EXHIBIT 10.20.1
EXECUTION COPY
SECOND AMENDMENT dated as of June 16, 2005
(this "Amendment"), to the Amended Revolving Credit
Agreement, dated as of January 14, 2004 (as amended
by the First Amendment, dated as of February 10,
2005, the "Revolving Credit Agreement"), among Alon
USA, LP (the "Borrower"), the Guarantor Companies
party thereto, the Lenders party thereto and Israel
Discount Bank of New York, as Agent (the "Agent").
WHEREAS, the Parent has advised the Agent that the Parent
intends to consummate an IPO (as hereinafter defined);
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 Revolving Credit Agreement) agree to
amend the Revolving Credit Agreement to modify the definition of "Change of
Control", to terminate guarantees made by Investors in favor of the Lender, to
permit the Parent and the other Companies to invest the proceeds of the IPO in
any other Company and to permit repayment, redemption or other return of any
such investment; and
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 Revolving Credit Agreement as set
forth herein;
NOW, THEREFORE, in consideration of these premises and of the
mutual covenants, agreements and conditions hereinafter set forth, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to the Revolving Credit Agreement
effective as of the Second Amendment Effective Date.
(a) The definition of "Change of Control" in Section 1.01 of
the Revolving Credit Agreement is hereby amended as follows:
(i) Replacing "96%" with "51%" in subclause (i).
(ii) Replacing "96%" with "51%" in subclause (A) of
the first proviso.
(b) The definition of "Guaranties" in Section 1.01 of the
Revolving Credit Agreement is hereby amended by deleting subclause (ii) in its
entirety and replacing "(iii)" with "(ii)".
(c) The definition of "Guarantors" in Section 1.01 of the
Revolving Credit Agreement is hereby amended by deleting ", the Investors".
(d) Section 1.01 of the Revolving Credit Agreement is hereby
amended by inserting the following definitions in proper alphabetical order in
such Section:
"Common Stock" shall have the meaning assigned to
such term in the Registration Statement.
"IPO" means the proposed initial public offering of
Common Stock of the Parent under the Securities Act, completed
substantially as described in the Registration Statement,
which offering shall be completed as a primary offering by the
Parent.
"IPO Effective Date" means the date on which the IPO
is consummated in accordance with the terms set forth in (i)
the Second Amendment and (ii) the Registration Statement.
"IPO Investment" means any intercompany loans,
advances or investments (by intercompany loan, investment in
Capital Stock or otherwise) made by the Parent or any other
Company to any other Company with proceeds of the IPO.
"Prospectus" means the prospectus included within the
Registration Statement.
"Registration Statement" means the Parent's Form S-1
Registration Statement, as filed with the SEC on May 11, 2005,
as amended from time to time.
"SEC" means the United States Securities and Exchange
Commission and any successor thereto.
"Second Amendment" means the Second Amendment to this
Agreement, dated as of June 16, 2005, by and among the
Borrower, the Guarantor Companies, the Lenders and the Agent.
"Securities Act" means the Securities Act of 1933, as
in effect from time to time.
(e) The definition of "Permitted Payments" in Section 1.01 of
the Revolving Credit Agreement is hereby amended as follows:
(i) replacing "and (iv)" with "(iv)"; and
(ii) inserting the following immediately before the
period at the end of the definition: ", and (v) upon demand by
any Company, repayment, redemption, dividend or other return
of all or any portion of
2
any IPO Investment by any Company, to the Parent or any other
Company in connection with such IPO Investment, or, in the
case of a dividend, ratably to any of the Companies' holders
of Capital Stock; provided that both immediately before and
immediately after any such repayment, redemption or other
return, no Default or Event of Default shall have occurred and
be continuing."
(f) Section 6.01(f) of the Revolving Credit Agreement is
hereby amended by deleting it in its entirety and by substituting therefor the
following:
"(f) Subsidiaries. Schedule 6.01(f) hereto is a
complete and correct description of the name, jurisdiction of
incorporation and ownership of the outstanding Capital Stock
of the Companies (other than the Parent to the extent sold
upon the consummation of the IPO as contemplated by the
Prospectus) and each Subsidiary of the Companies in existence
on the date hereof. Except as provided in Schedule 6.01(f)
hereto and except for the shares of Capital Stock of the
Parent to be sold upon the consummation of the IPO as
contemplated by the Prospectus, all shares of such Capital
Stock owned by the Loan Parties or one or more Subsidiaries of
the Companies, as indicated in such Schedule, are owned free
and clear of all Liens other than Liens created by the Loan
Documents or the Term Loan Documents and Permitted Liens
described in clause (ii), (iii), (iv), (x) or (xi) of Section
7.02(a) hereof."
