exv10w1






EXECUTION COPY




Exhibit 10.1




$216,500,000




Alon Refining Krotz Springs, Inc.




131/3% Senior Secured Notes due 2014




PURCHASE AGREEMENT




October 13, 2009




JEFFERIES & COMPANY, INC.

520 Madison Avenue

New York, New York 10022



Ladies and Gentlemen:




     Alon Refining Krotz Springs, Inc., a Delaware corporation (the “Company”), hereby
agrees with you as follows:



              1. Issuance of Notes. Subject to the terms and conditions herein contained, the
Company proposes to issue and sell to Jefferies & Company, Inc., as the initial purchaser (the
“Initial Purchaser”), $216,500,000 aggregate
principal amount of its 131/3% Senior Secured
Notes due 2014 (each a “Note” and, collectively, the “Notes”). The Notes will be
issued pursuant to an indenture (the “Indenture”), to be dated as of October 22, 2009, by
and between the Company and Wilmington Trust FSB, as trustee (the “Trustee”). Capitalized
terms used, but not defined herein, shall have the meanings set forth in the “Description of the
Notes” section of the Final Offering Memorandum (as hereinafter defined).




     The Notes will be offered and sold to the Initial Purchaser pursuant to an exemption from the
registration requirements under the Securities Act of 1933, as amended (the “Act”). Upon
original issuance thereof, and until such time as the same is no longer required under the
applicable requirements of the Act, the Notes shall bear the legends set forth in the final
offering memorandum, dated the date hereof (the “Final Offering Memorandum”). The Company
has prepared a preliminary offering memorandum, dated September 29, 2009 (the “Preliminary
Offering Memorandum”), (ii) a pricing term sheet attached hereto as Schedule I, which
includes pricing terms and other information with respect to the Notes (the “Pricing
Supplement”) and (iii) the Final Offering Memorandum relating to the offer and sale of the
Notes (the “Offering”). “Offering Memorandum” means, as of any date or time
referred to in this Agreement, the most recent offering memorandum (whether the Time of Sale
Document (as hereinafter defined) or the Final Offering Memorandum, and any amendment or supplement
to either such document), including exhibits and schedules thereto and all documents incorporated
by reference therein. The Preliminary Offering Memorandum and the Pricing Supplement are
collectively referred to herein as the “Time of Sale Document.”



              2. Terms of Offering. The Initial Purchaser has advised the Company, and the Company
understands, that the Initial Purchaser will make offers to sell (the “Exempt Resales”)
some or all of the Notes purchased by the Initial Purchaser hereunder on the terms set forth in the
Final Offering Memorandum, as amended or supplemented, to persons (the “Subsequent
Purchasers”) whom the Initial Purchaser (i) reasonably believes to be “qualified institutional
buyers” (“QIBs”) as defined in Rule 144A



 









 




under the Act, as such may be amended from time to time, (ii) reasonably believes (based upon written representations made by such persons to the
Initial Purchaser) to be institutional “accredited investors” as defined in Rule 501(a)(1), (2),
(3) or (7) under the Act (“Accredited Investors”) or (iii) reasonably believes not to be
“U.S. persons” (as defined under Rule 902(e) of the Act) in reliance upon and in accordance with
Regulation S under the Act.




     The Company has requested that the Initial Purchaser make Exempt Resales to certain
institutional investors listed in the First Addendum to the Israeli Securities Law 5728-1968 (the
“Company Identified Investors”). With respect to any sales to such investors the Company
and the Initial Purchaser agree that: (a) such sales will be made to Poalim IBI Underwriting &
Issuing Ltd., IBI Investments House Ltd., or one of their affiliates acceptable to the Initial
Purchaser (collectively, “IBI”), who will purchase Notes on behalf of the Company
Identified Investors and (b) the Initial Purchaser shall have received representations from IBI and
each of the Company Identified Investors in form and substance satisfactory to it.



     Pursuant to the Indenture, all future domestic Restricted Subsidiaries of the Company, if any,
jointly and severally, will fully and unconditionally guarantee, on a senior secured basis, to each
holder of the Notes and the Trustee, the payment and performance of the Company’s obligations under
the Indenture and the Notes, subject to limitations intended to prevent such guarantees from
constituting fraudulent conveyances under applicable law (each such subsidiary being referred to
herein as a “Guarantor” and each such guarantee being referred to herein as a
“Guarantee”).  



     Pursuant to the terms of the Collateral Documents, all of the obligations under the Notes and
the Indenture will be secured by a first priority lien on and security interest in all of the
assets of the Company constituting Notes Priority Collateral (other than the Crack Spread Hedging
Collateral) and a second priority lien on and security interest in all of the assets of the Company
constituting RCF Priority Collateral and Crack Spread Hedging Collateral, in each case subject to
Permitted Prior Liens.



     Holders of the Notes (including Subsequent Purchasers) will have the registration rights set
forth in the registration rights agreement applicable to the Notes (the “Registration Rights
Agreement”), to be dated as of the Closing Date. Pursuant to the Registration Rights Agreement,
the Company will agree, among other things, to file with the Securities and Exchange Commission
(the “SEC”) (a) a registration statement under the Act relating to senior secured notes
(the “Exchange Notes”) which shall be substantially identical in all material respects to
the Notes (except that the Exchange Notes shall have been registered pursuant to such registration
statement and will not be subject to restrictions on transfer or contain additional interest
provisions) to be offered in exchange for the Notes (such offer to exchange being referred to as
the “Exchange Offer”), and (b) under certain circumstances, a shelf registration statement
pursuant to Rule 415 under the Act (the “Shelf Registration Statement”) relating to the
resale by certain holders of the Notes. If required under the Registration Rights Agreement, the
Company will issue Exchange Notes to the Initial Purchaser (the “Private Exchange Notes”).
If the Company fails to satisfy its obligations under the Registration Rights Agreement, it will be
required to pay additional interest to the holders of the Notes under certain circumstances.



     This Agreement, the Indenture, the Collateral Documents, the Registration Rights Agreement,
the Notes, the Exchange Notes and the Private Exchange Notes are collectively referred to herein as
the “Documents.”



              3. Purchase, Sale and Delivery. On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and conditions herein set forth,
the Company agrees to issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase from the Company, at the price set forth in Schedule A hereto, the aggregate
principal amount of Notes set forth in Schedule A. Delivery to the Initial Purchaser of and
payment for the Notes shall be made at a






 









 







Closing (the “Closing”) to be held at 10:00 a.m., New York City time, on October 22, 2009 (the “Closing Date”) at the New York offices of
White & Case LLP.




     The Company shall deliver to the Initial Purchaser one or more certificates representing the
Notes in definitive form, registered in such names and denominations as the Initial Purchaser may
request, against payment by the Initial Purchaser of the purchase price therefor by immediately
available Federal funds bank wire transfer to such bank account or accounts as the Company shall
designate to the Initial Purchaser at least two business days prior to the Closing. The
certificates representing the Notes in definitive form shall be made available to the Initial
Purchaser for inspection at the New York offices of White & Case LLP (or such other place as shall
be reasonably acceptable to the Initial Purchaser) not later than 10:00 a.m., New York City time,
one business day immediately preceding the Closing Date. Notes to be represented by one or more
definitive global securities in book-entry form will be deposited on the Closing Date, by or on
behalf of the Company, with The Depository Trust Company (“DTC”) or its designated
custodian, and registered in the name of Cede & Co.



              4. Representations and Warranties of the Company The Company represents and warrants
to the Initial Purchaser that:





	(a)	 	(i) Neither the Time of Sale Document, nor any amendment or supplement thereto, as of the
Applicable Time (as hereinafter defined) contained any untrue statement of a material fact, or
omitted to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (ii) the Final Offering
Memorandum, as of the date hereof and at the Closing Date, as then amended or supplemented,
does not and will not, contain any untrue statement of a material fact, or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and warranties set
forth in this Section 4(a) do not apply to statements or omissions made in reliance
upon and in conformity with information relating to the Initial Purchaser and furnished to the
Company in writing by the Initial Purchaser expressly for use in the Time of Sale Document or
the Final Offering Memorandum or any amendment or supplement thereto. No injunction or order
has been issued that either (x) asserts that any of the transactions contemplated by the
Documents is subject to the registration requirements of the Act or (y) would prevent or
suspend the issuance or sale of any of the Notes or the use of the Time of Sale Document, the
Final Offering Memorandum or any amendment or supplement thereto, in any jurisdiction. No
statement of material fact included in the Final Offering Memorandum has been omitted from the
Time of Sale Document and no statement of material fact included in the Time of Sale Document
that is required to be included in the Final Offering Memorandum has been omitted therefrom.
Each of the Time of Sale Document and the Final Offering Memorandum, as of their respective
dates, contained, and the Final Offering Memorandum, as amended or supplemented, as of the
Closing Date will contain, all the information specified in, and meet the requirements of Rule
144A(d)(4) under the Act.






