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<PAGE>
EXHIBIT 10.19
EXECUTION COPY
AMENDED
REVOLVING CREDIT AGREEMENT
Dated as of January 14, 2004
by and among
ALON USA, LP
as Borrower
THE GUARANTOR COMPANIES
FROM TIME TO TIME PARTY HERETO
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY HERETO
and
ISRAEL DISCOUNT BANK OF NEW YORK,
as Agent
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TABLE OF CONTENTS
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PAGE
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ARTICLE I DEFINITIONS; CERTAIN
TERMS............................................................................
1
Section 1.01
Definitions.............................................................................
1
Section 1.02 Accounting and Other
Terms..............................................................
31
Section 1.03 Time
References.........................................................................
31
ARTICLE II THE REVOLVING CREDIT
LOANS...........................................................................
31
Section 2.01 Revolving Credit
Commitments............................................................
32
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.......................................................
33
Section 2.06
Interest................................................................................
35
Section 2.07 Reduction of Revolving Credit Commitment;
Prepayment of Revolving Credit Loans.......... 35
Section 2.08
Fees....................................................................................
38
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
ARTICLE III LETTERS OF
CREDIT...................................................................................
43
Section 3.01 Letters of
Credit.......................................................................
43
Section 3.02
Participations..........................................................................
46
Section 3.03 Issuance of Letters of Credit;
Fees..................................................... 47
ARTICLE IV FEES, PAYMENTS AND OTHER
COMPENSATION................................................................
48
Section 4.01 Audit and Collateral Monitoring
Fees.................................................... 48
Section 4.02 Payments; Computations and
Statements...................................................
48
Section 4.03 Sharing of Payments,
Etc................................................................
50
Section 4.04 Apportionment of
Payments...............................................................
50
Section 4.05 Increased Costs and Reduced
Return...................................................... 50
ARTICLE V CONDITIONS OF EFFECTIVENESS, LETTER OF CREDIT ISSUANCE
AND LENDING.................................... 52
Section 5.01 Conditions Precedent to
Effectiveness...................................................
52
Section 5.02 Conditions Precedent to Revolving Credit Loans and
Letters of Credit.................... 56
ARTICLE VI REPRESENTATIONS AND
WARRANTIES.......................................................................
57
Section 6.01 Representations and
Warranties..........................................................
57
ARTICLE VII COVENANTS OF THE
BORROWER...........................................................................
64
Section 7.01 Affirmative
Covenants...................................................................
64
Section 7.02 Negative
Covenants......................................................................
75
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ARTICLE VIII MANAGEMENT, COLLECTION AND STATUS OF ACCOUNTS
RECEIVABLE AND OTHER COLLATERAL...................... 96
Section 8.01 Management of
Collateral................................................................
96
Section 8.02 Accounts Receivable
Documentation.......................................................
98
Section 8.03 Status of Accounts Receivable and Other
Collateral...................................... 98
Section 8.04 Collateral
Custodian....................................................................
99
ARTICLE IX THE
AGENT............................................................................................
99
Section 9.01 Authorization and
Action................................................................
99
Section 9.02 Borrower's
Default......................................................................
100
Section 9.03 Reliance,
Etc...........................................................................
100
Section 9.04
IDB.....................................................................................
101
Section 9.05 Lender Credit
Decision..................................................................
101
Section 9.06
Indemnification.........................................................................
101
Section 9.07 Successor
Agent.........................................................................
102
Section 9.08 Collateral
Matters......................................................................
102
ARTICLE X EVENTS OF
DEFAULT.....................................................................................
104
Section 10.01 Events of
Default.......................................................................
104
Section 10.02 Deposit for Letters of
Credit...........................................................
ARTICLE XI
GUARANTY.............................................................................................
108
Section 11.01
Guaranty................................................................................
108
Section 11.02 Obligations
Unconditional...............................................................
109
Section 11.03
Waivers.................................................................................
109
Section 11.04
Subrogation.............................................................................
110
Section 11.05 No Waiver;
Remedies.....................................................................
110
Section 11.06 Stay of
Acceleration....................................................................
110
ARTICLE XII
MISCELLANEOUS.......................................................................................
110
Section 12.01 Termination; Annual
Review..............................................................
110
Section 12.02 Notices,
Etc............................................................................
111
Section 12.03 Amendments,
Etc.........................................................................
112
Section 12.04 No Waiver; Remedies,
Etc................................................................
113
Section 12.05 Expenses; Taxes; Attorneys'
Fees........................................................
113
Section 12.06 Right of Set
Off........................................................................
114
Section 12.07
Severability............................................................................
115
Section 12.08 Assignments and
Participations..........................................................
115
Section 12.09
Counterparts............................................................................
117
Section 12.10
Headings................................................................................
117
Section 12.11 Governing
Law...........................................................................
117
Section 12.12 Waiver of Jury Trial,
Etc...............................................................
118
Section 12.13 Consent by the Agent,
Lenders...........................................................
118
Section 12.14 No Party Deemed
Drafter.................................................................
118
Section 12.15 Reinstatement; Certain
Payments.........................................................
118
Section 12.16
Indemnification.........................................................................
119
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Section 12.17 Environmental
Indemnification...........................................................
119
Section 12.18 Binding
Effect..........................................................................
120
Section 12.19
Interest................................................................................
120
Section 12.20 No Oral
Agreements......................................................................
121
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TABLE OF CONTENTS
(continued)
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SCHEDULE A Companies
SCHEDULE B Investors; Subordination Agreements; Investor Notes;
Guaranties
SCHEDULE C Agent Account
SCHEDULE D Lenders and Lenders' Revolving Credit Commitments
SCHEDULE E Fiscal Year, Fiscal Month and Fiscal Quarter
SCHEDULE F License Agreements
SCHEDULE G Pipelines
SCHEDULE H Terminals
SCHEDULE I Stock Option Plan
SCHEDULE J SCS Real Estate Statements
SCHEDULE 5.01(e)(x) Mortgage Recording Offices
SCHEDULE 6.01(e) Inventory Locations
SCHEDULE 6.01(f) Subsidiaries
SCHEDULE 6.01(g) Litigation
SCHEDULE 6.01(j) ERISA
SCHEDULE 6.01(q) Title to Property; SCS Real Estate;
Compliance
SCHEDULE 6.01(s) Operating Lease Obligations
SCHEDULE 6.01(w) Use of Proceeds
SCHEDULE 6.01(y) Trade names
SCHEDULE 6.01(aa) Material Contracts
SCHEDULE 6.01(gg) Bank Accounts; Existing Cash Management
Agreements; Existing Credit Card Depository Account
Agreements
SCHEDULE 6.01(hh) Name; Jurisdiction of Organization;
Organizational ID Number; FEIN
SCHEDULE 7.02(a)(ii) Liens
SCHEDULE 7.02(b)(iii) Indebtedness
SCHEDULE 7.02(b)(xiii) GTR Assets
SCHEDULE 7.02(c)(iii) Guaranties
SCHEDULE 7.02(f)(ii) Investments
SCHEDULE 7.02(g) Capitalized Lease Obligations
EXHIBIT A Form of Revolving Credit Notes
EXHIBIT B Form of Security Agreement
EXHIBIT C Form of Pledge Agreement
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Intercompany Note
EXHIBIT G Form of Joinder Agreement
EXHIBIT H Form of Subordinated Investor Note
EXHIBIT I Form of Borrowing Base Certificate
EXHIBIT J Form of Letter of Credit Application
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<PAGE>
AMENDED REVOLVING CREDIT AGREEMENT
AMENDED REVOLVING CREDIT AGREEMENT (this "Agreement"), dated as
of January
14, 2004, by and among ALON USA, LP, f/k/a SWBU, L.P., a Texas
limited
partnership (the "Borrower"), Alon USA Energy, Inc., a Delaware
corporation (the
"Parent"), the direct and indirect subsidiaries of the Parent
listed on Schedule
A hereto (such subsidiaries, together with the Borrower and the
Parent, each a
"Company" and collectively the "Companies"), the financial
institutions from
time to time party hereto (each a "Lender" and collectively, the
"Lenders"), and
Israel Discount Bank of New York, as administrative agent for
the Lenders (in
such capacity, the "Agent").
