewith.
Notwithstanding the foregoing, in no event shall any assignment be made to any Loan Party or any
Affiliate of a Loan Party without the prior written consent of the Required Lenders, which consent
may be withheld by the Required Lenders in their sole and absolute discretion. Upon such
execution, delivery and acceptance, from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least three Business Days after the delivery
thereof to the Agent (or such shorter period as shall be agreed to by the Agent and the parties to
such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, in addition to
the rights and obligations hereunder held by it immediately prior to such effective date, have the
rights and obligations hereunder that have been assigned to it pursuant to such Assignment and
Acceptance and (B) the assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement (and, in the case of an Assignment
and Acceptance covering all or the remaining portion of an assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto). Any such
assignment shall not adversely affect the Borrowers’ rights under this Agreement except that the
assigning Lender shall not be responsible for the obligations assigned.
(b) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the assignee thereunder confirm to and agree with each other and the other parties hereto that:
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any statements, warranties
or representations made in or in connection with this
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Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement of any other instrument or document furnished pursuant hereto, and (ii)
such assigning Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or any Guarantor or any of their Subsidiaries or
the performance or observance by such Borrower or such Guarantor or any of their Subsidiaries of
any of their obligations under this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto.
(c) The Agent shall maintain at its address referred to in Section 12.02 hereof a copy of each
Assignment and Acceptance delivered to and accepted by it. Such copies shall be available for
inspection by any Borrower or any Guarantor or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee Lender, together with the Revolving Credit Notes subject to such assignment and the
processing and recordation fee, if the Agent consents, which consent will not be unreasonably
withheld, to the proposed Assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit D hereto, (i) accept such Assignment and
Acceptance, and (ii) give prompt notice thereof to the Administrative Borrower. Within three
Business Days after its receipt of such notice, any Borrower or any Guarantor, at its own expense,
shall execute and deliver to the Agent in exchange for the surrendered Revolving Credit Notes a new
Revolving Credit Notes to the order of such assignee Lender in an aggregate principal amount equal
to the Revolving Credit Loans and Revolving Credit Commitment assumed by it pursuant to such
Assignment and Acceptance, and if the assigning Lender has retained any Revolving Credit Loans and
Revolving Credit Commitment hereunder, a new Revolving Credit Notes to the order of the assigning
Lender in an aggregate principal amount equal to the Revolving Credit Loans and Revolving Credit
Commitment retained by it hereunder. Such new Revolving Credit Notes or Revolving Credit Notes
shall be in an aggregate principal amount equal to the aggregate principal amount of such
surrendered Revolving Credit Notes or Revolving Credit Notes, shall be dated the date of the
Agent’s acceptance of such Assignment and Acceptance and shall otherwise be in substantially the
form of Exhibit A hereto. Promptly after each such Assignment and Acceptance becomes effective,
the Agent shall prepare and distribute to each Lender and the Borrowers a revised Schedule B hereto
after giving effect to such assignment, which revised Schedule B shall replace the prior Schedule
B and become part of this Agreement.
(e) Each Lender may sell participations in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a portion of its Revolving
Credit Commitment, the Revolving Credit Loans made by it and the Revolving Credit Notes held by it
and the Letter of Credit Obligations). Participants shall have no direct rights under this
Agreements except that participants shall have the rights of a Lender under Sections 2.09, 2.10 and
12.06 hereof, provided that no Lender may grant any participant any rights to consent to
any amendment, waiver, consent or other modification hereunder other than the rights set forth in
the proviso in Section 12.03, and provided further that no Lender may grant participations to any
Loan Party or any Affiliate of a Loan Party without the prior written consent of the Required
Lenders, which consent may be withheld by the Required Lenders in their sole and absolute
discretion.
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(f) Nothing contained in this Section 12.08 shall prohibit any Lender from pledging its
Revolving Credit Loans hereunder to a Federal Reserve Bank in support of borrowings made by such
Lender from such Federal Reserve Bank.
Section 12.09 Counterparts. This Agreement 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.
Section 12.10 Headings. Section headings herein are included for convenience of
reference only and shall not constitute a part of this Agreement for any other purpose.
Section 12.11 Governing Law.
