Alon Refining Krotz Springs,
Inc.
13
1
/ 3 %
Senior Secured Notes due 2014
JEFFERIES &
COMPANY, INC.
520 Madison Avenue
New York, New York 10022
Alon Refining
Krotz Springs, Inc., a Delaware corporation (the “
Company ”), hereby agrees with you as
follows:
1. Issuance of Notes . Subject to the terms and
conditions herein contained, the Company proposes to issue and sell
to Jefferies & Company, Inc., as the initial purchaser (the
“ Initial Purchaser ”), $216,500,000 aggregate
principal amount of its 13 1 / 3
% Senior Secured Notes due 2014
(each a “ Note ” and, collectively, the “
Notes ”). The Notes will be issued pursuant to an
indenture (the “ Indenture ”), to be dated as of
October 22, 2009, by and between the Company and Wilmington
Trust FSB, as trustee (the “ Trustee ”).
Capitalized terms used, but not defined herein, shall have the
meanings set forth in the “Description of the Notes”
section of the Final Offering Memorandum (as hereinafter
defined).
The Notes will be
offered and sold to the Initial Purchaser pursuant to an exemption
from the registration requirements under the Securities Act of
1933, as amended (the “ Act ”). Upon original
issuance thereof, and until such time as the same is no longer
required under the applicable requirements of the Act, the Notes
shall bear the legends set forth in the final offering memorandum,
dated the date hereof (the “ Final Offering Memorandum
”). The Company has prepared a preliminary offering
memorandum, dated September 29, 2009 (the “
Preliminary Offering Memorandum ”), (ii) a
pricing term sheet attached hereto as Schedule I ,
which includes pricing terms and other information with respect to
the Notes (the “ Pricing Supplement ”) and
(iii) the Final Offering Memorandum relating to the offer and
sale of the Notes (the “ Offering ”). “
Offering Memorandum ” means, as of any date or time
referred to in this Agreement, the most recent offering memorandum
(whether the Time of Sale Document (as hereinafter defined) or the
Final Offering Memorandum, and any amendment or supplement to
either such document), including exhibits and schedules thereto and
all documents incorporated by reference therein. The Preliminary
Offering Memorandum and the Pricing Supplement are collectively
referred to herein as the “ Time of Sale Document
.”
2. Terms of Offering . The Initial Purchaser
has advised the Company, and the Company understands, that the
Initial Purchaser will make offers to sell (the “ Exempt
Resales ”) some or all of the Notes purchased by the
Initial Purchaser hereunder on the terms set forth in the Final
Offering Memorandum, as amended or supplemented, to persons (the
“ Subsequent Purchasers ”) whom the Initial
Purchaser (i) reasonably believes to be “qualified
institutional buyers” (“ QIBs ”) as
defined in Rule 144A
under the Act,
as such may be amended from time to time, (ii) reasonably
believes (based upon written representations made by such persons
to the Initial Purchaser) to be institutional “accredited
investors” as defined in Rule 501(a)(1), (2),
(3) or (7) under the Act (“ Accredited
Investors ”) or (iii) reasonably believes not to be
“U.S. persons” (as defined under Rule 902(e) of the
Act) in reliance upon and in accordance with Regulation S
under the Act.
The Company has
requested that the Initial Purchaser make Exempt Resales to certain
institutional investors listed in the First Addendum to the Israeli
Securities Law 5728-1968 (the “ Company Identified
Investors ”). With respect to any sales to such investors
the Company and the Initial Purchaser agree that: (a) such
sales will be made to Poalim IBI Underwriting & Issuing Ltd.,
IBI Investments House Ltd., or one of their affiliates acceptable
to the Initial Purchaser (collectively, “ IBI
”), who will purchase Notes on behalf of the Company
Identified Investors and (b) the Initial Purchaser shall have
received representations from IBI and each of the Company
Identified Investors in form and substance satisfactory to
it.
Pursuant to the
Indenture, all future domestic Restricted Subsidiaries of the
Company, if any, jointly and severally, will fully and
unconditionally guarantee, on a senior secured basis, to each
holder of the Notes and the Trustee, the payment and performance of
the Company’s obligations under the Indenture and the Notes,
subject to limitations intended to prevent such guarantees from
constituting fraudulent conveyances under applicable law (each such
subsidiary being referred to herein as a “ Guarantor
” and each such guarantee being referred to herein as a
“ Guarantee” ).