RECITALS
Pursuant to the original Revolving Loan Agreement dated as of
July 31,
2000 (as amended prior to the date hereof, the "Existing
Revolving Credit
Agreement"), by and among the Companies, the Lenders and the
Agent, the Lenders
extended credit to the Borrower consisting of a revolving credit
facility in an
aggregate principal amount not to exceed $130,000,000 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
Companies to enter
into a new term loan facility in the principal amount of
$100,000,000 the
proceeds of which will be used (in part) to repay in full all
obligations under
the Existing Term Loan Agreement (as hereinafter defined), (b)
increase the size
of the Total Commitment (as defined below) to an aggregate
principal amount not
in excess of $141,600,000 at any time outstanding, which may be
utilized for
revolving credit loans and for letters of credit, 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 the
Borrower (i) for working capital purposes of the Borrower and
its subsidiaries,
(ii) to pay fees and expenses of the Borrower incurred in
connection with this
Agreement, and (iii) for other purposes permitted herein.
Accordingly, the
Companies, the Borrower, 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:
"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.
<PAGE>
"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.
"Acquired Entity" has the meaning specified therefor in
Section
7.02(f)(x).
"Action" has the meaning specified therefor in Section 12.13
hereof.
"Additional Assets" means assets to be used in a business which
is either
conducted by Alon USA or any Subsidiary thereof or similar to a
business
conducted by Alon USA or any Subsidiary thereof, wherever
located, and shall
include Growth Assets to the extent that the aggregate
consideration paid for
Growth Assets acquired pursuant to Section 7.02(f)(x) shall
exceed $20,000,000.
"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, any 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 C
hereto.
"Agent Advances" has the meaning specified therefor in Section
9.08
hereof.
"Agent's Fee" has the meaning specified therefor in Section
2.08(b)
hereof.
"Agreement" has the meaning specified therefor in the first
paragraph
hereof.
"Alon Assets" means Alon Assets, Inc., a Delaware
corporation.
"Alon Business Territory" means the States of Texas, Oklahoma,
New Mexico,
Arizona, Arkansas, Louisiana, Colorado and Utah.
"Alon Capital" means Alon USA Capital, Inc., a Delaware
corporation and a
Subsidiary of the Parent.
"Alon GP" means Alon USA GP, LLC, a Delaware limited liability
company and
successor by conversion to Alon USA GP, Inc., a Delaware
corporation.
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"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 Limited Partner" means Alon USA Delaware, LLC, a Delaware
limited
liability company.
"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 Refining" means Alon USA Refining, Inc., a Delaware
corporation.
"Alon SPV" means Alon USA Interests, LLC, a Texas limited
liability
company and successor by merger to Alon USA Interests, LLC, a
Delaware limited
liability company.
"Alon SWBU" means Alon USA, LP, a Texas limited partnership.
"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 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.
"Asset Reinvestment Account" shall have the meaning specified
therefor in
Section 2.07(d).
"Asset Swap" means an exchange of any Term Loan Facility First
Lien
Collateral (as defined in the Intercreditor Agreement) or any
SCS Assets and any
related cash (other than (a) any material component of the
refinery assets of
Alon USA or any Subsidiary thereof, (b) any Inventory, and (c)
any Account
Receivable), solely for other property, plant and equipment
assets (and any
related cash) to be used in the applicable business of the
Companies, with a
value of not less than the value of the assets exchanged. It is
agreed that the
Companies may pay or receive cash as part of an Asset Swap to
equalize the value
of the assets transferred and received; provided that such Asset
Swap will (i)
to the extent of any cash received, be deemed for all purposes
of this Agreement
to constitute a sale of assets and (ii) to the extent of any
cash paid, be
deemed for all purposes of this Agreement to constitute a
Permitted Acquisition
(to the extent such transaction satisfies all of the terms and
conditions of
Section 7.02(f)(x)).
"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.
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"Assignment of Claims Act" means the Assignment of Claims Act of
1940, as
amended from time to time, codified at 31 U.S.C. ss. 3727 and 41
U.S.C. ss. 15,
or any successor statute, and the rules and regulations
promulgated thereunder.
"Availability" means, at any time, the difference between (i)
the lesser
of (A) the Borrowing Base and (B) the Total Commitment 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 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.
"Board" means the Board of Governors of the Federal Reserve
System of the
United States.
"Borrower" has the meaning specified therefor in the preamble
hereto.
"Borrowing Base" means, as of any date, without duplication,
the
difference between (i) the sum of (A) 85% of the Net Amount of
Eligible Accounts
Receivable of the Borrower, (B) 80% of the sum of the value of
the Eligible
Inventory of the Borrower plus the value of the Eligible
Exchanged Inventory
owed to the Borrower, in each case, such value to be determined
in accordance
with the West Texas Sour Crude Oil Benchmark, provided that in
no event shall
the aggregate amount of clause (B) that is attributable to
Eligible Exchanged
Inventory exceed $10,000,000 and the Agent may mark to market
the Inventory at
any time, in its sole discretion, and (C) the lesser of (x) the
Applicable
Percentage of cash and Permitted Investments of the Borrower, in
each case to
the extent that such cash or Permitted Investment is held in a
Depository
Account over which the WC Collateral Agent (or its nominee) has
sole dominion
and control, the Borrower has executed and delivered to the WC
Collateral Agent
a Depository Account Agreement and the WC Collateral Agent has a
perfected,
first priority security interest therein; provided, however,
that no cash or
Permitted Investments in the Asset Reinvestment Account, the
Defeasance Account,
the Debt Service Support Account (as defined in the Term Loan
Agreement) or the
Cash Depository Account (as defined in the Term Loan Agreement)
shall be
included for the purposes of this calculation, and (y)
$82,000,000, and (D) the
SCS Fixed Asset Credit, and (E) the Inventory Credit, 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 the Borrowing Base and
calculating Letter of
Credit Obligations in connection with standby Letters of Credit
for purposes of
Section 2.01(b)(ii)(B), Section 2.07(c), Section 3.01(b)(solely
with respect to
clause (ii) thereof) (A), Section 5.01(i) and Section 7.01(m) 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 Borrower 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
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actual amount of the liability supported by such Letter of
Credit is so limited.
In no event shall the Term Debt Service Reserve L/C be subject
to the proviso in
the immediately preceding sentence.
"Borrowing Base Certificate" means the certification of the
Borrowing Base
in compliance with Section 7.01(a)(x) hereof, substantially in
the form of
Exhibit I hereto, setting forth the calculation of the Borrowing
Base and
Availability for the Borrower.
"Business Day" means any day other than a Saturday, Sunday or
other day on
which commercial banks in New York City or Tel Aviv, Israel 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,
Eurodollar Loans, Business Day shall mean any Business Day on
which dealings in
Dollar deposits may be carried on in the Interbank Market.
Friday shall be a
Business Day notwithstanding that commercial banks may be
authorized to close on
such day in Tel Aviv, Israel, provided that Friday shall not be
a Business Day
for purposes of any funding obligation of the Agent or the
Lenders hereunder.
"Business Plan" means the Alon USA Business Plan dated as of
December 31,
2003.
"Capital Expenditures" means, for any period, (a) the additions
to
property, plant and equipment and other capital expenditures of
the Companies
and their consolidated Subsidiaries that are (or should be) set
forth in a
consolidated statement of cash flows of the Alon USA for such
period prepared in
accordance with GAAP, (b) Capitalized Lease Obligations incurred
by the
Companies and their consolidated Subsidiaries during such
period, but excluding
in each case (i) any such expenditure made to restore, replace
or rebuild
property to the condition of such property immediately prior to
any damage,
loss, destruction or condemnation of such property, to the
extent such
expenditure is made with insurance proceeds, condemnation awards
or damage
recovery proceeds relating to any such damage, loss, destruction
or condemnation
and (ii) expenditures which represent any part of the aggregate
consideration
paid in connection with any acquisition permitted hereunder, and
(c) costs
incurred with respect to turnarounds, chemical catalysts,
licensing, imaging and
other operating costs of the Companies or any Subsidiary that,
in each case, are
classified as deferred assets in accordance with GAAP.
"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 the L/C Issuer or the manner in which the Lenders, Affiliates
of the Lenders
or the 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).
- 5 -
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"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
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 Borrower, and the
Agent,
delivered to the Agent pursuant to Section 7.01(n) hereof, as
the same may be
amended or otherwise modified from time to time.
"Cash Concentration Account Bank" means Bank Leumi.