(a) THIS AGREEMENT, THE REVOLVING CREDIT NOTES AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES, EXCEPT
TO THE EXTENT THAT THE VALIDITY AND PERFECTION OR THE PERFECTION AND THE EFFECT OF PERFECTION OR
NON-PERFECTION OF THE SECURITY INTEREST CREATED THEREBY, OR REMEDIES THEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this Agreement or any other Loan Document
may be brought in the courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, the Companies hereby
irrevocably accept in respect of its property, generally and unconditionally, the jurisdiction of
the aforesaid courts. The Companies further irrevocably consent to the service of process out of
any of the aforementioned courts and in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to the Borrowers or the Companies at
their addresses for notices contained in Section 12.02, such service to become effective ten (10)
days after such mailing. The Companies hereby irrevocably appoint the Secretary of State of the
State of New York as its agent for service of process in respect of any such action or proceeding.
Nothing herein shall affect the right of the Agent to service of process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against any Borrower and/or
any Company in any other jurisdiction. The Companies hereby expressly and irrevocably waive, to
the fullest extent permitted by law, any objection which it may now or hereafter have to the laying
of venue of any such litigation brought in any such court referred to above and any claim that any
such litigation has been brought in an inconvenient forum. To the extent that any Company or any
Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) with respect to itself or its property, such Person hereby irrevocably
waives such immunity in respect of its obligations under this Agreement and the other Loan
Documents.
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Section 12.12 Waiver of Jury Trial, Etc. THE COMPANIES, THE LENDERS AND THE AGENT
HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY
RIGHTS UNDER THIS AGREEMENT, THE NOTES OR OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER,
CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED
IN CONNECTION THEREWITH, OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS
AGREEMENT, AND AGREE THAT ANY SUCH ACTION, PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY. THE COMPANIES CERTIFY THAT NO OFFICER, REPRESENTATIVE, AGENT OR
ATTORNEY OF THE AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR ANY
LENDER WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE
FOREGOING WAIVERS. THE COMPANIES HEREBY ACKNOWLEDGE THAT THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT.
Section 12.13 Consent by the Agent, Lenders. Except as otherwise expressly set forth
herein to the contrary, if the consent, approval, satisfaction, determination, judgment, acceptance
or similar action (an “Action”) of the Agent or the Lenders shall be permitted or required
pursuant to any provision hereof or any provision of any other agreement to which any Company or
any Borrower is a party and to which the Agent or the Lenders has succeeded thereto, such Action
shall be required to be in writing and may be withheld or denied by any Agent or any Lender, as the
case may be, with or without any reason, and without being subject to question or challenge on the
grounds that such Action was not taken in good faith.
Section 12.14 No Party Deemed Drafter. The parties hereto hereby agree that no party
hereto shall be deemed to be the drafter of this Agreement, and each of the Borrowers, the
Companies, the Lenders and the Agent further agrees that, in the event this Agreement is ever
construed by a court of law, such court shall not construe this Agreement or any provision of this
Agreement against any party hereto as the drafter of this Agreement.
Section 12.15 Reinstatement; Certain Payments. If claim is ever made upon the Agent,
the Lenders or the L/C Issuer for repayment or recovery of any amount or amounts received by the
Agent, the Lenders or the L/C Issuer in payment or on account of any of the Obligations under this
Agreement, the Agent, the Lenders or the L/C Issuer shall give prompt notice of such claim to each
other Lender and the L/C Issuer, the Companies and the Borrowers, and if the Agent, the Lenders or
the L/C Issuer repays all or part of said amount by reason of (i) any judgment, decree or order of
any court or administrative body having jurisdiction over the Agent, the Lenders or the L/C Issuer
or any of their property, or (ii) any good faith settlement or compromise of any such claim
effected by the Agent with any such claimant, then and in such event the Companies and the
Borrowers agrees that (A) any such judgment, decree, order, settlement or compromise shall be
binding upon the Companies and the Borrowers notwithstanding the cancellation of any Revolving
Credit Notes or other instrument evidencing the Obligations under this Agreement or the other Loan
Documents or the termination of this Agreement or the other Loan Documents, and (B) it shall be and
remain liable to the Agent, the
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Lenders or the L/C Issuer hereunder for the amount so repaid or recovered to the same extent
as if such amount had never originally been received by the Agent, the Lenders or the L/C Issuer.
