EXHIBIT 10.17
EXECUTION COPY
FIRST AMENDMENT dated as of February 10, 2005 (this
"Amendment"), to (i) the Amended and Restated Credit Agreement
dated as of January 14, 2004 (the "Credit Agreement"), among
Alon USA, Inc. (the "Borrower"), the Lenders party thereto and
Credit Suisse First Boston, acting through its Cayman Islands
Branch, as Administrative Agent and Collateral Agent (the
"Agent") and (ii) the Guarantee and Collateral Agreement dated
as of January 14, 2004 (the "Guarantee and Collateral
Agreement"), among the Borrower, the Agent and the
Subsidiaries party thereto.
WHEREAS, the Borrower has requested that the Required Lenders (such
term and each other capitalized term used but not otherwise defined herein
having the meaning assigned to it in the Credit Agreement or the Guarantee and
Collateral Agreement, in each case as amended hereby) agree to amend the Credit
Agreement as set forth herein to permit the Pipeline Transactions and to effect
certain other changes;
WHEREAS, the undersigned Lenders, constituting the Required Lenders,
are willing, on the terms and subject to the conditions set forth herein, to
approve such amendments to the Credit Agreement;
WHEREAS, the Collateral Agent has agreed to provide the releases set
forth in Section 8 hereof in consideration for the agreements set forth herein
including, without limitation, the agreement by Newco 2 to pledge all the Newco
2 Notes to the Collateral Agent;
WHEREAS, the Borrower will be required under Section 2.12 of the
Credit Agreement to prepay, with the Net Cash Proceeds of the Pipeline
Transactions, the Loans of Lenders not declining such prepayment in accordance
with Section 2.12(h);
WHEREAS, the Borrower will notify the Agent in accordance with
Section 2.12(f) of the Credit Agreement of the Borrower's obligation to effect
such prepayment three Business Days before the receipt of such Net Cash
Proceeds, and any Lender that elects to decline all or a portion of such
prepayment shall be required to notify the Agent in writing not later than the
close of business on the day that is two days before such prepayment in
accordance with Section 2.12(h) of the Credit Agreement; and
WHEREAS, each Lender party hereto is being requested to indicate its
election to accept or decline all or any portion of such prepayment by checking
the appropriate box on the signature page of such Lender.
NOW, THEREFORE, in consideration of these premises, the parties
hereto hereby agree as follows:
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SECTION 1. Amendments to the Credit Agreement effective as of the
First Amendment Effective Date. Section 1.01 of the Credit Agreement is hereby
amended by inserting the following definitions in their proper alphabetical
order in such Section:
"First Amendment Effective Date" has the meaning
assigned to such term in the First Amendment dated as of February
10, 2005.
"Newco 1" shall mean Alon Pipeline Assets, LLC, a Texas
limited liability company.
"Newco 2" shall mean Alon Pipeline Logistics, LLC, a
Delaware limited liability company.
SECTION 2. Amendments to the Credit Agreement effective as of the
Pipeline Transactions Effective Date. (a) Section 1.01 of the Credit Agreement
is hereby amended by inserting the following definitions in their proper
alphabetical order in such Section:
"Assumed Liabilities" shall have the meaning given to
such term in Section 1.3 of the Contribution Agreement.
"Contributed Assets" shall have the meaning given to
such term in Section 1.1 of the Contribution Agreement, but shall
exclude the "Excluded Assets", as defined in the Contribution
Agreement.
"Contribution Agreement" means the Contribution
Agreement dated as of January 25, 2005, among ▇▇▇▇▇, the
Transferors, Newco 1, Newco 2, Alon USA, LP and the Borrower, as in
effect on the First Amendment Effective Date.
"Cash Consideration" shall mean an amount in cash equal
to $120,000,000.
"Contract Rights" shall mean all rights and interests of
the Borrower and its Affiliates under the P&T Contracts.
"▇▇▇▇▇" shall mean ▇▇▇▇▇ Energy Partners, L.P., a
Delaware limited partnership.
"Indemnification Agreement" shall mean the
Indemnification Agreement to be entered into at the closing of the
Pipeline Transactions, between Newco 2 and HEP Logistics Holdings,
L.P., a Delaware limited partnership, in the form provided to the
Agent on the First Amendment Effective Date.
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"Mortgage and Deed of Trust" shall mean the Mortgage and
Deed of Trust (with Security Agreement) to be entered into at the
closing of the Pipeline Transactions, between Alon USA, LP, a Texas
limited partnership, and ▇▇▇▇▇, in the form provided to the Agent on
the First Amendment Effective Date.