     “Applicable Time” means 2:45 p.m. (New York City time) on October 13, 2009, or
such other time as agreed by the Company and the Initial Purchaser.




	(b)	 	The Company does not own more than fifty percent (50%) of any class of equity securities or
interests of any corporation, partnership or other entity.
	 
	(c)	 	The Company (i) has been duly organized or formed, as the case may be, is validly existing
and is in good standing under the laws of its jurisdiction of organization, (ii) has all
requisite corporate power and authority to carry on its business as now conducted and as
described in the Offering Memorandum and to own, lease and operate its properties and assets,
and (iii) is duly qualified or licensed to do business and is in good standing as a foreign
corporation authorized to do business




 









 






	 	 	in each jurisdiction in which the nature of such businesses or the ownership or leasing of such properties requires such qualification, except
where the failure to be so qualified would not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on (A) the properties, business, operations,
earnings, assets, liabilities or condition (financial or otherwise) of the Company, (B) the
ability of the Company to perform its obligations in all material respects under any Document,
(C) the enforceability of any Collateral Document or the attachment, perfection or priority of
any of the Liens or security interests intended to be created thereby, or (D) the validity or
enforceability of any of the Documents, and (E) the consummation of any of the transactions
contemplated under any of the Documents (each, a “Material Adverse Effect”).






	(d)	 	All of the issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable, and were not issued in
violation of, and are not subject to, any preemptive or similar rights. The table under the
caption “Capitalization” in the Time of Sale Document and the Final Offering Memorandum
(including the footnotes thereto) sets forth, as of its date, the capitalization of the
Company.
	 
	(e)	 	No holder of securities, other than the Notes and any Additional Notes (as defined in the
Indenture) issued pursuant to the Indenture, of the Company will be entitled to have such
securities registered under the registration statements required to be filed by the Company
with respect to the Notes pursuant to the Registration Rights Agreement.
	 
	(f)	 	The Company has all the requisite corporate power and authority to execute, deliver and
perform its obligations under the Documents to which it is a party and to consummate the
transactions contemplated thereby.
	 
	(g)	 	This Agreement has been duly and validly authorized, executed and delivered by the Company.
Each of the Indenture and the Collateral Documents has been duly and validly authorized by the
Company. Each of the Indenture and the Collateral Documents, when executed and delivered by
the Company, will constitute a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to creditors’ rights
generally and (ii) general principles of equity (whether applied by a court of law or equity)
and the discretion of the court before which any proceeding therefor may be brought.
	 
	(h)	 	The Registration Rights Agreement has been duly and validly authorized by the Company. The
Registration Rights Agreement, when executed and delivered by the Company, will constitute a
legal, valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as rights to indemnification and contribution therein may be
limited to applicable law, general equitable principles and public policy considerations and
except that the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors’ rights generally and (ii) general principles of
equity (whether applied by a court of law or equity) and the discretion of the court before
which any proceeding therefor may be brought.
	 
	(i)	 	The Notes, when issued, will be in the form contemplated by the Indenture. When executed and
delivered by the Company, the Indenture will meet the requirements for qualification under the
Trust Indenture Act of 1939, as amended (the “TIA”). The Notes, Exchange Notes and
Private Exchange Notes have each been duly and validly authorized by the Company and, in the
case of the Notes, when delivered to and paid for by the Initial Purchaser in accordance with
the terms of




 









 






	 	 	this Agreement and the Indenture, will have been duly executed, issued and delivered and will be legal, valid and binding obligations of the Company, entitled to the
benefit of the Indenture, the Collateral Documents and the Registration Rights Agreement, and
enforceable against the Company in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership,
moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to
creditors’ rights generally and (ii) general principles of equity (whether applied by a court
of law or equity) and the discretion of the court before which any proceeding therefor may be
brought.
	 
	(j)	 	The Company is not in violation of its certificate of incorporation, by-laws or other
organizational documents (the “Charter Documents”). The Company is not (i) in
violation of any Federal, state, local or foreign statute, law (including, without limitation,
common law) or ordinance, or any judgment, decree, rule, regulation or order (collectively,
“Applicable Law”) of any federal, state, local and other governmental authority,
governmental or regulatory agency or body, court, arbitrator or self-regulatory organization,
domestic or foreign (each, a “Governmental Authority”) applicable to it or any of its
properties, or (ii) in breach of or default under any bond, debenture, note or other evidence
of indebtedness, indenture, mortgage, deed of trust, lease or any other agreement or
instrument to which it is a party or by which it or its property is bound (collectively,
“Applicable Agreements”), except for such violations, breaches or defaults that would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. All Applicable Agreements are in full force and effect and are legal, valid and
binding obligations of the Company, with only such exceptions as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. To the Company’s
knowledge, after due inquiry, there exists no condition that, with the passage of time or
otherwise, would constitute (a) a violation of such Charter Documents or Applicable Laws, (b)
a breach of or default under any Applicable Agreement or (c) result in the imposition of any
penalty or the acceleration of any indebtedness, except in the cases of sub-clause (b) and
(c), as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
	 
	(k)	 	Neither the execution, delivery or performance of the Documents nor the consummation of any
transactions contemplated therein will conflict with, violate, constitute a breach of, or a
default (with the passage of time or otherwise) under, require the consent of any person
(other than consents already obtained and in full force and effect and, with respect to the
consent from the lenders under the Revolving Credit Facility, subject to satisfaction of the
conditions to such consent prior to the Closing Date, and consents required from landlords
with respect to the leasehold mortgages) under, result in the imposition of a Lien on any
assets of the Company (except for Liens pursuant to the Collateral Documents), or result in an
acceleration of indebtedness under or pursuant to (i) the Charter Documents, (ii) any
Applicable Agreement, or (iii) any Applicable Law. Immediately after consummation of the
Offering and transactions contemplated in the Documents, no Default or Event of Default will
exist.
	 
	(l)	 	When executed and delivered, the Documents will conform in all material respects to the
descriptions thereof in the Time of Sale Document and the Final Offering Memorandum.
	 
	(m)	 	No consent, approval, authorization or order of any Governmental Authority, or third party is
required for the issuance and sale by the Company of the Notes to the Initial Purchaser or the
consummation by the Company of the other transactions contemplated hereby, except such as may
be required from landlords with respect to the leasehold mortgages, such as have been
obtained, and such as may be required under state securities or “Blue Sky” laws in connection
with the purchase and resale of the Notes by the Initial Purchaser.




 









 






	(n)	 	There is no action, claim, suit, demand, hearing, notice of violation or deficiency, or
proceeding, domestic or foreign (collectively, “Proceedings”), pending or, to the
knowledge of the Company, threatened, that either (i) seeks to restrain, enjoin, prevent the
consummation of, or otherwise challenge any of the Documents or any of the transactions
contemplated therein, or (ii) would, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The Company is not subject to any judgment, order, decree,
rule or regulation of any Governmental Authority that would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.






	(o)	 	The Company possesses all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all Governmental
Authorities, presently required or necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as now or proposed to be conducted as set
forth in the Time of Sale Document and the Final Offering Memorandum (“Permits”),
except where the failure to obtain such Permits would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; the Company has fulfilled and
performed all of its obligations with respect to such Permits except for where the failure to
fulfill or perform such obligations would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect and, to the Company’s knowledge after due inquiry,
no event has occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of the rights of the holder
of any such Permit; and the Company has not received any notice of any proceeding relating to
revocation or modification of any such Permit, except as described in the Time of Sale
Document and the Final Offering Memorandum, or except where such revocation or modification
would not, individually or in the aggregate, have a Material Adverse Effect.
	 