"Change of Control" means (i) Alon Israel shall cease to
directly own and
control, of record and beneficially, at least 96% of the then
outstanding
Capital Stock of the Parent, (ii) the Parent shall cease to
directly own and
control, of record and beneficially, at least 90% of the then
outstanding
Capital Stock of Alon USA, free and clear of all Liens other
than pursuant to
the Term Loan Documents and other than Liens expressly permitted
by Sections
7.02(a)(x) and 7.02(a)(xi), (iii) Alon USA shall cease to
directly own and
control, of record and beneficially, 90% of the then outstanding
Capital Stock
of Alon Operating and Alon Capital free and clear of all Liens
other than
pursuant to the Term Loan Documents and the Loan Documents, (iv)
the Parent
shall cease to own and control, either directly or through one
or more
intermediate Companies, at least 90% of the then outstanding
Capital Stock of
the Borrower and Alon SPV, free and clear of all Liens other
than pursuant to
the Term Loan Documents and the Loan Documents, (v) Alon Capital
shall cease to
own and control, either directly or through one or more
intermediate Companies,
at least 90% of each of Alon Pipeline, Alon Refining, APPL and
FTPL, free and
clear of all Liens other than pursuant to the Term Loan
Documents and the Loan
Documents, (vi) David Wiessman shall cease to be the chairman of
the board of
directors of the Parent and a successor, reasonably acceptable
to the Agent, is
not appointed, on terms reasonably acceptable to the Agent,
within 180 days of
such cessation, or (vii) Jeff Morris shall cease to be involved
in the
day-to-day operations and management of the businesses of the
Companies and the
Borrower and a permanent full-time successor, reasonably
acceptable to the
Agent, is not appointed, on terms reasonably acceptable to the
Agent, within 180
days of such cessation of involvement; provided that, with the
prior written
consent of the Agent and the Term Loan Agent, such consent not
to be
unreasonably withheld or delayed, any event described in clauses
(i), (ii) or
(iii) above shall not be deemed a Change of Control so long as
(A) Alon Israel
owns and controls, either directly or through one or more
intermediate
Companies, at least 96% of the Capital Stock of the Parent, Alon
USA and Alon
Capital and (B) no Default or Event of Default has occurred and
is continuing;
provided further that (I) in the case of clause (ii) and (iii)
above, non-voting
Capital Stock owned by any manager or employee of Alon Assets
and Alon
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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) through
the exercise by such employee of any stock options granted under
the stock
option plan described in Schedule I 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. Notwithstanding anything herein to
the contrary,
100% of the Capital Stock of the Borrower shall at all times be
owned by its
existing parent free and clear of all Liens other than pursuant
to the Term Loan
Documents and the Loan Documents.
"Collateral" means all of the property (tangible and intangible)
purported
to be subject to the Lien purported to be created by any
mortgage, deed of
trust, 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.
"Collateral Agents" means the FA Collateral Agent and the WC
Collateral
Agent.
"Company" and "Companies" have the meanings specified therefor
in the
preamble hereto.
"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 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
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<PAGE>
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, and (H) any losses resulting
from a change in
accounting principles, 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.
"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 plus the amount of
any Minority
Interest, over (ii) the Consolidated Total Liabilities of such
Person and its
Consolidated Subsidiaries less the aggregate principal amount of
and accrued and
unpaid interest on all Subordinated Investor Loans 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 shareholders, 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 of
such Person and its Consolidated Subsidiaries at such date
whether or not the
same would be shown, excluding minority interests.
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<PAGE>
"Contribution Agreement" means the Amended and Restated
Indemnity,
Subrogation and Contribution Agreement dated as of August 8,
2000, as amended
and restated on the date hereof, among the Borrower 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.
"Credit Card Depository Account Agreements" means one or more
agreements,
in form and substance reasonably satisfactory to the Agent,
among a credit card
servicer for SCS, SCS and the FA Collateral Agent, delivered to
the FA
Collateral Agent pursuant to Section 7.01(n) hereof, as the same
may be amended
or otherwise modified from time to time.
"CSFB" means Credit Suisse First Boston, a bank organized under
the laws
of Switzerland.
"Debt Service Support Requirement" means the requirement (a)
that the
Borrower (i) provide a guarantee or letter of credit in form and
substance
reasonably satisfactory to the Term Loan Agent and issued by IDB
under which the
Term Loan Agent may obtain amounts required to pay interest due
and owing by
Alon USA but unpaid on the Term Loans or (ii) establish a
segregated cash
account with the Term Loan Agent into which amounts may be
deposited and
available for the payment of interest due but unpaid on the Term
Loans, and (b)
that the undrawn amount of such guarantee or letter of credit,
or the amount on
deposit in such segregated cash account, be on each day equal to
or greater than
the amount necessary to pay all interest that will accrue
hereunder during the
nine-month period commencing on such day (and in the event any
amount of such
guarantee, letter of credit or cash account is actually applied
against the
obligations of the Borrower to pay interest on the Term Loans
made under the
Term Loan Agreement to Alon USA, the Borrower shall supplement
such guarantee,
letter of credit or cash account, as the case may be, in an
amount necessary to
comply with this clause (b) not later than 30 days following the
date of such
application), assuming that the weighted average interest rate
applicable to the
Term Loans on such day will be the rate at which interest
accrues on all the
outstanding Term Loans for the remainder of such nine-month
period and that the
aggregate principal amount of the Term Loans outstanding on such
day will remain
outstanding for the remainder of such nine-month period.
"Default" means an event which, with the giving of notice or the
lapse of
time or both, would constitute an Event of Default.
"Defeasance Account" has the meaning specified therefor in
Section
7.02(s)(ii).
"Depository Account Agreements" means each agreement, in form
and
substance reasonably satisfactory to the Agent, among a
Depository Bank, the
Borrower and the Agent, delivered to the Agent as required
hereunder, as such
Agreement may be amended or otherwise modified from time to
time.
"Depository Accounts" means the lockbox accounts or blocked
depository
accounts maintained by the Borrower for the collection of the
cash of the
Borrower and the proceeds of Accounts Receivable and any other
Collateral.
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<PAGE>
"Depository Bank" means each financial institution at which a
Depository
Account is maintained.
"Dollar", "Dollars" and the symbol "$" means lawful money of the
United
States of America.
"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
Borrower 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
Borrower shall be
deemed to be eligible to the extent that such Accounts
Receivable are generated
in the ordinary course of business of the Borrower 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 paid in due course, will not
be ineligible
solely by reason of this clause (iii) , (iv) such Account
Receivable (A) is
owned by the Borrower 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 the
Borrower 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
the Borrower 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) the Borrower 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 the Borrower and (z) without
limiting the
obligations of the Companies under Section 12.05 hereof, the
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 an
Eligible Bank (or
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<PAGE>
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 Borrower or
Guarantor, 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, 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, (ii)
with the consent of the Agent, such consent not to be
unreasonably withheld or
delayed, any commercial bank and (iii) with the consent of the
Borrower, such
consent not to be unreasonably withheld or delayed, and the
consent of the Agent
any other Person, provided, that the consent of the 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
the
Borrower 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 the
Borrower shall be deemed to be eligible to the extent that such
Exchanged
Inventory is generated in the ordinary course of business of the
Borrower and
meets all of the following conditions: (i) such Person is
obligated to transfer
the Exchanged Inventory to the Borrower, 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
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<PAGE>
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 the Borrower to such Person, (iii) the obligation to
deliver such
Hydrocarbons or Hydrocarbon Products to the Borrower 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 (but
not asphalt or other Hydrocarbon Products derived from bitumen);
(vi) chemicals
consisting of Propane, Propane Offspec, 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 the Borrower
which meet all of
the following specifications: (i) the Inventory is owned by the
Borrower 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 the Borrower with respect thereto;
(ii) the Borrower
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
the Borrower;
(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 the
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 Borrower'
terminals or trucks but not owned by or contracted to the
Borrower 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.
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<PAGE>
"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
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 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 the
Refinery, Terminals, or Pipelines, or any Hazardous Materials
generated and
disposed of offsite by any Company, or any Subsidiary of the
Company or a
predecessor in interest to the extent relating to the Refinery,
Terminals, or
Pipelines.
"Environmental Law" means the Comprehensive Environmental
Response,
Compensation, and Liability Act (42 U.S.C. Section 9601, et
seq.), the Hazardous
Materials Transportation Act (49 U.S.C. Section 1801, et seq.),
the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901, et seq.),
the Federal
Water Pollution Control Act (33 U.S.C. Section 1251 et seq.),
the Clean Air Act
(42 U.S.C. Section 7401 et seq.), the Toxic Substances Control
Act (15 U.S.C.
Section 2601 et seq.) and the Occupational Safety and Health Act
(29 U.S.C.
Section 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
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<PAGE>
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
"Event of Default" means any of the events set forth in Section
10.01
hereof.
