REPRESENTATIONS AND WARRANTIES OF HOLDINGS AND THE BORROWER. To induce the Agent and the Lenders to execute and deliver this Agreement (which representations and warranties shall survive the execution and delivery of this Agreement and the occurrence of the First Amendment Effective Date), Holdings and the Borrower represent and warrant to the Agent and the Lenders that: (a) each of this Agreement, the L/C Reimbursement Subordination Agreement (as defined below) and the Unwind Letter of Direction (as defined below) have been duly authorized, executed and delivered by Holdings and the Borrower and constitutes the legal, valid and binding obligation, contract and agreement of the Borrower and Holdings enforceable against the Borrower and Holdings in accordance with the terms hereof, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally; (b) the Term Loan Agreement, as modified by this Agreement, and the other Loan Documents, in each case constitute the legal, valid, and binding obligations, contracts, and agreements of each Loan Party that is party thereto, enforceable against such Loan Party in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws or equitable principles relating to or limiting creditors’ rights generally; (c) the execution and delivery by each Loan Party of this Agreement, the L/C Reimbursement Subordination Agreement and the Unwind Letter of Direction, and the performance by such Loan Party of this Agreement, the L/C Reimbursement Subordination Agreement and the Unwind Letter of Direction (i) has been duly authorized by all requisite corporate or limited liability company action and, if required, shareholder or other equity interest holder action, (ii) does not require the consent or approval of any Governmental Authority, and (iii) does not and will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation, bylaws or other constitutive or governing document, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in subclause (iii)(A)(3) of this section 3(c) or cause any payment to be required to be made thereunder or (C) result in the creation of any Lien; (d) as of the date hereof and after giving effect to this Agreement, (i) no Default or Event of Default has occurred which is continuing under the Term Loan Agreement, (ii) no default, event of default or similar event has occurred and is continuing under the Revolving Credit Agreement and no default, event of default, termination event or similar event has occurred under the Crack Spread Hedging Agreement, and (iii) no Subsidiary (other than the Borrower) is liable to any person under the Other Primary Loan Documents (as defined below); (e) all of the representations and warranties made by Holdings and the Borrower in the Term Loan Agreement are true and correct on the date hereof in all material respects as if made on and as of the date hereof and are so repeated herein as if expressly set forth herein or therein, except (i) to the extent that any of such representations and warranties expressly relate by their terms to a prior date or period of time, (ii) that the references in Section 3.05 to the financial statements of the Borrower and its subsidiaries shall be deemed to refer to the unaudited financial statements previously furnished pursuant to Section 5.04(b) with respect to the fiscal quarters of the Borrower ending after the Closing Date, provided that the representations and warranties in Section 3.05 with respect to such unaudited financial statements shall be deemed qualified to reflect that such unaudited financial statements are subject to normal year-end audit adjustments and do not contain certain footnotes, (iii) that all events referenced on Schedule 3(e) hereto shall be excluded from the determination of whether an event, condition or development referred to in Section 3.06 has occurred on or before the First Amendment Effective Date, (iv) for Section 3.10(b), which shall be true and correct on the date hereof after giving effect to this Agreement, and (v) that Section 3.08 shall be true and correct as of the date hereof; (f) none of Holdings, the Borrower or any of their respective Affiliates has paid or agreed to pay any fees or other consideration, or given any additional security or collateral, or shortened the maturity or average life of any Indebtedness or permanently reduced any borrowing capacity, in each case, in favor of or for the benefit for any creditor of any Loan Party or any person providing investment banking or financial advisory services to any Loan Party, in connection with the obtaining of any consents or approvals in connection with the transactions contemplated hereby (including, without limitation, under the Revolving Credit Agreement or the Crack Spread Hedging Agreement), other than, (i) with respect to the Loans, an amendment and waiver fee equal to 1.00% of the aggregate outstanding principal amount of the Loans paid pro rata to the Lenders, (ii) a fee in the amount of $3,000,000 payable to Credit Suisse Securities (USA), LLC, in its capacity as financial advisor for the Company; and (iii) the reductions in borrowing capacity contemplated by the Permitted ABL Facility Amendment; (g) the projections of the consolidated operating budgets of the Borrower and its subsidiaries delivered to the Agent and the Lenders on or about March 31, 2009 (i) disclose all material assumptions made with respect to general economic, financial and market conditions used in formulating such projections, (ii) are based upon reasonable estimates and assumptions, and (iii) were prepared based on the assumptions stated therein and reflect the reasonable estimates by the Borrower of the results of operations and other information projected therein, it being recognized by the Agent and the Lenders that such projections and other information regarding future events are not to be viewed as facts and that actual results or developments during the period or periods covered may differ from the delivered projections and other prospective information; provided, however that, to the knowledge of the Borrower, no facts exist that (individually or in the aggregate) would result in any material change in any of such projections, except as set forth and described in Schedule 3(g) hereto; (h) except as set forth and described in Schedule 3(h) hereto, no Loan Party has entered into any amendment or waiver or entered into any agreement having the effect of an amendment or waiver with respect to any provision of the Revolving Credit Agreement, the Crack Spread Hedging Agreement or any of the other agreements, documents and instruments entered into in connection therewith or pursuant thereto (all such agreements, documents and instruments, together with the Revolving Credit Agreement and the Crack Spread Hedging Agreement, collectively, the “Other Primary Loan Documents”); and (i) a true, correct and complete description of all Hedging Agreements to which the Borrower is a party as of the date hereof (including the counterparty to each such Hedging Agreement, the type of Hedging Agreement, the material terms of such Hedging Agreement and the marked-to-market hedge position for such Hedging Agreement as of the date immediately preceding the date hereof) is set forth on Exhibit E hereto.