	(p)	 	The Company has good and valid title to all real property owned by it and good title to all
personal property owned by it and good and valid title to all leasehold estates in real and
personal property being leased by it and, as of the Closing Date, all such property (real and
personal) will be free and clear of all liens, security interests, mortgages, pledges,
charges, equities, claims or restrictions on transferability or encumbrances of any kind
(collectively, “Liens), other than Permitted Liens. All Applicable Agreements to which
the Company is a party or by which it is bound are valid and enforceable against the Company,
and, to the Company’s knowledge, are valid and enforceable against the other party or parties
thereto and are in full force and effect with only such exceptions as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
	 
	(q)	 	All Tax returns required to be filed by the Company have been filed and all such returns are
true, complete, and correct in all material respects. All material Taxes that are due from
the Company have been paid other than those (i) currently payable without penalty or interest or (ii) being contested
in good faith and by appropriate proceedings and for which adequate reserves have been
established in accordance with generally accepted accounting principles of the United
States, consistently applied (“GAAP”). To the knowledge of the Company, after
reasonable inquiry, there are no actual or proposed Tax assessments against the Company that
would, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. The accruals and reserves on the books and records of the Company in respect of any
material Tax liability for any period not finally determined are adequate to meet any
assessments of Tax for any such period. For purposes of this Agreement, the term
“Tax” and “Taxes” shall mean all Federal, state, local and foreign taxes,
and other assessments of a similar nature (whether imposed directly or through withholding),
including any interest, additions to tax, or penalties applicable thereto.




 









 






	(r)	 	The Company owns, or is licensed under, and has the right to use, all patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, “Intellectual Property”)
necessary for the conduct of its business, except where the failure to own or license such
Intellectual Property would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect and, as of the Closing Date, will be free and clear of all
Liens, other than Permitted Liens. No claims or notices of any potential claim have been
asserted by any person challenging the use of any such Intellectual Property by the Company or
questioning the validity or effectiveness of the Intellectual Property or any license or
agreement related thereto (other than any claims that, if successful, would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect). The use of
such Intellectual Property by the Company will not infringe on the Intellectual Property
rights of any other person in any material manner.
	 
	(s)	 	The Company maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) material transactions are executed in accordance with
management’s general or specific authorization, (ii) material transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP, and to
maintain asset accountability, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any material differences.
	 
	(t)	 	The audited financial statements and related notes of the Company contained in the Time of
Sale Document and the Final Offering Memorandum (the “Financial Statements”) present
fairly the financial position, results of operations and cash flows of the Company or Valero
Refining Company – Louisiana, as the case may be, as of the respective dates and for the
respective periods to which they apply and have been prepared in accordance with GAAP and the
requirements of Regulation S-X of the Act. Except as disclosed in the Time of Sale Document
and the Final Offering Memorandum, the financial data set forth under “Summary Historical and
Adjusted Financial and Operating Data” and “Selected Historical Financial Data” included in
the Final Offering Memorandum has been prepared on a basis consistent with that of the
Financial Statements and present fairly the financial position and results of operations of
the Company as of the respective dates and for the respective periods indicated. Except as
disclosed in the Time of Sale Document and the Final Offering Memorandum, the unaudited pro
forma financial information and related notes of the Company contained in the Time of Sale
Document and the Final Offering Memorandum have been prepared in accordance with the
requirements of Regulation S-X and give effect to assumptions used in the preparation thereof
on a reasonable basis and in good faith. All other financial, statistical, and market and
industry-related data included in the Time of Sale Document and the Final Offering Memorandum
are fairly and accurately presented and are based on or derived from sources that the Company
believes to be reliable and accurate.
	 
	(u)	 	Subsequent to the respective dates as of which information is given in the Time of Sale
Document and the Final Offering Memorandum, except as disclosed in or contemplated by the Time
of Sale Document and the Final Offering Memorandum, (i) the Company has not incurred any
liabilities, direct or contingent, that are material, individually or in the aggregate, to the
Company, or has entered into any transactions not in the ordinary course of business, (ii)
there has not been any material decrease in the capital stock or any material increase in
long-term indebtedness or any material increase in short-term indebtedness of the Company, or any payment of or declaration to pay any dividends or any other distribution
with respect to the Company, and (iii) there has not been any material adverse change in the
properties, business, operations, earnings, assets, liabilities or condition (financial or
otherwise) of the Company (each of clauses (i), (ii) and (iii), a




 









 






	 	 	“Material Adverse Change”). To the knowledge of the Company after reasonable inquiry, except as disclosed
in the Time of Sale Document and the Final Offering Memorandum, there is no event that is
reasonably likely to occur, which if it were to occur, would, individually or in the
aggregate, have a Material Adverse Effect.
	 
	(v)	 	No “nationally recognized statistical rating organization” (as such term is defined for
purposes of Rule 436(g)(2) under the Act) (i) has imposed (or has informed the Company that it
is considering imposing) any condition (financial or otherwise) on the Company retaining any
rating assigned to the Company or to any securities of the Company, or (ii) has indicated to
the Company that it is considering (A) the downgrading, suspension, or withdrawal of, or any
review for a possible change that does not indicate the direction of the possible change in,
any rating so assigned, or (B) any change in the outlook for any rating of the Company or any
securities of the Company.
	 
	(w)	 	All indebtedness represented by the Notes is being incurred for proper purposes and in good
faith. On the Closing Date, after giving pro forma effect to the Offering and the use of
proceeds therefrom as indicated in the “Use of Proceeds” section of the Time of Sale Document
and Final Offering Memorandum, the Company will be Solvent. As used in this paragraph, the
term “Solvent” means, with respect to a particular date, that on such date (i) the
present fair market value (or present fair saleable value) of the assets of the Company is not
less than the total amount required to pay the liabilities of the Company on its total
existing debts and liabilities (including contingent liabilities) as they become absolute and
matured; (ii) the Company is able to pay its debts and other liabilities, contingent
obligations and commitments as they mature and become due in the normal course of business;
(iii) assuming consummation of the issuance of the Notes as contemplated by this Agreement and
the Time of Sale Document and Offering Memorandum, the Company is not incurring debts or
liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company
is not engaged in any business or transaction, and does not propose to engage in any business
or transaction, for which its property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which the Company is
engaged; and (v) the Company is not otherwise insolvent under the standards set forth in
applicable laws.
	 
	(x)	 	Except as contemplated by the Time of Sale Document and the Final Offering Memorandum, the
Company has not, and to its knowledge after reasonable inquiry, no one acting on its behalf
has, (i) taken, directly or indirectly, any action designed to cause or to result in, or that
has constituted or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of
any of the Notes, (ii) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, any of the Notes, or (iii) except as disclosed in the Time of Sale
Document and the Final Offering Memorandum, paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of the Company.
	 
	(y)	 	Without limiting any provision herein, no registration under the Act and no qualification of
the Indenture under the TIA is required for the sale of the Notes to the Initial Purchaser as
contemplated hereby or for the Exempt Resales, assuming (i) that the purchasers in the Exempt
Resales are QIBs or Accredited Investors or non-U.S. persons (as defined under Regulation S of
the Act) and (ii) the accuracy of the Initial Purchaser’s representations contained herein
regarding the absence of general solicitation in connection with the sale of the Notes to the
Initial Purchaser and in the Exempt Resales.
	 
	(z)	 	The Notes are eligible for resale pursuant to Rule 144A under the Act and no other securities
of the Company are of the same class (within the meaning of Rule 144A under the Act) as the
Notes




 









 






	 	 	and listed on a national securities exchange registered under Section 6 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or quoted in a U.S.
automated inter-dealer quotation system. No securities of the Company of the same class as
the Notes have been offered, issued or sold by the Company or any of its respective Affiliates
within the six-month period immediately prior to the date hereof.
	 
	(aa)	 	Neither of the Company nor any of its respective affiliates or other person acting on behalf
of the Company has offered or sold the Notes by means of any general solicitation or general
advertising within the meaning of Rule 502(c) under the Act or, with respect to Notes sold
outside the United States to non-U.S. persons (as defined in Rule 902 under the Act), by means
of any directed selling efforts within the meaning of Rule 902 under the Act, and the Company,
any affiliate of the Company and any person acting on behalf of the Company have complied with
and will implement the “offering restrictions” within the meaning of such Rule 902;
provided, that no representation is made in this subsection with respect to the
actions of the Initial Purchaser.
	 