"Excess Availability" means, as of any date of determination,
the amount
equal to Availability minus the aggregate amount, if any, of all
trade payables
of the Borrower more than sixty (60) days past due and all book
overdrafts of
the Borrower in excess of historical practices with respect
thereto, in each
case as determined by the Agent.
"Exchanged Inventory" means Inventory of a Person (other than a
Loan
Party) 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 August 8, 2000.
"Existing Revolving Credit Agreement" has the meaning specified
therefor
in the recitals hereto.
"Existing Term Loan Agreement" means the Amended Term Loan
Agreement,
dated as of July 31, 2000, as amended prior to the date hereof,
by and among
SCS, Alon Pipeline, Alon Refining, APPL, FTPL, the financial
institutions from
time to time party thereto, and Bank Leumi.
"FA Collateral Agent" means Bank Leumi, or any successor or
replacement
agent in its capacity as a collateral agent for the Lenders.
"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
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<PAGE>
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 retained earnings and
consolidated
statements of cash flow of the Parent and its Consolidated
Subsidiaries as of
December 31, 2002, audited by KPMG, LLP, and (ii) the unaudited
consolidated
balance sheets, consolidated statements of income and retained
earnings and
consolidated statements of cash flow of the Parent and its
consolidated
Subsidiaries as of the Fiscal Quarter ending September 30, 2003,
reviewed by
KPMG, LLP.
"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 the Refinery, any other refinery, any
Terminal, any
Pipeline and any other real property, fixture or equipment
(other than the GTR
Assets and the SCS Assets) of any Company wherever located and
whether now or
hereafter existing or arising and whether now owned or hereafter
acquired.
"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(p) 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.
"GECC" means GE Capital Franchise Finance Corporation, a
Delaware
corporation.
"GECC Borrower" means SCS Finance I, L.P. and SCS Finance II,
L.P., each a
Delaware limited partnership.
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<PAGE>
"GECC Entities" means SCS Finance, Inc., a Delaware corporation,
SCS
Finance GP LLC, a Delaware limited liability company, SCS
Finance LP LLC, a
Delaware limited liability company, and the GECC Borrower.
"GECC Loan Documents" means collectively, the Loan Agreements
dated as of
October 1, 2002, by and between GECC and the GECC Borrower, the
Equipment Loan
and Security Agreements dated as of October 1, 2002, by and
between GECC and the
GECC Borrower, and all other agreements, instruments and
documents executed and
delivered by any of the GE Borrower, GECC, SCS, or Alon USA in
connection
therewith.
"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.
"Ground Leases" means each lease pursuant to which SCS leases
the
properties listed on Schedule 6.01(q) hereto, as the same may
have heretofore or
may be hereafter amended or modified, excluding for all purposes
any ground
lease that is subject to the GECC Loan Documents.
"Growth Assets" means assets to be used (i) in the businesses
conducted by
Alon USA or any Subsidiary thereof on the date hereof and (ii)
within the Alon
Business Territory.
"GTR Assets" means the assets described on Schedule
7.02(b)(xiii).
"GTR Financing" means Indebtedness to be incurred by Alon
Refining in
connection with the GTR Assets, pursuant to a loan or a sale and
leaseback
transaction in a principal amount not to exceed $9,000,000.
"GTR Loan Documents" means, collectively, each loan or other
financing
agreement, guaranty, security agreement, and all other
instruments, agreements
and other documents executed and delivered in connection with
the GTR Financing.
"Guaranties" means (i) the guaranty made by the Guarantor
Companies
contained in Article XI hereof guaranteeing the Obligations,
(ii) each guaranty
made by an Investor in favor of the Lenders, as the same may be
amended,
modified or supplemented from time to time, and (iii) 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 Companies party hereto from time
to time,
other than the Borrower.
"Guarantors" means the Guarantor Companies, the Investors 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
- 16 -
<PAGE>
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 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.
"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 the 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.
"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 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.
- 17 -
<PAGE>
"Indemnitees" has the meaning specified therefor in Section
12.16 hereof.
"Interbank Market" means the London interbank market.
"Intercreditor Agreement" means the Lien Subordination and
Intercreditor
Agreement, dated as of January 14, 2004, among the Agent, each
Collateral Agent
and the Term Loan Agent, and duly acknowledged by the Loan
Parties 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
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 Borrower 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.
"Inventory Credit" means, as of any date, the amount set forth
below
opposite the applicable period:
<TABLE>
<CAPTION>
Period: Credit Amount:
------- --------------
<S> <C>
January 1, 2003 through June 30, 2004 $ 24,000,000
July 1, 2004 through December 31, 2004 $ 20,000,000
January 1, 2005 through June 30, 2005 $ 16,000,000
July 1, 2005 through December 31, 2005 $ 12,000,000
January 1, 2006 through June 30, 2006 $ 8,000,000
July 1, 2006 through December 31, 2006 $ 4,000,000
</TABLE>
- 18 -
<PAGE>
"Investor Loans" means the Subordinated Investor Loans and the
other loans
made by the Investors to the Companies in connection with the
outstanding
minority interests in Alon Capital.
"Investors" means Alon Israel, Bielsol Investments (1987) Ltd.,
Sha'ar
Mandelbaum Ltd. and the other entities and individuals listed in
Schedule B
hereto.
"Joinder Agreement" means a Joinder Agreement, substantially in
the form
of Exhibit G hereto, executed by a Subsidiary of a Company made
a party hereto
pursuant to Section 7.01(b) hereof.
"L/C Issuer" means IDB, in its capacity as issuer of the Letters
of
Credit, Bank Leumi, a Lender, Bank Leumi Le Israel, New York
Agency, or any
other Person acceptable to the Borrower, in each case as the
Agent may select in
its sole and absolute discretion.
"Lease Agreement" means the Lease Agreement between Alon
Refining, Alon
Pipeline, APPL and FTPL, as lessors, and the Borrower, as
lessee, dated as of
the Existing Effective Date, as the same may be amended or
otherwise modified
from time to time.
"Lease Assignment" means an assignment of the Lease Agreements
and the
lease payments made thereunder, made by Alon Pipeline, Alon
Refining, APPL and
FTPL in favor of the FA Collateral Agent, for the benefit of the
Lenders, and
delivered to the Agent on the Existing Effective Date.
"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
- 19 -
<PAGE>
Lenders pursuant to Section 3.03(b)(i) hereof and (iii) the
charges of the L/C
Issuer payable by the Borrower in accordance with Section
3.03(b)(ii) hereof.
"Letter of Credit Issuance Fee" has the meaning specified
therefor in
Section 3.03(b)(i) hereof.
"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 Borrower, in each
case as calculated
by the L/C Issuer.
"License Agreements" means the agreements set forth in Schedule
F hereto
and the 7-Eleven License Agreement.
"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
Borrower
maintained at the Payment Office of the Agent in the name of the
Borrower under
which the Borrower will be charged with all Revolving Credit
Loans made to, and
all other Obligations incurred by, the Borrower 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 Credit
Card Depository Account Agreements, the Consent, the 7-Eleven
Consent, the
Contribution Agreement, the Letter of Credit Applications, each
Subordination
Agreement, each Joinder Agreement, each Warrant, each Lease
Assignment each
Revolving Loan Amendment Document and all other instruments,
agreements and
other documents executed and delivered pursuant hereto or
thereto.
"Loan Parties" means the Borrower and the Guarantors.
"Management Agreement" means the Management and Consulting
Agreement,
dated as of August 1, 2003, by and among Alon USA, Alon Israel
and Alon Energy,
as in effect on the date hereof.
"Master Lease" means, collectively, (i) the Master Lease dated
as of
October 1, 2002, by and between SCS Finance I, L.P. and SCS, and
(ii) the Master
Lease dated as of October 1, 2002, by and between SCS Finance
II, L.P. and SCS.
"Material Adverse Effect" means a material adverse effect upon
(i) the
business, condition (financial or otherwise), operations,
properties or
prospects of the Borrower or the Companies taken as a whole,
(ii) the ability of
a Loan Party to perform its obligations hereunder or under any
other Loan
Document to which it is a party, (iii) the creation, priority or
perfection
- 20 -
<PAGE>
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 $1,000,000 or less to the
extent that such
material adverse effect is remedied within 60 days after any
Company obtains
knowledge thereof), (iv) the rights, powers and remedies of the
Agent, the
Collateral Agents 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, or (v) the ability of the Companies taken
as a whole to own
and operate their businesses in substantially the same manner
prior to the
Effective Date.
