INCREMENTAL COMMITMENT AGREEMENT Deutsche Bank Trust Company Americas Barclays Bank PLC The Royal Bank of Scotland PLC SunTrust Bank Wells Fargo Bank, N.A. JP Morgan Chase Bank, N.A. PNC Bank, N.A. Capital One, N.A. Comerica Bank Flagstar Bank, FSB...
Exhibit 10.1
Deutsche Bank Trust Company Americas
Barclays Bank PLC
The Royal Bank of Scotland PLC
SunTrust Bank
Xxxxx Fargo Bank, N.A.
XX Xxxxxx Chase Bank, N.A.
PNC Bank, N.A.
Capital One, N.A.
Comerica Bank
Flagstar Bank, FSB
City National Bank
Barclays Bank PLC
The Royal Bank of Scotland PLC
SunTrust Bank
Xxxxx Fargo Bank, N.A.
XX Xxxxxx Chase Bank, N.A.
PNC Bank, N.A.
Capital One, N.A.
Comerica Bank
Flagstar Bank, FSB
City National Bank
December 15, 2011
Coffeyville Resources, LLC
0000 Xxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Chief Financial Officer and Treasurer
0000 Xxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Chief Financial Officer and Treasurer
Re: Incremental Commitments
Ladies and Gentlemen:
Reference is hereby made to the ABL Credit Agreement, dated as of February 22, 2011, among
Coffeyville Pipeline, Inc., Coffeyville Refining & Marketing, Inc., Coffeyville Nitrogen
Fertilizers, Inc., Coffeyville Crude Transportation, Inc., Coffeyville Terminal, Inc., CL JV
Holdings, LLC, Coffeyville Resources, LLC (the “Company”), Coffeyville Resources Refining &
Marketing, LLC, Coffeyville Resources Pipeline, LLC, Coffeyville Resources Crude Transportation,
LLC, Coffeyville Resources Terminal, LLC, certain other Subsidiaries of the Holding Companies and
the Company from time to time party thereto, the lenders from time to time party thereto, Deutsche
Bank Trust Company Americas, JPMorgan Chase Bank, N.A. and Xxxxx Fargo Capital Finance, LLC, as
Co-ABL Collateral Agents, and Deutsche Bank Trust Company Americas, as Administrative Agent and
Collateral Agent (as amended, restated, modified or supplemented from time to time, the “Credit
Agreement”). Unless otherwise defined herein, capitalized terms used herein shall have the
respective meanings set forth in the Credit Agreement. Each lender (each an “Incremental
Lender”) party to this letter agreement (this “Agreement”) hereby severally agrees to
provide the Incremental Commitment set forth opposite its name on Annex I attached hereto
(for each such Incremental Lender, its “Incremental Commitment”). Each Incremental
Commitment provided pursuant to this Agreement shall be subject to all of the terms and conditions
set forth in the Credit Agreement, including, without limitation, Sections 2.01(a) and 2.15
thereof.
Each Incremental Lender, the Borrowers and the Administrative Agent acknowledge and agree that
the Incremental Commitments provided pursuant to this Agreement shall constitute Incremental
Commitments and, upon the Agreement Effective Date (as
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hereinafter defined), the Incremental
Commitment of each Incremental Lender shall become, or in the case of an existing Lender, shall be
added to (and thereafter become a part of), the Revolving Loan Commitment of such Incremental
Lender. Each Incremental Lender, the Borrowers and the Administrative Agent further agree that,
with respect to the Incremental Commitment provided by each Incremental Lender pursuant to this
Agreement, such Incremental Lender shall receive from the Borrowers such upfront fees and/or other
fees, if any, as may be separately agreed to in writing with the Borrowers, all of which fees shall
be due and payable to such Incremental Lender on the terms and conditions set forth in each such
separate agreement.
Furthermore, each of the parties to this Agreement hereby agrees to the terms and conditions
set forth on Annex I hereto in respect of each Incremental Commitment provided pursuant to
this Agreement.