Section 12.16 Indemnification. In addition to all of the Companies’ or the Borrowers’
other Obligations under this Agreement, each of the Companies and the Borrowers agrees to, jointly
and severally, defend, protect, indemnify and hold harmless the Agent, the L/C Issuer, the WC
Collateral Agent, each Lender, and each Lender’s Affiliates, and all of the respective officers,
directors, employees, attorneys, consultants and Agent of the Agent, the L/C Issuer, the WC
Collateral Agent, each Lender and each Lender’s Affiliates (collectively called the
“Indemnitees”) from and against any and all losses, damages, liabilities, obligations,
penalties, fees, reasonable costs and expenses (including, without limitation, reasonable
attorneys’ fees, costs and expenses) incurred by such Indemnitees, whether prior to or from and
after the Original Effective Date or the Effective Date, whether direct, indirect or consequential,
as a result of or arising from or relating to or in connection with any of the following: (i) the
negotiation, preparation, execution or performance or enforcement of this Agreement, any Loan
Document or of any other document executed in connection with the transactions contemplated by this
Agreement, (ii) the Lenders’ furnishing of funds to the Borrowers or the L/C Issuer’s issuing
Letters of Credit for the account of the Borrowers under this Agreement, including, without
limitation, the management of any such Revolving Credit Loans or the Reimbursement Obligations,
(iii) any matter relating to the financing transactions contemplated by this Agreement or by any
document executed in connection with the transactions contemplated by this Agreement, or (iv) any
claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto (collectively, the “Indemnified Matters”); provided,
however, that the Companies and the Borrowers shall have no obligation to any Indemnitee
hereunder for any Indemnified Matter caused by or resulting from the gross negligence or willful
misconduct of such Indemnitee, as determined by a final judgment of a court of competent
jurisdiction. Such indemnification for all of the foregoing losses, damages, fees, costs and
expenses of the Indemnitees are chargeable against the Loan Account. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in this Section 12.16 may be
unenforceable because it is violative of any law or public policy, the Companies and the Borrowers
shall contribute the maximum portion which they are permitted to pay and satisfy under applicable
law, to the payment and satisfaction of all Indemnified Matters incurred by the Indemnitees. This
Indemnity shall survive the repayment of the Obligations and the discharge of the Liens granted
under the Loan Documents.
Section 12.17 Environmental Indemnification. Without limiting Section 12.16 hereof,
the Companies and the Borrowers hereby agree to defend, indemnify, and hold harmless the
Indemnitees against any claims, demands, penalties, fines, liability (strict liability), losses,
damages, reasonable costs and expenses (including without limitation, reasonable legal fees and
expenses, consultant fees and laboratory fees) and Environmental Costs arising out of (i) any
Releases or threatened Releases (x) at any property presently or formerly owned or operated by any
Company or any Subsidiary of a Company, or a predecessor in interest to the extent relating to any
Refinery, Terminal or Pipeline, or (y) of any Hazardous Materials generated and disposed of by any
Company or any Subsidiary of a Company, or any predecessor in interests to the extent relating to
any Refinery, Terminal or Pipeline; (ii) any violations of Environmental Laws; (iii) any
Environmental Action relating to any Company or any Subsidiary of any Company, or any predecessor
in interests as to the extent relating to any Refinery, Terminal or Pipeline; or (iv) any
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personal injury (including wrongful death) or property
damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated,
transported or disposed by any Company or any Subsidiary of a Company, or any predecessor in
interest to the extent relating to any Refinery, Terminal or Pipeline; and (v) any breach of any
warranty or representation regarding environmental matters made by the Companies in Section 6.01(s)
or the breach of any covenant made by the Borrowers or the Companies in Section 7.01(i). However,
the Borrowers and the Companies shall not have any obligation under this Section 12.17 regarding
any potential environmental matter covered hereunder which is caused by the gross negligence or
willful misconduct of the Lender, the Agent or its employees, agents, officers and directors. This
Environmental Indemnity shall survive the repayment of the Obligations and discharge of any Liens
granted under the Loan Documents.
Section 12.18 Alon LP as Agent for Borrowers. Each Borrower hereby irrevocably
appoints Alon LP as the borrowing agent and attorney-in-fact for the Borrowers (the
“Administrative Borrower”) which appointment shall remain in full force and effect unless
and until the Agent shall have received prior written notice signed by all of the Borrowers that
such appointment has been revoked and that another Borrower has been appointed Administrative
Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (i)
to provide to the Agent and receive from the Agent all notices with respect to Loans obtained for
the benefit of any Borrower and all other notices and instructions under this Agreement and (ii) to
take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and
to exercise such other powers as are reasonably incidental thereto to carry out the purposes of
this Agreement. It is understood that the handling of the Loan Account and Collateral of the
Borrowers in a combined fashion, as more fully set forth herein, is done solely as an accommodation
to the Borrowers in order to utilize the collective borrowing powers of the Borrowers in the most
efficient and economical manner and at their request, and that neither the Agent nor the Lenders
shall incur liability to the Borrowers as a result hereof. Each of the Borrowers expects to derive
benefit, directly or indirectly, from the handling of the Loan Account and the Collateral in a
combined fashion since the successful operation of each Borrower is dependent on the continued
successful performance of the integrated group. To induce the Agent and the Lenders to do so, and
in consideration thereof, each of the Borrowers hereby jointly and severally agrees to indemnify
the Indemnitees and hold the Indemnitees harmless against any and all liability, expense, loss or
claim of damage or injury, made against such Indemnitee by any of the Borrowers or by any third
party whosoever, arising from or incurred by reason of (a) the handling of the Loan Account and
Collateral of the Borrowers as herein provided, (b) the Agent and the Lenders relying on any
instructions of the Administrative Borrower, or (c) any other action taken by the Agent or any
Lender hereunder or under the other Loan Documents.