Pursuant to the
terms of the Collateral Documents, all of the obligations under the
Notes and the Indenture will be secured by a first priority lien on
and security interest in all of the assets of the Company
constituting Notes Priority Collateral (other than the Crack Spread
Hedging Collateral) and a second priority lien on and security
interest in all of the assets of the Company constituting RCF
Priority Collateral and Crack Spread Hedging Collateral, in each
case subject to Permitted Prior Liens.
Holders of the
Notes (including Subsequent Purchasers) will have the registration
rights set forth in the registration rights agreement applicable to
the Notes (the “ Registration Rights Agreement
”), to be dated as of the Closing Date. Pursuant to the
Registration Rights Agreement, the Company will agree, among other
things, to file with the Securities and Exchange Commission (the
“ SEC ”) (a) a registration statement under
the Act relating to senior secured notes (the “ Exchange
Notes ”) which shall be substantially identical in all
material respects to the Notes (except that the Exchange Notes
shall have been registered pursuant to such registration statement
and will not be subject to restrictions on transfer or contain
additional interest provisions) to be offered in exchange for the
Notes (such offer to exchange being referred to as the “
Exchange Offer ”), and (b) under certain
circumstances, a shelf registration statement pursuant to
Rule 415 under the Act (the “ Shelf Registration
Statement ”) relating to the resale by certain holders of
the Notes. If required under the Registration Rights Agreement, the
Company will issue Exchange Notes to the Initial Purchaser (the
“ Private Exchange Notes ”). If the Company
fails to satisfy its obligations under the Registration Rights
Agreement, it will be required to pay additional interest to the
holders of the Notes under certain circumstances.
This Agreement,
the Indenture, the Collateral Documents, the Registration Rights
Agreement, the Notes, the Exchange Notes and the Private Exchange
Notes are collectively referred to herein as the “
Documents .”
3. Purchase, Sale and Delivery . On the basis of the
representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth,
the Company agrees to issue and sell to the Initial Purchaser, and
the Initial Purchaser agrees to purchase from the Company, at the
price set forth in Schedule A hereto, the aggregate
principal amount of Notes set forth in Schedule A .
Delivery to the Initial Purchaser of and payment for the Notes
shall be made at a
Closing (the
“ Closing ”) to be held at 10:00 a.m., New
York City time, on October 22, 2009 (the “ Closing
Date ”) at the New York offices of White & Case
LLP.
The Company shall
deliver to the Initial Purchaser one or more certificates
representing the Notes in definitive form, registered in such names
and denominations as the Initial Purchaser may request, against
payment by the Initial Purchaser of the purchase price therefor by
immediately available Federal funds bank wire transfer to such bank
account or accounts as the Company shall designate to the Initial
Purchaser at least two business days prior to the Closing. The
certificates representing the Notes in definitive form shall be
made available to the Initial Purchaser for inspection at the New
York offices of White & Case LLP (or such other place as shall
be reasonably acceptable to the Initial Purchaser) not later than
10:00 a.m., New York City time, one business day immediately
preceding the Closing Date. Notes to be represented by one or more
definitive global securities in book-entry form will be deposited
on the Closing Date, by or on behalf of the Company, with The
Depository Trust Company (“ DTC ”) or its
designated custodian, and registered in the name of Cede &
Co.