	(bb)	 	Except as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (1) each “employee benefit plan,” within the meaning of Section 3(3)
of the United States Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), which the Company or any ERISA Affiliate (as defined below) sponsors or
maintains, or with respect to which the Company or any ERISA Affiliate has (or within the last
three years had) any obligation to make contributions (each, a “Plan”), is in
compliance with its terms and the requirements of any presently applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the Internal Revenue Code of
1986, as amended (the “Code”), (2) the Company and each ERISA Affiliate has fulfilled
its obligations, if any, under the minimum funding standards of Section 412 of the Code or
Section 302 of ERISA with respect to any Plan that is subject to Section 412 of the Code or
Section 302 of ERISA, (3) neither the Company nor any ERISA Affiliate has incurred any unpaid
liability to the Pension Benefit Guaranty Corporation (other than for the payment of premiums
in the ordinary course and without default) or to any Plan under Title IV of ERISA, (4) no
“reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is
reasonably expected to occur with respect to any Plan that is subject to Title IV of ERISA and
(5) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of
the Code, has occurred with respect to any Plan excluding transactions to which a statutory or
administrative prohibited transaction exemption applies. “ERISA Affiliate” means a
corporation, trade or business that is, along with the Company, a member of a controlled group
of corporations or a controlled group of trades or businesses and would be deemed a “single
employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)
of ERISA.
	 
	(cc)	 	(i) The Company is not party to or bound by any collective bargaining agreement with any
labor organization; (ii) there is no union representation question existing with respect to
the employees of the Company , and, to the knowledge of the Company after due inquiry, no
union organizing activities are taking place that, would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; (iii) to the Company’s knowledge, no
union organizing or decertification efforts are underway or threatened against the Company;
(iv) no labor strike, work stoppage, slowdown, or other material labor dispute is pending
against the Company, or, to the knowledge of the Company, after due inquiry, threatened
against the Company; (iv) there is no worker’s compensation liability, experience or matter
that would, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; (v) to the knowledge of the Company, after due inquiry, there is no threatened
or pending action against the Company pursuant to the Worker Adjustment Retraining and
Notification Act of 1988, as amended (“WARN”), or any similar state or local law; (vi)
there is no employment-related charge, complaint, grievance,




 









 






	 	 	investigation, unfair labor practice claim, or inquiry of any kind, pending against the Company that would, individually
or in the aggregate, have a Material Adverse Effect; and (vii) to the knowledge of the
Company, after due inquiry, no employee or agent of the Company has committed any act or
omission giving rise to liability for any violation identified in subsection (v) and (vi)
above, other than such acts or omissions that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
	 
	(dd)	 	None of the transactions contemplated in the Documents or the application of the proceeds by
the Company of the proceeds of the Notes will violate or result in a violation of Section 7 of
the Exchange Act, (including, without limitation, Regulation T (12 C.F.R. Part 220),
Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System).
	 
	(ee)	 	The Company is not an open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under Section 8 of the United
States Investment Company Act of 1940 (the “Investment Company Act”); and the Company will not, after giving
effect to the Offering and sale of the Notes and the application of the proceeds thereof as
described in the Time of Sale Document and the Final Offering Memorandum, be an “investment
company” as defined in the Investment Company Act.
	 
	(ff)	 	The Company has not engaged any broker, finder, commission agent or other person (other than
the Initial Purchaser) in connection with the Offering or any of the transactions contemplated
in the Documents, and the Company is not under any obligation to pay any broker’s fee or
commission in connection with such transactions (other than commissions or fees to the Initial
Purchaser).
	 
	(gg)	 	The Company (i) is in compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of the environment or hazardous or toxic
substances of wastes, pollutants or contaminants (“Environmental Laws”), (ii) has
received and is in compliance with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct its respective businesses and (iii) has not
received notice of any actual or potential liability for the investigation or remediation of
any disposal or release of hazardous or toxic substances or wastes, pollutants or
contaminants, in each case except where such non-compliance with Environmental Laws, failure
to receive and comply with required permits, licenses or other approvals, or liability would
not, individually or in the aggregate, have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business. The Company has not been named as a
“potentially responsible party” under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended.
	 
	(hh)	 	In the ordinary course of its business, the Company periodically reviews the effects of
Environmental Laws on the business, operations and properties of the Company, in the course of
which it identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third parties). On the
basis of such review, the Company has concluded that such associated costs would not
reasonably be expected to have a Material Adverse Effect.
	 
	(ii)	 	Each certificate signed by any officer of the Company and delivered to the Initial Purchaser
shall be deemed a representation and warranty by the Company (and not individually by such
officer) to the Initial Purchaser with respect to the matters covered thereby.




 









 






	(jj)	 	The Company is insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the business in which it is
engaged. All policies of insurance insuring the Company or its business, assets, employees,
officers and directors are in full force and effect. The Company is in compliance with the
terms of such policies and instruments in all material respects, and there are no claims by
the Company under any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause. The Company has not been refused
any insurance coverage sought or applied for, and the Company has no reason to believe that it
will not be able to renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that would not, individually or in the aggregate, have a Material Adverse Effect.
All information certified by an officer of the Company in the Perfection Certificate dated as
of the Closing Date and delivered by such officer on behalf of the Company is true and correct
as of the Closing Date.
	 
	(kk)	 	[Intentionally Deleted.]
	 
	(ll)	 	KPMG LLP, who has certified the financial statements contained in the Time of Sale Document
and the Final Offering Memorandum, is an independent registered public accounting firm with
respect to the Company within the applicable rules and regulations adopted by the SEC and the
Public Accounting Oversight Board (United States) and as required by the Act.
	 
	(mm)	 	(i) The Company is not, and, to the knowledge of the Company, no director, officer, agent,
employee or Affiliate of the Company is, aware of or has taken any action, directly or
indirectly, that would result in a violation by such Persons of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA; and (ii) the Company, and, to the
knowledge of the Company, its Affiliates have conducted their businesses in compliance with
the FCPA and have instituted and maintain policies and procedures designed to ensure, and
which are reasonably expected to continue to ensure, continued compliance therewith, except in
the case of clauses (i) and (ii), where the matters underlying any failure of the statements
to be true and correct would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
	 
	(nn)	 	(i) The operations of the Company are and have been conducted at all times in compliance with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”); and (ii) no action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator involving the
Company with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened, except in the case of clauses (i) and (ii), where the matters underlying
any failure of the statements to be true and correct would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
	 
	(oo)	 	The Company is not, and, to the knowledge of the Company, no director, officer, agent,
employee or Affiliate of the Company is, currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Department of the Treasury
(“OFAC”); and the Company




 









 






	 	 	will not directly or indirectly use the proceeds of the Offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions administered by
OFAC.





              5. Covenants of the Company. The Company agrees:





	(a)	 	To (i) advise the Initial Purchaser promptly after obtaining knowledge (and, if requested by
the Initial Purchaser, confirm such advice in writing) of (A) the issuance by any state
securities commission of any stop order suspending the qualification or exemption from
qualification of any of the Notes for offer or sale in any jurisdiction, or the initiation of
any proceeding for such purpose by any state securities commission or other regulatory
authority, or (B) the happening of any event that makes any statement of a material fact made
in the Time of Sale Document or the Final Offering Memorandum, untrue or that requires the
making of any additions to or changes in the Time of Sale Document or the Final Offering
Memorandum in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (ii) use its reasonable best efforts to prevent the
issuance of any stop order or order suspending the qualification or exemption from
qualification of any of the Notes under any state securities or Blue Sky laws, and (iii) if,
at any time, any state securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of any of the Notes under
any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
	 
	(b)	 	To (i) furnish the Initial Purchaser, without charge, as many copies of the Time of Sale
Document and the Final Offering Memorandum, and any amendments or supplements thereto, as the
Initial Purchaser may reasonably request, and (ii) promptly prepare, upon the Initial
Purchaser’s reasonable request, any amendment or supplement to the Offering Memorandum that
the Initial Purchaser, upon advice of legal counsel, determines may be necessary in connection
with Exempt Resales (and the Company hereby consents to the use of the Time of Sale Document
and the Final Offering Memorandum, and any amendments and supplements thereto, by the Initial
Purchaser in connection with Exempt Resales).
	 