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Sources: First Amendment Agreement (Alon USA Energy, Inc.), First Amendment Agreement (Alon USA Energy, Inc.)
REPRESENTATIONS AND WARRANTIES OF HOLDINGS AND THE BORROWER. To induce the Agent and the Lenders to execute and deliver this Agreement (which representations and warranties shall survive the execution and delivery of this Agreement and the occurrence of the First Amendment Effective Date), Holdings and the Borrower represent and warrant to the Agent and the Lenders that:
(a) each of this Agreement, the L/C Reimbursement Subordination Agreement (as defined below) and the Unwind Letter of Direction (as defined below) have been duly authorized, executed and delivered by Holdings and the Borrower and constitutes the legal, valid and binding obligation, contract and agreement of the Borrower and Holdings enforceable against the Borrower and Holdings in accordance with the terms hereof, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(b) the Term Loan Agreement, as modified by this Agreement, and the other Loan Documents, in each case constitute the legal, valid, and binding obligations, contracts, and agreements of each Loan Party that is party thereto, enforceable against such Loan Party in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c) the execution and delivery by each Loan Party of this Agreement, the L/C Reimbursement Subordination Agreement and the Unwind Letter of Direction, and the performance by such Loan Party of this Agreement, the L/C Reimbursement Subordination Agreement and the Unwind Letter of Direction (i) has been duly authorized by all requisite corporate or limited liability company action and, if required, shareholder or other equity interest holder action, (ii) does not require the consent or approval of any Governmental Authority, and (iii) does not and will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation, bylaws or other constitutive or governing document, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in subclause (iii)(A)(3) of this section 3(c) or cause any payment to be required to be made thereunder or (C) result in the creation of any Lien;
(d) as of the date hereof and after giving effect to this Agreement,
(i) no Default or Event of Default has occurred which is continuing under the Term Loan Agreement,
(ii) no default, event of default or similar event has occurred and is continuing under the Revolving Credit Agreement and no default, event of default, termination event or similar event has occurred under the Crack Spread Hedging Agreement, and
(iii) no Subsidiary (other than the Borrower) is liable to any person under the Other Primary Loan Documents (as defined below);
(e) all of the representations and warranties made by Holdings and the Borrower in the Term Loan Agreement are true and correct on the date hereof in all material respects as if made on and as of the date hereof and are so repeated herein as if expressly set forth herein or therein, except (i) to the extent that any of such representations and warranties expressly relate by their terms to a prior date or period of time, (ii) that the references in Section 3.05 to the financial statements of the Borrower and its subsidiaries shall be deemed to refer to the unaudited financial statements previously furnished pursuant to Section 5.04(b) with respect to the fiscal quarters of the Borrower ending after the Closing Date, provided that the representations and warranties in Section 3.05 with respect to such unaudited financial statements shall be deemed qualified to reflect that such unaudited financial statements are subject to normal year-end audit adjustments and do not contain certain footnotes, (iii) that all events referenced on Schedule 3(e) hereto shall be excluded from the determination of whether an event, condition or development referred to in Section 3.06 has occurred on or before the First Amendment Effective Date, (iv) for Section 3.10(b), which shall be true and correct on the date hereof after giving effect to this Agreement, and (v) that Section 3.08 shall be true and correct as of the date hereof;
(f) none of Holdings, the Borrower or any of their respective Affiliates has paid or agreed to pay any fees or other consideration, or given any additional security or collateral, or shortened the maturity or average life of any Indebtedness or permanently reduced any borrowing capacity, in each case, in favor of or for the benefit for any creditor of any Loan Party or any person providing investment banking or financial advisory services to any Loan Party, in connection with the obtaining of any consents or approvals in connection with the transactions contemplated hereby (including, without limitation, under the Revolving Credit Agreement or the Crack Spread Hedging Agreement), other than, (i) with respect to the Loans, an amendment and waiver fee equal to 1.00% of the aggregate outstanding principal amount of the Loans paid pro rata to the Lenders, (ii) a fee in the amount of $3,000,000 [***] payable to Credit Suisse Securities (USA), LLC, in its capacity as financial advisor for the Company; and (iii) the reductions in borrowing capacity contemplated by the Permitted ABL Facility Amendment;
(g) the projections of the consolidated operating budgets of the Borrower and its subsidiaries delivered to the Agent and the Lenders on or about March 31, 2009 (i) disclose all material assumptions made with respect to general economic, financial and market conditions used in formulating such projections, (ii) are based upon reasonable estimates and assumptions, [***] Text omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission. and (iii) were prepared based on the assumptions stated therein and reflect the reasonable estimates by the Borrower of the results of operations and other information projected therein, it being recognized by the Agent and the Lenders that such projections and other information regarding future events are not to be viewed as facts and that actual results or developments during the period or periods covered may differ from the delivered projections and other prospective information; provided, however that, to the knowledge of the Borrower, no facts exist that (individually or in the aggregate) would result in any material change in any of such projections, except as set forth and described in Schedule 3(g) hereto;
(h) except as set forth and described in Schedule 3(h) hereto, no Loan Party has entered into any amendment or waiver or entered into any agreement having the effect of an amendment or waiver with respect to any provision of the Revolving Credit Agreement, the Crack Spread Hedging Agreement or any of the other agreements, documents and instruments entered into in connection therewith or pursuant thereto (all such agreements, documents and instruments, together with the Revolving Credit Agreement and the Crack Spread Hedging Agreement, collectively, the “Other Primary Loan Documents”); and
(i) a true, correct and complete description of all Hedging Agreements to which the Borrower is a party as of the date hereof (including the counterparty to each such Hedging Agreement, the type of Hedging Agreement, the material terms of such Hedging Agreement and the marked-to-market hedge position for such Hedging Agreement as of the date immediately preceding the date hereof) is set forth on Exhibit E hereto.
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