<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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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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<PAGE>
"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
- 4 -
<PAGE>
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
- 6 -
<PAGE>
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.
- 8 -
<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.
- 9 -
<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
- 10 -
<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.
- 12 -
<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
- 13 -
<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.
- 15 -
<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
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<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.
- 26 -
<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
- 28
-
<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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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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<PAGE>
(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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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 Borrower shall pay to the
L/C Issuer
the standard ch