"Newco 2 Notes" shall mean the promissory notes in an
aggregate principal amount of $112,000,000 issued by the Borrower or
one or more Subsidiaries to Newco 2 in exchange for delivery by
Newco 2 to the Borrower or such Subsidiaries of the Cash
Consideration.
"P&T Agreement" shall mean the Pipeline and Terminals
Agreement to be entered into at the closing of the Pipeline
Transactions, between Alon USA, LP, a Texas limited partnership, and
▇▇▇▇▇ in the form provided to the Agent on the First Amendment
Effective Date.
"P&T Contracts" shall mean the Contribution Agreement,
the P&T Agreement, the limited partnership agreement of ▇▇▇▇▇
(including the amendment thereto to be entered into in connection
with the Pipeline Transactions), the Mortgage and Deed of Trust, the
Indemnification Agreement, the Subordination Agreement and all other
agreements entered into in connection with the Pipeline
Transactions.
"Pipeline Transactions" shall mean (i) the contribution,
transfer, assignment or delivery by the Transferors, as a capital
contribution, of the Contributed Assets to Newco 1, (ii) the
assignment by the Transferors of the Assumed Liabilities to Newco 1
and the assumption of such Assumed Liabilities by Newco 1, (iii) the
transfer to Newco 2 of all of the Equity Interests held by the
Transferors in Newco 1, (iv) the transfer by Newco 2 to ▇▇▇▇▇ of its
Equity Interests in Newco 1 in consideration for the PT
Consideration, (v) the execution and delivery of the P&T Agreement
and (v) the other transactions provided for in the Contribution
Agreement and in the P&T Agreement.
"Pipeline Transactions Effective Date" has the meaning
assigned to such term in the First Amendment dated as of February 4,
2005.
"PT Consideration" shall mean (A) the payment by ▇▇▇▇▇
to Newco 2 or its designee of the Cash Consideration and (B) the
delivery by ▇▇▇▇▇ to Newco 2 of certificates representing the Unit
Consideration, which shall be issued in the name of Newco 2, the
Borrower or any other Subsidiary.
"Subordination Agreement" shall mean the Subordination,
Non-Disturbance and Attornment Agreement to be entered into at the
closing of the Pipeline Transactions, among the administrative agent
party
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thereto for the Credit Parties defined therein, the Agent and Alon
USA, LP, a Texas limited partnership, in the form provided to the
Agent on the First Amendment Effective Date.
"Transferors" shall mean each of T&R Assets, Inc., a
Texas corporation, Fin-Tex Pipeline Company, a Texas corporation,
and Alon USA Refining, Inc., a Delaware corporation.
"Unit Consideration" shall mean 937,500 Class B
Subordinated Units representing limited partner interests in ▇▇▇▇▇.
(b) The definition of "Asset Sale" in Section 1.01 of the Credit
Agreement is hereby amended by inserting "▇▇▇▇▇ or" immediately following
"Equity Interests of" in the third line thereof.
(c) The definition of "Debt Service Support Requirement" in Section
1.01 of the Credit Agreement is hereby replaced in its entirety with the
following:
"Debt Service Support Requirement" shall mean the requirement
(a) that the Borrower (i) provide a guarantee or letter of credit in form
and substance reasonably satisfactory to the Administrative Agent and
issued by a banking institution acceptable to the Administrative Agent
under which the Administrative Agent may obtain amounts required to pay
principal or interest due but unpaid on the Loans or (ii) establish a
segregated cash account with the Administrative Agent the amounts in which
are available for the payment of principal or interest due but unpaid on
the 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 $25,000,000".
(d) The definition of "Net Cash Proceeds" in Section 1.01 of the
Credit Agreement is hereby amended by:
(i) replacing " and (iv)" with ", (iv)" in the fifteenth line
thereof; and
(ii) inserting the following paragraph (v) immediately before
the semi-colon following paragraph (a)(iv) thereof:
"and (v) the amount of any proceeds of the Pipeline Transactions
paid by the Borrower as a dividend pursuant to paragraph (iv) of the
proviso to Section 6.06."