Each Incremental Lender party to this Agreement, to the extent not already a party to the
Credit Agreement as a Lender thereunder, (i) confirms that it is an Eligible Transferee, (ii)
confirms that it has received a copy of the Credit Agreement and the other Credit Documents,
together with copies of the financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Agreement and to become a Lender under the Credit Agreement, (iii) agrees that it will,
independently and without reliance upon the Administrative 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 the Credit Agreement and the other Credit
Documents, (iv) appoints and authorizes the Administrative Agent and the Collateral Agent to take
such action as agent on its behalf and to exercise such powers under the Credit Agreement and the
other Credit Documents as are delegated to the Administrative Agent and the Collateral Agent, as
the case may be, by the terms thereof, together with such powers as are reasonably incidental
thereto, (v) agrees that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement and the other Credit Documents are required to be
performed by it as a Lender, and (vi) attaches the applicable forms and/or Section 5.04(b)(ii)
Certificate referred to in Section 5.04(b) of the Credit Agreement.
Upon the date of (i) the execution of a counterpart of this Agreement by each Incremental
Lender, each Borrower, each Holding Company, each Subsidiary Guarantor and the Administrative
Agent, (ii) the delivery to the Administrative Agent and the Company of a fully executed
counterpart (including by way of facsimile or other electronic transmission) hereof, (iii) the
payment of any fees then due and payable in connection herewith and (iv) the satisfaction of any
other conditions precedent set forth in Section 4 of Annex I hereto (such date, the
“Agreement Effective Date”), each Incremental Lender party hereto (x) shall be obligated to
make the Revolving Loans provided to be made by it as provided in this Agreement, and participate
in Swingline Loans and Letters of Credit made or issued on the terms, and subject to the
conditions, set forth in the Credit Agreement and in this Agreement and (y) to the extent provided
in this Agreement, shall have the rights and obligations of a Lender thereunder and under the other
applicable Credit Documents.
Each Borrower acknowledges and agrees that (i) they shall be jointly and severally liable for
all Obligations of any Borrowers with respect to the Incremental
Commitments provided hereby as provided in the Credit Agreement including, without limitation,
all Revolving Loans made pursuant thereto, and (ii) all such Obligations (including all such
Page 3
Revolving Loans) shall be entitled to the benefits of the respective Security Documents and the
Guaranty in accordance with the requirements of the Credit Agreement.
Each Borrower acknowledges and agrees that, on the Incremental Commitment Date, (i) the
representations and warranties contained in the Credit Agreement and in the other Credit Documents
are true and correct in all material respects with the same effect as though such representations
and warranties had been made on the Incremental Commitment Date, both before and after giving
effect to the Credit Event to occur on the Incremental Commitment Date and the application of the
proceeds thereof, unless stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects as of such earlier
date (it being understood that any representation or warranty that is qualified as to
“materiality,” “Material Adverse Effect” or similar language shall be true and correct in all
respects on any such date), and (ii) no Default or Event of Default exists or would exist after
giving effect to the Credit Event or the application of proceeds therefrom.
Each Holding Company and each Subsidiary Guarantor acknowledge and agree that all Obligations
with respect to the Incremental Commitments provided hereby and all Revolving Loans made pursuant
thereto shall (i) be fully guaranteed pursuant to the Guaranty as, and to the extent, provided
therein and in the Credit Agreement and (ii) be entitled to the benefits of the Credit Documents
as, and to the extent, provided therein and in the Credit Agreement.
Attached hereto as Annex II is a true and correct copy of the officer’s certificate of
the Company and Borrowing Base Certificate required to be delivered pursuant to clause (iv) of the
definition of “Incremental Commitment Requirements” appearing in Section 1.01 of the Credit
Agreement.
