FIFTH AMENDMENT TO
AMENDED REVOLVING CREDIT AGREEMENT
FIFTH
AMENDMENT, dated as of July 31, 2009 (this “
Agreement ”), by and among Alon USA Energy, Inc., a
Delaware corporation (the “ Parent ”), Alon USA,
LP, f/k/a SWBU, L.P., a Texas limited partnership (“ Alon
LP ”; together with such other subsidiaries of the Parent
as may be designated as a borrower under the Credit Agreement by
Alon LP with the prior written consent of the Agent (as defined
below) and the Required Lenders (as defined in the Credit
Agreement), each individually a “ Borrower ”,
and, collectively, the “ Borrowers ”), all
direct and indirect subsidiaries of the Parent other than the
Excluded Subsidiaries (as defined in the Credit Agreement) (the
Parent and such direct and indirect subsidiaries that are not
Excluded Subsidiaries are hereinafter referred to individually as a
“ Guarantor Company ” and, collectively, as the
“ Guarantor Companies ”), the Lenders (as
defined below), Israel Discount Bank of New York, as administrative
agent, co-arranger and collateral agent for the Lenders (in such
capacity, the “ Agent ”), and Bank Leumi USA, as
co-arranger for the Lenders (“ Bank Leumi
”).
WHEREAS,
the Borrowers, the Guarantor Companies, the financial institutions
from time to time party thereto (each a “ Lender
” and collectively, the “ Lenders ”), the
Agent and Bank Leumi are parties to the Amended Revolving Credit
Agreement, dated as of June 22, 2006 (as amended by
(i) the First Amendment, dated as of August 4, 2006,
(ii) the Waiver, Consent, Partial Release and Second
Amendment, dated as of February 28, 2007, (iii) the Third
Amendment, dated as of June 29, 2007, and (iv) the Waiver,
Consent, Partial Release and Fourth Amendment, dated as of
July 2, 2008, the “ Credit Agreement ”),
pursuant to which the Lenders have made revolving loans to the
Borrowers;
WHEREAS,
the Loan Parties, the Lenders, Bank Leumi and the Agent wish to
amend the Credit Agreement to: (i) extend the Termination Date
to January 1, 2013, (ii) increase the interest rate for
each Revolving Credit Loan, (iii) increase the Unused Line
Fee, the Letter of Credit Issuance Fee and the Letter of Credit
Amendment Fee, (iv) terminate the right to request a Facility
Sublimit Increase, (v) change the reporting requirements under
Sections 7.01(a) (ii) and (iii) of the Credit
Agreement, and (vi) amend certain other terms and conditions
of the Credit Agreement, in each case, subject to the terms and
conditions set forth in this Agreement;
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1.
Definitions . Any capitalized term used herein and not
defined shall have the meaning assigned to it in the Credit
Agreement.
2.
Amendments to Credit Agreement .
(a)
New Definition . Section 1.01 of the Credit Agreement
is hereby amended to add the following defined term in the
appropriate alphabetical order:
“
Pricing Effective Date’ means August 3,
2009.”
(b)
Deletion of Existing Definitions . The following defined
terms in Section 1.01 of the Credit Agreement are hereby
deleted in their entirety:
“Blended
West Texas Crude Oil Price”;
“Initial
Oil Increase Period”;
“Minimum
Oil Increase Period”;
“Notice
of Facility Sublimit Increase”;
“Production
Increase”; and
“Subsequent
Oil Increase Period”.
(c)
Amendment and Restatement of Existing Definitions . The
following defined terms in Section 1.01 of the Credit
Agreement are hereby amended and restated in their entirety to read
as follows:
“‘
Availability ’ means, at any time, the difference
between (i) the lower 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.”
“‘
Base Rate Loan ’ means a Revolving Credit Loan bearing
interest based on the Base Rate or as set forth in
Section 2.06(a).”
“‘
Eurodollar Loan ’ means a Revolving Credit Loan
bearing interest based on the Eurodollar Rate or as set forth in
Section 2.06(a).”
“‘
Obligations ’ means (i) the obligations of the
Borrowers to pay, as and when due and payable (by scheduled
maturity or otherwise), all
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amounts from
time to time owing by them in respect of any Loan Document to which
any Borrower is a party, whether for principal, interest
(including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to
bankruptcy, insolvency or reorganization of a Loan Party, whether
or not a claim for post-filing interest is allowed in such
proceeding), Letter of Credit Obligations, fees, commissions,
expense reimbursements, indemnifications or otherwise,
(ii) the obligations of the Borrowers to perform or observe
all of its other obligations from time to time existing under any
Loan Document to which any Borrower is a party, and (iii) any
overdrawn amounts with respect to any deposit or checking account
maintained by any Loan Party at IDB or Bank Leumi, together with
any related fees and charges.”