"Material Contract" means, with respect to any Person, each
contract or
agreement to which such Person is a party (i) involving
aggregate consideration
payable to or by such Person of $10,000,000 or more (other than
(A) contracts
that by their terms may be terminated by any party thereto in
the ordinary
course of its business upon less than 60 days' notice and (B)
supply contracts
that can be readily replaced within 20 days and are in fact so
replaced within
20 days on terms not materially less favorable to such Person),
(ii) relating to
the purchase, transportation by pipeline, rail or truck,
refining, processing,
marketing, sale and supply of Hydrocarbons and Hydrocarbon
Products that will
account for more than 3% of the sales of a Company during such
Company's current
Fiscal Year or the payment of more than $10,000,000 in the
aggregate during such
Company's current Fiscal Year (other than supply contracts that
can be readily
replaced within 20 days and are in fact so replaced within 20
days on terms not
materially less favorable to such Company), or (iii) otherwise
material to the
business, condition (financial or otherwise), operations,
performance,
properties or prospects of such Person, and shall in any event
include, the
Lease Documents and the License Agreements.
"Material Indebtedness" means Indebtedness (other than the
Revolving
Credit Loans), or obligations in respect of one or more Hedging
Agreements, of
any one or more of the Companies and their Subsidiaries in an
aggregate
principal amount exceeding $2,500,000. For purposes of
determining Material
Indebtedness, the "principal amount" of the obligations of the
Companies or any
of their Subsidiaries in respect of any Hedging Agreement at any
time shall be
the maximum aggregate amount (giving effect to any netting
agreements) that the
Companies or their Subsidiaries would be required to pay if such
Hedging
Agreement were terminated at such time.
"Minority Holders" means, collectively, Africa Israel Energy
Ltd., Rosebud
Medical Ltd. and Tabris Investments Inc.
"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".
"Minority Purchase Agreement" means the Stock Purchase Agreement
by and
among Alon USA and the Minority Holders, with respect to the
purchase by Alon
USA of the shares of Capital Stock of Alon Capital owned by the
Minority Holders
for the Minority Purchase Price.
"Minority Purchase Documents" means the Minority Purchase
Agreement and
all other agreements, instruments and documents executed and
delivered by any of
the Minority
- 21 -
<PAGE>
Holders, Alon USA or the Parent in connection with the purchase
by Alon USA of
the shares of Capital Stock of Alon Capital owned by the
Minority Holders.
"Minority Purchase Price" means $57,100,000, of which the sum of
(i)
$47,100,000 was paid to the Minority Holders prior to the date
hereof, and (ii)
$10,000,000 plus accrued and unpaid interest (such interest rate
not to exceed
7% per annum), which pursuant to the Minority Purchase Documents
must be paid to
the Minority Holders on June 30, 2004.
"Moody's" means Moody's Investors Service, Inc. and any
successor thereto.
"Mortgages" means (i) the "Mortgages," "Deeds of Trust" or
"Deeds to
Secure Debt", each in form and substance satisfactory to the
Agent, securing the
Obligations and delivered to a Collateral Agent, as the same may
be amended or
otherwise modified from time to time, (ii) the SCS Mortgages and
(iii) all other
mortgages, deeds of trust and deeds to secure the Obligations
made by one or
more Loan Parties in favor of a Collateral Agent in respect of
the real
property, and the improvements thereon, or interests therein, as
the same may be
amended or otherwise modified from time to time.
"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 the Borrower with respect to such Eligible Accounts
Receivable, to the extent
not already accounted for in the definition herein of Eligible
Accounts
Receivable.
"Net Proceeds" means (a) with respect to the sale or other
disposition of
any asset (excluding any Asset Swap undertaken in accordance
with this Agreement
unless and to the extent that any cash is received in connection
with such Asset
Swap) 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, and (C) federal and state
taxes incurred in
connection with such sale or other disposition, whether payable
at such time or
thereafter 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
- 22 -
<PAGE>
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
hereof.
"Obligations" means (i) the obligations of the Borrower to pay,
as and
when due and payable (by scheduled maturity or otherwise), all
amounts from time
to time owing by it in respect of any Loan Document to which it
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 Borrower to
perform or observe all
of its other obligations from time to time existing under any
Loan Document to
which it is a party.
"Operating Lease Obligations" means all obligations for the
payment of
rent for any real or personal property under leases or
agreements to lease,
other than Capitalized Lease Obligations.
"Other Taxes" has the meaning specified therefor in Section 2.12
hereof.
"Parent" has the meaning specified therefor in the preamble
hereto.
"Payment Office" means the Agent's offices located at 511 Fifth
Avenue,
New York, New York, 10017, or such other offices as the Agent
may designate and,
when used in connection with any payments made to the Agent,
shall mean the
Agent Account.
"Permitted Acquisition" has the meaning specified therefor in
Section
7.02(f)(x).
"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 acquisition
issued or fully
guaranteed by any state, commonwealth or territory of the
United
- 23 -
<PAGE>
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)
hereof.
"Permitted Payments" means (i) regularly scheduled principal and
interest
payments on the Term Loans as and when due and payable in
accordance with the
Term Loan Agreement (as in effect on the date hereof and as
modified in
accordance with Section 7.02(b)(xvi)), (ii) prepayments of the
Term Loans based
on "Excess Cash Flow" (as defined in the Term Loan Agreement as
in effect on the
date hereof) pursuant to Section 2.12(d) of the Term Loan
Agreement as in effect
on the date hereof, (iii) other mandatory prepayments of the
Term Loan pursuant
to Section 2.12 of the Term Loan Agreement (as in effect on the
date hereof),
and (iv) payments of the Restricted Debt or defeasance payments
with respect to
the Restricted Debt, in each case, to the extent expressly
permitted by Section
7.02(s)(ii).
"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 G
hereto and any other Pipeline now or hereafter owned or leased
by any Company.
"Pledge Agreement" means the Second Amended and Restated Pledge
and
Security Agreement, dated as of August 8, 2002, as amended,
restated and
consolidated on the date hereof, made by the Borrower and each
of the 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.
"Pro Rata Share" means, with respect to any Lender, a fraction
(expressed
as a percentage), the numerator of which shall be the amount of
such Lender's
Revolving Credit Commitment and the denominator of which shall
be the Total
Commitment, provided that, if the Total Commitment has been
reduced to zero, the
numerator shall be the aggregate unpaid
- 24 -
<PAGE>
principal amount of such Lender's Revolving Credit Loans and
participations in
Letter of Credit Obligations and the denominator shall be the
aggregate unpaid
principal amount of all of the Revolving Credit Loans and
participations in
Letter of Credit Obligations.
"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 the 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 Alon Refining within or adjoining the
refinery site,
all improvements, all machinery and equipment, 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.
"Reimbursement Obligations" means the obligations of the
Borrower 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) hereof.
"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 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
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<PAGE>
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 Debt" means the Investor Loans, the Minority
Purchase Price,
the Warrant Purchase Price and the other Indebtedness described
in Sections
7.02(f)(ix) and (xi).
"Restricted Payments" means (i) regularly scheduled principal
and interest
payments on GTR Financing as and when due and payable in
accordance with the GTR
Loan Documents (as in effect on the date such Indebtedness is
initially incurred
and as modified in accordance with Section 7.02(b)(xvi)), and
(ii) payments of
dividends pursuant to Sections 7.02(i)(viii) and (ix)
hereof.
"Restricted Payment Conditions" means, as of the date of any
Restricted
Payment, the satisfaction of each of the following conditions:
(i) both
immediately before and immediately after such applicable
Restricted Payment, no
Default or Event of Default shall have occurred and be
continuing, (ii) both
before and immediately after such applicable Restricted Payment,
Excess
Availability will be no less than $3,000,000, and (iii) the
Lenders shall have
received a Borrowing Base Certificate setting forth the
information required to
be included pursuant to Section 7.01(a)(x) on a projected basis
at the time of
such Restricted Payment, which shall have been prepared on a
reasonable basis
and in good faith by the Borrower, and have been based on
assumptions believed
by the Borrower to be reasonable at the time made and upon the
best information
then reasonably available to the Borrower, and a certificate by
a Responsible
Officer to the effect that such officer is not aware of any
event or development
since the date of delivery of the most recent financial
statements of the
Companies to the Lenders that could reasonably be expected to
have a Material
Adverse Effect.
"Revolving Credit Commitment" means, with respect to each
Lender, the
revolving credit commitment of such Lender as set forth in
Schedule D 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 the
Borrower
pursuant to Section 2.01(a) hereof.