You may accept this Agreement by signing the enclosed copies in the space provided below, and
returning one copy of same to us before the close of business on December 15, 2011. If you do not
so accept this Agreement by such time, our Incremental Commitments set forth in this Agreement
shall be deemed canceled.
After the execution and delivery to the Administrative Agent of a fully executed copy of this
Agreement (including by way of counterparts and by facsimile or other electronic transmission) by
the parties hereto, this Agreement may only be changed, modified or varied by written instrument in
accordance with the requirements for the modification of Credit Documents pursuant to Section 13.12
of the Credit Agreement.
In the event of any conflict between the terms of this Agreement and those of the Credit
Agreement, the terms of the Credit Agreement shall control.
* * *
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
| Very truly yours, | ||||||
| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||||||
| By | /s/ Xxxxxxx Xxxx | |||||
| Title: Vice President | ||||||
| By | /s/ Xxxxxxxxxx Xxxxxx | |||||
| Title: Director | ||||||
Signature Page — Incremental Commitment Agreement
| SIGNATURE PAGE TO INCREMENTAL COMMITMENT AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE, AMONG THE BORROWERS, THE GUARANTORS, VARIOUS INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS |
||||||
| NAME OF INSTITUTION: | ||||||
| XX Xxxxxx Xxxxx Bank, N.A. | ||||||
| By: | /s/ J. Xxxxx Xxxx | |||
| Name: | J. Xxxxx Xxxx | |||
| Title: | Authorized Officer | |||
Signature Page — Incremental Commitment Agreement
SIGNATURE PAGE TO INCREMENTAL COMMITMENT
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY
AMERICAS
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY
AMERICAS
| NAME OF INSTITUTION: Xxxxx Fargo Bank, N.A. |
||||
| By: | /s/ Xxxx Ruyston | |||
| Name: | Xxxx Ruyston | |||
| Title: | Director | |||
Signature Page — Incremental Commitment Agreement
SIGNATURE PAGE TO INCREMENTAL COMMITMENT
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY
AMERICAS
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY
AMERICAS
| NAME OF INSTITUTION: SunTrust Bank |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxxxxxxx | |||
| Title: | Vice President | |||
Signature Page — Incremental Commitment Agreement
SIGNATURE PAGE TO INCREMENTAL COMMITMENT
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
| NAME OF INSTITUTION: The Royal Bank of Scotland PLC |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Authorised Signatory | |||
Signature Page — Incremental Commitment Agreement
SIGNATURE PAGE TO INCREMENTAL COMMITMENT
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
| NAME OF INSTITUTION: PNC Bank, N.A. |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | Officer | |||
Signature Page — Incremental Commitment Agreement
SIGNATURE PAGE TO INCREMENTAL COMMITMENT
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
| NAME OF INSTITUTION: Barclays Bank PLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxxx | |||
| Title: | Vice President | |||
Signature Page — Incremental Commitment Agreement
SIGNATURE PAGE TO INCREMENTAL COMMITMENT
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
| NAME OF INSTITUTION: Capital One, N.A. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
Signature Page — Incremental Commitment Agreement
SIGNATURE PAGE TO INCREMENTAL COMMITMENT
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
| NAME OF INSTITUTION: Comerica Bank |
||||
| By: | /s/ X.X. Xxxxxxx | |||
| Name: | X.X. Xxxxxxx | |||
| Title: | Vice President | |||
Signature Page — Incremental Commitment Agreement
SIGNATURE PAGE TO INCREMENTAL COMMITMENT
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
| NAME OF INSTITUTION: Flagstar Bank, FSB |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxxxx, Xx. | |||
| Title: | Senior Vice President | |||
Signature Page — Incremental Commitment Agreement
SIGNATURE PAGE TO INCREMENTAL COMMITMENT
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
AGREEMENT, DATED AS OF THE FIRST DATE WRITTEN ABOVE,
AMONG THE BORROWERS, THE GUARANTORS, VARIOUS
INCREMENTAL LENDERS AND DEUTSCHE BANK TRUST COMPANY AMERICAS
| NAME OF INSTITUTION: City National Bank |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
Signature Page — Incremental Commitment Agreement
Agreed and Accepted to as of
the date first written above:
the date first written above:
COFFEYVILLE RESOURCES, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
COFFEYVILLE RESOURCES REFINING & MARKETING, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
COFFEYVILLE RESOURCES PIPELINE, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
COFFEYVILLE RESOURCES CRUDE TRANSPORTATION, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
COFFEYVILLE RESOURCES TERMINAL, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Signature Page — Incremental Commitment Agreement
XXXX-XXXXXXXX ENERGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
WYNNEWOOD REFINING COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Signature Page — Incremental Commitment Agreement
Each Guarantor acknowledges and agrees to each the foregoing provisions of this Incremental
Commitment Agreement and to the incurrence of the Revolving Loans to be made pursuant thereto.