(g) Section 7.02(f) of the Revolving Credit Agreement is
hereby amended by (i) replacing "; and" with ";" at the end of paragraph (xv)
thereof; (ii) re-lettering paragraph (xvi) thereof as paragraph (xix); and (iii)
inserting the following new paragraphs(xvi), (xvii) and (xviii) at the end
thereof:
"(xvi) any IPO Investment; provided that both
immediately before and immediately after any such IPO
Investment by the Borrower or any of its Subsidiaries, no
Default or Event of Default shall have occurred and be
continuing;
(xvii) the repurchase by Alon USA Operating, Inc. of
its own Capital Stock from the Parent; provided that any such
repurchase is funded solely with the proceeds of the IPO;
(xviii) the repurchase by Alon Assets, Inc. of its
own Capital Stock from the Parent; provided that any such
repurchase is funded solely with the proceeds of the IPO; and"
(h) Section 7.02(w) of the Revolving Credit Agreement is
hereby amended by inserting the following immediately after the word "Except" in
the first line thereof: "in connection with the IPO and".
3
(i) Section 11.02 (a) of the Revolving Credit Agreement is
hereby amended by deleting "(and the obligations of the Investors under their
Guaranties)" in the ninth line, deleting "or the Investors" in both places in
the twelfth line,
(j) Schedule B of the Revolving Credit Agreement is hereby
amended by deleting all references to each Limited Guaranty and each Amended and
Restated Limited Guaranty mentioned therein.
(k) Schedule 6.01(f) is hereby amended by deleting the
existing Schedule 6.01(f) in its entirety and substituting therefor a new
Schedule 6.01(f), attached as Exhibit A hereto. All references to "Schedule
6.01(f)" in the Revolving Credit Agreement shall mean such schedule as set forth
in Exhibit A hereto.
(l) Alon Israel Oil Company Ltd., Africa Israel Investments
Ltd., Bielsol Investments (1987) Ltd. and Sha'ar ▇▇▇▇▇▇▇▇▇▇ Ltd. are hereby
irrevocably released from each of their respective Limited Guaranties and
Amended and Restated Limited Guaranties, each dated as of August 8, 2000, and
each as amended and restated on September 15, 2003 in favor of the Agent (the
"Investor Limited Guaranty") and each Investor Limited Guaranty is hereby
terminated and shall be of no further force or effect.
SECTION 2. Representations and Warranties.
Each Loan Party hereby represents and warrants to the Agent
and the Lenders that, as of the date hereof and as of the Second Amendment
Effective Date:
(a) (i) All representations and warranties of each Company set
forth in the Loan Documents (as amended hereby), any certificate or other
writing delivered to the Agent or the Lenders 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 true and correct as of such earlier date), and (ii) no Default or
Event of Default has occurred and is continuing on the Second Amendment
Effective Date or will result from the Second Amendment or the IPO becoming
effective in accordance with its terms.
(b) The execution, delivery and performance by each Company of
this Amendment and the transactions contemplated herein and the performance by
each such Company of the Revolving Credit Agreement, as amended hereby, (i) have
been duly authorized by all necessary action; (ii) do not and will not
contravene, in the case of a corporation, its charter or by-laws, in the case of
a limited liability company, its certificate of formation and limited liability
operating agreement, or any applicable equivalent document, and in the case of a
limited partnership, its certificate of limited partnership and limited
partnership agreement, or any applicable equivalent document, or any applicable
law or any indenture, other material agreement, instrument or other material
contractual restriction binding on or otherwise affecting it or any of its
properties; (iii) do not and will not result in or require the creation of any
Lien (other than pursuant to any Loan Document) upon or with respect to any
Company's or any Company's Subsidiaries' assets or properties; and (iv) do not
and will not result in any
4
suspension, revocation, impairment, forfeiture or nonrenewal of any permit,
license, authorization or approval applicable to its operations or any of its
properties except where such suspension, revocation, impairment, forfeiture or
nonrenewal is not reasonably likely to have a Material Adverse Effect.