	(c)	 	Not to amend or supplement the Time of Sale Document or the Final Offering Memorandum prior
to the Closing Date, or at any time prior to the completion of the resale by the Initial
Purchaser of all the Notes purchased by the Initial Purchaser, unless the Initial Purchaser
shall previously have been advised thereof and shall have provided its written consent
thereto.
	 
	(d)	 	So long as the Initial Purchaser shall hold any of the Notes, (i) if any event shall occur as
a result of which, in the reasonable judgment of the Company or the Initial Purchaser, it
becomes necessary or advisable to amend or supplement the Final Offering Memorandum in order
to make the statements therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to
comply with Applicable Law, to prepare, at the expense of the Company, an appropriate
amendment or supplement to the Final Offering Memorandum (in form and substance reasonably
satisfactory to the Initial Purchaser) so that (A) as so amended or supplemented, the Final
Offering Memorandum will not include an untrue statement of material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (B) the Final Offering
Memorandum will comply with Applicable Law and (ii) if in the reasonable judgment of the
Company it becomes necessary or advisable to amend or supplement the Final Offering Memorandum
so that the Final Offering Memorandum will contain all of the information specified in, and
meet the requirements of, Rule 144A(d)(4) of the Act, to prepare an appropriate amendment or
supplement to the Final




 









 






	 	 	Offering Memorandum (in form and substance reasonably satisfactory to the Initial Purchaser) so that the Final Offering Memorandum, as so amended or supplemented,
will contain the information specified in, and meet the requirements of, such Rule.
	 
	(e)	 	To cooperate with the Initial Purchaser and the Initial Purchaser’s counsel in connection
with the qualification of the Notes under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchaser may request and continue such qualification in effect
so long as reasonably required for Exempt Resales.
	 
	(f)	 	Subject to Section 14(c) hereof, whether or not any of the Offering or the
transactions contemplated under the Documents are consummated or this Agreement is terminated,
to pay (i) all costs, expenses, fees and taxes incident to and in connection with: (A) the
preparation, printing and distribution of the Time of Sale Document and the Final Offering
Memorandum and all amendments and supplements thereto (including, without limitation,
financial statements and exhibits), and all other agreements, memoranda, correspondence and
other documents prepared and delivered in connection herewith, (B) the negotiation, printing,
processing and distribution (including, without limitation, word processing and duplication
costs) and delivery of, each of the Documents, (C) the preparation, issuance and delivery of
the Notes, (D) the qualification of the Notes for offer and sale under the securities or Blue
Sky laws of the several states, (E) furnishing such copies of the Time of Sale Document and
the Final Offering Memorandum, and all amendments and supplements thereto, as may reasonably
be requested for use by the Initial Purchaser and (F) the performance of the obligations of
the Company under the Registration Rights Agreement, including but not limited to the Exchange
Offer, the Exchange Offer Registration Statement and any Shelf Registration Statement (as each
such term is defined in the Registration Rights Agreement), (ii) all fees and expenses of the
counsel, accountants and any other experts or advisors retained by the Company, (iii) all fees
and expenses (including, without limitation, fees and expenses of counsel) of the Company in
connection with approval of the Notes by DTC for “book-entry” transfer, (iv) all fees charged
by rating agencies in connection with the rating of the Notes, (v) all fees and expenses
(including reasonable fees and expenses of counsel) of the Trustee and all collateral agents,
and (vi) all costs and expenses in connection with the creation and perfection of the Security
Agreement (including without limitation, filing and recording fees, search fees, taxes and
costs of title policies).
	 
	(g)	 	To use the proceeds of the Offering in the manner described in the Time of Sale Document and
the Final Offering Memorandum under the caption “Use of Proceeds.”
	 
	(h)	 	To do and perform all things required to be done and performed under the Documents prior to
and after the Closing Date.
	 
	(i)	 	Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Act) of the Company
will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any
“security” (as defined in the Act) that would be integrated with the sale of the Notes in a manner that would require the
registration under the Act of the sale to the Initial Purchaser or to the Subsequent
Purchasers of the Notes.
	 
	(j)	 	For so long as any of the Notes remain outstanding, during any period in which the Company is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request, to
any owner of the Notes in connection with any sale thereof and any prospective Subsequent
Purchasers of such Notes from such owner, the information required by Rule 144A(d)(4) under
the Act.






 












 






	(k)	 	To comply with the representation letter of the Company to DTC relating to the approval of
the Notes by DTC for “book entry” transfer.
	 
	(l)	 	For so long as any of the Notes remain outstanding, the Company will furnish to the Initial
Purchaser copies of all reports and other communications (financial or otherwise) furnished by
the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of
any reports or financial statements furnished to or filed by the Company with the SEC or any
national securities exchange on which any class of securities of the Company may be listed;
provided, that such materials shall be deemed delivered to the Initial Purchaser if such
materials are available on the SEC’s EDGAR service (or its successor).
	 
	(m)	 	Except in connection with the Exchange Offer or the filing of the Shelf Registration
Statement, not to, and not to authorize or permit any person acting on its behalf to, (i)
distribute any offering material in connection with the offer and sale of the Notes other than
the Time of Sale Document and the Final Offering Memorandum and any amendments and supplements
to the Final Offering Memorandum prepared in compliance with this Agreement (other than the
Supplemental Offering Materials), or (ii) solicit any offer to buy or offer to sell the Notes
by means of any form of general solicitation or general advertising (including, without
limitation, as such terms are used in Regulation D under the Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Act.
	 
	(n)	 	During the one-year period after the Closing Date (or such shorter period as may be provided
for in Rule 144 under the Act, as the same may be in effect from time to time), to not, and to
not permit any current or future Subsidiaries of either the Company or any other affiliates
(as defined in Rule 144A under the Act) controlled by the Company to, resell any of the Notes
which constitute “restricted securities” under Rule 144 that have been reacquired by the
Company, any current or future Subsidiaries or any other affiliates (as defined in Rule 144A
under the Act) controlled by the Company, except pursuant to an effective registration
statement under the Act.
	 
	(o)	 	The Company shall pay all stamp, documentary and transfer taxes and other duties, if any,
which may be imposed by the United States or any political subdivision thereof or taxing
authority thereof or therein with respect to the issuance of the Notes or the sale thereof to
the Initial Purchaser.





              6. Representations and Warranties of the Initial Purchaser. The Initial Purchaser
represents and warrants that:





	(a)	 	It is a QIB as defined in Rule 144A under the Act and it will offer the Notes for resale only
upon the terms and conditions set forth in this Agreement and in the Time of Sale Document and
the Final Offering Memorandum.
	 
	(b)	 	It is not acquiring the Notes with a view to any distribution thereof that would violate the
Act or the securities laws of any state of the United States or any other applicable
jurisdiction. In connection with the Exempt Resales, it will solicit offers to buy the Notes
only from, and will offer and sell the Notes only to, (A) persons reasonably believed by the
Initial Purchaser to be QIBs or (B) persons reasonably believed by the Initial Purchaser to be
Accredited Investors or (C) non-U.S. persons reasonably believed by the Initial Purchaser to
be a purchaser referred to in Regulation S under the Act; provided, however,
that in purchasing such Notes, such persons are deemed to have represented and agreed as
provided under the caption “Notice to Investors” contained in the Time of Sale Document and
the Final Offering Memorandum.




 









 






	(c)	 	No form of general solicitation or general advertising (as those terms are defined in
Regulation D under the Act) in violation of the Act has been or will be used nor will any
offers in any manner involving a public offering within the meaning of Section 4(2) of the Act
or, with respect to Notes to be sold in reliance on Regulation S, by means of any directed
selling efforts be made by the Initial Purchaser or any of its representatives in connection
with the offer and sale of any of the Notes.





              7. Conditions. The obligations of the Initial Purchaser to purchase the Notes under
this Agreement are subject to the performance by the Company of its covenants and obligations
hereunder and the satisfaction of each of the following conditions:





	(a)	 	All the representations and warranties of the Company that are qualified by materiality or
Material Adverse Effect contained in this Agreement and in each of the Documents shall be true
and correct, and the representations and warranties of the Company contained in this Agreement
and in each of the Documents that are not qualified by materiality or Material Adverse Effect
shall be true and correct in all material respects, in each case, as of the date hereof and at
the Closing Date. On or prior to the Closing Date, the Company and each other party to the
Documents (other than the Initial Purchaser) shall have performed or complied in all material
respects with all of the agreements and satisfied all conditions on their respective parts to
be performed, complied with or satisfied pursuant to the Documents (other than conditions to
be satisfied by such other parties, which the failure to be so satisfied would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect).
	 