COFFEYVILLE NITROGEN FERTILIZERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
CL JV HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
COFFEYVILLE REFINING & MARKETING, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
COFFEYVILLE TERMINAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
COFFEYVILLE PIPELINE, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
COFFEYVILLE CRUDE TRANSPORTATION, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Signature Page — Incremental Commitment Agreement
COFFEYVILLE FINANCE INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
CVR GP, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
Signature Page — Incremental Commitment Agreement
ANNEX I
TERMS AND CONDITIONS FOR INCREMENTAL COMMITMENT AGREEMENT
Dated as of December 15, 2011
Dated as of December 15, 2011
| 1. | Names of the Borrowers: | |
| Coffeyville Resources, LLC | ||
| Coffeyville Resources Refining & Marketing, LLC | ||
| Coffeyville Resources Pipeline, LLC | ||
| Coffeyville Resources Crude Transportation, LLC | ||
| Coffeyville Resources Terminal, LLC | ||
| Xxxx-Xxxxxxxx Energy Corporation | ||
| Wynnewood Refining Company | ||
| 2. | Incremental Commitment amounts (as of the Agreement Effective Date): |
| Names of Incremental Lenders | Amount of Incremental Commitment | |
Deutsche Bank Trust Company Americas |
$16,000,000 | |
JPMorgan Chase Bank, N.A. |
$14,000,000 | |
Xxxxx Fargo Bank, N.A. |
$21,500,000 | |
SunTrust Bank |
$13,500,000 | |
The Royal Bank of Scotland PLC |
$12,000,000 | |
PNC Bank, N.A. |
$10,000,000 | |
Barclays Bank PLC |
$8,000,000 | |
Capital One, N.A. |
$15,000,000 | |
Comerica Bank |
$10,000,000 | |
Flagstar Bank, FSB |
$20,000,000 | |
City National Bank |
$10,000,000 | |
Total: |
$150,000,000 |
| 3. | Applicable Margins and Adjustable Applicable Margins to be applicable to all Revolving Loans |
As currently provided in the Credit Agreement.