(e) Section 2.11 of the Credit Agreement is hereby amended by
replacing the table below paragraph (c) thereof in its entirety with the
following table:
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12 MONTH PERIOD COMMENCING ON: PREPAYMENT PREMIUM:
------------------------------ -------------------
Second Anniversary of Borrowing Date 3% of principal amount to be prepaid
Third Anniversary of Borrowing Date 1% of principal amount to be prepaid
Fourth Anniversary of Borrowing Date and thereafter No prepayment premium
(f) Section 2.20 of the Credit Agreement is hereby amended by
replacing paragraph (a) thereof in its entirety with the following:
" (a) In the event (i) any Lender delivers a certificate
requesting compensation pursuant to Section 2.13, (ii) any Lender delivers
a notice described in Section 2.14, (iii) the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority on
account of any Lender pursuant to Section 2.19, or (iv) on or before the
second anniversary of the Borrowing Date, any Lender does not
unconditionally consent to any amendment, waiver or other modification of
the Credit Agreement requested by the Borrower that (A) would have the
effect of increasing the amount of permitted Capital Expenditure under
Section 6.11 and (B) would not otherwise be consented to by the Required
Lenders, the Borrower may, at its sole expense and effort (including with
respect to the processing and recordation fee referred to in Section
9.04(b)), upon notice to such Lender and the Administrative Agent, (1)
require such Lender to transfer and assign, without recourse (in
accordance with and subject to the restrictions contained in Section
9.04), all of its interests, rights and obligations under this Agreement
to an assignee that shall assume such assigned obligations (which assignee
may be another Lender, if a Lender accepts such assignment) or (2) in the
case of paragraph (iv) only, prepay all the Loans of such Lender; provided
that (x) such assignment or prepayment shall not conflict with any law,
rule or regulation or order of any court or other Governmental Authority
having jurisdiction, (y) the Borrower shall have received the prior
written consent of the Administrative Agent to any such assignment, which
consent shall not unreasonably be withheld or delayed, and (z) the
Borrower or such assignee shall have paid to the affected Lender in
immediately available funds an amount equal to the sum of the principal of
and interest accrued to the date of such payment on the outstanding Loans
of such Lender plus (A) all Fees and other amounts accrued for the account
of such Lender hereunder (including any amounts under Section 2.13 and
Section 2.15) and (B) in the case of an assignment or prepayment pursuant
to paragraph (iv), the sum of interest from the date of such payment to
the second anniversary of the Borrowing Date on the outstanding Loans of
such Lender and the prepayment fee that would have been payable on the
second anniversary of the Borrowing Date pursuant to Section 2.11(c) if
the Loans of such Lenders subject to such assignment or prepayment had
been prepaid pursuant to Section 2.11; provided further that if, prior to
any such transfer and assignment in accordance with paragraph (i), (ii) or
(iii), the
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circumstances or event that resulted in such Lender's claim for
compensation under Section 2.13 or notice under Section 2.14 or the
amounts paid pursuant to Section 2.19, as the case may be, cease to cause
such Lender to suffer increased costs or reductions in amounts received or
receivable or reduction in return on capital, or cease to have the
consequences specified in Section 2.14, or cease to result in amounts
being payable under Section 2.19, as the case may be (including as a
result of any action taken by such Lender pursuant to paragraph (b)
below), or if such Lender shall waive its right to claim further
compensation under Section 2.13 in respect of such circumstances or event
or shall withdraw its notice under Section 2.14 or shall waive its right
to further payments under Section 2.19 in respect of such circumstances or
event, as the case may be, then such Lender shall not thereafter be
required to make any such transfer and assignment hereunder."
(g) Section 5.05 of the Credit Agreement is hereby amended by (i)
replacing "; and" with ";" at the end of paragraph (d) thereof, (ii) relettering
paragraph (e) thereof as paragraph (f) and (iii) inserting the following new
paragraph (e) thereof:
"(e) any written notice received by the Borrower or any
Subsidiary from ▇▇▇▇▇, or provided by the Borrower or any Subsidiary
to ▇▇▇▇▇, pursuant to the P&T Agreement or the Contribution
Agreement that (i) relates to a default or alleged default by any
party under either such Agreement or (ii) could reasonably be
expected to result in (A) the termination or suspension of the P&T
Agreement or (B) a Material Adverse Effect;"
(h) Section 6.01 of the Credit Agreement is hereby amended by:
(i) replacing "; and" with ";" at the end of paragraph (l) thereof;
(ii) relettering paragraph (m) thereof as paragraph (n) and (iii)
inserting the following new paragraph (m) thereof:
"(m) Indebtedness of Newco 2 incurred under the
Indemnification Agreement; provided that such Indebtedness shall
not, at any time, exceed $111,000,000;" and
(iii) inserting the following sentence immediately following
paragraph (n) thereof:
"Without limiting any of the foregoing or anything else
in this Agreement, the Borrower will not, and will not cause or
permit any of the Subsidiaries (i) to provide a Guarantee, letter of
credit, cash account, security interest or any other form of
liquidity or credit support for or in respect of the liabilities or
obligations, whether contingent or otherwise, of Newco 2 under the
Indemnification Agreement or (ii) other than in the case of Newco 2,
to be liable, whether contingently or otherwise, or have
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any other obligations (A) under the Indemnification Agreement or (B)
for or in respect of the liabilities or obligations, whether
contingent or otherwise, of Newco 2 under the Indemnification
Agreement; provided, however, that the Borrower or one or more
Subsidiaries may issue the Newco 2 Notes."