"Revolving Credit Loan Subfacility" means that portion of the
Total
Commitment equal to $82,000,000, as such amount may be reduced
pursuant to
Section 2.07(a) hereof, or such other amount as shall be agreed
to in writing by
the Agent, the Lenders and the Borrower.
"Revolving Credit Notes" means each amended promissory note of
the
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.
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<PAGE>
"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.
"SCS Assets" means all rights, title and interests in all real
and
personal property and assets of SCS wherever located and whether
now or
hereafter existing arising and whether now owned or hereafter
acquired of every
kind and description, tangible and intangible.
"SCS Collateral Fixed Assets" means (i) all SCS Assets
consisting of
retail stores that, as of the date hereof, are subject to a Lien
in favor of a
Collateral Agent, and (ii) all hereafter acquired SCS Assets
consisting of
retail stores that are acquired (directly or indirectly) from
(A) proceeds of an
Asset Swap or (B) Net Proceeds of SCS Collateral Fixed Assets or
(C) such other
retail stores upon which SCS elects to grant a perfected, first
priority Lien in
favor of a Collateral Agent; provided, that SCS Collateral Fixed
Assets shall
not include any property leased by SCS from its Subsidiaries to
the extent that
such property is subject to the GECC Loan Documents.
"SCS Beverage" means SCS Beverage, Inc., a Texas
corporation.
"SCS Fixed Asset Credit" means, initially, $5,600,000, which is
the
lending value, for the purposes of calculating the Borrowing
Base, attributed by
the Agent to the SCS Collateral Fixed Assets consisting of
retail stores and in
which a Collateral Agent has a perfected, first priority
security interest. The
Agent may establish such reserves as it may deem appropriate in
the exercise of
its reasonable business judgment based on the lending practices
of the Agent,
consistent with the practices customary in the commercial
finance industry
generally, including, without limitation, if any of the
statements set forth in
Schedule J hereto are incorrect or if any of the SCS Collateral
Fixed Assets are
sold or otherwise disposed of (excluding Asset Swaps conducted
in accordance
with Section 7.02(d)(ii)(D)); provided that the amount of any
such reserves may
be increased, in the sole discretion of the Agent in the
exercise of its
reasonable business judgment based on the lending and reserve
practices of the
Agent generally, to the extent that a Collateral Agent is
granted a perfected,
first priority Lien on additional assets of SCS of at least
equivalent value to
those SCS Collateral Fixed Assets that have been sold or
otherwise been
disposed; provided further that, if SCS Collateral Fixed Assets
constituting
more than three retail stores in any one transaction or six
retail stores in any
Fiscal Year have been sold, transferred or closed since the
Effective Date and
not replaced in accordance with Sections 7.02(d)(ii)(D), (H) and
(I) with retail
stores of reasonably equivalent value (as determined by the
Agent) and in which
the Agent has a perfected, first priority security interest,
then the Agent may
apply a reserve against the amount of the SCS Fixed Asset
Credit, in an amount
to be determined by the Agent in its sole discretion and in the
exercise of its
reasonable business judgment, in connection with each additional
store that is
transferred, sold or closed as permitted hereunder.
"SCS Interest" means all of the membership interests of SCS and
all other
rights under the organizational documents of SCS relating
thereto.
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<PAGE>
"SCS Mortgages" means each "Mortgage," "Deed of Trust" or "Deed
to Secure
Debt," in form and substance satisfactory to the Agent, securing
the Obligations
and executed and delivered to a Collateral Agent by SCS, as the
same may be
amended or otherwise modified from time to time.
"SCS Preference Right" means the right of first refusal accorded
to
7-Eleven, Inc. (f/k/a The Southland Corporation) pursuant to the
organizational
documents of SCS upon certain proposed sales or assignments or
other changes of
control of membership interests in SCS.
"Security Agreement" means the Amended and Restated Security
Agreement,
dated as of August 8, 2000, as amended, restated and
consolidated on the date
hereof, by the Borrower and each of the 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 each 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.
"7-Eleven" means 7-Eleven, Inc., a Texas corporation, formerly
known as
The Southland Corporation.
"7-Eleven Consent" means the Consent Agreement, executed and
delivered by
7-Eleven to the FA Collateral Agent on July 31, 2002, as the
same may be amended
or otherwise modified from time to time.
"7-Eleven License" means the license granted by 7-Eleven to SCS
pursuant
to the 7-Eleven License Agreement in respect of, among other
things, the trade
name and trademark "7-Eleven".
"7-Eleven License Agreement" means the Area License Agreement,
dated June
2, 1993, between Permian Basin Investments, Inc. and 7-Eleven,
as amended by,
and as assigned to SCS pursuant to, the Amendment to Area
License Agreement and
Consent to Assignment, dated December 20, 1996, as the same may
be further
amended or otherwise modified from time to time.
"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
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<PAGE>
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 McGraw-Hill Companies, Inc., and any successor
thereto.
"Subordinated Investor Loan" means a loan made by an Investor to
a
Company, the payment of which has been subordinated in writing
to the
Obligations under terms and conditions satisfactory to the
Agent.
"Subordinated Investor Note" means a promissory note evidencing
the
repayment obligation of any Subordinated Investor Loan and which
is in form and
substance satisfactory to the Agent.
"Subordination Agreements" means (i) the Subordination Agreement
dated
August 8, 2000, as amended on May 4, 2001, among Alon Israel,
Alon Israel Energy
Ltd., Rosebud Medical Ltd., the Parent and Alon Capital in favor
of the
Collateral Agents, subordinating the Subordinated Investor Loans
to the
Obligations and (ii) the Subordination Agreement dated as of
August 21, 2002,
among the Parent and Alon Israel in favor of the Collateral
Agents,
subordinating certain other Subordinated Investor Loans to the
Obligations, as
each of the same may be amended or otherwise modified from time
to time.
"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.
"Taxes" shall have the meaning given to that term in Section
2.12 hereof.
"Term Debt Service Reserve L/C" means the Letter of Credit
issued in favor
of CSFB to meet the Debt Service Support Requirement.
"Terminals" means the real property interests described in
Schedule H
hereto and any other terminal now or hereafter owned or leased
by any Company.
"Termination Date" means December 31, 2006.
"Termination Event" means (i) a Reportable Event with respect to
any
Employee Plan, (ii) any event that causes the Borrower or any of
its ERISA
Affiliates to incur liability
- 29 -
<PAGE>
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 CSFB acting through its Cayman Islands
branch, or
any successor or replacement agent under the Term Loan
Agreement.
"Term Loan Agreement" means the Amended and Restated Credit
Agreement,
dated as of January 14, 2004, among Alon USA, Inc., as borrower,
the lenders
party thereto and Credit Suisse First Boston, as administrative
agent, as the
same may be further amended or otherwise modified from time to
time in
accordance with Section 7.02(b)(xvi).
"Term Loan Credit Basket" means an amount equal to (a) the
lesser of (i)
$27,500,000, and (ii) proceeds of the Term Loan used to repay
the Revolving
Loans on the Effective Date, less, (b) the sum of (i) the
aggregate amount of
any expenditures in connection with all Permitted Acquisitions,
plus (ii) any
amounts paid by the Borrower to Alon USA (directly or
indirectly) during the
period from the Effective Date through December 31, 2004 in
accordance with
Section 7.02(i)(x).
"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 $100,000,000
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.
"Transaction Documents" means the Loan Documents, the License
Agreements
and the Lease Documents.
"Warrant" means each Common Stock Purchase Warrant dated August
8, 2000,
issued by Alon Assets and Alon Operating to Bank Leumi and IDB,
as the same may
be amended, restated or otherwise modified from time to
time.
"Warrant Purchase Agreement" means the Purchase Agreement by and
between
Alon USA and Bank Leumi, with respect to the purchase by Alon
USA of the
Warrants owned by Bank Leumi for the Warrant Purchase Price.
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<PAGE>
"Warrant Purchase Documents" means the Warrant Purchase
Agreement and all
other agreements, instruments and documents executed and
delivered by any of
Bank Leumi, Alon USA or the Parent in connection with the
purchase by Alon USA
of the Warrants owned by Bank Leumi.
"Warrant Purchase Price" means $1,471,470.02, of which (i)
$1,213,769.01
was paid to Bank Leumi prior to the date hereof, and (ii)
$257,701.01 plus
accrued and unpaid interest must be paid to Bank Leumi on June
30, 2004.
"WC Collateral Agent" means IDB, or any successor or replacement
agent in
its capacity as a collateral agent for the Lenders.