“‘
Termination Date ’ means January 1,
2013.”
(d)
Revolving Credit Commitments . Section 2.01(b) of the
Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“(b) Notwithstanding
the foregoing, the aggregate principal amount of the Revolving
Credit Loans outstanding at any time shall not exceed the lower of
(i) the difference between (A) Total Commitment and
(B) the aggregate Letter of Credit Obligations and
(ii) the difference between (A) the then current Borrowing
Base, and (B) the aggregate Letter of Credit
Obligations.”
(e)
Interest; Revolving Credit Loans . Section 2.06(a) of
the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
“(a) 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
(i) prior to the Pricing Effective Date, the Eurodollar Rate
for the Interest Period in effect for such Revolving Credit Loan
plus 1.50%, and (ii) on and after the Pricing Effective Date,
the greater of (A) the Eurodollar Rate for the Interest Period
in effect for such Revolving Credit Loan plus 3.0% and
(B) 4.0%. 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
(x) prior to the Pricing Effective Date, the Base Rate, and
(y) on and after the Pricing Effective Date, the greater of
(A) the Base Rate plus 1.0% and
(B) 4.0%.”
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(f)
Reduction of Revolving Credit Commitment; Prepayment of
Revolving Credit Loans . Section 2.07(c)(ii) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
(g)
Fees; Unused Line Fee . Section 2.08(a) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
“(a) From
and after the Effective Date until the Final Maturity Date, the
Borrowers shall pay to the Agent for the account of the Lenders in
accordance with the Lenders’ respective Pro Rata Shares and
in immediately available funds, an unused line fee (the “
Unused Line Fee ”) accruing at the rate of
(i) prior to the Pricing Effective Date, 3/10ths of 1% (0.30%)
per annum, and (ii) on and after the Pricing Effective Date,
7/10ths of 1% (0.70%) per annum, in each case on the excess, if
any, of the Total Commitment over the sum of the average amount of
all Revolving Credit Loans and Letter of Credit Obligations
outstanding from time to time. Solely for the purposes of
calculating the Unused Line Fee, the total amount of Letters of
Credit Obligations shall be determined based upon the maximum
stated amount of each Letter of Credit and each such Letter of
Credit shall be deemed to be outstanding at the maximum stated
amount until the expiry date of each such Letter of Credit,
irrespective of whether the maximum stated amount was reduced or
such Letter of Credit was terminated prior to the expiry date of
such Letter of Credit. The Unused Line Fee shall be payable
quarterly in arrears on the first Business Day of each January,
April, July and October, commencing April 3, 2006 and shall be
non-refundable.”
(h)
Fees; Unused Loan Subfacility Fee . Section 2.08(b) of
the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
(i)
Increases to the Facility Sublimit . Section 2.13 of
the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
“Section 2.13
[ Reserved ]”
(j)
Letters of Credit . Section 3.01(b) of the Credit
Agreement is hereby amended by deleting the first sentence of such
section in its entirety and by substituting therefor the
following:
“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)
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the aggregate
principal amount of the Revolving Credit Loans then
outstanding.”
(k)
Letters of Credit Fees . Section 3.03(b)(i) of the
Credit Agreement is hereby amended by deleting the last sentence of
such section in its entirety and by substituting therefor the
following:
“In
addition, the Borrowers shall pay to the Agent for the account of
the Lenders, in accordance with the Lenders’ Pro Rata Shares,
(x) for each Letter of Credit issued hereunder, a
nonrefundable issuance fee (a “ Letter of Credit Issuance
Fee ”) equal to (1) prior to the Pricing Effective
Date, 1.50% per annum and (2) on and after the Pricing
Effective Date, 2.25% per annum, in each case of the stated amount
of such Letter of Credit, and (y) for any amendment to an
existing Letter of Credit that increases the stated amount of such
Letter of Credit, a nonrefundable amendment fee (a “
Letter of Credit Amendment Fee ”) equal to (1) prior
to the Pricing Effective Date, 1.50% per annum and (2) on and
after the Pricing Effective Date, 2.25% per annum, in each case of
the increase in the stated amount of such Letter of
Credit.”
(l)
Affirmative Covenant; Reporting Requirements .
(i) Section 7.01(a)(ii)
of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(ii) as
soon as available, and in any event within 90 days after the
end of each Fiscal Year of the Parent,
(A) the audited
consolidated balance sheets, consolidated statements of income and
consolidated statements of stockholders’ equity and
consolidated statements of cash flow of the Parent and its
Consolidated Subsidiaries as at the end of such Fiscal Year,
setting forth in comparative form the corresponding figures for the
immediately preceding Fiscal Year, all in reasonable detail and
prepared in accordance wit
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