(i) Section 6.04(a) of the Credit Agreement is hereby replaced in
its entirety with the following:
"(a) (i) investments by the Borrower and the
Subsidiaries existing on the date hereof in the Equity Interests of
the Subsidiaries, (ii) additional investments by the Borrower and
the Subsidiaries in the Equity Interests of the Non-Retail
Subsidiaries or (iii) investments by the Borrower or any subsidiary
in the Unit Consideration pursuant to the Contribution Agreement;
provided that (x) any such Equity Interests held by a Loan Party
shall be pledged pursuant to the Guarantee and Collateral Agreement
and (y) the aggregate amount of investments by Loan Parties in, and
loans and advances by Loan Parties to, Non-Retail Subsidiaries that
are not Loan Parties shall not exceed $1,000,000 at any time
outstanding;"
(j) Section 6.04(e) of the Credit Agreement is hereby amended by
replacing the first parenthetical in clause (y) of the proviso in its entirety
with the following:
"(including any Indebtedness of the Acquired Entity that
is assumed by the Borrower or any Subsidiary following such
acquisition and the amount of any forgivable loan owed to any
Acquired Entity and excluding (i) any Net Cash Proceeds of the
Pipeline Transactions (other than any such Net Cash Proceeds applied
to prepay Loans) and (ii) any proceeds from an Asset Sale which are
reinvested in such acquisition in compliance with the provisions set
forth in the definition of "Net Cash Proceeds" herein)".
(k) Section 6.05(b) of the Credit Agreement is hereby replaced in
its entirety with the following:
"(b) Engage in any Asset Sale permitted under paragraph
(a) above unless (i) such Asset Sale is an Asset Swap, (ii) (A) such
Asset Sale is for consideration at least 75% of which is cash, (B)
such consideration is at least equal to the fair market value of the
assets being sold, transferred, leased or disposed of or the Equity
Interests being issued and (C) the aggregate amount or fair market
value of all consideration received in Asset Sales pursuant to this
clause (ii) (excluding the sale by the Borrower or any of its
Subsidiaries of any of their Equity Interests in ▇▇▇▇▇) shall not
exceed $20,000,000 in any fiscal year or $30,000,000 in the
aggregate during the term of this Agreement or
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(iii) such Asset Sale consists of (A) the contribution, transfer,
assignment or delivery by the Transferors to Newco 1 of the
Contributed Assets or (B) the transfer by Newco 2 to ▇▇▇▇▇ of its
Equity Interests in Newco 1 in consideration for the PT
Consideration, in each case pursuant to and as provided in the
Contribution Agreement."
(l) Section 6.06 of the Credit Agreement is hereby amended by
replacing " and (iii)" with ", (iii)" in the fifteenth line thereof and by
inserting the following immediately after clause (b)(iii) of the proviso to
Section 6.06:
"and (iv) within 30 days following the receipt by Newco 2 or any
other Subsidiary of the PT Consideration, the Borrower and its
Subsidiaries may declare and pay dividends ratably to their
respective equity holders in an aggregate amount not greater than
$26,500,000."
(m) Section 6.09 of the Credit Agreement is hereby amended and
replaced in its entirety with the following:
"SECTION 6.09. Business of Borrower and Subsidiaries.
(a) Engage at any time in any business or business activity other
than the business currently conducted by it and business activities
reasonably incidental or related thereto.
(b) In the case of Newco 2 only, engage in any business
or activity other than the ownership of the Newco 2 Notes and Equity
Interests in ▇▇▇▇▇ or Newco 1, the entry into the Indemnification
Agreement and the Contribution Agreement and activities incidental
thereto. Newco 2 will not own or acquire any assets (other than the
Newco 2 Notes and Equity Interests in ▇▇▇▇▇ or Newco 1) or incur any
liabilities (other than liabilities under the Loan Documents, the
Contribution Agreement or the Indemnification Agreement and
liabilities imposed by law, including tax liabilities and other
liabilities (not including Indebtedness) incidental to its existence
and permitted business and activities; provided that Newco 2 shall
be entitled to receive the Cash Consideration in accordance with the
Contribution Agreement; provided, further, that immediately upon the
receipt thereof (i) Newco 2 shall distribute, dividend or transfer
all such Cash Consideration to the Borrower or any Subsidiary
thereof (other than Newco 2), (ii) the Borrower and each such
Subsidiary, as applicable, shall issue to Newco 2 the Newco 2 Notes
and (iii) Newco 2 shall pledge all Newco 2 Notes to the Collateral
Agent for the ratable benefit of the Secured Parties in accordance
with the Guarantee and Collateral Agreement."