	(b)	 	No injunction, restraining order or order of any nature by a Governmental Authority shall
have been issued as of the Closing Date that would prevent or materially interfere with the
consummation of the Offering or any of the transactions contemplated under the Documents; and
no stop order suspending the qualification or exemption from qualification of any of the Notes
in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been
commenced or, to the knowledge of the Company after due inquiry, be pending or contemplated as
of the Closing Date.
	 
	(c)	 	No action shall have been taken and no Applicable Law shall have been enacted, adopted or
issued that would, as of the Closing Date, prevent the consummation of the Offering or any of
the transactions contemplated under the Documents. No Proceeding shall be pending or, to the
knowledge of the Company after due inquiry, threatened other than Proceedings that would not,
individually or in the aggregate, have a Material Adverse Effect.
	 
	(d)	 	Subsequent to the respective dates as of which data and information is given in the Time of
Sale Document and the Final Offering Memorandum, there shall not have been any Material
Adverse Change.
	 
	(e)	 	On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or
withdrawal of, nor shall any notice have been given of any potential or intended downgrading,
suspension or withdrawal of, or of any review (or of any potential or intended review) for a
possible change that does not indicate the direction of the possible change in, any rating of
the Company or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing implications or under
review with an uncertain direction) by any “nationally recognized statistical rating
organization” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there
shall not have occurred any change, nor shall any notice have been given of any potential or
intended change, in the outlook for any rating of the Company or any securities of the Company
by any such rating





 









 





	 	 	organization and (iii) no such rating organization shall have given notice that it has
assigned (or is considering assigning) a lower rating to the Notes than that on which the
Notes were marketed.






	(f)	 	The Initial Purchaser shall have received on the Closing Date:






	 	(i)	 	certificates dated the Closing Date, signed by (1) the chief executive officer
and (2) the chief financial officer of the Company, on behalf of the Company, to the
effect that (a) the representations and warranties that are qualified by materiality or
Material Adverse Effect set forth in Section 4 hereof and in each of the
Documents and the Perfection Certificate are true and correct, and the representations
and warranties set forth in Section 4 hereof and in each of the Documents and the Perfection Certificate
that are not qualified by materiality or Material Adverse Effect shall be true and
correct in all material respects with the same force and effect, in each case, as
though expressly made at and as of the Closing Date, (b) the Company has performed
and complied with all agreements and satisfied all conditions in all material
respects on its part to be performed or satisfied at or prior to the Closing Date,
(c) at the Closing Date, since the date hereof, no event or events have occurred and
no information has become known that, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect, (d) since the date of the
most recent financial statements in the Time of Sale Document and the Final Offering
Memorandum (exclusive of any amendment or supplement thereto after the date hereof),
other than as described in the Time of Sale Document and the Final Offering
Memorandum or contemplated thereby, the Company has not incurred any liabilities or
obligations, direct or contingent, not in the ordinary course of business, that are
material to the Company, or entered into any transactions not in the ordinary course
of business that are material to the business, condition (financial or otherwise) or
results of operations or prospects of the Company, and there has not been any change
in the capital stock or long-term indebtedness of the Company that is material to
the business, condition (financial or otherwise) or results of operations or
prospects of the Company, and (e) the sale of the Notes has not been enjoined
(temporarily or permanently).
	 
	 	(ii)	 	a certificate, dated the Closing Date, executed by the secretary of the
Company, certifying such matters as the Initial Purchaser may reasonably request.
	 
	 	(iii)	 	a certificate of solvency, dated the Closing Date, executed by the principal
financial or accounting officer of the Company substantially in the form previously
approved by the Initial Purchaser or its counsel.
	 
	 	(iv)	 	(i) the opinion, in the form of Exhibit A attached hereto, and (ii) an
opinion relating to security interests in the form of Exhibit B attached
hereto, each dated the Closing Date, of Jones Day, counsel to the Company.
	 
	 	(v)	 	Milling Benson Woodward L.L.P., special Louisiana counsel to the Company, shall
have furnished to the Initial Purchaser and the Collateral Agent, at the request of the
Company, its written opinion, dated the Closing Date and addressed to the Initial
Purchaser and the Collateral Agent, substantially in the form of Exhibit C
attached hereto.
	 
	 	(vi)	 	an opinion and 10b-5 letter, each dated the Closing Date, of White & Case LLP,
counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser
covering such matters as are customarily covered in such opinions.




 









 












	(g)	 	The Initial Purchaser shall have received a copy of an executed amendment to, or an executed
amendment and restatement of, the Revolving Credit Facility, in form and substance reasonably
satisfactory to the Initial Purchaser, and such amendment shall have become (or concurrently
with the issuance of the Notes will become) effective.
	 
	(h)	 	The Company shall have delivered fully executed counterparts of Mortgages in respect of real
property owned in fee by the Company, each dated as of the Closing Date, duly executed by the
Company, together with evidence of the completion (or satisfactory arrangements for the
completion), of all recordings and filings of such Mortgage as may be necessary to create a
valid, perfected Lien, subject to Permitted Liens, against the properties to be covered
thereby.
	 
	(i)	 	The Initial Purchaser shall have received the structuring fee set forth in Section 4(b) of
the Engagement Letter dated as of September 25, 2009 between the Initial Purchaser and the
Company.
	 
	(j)	 	The Initial Purchaser shall have received from KPMG LLP, independent auditors with respect to
the Company, (A) a customary comfort letter, dated the date of the Final Offering Memorandum,
in form and substance reasonably satisfactory to the Initial Purchaser and its counsel, with
respect to the financial statements and certain financial information contained in the Time of
Sale Document and the Final Offering Memorandum, and (B) a customary comfort letter, dated the
Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and its
counsel, to the effect that KPMG LLP reaffirms the statements made in its letter furnished
pursuant to clause (A) with respect to the financial statements and certain financial
information contained in the Time of Sale Document and the Final Offering Memorandum.
	 
	(k)	 	Each of the Documents shall have been executed and delivered by all parties thereto, and the
Initial Purchaser shall have received a fully executed original of each Document (other than
Mortgages in respect of leasehold interests in real property, deposit account control
agreements and securities account control agreements).
	 
	(l)	 	The Initial Purchaser shall have received copies of all opinions, certificates, letters and
other documents delivered under or in connection with the Offering or any transaction
contemplated in the Documents delivered pursuant to Section 7(j) hereof.
	 
	(m)	 	The terms of each Document delivered pursuant to Section 7(j) hereof shall conform in
all material respects to the description thereof in the Time of Sale Document and the Final
Offering Memorandum.
	 
	(n)	 	The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the
Closing Date:






	 	(i)	 	appropriately completed copies of Uniform Commercial Code (“UCC”)
financing statements naming the Company as a debtor and the Collateral Agent as the
secured party, or other similar instruments or documents to be filed under the UCC of
all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral
Agent and its counsel, desirable to perfect the security interests of the Collateral
Agent pursuant to the Security Agreement;
	 
	 	(ii)	 	appropriately completed copies of Form UCC-3 termination statements, if any,
necessary to release all Liens (other than Permitted Liens) of any Person in any
collateral described in any Security Agreement previously granted by any Person;




 









 






	 	(iii)	 	certified copies of UCC Requests for Information or Copies (Form UCC-11), or a
similar search report certified by a party acceptable to the Collateral Agent, dated a
date reasonably near to the Closing Date, listing all effective financing statements
which name the Company (under its present name and any name of the Company used during
the immediately preceding five year period ending on the Closing Date) as the debtor,
together with copies of such financing statements (none of which shall cover any
collateral described in any Collateral Document, other than such financing statements
that evidence Permitted Liens and financing statements in respect of which UCC-3
termination statements have been delivered pursuant to the immediately preceding clause
(ii)); and
	 
	 	(iv)	 	the Collateral Agent and its counsel shall be reasonably satisfied that (i) the
Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the
collateral described above is of the priority described in the Time of Sale Document
and the Final Offering Memorandum; and (ii) no Lien (other than any Lien being released
contemporaneously with the issuance of the Notes) exists on any of the collateral
described above other than the Lien created in favor of the Collateral Agent, for the
benefit of the Secured Parties, pursuant to a Collateral Document, in each case subject
to the Permitted Liens.