| 4. | Other Conditions Precedent: |
(a) The satisfaction of all conditions precedent in Sections 2.15 and 7 of the Credit
Agreement (including, without limitation, the satisfaction of all Incremental Commitment
Requirements),
(b) that certain Stock Purchase and Sale Agreement by and among The Xxxx Xxxxxxxx Company,
GWEC Holding Company, Inc., Xxxx-Xxxxxxxx Energy Corporation, CVR Energy, Inc. (“Parent”)
and the Company, dated November 2, 2011, relating to the Company’s acquisition (the
“Acquisition”) of all or substantially all of the business (including, without limitation,
all assets, licenses and related operations) of Xxxx-Xxxxxxxx Energy Corporation and (indirectly)
its subsidiaries (collectively the “Acquired Business”) (including, but not limited to, all
schedules and exhibits thereto) (collectively, the “Acquisition Agreement”) shall be in
full force and effect. Concurrently with the funding of $400.0 million of cash on hand (the
“Cash Contribution”) and (if applicable) the funding under a new senior secured bridge
facility (the “Senior Secured Bridge Facility”) and/or the issuance of senior secured notes
issued as Additional Notes under the Company’s Indenture dated as of April 6, 2010 generating gross
proceeds of up to $275.0 million in a Rule 144A or other private placement without registration
rights (the “Senior Secured Notes”), the Acquisition shall have been consummated in
accordance with the Acquisition Agreement, and the Acquisition Agreement shall not have been
altered, amended or otherwise changed or supplemented or any provision or condition therein waived
if such alteration, amendment, change, supplement or waiver would be adverse to the interests of
the Incremental Lenders in any material respect, in any such case without the prior written consent
of Deutsche Bank Trust Company Americas, Deutsche Bank Securities Inc., Barclays Capital, Barclays
Bank PLC, The Royal Bank of Scotland plc, RBS Securities Inc., SunTrust Bank and SunTrust Xxxxxxxx
Xxxxxxxx, Inc. (collectively, the “Agents”) (which consent may not be unreasonably
withheld, conditioned or delayed); provided that any reduction in purchase price (excluding
the effect of any working capital adjustments as provided in the Acquisition Agreement) of more
than 10% shall be deemed to be materially adverse and any reduction in purchase price shall result
in a reduction in the Senior Secured Bridge Facility (or the Senior Secured Notes in lieu thereof),
(c) since December 31, 2010, no event has occurred which, individually or in the aggregate,
has had, or would be reasonably expected to have, a Target Material Adverse Effect. As used in this
paragraph (c), the term “Target Material Adverse Effect” shall mean, with respect to
Xxxx-Xxxxxxxx Energy Corporation, any result, occurrence, condition, fact, change, violation,
event, discovery of information, circumstance, state of facts or effect that, individually or in
the aggregate, (x) materially delays (except with respect to the conditions to Closing set forth in
Article 5 of the Acquisition Agreement) or prevents the ability of Seller Parent, Seller,
Xxxx-Xxxxxxxx Energy Corporation or its Subsidiaries to perform its obligations under the
Acquisition Agreement or any of the Ancillary Documents or to consummate the transactions
contemplated thereby, or (y) is materially adverse to the financial condition, business,
properties, assets,
liabilities or results of operations of Xxxx-Xxxxxxxx Energy Corporation and its Subsidiaries taken
as a whole, provided, however, that in the case of clause (y), no Excluded Matter
shall be taken into account in determining whether there has been a Target Material Adverse Effect.
Defined terms used in this paragraph (c) without definition shall have the meanings ascribed
thereto in the Acquisition Agreement (as in effect on the date hereof),
(d) the Company shall have satisfied all of the requirements of the Credit Agreement
applicable to a Permitted Acquisition in connection with the Acquisition (including all of the
requirements set forth in Sections 9.13 and 10.12 of the Credit Agreement),
(e) after giving effect to the consummation of the transactions described in paragraph (b) of
this Section 4 (the “Transaction”), CVR Energy, Inc. and its subsidiaries (other than CVR
Partners, LP and its subsidiary) shall have no outstanding preferred equity or indebtedness, except
for (i) the Senior Secured Notes and/or the Senior Secured Bridge Loans, (ii) debt incurred under
the Credit Agreement (including debt incurred under $150.0 million in aggregate Incremental
Commitments (the “Incremental Revolving Loan Facility”)), (iii) the Company’s existing
First Lien Senior Secured Notes due 2015 (the “Existing Notes”), (iv) the Company’s 10.875%
Second Lien Notes due 2017, (v) the xxxx-to-market value of any derivative instruments, (vi) such
other debt identified in CVR Energy, Inc.’s most recent quarterly report on Form 10-Q, (vii)