(n) Section 6.11 of the Credit Agreement is hereby replaced in its
entirety with the following:
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"SECTION 6.11. Capital Expenditures. Permit the
aggregate amount of Capital Expenditures (other than expenditures
designated by the Borrower to be Permitted Acquisitions in
accordance with Sections 6.04(e) and 6.05(a)) made by the Borrower
and the Subsidiaries in any period set forth below to exceed the sum
of the amount set forth below for such period:
Period Amount
------ -----------
2004 $25,000,000
2005 $70,000,000
2006 $25,000,000
2007 $20,000,000
2008 $20,000,000
The amount of permitted Capital Expenditures set forth
above in respect of any fiscal year after the fiscal year ending on
December 31, 2004, shall be increased by the unused amount of
permitted Capital Expenditures set forth in the table above for the
immediately preceding fiscal year (and in determining any such
unused amount, Capital Expenditures during any fiscal year will be
applied first against any amounts carried forward from the prior
year). The amount of permitted Capital Expenditures set forth above
in respect of the fiscal year ending on December 31, 2004, shall be
increased, at the option of the Borrower, by an amount not to exceed
$15,000,000, solely in connection with Capital Expenditures related
to the refinery turnaround currently planned for 2005 and the
expansion of the crude unit to 65,000 barrels per day. In the event
that permitted Capital Expenditures in 2004 are increased as
provided in the preceding sentence, the amount of permitted Capital
Expenditures for the fiscal year ending on December 31, 2005 shall
be correspondingly reduced."
(o) Paragraph (f) of Article VII of the Credit Agreement is hereby
amended by deleting the word "or" immediately before clause (ii) thereof and
inserting immediately before the semicolon at the end of such paragraph the
following:
", or (iii) the Borrower or any Subsidiary shall default
in the performance of any obligation under the P&T Agreement, the
Contribution Agreement or any related agreement (and such default is
not waived or continues after any applicable cure period therefor)
and such default could reasonably be expected, in the judgment of
the Agent or the Required Lenders, to result in the termination of,
or the loss or suspension of any rights of the Borrower or any
Subsidiary under, the P&T Agreement or in a Material Adverse
Effect".
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(p) Article VII of the Credit Agreement is hereby amended by (i)
replacing "; or" with ";" at the end of paragraph (m) thereof, (ii) relettering
paragraph (n) thereof as paragraph (o) and (iii) inserting the following new
paragraph (n) thereof:
"(n) ▇▇▇▇▇ or HEP Logistics Holdings, L.P. shall assert any
claim against the Borrower, Newco 2, or any other Subsidiary under or in
connection with the Indemnification Agreement in an aggregate amount
exceeding $2,500,000; or"
SECTION 3. Amendments to the Guarantee and Collateral Agreement
effective as of the Pipeline Transactions Effective Date. (a) Section 3.01 of
the Guarantee and Collateral Agreement is hereby amended by replacing paragraph
(a) thereof with the following:
"(a) the Equity Interests owned by it and listed on
Schedule II and any other Equity Interests (other than Excluded
Equity Interests) now or at any time hereafter owned by such Pledgor
(including all Equity Interests owned at any time by such Pledgor in
▇▇▇▇▇ Energy Partners, L.P.), and the certificates representing all
such Equity Interests (the "Pledged Equity Interests")"
(b) The parenthetical immediately following "contract rights" in the
definition of "General Intangibles" in Section 1.01 of the Guarantee and
Collateral Agreement is hereby amended to read as follows:
"(including rights under leases, whether entered into as lessor or
lessee (including the Fixed Asset Lease), Hedging Agreements, the
P&T Contracts and other Agreements)"
SECTION 4. Representations and Warranties. Each Loan Party hereby
represents and warrants to the Agent and the Lenders that, as of the date
hereof:
(a) No Default or Event of Default has occurred and is continuing.