              8. Indemnification and Contribution.





	(a)	 	The Company agrees to indemnify and hold harmless the Initial Purchaser, its directors,
officers and employees, and each person, if any, who controls the Initial Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities of any kind to which the Initial Purchaser, director, officer,
employee or such controlling person may become subject under the Act, the Exchange Act or
other federal or state statutory law or regulation, or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the written consent of
the Company (not to be unreasonably withheld, delayed or conditioned), insofar as any such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon:






	 	(i)	 	any untrue statement or alleged untrue statement of a material fact contained
in the Time of Sale Document or the Final Offering Memorandum, or any amendment or
supplement thereto; or
	 
	 	(ii)	 	the omission or alleged omission to state, in the Time of Sale Document or the
Final Offering Memorandum or any amendment or supplement thereto or any Supplemental
Offering Materials, a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not
misleading






	 	 	and, subject to the provisions hereof, will reimburse, as incurred, the Initial Purchaser,
director, officer, employee and each such controlling person for any reasonable legal or
other expenses incurred by the Initial Purchaser or such controlling person in connection
with investigating, defending against or appearing as a third-party witness in connection
with any such loss, claim, damage, liability or action in respect thereof;
provided, however, the Company will not be liable in any such case to the
extent (but only to the extent) that a court of competent jurisdiction shall have
determined by a final, unappealable judgment that such loss, claim, damage or liability
resulted from any untrue statement or alleged untrue statement or omission or alleged
omission made in the Time of Sale Document or the Final Offering Memorandum or any
amendment or supplement thereto or any Supplemental Offering Materials in reliance upon and
in conformity with written information concerning the Initial Purchaser furnished to the
Company by the Initial




 









 






	 	 	Purchaser specifically for use therein, it being understood and agreed that the only such
information furnished by the Initial Purchaser to the Company consists of the information
described in Section 12 below.






	(b)	 	The Initial Purchaser agrees to indemnify and hold harmless each of the Company and its
directors, officers and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company or any such director, officer or controlling person may
become subject under the Act, the Exchange Act or otherwise, insofar as a court of competent
jurisdiction shall have determined by a final, unappealable judgment that such losses, claims,
damages or liabilities (or actions in respect thereof) have resulted from (i) any untrue
statement or alleged untrue statement of any material fact contained in the Time of Sale
Document or the Final Offering Memorandum or any amendment or supplement thereto or any
Supplemental Offering Materials or (ii) the omission or the alleged omission to state therein
a material fact required to be stated in the Time of Sale Document or the Final Offering
Memorandum or any amendment or supplement thereto or any Supplemental Offering Materials or
necessary to make the statements therein not misleading, in each case to the extent (but only
to the extent) that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information concerning the
Initial Purchaser, furnished to the Company or its agents by the Initial Purchaser
specifically for use therein; and, subject to the limitation set forth immediately preceding
this clause, will reimburse, as incurred, any reasonable legal or other expenses incurred by
the Company or any such director, officer or controlling person in connection with any such
loss, claim, damage, liability or action in respect thereof. The Company hereby acknowledges
that the only information that the Initial Purchaser has furnished to the Company or its
agents specifically for use in the Time of Sale Document or the Final Offering Memorandum or
any amendment or supplement thereto, or any Supplemental Offering Materials, consists of the
information described in Section 12 below.






	(c)	 	As promptly as reasonably practicable after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action for which such indemnified party is
entitled to indemnification under this Section 8, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this Section
8, notify the indemnifying party of the commencement thereof in writing; but the omission
to so notify the indemnifying party (i) will not relieve such indemnifying party from any
liability under paragraph (a) or (b) above unless and only to the extent it is materially
prejudiced as a result thereof and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation
provided in paragraphs (a) and (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may
elect, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party; provided,
however, that if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest, (ii) the
defendants in any such action include both the indemnified party and the indemnifying party,
and the indemnified party shall have concluded that a conflict may arise between the positions
of the indemnifying party and the indemnified party in conducting the defense of any such
action or that there may be one or more legal defenses available to it and/or other
indemnified parties that are different from or additional to those available to the
indemnifying party, or (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of such action,
then, in each such case, the indemnifying party shall not have the right to direct the defense
of such action on behalf of such indemnified party or parties and such




 









 






	 	 	indemnified party or parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties at the expense of the indemnifying
party. After notice from the indemnifying party to such indemnified party of its election
so to assume the defense thereof and approval by such indemnified party of counsel appointed
to defend such action, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being understood,
however, that in connection with such action the indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to local counsel) in any one
action or separate but substantially similar actions in the same jurisdiction arising out of
the same general allegations or circumstances, designated by the Initial Purchaser in the
case of paragraph (a) of this Section 8 or the Company in the case of paragraph (b)
of this Section 8, representing the indemnified parties under such paragraph (a) or
paragraph (b), as the case may be, who are parties to such action or actions), (ii) the
indemnifying party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party or (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the indemnifying party and
shall be paid as they are incurred. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and expenses of
any settlement of such action effected by such indemnified party without the prior written
consent of the indemnifying party (which consent shall not be unreasonably withheld), unless
such indemnified party waived in writing its rights under this Section 8, in which
case the indemnified party may effect such a settlement without such consent.






	(d)	 	No indemnifying party shall be liable under this Section 8 for any settlement of any
claim or action (or threatened claim or action) effected without its written consent, which
shall not be unreasonably withheld, but if a claim or action is settled with its written
consent, or if there be a final judgment for the plaintiff with respect to any such claim or
action, each indemnifying party jointly and severally agrees, subject to the exceptions and
limitations set forth above, to indemnify and hold harmless each indemnified party from and
against any and all losses, claims, damages or liabilities (and legal and other expenses as
set forth above) incurred by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement or compromise of any pending or threatened
proceeding in respect of which the indemnified party is or could have been a party, or
indemnity could have been sought hereunder by the indemnified party, unless such settlement
(A) includes an unconditional written release of the indemnified party, in form and substance
satisfactory to the indemnified party, from all liability on claims that are the subject
matter of such proceeding and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of the indemnified party.






	(e)	 	In circumstances in which the indemnity agreement provided for in the preceding paragraphs of
this Section 8 is unavailable to, or insufficient to hold harmless, an indemnified
party in respect of any losses, claims, damages or liabilities (or actions in respect
thereof), each indemnifying party, in order to provide for just and equitable contributions,
shall contribute to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as
is appropriate to reflect (i) the relative benefits received by the indemnifying party or
parties, on the one hand, and the indemnified party, on the other, from the Offering or (ii)
if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the




 









 






	 	 	indemnifying party or parties, on the one hand, and the indemnified party, on the other, in
connection with the statements or omissions or alleged statements or omissions that resulted
in such losses, claims, damages or liabilities (or actions in respect thereof). The
relative benefits received by the Company, on the one hand, and the Initial Purchaser, on
the other, shall be deemed to be in the same proportion as the total proceeds from the
Offering (before deducting expenses) received by the Company bear to the total discounts and
commissions received by the Initial Purchaser. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or the Initial Purchaser,
on the other, the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission or alleged statement or omissions, and any
other equitable considerations appropriate in the circumstances.






	(f)	 	The Company and the Initial Purchaser agree that it would not be equitable if the amount of
such contribution determined pursuant to the immediately preceding paragraph (e) were
determined by pro rata or per capita allocation or by any other method of allocation that does
not take into account the equitable considerations referred to in the first sentence of the
immediately preceding paragraph (e). Notwithstanding any other provision of this Section
8, the Initial Purchaser shall not be obligated to make contributions hereunder that in
the aggregate exceed the total discounts, commissions and other compensation received by the
Initial Purchaser under this Agreement, less the aggregate amount of any damages that the
Initial Purchaser has otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of the immediately preceding paragraph (e), each person, if
any, who controls the Initial Purchaser within the meaning of Section 15 of the Act or Section
20 of the Exchange Act shall have the same rights to contribution as the Initial Purchaser,
and each director of the Company, each officer of the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, shall have the same rights to contribution as the Company.