(c) New Schedule 6.01(f), attached hereto as Exhibit A, is
true and correct in all respects on and as of the Second Amendment Effective
Date (other than with respect to the ownership of the outstanding Capital Stock
of the Parent to the extent sold upon the consummation of the IPO as
contemplated by the Prospectus).
(d) This Amendment, the Revolving Credit Agreement, as amended
hereby, and each other Loan Document to which any Company is a party is a legal,
valid and binding obligation of such Company, enforceable against such Company
in accordance with its terms, except as such enforceability may be limited by or
subject to any bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally.
SECTION 3. Conditions Precedent to Effectiveness.
(a) This Amendment shall become effective on the date on which
each of the following conditions is satisfied (the "Second Amendment Effective
Date"):
(i) the Agent shall have received counterparts
hereof, duly executed and delivered by the Borrower, the
Guarantor Companies, the Agent and the Required Lenders;
(ii) the Agent shall have received the Second
Amendment to the Term Loan Agreement, duly executed and
delivered by each party thereto and in form and substance
satisfactory to the Agent;
(iii) the Agent shall have received a certificate of
an authorized officer of the Parent and the Borrower, dated
the Second Amendment Effective Date, confirming the accuracy
of the representations and warranties set forth in Section 2;
(iv) the Agent shall have received all amounts due
hereunder or under the Credit Agreement and payable on or
prior to the Second 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 Company hereunder or
under any Loan Document;
(v) the Agent shall have received a true and complete
copy of the Prospectus; and
(vi) the IPO Effective Date shall have occurred.
5
SECTION 4. 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 or the Agent under, the Revolving
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 Revolving 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 Revolving 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 Revolving Credit
Agreement specifically referred to herein. This Amendment shall constitute a
"Loan Document" for all purposes of the Revolving Credit Agreement and the other
Loan Documents.
SECTION 5. Continued Effectiveness of Revolving Credit
Agreement.
Each Loan Party hereby (a) confirms and agrees that the
Revolving Credit Agreement and each other Loan Document to which it is a party
is, and shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects except that on and after the Second Amendment
Effective Date, all references in any such Loan Document to "the Revolving
Credit Agreement", the "Agreement", "hereto", "hereof", "hereunder", "thereto",
"thereof", "thereunder" or words of like import referring to the Revolving
Credit Agreement shall mean the Revolving Credit Agreement as amended by this
Amendment, and (b) confirms and agrees that to the extent that any such Loan
Document purports to assign or pledge to the Agent, for the ratable benefit of
the Lenders, or to grant to the Agent, for the ratable benefit of the Lenders a
security interest in or Lien on, any Collateral as security for the Obligations
of the Loan Parties, or any of their respective Subsidiaries from time to time
existing in respect of the Revolving Credit Agreement and the Loan Documents,
such pledge, assignment and/or grant of the security interest or Lien is hereby
ratified and confirmed in all respects. Except as expressly provided herein, the
execution, delivery and effectiveness of this Amendment and Waiver shall not
operate as an amendment or waiver of any right, power or remedy of the Agents or
the Lenders under the Financing Agreement or any other Loan Document, nor
constitute an amendment or waiver of any provision of the Financing Agreement or
any other Loan Document.
SECTION 6. Counterparts.
This Amendment may be executed in any 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.
6
SECTION 7. Applicable Law.
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Waiver of Jury Trial.
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT THEY
MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL
PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AMENDMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT (WHETHER BASED ON CONTRACT,
TORT, OR ANY OTHER THEORY).
SECTION 9. Headings.
The headings of this Amendment are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof.
7
IN WITNESS WHEREOF, the Borrower, the Guarantor Companies, 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.
Borrower:
ALON USA, LP
By: Alon USA GP, LLC, a Delaware limited
liability company, its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman of the Board of Managers
Guarantor Companies:
-------------------
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 of the Board of Directors
ALON USA GP, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman of the Board of Managers
SOUTHWEST CONVENIENCE STORES, LLC
ALON USA INTERESTS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board of Managers
ALON USA DELAWARE, LLC
ALON PIPELINE LOGISTICS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
Agent and Lender:
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: FVP
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: VP
Agent and Lender:
BANK LEUMI USA
By: /s/ ▇▇▇▇▇▇ Prezelmeyer
-----------------------------------------
Name: ▇▇▇▇▇▇ Prezelmeyer
Title: Assistant Treasurer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President