Section 12.19 Binding Effect. This Agreement shall become effective when it shall
have been executed by the Guarantor Companies, the Borrowers, the Agent and the Lenders and when
the conditions precedent set forth in Section 5.01 hereof have been satisfied or waived by the
Agent, and thereafter shall be binding upon and inure to the benefit of the Guarantor Companies,
the Borrowers, the Agent and each Lender, and their respective successors and assigns, except that
the Guarantor Companies and the Borrowers shall not have the right to assign their rights hereunder
or any interest herein without the prior written consent of all the Lenders, and the assignment by
any Lender shall be governed by Section 12.08 hereof.
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Section 12.20 Interest. It is the intention of the parties hereto that each Lender
shall conform strictly to usury laws applicable to it. Accordingly, if the transactions
contemplated hereby would be usurious as to any Lender under laws applicable to it (including the
laws of the United States of America and any state thereof or any other jurisdiction whose laws may
be mandatorily applicable to such Lender notwithstanding the other provisions of this Agreement),
then, in that event, notwithstanding anything to the contrary in any of the Loan Documents or any
agreement entered into in connection with or as security for the Revolving Credit Notes or any
other Obligations, it is agreed as follows: (a) the aggregate of all consideration which
constitutes interest under law applicable to any Lender that is contracted for, taken, reserved,
charged or received by such Lender under any of the Loan Documents or agreements or otherwise in
connection with the Revolving Credit Notes shall under no circumstances exceed the maximum amount
allowed by such applicable law, and any excess shall be canceled automatically and if theretofore
paid shall be credited by such Lender on the principal amount of the Obligations (or, to the extent
that the principal amount of the Obligations shall have been or would thereby be paid in full,
refunded by such Lender to the Borrowers); and (b) in the event that the maturity of the Revolving
Credit Notes is accelerated by reason of an election of the holder thereof resulting from any Event
of Default under this Agreement or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest under law applicable to any Lender
may never include more than the maximum amount allowed by such applicable law, and excess interest,
if any, provided for in this Agreement or otherwise shall be canceled automatically by such Lender
as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by
such Lender on the principal amount of the Obligations (or, to the extent that the principal amount
of the Obligations shall have been or would thereby be paid in full, refunded by such Lender to the
Borrowers). All sums paid or agreed to be paid to any Lender for the use, forbearance or detention
of sums due hereunder shall, to the extent permitted by law applicable to such Lender, be
amortized, prorated, allocated and spread throughout the full term of the Revolving Credit Loans
evidenced by the Revolving Credit Notes until payment in full so that the rate or amount of
interest on account of any Revolving Credit Loans hereunder does not exceed the maximum amount
allowed by such applicable law. If at any time and from time to time (i) the amount of interest
payable to any Lender on any date shall be computed at the Highest Lawful Rate applicable to such
Lender pursuant to this Section 12.20. and (ii) in respect of any subsequent interest computation
period the amount of interest otherwise payable to such Lender would be less than the amount of
interest payable to such Lender computed at the Highest Lawful Rate applicable to such Lender, then
the amount of interest payable to such Lender in respect of such subsequent interest computation
period shall continue to be computed at the Highest Lawful Rate applicable to such Lender until the
total amount of interest payable to such Lender shall equal the total amount of interest which
would have been payable to such Lender if the total amount of interest had been computed without
giving effect to this Section 12.20. For purposes of this Section 12.20, “Highest Lawful
Rate” means, with respect to each Lender, the maximum nonusurious interest rate, if any, that
at any time or from time to time may be contracted for, taken, reserved, charged or received on the
Revolving Credit Notes or on other Obligations under laws applicable to such Lender which are
presently in effect or, to the extent allowed by law, under such applicable laws which may
hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable
laws now allow. To the extent that Chapter 303 of the Texas Finance Code is relevant for the
purpose of determining the Highest Lawful Rate, such Lender elects to determine
111
the applicable rate ceiling under such Chapter by the indicated weekly rate ceiling from time
to time in effect.