(b) All representations and warranties of each Loan Party set forth
in the Loan Documents (as amended hereby) are true and correct in all
material respects except to the extent that any representation or warranty
expressly relates to an earlier date (in which case such representation or
warranty is correct as of such earlier date), except that the
representations and warranties set forth in Section 3.07(d) of the Credit
Agreement are hereby qualified by the P&T Contracts and the Pipeline
Transactions;
(c) The execution and delivery of this Amendment and the
effectiveness of the provisions hereof will not violate or result in a
default under any indenture or other material agreement or instrument
binding upon the Borrower or any of its Subsidiaries or on their assets,
or give rise to a right thereunder to require any payment to be made by
the Borrower or any of its Subsidiaries, and will not result
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in the creation or imposition thereunder of any Lien on any asset of the
Borrower or any of the other Subsidiaries.
(d) The Borrower has furnished to the Lenders true and complete
copies of the P&T Contracts as in effect on the date hereof.
SECTION 5. Agreements of the Borrower. (a) The terms of the Pipeline
Transactions will be consistent in all respects material to the Borrower and the
other Loan Parties and to the Lenders with those set forth in the P&T Contracts
in the forms delivered to the Agent and the Lenders prior to the date hereof.
(b) The Borrower will, and will cause each Subsidiary Loan Party to,
execute any and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements, fixture filings, mortgages, deeds of trust
and other documents), that may be required under any applicable law, or that the
Agent or the Required Lenders may reasonably request, to create and perfect the
Liens created by the Guarantee and Collateral Agreement, as amended hereby, in
the Unit Consideration and the Contract Rights and otherwise to ensure that the
Guarantee and Collateral Requirement shall at all times be satisfied.
(c) At the time the Net Cash Proceeds of the Pipeline Transactions
are received, the Borrower will prepay the Loans of the Lenders that have not
declined such prepayment in accordance with Section 2.12 of the Credit
Agreement.
(d) The Borrower agrees that it shall not modify, vary, amend or
waive any provision of any P&T Contract (including any future Subordination
Agreement referred to in the Mortgage and Deed of Trust) without the prior
written consent of the Agent if such modification, variance, amendment or waiver
would materially increase the obligations of the Borrower, Alon USA, LP or any
other Subsidiary or confer additional material rights to ▇▇▇▇▇ or HEP Logistics
Holdings, L.P. in a manner adverse to the Borrower, Alon USA, LP, any other
Subsidiary or the Lenders without the prior written consent of the
Administrative Agent.
SECTION 6. Conditions Precedent to Effectiveness. (a) This Amendment
shall become effective (except as to Sections 2, 3, 5 and 7 hereof) on the date
on which each of the following conditions is satisfied (the "First Amendment
Effective Date"):
(i) The Agent shall have received counterparts hereof duly executed
and delivered by the Borrower, the Agent and the Required Lenders.
(ii) The Agent shall have received all amounts due hereunder or
under the Credit Agreement and payable on or prior to the First Amendment
Effective Date, including reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel) required
to be reimbursed or paid by any Loan Party hereunder or under any Loan
Document.
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(iii) The Agent shall have received a certificate, dated the First
Amendment Effective Date and signed by the President, a Vice President or
a Financial Officer of the Borrower, confirming the accuracy of the
representations and warranties set forth in Section 4.
(iv) The Agent shall have received a copy of the Supplement to the
Guarantee and Collateral Agreement in the form set forth in Exhibit I
thereto, executed by Newco 2.
(b) Sections 2, 3, 5 and 7 of this Amendment shall become effective
on the date on which each of the following conditions is satisfied (the
"Pipeline Transactions Effective Date"):
(i) The Agent shall have received all amounts due hereunder or under
the Credit Agreement and payable on or prior to the Pipeline Transactions
Effective Date, including reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel) required
to be reimbursed or paid by any Loan Party hereunder or under any Loan
Document.
(ii) The Refinancing Facilities Agreement, the Loan Documents (as
defined therein) and any other documents or agreements evidencing
Indebtedness of the Borrower or any of its Subsidiaries shall have been
amended and/or waived in a manner consistent with the amendments effected
hereby and satisfactory in all respects to the Agent, and the Agent shall
have received copies of the executed amendments and waivers certified by a
Responsible Officer of the Borrower as true and correct copies thereof.
(iii) The Agent shall have received a copy of a First Amendment to
the Lien Subordination and Intercreditor Agreement in the form of Exhibit
A hereto, executed by the Collateral Agent and by the collateral agent and
each lender under the Refinancing Facilities Agreement (or by an
administrative agent or similar representative of such lenders pursuant to
an express authorization contained in the Refinancing Facilities Agreement
or an amendment thereto).