4. Representations and Warranties of the Company The
Company represents and warrants to the Initial Purchaser
that:
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(a)
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(i) Neither the Time of Sale
Document, nor any amendment or supplement thereto, as of the
Applicable Time (as hereinafter defined) contained any untrue
statement of a material fact, or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and
(ii) the Final Offering Memorandum, as of the date hereof and
at the Closing Date, as then amended or supplemented, does not and
will not, contain any untrue statement of a material fact, or omit
to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this Section 4(a) do not apply to statements
or omissions made in reliance upon and in conformity with
information relating to the Initial Purchaser and furnished to the
Company in writing by the Initial Purchaser expressly for use in
the Time of Sale Document or the Final Offering Memorandum or any
amendment or supplement thereto. No injunction or order has been
issued that either (x) asserts that any of the transactions
contemplated by the Documents is subject to the registration
requirements of the Act or (y) would prevent or suspend the
issuance or sale of any of the Notes or the use of the Time of Sale
Document, the Final Offering Memorandum or any amendment or
supplement thereto, in any jurisdiction. No statement of material
fact included in the Final Offering Memorandum has been omitted
from the Time of Sale Document and no statement of material fact
included in the Time of Sale Document that is required to be
included in the Final Offering Memorandum has been omitted
therefrom. Each of the Time of Sale Document and the Final Offering
Memorandum, as of their respective dates, contained, and the Final
Offering Memorandum, as amended or supplemented, as of the Closing
Date will contain, all the information specified in, and meet the
requirements of Rule 144A(d)(4) under the Act.
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“
Applicable Time ” means 2:45 p.m. (New York City time)
on October 13, 2009, or such other time as agreed by the
Company and the Initial Purchaser.
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(b)
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The
Company does not own more than fifty percent (50%) of any class of
equity securities or interests of any corporation, partnership or
other entity.
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(c)
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The
Company (i) has been duly organized or formed, as the case may
be, is validly existing and is in good standing under the laws of
its jurisdiction of organization, (ii) has all requisite
corporate power and authority to carry on its business as now
conducted and as described in the Offering Memorandum and to own,
lease and operate its properties and assets, and (iii) is duly
qualified or licensed to do business and is in good standing as a
foreign corporation authorized to do business
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in
each jurisdiction in which the nature of such businesses or the
ownership or leasing of such properties requires such
qualification, except where the failure to be so qualified would
not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on (A) the properties,
business, operations, earnings, assets, liabilities or condition
(financial or otherwise) of the Company, (B) the ability of
the Company to perform its obligations in all material respects
under any Document, (C) the enforceability of any Collateral
Document or the attachment, perfection or priority of any of the
Liens or security interests intended to be created thereby, or
(D) the validity or enforceability of any of the Documents,
and (E) the consummation of any of the transactions
contemplated under any of the Documents (each, a “
Material Adverse Effect ”).
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(d)
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All
of the issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully
paid and nonassessable, and were not issued in violation of, and
are not subject to, any preemptive or similar rights. The table
under the caption “ Capitalization ” in the Time
of Sale Document and the Final Offering Memorandum (including the
footnotes thereto) sets forth, as of its date, the capitalization
of the Company.
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(e)
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No
holder of securities, other than the Notes and any Additional Notes
(as defined in the Indenture) issued pursuant to the Indenture, of
the Company will be entitled to have such securities registered
under the registration statements required to be filed by the
Company with respect to the Notes pursuant to the Registration
Rights Agreement.
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(f)
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The
Company has all the requisite corporate power and authority to
execute, deliver and perform its obligations under the Documents to
which it is a party and to consummate the transactions contemplated
thereby.
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(g)
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This Agreement has been duly and
validly authorized, executed and delivered by the Company. Each of
the Indenture and the Collateral Documents has been duly and
validly authorized by the Company. Each of the Indenture and the
Collateral Documents, when executed and delivered by the Company,
will constitute a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, receivership,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors’ rights generally
and (ii) general principles of equity (whether applied by a
court of law or equity) and the discretion of the court before
which any proceeding therefor may be brought.
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(h)
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The
Registration Rights Agreement has been duly and validly authorized
by the Company. The Registration Rights Agreement, when executed
and delivered by the Company, will constitute a legal, valid and
binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as rights to indemnification
and contribution therein may be limited to applicable law, general
equitable principles and public policy considerations and except
that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, receivership, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect
relating to creditors’ rights generally and (ii) general
principles of equity (whether applied by a court of law or equity)
and the discretion of the court before which any proceeding
therefor may be brought.