"West Texas Sour Crude Oil Benchmark" means (i) to the extent
that West
Texas Sour Crude Oil has a market value (determined in
accordance with GAAP) of
$38.00 per barrel or less, the value of the Borrower's Eligible
Inventory shall
be determined at market value in accordance with GAAP, provided
that the Agent
may mark to market the Inventory at any time, in its discretion,
and (ii) if as
of the date of any Borrowing Base Certificate West Texas Sour
Crude Oil has a
market value (determined in accordance with GAAP) of greater
than $38.00, then
(A) the value of the Borrower's Eligible Inventory shall be
multiplied by the
percentage obtained by dividing (1) $38.00, by (2) the actual
market value of
West Texas Sour Crude Oil as of such date and (B) the value of
the Borrower's
Eligible Inventory shall be reduced to such amount.
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 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 terms "herein" and
"hereof" shall
refer to this Agreement as a whole and not to any particular
portion, unless
stated otherwise. 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
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<PAGE>
Section 2.01 Revolving Credit Commitments.
(a) Each Revolving Lender has made "Revolving Credit Loans"
(as
defined in the Existing Revolving Credit Agreement) to the
Borrower (i) prior to
the Effective Date, which must be repaid in full on the
Effective Date, and upon
the effectiveness of this Agreement, any such amount repaid may
be reborrowed
and such "Revolving Credit Loan" shall automatically be deemed
to be a
"Revolving Credit Loan" to the Borrower by such Lender under
this Agreement, and
(ii) 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 Borrower 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
Revolving Credit Loan Subfacility.
(c) Within the foregoing limits, the Borrower 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 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")) not later than 12:00 noon (New York
City time) three
Business Days prior to such proposed borrowing, and 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 Borrower
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 Borrower (or
from any officer
thereof designated in writing to the Agent), and the 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.
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<PAGE>
(a) Each Revolving Credit Loan made by a Lender shall be
evidenced
by a single Revolving Credit Note, duly executed by the
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
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 Borrower, the
Lenders and the
Agent, the Borrower, the Lenders and the Agent agree that the
Agent may, but
shall not be obligated to, and the Borrower 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, 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 Borrower 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 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 Borrower on such day. If, in such case,
the
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<PAGE>
Agent makes such corresponding amount available to the Borrower
and such
corresponding amount is not in fact made available to the Agent
by such Lender,
such Lender and the Borrower 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 a Borrower until
the date such
amount is repaid to the Agent, at (A) in the case of the
Borrower, 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 Borrower may
have against any
Lender as a result of any default by such Lender hereunder.
(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 Borrower 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
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so advanced by the Agent to the Borrower 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 Borrower of such failure and the Borrower 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 2.50%.
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.
(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 Borrower hereby authorizes 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.
(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) Except as set forth in Section 9.08(d), the Total
Commitment
shall not be reduced without the prior written consent of the
Borrower, the
Agent and Bank Leumi. Any reductions of the Total Commitment
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.
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(b) Subject to the terms and conditions contained in this
Section
2.07, Section 2.10 and elsewhere in this Agreement, the Borrower
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
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 Borrower has complied with the first
sentence of this
Section 2.07(c)(i), the aggregate amount of Letter of Credit
Obligations is
greater than the then current Borrowing Base, the Borrower 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 Borrower 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.
(i) If at any time the aggregate principal amount of all
outstanding Revolving Credit Loans exceeds the Revolving Credit
Loan
Subfacility Limit, the 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 to an amount less than or
equal to the
Revolving Credit Loan Subfacility.
(d) Immediately upon the receipt by any Loan Party, any Company
or
any of its Subsidiaries (other than the GECC Entities) of any
Net Proceeds from
the issuance, sale, assignment, transfer or other disposition of
any Capital
Stock, debt securities or assets of a Company or any of its
Subsidiaries (other
than Net Proceeds from (A) the issuance, sale, assignment,
transfer or other
disposition of any Capital Stock, debt securities or assets of
SCS or any of its
Subsidiaries, and (B) the sale of Inventory in the ordinary
course of business
and other than with respect to property subject to a prior
Permitted Lien) the
Borrower shall make a prepayment of the Revolving Credit Loans
in an amount
equal to the amount of such Net Proceeds, except to the extent
the Borrower or
any other Company is obligated to pay such Net Proceeds of Fixed
Assets, Capital
Stock or debt securities to the Term Loan Agent in accordance
with Sections
2.12(a), (b) or (c) of the Term Loan Agreement (as in effect on
the date
hereof). Notwithstanding the foregoing, (i) the Borrower 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(f) hereof and
(ii) Alon USA may, as to any amounts that would constitute Net
Proceeds of the
sale of any Fixed Assets (other than SCS Assets), deliver to the
Agent, at the
time of receipt of such amounts, a certificate of an officer
stating that it
intends to reinvest such amounts in Growth Assets 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 productive assets, be
deposited with and held
by the Term Loan Agent in an account over which the Term
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<PAGE>
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 $10,000,000 and (D) such amounts shall in fact be
reinvested in Growth
Assets 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) Immediately upon the receipt by SCS or any of its
Subsidiaries
of any Net Proceeds from the issuance, sale, assignment,
transfer or other
disposition of any Capital Stock, debt securities or assets
(other than (A) Net
Proceeds from the sale or transfer by SCS of SCS Collateral
Fixed Assets to the
extent the Net Proceeds thereof are applied in accordance with
Section
7.02(d)(ii)(H) hereof, and (B) Net Proceeds from the sale of
Inventory in the
ordinary course of business), SCS shall make a prepayment of the
Revolving
Credit Loans in an amount equal to the amount of such Net
Proceeds.
Notwithstanding the foregoing, SCS 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(f).
(f) Immediately upon the receipt by any Company of any
property
damage insurance proceeds or condemnation proceeds with respect
to the assets
and properties of such Company (other than with respect to
assets and properties
subject to a prior Permitted Lien), the Borrower shall prepay
the Revolving
Credit Loans in an amount equal to the property damage insurance
proceeds or
condemnation proceeds received by such Company, except to the
extent that the
Borrower or any other Company is obligated to pay such insurance
proceeds or
condemnation proceeds with respect to Fixed Assets to the Term
Loan Agent in
accordance with Section 2.12(e) of the Term Loan Agreement (as
in effect on the
date hereof). Notwithstanding the foregoing, such prepayment
shall not be
required (i) in the case of receipt by the Companies (other than
SCS and its
Subsidiaries) of insurance proceeds or condemnation proceeds of
$3,000,000 or
less in the aggregate and (ii) in the case of receipt by SCS and
its
Subsidiaries of insurance proceeds or condemnation proceeds of
$500,000 or less
in the aggregate, in each case, to the extent such insurance
proceeds or
condemnation proceeds are used to purchase replacement assets or
otherwise to
rebuild, restore, repair or complete such assets within 60 days
after the
receipt thereof, provided that no Default or Event of Default
has occurred and
is continuing and provided further that the casualty event or
taking for which
such insurance proceeds or condemnation proceeds (as applicable)
were paid has
not had a Material Adverse Effect.
(g) 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.
(h) 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 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.
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<PAGE>
(i) Except as otherwise expressly provided in this Section
2.07,
payments with respect to any paragraph of this Section 2.07 are
in addition to
payments made or required to be made under any other paragraph
of this Section
2.07. The provisions of this Section 2.07 shall not constitute a
waiver of or a
consent to any departure from any provision in any Loan
Document, including,
without limitation, any provision that prohibits or otherwise
restricts the
sale, transfer or other disposition of any real or personal
property of a Loan
Party, the incurrence of Indebtedness or otherwise.
Section 2.08 Fees.
(a) Unused Line Fee. From and after the Existing Effective
Date
until the Final Maturity Date, the Borrower 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 one-half of one percent (0.50%)
per annum, on the
excess, if any, of the Total Commitment over the sum of the
Revolving Credit
Loans and Letter of Credit Obligations outstanding from time to
time. The Unused
Line Fees shall be payable quarterly in arrears on the first day
of each
January, April, July and October, commencing October 1, 2000 and
shall be
non-refundable.
(b) Agent's Fee. On or prior to the Existing Effective Date,
the
Borrower has paid to the Agent, for its own account, a fee (the
"Agent's Fee")
equal to $162,500 (after crediting any prior payments received
by the Agent in
respect of the Agent's Fee). The Agent's Fee is
non-refundable.
(c) Letter of Credit Fees. From and after the Existing
Effective
Date until all Letters of Credit have been terminated, the
Borrower shall pay to
the Agent the Letter of Credit Fees set forth in Section 3.03(b)
hereof.
(d) Field Examination Fee. The Borrower 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.