              9. Termination. The Initial Purchaser may terminate this Agreement at any time prior
to the Closing Date by written notice to the Company if any of the following has occurred:





	(a)	 	since the date hereof, any Material Adverse Effect or development involving or expected to
result in a prospective Material Adverse Effect that could, in the Initial Purchaser’s
judgment, be expected to make it impracticable or inadvisable to proceed with the offering or
delivery of the Notes on the terms and in the manner contemplated in the Time of Sale Document
and the Final Offering Memorandum;
	 
	(b)	 	the failure of the Company to satisfy the conditions contained in Section 7(a) hereof
on or prior to the Closing Date;
	 
	(c)	 	any outbreak or escalation of hostilities or other national or international calamity or
crisis, including acts of terrorism, or material adverse change or disruption in economic
conditions in, or in the financial markets of, the United States (it being understood that any
such change or disruption shall be relative to such conditions and markets as in effect on the
date hereof), if the effect of such outbreak, escalation, calamity, crisis, act or material
adverse change in the economic conditions in, or in the financial markets of, the United
States could be reasonably expected to make it, in the Initial Purchaser’s sole reasonable
judgment, impracticable or inadvisable to market or proceed with the offering or delivery of
the Notes on the terms and in the




 









 






	 	 	manner contemplated in the Time of Sale Document and the Final Offering Memorandum or to
enforce contracts for the sale of any of the Notes;
	(d)	 	the suspension or limitation of trading generally in securities on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market or any setting of
limitations on prices for securities on any such exchange or NASDAQ National Market; or
	 
	(e)	 	the declaration of a banking moratorium by any Governmental Authority; or the taking of any
action by any Governmental Authority after the date hereof in respect of its monetary or
fiscal affairs that in the Initial Purchaser’s opinion could reasonably be expected to have a
material adverse effect on the financial markets in the United States or elsewhere.





              10. Survival of Representations and Indemnities. The representations and warranties,
covenants, indemnities and contribution and expense reimbursement provisions and other agreements,
representations and warranties of the Company set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and payment for the
Notes sold hereunder, and any termination of this Agreement.




              11. Default by the Initial Purchaser. If the Initial Purchaser shall breach its
obligations to purchase the Notes that it has agreed to purchase hereunder on the Closing Date and
arrangements satisfactory to the Company for the purchase of such Notes are not made within 36
hours after such default, this Agreement shall terminate with respect to the Initial Purchaser
without liability on the part of the Company, except that the provisions of Sections 8 and
14(c) hereof shall survive such termination. Nothing herein shall relieve the Initial
Purchaser from liability for its default.




              12. Information Supplied by the Initial Purchaser. The statements set forth on the
cover page with respect to price and name of the Initial Purchaser, the first paragraph (only as it
relates to the name of the Initial Purchaser), the third paragraph, the fifth and sixth sentences
of the fifth paragraph, the sixth paragraph and the eight paragraph under the heading “Plan of
Distribution” in the Time of Sale Document and the Final Offering Memorandum (to the extent such
statements relate to the Initial Purchaser) constitute the only information furnished by the
Initial Purchaser to the Company for the purposes of Sections 4(a) and 8 hereof.




              13. No Fiduciary Relationship. The Company hereby acknowledges that the Initial
Purchaser is acting solely as initial purchaser in connection with the purchase and sale of the
Notes. The Company further acknowledges that the Initial Purchaser is acting pursuant to a
contractual relationship created solely by this Agreement entered into on an arm’s length basis,
and in no event do the parties intend that the Initial Purchaser act or be responsible as a
fiduciary to the Company or its management, stockholders or creditors or any other person in
connection with any activity that the Initial Purchaser may undertake or have undertaken in
furtherance of the purchase and sale of the Notes, either before or after the date hereof. The
Initial Purchaser hereby expressly disclaims any fiduciary or similar obligations to the Company,
either in connection with the transactions contemplated by this Agreement or any matters leading up
to such transactions, and the Company hereby confirms its understanding and agreement to that
effect. The Company and the Initial Purchaser agree that they are each responsible for making their
own independent judgments with respect to any such transactions and that any opinions or views
expressed by the Initial Purchaser to the Company regarding such transactions, including, but not
limited to, any opinions or views with respect to the price or market for the Notes, do not
constitute advice or recommendations to the Company. The Company hereby waives and releases, to the
fullest extent permitted by law, any claims that the Company may have against the Initial Purchaser
with respect to any breach or alleged breach of any fiduciary or similar duty to the Company in
connection with the transactions contemplated by this Agreement or any matters leading up to such
transactions.




 









 








              14. Miscellaneous.





	(a)	 	Notices given pursuant to any provision of this Agreement shall be addressed as follows:





	 	 	 
	(i)

	 	if to the Company, to
	 
	 	 
	 

	 	Alon Refining Krotz Springs, Inc.
	 

	 	7616 LBJ Freeway, Suite 300
	 

	 	Dallas, Texas 75251
	 

	 	Attention: Secretary
	 
	 	 
	 

	 	with a copy to:
	 
	 	 
	 

	 	Jones Day
	 

	 	2727 North Harwood Street
	 

	 	Dallas, Texas 75201-1515
	 

	 	Attention: Mark E. Betzen
	 
	 	 
	(ii)

	 	if to the Initial Purchaser, to:
	 
	 	 
	 

	 	Jefferies & Company, Inc.
	 

	 	520 Madison Avenue
	 

	 	New York, New York 10022
	 

	 	Attention: General Counsel







	 	 	(or in any case to such other address as the person to be notified may have requested in
writing).






	(b)	 	This Agreement has been and is made solely for the benefit of the Company and the Initial
Purchaser and, to the extent provided in Section 8 hereof, the controlling persons,
officers, directors, partners, employees, representatives and agents referred to in
Section 8, and shall be binding upon the Company and the Initial Purchaser and their
respective heirs, executors, administrators, successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term “successors and assigns” shall not include a purchaser of
any of the Notes from the Initial Purchaser merely because of such purchase. Notwithstanding
the foregoing, it is expressly understood and agreed that each purchaser who purchases Notes
from the Initial Purchaser is intended to be a beneficiary of the covenants of the Company
contained in the Registration Rights Agreement to the same extent as if the Notes were sold
and those covenants were made directly to such purchaser by the Company, and each such
purchaser shall have the right to take action against the Company to enforce, and obtain
damages for any breach of, those covenants.
	 
	(c)	 	The Initial Purchaser shall pay and be solely responsible for all out-of-pocket expenses
(including fees and expenses of its counsel) incurred by the Initial Purchaser and its
designated affiliates in connection with their services to be rendered hereunder, the Offering
or the transactions contemplated under the Documents.
	 
	(d)	 	THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH
HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.




 









 






	(e)	 	THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY (I) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
THE FEDERAL AND STATE COURTS SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY; AND (II) WAIVES (A) ITS RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE INITIAL
PURCHASER OR THE COMPANY AND FOR ANY COUNTERCLAIM RELATED TO ANY OF THE FOREGOING AND (B) ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
	 
	(f)	 	This Agreement may be signed in various counterparts, which together shall constitute one and
the same instrument (including by means of telecopied or portable document format (PDF)
signature pages).
	 
	(g)	 	The headings in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
	 
	(h)	 	If any term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall
use their best efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
	 
	(i)	 	This Agreement may be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may be given, provided that the same are in writing and
signed by all of the signatories hereto.





[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]




 









 





          Please confirm that the foregoing correctly sets forth the agreement between the Company and
the Initial Purchaser.




	 	 	 	 	 
	 	Very truly yours,




ALON REFINING KROTZ SPRINGS, INC.

 	 
	 	By:  	/s/ Jeff D. Morris
 	 
	 	 	Name:  	Jeff D. Morris 	 
	 	 	Title:  	Chief Executive Officer 	 





Purchase
Agreement - signature page



 









 






	 	 	 	 	 



	 	 	 
	Accepted and Agreed to:
	 
	 	 
	JEFFERIES & COMPANY, INC.
	 
	 	 
	By:

	 	/s/ Stephen Straty
	 

	 	 
	 

	 	Name: Stephen Straty
	 

	 	Title: Managing Director







Purchase
Agreement - signature page