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(i)
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The
Notes, when issued, will be in the form contemplated by the
Indenture. When executed and delivered by the Company, the
Indenture will meet the requirements for qualification under the
Trust Indenture Act of 1939, as amended (the “ TIA
”). The Notes, Exchange Notes and Private Exchange Notes have
each been duly and validly authorized by the Company and, in the
case of the Notes, when delivered to and paid for by the Initial
Purchaser in accordance with the terms of
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this Agreement and the Indenture,
will have been duly executed, issued and delivered and will be
legal, valid and binding obligations of the Company, entitled to
the benefit of the Indenture, the Collateral Documents and the
Registration Rights Agreement, and enforceable against the Company
in accordance with their terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to creditors’ rights
generally and (ii) general principles of equity (whether
applied by a court of law or equity) and the discretion of the
court before which any proceeding therefor may be
brought.
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(j)
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The
Company is not in violation of its certificate of incorporation,
by-laws or other organizational documents (the “ Charter
Documents ”). The Company is not (i) in violation of
any Federal, state, local or foreign statute, law (including,
without limitation, common law) or ordinance, or any judgment,
decree, rule, regulation or order (collectively, “
Applicable Law ”) of any federal, state, local and
other governmental authority, governmental or regulatory agency or
body, court, arbitrator or self-regulatory organization, domestic
or foreign (each, a “ Governmental Authority ”)
applicable to it or any of its properties, or (ii) in breach
of or default under any bond, debenture, note or other evidence of
indebtedness, indenture, mortgage, deed of trust, lease or any
other agreement or instrument to which it is a party or by which it
or its property is bound (collectively, “ Applicable
Agreements ”), except for such violations, breaches or
defaults that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. All
Applicable Agreements are in full force and effect and are legal,
valid and binding obligations of the Company, with only such
exceptions as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. To the
Company’s knowledge, after due inquiry, there exists no
condition that, with the passage of time or otherwise, would
constitute (a) a violation of such Charter Documents or
Applicable Laws, (b) a breach of or default under any Applicable
Agreement or (c) result in the imposition of any penalty or
the acceleration of any indebtedness, except in the cases of
sub-clause (b) and (c), as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
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(k)
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Neither the execution, delivery or
performance of the Documents nor the consummation of any
transactions contemplated therein will conflict with, violate,
constitute a breach of, or a default (with the passage of time or
otherwise) under, require the consent of any person (other than
consents already obtained and in full force and effect and, with
respect to the consent from the lenders under the Revolving Credit
Facility, subject to satisfaction of the conditions to such consent
prior to the Closing Date, and consents required from landlords
with respect to the leasehold mortgages) under, result in the
imposition of a Lien on any assets of the Company (except for Liens
pursuant to the Collateral Documents), or result in an acceleration
of indebtedness under or pursuant to (i) the Charter
Documents, (ii) any Applicable Agreement, or (iii) any
Applicable Law. Immediately after consummation of the Offering and
transactions contemplated in the Documents, no Default or Event of
Default will exist.
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(l)
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When executed and delivered, the
Documents will conform in all material respects to the descriptions
thereof in the Time of Sale Document and the Final Offering
Memorandum.
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(m)
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No
consent, approval, authorization or order of any Governmental
Authority, or third party is required for the issuance and sale by
the Company of the Notes to the Initial Purchaser or the
consummation by the Company of the other transactions contemplated
hereby, except such as may be required from landlords with respect
to the leasehold mortgages, such as have been obtained, and such as
may be required under state securities or “Blue Sky”
laws in connection with the purchase and resale of the Notes by the
Initial Purchaser.
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(n)
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There is no action, claim, suit,
demand, hearing, notice of violation or deficiency, or proceeding,
domestic or foreign (collectively, “ Proceedings
”), pending or, to the knowledge of the Company, threatened,
that either (i) seeks to restrain, enjoin, prevent the
consummation of, or otherwise challenge any of the Documents or any
of the transactions contemplated therein, or (ii) would,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The Company is not subject to any
judgment, order, decree, rule or regulation of any Governmental
Authority that would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
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(o)
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The
Company possesses all licenses, permits, certificates, consents,
orders, approvals and other authorizations from, and has made all
declarations and filings with, all Governmental Authorities,
presently required or necessary to own or lease, as the case may
be, and to operate its properties and to carry on its business as
now or proposed to be conducted as set forth in the Time of Sale
Document and the Final Offering Memorandum (“ Permits
”), except where the failure to obtain such Permits would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; the Company has fulfilled and
performed all of its obligations with respect to such Permits
except for where the failure to fulfill or perform such obligations
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect and, to the Company’s
knowledge after due inquiry, no event has occurred which allows, or
after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of
the rights of the holder of any such Permit; and the Company has
not received any notice of any proceeding relating to revocation or
modification of any such Permit, except as described in the Time of
Sale Document and the Final Offering Memorandum, or except where
such revocation or modification would not, individually or in the
aggregate, have a Material Adverse Effect.