(e) Closing Fee. On or prior to the Effective Date, the
Borrower
shall pay to the Agent, for the account of the Lenders, a fee
(the "Closing
Fee") equal to $575,000. The Closing Fee shall be
non-refundable.
(f) Early Termination Fee. If for any reason at any time
before
December 1, 2005 the Total Commitment shall be terminated by the
Borrower, the
Borrower shall immediately pay a fee to the Agent for the
account of the
Lenders, equal to (i) $1,420,000, if such termination occurs on
or before
December 1, 2004, and (ii) $710,000, if such termination occurs
after December
1, 2004 and before December 1, 2005.
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
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<PAGE>
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 Borrower and the Lenders. In the event of
any such
determination, any request by the 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 Borrower that, or in the case of a determination by
the Agent, the
Agent has advised the 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 Lender shall forthwith give notice thereof
to the Agent and
the 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 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
Borrower, and the Borrower 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 Borrower hereby indemnifies each Lender and each
Lender's
Affiliate against 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 Borrower to fulfill on the date of any borrowing hereunder
the applicable
conditions set forth in Article V, (ii) any failure by the
Borrower 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 hereof, (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
Borrower 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
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<PAGE>
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
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 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 Borrower shall have
the
right, at any time, on three (3) Business Days' prior
irrevocable written or
telecopy notice 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 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;
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<PAGE>
(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 Borrower
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
Borrower shall 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 hereof.
In the event that the Borrower shall not give notice to continue
any Eurodollar
Loan into a subsequent Interest Period, such Revolving Credit
Loan shall
automatically become 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 made by the Borrower 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 the L/C Issuer imposed by the jurisdiction
in which such
Lender, the Agent or the 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 the
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) the Borrower shall make such deductions or
withholdings, and (iii)
the Borrower 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
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<PAGE>
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 Borrower
or (B) an Event of Default has occurred and is continuing at the
time of such
assignment. Whenever any Taxes are payable by the Borrower, as
promptly as
possible thereafter, the Borrower 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
Borrower agrees 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 the L/C Issuer (such nonexcluded taxes being
hereinafter collectively
referred to as "Other Taxes").
(b) The Borrower will 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 hereof after the Effective Date, the date upon which such
Lender
becomes a party hereto) deliver to the Borrower 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
Borrower
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
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(iii) it shall, promptly upon the Borrower's reasonable
request to that effect, deliver to the 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 Borrower 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 Borrower without deduction pursuant to Section 2.12(a)
or
indemnification by the Borrower 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 Borrower; provided,
however, that
should such Lender become subject to Taxes because of its
failure to deliver a
form required hereunder, the Borrower shall take such steps as
the Lender shall
reasonably request to assist such Lender to recover such
Taxes.
(e) If the Borrower fails to perform its obligations under
this Section 2.12, the Borrower shall 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 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.
ARTICLE III
LETTERS OF CREDIT
Section 3.01 Letters of Credit.
(a) The L/C Issuer has established and issued, at the
request
of and on behalf of the Borrower, "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
the L/C Issuer on behalf of the Borrower under this Agreement.
The Borrower has
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 the L/C
Issuer has
agreed to do so, subject to the terms hereof and each Letter of
Credit
Application (as hereinafter defined). The Borrower will be the
account party for
each application for a Letter of Credit, which shall be
substantially in the
form of Exhibit J hereto or
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<PAGE>
on a computer transmission system approved by the L/C Issuer or
such other
written form or written transmission system as may from time to
time be approved
by the L/C Issuer, and shall be duly completed in a manner
reasonably acceptable
to the L/C Issuer, together with such other certificates,
agreements, documents
and other papers and information as the 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 lower of (i) the difference between (A) the Total
Commitment and (B)
the aggregate principal amount of Revolving Credit Loans then
outstanding and
(ii) the difference between (A) the aggregate Borrowing Base and
(B) the
aggregate principal amount of the Revolving Credit Loans then
outstanding. The
terms and conditions of all Letters of Credit and all changes or
modifications
thereof by the Borrower and/or the 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 L/C Issuer (the "Letter of
Credit Collateral
Account") or (B) the Borrower 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 L/C
Issuer.
(c) The Agent shall have the right, without notice to the
Borrower, 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 the 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 Borrower, 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 the 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 Borrower 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 Borrower absent
manifest error.
Each of the Lenders and the Borrower 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 Borrower unconditionally indemnifies the Agent, the
L/C Issuer and each Lender and agrees to hold the Agent, the L/C
Issuer and each
Lender harmless from any and all loss, claim or liability
incurred by the Agent,
the L/C Issuer or any Lender
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<PAGE>
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 the L/C Issuer, other than for any such loss,
claim or liability
arising out of the gross negligence or willful misconduct of the
Agent, the L/C
Issuer or any Lender as determined by a final judgment of a
court of competent
jurisdiction.
(e) None of the Agent, the Lenders and the L/C Issuer 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 the Borrower.
Furthermore, without
limiting any of the foregoing, none of the Agent, the L/C Issuer
and the Lenders
shall be responsible for any act or omission with respect to or
in connection
with any goods covered by any Letter of Credit.
(f) The Borrower agrees that any action taken by the Agent,
the 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 Borrower and shall not put
the Agent, the
L/C Issuer or the Lenders in any resulting liability to the
Borrower. In
furtherance of the foregoing, the 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 the L/C
Issuer's sole name, without any notice to or any consent from
the Borrower or
any Lender. The L/C Issuer shall use reasonable efforts to
consult with the
Borrower before taking any action pursuant to this Section
3.01(f).
(g) Without the L/C Issuer's express consent, the Borrower
agrees: (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 which is
not cured within
any applicable grace period, if any, or waived by the Agent, 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.
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<PAGE>
(h) The Borrower agrees 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
the L/C Issuer may at any time reasonably request will be
promptly furnished. In
this connection, the Borrower warrants and represents 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 Borrower, on
the one hand, and the Agent, the Lenders and the L/C Issuer, on
the other hand,
the Borrower assumes all risk, liability and responsibility for,
and agrees to
pay and discharge, all present and future local, state, federal
or foreign
taxes, duties, or levies. As between the Borrower, on the one
hand, and the
Agent, the Lenders and the L/C Issuer, 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 drawn,
negotiated, accepted,
or paid, shall be solely the Borrower's risk, liability and
responsibility.
(i) Upon any payments made to the L/C Issuer by the Agent or
the Lenders as reimbursement for payments made by the 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 Borrower in favor of the 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) Purchase of Participations. Immediately upon issuance by
the 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 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 the L/C Issuer in such Letter of Credit (including, without
limitation, all
Reimbursement Obligations of the Borrower with respect thereto
pursuant to the
Letters of Credit, the Letters of Credit Applications or
otherwise).
(b) Sharing of Payments. In the event that the L/C Issuer
makes any payment in respect of a Letter of Credit and the
Borrower 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.
(c) Obligations Irrevocable. The obligations of a Lender to
make payments to the Agent for the account of the 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
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<PAGE>
with the terms and conditions of this Agreement under all
circumstances,
including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or
other right which the Borrower 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, the
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 the Borrower or any other party and the
beneficiary
named in such Letter of Credit);
(iii) 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;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the
Loan
Documents;
(v) any failure by the L/C Issuer or the Agent to
provide any notices required pursuant to this Agreement relating
to such
Letter of Credit;
(vi) any payment by the 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
(vii) the occurrence of any Default or Event of Default.
Section 3.03 Issuance of Letters of Credit; Fees.
(a) Request for Issuance. The 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 the L/C Issuer to establish or
open a Letter
of Credit by delivering to the Agent, with a copy to the L/C
Issuer, a letter of
credit application, together with any necessary related
documents. The Agent
shall direct the 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 the 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.
(b) Letters of Credit Fees.
(i) The Borrower shall pay to the Agent for the account
of the L/C Issuer a nonrefundable administration fee (a "Letter
of Credit
Administration Fee")
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<PAGE>
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 1/8 of 1% 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 Borrower 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 2.50% 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
2.50% per annum of the increase in the stated amount of such
Letter of
Credit. Each Letter of Credit Issuance Fee and Letter of Credit
Amendment
Fee shall be payable as follows: (i) 100% of such fee, less the
portion of
such fee which would accrue during the final five (5) days of
the Letter
of Credit, shall be payable in advance of or prior to the
issuance (or in
the case of an amendment, the effective date of such amendment)
of such
Letter of Credit, and (ii) the remainder shall be payable upon
the
expiration or termination of such Letter of Credit.
(ii) L/C Issuer Charges. The B
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