capital leases and other debt of the Acquired Business in an aggregate amount not to exceed $50.0
million and (viii) such other indebtedness not exceeding $30.0 million in the aggregate or as shall
be agreed to by the Agents. The Acquisition and the Senior Secured Bridge Loans and/or the Senior
Secured Notes (and any liens securing such obligations) and all existing debt of the Acquired
Business (and any liens securing such obligations) that is to remain outstanding after giving
effect to the consummation of the Transaction, in each case, shall be permitted under the Credit
Agreement without resulting in any Default or Event of Default thereunder,
(f) the Incremental Lenders shall have received (1) customary legal opinions from counsel
(including, without limitation, New York counsel) covering matters reasonably acceptable to the
Agents, (2) a solvency certificate, in form and substance reasonably satisfactory to the Agents,
from the chief financial officer of the Company as to the solvency of the Company and its
Subsidiaries on a consolidated pro forma basis and (3) other customary and
reasonably satisfactory closing and corporate documents, resolutions, certificates, instruments,
lien searches and deliverables, or an agreement to provide any of the foregoing set forth in clause
(3) on a post-closing basis,
(g) the Agents shall have received and be satisfied with (1)(a) audited consolidated balance
sheets and related statements of income and cash flows of the Acquired Business for the three
fiscal years of the Acquired Business ended at least 90 days prior to the Agreement Effective Date,
and (b) audited consolidated balance sheets and related statements of income and cash flows of the
Parent for the three fiscal years of the Company ended at least 90 days prior to the Agreement
Effective Date (it being understood that the Agents have received such financial statements for the
fiscal years ended 2008, 2009 and 2010), (2)(a) unaudited consolidated balance sheets and related
statements of income and cash flows of the Acquired Business for each fiscal quarter of the
Acquired Business ended after the close of its most recent fiscal year and at least 45 days prior
to the Agreement Effective Date, and (b) unaudited consolidated
balance sheets and related statements of income and cash flows of the Parent for each fiscal
quarter of the Parent ended after the close of its most recent fiscal year and at least 45 days
prior to the Agreement Effective Date (it being understood that the Agents have received the
financial statements for the quarterly period ended March 31, 2011 and June 30, 2011 as of the date
hereof), (3) pro forma consolidated financial statements of the Parent and its
subsidiaries (including the Acquired Business) prepared on a basis consistent with the Parent’s
historical audited financial statements referred to above and a pro forma
consolidated statement of income of the Parent for the twelve-month period ending on the last day
of the most recently completed four-fiscal-quarter period ended at least 45 days before the
Agreement Effective Date, prepared after giving effect to the Transaction as if the Transaction had
occurred at the beginning of such period, and (4) detailed projected consolidated financial
statements of the Company and its subsidiaries for at least the five fiscal years ending after the
Agreement Effective Date, which projections shall (x) reflect the forecasted consolidated financial
condition of the Company and its subsidiaries after giving effect to the Transaction and the
related financing thereof, (y) be prepared and approved by the Company, and (z) show minimum
utilization of drawings under the Credit Agreement (including under the Incremental Revolving Loan
Facility) of at least $60.0 million (inclusive of outstanding Letters of Credit). It being
understood that to the extent the Parent publicly files any financial statement with the SEC that
are required by this paragraph (g) such financial statements when filed shall be deemed received by
the Agents,
(h) all fees and expenses related to the Transaction payable to the Agents or the Incremental
Lenders presented to the Company not less than two business days prior to the Agreement Effective
Date and required to be paid on the Agreement Effective Date shall have been paid to the extent
due,
(i) the Agents shall have received all documentation and other information required by
regulatory authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including without limitation the PATRIOT Act, to the extent reasonably requested in
writing at least 10 calendar days prior to the Agreement Effective Date by the Agents, and
(j) after giving effect to the Transactions and any borrowings of Loans or issuances of
Letters of Credit under the Credit Agreement (including under the Incremental Revolving Loan
Facility) on the Agreement Effective Date, Excess Availability shall be greater than $100.0
million.