Section 12.21 Entire Agreement.
(a) THE LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND
SUPERSEDE ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT
MATTER HEREOF AND THEREOF. THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
(b) Each Lender hereunder (i) acknowledges that it has received a copy of the Intercreditor
Agreement, (ii) consents to the subordination of Liens provided for in the Intercreditor Agreement,
(iii) agrees that it will be bound by and will take no actions contrary to the provisions of the
Intercreditor Agreement and (iv) authorizes and instructs each Collateral Agent to enter into the
Intercreditor Agreement as Collateral Agents and on behalf of such Lender. The foregoing provisions
are intended as an inducement to the lenders under the Term Loan Agreement to extend credit to the
Parent and such lenders are intended third party beneficiaries of such provisions and the
provisions of the Intercreditor Agreement.
Section 12.22 Patriot Act. Each Lender hereby notifies the Borrowers that pursuant to
the requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies the Borrowers, which information includes the name and address of the Borrowers and
other information that will allow such Lender to identify the Borrowers in accordance with the
Patriot Act.
Section 12.23 No Novation. This Agreement does not extinguish the obligations for
the payment of money outstanding under the Existing Revolving Credit Agreement or discharge or
release the Obligations under, and as defined in, the Existing Revolving Credit Agreement or the
creation, perfection or priority of any mortgage, pledge, security agreement or any other security
therefor except as expressly provided herein. Nothing herein contained shall be construed as a
substitution or novation of the Obligations outstanding under, and as defined in, the Existing
Revolving Credit Agreement or instruments securing the same, which shall remain in full force and
effect, except as modified hereby or by instruments executed concurrently herewith or after the
execution of the Existing Revolving Credit Agreement and prior to the Effective Date. All interest
and fees and expenses, if any, owing or accruing under or in respect of the Existing Revolving
Credit Agreement through the Effective Date shall be calculated as of the Effective Date (prorated
in the case of any fractional periods), and shall be paid in accordance with the method, and on the
dates, specified in the Existing Revolving Credit Agreement, as if the Existing Revolving Credit
Agreement were still in effect. Nothing expressed or implied in this Agreement shall be construed
as a release or other discharge of any Loan Party under the Existing Revolving Credit Agreement
from any of its obligations and liabilities as a “Borrower” or “Guarantor” thereunder. Each Loan
Party hereby (i) confirms and agrees that each Loan Document to which it is a party is, and shall
continue to
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be, in full force and effect and is hereby ratified and confirmed in all respects except that
on and after the Effective Date all references in any such Loan Document to “the Revolving Credit
Agreement,” “thereto,” “thereof,” “thereunder” or words of like import referring to the Existing
Revolving Credit Agreement shall mean the Existing Revolving Credit Agreement as amended and
restated by this Agreement and (ii) confirms and agrees that to the extent that any such Loan
Document purports to assign or pledge to the Agent a security interest in or Lien on any collateral
as security for the obligations of the Borrowers or the Guarantors from time to time existing in
respect of the Existing Revolving Credit Agreement and the Loan Documents, such pledge, assignment
and/or grant of the security interest or lien is hereby ratified and confirmed in all respects
except as otherwise expressly provided herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
Borrowers: | ||||||||||
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 | |||||||||
EOC ACQUISITION LLC | ||||||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||||
Title: | President |
Financing Agreement
Guarantor Companies: | ||||||||||||||
ALON ASSETS, INC. ALON USA OPERATING, INC ALON USA REFINING, 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 | |||||||||||||
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 |
Financing Agreement
ALON USA PIPELINE, INC. | ||||||||||
By: | /s/Xxxxxxx X. Xxxxxx | |||||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||||
Title: | President |
Financing Agreement
ALON CRUDE PIPELINE, LLC PARAMOUNT PETROLEUM HOLDINGS, INC. PARAMOUNT OF WASHINGTON, LLC PARAMOUNT OF OREGON, LLC |
||||||||||
By: | /s/Xxxxxxx X. Xxxxxx | |||||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||||
Title: | President |
Financing Agreement
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 | |||||||||
Lender and Co-arranger: | ||||||||||
BANK LEUMI USA | ||||||||||
By: | /s/ Xxxxx Xxxxx | |||||||||
Name: | Xxxxx Xxxxx | |||||||||
Title: | First Vice President | |||||||||
By: | /s/ Xxxxxx Xxxxx | |||||||||
Name: | Xxxxxx Xxxxx | |||||||||
Title: | Assistant Treasurer |
Financing Agreement