(iv) The Agent shall have received a copy of a Consent and Agreement
in the form of Exhibit B hereto, executed by the Agent and by ▇▇▇▇▇.
(v) The Agent shall have received a copy of the Subordination
Agreement in the form of Exhibit C hereto, executed by Alon USA, LP and
the administrative agent party thereto for the Credit Parties defined
therein.
(vi) The Agent shall have received, on behalf of itself and the
Lenders, a favorable written opinion of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, L.L.P.,
counsel for the Borrower, dated the Pipeline Transactions Effective Date,
(A) addressed to the Administrative Agent and the Lenders and (B) covering
such matters relating to this Amendment, the Loan Documents and the
Pipeline Transactions as the Agent shall reasonably request, and the
Borrower hereby requests such counsel to deliver such opinion.
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(vii) The Agent shall have received a certificate, dated the
Pipeline Transactions Effective Date and signed by the President, a Vice
President or a Financial Officer of the Borrower, confirming the accuracy
of the representations and warranties set forth in Section 4 and to the
effect that the Pipeline Transactions and the application of the proceeds
thereof will comply with the terms of the Credit Agreement as amended
hereby.
(viii) The Agent shall have received evidence satisfactory to the
Agent that (i) all the conditions precedent to the effectiveness of the
P&T Contracts and to the obligations of the parties thereto shall have
been satisfied and (ii) all PT Consideration shall have been (or
substantially contemporaneously with the Pipeline Transactions Effective
Date shall be) paid in full.
The Required Lenders hereby authorize the Agent to enter into the
agreements set forth in subparagraphs (b)(iii),(iv) and (v) of this Section 6.
SECTION 7. Release. At the time the Pipeline Transactions shall have
been consummated and the Agent shall have received a pledge of the Newco 2 Notes
in accordance with the Guarantee and Collateral Agreement, the Agent is hereby
authorized and instructed by the undersigned Lenders to take all such actions as
shall be required under Section 9.17 of the Credit Agreement to release the
Contributed Assets and the Equity Interests in Newco 1 (but not the direct or
indirect Proceeds of any of the foregoing) from the Liens of the Security
Documents.
SECTION 8. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Collateral Agent or the Administrative Agent under, the Credit
Agreement or any other Loan Document, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. Nothing herein shall be deemed to entitle the Borrower or any other
Loan Party to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained
in the Credit Agreement or any other Loan Document in similar or different
circumstances. This Amendment shall apply and be effective only with respect to
the provisions of the Credit Agreement specifically referred to herein. This
Amendment shall constitute a "Loan Document" for all purposes of the Credit
Agreement and the other Loan Documents.
SECTION 9. Consent of Grantors. The Borrower and each Guarantor
hereby acknowledges receipt of and consents to the terms of this Amendment and
confirms that the Guarantees, pledges and other security interests provided
pursuant to the Guarantee and Collateral Agreement remain in full force and
effect notwithstanding the execution and delivery of this Amendment.
SECTION 10. Counterparts. This Amendment may be executed in any
14
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 11. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 12. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
15
IN WITNESS WHEREOF, the Borrower, the Guarantors, the Agent and the
undersigned Lenders have caused this Amendment to be duly executed by their duly
authorized officers, all as of the date first above written.
ALON ASSETS, INC.
ALON USA OPERATING, INC.
ALON USA REFINING, INC.
ALON USA PIPELINE, INC.
ALON PETROLEUM PIPE LINE COMPANY
FIN-TEX PIPE LINE COMPANY
T & R ASSETS, INC.
ALON USA ASPHALT, INC.
ALON ASPHALT BAKERSFIELD, INC
ALON USA, INC.
ALON USA ENERGY, INC.
ALON USA CAPITAL, INC.,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman
ALON USA, LP,
By: Alon USA GP, LLC, a Delaware limited
liability company, its general partner,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman
ALON USA GP, LLC,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman
16
SOUTHWEST CONVENIENCE STORES, LLC
ALON USA INTERESTS, LLC
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
ALON USA DELAWARE, LLC
ALON PIPELINE LOGISTICS, LLC
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman
17
CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch, individually
and as Administrative Agent and Collateral
Agent,
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
by: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
18
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
A3 FUNDING LP, BY: A3 Fund Management LLC
------------------------------------------
Its: General Partner
by: /s/ (ILLEGIBLE)
-------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. (ILLEGIBLE)
Title: Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
19
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
ABLECO FINANCE LLC
------------------------------------------
by: /s/ ▇▇▇▇▇ (ILLEGIBLE)
-------------------------
Name: ▇▇▇▇▇ (ILLEGIBLE)
Title: Senior Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
20
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
Aviary Associates LP
------------------------------------------
By: Aviary Capital Enterprises Inc.,
General Partner
by: /s/ ▇▇▇▇▇▇ (ILLEGIBLE)
-------------------------
Name: ▇▇▇▇▇▇ (ILLEGIBLE)
Title: Exec. Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
21
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
BLACK DIAMOND INTERNATIONAL FUNDING, LTD.