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(p)
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The
Company has good and valid title to all real property owned by it
and good title to all personal property owned by it and good and
valid title to all leasehold estates in real and personal property
being leased by it and, as of the Closing Date, all such property
(real and personal) will be free and clear of all liens, security
interests, mortgages, pledges, charges, equities, claims or
restrictions on transferability or encumbrances of any kind
(collectively, “ Liens ), other than Permitted Liens.
All Applicable Agreements to which the Company is a party or by
which it is bound are valid and enforceable against the Company,
and, to the Company’s knowledge, are valid and enforceable
against the other party or parties thereto and are in full force
and effect with only such exceptions as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
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(q)
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All
Tax returns required to be filed by the Company have been filed and
all such returns are true, complete, and correct in all material
respects. All material Taxes that are due from the Company have
been paid other than those (i) currently payable without
penalty or interest or (ii) being contested in good faith and
by appropriate proceedings and for which adequate reserves have
been established in accordance with generally accepted accounting
principles of the United States, consistently applied (“
GAAP ”). To the knowledge of the Company, after
reasonable inquiry, there are no actual or proposed Tax assessments
against the Company that would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The
accruals and reserves on the books and records of the Company in
respect of any material Tax liability for any period not finally
determined are adequate to meet any assessments of Tax for any such
period. For purposes of this Agreement, the term “ Tax
” and “ Taxes ” shall mean all Federal,
state, local and foreign taxes, and other assessments of a similar
nature (whether imposed directly or through withholding), including
any interest, additions to tax, or penalties applicable
thereto.
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(r)
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The
Company owns, or is licensed under, and has the right to use, all
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, “
Intellectual Property ”) necessary for the conduct of
its business, except where the failure to own or license such
Intellectual Property would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect and, as of
the Closing Date, will be free and clear of all Liens, other than
Permitted Liens. No claims or notices of any potential claim have
been asserted by any person challenging the use of any such
Intellectual Property by the Company or questioning the validity or
effectiveness of the Intellectual Property or any license or
agreement related thereto (other than any claims that, if
successful, would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect). The use of such
Intellectual Property by the Company will not infringe on the
Intellectual Property rights of any other person in any material
manner.
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(s)
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The
Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) material
transactions are executed in accordance with management’s
general or specific authorization, (ii) material transactions
are recorded as necessary to permit preparation of financial
statements in conformity with GAAP, and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any material
differences.
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(t)
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The
audited financial statements and related notes of the Company
contained in the Time of Sale Document and the Final Offering
Memorandum (the “ Financial Statements ”)
present fairly the financial position, results of operations and
cash flows of the Company or Valero Refining Company –
Louisiana, as the case may be, as of the respective dates and for
the respective periods to which they apply and have been prepared
in accordance with GAAP and the requirements of Regulation S-X
of the Act. Except as disclosed in the Time of Sale Document and
the Final Offering Memorandum, the financial data set forth under
“ Summary Historical and Adjusted Financial and Operating
Data ” and “ Selected Historical Financial
Data ” included in the Final Offering Memorandum has been
prepared on a basis consistent with that of the Financial
Statements and present fairly the financial position and results of
operations of the Company as of the respective dates and for the
respective periods indicated. Except as disclosed in the Time of
Sale Document and the Final Offering Memorandum, the unaudited pro
forma financial information and related notes of the Company
contained in the Time of Sale Document and the Final Offering
Memorandum have been prepared in accordance with the requirements
of Regulation S-X and give effect to assumptions used in the
preparation thereof on a reasonable basis and in good faith. All
other financial, statistical, and market and industry-related data
included in the Time of Sale Document and the Final Offering
Memorandum are fairly and accurately presented and are based on or
derived from sources that the Company believes to be reliable and
accurate.
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(u)
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Subsequent to the respective dates
as of which information is given in the Time of Sale Document and
the Final Offering Memorandum, except as disclosed in or
contemplated by the Time of Sale Document and the Final Offering
Memorandum, (i) the Company has not incurred any liabilities,
direct or contingent, that are material, individually or in the
aggregate, to the Company, or has entered into any transactions not
in the ordinary course of business, (ii) there has not been any
material decrease in the capital stock or any material increase in
long-term indebtedness or any material increase in short-term
indebtedness of the Company, or any payment of or declaration to
pay any dividends or any other distribution with respect to the
Company, and (iii) there has not been any material adverse
change in the properties, business, operations, earnings, assets,
liabilities or condition (financial or otherwise) of the Company
(each of clauses (i), (ii) and (iii), a
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“ Material Adverse
Change ”). To the knowledge of the Company after
reasonable inquiry, except as disclosed in the Time of Sale
Document and the Final Offering Memorandum, there is no event that
is reasonably likely to occur, which if it were to occur, would,
individually or in the aggregate, have a Material Adverse
Effect.
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(v)
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No
“nationally recognized statistical rating organization”
(as such term is defined for purposes of Rule 436(g)(2) under
the Act) (i) has imposed (or has informed the Company that it
is considering imposing) any condition (financial or otherwise) on
the Company retaining any rating assigned to the Company or to any
securities of the Company, or (ii) has indicated to the
Company that it is considering (A) the downgrading,
suspension, or withdrawal of, or any review for a possible change
that does not indicate the direction of the possible change in, any
rating so assigned, or (B) any change in the outlook for any
rating of the Company or any securities of the Company.
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(w)
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All
indebtedness represented by the Notes is being incurred for proper
purposes and in good faith. On the Closing Date, after giving pro
forma effect to the Offering and the use of proceeds therefrom as
indicated in the “ Use of Proceeds ” section of
the Time of Sale Document and Final Offering Memorandum, the
Company will be Solvent. As used in this paragraph, the term
“ Solvent ” means, with respect to a particular
date, that on such date (i) the present fair market value (or
present fair saleable value) of the assets of the Company is not
less than the total amount required to pay the liabilities of the
Company on its total existing debts and liabilities (including
contingent liabilities) as they become absolute and matured;
(ii) the Company is able to pay its debts and other
liabilities, contingent obligations and commitments as they mature
and become due in the normal course of business;
(iii) assuming consummation of the issuance of the Notes as
contemplated by this Agreement and the Time of Sale Document and
Offering Memorandum, the Company is not incurring debts or
liabilities beyond its ability to pay as such debts and liabilities
mature; (iv) the Company is not engaged in any business or
transaction, and does not propose to engage in any business or
transaction, for which its property would constitute unreasonably
small capital after giving due consideration to the prevailing
practice in the industry in which the Company is engaged; and
(v) the Company is not otherwise insolvent under the standards
set forth in applicable laws.
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(x)
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Except as contemplated by the Time
of Sale Document and the Final Offering Memorandum, the Company has
not, and to its knowledge after reasonable inquiry, no one acting
on its behalf has, (i) taken, directly or indirectly, any
action designed to cause or to result in, or that has constituted
or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Notes,
(ii) sold, bid for, purchased, or paid anyone any compensation
for soliciting purchases of, any of the Notes, or (iii) except
as disclosed in the Time of Sale Document and the Final Offering
Memorandum, paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the
Company.
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(y)
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Without limiting any provision
herein, no registration under the Act and no qualification of the
Indenture under the TIA is required for the sale of the Notes to
the Initial Purchaser as contemplated hereby or for the Exempt
Resales, assuming (i) that the purchasers in the Exempt
Resales are QIBs or Accredited Investors or non-U.S. persons (as
defined under Regulation S of the Act) and (ii) the
accuracy of the Initial Purchaser’s representations contained
herein regarding the absence of general solicitation in connection
with the sale of the Notes to the Initial Purchaser and in the
Exempt Resales.
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(z)
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The
Notes are eligible for resale pursuant to Rule 144A under the
Act and no other securities of the Company are of the same class
(within the meaning of Rule 144A under the Act) as the
Notes
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and
listed on a national securities exchange registered under
Section 6 of the Securities Exchange Act of 1934, as amended
(the “ Exchange Act ”), or quoted in a U.S.
automated inter-dealer quotation system. No securities of the
Company of the same class as the Notes have been offered, issued or
sold by the Company or any of its respective Affiliates within the
six-month period immediately prior to the date hereof.
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(aa)
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Neither of the Company nor any of
its respective affiliates or other person acting on behalf of the
Company has offered or sold the Notes by means of any general
solicitation or general advertising within the meaning of Rule
502(c) under the Act or, with respect to Notes sold outside the
United States to non-U.S. persons (as defined in Rule 902
under the Act), by means of any directed selling efforts within the
meaning of Rule 902 under the Act, and the Company, any
affiliate of the Company and any person acting on behalf of the
Company have complied with and will implement the “offering
restrictions” within the meaning of such Rule 902;
provided , that no representation is made in this subsection
with respect to the actions of the Initial Purchaser.
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(bb)
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Except as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect, (1) each “employee benefit plan,” within
the meaning of Section 3(3) of the United States Employee
Retirement Income Security Act of 1974, as amended (“
ERISA ”), which the Company or any ERISA Affiliate (as
defined below) sponsors or maintains, or with respect to which the
Company or any ERISA Affiliate has (or within the last three years
had) any obligation to make contributions (each, a “
Plan ”), is in compliance with its terms and the
requirements of any presently applicable statutes, orders, rules
and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “ Code
”), (2) the Company and each ERISA Affiliate has
fulfilled its obligations, if any, under the minimum funding
standards of Section 412 of the Code or Section 302 of
ERISA with respect to any Plan that is subject to Section 412
of the Code or Section 302 of ERISA, (3) neither the
Company nor any ERISA Affiliate has incurred any unpaid liability
to the Pension Benefit Guaranty Corporation (other than for the
payment of premiums in the ordinary course and without default) or
to any Plan under Title IV of ERISA, (4) no “reportable
event” (within the meaning of Section 4043(c) of ERISA) has
occurred or is reasonably expected to occur with respect to any
Plan that is subject to Title IV of ERISA and (5) no
prohibited transaction, within the meaning of Section 406 of
ERISA or Section 4975 of the Code, has occurred with respect
to any Plan excluding transactions to which a statutory or
administrative prohibited transaction exemption applies. “
ERISA Affiliate ” means a corporation, trade or
business that is, along with the Company, a member of a controlled
group of corporations or a controlled group of trades or businesses
and would be deemed a “single employer” within the
meaning of Section 414(b), (c), (m) or (o) of the
Code or Section 4001(b) of ERISA.
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(cc)
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(i) The Company is not party to
or bound by any collective bargaining agreement with any labor
organization; (ii) there is no union representation question
existing with respect to the employees of the Company , and, to the
knowledge of the Company after due inquiry, no union organizing
activities are taking place that, would, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; (iii) to the Company’s knowledge, no union
organizing or decertification efforts are underway or threatened
against the Company; (iv) no labor strike, work stoppage,
slowdown, or other material labor dispute is pending against the
Company, or, to the knowledge of the Company, after due inquiry,
threatened against the Company; (iv) there is no
worker’s compensation liability, experience or matter that
would, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; (v) to the knowledge of the
Company, after due inquiry, there is no threatened or pending
action against the Company pursuant to the Worker Adjustment
Retraining and Notification Act of 1988, as amended (“
WARN ”), or any similar state or local law; (vi) there
is no employment-related charge, complaint, grievance,
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investigation, unfair labor practice
claim, or inquiry of any kind, pending against the Company that
would, individually or in the aggregate, have a Material Adverse
Effect; and (vii) to the knowledge of the Company, after due
inquiry, no employee or agent of the Company has committed any act
or omission giving rise to liability for any violation identified
in subsection (v) and (vi) above, other than such acts or
omissions that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
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(dd)
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None of the transactions
contemplated in the Documents or the application of the proceeds by
the Company of the proceeds of the Notes will violate or result in
a violation of Section 7 of the Exchange Act, (including,
without limitation, Regulation T (12 C.F.R. Part 220),
Regulation U (12 C.F.R. Part 221) or Regulation X
(12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System).
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(ee)
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The
Company is not an open-end investment company, u
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