------------------------------------------
by: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
22
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
Centurion CDO II, Ltd.
------------------------------------------
By: American Express Asset Management
Group, Inc. as Collateral Manager
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director - Operations
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
23
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
Centurion CDO VI, Ltd.
------------------------------------------
By: American Express Asset Management
Group, Inc. as Collateral Manager
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director - Operations
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
24
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
Citigroup Investments Corporate Loan Fund
Inc.
------------------------------------------
By: Travelers Asset Management
International Company LLC
by: /s/ ▇▇▇▇▇ ▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
25
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
Columbus Loan Funding Ltd.
------------------------------------------
By: Travelers Asset Management
International Company LLC
by: /s/ ▇▇▇▇▇ ▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
26
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
Diamond Springs Trading LLC
------------------------------------------
by: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
27
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
ECL Funding LLC, for itself or as agent
for ECL2 Funding LLC
------------------------------------------
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: As Atoney-In-Fact
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
28
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
FIRST TRUST/FOUR CORNERS SENIOR FLOATING
RATE INCOME FUND
------------------------------------------
By: Four Corners Capital Managment, LC
As Sub-Advisor
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
29
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
FIRST TRUST/FOUR CORNERS SENIOR FLOATING
RATE INCOME FUND II
------------------------------------------
By: Four Corners Capital Managment, LLC
As Sub-Advisor
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
30
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
HIGHLAND FLOATING RATE ADVANTAGE FUND
------------------------------------------
By: Highland Capital Management, L.P.
Its Investment Advisor
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
Highland Capital Management, L.P.
by:
---------------------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
31
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
HIGHLAND LEGACY LIMITED
------------------------------------------
By: Highland Capital Management, L.P.
as Collateral Manager
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
Highland Capital Management, L.P.
by:
---------------------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
32
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
HIGHLAND FLOATING RATE LIMITED LIABILITY
COMPANY
------------------------------------------
By: Highland Captial Management, L.P.
Its Investment Advisor
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
by:
---------------------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
33
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
KZH CYPRESSTREE - 1 LLC
------------------------------------------
by: /s/ HI HUA
-------------------------
Name: Hi Hua
Title: Authorized Agent
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
34
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
KZH STERLING LLC
------------------------------------------
by: /s/ HI HUA
-------------------------
Name: Hi Hua
Title: Authorized Agent
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
35
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
▇▇▇▇▇▇▇▇▇▇▇ Senior Floating Rate Fund
------------------------------------------
by: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
36
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
ORIX FUNDING LLC
------------------------------------------
by: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
37
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
PAMCO CAYMAN, LTD.
------------------------------------------
By: Highland Capital Management, L.P.
as Collateral Manager
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
Highland Capital Management, L.P.
by:
---------------------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
38
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
SECURITY INCOME FUND-INCOME OPPORTUNITY
SERIES
------------------------------------------
By: Four Corners Captial Management, LLC
As Sub-Advisor
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
39
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
Sequils-Centurion V, Ltd.
------------------------------------------
By: American Express Asset Management
Group, Inc. as Collateral Manager
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director - Operations
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
40
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
SOL Loan Funding LLC for itself or as
agent for SOL2 Loan Funding LLC
------------------------------------------
by: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: As Attorney-In-Fact
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
41
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
TRS IO LLC
------------------------------------------
by: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment:
42
Signature Page to First Amendment dated as
of February 10, 2005, to the Alon USA,
Inc. Amended and Restated Credit Agreement
To approve the Amendment:
Name of Lender:
ULT CBNA Loan Funding LLC for itself or as
agent for ULT CFPI Loan Funding LLC
------------------------------------------
by: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: As Attorney-In-Fact
by:
-------------------------
Name:
Title:
In accordance with Section 2.12(h) of the
Credit Agreement, with respect to the
prepayment referred to in the preamble
hereto:
[X] We elect to DECLINE ALL of such
prepayment.
[ ] We elect to ACCEPT ALL of such
prepayment.
[ ] We elect to DECLINE THE FOLLOWING
PORTION of such prepayment: